P.
Venugopal Vs. Union of
India [2008]
INSC 851 (8 May 2008)
TARUN CHATTERJEE & HARJIT SINGH BEDI WRIT PETITION (CIVIL) NO.656 OF 2007 TARUN CHATTERJEE,J.
1. In this writ application under Article 32 of the Constitution moved at
the instance of Dr.P.Venugopal, a renowned and internationally famed Cardio
Vascular Surgeon, calls in question the constitutional validity of the proviso
to sub-section (1A) of Section 11 of the All India Institute of Medical
Sciences (Amendment) Act, 2007.
1
2. The writ petitioner was admittedly the Director of All India Institute of
Medical Sciences (in short the "AIIMS") immediately prior to the
commencement of the added provisions and by virtue of the legislative command
contained in the added provision he had been made to demit his office as
Director of the said Institute from the date of coming into force of this added
provision.
3. The writ petitioner claims and it does not appear to be disputed that he
was a Gold Medalist in his batch of MBBS, passed out from the AIIMS itself and
thereafter he acquired qualification of MS and MCH in cardio vascular surgery
and that he served the Institute for about three/four decades with honesty and
respect without any blemish. It is also not in dispute that the writ petitioner
was to complete his five-year term in the Office of the Director on 2nd of
July, 2008, but due to this added provision in the Act, had to suffer 2 a
pre-mature termination and consequent removal from the office of the Director
on 30th of November, 2007. It is alleged that this adverse affectation has been
brought about directly by the added provision.
4. In the Statement of Objects and Reasons of the Amendment Act of 1987
being Act XXX of 1987, as stated herein above, AIIMS and the Post Graduate
Institute of Medical Education and Research, Chandigarh, are statutory
autonomous bodies wholly financed by the Government of India. Sub-Section (2)
of Section 3 of the All India Institute of Medical Sciences Act, 1956, provides
for the incorporation of the Institute and declares "that the Institute
shall be a body corporate by the name aforesaid having perpetual succession and
a common seal with a power to acquire, hold and dispose of property, both
moveable and immoveable, and to contract, and shall by the said name sue and be
sued".
3 Section 5 of the Parent Act declares "that the Institute shall be an
Institute of National Importance." Section 4 of the Act deals with the
composition of the Institute and the Director of the Institute has been made an
Ex- officio Member of the Institute and under sub- section 2 of Section 6, he
is to continue as such so long as he holds office in virtue of which, he is
such a Member. The Act provides for Constitution of a Governing Body by the
Institute from amongst its members in such manner as may be prescribed by the
Regulations to exercise such power and discharge such functions as the
Institute may, by Regulation, make in this behalf confer or impose upon it.
Under Regulation 25, the Institute is required to carry out such directions
as may be issued to it from time to time by the Central Government for the
efficient administration under the Act. Section 26 deals with the dispute
between the Institute and the Central Government in the matter of exercise of
its 4 power and discharge of its function under the Act and makes the decision
of the Central Government final. Thus the Act designed the Institute to be an
autonomous statutory body of national importance subject to limited control in
respect of specified matters. Sub-section (1A) with its proviso added to
Section 11 of the AIIMS (Amendment) Act, 2007 reads as follows:- (1A) - The
Director shall hold office for a term of five years from the date on which he
enters upon his office or until he attains the age of sixty-five years, whichever
is earlier.
Provided that any person holding office as a Director immediately before the
commencement of the All India Institute of Medical Sciences and the
Post-Graduate Institute of Medical Education and Research (Amendment) Act,
2007, shall in so far as his appointment is inconsistent with the provisions of
this sub- section, cease to hold office on such commencement as such Director
and shall be entitled to claim compensation not exceeding three months' pay and
allowances for the premature termination of his office or of any contract of
service......"
5
5. As noted herein earlier in this writ petition, the challenge has been
confined only to the proviso of the added sub-section (1A) of Section 11 of the
Act. Mr.Arun Jaitley, learned senior counsel appearing on behalf of the writ
petitioner submitted at the first instance that the provisions, no doubt,
acquire their operational significance from the added sub- section but
manifestly, it makes a significant departure from the substantive part and proceeds
to deal only with the particular Director holding office immediately prior to
its coming into force and is not concerned with any other officer or member of
the Institute, nor to any other person who may be coming to hold the same
office of Director in future.
6. We have carefully examined the proviso to the added sub-section (1A) to
Section 11 of the Act. Reading the proviso in the manner as aforesaid, the writ
petitioner has challenged its constitutional validity mainly on the following
grounds:
6 (i) The proviso is patently a single-man legislation and intended to
affect the writ petitioner only and none else thus introduces a "naked
discrimination" to deprive the writ petitioner of the constitutional
protection under Article 14 of the Constitution.
(ii) The writ petitioner has been singled out to be deprived of the two
protective conditions in respect of curtailment of his tenure. The benefit of
notice and justifiable reasons being the two such conditions will continue to
be available to all future Directors but the proviso makes them non-available
to the writ petitioner being the Director presently in office and requires him
to move out of the office under the legislative command.
(iii) In the facts and circumstances of the case and in view of the pending
proceedings with different orders passed therein, such calculated steps to
force the writ petitioner out of his office offend the constitutional scheme
envisaging fair, reasonable and equal treatment on the part of the State in its
dealing with the individual in general and with people in public employment in
particular.
7 (iv) The writ petitioner claims the protection of Articles 14 and 16 of
the Constitution of India.
(v) In the factual context of the case, there has been a violation of the
orders issued in favour of the writ petitioner passed by the learned Single
Judge of the High Court of Delhi in W.P.No.10687/2006 in connection with
interim applications CMP NOs.8169/2006 and 12471/2006 and by the Division Bench
in W.P.)No.8485/2006 and LPA NOs.2045-46/2006.
7. It is true that in establishments like AIIMS, there is an age of
superannuation governing the length of service of its officers and employees.
Such age of superannuation may be suitably altered by way of reducing the age
so as to affect even the serving employees under appropriate circumstances and
no exception can be taken to such course of action. Similarly under the Service
Rules, there may be provision for extension of service after the attainment of
the age of 8 superannuation and it is well settled that in the event of refusal
by an employer to grant an extension, the employee cannot justifiably claim to
be deprived of any right or privilege.
The view taken is that the employer has a discretion to grant or not to
grant such extension having regard to the interest of the employer or the
establishment. This view is expressed by this Court in the Case of State Bank
of Bikaner and Jaipur and Ors. vs. Jag Mohan Lal (AIR 1989 SC 75). In this
case, at para 12, this Court observed as follows :
"The Bank has no obligation to extend the services of all officers even
if they are found suitable in every respect. The interest of the Bank is the
primary consideration for giving extension of service. With due regard to
exigencies of service, the Bank in one year may give extension to all suitable
retiring officers. In another year, it may give extension to some and not to
all. In a subsequent year, it may not give extension to any one of the
officers. The Bank may have a lot of fresh recruits in one year. The Bank may
not need the services of all retired persons in another year. The Bank may have
lesser workload in a 9 succeeding year. The retiring persons cannot in any year
demand that "extension to all or none". If we concede that right to
retiring persons, then the very purpose of giving extension in the interest of
the Bank would be defeated. We are, therefore, of opinion that there is no
scope for complaining arbitrariness in the matter of giving extension of
service to retiring persons."
Top of Form 0 Bottom of Form
8. In the instant case, the material facts and circumstances bring into
focus other consideration. In the case of the writ petitioner, a Division Bench
of the Delhi High Court by its judgment and order dated 29th of March, 2007 (Pages
119 to 181 of Volume I of Writ Petition No.656 of 2007) has considered the
right of the writ petitioner to hold the office of the Director for five years
from the age of 61 years to 66 years. There can be no dispute with regard to
the contentions raised by Mr. K. A. Parasaran, learned senior counsel 10
appearing for the respondent, that a person appointed in Government service
acquires a status and his service conditions will be determined by the Service
Rules or Statutory Rules and not by the contrary or inconsistent terms of the
contract, and such terms and conditions of service may be unilaterally altered
by the Government. This view has been candidly expressed in paragraph 6 of a
decision of this Court, namely, Roshan Lal Tandon vs.
Union of India and Anr. (AIR 1967 SC 1889) which, in our view, should be
required to be reproduced. Accordingly, we reproduce para 6 of the aforesaid
decision which is as under :
"We pass on to consider the next contention of the petitioner that
there was a contractual right as regards the condition of service applicable to
the petitioner at the time he entered Grade 'D' and the condition of service
could not be altered to his disadvantage afterwards by the notification issued
by the Railway Board. It was said that the order of the Railway Board dated
January 25, 1958, Annexure 'B', laid down that promotion to Grade 'C' from
Grade 'D' was to be based on 11 seniority-cum-suitability and this condition of
service was contractual and could not be altered thereafter to the prejudice of
the petitioner. In our opinion, there is no warrant for this argument. It is
true that the origin of Government service is contractual. There is an offer
and acceptance in every case. But once appointed to his post or office the
Government servant acquires a status and his rights and obligations are no
longer determined by consent of both parties, but by statute or statutory rules
which may be framed and altered unilaterally by the Government. In other words,
the legal position of a Government servant is more one of status than of
contract. The hall-mark of status is the attachment to a legal relationship of
rights and duties imposed by the public law and not by mere agreement of the
parties. The emolument of the Government servant and his terms of service are
governed by statute or statutory rules which may be unilaterally altered by the
Government without the consent of the employee. It is true that Art. 311
imposes constitutional restrictions upon the power of removal granted to the
President and the Governor under Art. 310. But it is obvious that the
relationship between the Government and its servant is not like an ordinary
contract of service between a master and servant. The legal relationship is
something entirely different, something in the nature of status. It is much
more than a purely contractual relationship voluntarily 12 entered into between
the parties. The duties of status are fixed by the law and in the enforcement
of these duties society has an interest. In the language of jurisprudence
status is a condition of membership of a group of which powers and duties are
exclusively determined by law and not by agreement between the parties
concerned. The matter is clearly stated by Salmond and Williams on Contracts as
follow :
"So we may find both contractual and status-obligations produced by the
same transaction. The one transaction may result in the creation not only of
obligations defined by the parties and so pertaining to the sphere of contract
but also and concurrently of obligations defined by the law itself, and so
pertaining to the sphere of status. A contract of service between employer and
employee, while for the most part pertaining exclusively to the sphere of
contract, pertains also to that of status so far as the law itself has been fit
to attach to this relation compulsory incidents, such as liability to pay
compensation for accidents. The extent to which the law is content to leave
matters within the domain of contract to be determined by the exercise of the
autonomous authority of the parties themselves, or thinks fit to bring the
matter within the sphere of status by authoritatively determining for itself
the contents of the relationship, is a matter depending on considerations of 13
public policy. In such contracts as those of service the tendency in modern
times is to withdraw the matter more and more from the domain of contract into
that of status."
9. Similarly in N.Lakshmana Rao and Ors vs.
State of Karnataka and Ors. (1976) 2 SCC 502 in paras 20 and 21, it was
observed as follows :- "As a result of the exercise of option by the
teachers of the local bodies they became Government servants. The term that the
service conditions would not be varied to their disadvantage would mean that
they would be like all other Government servants subject to Article 310(1) of
the Constitution. This could mean that under the law these teachers would be
entitled to continue in service up to the age of superannuation. The exercise
of option does not mean that there was a contract whereby a limitation was put
on prescribing an age of superannuation. It has been held by this Court that
prescribing an age of superannuation does not amount to an action under Article
311 of the Constitution. Article 309 confers legislative power to provide conditions
of service. The Legislature can regulate conditions of service by 14 Law which
can impair conditions or terms of service.
This Court in Roshan Lal Tandon v.
Union of India said that there is no vested contractual right in regard to
the terms of service. The legal position of a Government servant is one of
status than of contract. The duties of status are fixed by law. The terms of
service are governed by statute or statutory rules which may be unilaterally
altered by the Government without the consent of the employee."
10. A further decision relied upon in this connection by Mr.Parasaran,
learned senior counsel appearing for the respondent, is the decision of this
Court reported in Union of India and Anr. vs. Dr.S.Baliar Singh, [(1998) 2 SCC
208], particularly learned senior counsel has relied on paragraph 12 of the
said decision in support of his contention. Relying on this decision of this
Court, it was contended that the rules which were in force on the date of
retirement would govern the employee concerned.
15 On this aspect of the matter, there cannot be any dispute as such aspect
is well settled by a series of decisions of this Court as referred to herein
above. But the problem arises when the constitutional validity of the statutory
provisions is called in question on the ground of violation of fundamental
rights. A person entering into a Government service is no doubt liable to be
dealt with by the relevant Act or the Rules but it ceases to be so in the event
of his success in challenging the constitutional validity of the same. A
Government servant entering into a Government service does not forego his
fundamental rights.
On the other hand, because of his status as a person in public employment,
he acquires additional rights constitutionally protected.
The State or other public authorities are not, therefore, entitled to make
and impose laws governing the service conditions of an employee which
manifestly deprive him of the privileges of that status. A person in public
employment 16 is endowed with a status not merely subjecting him to liabilities
and obligation but also protecting him against any arbitrary, unreasonable and
unequal treatment. Such a person is also entitled to constitutional remedies
whether under Article 32 or under Article 226 of the Constitution. The next
contention on behalf of the respondent is that the constitutionality of law
cannot be judged on the basis of its peculiar operation in special or
individual cases and it must be judged on the basis of its ordinary effect and
use of operation. It was pointed out that a few freak instances of hardship may
arise at a time or at different times but the same cannot invalidate the order
or the policy. In this connection, Mr.Parasaran, learned senior counsel
appearing on behalf of the respondent, had placed reliance on a decision of the
Federal Court reported in AIR 1939 Federal Court P.1 (Central Provinces and
Berar Sales 17 of Motor Spirit and Lubricants Taxation Act,1938.)
11. While examining the legality of Central Provinces and Berar Sales of
Motor Spirit and Lubricants Taxation Act, 1938, Justice Sulaiman, as His
Lordship then was, in a concurring judgment referred to the observations of
Lord Herschell in Attorney General for Canada vs. Attorney General for Ontario
(1898) A C 700 to the following effect:- "The Supreme Legislative power in
relation to any subject matter is always capable of abuse, but it is not to be
assumed that it will be improperly used, if it is, the only remedy is an appeal
to those by whom the Legislature is elected." (See AIR 1939 PC 1 at page
30.
12. Reliance can also be placed in this connection on the case of R.S.Joshi,
Sales Tax Officer, Gujarat and Ors. vs. Ajit Mills Ltd.
and Anr. [(1977) 4 SCC 98]. Mr.Parasaran, 18 learned senior counsel had also
relied on another decision reported in Tamilnadu Education Department
Ministerial and General Subordinate Services Association and Ors. vs.
State of Tamil Nadu and Ors. [(1980)3 SCC 97].
Reliance was also placed by the learned senior counsel for the respondent on
the decision in the matter of State of Himachal Pradesh and Anr. vs. Kailash
Chand Mahajan and Ors. (1992 Suppl.2 SCC 351) and Virender Singh Hooda and Ors.
vs. State of Haryana and Anr.(2004) 12 SCC 588.
13. On a close examination of the aforesaid decisions, it appears that the
questions involved in the aforesaid decisions were significantly different. So
far as AIR 1939 (Federal Court page 1) is concerned, the question of
constitutional invalidity, as in the present case, was not in issue. In R.S.Joshi's
case, the law in question did not 19 lack in generality in respect of its
operation.
But exception was sought to be taken on the basis of the hardship or
injustice in particular cases. So far as 1980 (3) SCC 197 (Tamilnadu Education
Department case) is concerned, the law was general in its operation and freak
instances of hardship were held not relevant to determine its validity.
14. So far as the last decision of this Court, as referred to by Mr.
Parasaran, namely, State of Himachal Pradesh vs. Kailash Chand Mahajan (1992
Supp.2 SCC 351) is concerned, the impugned law in the decision being the
Ordinance of 1990 was a law of general application and it applied not only to
the Chairman-cum-Managing Director of Himachal Pradesh State Electricity Board,
but also to all members of the Electricity Board. This Court, accordingly, held
that this was not a one-man legislation and consequently upheld it on merit.
Therefore, the respective contentions 20 are to be examined in the context of
the Constitutional Scheme of India having a written constitution with
guaranteed fundamental rights. In India, under Article 13(2) of the
Constitution "the State shall not make any law which takes away or
abridges the rights conferred by this part and any law made in contravention of
this Clause shall, to the extent of the contravention, be void." Thus in
India, a law cannot be accepted merely because it purports to be a law falling
within the legislative field of the maker thereof. Each such provision of law
is required to stand the test of Article 13(2) of the Constitution and survive.
15. Mr.Arun Jaitley, learned senior counsel appearing on behalf of the writ
petitioner laid stress on the following three judgments of this Court. The
first decision is the case of Ram Prasad Narayan Sahi and Anr. vs. The State of
Bihar and Ors. (AIR 1953 SC 215). Mr.Jaitley 21 had drawn our attention to a
passage of this judgment rendered by the former Chief Justice of this Court,
Justice Patanjali Sastri, in which the Chief Justice, after referring to the
facts of the earlier case of Ameerunissa Begum and Ors. vs. Mahboob Begum and
Ors. (AIR 1953 SC 91), in which the Legislature intervened in a private dispute
in respect of succession to an estate,observed:- "Legislation based upon mismanagement
or other misconduct as the differentia and made applicable to a specified
individual or corporate body is not far removed from the notorious
parliamentary procedure formerly employed in Britain of punishing individual
delinquents by passing bills of attainder, and should not, I think, receive
judicial encouragement." (See Page 217 of this decision).
16. Chief Justice Patanjali Sastri further referred to his own dissenting
judgment in Charanjit Lal Chowdhury vs. Union of India and Ors. (AIR 1951 SC 41)
and observed that similar view was taken in Ameerunnissa Begum's case 22
(Supra). The former Chief Justice Patanjali Sastri, in the same decision
proceeded to observe :
"Whenever, then, a section of the people in a locality, in assertion of
an adverse claim, disturb a person in the quiet enjoyment of his property, the
Bihar Government would seem to think that it is not necessary for the police to
step in to protect him in his enjoyment until he is evicted in due course of
law, but the Legislature could intervene by making a "Law" to oust
the person from his possession.
Legislation such as we have now before us is calculated to draw the vitality
from the Rules of Law which our Constitution so unmistakably proclaims, and it
is to be hoped that the democratic process in the country will not function
along these lines."
17. In Ameerunnissa Begum's case (Supra), the former Chief Justice of India,
Mr. Justice Bijon Kumar Mukherjee, as His Lordship then was, also applied the
principles laid down in the case of Ram Prasad Narayan Sahi's case (Supra) and
at page 220 observed as follows:- "What the legislature has done is to
single out these two individuals and deny them the right which every Indian
citizen possesses to have his 23 rights adjudicated upon by a judicial tribunal
in accordance with law which applied to his case. The meanest of citizens has a
right of access to a court of law for the redress of his just grievances and it
is from his right that the appellants have been deprived, by this Act. It is impossible
to conceive of a worse form of discrimination than the one which differentiates
a particular individual from all his fellow subjects and visits him with a
disability which is not imposed upon anybody else and against which even the
right of complaint is taken away. The learned attorney general who placed his
case with his usual fairness and ability, could not put forward any convincing
or satisfactory reason upon which this legislation could be justified."
(See Page 220 of this decision).
18. The observation made by His Lordship in the aforesaid decision is also
material and therefore we reproduce the same:
"It is true that the presumption is in favour of the constitutionality
of a legislative enactment and it has to be presumed that a legislature understands
and correctly appreciates the needs of its own people. But when on the face of
a statute, there is no classification at all and no attempt has been made to
select any individual or group with reference to any 24 differentiating
attribute peculiar to that individual or group and not possessed by others,
this presumption is of little or no assistance to the State."
19. Let us now look into the facts of the case in hand. In the instant case
it was submitted that the impugned proviso was manifestly designed to apply and
was in fact applied only against the writ petitioner and was not intended to
and could not apply even, in principle or otherwise, to anybody else because
there was only one AIIMS in the country, there was only one Director of the AIIMS
on the date of commencement of the Amending Act, and there could be none else
who could conceivably be effected by its operation. It is claimed that
reference to a similar proviso introduced in the PGI Chandigarh Act, 1956, is
somewhat misleading as the term of appointment of the present Director of PGI
Chandigarh was only upto the age of 68 years and accordingly there was no
question under the PGI Chandigarh Act as 25 the proviso is affecting the
present incumbent or his successor.
20. It was further submitted on behalf of the writ petitioner that the
proviso itself declares that "any person holding office as a Director
immediately before the commencement of the All India Institute of Medical
Sciences and the Post Graduate Institute of Medial Education and Research
(Amendment) Act of 2007 shall in so far as his appointment is inconsistent with
the provisions of this sub- section ceases to hold office on such commencement
as such Director and shall be entitled to claim compensation not exceeding
three months' pay and allowances for the premature termination of his office or
of any contract of service." (Emphasis supplied)
21. This submission, as advanced by Mr.Jaitley, learned senior counsel
appearing on behalf of the writ petitioner, in our view, has 26 merit that the
impugned proviso does not at all deal with the alteration of the age of
superannuation. On the contrary, it really modifies the initial appointment on
the ground of alleged inconsistency with a subsequent enactment and makes him
entitled to compensation for premature termination of his office. To equate the
impugned proviso with the simple alteration of the age of superannuation is to
ignore the clear language of the proviso itself. The proviso brings about a
premature termination and provides for compensation. A superannuation in usual
course gives rise to ordinary retiral benefits and not to any compensation.
Again it is impossible to ignore the force in the submission of Mr.Jaitley,
learned senior counsel appearing on behalf of the writ petitioner, that a
person is being singled out for premature termination without any question of
his being justifiably treated as a Member of a separate and distinct class on
any rational basis, any question of 27 intelligible differentia having a nexus
to the object of classification cannot arise. It was contended by Mr.Jaitley
that in reality there is no legislation in respect of any class but there is
legislation in respect of an individual, a living human being requiring him to
move out of office. The Delhi High Court in its judgment dated 29th of March,
2007 has held that the writ petitioner was entitled to continue as a Director
upto 2nd of July, 2008 and issued a Writ of Mandamus that premature termination
could only be made for justifiable reasons and in compliance with the
principles of natural justice. By a Writ in the nature of Prohibition issued by
the High Court, the respondent was prohibited from implementing any adverse
decision against the writ petitioner without giving him a period of two weeks for
approaching the High Court. It would be appropriate at this stage to refer to
the Statement of Objects and Reasons of the Amendment Act of 2007. It declares
that with a 28 view to comply with the directions of the High Court of Delhi in
the judgment dated 29th of March, 2007, the amendments are being introduced. It
is difficult to conceive how the amendments are in compliance or in consonance
with the directions of the High Court. On behalf of the writ petitioner, it was
contended and not without reason, that the amendments were made precisely to
frustrate the judgment of the High Court reducing his search for justice to an
exercise in futility.
22. It appears that the direction No.13 in the judgment of the Delhi High
Court was not confined or related to the particular case of the writ petitioner
as regards his right to continue as a Director until he attains the age of 66
years, i.e., upto 2nd of July, 2008. It was otherwise and independently upheld
in the same judgment. It is also true that the impugned proviso does not lay
down any policy or principle at all, but deals only with the 29 case of the
writ petitioner and seeks to affect him in isolation. After the order of the
Delhi High Court dated 29th of November, 2002, in Health India (Registered) vs.
Union of India and Ors. [102 (2003) Delhi Law Times 19], the writ petitioner
was appointed with the approval of the ACC as the Director at the age of 61
years on 3rd of July, 2003 for a term of five years expiring on 2nd of July,
2008, i.e., on attainment of the age of 66 years. Shri R.L.Malhotra, Under
Secretary to the Government of India, in fact, by a letter to the Director, All
India Institute of Medical Sciences, Ansari Nagar, New Delhi, conveyed the
approval of the Appointments Committee of the Cabinet for appointment of Prof.
P.Venugopal as Director, All India Institute of Medical Sciences, New Delhi in
the pay scale of Rs.26,000/- with Non- Practicing Allowance for a period of
five years from the date he assumes charge of the post and until further orders.
He will also continue as Professor in the Department of 30 Cardiovascular and
Thoracic Surgery, AIIMS, New Delhi. The appointment of the Director, PGI,
Chandigarh, was restricted upto the age of 62 years and his appointment does
not bear any comparison with the instant case.
23. The learned Single Judge of the Delhi High Court in the writ Petition
being W.P.[C] No.10687/2006 on 7th of July, 2006, inter alia, observed that
"the petitioner has not been given any notice and according to him his
tenure of five years could not be curtailed on the grounds which are not
justifiable..."and then proceeded to injunct the respondent against
premature termination of the term of the writ petitioner. The learned Single
Judge reiterated and re-emphasized the prohibition against the respondent by
subsequent order dated 18th of October, 2006 (See Pages 89-118 of Vol.1)
24. The Division Bench of the Delhi High Court by its judgment dated 29th of
March, 2007 has 31 rendered an effective and binding determination of the right
of the writ petitioner to continue as Director for five years upto 2nd of July,
2008. In the said judgment (at P.127 of Vol.I), the learned Judge of the High
Court has referred to the AIIMS Regulations and particularly to Clause 5
thereof which provides for fixed tenure of five years for the Member of the
Governing Body as the Director being full fledged Member of the Governing Body
and not an Ex-officio Member and was entitled to the benefit of his tenure as a
Member, and could not justifiably be deprived of the same.
The writ petitioner is, however, being singled out and treated differently
from other Members of the Governing Body. In this connection, reference can be
made to Sections 4, 6 and 10 of the AIIMS Act, 1956 which are relevant for our
purpose. Accordingly, we quote relevant provisions as indicated herein above:-
Section 4 - Composition of the Institute - 32 The Institute shall consist of
the following members, namely :- (a) the Vice-Chancellor of the Delhi
University, ex-officio;
(b) the Director General of Health Services, Government of India, ex
officio;
(c) the Director of the Institute, ex officio;
(d) two representatives of the Central Government to be nominated by that
Government, one from the Ministry of Finance and one from the Ministry of
Education;
(e) five persons of whom one shall be a non-medical scientist representing
the Indian Science Congress Association, to be nominated by the Central
Government;
(f) four representatives of the medical faculties of Indian Universities to
be nominated by the Central Government in the manner prescribed by rules; and
(g) three members of Parliament of whom two shall be elected from 33 among
themselves by the members of the House of the People and one from among
themselves by the members of the Council of States.
Section 6 - Term of office of, and vacancies among, members - (1) Save as
otherwise provided in the section, the term of office of a member shall be five
years from the date of his nomination or election:
Provided that the term of office of a member elected under clause (g) of
section 4 shall come to an end as soon as he [becomes a Minister or Minister of
State or Deputy Minister, or the Speaker or the Deputy Speaker of the House of
the People, or the Deputy Chairman of the Council of States or] ceases to be a
member of the House from which he was elected.
(2) The term of office of an ex officio member shall continue so long as he
holds the office in virtue of which he is such a member.
(3) The term of office of a member nominated or elected to fill a casual
vacancy shall continue for 34 the remainder of the term of the member in whose
place he is nominated or elected.
(4) An outgoing member shall, unless the Central Government otherwise
directs, continue in office until another person is nominated or elected as a
member in his place.
(5) An outgoing member shall be eligible for re-nomination or re- election.
(6) A member may resign his office by writing under his hand addressed to
the Central Government but he shall continue in office until his resignation is
accepted by that Government.
(7) The manner of filing vacancies among members shall be such as may be
prescribed by rules.
Section 10 - Governing Body and other Committees of the Institute _ (1)
There shall be a Governing Body of the Institute which shall be constituted by
the Institute from among its members in such manner 35 as may be prescribed by
regulations.
(2) The Governing Body shall be the executive committee of the Institute and
shall exercise such powers and discharge such functions as the Institute may,
by regulations made in this behalf, confer or impose upon it.
(3) The President of the Institute shall be the Chairman of the Governing
Body and as Chairman thereof shall exercise such powers and discharge such functions
as may be prescribed by regulations.
(4) The procedure to be followed in the exercise of its powers and discharge
of its functions by the Governing Body, and the term of office of, and the
manner of filling vacancies among, the members of the Governing Body shall be
such as may be prescribed by regulations.
(5) Subject to such control and restrictions as may be prescribed by rules,
the Institute may constitute as many standing committees and as many ad hoc
committees as it thinks fit for exercising any power or discharging any
function of the Institute or for inquiring into 36 or reporting or advising
upon, any matter which the Institute may refer to them.
(6) A standing committee shall consist exclusively of members of the
Institute; but an ad hoc committee may include persons who are not members of
the Institute but the number of such persons shall not exceed one half of its
total membership.
(7) The Chairman and members of the Governing body and the Chairman and
members of a standing committee or an ad hoc committee shall receive such
allowances, if any, as may be prescribed by regulations."
25. Keeping the provisions, as noted herein above, in our mind, we now
proceed to take up the question in hand. The tenure of the writ petitioner as a
Director to act as a Member of the Governing Body is for five years which
expires on 2nd of July, 2008 on the basis of his initial appointment and,
therefore, it is not in dispute that it was a tenure appointment which could
not be otherwise dealt with. It was 37 seriously contended by Mr.Parasaran,
learned senior counsel appearing on behalf of the respondent, that reliance on
the Delhi High Court's judgment and orders particularly those of the learned
Single Judge dated 7th of July, 2006 and 18th of October, 2006 and the order
dated 29th of March, 2007 of the Division Bench was wholly misconceived as the
two orders of the Single Judge were interim orders and the special leave
petition against the orders of the Division Bench was pending before this
Court. It was also contended by Mr.Parasaran, learned senior counsel for the
respondent that the writ petition filed by the writ petitioner in the Delhi
High Court is still pending before the learned Single Judge and therefore, it
was pointed out on behalf of the respondent that in such view of the matter, no
reliance could be placed upon the decision in Madan Mohan Pathak and Anr. vs.
Union of India and Ors. [(1978) 2 SCC 50] and in the case of A.V.Nachane and
Anr. vs. Union of India and Anr. [(1982)1 SCC 38 205]. It is true that
respondent has, no doubt, raised the plea that the judgment of the Division
Bench is under challenge before this Court and, therefore, it has not yet
attained the kind of finality which was there in Madan Mohan Pathak's case. In
Madan Mohan Pathak's case (Supra), the question of finality was taken into
consideration only for the purpose of enforceability of the direction of the
Calcutta High Court in respect of payment of bonus under the settlement of
Class III and Class IV employees and it was held that irrespective of the
question of Constitutionality of the Amendment Act, the Calcutta High Court
judgment operating inter parties and becoming final was enforceable. In this
connection, Para 8 of the decision in Madan Mohan Pathak's case is important
for the purpose of the present case. Accordingly, we reproduce the said
paragraph which runs as under :- "It is significant to note that there was
no reference to the judgment of 39 the Calcutta High Court in the Statement of
Objects and Reasons, nor any non-obstante clause referring to a judgment of a
court in Section 3 of the impugned Act. The attention of Parliament does not
appear to have been drawn to the fact that the Calcutta High Court has already
issued a writ of Mandamus commanding the Life Insurance Corporation to pay the
amount of bonus for the year 1st April, 1975 to 31st March, 1976. It appears
that unfortunately the judgment of the Calcutta High Court remained almost
unnoticed and the impugned Act was passed in ignorance of that judgment.
Section 3 of the impugned Act provided that the provisions of the Settlement in
so far as they relate to payment of annual cash bonus to Class III and Class IV
employees shall not have any force or effect and shall not be deemed to have
had any force or effect from 1st April, 1975. But the writ of Mandamus issued
by the Calcutta High Court directing the Life Insurance Corporation to pay the
amount of bonus for the year 1st April, 1975 to 31st March, 1976 remained
untouched by the impugned Act. So far as the right of Class III and Class IV
employees to annual cash bonus for the year 1st April, 1975 to 31st March, 1976
was concerned, it became crystallised in the judgment and thereafter they
became entitled to enforce the writ of Mandamus granted by the judgment and not
any right to annual cash bonus under the settlement. This right under the
judgment was not sought to be 40 taken away by the impugned Act. The judgment
continued to subsist and the Life Insurance Corporation was bound to pay annual
cash bonus to Class III and Class IV employees for the year 1st April, 1975 to
31st March, 1976 in obedience to the writ of Mandamus. The error committed by
the Life Insurance Corporation was that it withdrew the Letters Patent Appeal
and allowed the judgment of the learned Single Judge to become final. By the
time the Letters Patent Appeal came up for hearing, the impugned Act had
already come into force and the Life Insurance Corporation could, therefore,
have successfully contended in the Letters Patent Appeal that, since the
Settlement, in as far as it provided for payment of annual cash bonus, was
annihilated by the impugned Act with effect from 1st April, 1975, Class III and
Class IV employees were not entitled to annual cash bonus for the year 1st
April, 1975 to 31st March, 1976 and hence no writ of Mandamus could issue
directing the Life Insurance Corporation to make payment of such bonus. If such
contention had been raised, there is little doubt, subject of course to any
constitutional challenge to the validity of the impugned Act, that the judgment
of the learned Single Judge would have been upturned and the Writ petition
dismissed. But on account of some inexplicable reason, which is difficult to
appreciate, the Life Insurance Corporation did not press the Letters Patent
Appeal and the result was that the judgment of the 41 learned Single Judge
granting writ of Mandamus became final and binding on the parties. It is
difficult to see how in these circumstances the Life Insurance Corporation
could claim to be absolved from the obligation imposed by the judgment to carry
out the Writ of Mandamus by relying on the impugned Act."
26. Mr. Justice P.N. Bhagwati, former Chief Justice of India in that
decision at Para 8 pointed out that Life Insurance Corporation (Modification
and Settlement) Act, 1976 was enacted apparently in ignorance of the Calcutta
High Court judgment and the attention of the Parliament was not drawn to that
judgment at all. It was also pointed out in that decision at para 8 that there
was no reference to the said judgment in the Statement of Objects and Reasons
nor any non-obstante clause incorporating in Section 3 of the impugned Act in
that case to override the judgment. This Court has been moved by the respondent
in the writ application challenging the propriety of 42 certain directions
issued by the Delhi High Court requiring the respondent to take approval of ACC
for any adverse decision against the writ petitioner and for giving the writ
petitioner two weeks' time against any such adverse decision. This Court has,
however, declined to pass any interim order in the SLP filed by the respondent.
Therefore, the interim order or final order of the Delhi High Court would
remain binding upon the parties for the time being and they cannot be ignored or
disregarded unless they are modified or leave is granted to take any step
contrary thereto.
It may not be out of place to mention that the SLP of the respondent
indicates that the term of office of five years of the writ petitioner as
Director was not really in dispute. In the Statement of Objects and Reasons of
the Act introducing the impugned proviso, it is stated that the same is being
introduced with a view to comply with the direction of the High Court in the
judgment and order dated 29th of March, 43 2007. It, however, appears that the
Division Bench of the Delhi High Court has determined the question of tenure of
the writ petitioner to be five years and there are writs in the nature of
Mandamus and Prohibition issued by the Delhi High Court directing the right of
the writ petitioner indicated in the respective orders. As in Madan Mohan
Pathak's case(para 8), as quoted herein above, in the instant case also the
Parliament does not seem to have been apprised about the pendency of the
proceedings before the Delhi High Court and this Court and declaration made and
directions issued by the Delhi High Court at different stages. In the impugned
amendment, there is no non-obstante clause. The impugned amendment introducing
the proviso, therefore, cannot be treated to be a validating Act. This Court in
the case of Dr.L.P.Agarwal vs. Union of India and Ors.
[(1992) 3 SCC 526 (Para 16)] observed as follows :- "We have given our
thoughtful consideration to the reasoning and the 44 conclusions reached by the
High Court.
We are not inclined to agree with the same. Under the Recruitment Rules the
post of Director of the AIIMS is a tenure post. The said rules further provide
the method of direct recruitment for filling the post.
These service-conditions make the post of Director a tenure post and as such
the question of superannuating or prematurely retiring the incumbent of the
said post does not arise. The age of 62 years provided under Proviso to
Regulation 30(2) of the Regulations only shows that no employee of the AIIMS
can be given extension beyond that age. This has obviously been done for
maintaining efficiency in the Institute-Services. We do not agree that simply
because the appointment order of the appellant mentions that "he is
appointed for a period of five years or till he attains the age of 62
years", the appointment ceases to be to a tenure-post. Even an outsider
(not an existing employee of the AIIMS) can be selected and appointed to the
post of Director. Can such person be retired prematurely curtailing his tenure
of five years? Obviously not. The appointment of the appellant was on a Five
Years Tenure but it could be curtailed in the event of his attaining the age of
62 years before completing the said tenure. The High Court failed to appreciate
the simple alphabet of the service jurisprudence. The High Court's reasoning is
against the clear and unambiguous language of the Recruitment Rules. The said
rules 45 provide "Tenure for five years inclusive of one year
probation" and the post is to be filled "by direct recruitment".
Tenure means a term during which an office is held. It is a condition of
holding the office.
Once a person is appointed to a tenure post, his appointment to the said
office begins when he joins and it comes to an end on the completion of the
tenure unless curtailed on justifiable grounds. Such a person does not
superannuate, he only goes out of the office on completion of his tenure. The
question of prematurely retiring him does not arise. The appointment order gave
a clear tenure to the appellant. The High Court fell into error in reading
"the concept of superannuation" in the said order.
Concept of superannuation which is well understood in the service
jurisprudence is alien to tenure appointments which have a fixed life span. The
appellant could not therefore have been prematurely retired and that too
without being put on any notice whatsoever. Under what circumstances can an
appointment for a tenure be cut short is not a matter which requires our
immediate consideration in this case because the order impugned before the High
Court concerned itself only with premature retirement and the High Court also
dealt with that aspect of the matter only. This court's judgment in Dr. Bool
Chand v. The Chancellor Kurukshetra University relied upon by the High Court is
not on the point involved in this case. In that case 46 the tenure of Dr. Bool
Chand was curtailed as he was found unfit to continue as Vice-Chancellor having
regard to his antecedents which were not disclosed by him at the time of his
appointment as Vice-Chancellor.
Similarly the judgment in Dr. D.C.
Saxena v. State of Haryana has no relevance to the facts of this case".
27. From the above quotation, as made in para 16 of the said decision of
this Court, it is evident that this Court has laid down that the term of 5
years for a Director of AIIMS is a permanent term. Service Conditions make the
post of Director a tenure post and as such the question of superannuating or
prematurely retiring the incumbent of the said post does not arise at all. Even
an outsider (not an existing employee of the AIIMS) can be selected and
appointed to the post of Director. The appointment is for a tenure to which
principle of superannuation does not apply. "Tenure"
means a term during which the office is held.
It is a condition of holding the office. Once a person is appointed to a
tenure post, his 47 appointment to the said post begins when he joins and it
comes to an end on the completion of tenure unless curtailed on justifiable
grounds. Such a person does not superannuate, he only goes out of the office on
completion of his tenure. It was in 1958 that AIIMS had framed its regulations
under Section 29 of the Act. Regulation 30-A was brought into AIIMS Regulation
by an amendment dated 25th of July, 1981 notified in the Gazette on 10th of
October, 1981 coming into force w.e.f. 1st of August, 1981. The provision of
Regulation 30-A was very much in existence when this court had decided the case
of Dr.L.P.Agarwal on 21st of July, 1992. It is the same provision of Regulation
30-A which was brought into force w.e.f. 1st of August, 1981 in the AIIMS
Regulations and had been re-numbered as Regulation 31, when the AIIMS 1958
Regulations had been substituted by AIIMS Regulations, 1999. Therefore, it is
incorrect on the part of the respondent to contend that Regulation 31 48 was
introduced in the AIIMS Regulations only after the judgment of this Court in
Dr. L.P.Agarwal's case.
28. This question was specifically deliberated upon by Justice Kuldip Singh,
as His Lordship then was, in Dr.L.P.Agarwal's case and a question was
formulated on this aspect at page 530 of the said decision. After formulating
the aforesaid question, a submission on behalf of the respondent was also
considered by this Court in the aforesaid decision at paragraph 13 page 532 of
the said decision which is as follows:- "The respondent argued before the
High Court that the appellant was retired by the AIIMS under Regulation 30(3)
of the Regulations in public interest after he attained the age of 55 years.
It was further contended that fundamental Rule 56(j) was also applicable to
the AIIMS employees by virtue of Regulation 35 of the Regulations. It was
argued that even if Regulation 30(3) was not attracted the Institute had the
power to prematurely retire the appellant, in public interest, under
fundamental Rule 56(j) applicable to the Central 49 Government employees. It
was contended that despite the fact that the appellant was on a tenure post
there was no bar to prematurely retire him by invoking either Regulation 30(3)
or Fundamental Rule 56(j).
29. After formulating the question and after considering the submission made
on behalf of the parties, this Court in that decision at para 16 of page 531
concluded in the following manner:- "We have given our thoughtful
consideration to the reasoning and the conclusions reached by the High Court.
We are not inclined to agree with the same. Under the Recruitment Rules the
post of Director of the AIIMS is a tenure post. The said rules further provide
the method of direct recruitment for filling the post.
These service-conditions make the post of Director a tenure post and as such
the question of superannuating or prematurely retiring the incumbent of the
said post does not arise. The age of 62 years provided under Proviso to
Regulation 30(2) of the Regulations only shows that no employee of the AIIMS
can be given extension beyond that age. This has obviously been done for
maintaining efficiency in the Institute-Services. We do not agree that simply
because the appointment order of the appellant mentions that 50 "he is
appointed for a period of five years or till he attains the age of 62
years", the appointment ceases to be to a tenure-post. Even an outsider
(not an existing employee of the AIIMS) can be selected and appointed to the
post of Director. Can such person be retired prematurely curtailing his tenure
of five years? Obviously not. The appointment of the appellant was on a Five
Years Tenure but it could be curtailed in the event of his attaining the age of
62 years before completing the said tenure. The High Court failed to appreciate
the simple alphabet of the service jurisprudence. The High Court's reasoning is
against the clear and unambiguous language of the Recruitment Rules. The said
rules provide "Tenure for five years inclusive of one year probation"
and the post is to be filled "by direct recruitment". Tenure means a
term during which an office is held. It is a condition of holding the office.
Once a person is appointed to a tenure post, his appointment to the said
office begins when he joins and it comes to an end on the completion of the
tenure unless curtailed on justifiable grounds. Such a person does not
superannuate, he only goes out of the office on completion of his tenure. The
question of prematurely retiring him does not arise. The appointment order gave
a clear tenure to the appellant. The High Court fell into error in reading
"the concept of superannuation" in the said order.
Concept of superannuation which is 51 well understood in the service
jurisprudence is alien to tenure appointments which have a fixed life span. The
appellant could not therefore have been prematurely retired and that too
without being put on any notice whatsoever. Under what circumstances can an
appointment for a tenure be cut short is not a matter which requires our
immediate consideration in this case because the order impugned before the High
Court concerned itself only with premature retirement and the High Court also
dealt with that aspect of the matter only. This court's judgment in Dr.
Bool Chand v. The Chancellor Kurukshetra University relied upon by the High
Court is not on the point involved in this case. In that case the tenure of Dr.
Bool Chand was curtailed as he was found unfit to continue as Vice-Chancellor
having regard to his antecedents which were not disclosed by him at the time of
his appointment as Vice-Chancellor.
Similarly the judgment in Dr. D.C.
Saxena v. State of Haryana has no relevance to the facts of this case".
30. From the aforesaid discussion, the principle of law stipulated by this
Court that curtailment of the term of five years can only be made for
justifiable reasons and compliance with principles of natural justice for 52
premature termination of the term of a Director of AIIMS - squarely applied
also to the case of the writ petitioner as well and will also apply to any
future Director of AIIMS. Thus there was never any permissibility for any
artificial and impermissible classification between the writ petitioner on the one
hand and any future Director of AIIMS on the other when it relates to the
premature termination of the term of office of the Director. Such an
impermissible over classification through a one man legislation clearly falls
foul of Article 14 of the Constitution being an apparent case of "naked
discrimination" in our democratic civilized society governed by Rule of
Law and renders the impugned proviso as void, ab initio and unconstitutional.
31. Such being our discussion and conclusion, on the constitutionality of
the proviso to Section 11A, we must, therefore, come to this conclusion without
any hesitation in mind, that 53 the instant case is squarely covered by the
principles of law laid down by this Court in the various pronouncements as
noted herein above including in the case of D.S.Reddy vs.
Chancellor, Osmania University and Ors.
[1967 (2) SCR 214). In the case of D.S.Reddy (supra), the facts of that case
are somewhat similar to that of the writ petitioner. In that decision,
D.S.Reddy was already a Vice- Chancellor for the past seven years and had not
challenged the fixation of term from five years to three years. He was
aggrieved by the second amendment in the University Act whereby Section 13A was
introduced to make the provision of Section 12(2) providing for inquiry by an
Hon.
Judge of High Court/Supreme Court and hearing before premature termination
of the term of the Vice-Chancellor inapplicable to the incumbent to the office
of the Vice-Chancellor on the commencement of the 2nd Amendment. The core
contention of D.S.Reddy was that this amendment was only for his removal and
therefore was a 54 case of "naked discrimination" as it also deprived
the protection of Section 12(2) to him when Section 12(2) was applicable to all
other Vice-Chancellors and there being no distinction in this regard between
the Vice-Chancellor in office and the Vice-Chancellors to be appointed. In that
situation, the plea of the respondent-Government was that the provision similar
to Section 13A was also incorporated in two other enactments relating to Andhra
University and Shri Venkateswara and was, therefore, not a one man legislation.
It was further contended by the State that it was always open and permissible
to the State Legislature to treat the Vice-Chancellor in office as a class in
itself and make provisions in that regard. All the contentions on behalf of the
State Government were rejected by the Constitution Bench judgment of this Court
in the case of D.S.Reddy (supra) and it was held that it was a clear case of "naked
discrimination" for removal of one man and by 55 depriving him of the
protection under Section 12(2) of the Act without there being any rationality
of creating a classification between the Vice-Chancellor in office and the
Vice-Chancellor to be appointed in future. It was further held in the case of
D.S.Reddy that such a classification was not founded on an intelligible
differentia and was held to be violative of Article 14 of the Constitution of
India. Accordingly, the provision of Section 13A was held to be ultra vires and
unconstitutional and hit by Article 14 of the Constitution. Similarly in the
present case, the impugned proviso to Section 11(1A) itself states that it is
carrying out premature termination of the tenure of the writ petitioner. It is
also admitted that such a premature termination is without following the
safeguards of justifiable reasons and notice.
It is thus a case similar to the case of D.S.Reddy and other decisions cited
above that the impugned legislation is hit by Article 14 56 as it creates an
unreasonable classification between the writ petitioner and the future
Directors and deprives the writ petitioner of the principles of natural justice
without there being any intelligible differentia.
32. In view of our discussion made hereinabove and for the reasons
aforesaid, we are of the view that this writ petition is covered by the
decisions of this Court in the case of D.S.Reddy and L.P.Agarwal and the
impugned proviso to Section 11A of the AIIMS Act is, therefore, hit by Article 14
of the Constitution. Accordingly, we hold that the proviso is ultra vires and
unconstitutional and accordingly it is struck down. The writ petition under
Article 32 of the Constitution is allowed. In view of our order passed in the
writ petition, the writ petitioner shall serve the nation for some more period,
i.e., upto 2nd of July, 2008. We direct the AIIMS Authorities to restore the
writ petitioner in 57 his office as Director of AIIMS till his period comes to
an end on 2nd of July, 2008. The writ petitioner is also entitled to his pay
and other emoluments as he was getting before premature termination of his
office from the date of his order of termination. Considering the facts and
circumstances of the present case, there will be no order as to costs.
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