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Arjun Singh Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petition No. 1966 of 1975
Judge
Reported inAIR1975Raj217; 1975()WLN386
ActsConstitution of India - Articles 14, 15, 16 and 359(1)
AppellantArjun Singh
RespondentThe State of Rajasthan and ors.
Appellant Advocate M.R. Calla, Adv.
Respondent Advocate A.K. Mathur, Addl. Govt. Adv.; M. Mridul, Adv.
Cases ReferredIn Dryden v. Putney Overseers
Excerpt:
constitution of india - articles 14, 16 & 359--presidential proclamation issued on 26-6-1975 suspends rights under articles 19, 21 & 22--rights relating to appointments specifically mentioned under aricle 16 can be enforced by the court.;an article 16 has not been expressly specified in the presidential order dated 27th june, 1976, the enforcement of the rights conferred by that article cannot beheld to be suspended. however, it roust be made clear that only these rights which come strictly within the four corners of article 16 could be canvassed during the period of the emergency, because the general right of equality before law guaranteed by article 14 no doubt remains suspended. article 16 makes specific provision in respect of matters relating to employment or appointment to.....orderd.p. gupta, j.1. the question which arises in this writ petition at the outset is as to whether the grounds that the petitioner desires to urge could be allowed to be raised in view of the order issued by the president of india suspending the rights of all persons to move any court for the enforcement of the rights conferred by article 14 of the constitution of india, after the proclamation of emergency.2. learned counsel tor the petitioner. mr. calla, urged that although the rights conferred by article 14 cannot be enforced by this court in view of the presidential declaration, yet the rights conferred by article 16 of the constitution in matters relating to employment and appointment to any office under the state could still be invoked, as the order issued by the president does not.....
Judgment:
ORDER

D.P. Gupta, J.

1. The question which arises in this writ petition at the outset is as to whether the grounds that the petitioner desires to urge could be allowed to be raised in view of the order issued by the President of India suspending the rights of all persons to move any Court for the enforcement of the rights conferred by Article 14 of the Constitution of India, after the proclamation of emergency.

2. Learned counsel tor the petitioner. Mr. Calla, urged that although the rights conferred by Article 14 cannot be enforced by this Court in view of the Presidential declaration, yet the rights conferred by Article 16 of the Constitution in matters relating to employment and appointment to any office under the State could still be invoked, as the order issued by the President does not affect the provisions of Article 16 of the Constitution,

3. Mr. Mridul, appearing as an in-tervenor supported the aforesaid contention of the learned counsel for the petitioner and argued that the provisions of Article 16 could still be pressed into service in spite of the suspension of the rights conferred by Article 14. On the other hand, Mr. Mathur, learned Additional Government Advocate, submitted that Article 16 is an incidence or species of the same right of equality of opportunity which has been conferred by Article 14 of the Constitution and in view of the fact that the rights conferred under Article 14 have been suspended during the period of the emergency, the provisions of Article 16 also could not be invoked by the petitioner,

4. In order to appreciate the rival contentions in their proper perspective, it would be proper to set out relevant provisions and orders. Article 13 of the Constitution of India enacts that all laws in force in the territory of India immediately before the commencement of the Constitution would be void in so far as they are inconsistent with the provisions of Part III of the Constitution, relating to the fundamental rights. It has further been provided that the State shall not make any law so as to take away or abridge the rights conferred by Part III of the Constitution and any law so made in contravention of the provisions of the said Part would be void to the extent of such contravention.

5. Article 14 and the related Articles 15 and 16 of the Constitution read as under :--

'14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them,

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to---

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out on State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled! Tribes.

16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State,

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

6. Article 352 of the Constitution authorises the President of India, in case he is satisfied that a grave emergency exists whereby the security of the country is threatened, either by external aggression or by internal disturbance, he may make a declaration to that effect, by a proclamation.

7. Article 358 provides that while a proclamation of emergency is ia operation, the State would be empowered to make laws or to take any executive action in derogation of the provisions of Article 19 of the Constitution and the law so made or the action so taken would be valid, but any law so made in contravention of the provisions of Article 19 during the period of emergency, shall cease to nave effect as soon as such proclamation ceases to be operative.

8. Article 359(1) provides as under :--

'359. (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be men-tioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order,'

9. In exercise of the powers conferred upon the President of India under Clause (1) of Article 352 of the Constitution, a Proclamation of Emergency was issued on December 3, 1971 declaring that a grave emergency existed as the security of the country was threatened, due to external aggression. On June 25, 1975 the President of India further Issued the following Proclamation of Emergency :--

'Proclamation of Emergency'

'In exercise of the powers conferred by Clause (1) of Article 352 of the Constitution, I, Fakhruddin Ah' Ahmed, President of India, by this Proclamation declare that a grave em-mergency exists whereby the security of India is threatened by internal disturbance.NEW DELHI, F. A. AHMED,The 25th June, 1975. President.'

10. Thereafter on June 27, 1975 the President issued an order under Article 359(1) of the Constitution, which reads as under:--

'G. S. R. 361(E).-- In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any Court for the enforcement of the abovemen-tioned rights shall remain suspended for the period during which the Proclamation of Emergency made under Clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force.

This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.

This order shall bo in addition to and not in derogation of any Order made before the date of this Order under Clause (1) of Article 359 of. the Constitution.

No. II/16013/l/75-S&P;(D)II

S. L. KHUKANA, Secy.'

11. In view of the Presidential order issued under Article 359(1) of the nstitution there can be no doubt that the right to move any court, including this court, for enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution, has been suspended during the period the two Proclamations of Emergency issued by the President under Article 352(1) of the Constitution subsist. There is also no doubt that all proceedings pending in this Court or any other Court for the enforcement of the rights conferred by Articles 14, 21 and 22 snail also remain suspended during the aforesaid period. However, the question that requires consideration is as to whether the rights conferred by Article 16 of the Constitution cannot also be enforced and are impliedly suspended because of the Presidential order dated June 27? 1975, While on the one hand it is canvassed that Article 16 has not been specifically mentioned in the Presidential order issued under Article :359(1) of the Constitution, on the other hand it is contended that Article 16 is an incident of the application of the concept of equality enshrined in Article 14 and that the rights conferred by Article 16 are as a matter of fact part and parcel of the provisions of Article 14 and that as Article .14 has been mentioned in the Presidential order issued under Article 359(1) it was not at all necessary to specifically mention Article 16 as well in the said order.

12. The concept of equality before the law is of universal application and a fundamental part of the Constitution of every civilized country. It is no doubt a negative concept as it prohibits the State from discriminating between persons similarly situated and it is very well understood to declare that like persons should be treated alike, without discrimination. Although the word 'discrimination' does not occur in Article 14, however it prohibits discriminatory treatment amongst equals. Patanjali Sastri C. J., speaking for the Supreme Court, in Kathi Raning v. State of Saurashtra AIR 1952 SC 123 observed :--

'All legislative differentiation is not necessarily discriminatory. In fact, the word 'discrimination' does not occur in Article 14. The expression 'discriminate against' is used in Article 15(1) and Article 16(2), and it means, according to the Oxford Dictionary, 'to make an adverse distinction with regard to; to distinguish unfavourably from others'. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Article 14 is different, Equal protection claims under that article are examined with the presumption thai the State action is reasonable and justified.'

13. In Gazula Dasaiatha Rama Rao v. State of Andhra Pradesh AIR 1961 SC 564 while discussing the relative scope of Articles 14, 15 and 16, S. K. Das J. observed :--

'Article 14 enshrines the fundamental right of equality before the law or the equal protection of the laws within the territory of India. It is available to all, irrespective of whether the person claiming it is a citizen or not. Article 15 prohibits discrimination on some special grounds -- religion, race, caste, sex, place of birth or any of them. It is available to citizens only, but is not restricted to any employment or office under the State. Article 16 Clause (1), guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State; and Clause (2) prohibits discrimination on certain grounds in respect of any such employment or appointment. It would thus appear that, Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters relating to employment or appointment to any office under the State.'

In Rama Rao's case it was further observed :--

'We have said earlier that Article 15 is, in one respect, more general than Article 16 because its operation is not restricted to public employment; it operates in the entire field of State discrimination. But in another sense, with regard to the grounds of discrimination, it is perhaps less wide than Article 16, because it does not include 'descent' amongst the grounds of discrimination. The argument before us is that the provision impugned in this case must be tested in the light of Article 15 and not Article 16. It is submitted by the learned Advocate Genera) that the larger variety of grounds mentioned in Article 16 should lead us to the conclusion that Article 16 does not apply to offices where the law recognises a right based on descent. We consider that such an argument assumes as correct the very point which is disputed. If we assume that Article 16 does not apply, then the question itself is decided. But why should we make that assumption? If the office in question is an office under the State, then Article 16 in terms applies; therefore, the question is whether the office of Village Munsif is an office under the State. We have held that it is. It is perhaps necessary to point out here that Clause (5) of Article 16 shows that the Article does not bear the restricted meaning which the learned Advocate-General has canvassed for; because an incumbent of an office in connection with the affairs of any religious or denominational institution need not necessarily be a member of the Civil Service.'

14. In General Manager, Southern Railway v. Rangachari AIR 1962 SC 36 Gajendragadkar J., as he then was, again considered the relative scope of Articles 14 and 16 and observed :--

'In this connection it may be relevant to remember that Article 16(1) and (2) really give effect to the equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment.'

15. In the State of Mysore v. P. Narasingha Rao 1968 Lab 1C 360 = AIR 1968 SC 349 Ramaswami J., speaking for the Supreme Court, observed :--

'Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion.'

While the observations of Gajendragadkar J. in Rangachari's case AIR 1962 SC 36 were quoted with approval, it was further observed in Narasingha Rao's case (AIR 1968 SG 349) :--

'As we have already stated, Articles 14 and 16 form part of the same constitutional code of guarantees 'and supplement each other. In other words, Article 16 is only an instance of the application of the general rule of equality laid down in Article 14 and it should be construed as such. Hence, there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured; Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection.'

16. This it is well established by the aforesaid decisions of the Supreme Court that Article 14 enshrines the general concept of equality and Article 16 is only an instance of the application of that concept in respect of employment or appointment to public services. Thus Article 16 really gives effect to the doctrine of equality in the matter of employment or appointment to an office under the State and to the prohibition of discrimination guaranteed by Article 14 in such matters. Their Lordships of the Supreme Court have clearly held in the above mentioned cases that the provisions of Articles 14, 15 and 16 form part of the same constitutional code of guarantees and supplement each other and that Article 16 is only an incidence of the application of the general rule of equality laid down under Article 14 to matters of public employment.

17. The Supreme Court had also occasion to consider the legal effect of the proclamation of emergency by the President under Article 352 of the Constitution, and of the Presidential orders issued in exercise of the powers conferred by Clause (1) of Article 359 of the Constitution. On October 26, 1962 the President declared that grave emergency existed as the security of the country was threatened at that time by external aggression and the President issued two orders under Article 359 (1). The first order dated November 3, 1962 suspended the rights of citizens to move any Court for the enforcement of the rights conferred by Articles 21 and 22 of the Constitution during the period the proclamation of emergency remained in force. The second Presidential Order was issued on November 11, 1962 which amended the earlier one by adding that the right to move any Court for the enforcement of the rights conferred under Article 14 would also remain suspended till the emergency lasted.

18. In Makhan Singh Tarsikka v. The State of Punjab AIR 1964 SC 381 the Supreme Court made the following observations on the question of interpretation of Article 359 of the Constitution :--

'Article 359, on the other hand, does not purport expressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right to move any Court for the enforcement of such of the rights in Part III as may be mentioned in the order and all proceedings in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which proclamation is in force or for such shorter period as may be specified in the order. What the Presidential Order purports to do by virtue of the power conferred on the President by Article 359 (1) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights.'

Dealing with the effect of the Presidential Order issued under Article 359 (1) the Supreme Court observed in the aforesaid case AIR 1964 SC 381 :--

'Since the object of Article 359 (1) is to suspend the rights of the citizens to move any court, the consequence of the Presidential Order may be that any proceeding which may be pending at the date of the Order remains suspended during the time that the Order is in operation and may be revived when the said Order ceases to be operative; and fresh proceedings cannot be taken by a citizen after the Order has been issued, because the Order takes away the right to move any court and during the operation of the Order, the said right cannot be exercised by instituting a fresh proceeding contrary to the Order. If a fresh proceeding falling within the mischief of Article 359 (1) and the Presidential Order issued under it is instituted after the order has been issued, it will have to be dismissed as being incompetent. In other words, Article 359 (1) and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant's fundamental rights specified in the Presidential Order have been contravened and the second condition relates to the period during which this ban is to operate.'

In Makhan Singh's case (AIR 1964 SC 381) their Lordships of the Supremo Court held that 'right to move any Court' in Article 359 (1) refers to right to move any court of competent jurisdiction including the right to move the Supreme Court under Article 32(1) and the High Court under Article 226(1) of the Constitution as well as under Section 491 of the Criminal Procedure Code,

19. Gajendragadkar J. speaking for the majority of the Court in Makhan Singh's (AIR 1964 SC 381) further held :--

'What is the nature of the proceedings which are barred by the Presidential Order issued under Article 359 (1)? They are proceedings taken by citizens tor the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If a citizen moves any court to obtain a relief on the ground that his fundamental rights specified in the Order have been contraven-ed, that proceeding is barred. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not, what has to be examined is not so much the form which the proceeding has taken, or the words in which the relief is claimed as the substance of the matter and consider whether before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened. If any relief cannot be granted to the citizen without determining the question of the alleged inirringement of the said specified fundamental rights, that is a proceeding which falls under Article 359 (1) and would, therefore, be hit by the Presidential Order issued under the said article. The sweep of Article 359 (1) and the Presidential Order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance, seeking to enforce any of the said specified fundamental rights. We have already seen that the operation of Article 359 (1) and the Presidential Order issued under it is limited to the period during which the proclamation of emergency is in force, or for such shorter period as may be specified in the Order. That being so, we feel no difficulty in holding that proceedings taken by a citizen either under Article 32(1) or under Article 226(1) are hit by Article 359 (1) and the Presidential Order issued under it..... If the Presidential Order precludes a citizen from moving the Court for the enforcement of the specified fundamental rights, it would not be open to the citizen to urge that the Act is void for the reason that it offends against the said fundamental rights. It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued, and so, during the period of its operation, the challenge to the validity of the Act cannot be entertained.'

20. In Durgadas Shirali v. Union of India AIR 1966 SC 1078 the Supreme Court reiterated its observations in Makhan Singh's case AIR 1964 SC 381 regarding the legal effect of the Proclamation of Emergency and the Presidential orders issued under Article 359 (1) of the Constitution and it was further observed :--

'.....the sweep of Article 359 (1) and the Presidential Order issued under it is wide enough to include all claims made by citizens in any Court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce fundamental rights under Articles 14, 19, 21 and 22. It was pointed out that during the pendency of the Presidential Order the validity of the Ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravenes Articles 14, 21 and 22'.

21. In Jaichand Lal Sethia v. The State of West Bengal AIR 1967 SG 483, after referring to the aforesaid two cases, it was observed by the Supreme Court :--

'If the appellant seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Articles 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to the appellant to challenge the Order on the ground of contravention of Article 19, because as soon as a Proclamation of Emergency is issued by the President under Article 358 the provisions of Article 19 are automatically suspended. But the appellant can challenge the validity of the order on a ground other than those covered by Article 358, or the Presidential Order issued under Article 359 (1). Such a challenge is outside the purview of the Presidential Order.'

22. In Mohd. Yaqub v. State of Jammu and Kashmir AIR 1968 SC 765 = (1968 Lab IC 872) Wanchoo C. J. observed :--

'It will be seen from the terms of Article 359 that it gives categorical powers to the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundmental rights conferred by Part III. It is for the President to decide the enforcement of which of the fundamental rights should be suspended during the operation of the Proclamation of Emergency. There is nothing in Article 359 which in any way limits the power of the President to suspend the enforcement of any of the fundamental rights conferred by Part III.....Article 359 clearly shows that any fundamental right in Part III can be suspended during an Emergency and we cannot limit Article 359 in the face of the unambiguous and express words thereof and say that only the enforcement of fundamental rights under Articles 22 and 31(2) can be suspended thereunder. It may be that prima facie these two fundamental rights appear to have a clearer nexus with security of India; but it does not follow that other fundamental rights may not in an emergency have such a nexus. In any case Article 359 itself proceeds on the basis that the suspension of the enforcement of all or any of the fundamental rights is for the sake of security of India and so gives the power to the President to suspend such enforcement if he considers it necessary for that purpose.'

23. The question as to whether on account of the promulgation of the Presidential Order suspending the rights conferred by Article 14 of the Constitution would also im-pliedly take away the right of any person to move any Court for the enforcement of the rights conferred by Article 16 as well, was considered by a Full Bench of the Assam High Court in Shyam Behari Tewari v. Union of India AIR 1963 Assam 94 (FB), In that case Mehrotra, C. J., with whom S. K. Dutta J. agreed, expressed the view that any attempt to enforce a right of equality under Article 16 of the Constitution would in effect be merely an. attempt to enforce the right under Article 14. He observed :--

'Article 16 embodies the principle of equality before law or equal opportunity contained in Article 14 in the- sphere of employment. It is a special Article dealing with employment, but a person who seeks his remedy under Article 16 in the matter of employment is in effect enforcing the fundamental right enshrined under Article 14 of the Constitution. In effect, he is enforcing the rights conferred on him under Article 14 in the sphere of employment, and in view of his statement that he does hot challenge the validity of the rule on the round of violation of Article 14, he cannot e allowed to challenge the validity of the rule on the ground that it infringes Article 16. The fundamental right guaranteed under Article 14 is a general right of which the right conferred under Article 16 is a species and in our opinion, the petitioners in view of this statement are not entitled to contend that the Rule violates Article 16 of the Constitution.....The claim of the petitioners that Rule 149 violates the provisions of Article 16 of the Constitution is in effect an attempt to enforce the fundamental right of equality before law or equal protection of law embodied in Article 14 in the sphere of employment. Moreover in view of our decision that Rule 149 is not attracted to the cases where the services of a permanent employee are terminated, as such termination amounts to punishment, it is not necessary to test the validity of Rule 149 on the ground that it infringes Articles 14 and 16 of the Constitution.'

24. However, the other learned Judge constituting the Full Bench, Nayudu J. disagreed with the aforesaid proposition and observed :--

'The question, therefore, is required to be examined whether exception can be taken to the validity of Rule 149 (3) with reference to Article 16 of the Constitution.....This Article is a special Article dealing with the fundamental right of equality of opportunity in matters of public employment. As pointed out by the Supreme Court in the case reported in AIR 1962 SC 36, Articles 16(1) and 16(2) supplement Articles 14 and 15(1). The fact that the petitioners did not rely on Article 14, in my opinion, would not preclude their placing reliance on Article 16 and seek the aid of the Court to enforce their fundamental rights guaranteed under that Article. This view of mine receives support from the observations of the learned Judges of the Supreme Court in the abovequoted decision, reported in AIR 1962 SC 36; wherein they observed that Articles 14, 15(1) and 16(1) and (2) are supplementary to each other, which implies that by themselves they are different from each other and are not identical. Hence I am clearly of the opinion that the objection to Rule 149 could be examined in the light of Article 16(1) and (2) of the Constitution. But as already stated, in the view I have taken that Rule 149 (3) in so far as it purported to apply to permanent Government servant is unconstitutional having regard to Article 311, it is, in my opinion, unnecessary to examine the matter any further in regard to the constitutional validity of the Rule with reference to Article 16.'

25. Thus a majority of the learned Judges constituting the Full Bench of the Assam High Court held that during the period the Presidential Proclamation issued under Article 359 (1) of the Constitution remains in force the right under Article 16 cannot be enforced in any court as it was a species of the right guaranteed under Article 14 and would virtually amount to the enforcement of the rights conferred by Article 14 itself. However, it may be noted that the observations made by the learned Judges of the Assam High Court in Shyam Behari's case AIR 1963 Assam 94 (FB) were as a matter of fact merely in the nature of obiter dicta, because both Mehrotra C. J. as well as Nayudu J. held that as the termination of the services of the petitioner in that case was violative of the provisions of Article 311 of the Constitution, it was not necessary in that case to consider the question as to whether the provisions of Rule 149 of the Railway Establishment Code (Vol. I) were invalid because of the alleged infringement of the rights guaranteed under Article 14 or 16 of the Constitution.

26; Ordinarily, if the language employed in a statute or a statutory instrument is plain, then the ordinary grammatical meaning should be assigned to the words used therein. In cases where two provisions, one general and another applicable to a special class, are contained in the same statute or in different statutes dealing with the same subject-matter, the cardinal rule of construction laid down by their Lordships of the Supreme Court, in Bengal Immunity Co. Ltd. v. State of Bihar AIR 1955 SC 661 is :--

'When there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters comprised therein.'

27. Jagadish Swarup in his treatise on 'Legislation and Interpretation' (Second Edition) at page 306, stated the law on the subject thus :--

'A particular enactment is not repealed by a general enactment in the same statute. When there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of matters comprised therein. Where there are two provisions in an Act, one of which is specific or of a special character and the other of a general character the specific or special provision qualifies the general one and ought to be applied in preference to and unaffected by the general one.....when the specific provision in a statute is applicable to a particular set of facts, any other general provision in respect of the same matter in the same statute cannot be held to be applicable to those facts. The matter must be held to be governed by the specific provision. In other words, where a special provision deals with a particular thing or class of things, a more general provision even though its terms would cover the particular thing or class of things, is excluded from application thereto by reason of the particular provision.'

28. The aforesaid statement of law was quoted with approval by Beg J, while delivering the majority judgment of the Full Bench of the Allahabad High Court in Aidal Singh v. Karan Singb AIR 1957 All 414 (FB). It was held in that case that Article 227 of the Constitution was more general in character and was wider in application .and that in cases where a remedy could be given under Articles 226 and 227, the Court should prefer to apply Article 226.

29. In V. Sundaram Iyer v. Deputy Registrar of Co-operative Societies, Ramana-thapuram AIR 1957 Mad 634 Rajagopala Ay-yangar J., while dealing with the provisions of Sections 49 and 51 of the Madras Cooperative Societies Act, held that Section 51 of the aforesaid Act was a rule of general application which provided for variety of matters and was almost exhaustive. Out of the larger group, some types of disputes which arose in exceptional circumstances were segregated as indicated in the opening words of Section 49 and were subjected to special treatment. It was held in the aforesaid case :--

'This, therefore, is a special rule applicable to particular persons and in particular circumstances. The rule of construction, therefore, that where there are two sets of provisions, the one general and the other special, the latter alone would apply to cases falling within it, notwithstanding the generality of the other provision, applies to the construction of these two provisions, and it has to be held that where there is overlapping of the terms of Ss. 51 (1) and 49 (1), the latter alone would be applicable to cases covered by it.'

30. In Fagu Ram Mahadeo Ram v. Pannalal AIR 1962 Pat 272. Untwalia J. of the Patna High Court, as he then was, was pleased to observe :--

'It is one of the accepted canons of interpretation of statute that, if in the same field there is a special provision, which is applicable as also there is a general provision, the latter would give way to the former.'

31. Following the rule of construction laid down by their Lordships of the Supreme Court in Bengal Immunity Co. case AIR 1955 SC 661, it was held by the Bombay High Court in State v. Kapurchand Adab-han Oswal AIR 1958 Bom 311 that the provisions of Sub-section (1) of Section 103 of the Bombay Prohibition Act are general in terms as the expression 'any of the provisions of this Act' was used therein which prima facie included all the provisions of the Act including the provisions of Section 67 or Section 67-1A, yet the cases coming within the four corners of Sections 67 and 67-1A would be regulated by the special provision contained in sub-section (2) of Section 103 and not by the general provision.

32. In P. V. Naik v. State of Maha-rashtra AIR 1967 Bom 482 Desai J., with whom Chandrachud J. concurred, observed as under :--

'It is well established that when specific provision in a statute is applicable to a particular set of facts, any other general provisions in respect of the same matter in the same statute cannot be held to be applicable to those facts. The matter must be held to be governed by the specific provision,'

33. Butler I. while delivering the judgment in D. Ginshberg and Sons v. Joseph Popldn (1931) 76 Law Ed 704 = 285 US 204 at p. 208 remarked :--

'General language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment.'

34. In Dryden v. Putney Overseers (1876) 1 Ex, D. 223 Quain J. remarked at page 232 :--

'It may be laid down as a rule for the construction of statutes that where a special provision and a general provision are inserted which coyer the same subject-matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision.'

35. Applying the aforesaid rule of interpretation, it is no doubt correct that Article 14 makes a general provision in respect of equality before law, and Article 16 is a species of the same general right made applicable only to matters relating to employment or appointment to any public office. It cannot be denied that Article 16(1) and (2) merely provides for the application of the concept of equality enshrined in Article 14 of the Constitution. It is no doubt an incidence of the general right of equality and even a instance thereof confined to matters relating to public employment. It may also be borne in mind that Articles 14, 15 and 16 form part of the same code of guarantees relating to equality of opportunity and supplement each other. But nevertheless Articles 14 and 16 are separate Articles specified in the Constitution. As Article 359 (1) provi-des that the enforcement of such of the rights conferred by Part III of the Constitu-tion would not be permissible as may be specified in the order, it cannot be held that the enforcement of the fundamental rights guaranteed under some other Articles of Part III of the Constitution would be impliedly suspended during the emergency, without their being expressly mentioned in the Presidential order issued under Article 359 (1) of the Constitution. The Constitution envisages the suspension of enforcement of the rights conferred by those Articles of Part III of the Constitution which are specifically mentioned therein and it would not be proper to read in the Presidential order that which is not expressly contained therein. The Presidential order specifically refers to the rights conferred by Articles 14, 21 and 22 of the Constitution and the proceedings to enforce such rights would no doubt remain suspended so long as the emergency subsists. But the enforcement of the rights conferred upon by other Articles included in Part III cannot be held to be suspended merely because the general right would remain suspended during the period of the emergency. Even if two interpretations were possible, then also such an interpretation should be given which would advance the preservation of such of the fundamental rights which were not expressly taken away on account of the declaration of Emergency and the Presidential order issued in respect thereof.

36. Learned Additional Government Advocate placed considerable reliance upon the observations of their Lordships of the Supreme Court in Makhan Singh's case ATR 1964 SC 381 and submitted that even the right to move an application under Section 491 Criminal P. C. was held to have been impliedly taken away on account of the Presidential Order issued under Article 359 (1). However, it must be observed that in Makhan Singh's case AIR 1964 SC 381 their Lordships of the Supreme Court have clearly held that the remedy of approaching the Court under Section 491 Criminal P. C. was also suspended, besides the power to move the Court under Article 32 (I) or 226(1) of the Constitution, because in that case the question that the provisions of Defence of India Rules were violative of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution was canvassed, but then the enforcement of the rights conferred by Articles 21 and 22 was barred on account of the Presidential order issued under Article 359 (1) of the Constitution.

37. In case the Court is called upon to determine the question of alleged infringement of fundamental rights specified in the Presidetial order and any relief cannot be granted to a citizen without the determination of the aforesaid question, then the proceedings would clearly fall within, the ambit of Article 359 (1) of the Constitution and such proceedings cannot be entertained after the promulgation of the Presidential order issued under the aforesaid Article until the Emergency lasts. According to their Lordships of the Supreme Court, the sweep of Article 359 (1) and the Presidental order issued thereunder includes all claims made by citizens in any Court of competent jurisdiction which claim cannot be effectually adjudicated upon without an examination of the question relating to the infringement of the fundamental rights specified in the Presidential order, However, the proceedings to seek any relief would be barred only if it is based in substance upon the fundamental rights specified in the Presidential order issued under Article 359 (1). If the fundamental right which is sought to be enforced is not specified in the Presidential order then naturally such proceedings cannot be deemed to be barred. The Presidential order issued under Article 359 (1) cannot come into operation if any ground other than the contravention of Articles 14, 21 and 22 is canvassed, as the validity of an order, rule or law could be challenged on a ground other than those covered by Article 358 or specified in the Presidential order issued under Article 359 (1). The President is empowered under Article 359 (1) to suspend the enforcement of all or any of the fundamental rights conferred by Part III of the Constitution and in case he chose to suspend only the fundamental rights guaranteed under Articles 14, 21 and 22 by unambiguous and express words then it cannot be held that a citizen cannot be granted relief by this Court in respect of rights strictly falling within the provisions of Article 16. The provisions of Article 359 (1) do not impose any limit on the powers of the President to suspend the enforcement of any of the fundamental rights guaranteed under Part III of the Constitution apd it is for the President to decide, while issuing a notification under Article 359(1), as to the enforcement of which of the aforesaid right he considers necessary to suspend during the period the emergency subsists. The words 'the rights.....as may be mentioned' and 'rights so mentioned' employed in Article 359(1) are absolutely clear and firmly indicate that the enforcement of only those rights conferred by Part III would be suspended as are specifically mentioned in the order issued by the President under Article 359(1). Thus the enforcement of only those rights which are expressly specified in the Presidential order issued under Article 359(1) would be suspended during the period the two proclamations of emergency would remain operative. In this view of the matter, with the utmost respect, I am unable to agree with the view which prevailed with the majority of the Judges of the Assam High Court in Shyam Behari's case AIR 1963 Assam 94 (FB).

38. As Article 16 has not been expressly specified in the Presidential order dated June 27, 1975, the enforcement of the rights conferred by that Article cannot be held to be suspended. However, it must be made clear that only those rights which come strictly within the four corners of Article 16 could be canvassed during the period of the emergency, because the general right of equality before law guaranteed by Article 14 no doubt remains suspended. Article 16 makes specific provision in respect of matters relating to employment or appointment to any office under the State, it couid be invoked only in those cases which would fall strictly within its ambit and such cases would not be governed by the general provisions of Article 14 of the Constitution.

39. In view of the aforesaid discussion, it is, therefore, held that the Presidential order issued on June 27, 1975 does not have the effect of barring proceedings in respect of or suspending the enforcement of the rights conferred by Article 16 and matters in which relief is sought strictly on the basis of rights conferred by Article 16 could be entertained and continued to be heard by this Court unless an order is issued by the President of India under Article 359(1) of the Constitution specifically in respect of the rights conferred by Article 16 of the Constitution.


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