P.Venugopal Vs Union of India

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.656 OF 2007

P.VENUGOPAL ...Petitioner

VERSUS

UNION OF INDIA ...Respondent

J U D G M E N T

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.

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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

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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".

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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

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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......"

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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:

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(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.

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(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

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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

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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."

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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

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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

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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

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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

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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

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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.

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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

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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

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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,

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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

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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

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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

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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

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(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

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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

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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

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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

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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

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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

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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

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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

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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

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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 -

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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"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

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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

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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

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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

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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

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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

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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

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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.

................................................J. [TARUN CHATTERJEE]

New Delhi: ................................................J. May 8, 2008 [HARJIT SINGH BEDI]

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59

P.VENUGOPAL Vs UNION OF INDIA

P.VENUGOPAL Vs UNION OF INDIA