Supreme Court of India
P. VENUGOPALversusUNION OF INDIA
- Citation
- 2008 INSC 607
- Decided
- 8 May 2008
- Disposal
- Case Allowed
- Bench
- TARUN CHATTERJEE
Holding
The proviso to Section 11(1A) is ultra vires, unconstitutional, and struck down as a violation of Article 14.
Summary
Dr. P. Venugopal, then Director of AIIMS, challenged a proviso added by the All India Institute of Medical Sciences (Amendment) Act, 2007 which terminated his five‑year tenure prematurely and offered only three months' compensation. The Supreme Court examined whether the proviso, which applied only to the incumbent Director and not to future appointees, amounted to "single‑man legislation" and violated Article 14's guarantee of equality and the principles of natural justice. Relying on precedents such as D.S. Reddy and L.P. Agarwal, the Court held that the classification was arbitrary, lacked intelligible differentia, and was therefore unconstitutional. The proviso was declared ultra vires and struck down, the writ petition was allowed, and the Director was reinstated to serve until the original expiry of his term on 2 July 2008.
Issues considered
- The proviso to Section 11(1A) of the All India Institute of Medical Sciences (Amendment) Act, 2007, is constitutionally valid or violates Article 14.
- Whether the provision constitutes impermissible "single‑man legislation" and denies the principles of natural justice.
- Whether the amendment is ultra vires of the parent AIIMS Act.
Legislation cited
- All India Institute of Medical Sciences Act, 1956s. Section 10, s. Section 11, s. Section 4, s. Section 6
Subjects
Article 14EqualitySingle‑man legislationTenureAIIMSNatural justicePremature terminationService lawAdministrative law
Judgment
[2008] 8 S.C.R. 1
P. VENUGOPAL A
v.
UNION OF INDIA
(Writ Petition (C) No.656 of 2007)
MAY 8, 2008
B
[TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.]
.._
A/I India Institute of Medical Sciences (Amendment) Act,
2007 - Proviso to sub-section (1A) of Section 11 -
Constitutional validity of - Held, ultra vires unconstitutional, c
violative of Article 14 of the Constitution and void ab initio -
Hence struck down - Constitution of India, Article 14- Service
law - Administrative law, principles of Natural Justice.
Words & Phrases:
D
"Tenure" - Meaning of
In the writ petition filed before this Court, the
petitioner has challenged the constitutional validity of the
proviso to sub-section (1A) of Section 11 of the All India
Institute of Medical Sciences (Amendment) Act, 2007. E
Allowing the Writ Petition, the Court
HELD: 1. It is true that in establishments like AllMS,
there is an age of superannuation governing the length
+ of service of its officers and employees. Such age of F
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 G
extension of service after the attainment of the age of
~ 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
H
2 SUF'REME COURT REPORTS [2008] 8 S.C.R.
'fl.
A right or priviiegz. The employer has a discretion to grant or
not to grant such extension having regard to the interest
of the employer or the establishment. (Para 7] (8-E-G]
State Bank of Bikaner and Jaipur and Ors. vs. Jag Mohan
Lal AIR (1989) SC 75 - referred to.
B
2. There can be no dispute 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
c terms of the contract, and such terms and conditions of
service may be unilaterally altered by the Government.
[Para 8) (9-E,F]
Rosh an Lal Tandon vs. Union of India and Anr Al R 1967
SC 1889 - relied on.
D •
3.1 The term of 5 years for a Director of AllMS 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
E an existing employee of the AllMS) can be selected and
appointed to the post of Director. The appointment is for
a tenure to v·hich principle of superannuation d6les not
apply. "Tenure" means a term during which the office is
held. It is a condition of holding·the office. Once a person
...
F is appointed to a tenure post, his 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 ( :>mpletion of his tenure. [Pa: a
G 27] (28-E-H, 29-A]
~
3.2 In 1958 AllMS had framed its regulations under
Section 29 of the Act. Regulation 30-A was brought into
AllMS Regulation by an amendment dated 25th of July,
1981 notified in the Gazette on 1oth of October, 1981
H
P. VENUGOPAL v. UNION 3
OF INDIA
~ coming into force w.e.f. 1st of August, 1981. The provision A
of Regulation 30-A was very much in existence when this
court had decided the case of Dr.LP.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 AllMS Regulations and had been re-numbered as B
Regulation 31, when the AllMS 1958 Regulations had been
substituted by AllMS Regulations, 1999. Therefore, it is
incorrect on the part of the respondent to contend that
Regulation 31 was introduced in the AllMS Regulations
only after the judgment of this Court in Dr. L.P. Agarwal's C
case. [Para 27] [29-A-C]
Dr L.P Agarwal vs. Union of India and Ors. (1992) 3 SCC
526 - relied on.
Central Provinces and Berar Sales of Motor Spirit and
0
Lubricants Taxation Act, 1938; R.S. Joshi, Sales Tax Officer,
Gujalat and Ors. vs. Ajit Mills Ltd. and Anr (19'17) 4 sec 98;
Tamilnadu Education Department Ministerial and General
Subordinate Services Association and Ors. vs. State of Tamil
Nadu and Ors. (1980) 3 SCC 97; State of Himachal Pradesh
and Anr vs. Kai/ash Chand Mahajan and Ors. (1992) Suppl.2 E
SCC 351 and Virender Singh Hooda and Ors. vs. State of
Haryana and Anr(2004) 12 SCC 588 - distinguished.
+ N. Lakshmana Rao and Ors vs. State of Karnataka and
Ors. (1976) 2 SCC 502; Union of India and Anr vs. Dr S. Baliar F
Singh, (1998) 2 SCC 208; Ram Prasad Narayan Sahi and
Anr. vs. The State of Bihar and Ors. AIR 1953 SC 215;
Ameerunissa Begum and Ors. vs. Mahboob Begum and Ors.
AIR 1953 SC 91; Charanjit Lal Chowdhury vs. Union of India
and Ors. AIR 1951 SC 41; Health India (Registered) vs. Union G
of India and Ors. 102 (2003) Delhi Law Times 19; Madan
Mohan Pathak and Anr vs. Union of India and Ors. (1978) 2
SCC 50 and A. VNachane and Anr vs. Union of India and
Anr. (1982)1 SCC 205 - referred to.
Attorney General for Canada vs. Attorney General for H
4 SUPREME COURT REPORTS [2008] 8 S.C.R.
A Ontario (1898) - referred to.
4.1 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 premature termination of the term of a
B Director of AllMS - squarely applied also to the case of
the writ petitioner as well and will also apply to any future ,
Director of AllMS. Thus there was never any permissibility
for any artificial and impermissible classification between
the writ petitioner on the one hand and any future Director
C of AllMS 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
D democratic civilized society governed by Rule of Law and •
renders the impugned provi~o as void, ab initio and
unconstitutional. [Para 30) [31-F,G, 32-A,B]
4.2 In the present case, the impugned proviso to
Section 11 (1 A) itself states that it is carrying out premature
E 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 that the impugned legislation is hit by Article
F 14 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.
[Para 31) (33-C,D,E]
G
Dr L. P Agarwal vs. Union of India and Ors. (19~2) 3 SCC
526 and D.S. Reddy vs. Chancellor, Osmania University and
Ors. (1967)2 SCR 214 - relied on.
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
H 656 of 2007.
P. VENUGOPAL v. UNION 5
OF !NOIA [TARUN CHATTERJEE, J.]
'.'\
Arun Jaitely, K. Parasaran, C.A. Sundram, Maninder A
Singh, Prathibha Singh, Gaurav Sharma, Sumeet Bhatia, Surbhi
Mehta, P.S. Narsimha, Anupam Lal Das, Meenakshi Arora, L.
Rashmani, Tufail A. Khan, Sushma Suri, Mukul Gupta, Mukta
Gupta, Rohini Musa, Vibhor Garg, Pradeep Ranjan Tiwari,
Abhishek Gupta and Surabhi Chopra for the Appearing parties. B
.( The Judgment of the Court was delivered by.
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 c
Vascular Surgeon, calls in question the constitutional validity of
the proviso to sub-section (1 A) of Section 11 of the All India
Institute of Medical Sciences (Amendment) Act, 2007.
2. The writ petitioner was admittedly the Director of All India
¥ Institute of Medical Sciences (in short the "AllMS") immediately D
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.
E
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 AllMS 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 F
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 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 G
been brought about directly by the added provision.
-I
4. In the Statement of Objects and Reasons of the
Amendment Act of 1987 being Act XXX of 1987, as stated
herein above, AllMS and the Post Graduate Institute of Medical
H
6 SUPREME COURT REPORTS [2008] 8 S.C.R.
A Education ard Research. Chandigarh. are statutory autonomous
bodies wholly financed by the Governrr:ent of India. Sub-Section
(2) of Section 3 of the All India lnstitJte of Medical Sciences
Act, 1956, provides for the incorporation of the Institute and
declares "that the Institute shall be a body corporate by the
B name aforesaid having perpetual succession and a common
sea/ 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''. Section 5 of the Parent Act
declares "that the Institute shall be an Institute of National
c 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
v1irtue of which, he is such a Member. The Act provides for
Constitution of a Governing Body by the Institute from amongst
0
its members in such manner as may be prescribed by the
f~egulations to exercise such power and discnarge 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
E 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 ihe matter of exercise
of its power and discharge of its fu1ction under the Act and
makes the decision of the Central Government final. Thus the ..i.-
F Act designed the Institute to be an c:utonomous statutory body
of national importance subject to limited control in respect of
$pecified matters. Sub-section (1A) with its proviso added to
Section 11 of the AllMS (Amendment) Act, 2007 reads as
foJ' JWS:-
G
(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
H immediately before the commencement of the All India
P. VENUGOPAL v. UNION 7
OF INDIA [TARUN CHATTERJEE, J.]
Institute of Medical Sciences and the Post-Graduate Institute A
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 B
allowances for the premature termination of his office or of any
contract of service ...... "
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 C
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 D
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 E
sub-section (1 A) 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:
(i) The proviso is patently a single-man legislation and F
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 G
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 H
8 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 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
B out of his office offend tl1e 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.
C (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
D Delhi in W.P.No.10687/2006 in connection with interim
applications CMP NOs.8169/200c and 12471/2006 an_d
by the Division Bench in W.P.©No.8485/2006 and LPA
NOs.2045-46/2006.
7. It is true that in establishments like AllMS, there is an
E 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
F under the Service Rules, there may be provision for extension
of service after the attainment of the age of 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
G 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
H observed as follows :
P. VENUGOPAL v. UNION 9
OF INDIA [TARUN CHATTERJEE, J.]
~
''The Bank has no obligation to extend the services of all A
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 B
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
succeeding year. The retiring persons cannot in any year c
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."
D
8. In the instant case, the material facts ::ind 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 of2007) has considered E
~
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.
-4:--
Parasaran, learned senior counsel appearing for the respondent.
that a person appointed in Government service acquires a status F
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
G
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 H
10 SUPREME COURT REPORTS [2008] 8 S.C.R.
,,
A 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
B Railway Board dated Jar:uary 25, 1958, Annexure 'B',
laid down that promotion to Grade 'C' from Grade 'D' was
to be based on 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
c
origin of Government service is contractual. There is ari
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
D ...
statutory rules which may be framed and altered unilaterally
0y the Government. In other words, the leQal 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
E 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 i,s true that Art. 311 imposes
F 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
G relationship is something entirely different. something in
the nature of status. It is much more than a purely +
contractual relationship voluntarily 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.
H In the language of jurisprudence status is a condition of
P VENUGOPAL v. UNION 11
OF INDIA [TARUN CHATTERJEE, J.]
membership of a group of which powers and duties are A
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 B
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 spher,e of status. A contra.ct
of service between employer and employee, while for the C
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 le.aye matters within D
the domain of contr::ict to be determined by the e·xercise
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 E
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 F
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 G
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 H
12 SUPREME COURT REPORTS [2008] 8 S.C.R.
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
0 provide conditions of service. The Legislature can regulate
conditions of service by 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
C 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 statu•~ry rules which may be unilaterally altered by the
Government without the consent of the employee."
D
10. A further decision re!lied upon in this connection by 'I'
Mr.Parasaran, learned sei1ior counsel appearing for the
respondent, is the decision of this Court reported in Union of
lnc/ia and Anr. vs. DrS.Ba/iar Singh, [(1998) 2 SCC 208].
particularly learned senior counsel has relied on paragraph 12
E 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
erliployee concerned. On this aspect of the matter, there cannot
be any dispute as such aspect is well settled by a series of
F 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
G 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
H constitutionally protected. The State or other public ~uthorities
P. VENUGOPAL v. UNION 13
OF INDIA [TARUN CHATTERJEE, J.)
are not, therefore, entitled to make and impose laws governing 'A
the service conditions of an employee which manifestly deprive
him of the privileges of that status. A person in public employment
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 B
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 c
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
0
of the Federal Court reported in Al R 1939 Federal Court P.1
(Central Provinces and Berur Sales 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, E
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) AC 700 to the following effect:-
'The,Supreme Legislative power in relation to any subject F·
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.
G
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, learned
senior counsel had also relied on another decision reported in
Tamilnadu Education Department Ministerial and General
H
14 SUPREME COURT REPORTS [2008) 8 S.C R
A 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 Kai/ash
Chand Mahajan and Ors (1992 Suppl2 SCC 351) and
s Virender Singh Hooda and Ors. vs. State of Haryana and
Anrf2004) 12 sec 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
C 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 lack in generality in respect of its
operation. But exception was so~1ght to be taken on the basis
of the hardship or injustice in particular cases. So far as 1980
D (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
E by Mr. Parasaran, namely, State of Himachal Pradesh vs.
Kai/ash 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
F 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 are to be
examined in the context of the Constitutional Scheme of India
G helving a written constitution with guaranteed fundamental rights.
In India. under Article 13(2) of the Constitution the State shall
ncDt make any law which takes away or abndges the rights
cQnferred by this part and any law made in contraventt0n of
this Clause shall. to the extent of the contravention. be void ·
H Thus in India. a law cannot be accepted merely because it
P VENUGOPAL v. UNION 15
OF INDIA [TARUN CHATTERJEE. J]
* purports to be a law falling within the legislative field of the maker A
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 8
Prasad Narayan Sahi and Anr vs. The State of Bihar and Ors.
(AIR 1953 SC 215). Mr.Jaitley 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 C
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
0
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). E
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 (Supra). The F
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 G
would seem to think that it is not necessary for the police
i 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 H
16 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 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
B Chief Justice of India, Mr. Justice Bijon Kumar Mukherjee, as
Hi's 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:-
c "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 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
D
is from his right that the appellants have been deprived,
by this Act. It is impossible to conceive of a worse for; n 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
E 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).
F
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
G 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 differentiating attribute peculiar to
H that individual or group and not possessed by others. this
P. VENUGOPAL v. UNION 17
OF INDIA [TARUN CHATTERJEE, J.]
presumption is of little or no assistance to the State." A
* 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 8
there was only one AllMS in the country, there was only one
Director of the AllMS 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 C
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 the proviso is affecting the present
incumbent or his successor. D
20. It was further s_ubmitted on IJehalf of the writ"Petitioner
that the proviso itself declares that "any person holdtng 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 E
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 F
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 G
view, has 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. H
18 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 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
B 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
c on any rational basis, any question of intelligible differentia
having a nexus to the object of classifica!ion 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,
D 2007 has held that the writ petitioner was entitled to continue as
a Director upto 2nd of July, 2008 and issu3d a Writ of Mandamus "f
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,
E 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
F with a view to comply with the directions of the High Court of -1'
Delhi in the judgment dated 29 1" of March. 2007, the
amendments are being introduced. It 1s 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
G 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
H
P VENUGOPAL v. UNION 19
OF !NOIA [TARUN CHATTERJEE, J.)
case of the writ petitioner as regards his right to continue as a 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 case
of the writ petitioner and seeks to affect him in isolation. After B
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 c
· of July, 2008, ie., on attainment of the age of 66 years. S~ri
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
D
Prof. PVenugopa! as Director. Ail 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 Cardiovascular and
Thoracic Surgery. AllMS, New Delhi. The appointment of the E
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 F
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 \'.'hich are not justifiable ... "and
then proceeded to injunct the respondent against premature
G
termination of the term of the writ petitioner. The learned Single
Judge reiterated and re-emphasized the prohibition against the
. -1 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 H
20 SUPREME COURT REPORTS [2008] 8 S.C.R.
A judgment dated 29th of March. 2007 has 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 AllMS Regulations and particularly to
B 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
l"-
Member and was entitled to the benefit of his tenure as a
Member, and could not justifiably be deprived of the same. The
c writ petitioner is, however, being singled out and treated
differently f~om other Members of the Governing Body. In this
connection, reference can be made to Sections 4, 6 and 10 of
the All MS Act, 1956 which are relevant for our purpose.
Accordingly, we quote relevant provisions as indicated herein
above:-
D
Section 4 - Composition of the lm:•itute -
The Institute shall consist of the following members, namely:-
(a) the Vice-Chancellor of the Delhi University, ex-officio;
E
(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
F 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;
G
(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
H
P. VENUGOPAL 1( UNION 21
OF INDIA [TARUN CHATTERJEE, J.]
.,...
elected from among themselves by the members of the A
House of the People and orie from among themselves by
the members of the Council of States.
Section 6 - Term of office of, and vacancies among.
members -
B
(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 c
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. D
"f
(2) The term of office of an ex ufficio 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 E
to fill a casual vacancy shall continue for 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 F
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. G
(6) A member may resign his office by writing under his
i hand addressed to the Central Government but he shall
continue in office until his resignation is accepted by that
Government.
H
22 SUPREME COURT REPORTS [2008] 8 S.C R
A (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
B (1) There shall be a Governing Body of the Institute which
shall be constituted by the Institute from among its
members in such manner as may be prescribed by
regulations.
(2) The Governing Body shall be the executive committee
c 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
D
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
E 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
F 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 or reporting or
advising upon. any matter which the Institute may refer to
them.
G
(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
H
P VENUGOPAL v. UNION 23
OF INDIA [TARUN CHATTERJEE, J]
't'
(7) The Chairman and members of the Governing body A
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 th.e provisions, as noted herein above, in our
mind. we now proceed to take up the question in hand. The -B
..,;
tenure of the wtitpetitioner as a Director to act as a MembE::r 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 seriously contended by c
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 18 1h of October, 2006 and the order dated
29th of March, 2007 of the Division Bench was wholly D
"
niisconceived 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 E
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
'i
India and Ors. ((1978) 2 sec 50] and in the case of F
A VNachane and Anr vs. Union of India and Anr [(1982)1
SCC 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
G
Madan Mohan Pathak's case (Supra), the question of finality
-1 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 Ill
and Class IV employees and it was held that irrespective of the
H
24 SUPREME COURT REPORTS [2008] 8 S.C.R
..,...
A 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
B which runs as under •-
"It is significant to note that there was no reference to the )/
judgment of 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 ~ of the
c 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
D that unfortunately the judgment of the Calcutta High Court
remained almost unnoticed and the imp1 •gned Act was
"
passed in ignorance of that judgment. Section ~ of the
impugned Act provided that the provisions of the Settlement
in so far as they relate to payment of annual cash bonus
E to Class Ill 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
F for the year 1st April 1975 to 31 51 March, 1976 remained "
untouched by the impugned Act. So far as the right of
Class Ill 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
G:
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 taken away by the
impugned Act. The judgment continued to subsist and the
Life Insurance Corporation was bound to pay annual cash
H
P. VENUGOPAL v. UNION 25
OF INDIA [TARUN CHATTERJEE, J.~
bonus to Class 111 and Class IV employees for the year 1st A
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 B
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 c
impugned Act with effect from 1stApril, 1975, Class Ill 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
0
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 E
Corporation did not press the Letters Patent Appeal and
· the result was that the judgment of the 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 F
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 G
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
H
SUPREME COURT REPORTS [2008] 8 S.C.R.
A 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
certain directions issued by the Delhi High Court requiring the
B 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
c 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
D writ petitioner as Director was not really in dispute. In the
Statement of Objects and Reasons of the Act introducing the
impugr:ed 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, 2007. It, however, F
appears that the Division Bench of the Delhi High Court has
E 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
F 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
G .impugned amendment introducing the proviso, therefore, cannot
be treated to be a validating Act. This Court in the case of
OrLPAgarwal vs. Union of India and Ors. [(1992) 3 SCC 526 )-
(Para 16)] observed as follows :-
"We have given our thoughtful consideration to the
H
P. VENUGOPAL v. UNION 27
OF INDIA [TARUN CHATTERJEE, J.]
•f reasoning and the conclusions reached by the High Court. A
We are not inclined to agree with the same. Under the
Recruitment Rules the post of Director of the AllMS 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 B
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 All MS
can be given extension beyond that age. This has obviously c
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
AllMS) 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 E·
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
-4 clear and unambiguous language of the Recruitment Rules.
'f
The said rules provide "Tenure for five years inclusive of F
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 G
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. H
28 SUPREME COURT REPORTS [2008] 8 S.C.R.
A
,.
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
B 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
c 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
D
Vice-Chancellor having regard to his antecedents which
were r;ot 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".
E
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 AllMS is a
permanent term. Service Conditions make the post of Director
y
F 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
AllMS) can be selected and appointed to the post of Director.
The appointment is for a tenure to which principle of
G supeirannuation 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 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
H
P VENUGOPAL v. UNION 29
OF INDIA [TARUN CHATTERJEE, J.]
office on completion of his tenure. It was in 1958 that Al IMS had A
framed its regulations under Section 29 of the Act. Regulation
30-A was brought into AllMS 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 B
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 AllMS Regulations
and had been re-numbered as Regulation 31, when the AllMS
1958 Regulations had been substituted by AllMS Regulations, c
1999. Therefore, it is incorrect on the part of the respondent to
contend that Regulation 31 was introduced in the AllMS
Regulations only after the judgment of this Court in Dr.
L.P.Agarwal's case.
28. This question was specifically deliberated upon by D
f 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 E
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 AllMS under Regulation 30(3)
T
of the Regulations in public interest after he attained the
age of 55 years. It was further contended that fundamental F·
Rule 56U) was also applicable to the Al IMS 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 56U) applicable to the G
Central 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 56U).
H
30 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 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
B 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 AllMS is a
tenure post. The said rules further provide the method of
direct recruitment for filling the post. These service-
c 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 AllMS
D can be given extension beyond that age. This has obviously
been done for maintaininr 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
E age of 62 years", the appointment ceases to be to a tenure-
post. Even an outsider (not an existing employee of the
AllMS) 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
F 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.
G
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
H
P. VENUGOPAL v. UNION 31
OF INDIA [TARUN CHATTERJEE, J.]
office begins when he joins and it comes to an end on the A
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. B
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 C
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 ·
0
only with premature retirement and the High Court also
dewt with that aspect of the matter only. This court's
judgment in Or. 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 E
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". ·F
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 piemature termination of the term G
of a Director of AllMS - squarely applied also to the case of the
writ petitioner as well and will also apply to any future Director
of AllMS. 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 AllMS on the other when
H
32 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 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
s 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 11 A, we must,
therefore, come to this conclusion without any hesitation in mind,
C that 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 0. 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
D similar to that of the writ petitioner. In that decision, D.S.Reddy
was already a Vice-Chancellor for the past seven yeqrs 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
E 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
y
F contention of D.S.Reddy was that this amendment was only for
his removal and therefore was a 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-
G 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 reiating to Andhra University and Shri
Venkateswara and was, therefore, not i!I one man legislation. It
was further contended by the State that it was always open and
H
P. VENUGOPAL v. UNION 33
OF INDIA [TARUN CHATTERJEE, J.]
~ permissible to the State Legislature to treat the Vice-Chancellor A
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 B
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 c
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
D
j 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 as
it creates an unreasonable classification between the writ E
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 F
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 AllMS Act is, therefore, hit by Article 14 of the
Constitution. Accordingly, we hold that the proviso is ultra vires
G
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 AllMS Authorities to restore the writ petitioner in his
H
34 SUPREME COURT REPORTS [2008] 8 S.C.R.
A office as Director of AllMS tiil 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,
s there will be no order as to costs.
G.N. Writ Petition allowed.
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