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TMI Blog2008 (5) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... mmand 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 Cardiovascular 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 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and 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 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: (i) The proviso is patently a single-man legislation and intended to affect the writ petitioner only and none else thus introduces a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 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 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. 8. In the instant case, the material facts and circumstances bring into focus other consideration. In the case of the writ petitioner, a Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. 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. v. Dr. S. Baliar Singh AIR1998SC539 , 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahajan and Ors. [1992]1SCR917 and Virender Singh Hooda and Ors. v. State of Haryana and Anr. AIR2005SC137 . 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 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 v. Kailash Chand Mahajan [1992]1SCR917 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 discri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 prematur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm 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 ₹ 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, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 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 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 va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ularly 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. v. Union of India and Ors. (1978)ILLJ406SC and in the case of A.V. Nachane and Anr. v. Union of India and Anr. (1982)ILLJ110SC . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 learned Single Judge granting writ of Manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pprised 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 v. Union of India and Ors. (1993)IILLJ825SC observed as follows: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 v. Chancellor, Osmania University and Ors. [1967]2SCR214 . 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication 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 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 prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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