Sunteți pe pagina 1din 29

159

CHAPTER. FOUR

■CONCEPT OF EQUALITY* AS A LIMITATION ON DOCTRINE


OF OF PLEASURE - A CRITICAL ANALYSIS

I. Introduction
Fundamental Rights are ever-existing rights of citizens of India
irrespective of any diversity among the citizens. Because civil servants are also
one section of the citizens of India, therefore, they also have such rights or in other
words, constitutional protections.

The chapter on fundamental rights, enshrined in the


Constitution of India lays down a substantial control on the exercise of the
President’s or the Governor's power of
1
pleasure.
2
Fundamental Rights cannot he the subject of waiver * on the same

basis, it cannot be contended that, having accepted an appointment, a government


servant would be stopped from questioning the constitutionality of such rules, which
contravene fundamental rights.

It can hardly be contended that Government servants, while entering


into a contract of employment under the State* have waived their fundamental
rights.
Fundamental Rights are limitations on the exercise of pleasure of the
President or of the Governor and hence*

1. See M.P.Jain > Indian Constitutional Law (1970 Ed.)jpj,697.


2. Kameshwar v. State of Bihar, A.I.R. 1962 S.C. -1166.
are constitutional protections for civil servants, Wba&efetf
a termination of tenure of a civil servant is ordered on the grounds which are
contrary to Fundamental Rights, such termination is controlled by Fundamental
Rights. Hence* the pleasure is controlled by Fundamental Rights in general if in
exercising the pleasure, the grounds taken are in clash tyitb Fundamental Rights e.g.
on the grounds of colour, ca$te, religion, race, slavery, speech and expression, etc.

Although all the Fundamental Rights have control over to doctrine of


pleasure. President or Governor cannot violate any of the Fundamental Right&in
exercise of doctrine of pleasure; Hence all the fundamental rights are general limitations
to doctrine of pleasure. But Article 16 which embodies the concept of equality, has
special limitation to the tenure at pleasure. Therefore indepth discussion is made of
concept of equality in relation to the doctrine of pleasure.

3
In a leading case General Manager v. Rang a charts the Supreme Court
held that the words ''matters relating to employment or appointment'' under Article 16
must include all matters in relation to employment both 'prior' and ' subsequent ’ •
Hence the 'tenure' relates to the 'subsequent* matter td the employment. Therefore
Article 16 alongwith Article 14 is applicable on pleasure tenure as a constitutional
limitation.

3. A.I.R. 1962 S.C. 36 (40-41).


161
II. Application of Article 16 on tenure at pleasure ot civil servants _
_____ —----------------

Article 16 which contains the concept of equality controls the exercise of


pleasure in extinction of tenure by way of termination, retrenchment and compulsory
retirement, No discrimination is allowed while terminating or doing retrenchment or
compulsory retirement. Termination, retrench- ment and compulsory retirement
affects the pleasure therefore, these orders will have to comply with the concept of
equality as discussed in depth below:

1. Termination
(i) Article 16(1) is applicable to the matter of termi-
nation if such employment where there has been an arbitrary
discrimination4 5in terminating the serviced
of a particular employee leaving his juniors. But where recruits from
different sources have not been integrated into one service, the
termination of
services of one class while retaining the other w°uld
5
not involve a
violation of Articles 14 and 16*
(ii) It is discriminatory as it enables the authority tP pick and choose any
employee and terminate his services without holding any inquiry in
accordance with the prescribed rule. Such a rule is therefore

4. Rung Beharl v. U.O.I.. A.1963 S.C. 518(527)$ A lit v. flt Punjab. A. 1983
S.C. 494(para . 18); See also H.O.I* v. Panduranj. A. 1962 S.C. €30 (632).

5. Jaswant v. Union of India. A. 1980 S.C. 115 (paras 35-37)


162
g
void as offending articles 14 and (16) ,

(iii) If under the terms of employment the employees had agreed to he


governed by the concerned service rules* it does not preclude an
employee from questioning the Constitutional validity of the rule on the
ground Of violation of Articles 14 and 16 as those. Articles

are in the nature of an injunction to the State not


discrimination and that Constitutional obligation does
7
not cease either by consent or acquiescence.
(iv) When it is proved that on assessment of suitability of the temporary
employees concerned the services Of a temporary employee who is
found unsuitable arO
terminated retaining juniors who are found suitable, there is no
violation of Article 16
8.
(v) Termination of service of the employee who is alleged to had been
member of political or other organisation
is hostile discrimination. Although the State may
«

put condition that after joining the service* an


employee is not to be a member of political organisation.
The Supreme Court, In State of M.P. v. Raraashahkar
9 "
Raghuvansi , observed about this aspect as under ;

6. T.0.Srlnlvasamurthy v. Bharat. Earth Movers. 1982(1) L.L.J.Kar 268.


7. Ibid.
8. Malati Dada.ii Mahaian v. ?he Chief. Ei.Q*Jill?, P.E.TJ,Shad
3.L.H- 1976 (1) Bomb. 701.
9. A.I.R. 1983. S.C. 374.
.163

*'The right to freedom of speech and expression* the right to


form associations and unions, riglit to assemble peaceably and
without arms, the right to equality before the law and the equal
protection of the law, the’ right to equality of opportunity in
matters relating to employment or appointment to any office
under the State are declared Fundamental Rights. Yet the
Government of Madhya Pradesh seeks to deny employment to the
respondent on the ground that the report of the Police Officer
stated that he once belonged to some political organisation.

We do not have the slightest doubt'that


the whole business of seeking police reports
about the political faith, belief and association
and the past political activity of a candidate
for public employment is repugnant to the basic
rights guaranteed by the Constitution and entirely
misplaced in a democratic republic dedicated to
the ideas set forth in the preamble of the
Constitution. We think it offends the Fundamental
Rights guaranteed by Articles 14 and 16 to deny
employment to an individual because of his past
political affinities, unless such affinities
are considered likely to affect the integrity
and efficiency of the individual service. To
hold otherwise would be to introduce 'MaCarthyism'
into India. 'McCarthyism1 is obnoxious to the
whole philosophy of our Constitution. We do not
want it.' '
(vl) The mere fact that there were some juniors who are
continued in service on the date when the service of
a senior is terminated does not render the termination
discriminatory, if the termination of the service of
the senior temporary official is on account of his
10
unsuitability for continuance in service.
(vii) Due to abolition of post or want of post due to reduction of
establishment, the pinciple of last
10. Union of India v. Prem Parkash S.L*R. 1969 s.C. 656i Ohampak. Lai v.
{Mon ,Pf, India.., A.I.R. 1964 s.C. 1861.
164
come first go also should "be applied in affecting termination
unless on the ground personal to the officer (i.e. inefficiency,
unsuitability, etc.) otherwise it would be discriminatory^

(viii) Where on the establishment of a project, directly’ recruited and on


deputation from other departments? persons are employed, after
completion of the project? termination of service of those directly
recruited retaining the deputationists in service is no discrimination as the
two classes of employment are

dissimilarly situated*
12
(ix) Termination of service of a civil servant brought about consequent
on the abolition of pofets in a
particular cadre is not violative of Article 14 and 16
unless persons who are exactly similarly situated are
13
continued in service. But termination of service of persons who are
seniors by retaining juniors in service consequent on the abolition of
a few posts belonging to a particular cadre is violative Of

14
Article 14 and 16.

11. M.K .Laks.hmlp.at.hy v. Bpajfl. o£ HjflsggJ. flgyfilQjmefit, 1972 Mys.


L.J. SN P 80-81.
12* Jaiwant gingM v. Union of. India, A.I.R. 1980, S.C.llSj
A.iav Mohanty v. Union of India. S.L.R. 1981(2) Orissa 681.
13. M. Ramanath Pillal v. State of Kerala, A.I.R. 1973 S,C.2&U
14. Papanna Gowda v. State of Mysore. 1968(2) Mys. L.J*479..
Cx) In cases of termination of ad hoc employees, Article i,(j>
15
could not even remotely invoked.
(xi) A rule which lays down that the service of a teffipprary employee can be
terminated by giving him one month1 s notice or one month's salary in
lieu of notice cannot be said to deny equality of opportunity provided in
Article 16. The State is entitled to frame sudh

rule governing all the temporary employees.


16
In ghfifflpgfr. LaJ- V. Union, of. India, the Supreme Court held that the
classification of government servants into temporary and permanent categories and
providing different methods of termination of service for them, would not be
discriminatory, and there is a valid classification. Further- more whenever the
termination is challenged on the ground of discrimination, it will be for the
administration to explain though it has no obligation to mention the reason, in the
notice of termination how and in what circumstances the termination does not
amount to discrimination against the person concerned.

(xii) Article 16 is violated, if termination takes place


on the ground that he belongs to another State 17
or he has a particular colour or height Or caste etc*

15. S.K.Verma v. State of Punjab. A.I.R. 1979 P.and H,' 1495*


BflJUy,JBgtodLMftL IS&PML.«u>Jkay.efl.
Through Bhartlya Dak Tar JM.azdoor Manoh v. Union of Indla!
T1988) 1 S«C«J* 32.
16. A.I.R. 1964 S.C.18*54* Ram Copal v. » 4* I.ft* 197C
SC 158•
17. Janakiraman y.State. PiLiUE., A. 1959 A.P. 185.
166

(xiii) If there is a hostile discrimination In the appli-* cation of the Rules


in the matter of selection of
IS
the persons to he discharged, Article 16 will apply.
(xiv) Termination of service of a temporary employee without valid reasons,
while retaining his juniors in service
19
is violative of Articles 14 and 16.
2. Retr.eRsjiflent
(i) Article 16 has application where a temporary employee is retrenched

owing to the abolition of one of several temporary posts of the same kind,

qua 1 ifieations* length of service, he may accordingly, complain of

discrimination, if a person junior to him is retained»


20
while he is retrenched.
(ii) Where the discharged employee alleges malafides or improper motive,

the authority must disclose the reasons to the Court, except in cases

falling under Article 311(2) Proviso (c). If no such information is supplied,

it would be legitimate for the Court to conclude that the petitioner has

been picked out whimsically and without any special reason which

would put him in a class separate from his juniors


21
who have been retained in service,
liu Union of India' v. More., A. 1962 3.C. 630 (633).

19. Govt. Branch Proust..Marmara v. A.I.R. 1979 3G 429.


20. Champak Lai v. Union of India. A. 1964 S.C.1851 (I960),

21. Manager. Govt. Press v. Balliappa. (1979)1 S.C.C.477 (three Judge


Bench).
167
(iii) It is open to the government to take into account the policy of giving
reservation benefit to members of Backward Classes who did not
adequately represented
the services under Article 16(4), while effecting retrenchment and

hence* in that process if the principle of last come first go is not

obeyed, it

22
is no violation of Article 16(1).
(iv) When an employee is retrenched on the ground that hfe
has been detained under the law of preventive
23 pA
detention or is engaged in subversive activities
25
or acts indiscipline is not violative of Article 16
-unless it is established that those employees who
have been retained in service are similarly situated.
(v) The Government like all other masters has the undoubted right to
reorganise its departments find otherwise take all such administrative
steps that It may think proper to take from time to time. Such

matters are purely administrative acts of the master.* 26


Kun.ia Beharl v. g.frafcp. gf. .Qxlsga » the court

22. N.B° Andra.sk a r v. Collector* Yeotmal. S.L.R. 1976(2) Bombay 755.


23. Union of India v. Pandurang. A. 1962 S.C. 630.
24. Balkotlah v. Union of India. (1958) S.C.R. 1062.
25. Banarasidas v. State of U.P.. A. 1956 S.C. 520.
26. A.I.R. 1957, Orissa 27.
1

observed that if the retrenched employees held


substantive posts under the Government,* it coUld be
compelled to provide them with alternative employment
of an equally remunerative character. Where the
retrenched employees were not holding any substantive
posts, there was no legal obligation oh the part of
theGovernment to provide them with alternative jobs
when their existing posts were retrenched. In other
words permanent and temporary civil servant can b<e
retrenched but with the pre-condition of absorption
on alternative job in case of only holder of permanent
post (i.e. substantive post).

3. agfr-lrafflsifl
27
(i) Article 310 also apply to compulsory retirement in addition to
termination.
(ii) A rule which empowers the government to retire a government servant after

a reasonably long presdribed period of qualifying service or age, in public


interest which is applicable to^civil servants in the State,

28
is not violative of Article 14,
(iii) A rule which empowers the government to retire a servant after 30
years of service by giving a netide
7. Union of India v. Slnha, A. 1971 S.G.' pa r a.
28. T.G.Shlvacharan Singh v. State of Mysore. A.I.R. 1965 F.R.Naidu v. Govt. Of
A.P.. A.I.R. 1977 S.C. 851; Mohd* Abdul kze&z v. State of Mysore. A.I.R..1966
Mys. 61.
169
without providing any guidance for the exercise of
the power under the said rule is violative of
29
Article 14.
(iv) A rule which authorised compulsory retirement at any
time by giving three month's notice is violative of
30
Article 14.
(v) There is difference between compulsory retirement and voluntary
Retirement, while in former case it is the Government who makes order of
retirement compulsorily irrespective of the wishes of an employee under
the force of statutory rule, whereas in thp later case, it is the wishe of an
employee himself who prays for order of retirement after discharging
services upto specified period in statutory rule. Hence, compulsory
retirement is to be ordered by Government in public interest and voluntary
retire- ment is sought without compulsion of Government. Therefore both
types retirement have different

basis. It was held that authorising voluntary retirement only after 30 years
of qualifying service cannot be held to be discriminatory on the ground
that the rule of compulsory retirement authorises the government to retire
a government servant after

29. G.B.Njirikar v. Onion of India. A.I.R. 1972 Mys. 71.

30. Mot 1 Ram Deka v. N.E.F., Rlv. A.I.R., 1964 S.C. 600*
31
completion of 25 years of service.
But whenever, such termination retrenchment or compulsory
retirement is ordered by way of penalty, then that order will be either dismissal or
removal. And Article 16 would have no application rather procedural requirement
provided under Article 311 shall have to be followed. Ti}e

order of compulsory retirement by way of penalty is called 32


*removal* .
III. Application of Article 16 on tenure at pleasure of

Defence, services and Mice, services ___ Article 16 provides guarantee of


equal opportunity

to all citizens and hence, this guarantee extends to defence services also in matters
relating to employment. But because Fundamental Rights can be curtailed of defence
employees under Article 33, therefore Article 16 is subject to the provisions of Article
33. The reason of providing Article 33 in the Constitution of India is that the forces are
maintained with the purpose of maintaining discipline, law and order in the country, but
if the employees of these forces create indiscipline then position will be uncontrolled.
Hence, a provision of law which penalises the creating Of dissatisfaction among the
members of the police force or to withhold their services from the government has to be
sustained as having

31. Krishna v. Union1 of India, 1976(2) Kar. L.J.3.N.22 item 33.


32. Union of India v. Tulslram. A.I.R. 1986 S.C. 1486-87*
171
33
been properly made in the interest of public order
Any law relating to abridgement of fundamental rights
relating to members of the policg force must be a law made by Parliament in
exercise of its powers under Article 33. A
law made by the President in exercise of his delegated
powers of a state Legislature is invalid, as it amounts only
to a legislation by the State who has no competence to aiake
34
such a law.
Section 21 of the Army Act also empowers the central

the right of a member of a Military service. This provision cannot be held to be


invalid on the ground of violation of Articles 14 and 19 in view of the express
power conferred
under Article 33 to exclude the application of the Fundamental
35
Rights to the members of military service.
IV. Relationship between 'Doctrine of Pleasure' and 'concept
of, oq^ii£.y.«____ _ _ ____ —__
Whether Article 16 is applicable on natters 'prlbi*» and 'subsequent* to
employment or appointment. The Supreme Court clearly established in General
Manager v. Rangachari;r that the words ''matters relating to employment or
appointment' must include all matters in relation to employment both

33. Dalblr Singh v. State of. Punjab. A.I.R. 1962 S.C. 1106.
34. Ramswarup v. Union of India, A.I.R. 1965 S.C. 247: (1965)
S S. C•R• 931•
3-5. R.Vishwan v. Union of India. A.I.R. 1983 S.C. 65g.
36. A.I.R. 1962 S.C. 36 (40-41).
172

'prior1 and 'subsequent*. In other words, equality is guaranteed in matters relating to the
recruitment hereinafter called 'prior' to the employment or appointment.
Siinu.ltPnCou$ly» the equality is guaranteed In matters 'subsequent* to the

3?
appointment or employment e.g. pay-scale, seniority, promotion,
increment, termination, retrenchment, compulsory retirement, superannuation and
pension. Hence, termination, retrenchment and compulsory retirement directly
relate and-affect the tenure. In this way, whenever a tenure of a civil servant is

finished by method of termination or retrenchment or compulsory retirement, the


concept of equality will have to follow. It

means, concept of equality which is embodied in Article 16


and 14 has limitation on doctrine of pleasure, so that
pleasure of the President or Governor as the case may be*
may not be exercised arbitrarily,
38 -
The Author M.P.Jain also opined that the chapter
on fundamental rights enshrined in the Constitution of India
lays down a substantial control on the exercise of the
President's or the Governor's power of pleasure. The concept
of equality has been granted in the form of one of the
fundamental rights in the Indian Constitution, available fdf
every citizen of India. The sense of equality is necessary
for existence of human society and particularly in a

37. Narshlma Rao v. State of A.P., (1970) I.3.C*W*R. 62.


38. See M.P.Jain, Indian Constitutional Law, - (1970 Edn.),
P.697.
democratic society. It appears that the sense of equality differentiates the human
society and animal society where
sense of 'might is right' prevails. Hence, this valuable sense of equality has been
placed in the Constitution of India in valuable Part III, as one of the Fundamental
Rights, embodied In Article 14 of the Constitution. It follows ? Article 14 Equality
before Law :

''The State shall not deny to any person equality before


the law or the equal protection of the laws within
the ■territory of India.''

The Article provides Guarantee or protection of


equality to each and every citizen of India in every respects ,
Every respect, here means from the stage of taking birth,
during survival and upto death of a Indian citizen, he would
enjoy the fundamental right of equality in comparison with
equals. Therefore, where a citizen of India Is sex-ving this
Country as civil servant under the pleasure of the President
or Governor (as the case may be), must be treated with equality
and can not be discriminated during his service period in the
matter of promotion, disciplinary action, suspension, ter rot-
nation, retrenchment, compulsory retirement, salary, pension, et
The doctrine of equality does not mean that every
law must be applicable - universally upon all persons. Req^Us®
all persons are not in the same position due to their different
classes which deserve to be treated distinctly. With
this aim, Article 15 was enacted in the Constitution which
174
permits classification based on various classes. In other
words, there are limitations of the doctrine of equal
protection.
Every classification is in some degree likely to
prcrviduce some inequality, and mere production of inequality
39
is not enough . Hence, State has power of classifying
40
persons for legitimate purposes. This Article corresponds
to the equal protection clause of the!4th Amendment of the U.S.
Constitution which declares : 11 No State shall deny to any
person within its jurisdiction the equal protection of the
laws.1' Hence in interpreting this clause, it is permissible
to refer to the decision of the American Courts upon the
.
41
Equal Protection Clause of the American Constitutioni
Article 14 consists of two concepts viz., ’equality
before law' and 'equal protection of laws.' The first is
negative concept which means there is no special privilege in favour of any one.
An are equally subject to the ordinary law of the land. And no one is above to
law, irrespective of his rank or condition. Hence, this first concept is equivalent
to the second corollary of the Deceah

42
concept of the Rule of Law in England.

39. State of Bombay v. Balsara. (1951) S.C.R. 682 (./TQS-O)*


40. Ameeroonissa v. (1953) S.C.R. 404(414)} A. 1957 S.C. 877; A.
1959 S.C. 609.

41. State of U.P. v. Deoman. A. I960 S.C. 1125(1131).


42. Wade and Bradley, Constitutional Law, 62, 68-70(1966).
175
The second concept, 'equal protection of laws', is positive concept. It
does not mean that a law should apply to all persons equally, irrespective of
difference of circumstancesj Rather, it adheres the application of the same

laws alike and without discrimination to all persons similarly situated. It implies that
among equals the law should he
equal ard equally administered, that the like should he treated
alike without distinction of race, religion, wealth, social
43
status or political influence.
In other words, equal protection means the right
44
to equal treatment in similar circumstances, in conferment
of privileges and in imposition of liabilities.
Whether the words 'appointment' and 'employment? are
two different concepts. While 'appointment' refers to
appointment to an 'office* and therefore implies the
conception of recruitment, salary, promotion, tenure, and
duties and obligations, etc, fixed by law or some rule having the force of law, these
elements are absent in the case of 'employment' - which means a contract for
temporary purpose, e.g. the engagement of labourers or professional experts by

45
bilateral contracts. The word 'employment or appointment?
46
covers all posts under the State, permanent or temporary.

43. Jagnnath Prasad v. Uttar Pradesh, A.I.R. 1961, S.0.1245$ Mohd. Shaheb
Mahboob v. D.v.Custodian. A.I.R, 1961 S.C.1657.
44. Shriklshan v. State of Ra jasthan. (1S55) 2 S.C.R. 531*
4 5. Sukhnandan v* State of Bihar. A. 1957. pat. 617.
46. Chamnak T.al v. Tin inn of TncHaf A. 1964 S.C. 1854 *
176

As regards definition of State, for Part XIV cf the Constitution*


the definition under Article 12 has no application unless
47
there is a relationship of employer and employee between the
State and its employee. In other words, the employer must be
a state or local authority as mentioned in clause (3) or there
42
must be an element of subordination to the State*
Concept of equality dictates that where two different
services or cadres are itengrated into one, any subsequent
discrimination amongst the two groups would be vio].ative of
4p
Article 16(1).
While making reasonable classification de facto
equality is needed and not merely de-jure equality is effected.
The Supreme Court emphasised the duty of State to grant
de-facto equality. It was held :

••Equality must become a living reality for the large


masses of the people. Those
who are unequal, in fact, cannot be treated by identical
standards; that may be equality in law but it would certainly
not be real equality.... The State must, therefore,
resort to compensatory State action for the purpose of
making people who are factually unequal in their wealth,
education or social environment, equal in specified areas. It is
necessary to take into account de facto
inequalities which exist in the society ahd to take
affirmative action by way of giving preference to the social
and economically disadvantaged -persons or inflincting
handi- caps on those more advantageously placed, in order
to bring about real equality.
Such affirmative action though apparently discriminatory
is calculated to produce equality on a boarder basis by
eliminating

47. Achuthan v. State of Kerala. A. 1969 3.C. 490(492)',


48. State of Punjab v. Joginder. (1963) Suppl. 2 S.C.R, 169; State of Mysore v.
Krishnamurthv. (1972) 3.G. (c*A* 193/71 dated 5.10.1972).
177
de facto inequalities and placing the wesker sections of the
community on a footing of equality .with the stronger and more
powerful sections so that each member of the community,
whatever is his birth, occupation or social position may enjoy
equal opportunity of using to the full his natural endowments of
physique, of character and of intelligence. ' '49

An important question came before the Supreme Court;


in State of KeraXa v. N,M. Thomas about relationship among
Articles 14, 15 and 16. Whether equality under Article 16
have a different content from equality under Article 14. The Supreme Court
observed that Article 14, 15 and 16 form
part of a string of constitutionally guaranteed rights
supplementing each other. Clause (1) of Article 16 affirmatively
guarantees whereas clause (2) negatively guarantees equality
of opportunity and hence, the words ' in respect of any
employment’ used in clause(2) must, therefore, include all
matters relating 'employment' or 'appointment' as specified
in clause (1). Therefore scope of both clauses is
coextensive.
Hence, Article 14 is a general law of equality whereas .

Article 16 specifically, guarantees equality only in respect


of appointment or employment to any office under the State.
Therefore Article 14 is the source of Article 16. The
guidance would be provided by Article 14, whenever the inter-
pretation of Article 16 is needed. Article 16 is only ah

49. Pradeep Jain v. Union of India. (1984), 3 3.C.C.654, 676,677,.


50. CLenejal. Manager. v_. Rang.achar i. A. 1962 S.C. 36 (41.).
178
51
incident of the general concept of equality enshrined in Article 14. The
Provisions in Article 14 and 16 are supplementary to each other, thus tQ be
52
read together •
Equality guaranteed by Article 16(1) is only an equality between members of
53
the same class of employees.

For the application of concept of equality as control


over extinction of tenure by way of termination orc^^UtA^
^retrenchment, the pleasure must not be exercised arbitrarily*
If the pleasure is exercised on classification, it must b#
based on reasons in which de-facto equality Is to be achieved*
If any provision of any Statute provides about termination of
tenure, the Statute must not be unconstitutional on the basis
of equality. The test of arbitrariness indiscretion, test
of reasonable classification, test to determine constitutionality
of a provision on the basis of equality which are various
necessary issues for proper application of concept of equality*
are discussed below i
1- Test of arbitrariness,In discretion
51
In SinKh v. S£a.t.e. Pl,l£mLl3£> Bhagwatl J*
observed :
’'Every form of arbitrariness or irrationality is anathema in our
constitutional scheme. It is now a basic requirement of Article
14 that the exercise of discretion must always be guided by
some standards or norms so that

51. General Manager v. flgnggQharii A.I-R. 1962 S.C. 36(42-45) Ra lender an v.


nnlon of India A.I.R. 1968 S.C* 507(511).
52. Devadasan v. Union of India. A»I»R* 1954 S*C. 179,
R. 1968 S.C. 349,
53. State of Mysore v. Narsinha Ra_o_. A.I..
54. (1982) 3 3.C.G. 24.
it does not degenerate into arbitrariness and operate
unequally on persons similarly situated* Where unguided
and unfettered discretion is conferred on any authority,
.whether it be the executive or the judiciary,
it can be exercised arbitrarily or caparacioualy by such authority.
There can be no equal protection without equal principles in
exercise of discretion whether vested in the executive or in the
judiciary.''
Hence, Article 14 requires observance of Rule of law and
disregards arbitrary and unfettered discretion. It is
called test of arbitrariness to find out the specific action
or legislation is violative of Article 14. For instance,
providing for dismissing an employee without assigning any reason or making
55
any inquiry or a service rule providing
for termination of services of permanent employees by giving notice and without
56
assigning any reason.
Article 14 requires rules of natural justice to be
followed unless expressly excluded as opined by the Supreme
Court in Tulsiram Patel's case.
57
In a landmark judgement , the Supreme Court
(Bhagwati,J., Chandrachud, J., Krishna Iyer^J.) observed i
equality is dynamic concept with many aspects and
dimensions and it cannot be cribbed, cabined and
confined' within traditional and doctarinaire limits. From
a positivistic point of view, equality is antithesis to
arbitrariness. In fact, equality and arbitrariness are sworn
enemies* one belongs to the rule of law in are public
while the other, to the

65- W.B.S.E.B. v. Desh Bandhu. (1985) 3 S.C.C. Il6(para. 4)


56. Central Inland Water Cornn. v. SX&jH* A. 1986 S.C. I571(pa.ra SS
57. R.P.Rovappa v. State of, Tamil liadHi A.I.R. 1974 S.C. 555,583.
180

whim and caprice of an absolute monarch, where an act is


arbitrary it is implicit in it that it is unequal both according
to political logic and constitutional law and is therefore
violative of Article 14. and if it affects any matter relating
to employment, it is also violative of Article

16. Articles 14 and 16 strike at arbitrari- ness in State


action and ensure fairness and equality of treatment.''

In another case, Kaflfifcg. v. Union of.. India .

the Supreme Court about the content and reach Of the great
equalising principle enunciated in Article 14. It was held :

•'Article 14 strikes at arbitrariness In


State action and ensures fairness and
equality of treatment* The principle
of reasonableness, which legally as
well as philosophically, is an essential
element of equality or non-arbitrariness
pervades article 14 like a brooding omni-
presence. *'
In other words, Article 14 and 16 checks the executive or
legislative organs of the government in matters relating to
the employment.
2. PJL xsas.ona.bls,
The Supreme Court opined that the classification must;
not be arbitrary but must be rational, that is to say, it must
not only be based on some qualities or characteristics which
are to be found in all the persons grouped together and not
in others who are left out but those qualities or characteristic
must have a reasonable relation to the object of the legis-
lation. In order to pass the test, two conditions must be
fulfilled, namely, (i) that the classification must be

58. A.I.R. 1978, S.C. 597.


181
founded on an intelligible differentia which distinguishes
those that are grouped together from others and (ii) that
differentia must have a rational relation to the object to
59
be achieved by the Act • The differentia which is the
basis of the classification and the object of the Act ere
distinct things and what is necessary is that there must he
a nexus between them. In short, while Article 14 forbids
class discrimination by conferring privileges or imposing liabilities upon persons
arbitrarily selected out of a large number of other persons similarly situated in
relation to the privileges sought to be conferred or the liabilities proposed to be
imposed, it does not forbid classification for

the purpose of legislation, provided such classification is


60
not arbitrary in the sense above - mentioned.
Whenever therefore, there is arbitrariness in State action, whether it be
of the legislature or of the executive or of an 'authority* under Article 12, Article 14
immediately
61
springs into action and strike down such State action.
62
The Supreme Court also observed that minor cldssi-

59. Budhan v. State of Bihar. (1955) 1.3.C.R. 1045(1049);


Hanlf V. State of Bihar, A. 1958 S.C. 731; flagakflJaflBd v* , Union of
India. (1969) 2 S.C.C. 166. Bathmnma v. State of Kerala, A. 1978 S.C. 771
(para. 41).
60. R.K.qarg v. Union of India. (1981) 4 S.C.C. 675,689-90^
61. A lay Has la v. Khalid Mulib Sehravardi. (1981) 1 S.C*C.722
740, 741; See also Air India v. Nargeah MfifiJCga.* (1981)
4 S.C.C. 33 5, 363.
62.General Manager, S.C. Railway. A.V.R.Siddhant 1. 1974(1)
S.C.W.H. 340 at 351; A.I.R/1974 S.C. 1755.
182
fication Is not objectionable. It was observed ;
11 reasonable classification according to some principle
to recognise intelligible inequalities or to avoid or
correct inequality is allowed, but not minor
classifications which create inequality among the
similarly circumstanced members of the same class or
group.''
Therefore classification of service as permanent and temporary
is valid. The very fact that the service of a government
servant is temporary makes him a class apart from those in
permanent service and such government servants cannot
necessarily claim all the advantages which a permanent servant has in the matter
relating to cord it ions of service^*3
Similarly, the State is free to constitute services
into different classes for doing same kind of work. And for
different classes of government servants, different sets of
rules and conditions of service may be provided. To impose
restraints dn the manner of administration was not intended
64
by the Constitution. But when two classes of civil servants
are grouped together irrespective of the method by which they
were recruited there can be no discrimination in the matter of
66 m
further promotion. Therefore, any rule framed under proviso
to Article 309 subsequently with retrospective effect with
the object of validating such promotions by disintegrating

63. Chamnak Lai v. Union of India. 1964 S.C. 1854; (1964) 5


3 • C.R* 190.
64.. Kishori v. Union of India, A.I.R. 1962 S,C*1I39; <3*1?.. Damodar&n v.
State of Kerala, S.L.R. 1974(3,C*)Ti at 78 (para 9).

65.General Manager S.C.Rly v.-A.Y.R.Slddhanti. 1974(1)8.0.ma* 340 at 33 5;


Ramaehandra v. State of Maharashtra, A.I.R. 1974 S.C. 259 at 269, 271.
183
the two classes of government servants who had already
formed one class is also void as offending Articles 14 and 16
66
(D-

One cadre can be split into two cadres. The


classification of judicial service into civil and criminal
67
wings has a rational basis and therefore valid.
Even a State may be divided into different recruit-
ment units. For instance, three tier system exists in State
of Rajasthan in police department. Accordingly, for
promotion upto the cadre of head constable on distrietwise
basis and promotion to the cadres of sub-inspect ors on a
rangewise basis and thereafter promotion on a statewide basis
is provided which is valid division even though at times it
may happen, because of the system, a junior head constable ih
one range may get promotion as officiating sub inspector
while in another range a senior head constable may have to wsjit
for some time. Any disparity in relation to chances of
promotion as between officials belonging to different *

go
recruitment units cannot be termed discriminatory.
Following grounds have not been held to be reasonable and proper in
making classification :

66. state of Mysore v. M.H.Krishna Murthv. A.I.R.1973 S.C.li46,


67. Ramsaran v. D.I.G. of Police. Ajmer. A.I.R. 1964 S.C.1559 (1964) 7 S.C.R.221J
N-V.Krishna Rao v. Govt, of A.P., S.L.R. 1979(3) A.P. 343.

68. State of Kerala v. Krishnan. S.L.R. 1978(1)S.G.499.


184

(a) Where one is discriminated on the ground that he is


69 7C) a political sufferer or due to his
political views..
(b) Where discrimination is affected being mere member
of a political organisation which has not been banned. But classification
based on the requirement of
knowledge of the State language in the case of State service,
71
was held to be valid. But the condition of residence, will
be void, unless imposed by Parliament under Article 16(B)*
Where the methods or sources of recruitment are
different, this Article would not debar the Government from
prescribing different pay-scales for the two classes of
72
employees, though holding the same post. But Article 16(1)
will be violated where equal opportunity for promotion is
73
denied to Government servants holding different posts in the same grade or
integrated grade consisting of recruits from different sources absorbed into one
74
cadre , or recruits
* ^ 75
from the same source.
In a recent case jQf..SlkKlffl v. Surendra Prasad
Sharma , the,Supreme Court opined that classification can be
made but discrimination between the equals is prohibited.

69. Sukhnandan v. State of Bihar. A. 1957 Pat 617.


70. Ravindra v. State A. 1961 All 361; State of M.P. v.
Ramashankar. A. 1983 S.C. 374(para 3, 10).
71. Raghunadha v. State of Orissa. A. 1955 Orissa 113,
72. Mfenon v. State of Rajasthan. V. A. 1968 S-C.81(84); State of Mysore
v. Narslnga Rao. A. 1968 S.C. 349(3 52)
73. Kishori v. U.0.1., A. 1962 S.C.1139; Elect* vf
A 1967, S.C. 1889(1861). innn,1nfy,.
74. Roshan Lai v. A.I.R. 196^
MPT-vvn v. Collector of Customs, (1966) 3 S.C.R. 600*
76*. 1994(2) S.L-R. 685 (S.C.).
185
However, classification can be made if it is based on intelligible
differentia. The Supreme Court held t
''It is well settled that while Article 14 prohibits discrimination
and requires that all persons subjected to any legislation
shall be treated alike, it does not forbid classification for
implementing the right of equality guaranteed by it provided
this classification is based on an intelligible differentia
which distinguishes persons or things that are grouped
together from others left out of the group and that the said
differentia has a rational nexus to the object sought to be
achieved by the said legislation. Of course, the classi-
fication must not be arbitrary but must

be based on some distinct qualities an4


characteristics peculiar to the persons included in the
group and absent from those excluded and those
peculiarities must have a reasonable nexus to the
object proposed to be achieved .... T|ife
emphasis is not only on de-jure equality but also on
de-facto equality.
Article 16 is an instance of Article 14 and therefore
Article 16 must be construed according to the guidance and
soul of Article 14. Yet classification is permitted but
such classification must be made with reference to the objective to be achieved.
77
In Union of India v..Kolill $ the
Supreme Court held that classification must be with the
reference to the objective to be achieved and the Court will
interfere where there is no reasonable basis for the classifica-
tion. The guarantee is also violated where there is ho reasonabl
nexus between the differences. The burdge of showing that
the classification is unreasonable is on the person who

77. A.I.R. 1973 S.C. 811; Jos hi v. Lt (1966)3, g.Q.E


600.
186
challenges it. In other words, equal treatment must be among
equals and unequal treatment may be done away unequals fair
achieving the object of equality in opportunity*
3. Test to determine constitutionality of a provision ?
on the basis of equality L_
The equality clause contained in Article 14 requires
that all persons subjected to any legislation should be
treated alike under like circumstances and conditions* Equals
have to be treated equally and unequals ought not to be
treated equally, while that article forbids class legislation
it does not forbid classification for purposes in implementing
the right of equality guaranteed by it. In order, however, to pass the test of

permissible classification two conditions must be fulfilled, namely, (i) that the

classification must

be founded on an intelligible differentia which distinguishes persons or things that


are grouped together from others left
out of the group and, (ii) that differentia must have
a rational relation to the object sought to be achieved by the statute in question.
While the classification may be

founded on different basis what is necessary is that there


must be a nexus between the basis of classification and thb
78
object of the Act under consideration.
Legislation enacted for the achievement of a
particular object or purpose need not be all embracing.
It Is for the legislature to determine what categories it
would embrace within the scope of legislation?^ ..

78. fiotor General Traders, v. Sfc.Pka. —iU£*, (1984)


1 3.C.C. 222, 229, 230.
79. SflKhtWt v» State of Orissa. (1956)1 . S.C.R. 1004.