ORDER
Mukesh Kumar Gupta, Member (J)
1. The constitutional validity of the provisions of Rule 21 of Railway Servants (Conduct) Rules, 1966, has been questioned in the present O.A. The said rule reads as under:
"2. Restriction regarding marriage: (1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and (2) No Government servant having a spouse living, shall enter into, or contract, a marriage with any person: Provided that the Central Government may permit a Government servant to enter into, or contract, any such marriage as is referred to in Clause (1) or Clause (2), if it is satisfied that: (a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and (b) there are other grounds for so doing. (3) A Government servant who has married or marries a person other than of Indian nationality shall forthwith intimate that fact to the Government."
2. Undisputed facts of the case are as under: Janab Abdul Rahim, a Mohamedan, an Electrical Fitter, in Southern Railway got married with Smt. Rabia Begum in the year 1975, was charge-sheeted vide Memorandum dated 21.3.1995 alleging that he has contracted second marriage with Smt. Safura Bee without the knowledge or prior approval of the Administration. Further, he admitted Safura Bee to Railway Hospital, Mysore, for treatment on 3.8.1994, thus misutilising Railway Hospital facilities to the tune of Rs. 4,085. Based on the departmental inquiry initiated and conducted by the respondents, a penalty of reduction of his pay to the minimum of Rs. 950 per month in the scale of Rs. 950-1500 for a period of 60 months (recurring) was imposed upon him by the Divisional Electrical Engineer, Southern Railway, Mysore, Respondent No. 1 herein, vide order dated 4.2.1997 (Annexure A-8) and which penalty had further been confirmed by the Appellate Authority by rejecting the applicant’s appeal vide memo dated 10.6.1997 (Annexure A-10) and further with the dismissal of Revision Petition vide memo dated 21.6.1999 (Annexure A-11).
3. The applicant has pleaded that since his first wife Smt. Rabia Begum suffered from bad health and her condition deteriorated day by day she forced him to marry for second time. After obtaining permission from his first wife, the applicant married Smt. Safura Bee as per Islamic tradition and custom in the month of March 1993. The applicant’s contention is that he had applied for permission for second marriage vide application dated 3.5.1993 and 11.5.1993 (Annexure A-1) but the respondents did not take any action on the said applications. The matter regarding his second marriage with Smt. Safura Bee came to light when the applicant admitted Smt. Safura Bee to Railway Hospital for treatment on 5.8.1994 declaring Smt. Safura Bee as his wife. A notice dated 9.12.1994 was issued by first respondent calling an explanation from the applicant with regard to his family declaration (Annexure A-2). The applicant submitted his explanation as sought by the memo dated 9.12.1994 vide letter dated 16.12.1994 wherein it was stated that his wife’s correct name is Rabia Begum alias Safura Bee. Due to unconscious and pregnant stage, she had entered her alias name Smt. Safura Bee instead of Rabia Begum at RH/MYS on 5.8.1994 in the declaration of family composition. Both names refers to her. Being not satisfied with the said explanation, a charge memo dated 21.3.1995 was issued. Immediately thereafter, the applicant was placed under suspension on 3.5.1995, which was revoked on 5.5.1995 (Annexure A-4). On 3.11.1995 the applicant addressed a mercy appeal to Divisional Railway Manager, Mysore and pleaded that mercy be shown upon him and the said proceedings issued vide Memorandum dated 21.3.1995 be dropped. The said request was not accepted and the inquiry officer after holding oral inquiry under rules submitted his report dated 22.5.1996 (Annexure A-7) holding the charge against the applicant proved. The applicant was supplied a copy of the said report on 21.8.1996 and he was directed to submit the representation, if any, against the same. In compliance to the said communication, applicant submitted his representation dated 11.9.1996. After examining the inquiry report as well as the representation of the applicant, the disciplinary authority imposed the aforementioned penalty. The applicant in the amended O.A. has sought for the following reliefs:
“(a) To set aside the orders passed by the 1st respondent vide No. Y/E. Misc. con/93/KA dated 4.2.97, 2nd respondent vide No. Y/E. Misc/con/93/ KA dated 10.6.1999 and 3rd respondent vide No. P(A)87/Y/104 dated 21.6.1999, produced at Annexure A7, A9 and A10 respectively.
(b) Direct the respondents to repay the total amount which was reduced along from the applicant's pay scale. . (c) Direct the respondents not to recover Rs. 4,085 from the salary. (d) Direct the respondents to pay the right salary which the applicant is entitled for; (e) Grant such other consequential benefits which the applicant is entitled to; (f) Declare Rule 21 of the Railway Services (Conduct) Rules 1966 as unconstitutional and void,"
4. The respondents have filed their detailed reply and have opposed the claim set out by the applicant. It has been stated in the reply that the inquiry was conducted properly and in accordance with the rules. All reasonable opportunities were afforded to the applicant in the disciplinary proceedings and based on proper assessment of evidence on record the charge was proved. It has been contended that in fact the applicant has admitted the misconduct in the inquiry itself. The Appellate Authority as well as Revisional Authority considered the applicant’s appeal and revision respectively, objectively and after considering the points raised by the applicant, rejected the same. According to the respondents the factum of his marriage for the second time came to the light when the applicant admitted Smt. Safura Bee for medical treatment in the Railway Hospital at Mysore during the month of August 1999 declaring her as his one and only wife. The applicant in response to the letter dated 9.12.1994 submitted that his wife correct name is Rafia Begum @ Safura Bee implying thereby that both the names pertain to one and same person (Annexure R-3).
5. The respondents have denied that the applicant had sought permission in writing to marry a second time under the rules. On the contrary, the applicant pleaded ignorance and admitted that he had not obtained prior permission from the authorities. The applicant had made a false declaration that Rabia Begum and Safura Bee are one and the same person. In declaration, about his family composition as found in official records, he has a son of 19 years and a daughter of 9 years. He had made a false statement in his appeal that his first wife was barren and that they had no issue till date. In fact Smt. Rabiya Begum was admitted to Railway Hospital on 20.10.94 (Annexure R-1). It is at this stage it came to the light that the applicant had two wives and he had admitted Smt. Safura Bee on 4.8.1994 under the false name by concealing the fact. It has been contended that the applicant has chosen to mislead the authorities by furnishing false declaration and later pleading his ignorance about the rules, which is neither just nor tenable. The punishment imposed is adequate compared to the misconduct by the applicant.
6. Subsequently the applicant filed M.A. No. 320/01 seeking amendment of the O.A. and challenging the constitutional validity of Rule 21 of the Railway Services (Conduct) Rules, 1966, which was allowed vide order dated 3.12.2001.
7. Learned Counsel for the applicant has raised the following arguments: (1) The impugned orders passed by the respondents are illegal, bad and arbitrary because the applicant had given two applications to the concerned authorities seeking permission to marry a second wife, but the authorities failed to respond to the said applications. According to the applicant the applications dated 1.5.1993 and 11.5.1993 were made for this purpose but the respondents failed to respond to the same out of apathy and negligence on their part. The applicant cannot be penalised for the same. In the circumstances, the applicant contends that the permission sought deemed to have been accorded. Silence on the part of the respondents lead to only one irresistible inference of deemed permission under Rule 21 of the Rules; (2) the Divisional Electrical Engineer passed the impugned penalty order dated 4.2.1997 as well as the appellate order dated 10.6.1997. As such the independent authority had not applied its mind to the applicant’s appeal. An authority which had passed the impugned penalty order cannot sit in appeal over its own order. Hence there is infraction of principles of natural justice; (3) the respondents have erroneously held that the applicant has lied about his family composition while stating that he had no issues from his first wife. The applicant contends that according to declaration given by him to the authorities he had shown two children mentioned therein, who are adopted children of the applicant. Therefore, the statement of the applicant that he had no issues from the first wife is not a false statement, as erroneously held by the respondents; (4) the penalty imposed is disproportionate to the offence allegedly committed by the applicant. The requirement Rule 21 of the Conduct Rules is a mere technicality since the applicant has a right to marry four wives under his personal laws. Therefore, he contends that he ought not to have been so heavily penalised for such a technical omission; (5) The Rule 21 of the Railway Services (Conduct) Rules, 1966, is ultra vires powers conferred on the President under Article 309 of the Constitution. The applicant’s contention is that since Article 309 is subject to Article 372 as well as Article 25 of the Constitution, the provision of Rule 21 of the Railway Services (Conduct) Rules, 1966, is ultra vires and is liable to be declared void ab initio and unconstitutional. The applicant has also raised a contention that the said Rule 21 is violative of Article 14 of the Constitution of India it being discriminatory and arbitrary.
8. Now we will consider the contentions raised by the applicant one by one. Firstly the applicant’s contention that the impugned orders passed by the respondents are illegal, bad and arbitrary because he had given two applications to the concerned authorities seeking permission to marry a second wife, on the face of it, is an afterthought and it appears that the letter dated 1.5.1993 as well as 11.5.1993 have been prepared subsequently. The applicant has made a detailed appeal on 3.11.1995, wherein he did not make a reference to the facts of the said applications at all. In the said appeal, which has been termed as a ‘mercy appeal,’ by him he had stated “I was not aware of the rules that I should not go for a second marriage. Being a technician I will perform my duty and mind salary to pull this life. Generally all the technical staff of Railway’s is not aware of rules and I am one among them. So far I had never heard of this type of objections.” (emphasis supplied) He want on the state in the next para “In fact if I would have come to know that contracting a second marriage is an offence as per Railway Rules-I would have never thought of contracting a second marriage knowingly if I would have committed this mistake, I would have not taken my second wife to the Railway Hospital, Mysore, for delivery purpose.” (emphasis supplied) In the last, while making a prayer to the authorities, the applicant submitted “Kindly take pity upon me and excuse me for having contracted my second marriage without prior permission from the administration please.” The applicant had thereafter submitted a statutory appeal against the penalty order on 21.3.1997 (Annexure A-9) wherein he again stated that “I have been made a victim of Railway Service (Conduct) Rules. I was made to understand the bigamous marriages are permissible to such Railway servants if such marriage is permissible under the personal law applicable to him and the other party to the marriage. …. But I have failed to take prior sanction from the Government to contract the marriage. I may kindly be given post sanction since I was not aware of the said rule of taking from sanction from the Government before contracting a second marriage.” (emphasis supplied) The applicant also stated in unequivocal terms in the appeal “now I have come to know that if I have applied for sanction to the Government for contracting the second marriage it would have been considered as per Rule 21 (a) of the Railway Services (Conduct) Rules. The only omission I have made was that I have not obtained prior permission from the Government for contracting the second marriage. “From the perusal of the mercy appeal as well as statutory appeal, relevant portion of which has been extracted hereinabove, it would be crystal clear that had the applicant really applied for the permission for contracting the second marriage, as contended, the said fact would have found mentioned in the said mercy appeal as well as statutory appeal, which are quite detailed and analytical. As such the applicant’s plea that he had sought permission vide representations dated 1.5.1993 as well as 11.5.1993 is misconceived and appear to be an afterthought. It appears that Annexure A-1 representation dated 1.5,1993 and 11.5.1993 have been cooked up after the penalty orders were passed against the applicant.
9. Coming to the next submission made by the applicant that the Divisional Electrical Engineer has passed the impugned penalty order dated 4.2.1997 as well as the appellate order’s endorsement dated 10.6.1997, we have carefully perused both the above orders and it is clear from the appellate order dated 10.6.1997 and the communication dated 4.2.1997 was signed by one K. Rajaram. The appellate order also was signed by one K. Rajaram. A perusal of the said appellate order would show that what was communicated by the said communication was the rejection of the applicant’s appeal by the Appellate Authority and it quoted the orders was passed by the Appellate Authority. The said communication cannot mean that the said rejection of the applicant’s appeal was done by K. Rajaram, Divisional Electrical Engineer. It was merely an endorsement. Therefore, the applicant’s contention that the impugned penalty order and the appellate order have been passed by the same official is misconceived and untenable and accordingly this contention is rejected.
10. The applicant’s third contention that the respondents have erroneously held that the applicant made a false statement regarding the composition of his family is also without any merit, for the reason that the applicant’s contention that since he had no issue from the first wife i.e., Smt. Rabia Begum and accordingly it added unhappiness to the couple, which forced him to marry for the second time with Safura Bee is farfetched and afterthought inasmuch as when he admitted in clear terms that he had two children who have been adopted by the applicant. Therefore to state that the respondents have erroneously held that he has made a false statement in his declaration to the concerned authorities is not justified. On the one hand the applicant did state that he had two children adopted by him and on the other hand he stated that because of no children were born out of the alliance which added unhappiness to the couple is not only contradictory but is a mean/devise adopted by the applicant to mislead the authorities as well as this Tribunal.
11. The applicant’s 4th contention that the penalty imposed is disproportionate to the offence, it is well settled law that whenever a penalty is imposed based on material on record, which penalty is to be imposed upon the delinquent official is in the exclusive domain of the Disciplinary Authorities and the Courts/Tribunals cannot interfered with it. The applicant in the present case has not attacked the findings recorded by the Inquiry Officer on merits of the case but has only pleaded technicalities which are untenable and misconceived. As such the penalty imposed by the Disciplinary Authority and so confirmed by the Appellate Authority as well as Revisional Authority, in the present, are based on findings recorded by the Inquiry Officer, which are duly supported by the evidence on record. Therefore, the question regarding quantum of penalty is outside the purview of this Tribunal. Reference may be made to 1989(2) SCC 177, Union of India v. Parma Nanda, para 27, which reads as under:
“….. The jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or Competent Authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a mater exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the Competent Authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.”
(Emphasis supplied).
12. The applicant’s Counsel vehemently contended that Rule 21 of the Railway Services (Conduct) Rules, 1966 is ultra vires the power conferred on the President under Article 309 of the Constitution. Article 309, which is placed under Part XIV of the Constitution under the title of services under the Union and States begins with the words “Subject to the provisions of this Constitution.” The learned Counsel contended that Article 372 of the Constitution is also one of such provision of the Constitution subject to which the said Article 309 has to be read. Article 372 states that “Notwithstanding the repeal of this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority”. The learned Counsel for the applicant contended that Article 372 includes areas of law such as tort, personal law etc. The personal law of Mohammedans is a part of law of this country and nothing contrary to the personal law can form part of the Constitution. In other words if there is a provision of Constitution of India which is in contradiction to the personal law of Mohammedans that part of the Constitution is void and ultra vires. It would be necessary to extract Articles 309 as well as 372 which read as under:
“309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of such Act.”
“372.(1) Notwithstanding the repeal of this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.
(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptions and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modification so made, and any such adaption or modifications shall not be questioned in any Court of law.
(3) Nothing in Clause (2) shall be deemed (a) to empower the President to make any adaptation or modification of any law after the expiration of three years from the commencement of this Constitution; or (b) to prevent any competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause."
13. Learned Counsel also contended that Rule 21 of the Railway, Services Conduct Rules, 1966 is violative of Article 14 of the Constitution of India because it is discriminatory and also arbitrary besides being violative of Article 25 of the Constitution. In support of these contention, learned Counsel has referred to AIR 1961 SC 1402 (para 33), Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. In the said judgment Khadims of the tomb of Khawaja Moin-ud-din Chisti of Ajmer challenged the Durgah Khawaja Sahib Act on the ground that the provisions specified in the said petition are ultra vires and they claimed a direction or appropriate writ or order restraining the appellant i.e., Durga Committee and the Nasseem of the Committee from enforcing any of the said provisions. Hon’ble Supreme Court considered the argument about the infringement of the fundamental right to freedom of religion and in that context, the Hon’ble Supreme Court held as under:
“33. We will first take the argument about the infringement of the fundamental right to freedom of religion. Articles 25 and 26 together safeguard the citizen’s right to freedom of religion. Under Article 25(1), subject to public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and their right freely to profess, practice and propagate religion. This freedom guarantees to every citizen not only the right to entertain such religious beliefs as may appeal to his conscience but also affords him the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. Article 26 provides that subject to public order, morality and health every religious denomination or any action thereof shall have the right–
(a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; (d) to administer such property in accordance with law.
The four clauses of this article constitute the fundamental freedom guaranteed to every religious denomination or any section thereof to manage its own affairs. It is entitled to establish institutions for religious purposes, it is entitled to manage its own affairs in the matters of religion, it is entitled to own and acquire movable and immovable property and to administer such properly in accordance with law. What the expression “religious denomination” means has been considered by this Court in Commr., Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swaminar, 1954 CSR 1005: AIR 1954 SC 282. Mukherjea, J., as he then was, who spoke for the Court, has quoted with approval the dictionary meaning of the word ‘denomination’ which says that a ‘denomination’ is ‘a collection in individuals classed together under the same name, a religious sect or body having a common faith and organisation and designated by a distinctive name.” The learned Judge has added that Article 25 contemplates not merely a religious denomination but also a section thereof. Dealing with the questions as to what are the matters of religion, the learned Judge observed that the word ‘religion’ has not been defined in the Constitution, and it is a term which is hardly susceptible of any rigid definition. Religion, according to him, is a matter of faith with individuals or communities and it is not necessarily theistic. It undoubtedly has its basis in a system of pleas or doctrines which are regarded by those who profess that religion as conductive to their spiritual well-being, but it is not correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress (pp. 1023, 1024) (of SCR): (p. 290 of AIR). Dealing with the same topic, though in another context, in Venkataramana Devaru v. State of Mysore, 1958 SCR 895: (AIR 1958 SC 255), Venkatarama Aiyar, J. spoke for the Court in the same vein and observed that it was settled that matters of religion in Article 26(b) include even practices which are regarded by the community as part of its religion, and in support of this statement the learned Judge referred to the observations of Mukherjea, J., which we have already cited. Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part, otherwise even purely secular practices which are not an essential or an integral part of religion are not to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article. Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
14. Learned Counsel from the said judgment tried to draw our attention by stating that practices which are regarded by the community as part of its religion, as its essential and integral part includes right to marry to 4 women, which right has been conferred by the holy Koran. In this context learned Counsel for the applicant quoted Sorah IV and contended from para 3 of the said sorah so translated by Mohammed Maradque Pickthal which states “and if ye fear that ye will not deal fairly by the orphans, marry of the women, who seem good to you, two or three or four, and if ye fear that ye cannot do justice (to so many) then one (only) or (the captives) that your right hands possess. Thus it is more likely that ye will not do injustice.” From this part of the holy Koran learned Counsel contended that a Muslim can marry two or three or four women. We do not wish to enter into this controversy as to whether the interpretation so placed by the learned Counsel is correct or not for the simple reason because neither we are experts to read the said holy Koran nor the legality of the said holy book fall for our consideration in the present case. Suffice it to say that whether a Muslim has a right to marry to 4 women or not is not the question raised in the, present case. The sole question raised in the present case is whether Rule 21 of the Railway Services (Conduct) Rules, 1966 is ultra vires the power conferred on the President under Article 309 or whether the said rule violates the mandate of Article 25 of the Constitution of not. We will deal with this aspect hereinafter.
15. Learned Counsel also drew our attention to AIR 1962 SC 853 particularly para 65, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay. The said para 65 reads as under:
“65. Coming back to the facts of the present petition, the position of the Dai-ul-Mutlaq, is an essential part of the creed of the Dawoodi Bohra sect. Faith in his spiritual mission and in the efficacy of his ministration is one of the bonds that hold the community together as a unit. The power of ex-communication is vested in him for the purpose of enforcing discipline and keep the denomination together as an entity. The purity of the fellowship is secured by the removal of persons who had rendered themselves unfit and unsuitable for membership of the sect. The power of ex-communication for the purpose of ensuring the preservation of the community, has therefore a prime significance in the religious life of every member of the group. A legislation which penalises this power even when exercised for the purpose above indicated cannot be sustained as a measure of social welfare or social reform without eviserating the guarantee under Article 25(1) and rendering the protection illusory.”
A perusal of the said judgment would show that Dai-ul-Mutlaq is essential part of creed of Dawoodi Bohra sect and their power to ex-communicate was an issue in that case. A law interfering with the religious determination to ex-communicate its members was the subject matter before the Hon’ble Supreme Court. Even the para 65 quoted by the learned Counsel deals with the power of ex-communication which has to be read as an essential part of the said creed of Dawoodi Bohra sect. The Hon’ble Constitution Bench held that a legislation which penalises this power and its exercises for the purpose cannot be sustained as a measure of social welfare or social reform without eviserating the guarantee under Article 25 and rendering the protection illusory, is not the case and the issue raised in the present O.A. Hence the said judgment is of no assistance to the applicant in the present case.
16. Learned Counsel also cited AIR 1963 SC 1638, Tilkayat Shri Govindlalji Maharaj etc., v. State of RajaSthan and Ors., where a reference is made to the decision of AIR 1961 SC 1302 as noted hereinabove. In the said judgment of Tilkayat Shri Gowindlalji the Hon’ble Supreme Court after making a reference to the Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Tirtha Swamiar, AIR 1954 SC 282, which deal with the word ‘religion’ used under Article 25(1) held that whether a certain practice is religious practice or not as well as the question as to whether an affair in question is an affair in matter of religion or not may present difficulties because sometime practices, religious and secular are inexplicably mixes up. Article 25(1) protects the citizen’s fundamental right to freedom of conscience and the right to freely profess, practice and propagate religion. The protection given to this right is however not absolute and it is subject to public order, morality and health as Article 25(1) itself denotes. Hon’ble Supreme Court in AIR 1954 SC 282 had clearly stated that the religion “is a matter of faith with individuals and communities and it is not necessarily theistic. It undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it is not correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress.” From the above observation of the Supreme Court, learned Counsel for the applicant stated that when matters like food and dress, which are regarded as integral part of the religion, right to marry four women is also integral part of Mohammedan religion. We find that such arguments are all far fetched in nature. Under no circumstance right to marry four women can be stated and held to be an integral part of religion. Merely because a particular faith or religion like Mohammedan may permit a person to marry four wives would not in itself become an integral part of that religion. This can neither be a ritual nor observance, ceremonies and modes of worship, which is the basic thrust of the aforesaid judgment.
17. Learned Counsel for the applicant also invited our attention to AIR 1972 SC 1586, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. v. The State of Tamil Nadu, particularly para 12, which reads as under:
12. This Court in Sardar Syedna Taker Safiuddin Saheb v. State of Bombay, (1962) Supp. 2 SCR 496=(AIR 1962 SC 853) has summarised the position in law as follows (pages 531 and 5342).
‘The content of Articles 25 and 26 of the Constitution came up for consideration
before this Court in the Commr. Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swaminar, 1954. v. Sri Lakshmindra Thirtha Swamiar, 1954 SCR 1005=(AIR 1954 SC 282); Jagannath Ramanuj Das v. State of Orissa 1954
SCR 1046=(AIR 1954 SC 400); 1958 SCR 895=(AIR 1958 SC 255) Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR 383=(AIR 1961 SC 1402) and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.” (Emphasis supplied).
A perusal of this judgment would show that this judgment basically deals with scope of Articles 25 and 26 of the Constitution of India and basically refers to its earlier judgment reported in AIR 1962 SC 853.
18. None of these judgments cited by the learned Counsel for the applicant have any relevance in the facts and circumstances of the present. The marriage, in no circumstances, which is stated as a “contract” under the Muslim Law, can form part of the ‘religious practice’ which is the basic test laid down in the aforementioned cases.
19. Learned Counsel for the applicant argued with vehemence that Rule 21 is violative of Articles 14 and 21 of the Constitution and, therefore, it is liable to be struck down. Article 14 of the Constitution reads as under:
“14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Similarly Article 21 of the Constitution of India reads as under:
“21. No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Article 14 of the Constitution has been considered by the Hon’ble Supreme Court in a catena of cases. It is now well established that while Article 14 forbids class legislation it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of proper classification two conditions must be fulfilled viz. (i) that the classification must be founded on intelligible differentia which distinguish persons or things that are grouped together from other left out of the group and (ii) that the/differentia must have rationale relation to the object sought to be achieved by the statute in question. The classification may be founded on different basis such as geographical, or according to objects or occupation of the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is well settled proposition of law that when validity of the rule is impeached, presumption has to be raised that the said rule is valid unless it is proved otherwise.
At this stage we may refer to the observations made by the Hon’ble Supreme Court in Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendulkar and Ors., 1959 SCR 279 at page. 297, which reads as under:
“The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish–
(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. (d) that the legislature is free to recognise degrees of harm and may confine, its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the fact of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. The above principles will have to be constantly borne in mind by the Court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws." (Emphasis supplied).
20. Though Rule 21 of the Railway Services (Conduct) Rules, 1966, has not been question before any Court and none of the judgment on the said aspect have been brought to our notice, but we find that the provisions of CCS (Conduct) Rules, which is para materia to Railway Services (Conduct) Rules, 1966, had been considered by the Delhi High Court in 1976(1) SLR 350, M.S. Mann v. Union of India and Others as well as ATR 1986(2) Madras 526, V.M. Taharullah v. Government of India. The Delhi High Court held that Rule 21 of CCS (Conduct) Rules, 1964, prohibiting second marriage is not ultra vires Article 309 and the said rule has been made in furtherance of a valid law viz. the Hindu Marriage Act, 1955. The Hon’ble Court stated: “the employer can lay down conditions on which he would employ a person, viz., that the employee will have only one living spouse but if a second marriage was intended permission has to be obtained before hand. The rule cannot be said to be offend the phrase “conditions of service” because an employer is at liberty to have such reasonable condition as he thinks fit on which he would give employment and retain people in employment particularly when the condition is in accordance with law of the land. A second marriage while the first is subsisting is no longer permitted by the law of the land affecting Hindus as defined by the Hindu Marriage Act, 1955. The validity of this Act is not questioned and so, the rule must be held to be in support of a valid law and not ultra vires any provision of the Act.” Similarly in 1986(2) ATR 526, V.M. Taharullah, a Mailman in the RMS Office, Coimbatore challenged the validity of the same Rule 21 on the ground that the rights of persons belonging to Muslim Community under their personal law permits to marry person to four wives and the Rule 21 of the CCS (Conduct) Rules, which prohibits or restricts or put a fetter of that right to officials belonging to Muslims available under their personal law is ultra vires. A Coordinate Bench of this Tribunal held that the said contention is not valid. The Coordinate Bench observed that–
“Rule 21 in our view should be read as a whole and we are not inclined to concur
with the submissions of the Counsel for the applicant that we should read the Rule, excluding the proviso. It is no doubt true that if the proviso were not there Sub-rules (1) or (2) of Rule 21 is likely to affect the Personal Law of Members belonging to
the Muslim Community, under which they can marry more than one wife. But the
proviso actually safeguards their interest. It merely provides a restriction or a fetter
on that right available to them under the Personal Law by saying that before they
contract a second marriage, they must get the permission of the Government. This
proviso which imposes such a restriction should be taken to be a reasonable restriction imposed in public interest and the said provision cannot be said to take
away the right under the Personal Law of the persons belonging to Muslim
Community with reference to Personal Law. Admittedly, the applicant is a
Government servant and he is governed by certain conduct rules of the Constitution of India as being applicable to other Government Servants. Therefore there is
nothing wrong in the Government framing a Rule saying that before the Government servant marries a second time, when the first wife is alive, they must take the
permission of the Government even if the Personal Law of the Government
servants permits him to have more than one wife.” (Emphasis supplied).
From the above it is clear that Rule 21 of the Railway Services (Conduct) Rules, only provides a restriction, which should be taken as a reasonable restriction imposed in public interest and cannot be said to take away the right available under the personal law of the persons belonging to Muslim Community. Once a person joins Government service he is bound by the terms and conditions so imposed by the Government. Before joining the service one is liable to make a declaration that he abides by the provisions of Constitution as well as would be governed by the terms and conditions and the rules so applicable. The applicant having once accepted that said condition cannot be allowed to resile from the said stand and challenge those very provisions of the rules under which he has been appointed. Rule 21 of the Railway Services (Conduct) Rules, 1966, only regulate the method of contracting a second marriage. Sub-rule 2, in our opinion, permits to marry a second time having the first spouse alive under certain conditions like when the personal law applicable to the Government servant so provides or there are other good grounds. As such the personal law of the Government servant has been taken care of under the said Rule 21(2) of the Railway Services (Conduct) Rules, 1966.
21. Recently the Hon’ble Supreme Court in 2002 AIR SCW 4146 N. Adithayan v. The Travancore Devaswom Board and Ors., again considered the right of the State to impose restriction based on grounds of public order, health and morality. In para 16 of the said judgment the Hon’ble Supreme Court stated that the provisions under Articles 25 and 26 extend guarantee for rituals, ceremonies and modes of worship which are integral part of religion and as to what really constitutes an essential part of the religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as part of religion. As we have considered all these aspects in detail it cannot be said that to marry four times is an essential part of religion or religious practice even amongst Mohammedans. Merely because a person is permitted to have four wives, it would not be constituted as an “essential” part of the religion.
22. In view of the discussion and the findings recorded herein above we hold:
(a) That Rule 21 of the Railway Services (Conduct) Rules, 1966, is a valid and just piece of legislation; (b) The impugned orders dated 4.2.1997, 10.6.1997 and 21.6.1999 Annexures A-8, A-10 and A-11 respectively are based on sufficient material and deserves no interference by this Tribunal. Accordingly the O.A. is bereft or any merit and the same is dismissed. No costs.