D.V.R.S.G. Dattatreyulu, Member (J)
1. The applicant in this case prays for the following relief :-
“To quash the impugned order No. 11002/RD/Pers-6 dated 15.6.1998 passed by the 2nd respondent and to pass a consequential order directing the respondents to pass suitable orders for extending the applicant’s service (deemed extension) by two years from 1.7.1988 to 30.6.1990 and to pay the salary, allowances due thereon and other monetary benefits to the applicant.”
FACTS OF THE CASE
2. The applicant joined the respondent organization on 9.12.1954. He retired from service on attaining the age of 58 years on 30.6.1988 while he was in the post of Scientist ‘D’ category. By the Office Memorandum No. 7 (3)/85-D (R & D) dated 24.12.1985 the superannuation of Scientist and Technical Personnel (Gazetted) was enhanced from 58 to 60years. But there was a proviso to the effect that the said enhancement was applicable only to those people who had been promoted to the grades they were holding at the time of attaining the age of 58 years within the preceding 5 years.
3. The said proviso was challenged by one Sri O.P. Gupta and few others before the Central Administrative Tribunal and the Tribunal had quashed the same. That order was upheld by the Apex Court in Civil Appeal No. 1488 of 1990. On the basis of the said judgment 12 retired persons in the Defence Research and Development Organization (DRDO for short) were reinstated in service for the remaining part of the age and they were paid full allowances. The applicant filed representation dated 13.5.1998 requesting to extend the same benefit to him also, but the respondent by letter dated 15.6.1998 has not accepted the said request stating that the benefit has to be extended only to those applicants. As the present applicant is not a party to the case he was not entitled the benefit. Hence this application.
The impugned order is at Annexure A. 5.
4. Reply is filed on behalf of the respondents stating that it is no doubt that the case of O.P. Gupta was decided in favour of the said applicant therein and striking the proviso, the reply also stated the various service conditions of the Scientists. It is stated that how the method of promotion is given by assessing the suitability of the candidates. It is stated in paragraph 6 that the retirement age is enhanced to 60 years for those in the lower grades provided they have been promoted to the grade they are holding at the time of attaining the age of 58 years within the preceding five years. It is stated that as per Annexure Rule 2 conditions was also laid down how the promotion has to be given. It is stated that by the time of the issue of the O.M. dated 24.12.1985 promotions up to the level of Scientists C were only got covered. Since the applicant was not having the requisite five years service he was not given the promotion. It is also stated that since the applicant challenged the said proviso after his retirement the application is barred by limitation. It is also stated that since he has hot worked in the appropriate post for the remaining period he is not entitled for the salary on the principle of no work no pay. It is stated that the law declared by the Hon’ble Supreme Court is binding precedent under Article 14, but the ratio of the judgment and not
the relief. Therefore, the applicant is not entitled to the benefits. The reply has denied all the allegations made parawise, narrated the various judgments delivered in that case and slated that the application has to be dismissed.
5. Annexures A. 1 to A. 5 are marked for the applicant and Annexures R. I to R. V are marked for the respondents.
6. We have heard the learned Counsel for the applicant as well as the respondents. It is the contention on behalf of the applicant that since the proviso was struck down as violalive of the equality clause in O.P. Gupta’s case, it is to be taken that the proviso is not in existence and the extension of superannuation age should be given to the applicant. It is also the contention for the applicant that the various judgments relied on by the respondents are not applicable since the issue now raised is not considered in those judgments. It is the contention on behalf of the respondents that the application is barred by limitation since the applicant has not questioned the O.M. dated 24.12.1985 earlier before his retirement and the other contention is on the basis of the other judgments on this ground the applicant’s relief cannot be granted.
7. The following are the judgments relied on by the respondents :-
1. O.A. No. 705/2000 decided by C.A.T. Hyderabad on 26.6.2000
2. O.A. No. 168/98 decided by C.A.T. Hyderabad on 17.8.1999
3. O.A. No. 2703/97 decided by Principal Bench of C.A.T. New Delhi on 20.11.1997
4. O.A. No. 782/97 decided by C.A.T. Principal Bench, New Delhi on 10.2.1998
8. The points that arise for determination in this case are :
1. Can the stand of the respondent in the impugned order dated 15.6.1998 stating that the orders of the Supreme Court have to be implemented only to those applicants who approached the Tribunal and as the applicant is not a party to those cases, the benefit of the said judgment cannot accrue to him. Is this sustainable in law ?
2. Have the judgments relied on by the respondents considered the above point that is raised now in this O.A. or they were considered on different aspect and decisions delivered ?
3. What is the effect of striking down the proviso as violative of Fundamental Rights ?
4. To what relief the applicant is entitled to ?
ANALYSIS AND REASONING
9. The fact that the applicant was working with the respondent and he retired on attaining the age of 58 years on 30.6.1988 while working in the post of Scientist D category is not in dispute. Actually there is no dispute in the facts asserted by the applicant regarding the service particulars of the applicant. The judgments of the Apex Court in O.P. Gupta is filed by the applicant as Annexure A, 3 at page 10 of the application. It is to be seen from this that not only the case of O.P. Gupta but the following are also disposed of :-
“Civil Appeal Nos. 76 of 1992 and 2498-99 of 1992 and Civil Appeal No. 14750 of 1996 (arising out of S.L.P. (C) No. 4528 of 1993). It is stated in this order, “As the common question is involved for decision in all these appeals,
common order is passed.”
The contention in that case is with regard to the Office Memorandum dated 24.12.1985 which enhanced the age of superannuation of all scientific and technical personnel from 58 years to 60 years except in the case of a few scientists like the respondents in that appeals (emphasis supplied). Their Lordships have considered the proviso dealing with the condition of being promoted to the Grades which they were holding by the time they attained the age of 58 years within the preceding five years. We consider it necessary to reproduce the entire reasoning given by the Apex Court which reads as follows :-
“The respondents challenged the validity of the “above quoted “proviso” which denied to them and some others like them the benefit of enhancement of the age of superannuation without any rational basis.” The Tribunal has accepted the challenge made by the respondents and struck down the above proviso in the Office Memorandum dated 24th December, 1985 as discriminatory. Hence these appeals by special leave.
There is nothing shown by the Union of India either before the Tribunal or before us, to justify the making of such an exception which results in denial of the benefit of enhancement of age only to some scientists like the present respondents. The basis indicated in the proviso for making the classification has no rational nexus with the object of enhancing the age of superannuation. The proviso is clearly discriminatory and, therefore, violates Article 14 and 16 of the Constitution as rightly held by the Tribunal. We do not find any ground to take a different view.
The appeals are, therefore, dismissed.”
10. The analysis of the above judgment of the Apex Court would go to show that the validity of the proviso was challenged not only by the applicants therein but it is also stated therein that the proviso denied to the applicants and some others like them, the benefit of enhancement of the age of superannuation. It is stated to be without any rational basis. Therefore, the contention of the applicants therein is that the proviso not only denied to them, the benefit of the age of superannuation but some others like them also and that there is no rational basis for the said proviso. Originally the Tribunal struck down the said proviso as discriminatory. Now that happened to be the subject matter in the Apex Court. The Apex Court has pointed out as seen in the above paragraph that the Govt. of India is not able to show any justifying ground making such exception which resulted in denial of the benefit of enhancement of the age to some scientists like the applicants therein. It was held that the classification has no rational nexus with the object of enhancing the age of superannuation. The Apex Court finally held that there is clear discrimination in the said memorandum violating Articles 14 and 16 of the Constitution of India and held that the orders of the Tribunal striking down the said proviso is correct and dismissed the appeals filed by the Government. This judgment is dated 20.11.1996.
11. The next channel of investigation in order to decide the present case is, it is not the question of any benefits accruing out of this judgment but it is the question what is the result of the judgment when the said proviso is struck down.
12. The next distinction here is, it is not the law laid down by the Hon’ble Supreme Court with regard to giving finding about the legislation passed by the Slate and holding what type of benefits should accrue by the legislation vis-a-vis the policy of the Government consistent with the Fundamental rights but this is the judgment delivered where the
Constitutionality of the rule is considered vis-a-vis the Fundamental Right guaranteed under Articles 14 and 16 under Part III of the Constitution of India. In other words, the illegality of the proviso is decided on the anvil of the Fundamental Rights guaranteed under Articles 14 and 16 of the Constitution. It is necessary here to refer to Article 13 of the Constitution of India. The relevant Clause is (2) of Article 13 which reads as follows :-
“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention be void.”
The above Article goes to show that there is complete embargo placed on the State and there is a mandatory direction to the State not to make any law which takes away the rights conferred under Part III of the Constitution or which abridges the Fundamental Rights. The second clause in the said Article declares that if the State makes any law which contravenes the above clause, the said law is void.
13. The rule made governing the service conditions of the applicant by the respondents is the rule made under the Rule making power of the instrumentalities of the state. Therefore, is the rule is found to be ultra vires of the Fundamental rights guaranteed under Part III under Articles 14 and 16 of the Constitution of India, it was held by the Apex Court that the striking down of the said proviso is correct by the Tribunal.
14. In order to appreciate the points involved for further discussion, it is necessary to go into the legal aspect, when once the proviso is struck down as affecting Articles 14 and 16, it must be meant to say that the said law is void as declared under Clause (2) of Article 13 of the Constitution of India. That is, the said proviso has to be deemed to be void. This question what is meant by void is elaborately considered in the judgment of the Kerala High Court as Lakshmi v. Narayanaswami, AIR 1963 Kerala 330. This question is considered in this judgment regarding the tenancy laws of the Kerala and deal with the Malabar Tenancy Act. But the legal implications of what is meant by void under Clause (2) of Article 13 is thoroughly discussed. We consider it absolutely necessary to reproduce the entire discussion that was considered in the judgment which reads as follows :-
“24. The meaning of the word “void” is stated in Black’s Law Dictionary as follows :-
“null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid”
24 (a) Coolye in his “Constitutional Limitations” 8th Edition, Vol. I at page 832, dealing with “Consequences if a statute is void” says :
“When a statute is adjudged to be unconstitutional, it is as if it had never been….. And what is true of an act void into to is true also as to any part of an act which is found to be unconstitutional and which consequently is to be regarded as having never, at any time, been possessed of any legal force.”
(25) In Rottchaefar on constitutional law it is stated at page 34:
“The legal status of a legislative provision in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional results. That theory implies that the legislative provisions never had legal force as applied to cases
within that clause.”
(26) In Wilson constitutional law at page 89 it is stated :
“A judicial declaration of the unconstitutionality of a statute neither annuls or repeals the statute but has the effect of ignoring or disregarding it so far as the determination of the rights of private parties is concerned. The Courts generally say that the effect of an unconstitutional statute is nothing. It is as though it had never been passed….”
(27) "Willoughby on constitution of the United States" Second Edition, Volume I page 10 says: "The Court does not annul or repeal the statute if it finds it in conflict with the constitution. It simply refuses to recognise it and determines rights of the parties just as if such statute had no application...." I have referred only to such of the passages from the leading texi books, which have found approval at the hands of their Lordships of the Supreme Court. (28) In Statutory Construction by Crawford, at page 182 it is stated : "Of Course, if the amendatory statute is wholly void, the slatute sought to be amended is not affected but remains in force. It is as inoperative as if it had never been enacted, or the act sought to be amended is, at least, reinstated in its effectiveness upon the established invalidity of the amendment."
(29) The earliest decision of the Supreme Court is the one in Keshavan v. State of Bombay, AIR 1951 SC 128. In that case, the appellant before the Supreme Court was prosecuted for an offence punishable under Section 18 (i) of the Press (Emergency Powers) Act, 1931. During the pendency of the prosecution, the Constitution of India came into force with effect from 26.1.1950 and in consequence the appellant raised a contention that Section 18 and certain other sections of the Press (Emergency Powers) Act, 1931 were ultra vires, and void in view of Article 19(i)(a) read with Article 13.
(30) The Bombay High Court took the view that the word ‘void’ was used in Article 13(i) in the sense of ‘Repeal’ of that therefore, the provisions of Section 6 of the General Clauses Act were attracted. In this view, the High Court held that the proceedings initiated under the 1931 Act and which were pending on the date of the commencement of the constitution were not affected, even if the 1931 Act was inconsistent with the fundamental rights guaranteed under Article 19(i)(a) and has become void under Article 13(i) after 26.1.1950.
(31) This view of the High Court was challenged in appeal before their Lordships of the Supreme Court. Before the Supreme Court it will be seen that the Counsel for the appellant did not think it necessary to take up the position that pre-Constitution laws, inconsistent with the fundamental rights became void ab initio, in that all past and closed transactions can also be reopened. But the contention appears to have been that on and from 26.1.1950 such inconsistent laws which became void under Article 13(i) cannot be looked into for any purpose. Mr. Justice Das, as he then was, expressing the majority view, observes at p. 130:
“What Article 13(1) provides is that all existing laws which clash with the
exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void, as the fundamental rights became operative only on and from the date of the Constitution, the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow therefore, that Article 13(1) can have no retrospective effect but is wholly prospective in operation.
After this first point is noted, it should further be seen that Article 13(1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency, they are not valid for all persons, but they are valid only to the extent of they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitution, no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the Statute book…”
The learned Judge also later on indicates that the view of the High Court that the expression ‘void’ in Article 13(l) is used in the sense of ‘repeal’ cannot be accepted. On the other hand, the learned Judge’s view is that the effect of Article 13(1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. Ultimately, the learned Judge agreed, though for different reasons, with the conclusion arrived at by the High Court that in as much as Article 13(1) is not retrospective, proceedings commenced under the 1931 Act can be continued. Mr. Justice Mahajan, in a separate, but concurrent judgment discusses again the effect of a statute being held 5 to be void under Article 13(1). At page 136 the learned Judge observes :
“The expression ‘void’ has no larger effect on the Statute so declared than the word ‘repeal’. The expression ‘repeal’ according to common law rule obliterates a Statute completely as if it had never passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are contained in the Interpretation Act, 1889 or in the General Clauses Act, 1897; while a provision in a Statute that with effect from a particular date an existing law would be void to the extent of the repugnancy has no such retrospective operation and cannot affect pending prosecutions or actions taken under such laws.”
After discussing the contention of the appellant’s Counsel that the expression ‘void’ in its widest sense means that the law is declared void or void ab initio and holding that such a contention cannot be accepted in respect of laws existing on 26.1.1950 and which were declared void by Article 13(1) the learned Judge observes at p. 138 as follows :
“Reference was also made to the rule of construction laid down by the American Courts, in respect of statutes declared void because of their being repugnant to the Constitution of the United States of America. It is obvious that if a Statute has been enacted and is repugnant to the Constitution, the Statute is void since its very birth and anything done under it is also void and illegal. The Courts in America have followed the logical result of this rule and
even convictions made under such an unconstitutional Statute have been set aside by issuing appropriate writs. If a statute is void from its very birth, then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional, according to the Government of India Act, 1935. Of course, if any law is made after 26.1.1950 which is repugnant to the Constitution, then the same rule will have to be followed by Courts in India as is followed in America and even convictions made under such an unconstitutional law will have to be set aside by resort to exercise of powers given to the Court by the Constitution.
32. The observations above extracted, if I may say so with great respect, in my view, directly deal with a situation arising under Article 13(2) in respect of what I may call the post constitution enactment. It is the view of the learned Judges that the rule of construction laid down by the American Courts in respect of such statutes declared void will have to be followed by Courts in India if any law is made after 26.1.1950 which is repugnant to the Constitution. That is according to the learned Judge, such post-Constitution statutes, which are repugnant to the fundamental rights guaranteed under the Constitution, must be considered to be void from its birth and anything done under it should also be considered to be void.
33. Though their Lordships of the Supreme Court had only to deal with the position under Article 13(1) nevertheless as I have indicated above, there are weighty observations in the said judgment as to what the position will be under Article 13(2) also,
34. In Saghir Ahmed v. State of U.P., AIR 1954 SC 728 the learned Judges were considering a question as to whether a post-Constitution enactment which infringed the fundamental right guaranteed under Part III on the date when it was passed can be saved by a subsequent amendment of the Constitution, particularly with reference to fundamental rights.
35. The Supreme Court was of the view that the validity of the Act will have to be judged by considering as to whether it violates the fundamental rights guaranteed to the party therein under Article 19( 1 )(g) of the Constitution, on the date when the Act was passed. The statute, in that case, which came in for scrutiny, was a post-Constitution one. At page 739 Mr. Justice Mukherjea speaking for the Court sums up the position as follows :-
“The amendment of the Constitution, which came later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed. As Professor cooley has stated in his work on Constitutional Limitations, Vide Vol. I, page 384 notes, “a statute void for unconsti-tutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted”.
We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under Article 19(l)(g) of the Constitution and is not shown to be protected by Clause (6) of the Article as it stood at the time of the enactment must be held to be void under Article 13(2) of the Constitution.
36. It will be seen from the above extract that the Supreme Court approves of the statement of Professor Cooley that the statute which is void for unconstitutionally is a dead statute.
37. The question of the effect of striking down Section 13(b) of the Bombay Prohibition Act, Bombay Act 25 of 1949, by the Supreme Court in its decision in State of Bombay v. F.N. Balsara, AIR 1951 SC 318 came.up for consideration before their Lordships of the Supreme Court in Behram Khurshid v. State of Bombay, AIR 1955 SC 123. In the first instance Bhagwati, Jagannadhadas and Venkatarama lyer, JJ, dealt with the matter and as the learned Judges could not reach a unanimous decision and expressed different and divergent opinions, they granted an application for review of their judgment and subsequently referred the question to a Constitution Bench. The question that was referred related to the effect of declaration by the Supreme Court that clause (b) of Section 13 of the Bombay Prohibition Act is void under Article 13(1) of the Constitution.
38. The matter came before the Constitution Bench consisting of Mahajan, C. J., B.K. Mukherjea, S.R. Das, Bose and Ghulam Hassan, JJ. The majority opinion was delivered by his Lordship Mahajan, C. J. No doubt, Mr. Justice S.R. Das as he then was, did not agree with the majority view.
39. The learned Chief Justice after referring in brief to the divergent views expressed in the first instance by the three learned Judges, adverts to the fact that in AIR 1951 SC 318 though the Constitutional validity of the Bombay Prohibition Act (Act 25 of 1949) was challenged ultimately that attack substantially failed and the Act was maintained with the exception of a few provisions that were declared invalid. One of the provisions declared invalid was Clause (b) of Section 13 of the Bombay Prohibition Act. The learned Chief Justice poses the problem for consideration as follows :
“The problem now raised is : what is the effect of this partial declaration of the invalidity of Section 13(b) of the case of a citizen prosecuted under “Section 66 (b) for committing a breach of the provisions of the section after the coming into force of the Constitution. Our opinion on this question is that the effect of the declaration in AIR 1951 SC 318, that Clause (b) of Section 13 of the Bombay Prohibition Act is void Article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, is to render part of Section 13 (b) of the Bombay Prohibition Act inoperative, in ineffectual and thus unenforceable. The part of the section which has been declared void has no legal force so far as citizens are concerned and it cannot be recognised as valid law for determining the rights of citizens.”
The learned Chief Justice also states in the latter part of the judgment that no notice at all should be taken of Section 13(b) of the Bombay Prohibition Act as it has been struck down as having no legal effect. The learned Chief Justice again considers the meaning to be given to the expression ‘voic’ occuring in Article 13( 1). In this connection, the learned Chief Justice observes at p. 145.
“The meaning to be given to the expression ‘void’ in Article 13( 1) is no longer ‘res integra’. It stands concluded by the majority decision in AIR 1951 SC
128. The minority view there was that the word ‘void’ had the same meaning as ‘repeal’ and therefore a statute which came into clash with fundamental rights stood obliterated from the statute book altogether, and that such a statute was void ‘ab initio’. The majority however held that the word ‘void’ in Article 13( 1) so far as existing laws were concerned, could not be held to obliterate them from the statute book and could not make such laws void altogether, because in its opinion, Article 13 had not been given any retrospective effect. The majority however held that after the coming into force of the Constitution, the effect of Article 13( 1) on such repugnant laws was that it ‘nulligied’ them, and made them ineffectual and nugatory and devoid of any legal force or binding effect.
It was further pointed out in one of the judgments representing the majority view, that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth, has no application to cases concerning obligations incurred or rights accrued in accordance with an existing law that was constitutional in its inception, but that if any law was made after the 26th January, 1950 which was repugnant to the constitution, then the same rule shall have to be followed in India as followed in America. The result therefore, of this pronouncement is that the part of the section of an existing law which is unconstitutional is not law, and is null and void. For determining the rights and obligations of citizens the part declared void should be notionally taken to be obliterated from the section for all intents and purposes, though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to 26th January, 1950, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution. Thus, in this situation, there was no scope for introducing terms like ‘relatively void’ coined by American Judges in construing a constitution which is not drawn up in similar language and the implication of which are not quite familiar in this country.”
41. The learned Chief Justice also expressed disagreement with the view ex-pressed by Mr. Justice Venkatarama lyer, prior to the granting of the review, that a declaration of unconslitutionality brought about the lack of legislative power stands on a different footing from a declaration of unconstitutionally brought about by reason of abridgment of fundamental rights. The learned Chief Justice expresses himself in this connection at page 145 as follows :
We think that it is not a correct proposition that constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the law-making power of State is restricted by a written fundamental law, then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity.
Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent two aspects of want of legislative power. The legislative power of Parliament and the State Legislatures as conferred by Articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of the Constitution. A mere
reference to the provisions of Article 13(2) and Articles 245 and 246 is sufficient to indicate that there is no competency in Parliament or a State Legislature to make a law which comes into clash with Part III of the Constitution after the coming into force of the Constitution.
Article 13(2) is in these terms :
“The State ‘shall not’ make any law which takes away or abridges the right conferred by this Part and any law made in contravention, be void’.
This is clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which come into conflict with Part III of the Constitution, the authority thus conferred by Articles 245 and 246 to make laws subject wise in the different legislatures is qualified by the declaration made in Article 13(2). That power can only be exercised subject to the prohibition contained in Article 13(2). On the construction of Article 13(2) there is no divergence of opinion between the majority and the minority in AIR 1951 SC 128. It was only non the construction of Article 13(1) that the difference arose because it was felt that Article could not retrospetively invalidate laws, which when made were constitutional according to the Constitution then in force”.
(42) The learned Chief Justice, if I may say so with respect, categorically stales that a law enacted and opposed to the fundamental law should be considered, to be in excess of legislative authority and is thus a nullity. . (43) The learned Chief Justice, specifically refers to Article 13(2) and states that Article 13(2) is a clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which come into clash with part III of the Constitution. The Court further states that the authority conferred by Articles 245 and 246 is again qualified by the declaration made in Article 13(2). (44) The learned Chief Justice, in the later part of the judgment states, that once a statute is declared void under Article 13(1) or 13(2) that declaration has the force of law and the statute so declared void is no longer law qua persons whose fundamental rights are thus infringed and winds up the discussion at p. 146 as follows :
“In this country once a law has been struck down as unconslitutional law by a Court, no notice can be taken of that law by any Court, and in every case an accused person need not start proving that the law is unconstitutional. The Court is not empowered to look at that part of the law which has been declared as void, and therefore, there is no onus resting on the accused person to prove that the law that has already been declared unconstitutional is unconstitutional in that particular case as well. The Court has to take notice only of what the law of the land is and convict the accused only if he contravenes the law of the land.”
(45) The various observations of his Lordship the Chief Justice in the above extract, in my view, clearly indicate that a post-Constitutional enactment, which clashes with the fundamental rights contained in Part III of the Constitution is unconstitutional and as such is not law and is null and void. (46) In Bhikaji Narain v. State of M.P. AIR 1955 SC 781, the learned Chief Justice in discussing the scope of Article 13 (1) of the Constitution adverts to the American authorities cited before the learned Judge and observes at p. 785 as follows :
“The American authorities refer only to post constitution laws which were inconsistent with the provisions of the Constitution. Such laws never came to life but were still-born as it were. The American authorities, therefore, cannot fully apply to pre-Constitution laws which were perfectly valid before the Constitution.
(47) It will be seen from these observations of the learned Chief Justice that post-constitution laws which are inconsistent with the provisions of the Constitution must be considered to have never came to life but were still born as it were.
(48) Again, the Supreme Court had to consider the express ‘void’ occuring in Article 13(1) and 13(2) of the Constitution in Deen Chand v. State of U.P.MR 1959 SC 648. No doubt, the learned Judges had to consider the doctrine of eclipse, and as to whether the doctrine is applicable only to pre-Constitution laws or it applies also to any post-constitution law which falls under Article 13(2) of the Constitution. The learned Chief Justice speaking on behalf of himself and Mr, Justice Sinha, as he then was, not prepared to express a final opinion as to whether a post-Constitution law, which infringes a fundamental right guaranteed to all persons, irrespective of whether they arc citizens or not, and which therefore can have no operation at all when it is enacted and is to be regarded as a still born law as if it had not been enacted at all and, therefore, not subject to the doctrine of eclipse.
(49) But the majority judgment in the said decision was given by Mr. Justice Subba Rao.
(50) It will be seen that the learned Advocate General appearing for the State of Uttar Pradesh attempted to make a distinction between the law made in exercise of the power conferred on a legislature under the relevant list in the Vllth Schedule and that made in violation of the provisions of Part III of the Constitution. According to the learned Advocate General, the former goes to the root of the legislative power whereas the latter operates only as a check on that power with the result in the Vllth Schedule and that made in violation of the provisions of Part III of the Constitution. According to the learned Advocate General, the former goes to the root of the legislative power whereas the latter operates only as a check on that power with the result that a law so made is unenforceable and as soon as the check is removed the law is revived and becomes operative from the date the check is removed by a Constitutional amendment.
(51) On the other hand, Mr. M.K. Nambiar, learned Counsel appearing for the appellant, urged that a law so made in every contingency is void ab initio; and in particular the learned Counsel urged that where the provisions of an enactment passed by a legislature after 26th January, 1950. In whole or in part subject to the doctrine of severability-are in conflict with the provisions of Part III, the statute in whole or in part, is void ab initio. Mr. Justice Subba Rao,
if I may say so with great respect, very exhaustively or analytically goes into these aspects, after referring to Articles 13, 31, 245 and 246, the learned Judge says at p. 655-
“The combined effect of the said provisions may be stated thus : Parliament and the Legislature of States have power to make laws in respect of any of the matters enumerated in the relevant lists in the Seventh Schedule and that power to make laws is subject to the provisions of the Constitution including Article 13, ie. the power is made subject to the Limitations imposed by Part III of the Constitution. The general power to that extent is limited. A Legislature, therefore, has no power to make any law in derogation of the injunction contained in Article 13.”
The learned Judge, in particular considers Article 13(1) and 13(2) and states that Article 13(1) recognises the validity of pre-constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with part III; whereas Clause 2 of Article 13 imposes a prohibition on the State making laws taking away or abridging the fundamental rights conferred by Part III and declares that laws made in contravention of that clause shall to the extent of contravention be void.
(52) Again referring to Clauses 1 and 2 of Article 13 the learned Judge at p. 656 states :
“There, is a clear distinction between the two clauses. Under Clause (1), a pre-constitution law subsists except to the extent of its inconsistency with the provisions of Part III; whereas no post-Constitution law can be made contravening the provisions of Part III, and therefore, the law, to that extent though made, is a nullity from its inception.
If this clear distinction is borne in mind, much of the cloud raised is dispelled, When Clause 2 of Article 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges the rights conferred by Part III, it will not avail the State to contend either that the clause does not embody a curtailment of the power to legislate or that it imposes only a check but not a prohibition. A constitutional prohibition against a State making certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other constitution; nor can we appreciate the argument that the words any law in the second line of Article 13(2) posts the survival of the law made in the teeth of such prohibition. It is said that a law can come into existence only when it is made and that clause presupposes that the law made is not a nullity. This argument may be subtle but is not sound. The words ‘any law’ in that clause only mean an Act passed or made factually, notwithstanding the prohibition, the result of such contravention is stated in that clause. A plain reading of the clause indicates, without any reasonable doubt that the prohibition goes to the root of the matter and limits the State’s power to make law, the law made in spite of the prohibition is a still born law.
(53) The above extract brings out in the very bad (sic) relief two aspects regarding a post-Constitution statute, which offends fundamental rights namely, (a) that it is a nullity from its inception and (b) the law made in spite of the prohibition is a still born law.
(54) The learned Judge then refers to various passages found in some of the leading text books in the subject regarding the effect of a statute being declared unconstitutional as affecting the fundamental rights. The learned Judge then considers the principles laid down by the Supreme Court in AIR 1961 SC 128 and particularly notes the observation of Mr. Justice Mahajan as he then was, that if any law is made after the 25th of January, 1950 which is repugnant to the Constitution, the same rule followed in America is to be followed in India as well, namely, treat the statute as void since its very birth and treat anything done under it also as void and illegal.
(55) The learned Judge then refers to the principles laid down in (S) AIR 1955 SC 123 and adverts to one of the points discussed and laid down in the said decision that as regards pre-Constitution laws it was held therein that as the pre-Constitution law was validly made it existed for certain purposes even during the post-Constitution period. After adverting to this principle the learned Judge states at page 659 :
This principle has no application to post-constitution laws infringing the fundamental rights as they would be ab initio void in toto or to the extent of their contravention of the fundamental rights”.
(56) Here again, it will be seen that the learned Judge emphasises that a post-Constitution law which infringes the fundamental rights is ab-initio void in toto.
(57) The learned Judge deduces the following three propositions from the decision of the Supreme Court in (S) AIR 1955 SC 123 namely, (1) when the law making power of a State is restricted by a written fundamental law, then any law opposed to the fundamental law is in excess of legislative authority and is thus a nullity; (2) even in the case of a statute to which Article 13( 1) applies, though the law is on the statute book and is good law, when the question arises for determination of rights and obligations incurred prior to January 26, 1950, the part declared void should be notionally taken to be obliterated from the statute for all intents and purposes; and (3) on the construction of Article 13(2) the law made in contravention of that clause is a nullity from its inception. No doubt, the learned Judge says that the said decision is an authority on propositions 1 and 2 but it contains a weighty observation regarding proposition No. 3. This again shows that a law made in contravention of Article 13(2) is a nullity from its very inception.
(58) The learned Judge summarises the discussion in the following proposition at p. 664 :
“The result of the aforesaid discussion may be summarised in the following propositions (i) whether the constitution affirmatively confers power on the legislature to make laws subject wise or negatively prohibits it from infringing any fundamental right, they represent only two aspects of want of legislative power;
(ii) The constitution in express terms make the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constitution and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution; (iii) it
follows from the premises that a law made in derogation or in excess of that power would beab initio void wholly or to the extent of the contravention as the case may be; and (iv) the doctrine of eclipse can be invoked only in the case of a law valid when made, but a shadow is cast on it by supervening constitutional inconsistency or supervening existing statutory inconsistency; when the shadow is removed the impugned Act is freed from all blemish or infirmity.”
(59) The only other decision to which reference is to be made is the recent decision of the Supreme Court reported in M/s, W.R.E.O. Co. Ltd. v. State of Madras, AIR 1962 SC 1753. The only observation that is to be noted in the decision is what is to be found at p. 1761 to the following effect:
“As has been pointed out, by the majority decision in Deep Chand’s case 1959 Supp (2) SCR 8 : AIR 1959 SC 648, the infirmity proceeding from lack of legislative competence as well as the infirmity proceeding from the contravention of fundamental rights lead to the same result and that is that the offending legislation is void and non esi.”
(60) It will be now seen from the various principles laid down by the Supreme Court that a statute enacted in the teeth of the prohibition contained in Article 13(2) of the Constitution is void ab initio in toto and is a nullity. Mr. Justice Mahajan, in AIR 1951 SC 128 at p. 138 states the principles that if a statute, has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal. Again in AIR 1954 SC 728, Mr. Justice Mukerjea quotes with approval the passage in ‘Constitutional Limitation’ by Professor Cooley that a statute void for unconstitutionality is a dead one. In (S) AIR 1955 SC 123, Mr. Mahajan states that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth will have to be followed in India in respect of post-constitution Act. Again in (S) AIR 1955 SC 781, the learned Chief Justice Das, states that the post-Constitution laws which are inconsistent with the provisions of the constitution are laws which never came to life but were still born as it were.
(61) Mr. Justice Subba Rao in AIR 1959 SC 648 describes a post-Constitution law enacted in the teeth of the prohibition contained in Article 13(2) as a nullity from its inception, a still born law, ab initio void in toto and null and void.
(62) Mr. Justice Gajcndragadkar in AIR 1962 SC 1753 states that an Act offending fundamental rights is void and non est. The above summarises the result of the various decisions of the Supreme Court. (63) If the position in-law is that a statute enacted in the teeth of the prohibition contained in Article 13(2) of the Constitution is ab initio void in toto, non est, a nullity, and still borne one, itclearly follows that no rights whatsoever could have flown from such an enactment and that enactment also could not have any operation whatsoever, that is the position, in my view so far as Kerala Act 4 of 1961 is concerned and as I have mentioned earlier the entire Act has been struck down as violative of Articles 14, 19(l)(f) and (g) and 31 of the Constitution. If that is so, the Act was dead from the very beginning and Section 95 repealing the provisions of the Malabar Tenancy Act in particular also could not have taken effect, inasmuch as it formed part of a dead statute or a statute which was null and void from the very inception."
15. A careful reading of the above judgment in which the various judgments of the Supreme Court are considered, goes to show that when law is enacted in prohibition contained in Article 13(2) of the Constitution, it is ab inito void in toto and non-est, nullity and stillborn one and it gives no right whatsoever. It is also necessary to refer to Moinuddin v. Deputy Director, AIR 1956 Allahabad 684 which reads as follows :
“An Act which is wholly ultra vires as being in contravention of the fundamental rights guaranteed by the Constitution would be absolutely null and void under Article 13 of the Constitution.
Where a law is void it has no existence in the eye of law and therefore an order purporting to have been passed under it, is a nullity and may be ignored altogether. It is not possible to say that the order must be obeyed so long as it is not set aside or quashed by a competent Court of law.”
16. These two decisions have been discussed for the purpose to come to the conclusion (though these two judgments are delivered in interpreting different provisions of law). That when the proviso dealing with the conditions is found to be ultra vires of Article 14 and 16, the declaration must be taken to mean as affecting the law made under Sub-clause (2) of Article 13 of the Constitution of India. As stated in the above paragraphs, the Apex Court has gone into the virus of the proviso and held that the proviso offends Article 14 and 16 of the Constitution and held it to be discriminatory. When it was struck down, it must be taken to mean that the law is made in contravention of fundamental Rights guaranteed under Part III of the Constitution and therefore, the striking down of the proviso took place. In other words, it must be deemed to have been held by the judicial pronouncement that the said law is void.
17. It is seen from the judgment in Gupta ‘s case referred to with regard to this proviso, the reference to the following line is very important:
“Which results in denial of the benefits of enhancement of age only to some Scientists like the present respondents”
Therefore, it is quite evident that the judgment declares the said proviso relating to all the employees as discriminatory. The stand of the respondents that the benefit of the said judgment shall accrue to only to those applicants who approached the Tribunal and not to others cannot stand to rationale because the judgment has nowhere stated that it applies only to the applicants therein. But there is a reference to the other persons like the applicants. The emphasis is to be will be subject to further orders of this Court”.
That means evidently that with regard to the implementation of the judgment ie. striking down the O. A. will be subject to the further orders. Further orders are the final orders where the proviso was struck down by which the judgment of this Tribunal was upheld. As regards the judgment of the Hyderabad Bench of C.A-.T. in O.A. No. 168/98 decided on 17.8.1999 it is contended by the respondents that the operation of the judgment was stayed. This is sought to be construed as stating that the proviso is not entirely to be ignored. But it is to be seen whatever that may be, when once the finality with regard to the nature of the proviso is declared, it is, that declaration will go back to the date of the Memorandum itself. Any interim orders passed in the meanwhile will be of no help to the respondents to contend that the right accrued to the employees when once the proviso is struck down cannot be taken
18. With regard to the orders passed in O.A. No. 2703/97 on the file of the Principal Bench, the facts that gave rise to the filing of the application are entirely different as the application was originally dismissed and the applicant therein has moved another application afterwords taken on the word ‘like’. The general classification of the employees as a whole is the parameter by which the intra virus or ultra virus of the proviso is carefully scaled vis-a-vis the scale of Article 14 and 16 keeping in view the Sub-clause (2) of Article 13 and the weight has come down to show that there is infringement of Article 14 and 16 and therefore, the proviso has no legal basis to stand. When that is the rationale behind finding the clause as illegal, it must be taken to mean as stated in the two decisions referred to supra ie. Kerala High Court and Allahabad High Court, as if the said proviso is not there.
WHAT FOLLOWS FROM THE ABOVE ANALYSIS IS :
It must be deemed under law that the proviso is not there in existence at all. If that is the position of law the question of enhancement of the superannuation age to all the scientists from 58 to 60 years applies, this is the broad spectrum of the analysis of the legal position for this particular case.
As regards the decisions relied upon by the respondents it is seen from Annexure R. 3, what the Apex Court has stated is very important:
“In the meantime, the implementation of the judgment though there is mention in this judgment in paragraph 4 regarding the stay granted by the Supreme Court, from this judgment it does not appear that the Tribunal gave the finding that the proviso is still in force. Moreover, it is pertinent to state here that this quest ion when once the proviso is struck down it has to be treated as non-est and it is not in existence at all as it affects the Fundamental Rights guaranteed under Part III of the Constitution and therefore the right accrued to continue up to the age of 60 under the O.M. should be deemed to have been continued is either pleaded or raised or considered in these two judgments, as now sought for in the present application on handing the present applicant.
19. The discussion in paragraph 9 stating that in matters like this one, this decision of the Supreme Court are prospective and not retrospective in operation and since the applicant has retired by the date of the filing of the O.A. the Supreme Court judgment striking down the O.M. cannot be given retrospective effect is the stand. But the when this O.M. was struck down it must be deemed that it is not in existence at all is neither raised question, pleaded nor considered. Hence that judgment has no application to the new point raised in the present application.
20. In the judgment in O.A. 787/97, the present point as already discussed above is not raised at all either in the pleadings or in the arguments nor sought for decision from the Tribunal. The only point raised therein is whether the benefits of the above judgment of the Supreme Court has to be given to those applicants who have retired or not. Therefore, that judgment has no relevancy to the points now raised.
21. Same reasoning applies to O.A. 914/97. Though it is stated in the judgment in O.A. 782/97 that it is the ratio of” the decisions that is binding and not the reliefs granted to the petitioners therein, will not apply to the present points of law raised in this application. These judgments were delivered on the points raised before them regarding the declaration of law and whether the said law is to have the effect of prospective operation or retrospective operation.
22. As discussed in the earlier paragraphs, none of those applicants has tried to raise the point that the right accrued to them on the basis of the O. A. wherein the superannuation age is enhanced from 58 to 60 years, which could not be implemented for the reason that the proviso was there. They have not also further urged taking the pleading specifically nor in the arguments which is the legal position that when once the proviso was struck down it must be deemed that proviso is not there. When that is the position of law, the right to have the superannuation at the age of 60 continues to the applicant because the proviso itself is struck down as violative of fundamental rights and therefore it must be deemed as if the proviso is not there. The decision of the respondents as stated in the reply that they have considered to implement the said judgment prospectively to the applicant only is arbitrary and illegal.
23. At the cost of repetition it has to be stated here that this question of prospective declaration of law or retrospective declaration of law has no bearing on the point for decision when the question is raised in this application that when once the proviso is struck down, it must be deemed that there is no such proviso at all in existence. To repeat the language discussed in the Kerala High Court judgment (supra) “It is non est still born”. There are two angles of law to be considered here. If the Apex Court has considered the position of law taking into consideration its implementation, then the question of prospective implementation of law or retrospective implementation of law would arise. But here, a rule is made by the authorities as the instrumentalities of the State and that rule was struck down. In other words, the rule in the nature of law is struck down. When that particular law is stated to be non est then there is no question of either it being retrospective or prospective. It is also necessary to state here that the proviso is struck down having considered the aspect for the other Scientists like the applicants in the case of Gupta and others were affected by the proviso and it was held that the proviso is not maintainable as it is violative Articles 14 and 16. Therefore, it goes to show that the employees as one class were entitled to the benefit of superannuation at the age of 60 and the proviso has to be ignored as if it is not in existence.
24. One more consideration is that superannuation at the age of 58 for some persons on the basis of the proviso and for others who have retired earlier to the striking down of the proviso cannot get the same right will be making the irrational classification of the employees who are entitled to a right to superannuation at the age of 60 when once the proviso is found to be non-existent. The very fact that the Apex Court has stated that the judgment will have prospective operation would go to show that when once the proviso is struck down the rights accrued to continuation up to 60 is to be maintained to all the employees irrespective of the fact whether they have retired or not whether they have approached the Tribunal or not.
25. Therefore, on an consideration of the entire material this Tribunal considers, since the applicants in the above referred cases by the respondents, have not raised this point with regard to the ab initio void of the proviso and when once the present applicant has raised that legal point these judgments are not applicable and the decision of this particular point raised now is to be decided dehors of the above judgment.
26. Now, with regard to the question of limitation, the judgment of the Apex Court was delivered on November 20, 1996. The applicant had made the representation on 13.5.1998. Though there is some delay in making the representation, that representation was answered by the respondents which is the impugned order in this case dated 15.6.1998. He immediately approached this Tribunal questioning the decision taken by the respondents
and therefore, the question of limitation does not arise in this case.
WHAT TYPE OF RELIEF
27. Though the applicant prays in this case for the relief of paying theentire salary and allowances and monetary benefits to the applicant, the Tribunal is in agreement with the contention raised by the respondents in the reply that the principle of ‘No work no pay’ should be applied in this case. Since the applicant has not worked during that period he is not entitled to the actual difference of the amount in the salary, The respondents have to fix the superannuation of the applicant on the basis of his service records taking his retirement age as 60 and give him the notional pay fixation taking increments into consideration and fix the pension accordingly due to him. The applicant is entitled to the arrears of pension from 30.6.1990
28. It is also contended on behalf of the respondents that the applicant has not challenged the O.M. and therefore, he cannot question his retirement now after a lapse of so many years. Here the applicant has not definetely questioned the proviso because the matter was pending in some Tribunal or other and therefore he need not question the same. It is not an individual right that is agitated but it is the virus of the proviso that is considered by the Apex Court. To repeat the word used ‘like the applicants’ in the said judgment comes to the rescue of the applicant covering him within the scope of getting the benefit of superannuation at the age of 60 when once the proviso is to be ignored. That is the answer to the above point.
29 In the result the O.A. is allowed with the following directions :-
1. The impugned order No. 11002/RD/Pers-6 dated 15.6.1998 passed by the second respondent is hereby quashed.
2. The respondents are directed to refix the pay of the applicant taking into consideration his superannuation as at the age of 60 and refix the pensionary benefits of the applicant.
3. The applicant is entitled to the arrears of pension from 30.6.1990, the date on which he ought to have been retired.
4. The applicant is not entitled to any salary for the period from the date he retired ie. from 30.6.1988 to 30.6.1990 the date on which he ought to have been retired.
5. This order shall be implemented within a period of three months from the date of receipt of a copy of this order.
6. No order as to costs.