S.H. SHETH

(1) The petitioner was appoint as a Junior Clerk on 2/12/1961 in the office of the Director of Technical Education. In 1962 she passed the departmental examination he was detected by the Head of the Department and was recruited through Employment Exchange On 15/06/1962 she was transferred to L. D. Engineering College which has been functioning under the Directorate of Technical Education. She worked there as a Typist. On 21/01/1963 Centratized Recruitment Scheme was made applicable to all the Directorates which included the L. D. Engineering College. It was in the made applicable to ministerial staff in non-Secretariat services. In 1964 she was transferred from L. D. Engineering College to the Directorate of Technical Education. On 1/09/1970 the Government passed a Resol- ution by which her services were regularized with effect from 17/04/1970

(2) In 1973 she converted herself into a Muslim and married one Mr. Pathan. So far as the petitioner was concerned it was her first marriage but it was the second marriage of Mr. Pathan who had his first wife living then. Under Rule 26 of the Gujarat Civil Service (Conduct) Rules 1971 the petitioner and Mr. Pathan were asked to explain why the petitioner had married Mr. Pathan even though Mr. Pathan had his first wife living. An affidavit from the first wife of Mr. Pathan was produced to show that his first wife wanted the petitioner and Mr. Pathan to marry. On 17th January a charge-sheet was served upon the petitioner. The charge which was levelled against her was that she had committed breach of Rule 26 of the Gujarat Civil Services (Conduct) Rules 1971 An enquiry was held. As a result of the enquiry on 5/10/1973 her promotion was ordered to be withheld for a period of three years with effect from 16/08/1973. That period expired on 15/08/1976.

(3) It is this order which is challenged in this petition.

(4) The second challenge which the petitioner has raised in this petition relates to the fixation of her seniority in the cadre of clerks. She claims that 17/04/1970 with effect from which her services were regularized under the Government Resolution could not be the date from which her seniority could commence. Accordingly to her she came to be regularly appointed on 15/06/1962 when she was transferred from the Directorate of Technical Education to L. D. Engineering College and appointed there. Therefore her grievance is that persons who were junior to her were wrongly shown as her seniors in the seniority list.

(5) Upon these facts Mrs. Mehta was appears on behalf of the petitioner has raised the following five contusions:

(1) Rule of the Gujarat Civil Services (Conduct) Rules 197 is ultra vires Art. 14 and Art. 15 of the Constitution.

(2) Rule 26 is ultra vires Arts. 25 and 26 of the. Constitution.

(3) Rule vires Art. 309 of the Constitution.

(4) Upon the correct interpretation of the order of punishment made against her at the end of the departmental enquiry the petitioner was entitled to be promoted to the higher post immediately upon the expiry of the period for which her promotion was withheld under the said order.

(5) Her seniority should be computed with effect from 15/06/1962 and not with effect from 17/04/1970.

(6) The first three questions which Mrs. Mehta has raised before us are constitutional questions. In order to examine the arguments which Mrs. Mehta has raised in support of her constitutional contentions it is necessary to reproduce Rule 26 of the Gujarat Civil Services (Conduct) Rules 1971 It provides as follows:

(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 State Government may permit a Government servant to enter into or contract any such marriage as is referred to in clause (1) or (2) if it is satisfied that (a) such marriage is permissible under the personal law applicable to such Govern ment servant and the other party to the marriage and (b) there are other grounds for so doing.

The first argument which Mrs. Mehta has raised is that marriage contemplated by sub-rules (1) and (2) of Rule 26 must be a legal and valid marriage and not any other marriage. She has then tried to point out to us that this rule is directed only against the Muslim Government servants because it is amongst them that plural marriages wives not exceeding four in number at a time are permitted. In order to make good this argument of hers she has invited our attention to certain enactments.

(7) So far as Hindus are concerned sec. 11 of the Hindu Marriage Act 1955 provides: Any marriage solemnized after the commencement of this Act shall be null and void and may on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) (iv) and (v) of sec. 5. Sec. 5 inter alia provides: A marriage may be solemnized between any two Hindus if the following conditions are fulfilled namely-neither party has a spouse living at the time of the marriage. As It is clear therefore that when sec. 11 is read with sec. 5 (i) any marriage solemnized by a person with another when his or her spouse is living is a void marriage.

(8) So far as Parsis are concerned they are governed by Parsi Marriage and Divorce Act 1936 Sec. 4 provides for circumstances when a marriage is unlawful. It reads as under:

(1) No Parsi (whether such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the lifetime of his or her wife or husband whether a Parsi or not except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved. and if the marriage was contracted with such write or husband under the Parsi Marriage and Divorce Act 1865 or under this Act. except after a divorce declaration or dissolution as aforesaid under either of the said Acts. (2) Every marriage contracted contrary to the provisions of sub-sec. (1) shall be void.

Sec. 24 of the Special Marriage Act 1954 provides:

Any marriage solemnized under this Act shall be null and void and may on a petition presented by either party thereto against the other party thereto be so declared by a decree of nullity if (i) any of the conditions specified in clauses (a) (b) (c) and (d) of sec. 4 has not been fulfilled; or (ii) ................

Sec. 4 inter alia provides:

Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages a marriage between any two persons may be solemnized under this Act if at the time of the marriage the following conditions are fulfilled namely: (a) neither party has a spouse living; .. .. ... ... .. .. .. .. .. .. Sec. 10 of the Indian Divorce Act 1869 inter alia provides:

Any wife may present a petition to the District Court or to the High Court praying that her marriage may be dissolved on the ground that since the solemnization thereof her husband has exchanged his profession of Christianity for the profession of some other religion and gone through a form of marriage with another workman: or has been guilty of incestuous adultery or of bigamy with adultery or of marriage with another woman with adultery. ... .. ... .. ..

Several provisions to which we have referred indeed make it clear beyond doubt that a bigamous marriage amongst Hindus Parsis Christians and Angle Indians is void. The argument which Mrs. Mehta has raised is that since a bigamous marriage in all these communities is void in law Rule 26 is directed only against Muslim Government servants who may under their personal has contract a bigamous marriage. We are unable to uphold the contention raised by Mrs. Mehta in this behalf.

(9) Firstly Rule 26 nowhere states that it is directed only against Muslim Government servants. It applies to all irrespective of what other enactments provide for non-Muslims in the matter of marriage. Secondly the word marriage used in Rule 26 does not in our opinion mean a legally valid marriage. It means a marriage which has been performed or solemnized according to the customs of the community to which the parties belong irrespective of whether such a marriage is in law void or not. To say that the word marriage used in Rule 26 only means a legally valid marriage is to assign to it a narrow meaning and is likely to lead to disastrous consequences. If marriage means only a legally valid marriage and no other marriage then non-Muslim Government servants may go on marrying again and again during the life-time of their spouses and claim that they have not contracted plural marriages because the second or subsequent marriage contracted by them is not legally valid marriage and therefore it is not the marriage in the eye of law. Such a construction if placed upon Rule 26 will not only defect the object and purpose with which Rule 26 has been enacted but would reduce it to a laughing stock. Since the word marriage used in Rule 26 means any marriage irrespective of its validity in law already according to the custom of the community to which the parties belong the rule is directed against Muslims as well as non-Muslims. In that view at the matter we are unable the discover therein any element of hostile discrimination agent the Muslim Government servants. Rule 26 therefore is not violative of Art. 14 of the Constitution.

(10) So far as Art. 15 is concerned it prohibits discrimination against any citizen on grounds of religion lace caste sex place of birth of any of them. It provides as follows:

(1) The State shall not discriminate against any citizen on grounds only of religion race caste sex place of birth or any of them.

(2) No citizen shall on grounds to only religion race caste sex place of birth or any of them be subject to any disability liability restriction 0r condition with regard to. (a) access to shops public restaurants hotels and places of public entertain ment; or (b) the use of wells tanks bathing grants roads and places of public resort maintained wholly or partly cm of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (i) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and the Scheduled Tribes.

very terms of clauses (2) and (3) show that they are not applicable to the instant case. Clause (1) prohibits the State from discriminating against any citizen inter alia on the ground of religion. In light of the interpretation which we have placed upon Rule 26 we do not find any discrimination against Muslim Government servants on the ground of religion. The first contention raised by Mrs. Mehta therefore fails and is rejected. There is therefore no segregation of the Muslim Government servants on the basis of religion in this behalf.

(11) The second contention raised by Mrs. Mehta raises the constitutional challenge against the validity of Rule 26 on the ground that Rule 26 infringes Arts. 25 and 96 of the Constitution. Clause (1) of Art. 25 provides as under:

Subject to public under morality and health and to the other provisions of this Part all persons are equally entitled to freedom of conscience and the right freely to profess practice and propagate religion.

If the problem which has been raised before us at all falls under Art. 25 it falls within the ambit of right freely to practice religion. Before we turn to examine whether a bigamous marriage solemnized by a Muslim Government servant falls within the ambit of his right to practice religion it is necessary to reproduce clause (2) which carves out an exception to clause (1). It reads as under:

Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic financial political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religi ous institutions of a public character to all classes and sections of Hindus Ordinarily prevention of a bigamous marriage will in our opinion fail within the ambit of the expression social welfare and reform used in sub-clause (b) of clause (2) of Art. 25. However it has been argued by Mrs. Mehta that in matters of religious practices what the community which professes a particular religion believes is a religious practice and that against such belief without violating Art. 25 on measure of social welfare or reform can be enacted or enforced.

(12) It is in that context that she has invited our attention to a passage in the HOLY QURAN. We are referring to THE HOLY QURAN - Arabic Text and English-Translation by the late Maulawi Sher Ali. In Chapter entitled AL-NISA this is what has been stated:

And if you fear that you will not be fair in dealing with the orphans. Then marry of women as may be agreeable to you two or three or four; and if you fear you will not deal justly then marry only one ar what your right hands possess. That is the nearest way for you to avoid injustice.

It is on the basis of this Quranic text that Mrs. Mehta has argued that for a Muslim to marry two or three or four wives is a matter of his religious practice or religious injunction We do not think so. The above-quoted extract merely provides for showing compassion to female orphans who have been neglected by society and who i.e. forlorn forsaken and destitute in life. All that it says is that if a Muslim comes across such a female orphan he may if it otherwise is agreeable to him contract a second marriage a third marriage and a fourth marriage provided he is able to deal with second and subsequent wives justly. We find there in no religious injunction directing Muslims to marry more than one wife Secondly to marry a second wife is left to his choice. Thirdly permission is granted to him to contract the second or subsequent marriage only in a case where he comes across a destitute female orphan who requires care and compassionate treatment for making her life livable. Lastly the bar to second marriage is removed in such cases only if a Muslim is able to do justice to her not otherwise. Since it is not a religious injunction it is difficult to come to the conclusion that it is a matter of religious practice. Secondly it is a purely permissive scriptural provision which can be availed of only under a certain set of circumstances. What is left to be done or not to be done at the sweet will of individual will not ordinarily enter into the formation of a religious practice. A religious practice ordinarily connotes a mandate which a faithful must observe and carry out. If the non-believers break it there is indeed no derogation from the effect of that mandate. What is permissive under the scripture cannot be equated with mandate which may amount to a religious practice. We are therefore unable to read in the above-quoted extract from the Quranic text that contracting plural marriages is a matter of religious practice amongst Muslims.

(13) In this context we may usefully refer to sec. 250 in Mullas Principles of Mahomedan Law 18 Ed. in which it is slated that marriage according to Mahomedan Law is not a sacrament but a civil cataract. All the rights and obligations it creates arise immediately and are not pendent on any condition precedent such as the payment of dower by a husband to a wife. Unlike Hindu marriage which is a sacrament a Muslim marriage is nothing but a civil contract.

(14) In Tyabjis Muslim Law 4 Edition this is what has been stated in paragraph 21 at page 44: Marriage brings about a relation based on and arising from a permanent contract for intercourse and procreation of children between a man and a woman who are referred to at parties to the marriage and who after being married become husband and wife. It is difficult for us to imagine or think that what is a matter of civil contract can be a matter of religious practice.

(15) Our attention has been invited by Mr. Takwani to a decision of the Allahabad High Court in ITWARI V. SMT. ASGHARI AND OTHERS AIR 1960 ALLAHAHAD 684. In paragraph 11 of the report it has been observed by the learned Judge: Muslim Law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged and has not conferred upon the husband any fundamental right to compel the first wife to share his consortium with another woman in all circumstances. A Muslim husband has the legal light to take a second wife even while the first marriage subsists but if he does so and then seeks the assistance of the Civil Court to compel the first wife to live with him against his wishes on pain of severe penalties including attachment of property she is entitled to raise the question whether the Court as a court of equity ought to compel her to submit to cohabitation with such a husband.

(16) In SHAHULAMEEDU V. SUBAIDA BEEVI 1970 K.L.T. 4 it has been observed by Kerala High Court as follows:

Yusuf Ali in his commentary on the Holy Quran has pointed out with reference to the original text in its proper context that the Prophet first strictly limited the unrestricted number of wives of the Times of Ignorance to a maximum of four provided you could treat them with perfect equality in material things as well as in affection and immaterial things. As this condition is most difficult to fulfil the recommendation was understood to be towards the practice of monogamy. (The extract is reproduced in the report from Islamic Law in Modern India page 22)

(17) So far as challenge under Art. 26 is concerned clause (b) of Art. 26 if at all may come into play. It reads as under:

Subject to public order morality and health every religious denomination or any section thereof shall have the right (a) .... . (b) to manage its own affairs in matters of religion. This is the right conferred upon every religious denomination or a section thereof. In this connection it will be useful to refer to a few decisions of the Supreme Court.

(18) The first is in THE COMMISSIONER HINDU RELIGIOUS ENDOWMENTS MADRAS V. SRI LAKSMINDRA THIRTHA SWAMIAR OF SRI SIRPUR MUTT AIR 1954 S.C. 282. The question of considering the impact of Arts. 25 and 26 on the Madras Hindu Religious and Charitable Endowments Act 1951 arose in. that case. In paragraph 15 of the report connotation of the expression religious denomination used in Art. 26 has been considered by the Supreme Court. After referring to the definition of the expression denomination given in Oxford Dictionary it has been stated that it means a collection of individuals classed together under the same name: a religious sect or body having a common faith and organization and designated by a distinctive name. Different sects and sub-sects of the Hindu religion founded by different religious teachers and philosophers as held by the Supreme Court can certainly be called a religious denomination as it is designated by a distinctive name. It has a common faith and a common spiritual organization. Illustrating this proposition the Supreme Court has observed that the followers of Ramanuja who are known by the name of Shri Vaishnavas undoubtedly constitute a religious denomination; so also the followers of Madhawacharya and other religious teachers. Art. 26 it has been further observed by the Supreme Court contemplates not only a religious Math but the spiritual fraternity represented by it can legitimately come within the purview of Art. 26. Proceeding further the Supreme Court has observed that Art. 26 guarantees to a religious denomination the right to acquire and own property and to administer such property in accordance with law. In regard to the right to manage its own affairs in matters of religion it is as observed by the Supreme Court a fundamental right which no Legislature can take away. Referring to religion this is what the Supreme Court has observed:

Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainsim which do not believe in God or in any Intelligent First Court. A religion 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 would not be correct to say that region is nothing also 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 matters of food and dress.

The guarantee which the Constitution has given not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion. Referring to the essential part of the religion it has been observed that what constitutes the essential part has direct reference to the doctrine of religion itself. The freedom of religion which the Constitution guarantees is not confined only to religious beliefs but it extends to religious practices subject indeed to the restrictions which the Constitution itself has laid down. Therefore under Art. 26 (b) a religious denomination enjoys complete autonomy in such matters of as what rights and ceremonies are essential according to the tenets. This decision has been referred to with approval in the substantial decision of the Supreme Court in DURGAH COMMITTEE ANOTHER AND ANOTHER V. SYED HUSSEIN ALI AND OTHERS AIR 1961 S.C. 1402. In paragraph 33 of the report reference has been made with approval to the connotation of the word denomination used in Art. 26. A denomination is collection of individual classed to gather under the same name a religious sect or a body having a common faith and organization and designated by a distinctive name. It has been observed in this decision that any practice which is alleged to be a part of religion must be regarded by the said religion as an essential or integral part; otherwise even purely secular practices which are not an essential or integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly even practices though religious may have sprung merely suppressions 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 a protection under Art. 26 may have to be carefully scrutinized as an essential and an integral part of it and to other. The protection must be confined to such religious practices and no other.

(19) Reference is also made to the decision of the Supreme Court in SARDAR SYEDNA TAHER SAIFUDDIN SAHEB V. STATE OF BOMBAY AIR 1962 S.C. 853 It was a case in which the impact of Art. 26 (b) and Art. 25 (2) on the provisions of the Bombay Prevention of Excommunication Act 1949 came to the examined. Referring to the religious practice of ex-communi- cation the Supreme Court has observed that where an excommunication is itself based on religious grounds such as lapse from the or the decreed or doctrine similar to what is considered heresy apostasy or schism under the Canon Law or breach of some practice considered as an essential part of the religion by the already Bohras in general excommunication cannot but be held to be for the purpose of maintaining the strength of the religion. The Supreme Court has further observed that it therefore necessarily follows that the exercise of power of excommunication on religious grounds forms a part of the management by the community through its religious head of its own affairs in matters of religion. Referring to the concept of social welfare and reform incorporated in clause (2) of Art. 25 the Supreme Court has observed: The mere fact that certain civil rights which might be lost by members of the Dawoodi Bohra community as a result of excommunication even though made on religious grounds and that the Act prevents such loss does not offer sufficient basis for a conclusion that it is a law providing for social welfare and reform. It has been further observed: The barring of excommunication on grounds other than religious grounds say on the breach of some obnoxious social rule or practice might be a measure of social reform and a law which bars such excommunication merely might conceivably come within the saving provisions of Cl. 2 (b) of Art 25. But barring of excommunication on religious grounds pure and simple cannot however be considered to promote social welfare and reform and consequently the law in so far as it invalidates excommunication on religious grounds and takes away the Dais power to impose such excommunication cannot reasonably be considered to be a measure of social welfare and reform.

(20) Reference is also made to the decision of the Supreme Court in TILKAYAT SHRI GOVINDLALJI MAHARAJ ETC. V. STATE OF RAJASTHAN AND OTHERS AIR 1963 S.C. 1638. It was a case under Rajasthan Nathdwara Temple Act 1959 under which secular affairs of the Nathdwara temple had been taken over by the State. Examining the impact of Arts. 25 and 26 the Supreme Court has observed: In deciding the question as to whether a given religious practice is an integral part of the religion or not the test always would be whether it is regarded as such by the community following the religion or not. Whenever such a question is raised before the Court the Court may have to enquire whether the practice in question is religious in character and if it is whether it can be regarded as an integral or essential part of the religion and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It has next been observed by the Supreme Court. 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 apt to be clothed with a religious form and may make a claim for being treated as religious practices. It has further been observed :... it cannot be ignored that what is protected under Arts. 25 (1) and 26 (b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in chara- cter it cannot be urged that Art. 25 (1) or Art. 26 (b) has been contra- vened. Lastly it has been observed: ... the protection guaranteed by Art. 25(1) and Art. 26 (b) cannot be extended to secular practices and affairs in regard to denominational matters which are not matters of religion and so a claim made by a citizen that a purely secular matter amounts to a religious practice or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion may have to be rejected on the ground that it is based on irrational considerations and cannot attract the provisions of Art 25(1) or Art. 26 (b).

(21) Lastly our attention has been invited to the Constitutional Law of Indian by H. M. Seervai Second Edition Volume 1. At page 585 the learned jurist has summarized in the following terms the principles emerging from several decisions and having a bearing on Art. 25 and Art. 26 and commented upon them The broad general contention that under Art. 25 (2) (a) all secular activities which may be associated with religion but do not constitute an essential part of it are amenable to State regulation cannot be supported. First because what constitutes the essential part of a religion is primarily to be determined with reference to the doctrines of that religion itself. Secondly because the fact that religious rites and ceremonies require the expenditure of money or the purchase and use of marketable commodities would not convert the rites and ceremonies into economic or secular activities. They remain matters of religion within the meaning of Art. 26 (b). Proceeding further this is what the learned jurist has stated:

The language of Art. 26 (b) which confers on every denomination the right to manage its own affairs in matters of religion would suggest that there are affai s which are not matters of religion. But though there is a distinction between affairs which ate matters of religion and affairs which are not matters of religion e.g. administration of the property of the denomination according to law-the two overlap and do not constitute two mutually exclusive classes. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner; . . (no) outside authority has any light to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.

(22) The decisions to which we have referred clearly establish that in order to claim the status of a religious practice the practice must form an essential and integral part of the religion. We have already observed that a bigamous marriage amongst Muslims is not a matter of religious practice or a religious belief. It is not a religious injunction or mandate. So far as Art. 26 (b) is concerned it protects the fundamental light of a religious denomination or any section thereof manage its own affairs in matters of religion. Art. 26 is not attracted to the instant case because bigamous marriage amongst Muslims is not a matter of religion. Secondly it protects the rights of religious denominations or any section thereof. As observed by the Supreme Court in the decisions referred to above a denomination is a collection of individuals classed together under the same name a religious sect or body having a common faith and organisation and designated by a distinctive name. In our opinion a religious deno- mination includes a section thereof but is distinct from an individual belonging to it. It is difficult therefore to say that Art. 26 has application to the case of an individual as distinguished from religious denomination. In our opinion therefore Art. 25 (1) and Art. 26 (b) do not come into the picture in this case at all and therefore there is no violation of these Articles. Tile second contention raised by Mrs. Mehta therefore fails and is rejected.

(23) The third contention which she has raised is that the impugned Rule as is violative of Art. 369 of the Constitution. There is no dispute before us that the Gujarat Civil Services (Conduct) Rules 1971 have been made under the proviso to Art. 309 of the Constitution. Under Art. 309 the state has the power to 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. The contention which has been raised by Mrs. Mehta is that a bigamous marriage has nothing to do with conditions of service; much less with recruitment. According to her a condition of service must have a direct and proximate relation with the efficiency integrity impartiality and responsibility of a Government servant. She has further argued that a condition of service does not include anything which is personal between an individual and his emotion In view of the argument which Mrs. Mehta has raised we are required to find out the connotation of the expression conditions of service in order to determine whether prohibition of a bigamous marriage can be a condition or service.

(24) In State of MADHYA PRADESH AND OTHERS V. SHARDUL SINGH 1970 (1) SUPREME COURT CASES 108 [LQ/SC/1969/496] the expression conditions of service used in Art. 369 came up for construction. In paragraph 9 of the report it has been observed: ..all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retire- ment and even beyond it in matters like pension etc. Reference has been made in that decision to the earlier decision of the Supreme Court in PRADYAT KUMAR BOSE V. THE HONBLE THE CHIEF JUSTICE OF CALCUTTA HIGH COURT (1955) 2 SCR 1331. [LQ/SC/1955/122] In that case the question which arose was whether the dismissal of an official was a matter which fell within conditions of service of public servants. The question was answered in the affirmative by the Supreme Court. Reference has also been made to the decision in NORTH WEST FRONTIER PROVINCE V. SURAJ NARAIN ANAND (1048) IR 75 IA 343. The question which arose in that case was whether dismissal of a Government servant could be a condition of service within the meaning of the expression used in sec. 243 of the Government of India Act 1935 The question was answered by the Privy Council in the affirmative. In P. BALAKOTAIAH V. THE UNION OF INDIA AND OTHERS (1958) SCR 1052 [LQ/SC/1957/133] the question which arose was whether the rule providing for the termination of service of a railway official could be made in exercise of the powers conferred on the Government by sections 241 (2) 247 and 263 (3) of the Government of India Act 1935 The question was answered in the affirmative. The latter mentioned three decisions do not throw much light on the question which has been raised before us. However in paragraph 8 of the report in Shardul Singhs case (Supra) the Supreme Court has observed that the the expression conditions of service is an expression of wide import.

(25) It has been argued by Mrs. Mehta that whatever may he the import or the width of that expression it cannot include something which touches the private life of a Government servant and which according to her has nothing to do with his efficiency and integrity as a Government servant Prevention of a bigamous marriage as a condition of public service has in our opinion relation with the integrity of a Government servant. It need not necessarily be so direct and proximate as Mrs. Mehta has canvassed before us. Having two or more wives at a time which may result into a larger family will in all probability demand of a Government servant larger resources for maintaining his two wives and their offspring If he is not able within the limits of his salary to maintain such a large family which is of his own creation he is likely to seek alternative sources of income lawful and unlawful because human nature being what it is every individual would like to live and live happily. When a Government servant is torn between his loyalty his service and an imperative need to maintain to large family he may compromise with his integrity and resort to make questionable means to meet the needs of maintaining his family. Such a situation will lead to impairment of his loyalty which is bound to tell upon public service Need to look elsewhere to find additional sources of income to meet such a contingency is also likely to impair his efficiency because an unusually increased need in such a situation will derogate from his single-minded devotion to duties which he is supposed to bring to bear upon. The need to find out alternative sources of income otherwise lawful is also likely to derogate from his singleminded devotion to duty. Therefore it is difficult for us to say that a rule relating to prevention of a bigamous marriage can never be a condition of service.

(26) We may however refer to the proviso to Rule 26 which reduces the rigour of the rule. In cases specified in the proviso the Government may grant permission to a Government servant to contract the second marriage. The first condition in that a second marriage must be permissible under the personal law applicable to the Government servant and the other party to the marriage. This is a very valid condition because no Government servant can be given a permission For the second marriage if it is otherwise unlawful. The second condition is that the Government may grant permission to contract a second marriage if there are other grounds for so doing. According to Mrs. Mehta this condition in proviso to Rule 26 is so vaguely worded that it enables the Government to refuse permsssion on any ground. We do not think so. In a dynamic society which goes on changing from time to time it is too difficult for us to imagine what ground or grounds will be advanced for seeking permission for contracting a second marriage and what ground or grounds will be sound in some cases and unsound in other cases. In order to meet the needs of an eternally changing society the second condition has been specified in the proviso. Therefore the insertion of the second condition per se does not introduce an element of caprice or arbitrariness. It is quite probable however that in a give case the Government may refuse permission on an extraneous irrelevant capricious or whimsical ground. If permission is refused on any such ground the action of the Government refusing permission can always be challenged. Merely because in a case here or there the Government may act capriciously or on irrelevant grounds it cannot be said that such a widely worded provision inserted for meeting the needs of an eternally changing society introduces an element of arbitrariness and therefore renders the rule ultra vires The third contention which Mrs. Mehta has raised therefore fails and is rejected.

(27) The fourth contention which she has raised relates to the interpretation of the order of punishment made against the petitioner. The order reads as follows:

Kum. R. K. Desai being found guilty of the above said Charge No. 1 her prometion to higher post should be withheld with effect from 16-8-73 for a period of three years.

The first argument which Mrs. Mehta has raised is that what the Director of Technical Education did by making the impugned order was to withhold for a period of three years her (petitioners) promotion to the higher post. According to her to withhold means to with-hold until it is released. Therefore according to Mrs. Mehta once the period for which promotion to the higher post has been withheld comes to an end promotion not only mUst be released but must be released with effect from the date on which the petitioner became due for promotion. We are unable to uphold that argument raised by Mrs. Mehta. To release the promotion from the date on which the petitioner became due for promotion (during the period during which punishment operated) is to nullify the punishment and to confer upon her all benefits which would have otherwise accrued to her as if she was not punished an all. The first argument raised by Mrs. Mehta therefore fails and is rejected.

(28) The second argument which she has raised in the alternative is that the period of three years which commenced from 16/08/1973 expired on 15/08/1976. Therefore the petitioner became entitled to promotion to the higher post assuming that all other factors were satisfied after 15/08/1976. It may be stated for the sake of clarity that two clerks junior to the petitioner had been promoted to the higher post during the period during which the order of punishment operated against the petitioner. The promotion of these two clerks who were junior to the petitioner makes clear beyond all doubt that given all other things equal the petitioner would have been promoted to the promotional post before 15/08/1976 if the order of punishment had not been operating against her. In our opinion the effect of withholding promotion for a period of three years which expired on 15th August 1976 is thatat as soon as a vacancy in the promotional post occurred after 15/08/1976 the petitioner became entitled to be considered for promotion to the higher post. She could not be denied that benefit merely by virtue of the fact that order of promotion had operated against her for a period of three years. On this aspect in the facts and circumstances of this cases it is difficult to say anything more than we have done. It will be for the Director of Technical Education or the State Government as the case may be to make an appropriate order in the matter of the petitioners promotion in light of the interpretation which we have placed upon the order of punishment. If any clerks junior to the petitioner were promoted to higher posts affair 15/08/1976 the petitioner would be entitled to be considered for promotion to the higher post with effect from the date her first junior was promoted after 15/08/1976.

(29) The last contention which has been raised by Mrs. Mehta relates to the petitioners position on the seniority list of the clerks belonging to the Director of Technical Education. There is no dispute about the fact that the petitioner was initially appointed as a clerk under the Directorate of Technical Education on 2/12/1961. At that time recruitment to the clerical post could be done only through Public Service Commission. Therefore according to respondents she was not regularly appointed. Her appointment followed the recommendation of her name by the Employment Exchange to the departmental head who selected her. Thereafter she was transferred to L.D. Engineering College where she worked as a Typist. Recruitment of clerks to such institutions was not required to be made through Public Service Commission. Candidates recommended by Employment Exchange and selected by departmental heads were appointed as having been regularly recruited to their posts in such institutions that is to say in non-Secretariat services. Services in L.D. Engineering Institute has been a non-Secretariat service

(30) Mr. Takwani who appears on behalf of the respondents has argued that if the petitioner was continued as the clerk under the Director of Technical Education her services would have been required to be terminated. That is what has been stated in the affidavit-in-reply filed in this petition. Out of compassionate grounds she was transferred to L.D. Engineering College where she could work and earn her bread. Mr. Takwani has therefore argued that so far as the Directorate of Technical Education was concerned her services should be treated as having been terminated with effect from the date she was transferred to L.D. Engin- eering College that is 15/06/1962. Her services according to Mr. Takwani in the L.D. Engineering College must be deemed to have been terminated again and she must be deemed to have been appointed afresh as a clerk in the Directorate of Technical Education when she was retransferred to the Directorate. We have not been impressed by the arguments which Mr. Takwani has raised before us. L. D. Engineering College forms a part of the Directorate of Technical Education. Therefore whether she served under the Directorate of Technical Education or in the L. D. Engineering College she served as a clerk under the Government of Gujarat in the Directorate of Technical Education. Therefore though on 2/12/1961 she was irregularly appointed consequent upon her transfer to L. D. Engineering College her appointment became regular because she was a candidate recommended by the Employment Exchange and selected by the departmental head and that was the method followed for appointments in the L. D. Engineering College. In our opinion therefore the Government was in error in regularising her services with effect from 17/04/1970. We think the came to be regularly appointed on 15/06/1968 when she was posted as a Typist in L. D. Engineering College. The petitioner will therefore be entitled to have her seniority determined in accordance with what we have stated in this judgment. While assigning seniority to her in the cadre of clerks with effect from 15/06/1962 the respondent shall work out whether she was entitled to be considered for promotion to the higher post earlier than she was actually appointed and whether she could have been appointed with effect from an earlier date. The latter aspect relates to her merits. We are however aware of the fact that between 16/08/1973 and 1 5/08/1976 order withholding he promotion to the higher post was operating. While working out her right for being considered to the promotional post on the basis that her regular services commended from 15/06/1962 respondents Nos. 1 and 2 shall be at liberty to make an order which does not nullify the order of punishment.

(31) In the result the petition partly succeeds. Rule is made absolute partly. It is declared that the petitioner is entitled to be considered for promotion to the higher post in terms of her seniority which commenced from 15/06/1962. While working out her rights in that behalf the respondents Nos. 1 and 2 shall be at liberty not to do anything which nullifies the order of punishment made against her and which does not disturb the seniority of those who were promoted during the period during which the order of punishment operated against her. As a consequence of the decision which we have rendered the seniority list shall have to be modified in so far as the petitioner is concerned. There shall be no order as to costs of this petition.