# Nav Nirman Thekedar Kalyan Association and another v. State of U.P. and another

- **Citation:** (2009) 3 ILRA 805
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-08
- **Case number:** Civil Misc. Writ Petition No. 39608 of 2009
- **Bench:** Ashok Bhushan, R.A. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nav-nirman-thekedar-kalyan-association-and-another-v-state-of-u-p-and-another-41511
- **Pages:** 15

## Headnote

Constitution
of
India
Article
15(4)-
readwith Article 19(1)(g)- Restriction on
fundamental
Rights-G.O.
30.06.09providing reservation of 20% to S.C.
Govt. contractor and 2 % Schedule Tribe
contractor-challenged
on
ground
of
restriction on his right of business-heldneither the said G.O. Creates monopoly
in favour of S.C. /S.T. Contractors not
put any restriction upon the right of
petitioners
rather
the
Government
exercised power for upliftment and
advancement
of
S.C./S.T.
Contractor
under
Article
15(4)-held
G.O.
Not
violating the provision of Art. 19(1)(g)-
warrant no interference by writ court.

Held: Para 27

Taking into consideration the entire facts
and circumstances and the contents of
the Government order dated 30th June,
806 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

2009, we fail to see any restriction on
the petitioners' fundamental right to
carry on trade or business. The mere fact
that 21% of the contract is reserved for
scheduled castes and 2% is reserved for
scheduled tribes up to the value of
Rs.5,00,000/-, cannot be held to mean
that
fundamental
rights
of
the
petitioners to carry on their business or
occupation has been violated. As noticed
above, the Government order dated 30th
June, 2009 is referable to power of the
State
under
Article
15(4)
of
the
Constitution and by that Government
order the State Government has not
provided for any restriction on exercise
of the rights as contemplated under
Article 19(6) of the Constitution of India
nor the submission of the petitioners
that Government order creates any
monopoly in favour of scheduled castes
and scheduled tribes can be accepted
since the Government order dated 30th
June, 2009 has been issued by the State
Government in exercise of power under
Article 15(4) of the Constitution of India
providing for a special provision for
advancement of scheduled castes and
scheduled tribes.
Case Law discussed:
1954 A.I.R. (SC) 728, 1964 A.I.R. (SC) 925,
1986 A.I.R. (SC) 1205, 1963 (SC) 1295, 1962
A.I.R. (SC) 316, 1973 S.C. 458, 1997 S.C.
1413, 1997 Allahabad 343, 2005(1) S.C.C.
679, 2005 NOC 212

## Text

_Characters 0–39,771 of 50,207. This is a partial read: ask again with offset=39771 for what follows._

3 All] Nav Nirman Thekedar Kalyan Association and another V. State of U.P. and another

805
that the exact scope of the word must
depend on the context and the other
provisions of the will or deed in view of
the surrounding circumstances.
*

*
Thus, in Snow v. Teed it was held that
"the word 'family' could be extended
beyond not merely children but even
beyond the statutory next of kin"."

9. A common understanding, which
also appears to be reasonable from the
common man's understanding point of
view, of the word family in the present
context would include a blood relation
without any distinction on separation. The
clause referred to herein above does not
draw
any
dissimilarity
between
a
separated or unseparated family member.
The family register exists for a different
purpose, namely to identify the people
living in a village or a locality. The mere
mention of the petitioner as a different
family head in the family register does not
snap his ties with his father and to that
extent he has been rightly considered to
belong to his father's family.

10. Having found so, the petitioner
therefore suffers from a disqualification
under the Government Order dated
28.10.2002 and he could not have been
granted a license. This being the position,
it is not necessary to enter into the merits
of the other charges against the petitioner,
and his explanation in that respect.

11. Learned counsel contends that
the license of the petitioner's father too
has been canceled. The same is not a
subject matter of this petition and if that is
so, the petitioner's father can always raise
this issue which can be decided without
being prejudiced with the grant or
otherwise of a license to the petitioner.
12. The petition is accordingly
dismissed subject to the observations
made herein above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE R.A. SINGH, J.

Civil Misc. Writ Petition No. 39608 of 2009

Nav Nirman Thekedar Kalyan Association
and another

 ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioners:
Sri S.P. Pandey
Sri S. Sahi

Counsel for the Respondents:
Sri S.C. Chaturvedi(ADDL. Adv. General)
Sri Satyendra Nath Srivastava
S.C.

Constitution
of
India
Article
15(4)-
readwith Article 19(1)(g)- Restriction on
fundamental
Rights-G.O.
30.06.09providing reservation of 20% to S.C.
Govt. contractor and 2 % Schedule Tribe
contractor-challenged
on
ground
of
restriction on his right of business-heldneither the said G.O. Creates monopoly
in favour of S.C. /S.T. Contractors not
put any restriction upon the right of
petitioners
rather
the
Government
exercised power for upliftment and
advancement
of
S.C./S.T.
Contractor
under
Article
15(4)-held
G.O.
Not
violating the provision of Art. 19(1)(g)-
warrant no interference by writ court.

Held: Para 27

Taking into consideration the entire facts
and circumstances and the contents of
the Government order dated 30th June,
806 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

2009, we fail to see any restriction on
the petitioners' fundamental right to
carry on trade or business. The mere fact
that 21% of the contract is reserved for
scheduled castes and 2% is reserved for
scheduled tribes up to the value of
Rs.5,00,000/-, cannot be held to mean
that
fundamental
rights
of
the
petitioners to carry on their business or
occupation has been violated. As noticed
above, the Government order dated 30th
June, 2009 is referable to power of the
State
under
Article
15(4)
of
the
Constitution and by that Government
order the State Government has not
provided for any restriction on exercise
of the rights as contemplated under
Article 19(6) of the Constitution of India
nor the submission of the petitioners
that Government order creates any
monopoly in favour of scheduled castes
and scheduled tribes can be accepted
since the Government order dated 30th
June, 2009 has been issued by the State
Government in exercise of power under
Article 15(4) of the Constitution of India
providing for a special provision for
advancement of scheduled castes and
scheduled tribes.
Case Law discussed:
1954 A.I.R. (SC) 728, 1964 A.I.R. (SC) 925,
1986 A.I.R. (SC) 1205, 1963 (SC) 1295, 1962
A.I.R. (SC) 316, 1973 S.C. 458, 1997 S.C.
1413, 1997 Allahabad 343, 2005(1) S.C.C.
679, 2005 NOC 212

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri S.P. Pandey, learned
counsel for the petitioners and Sri S.C.
Chaturvedi, Additional Advocate General
assisted by Sri Satyendra Nath Srivastava,
learned
Standing
Counsel
for
the
respondents.

2. By this writ petition, the
petitioners have prayed for a writ of
certiorari quashing the Government order
dated
30th
June,
2009
by
which
Government order 20% reservation for
scheduled caste and 2% reservation for
scheduled tribe have been provided in the
contract awarded by the Government,
Corporation, Development Authority and
Local Bodies value of which contract is
up to Rs.5,00,000/-.

3. The petitioner No.1 is a society
registered
under
the
the
Societies
Registration Act, 1860 constituted to look
after the welfare of the contractors of the
Public Works Department, who are its
members. Petitioner No.2 is a registered
contractor in Public Works Department,
Gorakhpur.
The
petitioners
have
challenged
the
above
mentioned
Government order dated 20th June, 2009
on the ground of violation of rights
guaranteed under Article 19(1)(g) of the
Constitution of India. The petitioners have
further stated that representation has also
been submitted to the Government for
recall of the Government order.

4. Sri S.P. Pandey, learned counsel
for
the
petitioners,
challenging
the
Government order dated 30th June, 2009
has raised following submissions:-

(i) The impugned Government order is
violative
to
constitutional
guarantee
provided under Article 19(1)(g) of the
Constitution of India inasmuch as the
impugned Government order imposes
restrictions on fundamental rights of the
petitioners and other identically situated
registered contractors on their carrying on
profession
to
obtain
and
execute
government contracts.

(ii) The restrictions sought to be imposed
through the impugned order is beyond the
scope and ambit of clause 6 of Article 19
of the Constitution of India, wherein
permissible limit to impose restrictions on
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807
fundamental rights given in Article
19(1)(g) of the Constitution of India has
been specified.

(iii) The impugned Government order is
not a ''Law' but an executive order and
even
if
State
proceeds
to
impose
restriction on fundamental rights, it can be
imposed only by legislation and not by an
executive orders.

(iv) The impugned Government order
creates a monopoly in favour of a
category of persons in getting government
contracts without proper competition,
which is impermissible.

5. Elaborating his submissions,
learned
counsel
for
the
petitioners
contended that while giving various
fundamental
rights
to
the
citizen,
Constitution makers have taken care of
the citizens who belong to socially and
economical
backward
category
by
providing exceptions in different Articles,
which provide for fundamental rights.
With regard to rights guaranteed under
Article 19 of the Constitution, exception
has been provided in Clauses (2) to (6) of
Article 19. Clause (6) of Article 19
empowers the State to impose restrictions
on
fundamental
rights
subject
to
fulfilment of conditions as laid down in
sub-clause (6). The restrictions imposed
by impugned Government order are
beyond the ambit and scope of sub clause
(6) of Article 19. It is contended that
under sub-clause (6) of Article 19, the
restrictions which can be imposed are
permissible only in the interest of general
public and in no manner the scheduled
caste and scheduled tribe can be termed as
general public. It is contended that by the
Government order monopoly has been
created in favour of particular category of
persons, which is impermissible under the
Constitution.
It
is
contended
that
restrictions,
if
any,
on
the
rights
guaranteed under Article 19(1)(g) can be
imposed only through legislation and not
by executive orders. The provisions of
Article 15(4) of the Constitution of India
cannot
be
applied
to
constitutional
guarantee given under Article 19(1)(g) of
the Constitution of India. Learned counsel
for the petitioners has further submitted
that the special provisions contemplated
under Article 15(4) of the Constitution of
India has to confine to admissions in
educational
institutions
it
having
a
specific reference to Clause (2) of Article
29 of the Constitution. Learned counsel
for the petitioners in support of his
submissions placed reliance on the
judgment of the Apex Court in the cases
of Saghir Ahmad vs. State of U.P. and
others reported in 1954 A.I.R. (SC) 728,
Khyerbari Tea Company Limited vs.
State of Assam reported in 1964 A.I.R.
(SC) 925, Municipal Corporation of the
City of Ahmedabad vs. Jan Mohammed
Usmanbhal reported in 1986 A.I.R. (SC)
1205, Kharak Singh vs. State of U.P.
and others reported in A.I.R. 1963 (SC)
1295 and The Collector of Customs,
Madras vs, Nathella Sampathu Chetty
and another reported in 1962 A.I.R. (SC)
316.

6. Sri Satish Chaturvedi, learned
Additional Advocate General appearing
for
the
State,
contended
that
the
Government order dated 30th June, 2009
has been issued in exercise of power of
the State under Article 15(4) of the
Constitution of India, which is a special
provision
for
advancement
of
the
scheduled caste and scheduled tribe. It is
submitted that the Government is duty
bound for social and economic upliftment
808 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

of different classes of society for
providing them reasonable representation
in every sphere in the interest of entire
society and since in view of the prevailing
contract
procedure
in
different
Government
works
the
contractors
belonging to schedule caste and scheduled
tribes could not get proper representation
due to which the entry of the persons of
aforesaid category in that field is often
lacking and as such the decision has been
taken to provide the aforesaid reservation.
Instances of special provisions made for
advancement
of
socially
and
economically
backward
classes,
scheduled caste and scheduled tribe have
been referred to including reservation in
fair price shops. Reference to the
provisions of Section 71(3)(b) of the
Motor Vehicle Act, U.P. Cooperative
Societies Rules, 1968 with regard to
reservation/ nomination of seats for
weaker sections has also been made. It is
submitted that by the Government order
no restrictions in right provided under
Article 19(1)(g) of the Constitution has
been made nor the aforesaid Government
order can be said to be creating any
monopoly in favour of scheduled caste
and scheduled tribe. The Government has
affirmative duty to provide opportunities
to scheduled caste and scheduled tribe,
which has been done in exercise of power
under Article 15(4) of the Constitution by
the State. It is an affirmative action of the
State to achieve the goal of giving
adequate representation to the scheduled
caste and scheduled tribes in order to
uplift them so as to enable them to
compete with contracts with higher
resources. It does not at all affect the right
of any person to practice any profession
or to carry on any occupation, trade or
business. Learned Additional Advocate
General has placed reliance on various
judgments of the Apex Court and High
Courts including our Court, which shall
be
referred
to
hereinafter
while
considering the submissions in detail.

7.

We
have
considered
the
submissions of learned counsel for the
parties and have perused the record.

8. The principal ground, which has
been
canvassed
on
behalf
of
the
petitioners is that the Government order
violates the rights guaranteed to every
citizen under Article 19(1)(g) of the
Constitution of India and further even if it
can be treated as restriction to the right
guaranteed under Article 19(1)(g), the
same cannot be done by executive
instructions
and
further
without
conforming to the limitations as provided
under Article 19(6) of the Constitution of
India.

9. Before we proceed to examine the
submissions of learned counsel for the
parties, it is necessary to have a look over
the relevant constitutional provisions
contained in Articles 15 and 19 of the
Constitution of India.

10. Articles 15 to 17 of the
Constitution of India deal with right to
equality. Article 15(1) of the Constitution
provides
that
the
State
shall
not
discriminate against any citizen on
grounds only of religion, race, caste, sex,
place of birth or any of them. Article 15
of the Constitution as originally enacted
contained only three sub clauses. Sub
clause 4 was added by the Constitution
(First Amendment) Act, 1951 as a result
of a decision in the case of Madras vs.
Champakam
Dorairajan
reported
in
(1951) SCR 525. The object of first
amendment was to bring Articles 15 and
3 All] Nav Nirman Thekedar Kalyan Association and another V. State of U.P. and another

809
29 of the Constitution in line with Article
15(4) of the Constitution. Article 15 of the
Constitution is quoted below:-

"15. Prohibition of discrimination on
grounds of religion, race, caste, sex or
place of birth.- (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 only of
religion, race, caste, sex, place of birth or
any of them, be subject to any disability,
liability, restriction or condition with
regard to--
(a) access to shops, public restaurants,
hotels and places of public entertainment;
or
(b) the use of wells, tanks, bathing ghats,
roads
and
places
of
public
resort
maintained wholly or partly out 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 (2)
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 Scheduled Castes and the
Scheduled Tribes.]
[(5) Nothing in this article or in subclause (g) of clause (1) of article 19 shall
prevent the State from making any special
provision, by law, for the advancement of
any socially and educationally backward
classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as
such special provisions relate to their
admission to educational institutions
including private educational institutions,
whether aided or unaided by the State,
other than the minority educational
institutions referred to in clause (1) of
article 30.]"

11. The language of Article 15(4) of
the
Constitution
shows,
first,
that
''reservation' as such, is not expressly
mentioned in that Article, but fall within
the wide expression ''special provision for
the advancement...". The special provision
includes every kind of assistance which
can be given to backward classes,
scheduled castes and scheduled tribes to
make them stand on their feet to bring
them into the mainstream of life. At this
stage we
propose to consider
the
submission of the petitioners that Article
15(4) of the Constitution confines only to
admission in educational institutions. The
said submission has been advanced
referring to mention of Clause (2) of
Article 29 of the Constitution of India in
Article 15(4). Article 29(2) of the
Constitution provides that no citizen shall
be denied admission into any educational
institution maintained by the State or
receiving aid out of State fund on grounds
only of religion, race, caste, language or
any of them. Sub clause (4) of Article 15
uses two phrases, namely, (i) ''Nothing in
this article' and (ii) ''or in Clause 2 of
Article 29'. Thus Article 15(4) empowers
the State to make any special provision
notwithstanding the injunction contained
in Article 29(2) of the Constitution.
Article 15(4) thus cannot be held to
confine
to
special
provision
only
pertaining to admission in educational
institution as provided in Article 29(2),
rather Article 15(4) empowers the State to
make a provision notwithstanding to
Clause (2) of Article 29 but operation of
clause (4) of Article 15 cannot be
confined only to admission in educational
institution. Thus the submission of the
petitioners' counsel that Article 15(4)
810 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

shall only confine to admission in
educational
institution
cannot
be
accepted.

12. At this stage, it is relevant to
refer certain cases relied by learned
counsel for the respondents in which
special provision with regard to scheduled
castes and scheduled tribes made with
regard to subject matter other than
admission in educational institutions. In
A.I.R. 1960 Kerala 355; Moosa vs. State
of Kerala, an order acquiring land for
constructing a colony for Harijans was
held valid under Article 15(4) of the
Constitution.
Similarly
the
case
of
Pavadai Gounder and others vs. State
of Madras and another reported in
A.I.R. 1973 S.C. 458 was also a case with
regard
to
acquisition
of
land
for
construction of colony for Harijans, which
was held valid referring to Article 15(4)
of the Constitution. In A.I.R. 1994
Madhya Pradesh 143; Dr. Ram Krishna
Balothia vs. Union of India and others,
the Madhya Pradesh High Court had
occasion to consider the scope and ambit
of Article 15(4) of the Constitution in
context of the Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989. The validity of the
1989 Act was challenged on the ground
that it violates Article 15(1) of the
Constitution it being based on caste
discrimination and is not saved by Article
15(4) of the Constitution. The Division
Bench of the Madhya Pradesh High Court
repelling the submission, laid down
following in paragraphs 8 and 9 of the
said judgment:-

"8. The language used in Art. 15(4)
cannot be understood in a narrow sense.
Article 15(4) embodies the doctrine of
protective
discrimination.
The
word
'advancement' in clause (4) of Art. 15 is
not subject to any qualification and by no
principle of interpretation it could be said
that from the context it should be
construed in a restricted sense, as
amounting to only social and educational
advancement. The expression "special
provision for the advancement" is an
expression of very wide import and brings
within its a sweep each and every kind of
advancement.
This
is
so
because
Scheduled Castes and Scheduled Tribes
occupy
a
special
position
in
our
constitution. They have endured great ill
treatment as untouchables for centuries,
apart from their backwardness. It must be
remembered that thousands of years of
discrimination cannot be wiped out in one
generation. It is in the fitness of things
that every effort is to be made to correct
this
long
standing
and
historical
discrimination.
9. A special provision does not only mean
to provide for education, agricultural
programmes, schemes for training to
purpose trade or business, free education,
free hostel facilities, free food or clothes,
advancement of loans, special facilities
regarding recovery of loans etc. as argued
by the counsel for the petitioners. To our
mind, it would include all out effort by
the State to make them stand on their own
feet, to bring them into the mainstream of
the National life, to live with dignity, selfesteem and with head held high. This is
only possible if they are permitted to live
in the society without fear or suppression
from upper castes or top echelons of the
society belonging to the another caste,
creed or religion. The Act contains
affirmative measures to weed out the root
cause of the same, which has denied them
civil rights and subjected them to various
kinds of indignities, humiliations and
harassment for various historical, social
3 All] Nav Nirman Thekedar Kalyan Association and another V. State of U.P. and another

811
and economic reasons. Advancement of
the oppressed people requires dealing
with upper levels of the society when they
try to suppress or deny legitimate
aspirations of Scheduled Castes and
Scheduled Tribes, their right to life and
dignity, freedom from bonded labour and
must protect them from the practice of
untouchability, help to protect their selfrespect and the honour of their women,
and to shield them from oppressive land
grabbers of the land allotted to them,
protection from all kinds of oppression,
social, political, economic and cultural
must be provided for to ensure their
advancement."

13. In A.I.R. 1997 S.C. 1413; State
of U.P. and another vs. C.O.D. Chheoki
Employees' Cooperative Society Ltd.
and others, the provisions of Rules 393A, 393-B, 440 and 444 of the U.P.
Cooperative Societies Act, 1968, which
provided for reservation/nomination of
seats for weaker section of the society,
were under challenge. The Apex Court
upholding the provisions as having been
made in exercise of power under Article
15(4) of the Constitution, laid down
following in paragraph 16 of the said
judgment:-

"16.
Shri
Raju
Ramachandran,
relying upon the judgment of this Court in
Damyanti Naranga v. The Union of the
India, 1971 3 SCR 840 : (AIR 1971 SC
966), has contended that in view of the
ratio laid down by this Court, the
Government is devoid of power to make
law unless any of the restrictions as
controlled by clause (4) of Article 19 of
the Constitution of India are infringed.
The Government has no power to enact a
law incorporating the reservation to the
members of weaker sections and women
thereof. We find no force in the
contention. It could be seen that therein,
the Government had enacted the Sahitya
Sammelan Act exercising the power
under Entry 63, List I of the Seventh
Schedule to the Constitution. This Court
pointed out that the Act did not envisage
that the Samiti is of national importance.
Therefore, it was held that the Parliament
had lacked power to enact the law
incorporating the society and inducting
outside members against the wishes of the
founder
members
of
the
Society
registered under the Societies Registration
Act. This Court also held that the
properties belonging to the original
Society stood vested in the Society
incorporated under Section 4 of the Act
without any compensation. Therefore, it
was violative of Article 31 of the
Constitution of India, as it stood then. The
ratio therein has no application to the
facts in this case. He then contended that
"Other Backward Classes'' defined under
the State Public Services Reservation Act
applicable to and covering the public
services, they are being inducted as
members of the society which are
otherwise not eligible and, therefore, the
induction of them by amendment of Rules
made on 15-7-1994 is unconstitutional. In
support thereof, he contends that though
Article 15(4) of the Act provides that it is
subject to Articles 15(2) and 29(2) of the
Constitution, it does not envisage that it is
also subject to Article 19(1)(c) of the
Constitution. Therefore, the reservation
provided to the weaker sections is
unconstitutional. We find no force in the
contention. The object of Article 15(4) is
to lift the prohibition of general equality
guaranteed in Articles 15(2) and 29(2) of
the Constitution dealing with the right to
admission into an educational institution
maintained by the State or receiving aid
812 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

from the State. Therefore, their object is
distinct
and
different
from
Article
19(1)(c), though Article 19(1)(c) gives
freedom to form association, it is
controlled by the provisions of the Act.
As held by this Court, once a society has
been registered under the Act, the
management of the society through
Section
29
and
the
Rules
made
thereunder, is regulated by duly elected
members. In the democratic set up, all
eligible persons are entitled to contest the
election, as held, according to the
provisions of the Act and Rules. In the
absence of elected members belonging to
the weaker sections and women elected,
nomination of them by the Government is
the alternative dispensation envisaged as
one of the policies of the Act. Therefore,
the Court cannot interfere with the policy
and declare it is (as) unconstitutional
violating
Article
19(1)(C)
of
the
Constitution"

14. Similarly a Division Bench of
our Court in A.I.R. 1997 Allahabad 343;
Maiyadeen vs. State of U.P. and
another while considering the provisions
of Rules 9-A and 53-A of U.P. Minor
Minerals (Concession) Rules, 1963 held
the provisions intra vires after referring to
Article 15(4) of the Constitution of India.
Following was laid down in paragraph 7
of the said judgment:-

7. A perusal of clause (4) of Article
15 as well as Directive Principles of State
Policy, contained in Articles 38 and 39 of
the Constitution will indicate that the
State
can
classify
socially
and
educationally
backward
classes
as
different class and can afford to them
protection. Any law, Statute, Bye-law,
Regulation or Government Order which
provide protection or reservation to
socially
and
educationally
backward
classes
cannot
be
said
to
be
discriminatory, but it in consonance with
the principles underlying in clause (4) to
Article 15 of the Constitution of India as
well as Articles 38 and 39 of the
Constitution of India. It is a matter of
common knowledge that certain classes of
citizens known as Mallah, Kewat, Bind,
Nishad or Mahgira are generally engaged
in
carrying
on
the
profession
of
excavation of sand of morrum on the
banks of the rivers."

15. Now comes the main submission
of learned counsel for the petitioner that
the Government order dated 30th June,
2009 violates the rights guaranteed under
Article 19(1)(g) of the Constitution of
India. Article 19(1)(g) confers on a citizen
the right to practice any profession, or to
carry on any occupation, trade or business
subject to restrictions contained in Article
19(6). Articles 19(1) and 19(6) of the
Constitution are quoted below:-

"19.
Protection
of
certain
rights
regarding freedom of speech, etc. - (1)
All citizens shall have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without
arms;
(c) to form associations or unions;
(d) to move freely throughout the
territory of India;
(e) to reside and settle in any part of the
territory of India; 1[and]
(g) to practise any profession, or to carry
on any occupation, trade or business.

(2) ...........
(3) ...........
(4) ...........
(5) ...........
3 All] Nav Nirman Thekedar Kalyan Association and another V. State of U.P. and another

813
(6) Nothing in sub-clause (g) of the said
clause shall affect the operation of any
existing law in so far as it imposes, or
prevent the State from making any law
imposing, in the interests of the general
public, reasonable restrictions on the
exercise of the right conferred by the said
sub-clause, and, in particular, 2[nothing in
the said sub-clause shall affect the
operation of any existing law in so far as
it relates to, or prevent the State from
making any law relating to,-

(i)
the
professional
or
technical
qualifications necessary for practising any
profession or carrying on any occupation,
trade or business, or
(ii) the carrying on by the State, or by a
corporation owned or controlled by the
State, of any trade, business, industry or
service,
whether
to
the
exclusion,
complete or partial, of citizens or
otherwise]."

16. Article 19 of the Constitution of
India declares that all citizen have
fundamental
right
to
practice
any
profession or to carry on any occupation,
trade or business, which however be
subject to any existing law or the law
made by the State in the interest of
general public containing reasonable
restrictions on exercise of right conferred
on the said sub-clause.

17. The question to be answered is
as to whether the Government order
violates the fundamental rights of the
petitioners as guaranteed under Article
19(1)(g) of the Constitution. The rights
guaranteed under Article 19(1)(g) of the
Constitution
has
been
subject
to
consideration by the Apex Court and this
Court in large number of cases. The
judgment relied by learned counsel for the
petitioner in Saghir Ahmad's case (supra)
was a case where rights under Article
19(1)(g) of the Constitution came for
consideration. The appellant before the
Apex Court was carrying on the business
of plying motor vehicle, which was being
regulated according to Motor Vehicle Act,
1939. The U.P. Road Transport Act, 1951
was passed by the State of U.P. under
which
the
State
Government
has
exclusive right to operate road transport
services and notification was issued
providing that route in question was to be
exclusively
operated
by
the
State
Government. The Act was challenged in
the High Court and the High Court
dismissed the writ petition against which
appeal was filed. The contention of the
appellant that provisions of the Act
violates fundamental rights guaranteed
under Article 19(1)(g) was upheld. It was
held that members of the public are
entitled as beneficiaries to use public
streets and roads as a matter of right. The
State is entitled to impose all such
limitations on the character and extent of
the user as may be requisite for protecting
the rights of the public generally but
subject to such limitations the right of a
citizen to carry on business in transport
vehicles on public pathways cannot be
denied. Following was laid down by the
Apex Court in paragraphs 13 and 14 of
the said judgment:-

"13. We are in entire agreement with
the statement of law made in these
passages. Within the limits imposed by
State regulations any member of the
public can ply motor vehicle on a public
road. To the extent he can also carry on
the business of transporting passengers
with the aid of the vehicles. It is to this
carrying on of the trade or business that
the guarantee in Article 19(1)(g) is
814 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

attracted and a citizen can legitimately
complain if any legislation takes away or
curtails that right any more than is
permissible under clause (6) of that
article.
14. The legislation in the present case has
excluded all private bus owners from the
field of transport business. 'Prima facie' it
is an infraction of the provision of Article
19(1)(g) of the Constitution and the
question for our consideration therefore
is,
whether
this
invasion
by
the
Legislature of the fundamental right can
be justified under the provision of clause
(6) of Article 19 on the ground that it
imposes reasonable restrictions on the
exercise of the right in the interests of the
general public."

18. It was further held in the above
judgment that when an enactment on the
face of it is found to violate the
fundamental
right
guaranteed
under
Article 19(1)(g) of the Constitution, it
must be held to be invalid unless those
who support the legislation can bring it
within the purview of the exception laid
down in clause (6) of the article.

19. The question to be answered is
as to whether the Government order
violates the fundamental rights of the
petitioners to carry on trade, business or
occupation. The Government order does
not in any manner contain any restriction
on the rights of the petitioners to take
Government contract nor contains any
disqualification or prohibition with regard
to any person regarding entering into the
contract. The Government order only
contains certain special provision for
advancement of scheduled castes and
scheduled tribes. The said Government
order
in
no
manner
contains
any
prohibition or any restriction on the rights
of the petitioners. The Apex Court had
occasion to consider the rights under
Article 19(1)(g) in context of an scheme
framed
by
the
Government,
which
restricted the choice of farmers and
agriculturists who opt to receive financial
assistance under the Government scheme
for purchase of pumping set from
approved dealers of the Government in
the case of Krishnan Kakkanth vs.
Government of Kerala and others reported
in 1997(9) S.C.C. 495. The circular issued
by the Government of Kerala dated
19.5.1995 was challenged by the dealers
who claimed their fundamental right
under Article 19(1)(g) of the Constitution
to carry on business of sale of pump sets
and dealership in the pump sets without
being subjected to any unreasonable
restriction. It was also contended before
the Apex Court that the circular cannot be
treated to be a restriction within the
meaning
of
Article
19(6)
of
the
Constitution since restriction can be
imposed not by circular but only by a
''law'. The Apex Court negativated the
said submission. Following was laid down
in paragraph 26 of the said judgment:-

"After
giving
our
careful
consideration
to
the
facts
and
circumstances
of
the
case
and
submissions made by the learned counsel
for the parties, it appears to us that the
fundamental right for trading activities of
the dealers in pumpset, in the State of
Kerala as guaranteed under Article 19 (1)
(g) of the Constitution has not been
infringed by the impugned circular.
Fundamental rights guaranteed under
Article 19 of the Constitution are not
absolute but the same are subject to
reasonable restrictions to be imposed
against enjoyment of such rights. Such
reasonable restriction seeks to strike a
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815
balance between the freedom guaranteed
by any of the clauses under Article 19 (1)
and the social control permitted by the
Cls. (2) to (6) under Article 19."

20. It was further held by the Apex
Court that although a citizen had a
fundamental right to carry on trade or
business, but he has no right to insist upon
the Government or any other individual
for doing business with him. Following
was laid down by the Apex Court in
paragraphs 32, 33 and 34 of the said
judgment:-

"32. It may be indicated that
although a citizen has a fundamental right
to carry on a trade or business, he has no
fundamental right to insist upon the
Government or any other individual for
doing
business
with
him.
Any
Government or an individual has got a
right to enter into contract with a
particular person or to determine person
or persons with whom he or it will deal.
33. In the instant case, the farmer or
agriculturist who has chosen to receive
subsidies or financial assistance under the
schemes of the Government has an
obligation to accept the terms and
conditions for such assistance. One of
such conditions is that in the northern
region of the State, pumpset for which
financial assistance has been given is to
be purchased from the approved dealers
of the Government. The private dealer
cannot insist that the Government is also
to enter into contract with any such
private dealer to make it an approved
dealer. Since the Government has every
right to select dealers of its choice for
delivery of pumpsets at the price agreed
upon and to render after sales service to
the purchasers of pumpsets covered by its
financial assistance scheme. It is not open
to challenge such selection of dealers on
the score that, such selection amounts to
unreasonable restriction imposed on the
dealers of the State to carry on trading
activities in pumpsets. It is nobody's case
that all the farmers and agriculturists have
been compulsorily covered under such
schemes. On the contrary, it is open to
any farmer or agriculturists not to
volunteer for taking such assistance.
34. It has already been indicated that in
Vikalad's case (AIR 1984 SC 95) (supra),
it has been held by this Court that
infringement of fundamental right under
Article 19(1)(g) must have a direct impact
on the restriction on the freedom to carry
on trade and not ancillary or incidental
effects on such freedom to trade arising
out of any governmental action. It has
also been held in that case that unless the
trader or merchant is not wholly denied to
carry on his trade, the restriction imposed
in denying the allotment of wagon in
favour of such trader or merchant to
transport coal for carrying out trading
activities does not offend Article 19(1)(g)
of the Constitution. No restriction has
been imposed on the trading activity of
dealers in pumpsets in the state of Kerala
including northern region comprising
eight districts. Even in such area, a dealer
is free to carry on his business. Such
dealer, even in the absence of the said
circular, cannot claim as a matter of
fundamental
right
guaranteed
under
Article
19(1)(g)
that
a
farmer
or
agriculturist must enter into a business
deal with such trader in the matter of
purchase of pumpsets. Similarly, such
trader
also
cannot
claim
that
the
Government should also accept him as an
approved dealer of the Government. The
trading activity in dealership of pumpsets
has not been stopped or even controlled or
regulated generally. The dealer can deal
816 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

with purchasers of pumpsets without any
control imposed on it to carry on such
business. The obligation to purchase from
approved dealer has been fastened only to
such farmer or agriculturist who has
volunteered to accept financial assistance
under the scheme on various terms and
conditions."

21. The Apex Court had again
occasion to consider Article 19(1)(g) of
the Constitution of India in the case of
Association of Registration Plates vs.
Union of India and others reported in
2005(1) S.C.C. 679. A notice was issued
inviting tender for supply of high security
registration plates for motor vehicles by
the State Government for implementing
the provisions of the Motor Vehicle Act,
1988. It was contended that tender
conditions were discriminatory and they
were made to create monopoly in favour
of few parties violating the rights
guaranteed under Article 19(1)(g). The
Apex Court repelled the contention that
the tender conditions were violative of
Article 19(1)(g).

22. In the judgment relied by learned
counsel for the respondents in the case of
Kannaiyan
vs.
State
of
Tamilnadu
reported in A.I.R. 2005 NOC 212
(Madras),
the
Government
order
providing for grant of contract to AdiDravidars or Tribals being in consonance
with the Article 15(4) of the Constitution
of India has been upheld. Following was
laid down in the said judgment:-

"The scope and object of Article
15(4) to bring Articles 15 and 29 in line
with Articles 16(4), 46 and 340 and to
make it constitutional for the State to
reserve seats for backward classes of
citizens, Scheduled Castes and Tribes in
the public educational institutions as well
as to make other special provisions as
may be necessary for their advance. In
short, the amendment would validate the
reservation and would protect the interests
of the Scheduled Castes and Scheduled
Tribes. Article 15(4) is an exception to
Article 15(1) in so far as it forbids
discrimination on the ground of race or
caste. It is also in the nature of an
exception to Article 29(2).
No doubt that in general statutory
provisions of law have the overriding
effect on the Government orders passed
but since impugned Government Order
has been issued in consonance with the
enabling provisions of the Constitution
particularly under Article 15(4) of the
Constitution of India aimed at the
advancement
of
the
socially
and
economically backward sections of the
society as a special provision, the
Government order has been issued by the
first respondent State Govt.