# Ved Pal Singh Bhati and another v. State of U.P. and another

- **Citation:** (2009) 2 ILRA 340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-03-02
- **Case number:** Civil Misc. Writ Petition No. 19894 of 2008
- **Bench:** Amitava Lala, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ved-pal-singh-bhati-and-another-v-state-of-u-p-and-another-41381
- **Pages:** 10

## Headnote

Sri Shashi Nandan, Sr. Advocate,
Sri D.K. Arora, Addl. Advocate General.
Sri M.C. Chaturvedi, Chief Standing
Counsel,
Sri R.B. Pradhan, Standing Counsel.

Constitution of India-Art. 226-Art. 14Discrimination-petitioner
working
as
member of Bar-tenure of working of
member are 2 years while the chairman's
tenure
is
six
years-held-amended
provisions
creation
of
statute-
2 All] Ved Pal Singh Bhati and another V. State of U.P. and another
341
considering
nature
of
job
and
responsibility- can not being held -
violation of any fundamental Right or
any other provision of the Constitution.

Held: Para 19

However, we are of the view that in the
present case promulgation of the Act in
question is not an administrative action
but a legislative action and no case of
lack
of
legislative
competence
is
available to us. The remaining question
is whether the action is violative of any
fundamental right guaranteed in Part III
of
the
Constitution
or
any
other
constitutional provision or not. Since the
right of the petitioners is statutory right
and can not be said to be a constitutional
right and as such, fixation of tenure of
service, which was not interfered with
earlier
enactment
but
tenure
of
Chairman has been increased, can not at
all be said to be violative of fundamental
rights guaranteed in Part-III of the
Constitution or any other constitutional
provision,
if
any,
available
to
the
petitioners/Members.
Case law discussed:
1997 (8) SCC 522, 1985 (1) SCC 523, AIR
1958 SC 538, AIR 1967 SC 1305, 2004 (1) SCC
712 : AIR 2004 SC 1295, 2007 (6) SCC 276,
2007 (6) SCC 624, 2008 (5) SCC 1, 1996 (3)
SCC 709, 2007 (6) SCC 236, 2008 (2) SCC
254, 2000 All CJ 840, 2003 (4) SCC 104, AIR
1985 SC 1367, 2002 (2) SCC 318, AIR 1985 SC
1041, 1963 SCR (Supp.) 112.

## Text

340 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
in 1999 (2) AWC 976 wherein the
Division Bench has held as under:
"2. In our opinion, an appointment
under the Dying -in-Harness Rules has to
be treated as a permanent appointment
otherwise if such appointment is treated
to be a temporary appointment, then it
will
follow
that
soon
after
the
appointment,
the
service
can
be
terminated and this well nullify the very
purpose of the Dying-in-Harness Rules
because such appointment is intended to
provide immediate relief to the family on
the sudden death of the bread earner. We
therefore, hold that the appointment
under Dying-in-Harness Rules is a
permanent
appointment
and
not
a
temporary appointment, and hence the
provisions
of
U.P.
Temporary
Government Servant (Termination of
Services) Rules, 1975 will not apply to
such appointments."

6. He has further relied upon the
decision rendered in the case of Om
Prakash
Versus
Superintending
Engineer, Nalkoop reported in [2001 (1)
LB. E.S.R. 116 (Alld.)] which is also to
the same effect.

Learned Standing Counsel submitted
that since the appointment of the
petitioner was temporary, therefore, his
services have rightly been terminated.

7. After hearing counsel for the
parties, I am of the opinion that the
appointment under Dying in Harness
Rules of the dependant of a Government
Servant,
who
was
working
on
a
permanent
post,
is
permanent
appointment as has been held by the
Division Bench in the case of Ravi Karan
Singh (supra). Hence his services could
not have been terminated treating his
appointment to be on temporary basis. If
the petitioner was not performing his
duties properly, it was open to the
authority
to
initiate
disciplinary
proceedings against him for the purpose
of terminating his services.

8. In the fact and circumstances of
the case, the writ petition deserves to be
allowed and is hereby allowed. The
impugned order of termination dated
6/7.11.2008 is quashed. However, it is
open to the respondent to proceed against
the petitioner for termination of his
services as permanent employee in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2009

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 19894 of 2008

Ved Pal Singh Bhati and another

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

 ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha.

Counsel for the Respondents:
Sri Shashi Nandan, Sr. Advocate,
Sri D.K. Arora, Addl. Advocate General.
Sri M.C. Chaturvedi, Chief Standing
Counsel,
Sri R.B. Pradhan, Standing Counsel.

Constitution of India-Art. 226-Art. 14Discrimination-petitioner
working
as
member of Bar-tenure of working of
member are 2 years while the chairman's
tenure
is
six
years-held-amended
provisions
creation
of
statute-
2 All] Ved Pal Singh Bhati and another V. State of U.P. and another
341
considering
nature
of
job
and
responsibility- can not being held -
violation of any fundamental Right or
any other provision of the Constitution.

Held: Para 19

However, we are of the view that in the
present case promulgation of the Act in
question is not an administrative action
but a legislative action and no case of
lack
of
legislative
competence
is
available to us. The remaining question
is whether the action is violative of any
fundamental right guaranteed in Part III
of
the
Constitution
or
any
other
constitutional provision or not. Since the
right of the petitioners is statutory right
and can not be said to be a constitutional
right and as such, fixation of tenure of
service, which was not interfered with
earlier
enactment
but
tenure
of
Chairman has been increased, can not at
all be said to be violative of fundamental
rights guaranteed in Part-III of the
Constitution or any other constitutional
provision,
if
any,
available
to
the
petitioners/Members.
Case law discussed:
1997 (8) SCC 522, 1985 (1) SCC 523, AIR
1958 SC 538, AIR 1967 SC 1305, 2004 (1) SCC
712 : AIR 2004 SC 1295, 2007 (6) SCC 276,
2007 (6) SCC 624, 2008 (5) SCC 1, 1996 (3)
SCC 709, 2007 (6) SCC 236, 2008 (2) SCC
254, 2000 All CJ 840, 2003 (4) SCC 104, AIR
1985 SC 1367, 2002 (2) SCC 318, AIR 1985 SC
1041, 1963 SCR (Supp.) 112.

(Delivered by Hon'ble Amitava Lala, J.)

1. The petitioners are Members of
the Uttar Pradesh Secondary Education
Services Selection Board (hereinafter in
short called as the 'Board'). The services
of the petitioners are contractual in nature
for a fixed period as available in the Uttar
Pradesh Secondary Education Services
Selection Board Act as amended time to
time. The petitioners have basically
challenged the vires of the Uttar Pradesh
Secondary Education Services Selection
Board (Third Amendment) Act, 2007
(U.P. Act No. 4 of 2008), in which the
tenure of service of the Members
remained two years as before in the
erstwhile amended Act i.e. Uttar Pradesh
Secondary Education Services Selection
Board (Second Amendment) Act, 2007
(U.P. Act No. 22 of 2007) but the tenure
of the Chairman is enhanced from two
years to five years. A plea has been taken
by the petitioners that there is no
intelligible differentia between the nature
of service to be rendered by the Chairman
and the respective Members of the
concerned Board. Therefore, there is no
occasion to enhance the tenure of the
services of Chairman. The amendment of
the Act, even by the legislative body,
appears to be colourable exercise of
power.

In support of the contentions of the
petitioners Mr. Radha Kant Ojha, learned
Counsel appearing for the petitioners, has
drawn our attention towards the earlier
amendments. According to him, by the
original Act being the Uttar Pradesh
Secondary
Education
Services
Commission and Selection Board Act,
1982 (U.P. Act No. 5 of 1982) the tenure
of the Members and Chairman of the
Board was fixed for a term of six years.
By
the
Uttar
Pradesh
Secondary
Education Services Commission and
Selection Board (Amendment) Act, 1992
(U.P. Act No. 1 of 1993) the tenure was
reduced from six years to three years.
Further, by the Uttar Pradesh Secondary
Education
Services
Selection
Board
(Amendment) Act, 1995 (U.P. Act No. 15
of 1995) the tenure of members was
increased from three years to four years.
By a further amendment, being the Uttar
Pradesh Secondary Education Services
342 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Selection Board (Second Amendment)
Act, 2006 (U.P. Act No. 40 of 2006) such
tenure of four years was extended to six
years. The petitioners were appointed on
01st November, 2006 as Members of the
Board. In further, by U.P. Act No. 22 of
2007 the tenure of six years was reduced
to two years for Chairman and Members
both. However, subsequently by the
impugned amending Act, being U.P. Act
No. 4 of 2008, the tenure of Chairman has
been raised to five years from two years
when the tenure of the Members for two
years remained as it is.

2. Admittedly, the petitioners did not
challenge the U.P. Act No. 22 of 2007, by
which the tenure of the Members
inclusive of Chairman was reduced from
six years to two years. As a result
whereof, the petitioners had admittedly no
case but when various queries have been
made
by
the
Court,
they
sought
amendment of the prayer challenging the
vires of such Act i.e. U.P. Act No. 22 of
2007 without making any averment in the
petition in that regard. Therefore, such
amendment, which was allowed initially
for the sake of convenience of the parties
to argue on merits, is insufficient in nature
for the appropriate purpose and outcome
of afterthought. It is clear and categorical
that all the arguments are poised down to
a point that there is no basic difference
between the nature of works of the
Chairman and the Members of the Board
and as such when in the earlier occasion
the tenure was reduced to two years for
both, there was no necessity to change the
tenure of the Chairman and the Members
under
the
impugned
amendment.
Therefore, the petitioners' case is not for
the purpose of reduction of their own
tenure but increase of tenure of the
Chairman.
3. Mr. Ojha has shown definition of
'Chairman'
and
'Member'
from
the
original Act i.e. U.P. Act No. 5 of 1982.
The definitions of the Chairman and the
Members as under Sections 2(b) and 2(g)
therein are quoted hereunder:

"(b).
'Chairman'
means
the
Chairman
of
the
Commission,
and
includes any other person performing in
the absence of the Chairman, for the time
being, the functions of the Chairman;"

"(g)
'Member' means a member
of the Commission and includes its
Chairman;"

4. In further, he placed before us the
Uttar
Pradesh
Secondary
Education
Services Selection Board (Procedure and
Conduct of Business) (First) Regulations,
1998 (hereinafter in short called as the
'Regulations') to establish that there is no
basic difference between the nature of
service between the Chairman and the
Members.

5. We find from the Regulations 11
and 13 of the Regulations what are the
powers and duties of the Chairman and
Members
respectively.
Therefore,
Regulations 11 and 13 are quoted
hereunder:

"11.
Powers
and
duties
of
Chairman.--(1) Subject to the provisions
of the Act, the Chairman shall exercise
administrative, disciplinary and financial
powers of the Board, and shall-

(a) preside over all the meetings of the
committees of which he may be a
member;
(b) co-ordinate the working of the Board
and its Vice-Chairman and members;
2 All] Ved Pal Singh Bhati and another V. State of U.P. and another
343
(c) be the controlling officer of the
members
for
the
purposes
of
sanctioning casual leave and passing
of travelling allowance bills;
(d) have the power of supervision over
the working of the officers and
employees of the Board.
(2) If the Chairman, by reason of
his absence or any other reason, is unable
to perform his duties, he may, by general
or special order, authorise Vice-Chairman
or any member to perform such duties:
Provided that all the matters in
which decisions or actions have been
taken during the period of absence of the
Chairman, shall be placed before him for
information as soon as he resumes his
office."

"13. Powers and duties of the
members.--Subject to the provisions of
the Act and the rules made thereunder and
the decisions of the Board, a member
shall assist the Chairman in the selection
of candidates for different categories of
posts and shall discharge such other duties
as may be assigned to him by the
Chairman."

6. From the statement of objects and
reasons of the U.P. Act No. 4 of 2008,
which is impugned herein, we find
explanation about the duties of the
Chairman and the necessity of increasing
the tenure of the Chairman, which is as
follows:

"The Chairman of Uttar Pradesh
Secondary Education Services Selection
Board constituted under the Uttar Pradesh
Secondary Education Services Selection
Board Act, 1982, has to perform all the
works
regarding
the
selection
of
Principals, Headmasters, Lecturers and
Trained Graduate Teachers in aided
Schools and Intermediate Colleges of
Uttar Pradesh. The present tenure of
Chairman is two years, which is not
sufficient to maintain the continuity of
the selection process. It has, therefore,
been decided to amend the said Act to
provide for:-

(a) amending the definitions of the word
"member" to exclude the Chairman
therefrom;
(b) amending
the
qualification
of
member to broaden the field of
eligibility;
(c) increasing the term of the Chairman
from two years to five years;
(d) increasing the maximum age to hold
office of Chairman from sixty two
years to sixty eight years;

The
Uttar
Pradesh
Secondary
Education
Services
Selection
Board
(Third
Amendment)
Bill,
2007
is
introduced accordingly."

7. From the statement of objects and
reasons
therein
we
find
that
the
amendment is arising out of a policy
decision made by the State of Uttar
Pradesh upon observing the nature of the
duties and sufficiency of tenure of the
Chairman in discharging such duties.

8. According to us, there is no bar
for the State in making intelligible
differentia between the tenure of the
Chairman and the Members in case it is
supported
by
objects
and
reasons.
Sufficiency of reasons is not the domain
of the Court to consider. That apart,
independently the Court can not enquire
about the legislative intent for making
different tenure for the Chairman and the
Members unless and until the cause is so
apparently arbitrary that it shocks the
344 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
conscience. Whatever may have been the
wisdom that guided the legislature in
enacting a provision, it is not for the
Court to make surmises about it. A statute
is not to be construed according to some
notion of what the legislature might have
been expected to have said, or what this
Court might think it was the duty of the
legislature to have said or done. The duty
of the Court is to examine the language
used, and to give effect to it, whether it
approves or disapproves of what the
legislature has provided or whether it
thinks or not that the legislature might
more
properly
have
done
or
said
something else. No Court can, therefore,
proceed upon the assumption that the
legislature has made a mistake. There is
nothing more dangerous and fallacious in
interpreting a statute, than first of all to
assume
that
the
legislature
had
a
particular intention, and then having made
up one's mind what that intention was, to
conclude
that
the
intention
must
necessarily be expressed in the statute,
and then proceed to find it. This view has
also been taken by the Supreme Court in
the judgement reported in 1997 (8) SCC
522 (S.S. Bola and others Vs. B.D.
Sardana and others).

9. The respondents have contended
before this Court that it is well settled
principle of law that the power of
legislature to make amendment is not an
executive power but legislative power and
as such no restriction can be put on the
power of the legislature to amend the law
as provided in the Constitution. The Court
can strike down such legislation only on
the
ground
of
lack
of
legislative
competency or violation of fundamental
rights. There is no lack of legislative
competency. Further the right of the
petitioners, if any, is flowing from the
statute not from the Constitution and,
therefore, no fundamental right of the
Members can be said to be infringed. The
petitioners are creature of the statute,
therefore, they have only their limited
right within the statute. Admittedly, the
appointment was contractual appointment
and the period of two years has already
expired
as
per
the
amended
Act.
Therefore, the controversy is academic in
nature.

10. Mr. Ojha relied upon a three
Judges' Bench judgement of the Supreme
Court reported in 1985 (1) SCC 523 (K.
Nagaraj and others Vs. State of Andhra
Pradesh and another) to establish that an
age of retirement in public services is
widely
accepted
as
reasonable
and
rational. It has been argued that in
reducing the age of retirement scientific
investigation, material statistics, hardship
and
other
social
and
economic
consequences are to be taken into
account. However, the contention of the
petitioners was not accepted by the
Supreme Court. On the other hand, it has
been held that besides the ordinancemaking power being a legislative power,
the
argument
of
mala
fides
is
misconceived. The legislature, as a
body, can not be accused of having
passed a law for an extraneous
purpose. Its reasons for passing a law are
those that are stated in the objects and
reasons.
Even
assuming
that
the
executive, in a given case, has an ulterior
motive in moving a legislation, that
motive can not render the passing of law
malafide. This kind of "transferred
malice" is unknown in the field of
legislation.

11. From a five Judges' Bench
judgement of the Supreme Court reported
2 All] Ved Pal Singh Bhati and another V. State of U.P. and another
345
in AIR 1958 SC 538 (Shri Ram Krishna
Dalmia and others Vs. Shri Justice S.R.
Tendolkar and others) we find that it is
now well established that while Article 14
of
the
Constitution
forbids
class
legislation, it does not forbid reasonable
classification
for
the
purposes
of
legislation. In order, however, to pass the
test of permissible classification two
conditions must be fulfilled, namely (i)
that the classification must be founded on
an
intelligible
differentia
which
distinguishes persons or things that are
grouped together from others left out of
the group and (ii) that that differentia
must have a rational relation to the object
sought to be achieved by the statute in
question.

12. In AIR 1967 SC 1305
(Dinnapati
Sadasiva
Reddi,
ViceChancellor, Osmania University Vs.
Chancellor, Osmania University and
others) a five Judges' Bench of the
Supreme Court considered the cause that
before a provision is accepted as valid, the
Court must be satisfied that there is a
reasonable basis of classification which
appears on the face of the statute itself, or
is
deducible
from
the
surrounding
circumstances or matters of common
knowledge. If no such reasonable basis of
classification appears on the face of the
statute,
or
is
deducible
from
the
surrounding circumstances, the law will
have to be struck down as an instance of
naked discrimination. This observation
was made when the Court found that the
Vice-Chancellor, who was appointed
under the Act, or the Vice-Chancellor,
who was holding that post on the date of
commencement of the second amendment
of the Act (therein), form one single
group
or
class
unlike
the
factual
circumstances herein.
13. In contra to the words 'naked
discrimination', is the language of 2004
(1) SCC 712: AIR 2004 SC 1295
(Dharam Dutt Vs. Union of India),
where the Supreme Court has diluted the
words 'intelligible differentia' to that
extent that laying down of 'intelligible
differentia' does not, however, mean that
the legislative classification should be
scientifically
perfect
and
logically
complete.

14. Learned Counsel appearing for
the petitioners further submitted on the
strength of the judgement reported in
2007 (6) SCC 276 (Union of India and
another Vs. Shardindu) that contractual
service of the petitioners for a limited
period in the Board can not be said to be
purely on deputation basis. According to
us, possibly the petitioners suffer from
misconception of law. The fact is that the
petitioners worked as Members of the
Board for a limited period on the basis of
the contractual right as per the statute,
which can not be held to be a
constitutional right to claim relief to the
extent of enhancement of the period. In
2007 (6) SCC 624 (Aashirwad Films Vs.
Union of India and others) we find that
the test of reasonableness, however,
would vary from the statute to statute. The
petitioners therein wanted to establish that
a classification must not be arbitrary,
artificial or evasive and there must be a
reasonable,
natural
and
substantial
distinction in the nature of the class or
classes upon which the law operates.
Therefore, when the Court found that
there is a difference in the rate of tax held
that the same is ex facie arbitrary by
saying that the classification is only on
the basis of language without anything
more than the same. According to us, the
judgement itself made a difference
346 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
between the taxing statute with others and
has no application in the instant case. In
the instant case, neither there is any
difference of period amongst the members
nor there is any scope of interference with
objects and reasons of the amended Act,
which
appears
to
be
logical.
The
Members are not being affected nor
having
any
discrimination
amongst
themselves, we can not interfere with the
cause of enhancement of the tenure of the
other i.e. Chairman, which has been
excluded from the definition of members.
From 2008 (5) SCC 1 (P. Venugopal Vs.
Union of India) we find that once a
person is appointed to a tenure post, his
appointment to the said office begins
when he joins and it comes to an end on
the completion of the tenure unless
curtailed on justifiable grounds. Such a
person does not superannuate, he only
goes out of the office on completion of his
tenure. Concept of superannuation, which
is
well
understood
in
the
service
jurisprudence,
is
alien
to
tenure
appointments which have a fixed life
span. We have no quarrel with the
proposition. In the instant case, the
fixation of tenure of the Members is not
altered, therefore, the persons, who are
not being subjected for curtailing the
tenure, can not raise their voice in respect
of enhancement of tenure of others for
making difference. In further, it has been
held
by
the
Supreme
Court
that
curtailment of tenure on justifiable
grounds is not alien in the subject
context. Hence, we do not find any such
explanatory cause on the part of the
petitioners to uphold. Moreover, it is not
an impermissible over classification,
through a one-man legislation, which
clearly falls foul of Article 14 of the
Constitution being an apparent case of
naked discrimination in this democratic
civilised society governed by the rule of
law and renders the impugned proviso as
void ab initio and unconstitutional in such
case. The present case is not regarded as
one-man legislation nor an executive
action but purely a decision of legislative
body which can not be termed as malice.

15. Mr. D.K. Arora, learned
Additional Advocate General, contended
before this Court that U.P. Act No. 5 of
1982 gives definition about the post of
Chairman and Members distinctly as
under Sections 2(b) and 2(g) respectively,
as aforesaid. Section 4 of such Act gives
qualification of Members, as follows:

"4. (1) The Commission shall consist of a
Chairman and not less than six and not
more than eight other members to be
appointed by the State Government.

(2) Of the members-

(a) one shall be a person who occupies
or has occupied, in the opinion of the
State Government, a position of eminence
in Judicial Services;
(b) two shall be persons who occupy or
have occupied, in the opinion of such
Government, a position of eminence in
the State Education Services; and
(c) others
shall
have
teaching
experiences as -
(i) Professor
of
any
University
established by law in Uttar Pradesh; or
(ii) Principal of any college recognised
by or affiliated to any such University for
a period of not less than ten years; or
(iii) Principal
of
any
institution
recognised
under
the
Intermediate
Education Act, 1921 for a period of not
less than fifteen years.
(3) Every appointment under this
section shall take effect from the date on
2 All] Ved Pal Singh Bhati and another V. State of U.P. and another
347
which it is notified by the State
Government.

16. Thereafter he contended that the
petitioners did not challenge the U.P. Act
No. 22 of 2007, by which the tenure of
the Chairman and the Members were
fixed for a period of two years, but
challenged the U.P. Act No. 4 of 2008
when the tenure of the Chairman was
enhanced without disturbing the tenure of
the Members.

17. According to us, sufficiency of
the reason is as good as reasonableness of
the reasons and as such, the Court can not
scrutinize as to what is the necessity of
such amendment. A legislative body not
being an individual can not be held to
have passed a law for an extraneous
purpose, as already held by this Court.
Fixing of tenure of service is statutory but
not fundamental, therefore, the same can
not be held to be violative of Article 14 of
the Constitution, as contended by the
learned
Counsel
appearing
for
the
petitioners. This point has also been
considered by the Court making detailed
discussion. From a judgement of the
Supreme Court reported in 1996 (3) SCC
709 (State of A.P. and others Vs.
McDowell & Co. and others) we find
that in India, the position is similar to the
United States of America. The power of
Parliament or for that matter, the State
Legislature is restricted in two ways. A
law made by Parliament or by the
legislature can be struck down by the
Courts on two grounds and two grounds
alone,
viz.
(i)
lack
of
legislative
competency, and (2) violation of any of
the fundamental rights guaranteed in Part
III of the Constitution or of any other
constitutional provision. No enactment
can be struck down by just saying that it
is arbitrary or unreasonable. Some or
other constitutional infirmity has to be
found before invalidating an Act. An
enactment can not be struck down on
the ground that the Court thinks it
unjustified.
Parliament
and
legislatures, composed as they are
representatives of the people, are
supposed to know and be aware of the
needs of the people and what is good
and bad for them. The Court can not
sit in judgement over their wisdom. In
this connection, it should be remembered
that even in the case of administrative
action, the scope of judicial review is
limited
to
three
grounds,
viz.,
(i)
unreasonableness,
which
can
more
appropriately be called irrationality, (ii)
illegality, and (iii) procedural impropriety.
This point i.e. the constitutional validity
of the Act when can be challenged, has
been again reiterated by a three Judges'
Bench of the Supreme Court in the
judgement reported in 2007 (6) SCC 236
[Greater Bombay Coop. Bank Ltd. Vs.
United Yarn Tex (P) Ltd. and others]
following the ratio of McDowell & Co.
(supra) and it has been held that it is the
duty of the constitutional Courts under
our Constitution to declare a law enacted
by Parliament or the State Legislature as
unconstitutional when Parliament or the
State Legislature had assumed to enact a
law which is void, either for want of
constitutional power to enact it or because
the constitutional forms or conditions
have not been observed or where the law
infringes the fundamental rights enshrined
and guaranteed in Part III of the
Constitution.
For
the
purpose
of
sustaining the constitutionality of an Act,
a Court may take into consideration
matters of common knowledge, reports,
preamble, history of the times, objection
of the legislation and all other facts which
348 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
are relevant. The objects and reasons of
the Act impugned in this petition has
given sufficient reasons for the purpose of
enhancement of tenure of the Chairman
without interfering with the tenure of the
Members. As such the amendment can
not be said to be without any reason
whatsoever or infringing any right of the
petitioners herein. The Court should not
approach the enactment with a view to
pick holes or to search for defects of
drafting, much less inexactitude of
language employed. Indeed, any such
defects of drafting should be ignored out
as part of the attempt to sustain the
validity/constitutionality of the enactment.
After all, an Act made by the legislature
represents the will of the people and that
can not be lightly interfered with. In 2008
(2) SCC 254 (Karnataka Bank Ltd. Vs.
State of Andhra Pradesh and others)
the Supreme Court held that there is
always a presumption in favour of
constitutionality, and a law will not be
declared unconstitutional unless the case
is so clear as to be free from doubt. Where
validity of a statute is questioned and
there are two interpretations, one of which
would make the law valid and the other
void, the former must be preferred and
validity of law upheld. In pronouncing on
the constitutional validity of a statute, the
Court is not concerned with the wisdom
or unwisdom, justice or injustice of the
law. If that which is passed into law is
within the scope of power conferred on a
legislature and violates no restrictions on
that power, the law must be upheld
whatever a Court may think of it. A Full
Bench of our High Court (Lucknow
Bench) in the judgement reported in 2000
All CJ 840 (Public Services Tribunal
Bar Association and others Vs. State of
U.P. and others) held that the burden of
proof, that the impugned legislation is
unconstitutional, is upon the shoulders of
the incumbent who challenges it. Such
judgement of the Full Bench was also
upheld by the Supreme Court in 2003 (4)
SCC 104 (Public Services Tribunal Bar
Association Vs. State of U.P. and
another).

18. In AIR 1985 SC 1367 [Dr.
(Mrs.) Sushma Sharma etc. etc. Vs.
State of Rajasthan and others] it has
been held by the Supreme Court that a
certain tenure of service for the purpose
of absorption is made with an object to be
achieved and this has a rational nexus
with the object. Although the observation
was made in respect of the Act therein but
when we find that in this particular
amended Act the objects and reasons are
available, it would not be proper for us to
interfere with it. In 2002 (2) SCC 318
(State of Maharashtra Vs. Marwanjee
F. Desai and others) it has been held by
the Supreme Court that the statute shall
have to be considered in its entirety and
picking up of one word from one
particular provision and thereby analysing
it in a manner contrary to the statement of
objects and reasons is neither permissible
nor warranted. True intent of the
legislature shall have to be gathered and
deciphered in its proper spirit having due
regard to the language used therein.
Statement of objects and reasons is
undoubtedly an aid to construction but
that by itself cannot be termed to be and
by itself cannot be interpreted. It is a
useful guide, but the interpretation and the
intent shall have to be gathered from the
entirety of the statute. In AIR 1985 SC
1041 (M/s. Govind Saran Ganga Saran
Vs. Commissioner of Sales Tax and
others) it has been held by the Supreme
Court that it is well settled that when the
language of the statute is clear and admits
2 All] Shyam Sundar Agarwal V. State of U.P. and another
349
of no ambiguity, recourse to the statement
of objects and reasons for the purpose of
construing a statutory provision is not
permissible. According to us, in the
instant case when the tenure of the
members, being the petitioners, was
unaltered in two consecutive amendments
i.e. U.P. Act No. 22 of 2007 and U.P. Act
No. 4 of 2008 and initially no challenge
was thrown in respect of such fixation of
tenure, in the garb of the writ petition the
challenge of enhancement of tenure of the
Chairman can not be made. In 1963 SCR
(Supp.) 112 (The Gujarat University,
Ahmedabad Vs. Krishna Ranganath
Mudholkar and others) it has been held
by the Supreme Court that the statements
of objects and reasons of a statute may
and do often furnish valuable historical
material in ascertaining the reasons which
induced the legislature to enact a statute,
but in interpreting the statute they must be
ignored.

19. However, we are of the view that
in the present case promulgation of the
Act in question is not an administrative
action but a legislative action and no case
of lack of legislative competence is
available to us. The remaining question is
whether the action is violative of any
fundamental right guaranteed in Part III of
the
Constitution
or
any
other
constitutional provision or not. Since the
right of the petitioners is statutory right
and can not be said to be a constitutional
right and as such, fixation of tenure of
service, which was not interfered with
earlier enactment but tenure of Chairman
has been increased, can not at all be said
to be violative of fundamental rights
guaranteed in Part-III of the Constitution
or any other constitutional provision, if
any, available to the petitioners/Members.

20. Hence, in totality we do not find
any case on the part of the petitioners,
therefore, the writ petition is liable to be
dismissed and is accordingly dismissed,
however, without imposing any cost.
Interim order, if any, stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 10151 of 2009

Shyam Sundar Agarwal
...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Singh

Counsel for the Respondents:
Sri S.K. Mishra
S.C.

U.P. Urban Planning & Development Act,
1973-Section 37-Order passed by the
chairman under appeal-final-can not be
questioned before civil court-refusal of
interim order by Trail Court proper-when
suit itself not maintainable-No question
of
interim
order-moreover
the
Vice
Chairman passed demolition order after
hearing
petitioner-still
running-Civil
Suit-held-not maintainable.

Held: Para 11

Since I have held that original suit
instituted
by
the
petitioner
is
not
maintainable and liable to be dismissed,
therefore, the said suit stands dismissed.
Accordingly the Registrar General of this
Court is directed to communicate this
order forthwith to the District Judge,
Kanpur Nagar who shall place the order
on the record of the suit in question and