judgement:
tition (Crl.) No. 850 of 1982 (Under article 32 of the Constitution of India.) S.B. Malik and K.B. Rohtagi for the Petitioner.
Harbans Singh and D.D. Sharma for the Respondents.
The Judgment of the Court was delivered by TULZAPURKAR, J.
By this writ petition under article 32 of the Constitution the petitioner Naib Singh is challenging his continued detention in jail and is seeking an order in the nature of habeas corpus claiming that he has justly served more than the maximum sentence of imprisonment prescribed under law and should, therefore, be released.
The petitioner was originally sentenced to death on 18.1.1969 by the learned Sessions Judge, Ferozepore, for committing an offence of murder under section 302 Indian Penal Code.
Later, on a mercy petition preferred by him, his death sentence was commuted by the Governor of Punjab to imprisonment for life, which he has been undergoing in the Central Jail at Bhatinda.
Excluding the period spent by him as an under trial prisoner (in respect whereof no life convict is entitled to the benefit of a set off under section as interpreted by this Court in Kartar Singh 's (1) case), the petitioner appears to have undergone a total imprisonment of 22 years 2 months and 17 days inclusive of remissions as under: Yrs.
months days ____________________________________________________________ (a) actual rigorous imprisonment after conviction.
11 5 10 (b) Jail remissions 2 3 6 (c) Govt.
remissions 8 6 1 _____________________________ Total: 22 2 17 ________________________________ Admittedly, neither his sentence has been remitted fully nor commuted for imprisonment for a term not exceeding 14 years either 775 under section 55 I.P.C. or section 433(b) Cr.
P.C. 1973 by the appropriate Government, with the result that he is liable to serve his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godse 's(1) case.
However, on the basis of the aforesaid particulars, which are not disputed, the petitioner 's case is that he has positively undergone more than 14 years of sentence including remissions and since through the Officer in Charge of jail the Government got executed his sentence in jail custody in the form of rigorous imprisonment, that is by subjecting him to hard labour and also by awarding him remissions the Government must be deemed to have commuted his sentence to 14 years either under section 55 I.P.C. or section 433(b) Cr.
P.C. 1973, notwithstanding that no formal order in that behalf was made by the State Government and as such his continued detention in jail is illegal and he is entitled to be released forthwith.
Counsel for the petitioner elaborated the petitioner 's case thus: Section 53 I.P.C. prescribes five or six distinct categories of punishment to which offenders are liable under the Indian Penal Code.
Prior to its amendment by section 117 of the Code of Criminal Procedure (Amendment) Act (26 of 1955) that section prescribed the punishment of 'Transportation ' at item 'Secondly ' but that was substituted by 'Imprisonment for life ' by the said Amending Act (26 of 1955) with effect from January 1, 1956.
According to counsel though persons who commit the offence of murder have been made liable to the newly substituted punishment of 'Imprisonment for life ' instead of the earlier sentence of 'transportation for life ' under section 302 I.P.C., read with 'secondly ' of section 53 I.P.C., this new sentence of 'Imprisonment for life ' (either awarded originally by the Sessions Court or by way of commutation of death sentence by the appellate Court or the appropriate Government or authority) has not been made legally 'executable ' in jail under either the Code of Criminal Procedure 1898 or 1973 or any other law or under any writ, order, or warrant of the Court, by the Officer in Charge of jail and like 'sentence of transportation for life ': imprisonment for life ' remains executable by way of banishment or exile to the 'places ' envisaged under section 32 of the Prisoners Act (3 of 1900) and the Officer in Charge of the jail is merely mandated to keep this convict person in intermediate custody only and is required to 'deliver him over ' to appropriate authority and custody for the purpose of 'removal to the places ' aforesaid, for executing or carrying out the sentence and in this behalf reliance was placed on 776 the prescribed Forms of Warrant of Commitment under sections 383 and 386 of the Cr.
P.C. 1898 as also under section 418 of the Cr.
P.C. 1973 and, therefore, the detention in jail of a person under 'Imprisonment for life ' is unlawful.
Counsel, further urged that the Amending Act (26 of 1955) did not change the nature of punishment formerly known as 'transportation for life ' by calling it 'imprisonment for life ' and the latter like the former remains distinct from the punishment of 'rigorous or simple imprisonment ' enlisted at item 'Fourthly ' in section 53 I.P.C. and it is only the punishment enlisted at item 'Fourthly ' (which must mean imprisonment for a term) that can be executed in a jail either in rigorous manner or simple depending upon the Court 's direction contained in the Warrant of commitment, in other words, the two punishments, namely, imprisonment for life ' and 'imprisonment (for a term) rigorous or simple ' are distinct punishments as regards their nature, the place and the mode of their execution and the Officers executing them.
In substance, counsel 's contention has been that in regard to the sentence of life imprisonment the place where it has to be executed or carried out has not been appointed under section 32 of the Prisoners Act, 1900 nor has its nature been prescribed, that is to say, it is not necessarily rigorous.
In support of the latter aspect regarding the nature of the punishment counsel relied upon the fact that even the Law commission in its 39th Report dated 4th July, 1968 on "The Punishment of Imprisonment for Life under the I.P.C." had recommended a suitable amendment in the I.P.C. by inserting a specific provision to the effect: "Imprisonment for life shall be rigorous" and that the said recommendation was reiterated by it in its 42nd Report which suggests that the existing Law on this aspect is not clear.
Counsel, therefore, urged that since the sentence of 'imprisonment for life ', like the sentence of 'transportation for life ' can be executed only by the convict being 'removed to the place or places ' required to be appointed by the State Government under section 32 of the Prisoners Act 1900 and since no 'such place or places ' have been appointed under the aforesaid provision by the State Government, the executing authorities are obliged by the present State of law to 'execute ' or 'carry out ' the said sentence in jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under section 55 I.P.C. or section 433(b) Cr.
P.C. 1973.
In other words, according to counsel, in the absence of any proper authority of law warranting the detention and execution of the sentence of such life convict in jail custody, his detention in such jail custody will have to be regarded as illegal and unlawful or alternatively it should be held that on his being made to undergo 777 rigorous imprisonment in jail for a period of 14 years (inclusive of remissions) he would be entitled to be released from jail as on the expiry of the aforesaid period his continued detention would be illegal.
It was on the basis of the aforesaid reasoning that counsel contended that although no formal order of commutation either under section 55 I.P.C. or section 433 (b) Cr. P.C. has been passed in the case of the petitioner, the petitioner having been subjected to rigorous imprisonment for a period of more than 14 years (inclusive of remissions) the State Government should be deemed to have passed such an order and the petitioner was entitled to be released forthwith.
On the other hand counsel for the respondents seriously disputed that either the old sentence of 'transportation for life ' or the new sentence of 'imprisonment for life ' substituted by the Amending Act 26 of 1955 was or is executable only by way of banishment or exile of the convicts to overseas penal settlements or that the Officers in Charge of jails could not or cannot confine them in the jails within the country for executing or carrying out the sentences imposed upon them.
Counsel emphatically denied that either the old sentence of 'transportation for life ' or the newly substituted sentence of 'imprisonment for life ' (either awarded originally or by way of commutation of death sentence) had not been or has not been made legally executable in jails in the country and contended that there was and is ample legal authority warranting the execution or carrying out of such sentences in the jails through the Officers in Charge thereof and in that behalf reliance was placed on sections 383 384 of the old Cr.
P.C. 1898 as well as sections 418 419 of the present Cr.
P.C. 1973 read with ss.3, 7, 15, 16, 29 and 32 of the Prisoners Act No. 3 of 1900 and certain executive or administrative orders or directions issued from time to time by State Governments; in particular reference was made to Paragraphs 719 and 726A of the Punjab Jail Munual whereunder transportation prisoners (who would include life convicts) could be made to undergo their sentences in certain jails in the country such jails being constituted the 'place ' for their confinement under section 32 of Act 3 of 1900, and counsel urged that accordingly the petitioner herein has been undergoing his sentence of life imprisonment in the Central Jail, Bhatinda.
Further, on the aspect of the nature of the punishment counsel contended that having regard to the insertion of a new section, section 53 A in the Indian Penal Code by the Amending Act 26 of 1955, which is in the nature of an Interpretation Clause it would be clear that Parliament intended that a sentence of 'imprisonment for life ' should be equivalent to rigorous imprisonment for life.
It was pointed out that on both the aspects touching 778 the punishment of 'imprisonment for life ' (namely, the place of its executability as well as its nature) the contentions urged on behalf of the petitioner have been concluded by two well known judicial pronouncements, one of the Privy Council in Pandit Kishori Lal 's (1) case and the other of this Court in Gopal Godse 's case (supra) and the position in law on both the aspects having been settled by those decisions the recommendation made by the Law Commission in its 39th Report as well as 42nd report will be of no avail to the petitioner and will have to be regarded as having been made only for the purpose of removal of doubts and clarifying or declaring the existing legal position.
If, therefore, the sentence of 'imprisonment for life ' is nothing but 'rigorous imprisonment for life ' and can be and is being legally executed or carried out in one of the jails in the country in the case of the petitioner there will be no question of releasing him forthwith simply because he has served 14 years of rigorous imprisonment (inclusive of remissions) in the absence of an order of commutation passed by the State Government either under section 55 of the I.P.C. or section 433 (b) of the Cr.
P.C. 1973.
The petitioner is, therefore not entitled to the relief sought by him.
From the rival contentions urged by counsel on either side as summarised above it will appear clear that the entire edifice of the petitioner 's claim for immediate release from jail custody is based on two premises : (a) inexcusability of the sentence of life imprisonment (formerly called transportation for life) in jail through the Officer in Charge thereof under the existing law and (b) undefined nature of punishment to be suffered under the sentence of life imprisonment which is not necessarily rigorous; but because he was made to undergo his sentence of life imprisonment in jail and that too in rigorous manner for more than 14 years (inclusive of remissions) his sentence should be deemed to have been commuted by the State Government either under section 55 I.P.C. or under section 433 (b) Cr.
P.C. 1973 without a formal order in that behalf and he be released forthwith.
The question is whether the two premises on which his claim to immediate release rests are valid ? On the question whether a sentence of transportation for life could be executed in jails within the country or the same was executable only beyond the seas, the position, in our view, has been clearly enunciated by the Privy Council in Pt.
Kishori Lal 's case (supra).
After considering the history of the sentence of transportation, the relevant provisions of the Indian Penal Code, the Code of 779 Criminal Procedure and the Prisoners Act, the Privy Council came to the conclusion that the said provisions clearly showed that a sentence of transportation was not necessarily executable beyond the seas.
It observed at Page 66 of the Report thus : "These sections make it plain that when a sentence of transportation has been passed it is no longer necessarily a sentence of transportation beyond the seas.
Nowhere is any obligation imposed on the Government either of India or of the Provinces to provide any places overseas for the reception of prisoners.
It appears that for many years the only place to which they have been sent is the Andaman Islands are now in Japanese occupation.
Their Lordships have been referred to various orders and directions of an administrative and not a legislative character showing what prisoners are, and are not, regarded as fit subjects for transportation thereto, and showing also that nowadays only such of those prisoners sentenced to transportation as may volunteer to undergo transportation overseas are sent to those islands. . .
But at the present day transportation is in truth but a name given in India to a sentence for life and, in a few special cases, for a lesser period, just as in England the term imprisonment is applied to all sentences which do not exceed two years and penal servitude to those of three years and upwards. .
So, in India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners. . " However, Counsel for the petitioner, made a brave attempt, of course in all humility to submit that the provisions of law referred to by the Privy Council for basing its aforesaid conclusion do not warrant the said conclusion and with a view to canvas his submission he elaborately dealt with and took us through the various provisions of the Penal Code, Criminal Procedure Code and the Prisoners Act.
On giving our careful and anxious consideration to the matter we have come to the conclusion that it is difficult to accept counsel 's submission.
Counsel pointed out that great reliance was placed by the Privy council on section 58 of the Indian Penal Code, which was in force then (since repealed by Amending Act 26 of 1955), but urged that 780 that section merely provided for the temporary or transitory detention and treatment of the offender in local jail pending his deportation beyond the seas and therefore that provision could not be relied upon for coming to the conclusion that transportation prisoners could be confined in local jails for undergoing their entire sentences.
It must, however, be pointed out that the Privy Council has not solely relied upon section 58 I.P.C. for reaching its aforesaid conclusion.
In fact, in that behalf, it has observed : "Were these (sections 53, 55 and 58 I.P.C.) the only statutory provisions dealing with the matter, there would be much force in the argument that section 58 should be read as providing merely for the temporary or transitory detention and treatment of an offender while arrangements were being made for his transportation beyond the seas" and has not merely gone into the history of the sentence but also indicated the other provisions of Criminal Procedure Code 1898 and the Prisoners Act 1900 which supported its conclusion.
In other words, it realised the fact that section 58 I.PC.
made provision for a transitory period but taken along with other statutory provisions it helped to reach the conclusion that transportation prisoners were not necessarily required to be sent beyond the seas and in that behalf it relied upon section and particularly certain provisions like sections 29, 31 and 32 of the Prisoners Act, 1900 as amended in 1903, which, in its opinion, were decisive on the point.
As we shall point out presently, the other statutory provisions read with the orders of administrative character issued from time to time by the State Governments to which a reference has also been made in the judgment, do support the conclusion reached by it.
It may be pointed out and this was not even disputed by the counsel for the petitioner that even prior to the coming into force of the Amending Act 26 of 1955 (i.e. prior to 1.1.1956) all prisoners sentenced to transportation for a term of years or for life were not invariably deported to the over seas penal settlement in the Andamans but transportation prisoners were divided into two categories, namely those who were eligible for deportation and those who were not (who generally included convicts suffering from specified diseases or infirmities) and only the former were deported to Andamans while the latter were transferred to and confined in one or the other jails within the country under sec.
32 of the Prisoners Act of 1900 and in course of time their cases were referred to State Government for passing an order under sec.
55 I.P.C. or sec.
402 Cr.
P.C. 1898 which was within the discretion of the State Government.
Reference in 781 this behalf may be made to sec.
32 of the Prisoners Act 1900 and Paragraph 719 of Punjab Jail Manual.
Section 32 of Act III of 1900, which specifically deals with 'Persons Under Sentence of Transportation (now applicable to persons sentenced to imprisonment for life) runs thus : 32.
"Appointment of places for confinement of persons under sentence of transportation and removal thereto (1) The State Government may appoint places within the State to which persons under sentence of transportation shall be sent; and the State Government, or some officer duly authorised in this behalf by the State Government, shall give orders for the removal of such persons to the places so appointed, except when sentence of transportation is passed on a person already undergoing transportation under a sentence previously passed for another offence.
(2) In any case in which the State Government is competent under sub section
(1) to appoint places within the States and to order the removal thereto of persons under sentence of transportation the State Government may appoint such places in any other State by agreement with the State Government of that State and may be like agreement give orders or duly authorise some officer to give orders for the removal thereto of such person.
" Under this provision the State Government has been empowered to appoint places within the State, and places in other States with their consent, where transportation prisoners could be lodged for undergoing their sentences.
It is obvious that the expression 'confinement ' occurring in the marginal note of the section means the prisoners ' detention in the places for the purpose of executing or carrying out their sentence.
Counsel for the petitioner strenuously urged that the 'places ' envisaged for confinement of transportation prisoners under sec.
32 of the Prisoners Act 1900 could not be the places in the jails but must be some place or places outside the jails.
In other words, the contention was that under the power for confinement of transportation prisoners the State Government cannot appoint jails as the 782 'places ' for their confinement.
We fail to appreciate as to why such a qualification or limitation on the power of the State Government under sec.
32 should be read into with section.
Having regard to the unqualified and clear language of the section there is no reason why the State Governments cannot appoint jails as the "places" for confinement of transportation prisoners.
Counsel relied upon two decisions of Lahore High Court in Kundan Lal and others vs Emperor(1) and in Re.
Khairati Ram (2) to support his contention but in our view neither of these decisions lays down anything as suggested by Counsel.
In both the cases the court was concerned with the question as to where should an approver to whom dardon has been tendered under sec.
337 of Cr.
P.C. 1898 should be kept during an inquiry or trial and all that the Lahore High Court has held is that he must be detained in judicial custody in prison which includes a judicial lock up and not in custody of the police and in both the cases a direction issued by the local Government under sec.
514 (1) of Cr.
P.C. 1898 for keeping such approvers in Lahore Fort under police control was declared illegal and ultra vires.
Neither of these decisions is an authority for the proposition that in the exercise of the power conferred under sec.
32 of Prisoners Act 1900 the State Government cannot constitute or appoint jails within its territory as the "places" for confinement for transportation prisoners.
Moreover, as we shall point out later Paragraph 719 of the Punjab Jail Manual clearly shows that by several Notifications or Orders issued by the Punjab Government certain local jails within the Province have been constituted the "places" under sec.
32 of the Act for confinement of transportation prisoners.
It is thus clear that under sec.
32 of Act III of 1900 a sentence of transportation either for a term or for life could be and a sentence of life imprisonment can be made executable in local jails by constituting such jails as the 'places ' within the meaning of sec.
32 under orders of the State Governments.
Apart from sec.
32 of the Prisoners Act, sec. 383 of Cr.
P.C. 1898 and sec.
418 of Cr. P. C. 1973 also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails.
Both the sections appear in a Chapter dealing with 'Execution of Sentences ' under the respective codes and are identically worded and each one 783 provides that, where the accused is sentenced to imprisonment for life the Court passing the sentence shall forthwith forward the warrant to the Jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place with the warrant.
It is obvious that the 'confinement ' of the convict in the jail pursuant to the Court 's warrant issued under the sections is for the purpose of executing or carrying out of the sentence.
The proviso to sub sec.
(1) of sec.
418 and sub sec.
(2) of sec.
418 make this position abundantly clear that the expression 'confinement ' has been used in the sense of execution or carrying out of the sentence.
Some argument based on the concerned forms of Warrant of Commitment prescribed under both the Codes (of 1898 and 1973) was made by Counsel for the petitioner but it is obvious that nonprescription of appropriate forms of Warrant of Commitment would not affect the legality of the detention in local jails so long as the requisite legal authority and power in that behalf is vested in the Criminal Court.
Moreover, the forms prescribed under the Codes cannot be regarded as exhaustive and an appropriate Warrant of Commitment directing the execution or carrying out of sentence of life imprisonment in jail could be adopted and issued by the Court so long as in law the requisite authority and power in that behalf is vested in the court.
Paragraph 719 of the Punjab Jail Manual as published in 1916 ran thus: 719.
"Places of confinement for transportation prisoners Every prisoner sentenced to transportation for a term or for life, if ineligible for deportation to the Andamans, shall be transferred to and confined in one or other of the following jails which are constituted places for the detention of transportation prisoners within the Punjab, under section 32 of Act III of 1900, namely: The Lahore Borstal Central Jail and the Central Jails and Lahore, Montgomery and Multan; the District Jails at Ambala, and Multan and the Lahore Female Jail.
" In the margin reference has been given to several Notifications of Punjab Government specifying the jails named in the Paragraph.
It appears that Paragraph 719 itself was amended some time later (when it was done Counsel was unable to state but presumably 784 before 'transportation for life ' was substituted by 'imprisonment for life ') and the words "if ineligible for deportation to the Andamans" were deleted for the amended Para 719 as appearing in Punjab Jail Manual published in 1975 runs thus : 719.
Places of Confinement for transportation Prisoners Every prisoner sentenced to transportation for a term of years or for life, shall be transferred to and confined in one or other of the following jails which are constituted places for the detention of transportation prisoners within the Punjab, under section 32 of Act III of 1900, namely: The Central Jails at Ambala and Ferozepur, the Borstal Institution and Juvenile Jail, Faridkot, women 's section, District Jail, Ludhiana, in the case of women prisoners and District Jail, Delhi.
Here also in the margin reference is given to various Government Notifications specifying the Jails named in the Paragraph.
It will thus appear clear that since after the deletion of the words "if ineligible for deportation to Andamans" in the Paragraph 719 so far as the Punjab is concerned no transportation prisoner was deported overseas and all transportation prisoners were detained and confined in local jails which were the appointed places envisaged under sec.
32 of Act III of 1900.
It is thus clear that in course of time the sentence of transportation either for a term or for life became executable in jails within the country and the same position must obtain in regard to persons sentenced to imprisonment for life on and after 1 1 1956 in view of sec.
53A I.P.C inserted by the Amending Act 26 of 1955.
The first premise on which the petitioner 's claim to immediate release rests is thus not valid.
As regards the nature of punishment required to be suffered under the sentence of 'imprisonment for life ' (substituted for 'transportation ' by the Amending Act 26 of 1955) Counsel for the petitioner urged that, its nature not having been defined anywhere, it cannot be equated to, rigorous imprisonment for life '.
The argument was that the Amending Act (26 of 1955) did not change the nature of the punishment required to be suffered under either and like the sentence of 'transportation for life '.
the sentence of imprisonment for life ' remains distinct from the punishment of "rigorous or simple imprisonment ' enlisted at item 'Fourthly ' in section 53, IPC.
Counsel pointed out that both in the Indian Penal 785 Code as well as the Criminal Procedure Codes (of 1898 as well as of 1973) a distinction has been maintained between 'imprisonment for life ' and 'imprisonment for a term ' and it is only the latter which can be either 'rigorous ' or 'simple ' depending upon the Court 's direction given at the time of sentencing the accused under section 60, IPC and there is nothing either in the Penal Code or Procedure Codes which indicates that 'imprisonment for life ' is or would be necessarily rigorous.
It is not possible to accept this contention for the reasons which we shall presently indicate.
In the first place, implicit in the argument so advanced by counsel for the petitioner is the acceptance of the position that the earlier sentence of 'transportation for life ' and the substituted sentence of 'imprisonment for life ' are similar as regards the nature of punishment required to be suffered by the convict under either.
If therefore, there is sufficient statutory material or material having the force of law to show that the sentence of transportation either for life or for a term involved exaction of hard labour from the convict while undergoing the sentence the contention must obviously fail.
It is well known that transportation to overseas penal settlement always implied hard labour for the concerned convicts and hence deportation beyond the seas popularly called 'Black water ' was the most dreaded punishment in India not without reason.
Section 59 of the Prisons Act 9 of 1894 an enactment made for amending the law relating to prisons with a view to prescribe uniform system of prison management in India, initially conferred power on the Governer General in Council and later since 1937 confers power on the State Governments to make rules, consistent with the Act, in regard to the various matters; inter alia under cl.
(14) thereof rules could be made "for classifying and prescribing the forms of labour and regulating the periods of rest from labour" and it appears that requisite rules in that behalf have been made by the authorities on whom the power had been or has been conferred.
Counsel for the respondent has referred us to 'Andaman and Nicobar Manual ' a Government of India Publication of the year 1908 which contains several rules, regulations and orders governing the Management and Control of the Penal Settlement at Port Blair and Nicobar Islands.
Section 1 (2) of the Manual states that the Penal Settlements of Port Blair and Nicobar Islands have been specially appointed as the 'places ' within the meaning of s.33 of Prisoners Act 5 of 1871 which is equivalent to section 32 of Prisoners Act 3 of 1900 and "term as well as life convicts are permitted to be transported to them", while section 1 (3) states that 786 "the barracks and other places used for the confinement of prisoners at Port Blair have also been declared prisons for the confinement of convicts sentenced to penal servitude".
Chapter II deals with classification of convicts and section 17 is very important which runs thus: 17. "(1) By section 34, Act V of 1871, the Governor General in Council may, from time to time, prescribe rules as to the classification of transported convicts.
(2) The rules so sanctioned by the Government of India for the classification of convicts are comprised in the following orders. (3) Transportation entails hard labour under strict discipline, with only such food as is necessary for health.
Any mitigation of the above is an indulgence which may, at any time, be withdrawn in whole or in parts".
Sub cl.
(3) of section 17 in substance gives the interpretation of the expression 'transportation ' and in terms states that transportation means hard labour under strict discipline, subject to such indulgence as may be granted or withdrawn from time to time.
Sections 24 and 25 provide for classification and grades of prisoners on their arrival in the penal Settlement.
Section 146 which prescribes hours of labour says that the hours of work are regulated by the Superintendent and they shall ordinarily consist of 9 hours daily, including the time of going to and returning from work (as far as practicable).
These provisions of the Andaman and Nicobar Jail Manual clearly bring out the fact that the sentence of transportation either for life or for a term inexorably mean rigorous imprisonment in the sense of exaction of hard labour from the convict.
This position has been judicially noticed and accepted by the Privy Council in Pandit Kishori Lal 's case (supra) where while elaborately dealing with the history of the sentence of transportation the Privy council has clearly observed that both in England and in India transportation prisoners when deported beyond the seas were subjected to conditions of hard labour under strict discipline.
Relying on section 58, I.P.C. and other statutory provisions the Privy Council also concluded that even when it was made to suffer inside a local jail within the country transportations meant rigorous imprisonment.
Therefore on counsel 's own argument the two being similar in nature the sentence of imprisonment for life must mean rigorous imprisonment for life.
787 Secondly by the Amending Act 26 of 1955 a new section 53 A has been added to the I.P.C. which in our view clinches the matter beyond any doubt, because sub section
(2) read with sub section
(1) thereof affords a clear indication by necessary implication that a sentence of 'imprisonment for life ' must be regarded as equivalent to 'rigorous imprisonment for life '.
It is obvious that section 53A is in the nature of an 'Interpretation Clause ', for in terms it deals with how 'a sentence of transportation for life or for a term ' should be construed in penal jurisprudence.
Sub section
(1) provides that any reference to 'transportation for life ' in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or of any enactment repealed, shall be construed as a reference to 'imprisonment for life '.
Sub section
(2) runs thus: (2) "In every case in which a sentence of transportation for a term has been passed before the commencement of the Code of Criminal Procedure (Amendment) Act, 1955, the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term".
Under this provision Parliament has expressly stated that a sentence of transportation for a term has to be executed or carried out as if it were a sentence of rigorous imprisonment for the same term.
If transportation for a term has been equated to rigorous imprisonment for the same term, by necessary implication the sentence of 'transportation for life ', now substituted by 'imprisonment life ', which is awardable for more serious, or more grave or more heinous crimes must mean rigorous imprisonment for life, that is to say it cannot be anything but rigorous.
Counsel for the petitioner, however, pointed out that sub section
(2) only deals with a sentence of transportation for a term and not with transportation or imprisonment for life and that the provision is applicable to only sentences of transportation for a term awarded prior to 1.1.1956.
This is undoubtedly true but that would not affect the question whether the provision gives the requisite guidance on the nature of punishment intended to be inflicted on the convicts sentenced to imprisonment for life and such guidance is clear by necessary implication.
In our view the legislative intent has been clearly spelt out and expressed that the nature of punishment required to be suffered under a sentence of 'imprisonment for life ' awardable on and after 1.1.1956 is rigorous imprisonment.
788 That this is how section 53 A (2) of I.P.C. was construed by this Court is clear from the decision in Gopal Godse 's case (supra).
Facts of that case shortly stated were these: Gopal Godse was sentenced to transportation for life by a Judge of the Special Court, Red Fort, Delhi on 10th February, 1949.
After undergoing 20 years rigorous imprisonment together with the remissions, he challenged the legality of his continued detention, claiming that he had served his sentence and was therefore, entitled to be released.
One of the questions posed by the Court for its determination was: "Whether the petitioner (Gopal Godse) who was sentenced to transportation for life (and whose sentence had not been commuted under section 55 of the I.P.C. or under section 402 (1), Cr.
P.C. could be dealt legally as if he were a person sentenced to rigorous imprisonment"? After approving the Privy Council in decision Pandit Kishori Lal 's case (supra) which was based on section 58, I.P.C. and other statutory provisions, this Court answered the question in the affirmative solely basing its conclusion on the provisions contained in section 53 A (2) a provision added by the Amending Act 26 of 1955 with effect from 1.1.1956.
After setting out the provisions the court observed thus: "Whatever justification there might have been for the contention that a person sentenced to transportation could not be legally made to undergo rigorous imprisonment in a jail in India except temporarily till he was so transported, subsequent to the said amendment there is non under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term." ' It may significantly be pointed out that Gopal Godse 's sentence of transportation for life had been passed on 10th February, 1949, i.e. prior to the coming into force of the Amending Act 26 of 1955 and the question had come up for consideration before this Court in January 1961 long after the Amending Act had come into force whereunder the sentence of imprisonment for life had been substituted for transportation, with the result that this Court had to and did rely on section 53A (2) for its conclusion.
In other words, this Court in that case equated the sentence of transportation for life, (which continued as imprisonment for life on and after 1.1.1956) to rigorous imprisonment for life.
It may be pointed out that even thereafter there is no dearth of judicial precedents where, in the matter of nature of punishment, 789 imprisonment for life has been regarded as equivalent to rigorous imprisonment for life.
In State of Madhya Pradesh vs Ahmadulla(1) this Court, after reversing the judgment of acquittal recorded by the High Court on a charge of murder, imposed the following sentence: "But taking into account the fact that the accused has been acquitted by the Sessions Judge an order which was affirmed by the High Court we consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life".
Again in the celebrated case of K.M. Nanavati vs State of Maharastra(2) (second Nanavati case) the Bombay High Court had sentenced the accused expressly to "rigorous imprisonment for life" and this Court while dismissing the appeal upheld the sentence as being correctly awarded.
During the hearing our attention was invited to a decision of the Kerala High Court in Mathammal Saraswathi vs The State,(3) where that High Court has taken the view that while passing the sentence of imprisonment for life a Criminal.
Court should keep in view the provisions of section 60 of I.P.C. and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused, and went on to clarify the position by stating that the imprisonment for life in that case shall be simple imprisonment and not rigorous.
It is not possible to sustain the aforesaid view of the Kerala High Court.
In the first place, a distinction between 'imprisonment for life ' and 'imprisonment for a term ' has been maintained in the Penal Code in several of its provisions.
Secondly, by its very terms section 60 is applicable to a case where "an offender is punishable with imprisonment which may be of either description" and it is only in such case that it is competent for the court to direct that "such imprisonment shall be either wholly rigorous or wholly simple or that any part of such imprisonment shall be rigorous and the rest simple".
And it is clear that whenever an offender is punishable with "imprisonment for life" he is not punishable with "imprisonment which may be of either description", in other worns section 60 would be inapplicable.
790 However, for the reasons discussed above and in view of the authoritative pronouncements made by the Privy Council and this Court in Pandit Kishori Lal 's case and Gopal Godse 's case respectively, it will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life.
In this view of the matter, the recommendation of the Law Commission contained in its 39th and 42nd Reports suggesting a suitable amendment in the Indian Penal Code will have to be regarded as having been made only for a purpose of removal of doubts and clarifying or declaring the existing legal position.
Presumably for that reason the suggested amendment has not been regarded as absolutely necessary and therefore not put through so far.
Having regard to the aforesaid discussion, none of the ground on which the petitioner 's claim to immediate release rest can be held to be valid and therefore, in the absence of any order of commutation having been passed either under section 55, I.P.C. or section 433 (b) of Cr. P. C. 1973, the petitioner is not entitled to be released.
Rule is therefore discharged.
H.L.C. Petition dismissed.

summary:
The petitioner had been originally sentenced to death under section 302, I.P.C. but on a mercy petition preferred by him, the sentence had been commuted to 'imprisonment for life '.
He had undergone actual rigorous imprisonment of 11 years, 5 months and 10 days but, inclusive of remissions, the total imprisonment worked out to 22 years, 2 months and 17 days.
In support of the claim that the petitioner should be released forthwith it was contended: (i) The detention 'in jail ' of a person under 'imprisonment for life ' is unlawful because, after the enactment of section 117 of the Cr.
P.C. (Amendment) Act (26 of 1955), though persons who commit murder have been made liable to the newly substituted punishment of 'imprisonment for life ' instead of the earlier sentence of 'transportation for life ' under section 302, I.P.C. read with 'Secondly ' of section 53, I.P.C., this new sentence has not been made legally executable in jail; and like the sentence of 'transportation for life ', it remains executable by way of banishment or exile to the 'places ' envisaged 771 under section 32 of the Prisoners Act, 1900; (ii) The Amending Act (26 of 1955) did not change the nature of punishment formerly known as 'transportation for life ' by calling it 'imprisonment for life ' and the latter, like the former, remains distinct from the punishment of 'rigorous or simple imprisonment ' enlisted at item 'Fourthly ' in section 53, I.P.C. and, it is only the punishment enlisted at item 'Fourthly ' (which must mean 'imprisonment for a term ') that can be executed in jail either in rigorous manner or simple; (iii) Since the sentence of 'imprisonment for life ' can be executed only by the convict being 'removed to the place or places ' required to be appointed under section 32 of the Prisoners Act, 1900 and since no such 'place or places ' have been appointed under the aforesaid provision by the State Government, the executing authorities are obliged by the present state of the law to 'execute ' or 'carry out ' the said sentence in jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under section 55, I.P.C. or section 433 (b), Cr. P.C., 1973; and (iv) Although no such formal order of commutation had been passed in the case, the petitioner having been subjected to rigorous imprisonment for a period of 14 years, the State Government should be deemed to have passed such an order.
Counsel for respondents contended: (1) that on both the aspects touching the punishment of 'imprisonment for life ', namely, the place of its executability as well as its nature, the contentions urged on behalf of the petitioners have been concluded by Pandit Kishori Lal 's and Gopal Godse 's cases; (ii) that since the sentence of 'imprisonment for life ' can be legally executed in jails within the country there is no question of releasing the petitioner forthwith, in the absence of an order of commutation passed by the State Government either under section 55, I.P.C. or section 433 (b), Cr. P.C., 1973, simply because he has served 14 years ' of rigorous imprisonment.
Dismissing the Petition, ^ HELD 1.
Since the petitioner 's sentence has not been commuted for imprisonment for a term not exceeding 14 years either under section 55, I.P.C. or section 433 (b), Cr.
P.C. 1973 by the appropriate Government, he is liable to serve his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godse 's case.
[790 D] Gopal Godse 's case; , , referred to.
The sentence of 'transportation ' either for a term or for life was executable in jails within the country.
The same position must obtain in regard to persons sentenced to 'imprisonment for life ' on or after January 1, 1956.
[784 F] (1) The law on the point has been clearly enunciated in Pandit Kishori Lal 's case where the Privy Council held that "a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners".
There is no force in the contention that the provisions of law referred to by the Privy Council for basing this conclusion did not warrant the said conclusion.[778 H 779G] Pandit Kishori Lal 's case, A.I.R. 1945 P.C. 64 referred to.
(ii) Even prior to the coming into force of the Amending Act 26 of 1955 (i.e.,prior to January 1, 1956) all prisoners sentenced to transportation for a 772 term of years or for life were not invariably deported to the overseas penal settlement in the Andamans.
Transportation prisoners were divided into two categories, namely, those who were eligible for deportation and those who were not (who generally included convicts suffering from specified diseases or infirmities) and only the former were deported to Andamans while the latter were transferred to and confined in one or the other jails within the country under section 32 of the Prisoners Act of 1900 and in course of time their cases were referred to State Government for passing an order section 55, I.P.C. or section [780 F H] (iii) Under section 32 of the Prisoners Act, 1900 the State Government has been empowered to appoint places within the State, and places in other States with their consent, where transportation prisoners could be lodged for undergoing their sentences.
It is obvious that the expression 'confinement ' occurring in the marginal note of the section means the prisoners ' detention in the place for the purpose of executing or carrying out their sentence.
Having regard to the unqualified and clear language of the section there is no reason why the State Governments cannot appoint jails as the 'places ' for confinement of transportation prisoners.
A sentence of 'transportation ' either for a term or for life could be, and a sentence of "imprisonment for life" can be, made executable in local jails by constituting such jails as the 'places ' within the meaning of section 32 under orders of the State Governments.
[781 F 782 F] Kundan Lal & Ors.
vs Emperor, A.I.R. 1931 Lahore 353; and Re: Khairati Ram, A.I.R. 1931 Lahore 476 distinguished.
(iv) Paragraph 719 of the Punjab Jail Manual as published in 1916 provided that every prisoner sentenced to transportation for a term or for life, if ineligible for deportation to the Andamans, shall be transferred to and confined in one or other of the jails specified therein which were constituted 'places ' for the detention of transportation prisoners within the Punjab under section 32 of the Prisoners Act, 1900.
This paragraph was amended some time later and the words "if ineligible for deportation to the Andamans" were deleted as is evident from the amended Para 719 appearing in the Punjab Jail Manual published in 1975.
It is therefore clear that since then, so far as Punjab is concerned, no transportation prisoner was deported overseas and all transportation prisoners were detained and confined in local jails.
[783 F 784 E] (v) Section and section also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails.
Both the sections appear in a chapter dealing with 'Execution of Sentences ' under the respective Codes and are identically worded.
It is obvious that the 'confinement ' of the convict in jail pursuant to the Court 's warrant issued under the sections is for the purpose of executing or carrying out the sentence.
The proviso to sub section
(1) of section 418 and sub section
(2) of section 418 make the position abundantly clear that the expression 'confinement ' has been used in the sense of execution or carrying out of the sentence.
[782 G 783 C] 773 3.
The position in law as regards the nature of punishment involved in a sentence of 'imprisonment for life ' is well settled.
The sentence of imprisonment for life has to be equated with rigorous imprisonment for life.
[790 B] (i) Transportation to overseas penal settlement always implied hard labour for the concerned convicts.
Sub section
(3) of section 17 of the 'Andaman and Nicobar Manual ', a Government of India publication of the year 1908, states that transportation means hard labour under strict discipline.
Section 146 says that the hours of work are regulated by the Superintendent and they shall ordinarily consist of 9 hours daily.
These provisions clearly bring out the fact that the sentence of transportation either for life or for a term inexorably ment rigorous imprisonment in the sense of exaction of hard labour from the convict.
This position has been judicially noticed in Pandit Kishori Lal 's case.
Therefore, on Counsel 's own argument, the sentences of 'transportation for life ' and 'imprisonment for life ' being similar in nature, the sentence of 'imprisonment for life ' must mean 'rigorous imprisonment for life '.
[786 E H] Pandit Kishori Lal 's case, A.I.R. 1945 P.C. 64 referred to.
(ii) Sub section
(1) of section 53 A provides that any reference to 'transportation for life ' in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or of any enactment repealed, shall be construed as a reference to 'imprisonment for life '.
Under sub section
(2) of section 53 A, I.P.C. Parliament has expressly stated that a sentence of transportation for a term has to be executed or carried out as if it were a sentence of rigorous imprisonment for the same term.
If transportation for a term, has been equated to rigorous imprisonment for the same term, by necessary implication, the sentence of 'transportation for life ', now substituted by 'imprisonment for life ', which is awardable for more serious, or more grave or more heinous crimes must mean rigorous imprisonment for life.
[787 A F] Gopal Godse 's ease; , ; State of Madhya Pradesh vs Ahmadulla, ; ; and K.M. Nanavati vs State of Maharashtra, ; referred to.
It is not possible to sustain the view that while passing the sentence of imprisonment for life a criminal court should keep in view the provisions of s.60, I.P.C. and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused.
In the first place, a distinction between 'imprisonment for life ' and 'imprisonment for a term ' has been maintained in the Penal Code in several of its provisions.
Secondly, by its very terms, section 60 is applicable to a case where "an offender is punishable with imprisonment which may be of either description".
And it is clear that whenever an offender is punishable with "imprisonment for life" he is not punishable with "imprisonment which may be of either description"; in other words, section 60 would be inapplicable.
[789 D H] Mathammal Saraswathi vs The State, A.I.R. 1957 Kerala 102, overruled.


judgement:
Civil Appeal Nos. 3779, 3653 66, 3524 3528, 3054 of 1982 & C.A. No. 4066 of 1983.
Appeals by Special leave from the Judgment and Order dated the 14th September, 1982 of the Punjab & Haryana High Court in C.W.P. Nos.
3669, 3706, 3499, 3443, 3498, 3919, 3958, 3525, 3750, 3912, 3572, 3663, 3680, 3731, 3566 & 3750 of 1982 respectively.
803 Kapil Sibbal, R.C. Pathak and Atul C. Jain for the Appellant in CA.
3779/82, CAs.
3653 67/82 & for the Respondents in rest of the Appeals.
P.R. Mridul and R.K. Anand for the Appellant in CAs.
3524 26 of 1982.
Prem Malhotra and Sarva Mitter for the Appellant in CA.
3527/82.
Rameshwar Dayal for the Appellant in CA.
3528/82.
Mrs. J. Wad for the Appellant in CA.
3054/82.
Randhir Jain for the Intervener.
Wadhwani, A. Minocha, P.C. Khunger, Harbans Lal, N.K. Aggarwal for the Appellants in CA.
4065/83 R.K. Jain, P.K. Jain, A.K. Goel, K.K. Mohan, Randhir Jain, P.R. Mridul, Ravi Kant Chadha and K.B. Rohatgi, for the appearing Respondents.
The Judgment of the Court was delivered by CHANDRCHUD, CJ.
Eight candidates were admitted to the Punjab Engineering College, Chandigarh for the academic year 1982 83, by what is described as the "spot test".
Their admission has been struck down by the Punjab and Haryana High Court on the ground that it is contrary to the rules and regulations governing admissions to the institution.
We are of the opinion that since these students have already completed one or two semesters, it will be unjust to cancel their admission at this stage and to remove their names from the rolls of the College.
We therefore direct that they will be allowed to continue their further studies in the College uninterrupted.
By the same standard, even though the admission of seven wards of the employees of the Punjab Engineering College has been quashed by the High Court on the ground that such admissions are contrary to the relevant rules of admission, it will not be fair to cancel their admission at this stage.
They have also, like the eight "spot test" students, completed either one or two semesters of the academic year 1982 83.
They will be allowed to continue their further tudies in the College uninterrupted.
804 The admission granted to the candidate Ashok Kumar Kaushik has also been struck down by the High Court, but he too will be allowed to continue his further studies in the College.
We cannot apply to him a different standard than the one which we have applied to the fifteen candidates referred to above, who are being allowed to continue their studies as if their admission to the College suffered from no defect of illegality.
Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue.
It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively.
If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulations, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly of purposefully left out.
Indiscipline in educational institutions is not wholly unconnected with a lack of sense of moral values on the part of the administrators and teachers alike.
But the problem which the courts are faced with in these cases is, that it is not until a period of six months or a year elapses after the admissions are made that the intervention of the court comes into play.
Writ Petitions involving a challenge to such admissions are generally taken up by the High Courts as promptly as possible but even then, students who are wrongly admitted finish one or two semester of the course by the time the decision of the High Court is pronounced.
A further appeal to this Court consumes still more time, which creates further difficulties in adjusting equites between students who are wrongly admitted and those who are unjustly excluded.
Inevitably, the Court has to rest content with an academic pronouncement of the true legal position.
Students who are wrongly admitted do not suffer the consequences of the manipulations, if any, made on their behalf by interested persons.
This has virtually come to mean that one must get into an educational institution by means, fair or foul: once you are in, no one will put you out.
Law 's delays work their wonders in such diverse fashions.
We find that this situation has emboldened the erring authorities of educational institutions of various States to indulge in violating the norms of admission with impunity They seem to feel that the Court will leave the admissions in fact, even if the admissions are 805 granted contrary to the rules and regulations, This is a most unsatisfactory state of affairs.
Laws are meant to be obeyed, not flouted.
Some day, not distant, if admissions are quashed for the reason that they were made wrongly, it will have to be directed that the names of students who are wrongly admitted should be removed from the roll of the institution.
We might have been justified in adopting this course in this case itself, but we thought that we may utter a clear warning before taking that precipitate step.
We have decided, regretfully, to allow the aforesaid sixteen students to continue their studies, despite the careful and weighty finding of the High Court that at least eight of them, namely, the seven wards of employees and Ashok Kumar Kaushik, were admitted to the Engineering Course in violation of the relevant rules and regulations.
It is strange that in all such cases, the authorities who make admissions by ignoring the rules of admission contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused be increasing the number of seats or that the institution will not be able to cope up with the additional influx of students.
An additional plea available in regard to Medical Colleges is that the Indian Medical Conucil will not sanction additional seats.
We cannot entertain this submission.
Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified.
The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made.
Since in this case eight students, and perhaps sixteen were wrongly admitted, we direct that over and above sanctioned strength for the next academic year commencing in July 1983, sixteen additional seats shall be created, to which sixteen students shall be admitted to the Punjab Engineering College from the lists which were prepared for the 1982 83 academic year.
These sixteen seats shall be apportioned in an equal measure between the local students belonging to Chandigarh and the general group of students belonging to areas outside Chandigarh.
That is to say, eight students will be admitted from the Chandigarh List of students and eight from the General List of students, which were prepared for the last academic year, viz, 1982 83.
806 The only question which survives is whether the sixteen writ petitioners should be admitted to those sixteen seats or whether admission to those seats should be strictly in accordance with merit.
We are unable to accept the submission made by the petitioners that they should be preferred for admission irrespective of merit.
The circumstance that they filed writ petitions in the High Court but others similarly aggrieved did not, will not, justify the granting of admission to them by ignoring those others who were higher up in the merit list.
When a similar question arose before this Court in State of Kerala vs Kumari T.P. Roshana,(1) the Court directed the State Government to admit thirty more students.
Krishna Iyer, J. observed: "The selection of these 30 students will not be confined to those who have moved this Court or the High Court by way of writ proceedings or appeal.
The measure is academic excellence, not litigative persistence.
It will be thrown open to the first 30, strictly according to merit measured by marks secured." In Ajay Hasia etc.
vs Khalid Mujib Sehravardi, (2) the State Government the College, and the Society which was running the College, all agreed before this Court that the best fifty students out of those who had applied for admission for the academic year 1979 80 and who had failed to secure admission, would be granted admission for the academic year 1981 82 and that the seats allocated to them would be in addition to the normal intake of students in the College.
In Arti Sapru vs State of Jammu and Kashmir & Others,(3) after allowing the writ petitions of candidates who were wrongly denied admission to the Medical Colleges, it was observed by one of us Pathak, J., that: "The candidates who will be displaced in consequence have already completed a few months of study and in order to avoid serious prejudice and detriment to their careers it is hoped that the State Government will deal sympathetically with their cases so that while effect is 807 given to the judgment of this Court the rules may be suitably relaxed, if possible by a temporary increase in the number of seats, in order to accommodate the displaced candidates.
" The authorities were directed by this Court to fill up the additional vacancies "on the basis of open merit.
" Following these decisions, we direct that admission to the 16 additional vacancies for the academic year 1983 84 shall be made in accordance with merit on the basis of the lists which were prepared for the academic year 1982 83 for the Chandigarh group of students and the general group of students.
We must add that though we are satisfied that the admission of seven wards of employees of the College and of Ashok Kumar Kaushik is contrary to the rules and regulations, we have not examined the correctness of the finding of the High Court in regard to the alleged illegality of the admission of the eight students who were admitted by the test of "spot selection".
We will only reiterate as to this latter class of admissions that the conduct of the authorities charged with the duty of making admissions to educational institutions has to be above suspicion.
They cannot play with the lives and careers of the young aspirants who, standing at the threshold of life, look to the future with hope and expectations.
The appeals will stand disposed of in accordance with this order.

dataset_name: IN-Abs

summary:
Admissions to the Punjab Engineering College, Chandigarh for the academic year 1982 83 granted to eight candidates by what is described as the spot test method, to seven wards of the employees of the Punjab Engineering College and another were struck down by the Punjab High Court as in violation of the rules and regulations governing admissions to the institution.
However, the students wrongly admitted were allowed to continue their studies on humanitarian grounds.
Hence the appeals after obtaining special leave of the Court.
Disposing of the appeals, the Court ^ HELD: 1:1 Since all the sixteen students wrongly admitted have already completed one or two semesters it will be unjust to cancel their admission at this stage and to remove their names from the rolls of the College, and therefore, they must be allowed to continue their studies as if their admission to the College suffered from no defect or illegality.
[803 F G] 1:2 Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue.
It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively.
If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulations, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out.
On the other hand, students who are wrongly admitted do not suffer the consequences of the manipulations, if any, made on their behalf by interested persons.
[804 B D F] 1:3 Law 's delays work their wonders in such diverse fashions with the result that the courts find it difficult to adjust equities between students who are wrongly admitted and those who are unjustly excluded.
Since by the time the High Courts take up the matter and finally decide the cases, students who are 802 wrongly admitted finish one or two semesters of the course and the courts are regretfully perforced to allow them to continue their studies.
[804 F G] The court observed that "this situation has emboldened the erring authorities or educational institutions of various States to indulge in violating the norms of admission with impunity.
They seem to feel that the courts will leave the admissions in tact, even if the admissions are granted contrary to the rules and regulations, which is a most unsatisfactory state of affairs.
Laws are meant to be obeyed, not flouted.
Some day not distant, if admissions are quashed for the reason that they were made wrongly, it will have to be directed that the names of students who are wrongly admitted should be removed from the rolls of the institution." [804 H, 805 A B] 2:1 The contention that the seats cannot correspondingly be increased since the State Government cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope up with the additional influx of students cannot be accepted.
[805 C D] 2:2 Those who infringe the rule must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified.
The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made.
[805 E F] The court directed that 8 seats should be for the students from the Chandigarh list and the other 8 seats from the General List of students which were prepared for the academic year 1982 83.
[805 G H] 3.
The reservation of the sixteen seats are not open exclusively to the writ petitioners.
The circumstance that they filed writ petitions in the High Court but others similarly aggrieved did not, will not justify the granting of admission to them by ignoring those others who were higher up in the merit list.
[806 A B] [The Court directed the authorities to fill up the additional vacancies "on the basis of open merit"] State of Kerala vs Kumari T.P.Roshana, ; ; Ajay Hasia etc.
vs Khalid Mujib Sehrawardi, ; Arti Sapru vs State of Jammu and Kashmir and Ors., ; , followed.


judgement:
ition No. 4007 of 1982 (Under Article 32 of the Constitution of India) R.K. Jain for the Petitioner.
Prithvi Raj and Mrs. section Dikshit for the Respondent.
740 The Judgment of the Court was delivered by RANGANATH MISRA, J.
Petitioner, who offered himself as a candidate for one of the posts of Stenographer in Hindi, in the establishment of District Judge of Ghaziabad in the State of Uttar Pradesh, has come with this petition under Article 32 alleging the violation of his fundamental rights enshrined in articles 14 and 16 of the Constitution.
He has pleaded that he is a member of the scheduled castes and the State Government by a general order in March, 1965 had directed that "in services subordinate to U.P. Government for recruitment through competition" 18% of the posts should be reserved for members of the scheduled castes.
He further alleged that when six vacancies in the post of Stenographer in Hindi were advertised to be filled up and he offered himself as a candidate, he was examined in shorthand test on April 17, 1982, and was shown in the third place in the list of successful candidates published on April 24, 1982 and was called to an interview on May 1, 1982.
According to him, in the final list of successful candidates his position was shown as No. 7 and, therefore, he was not selected.
He complains that he was downgraded from the third place without justification, and if the Government order of reservation of 18% had been kept in view, he should have been selected even if he secured the seventh place in the merit list.
In the return to the rule, the Additional District Judge of Ghaziabad has indicated that the petitioner had secured eighth place in shorthand test and his name figured as No. 3 in the list of successful candidates as it has been drawn up in alphabetical order.
At the interview he improved his position and was ultimately shown as No. 7.
In the selection no reservation had been intended to be made in view of the position that the post of Stenographer is covered under Class III service and the total strength of Class III employees in the judgeship of Ghaziabad as on May 1, 1982, was 132 and there were as many as 28 among them belonging to the scheduled castes which came to more than 21% 3% above the reservation.
An assertion was made that the process of recruitment had been fair and bona fide.
A rejoinder has been filed by the petitioner accepting the position that "the written test and the interview were done without any "mala fide" but reiterating the contention that direction regarding reservation should have been applied and the petitioner appointed on selection.
741 It is not the case of the answering respondent that reservation indicated in Government order of 1965 was not applicable to the relevant recruitment and the assertion of the petitioner that in the previous years provision of reservation was implemented has also not been disputed.
The scheme in the Government order contemplates a roster register for every 25 vacancies and prescribes the following mode: (1) 1 reserved for scheduled castes.
(2) 2 6 unreserved.
(3) 7 reserved for scheduled castes.
(4) 8 12 unreserved.
(5) 13 reserved for scheduled castes.
(6) 14 18 unreserved.
(7) 19 reserved for scheduled castes.
(8) 20 24 unreserved.
(9) 25 reserved for scheduled castes.
Paragraph 2 of the Government order states: "if in any particular year there are only two vacancies, no more than one should be considered reserved and if there is only one, that should be considered unreserved; the reservation shall be valid up to three years".
When six vacancies were being filled up at a time in one year, if the roster was to be followed, one of the posts would indisputably have gone to the candidate of the scheduled castes.
The stand taken in the counter affidavit that more than 21% of the posts in the Grade III cadre of the judgeship were being manned by the people belonging of the scheduled castes at the relevant time is no answer to the prescription of the roster.
It is not known whether some of the recruits of earlier years already in service belonging to the scheduled castes had come on the basis of overall merit without reference to reservation.
On this premise, if the provision of reservation had to be kept in view, the petitioner was bound to have been recruited.
We allow he petition.
As per the roster, he was entitled to be appointed 742 against the first vacancy.
We, therefore, direct the appointing authority to appoint the petitioner in that vacancy and five out of the six who are respondents 3 to 8 before us according to their position in final merit list shall be retained.
We make no order as to costs.
H.L.C. Petition allowed.

summary:
The petitioner, a member of the Scheduled Castes, secured the 7th position in the test and interview held for filling up six vacancies in the post of stenographer and was not selected for appointment.
The State Government had, by an order, directed that 18 per cent of the posts in the subordinate services should be reserved for Scheduled Castes whenever recruitment was to be made through competition and also provided that in the roster register of every 25 vacancies, the 1st 7th, 13th, 19th and 25th vacancies should be reserved for Scheduled Castes.
The stand taken by the respondents was that while making selection to the six vacancies in question, no reservation had been intended to be made in view of the position that the post of stenographer was covered under Class III service and the total strength of Class III employees as on the relevant date was 132 and there were as many as 28 among them belonging to the Scheduled Castes which was more than 21 per cent.
The petitioner contended that the direction regarding reservation should have been applied and he should have been selected for appointment.
Allowing the petition, ^ HELD: That more than 21 per cent of the posts in Grade III service were being manned by people belonging to Scheduled Castes at the relevant time is no answer to the prescription of the roster.
It is not known whether some of the recruits of earlier years already in service belonging to the Scheduled Castes had come on the basis of overall merit without reference to reservation.
When six vacancies were being filled up at a time in one year if the roster was to be followed, one of the posts would indisputably have gone to the candidate of the Scheduled Castes.
As per the roster, the petitioner was entitled to be appointed against the first vacancy.
[731 E H; 742 A]


judgement:
ition No. 3053 of 1980.
Under article 32 of the Constitution of India.
Dr. L.M. Singhvi, S.K Sinha, S.K Verma, A.M. Singhvi and Laxmi Kant Pandey for the Appellant.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
A pensioner since 16 years is knocking at the doors of the court of justice and the executive in search of his hard earned pension and is being rebuffed by those who would meet the same fate by the passage of time and yet with his meagre resources, he has been dragged to the apex court for the second time after a lapse of 12 years during which abominably long period the mandamus of this Court has been treated as a scrap of paper.
What a pity, and what helplessness ? The facts relevant to the disposal or this petition under article 32 of the Constitution are set out in details in Deokinandan Prasad vs State of Bihar & Ors (1) and therefore, need not be recapitulated here.
A Constitution Bench presided over by the then Chief Justice Mr. Sikri issued a mandamus in the writ petition filed by the present petitioner which reads as under: "The order dated August 5, 1966 declaring under r. 76 of the Service Code that the petitioner has ceased to be in government employ is set aside and quashed.
The order dated June 12 1968 stating that under r. 46 of the Pension Rules, the Department is unable to grant the petitioner pension is also set aside and quashed.
As the petitioner himself claims that he has been retired from service on superannuation, a writ of mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law.
" 923 The opinion of the Court was rendered on May 4, 1971 and since then petitioner is being pushed from pillar to post by various departments of the State of Bihar ultimately compelling him to knock at the door of this Court.
It may be mentioned in passing that the petitioner joined service on September 1, 1928 and admittedly he has retired on superannuation on January 10, 1967.
He is entitled to pension under the Bihar Pension Rules, 1950.
The dispute is whether the petitioner is a member of the Bihar Education Service and what ought to be the method of computation of his pension ? on the first point, the matter is no more res integra because the Constitution Bench held that a reference to r. S of the Pension Rules shows that the officers mentioned therein are entitled to pension.
It was further held that there is no controversy that the petitioner is an officer in the Education Department of the Bihar Education Service, and this department is shown at item No. 3 of the Schedule to r. section Therefore, the controversy is concluded by decision between the parties that the petitioner is a member of Bihar Education Service and that under r. 5 of the Pension Rules, he is entitled to pension.
After the mandamus was issued by this Court, the petitioner approached amongst others the then Chief Minister of Bihar late Shri Kedar Pandey for implementing and giving effect to the mandamus, issued by the Supreme Court.
The Chief Minister directed that even though more than two years have elapsed since the issuance of the mandamus of the Chief Minister himself directed ten months prior to June 25, 1973 for payment of the claim of the petitioner as soon as possible and had insisted upon a weekly progress report on the processing of the file to be submitted to him, yet even the Chief Minister recorded his helplessness that he neither received the weekly report nor the mandamus has been implemented nor even the file was submitted to the Chief Minister for his perusal.
If this be plight of the Chief Minister of a popularly elected government what to talk of the lesser fly and what tears can be shed for a man in position of the petitioner who having rendered service for nearly 40 years was chasing the mirage for a paltry pension.
The Chief Minister apprehended that it is quite likely that not only the officers responsible for this mess but even the State Government may be called upon by the Supreme Court to explain the disregard of the mandamus.
He then made a peremptory order that the file be submitted to him for order.
924 Nothing moved as is the sad experience that nothing moves A unless like the law of inertia some outside force acts upon it and puts the file in motion.
What that outside force is we need not dilate.
Ultimately, the file reached the Chief Minister in 1974 on being called by him.
There is the long preamble setting out the history of litigation, the injustice done to the petitioner, the utter lethargy and aptly of the officers concerned and then the Chief Minister proceeded to dispose of the claim of the petitioner consistent with the mandamus issued by this Court.
The material portion which would help us in disposing of the present petition recites that the petitioner shall be treated in Class II posts of Bihar Education Service since his promotion and since 1.1.1952 he should be deemed to belong to Class I post of Selection Grade according to his seniority or from the date of direct appointment which derived the petitioner of equal opportunity, he was fully entitled to.
But the note is overgrowing with the courtesy of the Chief Minister in that he proceeded to request the Education Minister that for the ends of justice, a phraseology to which the courts are accustomed, the petitioner should be paid off his claim within a month for which any senior officer of the Education Department he made responsible.
Undue delay has been made in the implementation of the direction of the Hon 'ble Supreme Court and I would never like that Shri prasad be compelled again to go to Court. ' What a wishful thinking.
In that Mr. Prasad has been forced to come back to this Court and since then the then Chief Minister has left this world.
The resume the narration, petitioner received a letter dated February 6, 1976 3 years after the direction given by the Chief Minister that his pension case has been finalised and pension payment order of Rs. 156.55 p.m. and gratuity payment order of Rs. 5,850 are under issue.
It would appear at a glance that officers dealing with the pension case appears to have scant regard for the decision of the Supreme Court in that both the promotion to Class II and further promotion to Class I from deemed dates were ignored and pension was computed on the basis as if petitioner retired in Class III.
All the representation of the petitioner thereafter failed to evoke both a sympathetic response and a just decision and therefore the petitioner is back to square one.
The respondent State and all its officers are bound to compute pension of the petitioner not only on the footing that he is a member 925 Of the Bihar Education Service but also on the footing that he was promoted to Class II by the date mentioned in the earlier judgment A and from 1.1.1952 to Class I as rightly held by the Chief Minister.
Nothing was pointed out to us by Mr. Goburdhan to hold to the contrary nor can the State be permitted to play ducks and drakes with a solemn decision of the Constitution Bench of this Court.
To give effect to the mandamus of this Court, the respondent State shall proceed to compute the salary payable to the petitioner from the date he was promoted, to Class II Service and on the assumption that he was functioning in Class II in the salary scale then admissible to him equivalent to Class II Grade in Bihar Education Service.
This must commence from the date from which he was promoted as set out in the earlier judgment as Deputy Inspector of Schools at Seraikela.
In computing the salary for the purpose of computation Class II salary scale then prevalent for the post shall be taken up and the petitioner is deemed to have been put in that scale.
Yearly increments are added till 1.1.1952 when he must be deemed to have been promoted as admitted by the Chief Minister to Class I post in Bihar Education Service.
Same process is to be repeated by the respondent State in that the then prevalent Class I scale must be held admissible to the petitioner from January 1, 1952.
He must be 15 deemed to have been put in the scale and his annual increments to be worked out.
If in the process he is entitled to Selection Grade, the same must be worked out and this computation must be brought down to 10.1.1967 when the petitioner retired on superannuation from service.
On this computation of salary his pension shall be computed under the relevant rules of the Bihar Pension Rules as liberalised from time to time till 1967 and his pension must be determined as on 10.1.1967 on the aforementioned computation chart.
The State and the subordinate officers responsible for this work are directed by a writ of mandamus to complete this computation by July 31, 1983 and by that date pension payment order correct and consistent with the direction herein given shall be issued without fail to the petitioner.
The State is also directed by a mandamus of this Court to pay the arrears of pension on the afore mentioned computation within the same period with interest at 6% from 10.1.67.
As the officers of the State have harassed the petitioner which we 926 feel is intentional, deliberate and motivated, therefore, we are constrained to award exemplary costs quantified at Rs. 25,000 to be paid to the petitioner before July 31, 1983.
We propose to leave no one in doubt that the slightest failure or deviation in the time schedule in carrying out this mandamus will be unquestionably visited with contempt action.
H.L.C. Petition allowed.

summary:
In Deokinandan Prasad vs State of Bihar & Ors., [1971] Supp.
S.C.R. 634 decided on May 4,1971 the Court had, after coming to the conclusion that the petitioner herein was a member of the Bihar Education Service entitled to pension under r. 5 of the Bihar Pension Rules, issued a writ of mandamus directing the State Government to consider the claim of the petitioner for payment of pension according to law.
Inspite of the petitioner having approached the Chief Minister for implementation of the mandamus it was not until 1974 that the concerned file reached the Chief Minister and orders were passed by him that the petitioner should be deemed to belong to Class I post of Selection Grade from January 1, 1952 and that his claims should be settled within a month.
Three years after this direction of the Chief Minister the petitioner received intimation that his pension had been computed on the basis that he had retired from Class III service.
Further representations having failed to evoke any response from the State Government, the petitioner approached the Court once again.
Allowing the petition ^ HELD: The respondent State and all its officers are bound to compute pension of the petitioner not only on the footing that he is a member of the Bihar Education Service but also on the footing he was promoted to Class II by the date mentioned in the earlier judgment and from January 1, 1952 to Class I as rightly held by the Chief Minister.
Officers dealing with the pension case of the petitioner appear to have scant regard for the decision of tho Supreme Court in that both the promotion to Class II and further promotion to Class I from deemed dates were ignored and pension was computed on the basis that the petitioner retired from Class III service.
The State cannot be permitted to play ducks and drakes with a solemn decision of this Court.
The State and the subordinate officers responsible for computation of pension of the petitioner are directed to complete this computation by July 31, 1983 and by that date pension payment order correct and consistent with the direction herein given shall be issued without fail.
The State is also directed to pay the arrears of pension on the aforesaid computation within the same period with interest at 6 per Cent from January 10, 1967.
As the officers of the State have harassed the petitioner which is intentional, deliberate and motivated, exemplary costs quantified at Rs. 25,000 shall be paid.
to the petitioner before July 922 31,1983.
The slightest failure or deviation from the time schedule in carrying A out this mandamus will be unquestionably visited with contempt action.
[924 H: 925 A: 925 C H: 926 A:]