judgement:
ivil Appeal No. 1778 of 1990.
From the Judgment and Order dated 5.7.1988 of the Bombay High Court in Contempt Petition No. 106 of 1987.
P. Chidambaram, Ms. Raian Karanjawala, Mrs. Manish Karanjawala and Mrs. Meenakshi Arora for the Appellant.
K.S. Cooper, K. Parasaran, Anil B. Divan, A.S. Bhasme, P.H. Parekh, Sunil Dogra, Gopal Subramaniam, Ms. Indu Malho tra for the Respondents.
383 The Judgment of the Court was delivered by KANIA, J.
Leave granted.
The appeal is taken up for final hearing.
Counsel heard.
The short facts necessary for the disposal of the appeal are as follows: The appellant is the owner of a Bungalow known as "Villa Hormazd" at 8 A, Carmichel Road, Bombay.
The suit premises, comprising two floors of the said bungalow, were leased to Mayer Mills Ltd. under a lease deed dated April 16, 1948 for a period of three years from November 1, 1947.
At that time, the bungalow belonged to the father of the appellant.
On the death of the father of the appellant in 1949, the appellant became the landlady of the said bungalow.
Respondent No. 1, B .R.
Cotton Mills.
Ltd., is the successor in interest of Mayer Mills Ltd. and at the relevant time was in possession of the suit premises as a tenant.
Respondent No. 2 is the Chairman of respondent No. 1 and the other respondents are some of the Directors of respondent No. 1.
The appellant filed a suit being R.A.E. No. 763/ 6563 of 1966 in the Small Causes Court at Bombay for eviction of respondent No. 1 from the suit premises and for possession on the ground of rea sonable and bona fide requirement.
During the pendency of this suit, another suit for eviction was also filed by the appellant against respondent No. 1 for eviction on the ground of default in the payment of rent for a period of more than six months.
The Trial Court by its judgment dated September 13, 1975 decreed the aforesaid eviction suit R.A.E. No. 763/6563 of 1966 (hereinafter referred to as "the said suit") but the other suit for eviction filed by the appellant was dismissed in view of the eviction decree passed in the said suit.
Respondents nos.
1 and 2 filed an appeal against the decree for eviction but the said appeal was dismissed.
In February, 1986, the husband of the appel lant died and after that the appellant is the landlady of the said bungalow.
On the other hand, the appeal of the appellant against the dismissal of her other suit, for eviction on the ground of default in payment of rent was allowed and that suit was also decreed against respondent No. 1.
The respondent then filed a writ petition in the High Court at Bombay challenging the decrees for eviction passed by the Court of Small Causes as aforestated.
On February 27, 1987, respondent No. 2 filed a suit in the Court of Small Causes for a declaration that he was the lawful sub tenant of the suit premises and was not bound by the decrees of eviction passed in respect of the suit premises against the tenant, namely, respondent No. 1.
The said Writ Petition 384 No. 1066 of 1987 filed by respondent No. 1 challenging the decrees for eviction passed against respondent No. 1 in the said suits and confirmed in appeal came up for hearing before a learned Single Judge of the Bombay High Court on March 5, 1983.
The learned Judge by his judgment and order of the same date, dismissed the said writ petition.
The relevant part of the order of the learned Judge reads as follows: "The petitioner requests for time of eight weeks to vacate the premises.
He is granted the said time subject to execut ing written undertaking that he shall not part with the possession of the suit premises or create third party inter ests in the suit premises in the meantime in any manner whatsoever. ' ' On March 11, 1987, the matter was brought up again before the learned Single Judge by learned counsel for the appellant for pointing out that respondent No. 1 had not filed the requisite undertaking as directed under the order dated 5.3.
It appears that at that stage it was point ed out to the Court by Mr. Dalvi, learned counsel for the appellant that respondent No. 2 had filed a declaratory suit in the Court of Small Causes as aforestated claiming to be the sub tenant of the suit premises.
The order of the learned Judge dated March 11, 1987 shows that the learned Judge stated that he did not wish to take any action at that time on the conduct of respondent No. 1 but, as a last chance, granted respondent No. 1 time upto March 17, 1987 for furnishing the undertaking as ordered failing which it would be deemed that the condition was not fulfilled.
Re spondent No. 3, as a Director of respondent No. 1, by his affidavit, affirmed on March 17, 1987, gave an undertaking merely stating that respondent No. 1 would not commit any act contrary to or in breach of the order dated March 5, 1987.
It was pointed out by the appellant that this under taking was not in compliance with the orders passed by the learned Single Judge.
After some correspondence, respondent No. 3, by his affidavit affirmed on March 25, 1987 filed an undertaking on behalf of respondent No. 1 inter alia stating that respondent No. 1 would not part with the possession of suit premises or create any third party interest in the suit premises in any manner whatsoever.
The undertaking did not state that respondent No. 1 had not, before the undertaking was given parted with the possession of the suit premises or created any third party interest therein.
When the matter came up on March 31, 1987 before the learned Single Judge who had given time to respondent no 1 to vacate as afore stated, it was pointed out by learned counsel for the appel lant that the undertaking was objected to as it did not state that 385 respondent No. 1 was in possession.
Thereupon Shri R.J. Joshi, learned counsel for respondent No. 1 Company, stated that the undertaking spoke for itself and when it stated that respondent "shall not part with possession" it meant that respondent No. 1 company was in possession.
In view of this, the learned Judge did not give any further clarifica tion.
Respondent No. 1 preferred a special leave petition to this court against the judgment of the learned Judge dis missing the said writ petition but the said special leave petition was dismissed.
Thereafter the suit filed by re spondent No. 2 in the Court of Small Causes for a declara tion that he was the lawful sub tenant of the suit premises was dismissed but he preferred an appeal against the said decision and in that appeal obtained an interim injunction restraining the appellant from interfering with his posses sion of the suit premises.
In view of this, the decree for eviction could not be executed.
Thereafter in June 1987, the appellant filed Contempt Petition No. 106 of 1987 in the Bombay High Court setting out the facts and praying that the respondents should be punished under the provisions of the .
It has been inter alia alleged in the contempt petition by the appellant that in spite of the said undertaking, respondent No. 2 had filed a suit, being suit no.2911 of 1987 in the City Civil Court at Bombay claiming a declaration that the decree for possession was a nullity and for an injunction restraining the appellant from executing the decree and obtained an ad interim injunction a few days after the summary dismissal of the special leave petitions filed by the respondents in this Court as afore stated.
The said suit was thereafter dismissed for non prosecution but, in the meantime, respondent No. 2 filed the suit in the Court of Small Causes for a declaration that he was the lawful sub tenant of the premises as aforestated.
It was submitted by the appellant in the contempt petition that the said undertaking given by respondent No. 1 clearly implied that on the date of the undertaking, respondent No. 1 was in possession of the suit premises and in order to defeat the decree for possession, respondent No. 1 had set up its Chairman, respondent No. 2, to file the aforesaid suit in the Court of Small Causes claiming sub tenancy.
It was further submitted by the appellant that although re spondent No. 1 continued to be in possession of the suit premises it had set up respondent No. 2 to file the suit on the ground that he was in possession of the suit premises as a sub tenant in his own right and continued to be in posses sion thereof.
The learned Judge before whom the said con tempt petition came up for hearing took the view that in the order of the learned Single Judge dated March 5, 1987, he was unable to read any direction to file an undertaking to give possession.
He took the view that the aforesaid under taking given on behalf of respondent No. 1, that it would not with possession or create any third party interest in the suit premises, did not imply that respondent No. 1 was in actual physical possession of the suit premises and that the fact that respondent No. 2 was claiming an independent title in himself as a sub tenant by virtue of a Resolution of respondent No. 1 was not sufficient to hold that respondent No. 1 or the other respondents were guilty of contempt.
He took the view that there was no undertaking by respondent No. 1 to deliver possession of the suit premises and on the basis of these conclusions, he rejected the contempt peti tion.
At the same time the learned Judge did observe that respondent No. 1 may have indulged in sharp practices but held that it was not guilty of contempt.
The present appeal is directed against this order.
It was submitted by Mr. Chidambaram, learned counsel for the appellant that respondent No. 1 and respondent No. 2 were guilty of contempt and the learned Single Judge was in error when he took the view that no contempt was established in the matter against the respondents.
It was submitted by learned counsel that on 5th March, 1987 when the writ peti tion preferred by respondent No. 1 was summarily rejected by Justice Puranik of the Bombay High Court, learned counsel for respondent No. 1, on instructions, made an application to the learned Judge to grant respondent No. 1 time for eight weeks to vacate the suit premises.
This time was granted subject to respondent No. 1 executing an undertaking that he would not part with the possession of the premises or create third party interests therein as set out earlier.
After delaying the matter for some time, respondent No. 3 filed on March 25, 1987, an affidavit, as a director of respondent No. 1 wherein he set out inter alia that respond ent No. 1 agreed to give an undertaking as set out earlier as respondent No. 1 was desirous of approaching the Supreme Court to challenge the order of the learned Judge dismissing the writ petition.
It was submitted by Mr. Chidambaram that this undertaking clearly implied that respondent No. 1 was in possession of the premises and was in a position to hand over the vacant and peaceful possession of the suit premises after eight weeks, if the special leave petitions preferred by respondent No. 1 were dismissed or no interim relief was obtained thereunder.
This undertaking was taken note of by Justice Puranik when the case reached before him on March 31, 1987.
It appears that an objection was taken to the language of the said undertaking on the ground that it did not state that respondent No. 1 was in possession of the suit premises and thereupon, Mr. R.J. Joshi, learned counsel for respondent No. 1, stated that the undertaking spoke for itself and that when it stated that respondent No. 1 shall not part with the possession of the suit premises it 387 meant that respondent No. 1 was in possession of the prem ises.
It was submitted that this statement must have been made after taking proper instructions and that, by instruct ing its counsel to make the statement, respondent No. 1 had clearly attempted to mislead the Court and the appellant.
It was urged that, m any event, this undertaking clearly im plied that if no interim order was obtained by respondent No. 1 from this Court, respondent No. 1 would hand over the possession of the premises to the appellant.
This assurance/undertaking was false to the knowledge of the appellant, as by that time, respondent No. 2 had already filed a suit in the Court of Small Causes claiming sub tenancy from respondent No. 1 and had obtained an interim ex parte injunction restraining the appellant from executing the decree in her favour.
It was submitted that the record discloses that respondent Nos. 1 and 2 were acting in collu sion with a view to defeat the decree obtained by the appel lant and to prevent the execution of the decree.
It was contended on behalf of the appellant that the resolution of respondent No. 1 under which respondent No. 2 was claiming sub tenancy was fabricated and antedated.
It was, on the other hand, contended by Mr. Cooper, learned counsel for respondent No. 1 that no contempt was made out by the appellant in the matter.
He vehemently argued that the case for taking action in contempt, set up by the appellant, was one of civil contempt.
Under the provisions of sub clause (b) of section 2 of the , in order to establish civil contempt, the alleged contemner must be proved to be guilty of wilful disobedience to any judgment, decree direction, order writ or other process of a Court or wilful breach of an undertak ing given to a court.
He drew our attention to the statement contained in Halsbury 's Laws of England, Volume 9 IVth Edition, at para 66 (page 40) that the court will only punish as a contempt a breach of injunction if satisfied that the terms of the injunction are clear and unambiguous, that the defendant has proper.
notice of the terms and that breach of the injunction has been proved beyond reasonable doubt.
It was further submitted by him that there is no such thing in law as an implied contempt.
Learned counsel urged that, in the present case, there was no mandatory injunction or order given by the court to the effect that respondent No. 1 must vacate the premises after eight weeks from 5th March when the undertaking was agreed to be given.
It was submitted that even if a view was taken that, in these circumstances, respondent No. 1 must be held to have given an undertaking to give possession of the said suit premises to the appellant after the said period of eight weeks, there was no wilful breach on the part of respondent No. 1 in not complying with that undertaking as 388 it was respondent No. 2 who was claiming to be in possession of the said premises in his independent right as a lawful sub tenant and it was he who had obtained an interim injunc tion from the Small Causes Court.
It was urged by learned counsel that so far as respondent No. 2 was concerned he had not given any personal undertaking to the court.
It was submitted by learned counsel for all the respondents that before a court could take any action for contempt it must be strictly established that the contempt had been proved beyond reasonable doubt as an action for contempt was in the nature of a criminal proceeding.
Mr. Cooper drew our attention to the decision of this Court in The Aligarh Municipal Board & Ors.
vs Ekka Tonga Mazdoor Union and Others, [1970] 3 SCC p. 98 wherein it has been held that "In order to bring home a charge of contempt of Court for disobeying orders of Courts those who assert that the alleged contemners had knowledge of the order must prove that fact beyond reasonable doubt.
In case of doubt, however, benefit ought to go to the person charged." He further relied upon the decision of this Court in Babu Ram Gupta vs Sudhir Bhasin & Anr., [1979] 3 SCR p. 685 wherein a Bench of two learned Judges of this Court held that "it is not open to the Court to assume an implied undertaking when there is none on the record.
" We now propose to examine the facts appearing on the record in the light of the aforesaid submissions and deci sions.
What we do find on the record is that when the writ petitions filed by respondent No. 1 in the High Court were dismissed by Puranik, J. by his order dated 5th March, 1987, learned counsel for respondent No. 1 applied for time for eight weeks to vacate the premises and the learned Judge gave the said time to respondent No. 1 to vacate the prem ises subject to its filing a written undertaking that it would not part with the possession of the suit premises or create third party interest in the suit premises.
It may be that time to vacate was applied for as respondent No. 1 desired to file an appeal to the Supreme Court.
The fact, however, remains that, if the claim of respondent No. 2 is correct, on that day he was already a lawful sub tenant of the suit premises and occupying the same.
Respondent No. 2 was none other than the Chairman of respondent No. 1 compa ny.
It is, therefore, inconceivable that respondent No. 1 could have been unaware of the claim of respondent No. 2.
It is, therefore, apparent that respondent No. 1 clearly tried to mislead the court when it gave instructions through its officers to learned counsel appearing for respondent No. 1 to apply for time to vacate the premises and remained silent when time was given on the condition that a written under taking as aforestated would be filed, suppressing from the 389 court the fact that respondent No. 2 claimed to be the sub tenant of the said premises and we have no doubt that re spondent No. 2 must have been a party to this course of action.
After some hesitation, the written undertaking was filed as aforestated which clearly implied that respondent No. 1 was in possession of the suit premises and in a posi tion to hand over possession of the suit premises to the appellant after the period of eight weeks expired.
Respond ents Nos. 1 and 2 knew fully well that this was not possible unless respondent No. 2 gave up his claim which he had no intention of doing.
Further, on March 31, 1987 learned counsel for respondent No. 1 appeared in court and stated that the undertaking spoke for itself and when it stated that respondent No. 1 would not part with the possession of the premises it meant that respondent No. 1 was in fact in possession thereof.
As we have already pointed out respond ent No. 2 was and continued to be the Chairman of respondent No. 1; his nephew, Prem Kumar Gupta, who was residing in the said premises in 1973, according to the evidence given by him in the Court of Small Causes, was a Director of respond ent no,. 1 company.
After all, respondent No. 1 is a company and it can have no knowledge or intention other than .the knowledge and intention of the people who control it.
We have no doubt at all that it was respondent No. 2 who, along with some of his family members, was in full charge of the affairs of respondent No. 1 company.
In these circumstances, it appears clear to us that all the actions taken by the legal advisors and counsel of respondent No. 1 including, in particular, the giving of the aforesaid undertaking as well as the clarification given by learned counsel regarding the meaning of that undertaking as aforestated were with the fullest knowledge and consent of respondent No. 2.
It is impossible to maintain this dichotomy, for the purposes of the contempt petition, between respondent No. 1 and respond ent No. 2.
Respondent No. 2 knew fully well when he autho rised the giving of the undertaking on behalf of respondent No. 1 or consented to its being given that respondent No. 1 was in no position to hand over possession of the suit premises in execution of the decree because respondent No. 2 claimed to be in possession of the said premises and claimed subtenancy rights in the same and had no intention whatsoev er of giving up the claim.
In fact, the entire course of conduct adopted on behalf of respondent No. 1 was only with one aim in view and that was to frustrate or to at least delay indefinitely the execution of the decree which the appellant had obtained after the lapse of many years and after such sustained and lengthy legal proceedings which must have caused the appellant considerable expenses and anguish.
It is significant that till Mr. R.J. Joshi, the learned counsel, who gave the clarification in respect of the said undertaking was alive, no contention was ever 390 raised that the clarification was given by him without taking instructions or that respondent No. 1 or respondent No. 2 were not aware of the same.
It was only after the sudden demise of the learned counsel that this contention was first raised by respondent No. 1.
This conduct speaks volumes for the dishonest attitude adopted by respondents nos.
1 and 2.
Raising this contention after the death of Mr. R.J. Joshi can only be regarded as one more of the tricks which respondents nos.
1 and 2 have played throughout the case in order to defeat and delay the execution of the decree for possession against respondent No. 1.
In the circumstances set out earlier, although the learned Judge of the High Court might have felt constrained by what he considered to be the limits of his jurisdiction in a contempt proceeding, we feel that our hands are not so tied and, where there is patent dishonesty on the part of respondents Nos. 1 and 2 writ large on the face of the record, the law does not require that we should sit back with folded hands and fail to take any action in the matter.
We find that under clause (1) of Article 142 of the Constitution, it is provided that this court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it and any decree so passed or order so made shall be enforced throughout the territory of India in the manner set out therein.
In the circumstances which we have already set out earlier, we are of the view that re spondent No. 1 is guilty of misconduct amounting to contempt and must be held to have committed contempt by giving the said undertaking and instructing its counsel to give the clarification of the meaning of the said undertaking as aforestated knowing fully well that it was not in possession of the suit premises and was not in a position to give possession of the suit premises to the appellant in execu tion of the decree in favour of the appellant or otherwise.
It is significant that the claim of sub tenancy set up by respondent No. 2 is pursuant to an alleged resolution of respondent No. 1.
We have also no doubt that respondent No. 2 was a party to this breach of the undertaking being com mitted and, in fact, it was he at whose instance respondent No. 1 committed the breach of the undertaking as aforestat ed.
We are, of course, quite conscious of the fact that the proceedings in the contempt are quasi criminal in nature, that the law of contempt has to be strictly interpreted and that the requirements of that law must be strictly complied with before any person can be committed for contempt.
Howev er, as we have pointed out, respondent No. 1 gave an under taking based on an implication or assumption which was false to its knowledge and to the knowledge of respondent 391 No. 2.
Respondent No. 2 was equally instrumental in the giving of this undertaking.
This implication or assumption was made explicit by the clarification given by the learned counsel for respondent No. 1 as set out earlier.
Respondent No. 2 was equally responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2.
Both respondent No. 1 and respondent No. 2 have tried to deceive the Court and the appellant.
In view of this, we fail to see how it can be said that they are not guilty of contempt.
Even assuming that a view were to be taken that no contempt has been technically established against respondents Nos 1 and 2 (with which view we do not agree), we cannot allow the matter to rest there and fail to take any action and, in particular, we cannot allow respondents Nos. 1 and 2 to thwart the execution of the decree in this manner at this stage and continue to remain in possession of the suit premises.
We find some support for the course of action which we are taking from the decision of this Court in Noorali Babul Thanewala vs Sh.
K.M.M. Shetty and others, J.T. where, on facts which bear some similarity to the facts of this case, a Division Bench of this Court held that "it is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt.
" At the same time, we are conscious of the fact that we cannot altogether foreclose the claim set up by respondent No. 2 in the declaratory suit filed by him in the Court of Small Causes to establish that he is a sub tenant of the suit premises and entitled to the protection of the Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947.
However, we are firmly of the view that by reason of any interim order obtained in that suit and till that claim is finally established, the appellant can no longer be deprived of the possession of the said premises pursuant to the decree for eviction obtained by her.
All the necessary parties to that suit are before us and have had and adequate opportunity to be heard.
In these circumstances, we allow the appeal and set aside the impugned order passed by the High Court and pass in its place the following order: The Court Receiver, High Court of Bombay who has already been appointed by our order dated January 25, 1990 shall take possession of the suit premises from the present agent and shall appoint the appellant as his agent in respect of the suit premises and hand over possession to the appellant of the suit premises on such terms and conditions as the Court Receiver may think fit but with the limitation 392 that the royalty for use and occupation of the suit premises shall be limited to the actual outgoings plus a sum of Rs.200 per month in order to meet unforeseen contingencies.
This order shall be complied with within a period of eight weeks from a copy of this order being served on the Court Receiver.
It is clarified that the possession of the prem ises will be taken from whoever might be in possession thereof and, if the Court Receiver finds any difficulty in obtaining possession, he shall take the necessary assistance from the police authorities.
It is further clarified that this order shall supersede any interim orders which might have been passed by the Court of Small Causes or the Bombay City Civil Court or any other Court excepting this Court.
In the event of respondent No. 2 being able to finally estab lish his right to the sub tenancy of the suit premises as claimed by him in the declaratory suit in the Court of Small Causes, it shall be open to him to apply for vacation or variation of this order as he may be advised.
Respondents Nos. 1 and 2 to pay the appellant the costs of this appeal fixed at Rs.20,000 the liability for the payment of the said aggregate amount being joint and several as between respond ents Nos. 1 and 2.
As far as respondent No. 3 is concerned, we do not propose to take any action against him.
N.P.V. Appeal allowed.

summary:
The appellant landlord obtained a decree of eviction of respondent No. 1 company from the suit premises.
Aggrieved, respondent No. 1 filed a Writ Petition before the High Court.
Dismissing the Petition, the High Court granted eight weeks ' time to respondent No. 1 for vacating the suit prem ises, subject to the filing of an undertaking that it will not part with the possession of, or create third party interest in, the suit premises in any manner whatsoever.
After some correspondence respondent No. 3, by an affidavit, filed the required undertaking on behalf of respondent No. 1 but without mentioning that the respondent No. 1 had not already parted with possession of the suit premises or created any third party interest therein.
Later, counsel for respondent No. 1 clarified that when the undertaking stated that respondent No. I would not part with possession it meant that respondent No. 1 was in possession.
But, in the meantime, respondent No. 2 Chairman of respondent No. 1 Company filed a suit claiming a declaration that he was the lawful sub tenant and the decree for possession was a nulli ty and obtained an injunction, thus preventing the appellant from executing the decree.
Thereupon, the appellant filed a petition for contempt before the High Court praying that the respondents should be punished under the provisions of the Contempt of Courts Act, 1972.
The High Court rejected the petition.
381 In the appeal before this Court, it was contended on behalf of the landlord appellant that the High Court was in error in holding that no contempt was established against the respondents, that the undertaking clearly implied that respondent No. 1 was in possession of the premises and was in a position to hand over vacant and peaceful possession of the same after eight weeks, which was also made clear from the clarification given by counsel for respondent No. 1 that this assurance/undertaking was false, as by that time re spondent No. 2, had already filed a suit claiming sub tenan cy from respondent, that the record disclosed that respond ents No. 1 and 2, were acting in collusion with a view to defeat the decree obtained by the appellant and to prevent the execution of the decree and that the resolution of the respondent No. 1 under which respondent No. 2 was claiming sub tenancy was fabricated and antedated.
It was submitted on behalf of the respondent that before a Court could take any action for contempt, it must be strictly established that the contempt had been proved beyond reasonable doubt, as an action for contempt was in the nature of a criminal proceeding.
Allowing the appeal, this Court, HELD: .
I The Proceedings in the contempt are quasi criminal in nature, and law of contempt has to be strictly interpreted, and the requirements of that law must be strictly complied with before any person can be committed for contempt.
However, where there is patent dishonesty writ large on the face of the record, the law does not require that this Court should sit back with folded hands and fail to take any action in the matter.
In exercise of its juris diction under clause (1) of Article 142 of the Constitution, this Court may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it.
[391G H; C D] 1.2 In the instant case, respondent No. 1 gave an under taking based on an implication or assumption which was false in its knowledge and to the knowledge of respondent No 2.
Respondent No. 2 was equally instrumental in the giving of this undertaking.
This implication or assumption was made explicit by the clarification given by the counsel for respondent No. 1.
Respondent No. 2 was equally responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2.
Both respondent No. 1 and respondent No. 2 have tried to deceive the Court and the appellant.
In view of this, it cannot be said that they are not guilty of contempt.
382 Respondent No. 1 is guilty of misconduct amounting to con tempt and must be held to have committed contempt by giving the undertaking and instructing its counsel to give the clarification of the meaning of the undertaking knowing fully well that it was not in possession of the suit prem ises, and was not in a position to give possession of the suit premises, to the appellant in execution of the decree in favour of the appellant or otherwise.
There is no doubt that respondent No. 2 was a party to this breach of the undertaking being committed and, in fact, it was at his instance that respondent No. 1 committed the breach of the undertaking.
[391H, 392A B, 391E F] 1.3 Respondents No. 1 and 2 cannot be allowed to thwart the execution of the decree and continue to remain in pos session of the suit premises.
No doubt, the claim set up by respondent No. 2 in the declaratory suit filed by him to establish that he is a sub tenant of the suit premises and entitled to protection of the Bombay Rents, Hotel and Lodg ing House Rates (Control) Act, 1947 cannot be foreclosed.
However, by reason of any interim order obtained in that suit, the appellant can no longer be deprived of the posses sion of the said premises pursuant to the decree obtained by her, till the claim in the declaratory suit is established.
[392C, E] 1.4 The Court Receiver.
High Court, who has already been appointed should appoint the appellant as his agent in place of the existing agent, and hand over possession of the suit premises to her on such terms and conditions as he may think fit.
It would be open to respondent No. 2 to apply for vacation or variation of the order, in the event of his being able to establish his right to sub tenancy.
[392G, 393C] Noorali Babul Thanewala vs Sh.
K.M.M. Shetty and Ors.
, J.T. , relied on.


judgement:
ivil Appeal No. 915 of 1987.
From the Judgment and Order dated 18.10.1985 of the Andhra Pradesh Administrative Tribunal, Hyderabad in R.P. No. 786 of 1984.
A.S. Nambiar and T.V.S.N. Chari with him for the Appellants.
Respondent In person.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and 368 order of the Andhra Pradesh Administrative Tribunal, Hydera bad dated October 18, 1985 declaring Rule 5 of the Andhra Pradesh Public Employment (Recording and alteration of date of birth) Rules 1984 (hereinafter referred to as '1984 Rules ') void and directing the appellants to consider the respondent 's application for alteration of his date of birth in the service records in accordance with the extracts from birth register maintained under the .
The respondent was appointed, as Audit Clerk in the Department of Examiner of Accounts, Local Fund Accounts, through a competitive examination held in the year 1956.
After his selection and appointment he commenced his train ing with effect from 12.11.
On completion of his training he was posted as Audit Clerk on 26.1.
Subse quently, he was promoted to the post of District Inspector of LoCal fund Accounts.
At the time of his joining service 9.3.
1932 was recorded as his date of birth in the service book on the basis of S.S.L.C. Certificate.
He made an appli cation on 5.1. 1962 for alteration of his date of birth as entered in his service book, on the ground that his date of birth as recorded in his service book was apparently wrong and incorrect in view of his eider brothers ' date of birth, who was also in Government service, recorded as 2.9. 1931.
The respondent urged that the entry with regard to his date of birth in the service book should be altered and the date 9.3.
1932 should be substituted by 27.8.
1933 which accord ing to him was the correct date of his birth.
The authori ties advised the respondent to submit a revised application in terms of the instructions contained in the Government Order No. 1263 dated 6.5.
The respondent thereupon submitted a revised application on 24.9.
1964 for alteration of his date of birth, that application was forwarded to the Head Master of the School in which the respondent had last studied for verification.
After obtaining the views of all 'authorities including the Head Master of the School, the respondent 's case was placed before the Director of Treas uries and Accounts, the Head of Department for necessary orders.
The Director of Treasuries and Accounts after con sidering all relevant documents relied upon by the respond ent, and also the comments of officers, rejected the re spondent 's prayer for alteration of his date of birth by his Order No. 699 18/1209/Admn/66 7 dated 5.1.1968 on the ground that the correctness of respondent 's eider brother 's date of birth was not established.
The respondent did not take any further action in the matter for alteration of his date of birth between 1968 to 1983.
On 10.4.
1983 the Governor of Andhra Pradesh promulgated 369 Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance No. 5 of 1983 providing for declara tion and alteration of date of birth of State .Government employees.
The Ordinance laid down that every Government employee should make a declaration regarding his date of birth within one month of joining service and on the receipt of such declaration the appropriate authority was required to make necessary enquiries determining the date of birth of the employee.
It further provided that if no such declara tion was made by the employee the Head of the Office, should determine the date of birth of the employee in accordance with the records as may be available to him after giving opportunity to the employee within six months from the date on which the employee joins service.
The Ordinance further provided that the provisions contained therein will not apply to those who failed to apply for the alteration of date of birth in accordance with law applicable to them prior to the commencement of the Ordinance or if such an application had been made and rejected.
Thus the Ordinance clearly laid down that the opportunity for correction of date of birth as provided by the Ordinance shall not ensure to the benefit of the employees whose entry relating to date of birth may have become final and binding under the law in force prior to the commencement of the Ordinance.
The Ordi nance was replaced by Andhra Pradesh Public Employment (Recording and alteration of date of birth) Rules 1984 framed under the Proviso to article 309 of the Constitution.
Thereupon the respondent made yet another attempt by making application on 27.1.1984 for the alteration of his date of birth, placing reliance on the extracts of entry in the register of births and deaths.
The Director of Local Fund Audit rejected his application by his order dated 28.3.1984 on the ground that the application had been made beyond the period prescribed for the purpose.
The respondent filed a petition before the Andhra Pradesh Tribunal challenging the rejection of his application and also the constitutional validity of Rules 4 and 5 of the 1984 Rules.
The Tribunal held that the respondent 's application for alteration of his date of birth was wrongly rejected by the Director of Local Fund Audit on the ground of limitation.
The Tribunal held that the Head of Department should have forwarded the respondent 's application to the State Govern ment for passing appropriate order as he had no authority to reject the same.
The Tribunal further held that Rule 5 of the 1984 Rules was void as it was repugnant to Section 9 of the .
On these findings the Tribunal directed the appellants to consider the respondent 's application again for the altera tion of his date of birth on the basis of 370 the extracts of the entry in the births and deaths register.
Aggrieved the appellants have preferred this appeal by special leave.
Learned counsel for the appellants urged that since the respondent 's application for making alteration of his date of birth as recorded in service book had been rejected in 1968, he was not entitled to maintain any fresh application for the alteration of his date of birth.
He further submit ted that there was no question of repugnancy between Rule 5 and Section 9 of the Births, Deaths and Marriages Registra tion Act, 1886 and the Tribunal committed error in striking down the aforesaid Rule 5.
The respondent appeared in person before this Court, he submitted his written submissions.
According to the respondent the Director of Local Fund Audit had no authority in law to reject his application for the alteration of his date of birth as the State Government was the competent authority under the rules to deal with the matter.
Even after enforcement of the 1984 Rules the re spondent 's application for alteration of his date of birth could validly be considered only by the State Government.
The question which arises for consideration is whether the alteration of respondent 's date of birth was permissible after the enforcement of the 1984 Rules.
The 1984 Rules apply to all persons appointed to Public Services and posts in connection with the affairs of the State.
These Rules prescribe conditions of service of State employees, having statutory force, being framed under the legislative power conferred on the Governor under the Proviso to Article 309 of the Constitution.
Rules 4 and 5 are as under: "4.
No Government employee, in service before the commence ment of these rules (a) whose date of birth has been recorded in the service register in accordance with the rules applicable to him; or (b) whose entry relating to date of birth became final and binding under the rules in force prior to the commencement of these rules.
shall be entitled to claim alteration of his date of birth.
The case in which Government employees have already applied for alteration of their date of birth and which are pending on the date of commencement of these rules.
shall 371 be dealt with on the basis of recorded age in school and college records at the time of entry into service.
" The object underlying Rule 4 is to avoid repeated appli cations by a Government employee for the correction of his date of birth and with that end in view it provides that a Government servant whose date of birth may have been record ed in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth.
Rule 4 laid down a salutory principle to prohibit reopening of the question of correction of date of birth which may have become final prior to the enforcement of 1984 Rules.
Since the question of alteration of the respondent 's date of birth had been made on the basis of the School Certificate and his application for alteration had already been rejected in 1968, he was not entitled to claim alteration of his date of birth after the enforcement of 1984 Rules.
It was not open to the respondent to claim alteration of his date of birth, even on the basis of extracts of the entry contained in births and deaths register maintained under the as the question of correction of his date of birth had already been finally decided in 1968.
As regards validity of Rule 5 is concerned, the view taken by the Tribunal is wholly misconceived.
Rule 5 lays down that where application of a Government employee for alteration of his date of birth was pending on the date of the commencement of 1984 Rules the same will be dealt with on the basis of date of birth recorded in the School and College records at the time of the entry of the employee into service.
In substance Rule 5 lays down that the pending applications of the employees for alteration of their date of birth shall be decided on the basis of the age as record ed in the School and College records.
Thus if on the date of entry into service the date of birth of an employee was recorded in his service book on the basis of his age as recorded in the School and College Certificate in that event the date so recorded shall be treated to be correct date of birth.
However, if the date of birth recorded in the service book at the time of the entry of an employee is not based on School or College records the Rule 5 does not operate as a bar to consideration of other relevant materials in deter mining the date of birth of the employee.
In the instant case as already noted the respondent 's date of birth had been recorded in his service book on the basis of his S.S.L.C. Certificate, at the time of his entry into service, therefore, that entry had become final and he was not enti tled to reopen the correctness of that entry on the basis of extract of birth 372 register.
Moreover, since the respondent 's application for alteration of his date of birth had already been decided prior to enforcement of Rule 5 he was not entitled to main tain application for any alteration of his date of birth.
In either case respondent was not entitled to claim alteration of his date of birth, his application was rightly rejected although on different grounds.
The Tribunal 's view that Rule 5 was repugnant to Section 9 of is wholly misconceived.
Under Article 245 read with Entry 41, List II of VIIth Schedule, which relates to State Public Services, the State has exclusive power to legislate in respect of State Public Services.
Proviso to Article 309 also confers exclusive power on the Governor and the State Legislature to frame rules laying down the terms and condi tions of the State employees, such rules may regulate the entry of date of birth of an employee its alteration, cor rection and all other allied matters.
The is a central law which is referable to Union List.
Section 9 of the Act merely lays down that copies of entries of the registers relating to births and deaths maintained under the Act shall be admissi ble in evidence for the purpose of proving the births and deaths.
It merely relates to admissibility of documents, it does not seek to regulate conditions of service of a State employee.
There is, therefore, no question of repugnancy between Rule 5 and Section 9.
It is well .settled that question of repugnancy can not arise if the State makes law in exercise of its legislative powers in respect of an entry specified in List II of VIIth Schedule, even though it may incidentally trench upon a law made by the Union in respect of a matter referable to an entry in Union List of the VIIth Schedule.
Rule 5 and Section 9 of the Act operate in differ ent areas and there is no question of conflict in the two provisions.
We are informed that a Full Bench of the Andhra Pradesh Administrative Tribunal has taken similar view in Lingerker Vaidyanath vs Government of Andhra Pradesh and Anr., (Andhra Pradesh Administrative Tribunal 's Judgment dated 2.9. 1987) in holding that Rule 5 is neither repugnant to Section 9 of the aforesaid Act nor void.
In this view the Tribunal 's order dated October 18, 1985 is not sustainable in law.
In the result we allow the appeal and set aside the order of the Andhra Pradesh Administrative Tribunal.
There will be no order as to costs.
T.N.A. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent joined service in the Department of Examiner of Accounts, Local Fund and in the service book his date of birth was recorded on the basis of S.S.L.C. Certifi cate.
He made an application for alteration of his date of birth but the Head of Department rejected his prayer by an order dated 5.1.1968.
After the coming into force of the Andhra Pradesh Public Employment (Recording and alteration of date of birth) Rules, 1984, he made another application for alteration of his date of birth which was also rejected by the Head of Department on the ground of limitation.
The respondent filed a petition before the Andhra Pra desh Administrative Tribunal challenging the order rejecting his application and also the Constitutional validity of Rules 4 and 5 of the 1984 Rules.
The tribunal by its order dated 18th October, 1985 directed the appellants to consider the respondent 's appli cation for the alteration of his date of birth on the basis of the extracts of the entry in the births and deaths regis ter, holding that the respondent 's application was wrongly rejected by the Head of Department on the ground of limita tion; and (ii) Rule 5 of the 1984 Rules was void as it was repugnant to Section 9 of the 366 .
In the appeal it was contended on behalf of the State that (i) since the respondent 's application for alteration of his date of birth had been rejected in 1968 he was not entitled to maintain any fresh application; and (ii) there was no repugnancy between Rule 5 of 1984 Rules and section 9 of the 1886 Act.
Allowing the appeal and setting aside the order of the Tribunal, the Court, HELD: 1.
Rule 4 of the Andhra Pradesh Public Employment (Recording and alteration of date of birth) Rules, 1984 lays down a salutory principle prohibiting re opening of the question of correction of date of birth which may have become final prior to the enforcement of 1984 Rules.
Since the question of alteration of the respondent 's date of birth had been made on the basis of the School Certificate and his application for alteration had already been rejected in 1968, he was not entitled to claim alteration of his date of birth after the enforcement of 1984 Rules.
It was not open to the respondent to claim alteration of his date of birth, even on the basis of extracts of the entry contained in births and deaths register maintained under the as the question of correction of his date of birth had already been finally decided in 1968.
[372C D] 2.
Rule 5 lays down that where application of a Govern ment employee for alteration of his date of birth was pend ing on the date of the commencement of the 1984 Rules the same will be dealt with on the basis of date of birth re corded in the School and College records at the time of the entry of the employee in service.
Thus if on the date of entry in service the date of birth of an employee was re corded in his service book on the basis of his age as re corded in the School and College Certificate, in that event the date so recorded shall be treated to be correct date of birth.
However, if the date of birth recorded in the service book at the time of entry of the employee is not based on School or College records, Rule 5 does not operate as a bar against consideration of other relevant materials in deter mining the date of birth of the employee, [372F G] In the instant case the respondent 's date of birth had been recorded in his service book on the basis of his S.S.L.C. Certificate, at the time of his entry into service therefore, that entry had become final and he was not enti tled to reopen the correctness of that entry on the 367 basis of extract of birth register.
Moreover, since the respondent 's application for alteration of his date of birth had already been decided prior to enforcement of Rule 5 he was not entitled to maintain application for any alteration of his date of birth.
In either case the respondent was not entitled to claim alteration of his date of birth, his application was rightly rejected although on different grounds, [372H; 373A B] 3.
The question of repugnancy cannot arise if the State makes law in exercise of its legislative powers in respect of an entry specified in List II of VIIth Schedule, even though it may incidentally trench upon a law made by the Union in respect of a matter referable to an entry in Union List of the VIIth Schedule.
[373E] 3.1 The is a central law which is referable to Union List.
Section 9 of the Act merely lays down that copies of entries of the registers relating to births and deaths maintained under the Act will be admissible in evidence for the purpose of proving the births and deaths.
It merely relates to admissibility of documents, it does not seek to regulate conditions of service of a State employee.
Rule 5 and Sec tion 9 of the Act operate in different areas and there is no question of conflict in the two provisions.
There is, there fore, no question of repugnancy between Rule 5 and Section 9.
The Tribunal 's view that Rule 5 was repugnant to Section 9 of is wholly misconceived and its order dated October 18, 1985 is not sustainable in law.
[373D E; G] Lingerker Vaidyanath vs Government of Andhra Pradesh and Anr., Andhra Pradesh Administrative Tribunal 's Judgment dated 2.9.1987, approved.


judgement:
ivil Appeal No. 1147 of 1990.
From the Judgment and Order dated 22.9.
1989 of the A.P. Administrative Tribunal; Hyderabad in Representation Peti tion No. 3843 of 1989.
T.V.S.N. Chari, Mrs. B. Sunita Rao and Ms. Manjula Gupta for the Appellants.
K. Madhava Reddy, D.R.K. Reddy, Vimal Dave, B. Rajeshwar Rao and Mudu Vijai for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This is an appeal by the A.P. Public Service Commission against the decision of the A.P. Administrative Tribunal dated September 22, 1989.
The appeal raises a question as to the scope of Rule 5 of the A.P. Police Service Rules, 1966.
The facts are not in dispute and may be stated as fol lows: The Public Service Commission issued an Advertisement/Notification No. 18/1983 inviting applications for selection in a Combined Competitive Examination to be held in November, 1983 at Anantapur, Guntur, Hyderabad, Kakinada, Tirupathi, Visakhapatnam and Warangal Centres for recruitment to the posts included in Grade I Services.
The 465 Notification was published in the Gazette dated August 25, 1983.
The post of Deputy Superintendent of Police was one of the posts for which applications were invited.
The respond ent applied to that post as well as to other posts.
The minimum age prescribed for selection to the post of Deputy Superintendent of Police was 21 years as on July 1, 1983, as against 18 years for other posts.
The respondent did not complete 21 years as on July 1, 1983.
He was short by 19 days and his case, therefore, was not considered for ap pointment to post of Deputy Superintendent of Police.
He was, however, considered to other posts since it was a combined selection for Grade I Services.
In 1984, the Public Service Commission conducted prelim inary examination for the eligible candidates.
In 1985, final examination was conducted.
In 1986, the candidates were called for interview.
On 27 March 1987, the list of selected candidates was prepared for appointment to differ ent categories of posts.
The respondent was selected as Deputy Registrar of Co operative Societies.
On 15 April 1989 i.e. about two years after the selec tion, the respondent approached the Andhra Pradesh Adminis trative Tribunal contending inter alia that the date 'for attaining the minimum age prescribed under the Notification was contrary to Rule 5 of the A.P. Police Service Rules, 1966.
He claimed that such date ought to be the date of preparation of the list of selected candidates and not any date anterior to it.
He accordingly sought a direction to the Public Service Commission to select him to the post of Deputy SUperintendent of Police since he had satisfied the required minimum age of 21 years as on the date of the select list.
The Tribunal has accepted that contention and issued a direction to the State Government to create an additional post as a special case and appoint the respondent as Deputy Superintendent of Police, if necessary by reducing the number of posts for recruitment for the next year.
The decision of the Tribunal has been challenged in this appeal by the Public Service Commission since the view expressed therein is likely to affect the appointment of a large number of candidates.
There is no dispute that the eligibility of a candidate as to age for appointment as Deputy Superintendent of Police should be determined according to Rule 5 of the A.P. Police Service Rules.
It is, therefore, necessary to look first at that Rule.
Rule 5 so far as is relevant provides: 466 "Rule 5.
Qualifications (A) No person shall be eligible for appointment as a Deputy Superintendent of Police, Category 2 by direct recruitment unless he (i) has completed the age of 21 years and had not completed the age of 26 years on the first day of July of the year in which the selection is made.
XXX XXX XXX The Rule prescribes the minimum as well as the maximum age for appointment as Deputy Superintendent of Police.
Minimum age is 21 years.
The candidate must have completed 21 years on the first day of July of the year in which the selection is made.
He should not have also completed 26 years as on that day.
The Tribunal while construing this Rule has observed: "According to the procedure the process of selection begins with the issue of the advertisement and culminates in for warding the list to the appointing authority.
The essence of the process lies in the preparation of the list.
A selection can be said to have been done only when the list is pre pared.
In this view the eligibility of the candidates as to age has to be determined at this stage.
" If the word 'selection ' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified.
But round phrases cannot give square answers.
Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to.
The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment.
Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment.
Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps.
When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date.
If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are 467 eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs.
The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications.
It would be, therefore, unreasonable to con strue the word selection only as the factum of preparation of the select list.
Nothing so bad would have been intended by the Rule making authority.
The appeal therefore, is allowed setting aside the order of the Tribunal.
In the circumstances of the case, however, we make no order as to costs.
P.S.S. Appeal allowed.

summary:
Rule 5 of the A.P. Police Service Rules, 1966 makes a person ineligible for appointment as Deputy Superintendent of Police unless he has completed the age of 21 years on the first day of July of the year in which the selection is made.
The appellant Service Commission notified on August 25, 1983 a combined examination for Grade I Services of the State, to be held in November, 1983 wherein the minimum age prescribed for selection to the post of Deputy Superintend ent of Police was 21 years as on July 1, 1983 as against 18 years for other posts.
The respondent who was 19 days short of 21 years as on July 1, 1983 was not considered for appointment to the post of Deputy Superintendent of Police.
He was, however, select ed as Deputy Registrar of Cooperative Societies.
He filed a petition before the State Administrative Tribunal seeking a direction to the appellant to select him to the post of Deputy Superintendent of Police, contending that the date for attaining the minimum age prescribed under the notifica tion was contrary to Rule 5 of the Police Service Rules in as much as it ought to be the date of preparation of the list of selected candidates and not any date anterior to it.
The Tribunal accepted that contention.
Allowing the appeal by the Service Commission, the Court, HELD: The word 'selection ' occurring in Rule 5 of the A.P. Police Service Rules, 1966 cannot be construed only as the factum of preparation of the select list.
[467B] The process of selection which begins with the issuance of 464 advertisement and continues through scrutiny of applica tions, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce, ends with preparation of the select list for appointment.
Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps.
When such were the different steps in the process of selection, the minimum or maximum age for suit ability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date.
If the final stage of selection is delayed, and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs.
The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications.
[466F 467A]


judgement:
tion (Civil) No. 7995 of 1981.
(Under Article 32 of the Constitution of India).
Krishnamani and M.K.D. Namboodary for the Petitioner.
N.C. Sikri and Mrs. Madhu Sikri for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The petitioner retired from the post of teacher in the Air Force Central School, New Delhi (herein after called the 'School ') on her attaining the age of 58 years.
The School is a society registered under the Socie ties Registration Act, 1960.
In this petition under Article 32 of the Constitution of India she claims that under the Delhi Education Code read with the Delhi Education Act, 1973 (hereinafter called the 'Act ') and the Delhi Education Rules, 1973 (hereinafter called the 'Rules ') the age of superannuation for the 414 teachers who joined service before the coming into force of the Act is 60 years and as such the management of the school acted arbitrarily in depriving her of two years of service and consequential benefits.
The petitioner was initially appointed for a period of five years.
On completion of the said period in 1961 the contract was renewed for a further period of five years.
Thereafter she continued in service of the school on regular basis till the impugned retirement dated October 31,1981.
The petitioner has averred that prior to coming into force of the Act the conditions of service of the teachers of the school provided 60 years as the age of superannua tion.
The respondents have, however, denied the same and have stated that the school management was following the practice of retiring the teachers on attaining the age of 58 years with some exceptions where extensions were given upto the age of 60 years.
The management has not produced any rules, bye laws or instructions to show that the age of superannuation of the school teachers was 58 years.
With a view to provide uniformity and security of serv ice to the teachers of recognised schools, the Delhi Admin istration laid down model conditions of service including age of superannuation for the teachers/employees of the said schools and published the same as a code called the Delhi Education Code.
It came into force with effect from February 15, 1965.
Section 208 of the Code is as under: "Section 208.
The normal age of retirement of an employee of an aided school (including the head of the School) shall be the date on which he attains the age of 60.
But an employee may be retired any time between the age of 55 & 60 years on grounds of inefficiency, incompetence, or physical unfitness after he has been given a reasonable opportunity to show cause against the proposed retirement and after his representation, if any, has been duly consid ered." Section 8(1) of the Act and Rule 110 of the Rules which are relevant are as under: 8(i) "the administrator may make rules regulating the minimum qualifications for recruitment and conditions of service of employees of recognised private school.
415 Provided that neither the salary nor the right in respect of leave of absence, age of retirement and pension of an employee in the employment of an existing school at the commencement of this Act shall be varied to the disad vantage of such an employee." "Rule 110 Retirement Age: (1).Except where an existing employee is entitled to have a higher age of re tirement, every employee of a recognised private school, whether aided or not shall hold office until he attains the age of 58 years.
" The school is not receiving any aid from the Government but it is recognised by the Delhi Administration.
It is not disputed that the Act and the Rules are applicable to the teachers employed in the school and the management is legal ly bound to extend the protection of these provisions to them.
The age of superannuation provided in Rule 110 of the Rules is 58 years except in the case of existing employees who were in service on April 1, 1973 the date of coming into force of the Act and in their case the higher age of retire ment to which they were entitled has been protected.
The petitioner has specifically asserted in the petition that even though the school was not an aided school it had accepted the Delhi Education Code and made it applicable to its employees.
It is stated that the management of the school has been retiring the teachers at the age of 60 years in terms of Section 208 of the Code.
It is also mentioned that one Mr. P.R. Menon, Head of English faculty in the school retired on December 9, 1968 on attaining the age of 60 years.
She has further stated that Mr. Dhawan, Sqdrn.
Leader Lal and Mr. Sharma all joined the school as teachers before the enforcement of Delhi Education Code and have retired after coming into force of the Act and the Rules.
All of them retired at the age of 60 years whereas the petitioner was made to retire at the age of 58 years arbi trarily and discriminately.
In the counter affidavit the Chairman, Executive Committee of the school has stated as under: "The Delhi Administration formulated an Education Code by way of guidelines without any legal force as pro nounced by Hon 'ble Delhi High Court . " It is further stated: 416 "the management of the school was adhering the service conditions inclusive of age of retirement i.e. 58 years and the pay scales prescribed by the Delhi Administra tion, from time to time under Delhi Administration Act, the past practice of serving beyond the age of 58 years had been done away rather on coming into force of the Delhi Education Act as a matter of principle but for one exception of Shri B.L. Sharma the then Vice Principal who was given extension as an administrative expediency.
" Learned counsel for the petitioner has contended that prior to the coming into force of the Act and the Rules, the management was following the Delhi Education Code which provided 60 years as the age of superannuation and as such under rule 110 of the Rules the petitioner has a statutory right to continue upto the age of 60 years.
Mr. N .C.
Sikri, learned counsel appearing for the management, however, contends that the school is being run by a private manage ment, there is no Government control in the management of the school and no aid of any kind is being given to the school.
According to him, the management of the school is neither State nor an authority under Article 12 of the Constitution of India and as such no writ petition against the respondent management is maintainable.
On merits he contends that Delhi Education Code has no force of law and as such the petitioner has no enforceable right much less under Article 32 of the Constitution of India.
The Executive Committee which manages the school is headed by Air Force Officer Incharge Administration, Air Force Headquarters, New Delhi and consist of all high rank ing Air Force officers of the rank of Sqdrn.
Leader to Air Marshal.
The said membership is in their official capacity which indicates complete control over the school by the Air Force.
It is, however, not necessary to decide in this case as to whether or not the school is a State or an authority under Article 12 of the Constitution of India.
The recognised private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and the Rules.
The respondent management is under a statutory obli gation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school.
When an au thority is required to act in a particular manner under a statute it has no option but to follow the statute.
The authority cannot defy the statute on the pretext that it is neither a State nor an "authority" under Article 12 of the Constitution of India.
417 It is not necessary and we do not propose to go into the question in this case as to whether the petition is main tainable under Article 32 of the Constitution, because this petition has been pending in this Court since 1981.
The petitioner 's claim is just.
It will, therefore, be a traves ty of justice to send her to any other forum at this stage.
In any case the petitioner seeks to enforce her statutory right under Section 8 of the Act read with Rule 110 of the Rules with a further contention that she has been discrimi nated in the matter of superannuation so much so that other teachers similarly situated were retired at the age of 60 years whereas the petitioner has been singled out and re tired at the age of 58 years.
The respondent management has not produced any Rules or bye laws either framed by the management itself or otherwise to show that there was any uniform provision for retirement of teachers at the age of 58 years.
The averments of the petitioner that Section 208 of the Delhi Education Code was being followed and the teachers were superannuated at the age of 60 years have not been specifically denied.
Rather these averments have been tacitly admitted.
Even otherwise every institution must frame and follow a uniform rule for superannuating its employees.
The age of superannuation cannot be left to the whims of the employer to enable him to retire different employees at different ages.
In the absence of any regulation, Bye laws or policy decision by the re spondent management regarding the age of superannuation, we accept the contention of the petitioner that prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers.
In that view of the matter under Rule 110 of the Rules, the petitioner being an existing employee was entitled to be retired at the age of 60 years.
The writ petition is, therefore, allowed and the order of the respondents retiring the petitioner at the age of 58 years is quashed.
She having already attained the age of 60 years we direct the respondents to pay the petitioner salary and allowances for the period of two years.
We further direct that all the post retirement benefits to which the petitioner is entitled be redetermined assuming the peti tioner to have retired at the age of 60 years.
The arrears of salary and allowances be paid to the petitioner within three months from today.
The respondent being an educational institution we direct the parties to bear their own costs.
P.S.S Petition allowed.

summary:
The normal age of retirement of an employee of an aided school prescribed under section 208 of the Delhi Education Code, 1965 was 60 years.
The proviso to section 8(1) of the Delhi Education Act, 1973, prohibited the administrator from varying the conditions of service of an employee of an existing school at the commencement of that Act to his disadvantage While fixing the retirement age of employees of recognised private schools at 58 years sub rule (1) of rule 110 of the Delhi Education Rules, 1973 protected the entitlement of existing employees to higher age of retire ment.
The petitioner teacher, who had joined service before the coming into force of the Act, assailed her retirement on attaining the age of 58 years on the ground that under section 8 of the Act read with rule 110 of the Rules she had a statu tory right to continue upto the age of 60 years in terms of section 208 of the Code and that the management had acted arbi trarily and discriminately in depriving her of two years of service and consequential benefits.
For the respondents it was contended that the management of the school was neither a State nor an authority under Article 12 of the Constitu tion and as such no writ petition against the respondent management was maintainable, and that the Education Code had no force of law and as such the petitioner had no enforce able right much less under Article 32 of the Constitution.
Allowing the writ petition, the Court, HELD: 1.
The petitioner 's claim is just.
She was enti tled to be ,retired at the age of 60 years.
[417A, E] 413 2.
Prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers.
The age of superannuation provided in Rule 110 of the Rules is 58 years except in the case of existing employees who were in service on April 1, 1973, the date of coming into force of the Act, and in their case the higher age of retirement to which they were entitled has been protected.
The petitioner was an existing employee of the respondent management.
[417E, 415D] 3.
The respondent management was under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school.
When an authority is required to act in a particular manner under a statute it has no option but to follow the statute.
The authority cannot defy the statute on the pretext that it is neither a State nor an "authority" under Article 12 of the Constitution of India.
[416G H] 4.
The petitioner having already attained the age of 60 years the respondents are directed to pay her salary and allowances for the period of two years.
The post retirement benefits to which she is entitled be redetermined assuming her to have retired at the age of 60 years.
The arrears of salary and allowances be paid to her within three months.
[417F G]


judgement:
: Criminal Appeal Nos. 365 of 1986 and 245 of 1990.
From the Judgment and Order dated 21.12.
1984 of the Punjab and Haryana High Court in Crl.
Writ Petition No. 399 of 1983 and 25 1 of 1983.
Mahabir Singh (N.P.) and Dalveer Bhandari for the Appel lants.
A.K. Goel for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Leave granted in Special Leave Petition (Criminal) No. 1158 of 1985.
The State of Haryana has preferred these two appeals against the Judgment and Order of the Punjab & Haryana High Court dated 21.12.
1984 in Writ Petition Nos.
399/83 and 25 1/83 respectively passing similar orders directing the State Government to consider the cases of the respondents for premature release.
The facts which lie in a very narrow compass may be stated thus: The respondents were convicted under Section 302 of the Indian Penal Code and sentenced to death by the Additional Sessions Judge, Karnal which sentence inflicted on each of them was subsequently commuted to life imprisonment on mercy petitions.
It seems that the State Government issued various execu tive instructions from time to time either altering or amending the existing instructions by fresh executive in structions specifying the minimum period of actual detention to be undergone by a convict sentenced to life imprisonment before his case for premature release could be considered by the State Government.
To appreciate the case of the respec tive parties it would be apposite to make reference to the relevant instructions.
At the outset, the instructions contained in paragraph 5 16 B of Punjab Jail Manual which are in the nature of executive instructions by way of guid ance may be referred to which instructions are based on a Government of India resolution No. 159 167 dated 6th 434 September, 1905.
The aforesaid paragraph reads thus: "516 B(a) With the exception of females and who were under 20 years of age at the time of commission of offence, the cases of every convicted prisoner sentenced to: (i) imprisonment for life . . . . . . . . (iv) . . . . . . . . (a) who has undergone a period of detention in jail amount ing together with remission earned to 14 years, shall be submitted through the Inspector General of Prisons, Punjab for the orders of the State Government".
The substance of the above paragraph is that the case of a male lifer who was above 20 years of age at the time of commission of offence sentenced to life imprisonment and who has undergone detention in jail amounting together with remission earned to 14 years, should be submitted to the State Government for consideration of his premature release.
It further appears in the year 1971, the State Government after a considerable deliberation took a policy decision and issued instructions through its Memorandum No. 133 11 6J J 71/ 39656 dated 10th of November, 1971 providing that a period of actual sentence of 8 1/2 years in the case of adult life convicts and 6 years in the case of female con victs as well those male convicts below 20 years of age at the time of commission of offence should be regarded as the qualifying period of consideration for premature release.
This memorandum was clarified that all cases of prisoners should be sent for consideration of their premature release in the light of the said policy decision with effect from 2nd November, 1971.
Thereafter, in January 1976 the question of releasing prematurely life convicts whose death sentence has been committed was again considered by the State Government and it took a policy decision that cases of such life convicts should be considered for premature release only after com pletion of 14 years of actual imprisonment and in that behalf Memorandum No. 403 6JJ 76/3456 dated 30th January 1976 containing the necessary instructions was issued by the State Government.
It is culled out from the impugned judg ment of the High Court in Criminal Appeal No. 365 of 1986 (arising out of Writ Petition 435 No. 399/83) that the State Government with a view to libera lise the policy of premature release of prisoners decided that such cases might be reviewed by a State Level Committee comprising of four members inclusive of Minister for Prisons and directed the concerned Superintendent of Jail to submit cases of life convicts two months before they completed 81/2 years substantive sentence and sentence of 14/10 years including remission along with his comments to the Inspector General of Prisons, Haryana who thereupon would put up all cases along with his recommendations for consideration before the Committee and further directed the Inspector General of Prisons to submit a copy of the decision taken by the said Committee along with the roll of each prisoner to Government within one week.
Be that as it may, the Parliament introduced Section 433(A) by the code of Criminal Procedure (Amendment) Act, 1978 (45 of 78) with effect from 18.12.1978.
According to Section 433(A) that a person who has been sentenced to death and whose death sentence has been commuted into one of imprisonment for life and persons who have been sentenced to imprisonment for life for an offence for which death is one of the punishments provided by law should undergo actual imprisonment of 14 years in jail.
We are referring to Sec tion 433(A) in this judgment only for a limited purpose of showing that after the introduction of this section, the life convicts failing within the purview of Section 433(A) has to undergo the mandatory minimum 14 years of actual imprisonment.
It may be mentioned at this juncture that no one has got a vested fight to claim premature release on the ground that he has suffered the minimum actual imprisonment as prescribed under Section 433(A) because a sentence of 'imprisonment for life ' is incarceration until death, that is, for the remaining period of convicted person 's actual life vide Kishori Lal vs Emperor, AIR 1945 Privy Council 64; Gopal Vinayak Godse vs The State of Maharashtra and Others, ; ; Maru Ram Etc.
vs Union of India & Anr.
, ; ; Kartar Singh and Others vs State of Haryana, ; and Sadhu Singh vs State of Punjab, ; There is no question of releasing such a lifer early in the absence of an order of commutation under Section 55 IPC by the appropriate Government which term is defined under Section 55(A) IPC or under Section 433(b) of Criminal Proce dure Code of 1973 by the appropriate Government or on a clemency order in exercise of power under Article 72 or 16 1 of the Constitution of India.
Incidentally, it may be stated that Section 54 empowers the appropriate Government to commute the sentence of death for any other punishment provided by the Indian Penal Code.
436 Section 432 of the Criminal Procedure Code gives the power to the appropriate Government either to suspend or to remit the sentences.
The meaning of the expression 'appro priate Government ' occurring in Section 432 and 433 is given under sub section 7 of Section 432.
The Constitution Bench of this Court in Maru Ram Etc.
vs Union of India & Anr.
, ; after thoroughly examining the intendment of Section 433(A) con cluded by formulating its various findings one of which is as follows: "We declare that section 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect.
To put the position beyond doubt, we direct that the mandatory minimum of 14 years ' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December 1978 (directly or ratro actively, as explained in the judgment) when section 433(A) came into force.
All 'lifers ' whose conviction by the Court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect." ' Now, coming to the facts of case on hand, admittedly the conviction of the respondents was recorded early to the introduction of Section 433(A) and, therefore, as per the ratio laid down in Maru Rarn 's case (ibid), these two re spondents are entitled for consideration of release by the appropriate Government as per the prevailing rules or execu tive instructions.
After the judgment dated 11.11.1980 in Maru Ram 's case, a number of life convicts filed batch of writ petitions in Writ Petition Nos.
1252 64 etc.
captioned Sant Ram etc.
vs Union of India & Ors. etc.
, and those writ petitions were disposed of by an order of this Court dated December 10, 1980.
Ram Diya, the respondent in Criminal Appeal No. 365 of 1986 was one of the petitioners in the connected batch of Writ Petition Nos.
1532 1539 of 1980.
The common order passed in all those petitions reads thus: "All of these Writ Petitions except Writ Petition Nos. 1477 and 1478 of 1980 shall stand disposed of in accordance with the judgment of this Court dated November 11, 1980 in 437 Maru Ram Etc.
vs Union of India & Anr., W.P. No. 865/79 etc.
All persons who were released on bail shall sur render to their sentence and the respective State Govern ments will pass appropriate orders in each individual case or generally in any group or class of cases in the light of the judgment aforesaid within six months from today.
If in particular cases, orders of release have been passed prior to the introduction of Section 433(A), Criminal Proce dure Code, the accused need not surrender to their bail.
" From the impugned judgment of the High Court, it is seen that the respondent (Ram Saran) also filed a Criminal Writ Petition seeking direction to the State Government to con sider his case for premature release and the same was dis posed of by an order dated December 10, 1980 in accordance with the decision in Maru Ram 's case, and that Ram Saran who is said to have undergone 16 years 1 month and 28 days of imprisonment including 5 years 8 months and 27 days remis sions as on July 21, 1982 was released on bail.
It appears the Government have issued letter No. 43/15783 JJ(2) dated February 27, 1984 clarifying the earli er instructions dated November 28, 1977 and reiterating their inapplicability to life convicts whose death sentence has been commuted to life imprisonment on their mercy peti tions and further stating that consideration of premature release of such convicts shall continue to be considered in the light of the Government policy decision dated December 12, 1967 thereby making it obligatory for them to undergo 14 years substantive sentence.
Admittedly, the State Government did not take up the cases of the respondents for premature release within six months of the Order of the Supreme Court dated 10th December 1980 and deferred the consideration of premature release till the respondents had completed 14 years of substantive sentence.
In the written statement filed by the Inspector General of Prisons, it is averred as follows: "It is submitted that the conduct of the petitioner during his confinement in the jail was satisfactory but it is irrelevant as far as the consideration of his premature release case is concerned.
According to the Government policy his premature release case is to be considered when he has 438 undergone 14 years substantive sentence and 20 years sen tence including remission.
His jail conduct will be consid ered when he has completed 14 years substantive sentence. ' ' In Sadhu Singh 's case (ibid), it has been urged on behalf of the lifers that the State Government relying upon the executive instructions issued on 30.1.76 had erroneously made a distinction between cases of prisoners who had been sentenced to death but whose sentence on mercy petitions had been commuted to life imprisonment and cases of prisoners who had been straightaway sentenced to life imprisonment in the matter of consideration of their cases for premature release and that it is not open to the State Government to rely upon those executive instructions dated 30.1.76 for making the distinction and postponing the consideration of the cases of prisoners falling within the former category until 14 years of actual imprisonment has been suffered by them.
This argument was answered by this Court holding thus: "The second contention also must fail in view of the admit ted position that cases of prisoners who have been sentenced to death but whose sentence on mercy petitions has been commuted to life imprisonment (who constitute a distinct class) will now be governed by the 1976 instructions.
Here also the view of the Punjab High Court in the case of Mehar Singh (supra) that the 1976 instructions issued on 30th of January 1976 will not be applicable to cases of prisoners convicted earlier to that date is not tenable.
Clearly existing cases of life convicts falling within that category will be governed by those instructions.
" So far as these cases are concerned, premature release of the respondents has to be considered in view of the directions given by this Court in the Order dated December 10, 1980 in the batch of writ petitions which instructions admittedly have not been complied with merely on the ground that the respondents have not completed 14 years of actual imprisonment since these respondents constitute a distinct class in that they have been initially sentenced to death which has been commuted on their mercy petitions.
This argument is not available to the appellant because the respondents ' premature release is required to be considered as per the directions of this Court vide Order dated 10.12.1980.
Hence it has become obligatory for the State to consider the cases of premature release of these respondents in 439 accordance with the rules or executive instructions prevail ing.and applicable to them at the relevant time i.e. between the period 10.12.1980 and 9.6.1981.
The plea of the appel lant as reflected from the written statement filed by the Inspector General of Police that the premature release of the respondents was not considered since they have not completed 14 years of substantive imprisonment is in viola tion of the directions of the Order dated 10th December 1980 of this Court and so the appellant cannot be permitted to make such a plea on the strength of the executive instruc tions overlooking and ignoring the above directions.
In the premises, we see no infirmity in the judgments of the High Court calling for interference.
For the aforementioned reasons, we uphold the impugned Judgment and Order of the High Court and dismiss these appeals as devoid of any merit.
G.N. Appeals dis missed.

summary:
Paragraph 516 B of the Punjab Jail Manual provides for premature release of prisoners, and is in the nature of executive instructions.
The State Government modified the instructions in 1971 and 1976.
The 1976 instruction was to the effect that cases of life convicts whose sentence has been commuted should be considered for premature release only after completion of 14 years of actual imprisonment.
The State Government further liberalised its policy and decided that such cases might be reviewed by a state level committee and directed that cases of life convicts who have completed 8 1/2 years substantive sentence and sentence of 14/10 years including remission be submitted to the Commit tee.
Later on the State Government clarified that the lib eralised policy would not be applicable to the life convicts whose death sentence has been commuted to life imprisonment.
In 1978, the Code of Criminal Procedure 1973 was amended introducing section 433A providing that such life convicts should undergo actual imprisonment of 14 years in jail.
This Court declared that section 433A of the Code is prospective in effect and did not operate against those cases which were decided by the trial court before 18.12.1978 (Maru Ram etc.
vs Union of India and Anr.
, ; The cases of respondents were in fact covered by the said decision.
432 They have filed writ petitions before the High Court for premature release and the High Court directed the State Government to consider their cases.
The State Government has .,preferred these appeals, by special leave, against the orders of the High Court.
Dismissing the appeals, this Court, HELD: 1.1.
No one has got a vested right to claim pre mature release on the ground that he has suffered the mini mum actual imprisonment as prescribed under section 433A Cr.
P.C. because a sentence of 'imprisonment for life ' is incarceration until death, that is, for the remaining period of convicted person 's actual life.
There is no question of releasing such a lifer early in the absence of an order of commutation under section 55 IPC by the appropriate Govern ment, or under section 433(b) of Criminal Procedure Code of 1973 by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitu tion of India.
[435E F; G H] 1.2.
In the instant case, the conviction of the respond ents was recorded early to the introduction of section 433A and, therefore, as per the ratio laid down in Maru Ram 's case, the two respondents are entitled for consideration of release by the appropriate Government as per the prevailing rules or executive instructions.
Further, admittedly, the State Government did not take up the cases of the respond ents for premature release within six months of the order of this Court dated 10th December 1980 in Sant Ram 's case, (W.P. Nos.
1252 64/80 etc.
etc.) and deferred the considera tion of premature release till the respondents had completed 14 years of substantive sentence.
It has become obligatory for the State to consider the cases of premature release of the respondents in accordance with the rules or executive instructions prevailing and applicable to them at the rele vant time i.e. between the period 10.12.1980 and 9.6.1981.
The plea of the appellant that the premature release of the respondents was not considered since they have not completed 14 years of substantive imprisonment is in violation of the directions of the order dated 10th December, 1980 of this Court and so the appellant cannot be permitted to make such a plea on the strength of the executive instructions over looking and ignoring the above directions.
There is no infirmity in the judgments of the High Court calling for interference.
[436E F; 437F; 438H; 439A C] Kishori Lal vs Emperor, AIR 1945 P.C. 64; Gopal Vinayak Godse vs The State of Maharashtra and Others, ; ; Maru Ram etc.
vs Union of India & Anr.
, ; ; Kartar Singh and 433 Others vs State of Haryana, ; and Sadhu Singh vs State of Punjab, ; , relied on.