judgement:
tition (Civil) No. 13227 of 1984 etc.
(Under Article 32 of the Constitution of India.) Pankaj Kalra for the Petitioner in W.P. No. 13227 of 1984.
M/s. Harbans Lal, V.C. Mahajan, Mahabir Singh, Avadh Behari Rohtagi, S.S. Banerjee, M.S. Gujaral, K.G. Bhagat, Hardev Singh, Yogeshwar Prasad, Anil Dev Singh, Govind Das, and K.P. Bhandari, M/s. S.M. Ashri, G.K. Bansal, J.S. Malhotra, Ali Ahmed, Jayashree Ahmed, C.K. Bansal, Narendra Singh Malik, D.K. Garg, B.P. Maheshwari, Vidya Sagar Vashist, S.N. Agarwal, S.K. Jain, S.K. Dhingra, M.L. Verma, S.K. Bagga, Ranbir Singh Yadav, H.M. Singh, Kirpal Singh, Amlan Ghosh, M. Qamaruddin, Mrs. M. Qamaruddin, R.K. Kapur, M.M. Kashyap, B.R. Kapur, Anil Katyal, O.P. Sharma, Amis Ahmad Khan, R.C. Kapoor, Mrs. Laxmi Arvind, Suresh C. Gupta, S.S. Ray, Anil Bhatnagar, 404 Praveen Kumar, Ashok Mathur, M.K. Dua, P.N. Puri, Gyan Singh, I.S. Goel, S.N. Singh, C.V. Subba Rao, V.M. Issar, Khaitan & Co., Brij Bhushan Sharma, P. Narasimhan, Ms. Madhu Mool Chandani, K.K. Jain, Pramod Dayal, A.D. Sangar, A.K. Ganguli, A. Mariaputam, Nafiz Ahmad Siddiqui, M.C. Dhingra, Avtar Singh Sonal, Shreepal Singh, S.R. Srivastava, Ashok K. Srivastava, Balmukand Goel, S.K. Bhulakia, R.C. Bhatia, R.K. Agnihotri, Dr. Meera Aggarwal, R.C. Misra, M.S. Dhillon, S.K. Dholakia, P. Narasimhan, R.K. Agarwal, T. Sridharan, S.C. Patel, N.M.Popli, Brij Bhushan and Kailash Mehta for the appearing parties.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The archaic right of pre emption based on consanguinity is in question in the several thousand writ petitions under article 32 of the Constitution.
The constitutional validity of sec.
15 of the Punjab Pre emption Act, 1913 was applicable in the State of Haryana which incorporates this right is challanged.
The State of origin of the Punjab Pre emption Act, the State of Punjab, has repealed the Act in 1973.
The Act, however, continues to be in force in the State of Haryana which originally formed part of the State of Punjab.
The vires of sec.15(1)(a) of the Act was questioned in this Court in Ram Sarup vs Munshi and Ors. ; on the ground that it offended the fundamental right guaranteed by sec.19(1)(f) of the Constitution.
It was ruled by a Constitution Bench that there was no infringement of Art.19(1)(f) and that the provision was valid.
The validity of sec.15 is now impugned primarily on the ground that it offends articles 14 and 15 of the Constitution.
The right of pre emption based on consanguinity has been variously described by learned judges as 'feudal ', 'piratical ', 'tribal ', 'weak ', 'easily defeated ', etc.
[Ralwa vs Vaaakha Singh A.I.R. 1983 Punjab & Haryana 480 (F.B.) at 490 and Bishan Singh vs Khazan Singh [1959] S.C.R. 878.
Fusing as it does the Lies of blood and soil, it cannot be doubted that the right is antiquated and feudal in origin and in character.
The right is very much like another right of feudal origin and character which subsisted here and there in India until recently, particularly amongst the princely families, namely, the right of succession by primogeniture.
It 405 is a well known characteristic of feudalism that the control of the most important productive resource, land, should continue in the hands of the same social and family group.
The right of pre emption based on consanguinity is a consequence flowing out of this characteristic.
It is entirely inconsistent with our Constitutional scheme.
Since the Forty Second Amendment, India is a socialist republic in which feudalism can obviously have no place and must go.
Our Constitution now proclaims India as a sovereign, socialist, secular democratic republic in which the right to equality before the law and the equal protection of the laws are guaranteed and all citizens are assured that the State shall not discriminate on grounds only of religion, race, caste, sex, place of birth or any of them.
The citizens are also assured of the right to move freely through out the territory of India, to reside or settle in any part of the territory of India and to practise any profession or to carry on any occupation, trade or business.
The State is further enjoined to direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
The right to property has also now ceased to be a fundamental right since the Forty Fourth Amendment.
The question now is whether this adjunct of the right to property, perhaps perfectly reasonable in a feudal society, can be constitutionally sustained in a society dedicated to socialistic principles.
The question has to be examined with reference to articles 14, 15 and 19(1)(d) and (g), in the background of the Preamble to the Constitution and Art.39(c) of the Directive Principles of State Policy.
We think that the question has to be primarily answered with reference to Art 14.
The Punjab Pre emption Act, 1913 repealed the Punjab Pre emption Act of 1905 and sec.12 of the 1905 Act which corresponded to sec.15 of the 1913 Act was as follows: "12.
Subject to the provisions of section 11, the right of pre emption in respect of agricultural land and village immovable property shall vest (a) in the case of the sale of such land or property by a sole owner or occupancy tenant, or when such land or property is held jointly, by the co sharers, 406 in the persons who but for such sale would be entitled to inherit the property in the event of his or their decease, in order of succession; (b) in the case of a sale of share of such land or property held jointly first in the lineal descendants of the vendor in the male line in order of succession; secondly, in the co shares, if any, who are agnates, in order of succession; thirdly, in the persons described in sub clause (a) of this sub section and not hereinbefore provided for; fourthly, in the co sharers, (i) jointly, (ii) severally; (c) As section 15(c), Act of 1913, with the addition of words (i) jointly, (ii) severally, in secondly, thirdly and fourthly.
Explanation 1.
In the case of sale of a right of occupancy, clauses (a), (b) and (c) of this sub section, with the exception of sub clause fourthly of clause (c), shall be applicable.
Explanation 2.
In the case of a sale by a female of property to which she has succeeded through her husband, son, brother or father, the word 'agnates ' in this section shall mean the agnates of the person through whom she has so succeeded.
" Section 15 of the Punjab Pre emption Act, 1913 as it originally stood, was as follows: "15.
Subject to the provisions of section 14 the right of pre emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly 407 owned or held, is by all the co sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold: (b) where the sale is of a share out of joint land or property, and is, not made by all the co sharers jointly, firstly, in the lineal decendants of the vendor in order of succession; secondly, in the co sharers, if any, who are agnates, in order of succession; thirdly in the persons, not included under firstly or secondly, above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold; fourthly, in the co sharers: (c) If no person having a right of pre emption under clause (a) or clause (b) seeks to exercise it, firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior proprietors, and when the inferior right is sale, in the superior proprietors; secondly, in the owners of the patti or other sub division of the estate within the limits of which such land or property is situate; thirdly, in the owners of the estate; fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or property; 408 fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated.
Explanation In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother or father, the word (agnates ' in this section shall mean the agnates of the person through whom she has so succeeded.
In 1960, there were substantial amendments to the Punjab Pre emption Act and, after amendment, sec.15 was as follows: "15.
Persons in whom right of pre emption vests in respect of sales of agricultural land and village immovable property (1) The right of pre emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner First, in the son or daughter or son 's son or daughter 's son of the vendor; Secondly, in the brother or brother 's son of the vendor: Thirdly, in the father 's brother or father 's brother 's son of the vendor; Forthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof; (b) where the sale is of a share out of joint land or property and is not made by all the co shares jointly First, in the sons or daughters or sons ' son or daughters ' sons of the vendor or vendors; Secondly, in the brothers or brother 's sons of the vendor or vendors; 409 Thirdly, in the father 's brother or father 's sons of the vendor or vendors; Fourthly, in the other co sharers; Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof; (c) where the sale is of land or property owned jointly and is made by all the co sharers jointly First, in the sons or daughters or sons ' sons or daughter 's sons of the vendors; Secondly, in the brothers or brother 's sons of the vendors; Thirdly, in the Father 's or brother 's or father 's brother 's sons of the vendors: Fourthly, in the tenants, who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.
(2) Notwithstanding anything contained in subsection(1) : (a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre emption shall vest: (i) if the sale is by such female, in her brother or brother 's son; (ii) if the sale is by the son or daughter of such female, in the mother 's brothers or the mother 's brother 's sons of the vendor or vendors; (b) where the sale is by a female of land or 410 property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre emption shall vest, FIRST, in the son or daughter of such (husband of the) female; SECONDLY, in the husband 's brother or husband 's brother 's son of such female.
" Agricultural land has been defined in the Act to mean land as defined in the Punjab Alienation of Land Act, not including the rights of a mortgagee, whether usufructuary or not, in such land. 'Member of an agricultural tribe ' and 'Group of agricultural tribes ' are to have the same meanings assigned to them respectively under the Punjab Alienation of Land Act.
The Punjab Alienation of Land Act has been repealed, but the definitions continue to have force for the purposes of the Punjab Pre emption Act.
Section 4 of the Punjab Preemption Act states what the right of Pre emption is.
It says : "4.
Right of pre emption application of The right of pre emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property.
Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale.
" t Section 5(b) prescribes that there shall be no right of pre emption in respect of the sale of agricultural land being waste land reclaimed by the vendee.
Section 6 provides that a right of pre emption shall exist in respect of village immovable property and subject to the provisions of section 5(b), in respect of agricultural land, but only subject to all the provisions and limitations contained in the Act.
Section 7 refers to the right of pre emption in respect of urban immovable property.
Section 8 enables the Government to 411 declare by a notification that there shall be no right of pre emption in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales.
Section 10 prevents a party to a sale along with other joint owners from claiming a right to pre emption.
In respect of land sold by a member of an agricultural tribe, section 14 provides that no person who is not a member of the same agricultural tribe as the vendor shall have a right of pre emption.
We have already extracted section 15.
Section 16 refers to the vesting of the right of pre emption in the case of an urban immovable property Section 17 prescribes how the right of pre emption may be exercised where several persons are entitled to such right.
Other provisions deal with the procedure to be followed for the exercise of the right of pre emption.
Now, to the question at issue and first, a word about interpretation.
Whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal rule is to look to the Preamble to the Constitution as the guiding light and to the Directive Principles of State Policy as the Book of Interpretation.
me Preamble embodies and expresses the hopes and aspirations of the people.
The Directive Principles set out proximate goals.
When we go about the task of examining statutes against the Constitution, it is through these glasses that we must look, 'distant vision ' or 'near vision '.
The Constitution being sui generis, where Constitutional issues are under consideration, narrow interpretative rules which may have relevance when legislative enactments are interpreted may be misplaced.
Originally the Preamble to the Constitution proclaimed the resolution of the people of India to constitute India into 'a Sovereign Democratic Republic ' and set forth 'Justice, Liberty, Equality and Fraternity ', the very rights mentioned in the French Declarations of the Rights of Man as our hopes and aspirations.
That was in 1950 when we had just emerged from the colonial feudal rule.
Time passed.
The people 's hopes and aspirations grew.
In 1977 the 42nd amendment proclaimed India as a Socialist Republic.
The word 'socialist ' was introduced into the Preamble to the Constitution.
The implication of the introduction of the word 'socialist ', which has now become the centre of the hopes and aspirations of the people a beacon to guide and inspire all that is enshrined in the 412 articles of the Constitution , is clearly to set up a "vibrant throbbing socialist welfare society" in the place of a "Feudal exploited society".
Whatever article of the Constitution it is that we seek to interpret, whatever statute it is whose constitutional validity is sought to be questioned, we must strive to give such an interpretation as will promote the march and progress towards a Socialistic Democratic State.
For example, when we consider the question whether a statute offends Article 14 of the Constitution we must also consider whether a classification that the legislature may have made is consistent with the socialist goals set out in the Preamble and the Directive Principles enumerated in Part IV of the Constitution.
A classification which is not in tune with the Constitution is per se unreasonable and cannot be permitted.
With these general ennunciations we may now examine the questions raised in these writ petitions.
We may first refer to two decisions of this court where the court had occasion to consider the question of the constitutional validity of the right of pre emption incorporated in the Rewa State Pre emption Act and the Punjab Pre emption Act in relation to article 19(1)(f) of the Constitution.
In Bhau Ram vs B. Baijnath Singh [1962] Suppl, 3 S.C.R. 724, a Constitution Bench of this court had occasion to consider the question whether a provision of the Rewa State Pre emption Act which gave a right of pre emption based on vicinage and the provisions of the Punjab Pre emption Act, 1913 which gave a right of pre emption to co sharers offended Art.19(1)(f) of the Constitution.
It was held that a right of pre emption by vicinage offended Art.19(1)(f) and that a right of pre emption in favour of co sharers did not.
While dealing with the provision of the Rewa Act relating to pre emption by vicinage, the Constitution Bench not only held that the right to pre emption by vicinage offended article 19(1)(f), but also appeared to indicate that the right might also offend the fundamental right guaranteed by Art.15.
Wanchoo, J., speaking for the court said : "Before the Constitution came into force, the statutes if they were passed by competent authority, could not be challenged; but we have now to judge the reason ableness of these statutes in 413 the light of the fundamental rights guaranteed to the citizens of this country by the Constitution.
In a society where certain classes were privileged and preferred to live In groups and there were discriminations, on grounds of religion, race and caste, there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity of class of people and in those times a right of pre emption which would oust a stranger from the neighbourhood may have been tolerable or reasonable.
But the constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under article 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public.
Though therefore the ostensible reason for pre emption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people.
In effect, therefore, the law of pre emption based on vicinage was really meant to prevent strangers i.e. people belonging to different religion, race or caste, from acquiring property.
Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable, and the main reason therefore which sustained the law of pre emption based on vicinage in previous times can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property as now guranteed under Art.19(1)(f), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the state of society in the present day.
" Considering the question relating to the right of pre emption given to co sharers in the Punjab Pre emption Act, 1913, the court observed : 414 "The question as to the constitutionality of a law of pre emption in favour of a co sharer has been considered by a number of High Courts and the constitutionality has been uniformly upheld.
We have no doubt that a law giving such a right imposes a reasonable restriction which is in the interest of the general public.
If an outsider is introduced is a co sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common.
The result of the law of pre emption in favour of a co sharer is that if sales take place the property may eventually come into the hands of one co sharer as full owner and that would naturally be a great advantage the advantage is all the greater in the case of a residential house and s.16 is concerned with urban property; for the introduction of an outsider in a residential house would lead to all kinds of complications.
The advantages arising from such a law of pre emption are clear and in our opinion outweight the disadvantages which the vendor may suffer on account of his inability to sell the property to whomsoever he pleases.
The vendee also cannot be said to suffer much by such a law because he is merely deprived of the right of owning an undivided share of the property.
On the whole it seems to us that a right of pre emption based on co sharership is a reasonable restriction on the right to acquire, hold and dispose of property and is in the interests of the general public.
In Bhau Ram 's case, there was also a question relating to the right of pre emption granted by s.174 of the Berar Land Revenue Code in favour of occupants in a survey number in respect of transfers of interests in that survey number.
Referring to the provisions of the Berar Land Revenue Code, it was held that the law of pre emption in s.174 applied to those who were co sharers or akin to co sharers and was not an unreasonable restriction on the right guaranteed by Art.19(1)(f).
The question whether section 15(1)(a) of the Punjab 415 Pre emption Act, 1913 (as amended in 1960) which granted a right of pre emption in respect of agricultural land and village immovable property (where the sale was by a sole owner) to the son or daughter or son 's son or daughter 's son of the vendor, offended the fundamental right guaranteed by Art.19(1)(f) of the Constitution was considered by a Constitution Bench of the court in Ram Sarup vs Munshi and Ora.
(supra).
Before the Constitution Bench, the following five grounds were relied upon to vindicate the reasonableness of sections 15 and 16 of the Act : (i) to preserve the integrity of the village and the village community; (ii) to avoid fragmentation of holdings; (iii) to implement the agnatic theory of the law of succession; (iv) to reduce the chances of litigation and friction and to promote public order and domestic confort: and (v) to promote private and public decency and convenience.
It was held that the ground of "promotion of public order and domestic comfort" and "private and public decency and convenience" had relevance to urban immovable property which was dealt with in s.16 and not to agricultural property which was dealt with in s.15.
It also held that the ground of avoidance of chances of litigation had no relevance and further that the ground of avoidance of fragmentation of holdings was of no assistance to sustain the claim of a son to pre empt in the event of a sale by a sole owner father as that criterion was of real relevance in the case of the right of pre emption given to co sharers and the like.
In regard to the ground relating to preservation of the integrity of the village and the village community, the court held that it was not a final and conclusive answer to the argument against the reasonableness of the provision.
me court however upheld s.l5(1)(a) as a reasonable restriction in the interest of the general public on the basis of the third ground which was that 416 the next in succession should have the chance of retaining the property in the family.
It was observed that the son and other members of the family though not entitled to a present interest in the property or a right to prevent the alienation, would nevertheless have a legitimate expectation founded on and promoted by the consciousness of the community.
It was observed that if the social consciousness did engender such feelings, and taking into account the very strong sentimental value that was attached to the continued possession of family property in the Punjab, it could not be said that the restriction on the right of free alienation imposed by s.l5(1)(a) limited as it was to a small class of near relations of the vendor was either unreasonable or not in the interest of the general public.
In Sant Ram vs Labh Singh, A.I.R. 1965 S.C. 314, it was held that the reasons given by the court in Bhau Ram 's case tc invalidate the right of pre emption based on vicinage held good to invalidate such a custom also.
In the first case, (Bhau Ram 's case), the right of preemption given to co sharers was held to be a reasonable restriction on the right to held, acquire or dispose of property conferred by article 19(1)(f) of the Constitution.
What has been said there to uphold the right of pre emption granted to a co sharer as a reasonable restriction on the right to property applies with the same force to justify the classification of co sharers as a class by themselves for the purpose of vesting in them the right of pre emption.
We do not think that it is necessary to re state what has been said in that case.
We endorse the views expressed therein.
The right of pre emption vested in a tenant can also be easily sustained.
There can be no denying that the movement of all land reform legislations has been towards enabling the tiller of the soil to obtain proprietory right in the soil so that he may not be disturbed from possession of the land and deprived of his livelihood by a superior proprietor.
The right of pre emption in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant.
There can be no doubt that tenants form a distinct class by themselves and the right of pre emption granted in their favour is reasonable and in the public interest.
We are, therefore, of the view that clause 'fourthly ' of s.15(1)(a), clauses 'fourthly 417 and fifthly ' of s.15(1)(b) and clause 'fourthly ' of section 15(1) (c) are valid and do not infringe either article 14 or 15 of the Constitution.
We now come to the primary question whether the right of pre emption based on consanguinity and contained in the remaining clauses of sec.15(1)(a), (b) and (c) and sec.
15(2)(a) and (b) can be sustained.
Earlier we have briefly indicated the character of the right of pre emption based on consaguinity.
In the counter affidavit, the classification in favour of the persons mentioned in 9.15 is sought to be justified in the following manner "The classifications has been made on reasonable basis in the interests of the public : (i) to preserve integrity of village community; (ii) to avoid fragmentation of holdings; (iii) to implement the agnatic theory of succession; (iv) to promote public and private decency; (v) to facilitate tenants to acquire ownership rights; (vi) to reduce litigation consequent to introduction of an outsider on family property or jointly owned property.
These were the very factors which were put forward to support the plea in Ram Sarup 's case that s.15(1)(a) was a reasonable restriction on the right to hold acquire or dispose of property conferred by article 19(1)(f) of the Constitution.
As pointed out in Ram Sarup 's case, avoidance of fragmentation of holdings, promotion of private and public decency and reduction of litigation do not seem to have any relevance to the right of pre emption, vested in the kinsfolk of the vendor.
The real question is whether a classification in favour of the kinsfolk of the vendor can be considered reasonable so as to justify a right of pre emption in their 418 favour for the purpose of preserving the integrity of the village community or implementing the agnatic theory of succession or preserving the unity and integrity of the family, We do not think that the classification can be considered reasonable in the circumstances prevailing today whatever Justification there might have been for the classification in 1960 when the legislature amended s.15 of the Punjab Pre emption Act.
Apart from the courts characterising the right as 'archaic ', 'feudal ', 'piratical ' 'outmoded ' and so on, the Punjab legislature recognised the incongruity of the right in modern times and repealed it in 1972.
We find it difficult to uphold the classification on the basis of unity and integrity of either the village community or the family or on the basis of the agnatic theory of succession which is again in a way connected with the integrity of the family.
It is well known and, we may take judicial notice of it, that not only has there been a green and a white revolution in Haryana, this State is also in the process of an industrial revolution.
Industries have sprung up through out the State and the population has been in a State of constant flux and movement.
The traditional integrity of the village and the family have now become old wives ' tales.
Tribal loyalities have disappeared and family ties have weakened.
Such is the effect of the march of history and the consequence of industrialisation, mechianisation of agriculture, development of marketing and trade, allurement of professions and office, employment opportunity elsewhere and so on.
The processes of history cannot be reversed and we cannot hark back to the traditional rural family oriented society.
Quite apart from the break up of the integrity of village life and family life, it is to be noticed that the property in respect of which the right of pre emption is to be exercised is property of which the vendor or the vendors, as the case may be, have rights of full ownership and their kinsfolk have no present right whatsoever.
The right of pre emption is not to be confused with the right to question the alienation of ancestral immovable property which the male lineal descendants of the vendor have under the Punjab Custom (Power to Contest) Act, 1920.
The right of pre emption is now entirely a statutory right and dissociated from custom or personal law.
A scrutiny of the list of persons in whose favour the right of pre emption is vested under s.15 reveals certain 419 glaring facts which appear to detract from the theory of preservation of the integrity of the family and the theory of agnatic right of succession.
First we notice that neither the father nor the mother figures in the list though the father 's brother does.
me son 's daughter and the daughter 's brother does.
The son 's daughter and the daughter 's daughter do not appear though the son 's son and daughter 's son do.
The sister and the sister 's son are excluded, though the brother and the brother 's son are included.
Thus relatives of the same degree are excluded either because they are women or because they are related through women.
It is not as if women and those related through women are altogether excluded because the daughter and daughter 's son are included.
If the daughter is to be treated on a par with the son and the daughter 's son is treated on a par with the son 's son it does not appear logical why the father 's son (brother) should be included and not the father 's daughter (sister).
These are but a few of the intrinsic contradictions that appear in the list of relatives mentioned in s.15 as entitled to the right of pre emption.
It is ununderstandable why a son 's daughter, a daughter 's daughter, a sister or a sister 's son should have no right of pre emption whereas a father 's brother 's son has that right.
As s.15 star, s, if the sole owner of a property sells it to his own father, mother, sister, sister 's son, daughter 's daughter or son 's daughter, the sale can be defeated by the vendor 's father 's brother 's son claiming a right of pre emption.
We are thus unable to find any justification for the classification contained in section 15 of the Punjab Preemption Act of the kinsfolk entitled to pre emption.
The right of pre emption based on consanguinity is a relie of the feudal .
It is totally inconsistent with the Constitutional me.
It is inconsistent with modern Ideas.
The reasons such justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, .
unity of family life and the agnatic theory of succession are today irrelevant.
me list of kinsfolk mentioned as entitled to pre emption is intrinsically defective and self contradictory.
There is, therefore, no reasonable classification and clauses 'First ', 'Secondly ', and ' Thirdly ' of s.l5(1)(a), 'First ', 'Secondly ' and 'Thirdly ', of s.15(1)(b), Clauses 'First ', 'Secondly ' and 'thirdly ' of s.15(1)(c) and the whole of section 15(2) are, therefore, declared ultravires the Constitution.
420 We are told that in some cases suits are pending in various courts and, where decrees have been passed, appeals are pending in appellate courts.
Such suits and appeals will now be disposed of in accordance with the declaration granted by us.
We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those decrees.
The decrees will be binding inter partes and the declaration granted by us will be of no avail to the parties thereto.
There will be no order regarding costs.

summary:
Interpretation of statutes Provision of Constitution sought to be interpreted or a statute whose constitutional validity is sought to be questioned Interpretation that will promote march & Progress towards a Socialistic Democratic State To be given.
Section 15 of the Punjab Pre emption Act, 1913 as applicable in the State of Haryana, incorporates the right of pre emption based on consanguinity.
The petitioners challenged this right of pre emption based on consanguinity under article 32 of the Constitution on the ground that it offends articles 14 and 15 of the Constitution.
It was contended on behalf of the respondent State that the classification in favour of the persons mentioned in section 15 has been made on reasonable basis in the interests of the public: (1) to preserve integrity of village community; (11) to avoid fragmentation of holdings; (111) to implement the agnatic theory of succession; (iv) to promote public and private decency; (v) to facilitate tenants to acquire ownership rights; (vi) to reduce litigation consequent to introduction of an outsider on family property or jointly owned property.
Allowing the writ petitions, ^ HELD: 1(1) There is no justification for the classification contained in section 15 of the Punjab Perception Act of the kinsfolk entitled to pre emption.
The right of pre emption based on consanguinity is a relic of the feudal past.
It is totally inconsistent with modern ideas.
The reasons which justified its recognition quarter of a century 400 ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant.
It is difficult to uphold the classification on the basis of unity and integrity of either the village community or the family or on the basis of the agnatic theory of succession which 18 again in a way connected with the integrity of the family.
The list of kinsfolk mentioned as entitled to preemption is intrinsically defective and self contradictory.
There is, therefore, no reasonable classification and clauses 'First ', 'Secondly ' and 'Thirdly ' of 8. 15(1)(a), 'First ', 'Secondly ', and 'Thirdly ' of 8. 15(1)(b), clauses 'First ', 'Secondly ' and 'Thirdly ' of 8. 15(1)(c) and the whole of section 15(2) are, therefore, declared ultravires the Constitution.
[419 E H] 1.2 Clause 'fourthly ' of 8. 15(1)(a), clauses 'fourthly and fifthly ' of 8.
15(1)(b) and clause 'fourthly ' of 8.
15(1) (c) are valid and do not infringe either article 14 or 15 of the Constitution.
[416 H; 417 A] 2.1 Whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal rule 18 to look to the Preamble to the Constitution as the guiding light and to the Directive Principles of State Policy as the Book of interpretation.
The Preamble embodies and expresses the hopes and aspirations of the people.
The Directive Principles set out proximate goals.
At the time of examining statutes against the Constitution, it is through these glasses that the court must look, 'distant vision ' or 'near vision '.
The Constitution being sui generis, where constitutional issues are under consideration, narrow interpretative rules which may have relevance when legislative enactments are interpreted may be misplaced.
[411 D F] 2.2 In 1977 the 42nd amendment proclaimed India as a Socialist Republic.
The word 'socialist ' was introduced into the Preamble to the Constitution.
The implication of the introduction of the word 'socialist ' which has now become the centre of the hopes and aspirations of the people a beacon to guide and inspire all that is enshrined in the articles of the Constitution is clearly to set up a "vibrant throbbing socialist welfare society" in the place of a "Feudal exploited society.
When the Court considers the question whether a 401 statute offends Article 14 of the Constitution it must consider whether a classification that the legislature may have made is consistent with the socialist goals set out in the Preamble and the Directive Principles enumerated in Part IV of the Constitution.
A classification which is not in tune with the Constitution is per se unreasonable and cannot be Permitted.
[411 G H: 412 A C] 3.1 The right of pre emption based on consanguinity is antiquated and feudal in origin and in character.
The right is very much like another right of feudal origin and character which subsisted here and there in India until recently, particularly amongst the princely families, namely, the right of succession by primogeniture.
It is a well known characteristic of feudalism that the control of the most important productive resource, land, should continue in the hands of the same social and family group.
The right of preemption based on consanguinity is a consequence flowing out of this characteristic.
It is entirely inconsistent with our Constitutional scheme.
Since the Forty Second Amendment, India is a socialist republic in which feudalism can obviously have no place and must go.
[404 G H; 405 A 8] 3.2 Avoidance of fragmentation of holdings, promotion of private and public decency and reduction of litigation do not seem to have any relevance to the right of pre emption, vested in the kinsfolk of the vendor.
me real question is whether a classification in favour of kinsfolk of the vendor can be considered reasonable so as to justify a right of pre emption in their favour for the purpose of preserving the integrity of the village community or implementing the agnatic theory of succession or preserving the unity and integrity of the family.
The classification cannot be considered reasonable in the circumstances prevailing today whatever justification there might have been for the classification in 1960 when the legislature amended 8. 15 of the Punjab Pre emption Act.
A scrutiny of the list of persons in whose favour the right of preemption is vested under section 15 reveals certain glaring facts which appear to detract from the theory of preservation of the integrity of the family and the theory of agnatic right of succession.
Neither the father nor the mother figures in the list though the father 's brother does.
The son 's daughter and the daughter 's son do.
The sister and sister`s son are 402 excluded though the brother and the brother 's son are included.
Thus relatives of the same degree are excluded either because they are women or because they are related through women.
It is not as if women and those related through women are altogether excluded because the daughter and daughter 's son are included.
If the daughter is to be treated on a par with the son 's son it does not appear logical why the father 's son (brother) should be included and not the father 's daughter (sister).
There are but a few of the intrinsic contradictions that appear in the list of relatives mentioned in s.15 as entitled to the right of pre emption.
[417 G H; 418 A B; H; 419 A C] 3.3 There has been a green and a white revolution in Haryana.
This State is also in the process of an industrial revolution.
Industries have sprung up through out the State and the population has been in a state of constant flux ant movement.
The traditional integrity of the village and the family have now become old wives ' tales.
Tribal loyalties have disappeared and family tries have weakened.
Such is the effect of the march of history and the consequence of industrialisation, mechanisation of agriculture, development of marketing and trade, allurement of professions and office, employment opportunity else where and so on.
The processes of history cannot be reversed and the court cannot hark back to the traditional rural family oriented society.
Quite apart from the break up of the integrity of village life and family life, lt is to be noticed that the property in respect of which the right of pre emption is to be exercised is property of which the vendor or the vendors, as the case may be, have rights of full ownership and their kinsfolk have no present right whatsoever.
[418 C F] 3.4 The right of pre emption is not to be confused with the right to question the alienation of ancestral immovable property which the male lineal descendants of the vendor have under the Punjab Custom (Power to Contest) Act 1920.
The right of preemption is now entirely a statutory right and dissociated from custom or personal law.[418 G] 4.1 In Bhau Ram vs Baijnath Singh 1962 (Suppl.) 3 S.C.R. 724, the right of pre emption given to co share was held to be a reasonable restriction on the right to hold, acquire or dispose of property conferred by article 19(1)(f) of 403 the Constitution.
What has been said there to uphold the right of pre emption granted to a co sharer as a reasonable restriction on the right to property applies with the same force to justify the classification of co sharers as a class by themselves for the purpose of vesting in them the right of pre emption.
[416 D E] 4.2 The right of pre emption vested in a tenant can also be easily sustained.
There can be no denying that the movement of all land reform legislation has been towards enabling the l tiller of the soil to obtain proprietary right in the soil so that he may not be disturbed from possession of the land and deprived of his livelihood by a superior proprietor.
The right of preemption in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant.
There can be no doubt that tenants form a distinct class by themselves and the right of pre emption granted in their favour is reasonable and in the public interest.[416 G H] Bhau Ram vs B. Baijnath Singh, [1962] Supp. 3 S.C.R. 724 and Sant Ram vs Labh Singh A.I.R. 1965 S.C. 314 referred to.
Ram Sarup vs Munshi Ors. ; explained.


judgement:
ition Nos. 3805 and 3850 of 1985 etc.
Y.S. Chitale, P.P. Rao, M.K. Ramamurthi, R.K. Garg, F.S. Nariman, K. Parasaran, Attorney General, S.M. Ashri, Petitioner in person, Rakesh K. Khanna, Jaspal Singh, S.K. Verma, Miss Asha Rani Jain, P.H. Parekh, S.K. Verma, C.M. Nayar, K. Swamy, S.S. Khanduja, Yashpal Dhingra, Miss Rani Jethmalani, A.K. Ganguli, M.A. Krishnamoorthy, R.N. Poddar, S.K. Bisaria, Jank Raj Joshi, Kailash Vasdev, Mrs. Vinod Arya, K. Swami, V.K. Maheshwari, U.R. Lalit and Mrs. Indira Sawhney for the appearing parties.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
In these petitions filed under Article 32 of the Constitution the petitioners have challenged the validity of the proceedings relating to the competitive examination held 371 by the High Court of Delhi for the purpose of recruiting candidates for filling the posts in the Delhi Judicial Service in the year 1984 and of the final list of selected candidates at that examination.
The petitioner in Transfer Case No. 61 of 1985, which was also heard along with the above petitions, had filed earlier a writ petition under Article 226 of the Constitution before the High Court of Delhi for the very same relief.
That writ petition was withdrawn by an order made under Article 139A of the Constitution for being disposed of along with the writ petitions filed in this court.
The petitioners in the above petitions were applicants for the posts of Subordinate Judges in the Delhi Judicial Service.
Recruitment to the Delhi Judicial Service is governed by the Delhi Judicial Service Rules, 1970 (hereinafter referred to as 'the Rules ') made by the Lt. Governor of Delhi in exercise of the powers conferred by the proviso to Article 309 of the Constitution read with Article 234 of the Constitution, in consultation with the High Court of Delhi.
The initial recruitment to the Delhi Judicial Service was made in accordance with Part III of the Rules. 'Initial recruitment ' means the first recruitment and appointment made to the Delhi Judicial Service after the commencement of the Rules.
Any recruitment to the Delhi Judicial Service after the initial recruitment is required to be made in accordance with the rules contained in Part IV of the Rules.
We are concerned in these cases mainly with Rules 13 to 18 of the Rules and the Appendix attached thereto.
Rule 13 of the Rules provides that recruitment after the initial recruitment, shall be made on the basis of a competitive examination to be held by the High Court at such intervals as the Administrator may in consultation with the High Court determine.
The Administrator is not other than the Lt. Governor of Delhi.
The dates on which and the place at which the examination is to be held are required to be fixed by the Administrator.
Rule 14 prescribes the minimum qualifications for a candidate which he should satisfy in order to be eligible to appear at the competitive examination.
A candidate is eligible to appear at the examination if he is (a) a citizen of India; (b) a person practising as an advocate in India or a person qualified to be admitted as an advocate under the ; and (c) not more than 32 years of age on the Ist day of January following the date of commencement of the examination.
Rule 15 of the Rules provides that the syllabus for the examination and the fees payable shall be as detailed in the Appendix attached to the Rules.
The examination includes the following subjects and each subject carries the number of marks shown against it: 372 (1) Essay and General Knowledge 150 (2) Language 100 (3) Law Paper (I) and Civil Law 200 (4) Law Paper (II) Civil Law 200 (5) Paper(III) Criminal Law 200 (6) Viva Voce 150 The first five papers are called written papers.
In clauses (1) to (5) of the Appendix the topics or subjects of each of the above written papers are set out.
Clause (6) of the Appendix which deals with Viva Vore reads as under: "(6) Viva Voce: Only such candidates will be called for Viva Voce who have obtained 50% in each written paper and 60 per cent in the aggregate except in the case of candidates belonging to the Scheduled Castes/Tribes, in whose case the qualifying marks will be 40% in each written paper and 50% in the aggregate.
" The marks obtained in the Viva Voce have to be added to the marks obtained in the written papers and the candidate 's rank depends on the aggregate of both.
Rule 16 of the Rules provides that after the written test, the High Court shall arrange the names of the candidates in order of merit and these names shall be sent to the Selection Committee.
The constitution of the Selection Committee is described by rule 5 of the Rules.
It provides that for purposes of recruitment to the Delhi Judicial Service there shall be a Selection Committee consisting of the following: "(1) Chief Justice or a Judge of the High Court deputed by him.
(2) Two Judges of the High Court nominated by the Chief Justice.
(3) Chief Secretary, Delhi Administration, Delhi.
(4) A Secretary of the Delhi Administration nominated by the Administrator.
" The Registrar of the High Court is the ex officio Secretary to the Committee.
The Selection Committee is required to call for Viva Voce test only such candidates who have qualified at the 373 written test as provided in the Appendix.
The duties and functions of the Selection Committee are set out in rules 17 and 18 of the Rules.
They read: "17.
The Selection Committee shall call for viva voce test only such candidates, who have qualified at the written test as provided in the appendix.
The Selection Committee shall prepare a list of candidates in order of merit.
Such list will be forwarded to the Administrator for filling the vacancies then existing or any vacancy that may occur within a period of one year of the preparation of the list.
" The foregoing is in brief the summary of the rules governing the recruitment of persons to the Delhi Judicial Service after the initial recruitment.
On July 5, 1984 a notification was published in the local newspapers by the Registrar of Delhi High Court calling for applications from eligible persons for filling the posts in the Delhi Judicial Service.
A large number of candidates who were eligible under the Rules applied in response to the said notification.
The examination in the written papers, i.e., Essay and General Knowledge, Language, Law Paper (I) and Civil Law, Law Paper (II) Civil Law and Paper (III) Criminal law was held in October, 1984.
After the answer books at the written examination were valued, the names of 27 candidates, who were eligible for the viva voce test under the Rules, i.e., the candidates who had obtained not less than 50 per cent marks in each written paper and not less than 60 per cent in the aggregate amongst candidates not belonging to the Scheduled Castes/Tribes and the candidates belonging to Scheduled Castes/Tribes who had obtained not less than 40 per cent marks in each written paper and not less than 50% in the aggregate, were published on the Notice Board of the Delhi High Court in the early part of January, 1985.
The names of the said candidates were arranged in accordance with their Roll Numbers and not in the order of merit.
The following is the list of 27 candidates: Sl.
Roll Name No. No. 1. 20 Sh.
Naresh Kumar Kaushik 2. 30 Miss Sangita Dhingra 3.
35 Sh.
Pradeep Chaddha 4. 36 Sh.
Narender Kumar 374 5.
57 Miss Ravinder Kaur 6.
58 Sh.
Kunda Singh Mohi 7.
61 Sh.
Padam Kant Saxena 8.
103 Sh.
Teeka Ram 9. 112 Miss Anu Prem Shanker Kapoor 10.
170 Sh.
Vinod Kumar Maheshwari 11.
180 Sh.
Brijesh Sethi 12. 220 Miss Asha Menon 13. 258 Sh.
Rakesh Garg 14.
287 Sh.
A.K. Chaturvedi 15.
311 Sh.
Sukhdev Singh 16.
342 Sh.
Sudip Ahluwalia 17.
404 Sh.
Pawan Kumar 18.
416 Sh.
Dimpy Kumar Malhotra 19.
442 Sh.
R. Kiran Nath 20.
526 Sh.
Dilbagh Singh Punia 21.
715 Sh.
Satish Kumar Minocha 22.
962 Sh.
Jaipal Singh Malik 23.
996 Sh.
Suraj Bhan 24.
1081 Sh.
Narindar Pal Kaushik 25. 1510 Miss Rekha Rani 26.
1566 Sh.
Kamlesh Kumar 27.
1883 Sh.
Kamlesh Chander Agarwal These candidates were admitted to the Viva Voce test by the Selection Committee.
Before the final list of candidates was published by the Selection Committee, as required by rule 18 of the Rules, the petitioners came to know that names of certain candidates who names had not been included in the above list of 27 qualified candidates had been included in the final list by the Selection Committee and that the names of certain candidates who had been interviewed by the Selection Committee had been omitted from the said final list.
Immediately thereafter the petitioners filed those petitions questioning the validity of the procedure adopted by the High Court and the Selection Committee in the preparation of the final list of successful candidates.
It is not necessary to refer to all the allegations made in the petitions for the purpose of deciding these cases.
We propose to deal with only two contentions raised by the petitioners, namely: (1) Whether it was open to the High Court to include in the list prepared under rule 16 of the Rules names of the candidates who had not secured the minimum marks prescribed in the Appendix of the Rules for being eligible to appear at the Viva Voce test; and 375 (2) Whether it was open to the Selection Committee or the High Court to omit the names of certain candidates who had appeared at the Viva Voce examination from the final list.
In order to appreciate the above contentions, it is necessary to set out what the Deputy Registrar of the High Court of Delhi has stated in his counter affidavit filed on behalf of the High court in answer to the allegations made by the petitioners.
In the counter affidavit dated 12.4.1985 filed in Writ Petition No. 3805 of 1985, the Deputy Registrar has stated as under: II (a) . . . . . . . (b) The petitioner in any event has no right to maintain the present petition.
I state that on the basis of the written competitive examination held in October, 1984 for recruitment to the Delhi Judicial Service, the High Court of Delhi had prepared a list of 27 candidates who qualified at the written test.
Subsequently, by reason of a Full Court decision of the High Court, the marks obtained by the candidates at the written test were moderated by granting two marks to each of the candidates in each paper for the reasons detailed herein below.
On the basis of this moderation and as a result of re valuation of papers of one candidate (details of which are given below) a second list was prepared showing the names of 8 candidates who also qualified for the Viva Voce test. . . . . (c) High Court has treated each candidate equally.
I state that as a general practice, after the written examinations are held for recruitment to the Delhi Judicial Service, the results of the same are placed before the Full Court for their Lordships approval.
The results of the written examination held in 1984 for recruitment to the Delhi Judicial Service were also placed before the Full Court.
The Full Court approved the initial list of 27 candidates who qualified at the said written test.
However, the Hon 'ble 376 Judges of the High Court having appreciated that a few candidates who had otherwise scored very high marks would have to be kept out of the zone of consideration for final selection by reason of their having secured one or two marks below the aggregate or the qualifying marks prescribed for the particular paper, decided that "moderation of two marks in each paper to every candidate of the 1984, Delhi Judicial Service be done".
Moderation has been done on several occasions in the past also.
Accordingly, a second list was also prepared by the High Court and was put on the notice board for information of all the candidates.
The said two lists of candidates who qualified at the written test, both before and after the moderation/revaluation, are annexed hereto and marked as 'annexure 'B ' and 'C ', respectively.
A list of the candidates who had otherwise scored good marks in individual papers but could not secure 60% in the aggregate is annexed hereto and marked as Annexure 'D '.
There was yet another candidate, namely, Shri Raj Kamal Gaur who had scored very good marks in all the law papers viz. in Criminal Law 178 out of 200; in Civil Law (I) 144 out of 200 , in Civil Law (II) 133 out of 200 and in language 50 out of 100 but secured 73 marks out of 150 in the Essay and General Knowledge paper and thus disqualified himself for lack of only 2 marks in the Essay and General Knowledge paper.
This case was also taken into consideration by the Full Court for deciding to grant two additional marks to each candidate in each subject.
This candidate if had only secured 75% marks out of 150 in Essay and General Knowledge paper would have obtained No.2 position in the merit list even without the addition of two marks in other papers which were subsequently awarded to him as well as to others by reasons of the Full Court decision.
Shri Raj Kumar Gaur is an advocate practising at Bhiwani (Haryana) and the other candidates mentioned in annexure 'D ' above are neither related nor in any way connected with the staff of the High Court or the Judges of the High Court.
" In the counter affidavit filed in Writ Petition No. 4363 of 1985 in paragraph 7 the Deputy Registrar stated: "In reply to para 7 of the writ petition it is admitted to be correct that it is provided in Rule 18 377 that the Selection Committee shall prepare a list of candidates in order of merit, and that such list may be forwarded to the Administrator for filing the vacancies then existing or any vacancy that may occur within a period of one year of the preparation of the list.
It is submitted that if this rule is interpreted to mean that the Selection Committee shall even if it considers in the Viva voce test a candidate to be not suitable for appointment to the Delhi Judicial Service then too it shall recommend his name for appointment to the Service it will render the purpose of viva voce test to be farce and mere empty formality.
In the viva voce test the Selection Committee has to judge the suitability of the candidates for appointment to the Service from various aspects.
The process of selection of suitable candidates to any responsible post involves by itself a minimum standard to be crossed by candidates and that has to be subjectively determined by the Selection Committee itself.
This requirement is all the more important in recruitment to subordinate judiciary.
It is submitted that in the present case the Selection Committee has considered only those general candidates, who have secured 600 or more marks in aggregate, and only the first two Scheduled Castes candidates to be suitable for appointment to the Delhi Judicial Service.
The Selection Committee in its recommendations dated 1.2.1985 observed that it selects and recommends for appointment only 21 candidates to the service.
A copy of the complete list together with a copy of the order passed by Selection Committee in this behalf is enclosed for perusal and marked as Annexure E 1.
" The final select list prepared by the Selection Committee is annexed to the counter affidavit filed in Writ Petition 4365 of 1985.
It contains the following names which are arranged in the order of merit: Sl.
Name No. 1.
Miss Sangita Dhingra 2.
Dimpy Kumar Malhotra 3.
Ms. Anu Prem Shanker 4.
R. Kiran Nath 378 5.
Ms. Ravinder Kaur 6.
Kamlesh Chandra Agarwal 7.
Rajan Sharma 8.
Satish Km.
Manocha 9.
Narender Paul Kaushik 10.
Raj Kamal Gaur 11.
Ms. Asha Menon 12.
Pawan Kumar 13.
Pradeep Chaddah 14.
Narender Kumar 15.
Naresh Kumar Kaushik 16.
Padam Kant Saxena 17.
Brijesh Sethi 18.
Miss Rekha Rani 19.
Miss Punam Jai 20.
A.K. Chaturvedi 21.
Sudip Ahluwalia 22.
Dilbag Singh 23.
Kamlesh Kumar 24.
V.K. Maheshwari 25.
Rakesh Garg 26.
J.S. Malik 27.
Raj Kumar Jain 28.
Suman Kr.
Khanna 29.
Rajinder Kumar Grover 30.
Vijay Kumar Scheduled Caste Candidates: 1.
Sukhdev Singh 2.
Teeka Ram 3.
Kunda Singh Mohi 4.
Gian Chand 5.
Suraj Bhan" It is seen from the extract of the counter affidavit filed in Writ Petition No. 3805 of 1985 that the results at the written examination were placed before the Full Court Meeting of the Delhi High Court for its approval on January 25, 1985.
The true copy of the minutes of the Full Court Meeting held on January 25, 1985 is produced before us.
It reads: "Agenda Minutes To consider the The Full Court considered the ques question whether tion and decided as follows: 379 High Court has (i) Re checking is always possible.
the power to re check and revalue (ii) If there is to be revaluation, the answer book of it must be by the same an examinee of the examiner Delhi Judicial (iii) Revaluation may be ordered by service.
the Hon 'ble the Chief Justice where he thinks it is a deserving case for sufficient reasons.
(iv) Moderation of 2 marks in each paper to every candidate of the 1984 Delhi Judicial Service Examination be done.
" It is seen from the above minutes that the subject for consideration at the meeting was whether the "High Court has the power to recheck and revalue the answer book of an examinee of the Delhi Judicial Service.
" It may be stated here that one of the candidates had submitted a petition to the High Court requesting it to get some of his answer books revalued before the above Full Court Meeting was held.
Resolutions (i) to (iii) passed at the Full Court Meeting relate to the said petition for revaluation.
We are not concerned in these cases with the question whether the High Court has the power to get the answer books revalued since the case of the candidate who had prayed for revaluation of his answer books has already been disposed of by a separate order on July 26, 1985 made in Writ Petition No. 3805 of 1985 by which he was permitted to withdraw from the contest.
We are concerned, therefore, only with Resolution No. (iv) passed at the Full Court Meeting deciding to add two marks to the marks obtained by a candidate in each paper.
On this question the Deputy Registrar has stated in the course of his counter affidavit thus: The Full Court approved the initial list of 27 candidates who qualified at the said written test.
However, the Hon 'ble Judges of the High Court having appreciated that a few candidates who had otherwise scored very high marks would have to be kept out of the zone of consideration for final selection by reason of their having secured one or two marks below the aggregate or the qualifying marks prescribed for the particular paper, decided that moderation of two 380 marks in each paper to every candidate of the 1984 Delhi Judicial Service be done.
Moderation has been done on several occasions in the past also.
" The question for consideration is whether the High Court in the circumstances of this case had the power to add two marks to the marks obtained in each paper by way of moderation.
It is no doubt, true that the High Court is entrusted with the duty of conducting the competitive examination under rule 13 of the Rules.
It is argued on behalf of the High Court that the power to conduct an examination includes the power to add marks either by way of moderation or by way of grace marks if it feels that it is necessary to do so, and reliance is placed by the High Court on its own past practice, and the practice prevailing in a number of universities in India, where marks are awarded either as moderation marks or as grace marks.
It is true that in some educational institutions marks are awarded by way of moderation at an examination if the examining body finds any defect in the examination conducted by it such as inclusion of questions in the question papers which are outside the syllabus, extremely stiff valuation of the answer books by an examiner or any other reason relevant to the question papers or the valuation of the answer books.
The reason given by the High Court for adding the moderation marks has nothing to do either with the question papers or with the mode of valuation.
The High Court approved the list of 27 candidates who had secured the required qualifying marks which would enable them to appeared at the viva voce test as prescribed in the Appendix.
Thereafter the High Court resolved to add two marks to be marks obtained in each paper by way of moderation on the ground that a few candidates who had otherwise secured very high marks may have to be kept out of the zone of consideration for final selection by reason of their having secured one or two marks below the aggregate or the qualifying marks prescribed in the particular paper.
The resolution does not show the names of the particular candidates considered at the meeting in whose case such a concession had to be shown.
The affidavit filed on behalf of the High Court, of course, refers to certain hard cases which persuaded the High Court to add additional marks by way of moderation.
The question for decision is whether such a resolution can be passed by the High Court which is entrusted with the duty of conducting the examination.
The High Court had not found any defect in the question papers or any irregularities in the valuation of the answer books.
It may be that some candidates had obtained high marks in some papers and by reason of their not obtaining the required marks in the other papers or 60% and above 381 in the aggregate they may not have become qualified for the viva voce test.
In our opinion this alone would not be sufficient to add any marks by way of moderation.
It is relevant to note the mandatory character of clause (6) in the Appendix to the Rules which says only such candidates will be called for viva voce who have obtained 50% marks in each written paper and 60% in the aggregate except in the case of candidates belonging to the Scheduled Castes/Tribes in whose case the qualifying marks will be 40% in each written paper and 50% in the aggregate.
Addition of any marks by way of moderation to the marks obtained in any written paper or to the aggregate of the marks in order to make a candidate eligible to appear in the viva voce test would indirectly amount to an amendment of clause (6) of the Appendix.
Such amendment to the Rules can be made under Article 234 only by the Lt. Governor (Administrator) after consulting the High Court in that regard.
In the instant case by resolving to add two marks to the marks obtained in each answer book by a candidate has virtually amended the Rules by substituting 48% in the place of 50% which is required to be secured in each written paper and 58% in the place of 60% which is required to be secured in the aggregate in the case of candidates not belonging to Scheduled Caste/Tribes and 38% in the place of 40% in each written paper and 48% in the place of 50% in the aggregate in the case of candidate belonging to Scheduled Castes/Tribes.
The adverse effect of the moderation on the candidates who had secured the required qualifying marks at the examination in question is quite obvious, since four candidates whose names were not in the list of 27 candidates published on the first occasion have been included in the first list of candidates chosen for appointment from out of the final list of successful candidates in preference to some of the candidates who had obtained the qualifying marks in the written papers and they would have been appointed as Sub Judges but for the interim order made by this Court.
These four candidates were able to get in to the list of persons to be appointed as Sub Judges because of the high marks they were able to secure at the viva voce test for which they were not eligible but for the moderation marks.
The area of competition which the 27 candidates who had been declared as candidates eligible to appear at the viva voce examination before such moderation had to face became enlarged as they had to complete also against those who had not been so qualified according to the Rules.
The candidates who appear at the examination under the Delhi Judicial Service Rules acquire a right immediately after their names are included in the list prepared under rule 16 of the Rules which limits the scope of competition and that right cannot be defeated by 382 enlarging the said list by inclusion of certain other candidates who were otherwise ineligible, by adding extra marks by way of moderation.
In a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the viva voce test should be the basis for selection.
On reading rule 16 of the Rules which merely lays down that after the written test the High Court shall arrange the names in order of merit and these names shall be sent to the Selection Committee, we are of the view that the High Court has no power to include the names of candidates who had not initially secured the minimum qualifying marks by resorting to the devise of moderation, particularly when there was no complaint either about the question papers or about the mode of valuation.
Exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial.
It may also result in the violation of the principle of equality and may lead to arbitrariness.
The cases pointed out by the High Court are no doubt hard cases, but hard cases cannot be allowed to make bad law.
In the circumstances, we lean in favour of a strict construction of the Rules and hold that the High Court had no such power under the Rules.
We are of the opinion that the list prepared by the High Court after adding the moderation marks is liable to be struck down.
The first contention urged on behalf of the petitioner has, therefore, to be upheld.
We, however, make it clear that the error committed by the High Court in this case following its past practice is a bona fide one and is not prompted by any sinister consideration.
With regard to the second contention, namely, that the High Court had no power to eliminate the names of candidates who had secured less than 600 marks in the aggregate after the viva voce test, reference has to be made to Rules 17 and 18 of the Rules which provide that the Selection Committee shall call for viva voce test only such candidates who are qualified at the written test as provided in the Appendix and that the Selection Committee shall prepare the list of candidates in order of merit after the viva voce test.
There is no power reserved under rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list.
It is stated in paragraph 7 of the counter affidavit filed in Writ Petition No. 4363 of 1985 that the Selection Committee has inherent power to select candidates who according to it are suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service.
383 It is not necessary to consider in this case whether any other reason such as character, antecedents, physical fitness which may disqualify a candidate from being appointed to the Delhi Judicial Service may be taken into consideration by the Selection Committee while preparing the final list.
But on going through the Rules, we are of the view that no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because clause (6) of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial Service.
The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause (6) of the Appendix.
The question whether a candidate included in the final list prepared and forwarded by the Selection Committee may be appointed or not is a matter to be considered by the appointing authority.
In the instant case the decision that a candidate should have secured a minimum of 600 marks in the aggregate in order to be included in the final select list is not even taken by the High Court but by the Selection Committee.
Moreover recruitment of persons other than District Judges to the Judicial Service is required to be made under Article 234 of the Constitution in accordance with the Rules made by the Governor as provided therein, in consultation with the High Court.
Article 235 which vests in the High Court the control over the District Courts and Courts subordinate thereto, cannot include the power of making rules with regard to recruitment of person other than District Judges to the judicial service as it has been expressly dealt with in Article 234 of the Constitution.
We are of the view that the Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix.
We are, therefore, of the view that the exclusion of the names of certain candidates, who had not secured 600 marks in the aggregate including marks obtained at the viva voce test from the list prepared under rule 18 of the Rules is not legal.
We, therefore, quash the list prepared by the Selection Committee and direct that a fresh list shall be prepared in order of merit on the basis of the aggregate of the marks obtained by the candidates at the written examination and at the viva voce test without taking into consideration the moderation marks added by the High Court and without reference to the decision of the Selection Committee that candidates who had obtained less than 600 marks in 384 the aggregate should not be included in that list.
It follows that the said list should contain only the names of the 27 candidates who had secured the minimum marks prescribed by the Appendix to the Rules for appearing at the viva voce test.
The appointing authorities directed to treat the final list so prepared as the list forwarded to it under rule 18 of the Rules.
On the basis of the said list appointments will now have to be made in accordance with law and relevant Government orders providing for reservation of posts to candidates belonging to Scheduled Castes/ Scheduled Tribes and other backward classes.
If in accordance with the interim order made by this Court any candidate has been appointed as a member of the Delhi Judicial Service his continuance in the service or his seniority shall be governed by the list to be prepared in accordance with the directions issued above.
These petitions are accordingly allowed.
There shall be no order as to costs.
N.V.K. Petitions allowed.

dataset_name: IN-Abs

summary:
Recruitment to the Delhi Judicial Services was governed by the Delhi Judicial Service Rules 1970.
Rule 13 thereof provided that after the initial recruitment, recruitments shall be made on the basis of a competitive examination to be held by the High Court.
Rule 14 prescribed the minimum qualification for a candidate to be eligible to appear at the competitive examination viz. (a) citizen of India, (b) a person practising as an advocate or qualified to be admitted as an advocate; and (c) not more than 32 years of age.
Rule 15 provided that the syllabus for the examination and the fee payable shall be as detailed in the Appendix to the Rules.
The examination was to consist of five written papers and a viva voce test.
Clause (b) of the Appendix dealt with viva voce, and provided that: "Only such candidates will be called for viva voce who have obtained 50% in each written paper and 60% in the aggregate except in the case of candidates belonging to the Scheduled Castes/Tribes in whose case the qualifying marks will be 40% in each written paper and 50% in the aggregate '.
The marks obtained in the viva voce was to be added to the marks obtained in the written papers and the candidates, rank depended on the aggregate of both.
Rule 16 provided that after the written test the High Court was to arrange the names of candidates in order of merit and the names to be sent to the Selection Committee.
Rules 17 and 18 provided that the Selection Committee shall call for the viva voce test only such 368 candidates who qualified in the written test, and after the viva voce test the Selection Committee was to prepare a list of candidates in order of merit and to forward the same to the Administrator.
The Registrar of the Delhi High Court through a notification called for application from eligible persons for filing the posts in the Delhi Judicial Service.
A large number of candidates who were eligible applied in response thereto.
The examination in the written papers were held and after the answer books were valued, the names of 27 candidates who were eligible for the viva voce test under the Rules were published on the Notice Board.
Theses candidates were admitted to the viva voce test by the Selection Committee.
Before the final list of the candidates was published by the Selection Committee as required by Rule 18, the petitioners in the Writ Petition came to know that the names of certain candidates whose names had not been included in the above list of 27 qualified candidates were included in the final list by the Selection Committee and that the names of certain candidates who had been interviewed by the Selection Committee had been omitted from the said final list.
The petitioners in that writ petition question the validity of the procedure adopted by the High Court and the Selection Committee in the preparation of the final list of successful candidates and contended that it was not open to the High Court to include in the list prepared under Rule 16 names of the candidates who had not secured the minimum marks prescribed for eligibility to appear in the viva voce test and that it was not open to the Selection Committee or the High Court to omit the names of certain candidates who had appeared at the viva voce test from the final list.
The writ petitions were contested and opposed by the High Court, by contending that the petitioners had no right to maintain the writ petitions and that the High Court had treated all candidates equally.
It was further contended that the results of the written examination were placed before the Full court for approval, and that the Full Court approved the initial list of 27 candidates who qualified at the written test.
However, as a few candidates who had secured very high marks were kept out of the zone of consideration for final selection by reason of having secured one or two marks below the aggregate marks prescribed, moderation of two marks in each paper to every candidate was done, and on the basis of this moderation and as a result of 369 revaluation of one answer book of one candidate, a second list was prepared showing the names of 8 candidates who also qualified for the viva voce test.
On the question: (1) whether the High Court had the power to add two marks to the marks obtaining in each paper by way of moderation, and (2) whether the High Court had power to eliminate the names of the candidates who have secured less than the 60% marks in the aggregate after the viva voce test.
Allowing the writ petitions, ^ HELD: 1.(a) The list prepared by the High Court after adding the moderation marks is liable to be struck down.
[382 D] (b) Rule 16 of the Rules merely laid down that after the written examination the High Court shall arrange the names in order of merit of candidates who had obtained the qualifying marks and these names shall be sent to the Selection Committee.
The High Court had therefore no power to include the names of candidates who had not initially secured the minimum qualifying marks in the written papers by resorting to the devise of moderation, particularly when there was no complaint either about the question papers or about the mode of valuation.
Exercise of such power of moderation is likely to create a feeling of distrust in the process of public appointments which is intended to be fair and impartial.
It may also result in the violation of the principle of equality and may lead to arbitrariness.
[382 B C] (c) The mandatory character of clause (6) in the Appendix to the Rules provides that only such candidates will be called for viva voce who have obtained 50% marks in the written paper and 60% in the aggregate except in the case of candidates belonging to the Scheduled Castes/Tribes in whose case the qualifying marks will be 40% in each written paper and 50% in the aggregate.
Addition of any was by way of moderation to the marks obtained in any written paper or to the aggregate of the marks, in order to make a candidate eligible to appear in the viva voce test would indirectly amount to an amendment of clause (6) of the Appendix.
[381 B C] 2.(a) There is no power reserved under Rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list.
[382 G] 370 (b) No fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination, because clause (6) of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become member of the Judicial Service.
The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause (6) of the Appendix.
[383 B C] In the instant case, the decision that a candidate should have secured minimum of 600 marks in order to be included in the final select list is not even taken by the High Court but by the Selection Committee.
[383 D] (c) The exclusion of the names of certain candidates who have not secured 600 marks in the aggregate from the list prepared under Rules 18 of the Rules is not legal.
The list is quashed and it is directed that a fresh list shall be prepared in order of merit on the basis of the aggregate of the marks obtained by the candidates at the written examination and at the viva voce test without taking into consideration the moderation marks added by the High Court, and without reference to the decision of the Selection Committee that candidates who had obtained less than 600 marks in the aggregate should not be included in that list.
The appointing authority is directed to treat the final list so preared as the list forwarded to it under Rule 18 of the Rules.
[382 F 383B]