judgement:
ivil Appeal No 3177 of 1982.
From the Judgment and Order dated 24 ' 81 of the Orissa High Court in Original Jurisdiction Case No. 233 of 1977.
N K Das and A P Mohanty for the Appellant G L. Sanghi R K Mehta, Ms. Mona Mehta and J R Das for the Respondents The Judgment of the Court was delivered by SHARMA, J.
The question which arises in this appeal by special leave from the decision of the Orissa High Court in a writ case is whether the "estate" of Lord Jagannath has PG NO 734 vested in the State of Orissa as a result of the notification dated 18.3.1974 issued under section 3 A of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as the Act) or the said notification is ultra vires and fit to be quashed.
The writ petition in the High Court was filed by a number of persons claiming to be Sevaks and worshippers of Lord Jagannath, the presiding deity of the famous Jagannath temple.
The management of the temple and the properties including the intermediary interest is in the hands of a trust which was impleaded as a respondent in the case.
Besides, the State of Orissa and Collector, Puri, the Administrator, Jagannath temple, the Jagannath Committee were also made parties.
They, however, do not support the writ petitioners and agree with the State that the "estate" has vested under the impugned notification.
The Act was passed in 1952 for the purpose of abolishing all the rights in land of intermediaries between the raiyats and the State of Orissa by whatever name known and for vesting the same in the State.
Section 3 authorises the State Government to declare by a notification any estate specified therein to have passed to and become vested in the State.
The result of such a notification is dealt with in section 5.
In substance the intermediary concerned is divested of the notified interests and becomes entitled to compensation to be computed in the manner indicated in the Act.
By an amendment section 3 A was included in the Act permitting the State Government to issue a single notification in respect of a class or classes of intermediaries in the whole or a part of the State.
By a further amendment in 1963 Chapter II A was inserted in the Act, making special provisions for public trusts.
Clause (e) of section 13 A described "trust estate" as an estate the whole of the net income whereof is dedicated exclusively to charitable or religious purposes.
Admittedly the estate belonging to Lord Jagannath is included in the expression "trust estate".
Provisions were made in Chapter II A for entertaining claims and determining nature of the estates claimed to be trust estates and announcing the decision by notification.
The effect of such a determination was, as mentioned in section 13 I(1) to save the estate from vesting under a notification issued under s 3 or 3 A. 4.
A notification under section 3 of the Act was issued in respect to the estate of Lord Jagannath on 27.4.1963 and on the same date another notification under Chapter II A followed declaring the estate as trust estate.
Consequently the deity was not divested of the estate.
In 1970 Chapter PG NO 735 II A was repealed.
In 1974 the Act was further amended and "trust estate" which was not included in the definition section of the original Act was defined in clause (oo) in the following terms (excluding the Explanation which is not relevant for the present case): 0"(oo) 'trust estate ' means an estate the whole of the net income whereof under any trust or other legal obligation has been dedicated exclusively to charitable or religious purposes of a public nature without any reservation of pecuniary benefit to any individual: Provided that all estates belonging to the Temple of Lord Jagannath at Puri within the meaning of the Shri Jagannath Temple Act, 1955 and all estates declared to the trust estates by a competent authority under this Act prior to the date of coming into force of the Orissa Estates Abolition (Amendment) Act, 1970, shall be deemed to be trust estates.
On 18.3.1974 the impugned notification under section 3 A, as quoted below, was issued: "The 18th March 1974 S.R.O. No. 184/74 In exercise of the powers conferred by sub section (1) of section 3 A of the Orissa Estates Abolition Act, 195 l (Orissa Act I of 1952), the State Government do hereby declare that (i) the intermediary interests of all intermediaries whose estates have been declared as trust estates under Chapter Il A of the said Act; (ii) those in respect of which claims and references made under the said chapter were pending on the date of commencement of the Orissa Estates Abolition (Amendment Act, 1970 (Orissa Act 33 of 1970); and (iii) the intermediary interests of all intermediaries in respect of all estates other than those which have already vested in the State have passed to and become vested in the State free from all encumbrances.
PG NO 736 (No. 13699 EA I ND 1/74 R) By order of the Governor S.M. Patnaik Commissioner cum Secretary to Government.
" In this background the writ application was filed in the High Court challenging the notification.
The High Court rejected the claim of the petitioner and dismissed the writ application by the impugned judgment.
The learned counsel for the petitioner has contended that as a result of the decision under Chapter II A declaring Lord Jagannath 's estate a "trust estate" the same must be deemed to have been excluded from the scope of the Act, and this result in the eye of law became final and cotinued to remain effective even after the repeal of Chapter II A Reliance was placed on Section 5 of the Orissa General Clauses Act and it was argued that the right which the petitioner acquired under Section 13 1 as a result of the decision cannot disappear on the repeal of this Chapter The learned counsel proceeded to urge that as a result of the said decision the estate in question went completely out of the ambit of the Act and for this reason when in 1974 the Act was further amended it was considered necessary to define "trust estate" in Section 2 of the Act and to expressly include Lord Jagannath 's estate within the expression with a view to set at rest any controversy in this regard.
According to the learned counsel the intention of the legislature is clearly to permanently spare the petitioner 's estate from the of the Act In our view the argument has no merit and must be rejected.
It is true that an order was passed under s 13 G declaring the petitioner 's estate as a trust estate" and further by the insertion of clause (oo) in s 2 the petitioner 's estate continued to be a 'trust estate", but the question is as to what is the legal effect flowing from such a declaration This aspect is dealt within s 13 I, which is quoted as under (omitting sub section (2) which is not relevant in the present context): "13 1.
Effect of orders passed under section 13 G: (I) All estates declared under this Chapter to be trust estates by the Tribunal or the High Court, as the case may be, shall he deemed to have been excluded from the operation of the vesting notification and never to have vested in the State in pursuance thereof." (emphasis added) PG NO 737 It is manifest from the language of the Section that it saves a ' 'trust estate" so declared under section 13 G from the operation of a notification issued under section 3 or 3 A, but does not extend the benefit any further The provisions do not confer protection from the Act itself and cannot be interpreted to clothe it with a permanent immunity from being vested by a later notification issued under the Act Such an estate could be vested in the State of Orissa by a subsequent notification was made clear by clause (b) of s 13 K which reads as follows: "(a) .
(b) 'nothing in this Chapter shall be deemed to debar the State Government from vesting any trust estate by the issue of a notification under Section 3." Sections 7 A, 8 A, 8 D and X E of the Act include special provisions for a trust estate and unmistakably indicate that trust estates" are within the purview of the Act The benefit they receive from a declaration under section 13 G is limited and referable only to a vesting notification issued earlier.
There is thus, no merit in the argument of the learned counsel for the appellant that the petitioner 's estate could not be vested in the State by a notification issued subsequently 7.
We accordingly hold that there is no infirmity in the notification dated 18.3.1974 issued under section 3 A of the Act The appeal fails and is dismissed but in the circumstances without costs.

summary:
Orissa Estates Abolition Act, 1951 was enacted to abolish all the rights in the land of intermediaries between the raiyats and the State of Orissa by whatever name known and for vesting the same in the State.
Section 3 authorises the State Government to declare by a notification any estate specified therein to have passed to and become vested in the same State, i.e., the intermediary concerned is divested of the notified interests and becomes entitled to compensation.
By an amendment section 3 A was included in the Act permitting the State Government to issue a single notification in respect of a class or classes of intermediaries in the whole or a part of the State.
By a further amendment in 1963 Chapter Il A was inserted in the Act making special provisions for public trusts.
Clause (e) of s.13 A described "trust estate".
provisions were made in Chapter II A for entertaining claims and determining the nature of the estates claimed to be trust estates and announcing the decision by notification.
The effect of such a determination was.
as mentioned in section 13 , to save the estate from vesting under a notification issued under section 3 or 3 A. A notification under section 3 of the Act was issued in respect of the estate of Lord Jagannath on 27 4 1963, and on the same date another notification under section 13 C., Chapter lI A followed declaring the estate as "trust estate".
The consequence was the diety was not divested of the estate.
In 1970 Chapter Il A was repealed.
By insertion of clause (oo) in section 2 in 1974 the said estate continued to be "trust estate." On 18.3.1974 a notification under section 3 A was issued declaring the estate of the diety to have vested in the State.
A writ petition was filed in the High Court challenging the validity of the said notification, which was dismissed.
PG NO 732 PG NO 733 In the appeal to this Court, on behalf of the appellant it was contended that as a result of the decision under chapter Il A declaring Lord Jagannath 's estate a "trust estate" the same must be deemed to have been excluded from the scope of the Act and this decision became final and continued to remain effective even after the repeal ot ' Chapter II A.
The right which was acquired under section 13 I cannot disappear on the repeal of Chapter Il A as the estate in question went completely out of the ambit of the Act.
The intention of the Legislature to include Lord Jagannath 's estate within the expression "trust estate" in cl.
(oo) in section 2 by the Amending Act 1974 was clearly to spare the said estate permanently from the mischief of the Act.
Dismissing the appeal, this Court, HELD: l.
There is no infirmity in the notification dated 18.3.1974 issue under.
3 A of the Act.[737El 2.
It is manifest from the language of section 13 l that it saves a "trust estate" so declared under section 13 G from the operation of a notification issued under section 3 or 3 A, but does not extend the benefit any further.
The provisions do not confer protection from the Act itself and cannot be interpreted to clothe it with a permanent immunity from being vested by a later notification issued under the Act.
[737A BI 3.
Sections 7 A, X A, 8 D and 8 E of the Act include special provisions for a trust estate and unmistakably indicate that "trust estates" are within the purview of the Act.
The benefit they receive from a declaration under section 13 (. is limited and referable only to a vesting notification issued earlier.
[737Dl


judgement:
ivil Appeal No. 2977 of 1984.
From the Judgment and Order dated 18.2.1982 of the Calcutta High Court in S.A.T. No. 87 of 1981.
D.K. Sen, Dr. Meera Agarwal and R.C. Mishra for the Appel . lants.
A.K. Sen, S.K. Banerjee and P.K. Mukerjee for the Re spondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This defendants ' appeal by special leave is from the judgment and order of the High Court of Calcutta dated 18th February, 1982 in S.A.T. No. 87 of 1981 summarily dismissing the Second Appeal against the appellate order in T.A. No. 381 of 1980 which affirmed the judgment and decree in title suit No. 56 of 1966.
The instant second respondent Narendra Nath Mukherjee leased out the land measuring 6 cottas 5 chittaks 30 sq.
at 512/A Russa Road, now known as 34/A Shyama Prasad Mukher jee Road, Calcutta, by a registered lease deed dated 26th September, 1946, hereinafter referred to as 'the lease ', at the first instance for a period of 10 years from 1st April, 1946 but if the lessee did not fail to pay the rent to the lessor and rates and taxes to the municipality during .that period, the lease would be extended for a further period of 5 years i.e. upto 31st March, 1961 at the rent of Rs.250 in place of Rs.200 per month; and if he continued to do like wise, it would be extended for a further period of 5 years, that is, upto 31st March, 1966, at a monthly rent of Rs.300 in place of Rs.250; and if he continued to do likewise, during the period of 20 years, he would be entitled to obtain extension for a further maximum period of one year at a rent of Rs.500 per month in place of Rs.300 per month.
405 The instant appellants are stated to have exercised their option of extension at the expiry of 10 years for a period of 5 years i.e. from 1st April, 1956 to 31st March, 1961 on increased rental of Rs.250 per month and then for the second term of 5 years from 1st April, 1961 to 31st March, 1966 at the increased rental of Rs.300 per month.
During the lease, on 31st March, 1959 the instant second respondent by a registered instrument transferred the land to the first respondent who thereby became the landlord.
Alleging that the instant appellants failed to exercise the option of extension for one year at an enhanced rent of Rs. 500 and also failed to give peaceful and vacant possession of the land to him, the instant first respondent as plain tiff instituted title suit No. 56 of 1966 for ejectment khas, possession and mesne profits.
The instant appellants as defendants contested the suit by filing a joint written statement stating, inter alia, that they did not exercise option of renewal after the expiry of the original term of 10 years as they became thika tenants from 28th February, 1949 i.e. on the date of commencement of the Calcutta Thika Tenancy Act, 1949 as admitted by the plaintiff 's predecessor in interest, the instant second respondent, in Miscellaneous Execution case No. 126 of 1953 (Thika) before the Controller under the Calcutta Thika Tenancy Act, 1949, hereinafter referred to as 'the Act ', and by both the respondents in Misc.
Judicial Case No. 74 of 1958 (Thika) before the said Controller.
It was also stated that they (appellants) always paid rent at the rate of Rs.200 per month and never any enhanced rent; and that the first respondent 's claim for the differential rent was also rejected in the first respond ent 's suit No. T.S. 80 of 1965 and the appeal therefrom was also rejected and ultimately the special leave petition (Civil No. 1363/ 80) was also dismissed by the Supreme Court on 10th March, 1980.
T.S. No. 56 of 1966 was decreed by the Trial Court wherefrom the appeal, being T.A. No. 381 of 1980 was also dismissed.
The Additional District Judge while dismissing T.A. 381/80 relied on the decision of the Calcutta High Court, since reported in , holding that as the lease was for a period of 20 years and not for a period of 12 years sub section (5)(b) of Section 2 of the Act had no application; and that the respondents were not barred by waiver, estoppel, res judicata or principles analogous thereto because of the Misc.
case No. 74 of 1958 filed by the second respondent under Section 5 of the Act as there could be no question of giving a status under the Act when in the facts of the case such a status was not available.
The Second Appeal being S.A.T. 87 of 1981 having also been summarily dismissed by the High Court by the impugned order, the appellants have preferred this Appeal by special leave.
406 Mr. D.K. Sen, the learned counsel for the appellants submits, inter alia, that there could be no controversy about the appellants ' status of thika tenants in view of the fact that the lease was at the first instance for 10 years only and its first and subsequent extensions were contingent on the appellants ' regular payment of rents, rates and taxes and enhancement of rent; that contingency did not happen as they did not pay any enhanced rent, but simply were holding over; that the second respondent who is the predecessor in interest of the first respondent, admitted the Thika Tenants status of the appellants in the earlier proceedings before the Controller and were therefore estopped from questioning that status; and that the learned Courts below erred in ignoring these vital pieces of evidence.
Mr. Shankar Ghosh the learned counsel for the respond ents refuting submits that the lease having clearly been for a period of 20 years, the appellants have rightly been held not to be thika tenants under the Act; and that there could be no estoppel against a statute.
Two questions are, therefore, to be decided in this appeal, namely, whether the instant appellants acquired the status of thika tenants in respect of the lease; and whether there was estoppel, waiver, acquiesance or res judicata on the part of the respondents as in earlier proceedings they treated the appellants as thika tenants before the Control ler.
The Act was passed in 1949 to make better provisions relating to the law of landlord and tenant in respect of thika tenancies in Calcutta.
It came into force on the day on which the Calcutta Thika Tenancy Ordinance, 1948 ceased to operate.
Section 2(5) in Chapter I defined "thika tenant" as follows: "(5) "thika tenant" means any person who holds, whether under a written lease or other wise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person (a) who holds such land under that another person in perpetuity; or 407 (b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or (c) who holds such land under that another person and uses or occupies such land as a khattal." This new clause (5) was substituted by West Bengal Act 6 of 1953.
The crucial words to be noted in clause (b) are that "the dura tion of the lease is expressly stated to be for a period of not less than twelve years.
" In other words, if the stated period is of less than 12 years the lessee will be a thika tenant and not otherwise.
The important fea ture of the provision contained in section 5(1) of the Act is that the application for ejectment of the thika tenant has to be made to the Controller.
We have, therefore, to ascertain the duration of the lease.
Admittedly clauses 9, 11, 12 and 13 of the lease read as follows: "(9).
If the second party lessee keeps the rent for two months in after at a time or if contravenes or commits any breach in respect of any provision of this deed or does not comply with his duties within 7 days in spite of service of warning notice or does not refrain from doing improper act, or if he is declared insolvent then in spite of the tenure of this lease having not expired, this lease, that is the tenancy of the second party Lessee will be cancelled or extinguished and the first party Lessor will be entitled to take khas possession of the said property.
No plea or objection of the second party Lessee will be entertained.
The tenure of this lease will be for a period of ten years firstly from the 1st April, 1946 A.D.
But if the second party Lessee, performs acts regularly according to provisions within this stipulated period and pays fixed rent to the first party Lessor regularly and pays rates and taxes to the Municipality and does not default in doing his duties, then the period will be extended under all the aforesaid terms for a further period of five years, i.e. upto the 31st March, 196 1, by fixing the monthly rent of Rs. 250 two hundred fifty rupees in place of Rs.200 two hundred rupees and the second party Lessee shall be bound absolutely by the aforesaid provisions in paragraphs 1 to 10 during the said enhanced period and all the said terms will remain in force, 408 only the rent of Rs.250 two hundred fifty in place of Rs.200 two hundred will be fixed.
If the second party Lessee performs his acts regularly according to the aforesaid terms within last five years and is abide by the rules and pays the fixed monthly rent of Rs.250 two hundred fifty rupees to the first party Lessor month by month and pays the rates and tax to the Municipality then on the expiry of the said tenure of five years, the tenure of this lease will be enhanced for a further period of five years, i.e. upto 31st March, 1966 having fixed the monthly rent of Rs.300 three hundred rupees in place of Rs.250 two hundred fifty rupees under all the aforesaid terms in paragraphs 1 to 10 and the second party Lessee shall fully remain bound abso lutely by all the aforesaid terms and all the said rules shall fully remain in force, only the monthly rent of Rs.300 three hundred in place of Rs.250 two hundred fifty will be fixed.
If the lease is not determined for acting contrary to any provisions within the tenure of the aforesaid term, then on the expiry of the said term as mentioned in this deed, i.e. on the 1st April, 1966 A.D. the second party Lessee on paying the entire receivable amount in respect of the Demised premises to the first party Lessor, will give khas possession of the said land by treating the houses etc.
constructed on the Demised land, i.e. the houses etc.
constructed on the land by him, i.e. the second party Lessee by treating the same to be a portion of the Demised land shall vacate the said houses and said land.
But if the second party Lessee, within the aforesaid 20 years, performs acts according to all the aforesaid provisions duly and regularly and abide by all the same duly and regularly pays the fixed rent and rates and taxes at the proper place then the second party Lessee if so desire, will be entitled to get the same for a further extended period of maximum one year from 1st April, 1966 A.D. by serving written Notice at least one month prior to the expiry of the aforesaid tenure of 20 years by fixing monthly rent of Rs.500 five hundred rupees in place of.
Rs.300 three hundred under all the provisions of the aforesaid paragraph No. 1 to 10 and the first party Lessor shall be bound to grant the said extended period and if the second party Lessee, accepts such extended period, 409 shall pay the entire dues of the first party Lessor within the last mentioned extended period upto the expiry of the said last ex tended period and upon that, by demolishing the houses etc.
constructed on the Demised land will remove and replace the same.
The first party Lessor shall not have any objec tion to the same nor the same shall be tena ble and shall give khas possession on the Demised Land to the first party Lessor, and in that event the first party Lessor shall be bound to give up his claim and contention on the houses etc.
of the said second party Lessee and shall only take possession of the demised land that is, in such circumstances the houses etc.
constructed by the second party Lessee to be a portion of the demised land.
But if for any reason the second party Lessee, within the extended stipulated period does not give khas possession to the first party Lessor on the Demised land according to the aforesaid manner, or if he neglects to do so or is unable then the first party Lessor shall not be bound to give up his claim in respect of the houses etc.
constructed by the said second party Lessee.
Moreover, by treat ing the houses etc.
constructed on the demised land to be a portion of the said land, shall be entitled to take khas possession of the said Demised land and besides the same, the first party Lessor shall also be entitled to get any other remedy or damage or compensation according to law." 'Ex praecedentibus et consequentibus optima fit inter pretatio. ' The best interpretation is made from the context.
Every contract is to be construed with reference to its object and the whole of its terms.
The whole context must be considered to ascertain the intention of the parties.
It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected 'ex antecedentibus et consequentibus; ' every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible.
As Lord Davey said in N.E. Railway vs Hastings, (267), "The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so inter preted as to bring them into harmony with the other provi sions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible." In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly.
If the words are clear, there is 410 very little the Court can do about it.
In the construction of a written instrument ' it is legitimate in order to ascer tain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circum stances surrounding their creation and the subject matter to which it was designed and intended they should apply. "The habendum in the lease states:. "Upon the prayer of the second party Lessee to take the said land in arrangement and settlement for a stipulated period for starting factories, Lathe works, manufacturing and repairing of Motor Car parts, manufacturing and repairing Electric Fans and various manufacturing busi ness, constructing pucca buildings on the said land or in portion thereof or subletting houses etc.
and for constructing shop rooms etc.
under the following terms and provisions, to which he agreed and upon giving possession of the said land to the second party Lessee, the second party Lessee hereby admit and promise that," Particulars and four boundaries of the property in Schedule Ka are given as: "In the District of 24 Parganas, within the Police Station Bhowanipore, in Mouza Bhowani pore Village, within the jurisdiction of the Sub Registry Alipore, in Government Khas Mahal, in Division 6, Sub Division "E" (E) relating to Dihi 55 gram, in holding No. 224 within the surplus land of scheme No. 4 of the Calcutta Improvement Trust, a portion of the plot No. 62 of the said scheme, the rent free land measuring more or less 0 6 5 30 six kathas, five chittaks, thirty square feet together with foundation of the wall together with all fittings and fixtures and easement and other rights etc.
with all rights and entire right is the property whose current Municipal premises No. 5/2A, Russa Road and the second party Lessee have taken the said property on lease for a stipulated period of twenty years".
(underlined by us) In clause 9 of the lease it would be seen how and when the rent is to be paid and when the lease would be liable to be cancelled have been stated.
Clause 11 stipulates that at the first instance the period of lease was made 10 years and in case the Lessee acted in accordance with what was expect ed of him under clause 9, the period of the lease 411 would be extended for a further period of 5 years upto 31st March, 1961 at enhanced rent of Rs.250 per month, and if the Lessee continued to act in accordance with what was expected of him under clause 9 during this period of 5 years the period of the lease would be extended for a further period of 5 years, that is, upto 31st March, 1966 at a monthly rent of Rs.300 and in case the Lessee continued to act during this period as expected of him under clause 9 till the end of the period of 20 years he would be entitled by serving a notice to obtain an extension for a further maximum period of one year at enhanced rent of Rs.500 per month.
It is pertinent to note that the word used is 'exten sion ' and not 'renewal '.
To extend means to enlarge, expand, lengthen, prolong to carry out further than its original limit.
Extension, according to Black 's La Dictionary, means enlargement of the main body; addition of something smaller than that to which it is attached; to lengthen or prolong.
Thus extension ordinarily implies the continued existence of something to be extended.
The distinction between 'exten sion ' and 'renewal ' is chiefly that in the case of renewal, a new lease is required, while in the case of extension the same lease continues in force during additional period by the performance of the stipulated act.
In other words, the word 'extension ' when used in its proper and usual sense in connection with a lease means a prolongation of the lease.
Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole.
The purposes of the lease were not expected to last for only 10 years and as Mr. A.K. Sen rightly pointed out the Schedule specifically mentioned the lease as "for a stipulated period of twenty years.
" As these words are very clear, there is very little for the Court to do about it.
The learned counsel for the appellants in support of his contention that the appellants were thika tenants refers us to ; = ; ; = ; ; ; 69C.W.N. 842; ; = ; In Kanai Lal vs Paramnidhi, ; , the status of the appellants as thika tenant was not in question.
The question therein was whether under Section 5(1) of the Act as amended by the Amending Act of 1953 execution proceedings taken out by the decree holder against the appellant could be entertained only by the Controller and not by the civil Courts.
This Court held that Section 5(1) did not apply to a case where the landlord had already obtained a decree for ejectment against his thika tenant and consequently the civil Court had 412 jurisdiction to entertain the application.
It was noted that until 1948 the rights and liabilities of the landlords and their thika tenants were governed by the provisions of the Transfer of Property Act.
On October 26, 1948, the Calcutta Thika Tenancy Ordinance XI of 1948 was promulgated because it was thought expedient, pending the enactment of appropri ate legislation to provide for the temporary stay of the execution of certain decrees and orders of ejectment of thika tenants in Calcutta.
The object of the Ordinance was to give protection to the thika tenants in Calcutta and to afford them interim relief by staying execution of certain decrees and orders as mentioned in Section 3 until an appro priate Act was passed by the Legislature in that behalf.
The facts of the instant case are entirely different inasmuch as the lease was dated 26th September, 1946 and no question of eviction by executing any decree arose until the Act was passed.
The only point to be noted is that the tenancy under the lease on the relevant date of creation was governed by the Transfer of Property Act.
In Mahadeolal Kanodia vs Administrator General of West Bengal, ; = ; , the question for decision was whether the appellant against whom proceedings for execution of a decree for ejectment was pending, who had applied for relief under Section 28 and when that section was in force, was entitled to have his application disposed of in accordance with the provisions of Section 28, which had ceased to exist retrospectively though it remained undisposed on the date the Amendment Act, 1953 which omitted Section 28 of the Act, came into force.
This case is there fore of no assistance to the appellants.
In Annapuma vs Tincowrie Dutt, ; , it was held on the facts of the case that what was let out was land with structures and it could never come under the operation of the Act inasmuch as the property in suit had a history of 24 years under the registered lease before that claim to become a thika tenant would arise under the Act.
It was also held that where there was a covenant for renewal in a lease and the option did not state the terms of the renewal, the new lease, if created would be for the same period and on the same terms as the original lease in respect of all the essential conditions thereof except as to the covenant for renewal itself.
This case therefore is hardly relevant.
In Shaffiuddin & Ors.
vs G.C. Banerjee, , it was 413 held that the status already acquired by the tenants in Tollygunje under the West Bengal Non Agricultural Tenancy Act, 1949, could not be prejudiced and affected by the Act and the landlords were therefore not entitled to any order of ejectment under the Act.
This case has, therefore, no bearing.
In Sheikh Gufan vs
S.K. Ganguli; , , the question was whether Section 30(c) of the Act was applicable to land in respect of which betterment fee was levied.
It is therefore not relevant for us.
We do not find any reason in the above decisions to enable us to hold that the lease in the instant case was for a period of less than 12 years and not for a period of not less than 12 years.
The High Court correctly held the lease to be for the less than 12 years.
The next question is that of waiver, estoppel and res judicata.
The appellants urged that there were two previous proceedings namely Misc.
Execution case No. 126 of 1953 (Thika) and Misc.
Judicial case No. 74 of 1958 (Thika) under the Act before the Controller.
Except the implication that the proceedings having been before the Controller the re spondents treated the appellants a thika tenants, no partic ular order finally conferring that status has been shown to us.
By the order of this Court dated 10th March, 1980 in Special Leave Petition (Civil) 1363 of 1980 which was from the judgment and order dated 16.9.1979 of the High Court of Calcutta in F .A. No. 458 of 1978 the petition was dismissed "without going into the question whether the Thika Tenancy Act was applicable or not.
" Misc.
(J) case No. 74 of 1958 wherein the first respondent prayed for being added as petitioner No. 2 ended in a compromise.
No status could, however, be said to have been determined.
The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right.
It means the forsaking the assertion of a right at the proper opportunity.
The first respondent filed suit at the proper opportunity after the land was trans ferred to him, and no covenant to treat the appellants as Thika tenants could be shown to have run with the land.
Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial.
The necessary condition is the detriment of the other party by the conduct of the one estopped.
An estoppel may result though the party estopped did not intend to lose any exist ing right.
Thus voluntary 414 choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquish ment and the conferment of the right in question.
Nothing of the kind could be proved in this case to estopp the first respondent.
In Shanti Devi vs A.K. Banerjee, , it was held that parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom.
The Court would only look into the terms of the lease irrespective of the averments in the pleadings.
In the instant case as we have already held the lease to have been for twenty years, its character could not have been changed by the pleadings, if any, in the above cases.
Nor could the respondents be held to have waived their rights under the lease.
We do not find any infirmity in the impugned High Court order on this count also.
In the result, this appeal fails and is dismissed, but without any order as to costs.
Stay order, if any, stands vacated.
R.S.S. Appeal dis missed.

dataset_name: IN-Abs

summary:
The second respondent, who is the predecessor in inter est of the first respondent, had on.
26th September, 1946 leased out the land in dispute to the appellant at the first instance for a period Of 10 years.
The lease however provid ed to the lessee/appellants option of extension at enhanced rent, twice for successive periods of 5 years, and a third option of extension for a further maximum period of one year.
The appellants are stated to have exercised their option of extension for two successive periods of five years, hot failed to exercise the option of extension for one year thereafter.
On that ground the first respondent instituted a suit for ejectment khas, possession and mesne profits.
The appellants, as defendants, contested the malt stating, inter alia, that they did not exercise the option for renewal after the expiry of the original tern of 10 years as they became thika tenants from 28th February, 1949 i.e. the date of commencement of the Calcutta Thika Tenancy Act, 1949 as admitted by the second respondent in two judi cial proceedings before the Controller under the Calcutta Thika Tenancy Act, 1949.
It was further stated that they never paid any enhanced rent; and that the first respond ent 's claim for the differential rent was rejected in the first respondent 's suit, and ultimately the special leave petition filed in the Supreme Court in that matter was also dismissed.
402 The suit for ejectment in the present suit was decreed by the Trial Court.
The Appellate Court, while dismissing the appellants appeal, held that (1) the lease was for a period of 20 years and not for a period of less than 12 years, and hence sub section 5(b) of Section 2 of the Act had no application; and (2) the respondent were not barred by waiver, estoppel, res judicata or principles analogous thereto because of the earlier judicial proceedings filed by the second respondent as there could be no question of giving a status under the Act when in the facts of the case such a status was not available.
The High Court dismissed the appellants ' second appeal.
Before this Court it was urged on behalf of the appel lants that (1) there could be no controversy about the appellants ' status of thika tenants in view of the fact that the lease was at the first instance for 10 years only and its first and subsequent extensions were contingent on the appellants regular payment of rents, rates and taxes and enhancement of rent, which contingency did not happen as they did not pay any enhanced rent, but simply were holding over; (2) the second respondent admitted the Thika Tenants status of the appellants in the earlier proceedings before the Controller and were therefore estopped from questioning that status.
On the other hand, it was urged on behalf of the re spondent that the lease having clearly been for a period of 20 years, the appellants have rightly been held not to be thika tenants under the Act; and that there could be no estoppel against a statute.
Dismissing the appeal, it was, HELD: (1) Every contract is to be construed with refer ence to its object and the whole of its terms.
The best interpretation is made from the context.
The whole context must be considered to ascertain the intention of the par ties.
It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected 'ex antecedentibus et consequen tibus '; every part of it my be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible.
[409E G] N.E. Railway vs Hastings, (267), referred to.
(2) In the construction of a written instrument, it is legitimate and in order to ascertain the true meaning of the words used and, if that be doubtful, it is legitimate to have regard to the circumstances sur 403 rounding their creation and the subject matter to which it was designed and intended they should apply, [410A B] (3) It is pertinent to note that the word used is 'exte nsion ' and not 'renewal '.
To extend means to enlarge, ex pand, lengthen, prolong, to carry out further than its original limit.
Extension ordinarily implies the continued existence of something to be extended.
The distinction between 'extension ' and 'renewal ' is chiefly that in the case of renewal, a new lease is required, while in the case of extension the same lease continues in force during addi tional period by the performance of the stipulated act.
In other words, the word 'extension ' when used in its proper and usual sense in connection with a lease means a prolonga tion of the lease.
[411C E] (4) Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole.
The purposes of the lease were not expected to last for only 10 years as the Schedule specifically men tioned the lease as "for a stipulated period of twenty years." [411E] Kanai Lal vs Paramnidhi, ; ; Mahadeolal Kanodia vs Administrator General of West Bengal, ; ; Annapuma vs Tincowrie Dutt, ; ; Shaf fiuddin & Ors.
vs G.C. Banarjee, and Sheikh Gufan vs S.K. Ganguli, ; distinguished.
(5) No particular order from the previous judicial proceedings conferring the status of thika tenants on the appellants has been shown.
The special leave petition was dismissed by the Supreme Court "without going into the question whether the Thika Tenancy Act was applicable or not.
" Hence, no status could be said to have been deter mined.
[413D F] (6) The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right.
It means forsaking the asser tion of a right at the proper opportunity.
[413F G] (7) Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surren der the right, while in estoppel such intent is immaterial.
The necessary condition is the detriment of the other party by the conduct of the one estopped.
An estoppel may result though the party estopped did not intend to lose any exist 404 ing right.
Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of a right in question.
Nothing of the kind could be proved in this case to estopp the first respondent, who had filed the suit at the proper opportunity after the land was trans ferred to him.
[413G H; 414A B] Shanti Devi vs
A.K. Banerjee, , referred to.


judgement:
vil Appeal No. 6 of 1988.
From the Judgment and Order dated 17.3.1987 of the Calcutta High Court in T.A. No. S 16 of 1986.
D.N. Diwedi, A.K. Srivastava, P. Parmeswaran and C.V. Subba Rao for the Appellants.
PG NO 756 P.P.Rao and Amlan Ghosh for the Respondents.
The Judgment of the Court was delivered by DUTT,J.
This appeal by special leave preferred by the Union of India and Others is directed against the judgment of the Central Administrative Tribunal, Calcutta Bench, Calcutta, whereby the Tribunal set aside the Award of the Board of Arbitrators and directed the appellants to accord the benefit of the scale of pay of Rs. 550 900 to the Scientific Assistants working in the Botanical Survey of Indian with effect from January 1,1973 with all consequential reliefs.
Before January l, 1973, the scale of pay of the Scientific Assistants in the Botanical Survey of India was Rs.2 10 425.
The Third Central Pay Commission, hereinafter referred to as the 'Pay Commission ', made certain recommendations with respect to the Scientific Assistants.
Clause (i) of paragraph 41 of the Report of the Pay Commission reads as follows: "41(i).
In our view, below the gazetted staff there are at least two distinguishable levels of scientific work which require graduates or post graduates.
The higher grade would require a post graduate education and call for some degree of originality and capacity for independent work.
Such scientific assistants should,in course of time, be able carry out independent investigations of the type conducted by scientific officers.
The lower grade could be adequately manned by the good science graduates.
The work at this level would be mostly standardised and conducted under the guidance of gazetted officers.
Scientific Assistants in this grade should have reasonable expectations of moving to the higher grade.
Thus a structure of two grades ,instead of a single integrated grade, would serve the purpose of paying for the jobs at rates appropriate to the responsibilities, and at the same time provide an incentive to good performance.
" The Pay Commission recommended four levels of pay for the Scientific Assistants under Table XI.
Level I and Level II under Table XI, with which we are concerned, are extracted below: PG NO 757 TABLE XI Existing Proposed Qualification for scale (Rs.) scale (Rs.) Level I 550 900 M.Sc./First Class.
(Honours) or Diploma in Engineering/Second Class B. Sc.
with 3 years experience.
Level II 425 700 Second Class B. Sc.
(Honours) or B. Sc.
with not less than 55% of marks in aggregate or Diploma in Engineers.
The respondents Nos. 1 to 8, who are working in the Office of the Botanical Survey of India as Scientific Assistants, claim that they should be given the pay scale of Level l, that is, Rs.550 900, as recommended by the Pay Commission.
The demand of the respondents was considered by a Committee constituted by the Office Council of the Joint Consultative Machinery.
The Committee, which was headed by Dr. A.S. Rao, came to the conclusion that the posts of Scientific Assistants in the Botanical Survey of India should be allocated the pay scale of Rs.550 900 in terms of the recommendation of the Third Pay Commission.
As the Government did not agree to the conclusion of the A.S. Rao Committee, the matter was referred to a Board of Arbitrators on July 17.1980.
The terms of reference to the Board of Arbitrators was as follows: "Whether the post of Scientific Assistant of the Botanical Survey of India should be allocated the revised scale of Rs.550 900 in terms of 3rd Pay Commission 's recommendations effective from l. l.1973.
" The Board of Arbitrators made the following Award: "All the Scientific Assistants who are continuing as Scientific Assistants since 1.1.1973 and who possess the prescribed qualification for Level I, i.e. M.Sc./First Class B.Sc.(Hons.)/Second Class B.Sc.
with 3 years experience PG NO 758 shall be placed in the scale of Rs.550 900 with immediate effect i.e. the date of this Award and shall be deemed to he automatically absorbed in the grade of Senior Scientific Assistants, irrespective of the fact whether there are vacancies in the grade or not.
Government is further directed to frame proper Recruitment Rules for the posts of Senior Scientific Assistant Level I and Scientific Assistant Level II at the earliest in accordance with the recommendations of the Third Pay Commission after taking into consideration the qualifications prescribed for both levels so that in future the manning of the majority of the posts in these grades is by direct recruitment and rest by promotion form the next lower level." Feeling aggrieved by the Award of the Board of Arbitrators, the respondents filed a writ petition before the Calcutta High Court which was, however, transferred to the Tribunal under the provision of section 29 of the .
The Tribunal came to the finding that the Board of Arbitrators had exceeded its jurisdiction in travelling beyond the terms of reference.
Accordingly, the Tribunal set aside the Award, allowed the writ petition and directed the appellants to accord the benefit of the scale of pay of Rs.550 900 to the Scientific Assistants working in the Botanical Survey of India in terms of the recommendation of the Pay Commission with effect from January l,1973.
Hence this appeal by special leave.
The first question that falls for consideration is whether the Board of Arbitrators had exceeded its jurisdiction in going beyond the terms of reference.
We have already extracted above the terms of reference under which the Board of Arbitrators was required to give its finding as to whether the revised scale of pay of Rs.550 900 should be allocated to the post of Scientific Assistant of the Botanical Survey India.
In other words, the Board was to consider whether the Scientific Assistants of the Botanical Survey of India were entitled to the revised scale of pay of Rs.550 900.
The terms of reference are very clear and specific.
Under the terms of reference there was no scope for prescribing two levels of scale of pay and the minimum qualifications for each level as has been done by the Pay Commission.
There was also no scope for directing the Government to frame proper Recruitment Rules for the posts PG NO 759 of Senior Scientific Assistants Level I and Scientific Assistants Level II, It is, therefore apparent that in making the Award, the Board of Arbitrators has acted beyond the terms of reference.
There can be no doubt that when an Arbitrator acts beyond the terms of reference, the Award is illegal and not binding upon the parties.
The Tribunal has, in our opinion, rightly come to the finding that the Board of Arbitrators did not have any authority to go beyond the terms of reference, and that the Award made by the Board cannot lawfully bind the staff side including the respondents Nos.
1 to 8.
The Tribunal was, therefore, justified in setting aside the Award.
Now, the question is whether the Scientific Assistants of the Botanical Survey of India are entitled to the revised scale of pay of Rs.550 900 with effect from January 1, 1973.
It is not disputed that the post of Scientific Assistants in the Botanical Survey of India has been allocated the pay scale of Rs.425 700 which is the pay scale recommended by the Pay Commission for the post of Scientific Assistants Level II.
Clause (i) of paragraph 41 of the Report of the Pay Commission shows that the two levels have been suggested on the basis of nature of scientific work and the qualifications required therefore.
According to the Pay Commission the higher grade, that is, Level I, would require a post graduate education and call for some degree of originality and capacity for independent work.
Such Scientific Assistants should, in course of time, be able to carry out independent investigations of the type conducted by scientific officers.
So far as the nature of work under Level II is concerned, the Pay Commission took the view that the work at this level would be mostly standardised and conducted under the guidance of gazetted officers and, accordingly, this level could be adequately manned by good science graduates.
before dividing the grade of Scientific Assistants into two levels, it is necessary to consider the nature of work performed by the Scientific Assistants.
In other words, the two levels, as recommended by the Pay Commission, can he brought into existence, if the nature of work which is being performed by the Scientific Assistants of the Botanical Survey of India calls for some degree of originality and carrying out of independent work and investigations.
In this connection.
we may refer to paragraph 44 of the Report which reads as follows: "44.
Posts in all the organisations which are now in the scales mentioned in Table XI should be replaced by the substitutes which we have indicated against each.
In case PG NO 760 the qualifications prescribed, at present, for any of the posts do not conform to those which we have indicated in that paragraph, then the position should be reviewed; where a higher qualification has been prescribed, and if the work a content of the post justifies its being placed in the higher level, it should be upgraded to that level.
Otherwise, the qualification requirement should be commensurately lowered for the future recruits.
It is not disputed that the Pay Commission generally considered the cases of the Scientific Assistants.
Accordingly, the Pay Commission observed t4at before dividing the grade of Scientific Assistants into different levels, the Job content of the post should be taken into consideration.
It is not disputed that the case of the Scientific Assistants of Botanical Survey of India has not been specifically considered by the Pay Commission.
If, upon such consideration, the Pay Commission had recommended the division of the posts of Scientific Assistants into Level I and Level II, there would not have been any difficulty in giving effect to the same.
It appears to us that the guiding factor for such division, as recommended by the Pay Commission, is the job content of the post for Scientific Assistant.
Before directing the appellants to accord the benefit of the scale of pay of Rs.550 900 to the Scientific Assistants of the Botanical Survey of India, the Tribunal has taken into consideration the duties performed by them.
The duties of Scientific Assistants are "to assist in scientific research, prepare notes after consultation with literature, identification and cataloguing of flora and studying them in their various aspects In the field as well as in the Herbarium and the laboratory.
" It has been found by the Tribunal that the Scientific Assistants of the Botanical Survey of India are not expected to exhibit any originality or capacity for doing any independent work and that the job contents of the existing Scientific Assistants are similar to those of Level II Scientific Assistants recommended by the Pay Commission.
The Tribunal has also noticed one very significant fact that one Shri M.K. Deka, a non matric has been posted as an Orchidariam Keeper in the scale of pay of Rs. 550 900.
Be that as it may, as the job content does not require the qualifications as prescribed by the Commission for the Level I Scientific Assistants, it will not be prudent to divide the post of Scientific Assistant into Level II.
At the same time, the existing Scientific Assistants should not be deprived of the pay scale of Rs.550 900.
PG NO 761 In the circumstances, we are of the view that the Tribunal was perfectly justified in directing allocation of the revised pay scale of Rs.550 900 to the existing Scientific Assistants of the Botanical Survey of India.
We, however, make it clear that the appellants may give effect to the recommendations of the Pay Commission with regard to future recruitment 's after framing rules in that regard.
But, so far as the existing Scientific Assistants are concerned, we uphold the judgment of the Tribunal.
For the reasons aforesaid, this appeal is dismissed.
There will, however, be no order as to costs.
R.S.S. Appeal dismissed.

summary:
The respondents were working as Scientific Assistants in the office of the Botanical Survey of India in the scale of Rs. 210 425.
The Third Central Pay Commission had considered the cases of the Scientific Assistants generally and had recommended different levels of scale of pay for them depending upon their education and job content.
On the basis of the Pay Commission recommendation, the Scientific Assistants in the office of the Botanical Survey of India were allocated Scientific Assistants Level II pay scale with effect from 1.1.1973.
The respondents, on the other hands, claimed the scale of Rs.550 900 recommended by the Pay Commission for Level I posts, which scale was also recommended by the Committee of the Joint Consultative Machinery.
The Government referred the matter to a Board of Arbitrators to Consider whether the Scientific Assistants of the Botanical Survey of India were entitled to the revised scale of Rs.550 990.
The Board, however, recommended two levels of scale of pay, as had been done by the Pay Commission.
Feeling aggrieved by the Award of the Board, the respondents filed a writ petition which was transferred by the Calcutta High Court to the Central Administrative Tribunal, Calcutta.
The Tribunal came to the finding that in recommending two levels of scale of pay the Board of Arbitrators had travelled beyond the terms of reference.
Accordingly, the Tribunal set aside the Award, allowed the writ petition and accorded to the respondents the benefit of the scale of pay of Rs.550 900.
Dismissing the appeal, it was, HELD: (l) The terms of reference of the Board of Arbitrators was very clear and specific.
Under the terms of reference there was no scope for prescribing two levels of PG NO 754 PG NO 755 scale.
It was therefore apparent that the Board had acted beyond the terms of reference, and its award was illegal and not binding upon the parties.[758 H;759A] (2) The Pay Commission had suggested two levels on the basis of nature of scientific work and the qualifications required therefor, the higher grade requiring a post graduate education and calling for some degree of originality and capacity for independent work.
At the same time, the Pay Commission had observed that before dividing the grade of Scientific Assistants into two levels, the job content of the post should be taken into account.[759D;790 B C] (3) The two levels could be brought into existence if the nature of work which was being performed by the scientific Assistants of the Botanical Survey of India called for some degree of originality and carrying out of independent work and investigation, which was the guiding factor for such a division.[759F G] (4) It has been found by the Tribunal that the Scientific Assistants of the Botanical survey of India were not expected to exhibit any originality or capacity for doing any independent work and that the job contents of the existing Scientific Assistants were similar to those of Level II Scientific Assistants recommended by the Pay Commission.[760F] (5) As the job content did not require the qualifications as prescribed by the Commission for the Level l Scientific Assistants, it would not be prudent to divide the post of Scientific Assistant into Level I and Level ll.
At the same time, the existing Scientific Assistants should not be deprived of the pay scale of Rs.550 900.
The appellants may give effect to the recommendations of the Pay Commission with regard to the future recruitments after framing rules in that regard.
[760G H; 761B]


judgement:
ivil Appeal No. 764 of 1978.
From the Judgment and Order dated 5.7.1974 of the Andhra Pradesh High Court in W .A.
No. 71 of 1974.
H.S. Guru Raja Rao, section Markendeya, Mrs. Chitra Marken deya, G. Seshagiri and Kumari Usha Saraswat for the Appel lants.
P.A. Choudhary and T.V.S.N. Chari for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and order of a Division Bench of the High Court of Andhra Pradesh setting aside the order of a learned single Judge, dismissing the appellant ' writ petition made under Article 226 of the Constitution.
The appellants are members of the Andhra Pradesh Engi neering Subordinate Service as supervisors in Category 1 of the Engineering Branch.
The Engineering Branch category 1 includes officers, namely, Supervisors, Overseers, Head Draftsmen, Civil Draftsmen, Artists Draftsmen, Tracers, Blue Print Operators and Building Mistries.
Supervisors are recruited by direct recruitment as well as by promotion from amongst the Overseers.
The cadre of supervisors include degree holders in engineering and diploma or licence hold ers.
Both perform the same duties and functions in the engineering branch.
Promotion to the post of Assistant Engineer, the next higher post is made from amongst the post of supervisors, in accordance with the Andhra Pradesh Engi neering Service Rules 1967.
Graduate Overseers are given preference in the ratio of promotion to the post of Assist ant Engineer inasmuch as the quota of promotion is four to one from amongst the graduate supervisors and non graduate supervisors.
In addition to the disparity in the matter of promotion, graduate supervisors and non graduate supervisors are granted different pay.
427 On recruitment to the service of supervisors a graduate supervisor is granted higher starting salary than non gradu ate supervisors.
Subsequently, a lower pay scale was pre scribed for the non graduate supervisors.
Aggrieved the non graduate supervisors filed two writ petitions in the High Court of Andhra Pradesh under Article 226 of the Con stitution challenging validity of discrimination in pre scribing two different scales of pay.
The appellants con tended that diploma holder supervisors were entitled to the same scale of pay as prescribed for the graduate supervisors on the principle of equal pay for equal work as they consti tuted the same service and performed the same duties and functions as those performed by graduate supervisors.
The State Government contested their case on the pleading that graduate supervisors and diploma supervisors always remained separate and they were never fused into one service.
The two class of employees discharged the same functions and carried out similar duties, but the State was justified in prescrib ing different pay scales for historical reasons, and also on the basis of difference in the educational qualifications.
Plea of discrimination against non graduate supervisors was denied.
A learned Single Judge of the High Court Justice O. Chinnappa Reddy (as he then was) by his judgment and order dated February 26, 1974 held that the State practised invid ious discrimination without there being valid justification between the two categories of supervisors graduates and non graduates.
The learned judge allowed both the writ petitions and issued mandamus to the State Government to accord the same scale of pay to the non graduate supervisors as prescribed for the graduate supervisors under the Govern ment Order dated June 13, 1969.
On appeals preferred by the State of Andhra Pradesh a Division Bench of the High Court set aside the judgment of the learned Single Judge and dismissed the writ petitions on the finding that the State practised no discrimination and the appellants were not entitled to relief on the principle of equal pay for equal work.
Hence this appeal by special leave.
This is the second round of litigation by the Diploma holder Supervisors.
Earlier they had challenged the grant of higher quota of promotion for graduate Supervisors on the ground that when graduate and non graduate Supervisors, belong to the same cadre, and are eligible for promotion, then giving preferential treatment to graduates amount to denial of equal opportunity to the non graduate Supervisors.
This Court in Mohd. Sujat Ali vs Union of India, ; , rejected the challenge holding that two categories of Supervisors were never fused into one class and have throughout remained distinct and apart.
The non graduate supervisors have again challenged the 428 disparity in the pay scale prescribed for the two class of supervisors.
Since controversy in the present appeals centers round the pay of the Supervisors it is necessary to refer to the history of pay scales prescribed for the Supervisors.
Prior to 1958 the scale of pay prescribed for Supervisors was Rs. 100 5 1 250 but directly recruited graduate Supervisors were granted initial starting salary at Rs. 150 on the date of their initial appointment while a diploma holder Supervisor was paid starting salary of Rs. 100 only, though the same pay scale was prescribed for both the degree holders and diploma holders.
On his appointment a graduate supervisor Was designated as Junior Engineer while a non graduate continued to be designated as supervisor.
In 1958 the scale of pay of Supervisors was revised to Rs. 100 5 150 7.1/2 20010 300 but graduate Supervisors were continued to be granted higher starting salary at Rs. 180 on the date of their initial appointment.
Later, the starting salary of graduate Supervisors was raised to Rs.200 and their pay was fixed in the pay scale of Rs.200 10 300.
In 1961 the scale of pay of Supervisors was again revised according to which non graduate supervisors were granted pay scale of Rs. 180 7.1/2 210 10280 15 400, while Junior Engineers (graduate Supervisors) were granted the scale of Rs.250 15 400.
Though different pay scales were provided for non graduate Supervi sors and graduate Supervisors but the maximum pay for both the categories was maintained at the same level, irrespec tive of the Supervisor being a graduate or a non graduate.
The State Government further revised the pay scale of both the categories of Supervisors by the Government Order No. 173 dated 13th June 1969 according to which the scale of pay of non graduate Supervisors was revised to Rs.200 12 320 16 400 while the scale for Junior Engineers (Graduate Supervisors) was revised to Rs.300 20600.
The revised pay scales made substantial difference in the matter of pay between the graduate supervisors and non graduate supervisors, which gave rise to the disputes before the High Court.
Mr. H.S. Gururaja Rao, learned counsel for the appel lants urged that non graduate supervisors and graduate supervisors constitute the same class as they belong to the same service and both the class of officers are fused into one, as the two posts are interchangeable.
The graduate supervisors are no doubt designated as Junior Engineers but the work and duties of both are the same, and both set of officers are treated at part for every other purpose.
Since the two categories of officers were fused into one, the State denied equality by prescribing different scales of pay for the non graduate supervisors.
Learned counsel further urged that even if the graduate 429 supervisors (Junior Engineers) and non graduate supervisors constitute two different categories, but since they have been carrying out the same work and performing the same duties carrying the same responsibility, without any dis tinction the doctrine of equal pay for equal work is fully applicable and on that basis the non graduate supervisors are also entitled to the same pay scales as prescribed for the graduate supervisors (Junior Engineers).
Learned counsel emphasised that for application of the principle of equal pay for equal work it is not necessary that the two class of officers must belong to one integrated service instead if the nature of duties and functions of the two posts are identical or similar, the principle would apply.
He referred to a number of decisions, reference to which will be made at the appropriate stage.
Shri P.A. Chaudhry, learned counsel appearing for the respondent State seriously contested the correctness of the submissions made on behalf of the appel lants and urged that in view of the Constitution Bench decision of this Court in Mohammad Shujat Ali 's case (supra) the appellants are not entitled to any relief.
Since the Division Bench of the High Court rejected the appellants ' claim for equal pay in view of the findings of a Constitution Bench of this Court in Mohammad Shujat Ali 's case it is necessary to refer to that case in some detail.
In Shujat Ali 's case non graduate supervisors of Andhra Pradesh had challenged validity of the rule which gave preferential treatment to graduate supervisors (Junior Engineers) for promotion to the post of Assistant Engineer on the ground that it violated the equality clause enshrined under Articles 14 and 16 of the Constitution.
In that con text, the question arose whether the preferential treatment given to graduate supervisors was justified on any reasona ble classification or it was arbitrary and irrational.
Bhagwati, J. speaking for the Constitution Bench after considering various decisions of this Court observed as under: "But where graduates and non graduates are both regarded as fit, and, therefore, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportu nity, any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non graduate in the matter of fixation of such quota.
The result of fixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engi neer, which, according to the quota is re served for graduate Supervisors, a non 430 graduate supervisors cannot be promoted to that vacancy, even ' if he is senior to all other graduate Supervisors and more suitable than they.
His opportunity for promotion would be limited only to vacancies available for non graduate Supervisors.
That would clearly amount to denial of equal opportunity to him.
" The above observation would show that the Constitution Bench held that fixation of quota giving preference to graduate supervisors amounted to denial of equal opportunity to the non graduate supervisors.
But after making the aforesaid observations the Constitution Bench considered the history of the graduate super visors and non graduate supervisors under the Andhra Pradesh Rules and thereupon, it record ed findings that the graduate supervisors have always been treated as a distinct and separate class from non graduate supervisors both under the Hyderabad Rules as well as under the Andhra Pradesh Rules and they were never treated as equals.
The Bench observed as under: "The pay scale of Junior Engineers was always different from that of non graduate supervi sors and for the purpose of promotion, the two categories of supervisors were kept distinct and apart under the Andhra Rules even after the appointed day.
The common gradation list of supervisors finally approved by the Govern ment of India also consisted of two parts, one part relating to Junior Engineers and the other part relating to non graduate supervi sors.
The two categories of supervisors were thus never fused into one class and no ques tion of unconstitutional discrimination could arise by reasons of differential treatment being given to them.
" In view of the aforesaid findings of the Constitution Bench which relate to this very cadre of supervisors, it is diffi cult to accept the appellants ' contention that the graduate supervisors and non graduate supervisors were integrated into one class of service and that no differential treatment is permissible to the non graduate supervisors.
The Consti tution Bench on elaborate discussion held that the equality clause under Articles 14 and 16 of the Constitution was not violated in the matter of promotion of graduate supervisors and non graduate supervisors, as the graduate supervisors and non graduate supervisors constituted two different classes.
The necessary consequence of the Constitution Bench findings are that the classification of Supervisors into two clas 431 ses on the basis of historical reasons is valid and it does not offend Article 14 or 16 of the Constitution.
Once the classification is upheld it is difficult to hold that non graduate supervisors are entitled to the same pay scale as prescribed for graduate supervisors as equality in pay is permissible with equals and not with unequals.
There is basic difference between the two class of supervisors as graduate supervisors hold degree in Engineering while non graduate supervisors are only Diploma and Licence holder and they have all along been treated differently on the basis of different in educational qualifications.
In State of Mysore vs
P. Narasingh Rao; , the question arose whether two different pay scales could be prescribed for the employees working in the same service on the basis of educational qualification.
In the State of Mysore tracers included matriculates and non matriculates.
The government prescribed higher pay scale to matriculate tracers although the non matriculates and matriculates tracers both were performing the same duties and functions.
The non matriculate tracers challenged the validity of different pay scales on the ground that it violated the guarantee of equality under Articles 14 and 16 of the Con stitution as there was no valid reason for making distinc tion.
The High Court accepted their contention and allowed their petition holding that there was no valid reason for making distinction as both matriculate and non matriculate tracers were doing the same kind of work and the denial of different scale of pay was in violation of Articles 14 and 16 of the Constitution.
On appeal by the State Government this Court set aside the order of the High Court on the finding that higher educational qualification is a relevant consideration for fixing different pay scales and the clas sification of two grades of tracers did not violate of Article 14 or 16 of the Constitution.
The Constitution Bench observed as under: "The provisions of Article 14 or Article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down qualifications for the post in question.
Such qualifications need not be only technical but they can also be general qualifications relating to the suitability of the candidate for public service as such.
It is therefore not fight to say that in the appointment to the post of tracers the Govern ment ought to have taken into account only the technical proficiency of the candidates in the particular craft.
It is open to the Government to consider also the general educational attainments of the candidates and to give preference to candidates who have a better 432 educational qualification besides technical proficiency of a tracer.
" Classification in service rounded on the basis of educa tional and academic qualifications is now well recognised.
It is open to the Administration to give preference to a class of employees on the basis of educational qualifica tions having regard to the nature of duties attached to the post for the purposes of achieving efficiency in public services.
It is permissible to give preference to degree holders as was held by this Court in Union of India vs Dr. (Mrs.) S.B. Kohli; , and State of Jammu & Kashmir vs Triloki Nath Khosa, ; Since clas sification on the basis of educational qualification is a valid consideration for discriminating in matters pertaining to promotion to the higher post, there is no reason as to why the same principle is not be applicable for prescribing scales of pay.
Having regard to the findings recorded by the Constitution Bench in Mohammad Shujat Ali 's case that gradu ate supervisors and non graduate supervisors constitute two distinct class, the non graduate supervisors cannot validly claim parity with the graduate supervisors regarding pay scales.
The appellants grievance that they have been denied equality in violation of Article 14 or 16 of the Constitu tion is not sustainable.
Learned counsel for the appellants urged that even if the appellants ' grievance regarding violation of Articles 14 and 16 of the Constitution is not sustainable, the appel lants are entitled to the same scale of pay as granted to the graduate supervisors on the principle of 'equal pay for equal work ' enshrined under Article 39(d) of the Constitu tion.
He placed reliance on the decision of this Court in Randhir Singh vs Union of India & Ors., ; ; P. Savita vs Union of India, [1985] Supp.
SCR 101; Dhirendra Chamoli & Anr.
vs State of U.P., ; Surinder Singh & Anr.
vs Engineer in Chief, CPWD & Ors.
, ; Bhagwan Dass vs State of Haryana, [1987] 4 SCC 634 and Jaipal vs State of Haryana, [1988] 3 SCC 354.
In view of these authorities the learned counsel contended, there is no justification to disregard the doctrine of 'equal pay for equal work ' as graduate supervisors and the non graduate supervisors both have been doing the same work with the same responsibilities without there being any difference in the duties and functions of the two categories of officers.
Article 39(d) contained in part IV of the Constitution, ordains the State to direct its policy towards securing equal pay for equal work for both men and women.
Provisions contained in the Chapter on 433 Directive Principles of State Policy cannot be enforced by courts although the principles contained therein are funda mental in nature for the governance of our country.
The court has no power to direct the Legislature to frame laws to give effect to the Directive Principles as contained in Part IV of the Constitution or to injunct the Legislature from making any such law.
But while considering the question of enforcement of fundamental rights of a citizen it is open to the court to be guided by the Directive Principles to ensure that in doing justice the principles contained there in are maintained.
The purpose of Article 39(d) is to fix certain social and economic goals for avoiding any discrimi nation amongst the citizens doing similar work in matters relating to pay.
If the court finds that discrimination is practised amongst two set of employees similarly situated in matters relating to pay, the court must strike down discrim ination, and direct the State to adhere to the doctrine of 'equal pay for equal work ' as enshrined under Article 39(d) of the Constitution.
Fundamental rights, and the Directive Principles constitute "conscience, of the Constitution".
The Constitution aims at bringing about a synthesis between 'Fundamental Rights ' and 'Directive Principles of State Policy ' by giving to the former a place of pride and to the latter a place of permanence, together they form core of the Constitution.
They constitute its true conscience and with out faithfully implementing the Directive Principles it is not possible to achieve the welfare State contemplated by the Constitution see Keshavanand Bharti vs State of Kerala, [1973] 4 SCC 225.
In Randhir Singh 's case (supra) and later in Dhirendra Chamoli 's case (supra), Surinder Singh 's case (supra), Bhagwan Dass 's case (supra).
Jaipal 's case (supra) and P. Sativa 's case (supra), this Court implemented the principle of 'equal pay for equal work '.
The Court granted relief on the principle of equal pay on the basis of same or similar work performed by two class of employees under the same employer even though the two class of employees did not constitute the same service.
But in all the aforesaid cases relief was granted only after it was found that discrimina tion was practised in giving different scales of pay in violation of the equality clause enshrined under Article 14 and 16 of the Constitution.
The principle of equal pay for equal work was enforced on the premise that discrimination was practised between the two set of employees performing the same duties and functions, without there being any rational classification.
The principle of 'equal pay for equal work ' is not abstract one, it is open to the State to prescribe different scale of pay for different cadres having regard to nature, duties, responsibilities and educational qualifications.
Different grades are laid down in service with varying 434 qualification for entry into, particular grade.
Higher qualification and experience based on length of service are valid considerations for prescribing different pay scales for different cadres.
The application of doctrine arises where employees are equal in every respect, in educational qualifications, duties, functions and measure of responsi bilities and yet they are denied equality in pay.
If the classification, for prescribing different scales of pay is rounded on reasonable nexus the principle will not apply.
But if the classification is rounded on unreal and unreason able basis it would violate Articles 14 and 16 of the Con stitution and the principle of equal pay for equal work, must have its way.
In the decisions reference to which have been made by the learned counsel for the appellants, this Court granted relief, after recording findings that the aggrieved employees were discriminated in violation of the equality clause under Articles 14 and 16 of the Constitu tion, without there being any rationale for the classifica tion.
In a number of decisions of this Court the claim for equal pay for equal work has been negatived on the ground that the different pay scales prescribed for persons doing similar or same work is permissible on the basis of classi fication rounded on the measure of responsibilities, educa tional qualifications, experience and other allied matters.
In Federation of All India Customs and Central Excise Ste nographers (Recognised) vs Union of India; , , Justice Sabyasachi Mukharji said (SCC p. 100 para 7).
"There may be qualitative differences as regards reliability and responsibility.
Func tions may be the same but the responsibilities make a difference.
One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service.
So long as such value judgment is made bona fide, reasonably on an intelligible criteria which has a rational nexus with the object of differentiation, such differentia tion will not amount to discrimination.
It is important to emphasise that equal pay for equal work is a concomitant of article 14 of the Constitution.
But it follows naturally that equal pay for unequal work will be a negation of that right." The learned Judge further observed: (SCC pp. 104 105 para 11) "The same amount of physical work may entail different 435 quality less it varies from nature and cul ture of employment.
The problem about equal pay cannot always be translated into a mathe matical formula.
If it has a rational nexus with the object to be sought for, as reiterat ed before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or infact.
In State of U.P. and Others vs
J.P. Chaurasia & Ors., ; , this Court negatived the claim of Bench Secretaries for equal pay for equal work on the basis of reasonable classification based on merit, experience and seniority though both set of employees were performing the similar duties and having similar responsibilities.
In Mewa Ram Kanojia vs All India Institute of Medical Sciences & Ors., Judg.
Today 12, this Court refused to grant relief to the petitioner for parity in pay on the application of the principle of 'equal pay for equal work ' on the ground of reasonable classification on the basis of educational qualifications.
In view of the above discussion we are of the opinion that where two class of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualifi cations, they would be entitled to equal pay.
If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution, and the Court will strike down the discrimination and grant relief to the aggrieved employees.
But before such relief is granted the court must consider and analyse the rationale behind the State action in prescribing two different scales of pay.
If on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility, and education al qualifications required for the relevant posts, the court finds that the classification made by the State in giving different treatment to the two class of employees is rounded on rational basis having nexus with the objects sought to be achieved, the classification must be upheld.
Principle of equal pay for equal work is applicable among equals, it cannot be applied to unequals.
Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that invidious discrimination is practised by the State in prescribing two different scales for the two class of employees without there being any reasonable classifica tion 436 for the same.
If the aggrieved employees fail to demonstrate discrimination, the principle of equal pay for equal work cannot be enforced by court in abstract.
The question what scale should be provided to a particular class of service must be left to the Executive and only when discrimination is practised amongst the equals, the court should intervene to undo the wrong, and to ensure equality among the similar ly placed employees.
The Court however cannot prescribe equal scales of pay for different class of employees.
In the instant case the graduate overseers have all along being treated separate entity from the non graduate supervisors and they have been drawing different pay since long.
The Constitution Bench has already recorded findings that two set of officers, namely, graduate supervisors and non graduate supervisors do not belong to the same class of service and unequal treatment relating to promotion is justified on the basis of educational qualification.
There fore the classification made between the graduate supervi sors and non graduate supervisors is reasonable and the State Government did not violate Article 14 or 16 of the Constitution in prescribing different scales of pay for them.
In result, the appeal fails and is accordingly dis missed.
There will be no order as to costs.
R.S.S. Appeal dis missed.

summary:
The appellants are members of the Andhra Pradesh Engi neering Subordinate Service as Supervisors.
The cadre of supervisors includes degree holders in Engineering and diploma or licence holders.
The appellants are diploma holder supervisors.
Their two fold grievance was: (1) dis crimination in the matter of promotion in as much as the quota of promotion is four to one from amongst the graduate supervisors and non graduate supervisors, respectively; and (2) disparity in the matter of grant of different pay scales to graduate supervisors and non graduate supervisors.
For the redressal of their first grievance, the non graduate supervisors had earlier, in Mohd. Sujat Ali vs Union of India; , , challenged the validity of the Andhra Pradesh Engineering Service Rules, 1967 which gave preferential treatment to graduate supervisors for promotion to the post of Assistant Engineer.
They had con tended that this amounted to denial of equal opportunity to non graduate supervisors thus violating the equality clause enshrined under Articles 14 and 16 of the Constitution.
This Court rejected the challenge, holding that the graduate supervisors had always been treated as a distinct and sepa rate class from non graduate supervisors and that they were never fused into one class.
423 The constant appeal relates to their second grievance and arises out of the writ petition filed by the non gradu ate supervisors in the High Court of Andhra Pradesh chal lenging discrimination in the matter of grant of different pay scales to graduate and non graduate supervisors.
Their contention was that they were entitled to the same scale of pay as prescribed for the graduate supervisors on the prin ciple of equal pay for equal work, as they constituted the same service and performed the same duties and functions as those performed by graduate supervisors.
The State Govern ment contested the case on the pleading that graduate super visors and diploma supervisors always remained separate and they were never fused into one service.
It was further contended that even though the two class of employees dis charged the same functions and carried out similar duties, the State was justified in prescribing different pay scales for historical reasons, and also on the basis of difference in the educational qualifications.
The learned Single Judge allowed the writ petition.
On appeal by the State, the Division Bench set aside the judg ment of the learned Single Judge and dismissed the writ petition on the finding that the State practised no discrim ination and the appellants were not entitled to relief on the principle of equal pay for equal work.
Before this Court it was contended on behalf of the appellants that (1) the graduate and non graduate supervi sors constituted the same class as they belonged to the same service and both the class of officers were fused into one, as the two posts were inter changeable; (2)even if the two class of officers constituted two different categories, since they had been carrying out of the same work and per forming the same duties carrying the same responsibility, without any distinction, the doctrine of equal pay for equal work was fully applicable, and it was not necessary that the two class of officers must belong to one integrated service; and (iii) even if the appellant 's grievance regarding viola tion of Articles 14 and 16 of the Constitution was not sustainable, the appellants were entitled to the same scale of pay as granted to the graduate supervisors on the princi ple of 'equal pay for equal work ' enshrined under Article 39(d) of the Constitution.
Dismissing the appeal, this Court, HELD: (1) There is a basic difference between the two class of supervisors as graduate supervisors hold degree in Engineering while non graduate supervisors are only Diploma and Licence holders, and they have all along been treated differently on the basis of difference in 424 educational qualifications.
Classification of Supervisor into two classes on the basis of historical reasons is valid and it does not offend Articles 14 or 16 of the Constitu tion.
[431B] Mohammad Sujat Ali vs Union of India, referred to.
(2) Since classification on the basis of educational qualification is a valid consideration for discriminating in matters pertaining to promotion to higher post, there is no reason as to why the same principle is not applicable for prescribing scales of pay.
[432C] (3) Classification in service rounded on the basis of educational and academic qualification is now well recog nised.
It is open to the administration to give preference to a class of employees on the basis of educational qualifi cations, having regard to the nature of duties attached to the post, for the purpose of achieving efficiency in public services.
[432B] Union of India vs Dr. (Mrs.) S.B. Kohli, ; and State of Jammu & Kashmir vs Triloki Nath Khosa, ; , referred to.
(4) The principle of 'equal pay for equal work ' is not an abstract one.
It is open to the State to prescribe dif ferent scales of pay for different cadres having regard to nature of duties, responsibilities and educational qualifi cations.
Different grades are laid down in service with varying qualification for entry into a particular grade.
Higher qualification and experience based on length of service are valid considerations for prescribing different pay scales for different cadres.
[433G H; 434A] State of Mysore vs P. Narasing Rao, ; , referred to.
(5) Where two class of employees perform identical or similar duties and carry out the same functions with the same measure of responsibility, having same academic quali fications, they would be entitled to equal pay.
If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution, and the Court will strike down the discrimination and grant relief to the aggrieved employees.
But before such relief is granted the court must consider and analyse the rationale behind the State action in prescribing different scales of pay.
If on an analysis of the relevant rules, 425 orders, nature of duties, functions, measure of responsibil ity, and educational qualifications required for the rele vant posts, the court finds that the classification made by the State in giving different treatment to the two class of employees is rounded on rational basis having nexus with the objects sought to be achieved, the classification must be upheld.
Principles of equal pay for equal work is applicable among equals; it cannot be applied to unequals.
[435E G] Federation of All India .Customs and Central Stenogra phers (Recognised) vs Union of India; , ; State of U.P. v .J.P. Chaurasia; , and Mewa Ram Kanojia vs All India Institute of Medical Sciences, Judg.
Today , referred to.
(6) This Court granted relief in a number of cases after recording findings that the aggrieved employees were dis criminated in violation of the equality clause under Arti cles 14 and 16 of the Constitution, without there being any rationale for the classification, even though in some cases the two class of employees did not constitute the same service.
[434C] Randhir Singh vs Union of India, ; ; P. Savita vs Union of India, ; Dhirendra Chamouli vs State of U.P., ; Surinder Singh vs Engineer in Chief CPWD, ; Bhagwan Dass vs State of Haryana, [1987] 4 SCC 634 and Jaipal vs State of Haryana, [1988] 3 SCC 354, referred to.
(7) Article 39(d) contained in Part IV of the Constitu tion, ordains the State to direct its policy towards secur ing equal pay for equal work for both men and women.
Provi sions contained in the Chapter on Directive Principles of State Policy cannot be enforced by courts although the principles contained therein are fundamental in nature for the governance of our country.
[432H; 433A] (8) Fundamental rights and the Directive Principles constitute "Conscience of the Constitution".
The Constitu tion aims at bringing about a synthesis between "Fundamental Rights ' and 'Directive Principles of State Policy ' by giving to the former a place of pride and to the latter a place of permanence; together they form core of the Constitution.
They constitute its true conscience and without faithfully implementing the Directive Principles it is not possible to achieve the welfare State contemplated by the Constitution.
[433D] Keshavanand Bharti vs State of Kerala, [1973] 4 SCC 225, referred to.
426 (9) The Court has no power to direct the Legislature to frame laws to give effect to the Directive Principles as contained in Part IV of the Constitution or to injunct the Legislature from making any such law.
But while considering the question of enforcement of fundamental rights of a citizen, it is open to the Court to be guided by the Direc tive Principles to ensure that in doing justice the Princi ples contained therein are maintained.
[433A B]