judgement:
(Civil) No. 7698 of 1982.
(Under Article 32 of the Constitution of India).
M.S. Ganesh, (Amicus Curiae) for the Petitioner.
K. Parasaran, Attorney General, Altar Ahmed, Adv.
, S.K. Bhattacharya, Ms. A. Subhashini and H.C. Paonam for the Respondents.
371 The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The petitioner is the Chairman of the Action Committee of West Pakistani Refugees.
He migrated from West Pakistan to the State of Jammu & Kashmir in India in 1947 in the wake of the partition of the country.
He claims to speak on behalf of the refugees from West Pakistan who migrated and settled in the State of Jammu & Kashmir.
He contends that notwithstanding the fact that it is almost four decades since they migrated and settled down in the State of Jammu & Kashmir, they are denied many basic rights which other Indian citizens have in other parts of the country, such as, the right to acquire any immovable proper ty in the State, the right to employment under the State, the right to start an industry, the right to purchase trans port vehicles, the right to higher technical education, the right to be elected to the State Assembly or a local body, etc.
He complains that while refugees from West Pakistan who migrated into the State of Jammu & Kashmir in 1947 and have settled down in the State are denied these rights, recently the Jammu & Kashmir Legislature has enacted the Resettlement Act, 1982 by which all these rights are given to erstwhile residents of Jammu & Kashmir who had voluntarily migrated to West Pakistan at the time of the partition of the country in 1947 and their children, who may now choose to return to Jammu & Kashmir.
The present writ petition was initially filed challenging the vires of the Resettlement Act, 1982.
The vires of the Act is already awaiting the decision of this court in special reference No. 1 of 1982.
The petition er, therefore, gave up the challenge to the vires of the Act in this petition leaving the question to be decided in special reference No. 1 of 1982.
For the purposes of this petition, he now proceeds on the basis that the Act is valid but claims that he and other persons situated like him should at least be given the same rights as are given to those who voluntarily migrated to est Pakistan at the time of the partition in 1947.
It is true that the persons in the position of the petitioner who migrated from West Pakistan to the State of Jammu & Kashmir in the wake of the 1947 partition and have settled down in the State in Jammu & Kashmir and who are citizens of India and who also have the right to participate in elections to Parliament, have very anomalous rights within the State.
For example, they are not entitled to be included in the electoral roll of the State Assembly, they are not entitled to be elected to a village panchayat, they are not entitled to purchase any land and they are also not entitled to be appointed to any service under the State Government.
All these denials and deprivations are 372 the consequence of the definition of a 'permanent resident ' under sec.6 of the Jammu & Kashmir Constitution.
6 is as follows: "Permanent residents (1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954 (a) he was a State Subject of Class I or of Class II; or (b) having lawfully acquired immovable proper ty in the State, he has been ordinarily resi dent in the State for not less than ten years prior to that date.
(2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legis lature shall on such return be a permanent resident of the State.
(3) In this section, the expression "State Subject of Class I or of Class II" shall have the same meaning as in (State Notification No. 1 L/84 dated the twentieth April, 1927, read with State Notification No. 13/L dated the twentyseventh June, 1932.)" The 1927 Notification defining State Subject is as follows: "The term State Subject means and includes Class I.
All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Ghulab Singh Sahib Bahadur, and also persons who settled therein before the commencement of Samvat year 1942, and have since been permanently residing therein.
Class II.
All persons other than those be longing to Class I who settled within the State before the close of Samvat year 1968, and have since permanently resided and ac quired immovable property therein.
373 Class III All persons, other than those belonging to Classes I and II permanently residing within the State, who have acquired under a rayatnama any immovable property therein or who may hereafter acquire such property under an ijazatnama and may execute a rayatnama after ten years continuous residence therein.
Class IV.
Companies which have been regis tered as such within the State and which, being companies in which the Government are financially interested or as to the economic benefit to the State or to the financial stability of which the Government are satis fied, have by a special order of His Highness been declared to be State Subjects.
Note 1 In matters of grants of the State scholarships, State lands for agricultural and house building purposes and recruitment to State service, State Subjects of Class I should receive preference over other classes and those of Class II, over Class III, sub ject, however, to the Order dated 31st Janu ary, 1927 of His Highness the Maharaja Bahadur regarding employment of hereditary State subjects in Government service.
Note II.
The descendants of the persons who have secured the status of any class of the State Subjects will be entitled to become the State Subjects of the same class.
For example, if A is declared a State Subject of Class II his sons and grandsons will ipso facto acquire the status of the same class (II) and not of Class I. Note III.
The wife or a widow of a State Subject of any class shall acquire the status of her husband as State Subject of the same class as her husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.
Note IV.
For the purposes of the interpreta tion of the term 'State Subject ' either with reference to any law for the time being in force or otherwise, the definition given in this Notification as amended up to date shall be read as if such amended definition existed in this Notification as originally issued.
" 374 There is no dispute that the petitioner and others like him are not 'permanent residents ' of Jammu & Kashmir within the meaning of sec.6 of the Jammu & Kashmir Constitution.
It is because they are not permanent residents as defined by sec.6 of the Jammu & Kashmir Constitution, they do not have the rights and privileges mentioned earlier.
12(b) of the Jammu & Kashmir Representation of the People Act pro vides that a person shall be disqualified for registration in an electoral roll if he is not a permanent resident of the State as defined in Part III of the Constitution, sec.8(a) of the Villages Panchayat Act provides that a person shall be disqualified for being chosen as or for being a member of a Panchayat if he is not permanent resi dent of the State, sec.4 of the Land Alienation Act, 1995 BK.
provides that transfer of land in favour of any person who is not a State subject is prohibited and rule 17(a) of the Jammu & Kashmir Civil Services, Classification of Con trol and Appeal Rules provides that no person shall be eligible for appointment to any service by direct recruit ment unless he is a hereditary State subject to be known hereafter as a permanent resident.
It is to be noticed here that these provisions are not open to challenge as incon sistent with the rights guaranteed by Part III of the Con stitution of India because of "the Constitution (Application to Jammu & Kashmir) Order, 1954" issued by the President of India under article 370(1)(d) of the Constitution by which article 35(A) was added to the Constitution in relation to the State of Jammu & Kashmir.
This Article states: "35 A.
Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu & Kashmir, and no law hereafter enacted by the Legislature of the State, (a) defining the classes.
of persons who are or shall be, permanent residents of the State of Jammu & Kashmir; or (b) conferring on such permanent residences any special rights and privileges or imposing upon other persons any restrictions as re spects: (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or 375 (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is incon sistent with or takes away or abridges any rights conferred on the other citizens of India by any provisions of this part.
" The net result is that persons in the position of the peti tioner, though citizens of India and entitled to the various Fundamental Rights guaranteed by the Constitution, are not in a position to enjoy many of those rights within the State of Jammu & Kashmir though they are domiciled in that State for nearly 40 years.
On the other hand, those who had migrated to West Pakistan in 1947 and who may choose to return to the State of Jammu & Kashmir now, appear to stand in a better position.
But that is apparently because of the special position secured to them in the Jammu & Kashmir Constitution itself.
Sec.6(2) of the Jammu & Kashmir Constitution which has already been extracted by us, expressly provides that such persons if they were previously State Subjects of Class I and Class II shall be permanent residents of the State on their return to the State of Jammu & Kashmir from West Pakistan under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature.
It is pursuant to this provision that the Resettlement Act has been enacted.
In the circumstances, in view of the peculiar Constitu tional position obtaining in the State of Jammu & Kashmir.
We do not see what possible relief we can give to the peti tioner and those situate like him.
All that we can say is that the position of the petitioner and those like him is anomalous and it is up to the Legislature of the State of Jammu Kashmir to take action to amend legislature, such as, the Jammu & Kashmir Representation of the People Act, the Land Alienation Act, the Village Panchayat Act, etc.
so as to make persons like the petitioner who have migrated from West Pakistan in 1947 and who have settled down in the State of Jammu & Kashmir since then, eligible to be included in the electoral roll, to acquire land, to be elected to the Panchayat, etc.
This can be done by suitably amending the legislations without having to amend the Jammu & Kashmir Constitution.
In regard to providing employment opportuni ties under the State Government.
it can be done by the Government by amending the Jammu & Kashmir Civil Services, Classification of Control and Appeal Rules.
In regard to admission to higher technical educational 376 institutions also, the Government may make these persons eligible by issuing appropriate executive directions without even having to introduce any legislation.
The petitioners have a justifiable grievance.
We are told that they consti tute nearly seven to eight per cent of the population of the State of Jammu & Kashmir.
Surely they are entitled to expect to be protected by the State of Jammu & Kashmir.
In the peculiar context of the State of Jammu & Kashmir, the Union of India also owes an obligation to make some provision for the advancement of the cultural, economic and educational rights of these persons.
We do hope that the claims of persons like the petitioner and others to exercise greater rights of citizenship will receive due consideration from the Union of India and the State of Jammu & Kashmir.
We are, however, unable to give any relief to the petitioners.
P.S. S Petition dismissed.

summary/full:
The refugees from West Pakistan who had migrated into the State of Jammu and Kashmir in 1947 and had been domi ciled in that State for nearly forty years are not permanent residents as defined in s.6 of the Jammu and Kashmir Consti tution, with the result that they were disentitled to be included in the electoral rolls of the State Assembly, to be elected to village Panchayats, to be appointed to any serv ice under the State Government by direct recruitment, to purchase land in the State and to be admitted to higher technical educational institutions under the relevant Acts and Rules.
Section 6(2) of the Jammu and Kashmir Constitu tion, however, provides that permanent State subjects who had migrated to West Pakistan in 1947 shah be permanent residents of the State on their return to the State under a permit for resettlement, thereby entitling them to all the above rights.
The petitioner, who claimed to speak on behalf of the refugees from West Pakistan settled in the State, claimed that be and other persons situated like him should at least be given the same rights as are given to those who had voluntarily migrated to West Pakistan at the time of parti tion in 1947, on their return to the State for resettlement.
Dismissing the writ petition, the Court, HELD: Section 12(1)(b) of the Jammu and Kashmir Repre sentation of the People, Act 1957 disqualifying a person for registration in an 370 electoral roll if he is not a permanent resident of the State as defined in s.6 of the Constitution, s.8(a) of the Village Panchayat Act, 1958 disqualifying such a person for being chosen as or for being member of a Panchayat, s.4 of the Land Alienation Act, 1995 B.K. prohibiting transfer of land in favour of any person who is not a State subject, and r.17(a) of the Jammu and Kashmir Civil Services (Classifica tion, Control and Appeal) Rules, 1956 rendering ineligible a person who is not a hereditary State subject for appointment to any service under the State Government by direct recruit ment are not open to challenge as inconsistent with the rights guaranteed by Part III of the Constitution of India because of the "Constitution (Application to Jammu & Kash mir) Order, 1954" issued by the President of India under article 370(1)(d) of the Constitution, by which article 35A was added to the Constitution in relation to the State of Jammu and Kashmir.
[374B E] The petitioner and those like him have a justifiable grievance.
They have very anomalous rights within the State.
Though citizens of India and entitled to the various funda mental rights guaranteed by the Constitution they are not in a position to enjoy many of those rights within that State in which they are domiciled for nearly 40 years.
In view of the peculiar constitutional position obtaining in the State, it is upto the legislature of the State to take action to suitably amend legislations, and for the State Government to amend Service Rules and issue appropriate executive instruc tions to make these persons eligible to exercise greater rights of citizenship.
They constitute nearly seven to eight per cent of the population of the State.
Surely, they are entitled to expect to be protected by the State.
[376A C] The Union of India, in the peculiar context of the State also owes an obligation to make some provision for the advancement of cultural, economic and educational rights of these persons.
[376B]


judgement:
Miscellaneous Petition No. 915 of 1957.
Appeal under Order V, rule 3 of the Supreme Court Rules.
R. V. section Mani and Ganpat Rai, for the petitioner.
October 14.
The following Judgment of the Court was delivered by VENKATARAMA AIYAR J.
This is a petition under article 71(1) of the Constitution of India.
On May 6, there was an election to the office of the President 649 and Shri Rajendra Prasad was declared elected.
Thereafter Dr. N. B. Khare filed the present petition describing himself as an intending candidate and alleging that there had been violations of the provisions of the Constitution and that the election was in consequence not valid.
The prayers in the petition are " that grave doubts that exist in connection with the Presidential election be enquired into, resolved and decided " and " the entire proceedings of the Presidential election be quashed as void ".
The Registrar of this Court returned the petition as not being in conformity with the provisions of the (XXXI of 1952), and as not satisfying the requirements of the Rules of this Court contained in 0.
XXXVII A Section 14 of Act XXXI of 1952 provides that no election shall be called in question except by an election petition presented to the Supreme Court in accordance with the provisions of the Act and of the Rules made by the Supreme Court under article 145 of the Constitution; and it further provides that it should be presented by any candidate at such election or by ten or more electors.
The Rules framed by this Court with reference to this matter are contained in 0.
XXXVII A. Rule 3 prescribes that a court fee of the value of Rs. 250 should be paid on the petition and r. 12 requires the petitioner to deposit a sum of Rs. 2,000 in cash as security for the payment of costs that may become payable by him.
The petitioner is not a person entitled to apply under section 14 of the Act and his petition was also defective as it did not comply with the requirements of rr. 3 and 12.
It was accordingly returned by the Registrar.
Against that order, the present appeal has been brought.
It is firstly contended by Mr. Mani that the present petition is outside the purview of Act XXXI of 1952 and of 0.
XXXVII A of the Supreme Court Rules.
It is argued that the Supreme Court is invested with jurisdiction to enquire into and decide all doubts and disputes arising out of or in connection with the election of the President, that Act XXXI of 1952 and O. XXXVII A apply only when there is a dispute 650 as to the election, but where the petition is founded upon doubts as to the validity of the election, it is not covered either by the Act or the Rules.
We are unable to accept this contention.
When once an election has been held, any doubt concerning its validity is material only as a ground for setting aside the election and that in fact is the prayer in the petition itself In substance the petition is one calling the election in question and it must satisfy the requirements of Act XXXI of 1952 and of the Rules in 0.
XXXVII A.
It is next contended that the Act and the Rules in question are void on the ground that they derogate from the jurisdiction of the Supreme Court to enquire into and decide all disputes and doubts arising out of or in connection with the election of the President or the Vice President.
It is argued that under section 18, the election could be set aside only on certain grounds and that further under clause (b) it could be done only if the result of the election is shown to have been materially affected, and that these are restrictions on the jurisdiction conferred by article 71(1) and are ultra vires.
Article 71(1) merely prescribes the forum in which disputes in connection with the election of the President and Vice President would be enquired into.
It does not prescribe the conditions under which the petition for setting aside an election could be presented.
Under article 71(3), it is Parliament that is authorised It( make law for regulating any matter relating to or connected with the election of the President or Vice President, and Act XXXI of 1952 has been passed by Parliament in accordance with this provision.
The right to stand for election and the right to move for setting aside an election are not common law rights.
They must be conferred by statute and can be enforced only in accordance with the conditions laid down therein.
The contention that the Act and the Rules derogate from the jurisdiction of the Supreme Court under article 71(1) must accordingly be rejected.
The petitioner has, therefore, no right to move for setting aside the election except in accordance with the provisions of Act XXXI of 1952.
651 And finally it is contended that the petitioner has a right as a citizen to approach this Court under article 71(1) whenever an election has been held in breach of the constitutional provisions.
For the reasons already given, this contention must fail.
The right of a person to file an application for setting aside an election must be determined by the statute which gives it, and that statute is Act XXXI of 1952 passed under article 71 (3).
The petitioner must strictly bring himself within the four corners of that statute and has no rights apart from it.
The order appealed against is clearly right and this appeal is dismissed.
Petition dismissed.

dataset_name: IN-Abs

summary/full:
The petitioner describing himself as an intending candidate for the Presidential Election filed a petition in the Supreme Court under article 71 (1) of the Constitution of India impugning the election of the President, but it was returned by the Registrar of the Court on the ground that it was not in conformity with the provisions of the Presidential and Vice Presidential Elections Act, 152, and the Rules of the Supreme Court contained in Or.
XXXVII A.
On appeal to the Court it was contended for the appellant that (1) the petition was founded upon doubts as to the validity of the election and, in consequence, was not covered either by the Act or the Rules of the Supreme Court, (2) the Act and the Rules in question were void on the ground that they derogate from the jurisdiction conferred on the Supreme Court under article 71(1) and (3) in any case, the petitioner has a right as a citizen to approach this Court for relief whenever an election has been held in breach of the constitutional provisions.
Held that article 71(1) merely prescribes the forum in which doubts and disputes in connection with the election of the President and Vice President would be enquired into, but the right to move the Supreme Court as well as the procedure therefor, are determined by the Act of Parliament as authorised by article 71 (3).
Accordingly the Act and the Rules in question are valid, and the petitioner has no rights apart from those given by the statute to file an application for setting aside an election.


judgement:
rary to principles of natural justice to retire prematurely a government employee on the basis of adverse entries which are either not commu nicated to him or if communicated representations made against those entries are not considered and disposed of.
In the instant case, the appellant had submitted his represen tations against adverse entries for the year 1971 72 and 1972 1973 and admittedly those representations were not considered and disposed of and yet the appropriate authority considered those entries in forming opinion that the appel lant 's premature retirement was in public interest.
There fore the order of the state Government is not sustainable in law.
[593E G] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7427 of 1983.
From the Judgment and Order dated 5.8.1981 of the Punjab and Haryana High Court in Civil Writ No. 1384 of 1981.
P.P. Rao and K.K. Mohan for the Appellant.
R.S. Sodhi for the Respondent.
The Judgment of the Court was delivered by, 587 SINGH, J.
This appeal is directed against the Order of the High Court of Punjab and Haryana dismissing the appel lant 's petition made under article 226 of the Constitution challenging validity of the Punjab Government 's Order dated 19.3.80 retiring the appellant prematurely from service.
The appellant after having obtained 1st Class M.Sc.
(Technology) degree from Banaras Hindu University in 1950 was awarded Gandhi Memorial Scholarship by the Govt.
for study and training in France for a period of three years.
On his return from abroad he was appointed as Superintendent Quality Marking Centre (Scientific Instruments) of the Government of Punjab.
In 1963 he was promoted to the post of Deputy Director (Technical).
In 1968 he was promoted to the post of Joint Director (Industries), which post he continued to hold till he was prematurely retired by Government order dated 19th March, 1980 issued in exercise of power under rule 3 of the.
Punjab Civil Services (Premature Retirement) Rules 1975 (hereinafter referred to as the Rules).
The appellant made a representation against the order of prema ture retirement to the Government but the same was rejected, thereupon the appellant challenged the validity of the Government order by means of a writ petition under Article 226 of the Constitution before the High Court, which was dismissed in limine by the High Court on August 5, 1981.
The learned counsel for the appellant contended that the Government decision to retire the appellant prematurely was arbitrary and unreasonable as the appellant 's service record has all along been good and there was no material before the appropriate authority on the basis of which the requisite opinion that the appellant 's premature retirement was neces sary in public interest, could be formed.
He urged that the appellant had earned consistent good entries for the last 5 years, but the competent authority relied on some adverse entries of remote past to retire the appellant.
Learned counsel further urged that appellant 's representation against some of the adverse entries which had been consid ered against him was pending and the same had not been considered and disposed of.
Those entries should not have been considered against the appellant.
On the other hand learned counsel appearing for the State urged that the appellant 's work and conduct was not satisfactory and the State Government having considered the over all service record of the appellant formed the requisite opinion bona fide that the appellant 's premature retirement was necessary in public interest.
In support of his contention he placed the service record before the Court and referred to a number of adverse entries 588 earned by the appellant during his service career to which we shall make reference at a later stage.
The purpose and object of premature or compulsory re tirement of Government employee is to weed out the ineffi cient, corrupt, dishonest or dead wood from the Government service.
This fight of the Government is well established which is generally exercised in accordance with relevant service Rules.
The scope and ambit of exercise of this absolute power depends on the provisions of Rules and it is always subject to Constitutional limitations.
In the instant case the appellant was prematurally retired in exercise of power under Rule 3 of the Punjab Civil Services (Premature retirement) Rules 1975, it would therefore be necessary to have a look at these provisions.
Rule 3 reads as under: "3.
Premature retirement: (1)(a) The appropriate authority shall if it is of the opinion that it is in public inter est to do so, have the absolute right, by giving an employee prior notice in writing, to retire that employee on the date on which he completes twenty five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
(b) The period of such notice shall not be less than three months.
Provided that where at least three month 's notice is not given or notice for a period less than three months is given, the employee shall be entitled to claim a sum equivalent to the amount of his pay and allow ances, at the same rate at which he was draw ing them immediately before the date of re tirement, for a period of three months or, as the case may be, for the period by which such notice falls short of three months.
(2) Any Govt.
employee may, after giving at least three month 's previous notice in writing to the appropriate authority retire from service on the date on which he completes twenty five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
589 Provided that no employee under suspension shall retire from service except with the specific approval of the appropriate authority.
" The above rule invests absolute right in the appropriate authority to retire an employee prematurely on his comple tion of 25 years of qualifying service or 50 years of age.
The appropriate authority as defined by rule 2 means the authority which has the power to make substantive appoint ment to the post or service from which the Govt.
employee is required to retire.
Before a Govt.
employee is retired in exercise of power under this rule it is necessary that the Govt.
servant must have completed 25 years of qualifying service or he must have attained 50 years of age and further he must be given three month 's notice in writing.
The rule does not lay down any criteria, guidelines for the exercise of power, although public interest is specified in the rule, which means power has to be exercised in the public interest only.
The public interest in relation to public administra tion envisages retention of honest and efficient employees in service and dispensing the services of those who are inefficient, dead wood or corrupt and dishonest.
Therefore the rule contemplates premature retirement of the ineffi cient, corrupt or dead wood which would subserve the public interest.
Since the rule does not contain any further guidelines, the State Government issued a Government Order on September 26, 1975 laying down the guidelines and the procedure neces sary to be followed in exercising powers under rule 3 for premature retirement of a Government employee.
The order stated that the appropriate authority should utilise the power under rule 3 in a judicious manner to retire a Govern ment employee on formulating its opinion by scrutiny of the confidential reports of the employee and by taking into consideration any other substantial material, it may have before it.
The order further stated that it was not feasible to lay down any absolute terms as to how many adverse en tries about inefficiency or lack of integrity would justify the premature retirement but it laid stress that the service record as a whole would determine the merit of each case.
Paragraph 6 of the letter further stated that remoteness of an adverse entry, the scrutiny of the service record of the employee concerned such as crossing of efficiency bar, confirmation and promotion to a higher post or any other meritorious service rendered by the employee, would have their relative importance.
The order emphasizes that the appropriate authority may consider premature retirement of a Government employee if it has reasonable cause to believe that the employee con 590 cerned was lacking in integrity irrespective of the assess ment of ability and efficiency in work.
It further provides that the appropriate authority should review the cases of employees on their completing 25 years of qualifying service or their attaining 50 years of age.
The Government issued another order on August 4, 1978 pointing out that while exercising power under rule 3 the service of an employee as a whole would determine the merit of each case but if there was a single entry describing the employee concerned as a person of doubtful integrity, that would justify the prema ture retirement under the rules.
The executive instructions issued as contained in these two Govt.
orders provide suffi cient guidance for the exercise of power under rule 3.
According to these instructions the service record of an employee has necessarily to be considered while taking decision for the premature retirement of an employee and if there was a single entry casting doubt on the integrity of an employee, the premature retirement of such an employee would be in public interest.
In the absence of any details by which the question of public interest could be determined in the rules it was open to the State Govt.
to issue execu tive instructions for the guidance of the appropriate au thority to exercise the power of premature retirement and the instructions so issued as contained in the aforesaid Govt.
orders have binding character.
In the counter affidavit filed on behalf of the State of Punjab it is asserted that the appellant during his service with the industries department earned adverse remarks in the annual confidential reports on his work and conduct for the years 1960 61, 1963 64, 1964 65, 1969 70, 1970 71, 1971 72, 1972 73 and 1975 76 which indicate that the overall service record of the appellant was bad and his integrity was fre quently challenged.
It was been further stated that these entries were taken into consideration in retiring the appel lant.
No other material was considered against the appel lant.
According to the respondents the appellant 's service record as a whole was taken into consideration and thereupon it was found that he had earned a number of adverse entries which indicated his inefficiency and for that reason it was considered necessary to retire him prematurely in public interest.
We have been taken through the adverse entries by the learned counsel appearing for the State as he placed the service record before us.
On a perusal of the same we find that the respondents took into consideration some of the adverse entries which related to remote past prior to the promotion of the appellant to the post of Joint Director (Industries).
It is now settled that adverse entries if any, awarded to an employee lose their significance on or after his promotion to a higher post.
The adverse entries awarded to the appellant prior to 1968 could not be taken into 591 consideration and therefore the adverse entries for the years 1960 61, 1963 64 and 1964 65 could not legally be taken into consideration in forming the requisite opinion to retire the appellant prematurely from service.
It is now well settled that while considering the question of prema ture retirement it may be desirable to make an overall assessment of the Government servant 's record, but while doing that, more value should be attached to the confiden tial reports pertaining to the years immediately preceding such consideration.
It is possible that a new entrant to a service may have committed mistakes and for that reason he may have earned adverse entries and if those entries of early years of service are taken into consideration for prematurely retiring a Government employee then perhaps no employee would be safe even though he may have brilliant record of service in later years.
This aspect was emphasised by this Court in a number of cases namely, Baldev Raj Chadha vs Union of India & Ors., ; ; Briij Bihari Lal Agarwal vs High Court of M.P. & Ors., ; ; Amar Kant Choudhary vs State of Bihar & Ors., ; and J.D. Srivastava vs State of M.P. & Ors., ; This Court has consistently taken the view that old and stale entries should not be taken into account while consid ering the question of premature retirement instead; the entries of recent past of five to ten years should be con sidered in forming the requisite opinion to retire a Govern ment employee in public interest.
It would be unreasonable and unjust to consider adverse entries of remote past and to ignore the good entries of recent past.
We are therefore of the opinion that if entries for a period of more than 10 years past are taken into account it would be an act of digging out past to get some material to make an order against the employee.
In view of this we would confine our scrutiny to the appellant 's record of service for the last 10 years prior to the date on which he prematurely retired.
We would now examine the appellant 's service record for the last 10 years.
On a perusal of the same we find that the appellant was awarded adverse remarks for the year 1971 72 and 1972 73 and for the rest of the years he was not awarded any adverse remarks.
On the other hand for the years 1974 75 and 1975 76 the reporting officer rated him as a 'very good ' officer although the reviewing officer treated him as 'ave rage '.
In 1976 77 the reporting officer rated him as a 'good ' officer while the reviewing officer rated him as an 'average '.
For the year 1977 78, 1978 79 and 1979 80 the reviewing officer assessed his work and conduct 'good '.
During the last 5 years of his service the appellant had earned good entries which are commendable in nature.
Except the two entries awarded to him for the years 1971 72, 1972 73 592 the appellant has not earned any adverse entry reflecting upon his work and conduct.
It is significant to note that in none of those entries his integrity was doubted.
So far as the adverse entries for the year 1971 72 and 1972 73 are concerned the appellant has asserted that even though he had filed representations in accordance with the rules against those entries, his representations had not been considered or disposed of, but the appropriate authority considered those entries against him.
In the counter affidavit filed on behalf of the State it is conceded that the appellant had filed representations against the aforesaid two entries, but the two representations could not be disposed of as the representations were not traceable on the Government file.
The fact however remains that the appellant had filed repre sentations against the aforesaid.
adverse entries and the receipt of the representations is admitted by the Govt.
but those representations were kept pending.
The question which fails for consideration is whether the aforesaid two entries could be taken into consideration in forming the requisite opinion to retire prematurely the appellant from service.
There is no doubt that whenever an adverse entry is awarded to a Government servant it must be communicated to him.
The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries.
If such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justi fied or not.
Making of a representation is a valuable right to a Govt.
employee and if the representation is not consid ered, it is found to affect him in his service career, as in Govt.
service grant of increment, promotion and ultimately premature retirement all depend on the scrutiny of the service records.
In Gurdial Singh Fiji vs State of Punjab & Ors., the appellant therein was denied promotion on account of certain adverse entries against which he had made representation to the Govt.
but for some reason or the other those representations could not be considered or disposed of.
In view of those adverse entries he was not selected for promotion.
This Court while consid ering the effect of non consideration of the representation observed: " The principal is well settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned 593 so that he has an opportunity to improve his work and conduct or to explain the circum stances leading to the report.
Such an oppor tunity is not an empty formality, its object, partially, being to enable the superior au thorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.
Unfortunately, for some reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified.
" After the aforesaid observation this Court directed the State Govt.
to consider and dispose of the representation made by the appellant and thereafter the Selection Committee was directed to consider his case afresh.
In Amar Kant Choudhary vs State of Bihar & Ors.
(supra) the Court again emphasized that adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report.
Unless the repre sentation against the adverse entry is considered and dis posed of it is not just and fair to act upon those adverse entries.
These decisions lay down the principle that unless an adverse report is communicated and representation, if any, made by the employee is considered, it cannot be acted upon to deny promotion.
We are of the opinion that the same consideration must apply to a case where the advese entries are taken into account in retiring an employee prematurely from service.
It would be unjust and unfair and contrary to principles of natural justice to retire prematurely a Govt.
employee on the basis of adverse entries which are either not communicated to him or if communicated representation made against those entries are not considered and disposed of.
The appellant had submitted his representation against adverse entries for the year 1971 72, and 1972 73 and admit tedly those representations were not considered and disposed _of and yet the appropriate authorities considered those entries in forming opinion that the appellant 's premature retirement was in the public interest.
We are, therefore, of the opinion that for this reason the order of the State Govt.
is not sustainable in law.
Though the entire service record of an employee may be considered while considering the question of his premature retirement, but if the service record of the last 10 years of his service do not 594 indicate any deficiency in his work and conduct it would be unjust and unreasonable to retire him prematurely on the basis of entries which may have been awarded to him prior to that period.
In Baldev Raj Chadha vs Union of India & Ors., (supra) this Court held that if an officer had earned no adverse entries atleast for five years immediately before the compulsory retirement, he cannot be cashiered on the score that long years ago his performance had been poor.
It appears that the State of Punjab realised that premature retirement of an employee on the basis of entire service record which may include stale entry, would be unreasonable and it therefore issued Govt.
order on June 22, 1981 direct ing that under the Punjab Civil Services (Premature Retire ment) Rules 1975 it would not be desirable to scrutinize the entire service record of an employee and premature retire ment should not be ordered if during the last 5 years the work and conduct of the employee have been good.
This direc tion was no doubt issued after the appellant was prematurely retired in March 1980 but nonetheless it is apparent that the Govt. had changed its policy in accordance with the decisions of this Court and it had taken a decision not to retire a Govt.
servant if his service record for the last five years did not contain any adverse remarks.
The appel lant had not earned any adverse remarks during the last five years of service; on the other hand he had earned 'good ' and 'very good ' entries during those years.
In this view the Government 's decision to retire the appellant prematurely in exercise of the power under rule 3 is not sustainable in law.
We accordingly allow the appeal, set aside the order of the High Court, ,quash the Govt.
order dated 19.3.1980 and direct that the appellant shall be treated as being in service without break.
He is entitled to his salary, allow ances and such other benefits as may be admissible to him under the rules.
The respondents shall pay the costs of this appeal to the appellant.
S.R. Appeal allowed.

summary/full:
Under Rule 3 of the Punjab Civil Services (Premature Retirement) Rules, 1975, the appropriate authority has the absolute right to retire an employee prematurely, in public interest after giving three months notice in writing on his completion of 25 years of qualifying service or 50 years of age.
The rule does not contain any criteria, or guidelines for the exercise of power, although public interest is specified in the rule, which means power has to be exercised in the public interest only.
The State Government issued a Government Order on September 26, 1975 laying down the guidelines and the procedure necessary to be followed in exercising powers under Rule 3 for premature retirement of a Government employee.
The order stated that the appropriate authority should utilise the power under Rule 3 in a judi cious manner to retire a government employee on formulating its opinion by scrutiny of the confidential reports of the employee and by taking into consideration any other substan tial material, it may have before it.
The order further stated that it was not feasible to lay down any absolute terms as to how many adverse entries about inefficiency or lack of integrity would justify the premature retirement but it laid stress that the service record as a whole would determine the merit of each case.
Paragraph 6 of the letter further stated that remoteness of an adverse entry, the scrutiny of the service record of the employee concerned such as crossing of efficiency bar, confirmation and promo tion to a higher post or any other meritorious service rendered by the employee, would have their relative impor tance.
The order emphasizes that the appropriate authority may consider premature retirement of a government employee if it has reasonable cause to believe that the employee concerned was lacking in 584 integrity irrespective of the assessment of ability and efficiency in work.
It further provides that the appropriate authority should review the cases of employees on their completing 25 years of qualifying service or their attaining 50 years of age.
The government issued another order on August 4, 1978 pointing out that while exercising power under Rule 3 the service of an employee as a whole would determine the merit of each case but if there was a single entry describing the employee concerned having doubtful integrity, that would justify the premature retirement under the rules.
Realising that premature retirement of an employ ee on the basis of entire service record which may include stale entry would be unreasonable the government issued yet another order on 22nd June, 1981 directing that under the Punjab Civil Services (Premature Retirement) Rules, 1975 it would not be desirable to scrutinize the entire service record of an employee and premature retirement should not be ordered if during the last 5 years the work and conduct of the employee have been good.
The appellant who was appointed as Superintendent Quali ty Marking Centre (Scientific Instruments) of the Government of Punjab in 1953 was promoted to the post of Deputy Direc tor (Technical) in 1963 and later in 1968 to the post of Joint Director (Industries) which post he continued to hold till he was prematurely retired by Government Order dated 19th March, 1980 issued in exercise of power under Rule 3 of the Punjab Civil Service (Premature Retirement) Rules, 1975.
The appellant made a representation against the order of premature retirement to the government but the same was rejected, whereupon the appellant challenged the validity of the government order by means of a writ petition under Article 226 of the Constitution before the High Court of Allahabad which was dismissed in limine, on August 5, 1981.
Hence the appeal by special leave.
Allowing the appeal, the court, HELD: 1.
The purpose and object of premature or compul sory retirement of government employee is to weed out the inefficient, corrupt, dishonest of dead wood from the gov ernment service.
This right of the government is well estab lished which is generally exercised in accordance with relevant service Rules.
The scope and ambit of exercise of this absolute power depends on the provisions of Rules and it is always subject to Constitutional limitations.
[588A C] 2.1 The Public interest in relation to public adminis tration envisages retention of honest and efficient employ ees in service and dispens 585 ing the services of those who are inefficient, dead wood or corrupt and dishonest.
Therefore, Rule 3 of Punjab Civil Service (Premature Retirement) Rules, 1975 contemplates premature retirement of the inefficient, corrupt or dead wood which would subserve the public interest.
[589D] 2.2 The executive instructions issued as contained in the three government orders provide sufficient guidance for the exercise of power under Rule 3.
According to these instructions the service record of an employee has neces sarily to be considered while taking decision for the prema ture retirement of an employee and if there was a single entry casting doubt on the integrity of an employee, the premature retirement of such an employee would be in public interest.
In the absence of any details by which the ques tion of public interest would be determined in the Rules it was open to the State Government to issue executive instruc tions for the guidance of the appropriate authority to exercise the power of premature retirement and the instruc tions so issued as contained in the government orders have binding character.
[590B D] 3.1 It is now well settled that adverse entries if any awarded to an employee lose their significance on or after his promotion to a higher post.
It is also well settled that while considering the question of premature retirement it may be desirable to make an overall assessment of the gov ernment servant 's record, but while doing that, more value should be attached to the confidential reports pertaining to the years immediately preceding such consideration.
It is possible that a new entrant to a service may have committed mistakes and for that reason he may have earned adverse entries and if those entries of early years of service are taken into consideration for prematurely retiring a govern ment employee then perhaps no employee would be safe even though he may have brilliant record of service in later years.
It would be unreasonable and unjust to consider adverse entries of remote past and to ignore the good en tries of recent past.
If entries for a period of more than 10 years past are taken into account it would be an act of digging out past to get some material to make an order against the employee.
[591A E] 3.2 In the instant case adverse entries awarded to the appellant prior to 1968 could not be taken into considera tion for the reason that adverse entries for the years 1960 61, 1963 64 and 1964 65 are legally non est on account of the promotion except two entries awarded to him for the years 1971 72, 1972 73 the appellant has not earned any adverse entry reflection upon his work and conduct.
[591H; 592A] Baldev Raj Chadha vs Union of India & Ors., ; ; 586 Brij Bihari Lal Aggarwal vs High Court of A.P. & Ors., ; ; Amar Kant Chowdhary vs State of Bihar & ors.
; , and J.D. Srivastava vs State of M.P. 4.1 There is no doubt that whenever an adverse entry is awarded to a government servant it must be communicated to him.
The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries.
If such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not.
Right to make representation is a valuable right to a government employee and if the representation is not considered, it is bound to affect him in his service career, as in government service grant of increment, promotion and ultimately prema ture retirement all depend on the scrutiny of the service records.
[592D F] Gurdial Singh Biji vs State of Punjab & Ors., , applied.


judgement:
ivil Appeal No. 1262 of 1979 From the Judgment and order dated 3.4.1978 of the High Court of Judicature at Calcutta in Appeal from Appellate Decree No. 1700 of 1972.
S.T. Desai and M.L. Verma for the Appellants.
Govind Mukhoty and R.P. Gupta for the Respondents.
M .N. Krishmani and V. Shekar for the Intervenor.
The Judgment of the Court was delivered by NATARAJAN, J.
This Appeal by Special Leave is by a tenant and is directed against the judgment of the Calcutta High Court in an Appeal against Appellate decree No. 1700 of 1972.
The defence of appellant in the suit filed by the first respondent for eviction was struck out and thereafter a decree for eviction was passed and the said decree was confirmed by the Appellate Court and the High Court and hence this Appeal by Special Leave.
During the pendency of the suit the first respondent had entered into an agreement for sale of his building in which the suit property forms the ground floor to one Ramdir Singh Agarwala but subsequently executed a Sale Deed in favour of one Chidanand Halder.
Ramdin Singh Agarwala filed a suit for specific performance in the Court of the Sub Judge, Alipore and obtained a decree.
The subsequent purchaser Chidanand Halder has filed an appeal against the 564 judgment and decree in the said suit and the appeal is pending disposal before the High Court.
Both the parties, claiming to have acquired title to the building of which the suit property forms a part have filed CMP Nos. 19671 and 32297 of 1986 seeking impleadment in this Appeal.
The first respondent who succeeded to the suit property after the death of his father filed a suit against the appellant and its director the second respondent for eject ment on the ground of default in payment of the monthly rent of Rs. 550 from March 1965 to July 1966.
The appellant filed a written statement denying the default in payment of rent and also filed an application under Section 17(2) of the West Bengal Premises Act, 1956 (for short the Act) to seek the orders of the Court regarding the amount of rent payable to the landlord.
During the pendency of the proceedings the West Bengal Premises Tenancy (Amendment) Ordinance No. VI of 1967 (later replaced by the West Bengal Premises Tenancy (Amendment) Act 30 of 1969) came to be promulgated with effect from 26.8.67.
By Section 2 of the Ordinance Sub Sections (2A) and (2B) to Section 17 of the Act were inserted.
Section 5 of the Ordi nance gave retrospective effect to the amendments by provid ing that the amendments made by Section 2 of the Ordinance shall have effect in respect of all suits including Appeals which were pending at the date of commencement of the Ordi nance.
The amendments inter alia enabled tenants who were in default to apply to the Court and pay the arrears of rent in instalments and thereby avert their eviction.
To avail the benefit of the amended provisions the appellant preferred an application on 22.9.67 i.e. within one month from the date of promulgation of the Ordinance under Section 17(2A)(b) praying for payment of the arrears of rent in instalments.
By Order No. 39 the trial court fixed the amount of arrears payable at Rs. 13,602 and gave directions for the amount being paid in three instalments.
As an error was noticed in the calculation of the rent arrears, the appellant filed a review petition and the Court re fixed the arrears at Rs.9,752 by Order No. 72.
Subse quentiy this order was also revised and eventually the appellant paid the entire arrears of rent in accordance with the directions of the court by 31.7.70.
It may be stated here that the payment covered the period ending with 29.2.1968 i.e. upto the end of the month previous to the date on which Order No. 39 was made, viz. 16.3.
565 In the meanwhile the first respondent had filed an application under Section 17(3) for striking out the defence of the appellant against the delivery of possession of the demised premises for noncompliance with the terms of Section 17(1).
On 14.3.70 the court allowed the said application and struck out the defence of the appellant, on the ground that in paying the rents for the months of September 1968 and March 1969 there had been a delay of 44 days and 6 days respectively and this was in contravention of Section 17(1) of the Act.
Thereafter the suit for eviction was decreed and the said decree came to be confirmed by the Appellate Court and the High Court.
The appellant filed an application on 13.6.70 under Section 148 Civil Procedure Code for extension of time for deposit of amount for the months of September 1968 and March 1969 so as to cover the delays that had occurred in the payment of rent for those two months.
This application was dismissed by the Trial Court on 30.7.70.
It was thereafter the decree for eviction was passed.
Resisting the application under Section 17(3) filed by the first respondent the appellant contended that since he had paid the arrears of rent as per the orders of the Court under Section 17(2A)(b), the first respondent 's suit should be dismissed under Section 17(4) of the Act.
The Trial Court rejected the contention and held that in view of the default in depositing the rent for the months of September 1968 and March 1969 within time i.e. before the 15th of the next succeeding month, the appellant had contravened Section 17(1) of the Act and therefore, the appellant was not enti tled to protection under Section 17(4).
The High Court went a step further and held that even the application under Section 17(2A)(b) was not maintainable and hence the appel lant cannot raise a plea that he had paid the arrears of rent within time and as such the Trial Court should have dismissed the suit under Section 17(4).
The High Court 's reasoning is as under: "In our view, the application under section 17(2A)(b) was not also maintainable.
It is true that section 17 (2A)(b) was made applica ble to pending suits by the Ordinance.
But such applicability will be subject to the limitation imposed by sub section (2B) of Section 17, namely, that an application under sub section (2A)(b) has to be made before the expiry of the time specified in sub section (1) of Section 17 for the deposit or payment of the amount due on account of default in payment of rent.
Under sub section (1) of Section 17 the time specified is one month from the service of 566 the writ of summons on the defendant or where he appears in the suit or proceeding without the writ of summons being served on him, within one month of his appearance.
In the instant case, the summons was served on the defendants on April 6, 1967.
The application under section 17(2A)(b) having been filed on September 22, 1967, it was barred by limita tion . .
In our view, after the expiry of one month of the service of summons on the defendants, they had no right to avail them selves of the provisions of section 17(2A).
Sub section (2B) of section 17 having pre scribed a time limit for an application under sub section (2A), no other period of limita tion can be substituted for the purpose of making an application for instalments.
It is true that the Act is a remedial statute, but that fact does not give the Court jurisdiction to alter the period of limitation as pre scribed by the statute for the purpose of giving relief to the tenant.
If the legisla ture had intended that the tenant in a pending suit would be entitled to make an application under section 17(2A) within one month of the date of promulgation of the Ordinance, it would have expressly provided for the same as it has done in other cases covered by section 17B and 17D." Having regard to the reasons given by the Trial Court and the High Court for striking out the defence of the appellant and the inapplicability of Section 17(4) to the case, two questions fall for consideration, viz. (1) whether the appellant was not entitled to the benefit of Section 17(2A)(b) of the Act since the application under the subsec tion had not been filed within one month from the date of service of the writ of summons and (2) whether in any even the delayed payment of rent for the months of September 1968 and March 1969 necessarily warranted the striking out of the defence.
Mr. S.T. Desai, learned counsel for the appellant, contended that the decisions rendered by the trial court and the High Court are clearly unsustainable.
On the contrary, the learned counsel for the first respondent argued that the trial court and the High Court had acted perfectly in ac cordance with law.
Taking up the first question for consideration we find that the High Court has committed an error in failing to notice the overriding effect of Section 17(2A) and Section 5 of the Ordinance.
Section 17(2A) begins with the words "Notwithstanding anything contained in sub section (1) or sub section (2) on the application of the tenant, the 567 Court may, by order" and then sets out sub sections (a), (b) and the Proviso.
Then comes the all important Section 5 of the Ordinance which is in the following terms: "5.
Retrospective effect.
The amendments made by section 2 shall have effect in respect of all suits including appeals which are pending at the date of commencement of this Ordi nance".
(Emphasis supplied. ) Since the Ordinance came to be replaced long after by the Act, Section 5 of the Ordinance was not reproduced in the Act because it had served its purpose.
What is, however, of significance is that Section 5 of the Ordinance entitled the appellant to file an application under Section 17(2A)(b), in the suit filed by the first respondent which was pending then.
Unfortunately, the High Court has looked only into the Act and not the Ordinance and that is how Section 5 of the Ordinance has escaped its notice.
When Section 17(2A) and Section 5 of the Ordinance are read con jointly it may be seen that it was the intention of the legislature to extend the benefit of sub section (2A) to all pending suits and appeals irrespective of the fact whether the time limit of one month prescribed under Section 17(1) had expired or not.
No other construction is possible be cause any other construction would have the effect of ren dering otiose Section 5 of the Ordinance.
It is a well known rule of interpretation of law that remedial amendments have to be liberally construed so as not to deny its efficacy and it is the duty of the courts to avoid a conflict between two sections.
In Madhav Rao Scindia vs Union of India, AIR S.C. 1971 530 at 576 this Court has held as follows: "The Court will interpret a statute as far as possible, agreeably to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law maker intending injustice and unreason .
A provision in a statute will not be construed to defeat its mainfest pur pose and general values which animate its structure.
" In Dy.
Custodian vs Offl.
Receiver, ; at 225 it was held as follows: "If it appears that the obvious aim and object of the statutory provisions would be frustrat ed by accepting the literal construction suggested by the respondent, then it may be 568 open to the court to enquire whether an alter native construction which would serve the purpose of achieving the aim and object of the Act, is reasonably possible.
" It was the intention of the Legislature to restrict the benefits given under Section 17(2A) to only those tenants against whom suits had been filed within one month prior to the promulgation of the Ordinance, there was no necessity to give retrospectivity to subsection (2A) under Section 5 of the Ordinance.
It has, therefore, to be held that all ten ants against whom suits or appeals were pending on the date of the promulgation of the Ordinance were entitled to seek the benefit of Section 17(2A) by filing an application within one month from the date of promulgation of the Ordi nance.
The High Court was, therefore, in error in holding that the application under Section 17(2A)(b) was itself not maintainable.
If the High Court 's view is to be accepted it would then amount to asking the appellant to perform the impossible i.e. asking the appellant to file an application under Section 17(2A)(b) which came into force on 26.8.67 within one month from 6.4.67 when the suit summons was served.
Therefore the first question has to be answered in favour of the appellant.
The resultant position would then be that in so far as the payment of arrears for the period ending 29.2.68 is concerned, the appellant had complied with the orders of the Court under Section 17(2A)(b) and was therefore entitled to claim the benefit of Section 17(4).
The second question now remains for consideration.
The trial court and the High Court have taken the view that the delayed payment of rent for the months of September 1968 and March 1969 attracted the striking out of the defence under Section 17(3) of the Act.
Sub sections (3) and (4) are worded as under: "(3) If a tenant fails to deposit, or pay any amount referred to in sub section (1) or sub section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub section (2A), or fails to deposit or pay any instalment permitted under clause (b) of sub section (2A) within the time fixed therefore, the Court shall order the defence against delivery of posses sion to be struck out and shall proceed with the hearing of the suit; (4) If a tenant makes deposit or payment as required by sub section (1), sub section (2), or sub section (2A) no decree or order for delivery of possession of the prem ises 569 to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord: Provided that a tenant shall not be entitled to any relief under this sub section if, having obtained such relief once in re spect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.
" Perhaps on a rigid construction of sub section (3) without reference to sub section (4) it may be said that the failure to pay the rent for the months of September 1968 and March 1969 by the 15th of the next succeeding month may afford ground for striking out the defence of the appellant.
But then sub section (3) has to be read and understood with reference to sub section (4) also and in particular its Proviso.
Sub section (4) lays down that when a tenant makes payments as required by sub sections (1), (2) or (2A) no decree or order for delivery of possession shall be made on the ground of default in payment of rent by the tenant.
The Proviso sets out that a tenant who has obtained relief under sub section (4) is not entitled to seek relief once again under the sub section if he has again made default in the payment of rent for 4 months within a period of 12 months.
(Emphasis supplied. ) The Proviso, therefore, makes it clear that if the subsequent default is for a period less than 4 moths within a period of 12 months the tenant can claim relief under the sub section once again.
In this case the previous arrears related to the period ending with 29.2.1968 and those arrears had been paid in compliance of the Court 's order.
The appellant was, therefore, entitled to ask for the dismissal of the suit.
In so far as the subsequent default is concerned, it is well within the limitations prescribed by the proviso to sub section (4).
The default is only for two months and that too in a period of 13 months.
The appel lant will, therefore, be entitled to the protection of the proviso.
The trial court and the appellate court have failed to notice this aspect of the matter.
Even if the proviso is viewed in a limited sense as being attracted only to those cases where there has been full and complete compliance with the provisions of sub section (1) or (2) or (2A) of Section 17 and will not apply to a case as the one on hand, the appellant cannot be denied relief because the words "shall order the defence against delivery of possession to be struck out" occurring in Sec tion 17(3) have to be construed as a directory provision and not a mandatory provision 570 as the word "shall" has to be read as "may".
Such a canon of construction is warranted because otherwise the intendment of the Legislature will be defeated and the class of tenants for whom the beneficial provisions were made by the Ordi nance and the amending Act will stand deprived of them.
We may only refer to two decisions of this Court on this aspect of the matter.
In Govindal Chhagganlal Patel vs Agricultural Produce Market Committee, Godhra, ; , Chandrachud, C.J. speaking for the Court approved the following passage in Crawford on 'Statutory Construc tion ' (Ed. 1940, article 261, p. 516): (SCC p. 487, para 13) "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed.
The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also while considering its nature, its design, and the consequence which would follow construing it the one way or the other.
" In Ganesh Prasad Sah Kesari vs Lakshmi Narain Gupta, ; this Court, dealing with a similar provision for striking out of defence in Section 11A of the Bihar Build ings (Lease, Rent and Eviction) Control Act, 1947 referred to Govindlal Chhagganlal Patel 's case (supra), and held as follows: "Applying this well recognised canon of construction the conclusion is inescapable that the word 'shall ' used in the provision is directory and not mandatory and must be read as 'may '.
" Once the word "shall" used in Section 17(3) is read as "may" and consequently the provision for striking out of the defence is to be read as directory and not mandatory then it follows that the Court is vested with discretion to order either striking out of the defence or not depending upon the circumstances of the case and the interests of justice.
This Court has consistently taken the view that if the Court ' has the discretion not to strike out the defence of the tenant committing default in payment or deposit of rent as required by a provision in any Rent Restriction Act, then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is necessary implication of the discretion not to strike out the defence.
We may only refer in this connection, to three earlier 571 decisions of this Court.
Shyamcharan Sharma vs Dharamdas, ; is a case which arose under the Madhya Pradesh Accommodation Control Act, 1961.
Santosh Mehta vs Om Prakash and Anr., ; and Ram Murti vs Bhola Nath and Another, were cases which arose under the Delhi Rent Control Act, 1958.
The Rent Control Act of Madhya Pradesh as well as the Rent Control Act of Delhi provided that if a tenant failed to make payment or deposit as required by the Section the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application.
In all these cases it has been uniformly held that the powers of discretion vested in the Rent Controller give him further right to condone the delay in deposit or payment of rent for the subsequent months.
In this case the default was not one of non payment of the arrears or the rent for the subsequent period.
The default pertained to belated payments of rent for two months and was, therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature.
Having regard to the intendment of the Act and the nature of the provisions it can never be said that the defaults were of such a serious nature ' as to warrant the court refusing to exercise its discretion and to feel constrained to strike out the defence.
Such being the case the answer to the second question has also to be in favour of the appellant.
The subordinate courts and the High Court were in error in holding that the delayed payment of rent for the months of September 1968 and March 1969 constituted such defaults as necessarily warranted the striking out of the defence under Section 17.
In the light of our conclusions the appeal succeeds and will accordingly stand allowed.
The suit filed by the first respondent will stand dismissed.
In so far as the petitions for impleadment are con cerned, though we heard the arguments of the counsel for the parties, we do not think their presence is necessary in the appeal and hence both the petitions are dismissed.
The parties will pay and bear the respective costs.
A.P.J. Appeal allowed and Petitions dismissed.

summary/full:
The first respondent filed a suit against the appellant and the second respondent for ejectment on the ground of default in payment of the monthly rent.
The appellant denied the alleged default and flied an application under s.17(2) of the West Bengal Premises Tenancy Act, 560 1956 to seek the orders of the Court regarding the amount of rent payable to the landlord.
During the pendency of the proceedings the West Bengal Premises Tenancy (Amendment) Ordinance No. VI of 1967 (later replaced by the WeSt Bengal Premises Tenancy (Amendment) Act 30 of 1969) came to be promulgated with effect from 26.8.67.
By s.2 of the Ordinance subs.(2A) and (2B) to s.17 of the Act were inserted.
Section 5 of the Ordinance gave retro spective effect to the amendments by providing that the amendments made by s .2 of the Ordinance shall have effect in respect of all suits including appeals which were pending on the date of commencement of the Ordinance.
The amendments inter alia enabled tenants who were in default to apply to the Court and pay the arrears of rent in instalments.
To avail the benefit of amended provisions the appellant preferred an application within one month under s.(2A)(b) praying for payment of arrears of rent in instalments.
The trial Court fixed the amount of arrears payable and allowed the payment thereof in three instalments.
The appellant paid the entire arrears of rent on 31.7.70 covering the period ending with 29.2.68.
In the meanwhile the first respondent had filed an application under s.17(3) for striking out the defence of the appellant against the delivery of possession of the demised premises for non compliance with the terms of s.17(1).
Resisting the application the appellant contended that since he had paid the arrears of rent as per the orders of the Court under s.17(2A)(b), the first respondent 's suit should be dismissed under s.17(4).
The trial Court allowed the application and struck out of the defence the appellant on the ground that in paying the rent for the months of September 1968 and March 1969 there had been a delay and thus the appellant had contravened s.17(1) and, therefore, he was not entitled to protection under section 17(4).
The appli cation filed by the appellant under section 148 CPC for extension of time for deposit of amount for the months of September 1968 and March 1969 was dismissed.
The suit was decreed and the decree confirmed by the Appellate Court and the High Court.
The High Court held that even an application under s.17(2A)(b) was not maintainable and hence the appellant cannot raise a plea that he had paid the arrears of rent within time and the trial Court should have dismissed the suit under section 17(4).
Allowing the Appeal and dismissing the Civil Miscellane ous Petitions, 561 HELD: 1.
When s.17(2A) of the West Bengal Premises Tenancy Act, 1956 and s.5 of the West Bengal Premises Tenan cy (Amendment) Ordinance No. VI of 1967 are read conjointly it is clear that the intention of the legislature was to extend the benefit of sub.s (2A) to aH pending suits and appeals irrespective of the fact whether the time limit of one month prescribed under s.17(1) had expired or not.
Any other construction would have the effect of rendering otiose s.5 of the Ordinance.
Since the Ordinance came to be re placed long after by the Act, s .5 of the Ordinance was not reproduced in the Act.
It is significant that s.5 of the Ordinance entitled the appellant to file an application under s.17(2A)(b), in the suit filed by the first respondent which was pending then.
The High Court has looked only into the Act and not the Ordinance and that is how s.5 of the Ordinance has escaped its notice.
The High Court has, there fore, committed an error in failing to notice the overriding effect of section 17(2A) and s.5 of the Ordinance.
[567C E] 2.
If the intention of the legislature was to restrict the benefits given under s.17(2A) to only those tenants against whom suits had been filed within one month prior to the promulgation of the Ordinance, there was no necessity to give retrospectively to s.(2A) under s.5 of the Ordinance.
It has, therefore, to be held that all tenants against whom suits or appeals were pending on the date of the promulga tion of the Ordinance were entitled to seek the benefit of s.17(2A) by filing an application within one month from the date of the promulgation of the Ordinance.
The High Court was, therefore, in error in holding that the application under s.17(2A)(b) was itself not maintainable.
[568B C] 3.
Remedial amendments have to be liberally construed so as not to deny its efficacy and it is the duty of the courts to avoid a conflict between two sections.
[567E] Madhav Rao Scindia vs Union of India, AIR S.C. 1971 530 at 576 and Dy.
Custodian vs Offl.
Receiver, ; at 225, relied upon.
In so far as the payment of arrears for the period ending 29.2.68 is concerned, the appellant had complied with the orders of the Court under s.17(2A)(b) and was, there fore, entitled to claim the benefit of s.17(4).
[568E] 5.
Sub section (3) has to be read and understood with reference to sub s.(4) also and in particular its Proviso.
Sub section (4) lays down that when a tenant, makes payment as required by sub s.(1), (2) or (2A) 562 no decree or order for delivery of possession shall be made on the ground of default in payment of rent by the tenant.
The Proviso sets out that a tenant who has obtained relief under sub.s.(4) is not entitled to seek relief once again under the sub section if he has again made default in the payment of rent for 4 months within a period of 12 months.
The Proviso, therefore, makes it clear that if the subse quent default is for a period less than 4 months within a period of 12 months the tenant can claim relief under the sub section once again.
[569C E] In the instant case, the previous arrears related to the period ending with 29.2.68 and those arrears had been paid in compliance of the Court 's order.
The appellant was, therefore, entitled to ask for the dismissal of the suit.
In so far as the subsequent default is concerned, it is well within the limitations prescribed by the Proviso to sub section (4).
The default is only for two months and that too in a period of 13 months.
The appellant will, therefore, be entitled to the protection of the proviso.
[569E F] 6.
The words "shall order the defence against delivery of possession to be struck out" occurring in s.17(3) have to be construed as a directory provision and not a mandatory provision as the word "shall" has to be read as "may".
Such a canon of construction is warranted because otherwise the intendment of the legislature will be defeated and the class of tenants for whom the beneficial provisions were made by the Ordinance and the Amending Act will stand deprived of them.
[569H; 570A B] Govindlal Chhagganlal Patel vs Agricultural Produce Market Committee, Godhra, ; ; and Ganesh Prasad Sah Kesari vs Lakshmi Narain Gupta, ; , relied upon.
Once the word "shall" used in s.17(3) is read as "may" and consequently the provision for striking out of defence is to be read as directory and not mandatory then it follows that the Court is vested with discretion to order either striking out of defence or not depending upon the circumstances of the case and the interest of justice.
If the Court has the discretion not to strike out the defence of the tenant committing default in payment for deposit of rent as required by a provision in any Rent Restriction Act, then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary implication of the discre tion not to strike out the defence.
[570F H] 563 Shyamcharan Sharma vs Dharamdas, ; ; Santosh Mehta vs Om Prakash and Anr., ; and Ram Murti vs Bhola Nath and Another, , relied upon.
In the instant case, the default was not one of non payment of the arrears of the rent for the subsequent peri od.
The default pertained to belated payment of rent for two months and was, therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature.
Having regard to the intendment of the Act and the nature of the provisions it can never be said that the defaults were of such a serious nature as to warrant the court refusing to exercise its discretion and to fell con strained to strike out the defence.
[571C E]