Justice (Retd. ) Debi Prasad Sarkar v. State of West Bengal
2003-04-28
Bhaskar Bhattacharya
body2003
DigiLaw.ai
JUDGMENT Bhaskar Bhattacharya, J. By this writ application, the petitioner, a Member of West Bengal Human Rights Commission, has challenged Rule 4 and Rule 6 of West Bengal Human Rights Commission (Salaries and Allowances and other terms and conditions of the service of the Members) Rules, 1995 (hereinafter referred to as "the Rules") as ultra vires Article 14 of the Constitution of India as well as the Parent Act being Protection of Human Rights Act, 1993 (hereinafter referred to as "the Act"). 2. The grievance of the writ petitioner is that although according to the provisions contained in the Act, the Members and the Chairperson of a State Commission stand on equal footing, by virtue of Rule 6 enacted in exercise of power conferred under section 41(2)(a) of the Act, the Chairperson has been given authority to grant, refuse, revoke or curtail the leave of a Member. The Rules, according to the petitioner, make discrimination between the Chairperson and Member, inasmuch as, the power to grant or refuse leave of the Chairperson or to revoke or curtail such leave vests in Governor. According to the petitioner, the Chairperson is equal in rank with other Members and he is only first among equals. The petitioner complains that by virtue of the provisions contained in the Rules, the Chairperson has been given right to exercise authority upon Members who are his equals. This, the petitioner contends, violates not only Article 14 of the Constitution of India but also the spirit of the Act. 3. This application is opposed both by the State respondents as well as the proforma respondents viz. the Chairperson and other Members of the Commission. The objections raised by the State respondents may be summarised thus : a) The Act does not make the Chairperson and the Members equal in rank or status. The qualification and terms of office of a Chairperson are different from those of a Member. Under the provisions of the Act, the Chairperson is the Head of the Commission having right to call a meeting and select the place of sitting of Commission and such powers are not vested in Members. Moreover, only a retired Chief Justice can become a Chairperson while no such qualification is necessary for becoming a Member.
Under the provisions of the Act, the Chairperson is the Head of the Commission having right to call a meeting and select the place of sitting of Commission and such powers are not vested in Members. Moreover, only a retired Chief Justice can become a Chairperson while no such qualification is necessary for becoming a Member. Moreover, a Chairperson can be appointed only for one term whereas the Members can be appointed for two terms subject to the condition that such Member should not hold office after attaining the age of 70 years. Therefore, there is nothing wrong in giving power to grant or refuse leave of a Member in favour of a Chairperson. 4. The respondent No. 2 viz. the Chairperson, has filed separate affidavit-in-opposition to the instant writ application and his defense may be summed up thus : a) The application is not maintainable. b) The writ petitioner has not approached the Court with clean hands. Although the petitioner has averred in the writ application that as a mark of protest, he has not been accepting his salaries and that he has not made any leave application to the Chairperson, such statements are not true. The petitioner has not disclosed that since assuming the charge of the office as a Member of the Commission on or about May 16, 2000, the petitioner had regularly submitted applications praying for leave before the Chairperson and that leave on being sanctioned, he had availed of such leave and at present the petitioner has no leave to his credit as a result whereof his salary for the month of December, 2002 had to be withheld. c) From the provisions of the Act it is clear that office of the Chairperson is a separate class by itself. It cannot be equated with that of Members. The Chairperson heads the institution and the qualification required for appointment as Chairperson of a State Human Rights Commission is that the incumbent must be a retired Chief Justice of a High Court in India. Therefore, a Member of a State Commission can never hold the position of Chairperson of a State Commission. Moreover, the Chairperson enjoys a higher salary of scale than that of Members of the State Commission and he receives a higher amount of a certain allowances than those payable to the Members.
Therefore, a Member of a State Commission can never hold the position of Chairperson of a State Commission. Moreover, the Chairperson enjoys a higher salary of scale than that of Members of the State Commission and he receives a higher amount of a certain allowances than those payable to the Members. Since the Chairperson is the Head of the institution, in addition to a status as Member, he has to discharge certain administrative functions. Viewed from these angles, the contention raised by the petitioner should be held as lacking in substance and untenable in law. d) Besides, administratively it is more convenient for the Chairperson to keep proper recording as regards attendance for the Members which perhaps is not feasible for the Governor to keep a record in this regard. The grievance expressed in the writ application has more to do with regularisation of his absence in office rather than a genuine desire to have a declaration that all the Members of the State Commission including the Chairperson hold equal rank and status. 5. Mr. Dhar, the learned Counsel appearing on behalf of the petitioner has vehemently contended that the Chairperson may be the first and foremost among the Members, but not superior to the Members. Higher emoluments payable to the Chairperson, Mr. Dhar contends, cannot be the basis of superiority. According to Mr. Dhar, the Chief Justice of a High Court gets more emoluments than those of other Judges but that fact does not confer on him a superiority over other Judges nor does such fact make him their leave granting authority. Mr. Dhar contends that the Chairperson of the State Commission being a retired Chief Justice cannot claim his superiority over the other Members, when a sitting Chief Justice cannot exercise any power of superintendence over other Judges of the High Court. Mr. Dhar raises a further question as to a situation if a sitting Judge is appointed as a Member of a State Human Rights Commission. According to him, in such a case, such Member cannot be called to be a subordinate to a retired Chief Justice. Mr. Dhar further contends that if the Governor's Office can maintain leave account for the Chairperson, there is no reason why it cannot maintain such leave account of other four Members. Mr.
According to him, in such a case, such Member cannot be called to be a subordinate to a retired Chief Justice. Mr. Dhar further contends that if the Governor's Office can maintain leave account for the Chairperson, there is no reason why it cannot maintain such leave account of other four Members. Mr. Dhar thus prays for a declaration that Rule 4 and Rule 6 are violative of Article 14 of the Constitution of India as well as the spirit of the Act. 6. Mr. Balai Chandra Roy, the learned Advocate General, appearing on behalf of the State has seriously opposed the aforesaid contention of Mr. Dhar and has submitted that although the definition of 'Member' used in the Act and the Rule includes Chairperson, for that reason it cannot be contended that Chairperson and other Members are placed on equal footing. Mr. Roy contends that qualification of the Chairperson is that of a retired Chief Justice which itself shows that the intention of the legislature was to make the Chairperson superior to the other Members of the Commission. He also points out that although the appointments to the post of Chairperson and the Members are given by the President, the terms of office of the Members are not equal to that of Chairperson. Mr. Roy thus contends that there was nothing illegal in making Chairperson, the leave granting authority of the other Members of the Commission. 7. Mr. Dipankar Dutta, the learned Counsel appearing on behalf of the Chairperson and other Members of the Commission, has vehemently contended that this writ application should be summarily dismissed for suppression of material facts. Mr. Dutta contends that the petitioner has not come forward with clean hands and has suppressed the fact that before approaching this Court challenging the vires of Rules 4 and 6 of the Rule, he has availed of such benefit and after the entire leave credited in his favour was exhausted, he has decided to come up with the instant application. Mr. Dutta contends that in order to succeed in an application under Article 226 of the Constitution of India, the petitioners must show that he has not acquiesced in the impugned Rule. Further, the writ application, according to Mr. Dutta, should also be dismissed on the ground of suppression of material fact and on the ground of delay. Mr.
Mr. Dutta contends that in order to succeed in an application under Article 226 of the Constitution of India, the petitioners must show that he has not acquiesced in the impugned Rule. Further, the writ application, according to Mr. Dutta, should also be dismissed on the ground of suppression of material fact and on the ground of delay. Mr. Dutta has also adopted the argument advanced by the learned Advocate General. 8. The first question that requires determination is whether this writ application should be dismissed on the ground of suppression of material fact, alleged misstatement of facts, acquiescence and delay. 9. There is no dispute that in general, relief under Article 226 of the Constitution of India is discretionary, but I am not prepared to accept the contention of Mr. Dutta that relief under Article 226 irrespective of the nature of writ prayed for and right infringed, can be said to be discretionary. A remedy is called discretionary when it is not available as a matter of right but may be refused by the Court on consideration of certain circumstances which disentitle an applicant to the relief even though his legal right has been infringed. For instance, a Court may refuse such discretionary relief if (a) there is an alternative adequate remedy, (b) the conduct of the applicant is such that he does not deserve the discretionary remedy, (c) the grant of remedy would be highly prejudicial, (d) even though the order impugned will be without jurisdiction or otherwise invalid, the effect of quashing it would be to revive another illegal order, (e) the application is a premature one and (f) the relief, if granted, would be ineffective or infructuous. 10. A relief under Article 226 of the Constitution of India is available if ordinary legal right or fundamental right of a person guaranteed by our Constitution is infringed by the action or inaction of the State. Therefore, when a person comes before a Court under Article 226 of the Constitution of India alleging violation of his legal right, the Court may refuse such relief if the aforesaid six conditions exist. However, if infringement of fundamental right is alleged, in such a case, it is the duty of the High Court to enforce fundamental right guaranteed to a citizen and in such a situation, relief under Article 226 cannot be refused.
However, if infringement of fundamental right is alleged, in such a case, it is the duty of the High Court to enforce fundamental right guaranteed to a citizen and in such a situation, relief under Article 226 cannot be refused. It is preposterous to suggest that principle of acquiescence can be applied as a bar to the relief where fundamental right has been transgressed, because there can be no loss of fundamental right merely on the ground of non-exercise of it. [In Re: Kerala Education Bill, AIR 1958 SC 956 (981)], In the case of Amalgamated Coalfields Ltd. & Ors. vs. Janapada Sabha, Chhindwara, reported in AIR 1961 SC 964 , the Supreme Court observed that if a tax imposed is held to be ultra vires, the petition under Article 32 of the Constitution cannot be refused on the ground that the petitioner had been paying the tax without objection for years because such ultra vires tax would encroach upon the petitioner's fundamental right under Article 19(1)(f)(g). 11. As regards the question of delay, the rule which says that the High Court may not enquire into belated and stale claim, is not a rule of law but a rule of practice based on sound and proper exercise of discretion. The principle on which the relief to party on the ground of laches or delay is denied is that the rights which have accrued to others by reason of delay in filing petition should not be allowed to disturb unless there is reasonable explanation for delay. The real test to determine delay in such cases is that the petitioner should come to Court before a parallel right is created and lapse of time is not attributable to any laches or negligence, [see AIR 1992 S.C.W. 3181 at page 3185]. 12. Keeping in view, the aforesaid principle, I now propose to consider the submission of Mr. Dutta. The suppression of material facts alleged by the proforma respondent is that the petitioner has deliberately suppressed the fact that he had applied before the Chairperson for leave and after the entire leave was exhausted he has come forward with the instant application alleging that the rules framed by the respondent are ultra vires Article 14 of the Constitution of India. The proforma respondent has further alleged that although the petitioner joined in the year 2000, he has come up after a long time.
The proforma respondent has further alleged that although the petitioner joined in the year 2000, he has come up after a long time. A fact intended to be suppressed is said to be material if existence of such fact would disentitle the petitioner to the relief claimed. Similarly, a petition can be rejected on the ground of delay if it is shown that in view of such delay, any rights have accrued to other. In the case before us, if the petitioner can establish that rules framed by the respondent really violates Article 14 of the Constitution of India, the same would be void and there cannot be any waiver of any fundamental right. 13. I thus find that a writ application challenging legislative action on the allegation of infringement of fundamental right guaranteed by Constitution cannot be dismissed on the ground of delay or acquiescence of the petitioner. I have already indicated that alleged suppression of fact was not material for the purpose of deciding the main issue whether the impugned Rule ultra vires Article 14 of the Constitution of India. 14. Mr. Dutta, in this connection, placed strong reliance upon the decisions of the Supreme Court in the case of Nain Sukh Das & Ors. vs. State of Uttar Pradesh & Ors., reported in AIR 1953 SC 384 . By relying upon paragraph 7 of the said judgment, Mr. Dutta tried to convince me that the Supreme Court in that case refused to entertain writ application alleging infringement of fundamental right under Article 15(1) of the Constitution of India on the ground of acquiescence. On a careful scrutiny of the said decision, I find that the refusal of relief under Article 32 was really based on the fact that no personal fundamental right under Article 15(1) of the Constitution had been infringed. The Supreme Court, therefore, was of the view that the petitioners had no locus standi under Article 32 although as rate payers of the Municipality they might enforce their legal right [as distinguished from fundamental right] by other remedies. What the Supreme Court said was that the petitioners being Member of general body of rate payers, it could not be said that any discrimination had been practised against them personally by the system of communal representation.
What the Supreme Court said was that the petitioners being Member of general body of rate payers, it could not be said that any discrimination had been practised against them personally by the system of communal representation. Their conduct or acquiescence was mentioned only for the purpose of showing that even the petitioner had felt no personal grievance at the time when discrimination took place. 15. Mr. Dutta also relied upon the decision of the Supreme Court in the case of Tilokchand and Matichand vs. H.B. Munshi, Commissioner of Sales Tax, Bombay & Anr., reported in AIR 1970 SC 898 . In the said case there was sharp division of opinions between Sikri and Hegde, JJ. on one hand and Bachawat and Mitter, JJ. on the other. The former were inclined to allow the petition on the ground of infringement of fundamental rights whereas the latter wanted to dismiss it on the ground of delay, as a result, the decision of Hedayatullah, C.J. as the Fifth Judge became final who agreed with the proposal of the latter. In the said case, the petitioner moved on High Court for relief on the ground that recovery from him was unconstitutional. He set out a number of grounds but did not put forward the ground on which ultimately the recovery was struck down by Supreme Court in another case. That ground was that the provision of the Act was unconstitutional. Therefore, the question was whether the petitioner by filing a fresh writ application under Article 32 of the Constitution of India could take advantage after a lapse of a number of years. He moved High Court and lost but did not come up in appeal to the Supreme Court. His contention was that the ground on which his petition was dismissed by High Court was different and the ground on which the statute was struck down was not within his knowledge and, therefore, he did not know of it and pursue it to the Supreme Court. Hedayatullah, C.J. was of the view that the petitioner could have taken the right ground in High Court and carried it in appeal to the Supreme Court after High Court decided against him. Not having done so and having abandoned his own litigation years ago, His Lordship proceeded, he was not permitted to move fresh writ application.
Hedayatullah, C.J. was of the view that the petitioner could have taken the right ground in High Court and carried it in appeal to the Supreme Court after High Court decided against him. Not having done so and having abandoned his own litigation years ago, His Lordship proceeded, he was not permitted to move fresh writ application. Therefore, in reality, the Supreme Court refused relief to the petitioner in that case on the ground that having lost in the High Court and not having preferred appeal against such order, fresh writ application should be held to be barred by the principle of constructive res judicata. 16. In the case of State of Rajasthan & Ors. vs. D.R. Laxmi & Ors., reported in (1996) 6 SCC 445 , while considering acquisition of land under Land Acquisition Act, 1894, the Division Bench held that the acquired land was not a waste but arable land and, therefore, the exercise of power under section 17(4) of the Act was bad in law and that the substance of notification under section 4(1) of the Act was not published in the locality. The Supreme Court in an appeal against such order held that the order or action if ultra vires, the power becomes void and it does not confer any right but the action is not necessarily to be set at naught in all events. Though the order may be void, the Supreme Court held, if the party does not approach the Court within reasonable time, which always is a question of fact and have the order invalidated but acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, according to the Apex Court the Court may in appropriate case decline to grant the relief, even if it is held that the order was void. 17. Since in the said case the petitioner approached High Court for infringement of ordinary legal right vested in him by Land Acquisition Act, for infringement of such right, the petitioner must fulfill all other conditions as mentioned above inasmuch as the remedy in such a case, is a discretionary one. In those cases, delay or acquiescence may be fatal, as for his inaction or acquiescence, the Government may have preceded for improvement of the land acquired by spending huge amount of money.
In those cases, delay or acquiescence may be fatal, as for his inaction or acquiescence, the Government may have preceded for improvement of the land acquired by spending huge amount of money. Therefore, the said principle cannot have any application to a case where the applicant challenges the legislative action of the State infringing fundamental right of the petitioner. 18. I am, therefore, of the firm view that if a petitioner approaches the High Court alleging infringement of ordinary legal right, in such a case, such remedy is discretionary as pointed out earlier, but if the applicant alleges violation of fundamental right, it is the duty of the High Court to protect such right and there should be no fetter in considering whether the impugned statute infringes any of the provisions of Part III of the Constitution of India. In the case of Tilakchand and Matichand & Ors. (supra) such right was refused on the ground that the right claimed by the petitioner therein had been negatived by a competent Court and that decision having become final as it was not appealed against, he could not agitate the same over again. Thus, if a competent Court holds that he had no such right that decision is binding on him. The binding character of the judgments of Courts of competent jurisdiction is in essence a part of rule of law on which the administration of justice depends and by relying upon such principle, the Supreme Court refused relief to the petitioner in that case. 19. In my view, by taking aid of those decisions, the petitioner cannot be thrown out of writ jurisdiction. 20. The next question is whether Rules 4 and 6 of the Rules infringe Article 14 of the Constitution of India. 21. After hearing the learned Counsel for the parties and after going through the provisions contained in the Act, I find that the State Commission constituted under the Act is required to function like an institution as a whole and while functioning as such, the Chairperson and other Members are required to act together. For the purpose of discharging the duties of Commission, the Chairperson will merely act as a Member thereof with only these differences that the Chairperson shall have the right to fix time and place of the meeting.
For the purpose of discharging the duties of Commission, the Chairperson will merely act as a Member thereof with only these differences that the Chairperson shall have the right to fix time and place of the meeting. Further, all orders and decision of the Commission shall be authenticated by the Secretary General or any other Officer of the Commission duly authorised by the Chairperson. Apart from aforesaid extra powers, the Chairperson has no additional role to play in the matter of working of Commission. The appointing authority of the Chairperson and all the Members is the Governor of State and the authority for removal of those persons is also the same. In the running of the Commission, the opinion of Chairperson has no overriding effect upon all the other Members. The Members of the Commission are in no way under supervision or control of the Chairperson. The Chairperson has no extra power like exercise of casting vote and the opinion of Chairperson can be outweigher by majority of the Members. 22. In exercise of power conferred under section 41 of the Act the State Government has been vested with authority to make rules to carry out the provisions of the Act. By virtue of such power the rules have been framed. Since the object of the Act is to place the Chairperson on the same platform with other Members in the matter of functioning of Commission, while framing rules as regards grant of leave, the State Government should act inconformity with the provisions of the Act itself. In the service jurisprudence equals cannot be the leave granting authority of an employee. To confer power upon a person to grant leave means also to vest such person with the authority to refuse leave. Since the Act does not empower the Chairperson to exercise any act of supervision over the Members of the Commission, in my view, Rule 6 of the Rules framed by State Government violates the aforesaid spirit of the Act. In do not find any substance in the contention of Mr. Roy, the learned Advocate General and Mr. Dutta appearing for proforma respondents that by the Act the Chairperson has been placed in a position superior to that of the Members. I, on the other hand, find substance in the contention of Mr.
In do not find any substance in the contention of Mr. Roy, the learned Advocate General and Mr. Dutta appearing for proforma respondents that by the Act the Chairperson has been placed in a position superior to that of the Members. I, on the other hand, find substance in the contention of Mr. Dhar that the Act having made room for appointing a sitting Judge of a High Court as be a Member of the Commission, a retired Chief Justice of a High Court cannot, at any rate, be made the leave granting authority of a Member. I do not find any merit in the contention of the learned Counsel for the respondents that it will be easier for the Chairperson to keep leave account of the Members. It is rightly contended that if the Governor can maintain such leave account of the Chairperson, there is no reason why he cannot maintain such leave account of 4 other persons who are also the Members of the Commission. The Act having placed the Chairperson and the Members on the same position, the State Government, in my view, by conferring the authority to grant or refuse leave of the Members upon the Chairperson has violated not only the provisions contained in Article 14 of the Constitution of India but also the essence of the Act itself. 23. I now propose to consider the decisions cited by the learned Counsel for the respondents. 24. In the case of Harman Singh & Ors. vs. Regional Transport Authority, Calcutta Region & Ors., reported in AIR 1954 SC 190 , the only point for consideration was whether the issue of licences to small taxi cabs between 10 and 19 H.P to ply in the streets of Calcutta and the fixation of lower rates of tariff for this class of taxi cabs than that prescribed for taxi cabs between 22 and 30 H.P. violated the fundamental rights of the appellants who were owners of taxi cabs between 22 and 30 H.P., under Articles 14 and 19(1)(g) of the Constitution. The Supreme Court answered the aforesaid question in negative by pointing out that in construing Article 14, the courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible.
The Supreme Court answered the aforesaid question in negative by pointing out that in construing Article 14, the courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible. A law applying to a class is constitutional if there is sufficient basis or reason for it. In other words, a statutory discrimination cannot be set aside as the denial of equal protection of the laws if any state of facts may reasonably be conceived to justify it. 25. In my opinion, the principle laid down in the facts of such a case cannot have any application to the present one where there is no basis for different treatment to Chairperson from the one given to the Members when they are equal in the functioning of the Commission. By making Chairperson the leave granting authority, the Members of the Commission have been placed under his control and supervision. The aforesaid decision has thus no application to the fact of the present case. 26. In the case of V.M Sayed Mohammad & Co. & Anr. vs. State of Andhra Pradesh, reported in AIR 1954 SC 314 , the grievance of the petitioner was that the impugned Act singled out for taxing, purchasers of certain specified commodities only but left out purchasers of all other commodities. In such a case, it was pronounced that the grant of equal protection of law does not require that the same law should be made applicable to all persons. According to Supreme Court Article 14 of the Constitution does not forbid classification for legislative purposes, provided that such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question. It was further pointed out that there is a strong presumption in favour of the validity of legislative classification and it is for those who challenge it as unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced. In the said case, there was no material on the record before the Court to suggest that purchasers of other commodities are similarly situated as the purchasers of hides and skins.
In the said case, there was no material on the record before the Court to suggest that purchasers of other commodities are similarly situated as the purchasers of hides and skins. In the case before us, the petitioner has established beyond reasonable doubt that the position of a Member is equal to that of the Chairperson in the matter of functioning of the Commission and the Chairperson cannot be made leave granting authority of the Members which is against the spirit of the Act itself. The aforesaid decision is thus of no avail to the respondents. 27. In the case of District Mining Officer & Ors. vs. Tata Iron and Steel Company & Anr., reported in (2001) 7 SCC 358 , the Supreme Court has merely repeated the well settled principle that a statute has to be construed according to the intent of theme that make it and the duty of the court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature. The function of the court is only to expound and not to legislate. I have already indicated that from the provisions of the entire Act, there is no scope of any doubt that in the matter of functioning of the Commission, the Chairperson and the Members are on equal footing and there was no scope of making Chairperson a supervisor over Members by conferring on him the power of grant of leave or refusal of such leave. Therefore, the aforesaid decision does not help the respondents in any way. 28. In the case of Bharathidasan University & Anr. vs. All India Council for Technical Education & Ors., reported in (2001) 8 SCC 676 , it has been held by the Apex Court that when the legislative intent finds specific mention and expression in the provisions of the Act itself, the same cannot whittled down or curtailed and rendered nugatory by giving undue importance to the so-called object underlying the Act or the purpose of creation of a body to supervise the implementation of the provisions of the Act.
I fail to understand how the said decision can be of any help to the respondent when in the Act itself the Chairperson has not been conferred with additional power over the Members for the purpose of functioning of the Commission; on the other hand, he has been specifically treated as one of the Members. 29. In the case of S.P. Shivaprasad Pipal vs. Union of India & Ors., reported in (1998) 4 SCC 598 , the Supreme Court cited with approval the principles which had been formulated for effecting integration of services of different States. Under such circumstances, it was held that where there were regularly constituted similar cadres in the different integrating units the cadres will be ordinarily integrated on that basis but where there were no such similar cadres, the following factors should be taken into consideration in determining the question of posts: a) nature and duty of a post; b) powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged, c) the minimum qualifications, if any, prescribed for recruitment to the post and d) the salary of the post. 30. In my view, the aforesaid principles cannot have any application to the case in hand where the Act itself recognises selfsame power of Chairperson and the Members by making inclusive definition of "Member" including the Chairperson therein. Thus, the said decision cannot have any application to the fact of the present case. 31. In the case of K. Thimmappa & Ors. vs. Chairman Central Bd. of Dirs., SBI & Anr., reported in AIR 2001 SC 467 , the Supreme Court narrated the well settled principle which should be followed by a Court before considering whether a particular act violates Article 14. It was held that what Article 14 prohibits is class legislation and not reasonable classification for the purpose of legislation. If the rule making authority takes care to reasonably classify persons for a particular purpose and if it deals equally with all persons belonging to a well defined class, then it would not be open to the charge of discrimination. But to pass the test of permissible classification, the Court proceeded, two conditions must be fulfilled viz.
If the rule making authority takes care to reasonably classify persons for a particular purpose and if it deals equally with all persons belonging to a well defined class, then it would not be open to the charge of discrimination. But to pass the test of permissible classification, the Court proceeded, two conditions must be fulfilled viz. (a) the classification must be founded on an intelligible differentia which distinguishes persons or things which are grouped together from others left out of the group; and b) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. In the instant case, I do not find any intelligible differentia which makes Chairperson a leave granting authority of the Members of the Commission and there is no rational relation to the object sought to be achieved by the legislation in question. The object of the Act being that the Commission as a whole will function and the Members and Chairperson will have equal power to take decision, there was no reason why Governor should be made leave granting authority for Chairperson whereas the Chairperson himself should be the leave granting authority of the Members who are placed in the same position with the Chairperson. 32. I thus find that Rule 6 is violative of Article 14 of the Constitution of India if we take into consideration Rule 4 thereof. There was no intelligible differentia for making Chairperson leave granting authority and by reason of such framing of rule the object sought to be achieved by the Act in question has been frustrated. It was never the intention of the legislature that the State Commission should perform its duty through the Chairperson with the assistance of four "Subordinate" Members. 33. I, thus, hold that Rule 6 of the Rule making the Chairperson leave granting authority of other Members violates Article 14 of the Constitution when Governor is the leave granting authority of the Chairperson. I thus strike down the aforesaid rule as unconstitutional. The writ application thus succeeds to the extent indicated above. 34. In the facts and circumstances there will be, however, no order as to costs. Writ application succeeded.