private citizens cannot be drafted for census duty - writ petition
TRANSCRIPT
8/9/2019 Private citizens cannot be drafted for Census Duty - Writ Petition
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ORIGINAL JURISDICTION
WRIT PETITION NO.17983 to 17987 and 17989 to 17993 /2010
(EDN. RES)
Between1 Karnataka Unaided Schools
Management’s AssociationA Registered SocietyRepresented by its PresidentG.S.SharmaAge 85 yearsNo.9, Vanivilas RoadV.V.PuramBangalore 560 004
Senior Citizenship priority not claimed
Petitioners
2 G.V.K. Education SocietyA Registered SocietyRepresented by its SecretarySuresh BabuAge 42 yearsKalidasa LayoutSrinagar
Bangalore 560 050
3 Sudha N.S. Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa Layout
SrinagarBangalore 560 050
4 Thriveni C.P.
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Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050
5 Brunda C Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050
6 Anjana Devi Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050
7 Sapna Gowda Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050
8 Kalai Selvi Teacher at Evershine EnglishSchool
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[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050
9 Shyamala Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050
10 Manjula P Teacher at Evershine English
School[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050
AND
1 Union of IndiaRepresented bySecretaryMinistry of Home AffairsNorth BlockCentral SecretariatNew Delhi 110 001
2 State of KarnatakaRepresented byPrincipal SecretaryRevenue Department
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M.S.BuildingBangalore 560 001
3 Registrar General And CensusCommissioner2A, Man Singh RoadNew Delhi 110 011
4 Director of Census Operations
State of Karnataka7th Floor, E & F WingKendriya Sadan17th Main RoadIInd blockKoramangalaBangalore 560 034
5 Bruhat Bengaluru MahanagaraPalikeRepresented byCommissionerN.R.SquareBangalore 560 002
6 Health OfficerOffice of Medical Officer of Health(MOH)Bruhat Bengaluru Mahanagara
Palike - BasavanagudiIndoor StadiumSunkenahalliBull Temple RoadBangalore 560 019
Respondents
MEMORANDUM OF WRIT PETITON FILED UNDER ARTICLE
226 AND 227 OF THE CONSTITUTION OF INDIA
The Petitioners hereinabove respectfully submit THAT:
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1. Petitioner No.1, the Karnataka Unaided Schools
Management’s Association (KUSMA for short) is organized
as a ‘Society’ whose members are comprised only of
educational institutions in the State of Karnataka. This
‘Society’ is registered under the State Law in force for the
Registration of ‘Societies’ and has been continually
registered at all relevant times – S.No.438/83-84 dated
08-Mar-1984. A copy of the ‘Certificate of Registration’
dated 08-Mar-1984 is produced herewith and marked as
Annexure A. Annexure A is followed by a Retype of
Annexure A.
2. Membership of KUSMA is open only to those educational
institutions which are privately organized and which do not
receive aid1 or assistance of any kind from the Government,
State or Central. Membership to KUSMA is strictly enforced
and the current membership of KUSMA stands slightly
above One thousand and Three hundred private unaided
educational institutions. The Founder and President of
KUSMA, Sri G.S.Sharma, aged 85 years, is authorised and
competent to initiate and conduct this legal proceeding.
3. Petitioner No.2, G.V.K. Education Society is registered under
the State law in force for the registration of societies and
has been so registered at all relevant times - SNo.237/81-
82 dated 23-Oct-1981. A copy of the 'Certificate of
Registration' dated 23-Oct-1981 is produced herewith and
marked as Annexure B. Annexure B is followed by a
Retype of Annexure B.
1 Section 2(18) of the Act defines ‘Grant’ as“means any sum of money paid as aid out of the State funds to anyeducational institution”.
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4. The said G.V.K. Education Society is a member of KUSMA.
Sri Suresh Babu, the Secretary of the said 'G.V.K. Education
Society' is competent to initiate and conduct this legal
proceeding on behalf of the said society.
5. The said G.V.K. Education Society has established an
educational institution for imparting education for standards
1 to VII in Kalidasa Layout, Srinagar, Bangalore. The said
private educational institution is registered as 'Evershine
Primary School' in terms of Section 31 of the Karnataka
Education Act, 1983. A copy of the 'Registration
Certificate' dated 23-Feb-2001 is produced herewith and
marked as Annexure C. Annexure C is followed by a
translation of Annexure C.
6. The said 'Evershine Primary School' does not receive grant
or aid of any kind from the Government, State or Central. As
such, 'Evershine Primary School' shall be referred to
hereinafter as a 'private unaided educational institution'
wherever the context necessitates.
7. Petitioners No.3 to 10 are residents of Bangalore and have
secured the requisite academic qualification to merit
employment as 'teachers' at educational institutions for
Standards I to VII in the State of Karnataka. Petitioners No. 3
to 10 are currently employed as 'teachers' for various
standards at the said 'Evershine Primary School' established
and administered by Petitioner 2 society.
8. The terms of employment under which Petitioners 3 to 10
are employed as 'teachers' with 'Evershine Primary School'
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have been privately negotiated, between 'Evershine
Primary School' and petitioners 3 to 10, individually.
9. Petitioner 2 is a member of Petitioner 1. Petitioners 3 to 10
are employees at the educational institution established
and administered by Petitioner 2 Society. As such,
Petitioners 1 to 10 share a common cause of action against
the Respondents and hence, this common Writ Petition. The
Court fee however, has been individually assessed and paid
against each Petitioner.
10. The Petitioners may be served at their respective address.
The Petitioners may also be served through their Counsel,
Sri K V Dhananjay, Advocate, No.296, Kamakshipalya,
Magadi Main Road, Bangalore 560 079.
11. Respondent No.1 is the Union of India represented by the
appropriate ministry that oversees the enforcement of the
Census Act, 1948, a Parliamentary legislation.
12. Respondent No.2 is the State of Karnataka represented bythe appropriate department that has been entrusted with
the duty to co-ordinate with the Central Government in
relation to the enforcement and implementation of the
Census Act, 1948.
13. Respondent No.3, Registrar General and Census
Commissioner, is the highest executive officer appointed by
the Central Government, in terms of Section 4(1) of the
Census Act, 1948 to aid in the taking of census within
several States.
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14. Respondent No.4, the 'Director of Census operations for the
State of Karnataka' is the office established by the Central
Government for the purpose of taking census in the State of
Karnataka, in terms of Section 4(2)2 of the Census Act,
1948.
15. Respondent No.5 is a municipal corporation established
under Section 33 of the 'Karnataka Municipal Corporations
Act, 1976', represented by its Commissioner. Certain
powers are conferred upon the Central Government, in
terms of Section 4A4 of the Census Act, 1948, to direct a
local authority to depute the staff of such local authority to
perform duties in connection with the taking of census.
16. Respondent No.6, the Health Officer in the Office of Medical
Officer of Health (MOH) for Basavanagudi Zone in the city of
Bangalore is an office subordinate to the Commissioner,
Bruhat Bengaluru Mahanagara Palike ('BBMP' for short).
17. The instant case raises a basic question of law:
Does the Census Act, 1948 authorise the Government to
randomly pick a citizen of India and assign 'Government
2 4(1) The Central Government may appoint a Census Commissioner tosupervise the taking of the census throughout the area in which thecensus is intended to be taken, and Directors of Census Operations tosupervise the taking of the census within the several States.
3 3. The Corporation shall be a body corporate by the name theCorporation of the City of ................ and shall have perpetual
succession and common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract and may, by the said name, sue and be sued.
4 4A. Every local authority in a State shall, when so directed by awritten order by the Central Government or by an authority appointed by that Government in this behalf, make available to any Director of Census Operations such staff as may be necessary for the
performance of any duties in connection with the taking of census.
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work' to such a private citizen and to punish such citizen for
a failure to perform such, forced 'Governmental' work?
18. For a proper appreciation of the facts of this case, a brief
introduction to the law on 'census taking' becomes
essential.
19. The term ‘census’ is ordinarily defined as - the procedure of
systematically acquiring and recording information about
the members of a given population. It is a regularly
occurring and official count of a particular population5.
20. In terms of Schedule VII to the Constitution of India, the
Parliament and the Central Government are exclusively
authorised to legislate in relation to ‘Census’. Entry 69 to
List I (Union List) says:
Entry 69 – Census.
21. Accordingly, the Parliament of India has adopted the Census
Act, 1948, a pre-Constitution enactment by making
appropriate modification and amendment.
22. The Census Act, 1948 has been passed for the purpose of
governing the taking of Census in India or any part thereof.
The Preamble to the said statute says:
WHEREAS it is expedient to provide for the taking of census
in India or any part thereof whenever necessary or
desirable and to provide for certain matters in connection
with the taking of such census.
5 Shepard, Jon; Robert W. Greene (2003). Sociology and You. Ohio:Glencoe McGraw-Hill. pp.A-22. ISBN 0078285763.
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23. There are several aspects of Census taking and the
following factors may be noted in order to appreciate the
requirement and scope of the Census Act, 1948.
24. First of all, extensive human personnel would be required to
take ‘census’ and because ‘census’ is taken even in remote
corners and in villages dotted across the country, the
Government of India is bound to seek assistance of the
State Governments for the purpose of ‘census taking’.
25. Further, in the absence of an appropriate legislation,
employees in service of the Government of India or of the
State Governments could refuse to perform ‘census taking'
on the ground that their employment contracts do not
require the performance of such services.
26. As such, an appropriate legislation becomes necessary to
compel employees in the services of the Government to
perform ‘census taking’ even in the absence of a suitable
provision to such effect in the employment contract.
27. Further, if only the ‘census taking’ is to result in any reliable
data, it would become necessary to ensure by appropriate
legislation that the persons who are presented with
questionnaires and interrogatives are compelled to provide
accurate and complete information.
28. In other words, it would become necessary to ensure that
the citizens who are subject to census do not refuse to
provide such information on one or more grounds such as
invasion of privacy or fear of religious profiling. As such, a
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specific legislation becomes necessary and it ought to
create a legal obligation upon a person subject to 'census'
to furnish 'true information'. Any such legislation that
compels subjects to furnish accurate information within
their knowledge to a ‘census taker’ is further bound to
impose appropriate penalty or punishment for refusal to
furnish such information.
29. Besides, in order to ensure that ‘census taking’ is made
easier, it becomes desirable to ensure, by legislation, that
factories or other establishments that employ large number
of people are subject to special rules whereby, the owner or
manager of such establishment is cast with a legal duty to
furnish information to the ‘census officer' in relation to
persons or employees under his care.
30. Thereafter, for the proper taking of ‘census’, private
property may have to be requisitioned under certain
circumstances. It would become necessary for the
appropriate legislation to enumerate the circumstances
under which, private property could be requisitioned for thepurpose of ‘census taking’. Further, such a law is bound to
furnish the procedure and the mode by which,
compensation is determined and distributed to the person
whose property is sought to be requisitioned by the
Government.
31. All of the above aspects have been incorporated into the
‘Census Act, 1948’, (referred to hereinafter variously as
'Census Act', 'Act' or 'statute') a statute passed prior to the
coming into force of the ‘Constitution of India’ and
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thereafter, modified and adopted in the manner stipulated
in the Constitution of India.
32. This petition is concerned with the extent of powers
conferred by the Census Act, 1948 upon the Central and
State Governments, in the matter of entrusting persons with
'census taking duty'.
33. Section 3 of the Census Act provides that the Central
Government should formally notify every census taking in
its Official Gazette.
34. Section 4 of the Act deals with the manner and mode of
designating employees already in service of the Central and
State Government to perform the work of ‘census taking’.
35. Section 5 provides that the employees of the Central and
the State Government, designated as ‘census officers’ in
terms of Section 4 shall be deemed to be ‘public servants’.
36. Sections 6 and 7 speak of the powers that may be invested
in a District Magistrate or other officer under the service of
the State Government.
37. Sections 7A to 7H deal with requisition of private property
and the mode and manner of determination and payment of
compensation in relation to the private property sought to
be requisitioned.
38. Section 8 empowers a census officer to ask such questions
as may be necessary to accomplish the taking of census
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and a corresponding legal obligation is thrust upon every
person who is subject to such questioning to provide
answers thereof, to the best of his knowledge or belief.
39. Section 9 speaks of the extent of physical access that may
be demanded by a census officer in relation to a house,
vessel, enclosure or other place.
40. Section 10 authorises a census officer to leave behind, a
schedule or questionnaire at certain premises and a
corresponding legal obligation is thrust upon the persons, in
occupation or custody of such premises, to complete the
schedule or questionnaire.
41. Section 11 is the penal part of the statute. It categorises
offences under the Act into several parts and subjects all
offences to a fine of not more than Rs.1000. Offences
specified in parts a, aa, b, c, ca could lead to imprisonment
for a term not exceeding 3 years.
42. Section 12 specifies the pre-condition for prosecution in
relation to certain persons – the previous sanction of the
Central or the State Government is mandated in certain
cases.
43. Section 13 saves other penal statutes by providing that no
act or omission taken under this statute shall be immune
from prosecution under any other statute should such act or
omission constitute an offence under such other statute.
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44. Section 14 speaks of the class of courts that are competent
to try offences under this statute.
45. Section 15 speaks of secrecy in relation to records obtained
as a result of census taking. Section 15A provides that no
person partaking in census shall be subject to any disability
or deprivation in relation to his employment. Section 15B
immunizes official acts taken under the Act from
prosecution or liability in any suit or court.
46. Section 16 overrides any provision to the contrary in any
municipal statute whereby the taking of census in relation
to such municipality is governed by a process contrary to
the process prescribed in this statute – by providing for
concurrent taking of census in relation also to such
municipality.
47. Section 17 authorises certain officers of the Central
Government to put data derived from census report to any
use as such officers may deem ‘reasonable’.
48. Section 17A authorises the Central Government to extend
all or any of the provisions of this statute to tasks that may
not be ‘census’ in the strict sense – such as pre-tests and
pilot studies.
49. Section 18 prescribes the extent, mode and manner of
making of rules by the Central Government.
The facts relevant to the instant petition are as under:
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50. Pursuant to requests from the 'Director of Census
operations for the State of Karnataka' (Respondent 4), the
Government of Karnataka has, by a Notification No.RD 20
ETC 2009, dated 02-Dec-2009, appointed the
Commissioner, Bangalore Bruhat Mahanagara Palike
(Respondent 5), as the Principal Census Officer. A copy of
the said Notification is produced herewith and marked as
Annexure D. In pertinent part, the said Notification says:
In exercise of the powers conferred by sub-section (2) of
Section 4 of the Indian Census Act, 1948 (Act No.37 of
1948) the Government of Karnataka is pleased to appoint
the following authorities as Principal Census Officers within
the meaning of the said sub-section to supervise the taking
of the Census within their respective areas, namely:
2. Commissioner, Bruhat Bangalore Mahanagara Palike
In pursuance of section 12 of the said Act the Government
of Karnataka are also pleased to authorise the above
mentioned authorities for the purpose of said section within
their respective jurisdiction.
51. Thereafter, the Commissioner, BBMP, has, by Notification
No.B12 (1) PR/159/2009-10 dated 04-Jan-2010,
deemed it fit to further appoint as 'census officers',
employees of the BBMP. A copy of the said Notification is
produced herewith and marked as Annexure E. In
pertinent part, the Notification says:
"In exercise of the powers delegated by Government vide
Notification No.RD 20 ETC 2009 dated 02-Dec-2009, the
undersigned under sub-section (4) of Section 4 of the India
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Census Act, 1948 (Central Act No.37 of 1948) hereby
appoints the officers noted in col.3 as, Census Officers, with
Designation noted in col.4 for the jurisdiction noted in col.5
of the table given below for the purpose of 2011 Census."
52. In the said Notification produced as Annexure E, item
No.140 reads as under:
Sl.No. Administrative
Unit
Name &
Designation
Appointed
as
Jurisdiction
(Name of
Zone/LA No.)Col.1 Col.2 Col.3 Col.4 Col.5
140 O/o MOH
Basavanagudi
Indoor Stadium
Sunkenahalli
Bull Temple Road
Bangalore 560
019
Dr.Venugopal
MOH
Charge
Officer
156
53. Again, pursuant to the above Notification, the Government
of Karnataka has deemed it fit to delegate even further - It
has issued another Notification No.RD 102 ETC 2009
dated 15-Feb-2010 whereby, 'census officers' already
appointed under Notification cited as Annexure E above are
given the further power to again appoint 'census officers'. A
copy of this Notification is produced herewith and marked
as Annexure F. In pertinent part, this Notification says:
In exercise of the powers conferred by sub-section (4) of
Section 4 of the Indian Census Act, 1948, the Government
of Karnataka is pleased to delegate the powers of
appointing Census officers under Sub-Section (2) of Section
4 of the said Act to all the authorities appointed as Census
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Charge Officers Rural/Urban by the Deputy Commissioners
of the districts and Commissioners of the City Corporations
and further to authorise these authorities in pursuance of
Sub-section (3) of section 4 of the Indian Census Act, 1948
to sign the declaration in writing under the said sub-section.
54. The Health Officer in the Medical Officer of Health (MOH) in
Basavanagudi Zone (Respondent 6), has thereafter, illegally
proceeded to issue Notices to petitioners 3 to 10 seeking to
appoint these private citizens as 'census officers'. On 26-
Mar-2010, the Respondent 6 has addressed Notices to
Petitioners 3 to 10 who are teachers at 'Evershine English
School', a private unaided educational institution
established and administered by Petitioner 2 Society. The
said Notices are produced herewith and marked as
Annexure (named in column 2 below)
Name of the
Teacher
Petitioner herein Notice is produced
herewith and
marked as
AnnexureSudha N.S. Petitioner No.3 Annexure G
Thriveni C.P. Petitioner No.4 Annexure H
Brunda C Petitioner No.5 Annexure J
Anjana Devi R Petitioner No.6 Annexure K
Sapna Gowda Petitioner No.7 Annexure L
Kalai Selvi Petitioner No.8 Annexure M
Shyamala. Petitioner No.9 Annexure N
Manjula P Petitioner No.10 Annexure O
55. In pertinent part, Annexure G to O say:
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Subject: Census Duty - Houselisting and Housing Census
and preparation of National Population Register -
Appointment as Enumerator regarding:
In exercise of the powers conferred upon me under sub-
section 4 of Section 4 and section 7 of the Census Act, 1948
(37 of 1948) and Rule 5 of the Citizenship (Registration of
Citizens and Issue of National Identity Cards) Rules, 2003
and the powers delegated by the State Government of
Karnataka vide Notification No.RD 102 ETC 2009, Bangalore
dated 15-Feb-2010, I hereby appoint you as enumerator for
the houselisting Block No.33, the details of which are given
overleaf.
By virtue of this appointment, you are deemed to be a
public servant within the meaning of the Indian Penal Code.
You may note that refusing Census Duty is an offence which
is punishable with imprisonment up to three years.
The duties and responsibilities of the enumerator and the
relevant provisions of the Census Act, 1948 and Citizenship
Rules, 2003 are given in the instruction manuals of House
listing and Housing Census and NPR for your information
and compliance.
56. The legality of the Notices (Annexure G to O) is the subject
of this Writ petition.
57. At the very outset, the petitioners submit that teachers or
other personnel who are employed in private unaidededucational institutions are not ‘Government employees’.
For that matter, teachers in private unaided schools are not
to be treated as ‘quasi or semi Government employees’
either.
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58. The Petitioners submit that a private educational institution
that does not receive any aid or grant or other financial
assistance from the Government cannot be ordinarily
subject to any requisition law unless the language of such
law is clear, unambiguous and certain.
59. The Petitioners submit that a large number of teachers in
private unaided educational institutions happen to work
under temporary tenure and their availability beyond a
given academic year is never known in advance.
60. The Petitioners submit that teachers in private unaided
educational institutions prefer to not be subject to service
rules as are applicable to Government employees.
61. The Petitioners submit that teachers have repeatedly
expressed their reluctance to participate in Census work
owing to several factors – health, shift in working hours or
assignments, possible resignation to pursue higher studies
or additional training, temporary resignation to attend to
domestic affairs and so on.
62. The Petitioners further submit that the profession of
teachers is an exalted one in our society and it would be
imprudent to treat them as residual labourers; their skills
are always necessary for the proper administration of
education and the Petitioners would like to submit that the
birthday of our Second President, Shri Sarvepalli
Radhakrishnan6 is commemorated as ‘Teacher’s Day’ for a
noble set of reasons.
6 May 13, 1962 to May 13, 1967
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63. The Petitioners further submit that teachers are pained to
think of themselves as ‘multi-purpose labourers’ or ‘bonded
labourers’ in view of the manner their services are sought in
relation to activities other than ‘teaching’. They are of the
apprehension that they are unable to do justice to their core
function – to teach.
64. The Petitioners submit that the taking of Census work is
clearly laudable and the instant petition should not be read
as an effort to undermine the importance of Census work.
Nevertheless, special obligations cast upon teachers of
private unaided educational institutions render it
undesirable and improper for them to participate in Census
taking.
65. Teachers at private unaided educational institutions are
private citizens who have made a conscious choice of a
private employer as opposed to employment under the
Government. The Respondents do not possess any legal
authority to override such choice of teachers who have
chosen employment at private unaided educationalinstitutions.
66. The Petitioners submit that Notices marked as Annexure G
to O refer to sub-sections (2) and (4) of Section 4 of the
Census Act, 1948. Section 4 of the Census Act, 1948 is
produced hereunder:
Section 4. (1) The Central Government may appoint a
Census Commissioner to supervise the taking of the census
throughout the area in which the census is intended to be
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taken, and Directors of Census Operations to supervise the
taking of the census within the several States.
(2) The State Government may appoint persons as census-
officers with such designations as that Government may
deem necessary to take, or aid in, or supervise the taking
of, the census within any specified local area and such
persons, when so appointed, shall be bound to serve
accordingly.
(3) A declaration in writing, signed by any authority
authorized by the State Government in this behalf, that any
person has been duly appointed a census-officer for any
local area shall be conclusive proof of such appointment.
(4) The State Government may delegate to such authority
as it thinks fit the power of appointing census-officers
conferred by sub-section (2).
67. Section 4 of the Census Act, 1948 is discussed below in
greater detail:
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(1) The CentralGovernment may appoint a CensusCommissioner tosupervise thetaking of thecensus throughout the area in whichthe census isintended to betaken, and
Directors of Census Operationsto supervise thetaking of thecensus within theseveral States.
As may be seen from a barereading of the above provision, sub-section (1) is concerned with theappointment by the CentralGovernment of a CensusCommissioner to supervise thetaking of Census. Further, theCentral Government may alsoappoint a ‘Director of Censusoperations’. Accordingly,
Respondents No.3 and 4 have beenappointed in terms of this provision- Section 4(1).
(2) The StateGovernment may appoint persons ascensus-officerswith suchdesignations asthat Government may deemnecessary] to take,or aid in, or supervise thetaking of, thecensus within any specified local areaand such persons,when soappointed, shall bebound to serveaccordingly.
The Petitioners submit that Entry 69to the Union List of Schedule VII toour Constitution specifies ‘Census’ .
Accordingly, the Parliament or theCentral Government alone maymake laws in regard to ‘Census’.However, any such law may validlydelegate to a ‘State’ or to the ‘StateGovernment’ , ‘power’ or 'do specificacts' subject to such terms andconditions as may be deemed fit.
Accordingly, Sub-section (2) speaks
of the authority of the StateGovernment to appoint persons asCensus Officers to aid in the takingof the Census and a person oncedesignated and appointed as a‘Census Officer’ is mandated toserve according to the terms of his‘appointment’. The petitionerssubmit that there is nothing in thisprovision to suggest that private
employees may be requisitioned forperformance of census duty. Allthat this provision does is torecognise the authority in a StateGovernment to also make suitableappointments to ensure that thetaking of the Census by the Central
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Government is facilitated. As such,this provision cannot authorise aState Government or its delegate torequisition private employees forcensus work.
(3) A declaration inwriting, signed by any authority authorized by the
State Government in this behalf, that any person hasbeen duly appointed acensus-officer for any local area shallbe conclusive proof of suchappointment.
Sub-section (3) prescribes the modeof appointment and states that adeclaration in writing by anyauthority authorized by the StateGovernment shall be treated asproof of such appointment. That is,this provision merely waives themaking of a Notification for everyappointment.
(4) The StateGovernment may delegate to suchauthority as it thinks fit the power of appointing census-officers conferred by sub-section (2).
Sub-section (4) authorises the StateGovernment to delegate to anyauthority under it, the power of appointing census-officers. Thisprovision authorises delegation.
That is, this provision cannotbecome the source of any power – itis merely the delegation of a pre-existing power.
68. The Petitioners submit that, as may seen from the above,
Section 4 of the Census Act, 1948 does not authorize the
State Government to issue any Notification to designate any
class of private citizens as Census Officers; all that the said
provision authorizes is to facilitate a State Government to
appoint individuals, employees or officers under the State
Government to act as Census Officers.
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69. The Petitioners submit that, for the sake of completeness,
the Petitioners would like to navigate through various other
provisions of the Census Act, 1948 with a view to establish
that the requisition of private employees is nowhere
contemplated, let alone, authorized by the Census Act,
1948.
70. The Petitioners submit that Section 4A of the Census Act,
1948 speaks of a duty in a Local Authority, when so directed
by the Central Government or its delegate, to furnish such
staff as may be necessary for the taking of Census. It says:
4A. Every local authority in a State shall, when so directed
by a written order by the Central Government or by an
authority appointed by that Government in this behalf,make available to any Director of Census Operations such
staff as may be necessary for the performance of any duties
in connection with the taking of census.
71. The Petitioners submit that a bare reading of the above
provision makes it clear that it vests a duty in every local
authority in a State to make available to the CentralGovernment or its delegate (which, generally is the Director
of Census Operations that is Respondent No 4 ), such staff
as may be necessary for the taking of Census. Accordingly
the Bruhat Bengaluru Mahanagara Palike, (‘BBMP’ for short)
which is established under the Karnataka Municipal
Corporations Act, 1976 (Respondent No 5) and which is
clearly a ‘local authority’ for the purpose of Census Act,
1948 is under a legal duty to furnish such staff as might be
requisitioned by the Director of Census Operations
(Respondent 4). Section 4A merely describes a duty and
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may be treated as a source of power to the extent, the
BBMP (Respondent 5) must compel its own employees or
persons under its control to proceed to work for the purpose
of census taking.
72. The Petitioners submit that, no authority is conferred upon
the BBMP to thereafter requisition employees of private
unaided schools. BBMP, the Respondent 5, is itself a
statutory body established in terms of the provisions of
Karnataka Municipal Corporation Act, 1976. It has such
powers conferred by its statute and no further – of course, it
has all the incidental, implied or necessary powers under its
charter. There is no provision whatsoever under the said
Karnataka Municipal Corporations Act, 1976 authorizing the
BBMP to requisition private citizens or teachers of private
unaided schools for the purpose of discharging its own
obligation thrust under Section 4A of the Census Act, 1948.
73. The Petitioners submit that, Section 6 of the Census Act,
1948 may also be examined in this context. The Section
says:
Section 6 (1) Where the District Magistrate, or such
authority as the State Government may appoint in this
behalf, by a written order so directs
(a) every officer in command of any body of men belonging
to the naval, military or air forces, or of any vessel of war,
of India,
(b) every person (except a pilot or harbourmaster) having
charge or control of a vessel,
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(c) every person in charge of a lunatic asylum, hospital,
workhouse, prison, reformatory or lock-up or of any public,
charitable, religious or educational institution,
(d) every keeper, secretary or manager of any sarai, hotel,
boarding-house, lodging-house, emigration depot or club,
(e) every manager or officer of a railway or any commercialor industrial establishment, and
(f) every occupant of immovable property wherein at the
time of the taking of the census persons are living
shall perform such of the duties of a census-officer in
relation to the persons who at the time of the taking of the
census are under his command or charge, or are inmates of
his house, or are present on or in such immovable property
or are employed under him as may be specified in the
order.
(2) All the provisions of this Act relating to census officers
shall apply, so far as may be, to all persons while performing such duties under this section, and any person
refusing or neglecting to perform any duty which under this
section he is directed to perform shall be deemed to have
committed an offence under section 187 of the Indian Penal
Code.
74. The Petitioners submit that a bare reading of the aboveprovision clearly establishes that it cannot become the
source of any authority to the Respondents to requisition
private employees or teachers employed in private unaided
educational institutions.
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75. The Petitioners submit that Clause (c) to sub-section 1 of
Section 6 vests an authority in a District Magistrate or other
officer acting under authority of the State Government to
compel a person who is in charge of an educational
institution to perform the role of collecting information from
persons who are under his command or charge. At best, this
provision could impose a duty upon the management of an
educational institution to furnish such information as may
be sought by the District Magistrate in relation to persons
who are under the command or charge of such educational
institution.
76. The Petitioners submit that it is desirable that a person in
charge of an institution should be made responsible to
furnish information in relation to persons who are under the
command of such institution. The taking of Census is made
easier if, instead of say, visiting every worker in a factory in
order to obtain information about such worker, the owner or
manager of that factory is instead approached by the
Government and data is obtained from such owner or
manager. However, in order to ensure that there is a legalobligation upon such owner or manager to furnish such
data, Section 6 of the Census Act, 1948 creates a duty in
such owner or manager. The scope of Section 6 is clearly
limited to such creation of a legal duty in a person who is in
charge or command of institutions which employ or
otherwise deal with people in a fiduciary capacity.
77. The petitioners further submit that, even for the sake of
argument, it would not be possible to infer that the
aforesaid provision authorises the management of an
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educational institution to depute its employees to proceed
to Census work.
78. The Petitioners submit that if only the management of an
educational institution should be held to a duty to depute its
staff to act as census officers in terms of clause (c) to sub-
section (1) of Section 6, it should be equally possible to hold
that, in terms of the same provision that, the person in
charge of a lunatic asylum should depute lunatics under his
care to act as census officers. The critical part of Section
6(1) (c) may be noted:
Section 6 (1) (c): Where the District Magistrate, or such
authority as the State Government may appoint in this
behalf, by a written order so directs every person in chargeof a lunatic asylum, hospital, workhouse, prison,
reformatory or lock-up or of any public, charitable, religious
or educational institution shall perform such of the duties of
a census-officer in relation to the persons who at the time
of the taking of the census are under his command or
charge, or are inmates of his house, or are present on or in
such immovable property or are employed under him as
may be specified in the order. (emphasis supplied)
79. The Petitioners submit that the Respondents are bound to
see that such an erroneous interpretation is clearly absurd
and abhorrent to the rule of law.
80. The Petitioners therefore submit that Section 6 of the
Census Act, 1948 cannot be a source of any power to the
Respondents to requisition teachers of private unaided
educational institutions.
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81. The Petitioners further submit that Section 7 of the Census
Act 1948 may also be noted for the sake of argument. It
says:
7. The District Magistrate, or such authority as the State
Government may appoint in this behalf for any local area,
may, by written order which shall have effect throughout
the extent of his district or of such local area, as the case
may be, call upon –
(a) all owners and occupiers of land, tenure-holders, and
farmers and assignees of land revenue, or their agents,
(b) all members of the district, municipal, panchayat and
other local authorities and officers and servants of such
authorities, and
(c) all officers and members of staff of any factory, firm or
establishment, to give such assistance as shall be specified
in the order towards the taking of a census of the persons
who are, at the time of the taking of the census, on the
lands of such owners, occupiers, tenure-holders, farmers
and assignees, or in the premises of factories, firms and
other establishments, or within the areas for which such
local authorities are established, as the case may be, and
the persons to whom an order under this section is directed
shall be bound to obey it and shall, while acting in
pursuance of such order, be deemed to be public servants
within the meaning of the Indian Penal Code
82. The Petitioners submit that, Section 7 continues from where
Section 6 ends. Section 6 allows the District Magistrate to
vest a duty in the owner or manager of, say, a factory to
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furnish information in relation to persons under his
command or charge. Section 7 deals with the possibility of
the staff of such a factory refusing to furnish information
asked of them by the owner or manager. That is, Section 7
furnishes an answer to the following questions - What if, the
owner or manager seeks certain assistance from his staff or
other persons for the due discharge of his duties and such
staff or other persons refuse to assist the owner or
manager? What if, even where the owner or manager is not
directed to collect information in relation to his staff, his
staff does not cooperate when other census officers visit
the factory premises and seek the assistance of the staff?
83. The Petitioners submit that Section 7 creates a duty in
persons whose assistance is necessary for the taking of
census to act in such manner as will facilitate the taking of
census. In doing so, the scope of Section 7 is greatly
curtailed by the statute. The assistance required of a person
is always ‘in relation to persons confined to such land,
factory, firm or establishment’. An employee of a private
organization may be directed to assist in the taking of census of other co-employees only. To illustrate, an
employee of Factory A, a private firm, may be directed to
assist in the taking of census of other employees of Factory
A only. No part of Section 7 authorizes a District Magistrate
to direct employees of Factory A to assist in the taking of
census of employees of Factory B. The language of Section
7 is emphasised below:
…to give such assistance as shall be specified in the order
towards the taking of a census of the persons who are, at
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the time of the taking of the census, on the lands of such
owners, occupiers, tenure-holders, farmers and assignees,
or in the premises of factories, firms and other
establishments, or within the areas for which such local
authorities are established, as the case may be, and the
persons to whom an order under this section is directed
shall be bound to obey it and shall, while acting in
pursuance of such order, be deemed to be public servants
within the meaning of the Indian Penal Code. (emphasis
supplied)
84. The Petitioners further submit that the reference to Section
7 of the Census Act, 1948 in the impugned Notices is
without the authority of law; the petitioners have not been
able to locate any Notification that would authorise
Respondent 6 to exercise the powers stipulated under
Section 7 of the Census Act, 1948. Nevertheless, the
Petitioners also proceed to question the applicability of
Section 7 of the Census Act, 1948 to petitioners 3 to 10,
assuming that Respondent 6 was properly authorised to
invoke powers under Section 7 of the Act.
85. The Petitioners submit that accordingly, the requisition of
private employees or teachers of private unaided
educational institutions in the manner sought by Notices
appended hereto is wholly beyond the scope of the
provisions of the Census Act, 1948 as discussed above.
86. The Petitioners further submit that Section 7A and its
extensions deal with requisition of property. The extent of
detail and the standard of care that the Census Act, 1948
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adopts in the matter of requisition of mere property should
by itself lead any reasonable person to conclude that the
language of the provisions discussed above – Sections 4,
4A, 6 and 7 – afford no authority whatsoever to the
Respondents to requisition private employees in the manner
reflected in the impugned Notices. For the sake of
convenience, Sections 7A and its extensions purely dealing
with requisition of property are reproduced below:
7A. (1) If it appears to the Central Government that, in
connection with taking of a census, -
(a) any premises are needed or are likely to be needed, or
(b) any vehicle, vessel or animal is needed or is likely to be
needed, that Government may by order in writing
requisition such premises, or vehicle, vessel or animal, as
the case may be, and make such further orders as may
appear to it to be necessary or expedient in connection with
the requisitioning.
(2) The requisition shall be effected by an order in writing
addressed to the person deemed by the Central
Government to be the owner or person in possession of the
property, and such order shall be served in the prescribed
manner on the person to whom it is addressed.
(3) Whenever any property is requisitioned under
subsection (1), the period of such requisition shall not
extend beyond the period for which such property is
required for any of the purposes mentioned in that sub-
section.
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7B. (1) Whenever in pursuance of section 7A the Central
Government requisitions any premises, there shall be paid
to the persons interested compensation the amount of
which shall be determined by taking into consideration the
following, namely:-
(i) the rent payable in respect of the premises or if no rent
is so payable, the rent payable for similar premises in the
locality;
(ii) if in consequence of the requisition of the premises the
person interested is compelled to change his residence or
place of business, the reasonable expenses (if any)
incidental to such change:
Provided that where any person interested being aggrieved
by the amount of compensation so determined makes an
application within the prescribed time to the Central
Government for referring the matter to an arbitrator, the
amount of compensation to be paid shall be such as the
arbitrator appointed in this behalf by the Central
Government may determine:
Provided further that where there is any dispute as to the
title to receive the compensation or as to the
apportionment of the amount of compensation, it shall be
referred by the Central Government to an arbitrator
appointed in this behalf by that Government for
determination, and shall be determined in accordance with
the decision of such arbitrator.
Explanation – In this sub-section, the expression ‘person
interested’ means the person who was in actual possession
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of the premises requisitioned under section 7A immediately
before the requisition, or where no person was in such
actual possession, the owner of such premises.
(2) Whenever in pursuance of section 7A the Central
Government requisitions any vehicle, vessel or animal,
there shall be paid to the owner thereof compensation the
amount of which shall be determined by the Central
Government on the basis of the fares or rates prevailing in
the locality for the hire of such vehicle, vessel or animal:
Provided that where the owner of such vehicle, vessel or
animal being aggrieved by the amount of compensation so
determined makes an application within the prescribed time
to the Central Government for referring the matter to an
arbitrator, the amount of compensation to be paid shall be
such as the arbitrator appointed in this behalf by the
Central Government may determine:
Provided further that where immediately before the
requisitioning the vehicle or vessel was by virtue of a hire
purchase agreement in the possession of a person other
than the owner, the amount determined under this sub-
section as the total compensation payable in respect of the
requisition shall be apportioned between that person and
the owner in such manner as they may agree upon, and in
default of agreement, in such manner as an arbitrator
appointed by the Central Government in this behalf may
decide.
7C. The Central Government may, with a view to
requisitioning any property under section 7A or determining
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the compensation payable under section 7B, by order,
require any person to furnish to such authority as may be
specified in the order such information in his possession
relating to such property as may be so specified. .
7D. Any person authorized in this behalf by the Central
Government may enter into any premises and inspect such
premises and any vehicle, vessel or animal therein for the
purpose of determining whether, and if so in what manner,
an order under section 7A should be made in relation to
such premises, vehicle, vessel or animal, or with a view to
securing compliance with any order made under that
section
7E. (1) Any person remaining in possession of any
requisitioned premises in contravention of any order made
under section 7A may be summarily evicted from the
premises by any officer empowered by the Central
Government in this behalf.
(2) Any officer so empowered may, after giving to any
woman not appearing in public reasonable warning and
facility to withdraw, remove or open any lock or bolt or
break open any door of any building or do any other act
necessary for effecting such eviction.
7F. (1) When any premises requisitioned under section 7A
are to be released from requisition, the possession thereof
shall be delivered to the person from whom possession was
taken at the time when the premises were requisitioned, or
if there were no such person, to the person deemed by the
Central Government to be the owner of such premises, and
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such delivery of possession shall be a full discharge of the
Central Government from all liabilities in respect of such
delivery, but shall not prejudice any rights in respect of the
premises which any other person may be entitled by due
process of law to enforce against the person to whom
possession of the premises is so delivered.
(2) Where the person to whom possession of any premises
requisitioned under section 7A is to be given under sub-
section (1) cannot be found or is not readily ascertainable
or has no agent or any other person empowered to accept
delivery on his behalf, the Central Government shall cause
a notice declaring that such premises are released from
requisition to be affixed on some conspicuous part of such
premises and publish the notice in the Official Gazette.
(3) When a notice referred to in sub-section (2) is published
in the Official Gazette, the premises specified in such notice
shall cease to be subject to requisition on and from the date
of such publication and be deemed to have been delivered
to the person entitled to possession thereof, and the Central
Government shall not be liable for any compensation or
other claim in respect of such premises for any period after
the said date.
7G. The Central Government may, by notification in the
Official Gazette, direct that any powers conferred or any
duty imposed on that Government by any of the provisions
of sections 7A to 7F shall, under such conditions, if any, as
may be specified in the direction, be exercised or
discharged by such officer as may be specified.
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7H. If any person contravenes any order made under
section 7A or section 7C, he shall be punishable with
imprisonment for a term which may extend to one year or
with fine or with both.
87. The Petitioners submit that their entitlement to the
protection of Article 21 of our Constitution is wholly
frustrated by the action of the Respondents. Article 21 of
our Constitution declares:
21. Protection of life and personal liberty- No person shall
be deprived of his life or personal liberty except according
to procedure established by law.
88. A private citizen in any democratic society is entitled to
know whether his Legislature has issued any law mandating
compulsory civic duty. Such a law ought to, in view of
Article 21 of the Constitution of India:
i. define the people it targets; that is, the law ought to
define a 'resident' for the purpose of such law; and to
prescribe 'minimum age thereof'; the law should then make
suitable provision to exempt the elderly, sick, disabled,
people with special needs, caregivers to the sick,
individuals with criminal antecedents;
ii. state the range of activities for which, the State may
choose to recruit residents;
iii. the law should provide the nature, manner and modeof notice;
iv. the law also ought to provide for a forum before which
to contest the decision of one or more statutory officers.
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89. Because the Census Act, 1948 was never meant to recruit
private citizens for the performance of 'Governmental work',
the Act incorporates no protection of any kind to prevent
arbitrary enforcement thereof, in relation to private citizens.
90. The Petitioners submit that they have not filed, on the
instant cause of action, any other petition before this
Hon’ble Court or before any other Court of competent
jurisdiction.
91. The Petitioners further assert that the violation of their
fundamental rights by the conduct of Respondents herein is
such that the Relief sought herein offers an adequate
remedy under the circumstances.
92. That, under these circumstances, the petitioners seek
intervention of this Court under Article 226 of the
Constitution, amongst others, on the following:
GROUNDS
I. The use of the words 'shall be bound to serve accordingly' in
Section 4(2) of the Census Act, 1948 has to be read in a
manner as will compel 'Government employees only' to
perform 'census duty' notwithstanding the actual
employment contract in relation to such 'Government
employees'. The interpretation7 of Section 4(2) of the
Census Act, 1948 in such a manner wherein ‘a Government
7 The rule of construction is “to intend the Legislature to have meantwhat they have actually expressed.” The object of all interpretation isto discover the intention of Parliament, “but the intention of Parliamentmust be deduced from the language used,” for “it is well accepted thatthe beliefs and assumptions of those who frame Acts or Parliamentcannot make the law.”
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employee could be compelled to perform services added to
his original employment contract by virtue of special statute
or legislation’ is fully consistent with the decision of the
Constitution Bench of our Hon’ble Supreme Court in Roshan
Lal Tandon v. Union of India8. In this case, the Court held:
9. We pass on the consider the next contention of the
petitioner that there was contractual right as regards the
condition of service applicable to the petitioner at the time
he entered Grade 'D' and the condition of service could not
be altered to his disadvantage afterwards by the
notification issued by the Railway Board. It was said that
the order of the Railway Board dated January 25, 1958.
Annexure 'B', laid down that promotion to Grade 'C' from
Grade 'D' was to be based on seniority-cum-suitability and
this condition of service was contractual and could not be
altered thereafter to the prejudice of the petitioner. In our
opinion, there is no warrant for this argument. It is true that
the origin of Government service is contractual. There is an
offer and acceptance in every case. But once appointed to
his post or office, the Government servant acquires a statusand his rights and obligations are no longer determined by
consent of both parties, but by statute or statutory rules
which may be framed and altered unilaterally by the
Government. In other words, the legal position of a
Government servant is more one of status than of contract.
The hall-mark of status is the attachment to a legal
relationship of rights and duties imposed by the public law
and not by mere agreement of the parties. The emolument
of the Government servant and his terms of service are
governed by statute or statutory rules which may be
8 AIR 1967 SC 1889 : [1968] 1 SCR 185
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unilaterally altered by the Government without the consent
of the employee. It is true that Art. 311 imposes
constitutional restrictions upon the power of removal
granted to the President and the Governor under Art. 310.
But it is obvious that the relationship between the
Government and its servant is not like an ordinary contract
of service between a master and servant. The legal
relationship is something entirely different, something in
the nature of status. It is much more than a purely
contractual relationship voluntarily entered into between
the parties. The duties of status are fixed by the law and in
the enforcement of these duties society has an interest. In
the language of jurisprudence status is a condition of
membership of a group of which powers and duties are
exclusively determined by law and not by agreement
between the parties concerned. The matter is clearly stated
by Salmond and Williams on Contract as follows:
"So we may find both contractual and status-
obligations produced by the same transaction. The
one transaction may result in the creation not only of
obligations defined by the parties and so pertaining to
the sphere of contract but also and concurrently of
obligations defined by the law itself, and so pertaining
to the sphere of status. A contract of service between
employer and employee, while for the most part
pertaining exclusively to the sphere of contract,
pertains also to that of status so far as the law itself
has seen fit to attach to this relation compulsory
incidents, such as liability to pay compensation for
accidents. The extent to which the law is content to
leave matters within the domain of contract to be
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determined by the exercise of the autonomous
authority of the parties themselves, or thinks fit to
bring the matter within the sphere of status by
authoritatively determining for itself the contents of
the relationship, is a matter depending on
considerations of public policy. In such contracts as
those of service the tendency in modern times is to
withdraw the matter more and more from the domain
of contract into that of status."
(Salmond and Williams on Contracts. 2nd edition p. 12).
11. We are therefore of the opinion that the petitioner has
no vested contractual right in regard to the terms of his
service and that Counsel for the petitioner has been unable
to make good his submission on this aspect of the case.
II. Another judgment of the Hon’ble Supreme Court in the case
of Union of India v. Arun Kumar Roy 9 has reaffirmed the
above principles in the following language:
18. The question whether the terms embodied in the Order
of appointment should govern the service conditions of
employees in Government service or the rules governing
them is not an open question now. It is now well settled that
a Government servant whose appointment though
originates in a contract, acquires a status and thereafter is
governed by his service rules and not by the terms of
contract. The powers of the Government under Article 309
to make rules, to regulate the service conditions of its
employees are very wide and unfettered. These powers can
be exercised unilaterally without the consent of the
9 AIR 1987 SC 737 : (1986) 1 SCC 675
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employees concerned. It will, therefore, be idle to contend
that in the case of employees under the Government, the
terms of the contract of appointment should prevail over
the rules governing their service conditions. The origin of
Government service often times is contractual. There is
always an offer and acceptance, thus bringing it to being a
completed contract between the Government and its
employees. Once appointed, a Government servant
acquires a status and thereafter his position is not one
governed by the contract of appointment. Public law
governing service conditions steps into regulate the
relationship between the employer and employee. His
emoluments and other service conditions are thereafter
regulated by the appropriate statutory authority
empowered to do so. Such regulation is permissible in law
unilaterally without reciprocal consent. This Court made this
clear in two Judgments rendered by two Constitution
Benches of this Court in Roshan Lal Tandon v. Union of India
(1968) ILLJ 576 SC and in State of Jammu & Kashmir v.
Triloki Nath Khosa (1974) ILLJ 121 SC
19. Thus it is clear and not open to doubt that the terms
and conditions of the service of an employee under the
Government who enters service on a contract, will once he
is appointed, be governed by the rules governing his
service conditions. It will not be permissible thereafter for
him to rely upon the terms of contract which are not in
consonance with the rules governing the service.
20. The powers of the Government under Article 309 of the
Constitution to make rules regulating the service conditions
of the government employees cannot, in any manner, be
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fettered by any agreement. The respondent cannot,
therefore, succeed either on the terms of the contract or on
the notification on which the High Court has relied upon.
Nor can he press into service the rule of estoppel against
the Government.
III. Therefore, the use of the word 'shall’ in section 4 (2) is
primarily meant to override any employment contract that
does not specify ‘census work’ as an incident of
employment contract. Because, a Government employee
whether contracting for a short term or for a longer term is
a contracting party and could, upon ordinary principles of
law governing contracts, object to the rendering of a service
not specified in his individual employment contract, the
Parliament has deemed it proper to phrase the language in
section 4 (2) in such a manner so as to ensure that
employment contracts that are contrary are overridden and
employment contracts that make no provision for such
service are thereby supplemented.
IV. It may further be noted that every State Government is
required to assist the Central Government in relation to the
implementation and enforcement of a Central Statute. In
fact such co-operation is a critical component of every
Federal Constitution and Constitution of India, in Article
25610 clearly mandates such co-operation.
V. As such, a State Government, in entering into anemployment contract with any person is bound to be
10 “256. Obligation of States and the Union – The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive
power of the Union shall extend to the giving of such directions to a State asmay appear to the Government of India to be necessary for that purpose”
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mindful of the obligation cast upon it under Article 256 of
the constitution. Accordingly even if the employment
contract between the State Government and its employee
makes no reference to the obligation of the State
Government to depute its employees to perform services in
connection with the enforcement of a central legislation, by
virtue of Article 256 of the Constitution, the Parliament is
authorized to modify such employment contracts and the
provision in section 4 (2) of the Census Act 1948, precisely
accomplishes such a result11.
VI. Therefore, the language contained in section 4 (2) of the
Census Act, 1948 is wholly confined to employees under the
services of the state Government. Because the Petitioners
are neither employees of the State nor of the Central
Government, Section 4 (2) of the Census Act, 1948 is clearly
inapplicable to the petitioners. As such the giving of
impugned notices by the Respondents is wholly
misconceived or misplaced. A Writ of Prohibition will
therefore lie to restrain the Respondents from proceeding
any further12
.
11 At this juncture, it may also be noted that, by reason of the federaldoctrine incorporated into our Constitution, a State Legislation or theGovernment is not permitted to similarly enlist the services employeesof the Central Government for the enforcement or implementation of aState Legislation.
12 “The Constitution enshrines and guarantees the rule of law and
Article 226 is designed to ensure that each and every authority in the
State, including the Government acts bona fide and within the limits of
its power and we consider that when a court is satisfied that there is
an abuse or misuse of power and its jurisdiction is invoked, it is
incumbent on the court to afford justice to the individual”.
Pratap Singh Kairon v. State of Punjab [AIR 1964 SC 72 : (1964) 4SCR 733]
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VII. Section 7 merely creates a duty in persons whose
assistance is necessary for the taking of census to act in
such manner as will facilitate the taking of census. In doing
so, the scope of Section 7 is greatly curtailed by the statute.
The assistance required of a person is always ‘in relation to
persons confined to such land, factory, firm or
establishment’. An employee of a private organization may
be directed to assist in the taking of census of other co-
employees only. To illustrate, an employee of Factory A, a
private firm, may be directed to assist in the taking of
census of other employees of Factory A only. No part of
Section 7 authorizes a District Magistrate to direct
employees of Factory A to assist in the taking of census of
employees of Factory B. The emphasis in Section 7 leads to
no other conclusion:
…to give such assistance as shall be specified in the order
towards the taking of a census of the persons who are, at
the time of the taking of the census, on the lands of such
owners, occupiers, tenure-holders, farmers and assignees,
or in the premises of factories, firms and other
establishments, or within the areas for which such local
authorities are established, as the case may be, and the
persons to whom an order under this section is directed
shall be bound to obey it and shall, while acting in
pursuance of such order, be deemed to be public servants
within the meaning of the Indian Penal Code. (emphasis
supplied).
VIII. The reference to Section 7 of the Census Act, 1948 in the
impugned Notices is without the authority of law; should
Respondent 6 show that his authority to invoke Section 7 of
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the Census Act, 1948 has been formally notified, the
impugned Notices would nevertheless be ultra-vires the
Census Act, 1948 in relation to Petitioners 3 to 10.
IX. Section 11 of the Census Act, 1948 invites prosecution and
punishment of a 'census officer' who refuses to perform the
duty assigned to him. It says:
11. (1) (a) Any census-officer or any person lawfully
required to give assistance towards the taking of census
who refuses to perform any duty imposed upon him by this
Act or any rule made thereunder, or any person who
hinders or obstructs another person in performing any such
duty...shall be punishable with fine which may extend to
one thousand rupees and ..... shall also be punishable withimprisonment which may extend to three years.
X. Because the above provision when read with Section 4(2)
and Section 7 imposes a penal consequence upon any
person who is appointed as a ‘census officer’ in terms of
Section 4(2) of the Act, the canons of interpretation call for
a ‘strict interpretation’ and the impugned notices do not
survive a ‘strict interpretation’ of these two provisions. The
principles that govern the interpretation of a penal provision
may be noted in order to conclude that the impugned
notices do not survive a strict interpretation of the statute.
The Hon'ble Supreme Court in the case of R.Kalyani v. Janak
C Mehta13 held:
26. Although the legal principle that a penal statute must
receive strict construction, it is not in doubt or dispute, we
may notice some authorities in this behalf.
13 JT 2008 (12) SC 279 : (2009) 1 SCC 516
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In Section 263 of the Francis Bennion's Statutory
Interpretation it is stated:
A principle of statutory interpretation embodies the policy
of the law, which is in turn based on public policy. The Court
presumes, unless the contrary intention appears, that the
legislator intended to conform to this legal policy. A
principle of statutory interpretation can therefore be
described as a principle of legal policy formulated as a
guide to legislative intention.
Maxwell in ‘The Interpretation of Statutes’ (12th Edn) says:
The strict construction of penal statutes seems to manifest
itself in four ways: in the requirement of express language
for the creation of an offence; in interpreting strictly words
setting out the elements of an offence; in requiring the
fulfillment to the letter of statutory conditions precedent to
the infliction of punishment; and in insisting on the strict
observance of technical provisions concerning criminal
procedure and jurisdiction.
In Craies and Statute Law (7th Edn. At p. 529) it is said that
penal statutes must be construed strictly. At page 530 of
the said treatise, referring to U.S. v. Wiltberger (1820) 2
Wheat (US) 76, it is observed, thus:
The distinction between a strict construction and a more
free one has, no doubt, in modern times almost
disappeared, and the question now is, what is the true
construction of the statute? I should say that in a criminal
statute you must be quite sure that the offence charged is
within the letter of the law. This rule is said to be founded
on the tenderness of the law for the rights of individuals,
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and on the plain principle that the power of punishment is
vested in the Legislature, and not in the judicial
department, for it is the Legislature, not the Court, which is
to define a crime and ordain its punishment.
In Tuck v. Priester (1887) 19 QBD 629 which is followed in
London and County Commercial Properties Investments v.
Attn Gen. (1953) 1 WLR 312, it is stated:
We must be very careful in construing that section, because
it imposes a penalty. If there is a reasonable
interpretation, which will avoid the penalty in any
particular case, we must adopt that construction.
Unless penalties are imposed in clear terms they are
not enforceable. Also where various interpretations of a
section are admissible it is a strong reason against adopting
a particular interpretation if it shall appear that the result
would be unreasonable or oppressive.
Blackburn, J. in Wills v. Thorp said (1875) LR 10 QB 383:
When the Legislature imposes a penalty, the words
imposing it must be clear and distinct.
XI. The petitioners would be subject to unreasonable,
unintended and illegal consequences should this Court not
adhere to the ‘rule of strict interpretation of a penal
statute’. As clearly laid down by the Hon’ble Supreme Court
in Glaxo Laboratories (I) Ltd v. Presiding Officer, Labour
Court, Meerut 14, the unreasonable consequences that would
be visited upon the petitioners is most clearly evident from
the following passage in the aforesaid judgment:
14 AIR 1984 SC 505 : (1984) 1 SCC 1
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16…The decision proceeds on the language of the standing
order which came for interpretation before this Court. There
is a marked difference between the language of Clause 10
of S.O. 22 under which action is proposed to be taken by
the appellant in this case and S.O. 24 (1) that came for
interpretation in that case. Clause (1) of S.O. 24 which was
before the Court in that case did not refer to such specific
acts of misconduct as drunkenness, fighting, indecent or
disorderly behaviour, use of abusive language etc. If a
workman is involved in a riot or indulge in fighting
somewhere far away from the premises of the
establishment, it has no causal connection with his
performance of duty in the industrial establishment in which
he is employed. Further in that case, the Court put a wide
construction on a penal measure but did not choose to set
out its reasons for departing from the well-established
principle that penal statutes generally receive a strict
construction. 'A statute is regarded as penal for the purpose
of construction if it imposes fine, penalty or forfeiture other
than penalty in the nature of liquidation of damages or
other penalties which are in the nature of civil remedies. It is a general rule that penal enactments are to be construed
strictly and not extended beyond their clear meaning. See
Halsbury's Law of England, 4th edition Vol.1 44 paragraphs
909, 910 at page 560. It cannot be seriously questioned
that S.O. 22 is a penal statute in the sense that it provides
that on proof of misconduct penalty can be imposed. It
cannot be disputed that it is a penal statute. It must
therefore, receive strict construction, because for a penalty
to be enforced, it must be quite clear that the case is within
both the letter and the spirit of the statute. If the expression
'committed within the premises of the establishment or in
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the vicinity there of is given a wide construction so as to
make the clause itself meaningless and redundant, the
penal statute would become so vague and would be far
beyond the requirement of the situation as to make it a
weapon of torture. A clause with a statutory flavour 'like
legislation must at all costs be interpreted in such a manner
that it could not operate as a rogue's charter: Davis and
Sons v. Alkin [1977] I.C.R. 66. If any misconduct committed
anywhere irrespective of the time-place content where and
when it is committed is to be comprehended in Clause 10
merely because it has some remote impact on the peaceful
atmosphere in the establishment, there was no justification
for using the words of limitation such as 'committed within
premises of the establishment or in the vicinity thereof’.
These are words of limitation and they must cut down the
operation of the clause. Therefore, these words of limitation
must receive their due share in the interpretation of Clause
10 and Clause 10 cannot receive such a construction as to
make the words of limitation wholly redundant.
XII. The petitioners rely upon Maxwell’s ‘Principles of Statutory
Interpretation’ [Twelfth Edition – Seventeenth Impression
2009 By P.ST.J.LANGAN]. In pertinent part, it prescribes
that:
The principle applied in construing a penal Act is that if, in
construing the relevant provisions, “there appears any
reasonable doubt or ambiguity”, it will be resolved in favour
of the person who would be liable to the penalty 15. “If there
is a reasonable interpretation which will avoid the penalty in
any particular case”, said Lord Esher M.R., “we must adopt
15 London v. Country Commercial Properties Investments Ltd. V. Att.-Gen (1953) 1 W.L.R 312, per Upjohn J. at p.319
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that construction. If there are two reasonable constructions
we must give the more lenient one. That is the settled rule
for the construction of penal sections.” 16 Or, as Plowman J
has said more recently: “In every case the question is
simply what is the meaning of the words which the statute
has used to describe the prohibited act or transaction? If
these words have a natural meaning, that is their meaning,
and such meaning is not to be extended by any reasoning
based on the substance of the transaction. If the language
of the statute is equivocal and there are two reasonable
meanings of that language, the interpretation which will
avoid the penalty is to be adopted.” 17 The court must
always see that the person to be penalized comes fairly and
squarely within the plain words of the enactment. It is not
enough that what he has done comes substantially within
the mischief aimed at by the statute: “the sooner this
misunderstanding is dispelled and the supposed doctrine
given its quietus the better it will be for all concerned, for
the doctrine seems to involve substituting ‘the uncertain
and crooked cord of discretion’ for ‘the golden and straight
metwant of the law.’ ”
18
(page 239)
The strict construction of penal statutes seems to manifest
itself in four ways; in the requirement of express language
for the creation of an offence; in interpreting strictly words
setting out the elements of an offence; in requiring the
fulfillment to the letter of statutory conditions precedent to
the infliction of punishment; and in insisting on the strict
16 Tuck & Sons v. Priester (1887) 19 Q.B.D. 629 at p.638
17 Re H.P.C. Productions, Ltd [1962] Ch.466, at p.485
18 L.R.C. v. Duke of Westminister [1936] A.C. 1, per Lord Tomlin at p.19,quoting 4 Inst. 41. But see, ante, pp.140-143. But see, ante, pp.140-143
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observance of technical provisions concerning criminal
procedure and jurisdiction. (page 239, 240)
Express language necessary for creation of criminal
offences:
In the first place, no act is to be deemed criminal unless it is
clearly made so by the words of the statute concerned.
Thus a mere declaration that “all lotteries are unlawful”
does not create any offence on which a prosecution can be
based 19. And an exemption clause, setting out conditions on
which acts which are made punishable under other
provisions of the statute may be done, does not per se
operate to make non-observance of the conditions
criminal20…(page 240)
Strict construction of words setting out the elements of an
offence:
If there is any ambiguity in the words which set out the
elements of an act or omission declared to be an offence,
so that it is doubtful whether the act or omission in question
in the case falls within the statutory words, the ambiguity
will be resolved in favour of the person charged. This is, in
practice, by far the most important instance of the strict
construction of penal statutes. (page 240)
Punishments:
Punishment can be imposed only if the circumstances of the
case fall clearly with in the words of the enactment. Thus
disqualification from holding a driving licence could not be
imposed under the Road Traffic Act, 1930, s 6[1], on a
19 Sales-Matic, Ltd v. Hinchcliffe [1959] 1 W.L.R. 1005
20 R. v. Staincross Justices, ex p. Teasdale [1961] 1 Q.B.170
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person convicted of stealing a car who was not also
convicted of taking and driving away [for the latter offence,
but not the former, was in the relevant schedule], even
though he asked for other offences, including that of taking
and driving away, to be taken into consideration.21 (page
244)
Wide sense given to words:
The effect of the rule of strict construction might be
summed up by saying that, where an equivocal word or
ambiguous sentence leaves a reasonable doubt of its
meaning which the canons of interpretation fail to solve, the
benefits of the doubt should be given to the subject and
against the legislature which has failed to explain it self.22…
(page 246)
Encroachment on rights:
Statutes which encroach on the rights of the subject,
whether as regards person or property, are subject to strict
construction in the same way as penal Acts. It is the
recognized rule that they should be interpreted, if possible,
so as to respect such rights,23 and if there is any ambiguity,
the construction which is in favour of the freedom of the
individual should be adopted. 24. One aspect of this
approach to legislation is the presumption that a statute .…
21 R. v. Williams (1962) 1 W.L.R. 1268. But see R. V. Assa Singh (1965)2 Q.B. 312 : by s.9 (1) of the Homicide Act 1957 the sentence in a caseof non-capital murder was made imprisonment for life, but an order for
deportation under the Common-wealth Immigrants Act, 1962 is not asentence, and could therefore be coupled with a sentence under s.9(1).See also R. v. Walters (1969) 1 Q.B. 255
22 R. v. Chapman (1931) 2 K.B. 606
23 Walsh v. Secretary of State for India (1863) to H.L.C. 367 per LordWestbury L.C.; Hough v. Windus (1884) 12 Q.B.D. 224, per Bowen L.J.
24 David v. Da Silva (1934) A.C. 106
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another is the presumption that proprietary rights are not
taken away without provision being made for
compensation25. (page 252)
This strict method of construction may be seen, first of all,
in the courts attitude to statute which encroach on the
individual’s rights in his person and liberty (page 252)
Statutes imposing burdens:
Statutes which impose pecuniary burdens are subject to the
same rule of the construction. It is well settled rule of law
that all charges upon the subject must be imposed by clear
and unambiguous language, because in some degree they
operate as penalties; the subject is not to be taxed unless
the language of the statute clearly imposes the
obligation26…(page 256)
XIII. The petitioners further rely upon Justice G.P.Singh’s
‘Principles of Statutory Interpretation’ [10th Edition, 2006,
Wadhwa]. It is said therein:
Hardships, inconvenience, injustice, absurdity and anomaly
to be avoided:
In selecting out of different interpretations “the court will
adopt that which is just, reasonable and sensible rather
than that which is none of those things” 27 as it may be
presumed “that the Legislature should have used the word
25 Att-Gen. v. Horner (1884) 14 Q.B.D. 245, per Brett M.R.; BelfastCorporation v. O.D.Cars, Ltd (1960) A.C.490. But this is no more thanpresumption and may sometimes be inappropriate: Westminister Bank, Ltd. V. Beverley Borough Council (1968) 3 W.L.R. 671.
26 Russell v. Scott (1948) A.C. 422, per Lord Simonds; D’Avigdor-Goldsmid v. I.R.C. (1953) A.C.347
27 Holmes v. Bradfield Rural District Council (1949) 1 ALL ER 381, p.384 (KBD) (FINNEMORE, J); Nasiruddin v. State Transport AppellateTribunal, AIR 1976 SC 331, p.338 : (1975) 2 SCC 671.
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in that interpretation which least offends our sense of
justice” 28. If the grammatical construction leads to some
absurdity or some repugnance of inconsistency with the
rest if the instrument, it may be departed from so as to
avoid that absurdity, and inconsistency 29. Similarly, a
construction giving rise to anomalies should be avoided 30.
As approved by VENKATARAMA AIYAR, J., “Where the
language of a statute, in its ordinary meaning and
grammatical construction, leads to a manifest contradiction
28 Simms v. Registrar of Probates, (1900) AC 323, p.335 (PC) (LORDHOBHOUSE). See further Cramas Properties Ltd. v. Cannaught Fur Trimmings Ltd ., (1965) 2 ALL ER 382 (HL), p.385 (LORD REID), p.387(LORD GUEST) (A reasonable construction is to be preferred to anirrational construction leading to uncertainty); Trent River Authority v.National Coal Board , (1970) 1 ALL ER 558, p.563 (HL). (LORDWILBERFORE) (“When the statutory words are capable of two
meanings preference should be given to that meaning which producesthe more reasonable and just result.”); Madhav Rao Jivajirao v. Unionof India, AIR 1971 SC 530, p.576 : 1971 (1) SCC 85 p.162 (SHAH, J)(“The court will interpret a statute, as far as possible, agreeable to
justice and reason and that in case of two or more interpretations, onewhich is more reasonable and just will be adopted, for there is always apresumption against the law-maker intending injustice and unreason”);Union of India v. B.S.Agarwal, AIR 1998 SC 1537, p.1546 : (1997) 8 SCC89 (court to lean in favour of such interpretation which conforms to
justice and fair play and prevents potentiality to injustice); DebenhamsPlc. v. Westminister City Council, (1987) 1 ALL ER 51, p.55 : (1987) AC396 : (1986) 3 WLR 1063 (HL) (That meaning which produces an
unreasonable result is to be rejected in favour of that which does not);Paradise Printers v. Union Territory of Chandigarh, AIR 1988 SC 354,p.358 : 1988 (1) SCC 440 (when there is a choice of meanings, there isa presumption that one which produces an unjust or inconvenientresult was not intended); Union of India v. North Telumer Colliary , AIR1989 SC 1728, p.1732 : (1989) 2 SCC 342 (construction which leads to‘unjust benefit’ to be avoided’); Sachida Nand Singh v. State of Bihar ,AIR 1998 SC 1121, p.1123 : 1988 (2) SCC 493 (natural meaningleading to mischievous consequences to be avoided when alternativeconstruction is open); Bhatia International v. Bulk Trading S.A.., AIR2002 SC 1432 p.1438 : (2002) 4 SCC 105; Rakesh Wadhwa v.
Jagadamba Industrial Corporation, AIR 2002 SC 2004 p.2014 : (2002) 5SCC 440 (Eighth Edition p.113 of this book is referred); Unique ButyleTube Industries P. Ltd. V. U.P.Financial Corporation, (2003) 2 SCC 455p.463 : 2003 ALL LJ 427; D Saibaba v. Bar Council of India, AIR 2003 SC2502 p.2507 (Eighth edition of this book p.113 is referred);Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K.Suresh Reddy (2003) 7 SCC 667 p.678 : (2003) 7 SCC 667 : AIR 2003 SC 3592; Lalit Mohan Pandey v. Pooran Singh (2004) 6 SCC 626, pp.643, 644 : AIR2004 SC 2303.
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of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon it
which modifies the meaning of the words, and even the
structure of the sentence.” 31 (pg. 127)
XIV. An educational institution is generally subject to regulation
and the scope and extent of such regulation varies in
proportion to the nature of education imparted by such
educational institution. A diverse range of human conduct is
subject to regulation and educational institutions do not
become agencies of the Government merely because they
29 Grey v. Pearson, (1857) 6 HLC 61, p.106 : 10 ER 1216, p.1234 (HL);See further title 2(a) ‘Natural and Grammatical Meaning’, text andnotes 18 (p.79), 22(p.80). Also see Shamrao v. District Magistrate,
Thana, AIR 1952 SC 324, p.327 : 1952 SCR 683. “The object of theconstruction of a statute being to ascertain the will of the Legislature,it may be presumed that neither injustice nor absurdity was intended.If, therefore literal interpretation which would avoid it, then such aninterpretation may be adopted”: Own Thomas Mangin v. IRC, (1971) 2WLR 39, p.42 (PC) (LORD DONOVAN) : (1971) 1 ALL ER 179, p.182referred in Imperial Chemicals Industries v. Colmer , (1996) 2 ALL ER23, p.32.
30 Veluswami Thevar v. G.Raja Nainar , AIR 1959 SC 422, pp.427, 428 :1959 Supp (1) SCR 404. K.Prabhakaran v. P.Jayarajan, (2005) 1 SCC754, p.773 (para 33).
31 Tirath Singh v. Bachittar Singh, AIR 1955 SC 830, p.833 : 1955 (2)SCR 457 (passage from MAXWELL, Interpretation of Statutes, 11th
Edition, p.221 approved); State of M.P. v. Azad Bharat Finance Co., AIR1967 SC 276, p.278 : 1966 Supp SCR 473; Union of India v.Sankalchand , AIR 1977 SC 565/, pp.2337, 2358, 2373 : (1977) 4 SCC193 : 1977 SCC (Lab) 435; CIT v. National Taj Traders, AIR 1980 SC485, p.490 : (1980) 1 SCC 370; K.P.Verghese v. I.T.Officer , AIR 1981 SC1922, p.1928 : (1981) 4 SCC 173; Bhag Mal v. Ch.Parbhu Ram, (1985)1 SCC 61, p.88 : AIR 1985 SC 150; State of Tamil Nadu v. KodaikanalMotor Union, (1986) 3 SCC 91, p.100 : AIR 1986 SC 1173;Commissioner of Income Tax v. J.H.Gotla Yadgiri, (1985) 4 SCC 343,p.359 : AIR 1985 SC 1698; C.W.S (India) Ltd. Commissioner of IncomeTax , JT 1994 (3) SC 116, p.121 : 1994 Supp (2) SCC 296; R.Rudraiah v.State of Karnataka, JT 1998 (1) SC 435, pp.443, 444: AIR 1998 SC1070, p.1075 : (1998) 3 SCC 23; Molar Mal v. Kay Iron Works (P). Ltd .,AIR 2000 SC 1261 p.1266 : (2000) 4 SCC 285; Padmasundara Rao v.State of T.N., AIR 2002 SC 1334 pp.1340, 1341 : (2002) 3 SCC 533;Modern School v. Union of India, AIR 2004 SC 2236, p.2257 : (2004) 9SCC 741. (This entire para is quoted with approval by SINHA.J. from 9 th
Edn., pp.121, 122 of this book).
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are subject to regulation. A private educational institution
that does not receive any aid, grant, or other financial
assistance from the Government, whether directly or
indirectly, is not an agency or instrumentality of the
Government. The first petitioner and its members are purely
private organizations and the fact that educational
institutions are subject to intense regulation does not
render such regulated entity, an instrumentality of the
Government.
XV. A teacher in a private unaided educational institution is
primarily a private employee and the terms and conditions
that govern the relationship between a teacher and her
employer institution is not formulated by the Government.
That is, the terms and conditions that define an
employment contract between a private unaided
educational institution and its employees is neither
formulated nor approved by the Government, As such the
employment contract that governs the services of the
teaching faculty in a private educational institution does not
and need not incorporate any condition that binds a teacherto render any service for the benefit of any person other
than the contracting educational institution. Accordingly,
the teaching faculty in a private unaided educational
institution is not obligated to render any service beyond
that stipulated in the relevant employment contract.
XVI. Further, private unaided educational institutions that are
members of KUSMA do not formulate contracts that bind
their employees to render services not covered by such
employment contracts. Therefore, in the absence of a
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Statute either by Legislature of a State or by the Parliament,
the Executive Government of a State or of the Center is not
authorized to override and modify employment contracts
that are entered into between purely private parties. Any
such interference is opposed to the modern notion of
individual liberty or would plainly be arbitrary - in either
case, wholly opposed to the principles enshrined in the
Constitution of India.
XVII. Accordingly, the respondents should be restrained from
proceeding against the petitioners in view of the fact that
their conduct is without the authority of law.
XVIII. Further, the competitive pressure upon students is ever
increasing and teaching faculty in private unaided
educational institutions are often unable to pay requisite
attention to individual students due to paucity of time. The
Respondents are wholly unjustified in assuming that
teachers in private unaided educational institution are
accustomed to leisure.
XIX. While it is true that census taking is a critical part of
Government work, any intention to draft private individuals
must be clearly expressed in uncertain terms by the
Parliament of India and the fact that the Parliament has
made no such mention in the Census Act 1948, is clearly
evident upon an ordinary reading of the Census Act 1948.
Further the Rules known as Census Rules 1990, issued by
the Central Government in terms of sub-section (1) of
Section 18 of the Census Act 1948 do not express any
intention to draft private citizens for the purpose of census
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taking because the Parliament has made no provision
howsoever to facilitate drafting of private persons for
census work. The action of the respondents in issuing the
impugned notices for the purpose of drafting the services of
private citizens is tantamount to usurpation by a public
body of a power not authorized to it. Accordingly a Writ of
Prohibition shall issue by this Hon’ble Court for the purpose
of restraining a public body from assuming a power not
vested in it.
XX. The essential work of a teacher has no rational relation
whatsoever to the task of an enumerator. A teacher in a
private unaided educational institution is not more readily
suited than say, an advocate in practice in a Court of law or
any other graduate or professional, to perform the task of
an enumerator.
XXI. The petitioners respectfully submit that, should the
Respondents 'disclose any legal authority under the Census
Act, 1948 to 'summon a private person and to compel such
private person to discharge government work under thethreat of punishment ', the petitioners would thereafter
reserve the right to supplement this petition, subject to the
leave of this Hon'ble Court, with grounds and arguments
upon the unconstitutionality in regard to the offending
provision of the Census Act, 1948.
XXII. The Petitioners are fully deprived of the protection accorded
to them under Article 21 of the Constitution of India. Article
21 of the Constitution forbids the Legislature from issuing
any law for the purpose of inhibiting the liberty of an
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individual unless the language employed therein is definite
and certain. The language employed in the Census Act,
1948 offers no authority whatsoever to the Respondents to
recruit private citizens for the purpose of census duty.
Accordingly, this Hon'ble Court is vested with a duty, in
terms of Article 226, to intervene for the purpose of
protecting the Petitioners' constitutional right enshrined in
Article 21 of the Constitution.
GROUNDS IN SUPPORT OF INTERIM RELIEF
XXIII. The Petitioners are entitled to succeed on the merits on the
matter. Accordingly, the petitioners are entitled to an
interim injunction in relation to the operation of the
impugned Notices in view of a reasonable likelihood of their
success.
XXIV. A law that fails to express in certain terms, the curtailment
of the liberty of an individual imposes a burden upon the
Executive to demonstrate that the plain language of the law
leads to no other inference than to authorise thecurtailment of the liberty of the citizens. The Respondents
are unlikely to succeed in demonstrating that the law at
issue leads to any such inference. Accordingly, an interim
injunction is absolutely warranted.
XXV. Because the conduct of the Respondents in restraining the
liberty of the petitioners is not clearly provided for under
the relevant statute, it becomes the duty of this Hon'ble
Court to safeguard the constitutionally guaranteed liberties
of the petitioners by issuing a restraint upon the operation
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of the impugned Notices. Accordingly, for the proper
protection of the petitioners under Article 226 of the
Constitution of India, an interim injunction is absolutely
warranted in relation to the operation of the impugned
Notices.
XXVI. Because penal consequences attend the disobedience of a
'census duty' properly imposed upon a person, in the event
of a legitimate doubt over the authority of the Government
to impose a 'census duty' upon an individual, the issue of an
'interim injunction' is absolutely warranted until such doubt
is properly and completely resolved. Accordingly, the
Petitioners are entitled, under the ordinary law governing
injunction and under the Constitution of India, to a restraint
upon the operation of impugned Notices until such time that
this Writ Petition is conclusively answered by this Hon'ble
Court.
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PRAYER
WHEREFORE, IN VIEW OF THE CIRCUMSTANCES NARRATED
ABOVE, THIS HON’BLE COURT MAY GRACIOUSLY BE
PLEASED TO:
i. Issue a judicial Order of any other nature or
description to quash forthwith, impugned Notices
produced as Annexure G to O as being illegal and ultra
vires the ‘Census Act, 1948 and Rules and
Notifications issued thereunder’;
ii. Issue a Writ of Prohibition or a Writ of any other nature
or description or any Order or direction to restrain
Respondents from wrongfully summoning teachers in
employment at educational institutions that are
members of first petitioner society, for the purpose of
discharging duties in terms of the impugned Notices;
iii. Issue any other Order or direction as this Hon’ble
Court may deem fit or expedient in the facts and
circumstances of this case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL
EVER IN DUTY, PRAY.
K.V.DHANANJAY.
Bangalore Roll No.KAR/659/2002
Date: 08-Jun-2010 ADVOCATE FOR PETITIONERS
INTERIM PRAYER
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WHEREFORE, IN VIEW OF THE OF CIRCUMSTANCES
NARRATED ABOVE, THIS HON'BLE COURT MAY GRACIOUSLY
BE PLEASED TO, PENDING THE COMPLETE ADJUDICATION
AND DETERMINATION OF THIS WRIT PETITION:
i. Issue an ad-interim ex-parte injunction upon the
impugned Notices produced herewith as Annexure G
to O;
ii. Issue any other Order or direction as this Hon’ble
Court may deem fit or expedient in the facts and
circumstances of this case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL
EVER IN DUTY, PRAY.
K.V.DHANANJAY.
Bangalore Roll No.KAR/659/2002
Date: 08-Jun-2010 ADVOCATE FOR PETITIONERS
Address for Service of Notice:
K.V.DHANANJAYAdvocateNo.296KamakshipalyaMagadi Main RoadBangalore 560 079
email: [email protected]
Phone: +91 9902909390
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