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-~.£~- 315 •.

SHAMIM RAHMANI ETC.

STATE OF U.P.

April 28, 1975

[N. L. UNTWALIA ANDS. M. FAzAL ALI, JJ] B

Penal Code-S. 201-Ascertaining full facts before giving inforn1ation to , po/ice--lf obligatory. ·

The appelJants were brother and sister and were living in different loc; llities , of the city. The sister developed illicit intimacy with the deceased, but finding that he was not giving her exclusive _ attenion, fired a shot at him when he C .came to her house.

On hearing about the incident the brother gave information to the police that his younger brother had told him that he "did not know how his sister took his (appellant's) gun outside and somehow a fire. was shot" and that the bullet hit the deceased who bad fallen and was bleeding.

The trial court convicted the sister under s. 302, I.P.C. The brother was D charged with an offence under s. 201, I.P.C. and was convicted and sentenced to three years' rigofOus imprisonment.

The High Court affirmed the con- victions but reduced the sentence against the brother to one year.

Dismissing the appeal of the sister and allowing the appeal of the brother,

HELD :· All the ingredients necessary to be established for bringing home the charge under s. 201, to the appellant were not proved beyond reasonable E doubt.

He may have known or may have reason to believe that an offence of murder bad been committed by his sister.

But the other possibility that be may" not have known or may have not reason to believe that the offence of murder had' been committed by his sister could not be ruled out. He may have only suspected. More facts were yet to be known .. He. did nothing wrong in rushing to the police station and giving the baieit information in writing.

The prosecution could not unfold that the younger brother had iold anything further to the appeUant.

It was not obligatoiy or necessary F :for_ the appeUant to probe the matter any further on the spot before rushing

to the police station.

[326 GH 327-B-DJ Criminal Appellate Jurisdiction : Criminal Appeals Nos. 121- 1.23 of 1973 .

Appeal by special leave from the judgment and order dated 10-4-J 973 of the Allahabad High Court in Crl. Appeal Nos. 2224 G ,& 2228 of 1969 and Cr. M. P. No. 1547 of 1973.

Yogeshwar Prasad, Keshava Sahai, S. K. Bagga, S. Bagga, Rani Arorrt and Meena Bhatia, for the appellants.

D. P. Uniyal and 0. P. Rana; for the respondent.

The Judgment of the Court was delivered by

' UNTWALIA, _J., These ar\' three appeals by special leave.

One of them was directed from some interlocutory order of the High Court and had become infructuous. Mr. Yogeshwar Prasad, learned counsel for the appellants asked us to dismiss tha, t appeal as being infructuous. We accordingly do so. In one of the remaining two appeals the appellant is Kumari Shamim Rahmani.

She has been convicted

A under section 302 Indian Penal Code for committing the murder of Dr. Hari Om Gautam.

A sentence of life imprisonment has been awarded to her.

In the other appeal the appellant is Shri Amir Ahmad Rahmani, elder brother of Shamim. He is said to have lodged a false information at the Police S1<1tion in connection with the said murder with the intention of screening his sister from legal punish- B ment. He has been convicted under section 201 of the Penal Code.

The Trial Judge imposed a sentence of three years' rigorous imprisonment on him but the High Court has reduced it to one year.

The murder of the Doctor was the culmination of the wrong and vicious path of love and lust between him .a.nd appellant Shamim.

As is not uncommon in such type of love affairs, the girl found the C arms of her lover getting loose and cold. It resulted in her frustration.

In a jealous and revengeful attitude she used her arms on a gun and shot her lover dead.

Thus she landed herself in the long arms of law and suffered the conviction for murder. We may observe at the outset that in the conduct of the case on behalf of the appellants in the Trial Court as also in the High Court there has been over- D doing and too much hair splitting but all in vain. On reading the two

judgments of the Courts below and on perusal of the relernnt materials and pieces of evidence in the case and after hearing the fair and able argument of Mr. Yogeshwar Prasad we have come to the conclusion that not only Shamim's appeal is concluded by the concurrent findings of fact n:corded by the two courts below with which.

E but for very strong reawns, this Court is loathe to interfere, the findings in our opinion, are absolutely correct.

The exhaustive criticism of the prosecution case and the evidence adduced by it has been fully dealt with by the High Court as also by the Trial Court.

The appeal of appellli, nt Amir Ahmad, for the reasons to be stated hereinafter, is fit to succeed.

F We proceed to state the facts of the case very briefly. We also do not think it necessary to deal with, in any detail, all the points urged on behalf of appclla, nt Shamim as almost all of them were repetitions of the arguments advanced in the High Court and rightly rejected by it. It will be hardly of any use to paraphrase the judgment of the High Court for the purpose of affirming it. '

G The appellants' father was one Azizur Rahman Khan since demeased.

Mostly he lived at a place outside the City of Lucknow. fn a rented house at 23, Kandhari Lane, Police Station Kaiserbagh.

Lucknow lived Smt. Sikander Jahan, mother of the appellants, appellant Shamim, her elder sister Km. Naseem Rahmani and her younger brother-a boy of tender age-named Mohammad Ahmad Rahmani alias Sheikhu.

The appdla, nts have another brother named F.A.A.

Rahmani who at the relevant time was Personal Assistant to a H MiniSter of the Central Government and was living in Delhi. Appellant Amir Ahmad was living in .another house in the City of Lucknow at No. 24, New Berry Road, Police Station Hazratganj, Lucknow.

He had a shop where he dealt in spare parts of tractors.

At the time of the occurence which took olace at about 11.00 or 11.15 p.m. on the 1 lth July, 1968 appellant Shamim was a

:iHAMIM RAHMANI v. u. P. STATE ( Untwalia, .r.) 317

College going girl and was about 22 years of age.

Shortly before in the year 1967 she had passed her B.Sc. examination. Dr. G, a.utam was about 35 years of age at the time of occurrence.

He was a married man and had his wife living.

There were three children born of their wedlock. Dr. Gautam was attached to Balrampur hospital, Lucknow in the year 1966. Azizur Rahman had a paralytio attack and was admitted in Balrampur hospital on 7-5-1966.

He wa, s treated as an indoor patient in a special ward of the hospital for about 20 days by Gautam under the supervision of senior Doctors.

The family members including Shamim were visiting Azizur Rahman in the hospital and the love episode sta.rted there between the voluptuous Doctor and the unscrupulous Shamim.

Azizur Rahman after being discharged from the hospital lived in the Kandhari Lane house with his family members namely his wife, the two daughters and the voung boy, for sometime.

Dr. Gautam used to visit and look afte~ Azizur Rahman at the house also.

The love affair of Gau1<1m and Shamim went on progressing and reached a scandalous height. Gautam started visiting Shamim at her house too frequentlyalmost daily-and sometimes more than once in a day.

He used to take her for joy rides on his Scooter.

Records of this case do not disclose any resentment or protest on the part of the family

members of Shamim although being unmarried she was carrying on almost openly with an elderly married person. But the mohalla people did not like this drama of love affair being ena.cted in their locality without any sense of shame or scrupules.

The various love letters written by Gautam to Shamim and some chits written by the latter, which were recovered from her possession after the occurrence showed that their love h, ad reached the low level of sexual lust also. It appears Gautam was a handsome looking man and Shamim was infatuated in her love with him. She wanted his exclusive attention. And what

a curious manifestation of human psychology and se!fiishness it was, that though Shamim had encroached on the exclusive region of Gautam's wife, she was not prepared to tolerate any encroachment in the realm of her love by any other girl. Materials in this case do indicate that the Doctor was a free-lancer and a licentious man. He often used to visit cinemas, theatres, rest, aurants and was always after pastures new.

At times Shamim used to resent and feel highly disgusted with the free lancing habits of Gautam so much so that on one occasion in Janua, ry, 1968 it is said that she slapped Gautam in front of Kwality Restaurant situated at Hazratganj. For sometime before !he occurrance Gautam endeavoured to be treacherous and wriggle out of her affairs with Shamim. She wanted to keep him tightly in her clutches.

Gautam was feeling it difficult to get himself released from her clutches as she was in possession of his love letters. The frequency of his visit~ to her house, however, lessened. On the 9th of July, 196.8 he was found going on scooter with another girl riding on its

u1lhon. The fact was reported to Shamim by Ganesh-a servant of appellai:t Amir Ahmad. This aded sufficient quantity of fuel to the fire of 1ealously and hatred which was already burning in the heart of Shamim.

There were frequent quarrels between Shamim a.nd Gautam. On the 10th July, 1968, Gautam visited Shamim's house in the evening,

A although for 10 or 12 days before the occurrence, the frequency of his visits had diminished. In that visit there was a quarrel between them. On the '11th July, 1968 Gautam visited Shamim agajn in her house at about 3.00 p.m.

There was an altercation between them.

When the Doctor was leaving the house, Shamim asked him to come for the last time in the evening under the pretext of helping her in B filling up her , a, dmission form.

In the evening of the 11th July, Dr. Gautam first went with his wife to the house of a Principal of a College for a social caR.

P.W. 17 Mohd. Sabir Khan was posted as Deputy. Superintendent of Police, C.I.D: at Lucknow at the relevant time. He was a patient and a friend of Dr. Gautam. He was suffering from a severe, headache c and Dr. Gautam went to the house of the Dy. S.P. from the Principal's house._ Doctor gave him some medicine and had a cup of tea at his place.

He left .his house on the pretext of going to the Civil Hospita.J to which he had been transferred from Balrampur hos- , pita!; but instead be want to the house of Sbamim at about 10.30 p.m.

He rang call-bell. Shamim came out and opened the western door D of the drawing room. It bad three doors. The central a.nd the eastern doors were closed.

To the east of the dra, wing room was a room in which Shamim used to sleep. There is another room to the west of the drawing room.

Gautam and Shamim talked about for 20 minutes in the drawing room.

The former came out, went to the Scooter for going away.

E Bnt Shamim called him back. As soon a, s he stepped back and reached inside the western door of the drawing room Shamim who had by then brought a DBBL gun, fired a shot at Gautam. It seems he crouched and the first short missed.

Shamim repeated the second shot intaneously and hit Gautam on the right side of his forehead.

He fell down. The lower half of the body was inside the drawing room and the upper half was outside the door in the verandah. P.W. 15 F Kalika Prasad-the most important witness in this case and a, h immediate neighbour of Shamim. was lying on a cot outside his room.

He has deposed to several facts to supply various links in the chain of 'the prosecution story. Aprt from other facts stated by him in his deposition it is said that he and P.W. 18 Ram Krishna Tripathi saw Shamim immediately after the gun fire going with a gun in her right hand from the eastern side of the drawing room to the G western room.

They went near the dead body of Ga.utam, peeped into the drawing room but saw no one else there.

Sheikhu after the incident rushed to the house of appellant Amir Ahmad on a cycle.

Amir Ahm11.d came to the house.

He then went and loged an information at Kaiserbagh Kotwali at 1.30 a.m. on the 12th July, 1968. In short his information to the police was H that Sheikhu had told him that it was not known how Shamim brought

out the gun arid how it got fired but the shot hit Gautam who was ·· lying bleeding in the verandah of the drawing room. Tn the meantime Kalika is said to have heard the extr.a-.iudicial confession made by

Shamim before her mother sitting on a cot in the courtyard. Tripathi claimed to have heard a similar extra-judicial confession made by ShJ\lllim before her brother Amir Ahmad.

SHAMIM RAHMANI v. u. !'. STATE ( Untwalia, J.)

After receipt of the information at the Kotwali, the first to arrive at the scene of occurrence was Sub-Inspector Dildar Raza, P.W. 28.

The various steps taken by him, the recovery of the licensed gun (standing in the_ name of Sikander Jahan), the fired cartridges a, nd certain live cartridges are all mentioned in the judgments of the courts below.

The case naturally required a very prompt, intensive and thorough investigation.

Services of 11 Ballistic Expert, Handwriting Expert, Photographers belonging to the Criminal Investigation Department were requisitioned.

Under orders of P.W. 17 Mohd.

Sabir Khan later in the day the investigation was_ taken u_p by C.l.D.

Inspector P. N. Singh from P.W. 28 Dildar Raza. After a, few days the investigation was taken up by P.W. 31 K. P. Tiwari who even- .tually submitted the Charge-Sheet.

The defence of appellant Shamim was that she did not commit the murder. Eventually it was , a, dmitted on her behalf that she was fa deep love with the Doctor. It was, however, denied that she had developed any jealousy or hatred or had any quarrel or difference with him. .Like a drowning man catching at the straw, wild suggestions were thrown tl\a.t there was a possibility of the murder of the Doctor having been committed by her cousin Iqbal Uddin Khan, P.W. 24, any of his family members or somebody else.

Appellant Amir Ahmad in his defence asserted that on receiving the information from Sheikh he did not go to Shamim's residence, first went to Hazratganj Police Station •and from there he went to Kaiserhagh Police Station. He denied to have lodged a written report Ext. Ka-12 or to have given deliberately any false information in order to screen his sister.

The Trial Court believed the prosecution case and held it to have been established against both the accused and convicted them.

The High Court affirming the findings. of the Trial Court has maintained their conviction.

A_s already stated it has reduced the quantum of sentence imposed on appellant Amir Ahmad.

The High Court has scanned the prosecution evidence very carefully.

It J, as left out of consideration the evidence of P.W. 18 Tripathi as a matter of abundant caution only on the ground of his having been examined late by the Investigating Agency on 16-12-1966. Topic-wise it has discussed the evidence and has met the criticism of the defence witnesswise also. On consideration of the entire evidence it has recorded the following conclusions of facts :

"1. that there was love affair between Km. Shamim Rahmani and Dr. Hari Om Gautam.

2. that after being assured of the love professed by Dr.

Gautam, Km. Shamim Rahmani behaved as a love- H Jorn girl.

3. that after seducing Km. Shamim, Dr. Gautam turned unfaithful to her and in spite of his written promises and the entreaties of Km. Shamim, he continued to be un-faithful.

4. that after Dr. Gautam had given written promises and had broken them, Km. Shamim slapped him openly and publicly in Kwality Restaurant.

5. that some 12-15 days before the murder Dr. Gautam had stopped visiting Km. Shamim so frequently as he had been doing earlier, and her entreaties had also failed to have any effect on Dr. Gautam.

6. that Dr. Gautam was threatened by Km. Shamim on occasions for being unfaithful.

7. that continuously for two deys before the murder, there had been heated talks between the two.

8. that two days before the murd.er Km. Shamim had been informed by Ganesh tha.t he had seen Dr.

Gautam going on his scooter with another girl like her.

9. that this gave rise to the jealousy of Km. Shamim D Rahmani to the extent that she made enquiries about the whereabouts of Dr. Gautam from his sister and called Dr. Gautam at her house and under the pretext of her illness.

10. th.at a few nours before the murder Km. Shamim

Rahmani had told Dr. Gautam that he should come E m tbe e'!.cning to get her form filled no matter whether he came afterwa.rds or not.

11. that Dr. Gautam was found murdered at the house of Km. Shamim Rahmani.

12. that the gun with which the murder had been committed was fired from inside the drawing room.

13. that after the murder no one except Mohammad Ahmad Rahmani alias Sheikhu was seen going out of the house.·

14. that the gun with which the murder was committed belonged to Smt. Sikander J ah an and was recovered from the bed room of Km. Shamim R11hmani.

15. that Km. Shamim alone had a strong motive to commit the murder of Dr. Gautam to the exclusion of any other meinber of the family or outsider.

16. that except Km. Shamim Rahmani there was no othe1 person present in the drawing room shortly before a.nd after the shooting.

17. that Km. Shamim Rahmani was seen going in the

drawing room from east to west with the gun in her right hand soon after the murder.

J.. •

SHAMIM RAHMANI v. u. p. STATE ( u ntwalia' J.)

18. that Km. Shamim Rahmani made an extra-judicial confession to her mother of her having shot at Dr. Gautam shortly after his murder."

It ha/; also opined that even if the last two facts were left out of consideration the other sixteen were conclusive to irresistibly lead to the conclusion that it was Shamim and Shamim alone who was responsible for the murder of Gauta, m by gun fire.

While endorsing the view of the High Court in this regard we find no justillcation for leaving the last two facts out of consideration for finding the guilt of appellant Shamim.

We now proceed to briefly refer to the various topic-wise and witness-wise discussion of the case by the High Court.

Since we find ourselves in complete agreement with the judgment of the High Court, we do not propose, as it is not necessary to do so, to mention or discuss the va, rious aspects of the case in any detail.

The High Court has first pin-pointed its attention on the topography of the place of occurrence.

Thereafter it has directed its attention to the evidence of Dr. Suri who had performed the autopsy on the dead body of Gautam.

From the statement of Dildar Raza a, s well as from the copies of the various photographs exhibited in the case the position in which the dead body was found was fixed up. The various matters mentioned in the judgment of the High Court on the question "WHETHER THE SHOTS WERE FIRED FROM INSIDE 11IE DRAWING-ROOM OR FROM OUTSIDE" are so convincing that one could not but come to the conclusion thAt the shots were fired from inside the drawing room and not from outside.

The various findings of bullet marks on the wall, the calendar, the door parie in the light of the evidence of the Ballistic Expert did not leave any scope for even a shadow of doubt that the Doctor wa, s hit by a gun fired from inside the drawing room. The assailant at the time of firing was not and could not be visible to persons outside as the shots were fired from a place inside the drawing-room which was south east of the western door.

And that is the reason that Kalika did not say tha, t he saw Shamim firing the shots at Gantam.

He merely deposed to the facts of the former proceeding to the western room immediately after the firing.

It may also be added that the fact that the shots were fired from inside the drwing room was neither disputed in the High Court nor before us.

For the reasons stated by the High Court in its judgment, we unhesitatinglv endorse its View that the shots were fired from the 20 Bore DBBL gun which was recovered from the eastern room and the licence of which was in the name of Sikander Jahan. Stress was laid before us that P.W. 14 Siya Ram Gupta. the Ballistic Expert hed deposed with reference to the two empty cartridges found at the spot that the shots could have l)een fired from the 20 Bore DBBL gun of Sikander Jahan ; the expert was not definite about it. We fif">IJ n0 f0rcc in this :irwn1ent. Even the t\vo fire<l emptv c;:irtrfrl('es were T'ecovered from the eastern roon1 and keening in vie\v the fact that Guota's evidence was not a direct evidence but an opinion evidence of the Expert and on appreciation of his evidence as a whole

' 321

A in the background of the other facts and circumstances there could

not be any shadow of doubt that it was the DBBL gun of Sikander Jahan which was used in firing the shots at Oa, utam. Learned counsel for the appellant Shamim further submitted that Gupta had found some finger prints on the gun but the prosecution suppressed the Expert's report presumably because it did not bear the finger prints B of Shamim.

We think it has rightly been pointed out by the High Court that the gun in all proba, bility was handled by other members of the family and the prosecution could not be, therefore, certain about the finger prints.

Although we do not consider it necessary, 'as we have repeatedly said in this judgment, to repeat all that was argued before us, as it wa, s a mere repetitio9 of the argument before c

the High Court, out of deference _to the pains-taking arguments of Mr. Yogeswar Prasad, just at times, we mention one or two matters.

It was argued that in the recovery memo Ext. Ka-239 Raza did not mention that fro~1 the smell of the barrels it appeared that the gun had been recently fired as deposed to by him in court. He did say so with reference to the case diary.

There was nothing shown either in the Trial Court or the High Court to contradict the state- D ment. The recovery memo of the two fired cartridges i.s Ext. Ka-240.

They were of "twenty bore coloured brown Eley Kynoch which arc giving the odour of freshly used gun-powder".

We may in passing refer to the recovery memo Ext. Ka-241 which showed recovery of five numbers of live cartridges of "twenty bore coloured brown of Eley Kynoch".

On consideration of the entire. submissions made on behalf of the appellant, we are fully satisfied that the gun used in the occurrence was the gun the licence of which stood in the name of the mother of appellant Shamim.

The time and place of occurrence was not disputed.

Nor was it disputed that "ihere wa, s a love affair between Shamim and Dr.

F Gautam and that they had physical intimacy as well." One has simply to pity the lot of Sharnim who surrendered to the Doctor her virginity and thereafter felt frustrated.

It must have completely upset her mental ha.lance. Relying on the evidence of P.W. 10 Gyani Mahendra Singh it has rightly been held by the High Court that the slapping incident in the Kwality Restaurant as deposed by him was trne.

There were several letters in the handwriting of Dr. Gautam Ext. -

G Ka-21 is dated 17-1-1968 containing~ show of promise by him that thenceforward he would not witness any cinema show or go to any restaurant, coffee house or club.

Before that is a letter Ext. Ka-20 dt. 27-7-1967 containin~ promise of Gautam that he would not talk about any girl.

All these letters were addressed to Shamim and were recovered from the eastern room in which she used to reside.

ff The High Court has rightly believed _the evidence of P.W. J.9 Ganesh Prasad.

All criticisms levelled against his testimony were fruitless and rightly so.

Shamim was so much infatuated in her love with' the Doctor that at one time she tola her mother when there was a talk of Dr. Gautam's transfer from Lucknow that she would embrace Hinduism and go with him to his place of transfer.

The mother consoled her that attempts would be made to get his ).... "

SIIAMIM RAHMANI v. L'. P. STATE ( Untwalia, J.) 323

tr.a, nsfer cancelled.

It appears that the attempts did succeed and i\ Dr. Gautam was eventually transferred from one hospital. to the other in the City of Lucknow.

Ganesh deposed about the mformation given by him. to Shami!!'. on 9:7-1968 that. he had seen_ the Doctor going on bis scooter with a girl like Sham1m. 'f.lus mc1dent seems to have completely unnerved the infatuated Sham!ID and put

hcrt~~.

The evidence of Dr. S. N. Rav, P.W. 20-another close neighbour of Shamim Shushila Kumari, P.W. 21-a college friend of Shamim and Kunia:i Shashi Kanta Gautam, P.W. 23-sister of Dr. Gaµtam amply proves some of the facts found by th~ !'Iigh Court in its ultimae conclusions.

Unnecessary and pointless cnt1c1sm was made of their C evidence in the High Court with no result.

The appraisal of the evidence of these witnesses by the High Court was so very right that it was only hoping against hope to get a different result in this Court.

On the point of the breaches which had been caused by the Doctor in bis affairs with his beloved the prosecution could place on record a letter Ext. ka-29 deciphered with the help of an Expert. It does not bear any date. But jt has been proved to be a, writing of Shamim . to Dr. Gautam. It reads thus :

"Do not commit fraud with the girl otherwise in your life too such a time could come sometimes."

To resume the story of the last two days of the tragic love drama, it may be pointed out that Kalika saw Dr. Gautam going to the House Shamim on 10-7-1968.

He heard their altercation.

Again ou 11-7-1968 Kalika saw the Doctor cori\Tn]l to Shamim's house at about 3 .00 p.m. There was a heated altercation between

the two but he could not catch the words as it was going on in F the drawing room. After 15 minutes when bofh came out in the verandah then he could hear Shamim asking Gautam to get her work done.

Gautam w11.nted to evade but Shamim sternly told him "that she had already heard such provocative words but further requested hill1 that her form be filled up that night and after that he might come or not."

G Before we refer to the criticism levelled a11; ainst the testimony of the most important prosecution. witness Ka!ika,, we may point out that Iqbal Uddin Khan was examined as a , prosecntion witness. He was in the house of Shamim for a few days prior to the occurrence but left the house af about 3.00 p.m. for going to Barielly by Punjab Ma, il. His evidence completely negatives the suggestion that he could have been responsible for the murder of the Doctor. We may also H dispose of the point which' was sought to be vehemently pressed before us that the police investigation in this case was not fair and proper. It was argued that P.W. 17 Mohammad Sabir Khan being a friend of the Doctor took an unusual interest in the investigation and he was responsible for asking P. N. Singh to take up the investigation from Dildar Raza. It was further submitted that Crime

-~,.._.,._,,,_ __

A number was given to the case after 4.00 p.m. on the 12th July although investigation started earlier.

Then it wii, s argued that Ext. ka-230 the typed letter asking P. N. Singh to take up the investigation bore the crime number although P. N. Singh took up the investigation at about 3 .00 p.m. on the 12th July. It was, therefor~, submitted that the letter was a fabricated a.nd anti-timed document.

B The learned Additional Sessions Judge and the learned Judges of the High Court have given a complete answer to all the criticism.

The last point was repelled with reference to the handwritten letter Ext. Ka-254 which bore the endorsement of Dildar Raza also. We have no doubt that. the investigation was conducted promptly and faithfully and could not be subjected to any due criticism. c The High Court has excluded even the remote possibility of the murder having been committed by Sikander Jahan, Naseem, Sheikhu or Sughara, their maid servant. ln our opinion, hinting upon the possibility of the murder having been committed by any of them was an attempt in desperation to catch in air something to save Shamim.

Then comes the evidence of Kalika.

As already stated his testi- D mony is in support of many facts which make the cover of circumstances full-proof against Shamim.

Having considered his evidence in the light of the criticism, we see no justification to reject it in disagreement with the two courts below.

Apart from being a witness to the love affairs of the Doctor and Shamim, the visits of the former to the latter, he was also a witness to the fa.ct that Gautam was not visiting Shamim's house so frequently as he had E been doing earlier shortly before the occurrence.

He was a direct witness to his visits to Shamim's house on the 10th and twice on the 1 lth. His evidence that he had seen Sh:\Illim going in the drawing rooiu from east to west with the gun in her hand immediately after the shooting was quite trustworthy.

Even though the eastern plank of the western room of the drawing room was shut, through the F remaining open space of the western door Kalika could very well see Shamim pa, ssing in the drawing room with a gun in her hand.

There was sufficient light. His evidence as to the extra-judicial confession made by Shamim to her mother seems to be quite natural and convincing. On query by the mother the reply given by Shamim was that she had done nothing wrong in shooting Dr. Gautam when he went hack from his promises a.nd was proving unfaithful.

From G the view point of common ethics or morality one may say that

Shamim committed no sin in shooting dead a man like Gautam, although she was contributory in the act of Gau tam's lust for her. But in the eye of law, she surely committed the crime of murder punishable under section 302 of the Penal Code.

Even if we wished, we could not reduce the sentence of life imprisonment imposed on her as that is the minimum sentence provided under section 302 of the H Penal Code.

Her mercy appeal for remission of any part of her sentence lies elsewhere.

The criticism 1eve1Jed against the prosecution \Vitness KaHka are: ( 1) That he was examined late by the police in the evening of the 12th July, 1968.

... .

SIIAMIM RAHMANI v. u. P. STATE (Untwa/ia, J.) 325

(2) That the parchas containing his statement were sent to the office of the Superintendent of Police on the 15th July.

( 3) That there are material contradictions in his evidence.

(4) That there is an interpolation in the case diary where Kalika's statement has been recorded.

(5) That he was inimical to Shamim's family.

(6) That he deposed in court as admitted by him from his fits of imagina.tion and not on facts from his occular observations.

( 7) That he could not see Shamim passing in the drawing room with a gun in her hand.

(8) That his evidence as to the alleged extra-judicial confession made by Shamim before her mother is untrustworthy.

We find no substance in a, ny of the criticisms made on behalf of appellant Shamim. Some of them have already been alluded to.

On the facts explained by him, his examination by the police was not late. High Court has found a plusiblc reason for the receipt of the parchas in the S.P.'s Office on the 15th.

There is no such interpolation in his statement in the case diary which could cause any dcmbt in respect of it.

He was not inimical to Shamim's family.

His statement in the deposition at times that whatever came in his mind he had !lated means in the context that whatever he conld recollect he had stated. It is just a figment of imagination to suggest that his statements were the products of his imagination. We have already reiterated the view of the High Court that he could very well see

Shamim going in the drawing room with a gun in her hand and that his evidence as respects her extra-judicial confession is trustworthy.

Although the learned Additiona.l Sessions Judge was not unjustified in relying upon the evidence of P.W. 18 Tripathi, the High Court also seems to be justifiably cautious when it thought it proper to exclude his evidence from consideration. There was some .iustification for it because he was examined late by the police. The exclusion of his evidence from consideration, however, as we shall presently show, goes a long way to help ; ippellant Amir Ahmad.

For the reasons stated above we see no substance in the appeal filed by appellant Shamim Rahmani and dismiss it.

Coming to the appeal of appellant Amir Ahmad, we would first like to quote the translation of the written report given by him at

A the police 'station, from the judgment of the Trial Court. It reads as -

follows :

"Sir,

I . beg to state that I reside along with my family in 24/1, New Berry Road. My mother along with two sisters reside in my younger brother's house No. 23, Kandhari Lane.

Today at night about 11.30 my younger brother Mohammad Ahmad Rahmani came to my house and started knocking the main gate with great force on which I opened the door. Mohamma, d Ahmad told me that a strange thing has happened in the house. On my asking, he told that he did not know how his ;; ister Shamim took his gun outside and somehow a fire was shot. The bullet hit Dr. Gautam and he has fallen and is bleeding. After writing my report the necessary action may be taken. Applicant Amir Rahmani s/o Azizur Rahman Khan resident of 24/1 New Bery Road, Lucknow 12th July, 1968."

D We do not doubt in the least that this was the written report given by this appellant at Kaiserbagh Kotwali.

The attempt made on his behalf to show that he-had not gone to the place of occurrence before going to the Thana or that he had not given this written report at 1.30 a.m. on the 12th of July has rightly failed in the courts below. But the question for consideration is whether with- E out the aid of the evidence of P. W. Tripathi it could be held that the requirements of section 201 of the Penal Code have been fulfilled against him.

The evidence of Tripathi was as respects the extrajudicial confession said to have been made by Shamim before this appellant. If that could be taken into consideration then one could say that he knew that the offence of murder had been committed by his sister.

On tha, t basis it could be held that the written report as F given by him was with the intention of screening the offender from legal punishment and he kne'w the information to be false.

But once that goes out then we are left with what he learnt from Sheikhu and what was told to him by Kalika. We believe the testimony of Kalika to the effect that Amir Ahmad had gone to the place of occurrence on a motor-cycle or a scooter andhe had told him everything. But then, what follows ?

Kalika had not stated ( that he had seen Shamim firing a.t the Doctor.

The facts narrated by him must be, more or less, in brief those as told by him in court.

On these facts Amir Ahmad could neither know nor could have reason to believe that Shamim had committed the murder of the Doctor. More facts were yet to be known. He did nothing wrong in rushing to the Police Station . and giving the barest infor111ation in writing. No other part of the statement is .said to be false except the H following :

"Mohammad Ahmad told me that a strange thing has happened in the house. On my asking, he told that he did not know how his sister Shamim took his imn outside and somehow a fire was shot. The bullet hit Dr. Gautam and he has fallen and is bleeding."

SHAMIM RAHMANI v. u. P. STATE (Untwalia, J.) 327

Prosecution could not unfold that Mohammad Ahmad alias Sheikhu A had told anything further to Amir Ahmad. The fact that his sister Shamim took out the gun was true.

That shot was fired was also true. It was a fact that the bullet hit the Doctor. That he had fallen and was bleeding was not untrue. Amir Ahmad may not be sure whether the Doctor was dead or alive. It was not obligatory or necessary for him to probe the matter any further at the spot before B rushing to the police station.

In our judgment, therefore, after exclusion of the' evidence of P, W. Tripathi from considera.tion all the ingredients necessary to be established for bringing home the charge

under section 201 of the Penal Code to appellant Amir Ahmad were not proved beyond reasonable doubt. He may have known or may have reason to believe tlrat a.n offence of murder bad been committed by his sister Shamim. But the other possibility that he may not have C known or may not have reason to believe, he may have only susected that the offence of murder .had been committed by Shamim, cannot be ruled out. That being so, we think the benefit of doubt must go to appellant Amir Ahmad. We accordingly allow his appeal, set aside his conviction and sentence under section 201 of the Penal Code and acquit him of that charge.

Cr. As. Nos. 121-122/73 dismissed .

Cr. A. No. 123/73 allowed.

P. B. R.

10 SC/75-22

SHAMIM RAHMANI ETC

STATE OF U.P

N. L. UNTWALIA ANDS. M. FAzAL ALI, JJ

Penal Code

S. 201

s. 302

I.P.C

s. 201

I.P.C

s. 201

section 302

Indian Penal Code

section 201

Penal Code

section 302

Penal Code

section 302

Penal Code

section 201

Penal Code

section 201

Penal Code

section 201

Penal Code


N. LAKSHMANA RA•) & ORS. ETC. v.

STATE OF KARNATAKA & ORS. ETC.

April 29, 1975

(A. N. RAY, C.J., K. K. MATHEW, V. R. KRISHNA IYER

AND A. C. GUPTA, JJ.J

Kurnataka State <7hil Service (Age of Con1pulsory Retiren1e111) Rules, 1974 and Constitution of India, 1950. Article 309 and 311-Reduction of rhe aRe of conipulsory retirernent froni 58 to 55 years-Prescribing age of supe.r~ C annuation, if an1ounts 10 re1noval or termination.

Mysore CO!npulsory Prbnary EducaHon Act, 1969, Section 14(b)-Teachcrs of pritnary schools beconiing eniployees of State Gi0J-en11nent-Conditions of seri•ice to continue "r, ntil other pro1•ision is 1nade"-Section 14(b), if tempo rary .and transitional--Conditions, if can be altered by the Governor.

The new State of Mysore came into existence on 1 November, 1956, con sequent upon the reorganisation of States brought about by the States Rcorga nisation Act, 1956. The reorganised new State consisted of the fonner State of Mysore, part of the former State of Bombay, part of the fonncr State of llyderabad, part of the former State of Madras and the ccntrn11yadministered tcrritorj.i of Coorg. There are three categories of teachers \vho are parties to these appeals. One group consists of primary and secondary school teachers in Government schools of the former State of Mysore. The second group consists of teachers in the schools belonging to various local authorities situated in the area of the former State of Mysoce.

These teachers were absorbed in Government service of the new State of Mysore when the said schools were taken over by the Ciovemment. The third groupcortsists of teachers in the schools of the School Boards in the Bombay area and the Madra<J area of the: new State. They \\ere absorbed in Government service under the J\-fysore Compulsory PrimJ.ry Education Act, 1969.

On 24 February, 1974, the Karnataka State Civil Service (Age of Con1pulsory Retirement) Rules, 1974 came into existence in exercise of powers under Article 309 of the Constitution. These rules provided that notwithstand ing anything to the contrary contained in any law, ruie, notification, order or agreement C\'ery Government servant referred to in sub-rule ( 4) whose :.ige of compulsory retirement is 58 years shall retire on <:.ttaining the age of 55 years. It was also provided by those Rules that those who continued in service after attaining the age of 55 years on the date of the promulgation of the l{ules would retire on the date on which they attained the age of 58 years G or l April, 1974 v; hichever is earlier. It is also stated that those who ,.,.-jll attain the age of 55 years after the commencement of these Rules, but on or before 1 April, 1974 would retire on 1 April, 1974. Those who \Vi11 attain 55 years after 1 April, 1974 shall retire on attaining the age of 55 years. The Govern ment servant was defined in 1974 Age of Compulsory Retirement Rules to mean six classes of Government servants. The three categories of teachers who are parties to these appeals are all covered by the nlles.

ll It was contended on behalf of the ExMysore Primary and Secondary School teachers that they had their age of retirement at 58 years and they were protected under the proviso to subsection (7) of section 115 of the States Reorganisation Act. It was contended on behalf of the teachers of ExMunicipal High Schools that their age of retirement \vhich \\'as applicable to the Municipal Jfjgh School Teachers before the date of take over was 58 years, and therefore, they were protected under the agreements du.ted 30th April, 1971. rhe contention on behalf of the teachers of elementary schools which were under the management of local bodies and v.hich were

A •

N. L. RAO 1'. KARNATAKA (Ray, C.J.) 329

taken over by the State Government that their age Of retirement was 58 years A before the schools were taken ovrer by the State Government under the provi sions of Karnataka Compulsory Primary. Educati9n (Am1; ndment an<l Miscellaneous Provjsions-) Act, 1969 and their conditions w0uld continue until other condition was n1ade. The principal contention of the teachers of the •

~Iunicipal and Taluk Development Board High Schools which were taken over by .the State Government under written agreements made by the rclc vant local body v; as that the condition which was offered by the Government and accepted by these teachers "shaH not be altered to their disadvantage" B by virtue of sc.ction 14(b) of the ~1ysore Compulsory Prim::iry Education Act, 1969. One of their conditions of service before the schools were taken - ove, r by the State Government \\as the age of retirement of teachers at 58 years.

Rejecting the contentions and dismissing the appeals :

FIELD : .(i) This Court has held that prescribing an age of superannuation C doe-S not amount to an action under Article 311 of the Constitution. Article 'i. 309 confers lgislative power to provide conditioni, ot service. , The legislature can regulate conditioµs of service by law \Vhich can impair conditions or terms of seivice. it, therefore, follows that teachers \Vho exercised the form of option \Vere subject to change in the conditions of service under Rules framed under Article jQ9. There is no constitutional limitation to reduce the age of retirement. A Government servant e-njoys the status of a Govenuncnt servant. He cannot be removed and •his . services cannot be terminated except D in accordance with the provisions of the Constitution. Fixing an age of retire ment does not amount to removal of termination.

[333H, 334- & 335A]

Roshan Lal Tandon v. Union of India [1968}1 S.C.R. 185; B. S. Vadera v.

Union of India & Ors. f1968) 3 S.C.R. 575 and Bislzun /\larai11 Mishra v. Stare of Uttar Pradesh & Others [1~65] 1 S.C.R. 693, relied on :

Gurdev Singh Sidhu v. State of Puniab & Others [1964] 7 S.C.R. 587 and State of Mysore v. Pad111ant1bhaclzarya [1966] 1 S.C.R. 994, , referred to.

(ii) The 1969 Act provided in section 14 transfer of primary schools managed by the municipal rouncils and panchayats in the Madras area and Bellary District before the appointed day.

Teachers of those schoo]s became employees of the State Government. The provision contained in section 14(b) of the 1969 A.ct is a temporaiy and transitional provision \Vhich continues until other provision is made. The Legislature does not say until other provi- F sion is made because the Legislature is always free to legislate. The words

util other provision is made" mean provision which can be made by the legislature or by the Governor or the executive. The words "until other provit sion is made" do not exclusively limit to legislate. If the legislature has occupied the field the Governor has co-equal power. 'J'be power of the Governor is co-extensive with the legislative po\\'er.

[335 BCDH]

B. S. Vadera v. Union of India & Ors. L1968] 3 S.C.R. 575, refe1Ted to.

~tion 14(b). of the 1969 .Act is not a law regul<lting recruitment and cond1hons of sery1ce under Article 309. Assuming it is, Article 309 does not

prelude the legislature from making provision prescribing conditions or re cru1tment and conditions of service by Rules. It is equally open to the Jegislature to provide tha~ in certain ronditions the Governor acting under the proviso may make appropnate rules. The po1, ver under the proviso is co-extensive with the power under the main part. [335F-H]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1919- 1931, 1932-34, 1959-84, 1985, 1986, 1987-89 1991-2007 & 2043 of 1974. '

From the judgment dated 18-J 0-197 4 of the High Comt of Bangalore in Writ Petitions Nos. 1019, 865, 1118, 1157, 1197, 2522,

A 2584, 2904, 3576, 4029, 5662, 1170 & 3204 of 1974.

A. K. Sen (In C. A. No. 1919 of 1974) Rama Jois, (In C. As. 1919-31) & (W.P. No. 249/74), P. R. Ramasesh (In C.As. Nos. 1919-31) and R. B. Datar, for the appellants (In C.As. Nos. 1919-31, 1987, 1988, 1991-2007, 2043) & petitioner (In W.P. n No. 249 of 1974). .

S. Laksluni11aras11, for the petitioners (In C.As. Nos. 193'.!-34).

Rama Joie and S. S. Khanduja, for the appellants (I~ C.As. Nos. 1959-84/74).

C Narayan Nettar, for the appellants (In C. As. Nos. 1985-86( 1974).

V. !. Francis, for respondents Nos. 4-8 &, 10 (In C.A. 1983).

F. S. Nari111a11, Additional Solicitor General, (Jn C.A. No. 1919) D K. S. Puttaswamy, (fo C.A. No. 1919/74) & (W.P. No. 249/74) and M. Veerappa, for State of Karnataka in all the matters.

A. R. Somnath Tyer, N. D. Kurlarni (Jn W.P. No. 21/75) and Ra111a Jois and R. B. Datar, for applicant/Intervener/Writ Petitioner.

The Judgment of the Court was delivered by

RAY, C.J .-These appeals by certificate turn on the question as. to whether the Karnataka State Civil Services (Age of Compulsory Retirement) Rules, 1974 are valid.

These cases may be broadly classified into three categories. One F group consists of primary and secondary school teachers in Government schools of the former State of Mysone. The 5econd group consists of teachers in \he schools belonging to various local authorities situate in the area of the former State of Mysore. These teachers were absorbed in Government service of the new State of Mysore when the said schools were taken over by the Government. The third group consists of teachers in the schools of the School Boards in the Bombay G area and the Madras area of the new State. They were absorbed in Government service under the Mysore Compulsory Primary Education Act, 1969.

The new State of Mysore came into existence on 1 November,. [ 956 consequent upon the reorganisation of States brought about by the States Reorganisation Act, 1956. The reorganised new State conn sistcd of the former State of Mysore part of the former State of Bombay, part of the former State of Hyderabad, part of the former State of Madras and the centrally administered territory of Coorg .

. Sections l l 4 and 115 of the States Reorganisation Act deal with

allotment and transfer of State Services of the merged parts of the '- • new State.

' . ..

N. L. RAO v.KARNATAKA (Ray, C.J.) 331

 The School teachers of the former State of Mysore were allotted A to the new State of Mysore with effect from 1 January, 1956. Their age .of retiremno under the Mysore Services Regulations was 5 8 years. Some time in the year .1957 the State Government reduced their age of retirement .to 55years . .The teachers challenged the reduced age of retirement. This Court in State of Mysore v. Padmanabhacharya

(1966) 1 S.C.R. 994 UJ?held the contention of the teachers that the B age of retirement as fixed by the State was illegal. It may be stated here that the State did not obtain the prior approval of the Central Government under section 115 (7) of the States RcorganisatioQ Act in regard to the reduction of the age of compulsory retirement.

By notification dated 14 April, 1966 the age of retirement of primary and s.econdary school teachers in the new State was fixed at 58 vears with effect from 5 April, 1966. The age of retirement of teachers who were allotted from other integn1ted areas was 55 years.

By nqtification dated 15 April, 1966 a uniform treatment was given to all the Primary and Secondary School Teachers of the new State

of Mysore by fixing their age of retirement at 58 years. ·

 , D By noti(ication dated 10 July, 1970 the age of retirement of teachers in the Collegiate and Technical Education Department was raised to 58 years.

By notification dated 6 'May, 1971 the retirement age of teaching staff of the Medical and Dental Colleges and other colleges under E the Department of Health and Family Planning Services wa~ raised to 58 years.

By another notification dated 24 June, 1971 the age of retirement of the members of the teaching staff of the Law Colleges was raised to 58 years.

By another notification dated 5 August, 1972 the age of retirement of the members of the Judicial Service was raised to 58 years.

The Karnataka Civil Services (Twenty-Second Amendment) Rules, 1973 provided the age of retirement of all teachers in all the Departments except Ex-Mysore Primary and Secondary School Teachers at 55 years.

The teachers of the erstwhile local authorities were not covered

by the Karnataka Civil Services {Twenty-Second Amendment) Rules, 1973 as they were governed either by contract or by special laws.

Thcir age of retirement was 58 years. They were asked to retire on H attaining 55 years. They filed writ petition challenging the reduction in age of retirement.

The Mvsore Service (Amendment) Regulations 1974 were promulgated on. 21 January, 1974 reducing the age of retirement of Ex- Mysore teachers from 58 to 55 years.

332 SUPREME COURT REl'ORTS

(1975) SUPP• S.C.R.

A The Mysore Civil Service Regulations 1974 were made in exercise of the powers conferred by the proviso to Article 309 of the Constitution and with the previous approval of the Central Government under the proviso to sub-section (7) of section. 115 of the States Reorganisation Act. These Mysore Civil Service Regulations 1974 provided that every Government servant governed by the provisions of note 4 below B clause (c) of Article 294 of the Mysore Civil Service Regulations would retire on attaining the age of 55 years and those who were continued in service after attaining the age of 55 years on the date of the Regulations would retire on attaining the age of 58 years or I March, 1974 whichever is earlier.

C The Mysore Civil Service (Amendment) Regulations, 1974 thus reduced the age. of retirement of Ex-Mysore teachers also to 55 years.

On 24 February, 1974 the Karnataka State Civil Services (Age of Compulsory Retirement) Rules, 1974 came into existence in exercise of powers under Article 309 of the Constitution. The Kar- D nataka State Civil Services (Age of Compulsory Retirement) Rules,

197-1 provided that notwithstanding anything to the contrary contained in ai:iy Jaw,. rule, notification, order or agreement every Govcrnn1nt servant refcn-cd to in sub-rule ( 4) whose age of compulsory retirement is 58 years shall retire on attaining the age of 55 years. It was also provided by those Rules that those who continued in service after attaining the age of 5 5 years on the date of the promulgation of the E Rules would retire on the date on which they attained the age of 58 years or 1 April, 1974 whichever is earlier. It is also stated that those who will attain the age of 55 years after the commcncemeht of these Rules, hut on or before 1 April, 1974 would retire on 1 April,

1974. Those who will attain 55 years after 1 April, 1974 shall retire on attaining the age of 55 years. The Government servant was defined F in 1974 Age of Compulsory Retirement Rules to mean six classes of Government servants. The three categories of teachers who are parties to these appea!S arc all covered by the Karnataka State Civil Service (Age of. Compu.lsory Retirement) Rules, 1974 which are referred to as the impugned Rulcs.

The Ex-Mysore primary and secondary school teachers contend G that they had their age of retirement at 58 years and they were protected under the proviso to sub-section (7) of section 115 of the States Rcorganisatim1 Act. The teachers of Ex-Municipal High School taken over under orders of the Government and agreements made by the Government dated 30 April. 1971 contended that their age of retirement which was applicable to the Municipal High School teachers before the date of take over was 58 years, and, therefore, they were B protected under the agreements. The teachers of elementary schools which were under the management of local bodies and which were taken over by the State Government contended that their age of retirement was 58 years before the schools were taken over by the State Government under the provisions of Karnataka Compulsory Primary Education (Amendment and Miscellaneous Provisions) Act, 1969 and their conditions would continue until other condition was made.

N. L. RAO v. KARNAtAKA (Ray, C.J.) 333

The teachers of the Municipal and Taluk Development Board A High Schools which wete taken over by. the State Govenunent under written agreements made .by the relevant local body contended that they became Government servants by . the exercise of option form accepting the terms and conditions .offered by the Government in their order dated 30 April, 197 L These teachers also conte-nded that the option was incorporated in the agreement between the State Govet11" B ment and the relevant local body under whom they were employed. The

princip~I ~Qntention of t)lese techers was that the condition which was offered by the Government atid accepted by these teachers of the relevant local body was that the conditions of service "if these teachers

"shall not l)e altered to their disdvantagc". One of their conditions of service before the schools were taken over by the State. Government was the age oJ rcth:cment of teachers at 58 years. Under the C impugned Rules these teachers were required to retire at the age of 55 years notwithstanding the fact that their age of retirement under the agteemcnt was 58 years. ·

The Government Order dated 30 April, 1971 stated that all employees of the Local Authorities would become Government servants with effect from the date of transfer and their conditions of service would not .be varied to their disadvantage consequent on their transfer to Government cpntrol. The Government order dated 30 April, 1971 further provided that the employees of local bodies and Secondary schools would_ be absorbed in Government service only if they agreed in writing to the forms. By the form is meant the form of option.

The form of option contained two forms. One was whereby the teachers agreed to be absorbed in Government service and the other where the teachers did not agree to be absorbed in; Government service. Those who agreed to be absorbed in Government service stated that the terms and conditions laid down by Government regarding absorption of the members of the staff of local body in Government service consequent on the take over of the local body to the control of Government were gone through and they agreed to be absorbed in Government service. The agreement between the Government and the rele\ant school of the local body pmvided that the service conditions of teaching and non-teaching employees of the local bcdies shall not be varied to their disadvantage consequent on their transfer to Government control.

As a result of tl1e exercise of option by the teachers of the local booies they became Government servants. The term that tl)e service conditions would not he varied to their disadvantage would mean that

thev would be like all other Government servants subject to Article

310(1) of the Constitution. This could mean that under the law these teachers would, be entitled to continue in service. up to ihe age of supetannuation. The exercise of option does not mean that there was H a contract whereby a limitation was put on prescribing an age of superannuation. It has been held by this Court that prescribing an age of superannuation does not amount to a~ act.ion under Article.~11 of_th.e Constitution. Article 309 confers legislahve power to provide con?ttions of service. The Legislature can regulate conditions of service by law which can impair conditions_ or terms of service.

A This Court in Roshan Lal Tandon v. Union of India (1968) 1 S.C.R. 185 said that there is no vested contractual right in regard to the terms of service. The legal position of a Government servant is one of status than of contract. The duties of status are fixed by law.

The terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent B of the employee.

The form of option is the contract. This exercise of option is itself the contract. The option is to be absorbed or not to be atsorl:Jed.

The contractual term is that the teacher will be absorbed as a Government servant. The term in the agreement between the Government C and the Local Body that the conditions of service will not be varied to the disadvantage of the teachers has been read by all teachers who exercised the option to be absorbed. The conditions of service referred to therein arc the conditions of service of the State of Mysore.

In B. S. Vadera v.

Union of India & Ors. (1968)

3 S.C.R. 575 this Court held that if an appropriate legislature has passed an , D Act under Article 309 the Rules framed under the proviso t0 Article

309 would have effect subject to that Act. In the absence of any Act of the appropciate legislature the Rules made by the President or such person as he may direct, are to have full effect.

There is legislative power under Entry 41, List H to legislate for State public services. There is no fetter on the legislative power, to E legislate with regard to service or with regarxl to any other matier

mentioned in the Legislative List . .In Gurde.v Singh Sidhu v. State of Punjab & Anr. (1964) 7 S.C.R. 587 this Court stated that there were two exceptions to the protection afforded by Article 311.. One is where a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which is reasonably F fixed. The other is where a public servant is compulsorily retired un'<ler the Rules which prescribe the normal age of superannuation and provide reasonably long period of qualified service after whjch compulsory retirement could be valid. It is only when a rule is framed prescribing a proper age of superannuation and another rule is framed giving power to the State to retire a permanent public servant compulsorily at the end of 10 years of his service that this Court has apprehended G such cases to be not within the protection of Article 311.

The question of retirement age was considered by this Court in Bishun Narain Mishra v. State of Uttar Pradesh & Ors. (1965) 1 S.C.R. 693. The State Goverrunent in that case raised the age of superannuation from 55 to 58 years and again reduced the age to 55 years. It was held that there is no provision which takes away power of the Government to increase or reduce the age of superannuation.

H When the rule only deals with the age of superannuation and the Government servant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of the service amounts to removal within the meaning of Article 311.

It, therefore, follows that teachers who exercised the form of option were subject to change in the conditions of service under Rules framed

N. L. RAO v. KAR1'ATAKA (Ray, C.J.) ns

under Article 309. There is no constitutional limitation to. reduce the A age of retirement. A Government servant enjoys the status of a Government servant. He cannot be removed and his services cannot be terminated except in accordance with. the provisions of the Constitution. Fixing an age of retirement does not amount to removal or termination.

The teachers of primary schools conterided that their terms of service were continued by Mysore Compulsory Primary Education Act, 1969, and, therefore, their age of retirement could not be altered by rules made by the Governor under Article 309. The 1969 Act provided in. section 14 trausfer of primary schools managed by the municipal. councils and panchayats in the Madras area an<l Bellary l)istrict before the appointed day. Teachers of those schools became employees of the State Government. The crucial words in section 14(b) of the 1969 Act on which the teachers relied are these: "All primary school teachers .................. shall, until other provision is

made, receive the salary and allowances and be subject to the condition of service to which they were entitled immediately before the appointed day". The words "other provision is made". were construed by the teachers to mean an act of legislature.

The provision contained in section 14(b) of the 1969 Act is a temporary and transitio.nal provision which continues until other provision is made. The Legislature does not say until other provision is made because the Legislature is always free to legislate. The words "until other provision is made" mean provision which can be made by the legislature or by the Governor or the executive. The words "until other provision is made" do not exclusively limit to legislate.

If the legislature has occupied the field the Governor has co-equal power .. The power of the Governor is co-extensive with the legislative power (See B. S. Vaderds case (supra) at page 583).

Section ! 4(b) of the 1969 Act is not a law regulating recruitment and conditions of service under Article 309. Assuming it is, Article

309 does not preclude the legislature from making provision for prescribing conditions of rccruit'!lent and conditions of service by Rules.

The proviso to Article 309 contemplates that Rules regulating conditions of service may be made under an enactment. Just as it is open to the appropriate legislature to provide for rules to be framed for regulating recruitment and conditions of service under Article 309, it is equally open to the legislature to provide that in certain conditions the Governor acting under the proviso may make appropriate rules. The power under the proviso is co-extensive with the power under the main part. (See B. S. Vadera's case (supra) at pp. 585- 586).

For these reasons, the contentions of the teachers fail. The impugned legislation is constitutionally valid. The appeals are dismissed. arties will pay and bear the.ir own costs.

Appeals dismissed.

0 V.M.K.

N. LAKSHMANA RA•) & ORS. ETC

STATE OF KARNATAKA & ORS. ETC

A. N. RAY, C.J.

K. K. MATHEW

V. R. KRISHNA IYER

A. C. GUPTA, JJ

Constitution of India

Article 309 and 311

Prbnary EducaHon Act, 1969

Section 14(b)

Section 14(b)

Education Act, 1969

Article 309

Age of Compulsory Retirement Rules

section 115

States Reorganisation Act

Education Act, 1969

Article 311

1968) 3 S.C.R. 575

[1964] 7 S.C.R. 587

[1966] 1 S.C.R. 994

section 14

section 14(b)

1968] 3 S.C.R. 575

Article 309

Article 309

States Reorganisation Act

(1966) 1 S.C.R. 994

section 115

Mysore Civil Service Regulations 1974

Article 309

States Reorganisation Act

Article 294

Article 309

Age of Compulsory Retirement Rules

section 115

Article

310(1)

Article 309

(1968) 1 S.C.R. 185

(1968)

3 S.C.R. 575

Article 309

Article

309

(1964) 7 S.C.R. 587

Article 311

Article 311

(1965) 1 S.C.R. 693

Article 311

Article 309

Article 309

section 14

section 14(b)

section 14(b)

Article 309

Article

309

Article 309

Article 309