t Petition Civil No 13704 of 1983
Under Article 32 of the Constitution of India PN Lekhi and MK Garg for the Petitioner
Prithvi Raj PP Rao Govind Mukhoty Satish Chander Raju Ramachandran Mrs section Dikshit AK Sangal PK Chakraborty
Ms Sadhya Goswami and YC Maheshwari for the Respondents
KR Gupta Smt
Nanita Sharma RC Gubrele Vivek Sharma and OP Sharma for the Intervener
The Judgment of the Court was delivered by KULDIP SINGH J
Ram Sewak Prasad the petitioner before us was appointed as Excise Sub Inspector in the State of Uttar Pradesh in February 1964 and was promoted to the post of Excise Inspector on ad hoc basis on February 24 1972
He was confirmed as Excise Sub Inspector by an order dated December 2 1972 with effect from April 1 1967
Though promoted on ad hoc basis the petitioner 887 has continuously been working as Excise Inspector since February 24 1972
Raghubir Singh and Ram Dhan respondents are direct recruits to the post of Excise Inspector
The joined as such on March 29 1972 and May 14 1972 respectively
They were promoted to the post of Excise Superintendent by an order dated September 29 1983
It is not disputed that the petitioner was not considered for promotion alongwith the respondents or at any time thereafter
Even his name was not shown in the seniority list of Excise Inspectors circulated from time to time
The respondents including the State Government have taken the stand that the petitioner s promotion to the post of Excise Inspector was against the rules he continues to be an ad hoc appointee and is not a member of the Excise Inspectors Service constituted under the rules
For that reason he is neither been shown in the seniority list of Excise Inspectors nor considered for promotion to the post of Excise Superintendent
It is necessary to examine the relevant statutory rules regulating recruitment and conditions of service of the Excise Inspectors
Rule 3ix and 5 of the Uttar Pradesh Subordinate Excise Service Rules 1967 hereinafter called 1967 rules  are as under 3ix
Member of the service means a person appointed in a substantive capacity under the provisions of these rules or of rules in force previous to the enforcement of these rules to a post in the cadre of the service  5
Sources of recruitment Recruitment to the service shall be made a by direct recruitment of candidates on the result of a combined competitive examinations conducted by the Commission who having been selected in the prescribed manner for undergoing practical training have completed the course of training and passed the departmental examination prescribed in rule 23 Provided that no candidate shall be allowed to avail of more than three chances for appearing at the competitive examination b by promotion of permanent clerks of the office at 888 the Headquarters of the Excise Commissioner and other regional and Subordinate Excise Offices of Assistant Excise Commissioners and Superintendents of Excise in Uttar Pradesh and c by promotion of permanent Tari Supervisors The 1967 rules were superseded by the Uttar Pradesh Subordinate Excise Service Rules 1983 hereinafter called 1983 rules which came into force on March 24 1983
Rule 3g 3j 5 and 211 of the 1983 rules are reproduced hereinafter 3g
Member of Service means a person substantively appointed under or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service 3j
Substantive appointment means an appointment not being an ad hoc appointment on a post in the cadre of the service made after selection in accordance with the rules and if there are no rules in accordance with the procedure prescribed for the time being by executive instructions issued by the Government
 Sources of Recruitment
Recruitment to the various categories of posts in this service shall be made from the following sources A EXCISE INSPECTOR 1 90 by direct recruitment on the result of a combined competitive examination conducted by the Commission
2 10 by promotion from amongst the permanent sub Excise Inspectors
Rule 211 Except as hereinafter provided the seniority of persons in any category of post shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together by the order in which their names are arranged in the appointed order 889 Provided that if the appointment order specifies a particular back date with the effect from which a person is substantively appointed that date will be deemed to be the date of order of substantive appointment and in other case it will mean the date of issue of the order Mr Satish Chandra learned senior advocate appearing for some of the respondents who are direct recruits of 198283 has contended that the 1967 rules were holding the field when the petitioner was promoted as Excise Inspector on ad hoc basis
According to him only clerks and Tari Supervisors could be considered for promotion to the post of Excise Inspector under rule 5 of the 1967 rules and the Excise Sub Inspectors were not eligible
The petitioner s promotion being in violation of the 1967 rules he was not a member of the service and as such was rightly not shown in the seniority list of Excise Inspectors
He however accepts the position that the petitioner can be considered for promotion to the post of Excise Inspector under the 1983 rules and would become member of the service from the date of promotion under the said rules
Mr Satish Chandra finally contended that the appointment of the petitioner from 1972 to 1983 being violative of 1967 rules the benefit of the said service cannot be given to the petitioner towards seniority in the cadre of Excise Inspectors
In support of his arguments Mr Satish Chandra relied upon the judgments of this Court in Masood Akhtar Khan and Others vs State of Madhya Pradesh and Others and Direct recruits class II Engineering Officers Association vs State of Maharashtra and Others 1990 2SCC 715
Mr Govind Mukhoty Mr PP Rao and Mr OP Sharma learned senior advocates appearing for various respondents reiterated with different flavour the arguments advanced by Mr Satish Chandra
They further cited P Mahendran and Ors etc
vs State of Karnataka and Ors etc
  State of Punjab vs Jagdip Singh and Ors   Krishena Kumar and Ors
vs Union of India and Ors
  and AK Bhatnagar and Ors
vs Union of India and Ors
  Mr Prithviraj learned senior advocate appearing for the State of Uttar Pradesh stated that it may be possible to absorb the petitioner in the cadre of Excise Inspectors from the date of enforcement of the 1983 rules but the benefit of service rendered by him as Excise Inspector prior to that date cannot be given to him
Mr PN Lekhi learned senior advocate appearing for the petitioner vehemently argued that the petitioner was promoted in public interest  as Excise Inspector in the year 1972 and since then he 890 has been working as such continuously
He is being paid the same salary for doing the same work as is being done by the directly recruited Excise Inspectors
There can no justifiable reason to treat the petitioner as an ad hoc Excise Inspector even after working as such for almost two decades
According to him the 1967 rules which confined the channel of promotion to Tari Inspectors and Clerks were wholly arbitrary and as such violative of Articles 14 and 16 of the Constitution of India
The Excise Sub Inspectors are at a lower rung in the same hierarchy of service to which Excise Inspectors belong
The Sub Inspectors perform similar duties of less responsibility
Mr Lekhi further contended that providing avenue of promotion to Tari Inspectors and Clerks who had no similarity or service0link with the cadre of Excise Inspectors and depriving the same to the Excise Sub Inspectors render the 1967 rules arbitrary and discriminatory
He relied upon Baleshwar Dass and Ors
vs State of UP and Ors 1981 1 SCR 449 Narender Chadha and Ors
vs Union of India and Ors
   Rajendera Parsad Dhasmane vs Union of India and Ors  and Kumari Shrilekha Vidyarthi etc
vs State of UP and Ors Mr Lekhi finally submitted that the petitioner is in any case entitled to be promoted substantively to the cadre of Excise Inspectors under the 1983 rules and he is entitled to fixation of seniority by counting his entire service as Excisa Inspector from 1972 onwards
It is not necessary to go into the judgments cited by the learned counsel for the parties
The judgments are on the peculiar facts of these cases and do not render much assistance to resolve the controversy before us
The 1967 rules provided recruitment to the cadre of Excise Inspectors by way of direct recruitment and by promotion
Recruitment by promotion was only confined to permanent clerks in the office of Excise Commissioner and Tari Supervisors
The Excise Sub Inspectors were not eligible
On the plain interpretation of 1967 rules Mr Satish Chandra is justified to contend that the petitioner was not eligible for promotion to the post of Excise Inspector and as such he could not be member of the Uttar Pradesh Subordinate Excise Service as constituted under the 1967 rules
On the other hand there is plausibility in the argument of Mr PN Lekhi that rule 5 of the 1967 rules which denies avenue of promotion to the Excise Sub Inspectors is arbitrary and discriminatory
When the 1967 rules were enforced on May 24 1967 there was in existence a permanent cadre of Excise Sub Inspectors
The nature of duties of both the cadres 891 were similar
The Excise Inspectors on molasses duty of the ranges used to supervise the work of Excise Sub Inspectors under them
The Excise Sub Inspectors were thus natural contenders for the post of Inspectors
There was no justification whatsoever with the framers of the 1967 rules to have kept the Excise Sub Inspectors out of the channel of promotion to the post of Excise Inspectors
Prima facie there is no escape from the conclusion that the Excise Sub Inspectors were dealt with in an arbitrary manner by the framers of 1967 rules
However the view we propose to take on the interpretation of 1983 rules it is not necessary for us to deal with the respective arguments of the learned counsel for the parties regarding the 1967 rules
Rule 5 of the 1983 rules provides recruitment to the cadre of Excise Inspectors from two sources 90 by direct recruitment and 10 by promotion from amongst the permanent Excise Sub Inspectors
It is not disputed that under the 1983 rules the petitioner is eligible to be promoted and appointed as Excise Inspector
In the writ petition the petitioner has specifically pleaded that the service record of the petitioner is unblemished and he is holding the post of Excise Inspector within the 10 promotion quota provided for the permanent Excise Sub Inspectors
The State Government in its counter has not denied these averments
The 1983 rules came into force on March 24 1983
There is nothing on the record to show as to why the petitioner was not considered for promotion under the 1983 rules till today
Inaction on the part of the State Government is wholly unjustified
The petitioner has been made to suffer for no fault of his
He has been serving the State Government as Excise Inspector since February 24 1972 satisfactorily
Least the State Government could do was to consider the petitioner under the 1983 rules
Mr Prithviraj learned counsel for the State of Uttar Pradesh has however fairly stated that the State Government is willing to promote the petitioner to the cadre of Excise Inspectors under the 1983 rules effect from the date of enforcement of the said rules
Rule 211 of the 1983 rules provides that the seniority of a person in any category of post shall be determined from the date of the order of substantive appointment
First proviso provides that if the appointment order specifies a particular back date with effect from which a person is substantively appointed then the said back date shall be deemed to be the date of order of substantive appointment
It is thus obvious that rule 211 of the 1983 rules specifically permits substantive appointment to the cadre of Excise Inspectors with back date
The framers of the 1983 rules were conscious that the cadre of 892 Excise Sub Inspectors was in existence from 1964 onwards and some of them were promoted to the post of Excise Inspectors much earlier to the enforcement of the 1983 rules
In all probability the provision of back date appointment was made in the 1983 rules to do justice to persons like the petitioner
The petitioner is eligible under the rules to be appointed as Excise Inspector by way of promotion
It is not disputed that the petitioner was appointed as Excise Inspector on February 24 1972 and he has been actually working in the said post continuously from that date and has been drawing the salary of the post of Excise Inspector
This is a fit case where the petitioner should be appointed as Excise Inspector under the 1983 rules by giving him back date appointment with effect from February 24 1972
We therefore hold that the petitioner shall be deemed to be appointed by way of promotion as substantive Excise Inspector under the 1983 rules with effect from February 24 1972
The petitioner shall be entitled to the benefit of his entire period of service as Excise Inspector from February 24 1972 towards fixation of his seniority in the cadre of Excise Inspector
We further direct that the petitioner shall be considered for promotion to the post of Excise Superintendent from a date earlier than the date when respondents Ram Dhan and Raghubir Singh were promoted to the said post
The petitioner shall also be entitled to be considered to the post of Assistant Excise Commissioner in accordance with the rules from a date earlier than the date when any of his juniors were promoted to the said post
We make it clear that none of the respondents who have already been promoted to the higher rank of Excise Superintendents or Assistant Excise Commissioners be reverted to accommodate the petitioner or any other person similarly situated
The State Government shall create additional posts in the cadre of Excise Superintendents and Assistant Excise Commissioners to accommodate the petitioner and other similar persons if necessary
The writ petition is allowed with costs in the above terms
We quantify the costs as Rs10000 to be paid by the State of Uttar Pradesh
YLal
Petition allowed


Summary:
The petitioner was convicted for murder and sentenced to life imprisonment which was confirmed by the High Court
Later he filed a Writ Petition before the High Court for premature release on the plea that he was entitled to be considered for release under the Rajasthan Prisons Shortening of Sentences Rules 1958 notwithstanding the insertion of Section 433A in the Code of Criminal Procedure 1973 with effect from 18121978 just two days before his conviction
It was contended that Section 433A Cr PC which places an embargo of 14 years imprisonment before premature release could not curtail the constitutional power vested in the Governor by virtue of Article 161 of the Constitution
The High Court dismissed the Writ Petition on the ground that the petitioner s representations to the Government and State Home Minister were pending consideration
However the High Court directed that the two representations of the petitioner should be disposed of within one month
Unable to secure his release from the High Court as also from the State Government the petitioner filed the present Write Petition before this Court contending that the insertion of Section 433A in the Code of Criminal Procedure was invalid that in the absence of guidelines under articles 72161 of Constitution Section 433A Cr
PC could not apply to life convicts that the Rajasthan Prisons Shortening of Sentences Rules 1958 would prevail over Section 433A Cr
PC and that the constitutional guarantee under Articles 14 and 21 was violated
Dismissing the Writ Petition this Court HELD 11
It is only when a legislature which has no power to legislate frames a legislation so camouflaging it as to appear to be within its competence when it knows it is not it can be said that the legislation so enacted is colourable legislation
If in pith and substance the legislation does not belong to the subject falling within the limits of its power but is outside it the mere form of the legislation will not be determinate of the legislative competence
871C 872C 12
It is not a case of legislative incompetence to enact section 433A
No such contention was raised
Besides the question of vires of section 433A of the Code has been determined by the Constitution Bench of this Court in Maru Ram s case
This Court Repelled all the thrusts aimed at challenging the constitutional validity of section 433A 871A 860 13
It is no body s contention that Parliament was not competent to amend the Criminal Procedure Code by which section 433A was inserted
Whether or not the connecting Indian Penal Code Amendment Bill ought to have cleared or not was matter left to the wisdom of the Lok Sabha
Merely because the Criminal Procedure Bill was made law and the Indian Penal Code Amendment Bill was passed by the Rajya Sabha did not obligate the Lok Sabha to clear it
The Lok Sabha could have its own views on the proposed Indian Penal Code amendments
It may agree with the executive s policy reflected in the Bill with or without modifications or not at all
Merely because in the subsequent instructions issued by the letter of July 10 1979 and the accompanying note the Joint Secretary had interlinked the two Bills the Lok Sabha was under no obligation to adopt the measure as such representation could not operate as estoppel against it
It is obvious that no question of mala fides on the part of the legislature was involved in the enactment of one legislation and failure to enact another
There is no question of legislative fraud  or colourbale legislation  involved in the backdrop of the legislative history of section 433A of the Code of Criminal Procedure
872D H 873A 14
In the present case if both the Bills had become law then in understanding or construing one legislation or the other the scheme common to both would be kept in view and be permitted to interact
But where the linkage does not exist on account of the Indian Penal Code Amendment Bill not having become law section 433A cannot be read down to apply to only those classes of capital offences to which it would have applied had the said Bill been passed by the Lok Sabha in the terms in which it was approved by the Rajya Sabha
The language of section 433A is clear and unambiguous and does not call for extrinsic aid for its interpretation
To read down or interpret section 433A of the Code with the aid of the changes proposed by the Indian Penal Code Amendment Bill would tantamount to treating the said Bills forming part of the Indian Penal Code which is clearly impermissible
To put such an interpretation with the aid of such extrinsic material would result in violence to the plain language of section 433A of the Code
873D F Maru Ram vs Union of India   followed
KC Gajapati Narayan Deo vs State of Orissa  and Sonapur Tea Co Ltd vs Must Mariruznessa   relied on
861 State of Himachal Pradesh vs A Parent of a student of Medical College Simla 1985 3 SCC 169 and WR Moram vs Deputy Commissioner of Taxation for NSW  referred to
The law governing suspension remission and commutation of sentence is both statutory and constitutional
The stage for the exercise of this power generally speaking is post judicial ie after the judicial process has come to an end
The duty to judge and to award appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law
After the judicial function thus ends the executive function of giving effect to the judicial verdict commences
873G H 874A 22
One who could have been visited with the extreme punishment of death but on account of the sentencing court s generosity was sentenced to the lesser punishment of imprisonment for life and another who actually was sentenced to death but on account of executive generosity his sentence was commuted under section 433a for imprisonment for life have been treated under section 433A as belonging to that class of prisoners who do not deserve to be released unless they have completed 14 Years of actual incarceration
Thus the effect of section 433A is to restrict the exercise of power under sections 432 and 433 by the stipulation that the power will not be so exercised as would enable the two categories of convicts referred to in section 433A to freedom before they have completed 14 years of actual imprisonment
This is the legislative policy which is clearly discernible from the plain language of section 433A of the Code
Such prisoners constitute a single class and have therefore been subjected to the uniform requirement of suffering atleast 14 years of internment
874G H 875A C 3
The expression life imprisonment  must be read in the context of section 45 IPC
Read so it would ordinarily mean imprisonment for the full or complete span of life
Section 65 116 120 and 511 of the Indian Penal Code fix the term of imprisonment thereunder as a fraction of the maximum fixed for the principal offence
It is for the purpose of working out this fraction that it became necessary to provide under section 57 that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years
If such a provision had not been made it would have been impossible to work out the fraction of an indefinite term
In order to work out the fraction of terms of punishment provided in the above sections it was imperative to lay down the equivalent term for life imprisonment
875G 876C E 862 Gopal Goads vs State of Maharashtra   affirmed
41 Unless the sentence for life imprisonment is commuted or remitted by the appropriate authority under the provisions of the relevant law a convict is bound in law to serve the entire life term in prison the rules framed under the Prisons Act or life statute may enable such a convict to earn remissions but such remissions will not entitle him to release before he has completed 14 years of incarceration in view of section 433A of the Code unless of course power has been exercised under Article 72161 of the Constitution
Where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under section 432 in which case the remission would be subject to limitation of section 433A of the Code or constitutional power has been exercised under Articles 72161 of the Constitution
878D E 42
Articles 72 and 161 confer the clemency power of pardon etc on the President and the State Governors respectively
This constitutional power would override the statutory power contained in sections 432 and 433 and the limitation of section 433A of the Code as well as the power conferred by sections 54 and 55 IPC
No doubt this power has to be exercised by the PresidentGovernor on the advice of his Council of Ministers
880A B 43
Though in Maru Ram s case this Court recommended the framing of guidelines for the exercise of power under Articles 72161 of the Constitution of India it had no binding effect on the Constitution Bench which decided Kehar Singh s case
Nor has this Court said anything in Kehar Singh s case with regard to using the provisions of extent Remission Rules as guidelines for the exercise of clemency powers
881H 882A Maru Ram vs Union of India   Kehar Singh vs Union of India   Bhagirath vs Delhi Administration  and Gopal Godse vs State of Maharashtra   affirmed
It is true that Articles 72161 make use of two expressions remissions  with regard to punishment and remit  in relation to sentence but it is not proper to express any opinion as to the content and amplitude of these two expressions in the abstract in the absence of a fact situation
882B 863 61 The hypothetical question whether it was permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment which release would tantamount to the prisoner serving time for the purpose of section 433A Cr
PC need not be answered without being fully aware of the conditions imposed for release
In each case the question whether the grant of conditional premature release answers the test laid down by this Court in Maru Ram s case would depend on the nature of the conditions imposed and the circumstances in which the order is passed and is to be executed
No general observation can be made
882C H Maru Ram vs Union of India   referred to
In the instant case petitioner has not completed 14 years of actual incarceration and as such he cannot invoke sections 43 and 433 of the Code of Criminal Procedure
His continued detention is consistent with section 433A of the Code and there is nothing on record to show that it is otherwise illegal and void
The outcome of his clemency application under the Constitution is not put in issue in the present proceedings if it has been rejected and if the same is pending despite the directive of the High Court it would be open to the petitioner to approach the High Court for the compliance of its order
883E F