MANU/GJ/0263/1980

Equivalent Citation: (1981)22GLR289

IN THE HIGH COURT OF GUJARAT

Decided On: 23.04.1980
Appellants: Smt. R.A. Pathan
Vs.
Respondent: Director of Technical Education and Ors.
Hon'ble Judges/Coram:
S.H. Sheth and S.L. Talati, JJ.
JUDGMENT
S.H. Sheth, J.
1. The petitioner was appointed as a Junior Clerk on 2nd December 1961 in the office
of the Director of Technical Education. In 1962 she passed the department
examination. She was selected by the Head of the Department and was recruited
through Employment Exchange. On 15th June 1962, she was transferred to L.D.
Engineering College which has been functioning under the Directorate of Technical
Education. She worked there as a Typist. On 21st January 1963, Centralized
Recruitment Scheme was made applicable to all the Directorates which included the
L.D. Engineering College. It was in fact made applicable to ministerial staff in non-
Secretariat services. In 1964 she was transferred from L.D. Engineering College to
the Directorate of Technical Education. On 1st September 1970, the Government
passed a Resolution by which her services were regularized with effect from 17th
April 1970.
2. In 1973, she converted herself into a Muslim and married one Mr. Pathan. So far
as the petitioner was concerned, it was her first marriage, but it was the second
marriage of Mr. Pathau who had his first wife living then. Under Rule 26 of the
Gujarat Civil Service (Conduct) Rules, 1971, the petitioner and Mr. Pathan were asked
to explain why the petitioner had married Mr. Pathan even though Mr. Pathan had his
first wife living. An affidavit from the first wife of Mr. Pathan was produced to show
that his first wife wanted the petitioner and Mr. Pathan to marry. On 17th January a
charge-sheet was served upon the petitioner. The charge which was levied against
her was that she had committed breach of Rule 26 of the Gujarat Civil Services
(Conduct) Rules, 1971. An enquiry was held. As a result of the enquiry, on 5th
October 1973, her promotion was ordered to be with held for a period of three years
with effect from 16th August 1973. That period expired on 15th August 1976.
3. It is this order which is challenged to this petition.
4. The second challenge which the petitioner has raised in this petition relates to the
fixation of her seniority in the cadre of clerks. She claims that 17th April 1970 with
effect from which her services were regularized under the Government Resolution
could not be the date from which her seniority could commence. According to her,
she came to be regularly appointed on 15th June 1962 when she was transferred
from the Directorate of Technical Education to L.D. Engineering College and
appointed there. Therefore, her grievance is that persons who were junior to her
were wrongly shown as her seniors in the seniority list.
the following five contentions:
(1) Rule 26 of the Gujarat Civil Services (Conduct) Rules, 1971, is ultra vires
Article 14 and Article 15 of the Constitution.
(2) Rule 26 is ultra vires Articles 25 and 26 of the Constitution.
(3) Rule 26 is ultra vires Article 309 of the Constitution.
(4) Upon the correct interpretation of the order of punishment made against
her at the end of the departmental enquiry, the petitioner was entitled to be
promoted to the higher post immediately upon the expiry of the period for
which her promotion was withheld under the said order.
(5) Her seniority should be computed with effect from 15th June 1962 and
not with effect from 17th April 1970.
6. The first three questions which Mrs. Mehta has raised before us are constitutional
questions, la order to examine the arguments which Mrs. Mehta has raised in support
of her constitutional centertions, it is necessary to reproduce Rule 26 of the Gujarat
Civil Services (Conduct) Rules, 1971. It provides as follows:
(1) No Government servant shall enter into, or contract, a marriage with a
person having a spouse living, and
(2) No Government servant having a spouse living, shall enter into, or
contract a marriage with any person:
Provided that the State Government may permit a Government
servant to enter into, or contract, any such marriage as is referred to
in Clause (1) or (2) if it is satisfied that-
(a) such marriage is permissible under the personal law
applicable to such Government servant and the other party
to the marriage, and
(b) there are other grounds for so doing.
The first argument which Mrs. Mehta has raise 1 is that marriage contemplated by
Sub-rules (!) and (2) of Rule 26 must be a legal and valid marriage and not any other
marriage. She has then tried to point out to us that this rule is directed only against
the Muslim government servants because it is amongst them that plural marriages-
wives not exceeding four in number at a time-are permitted, in order to make good
this argument of hers, she has invited our attention to certain enactments.
7 . So far as Hindus are concerned, Section 11 of the Hindu Marriage Act, 1955,
provides: "Any marriage solemnized after the commencement of this Act shall be null
and void and may, on a petition presented by either party thereto against the other
party, be so declared by a decree of nullity if it contravenes any one of the conditions
specified in Clauses (i), (iv) and (v) of Section 5." Section 5, inter alia, provides: A
marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely-neither party has a spouse living at the time of the marriage." It is
clear, therefore, that when Section 11 is read with Section 5(i), any marriage
solemnized by a person with another when his or her spouse is living is a void
marriage.
Act, 1936. Section 4 provides for circumstances when a marriage is unlawful. It reads
as under:
(1) No Parsi (whether such Parsi has changed his or her religion or domicile
or net) shall contract any marriage under this Act or any other law in the
lifetime of his or her wife or husband, whether a Parsi or not, except after his
or her lawful divorce from such wife or husband or after his or her marriage
with such wife or husband has lawfully been declared null and void or
dissolved, and, if the marriage was contracted with such wife or husband
under the Parsi Marriage and Divorce Act, 1865, or under this Act. except
after a divorce, declaration or dissolution as aforesaid under either of the
said Acts.
(2) Every marriage contracted contrary to the provisions of Sub-section (1)
shall be void.
Section 24 of the Special Marriage Act, 1954, provides:
Any marriage solemnized under this Act shall be null and void and may, on a
petition presented by either party thereto against the other party thereto be
so declared by a decree of nullity if-
(i) any of the conditions specified in Clauses (a), (b), (c) and (d) of
Section 4 has not been fulfilled; or
(ii).. .. .. ..

Section 4, inter alia, provides:

Notwithstanding anything contained in any other law for the time being in
force relating to the solemnization of marriages, a marriage between any two
persons may be solemnized under this Act, if at the time of the marriage the
following conditions are fulfilled, namely:
(a) neither party has a spouse living;
.. .. .. ..

Section 10 of the Indian Divorce Act, 1869, inter alia, provides:

Any wife may present a petition to the District Court or to the High Court,
praying that her marriage may be dissolved on the ground that since the
solemnization thereof, her husband has exchanged his profession of
Christianity for the profession of some other religion, and gone through a
form of marriage with another woman:
or has been guilty of incestuous adultery, or of bigamy with
adultery,
or of marriage with another woman with adultery.
... ... ... ...

Several provisions to which we have referred indeed make it clear beyond doubt that
a bigamous marriage amongst Hindus, Parsis, Christians and Anglo Indians is void.
The argument which Mrs. Mehta has raised is that since a bigamous marriage in all
these communities is void in law, Rule 26 is directed only against Muslim
Government servants who may under their personal law contract a bigamous
marriage We are unable to uphold the contention raised by Mrs. Mehta in this behalf.
9. Firstly, Rule 26 nowhere states that it is directed only against Muslim Government
servants. It applies to all irrespective of what other enactments provide for non-
Muslims in the matter of marriage. Secondly, the word "marriage" used in Rule 26
does not, in our opinion, mean a legally valid marriage. It means a marriage which
has been performed or solemnized according to the customs of the community to
which the parties belong irrespective of whether such a marriage is, in law, void or
not. To say that the word "marriage' used in Rule 26 only means a legally valid
marriage is to assign to it a narrow meaning and is likely to lead to disastrous
consequences. If marriage means only a legally valid marriage and no other
marriage, then non-Muslim Government servents may go on marrying again and
again during the lifetime of their spouse? and claim that they have not contracted
plural marriages because the second or subsequent marriage contracted by them is
not legally valid marriage and, therefore, it is not the marriage in the eye of law.
Such a construction, if placed upon Rule 26. will not only defect the object and
purpose with which Rule 26 has been enacted but would reduce it to a laughing
stock. Since the word "marriage" used in Rule 26 means any marriage, irrespective of
its validity in lav/ solemnized according to the custom of the community to which the
parties belong, the rule is directed against Muslims as well as non-Muslims. In that
view of the matter, we are unable to discover therein any element of hostile
discrimination against the Muslim Government servants. Rule 26, therefore, is not
violative of Article 14 of the Constitution.
10. So far as Article 15 is concerned, it prohibits discrimination against any citizen
on grounds of religion, iace, caste, sex, place of birth or any of them. It provides as
follows:
(1) The State shall not discriminate against any citizen on grounds only of
religion, race, casie, sex, place of birth cr any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability, liability, restriction or
condition with regard to-
(a) access to shops, public restaurants hotels and places of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly cm of State funds or dedicated to
the use of the general public.
(3) Nothing in this article shall prevent the State from making any special
provision for women and children.
(4) Nothing in this article or in Clause (1) of Article 29 shall prevent the
State from making any special prevision for the advancement of any socially
and educationally backward classes of citizens or for the Schedule Castes and
the Scheduled Tribes.
The very terms of Clauses (2) and (3) show that they are not applicable to the instant
case. Clause (1) prohibits the State from discriminating against any citizen, inter alia,
on the ground of religion. In light of the interpretation which we have placed upon
Rule 26, we do not find any discrimination against Muslim Government servants on
the ground of religion. The first contention raised by Mrs. Mehta, therefore, fails and
is rejected. There is, therefore, no segregation of the Muslim Government servants on
the basis of religion in this behalf.
11. The second contention raised by Mrs. Mehta raises the constitutional challenge
against the validity of Rule 26 on the ground that Rule 26 infringes ArticleS 25 and
96 of the Constitution. Clause (1) of Article 25 provides as under:
Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practise and propagate religion.
If the problem which has been raised before us at all falls under Article 25, it falls
within the ambit of right freely to practise religion. Before we turn to examine
whether a bigamous marriage solemnized by a Muslim Government servant falls
within the ambit of his right to practise religion, it is necessary to reproduce Clause
(2) which carves out an exception to Clause (1). It reads as under:
Nothing in this article shall affect the operation of any existing Jaw or
prevent the State from making any law-
(a) regulating or restricting any economic, financial, political or
other secular activity which may be associated with religious
practice:
(b) providing for social welfare and reform or the throwing open of
Hindu religious institutions of a public character to all clause and
sections of Hindus.
Ordinarily, prevention of a bigamous marriage will, in our opinion, fall within the
ambit of the expression "social welfare and reform" used in Sub-clause (b) of Clause
(2) of Article 25. However, it has been argued by Mrs. Mehta that in matters of
religious practices, what the community which professes a particular religion believes
is a religious practice and that against such belief, without violating Article 25, no
measure of social welfare or reform can be enacted or enforced.
12. It is in that context that she has invited our attention to a passage in the Holy
Quran. We are referring to THE HOLY QURAN - Arabic Text and English-Translation
by the late Maulawi Sher' Aii. In Chapter entitled "ALNISA", this is what has been
stated:
And if you fear that you will not be fair in dealing with the orphans, then
marry of women as may be agreeable to you, two, or three, or four; and if
you fear you will not deal justly, then marry only one or what your right
hands possess. That is the nearest way for you to avoid injustice.
It is on the basis of this Quranic text that Mrs. Mehta has argued that for a Muslim to
marry two or three or four wives is a matter of his religious practice or religious
injunction We do not think so. The above-quoted extract merely provides for showing
compassion to female orphans who have been neglected by society and who are
forlorn forsaken and destitute in life. All that it says is that if a Muslim comes across
such a female orphan, he may, if it otherwise is agreeable to him, contract a second
marriage, a third marriage and a fourth marriage provided he is able to deal with
second and subsequent wives justly. We find therein no religious injunction directing
Muslims to merry more than one wife. Secondly, to marry a second wife is left to his
choice. Thirdly, permission is granted to him to contract the second or subsequent
marriage only in a case where he comes across a destitute female orphan who
requires care and compassionate treatment for making her life livable. Lastly, the bar
to second marriage is removed in such cases only if a Muslim is able to do justice to
her, not otherwise. Since it is not a religious injunction, it is difficult to come to the
conclusion that it is a matter of religious practice. Secondly, it is a purely permissive
scriptural provision which can be availed of only under a certain set of circumstances.
What is left to be done or not to be done at the sweet will of individual will not
ordinarily enter into the formation of a religious practice. A religious practice
ordinarily connotes a mandate which a faithful must observe and carry out. If the
non-believers break it, there is indeed no derogation from the effect of that mandate.
What is permissive under the scripture cannot be equated with a mandate which may
amount to a religious practice. We are, therefore, unable to read in the above-quoted
extract from the Quranic text that contracting plural marriages is a matter of religious
practice amongst Muslims.
1 3 . In this context, we may usefully refer to Section 250 in Mulla's Principles of
Muhomedan Law, 18th Ed. in which it is slated that marriage according to
Mahomedan Law is not a sacrament but a civil contract. All the rights and obligations
it creates arise immediately and are not dependent on any condition precedent such
as the payment of dower by a husband to a wife. Unlike Hindu marriage which is a
sacrament, a Muslim marriage is nothing but a civil contract.
14. In Tyabji's Muslim Law, 4th Edition, this is what has been stated in paragraph 21
at page 44: "Marriage brings about a relation based on and arising from a permanent
contract for intercourse and procreation of children, between a man and a woman,
who are referred to at "parties to the marriage", and who, after being married,
become husband and wife." It is difficult for us to imagine or think that what is a
matter of civil contract can be a matter of religious practice.
15. Our attention has been invited by Mr. Takwani to a decision of the Allahabad
High Court in Itwari v. Smt. Asghari and Ors. MANU/UP/0196/1960 : AIR1960All684 .
In paragraph 11 of the report, it has been observed by the learned Judge: "Muslim
Law as enforced in India has considered polygamy as an institution to be tolerated
but not encouraged, and has not conferred upon the husband any fundamental right
to compel the first wife to share his consortium with another woman in all
circumstances. A Muslim husband has the legal right to take a second wife even while
the first marriage subsists, but if he does so, and then seeks the assistance of the
Civil Court to compel the first wife to live with him against his wishes on pain of
severe penalties including attachment of property, she is entitled to raise the
question whether the Court, as a court of equity, ought to compel her to submit to
cohabitation with such a husband.
16. In Shahulameedu v. Subaida Beevi 1970 K.L.T. 4, it has been observed by Kerala
High Court as follows:
Yusuf Ali in his commentary on the JHoJy Quran has pointed out with
reference to the original text, in its proper context, that the Prophet first
strictly limited the unrestricted number of wives of the 'Times of Ignorance'
to a maximum of four, provided you could treat them with perfect equality in
material things as well as in affection and immaterial things.' As this
condition is most difficult to fulfil, the recommendation was understood to be
towards the practice of monogamy.
(The extract is reproduced in the report from Islamic Law in Modern India, page 22)
17. So far as challenge under Article 26 is concerned, Clause (b) of Article 26 if at all
 Subject to public order, morality and health, every religious denomination or
any section thereof shall have the right-
(a).. .. ..

(b) to manage its own affairs in matters of religion.

... ... ... ...

This is the right conferred upon every religious denomination or a section thereof. In
this connection, it will be useful to refer to a few decisions of the Supreme Court.
18. The first is in The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt MANU/SC/0136/1954 :
[1954]1SCR1005 The question of considering the impact of Articles 25 and 26 on the
Madras Hindu Religious and Charitable Endowments Act, 1951 arose in that case. In
paragraph 15 of the report, connotation of the expression "religious denomination"
used in Article 26 has been considered by the Supreme Court. After referring to the
definition of the expression "denomination" given in Oxford Dictionary, it has been
stated that it means "a collection of individuals classed together under the same
name: a religious sect or body having a common faith and organisation and
designated by a distinctive name". Different sects and sub-sects of the Hindu religion
founded by different religious teachers and philosophers as held by the Supreme
Court, can certainly be called a "religious denomination" as it is designated by a
distinctive name. It has a common faith and a common: spiritual organisation.
Illustrating this proposition, the Supreme Court has observed that the followers of
Ramanuja, who are known by the name of Shri Vaishnavas, undoubtedly, constitute a
religious denomination; so also; the followers of Madhawacharya and other religious
teachers. Article 26, it has been further observed by the Supreme Court,
contemplates not only: a religious Math but the spiritual fraternity represented by it
can legitimately come within the purview of Article 26. Proceeding further, the
Supreme Court has observed that Article 26 guarantees to a religious denomination
the right to acquire and own property and to administer such property in accordance
with law. In regard to the right to manage its own affairs in matters of religion, it is,
as observed by the Supreme Court, a fundamental right which no Legislature can lake
away. Referring to religion, this is what the Supreme Court has observed:
Religion is certainly a matter of faith with individuals or communities and it
is not necessarily theistic. There are well known religions in India like
Buddhism and Jainism which do not believe in God or in any Intelligent First
Oiuse. A religion undoubtedly has its basis in a system of beliefs or doctrines
which are regarded by those who profess that religion as conducive to their
spiritual well being, but it would not be correct to say that religion is nothing
also but a doctrine or belief. A religion may not only lay down a code of
ethical rules for its followers to accept, it might prescribe rituals and
observances, ceremonies and modes of worship which are regarded as
integral parts of religion, and these forms and observances might extend
even to matters of food and dress.
The guarantee which the Constitution has given not only protects the freedom of
religious opinion but it protects also acts done in pursuance of a religion. Referring
to the essential part of the religion, it has been observed that what constitutes the
essential part has direct reference to the doctrine of religion itself. The freedom of
religion which the Constitution guarantees is not confined only to religious beliefs but
it extends to religious practices subject indeed to the restrictions which the
denomination enjoys complete autonomy in such matters of as what rights and
ceremonies are essential according to the tenets. This decision has been referred to
with approval in the substantial decision of the Supreme Court in Durgah Committee,
Ajmtr and Anr. v. Syed Hussein Ali and Ors. MANU/SC/0063/1961 : [1962]1SCR383 .
In paragraph 33 of the report, reference has been made with approval to the
connotation of the word "denomination" used in Article 26. A "denomination" is
collection of individual classed together under the same name, a religious sect or a
body having a common faith and organisation and designated by a distinctive name.
It has been observed in this decision that any practice which is alleged to be a part of
religion must be regarded by the said religion as an essential or integral part;
otherwise even purely secular practices which are not an essential Or integral part of
religion are (sic) to be (sic) with a religious form and may make a claim for being
treated as religious practices within the meaning of Article 26. Similarly, even
practices, though religious, may have sprung merely superstitious beliefs and may in
that sense be extraneous and unessential accretions to religion itself. Unless such
practices are found to constitute an essential and integral part of a religion, their
claim for a protection under Article 26 may have to be carefully scrutinized as an
essential and an integral part of it and no other. The protection must be confined to
such religious practices and no other.
19. Reference is also made to the decision of the Supreme Court in Sardar Syedna
Taker Saifudclin Saheb v. State of Bombay MANU/SC/0072/1962 : AIR1962SC853 . It
was a case in which the impact of Article 26(b) and Article 25(2) on the provisions of
the Bombay Prevention of Excommunication Act, 1949 came to be examined.
Referring to the religious practice of ex-communication, the Supreme Court his
observed that where an excommunication is itself based on religious grounds such as
lapse from the orthodox creed or doctrine similar to what is considered heresy,
apostasy or schism under the Canon Law or breach of some practice considered as an
essential part of the religion by the Dawoodi Bohras in general, excommunication
cannot but be held to be for the purpose of maintaining the strength of the religion.
The Supreme Court has further observed that it, therefore, necessarily follows that
the exercise of power of excommunication on religious grounds forms a part of the
management by the community, through its religious head, "of its own affairs in
matters of religion". Referring to the concept of "social welfare and reform"
incorporated in Clause (2) of Article 25, the Supreme Court has observed: "The mere
fact that certain civil rights which might be lost by members of the Dawoodi Bohra
community as a result of ex-communication even though made on religious grounds
and that the Act prevents such loss, does not offer sufficient basis for a conclusion
that it is a law "providing for social welfare and reform". It has been further
observed: "The barring of excommunication on grounds other than religious grounds,
say, on the breach of some obnoxious social rule or practice might be a measure of
social reform and a law which bars such excommunication merely might conceivably
come within the saving provisions of Clause 2(b) of Article 25. But barring of
excommunication on religious grounds pure and simple, cannot however be
considered to promote social welfare and reform and consequently the law in so far
as it invalidates excommunication on religious grounds and takes away the Dai's
power to impose such excommunication cannot reasonably be considered to be a
measure of social welfare and reform".
20. Reference is also made to the decision of the Supreme Court in Filkayat Shri
Govindlalji Maharaj etc. v. State of Rajasthan and Ors. MANU/SC/0028/1963 :
[1964]1SCR561 . It was a case under Rajasthan Nathdwara Temple Act, 1959, under
which secular affairs of the Nathdwara temple had been taken over by the State.
Examining the impact of Articles 25 and 26, the Supreme Court has observed: "In
the religion or not, the test always would be whether it is regarded as such by the
community following the religion or not." Whenever such a question is raised before
the Court, the Court may have to enquire whether the practice in question is religious
in character and, if it is, whether it can be regarded as an integral or essential part of
the religion and the finding of the Court on such an issue will always depend upon
the evidence adduced before it as to the conscience of the community and the tenets
of its religion. It has next been observed by the Supreme Court "In order that the
practices in question should be treated as a part of religion they must be regarded by
the said religion as its essential and integral part; otherwise even purely secular
practices which are not an essential or an integral part of religion are apt to be
clothed with a religious form and may make a claim for being treated as religious
practices." It has further been observed: "...it cannot be ignored that wrnt is
protected under Articles 25(1) and 26(b) respectively are the religious practices and
the right to manage affairs in matters of religion. If the practice in question is purely
secular or the affair which is controlled by the statute is essentially and absolutely
secular in character, it cannot be urged that Article 25(1) or Article 26(b) has been
contravened." Lastly, it has been observed: "...the protection guaranteed by Article
25(1) and Article 26(b) cannot be extended to secular practices and affairs in regard
to denominational matters which are not matters of religion, and so, a claim made by
a citizen that a purely secular matter amounts to a religious practice, or a similar
claim made on behalf of the denomination that a purely secular matter is an affair in
matters of religion, may have to be rejected on the ground that it is based on
irrational considerations and cannot attract the provisions of Article 25(J) or Article
26(b).
21. Lastly, our attention has been invited to the Constitutional Law of Indian by H.M.
Seervai, Second Edition, Volume I. At page 585, the learned jurist has summarized in
the following terms the principles emerging from several decisions and having a
bearing on Article 25 and Article 26 and commented upon them "The broad general
contention that under Article 25(2)(a) "ail secular activities which may be associated
with religion but do not constitute an essential part of it are amenable to State
regulation" cannot be supported. First, because what constitutes the essential part of
a religion is primarily to be determined with reference to the doctrines of that religion
itself. Secondly, because the fact that religious rites and ceremonies require the
expenditure of money, or the purchase and use of marketable commodities would not
convert the rites and ceremonies into economic or secular activities. They remain
matters of religion within the meaning of Article 26(b). Proceeding further, this is
what the learned jurist has stated:
The language of Article 26(b), which confers on every denomination the light
to manage its own affairs in matters of religion would suggest that there are
(sic) which are not matters of religion. But though there is a distinction
between affairs which are matters of religion and affairs which are not
matters of religion e.g. administration of the property of the denomination
according to law the two overlap and do not constitute two mutually
exclusive classes. "Thus if the tenets of the Jain or the Parsi religion lay
down that certain rites and ceremonies are to be performed at certain limes
and in a particular manner.... (no) outside authority has any light to say that
these are not essential parts of religion and it is not open to the secular
authority of the State to restrict or prohibit them in any manner they like
under the guise of administering the trust estate.
22. The decisions to which we have referred clearly establish that in order to claim
the status of a religious practice, the practice must form an essential and integral part
Muslims is not a matter of religious practice or a religious belief. It is not a religious
injunction or mandate. So far as Article 26(b) is concerned, it protects the
fundamental light of a religious denomination or any section thereof manage its own
affairs in matters of religion. Article 26 is not attracted to the instant case because
bigamous marriage amongst Muslims is not a matter of religion. Secondly, it protects
the rights of religious denominations or any section thereof. As observed by the
Supreme Court in the decisions referred to above, a denomination is a collection of
individuals classed together under the same name - a religious sect or body having a
common faith and organisation and designated by a distinctive name. In our opinion,
a "religious denomination" includes a section thereof but is distinct from an
individual belonging to it. It is difficult, therefore, to say that Article 26 has
application to the case of an individual as distinguished from "religious
denomination". In our opinion, therefore, Article 25(1) and Article 26(b) do not come
into the picture in this case at all and, therefore, there is no violation of these
Articles. The second contention raised by Mrs. Mehta, therefore, fails and is rejected.
2 3 . The third contention which she has raised is that the impugned Rule 26 is
violative of Article 309 of the Constitution. There is no dispute before us that the
Gujarat Civil Services (Conduct) Rules, 1971, have been made under the proviso to
Article 309 of the Constitution. Under Article 309, the state has the power to regulate
the recruitment and conditions of service of persons appointed to public services and
posts in connection with the affairs of the Union or of any State. The contention
which has been raised by Mrs. Mehta is that a bigamous marriage has nothing to do
with conditions of service; much less with recruitment. According to her, a "condition
of service" must have a direct and proximate relation with the efficiency integrity,
impartiality and responsibility of a Government servant. She has further argued that a
condition of service does not include anything which is personal between an
individual and his emotion In view of the argument which Mrs. Mehta has raised, we
are required to find out the connotation of the expression "conditions of service" in
order to determine whether prohibition of a bigamous marriage can be a 'condition of
service".
24. In State of Madhya Pradesh and Ors. v. Shardul Singh MANU/SC/0510/1969 :
[1970]3SCR302 , the expression "conditions of service" used in Article 3C9 came up
for construction. In paragraph 9 of the report , it has been observed: "...all those
conditions which regulate the holding of a post by a person right from the time of his
appointment till his retirement and even beyond it in matters like pension, etc".
Reference has been made in that decision to the earlier decision of the Supreme
Court in Praiyat Kumar Bose v. The Hon'ble The Chief Justice of Calcutta High Court
MANU/SC/0023/1955 : [1955]2SCR1331 . In that case, the question which arose was
whether the dismissal of an official was a matter which fell within "conditions of
service" of public servants. The question was answered in the affirmative by the
Supreme Court. Reference has also been made to the decision in North West Frontier
Province v. Suraj Narain Anand (1948) IR 75 IA 343. The question which arose in
that case was whether dismissal of a Government servant could be a "condition of
service" within the meaning of the expression used in Section 243 of the Government
of India Act, 1935. The question was answered by the Privy Council in the
affirmative. In P. Bafakofaiah v. The Union of India and Ors. MANU/SC/0119/1957,
the question which arose was whether the rule providing for the termination of
service of a railway official could be made in exercise of the powers conferred on the
Government by Sections 241(2), 247 and 263(3) of the Government of India Act,
1935. The question was answered in the affirmative. The latter mentioned three
decisions do not throw much light on the question which has been raised before us.
However, in paragraph 8 of the report in Shardul Singh's case (Supra), the Supreme
wide import.
25. It has been argued by Mrs. Mehta that whatever may be the import or the width
of that expression, it cannot include something which touches the private life of a
Government servant and which, according to her, has nothing to do with his
efficiency and integrity as a Government servant. Prevention of a bigamous marriage
as a condition of public service has, in our opinion, relation with the integrity of a
Government servant. It need not necessarily be so direct and proximate as Mrs.
Mehta has canvassed before us. Having two or more wives at a time which may result
into a larger family will in all probability demand of a Government servant larger
resources for maintaining his two wives and their offspring. If be is not able within
the limits of his salary to maintain such a large family, which is of his own creation,
he is likely to seek alternative sources of income-lawful and unlawful-because human
nature being what it is, every individual would like to live and live happily. When a
Government servant is torn between his loyalty his service and an imperative need to
maintain to large family, he may compromise with his integrity and resort to make
questionable means to meet the needs of maintaining his family. Such a situation will
lead to impairment of his loyalty which is bound to tell upon public service. Need to
look elsewhere to find additional sources of income to meet such a contingency is
also likely to impair his efficiency because an unusually increased need in such a
situation will derogate from his single-minded devotion to duties which he is
supposed to bring to bear upon. The need to find out alternative sources of income,
otherwise lawful, is also likely to derogate from his sirfglefninded devotion to duty.
Therefore, it is difficult for us to say that a rule relating to prevention of a bigamous
marriage can never be a "condition of service." 26. We may, however, refer to she
proviso to Rule 26 which reduces the rigour of the rule. In cases specified in the
proviso, the Government may grant permission to a Government servant to contract
the second marriage. The first condition in that a second marriage must be
permissible under the personal law applicable to the Government servant and the
other party to the marriage. This is a very valid condition because no Government
servant can be given a permission for the second marriage if it is otherwise unlawful.
The second condition is that the Government may grant permission to contract a
second marriage if "there are other grounds for so doing. " According to Mrs. Mehta,
this condition in proviso to Rule 26 is so vaguely worded that it enables the
Government to refuse permission on any ground. We do not think so. In a dynamic
society which goes on changing from time to time, it is too difficult for us to imagine
what ground or grounds will be advanced for seeking permission for contracting a
second marriage and what ground or grounds will be sound in some cases and
unsound in other cases. In order to meet the needs of an eternally changing society,
the second condition has been specified in the proviso. Therefore, the insertion of the
second condition per se does not introduce an element of caprice or arbitrariness. It
is quite probable however, that, in a given case, the Government may refuse
permission on an extraneous, irrelevant, capricious or whimsical ground. If
permission is refused on any such ground, the action of the Government refusing
permission can always be challenged. Merely because in a case here or there the
Government may act capriciously or on irrelevant grounds, it cannot be said that such
a widely worded provision, inserted for meeting the needs of an eternally changing
society, introduces an element of arbitrariness and, therefore, renders the rule ultra
vires The third contention which Mrs. Mehta has raised, therefore fails and is
rejected. 27. The fourth contention which she has raised relates to the interpretation
of the order of punishment made against the petitioner. The order reads as follows:
"Kurn. R.K. Desai being found guilty of the above said Charge No. 1 her promotion to
higher post should be withheld with effect from 16-8-73 for a period of three years."
The first argument which Mrs. Mehta has raised is that what the Director of Technical
years her petitioner's promotion to the higher post. According to her, to withhold
means to withhold until it is released. Therefore, according to Mrs. Mehta, once the
period for which promotion to the higher post has been withheld comes to an end,
promotion not only must be released but must be released with effect from the date
on which the petitioner became due for promotion. We are unable to uphold that
argument raised by Mrs. Mehta. To release the promotion from the date on which the
petitioner became due for promotion (during the period during which punishment
operated) is to nullify the punishment and to confer upon her all benefits which
would have otherwise accrued to her as if she was not punished an all. The first
argument raised by Mrs. Mehta, therefore, fails and is rejected.
28. The second argument which she has raised in the alternative is that the period of
three years which commenced from 16th August 1973 expired on 15th August 1976.
Therefore, the petitioner became entitled to promotion to the higher post, assuming
that all other factors were satisfied, after 15th August 1976. It may be stated for the
sake of clarity that two clerks junior to the petitioner had been promoted to the
higher post during the period during which the order of punishment operated against
the petitioner. The promotion of these two clerks who were junior to the petitioner
makes clear beyond all doubt that, given all other things equal, the petitioner would
have been promoted to the promotional post before 15th August 1976 if the order of
punishment had not been operating against her. In our opinion, the effect of
withholding promotion for a period of three years which expired on 15th August 1976
is that as soon as a vacancy in the promotional post occurred after 15th August 1976,
the petitioner became entitled to be considered for promotion to the higher post. She
could not be denied that benefit merely by virtue of the fact that order of promotion
had operated against her for a period of three years. On this aspect, in the facts and
circumstances of this cases, it is difficult to say anything more than we have done. It
will be for the Director of Technical Education or the State Government, as the case
may be, to make an appropriate order in the matter of the petitioner's promotion in
light of the interpretation which we have placed upon the order of punishment. If any
clerks junior to the petitioner were promoted to higher posts after 15th August 1976,
the petitioner would be entitled to be considered for promotion to the higher post
with effect from the date her first junior was promoted after 15 August 1976.
2 9 . The last contention which has been raised by Mrs. Mehta relates to the
petitioner's position on the seniority list of the clerks belonging to the Director of
Technical Education. There is no dispute about the fact that the petitioner was
initially appointed as a clerk under the Directorate of Technical Education on 2nd
December 1961. At that time, recruitment to the clerical post could be done only
through Public Service Commission. Therefore, according to respondents, she was
not regularly appointed. Her appointment followed the recommendation of her name
by the Employment Exchange to the departmental head who selected her. Thereafter,
she was transferred to L.D. Engineering College where she worked as a Typist.
Recruitment of clerks to such institutions was not required to be made through Public
Service Commission. Candidates recommended by Employment Exchange and
selected by departmental heads were appointed as having been regularly recruited to
their posts in such institutions, that is to say, in non-Secretariat services. Services in
L.D. Engineering Institute has been a non-Secretariat service.
30. Mr. Takwani who appears on behalf of the respondents has argued that if the
petitioner was continued as the clerk under the Director of Technical Education, her
services would have been required to be terminated. That is what has been stated in
the affidavit-in-reply filed in this petition. Out of compassionate grounds, she was
transferred to L.D. Engineering College where she could work and earn her bread. Mr.
was concerned, her services should be treated as having been terminated with effect
from the date she was transferred to L.D. Engineering College, that is 15th June
1962. Her services, according to Mr. Takwani, in the L.D. Engineering College must
be deemed to have been terminated again and she must be deemed to have been
appointed afresh as a clerk in the Directorate of Technical Education, when she was
retransferred to the Directorate. We have not been impressed by the arguments which
Mr. Takwani has raised before us. L.D. Engineering College forms a part of the
Directorate of Technical Education. Therefore, whether she served under the
Directorate of Technical Education or in the L.D. Engineering College, she served as a
clerk under the Government of Gujarat in the Directorate of Technical Education.
Therefore, though on 2nd December 1961 she was irregularly appointed, consequent
upon her transfer to L.D. Engineering College, her appointment became regular
because she was a candidate recommended by the Employment Exchange and
selected by the departmental head and that was the method followed for
appointments in the L.D. Engineering College. In our opinion, there fore, the
Government was in error in regularising her services with effect from 17th April
1970. We think she came to be regularly appointed on 15th June 1968 when she was
posted as a Typist in L.D. Engineering College. The petitioner will, therefore, be
entitled to have her seniority determine in accordance with what we have stated in
this judgment. While assigning seniority to her in the cadre of clerks with effect from
15th June 1962, the respondent shall work out whether she was entitled to be
considered for promotion to the higher post earlier than she was actually appointed
and whether she could have been appointed with effect from an earlier date. The
latter aspect relates to her merits. We are, however, aware of the fact that between
16th August 1973 and 15th August 1976, order withholding he promotion to the
higher post was operating. While working out her right for being considered to the
promotional post on the basis that her regular services commended from 15th June
1962, respondents Nos. 1 and 2 shall be at liberty to make an order which does not
nullify the order of punishment.
31. In the result, the petition partly succeeds. Rule is made absolute partly. It is
declared that the petitioner is entitled to be considered for promotion to the higher
post in terms of her seniority which commenced from 15th June 1962. While working
out her rights in that behalf, the respondents Nos. 1 and 2 shall be at liberty not to
do anything which nullifies the order of punishment made against her and which does
not disturb the seniority of those who were promoted during the period during which
the order of punishment operated against her.
32. As a consequence of the decision which we have rendered, the seniority list shall
have to be modified in so far as the petitioner is concerned. There shall be no order
as to costs of this petition.

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