LexNANO KISHORE versus STATE OF PUNJAB
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A
NANO KISHORE
l'.
STATE OF PUN.JAB
SEPTEMBER 21, 1'!95
B
IA.:vl. AHMADI, Cl. AND M.M. PUNCHHI, .1.J
Sen'icc La1v :
Punjab Civil Se1vices R!lles, Volume II-Rule 5.3~omp!llsmy retire-
e n1ent-Cltalle11ge under A1ticle 22{i-W!it dis111issed-S11it against the sa111e
challenging the validity of the Rllle-Subsequenliy identical Rule stn1ck down
by Sllpreme Cowt-Held: The Ruic invalid as it contravenes A11icle 311 (2)
of Constitution.
Constitlltion of India, /951}-A1ticle 141-Role of Supreme Cowt
D Unda--Not merc/y to inte1pret /aw--Tltc cowt as a wing of State by itl'elf a
source of lalll1 con1pete11t to stntke down statuto1y provisions.
E
F
Civil Prorndure Code, 1901'!--Section l l--Cons1111ctive Res-judicata-
Order or complllsmy retirement !lnder Ruic 5.32: P!lnjab Civil Se1vices
Rllles--C!wllenge in iwit petition withollt challenging validity of Rllle-Wiit
disniissed-ldentical R11le ·stnu:k doivn by Supre111e Cotut-Subsequent suit
challenging validity of the R!lle-He/d: Plinciple of consl111ctive Res-jlldicata
not to apply to such a situalion-Qllestion of constitutionality cannot be
considered as deen1ed to have been raised-Prestunption is ahvays in favour
of constitutionality of law, lllliess and until it is c!zal/enged.
Appellant was compulsorily retired after HI years of service under
Rule 5.32 of Punjab Civil Services Rules, Volume II, challenging the order,
\\ithout any challenge to the validity of the Rule, he tiled a writ petition
under Article 226 which was dismissed vide order dated 5.2.1962. In the
G meantime in its judgment the Supreme Court held that the validity of any
rule permitting compulsory retiren1e11t at a very early stage nlight have to
be considered on a p1·oper occasion. Thereafter the appellant tiled suit
challenging the validity of Rule 5.32. Subse'luently in another judgment,
Supreme Court held invalid an identical Rule. The Trial Court decreed the
suit holding that the Rule was illegal and invalid, relying on the Supreme
H Court judgment, and that the judgn1ent in the \Vrit proceedings did not
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NAND KlSHORE v. STATE
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operate as res- judicala. State preferred appeal to High Court on the sole A
point of res-judicata. The tiuestion referred to Full Bench \Vas \\'hether
dismissal of Writ by High Court on assun1ption that a statutory rule was
valid, operates as res-judicala in a subse<1uent suit instituted after the
statutory rule had been declared as un-constitutional by Supreme Court.
By majority, the question was answered in the affirmative.
Appellant approached this Court against the aforesaid order of the
High Court in appeal. This Court invited special leave petition against the
B
!
order of the High Court dated 5.2.1962 in the writ petition and granted
leave to appeal.
)
The contention of the State was that the failure to raise the con-
stitutionality of Rule 5.32 in the wTit petition, preferred by the appellant,
would imply, on the principle of "Might and Ought", that the opportunity
of controverting the matter had been lost and that it should, on the
principle of res-judicata, be taken that the matter had been actually raised
c
and adversely decided.
D
Allowing the appeals and setting aside the order of the High Court,
this Court
HELD: 1. Since Rule 532 of the Punjab Civil Services Rules, Volume
II, is identical in text, terms and purport with the Second proviso to Article E
9.1 of Pepsu Service Regulations, Gurdev Singh's case thus would mandate
to hold that Rule 5.32 of Punjab Civil Services Rules, Volume II should
meet the same fate, holding that the Rule be struck down as invalid since
it contravenes Article 311 (2) of the Constitution. [25-A]
Gurdev Singh v. State of Punjab & Ors., [1964] 7 SCR 587, relied on.
Moti Ram Deka & 01'.<. v. No1th Eastem Frontier Railway & Ors., AIR
(1964) SC 600, referred to.
f
2. When the Supreme Court strikes down statutory provision hold-
G
ing it to be unconstitutional it derives its authority to do so under the
Constitution. Under Article 141 the law declared by it is of a binding
character and as commandful as the law made by a legislative body or
authorised delega'tee
of such body. The court is thus a competent
authority. The majority view expressed in the Full Bench decision is not in
keeping with the plenary function of the Supreme Court under Article 141 H
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SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.
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of the Constitution, for the court is not merely interpretExcerpt shown. Read the full judgment & AI analysis in Lexace.