Punjab-Haryana High Court
Amit Kumar Sharma vs Municipal Corporation Chandigarh And ... on 7 February, 2022
Author: Rajbir Sehrawat
Bench: Rajbir Sehrawat
CWP No. 1007 of 2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
123
*****
=================
IN VIRTUAL COURT
=================
CWP No. 1007 of 2022
Date of decision : 7.2.2022
Amit Kumar Sharma ......Petitioner
Vs.
Municipal Corporation, Chandigarh and others ......Respondents
CORAM: HON'BLE MR. JUSTICE RAJBIR SEHRAWAT
Present : Mr. Kapil Kakkar, Advocate, for the petitioner
---
Rajbir Sehrawat, J. (Oral)
This is a petition under Article 226 of the Constitution of India ('Constitution' for short) seeking issuance of a writ of certiorari for quashing communication dated 12.11.2021 (Annexure P-7), issued by respondent No. 2, vide which the representation of the petitioner for change in final answer key to question No. 73 of Law Officer Recruitment Test held on 29.8.2021, has been rejected. It is further prayed that respondent No.2 be directed to revise the result of the petitioner by giving one mark for Question No. 73 and also withdrawing the deduction of 1/4th mark on account of negative marking. It is also prayed that during the pendency of the present petition, respondent No.1 be restrained from appointing respondent No.3 on the post of Law Officer on the basis of result declared by respondent No.2.
The facts; in brief; are that in April 2021, respondent No.1 issued an advertisement inviting applications, including for one post of Law Officer. The selection for the post was to be made only on the basis of written test, 1 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -2- where 100 questions of multiple choice type; carrying one mark each, were to be attempted. There was to be a negative marking by deducting 1/4th mark for each wrong answer. The petitioner being eligible for the same applied for the said post. In the said exam, one of the question was asked as under :-
"73. which of the following schedule of the Constitution is immune from judicial review on the grounds of violation of fundamental rights?
A) Seventh Schedule B) Ninth Schedule
C) Tenth Schedule D) None of the above"
The dispute in the present petition relates to the correct answer to the above said question. The petitioner answered and claims that 'D' (none of the above) is the correct answer. He was not awarded mark for this answer, rather 1/4th mark has been deducted treating the same to be a wrong answer. He raised objection with the respondents. The respondents have sent a communication to the petitioner informing him that according to them 'B' (9th Schedule) is the correct answer. The petitioner is challenging the said interpretation given by the respondents, with a further assertion that if his answer is taken as correct then he gets the mark for the same and also gets selected as per his merit.
Hence, it is submitted that on account of wrong answer taken by the respondents; the right of the petitioner to seek public employment has been jeopardised.
A simplistic answer to the question mentioned above would be that there exists an Article 31-B in the Constitution; which provides immunity to the laws included in a particular schedule of the Constitution from being declared as null and void on the ground of such law being violative of fundamental rights. That particular schedule is the 'Ninth Schedule'. There exist the laws included in that schedule. Such laws included in the Ninth
2 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -3- Schedule has not been declared as null and void. On the contrary, the Supreme Court has upheld the Article 31-B and accordingly, the laws included in Ninth Schedule; despite the same being directly violating the fundamental rights of the citizen affected by such law. Hence, the answer to the question asked in the above said exam has to be, necessarily, 'B' (Ninth Schedule).
A bit more complex answer to the above said question would be that vide its judgment rendered in the case of 'I.R. Coelho (died) through LRs v. State of Temil Nadu, (1999) 7 SCC 580', the Supreme Court has held that after 24.4.1973 no amendment for adding laws to the Ninth Schedule is immune from judicial review and the amendment is liable to be tested in judicial review for violation of basic features of the Constitution of India and on the ground of the Parliament exceeding its amending powers conferred upon it under Article 368 of the Constitution; as interpreted by the Supreme Court. The judgment has also held the essence of certain rights conferred by Part-III of the Constitution, like Articles 14, 15, 19, 20 and 21 and 32, as well as, the essence of Part-III of the Constitution; as the basic feature of the Constitution. Hence, it is held that 'Right' and 'Rights' test would be the tests to be applied for judicial review and criteria would be the 'impact' and 'effect' upon the basic features. Accordingly, it is laid down that if the amendment violates basic feature of the Constitution as per above criteria then it shall be void; but if it does not violates basic features, as explained in that judgment, then such amendment would be valid and the law included in Ninth Schedule would enjoy immunity provided by Article 31-B; which has already been upheld. However, this answer does not satisfy the requirements of the question asked in the present case.
3 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -4- The answer to the question, as gathered from the judgment of the Hon'ble Supreme Court is heavily laced with 'ifs' and 'buts', whereas the answer which the petitioner was required to give was in the nature of choosing in clear terms out of 'A' or 'B', 'C' or 'D', which in turn, are in the nature of plain and simple 'yes' or 'no' admitting no qualification of 'ifs' and 'buts'. Therefore, the petitioner has been asked to answer the question relating to the constitutional interpretation in such clear terms of 'yes' or 'no' in which even the Hon'ble Supreme Court of India has not been able to answer so far despite the sequential clarifications by the same Hon'ble Judge spanning over more than one of his judgments and the random and parallel clarifications by several Judges of the Supreme Court in several judgments; rendered through the larger Benches. Therefore, the confusion prevails in its eternity. Taking a cue from the inflectional language in the judgment of the Supreme Court, the respondents have taken the answer to be 'B' (Ninth Schedule) and have furnished the reasoning for the said answer by communicating to the petitioner that judgment of Supreme Court has abolished the immunity from judicial review granted to the Ninth Schedule with effect from 24.4.1973 only for violation of basic features of the Constitution and not for violation of fundamental rights as such; and that the basic features is not the same thing as the fundamental rights. However, relying upon the same language of the same judgment of the Supreme Court, the petitioner has insisted and submitted that since all inclusion of laws in Ninth Schedule after 24.4.1973 has been held to be liable to be subjected to judicial review, therefore, Ninth Schedule is no more exempted from judicial review. The counsel for the petitioner has referred to the judgment rendered by the Hon'ble Supreme Court 4 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -5- (Constitutional Bench) in I.R. Coelho's case (supra), specifically referring to para nos. 96, 97, 102, 106, 109, 114, 126, 127, 135, 136, 145, 146 and the concluding para No.151. The counsel has submitted that vide these paragraphs, the Hon'ble Supreme Court has categorically held that any amendment to the 9th Schedule by way of constitutional amendment is not immune from challenge for violation of fundamental rights. Therefore, conversely speaking, w.e.f. 24.4.1973, any violation of any fundamental right can be made a ground for challenge to the law included in 9th Schedule by way of constitutional amendment; and hence, the answer to the above said question has, necessarily, to be the 'D' (none of the above). It is further submitted that a similar question was asked in another exam conducted by the UPSC for the posts of Civil Services. In the answer key uploaded by the UPSC, answer to that question was held to be 'none of the above', as mentioned in the present case 'D' (none of the above). Therefore, correct answer to the question is 'D' (none of the above). The contrasting stands of the parties have raised an issue, which can aptly be called a 'national confusion'. The confusion is always a by- product of deviation from or avoidance of straight logical deductions. Any inflectional language struggling to justify itself, though harnessed with eloquence, cannot be a substitute for as simple and clear language as 'yes' or 'no'. Hence, some analysis of the judgments of the Supreme Court on the aspect of Article 31-B and its effect on fundamental rights has, per force, become necessary to gather correct answer to the question involved in the present case.
Having heard counsel for the petitioner and having gone through the record, the impugned communication, as well as, having reference to the 5 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -6- judgment of the Hon'ble Supreme Court mentioned hereinabove, this Court does not find substance in the argument of counsel for the petitioner. Article 31-B of the Constitution, which introduced the 9th Schedule in the constitution, was included in the Constitution by way of first constitutional amendment as a counter to Article 13 (2) of the Constitution. Before proceeding further, it is apposite to have reference to the bare language of Article 13 and Article 31-B, which are as under:-
'Article 13. Laws inconsistent with or in derogation of the fundamental rights. - (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires, -
(a) "law" includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368." (Introduced w.e.f. Constitution (24th Amendment) Act, 1971).
XXX XXX XXX 31-A. Saving of laws providing for acquisition of estates, etc - (1) Notwithstanding anything contained in Article 13, no law providing for -
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights,
6 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -7- or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
(2) In this article,--
(a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include--
7 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -8-
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under- proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.
Article 31-B. - Validation of certain Acts and Regulations. - Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force."
The language of Article 31-B grants immunity to the law included in the Ninth Schedule from being declared void on the ground of the violation of the fundamental rights; as was, otherwise, mandated by Article 13 (2). As observed in foregoing paragraphs, Article 31-B which grants this immunity, as such, has not been set aside by the Hon'ble Supreme Court, till today. Therefore, the immunity from challenge to the law on mere violation of a fundamental right still exists in the provisions as contained in the constitution More so; the validity of Article 31-B of the constitution has been upheld by the Hon'ble Supreme Court in 'Sankari Prasad Singh Deo v. Union of India and 8 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -9- others, (1952) SCR 89'. The judgment in Sankari Prasad's case (supra) was not only followed with approval, rather it was reiterated with more emphasis in case of 'Sajjan Singh v. State of Rajasthan, 1965 AIR 845', with the observations that abridgment or taking away of fundamental rights could be necessary for providing legislative instrument in the hands of the political party in power to carry out such economic policies and the social reform in which the political party believes. However, in case of 'I.C. Golak Nath v. State of Punjab and others, (1967) SCR 762', the Supreme Court declared the Article 31-B as invalid and held that the Parliament cannot take away or abridge the fundamental rights. But even in this case, the Article 31-B was made invalid only prospectively, from the date of announcement of judgment in this case i.e. 27.2.1967. Even that prospective over-ruling held ground only for a short time. The judgment in Golak Nath's case (supra) was over-ruled in His Holiness 'Kesavanand Bharati Sripadagolvasu v. State of Kerala, (1973) 4 SCC 225'. Accordingly, the Article 31-B again came alive. Subsequent judgments accepted the validity of Article 31-B. The judgment rendered by the Hon'ble Supreme Court in I.R. Coelho's case (supra) is no different. Even this judgment has not wiped away the language of Article 31-B of the constitution. Rather, it proceeds on assumption that Article 31-B is valid. Hence, the question and the answer, which the respondents have framed in the above mentioned exam, are fully supported by even the bare language of the constitution. However, there is more to the problem, which invites analysis of concept of judicial review.
Judicial review envisages not only a mere right of the citizen to raise the challenge before the Court and the mere power of the Court to take up 9 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -10- the petition of such citizen for adjudication; but also the power with the Court to pronounce upon the result of such adjudication by deciding upon the action under challenge as void or illegal or rendering such action or the effect thereof as non-existent. All these three elements are necessary and integral parts of the judicial review. The impairment of any one of these elements is bound to exclude the judicial review. On a particular aspect the power to pronounce upon the result of such adjudication can be unrestricted in terms of 'subject matter' and the 'criteria/test' to be applied for coming to the conclusion as to the result of such adjudication, or such power could be restricted in terms of such subject matter or in terms of the criteria to be applied. Originally the Constitution contained only a few subject matters qua which the judicial review on the alter of fundamental rights was excluded. However, the 1st amendment of Constitution had inflicted blow upon power of the judicial review on both the abovesaid counts. By inserting Article 31-B, it had taken away from judicial review the 'subject matter' included in the Ninth Schedule, as well as, the 'criteria/test' to be applied for judicial review of such subject matter i.e. violation of fundamental rights. The judgment rendered in Sankari Prasad's case (supra) upheld the double blow caused by the 1st amendment . It upheld the exclusion of the subject mater on the ground that such exclusion does not impinge upon the power of judicial review conferred upon Constitutional Courts, rather it only withdraws some subject matter from the scope of the judicial review. If one is to keep the linguistics and the logic intact then it is hard to resist a conclusion to the contrary, however, since the finding had come from the Supreme Court, therefore, it is to be accepted as it is. Article 31-B was upheld on the premise that it was not ordinary law and 10 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -11- thus, not hit by Article 13. The exclusion of criteria or test of violation of fundamental rights; as the test to be applied for pronouncing upon the validity of law; was upheld and reiterated in Sajjan Singh's case (supra) on the premise that it provided a legislative instrument in the hands of the political party in power to carry out its economic policies and social reforms. It deserves mention that the 'subject matter' so excluded from judicial review was the laws violating right to property and the right to property was a fundamental right at that time. Therefore, this judgment turned out to be an approval or applause on the misery of those whose fundamental right was violated. As the wisdom tells us when one applauds on the misery of another, in fact, he curves out a path for the misery to reach to himself only. So after this judgment, power of judicial review suffered serious damage and the number of laws included in Ninth Schedule swelled quickly and rose from mere 13 laws to 284 laws in course of time. This judgment was followed in some subsequent judgments as well, emboldening the political 'party in power' to make attempt to directly exclude the power of judicial review on several aspects; at its will. This led to the Constitutional Courts being increasingly rendered irrelevant despite the Supreme Court being the final arbitrator of Constitutional Scheme. This, in turn, invited several judgments from larger Benches of Supreme Court, which culminated in I.R. Coelho's case (supra), but with divergent view of the Hon'ble Judge constituting those Benches and deciding the cases with sharp division of 7:6 and 6:5 majority. Although the validity of Article 31-B would have been the prevalent aspect to settle the part as to whether the violation of fundamental rights as ground to declare the law as void in terms of Article 13 of the Constitution would continue or not, however, none of the prevalent 11 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -12- judgments declared this article to be ultra vires. Rather the said judgments proceeded on the premise that the validity of that already stood upheld or that it was not involved in the case or that it was not specifically challenged before the Court. Therefore, the Court in I.R. Coelho's case (supra) also proceeded on the assumption that Article 31-B was valid.
The Article 13 (2) and Article 31-B are in sharp contrast to each other in their language and in their effect on the power of the Court to pronounce upon the result of adjudication in judicial review qua the validity of laws. These two provisions are antagonistic to the extent of being mutually destructive. However, none of these provisions have been held as invalid so far. In fact, there is not much adjudication on the inter-play between these two provisions qua their effect upon the power of the Court to pronounce upon the validity of law in judicial review. Rather, the Article 31-B has been upheld on a different touchstone, that is, the extent of the amending power of the Parliament. Retaining Article 31-B on the book in the face of Article 13 (2) necessitates reconciliatory note; by reading something into it even if that something is not intrinsic to the language of this Article. That something has been held to be the limited amending power of the Legislature. Therefore, in case of I. R. Coelho (supra) the Supreme Court has held that despite existence of wide language of Article 31-B, its effect has to be read as limited one, commensurate with the limited amending power of the Parliament. This can be gathered from the following para of the judgment :-
"126. If constituent power under Article 368, the other name for amending power, cannot be made unlimited, it follows that Article 31-B cannot be so used as to confer unlimited power. Article 31-B cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth Schedule flows from Article 368. This power of
12 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -13- amendment has to be compatible with the limits on the power of amendment. This limit came with Kesavananda Bharati case. Therefore Article 31-B after 24-4-1973 despite its wide language cannot confer unlimited or unregulated immunity."
Once the Article 31-B, which excluded violation of fundamental right as the test for pronouncing upon the validity of the laws was upheld or assumed to be valid, then there was no alternative except to reconcile with such validity and to devise an alternate test to pronounce upon validity of laws included in 9th Schedule. Accordingly, the tests of extent and nature of violation of some of the fundamental rights considered as basic feature of the Constitution or impact of such violation on some essential features of the Constitution, has been devised. The net result is that the immunity granted to the Ninth Schedule laws qua violation of fundamental rights has not been done away with. It shall continue. But some effect of such violation has been brought within the preview of the judicial review; so as to reclaim power to pronounce upon the validity of laws included in 9th Schedule. But the reference test for such invalidity is not the violation of the fundamental rights, per se, but the effect of the same on the 'basic features' of the Constitution, which are spread over the entire body of the Constitution; even beyond the fundamental rights. This can be gathered from the following paragraph of the judgment in I.R. Coelho's case (supra) :-
"148. The power to amend the Constitution is subject to the aforesaid axiom. It is, thus, no more plenary in the absolute sense of the term. Prior to Kesavananda Bharati the axiom was not there. Fictional validation based on the power of immunity exercised by Parliament under Article 368 is not compatible with the basic structure doctrine and, therefore, the laws that are included in the Ninth Schedule have to be examined individually for determining whether the constitutional
13 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -14- amendments by which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution. This Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has necessarily to scrutinise the Ninth Schedule laws. It has to examine the terms of the statute, the nature of the rights involved, etc. to determine whether in effect and substance the statute violates the essential features of the Constitution. For so doing, it has to first find whether the Ninth Schedule law is violative of Part III. If on such examination, the answer is in the affirmative, the further examination to be undertaken is whether the violation found is destructive of the basic structure doctrine. If on such further examination the answer is again in affirmative, the result would be invalidation of the Ninth Schedule law. Therefore, first the violation of rights of Part III is required to be determined, then its impact examined and if it shows that in effect and substance, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow. Every time such amendment is challenged, to hark back to Kesavananda Bharati upholding the validity of Article 31-B is a surest means of a drastic erosion of the fundamental rights conferred by Part III. (Emphasis supplied). Hence, in essence, the judgment of Supreme Court in I.R. Coelho's case (supra), though has brought the 'subject matter' of the Ninth Schedule within the purview of judicial review, however, has not included the 'test' of violation of fundamental rights, per se, as the criteria for pronouncing upon the invalidity of the subject matter. Therefore, the immunity enjoyed by Ninth Schedule subject matter; from being declared as void on the ground of violation of fundamental rights, in itself, still remains in place, although the possible mischief which could be played by this immunity has been sought to be reduced by devising an alternate test for exercising constitutional judicial supervision.
The issue can be explained in another way as well. The counsel for the petitioner has submitted that after the judgment of the Hon'ble Supreme 14 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -15- Court rendered in I.R. Coelho's case (supra) despite existence of language of Article 31-B, there is no immunity from judicial review for the inclusion in 9th Schedule; on the basis of violation of fundamental rights and that every violation of every fundamental right has been made permissible to be made a ground for questioning the validity of constitutional amendment qua 9th Schedule. However, the judgment and its intents and contents do not support the argument of counsel for the petitioner. The judgment itself has made the effect of any such violation upon the basic feature of the constitution as the test to see whether the amendment is immune from being declared as void or not. The basic features of the Constitution, though have not been defined anywhere, however, from the judgment so far rendered by the Hon'ble Supreme Court and; particularly as culled out in the above said I.R. Coelho's case (supra); refers to even the aspect beyond the rights conferred by Part-III besides the essence of the fundamental rights contained in Part-III of the constitution, as the basic features. Essence of some of the individual rights have been mentioned in the judgment, as being part of basic features. The rest of the individual fundamental rights have not even been held to be the basic feature of the constitution. Hence, it is clear that there are several fundamental rights contained in Part-III of the Constitution which do not have any status of being the basic feature of the Constitution; and qua which immunity granted to Ninth Schedule by Article 31-B shall continue to be enjoyed by the amendment of Ninth Schedule. The extent of the immunity may vary as per the degree of effect upon the basic feature of the Constitution, however, the fact remains that some laws of Ninth Schedule can enjoy full immunity from being pronounced as void for violation of fundamental rights and some other laws may enjoy such 15 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -16- immunity to some limited extent, whatever it comes out to be. Therefore, it is evident that there exists one schedule in the constitution, which enjoys immunity from being declared void or invalid merely on the basis of violation of some of the fundamental rights contained in Part-III of the Constitution. Hence, the respondents are right in communicating to the petitioner that the answer to the question is 'B' (Ninth Schedule) and that the attack upon the basic features of the constitution, on the one hand, and a mere violation of individual fundamental rights on the other hand; are two different things and cannot be taken to be the same. Accordingly, the question framed by the respondents, as well as, the answer provided to that question, are held to be valid.
To put the entire matter in the language and illustration of, and for the understanding of a layman, the Parliament created a 'bull' with huge strength and long horns in the form of Article 31-B and the Ninth Schedule; to bulldoze the fundamental rights of citizen. The judgment of Supreme Court in Sankari Prasad's case (supra) enhanced the strength of the bull and the judgment in Sajjan Singh's case (supra) sharpened his horns. Subsequent judgments of the Supreme Court have neither decimated the bull nor have broken his horns. The judgments are in the nature of taming the said bull; so as to be able to ride it. However, no degree of taming and training can convert the 'bull' into a 'goat'. The bull shall still remain a bull though some of his aggressive behavioural traits may be hibernated. However, one never knows when the bull forgets his training and his hibernated traits get resurrected and the bull starts hitting with all his strength and sharpness of horns. The fundamental rights can still be put to peril by taking advantage of vagueness of concept of basic features and by putting in the forefront some high-sounding 16 of 17 ::: Downloaded on - 24-04-2022 22:30:14 ::: CWP No. 1007 of 2022 -17- 'reform' just like 'Agrarian reform'. In that situation it may not be possible to stop growth of 9th Schedule by taking any plea of violation of fundamental rights. The 9th Schedule can still claim immunity against violation of fundamental rights.
In view of the above, finding no merit in the present petition, the same is dismissed.
However, since the question asked in the examination involved in the present case needs lots of explanations for being answered correctly and does not, straightway admits the precise answer, therefore, this question or a question analogous thereto, if asked as a multiple choice type of question, has the potential of damaging the right of citizen to get public employment; like the petitioner of the present case. Therefore, this question is better not asked as a multiple choice type of question in any public examination conducted for selection of candidates for public employment. Accordingly, all public selection bodies, including the Services Selection Boards and Public Service Commissions operating within or under the control of the State of Punjab, Haryana, UT Chandigarh or the Union of India, including UPSC, are hereby restrained from asking the above said question or a question analogous thereto as a multiple choice type question; in any public service selection examination. However, such Bodies shall not be precluded from asking the above said question as subjective type question, which permits explanations.
The copy of this judgment be sent to all the concerned Public Examination Bodies for necessary compliance.
(RAJBIR SEHRAWAT)
JUDGE
7.2.2022
Ashwani Speaking/Reasoned : Yes/No
Reportable : Yes/No
17 of 17
::: Downloaded on - 24-04-2022 22:30:14 :::