Patna High Court
Birendra Kumar Singh And Ors. vs State Of Bihar And Ors. on 6 November, 1986
Equivalent citations: 1987(35)BLJR192
JUDGMENT S.S. Sandhawalia, C.J.
1. Whether each and every provision of the Bihar and Orissa Jail Manual, 1927, is stricto sensu a justiciable statutory rule and with particular reference to Rules 9141 and 982 thereof-is the primal common question in this set of four cases necessitating this reference to the Full Bench. Assuming so, the subsidiary issue is whether the said Rule 982 is mandatory or purely recommendatory. Equally at issue is the correctness of the Division Bench's decision in Chandeshwar Prasad Singh and Ors. v. The State of Bihar and Ors. Criminal Writ Jurisdiction Case No. 233 of 1982, disposed of on the 8th July, 1982.
2. The representative matrix of facts may be briefly noticed from Criminal Writ Jurisdiction Case No. 257 of 1985, Birendra Kumar Singh and Anr. v. The State of Bihar. The two petitioners were convicted on the charge of pre-meditated murder Under Section 302 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life, and, at present, are lodged in the Central Jail, Patna. By virtue of Chapter XXXIV of the Bihar and Orissa Jail Manual (hereinafter called 'the Manual'), and, in particular, Rules 981 and 982 thereof, convicted prisoners are classified in three divisions, namely, Division 1, Division II and all those prisoners who do not come within the purview of the same, as Division III. The convicted prisoners classified in Divisions I and II enjoy various privileges in their treatment within the Jails prescribed inter alia by Rules 1014 and 1015 of the Manual, which are not available to the rest. The petitioners filed a petition before the District Magistrate, Patna, purporting to be under the Rules of the Manual, seeking a higher classification of prisoners thereunder. Vide order dated the 1st, of September, 1980, the District Magistrate, on the basis of some report, cryptically allowed the petition for upper class in the Jail and directed the Jail Superintendent to act accordingly (vide Annexure '3' to the petition). It is averred that in pursuance of that order, the petitioners were granted the status of upper division prisoners and are enjoying the privileges and benefits ever since. However, by the impugned order dated the 8th October, 1985 (Annexure-4) the respondents issued directions to the Superintendents of all jails in Bihar that no prisoner in any case will get the benefit of upper division prisoner till the confirmation of the recommendation by the classifying authority, which, admittedly, is the State Government. It has been averred that the said impugned order has directly affected nearly 600 to 800 upper division prisoners all over the State, including the petitioners, Aggrieved thereby the present criminal writ petitions have been preferred.
3. In the counter-affidavit filed on behalf of the Respondent State, the broad factual position is not controverted. The stand taken is that under Rule 982, the State Government alone has the power to confirm any recommendation of a classifying authority, and, necessarily has got the power to suspend or to confirm any such recommendation. It is the stand that the recommendation for the higher classification is purely provisional till approved and confirmed by the State Government and vests no legal right in the petitioners nor does it amount to any deprivation of an accrued vested privilege. It is then averred that under Rule 982 the District Magistrates are not empowered to pass orders of a permanent nature and they are purely recommending authorities to the Government and cannot grant or confer a vested status of higher classification. The firm stand taken is that the orders of higher classification have been secured through maneuvering and without first furnishing the copies of the judgments of conviction and without obtaining the confirmatory order of the Government, and, therefore, they cannot be allowed to continue ad infinitum and the writ petitions are thus neither maintainable nor meritorious.
4. At the threshold stage of admission, reliance on behalf of the petitioners was sought to be placed on Chandeshwar Prasad Singh and Ors. v. The State of Bihar and Ors. (supra), the correctness of which had been frontally assailed on behalf of the respondents and the firm stand taken that the mere classification of prisoners suggested by Rules 981 and 982 of the Manual was not justiceable, as these were not statutory rules at all. In view of the importance of the matter and the challenge to an earlier precedent, the writ petitions were directed to be heard by a Full Bench.
5. In the first flush of argument Mr. S.B.N. Singh, learned Counsel for the petitioners, virtually attempted to start on the assumption that the Manual was statutory and in terms framed under Clause (18) of Section 59(2) of the Prisons Act, 1894. However, when asked to substantiate such a presumption, the learned Counsel appeared to be on a wholly slippery ground. Despite repeated pinpointing it could not even remotely be established that each and every provision of the Manual was expressly framed Under Section 59, and, in particular, Chapter XXXIV of the Manual pertaining to classification of convicted prisoners for the purpose of treatment, in which Rules 981 and 982 fall, which are the subject matter of specific consideration. In the ultimate analysis, the learned Counsel for the petitioners had to fairly concede that there was no Section of any Act or any other legal provisions to which either expressly or by clearest implications the provisions of Chapter XXXIV of the Manual could be traced as stricto sensu statutory rules in the legal sense of having been framed under the mandate of a rule making power conferred by a legislative enactment.
6. That the Manual does not derive any legal source from Section 59 of the Prisons Act of 1894 is manifest from the fact that it did not see the light of the day till as late as the year 1927 It would appear that the Manual derived its genealogy from the earlier Bengal Jail Code of 1910. learned Counsel for the petitioners did not even remotely attempt to show, far from establishing, that the predecessor Bengal Jail Code of 1910 was itself stricto sensu statutory or was framed under the Act aforesaid. Indeed, the same was not even cited before us. There is thus a gap of 33 years betwixt the enactment of the Prisons Act of 1894, and the printing and publishing of the first edition of the Manual in 1927. Not the least explanation has been offered as to why in this Yawning period no rules were framed earlier or the cause that necessitated of these being so framed by the Manual Under Section 59 of the said Act. Therein, there is not the least indication that the provisions of the Manual are being framed under Sub-section (2) of Section 59 of the Prisons Act of 1894. Indeed, the opening Chapter I of the Manual refers not merely to the Prisons Act of 1894, but generically to 12 or more other statutes and regulations, which cover the rambling field of prison management and the establishment of Jails, the confinement and treatment of prisoners therein and the maintenance of discipline amongst them These statutes and regulations are separately printed in the second volume of the Manual. Indeed, as the Preface to this Manual by A. E. Scroope, the then Secretary to the Government of Bihar and Orissa, Judicial Department, would indicate the provisions of the Manual are mere instructions or guidelines which were originally drafted by Rai Sahib Pokhar Das Verma and revised by Mr. J.A. Hubback, I.C.S. in the light of the Indian Jail Committee's report, modifying the earlier Bengal Jail Code, as adapted to the Province of Bihar and Orissa. There is thus not the least indication of the provisions of the Manual being statutory rules framed by the well known procedures under the rule making power of a legislative enactment.
7. learned Counsel for the petitioners in a vain attempt to reach out to some statutory source, made a reference to the opening part of Chapter II for suggesting that the Manual was framed Under Section 60 (a) of the Prisons Act of 1894 (subsequently repealed and substituted by Section 59(2)). To my mind, the reference to Rule 2 in Chapter II does not eve i remotely advance the stand of the petitioners. As would be elaborated hereinafter, in the matter of statutory rules, one cannot launch on the high seas of speculation or a voyage of discovery to locate the legal sanction, where the provisions themselves do not remotely disclose such a source by actual reference or by necessary and unambiguous implication. It is significant to recall, and if necessary to repeat, that the opening part of Chapter I of the Manual makes reference not to the Prisons Article of 1894 in singularity, but in a consolidated group of 12 or more prisons statutes or regulations. Again, it neither in the heading nor in the preamble, or in the preface of the opening part of the Manual gives any remote indication even as to the particular Section or the legal source under which the Manual is said to be framed. Indeed, Mr. Scroope's preface, to which a reference has already been made, gives the lie direct to any such source in the following terms:
The Jail Manual now issued is an up-to-date reprint of the Bengal Jail Code of 1910 as adapted to the Province of Bihar and Orissa. A number of changes have been introduced in Prison administration in the province as a result of the Indian Jails Committee's report, and numerous correction slips have rendered the 1910 edition out-of date. It is also desirable that the province should have a complete set of rules of its own. The original draft was prepared with care and ability by Jailor Rai Sahib Pokhar Das Varma. Mr. J.A. Hubback, I.C.S. was placed on special duty to revise and complete the work. These volumes should be cited as 'the Bihar and Orissa Jail Manual, 1928.
A. E. Scroope, Secretary to the Govt. of Bihar and Orissa, Judicial Department.
8. Now the aforesaid is plainly indicative of the fact that apparently on the separation of the Province of Bihar and Orissa from Bengal, the earlier Bengal Jail Code, 1910, continued to serve as a Management Manual for the Jails, and it was not till 1927 that in a way it was redrafted and revised in the shape of the present Manual as a convenient set of administrative instructions. The different Chapters of the Manual (barring Chapter XXI pertaining to remissions) do not at all indicate or suggest that these were framed under the legal source of any particular Section of the 12 or more prison statutes governing the field. Equally, it is a mistaken notion that Chapter II of the Manual has been framed Under Section 59 (2) or the earlier repealed Section 60 (a) of the Prisons Act, 1894. It does not even remotely pretend to say so. Indeed the correct interpretation of Chapter II of the Manual plainly is that it refers to the fact that Section 60 (a) of the Prisons Act, 1894 (which now stands repealed) had earlier classified Jails into Central Jails, District Jails, Subsidiary Jails and Sub-Jails. On the lines thereof, the then existing jails of Buxar, Bhagalpur, Gaya and Hazari-bagh were declared to be Central Jails. Similarly, 11 others were declared as District Jails and a number of others as subsidiary Jails, and, a reference was made to Monghyr, which was termed as special jail for the confinement of juvenile prisoners and known as the Juvenile Jail. Thus, the reference to the relevant Section of the Prisons Act, 1894, is not any declaration of statutory source, but merely a reference for the factual division of the existing jails in the State for the purposes of classification into four categories. Therefore, the suggestion that Chapter II, or, for that matter, the rest of the provisions of the Manual, have been declared to be framed Under Section 59 (2) of the Indian Prisons Act, 1894, must be rejected. Even otherwise, it seems wholly incongruous that if the Manual derived its authority from the specific Section 59 or 60, it should not have been mentioned either in the heading or in the preamble or in the preface or even in the opening part of Chapter I thereof.
9. Mr. Braj Kishore Prasad ingenuously delved into history, whilst attempting to argue that at the material time in the year 1927, when the Manual was published, Section 59 (1) of the Indian Prisons Act, 1894, authorised the Governor General in Council to frame rules, under the said Act. It was submitted that the Manual refers to the same having been prescribed by the Governor in Council, and, therefore, indicative of the fact that these rules were framed under the said Section at that time. This contention is only to be noticed and rejected. At the material time, Section 59 read as under:
59. Power to make rules The Governor-General in Council may for any part of British India, and, each Local Government, with the previous sanction of the Governor-Genearl in Council, may for the territories under its administration, make rules consistent with this Act....
It would be plain from the above that the primal rule-making authority was the Governor-General in Council. On the other hand, the reference in the heading of the Manual is not to the Governor-General in Council at all. It only refers to the prescription by the Governor of Bihar and Orissa in Council. Even if the earlier provision is read as authorising the Governor in Council to do so, the same would only be by the express permission and the delegated authority of the Governor-General in Council. There is nothing whatsoever to show that any such permission was ever sought or any such delegation was ever made. That being so, the argument of Mr. Braj Kishore Prasad indeed must boomerang upon him and cast a further shadow of doubt, because the Manual admittedly is not framed either by the Governor General in Council, or by his permission or delegation.
10. Apparently clutching on a last straw, Mr. Braj Kishore Prasad had then sought to place reliance on Ranbir Singh Sehgal v. The State of Punjab. ., wherein their Lordships observed that Paragraphs 571 and 572 of the Punjab Jail Manual were presumably drafted under the Prisons Act of 1894. This submission at once reminds one of the warning in Quinn v. Leathemn. 1901 A. C. 495., pointedly highlighting the pit falls of reading every line or observation in a judgment as its ratio. Admittedly, the issue was not even remotely raised before their Lordships in the case aforesaid. The provisions there were those of the Punjab Jail Manual and Paragraphs 5 and 7 (5) thereof, which have not the least analogy or relevance to what we are herein called upon to construe. In the said case the challenge was raised to the validity of the aforesaid paragraphs, which was upheld. Herein, in the reverse, the claim is that the provisions of the manual are statutory and a mandamus is sought for to enforce the same on that premise. The employment of the word 'Presumably' by their Lordships is plainly a studied reminder or a pointer that they were not at all adjudicating on the issue. There cannot possibly be any presumability when a pointed issue as to whether the provision is statutorily binding or not is expressly raised. Little or no aid can therefore be derived by the petitioners from the observations in the aforesaid judgment.
11. Though the specific submissions stand rejected after consideration, the larger question that nonetheless looms is, whether statutory rules must on their face disclose the fountainhead of the power and authority under which they have been framed, or, in any case, an unequivocal and unambiguous link establishing the two. learned Counsel for the parties before us stated that there was no direct decision of the Final Court or of this Court, or, for that matter, of any other court, holding one way or the other. The issue has, therefore, to be somewhat refreshingly examined on principle.
12. In this context learned Counsel for the petitioners, attempted to contend that even though admittedly Chapter XXXIV of the Manual and most other Chapters (barring Chapters XXI with regard to remission) do not even remotely declare or disclose any Section of a parent statutory provision under which these are purportedly framed, yet it would be permissible by a process of remote rationiceation to infer or connect them with any one of the 12 or more prisons statutes referred to in Chapter I. By way of analogy, reliance was placed on Afzal Ullah v. State of Uttar Pradesh and Anr. ; P. Radhakrishna Naidu and Ors. v. Government of Andhra Pradesh A.I.R. 1977 S.C. 864. and Municipal Corporation of the City of Ahmedabad v. Ben Hirabed .
13. The aforesaid argument, though it may bring credit to the ingenuity of the Counsel, is nevertheless fallacious and has to be rejected for reasons that follow. However, since it is sought to be buttressed by binding precedent, it is apt to first distinguish the same. Now it is well settled that with regard to any order simpliciter or any action purported to be taken under any law, it is not necessary or mandatory to indicate therein the statutory provisions under which it is taken, though if it is so done, it would be desirable enough. Equally well settled it is that even where it is purported to be done, but a wrong provision of law is mentioned, the same would not invalidate the order or the action, if there exists an otherwise valid statutory source under which such action or order can be sustained. In other words, if the statutory sanction exists, the non-mentioning thereof or even a wrong labelling of the same in an order does not vitiate the same or the action taken thereunder. Consequently, it is not only permissible, but always possible to trace the statutory source of power of an order or an action, the validity of which is challenged, even though it is not specified or has been wrongly specified. All the three aforementioned authorities are a warrant for this proposition, with which there can possibly be no quarrel on principle, and, indeed none in view of the binding precedent.
14. What, however, is true with regard to an order or action cannot possibly be true or be extended to legislation stricto sensil. In Babu Ram Upadhyava's case their Lordships rightly held that once statutory rules have been validly framed under an Act, then they become part and parcel of the same. Assuming that such rules are within the parameters of the rule making power of the parent statute, they in a way merge with the same with an identical authority and sanctity, as if they were in a way the very Sections of the Act itself. Consequently, in order to subsist, such rules must expressly be framed under the parent provisions and within the limits spelt out in the Section conferring a rule making power therefor. The larger principles governing the framing of subordinate legislation or delegated legislation are at once attracted in this context. One has to remind oneself of the cardinal rule that herein the legislature cannot possibly abdicate this duty and has to prescribe the parameters within which the rule has to be framed and confer the power in express terms. Therefore, subordinate legislation like the rule making power or delegated legislation by its very nature has to be within the area carved out therefore by the parent Act and has to be framed with a keen eye to the said limitations. The principle of the rules being ultra vires of the Act, if they transgress the arena earmarked therefore, is at once called into play. If the very source of the power wliereunder the rules are purported to be framed is not disclosed or is uncertain, the validity of such rules cannot possibly be tested on the anvil of the legislative sanction given for the framing thereof. If such a power has to be looked around and to be gathered and searched in more than 11 or 12 statutes, it cannot but lead to utter confusion and uncertainty. The settled canon of construction is that the law must be uniform and certain and not confusing or conjectural. If the parent provision, from which the statutory rules are alleged to spring, is unnamed or uncertain or has to be searched for, then such rules lose their legitimacy and cannot possibly have the force of law. Therefore, it must be held that a roving search for the legislative source for the framing of rules is not permissible. To be stricto sensu statutory and have the sanction and mandate of a legal provision, such subordinate or delegated legislation must necessarily indicate the delegator or the source from which they take birth. One cannot make a roving search for the legal authority, like the famed search for the successor to the Dalailama in the spiritual field of the Tibetan mythology of yore. This is so, because the subordinate legislation has to necessarily remain within the parameters of the arena delegated and prescribed to it by the parent statute. It must, therefore, be held that the parent Section or the legislative source for the framing of the rules or the subordinate legislation must be clearly disclosed either in the rules themselves or by an inflexible and unequivocal provision.
15. Now, apart from other things, even a bare look at the voluminous provisions of Volume I of the Manual itself (not to speak of the remaining Volumes II and III), is a clear pointer to the fact that it is indeed a detailed and meticulous management Manual laying out the administrative method-logy of running jails efficiently. Volume I is itself in two parts, wherein the first part contains the Bihar and Orissa Jail Manual and the second part, the Bihar and Orissa subsidiary Jail Manual. The 1296 exhaustive rules laid out in Part I, in as many as 42 chapters, and 273 rules spelt out in the Subsidiary Jail Manual span over the minutest and ministerial details of jails and their management. Whilst its draftsmen are to be complimented for the painstaking care for detail by its numerous authors and revisors, it is equally plain that each and every one of these provisions are not mandates of law stemming from a sovereign sanction therefor. These rules range over a wide field of activities, including religious and moral instructions in prisons, the modes of preparation of food and procurement and storing of food supplies, including the running of a dairy therefor. Equally they govern the jail gardens and agriculture, clothing, bedding and jail equipments and even sanitary regulations pertaining to barracks, buildings, conservancy and water supplies. Reference in this connection may be made at random to Rules, 1037, 1050, 1058 and 1120 to 1130. Indeed a bare reading of these rules can leave no manner of doubt that these could not possibly be imagined as statutorily enforceable provisions. As a representative provision, Rule, 1058 (at page 407 of the Manual) may be quoted:
Every jail shall have a dairy. Well-roofed and ventilated sheds shall be provided. The floor should be of well burnt brick-on-edge or other good material pointed with cement. To prevent slipping, the slope of the floor should be slight, only sufficient to carry off the urine and washings to a masonry drain emptying through a spout into iron receptacles removable by hand, and not into the surface drains of the jail. The vital necessity of cleanliness must always be borne in mind. The floor of the cow-shed must be scrubbed and washed daily and afterwards thoroughly dried. Sand and straw should be thrown on the floor to prevent the cows slipping The presence of flies in the cow-house is a sure sign of neglect. A separate shed or separate division of a shed should be provided for weaned calves.
16. Now it would be plain from the above that such details about the materials for the roofs, ventilation of the sheds, and the slope of the floor and drains and the washing and scrubbing thereof, cannot possibly be binding provisions for the justiceability of courts. This may, perhaps, be even more manifest from a perusal of Rules 1120 to 110 pertaining to conservancy and the maintenance of drains, latrines, urinals, etc. Indeed, faced with these provisions, the learned Counsel for the petitioner had no choice, but to concede that the aforesaid provisions cannot possibly be either held to be statutory or binding or justiceable. Plainly enough these are purely administrative guide-lines in a somewhat exhaustive management manual. Now once that is so, in law it is impossible to hold and go on a voyage of discovery over a wide spectrum of more than 1500 rules in Volume 1 (not to mention others in Volumes II and III), in order to determine their justiceability. We were invited to this futile and vain task and canvassed to hold that Rules 981 and 982 and some others relied upon by the learned Counsel for the petitioners, were statutory in character, whilst unreservedly conceding that most others in the Manual were not so. No canon of reason or logic, however, dictates us to hold to such a course. Indeed, it deserves highlighting that Chapter XXXIV containing Rules 931 and 982 does not in its heading or in the body refer to any Act or Section under which the said Chapter or the Rules contained therein are purported to be framed. In sharp contrast thereto are the provisions of Chapter XXI pertaining to remissions. The very heading thereof declares that the Rules in the said Chapter are being framed by the Governor General in Council in exercise of the powers conferred by Section 59 (5) of the Prisons Act, 1894. In terms, it is specified that the Rules in the said Chapter apply to the whole of British India inclusive of British Baluchistan and the Santal Parganas. The inevitable inference is that neither Chapter XXXVI nor the rules contained therein are in any way statutory and the contention of the learned Counsel for the petitioners in this context, therefore, must be rejected.
17. It is true that the Manual labels the provisions therein as rules. It is, however, equally well settled that merely labelling or saying that a provision is a rule does not thereby render it either statutory or having the force of law. The word 'rule' in the Manual is used in its generic sense of a direction or order proceeding from authority, but, not as a term of art of a statutory rule, stemming from the sanction of an Act of Legislature authorising the delegation or framing of rule for the objects and purposes of such an Act. The real issue herein is whether, assuming that the provisions are authoritative, they are statutory stricto sensu. I am inclined to the view (which was not seriously contested on behalf of the petitioners) that the issue is not merely of labels, and the heading of the Manual, mentioning its provisions as Rules, is indeed very far from, in any way, being conclusive on the point.
18. Reliance on behalf of the petitioners had been sought to be placed on a series of judgments in the case of Charles Sobhraj and Sunil Batra. Primal reference was made to Charles Sobraj v. Superintendent, Central Jail, Tihar, New Delhi . for contending that imprisonment does not impair the fundamental right. Equally reference was made to the latter judgments in Sunil Batra v. Delhi Administration and other. . and in Sunil Batra v. Delhi Administration. . for elaborating the same principle. In this set of cases, Krishna Iyer, J., in his usual picturesque language, has elaborated the concept that prison laws do not shut out the constitutional mandate of fundamental rights. There is, and possibly cannot be, any quarrel with this basic proposition. Undoubtedly, where fundamental rights or even human rights of a prisoner, subject ofcourse to the limitations imposed by lawful imprisonment, are impaired or flouted, the Courts may and indeed are duty bound to enforce them. All the cases relied upon are of brutal mal-treatment, solitary confinement, denial of basic human rights, which would come well squarely within the ambit of Part III of the Constitution. These cases are themselves plainly distinguishable, because, even putting the cases of the present petitioners at the very highest, there is no involvement or question of any fundamental right. This indeed had to be fairly conceded by their learned Counsel. On the other hand, the position is somewhat in the reverse. Whilst the State Government is wishing to treat all prisoners equally in a single class till adequate ground for confirming the recommendation for an upper division is shown, it is the petitioners who are seeking a privilege and special favourable treatment on alleged ground of higher social status, despite the fact that they stand convicted of the heinous crime of murder. We are not at this stage inclined to adjudicate whether the archaic rules of better treatment on the basis of higher social status would today stand the searching scrutiny of equality before the law 00 any such consideration. Without pronouncing about the validity or otherwise of the relevant rules, it suffices to mention that not the least infringement of fundamental rights herein is involved, and, in sum, the claim of the petitioners is to special privileges and benefits other than the common class of prisoners, despite the fact of the petitioners themselves being life convicts.
19. To conclude on this aspect, in the light of the aforesaid discussions, the answer to the first question posed at the very outset is rendered in the negative and it is held that Chapter XXXIV of the Manual containing Rules 981 and 982 is not statutory in nature and the said rules are consequently not justiceable.
20. Though the aforesaid findings conclude the matter, yet, it becomes necessary, and, in any case, apt to dispose of the subsidiary argument, which was strenuously pressed before us. Assuming entirely for the sake of argument (without in the least holding that it is so), that Rules 981 and 982 of the Manual have the force of law, the question was raised whether the same are mandatory or directory. The main plank of the learned Counsel for the petitioners for this hyper-technical assumption was that Rule 982 was indeed binding and mandatory in nature. Herein again learned Counsel for the petitioners seem on a weakest wicket. It is well t- recall that when originally framed, Rules 981 and 982 pertained to European prisoners and their classification and treatment as such. These rules have been later on repealed and substituted by the present Rules 981 and 982, which are inter-related, and, therefore, deserve notice in extenso:
981. There shall be three divisions of convicted prisoner, viz- Division I. Prisoners sentenced to rigorous or simple imprisonment may be classed in this division if (1) they are non-habitual prisoners of good character;
(2) they by social status, education and habit of life have been accustomed to a superior mode of living; provided that;
(3) they have not been convicted of
(a) offences involving elements of cruelty, moral degradation or personal greed;
(b) serious or premeditated violence;
(c) serious offences against property;
(d) offences relating to the possession of explosives, fire arms and other dangerous weapons with the object of committing an offence or of enabling an offence to be committed;
(e) abetment or incitement of offences falling within these Sub-clauses.
Division I. Prisoners who, by social status, education, or habit of life have been accustomed to a superior mode of living shall be classed in this division. Habitual prisoner will not be excluded automatically from this class.
Division II. Will include all prisoners not classed in the first two divisions. They will not receive any special treatment and will be treated as ordinary prisoner under the rules of this Manual.
982. Classifying Authority. -The High Court, Sessions Judges, District Magistrates, Sub-divisional Magistrate and Magistrates of the First Class (the two latter through the District Magistrate) in cases tried by them originally or in any other case the District Magistrate, should make the initial recommendation for classification in Division I or II to the State Government, by whom these recommendations should be confirmed or reviewed. Pending confirmation of the classification by the State Government, prisoners shall receive the treatment of the Division for which they are recommended by the classifying authority.
21. Even a plain reading of Rule 982 is indicative of the fact that far from being mandatory it is on the face of it merely recommendatory. Its language leaves no manner of doubt that the ultimate repository of power for determining a division or class of prisoners is the State Government itself. In this context even the judicial authorities like the High Court, Sessions Judges and the District Magistrates, etc., in the context of cases tried by them originally are merely recommendatory bodies, which, in the interregnum may suggest the class or division in which the prisoners may be treated till the State Government finally decides the matter. Indeed the language employed is specific and talks of an initial recommendation for classification. It is expressly open to confirmation or review by the State Government. Any such recommendation under Rule 982, even by the trial or the appellate criminal court is purely transitory in nature, subject to approval and confirmation by the State Government. It is somewhat elementary that the power to confirm or review would inevitably include the power to pass interim orders, which would include the power to suspend or extend the recommendatory order. No hypertechnicality in this context is either envisaged or desirable. On the broad scheme, Rule 982 suggests, as a matter of practicability, that the convicting courts generically and the District Magistrate in any other case, may propose an upper division or classification of a prisoner. However, the same is entirely in the nature of an initial recommendation, which may or may not be accepted or confirmed. The broad construction of Rule 982, read as a whole, would thus clearly manifest that the provision is recommendatory in nature, reposing the final decision in the State Government. To my mind, reading such a provision either as mandatory or inflexibly binding, on the basis of a mere recommendation at that stage appears as unwarranted.
22. To conclude on this aspect, it must be held that assuming entirely as a matter of argument (without holding so) that Rules 981 and 982 have the force of law, the latter Rule 982 is not mandatory, but is indeed purely recommendatory.
23. It remains to advert to the case of Chandeshwar Prasad Singh and Ors. v. The State of Bihar and Ors. which indeed has necessitated this reference to the Full Bench. A mere reading of the High Court's short order passed at the threshold stage of admission would indicate that the issue was hardly canvassed at all. The questions which have been herein examined in great detail seem to have been begged in the first instance itself. It appears to have been assumed that the rules in the Manual are statutory or that the power exercised thereunder was quasi-judicial in nature, requiring the exercise of a reasoned and speaking order. Neither of the assumptions seems to be true in the light of the details discussion above It would appear that the learned Counsel for the respondent state was somewhat remiss in not highlighting the meaningful issues which arise in this context and have been noticed and adjudicated as above. Neither principle nor precedent has been referred to in arriving at the conclusion. The order indeed indicates the pitfalls of adjudicating meaningful and complicated issues at the threshold stage of admission itself. With the deepest deference, the case does not lay down the law correctly and is hereby overruled.
24. Lastly, on merits also it would appear that the State's stand is more than amply justified. learned Counsel for the State rightly highlighted the infirmities in the order of the District Magistrate (Annexure' 3'), which is the sheet anchor of the petitioners. It purports to be a final order, when under Rule 981, at best a recommendation could have been made by him. It directs as a fiat that the prisoners be given a higher class on the basis of some reports, forgetting that the conditions prescribed in the preceding Rule 981 must first be satisfied. Thereunder, it has been laid down that the prisoners held guilty of cruel or heinous offences are not entitled to a higher class. It would be doubtful whether a person convicted for a premeditated or designed murder would not come under that category and it is a direct bar against higher classification. It is such like orders which the State Government has suspended vide Annexure'4 and, in our view, rightly. The onus would lie heavily on the petitioners to sustain the validity and even the propriety of such an order, which, on the face of it, runs contrary even to Rules 981 and 982.
25. It was firmly the stand of the Respondent State at the Bar that because of the misuse or abuse of the provisions of Rules 981 and 982 by District Magistrates or other authorities in making haphazard directions for classification of the prisoners, unwarranted by these provisions, that the impugned order (Annexure '4) had come to be passed. In the counter-affidavit, it had been averred that the privileges of higher classification were being enjoyed through maneuver without obtaining the confirmatory orders of the State Government. Even copies of the judgments were not being furnished, wherein the trial or the appellate court alone were entitled to make the initial recommendations. To correct this abuse or misuse of these provisions, rooted allegedly in corruption and maneuvers, the State Government, vide Annexure '4', had taken a uniform decision that all such orders be put in suspension and the prisoners be treated equally of one class, till the State Government decides and confirms the necessity of higher classification in individual case. Far from any fundamental right being involved, not even a legal right or a plausible claim to higher classification herein is disclosed. The mere fact that the privilege surreptitiously and in an unwarranted manner, does not create either an easement in their favour or something in the nature of a claim of adverse possession. No infirmity worth the name petitioners may have enjoyed this in the impugned order (Annexure '4') is thus desclosed, which must, consequently, be upheld.
26. In the light of the above all these writ petitions are without merit and are hereby dismissed.
S. Shamsul Hasan, J.
27. I agree.
K.B. Sinha, J.
28. I agree.