GH RASUL AZAD Vs. STATE

JUDGEMENT

(1.) THIS is an application for an appropriate writ to quash an order of the Election Commissioner under which he has by drawing lots placed the petitioner in a category by which he is to retire after two years. A further declaration sought is to the effect that the order promulgated by the Sadar -i -Riyasat called the Jammu and Kashmir Legislative Council Term of Office of Members Order, 1958 be declared ultra vires as offending S. 156 of the Jammu and Kashmir Representation of the People Act, 1957.

(2.) THE petitioner was elected to the Jammu and Kashmir Legislative Council from the Teachers Constituency of the Jammu Province in June 1957 along with another person Shri Dina Nath Kaul who was elected from the Teachers Constituency of the Kashmir Province. Under S. 52 2 of the Constitution of Jammu and Kashmir it is provided that one -third o £ the members of the Legislative Council shall retire on the expiration of every second year as provided by law made by the Legislature. A provision to regulate a retirement as contemplated by the aforesaid section has been made by S. 156 of the Representation of the People Act. It appears that acting in exercise of the powers conferred on the Sadar -i -Riyasat by S. 156 of the Representation of the People Act the Jammu and Kashmir Legislative Council Term of Office of Members Order, 1958 was passed by the Sadar -i -Riyasat on 17 -3 -1958 - The Election Commissioner acting according to the provisions of the aforesaid Order has placed the petitioner in CI. d of that order and by drawing of the lots the petitioner is due to retire two years hence.

(3.) MR . G. L. Dogra has urged two important contentions before us. In the first place, he has submitted that the order passed by the Sadar -i -Riyasat under which categorization has been made is itself ultra vires as the Sadar -i -Riyasat was not authorised by virtue of S. 156 of the Representation of the People Act to pass such an order. Secondly, he has contended that even if the order by itself is justified by the provisions of S. 156 of the Representation of the People Act, the classification is discriminatory and it offends Art. 14 of the Constitution of India and is, therefore, void.