SAYEED KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner, in this writ petition under Article 226 of the Constitution, has challenged the constitutional validity of Rule 320A, which was added in Part VIII, Section XVIII of the Rajasthan Prisons Rules, 1951 (for short 'the Rules' hereafter) made under Section 59 of the Prisons Act (No. IX of 1894), ('the Act') hereinafter.

(2.) THE petitioner was appointed as a warder in Central Jail, Jodhpur, on January 1, 1970 and he was confirmed on this post in 1973 The petitioner has stated that he is the Secretary of the Jail Branch of the Rajasthan Subordinate Services Association of Jodhpur District, A notification No. GSR 149, dated December 15, 1978 (Ann. 1, was published in the Rajasthan Rajpatra, dated December 28, 1978 by which, in exercise of the powers conferred upon him by proviso to Article 309 of he Constitution, the Governor of Rajasthan amended the Rules by adding the following new Rule 320A after existing Rule 320. 320A. Restrictions respecting right to form Association, freedom of speech etc. - (1) No subordinate officer shall without the express sanction, of the Government: (a) be a member of, or be associated in any way with any trade union, labour unions of political associations; or (b) be a member of, or be associated in any way with any other society, institution, association or organisation that is not recognised as part of the Prison Department of which he is an employee or is not of a purely social, recreational or religious nature; or (c) communicate with the press or publish or cause to be published any book, letter or other document unless such communication or publication is in the bonafide discharge, of his duties or is of a purely literary, artistic or scientific character. Explanation : - If any question arises as to whether any society, institution, association or organisation is of a purely social, recreation or religious nature under Clause (b) of Sub -rule (1), the decision of the Government thereon shall be final. (2) No subordinate officer shall shout slogans or display play cards or or flags or otherwise participate in or address any meeting or take part in any demonstration organised: (a) for any political purposes; or (b) for the purposes of protesting against any of the provisions of the Prisons Act of 1894 or these rules or any other rules made under that Act; or (c) for the purposes of protesting against any disciplinary action taken or proposed to be taken against him or against any other subordinate officer; or (d) for any purpose connected with any matter pertaining to him remuneration or other condition of service or his conditions of work or his living conditions, or the remuneration, ether conditions of service conditions of work or living conditions, of any other subordinate. (3) Any person who contravenes any of the provisions of the above Sub -rules (1) and (2) shall, without prejudice to any other action that may be taken against him, be liable to be dismissed in a disciplinary proceeding and also be liable to be prosecuted under, Section 54 of the Prisons Act. 1894 and there shall be no hesitation in launching prosecution and simultaneously folding disciplinary proceedings. The petitioner has proved that by at appropriate writ, order or direction, it may be declared that the aforesaid notification Anx. 1, is illegal as being ultra vires of the Sub -clauses (a), (b) and (c) of Clause (1) of Article 19 of the Constitution and it may be struck down. It has also been prayed that if any action is taken against the petitioner on account of the addition of Rule 320A, it, may also be declared that such action is illegal.

(3.) LEARNED Counsel appearing for the petitioner has raised the following contentions: (1) The Rules were framed by the State Government in exercise of power conferred by Section 59 of the Act and as such the Governor was not competent to amend them by inserting Rule 320A in exercise of the powers conferred upon him under Article 309. (2) Rule 320A of the Rules contravenes Article 19(1)(a), (b) and (c) and the restrictions imposed by it, are not reasonable in the interests of public order. (3) Sub -rule (3) of Rule 320A of the Rules could not be framed as it does not fall within the scope of Article 309 in as much as this cannot be said to be a provision regulating the recruitment and the conditions of service of persons appointed to public services and posts in connection With the affairs of the State. (4) the words 'associated in any way' used in Clause (a) and (b) of Sub -rule (1) of Rule 320A, are vague and it may open flood gates of arbitrary, action and as such it is violative of Article 14 of the Constitution. On the other hand the learned Additional Advocate General submitted that the writ petition is pre -mature as no cause of action has accrued to, the, petitioner as yet, for, until permission is refused to form an association or union, he cannot challenge the validity of Rule 320A of the Rules. He sought to justify Sub -rules (1), (2) and (3) of Rule 320A under Clauses (2), (3) and (4) of Article 19, on the ground that the conditions imposed are Reasonable restrictions in the interests of public order. He urged that the Governor was competent to add Rule 320A, as it relates to the conditions of service of the subordinate officers of the Jail Department.