Private citizens cannot be drafted for Census Duty - Writ Petition

8/9/2019 Private citizens cannot be drafted for Census Duty - Writ Petition

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

ORIGINAL JURISDICTION

WRIT PETITION NO.17983 to 17987 and 17989 to 17993 /2010

(EDN. RES)

Between1 Karnataka Unaided Schools

Management’s AssociationA Registered SocietyRepresented by its PresidentG.S.SharmaAge 85 yearsNo.9, Vanivilas RoadV.V.PuramBangalore 560 004

Senior Citizenship priority not claimed

Petitioners

2 G.V.K. Education SocietyA Registered SocietyRepresented by its SecretarySuresh BabuAge 42 yearsKalidasa LayoutSrinagar

Bangalore 560 050

3 Sudha N.S. Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa Layout

SrinagarBangalore 560 050

4 Thriveni C.P.

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Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050

5 Brunda C Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050

6 Anjana Devi Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050

7 Sapna Gowda Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050

8 Kalai Selvi Teacher at Evershine EnglishSchool

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[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050

9 Shyamala Teacher at Evershine EnglishSchool[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050

10 Manjula P Teacher at Evershine English

School[Established and administered by Petitioner No.2 Society]No.19/20, 1st CrossKalidasa LayoutSrinagarBangalore 560 050

AND

1 Union of IndiaRepresented bySecretaryMinistry of Home AffairsNorth BlockCentral SecretariatNew Delhi 110 001

2 State of KarnatakaRepresented byPrincipal SecretaryRevenue Department

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M.S.BuildingBangalore 560 001

3 Registrar General And CensusCommissioner2A, Man Singh RoadNew Delhi 110 011

4 Director of Census Operations

State of Karnataka7th Floor, E & F WingKendriya Sadan17th Main RoadIInd blockKoramangalaBangalore 560 034

5 Bruhat Bengaluru MahanagaraPalikeRepresented byCommissionerN.R.SquareBangalore 560 002

6 Health OfficerOffice of Medical Officer of Health(MOH)Bruhat Bengaluru Mahanagara

Palike - BasavanagudiIndoor StadiumSunkenahalliBull Temple RoadBangalore 560 019

Respondents

MEMORANDUM OF WRIT PETITON FILED UNDER ARTICLE

226 AND 227 OF THE CONSTITUTION OF INDIA

The Petitioners hereinabove respectfully submit THAT:

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1. Petitioner No.1, the Karnataka Unaided Schools

Management’s Association (KUSMA for short) is organized

as a ‘Society’ whose members are comprised only of

educational institutions in the State of Karnataka. This

‘Society’ is registered under the State Law in force for the

Registration of ‘Societies’ and has been continually

registered at all relevant times – S.No.438/83-84 dated

08-Mar-1984. A copy of the ‘Certificate of Registration’

dated 08-Mar-1984 is produced herewith and marked as

Annexure A. Annexure A is followed by a Retype of

Annexure A.

2. Membership of KUSMA is open only to those educational

institutions which are privately organized and which do not

receive aid1 or assistance of any kind from the Government,

State or Central. Membership to KUSMA is strictly enforced

and the current membership of KUSMA stands slightly

above One thousand and Three hundred private unaided

educational institutions. The Founder and President of

KUSMA, Sri G.S.Sharma, aged 85 years, is authorised and

competent to initiate and conduct this legal proceeding.

3. Petitioner No.2, G.V.K. Education Society is registered under

the State law in force for the registration of societies and

has been so registered at all relevant times - SNo.237/81-

82 dated 23-Oct-1981. A copy of the 'Certificate of

Registration' dated 23-Oct-1981 is produced herewith and

marked as Annexure B. Annexure B is followed by a

Retype of Annexure B.

1 Section 2(18) of the Act defines ‘Grant’ as“means any sum of money paid as aid out of the State funds to anyeducational institution”.

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4. The said G.V.K. Education Society is a member of KUSMA.

Sri Suresh Babu, the Secretary of the said 'G.V.K. Education

Society' is competent to initiate and conduct this legal

proceeding on behalf of the said society.

5. The said G.V.K. Education Society has established an

educational institution for imparting education for standards

1 to VII in Kalidasa Layout, Srinagar, Bangalore. The said

private educational institution is registered as 'Evershine

Primary School' in terms of Section 31 of the Karnataka

Education Act, 1983. A copy of the 'Registration

Certificate' dated 23-Feb-2001 is produced herewith and

marked as Annexure C. Annexure C is followed by a

translation of Annexure C.

6. The said 'Evershine Primary School' does not receive grant

or aid of any kind from the Government, State or Central. As

such, 'Evershine Primary School' shall be referred to

hereinafter as a 'private unaided educational institution'

wherever the context necessitates.

7. Petitioners No.3 to 10 are residents of Bangalore and have

secured the requisite academic qualification to merit

employment as 'teachers' at educational institutions for

Standards I to VII in the State of Karnataka. Petitioners No. 3

to 10 are currently employed as 'teachers' for various

standards at the said 'Evershine Primary School' established

and administered by Petitioner 2 society.

8. The terms of employment under which Petitioners 3 to 10

are employed as 'teachers' with 'Evershine Primary School'

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have been privately negotiated, between 'Evershine

Primary School' and petitioners 3 to 10, individually.

9. Petitioner 2 is a member of Petitioner 1. Petitioners 3 to 10

are employees at the educational institution established

and administered by Petitioner 2 Society. As such,

Petitioners 1 to 10 share a common cause of action against

the Respondents and hence, this common Writ Petition. The

Court fee however, has been individually assessed and paid

against each Petitioner.

10. The Petitioners may be served at their respective address.

The Petitioners may also be served through their Counsel,

Sri K V Dhananjay, Advocate, No.296, Kamakshipalya,

Magadi Main Road, Bangalore 560 079.

11. Respondent No.1 is the Union of India represented by the

appropriate ministry that oversees the enforcement of the

Census Act, 1948, a Parliamentary legislation.

12. Respondent No.2 is the State of Karnataka represented bythe appropriate department that has been entrusted with

the duty to co-ordinate with the Central Government in

relation to the enforcement and implementation of the

Census Act, 1948.

13. Respondent No.3, Registrar General and Census

Commissioner, is the highest executive officer appointed by

the Central Government, in terms of Section 4(1) of the

Census Act, 1948 to aid in the taking of census within

several States.

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14. Respondent No.4, the 'Director of Census operations for the

State of Karnataka' is the office established by the Central

Government for the purpose of taking census in the State of

Karnataka, in terms of Section 4(2)2 of the Census Act,

1948.

15. Respondent No.5 is a municipal corporation established

under Section 33 of the 'Karnataka Municipal Corporations

Act, 1976', represented by its Commissioner. Certain

powers are conferred upon the Central Government, in

terms of Section 4A4 of the Census Act, 1948, to direct a

local authority to depute the staff of such local authority to

perform duties in connection with the taking of census.

16. Respondent No.6, the Health Officer in the Office of Medical

Officer of Health (MOH) for Basavanagudi Zone in the city of

Bangalore is an office subordinate to the Commissioner,

Bruhat Bengaluru Mahanagara Palike ('BBMP' for short).

17. The instant case raises a basic question of law:

Does the Census Act, 1948 authorise the Government to

randomly pick a citizen of India and assign 'Government

2 4(1) The Central Government may appoint a Census Commissioner tosupervise the taking of the census throughout the area in which thecensus is intended to be taken, and Directors of Census Operations tosupervise the taking of the census within the several States.

3 3. The Corporation shall be a body corporate by the name theCorporation of the City of ................ and shall have perpetual

succession and common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract and may, by the said name, sue and be sued.

4 4A. Every local authority in a State shall, when so directed by awritten order by the Central Government or by an authority appointed by that Government in this behalf, make available to any Director of Census Operations such staff as may be necessary for the

performance of any duties in connection with the taking of census.

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work' to such a private citizen and to punish such citizen for

a failure to perform such, forced 'Governmental' work?

18. For a proper appreciation of the facts of this case, a brief

introduction to the law on 'census taking' becomes

essential.

19. The term ‘census’ is ordinarily defined as - the procedure of

systematically acquiring and recording information about

the members of a given population. It is a regularly

occurring and official count of a particular population5.

20. In terms of Schedule VII to the Constitution of India, the

Parliament and the Central Government are exclusively

authorised to legislate in relation to ‘Census’. Entry 69 to

List I (Union List) says:

Entry 69 – Census.

21. Accordingly, the Parliament of India has adopted the Census

Act, 1948, a pre-Constitution enactment by making

appropriate modification and amendment.

22. The Census Act, 1948 has been passed for the purpose of

governing the taking of Census in India or any part thereof.

The Preamble to the said statute says:

WHEREAS it is expedient to provide for the taking of census

in India or any part thereof whenever necessary or

desirable and to provide for certain matters in connection

with the taking of such census.

5 Shepard, Jon; Robert W. Greene (2003). Sociology and You. Ohio:Glencoe McGraw-Hill. pp.A-22. ISBN 0078285763.

18

http://en.wikipedia.org/w/index.php?title=Jon_M._Shepard&action=edit&redlink=1

http://www.glencoe.com/catalog/index.php/program?c=1675&s=21309&p=4213&parent=4526

http://en.wikipedia.org/wiki/International_Standard_Book_Number

http://en.wikipedia.org/wiki/Special:BookSources/0078285763

http://en.wikipedia.org/w/index.php?title=Jon_M._Shepard&action=edit&redlink=1

http://www.glencoe.com/catalog/index.php/program?c=1675&s=21309&p=4213&parent=4526

http://en.wikipedia.org/wiki/International_Standard_Book_Number

http://en.wikipedia.org/wiki/Special:BookSources/0078285763



23. There are several aspects of Census taking and the

following factors may be noted in order to appreciate the

requirement and scope of the Census Act, 1948.

24. First of all, extensive human personnel would be required to

take ‘census’ and because ‘census’ is taken even in remote

corners and in villages dotted across the country, the

Government of India is bound to seek assistance of the

State Governments for the purpose of ‘census taking’.

25. Further, in the absence of an appropriate legislation,

employees in service of the Government of India or of the

State Governments could refuse to perform ‘census taking'

on the ground that their employment contracts do not

require the performance of such services.

26. As such, an appropriate legislation becomes necessary to

compel employees in the services of the Government to

perform ‘census taking’ even in the absence of a suitable

provision to such effect in the employment contract.

27. Further, if only the ‘census taking’ is to result in any reliable

data, it would become necessary to ensure by appropriate

legislation that the persons who are presented with

questionnaires and interrogatives are compelled to provide

accurate and complete information.

28. In other words, it would become necessary to ensure that

the citizens who are subject to census do not refuse to

provide such information on one or more grounds such as

invasion of privacy or fear of religious profiling. As such, a

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specific legislation becomes necessary and it ought to

create a legal obligation upon a person subject to 'census'

to furnish 'true information'. Any such legislation that

compels subjects to furnish accurate information within

their knowledge to a ‘census taker’ is further bound to

impose appropriate penalty or punishment for refusal to

furnish such information.

29. Besides, in order to ensure that ‘census taking’ is made

easier, it becomes desirable to ensure, by legislation, that

factories or other establishments that employ large number

of people are subject to special rules whereby, the owner or

manager of such establishment is cast with a legal duty to

furnish information to the ‘census officer' in relation to

persons or employees under his care.

30. Thereafter, for the proper taking of ‘census’, private

property may have to be requisitioned under certain

circumstances. It would become necessary for the

appropriate legislation to enumerate the circumstances

under which, private property could be requisitioned for thepurpose of ‘census taking’. Further, such a law is bound to

furnish the procedure and the mode by which,

compensation is determined and distributed to the person

whose property is sought to be requisitioned by the

Government.

31. All of the above aspects have been incorporated into the

‘Census Act, 1948’, (referred to hereinafter variously as

'Census Act', 'Act' or 'statute') a statute passed prior to the

coming into force of the ‘Constitution of India’ and

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thereafter, modified and adopted in the manner stipulated

in the Constitution of India.

32. This petition is concerned with the extent of powers

conferred by the Census Act, 1948 upon the Central and

State Governments, in the matter of entrusting persons with

'census taking duty'.

33. Section 3 of the Census Act provides that the Central

Government should formally notify every census taking in

its Official Gazette.

34. Section 4 of the Act deals with the manner and mode of

designating employees already in service of the Central and

State Government to perform the work of ‘census taking’.

35. Section 5 provides that the employees of the Central and

the State Government, designated as ‘census officers’ in

terms of Section 4 shall be deemed to be ‘public servants’.

36. Sections 6 and 7 speak of the powers that may be invested

in a District Magistrate or other officer under the service of

the State Government.

37. Sections 7A to 7H deal with requisition of private property

and the mode and manner of determination and payment of

compensation in relation to the private property sought to

be requisitioned.

38. Section 8 empowers a census officer to ask such questions

as may be necessary to accomplish the taking of census

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and a corresponding legal obligation is thrust upon every

person who is subject to such questioning to provide

answers thereof, to the best of his knowledge or belief.

39. Section 9 speaks of the extent of physical access that may

be demanded by a census officer in relation to a house,

vessel, enclosure or other place.

40. Section 10 authorises a census officer to leave behind, a

schedule or questionnaire at certain premises and a

corresponding legal obligation is thrust upon the persons, in

occupation or custody of such premises, to complete the

schedule or questionnaire.

41. Section 11 is the penal part of the statute. It categorises

offences under the Act into several parts and subjects all

offences to a fine of not more than Rs.1000. Offences

specified in parts a, aa, b, c, ca could lead to imprisonment

for a term not exceeding 3 years.

42. Section 12 specifies the pre-condition for prosecution in

relation to certain persons – the previous sanction of the

Central or the State Government is mandated in certain

cases.

43. Section 13 saves other penal statutes by providing that no

act or omission taken under this statute shall be immune

from prosecution under any other statute should such act or

omission constitute an offence under such other statute.

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44. Section 14 speaks of the class of courts that are competent

to try offences under this statute.

45. Section 15 speaks of secrecy in relation to records obtained

as a result of census taking. Section 15A provides that no

person partaking in census shall be subject to any disability

or deprivation in relation to his employment. Section 15B

immunizes official acts taken under the Act from

prosecution or liability in any suit or court.

46. Section 16 overrides any provision to the contrary in any

municipal statute whereby the taking of census in relation

to such municipality is governed by a process contrary to

the process prescribed in this statute – by providing for

concurrent taking of census in relation also to such

municipality.

47. Section 17 authorises certain officers of the Central

Government to put data derived from census report to any

use as such officers may deem ‘reasonable’.

48. Section 17A authorises the Central Government to extend

all or any of the provisions of this statute to tasks that may

not be ‘census’ in the strict sense – such as pre-tests and

pilot studies.

49. Section 18 prescribes the extent, mode and manner of

making of rules by the Central Government.

The facts relevant to the instant petition are as under:

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50. Pursuant to requests from the 'Director of Census

operations for the State of Karnataka' (Respondent 4), the

Government of Karnataka has, by a Notification No.RD 20

ETC 2009, dated 02-Dec-2009, appointed the

Commissioner, Bangalore Bruhat Mahanagara Palike

(Respondent 5), as the Principal Census Officer. A copy of

the said Notification is produced herewith and marked as

Annexure D. In pertinent part, the said Notification says:

In exercise of the powers conferred by sub-section (2) of

Section 4 of the Indian Census Act, 1948 (Act No.37 of

1948) the Government of Karnataka is pleased to appoint

the following authorities as Principal Census Officers within

the meaning of the said sub-section to supervise the taking

of the Census within their respective areas, namely:

2. Commissioner, Bruhat Bangalore Mahanagara Palike

In pursuance of section 12 of the said Act the Government

of Karnataka are also pleased to authorise the above

mentioned authorities for the purpose of said section within

their respective jurisdiction.

51. Thereafter, the Commissioner, BBMP, has, by Notification

No.B12 (1) PR/159/2009-10 dated 04-Jan-2010,

deemed it fit to further appoint as 'census officers',

employees of the BBMP. A copy of the said Notification is

produced herewith and marked as Annexure E. In

pertinent part, the Notification says:

"In exercise of the powers delegated by Government vide

Notification No.RD 20 ETC 2009 dated 02-Dec-2009, the

undersigned under sub-section (4) of Section 4 of the India

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Census Act, 1948 (Central Act No.37 of 1948) hereby

appoints the officers noted in col.3 as, Census Officers, with

Designation noted in col.4 for the jurisdiction noted in col.5

of the table given below for the purpose of 2011 Census."

52. In the said Notification produced as Annexure E, item

No.140 reads as under:

Sl.No. Administrative

Unit

Name &

Designation

Appointed

as

Jurisdiction

(Name of

Zone/LA No.)Col.1 Col.2 Col.3 Col.4 Col.5

140 O/o MOH

Basavanagudi

Indoor Stadium

Sunkenahalli

Bull Temple Road

Bangalore 560

019

Dr.Venugopal

MOH

Charge

Officer

156

53. Again, pursuant to the above Notification, the Government

of Karnataka has deemed it fit to delegate even further - It

has issued another Notification No.RD 102 ETC 2009

dated 15-Feb-2010 whereby, 'census officers' already

appointed under Notification cited as Annexure E above are

given the further power to again appoint 'census officers'. A

copy of this Notification is produced herewith and marked

as Annexure F. In pertinent part, this Notification says:

In exercise of the powers conferred by sub-section (4) of

Section 4 of the Indian Census Act, 1948, the Government

of Karnataka is pleased to delegate the powers of

appointing Census officers under Sub-Section (2) of Section

4 of the said Act to all the authorities appointed as Census

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Charge Officers Rural/Urban by the Deputy Commissioners

of the districts and Commissioners of the City Corporations

and further to authorise these authorities in pursuance of

Sub-section (3) of section 4 of the Indian Census Act, 1948

to sign the declaration in writing under the said sub-section.

54. The Health Officer in the Medical Officer of Health (MOH) in

Basavanagudi Zone (Respondent 6), has thereafter, illegally

proceeded to issue Notices to petitioners 3 to 10 seeking to

appoint these private citizens as 'census officers'. On 26-

Mar-2010, the Respondent 6 has addressed Notices to

Petitioners 3 to 10 who are teachers at 'Evershine English

School', a private unaided educational institution

established and administered by Petitioner 2 Society. The

said Notices are produced herewith and marked as

Annexure (named in column 2 below)

Name of the

Teacher

Petitioner herein Notice is produced

herewith and

marked as

AnnexureSudha N.S. Petitioner No.3 Annexure G

Thriveni C.P. Petitioner No.4 Annexure H

Brunda C Petitioner No.5 Annexure J

Anjana Devi R Petitioner No.6 Annexure K

Sapna Gowda Petitioner No.7 Annexure L

Kalai Selvi Petitioner No.8 Annexure M

Shyamala. Petitioner No.9 Annexure N

Manjula P Petitioner No.10 Annexure O

55. In pertinent part, Annexure G to O say:

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Subject: Census Duty - Houselisting and Housing Census

and preparation of National Population Register -

Appointment as Enumerator regarding:

In exercise of the powers conferred upon me under sub-

section 4 of Section 4 and section 7 of the Census Act, 1948

(37 of 1948) and Rule 5 of the Citizenship (Registration of

Citizens and Issue of National Identity Cards) Rules, 2003

and the powers delegated by the State Government of

Karnataka vide Notification No.RD 102 ETC 2009, Bangalore

dated 15-Feb-2010, I hereby appoint you as enumerator for

the houselisting Block No.33, the details of which are given

overleaf.

By virtue of this appointment, you are deemed to be a

public servant within the meaning of the Indian Penal Code.

You may note that refusing Census Duty is an offence which

is punishable with imprisonment up to three years.

The duties and responsibilities of the enumerator and the

relevant provisions of the Census Act, 1948 and Citizenship

Rules, 2003 are given in the instruction manuals of House

listing and Housing Census and NPR for your information

and compliance.

56. The legality of the Notices (Annexure G to O) is the subject

of this Writ petition.

57. At the very outset, the petitioners submit that teachers or

other personnel who are employed in private unaidededucational institutions are not ‘Government employees’.

For that matter, teachers in private unaided schools are not

to be treated as ‘quasi or semi Government employees’

either.

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58. The Petitioners submit that a private educational institution

that does not receive any aid or grant or other financial

assistance from the Government cannot be ordinarily

subject to any requisition law unless the language of such

law is clear, unambiguous and certain.

59. The Petitioners submit that a large number of teachers in

private unaided educational institutions happen to work

under temporary tenure and their availability beyond a

given academic year is never known in advance.

60. The Petitioners submit that teachers in private unaided

educational institutions prefer to not be subject to service

rules as are applicable to Government employees.

61. The Petitioners submit that teachers have repeatedly

expressed their reluctance to participate in Census work

owing to several factors – health, shift in working hours or

assignments, possible resignation to pursue higher studies

or additional training, temporary resignation to attend to

domestic affairs and so on.

62. The Petitioners further submit that the profession of

teachers is an exalted one in our society and it would be

imprudent to treat them as residual labourers; their skills

are always necessary for the proper administration of

education and the Petitioners would like to submit that the

birthday of our Second President, Shri Sarvepalli

Radhakrishnan6 is commemorated as ‘Teacher’s Day’ for a

noble set of reasons.

6 May 13, 1962 to May 13, 1967

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63. The Petitioners further submit that teachers are pained to

think of themselves as ‘multi-purpose labourers’ or ‘bonded

labourers’ in view of the manner their services are sought in

relation to activities other than ‘teaching’. They are of the

apprehension that they are unable to do justice to their core

function – to teach.

64. The Petitioners submit that the taking of Census work is

clearly laudable and the instant petition should not be read

as an effort to undermine the importance of Census work.

Nevertheless, special obligations cast upon teachers of

private unaided educational institutions render it

undesirable and improper for them to participate in Census

taking.

65. Teachers at private unaided educational institutions are

private citizens who have made a conscious choice of a

private employer as opposed to employment under the

Government. The Respondents do not possess any legal

authority to override such choice of teachers who have

chosen employment at private unaided educationalinstitutions.

66. The Petitioners submit that Notices marked as Annexure G

to O refer to sub-sections (2) and (4) of Section 4 of the

Census Act, 1948. Section 4 of the Census Act, 1948 is

produced hereunder:

Section 4. (1) The Central Government may appoint a

Census Commissioner to supervise the taking of the census

throughout the area in which the census is intended to be

29



taken, and Directors of Census Operations to supervise the

taking of the census within the several States.

(2) The State Government may appoint persons as census-

officers with such designations as that Government may

deem necessary to take, or aid in, or supervise the taking

of, the census within any specified local area and such

persons, when so appointed, shall be bound to serve

accordingly.

(3) A declaration in writing, signed by any authority

authorized by the State Government in this behalf, that any

person has been duly appointed a census-officer for any

local area shall be conclusive proof of such appointment.

(4) The State Government may delegate to such authority

as it thinks fit the power of appointing census-officers

conferred by sub-section (2).

67. Section 4 of the Census Act, 1948 is discussed below in

greater detail:

30



(1) The CentralGovernment may appoint a CensusCommissioner tosupervise thetaking of thecensus throughout the area in whichthe census isintended to betaken, and

Directors of Census Operationsto supervise thetaking of thecensus within theseveral States.

As may be seen from a barereading of the above provision, sub-section (1) is concerned with theappointment by the CentralGovernment of a CensusCommissioner to supervise thetaking of Census. Further, theCentral Government may alsoappoint a ‘Director of Censusoperations’. Accordingly,

Respondents No.3 and 4 have beenappointed in terms of this provision- Section 4(1).

(2) The StateGovernment may appoint persons ascensus-officerswith suchdesignations asthat Government may deemnecessary] to take,or aid in, or supervise thetaking of, thecensus within any specified local areaand such persons,when soappointed, shall bebound to serveaccordingly.

The Petitioners submit that Entry 69to the Union List of Schedule VII toour Constitution specifies ‘Census’ .

Accordingly, the Parliament or theCentral Government alone maymake laws in regard to ‘Census’.However, any such law may validlydelegate to a ‘State’ or to the ‘StateGovernment’ , ‘power’ or 'do specificacts' subject to such terms andconditions as may be deemed fit.

Accordingly, Sub-section (2) speaks

of the authority of the StateGovernment to appoint persons asCensus Officers to aid in the takingof the Census and a person oncedesignated and appointed as a‘Census Officer’ is mandated toserve according to the terms of his‘appointment’. The petitionerssubmit that there is nothing in thisprovision to suggest that private

employees may be requisitioned forperformance of census duty. Allthat this provision does is torecognise the authority in a StateGovernment to also make suitableappointments to ensure that thetaking of the Census by the Central

31



Government is facilitated. As such,this provision cannot authorise aState Government or its delegate torequisition private employees forcensus work.

(3) A declaration inwriting, signed by any authority authorized by the

State Government in this behalf, that any person hasbeen duly appointed acensus-officer for any local area shallbe conclusive proof of suchappointment.

Sub-section (3) prescribes the modeof appointment and states that adeclaration in writing by anyauthority authorized by the StateGovernment shall be treated asproof of such appointment. That is,this provision merely waives themaking of a Notification for everyappointment.

(4) The StateGovernment may delegate to suchauthority as it thinks fit the power of appointing census-officers conferred by sub-section (2).

Sub-section (4) authorises the StateGovernment to delegate to anyauthority under it, the power of appointing census-officers. Thisprovision authorises delegation.

That is, this provision cannotbecome the source of any power – itis merely the delegation of a pre-existing power.

68. The Petitioners submit that, as may seen from the above,

Section 4 of the Census Act, 1948 does not authorize the

State Government to issue any Notification to designate any

class of private citizens as Census Officers; all that the said

provision authorizes is to facilitate a State Government to

appoint individuals, employees or officers under the State

Government to act as Census Officers.

32



69. The Petitioners submit that, for the sake of completeness,

the Petitioners would like to navigate through various other

provisions of the Census Act, 1948 with a view to establish

that the requisition of private employees is nowhere

contemplated, let alone, authorized by the Census Act,

1948.

70. The Petitioners submit that Section 4A of the Census Act,

1948 speaks of a duty in a Local Authority, when so directed

by the Central Government or its delegate, to furnish such

staff as may be necessary for the taking of Census. It says:

4A. Every local authority in a State shall, when so directed

by a written order by the Central Government or by an

authority appointed by that Government in this behalf,make available to any Director of Census Operations such

staff as may be necessary for the performance of any duties

in connection with the taking of census.

71. The Petitioners submit that a bare reading of the above

provision makes it clear that it vests a duty in every local

authority in a State to make available to the CentralGovernment or its delegate (which, generally is the Director

of Census Operations that is Respondent No 4 ), such staff

as may be necessary for the taking of Census. Accordingly

the Bruhat Bengaluru Mahanagara Palike, (‘BBMP’ for short)

which is established under the Karnataka Municipal

Corporations Act, 1976 (Respondent No 5) and which is

clearly a ‘local authority’ for the purpose of Census Act,

1948 is under a legal duty to furnish such staff as might be

requisitioned by the Director of Census Operations

(Respondent 4). Section 4A merely describes a duty and

33



may be treated as a source of power to the extent, the

BBMP (Respondent 5) must compel its own employees or

persons under its control to proceed to work for the purpose

of census taking.

72. The Petitioners submit that, no authority is conferred upon

the BBMP to thereafter requisition employees of private

unaided schools. BBMP, the Respondent 5, is itself a

statutory body established in terms of the provisions of

Karnataka Municipal Corporation Act, 1976. It has such

powers conferred by its statute and no further – of course, it

has all the incidental, implied or necessary powers under its

charter. There is no provision whatsoever under the said

Karnataka Municipal Corporations Act, 1976 authorizing the

BBMP to requisition private citizens or teachers of private

unaided schools for the purpose of discharging its own

obligation thrust under Section 4A of the Census Act, 1948.

73. The Petitioners submit that, Section 6 of the Census Act,

1948 may also be examined in this context. The Section

says:

Section 6 (1) Where the District Magistrate, or such

authority as the State Government may appoint in this

behalf, by a written order so directs

(a) every officer in command of any body of men belonging

to the naval, military or air forces, or of any vessel of war,

of India,

(b) every person (except a pilot or harbourmaster) having

charge or control of a vessel,

34



(c) every person in charge of a lunatic asylum, hospital,

workhouse, prison, reformatory or lock-up or of any public,

charitable, religious or educational institution,

(d) every keeper, secretary or manager of any sarai, hotel,

boarding-house, lodging-house, emigration depot or club,

(e) every manager or officer of a railway or any commercialor industrial establishment, and

(f) every occupant of immovable property wherein at the

time of the taking of the census persons are living

shall perform such of the duties of a census-officer in

relation to the persons who at the time of the taking of the

census are under his command or charge, or are inmates of

his house, or are present on or in such immovable property

or are employed under him as may be specified in the

order.

(2) All the provisions of this Act relating to census officers

shall apply, so far as may be, to all persons while performing such duties under this section, and any person

refusing or neglecting to perform any duty which under this

section he is directed to perform shall be deemed to have

committed an offence under section 187 of the Indian Penal

Code.

74. The Petitioners submit that a bare reading of the aboveprovision clearly establishes that it cannot become the

source of any authority to the Respondents to requisition

private employees or teachers employed in private unaided

educational institutions.

35



75. The Petitioners submit that Clause (c) to sub-section 1 of

Section 6 vests an authority in a District Magistrate or other

officer acting under authority of the State Government to

compel a person who is in charge of an educational

institution to perform the role of collecting information from

persons who are under his command or charge. At best, this

provision could impose a duty upon the management of an

educational institution to furnish such information as may

be sought by the District Magistrate in relation to persons

who are under the command or charge of such educational

institution.

76. The Petitioners submit that it is desirable that a person in

charge of an institution should be made responsible to

furnish information in relation to persons who are under the

command of such institution. The taking of Census is made

easier if, instead of say, visiting every worker in a factory in

order to obtain information about such worker, the owner or

manager of that factory is instead approached by the

Government and data is obtained from such owner or

manager. However, in order to ensure that there is a legalobligation upon such owner or manager to furnish such

data, Section 6 of the Census Act, 1948 creates a duty in

such owner or manager. The scope of Section 6 is clearly

limited to such creation of a legal duty in a person who is in

charge or command of institutions which employ or

otherwise deal with people in a fiduciary capacity.

77. The petitioners further submit that, even for the sake of

argument, it would not be possible to infer that the

aforesaid provision authorises the management of an

36



educational institution to depute its employees to proceed

to Census work.

78. The Petitioners submit that if only the management of an

educational institution should be held to a duty to depute its

staff to act as census officers in terms of clause (c) to sub-

section (1) of Section 6, it should be equally possible to hold

that, in terms of the same provision that, the person in

charge of a lunatic asylum should depute lunatics under his

care to act as census officers. The critical part of Section

6(1) (c) may be noted:

Section 6 (1) (c): Where the District Magistrate, or such

authority as the State Government may appoint in this

behalf, by a written order so directs every person in chargeof a lunatic asylum, hospital, workhouse, prison,

reformatory or lock-up or of any public, charitable, religious

or educational institution shall perform such of the duties of

a census-officer in relation to the persons who at the time

of the taking of the census are under his command or

charge, or are inmates of his house, or are present on or in

such immovable property or are employed under him as

may be specified in the order. (emphasis supplied)

79. The Petitioners submit that the Respondents are bound to

see that such an erroneous interpretation is clearly absurd

and abhorrent to the rule of law.

80. The Petitioners therefore submit that Section 6 of the

Census Act, 1948 cannot be a source of any power to the

Respondents to requisition teachers of private unaided

educational institutions.

37



81. The Petitioners further submit that Section 7 of the Census

Act 1948 may also be noted for the sake of argument. It

says:

7. The District Magistrate, or such authority as the State

Government may appoint in this behalf for any local area,

may, by written order which shall have effect throughout

the extent of his district or of such local area, as the case

may be, call upon –

(a) all owners and occupiers of land, tenure-holders, and

farmers and assignees of land revenue, or their agents,

(b) all members of the district, municipal, panchayat and

other local authorities and officers and servants of such

authorities, and

(c) all officers and members of staff of any factory, firm or

establishment, to give such assistance as shall be specified

in the order towards the taking of a census of the persons

who are, at the time of the taking of the census, on the

lands of such owners, occupiers, tenure-holders, farmers

and assignees, or in the premises of factories, firms and

other establishments, or within the areas for which such

local authorities are established, as the case may be, and

the persons to whom an order under this section is directed

shall be bound to obey it and shall, while acting in

pursuance of such order, be deemed to be public servants

within the meaning of the Indian Penal Code

82. The Petitioners submit that, Section 7 continues from where

Section 6 ends. Section 6 allows the District Magistrate to

vest a duty in the owner or manager of, say, a factory to

38



furnish information in relation to persons under his

command or charge. Section 7 deals with the possibility of

the staff of such a factory refusing to furnish information

asked of them by the owner or manager. That is, Section 7

furnishes an answer to the following questions - What if, the

owner or manager seeks certain assistance from his staff or

other persons for the due discharge of his duties and such

staff or other persons refuse to assist the owner or

manager? What if, even where the owner or manager is not

directed to collect information in relation to his staff, his

staff does not cooperate when other census officers visit

the factory premises and seek the assistance of the staff?

83. The Petitioners submit that Section 7 creates a duty in

persons whose assistance is necessary for the taking of

census to act in such manner as will facilitate the taking of

census. In doing so, the scope of Section 7 is greatly

curtailed by the statute. The assistance required of a person

is always ‘in relation to persons confined to such land,

factory, firm or establishment’. An employee of a private

organization may be directed to assist in the taking of census of other co-employees only. To illustrate, an

employee of Factory A, a private firm, may be directed to

assist in the taking of census of other employees of Factory

A only. No part of Section 7 authorizes a District Magistrate

to direct employees of Factory A to assist in the taking of

census of employees of Factory B. The language of Section

7 is emphasised below:

…to give such assistance as shall be specified in the order

towards the taking of a census of the persons who are, at

39



the time of the taking of the census, on the lands of such

owners, occupiers, tenure-holders, farmers and assignees,

or in the premises of factories, firms and other

establishments, or within the areas for which such local

authorities are established, as the case may be, and the

persons to whom an order under this section is directed



within the meaning of the Indian Penal Code. (emphasis

supplied)

84. The Petitioners further submit that the reference to Section

7 of the Census Act, 1948 in the impugned Notices is

without the authority of law; the petitioners have not been

able to locate any Notification that would authorise

Respondent 6 to exercise the powers stipulated under

Section 7 of the Census Act, 1948. Nevertheless, the

Petitioners also proceed to question the applicability of

Section 7 of the Census Act, 1948 to petitioners 3 to 10,

assuming that Respondent 6 was properly authorised to

invoke powers under Section 7 of the Act.

85. The Petitioners submit that accordingly, the requisition of

private employees or teachers of private unaided

educational institutions in the manner sought by Notices

appended hereto is wholly beyond the scope of the

provisions of the Census Act, 1948 as discussed above.

86. The Petitioners further submit that Section 7A and its

extensions deal with requisition of property. The extent of

detail and the standard of care that the Census Act, 1948

40



adopts in the matter of requisition of mere property should

by itself lead any reasonable person to conclude that the

language of the provisions discussed above – Sections 4,

4A, 6 and 7 – afford no authority whatsoever to the

Respondents to requisition private employees in the manner

reflected in the impugned Notices. For the sake of

convenience, Sections 7A and its extensions purely dealing

with requisition of property are reproduced below:

7A. (1) If it appears to the Central Government that, in

connection with taking of a census, -

(a) any premises are needed or are likely to be needed, or

(b) any vehicle, vessel or animal is needed or is likely to be

needed, that Government may by order in writing

requisition such premises, or vehicle, vessel or animal, as

the case may be, and make such further orders as may

appear to it to be necessary or expedient in connection with

the requisitioning.

(2) The requisition shall be effected by an order in writing

addressed to the person deemed by the Central

Government to be the owner or person in possession of the

property, and such order shall be served in the prescribed

manner on the person to whom it is addressed.

(3) Whenever any property is requisitioned under

subsection (1), the period of such requisition shall not

extend beyond the period for which such property is

required for any of the purposes mentioned in that sub-

section.

41



7B. (1) Whenever in pursuance of section 7A the Central

Government requisitions any premises, there shall be paid

to the persons interested compensation the amount of

which shall be determined by taking into consideration the

following, namely:-

(i) the rent payable in respect of the premises or if no rent

is so payable, the rent payable for similar premises in the

locality;

(ii) if in consequence of the requisition of the premises the

person interested is compelled to change his residence or

place of business, the reasonable expenses (if any)

incidental to such change:

Provided that where any person interested being aggrieved

by the amount of compensation so determined makes an

application within the prescribed time to the Central

Government for referring the matter to an arbitrator, the

amount of compensation to be paid shall be such as the

arbitrator appointed in this behalf by the Central

Government may determine:

Provided further that where there is any dispute as to the

title to receive the compensation or as to the

apportionment of the amount of compensation, it shall be

referred by the Central Government to an arbitrator

appointed in this behalf by that Government for

determination, and shall be determined in accordance with

the decision of such arbitrator.

Explanation – In this sub-section, the expression ‘person

interested’ means the person who was in actual possession

42



of the premises requisitioned under section 7A immediately

before the requisition, or where no person was in such

actual possession, the owner of such premises.

(2) Whenever in pursuance of section 7A the Central

Government requisitions any vehicle, vessel or animal,

there shall be paid to the owner thereof compensation the

amount of which shall be determined by the Central

Government on the basis of the fares or rates prevailing in

the locality for the hire of such vehicle, vessel or animal:

Provided that where the owner of such vehicle, vessel or

animal being aggrieved by the amount of compensation so

determined makes an application within the prescribed time

to the Central Government for referring the matter to an

arbitrator, the amount of compensation to be paid shall be

such as the arbitrator appointed in this behalf by the

Central Government may determine:

Provided further that where immediately before the

requisitioning the vehicle or vessel was by virtue of a hire

purchase agreement in the possession of a person other

than the owner, the amount determined under this sub-

section as the total compensation payable in respect of the

requisition shall be apportioned between that person and

the owner in such manner as they may agree upon, and in

default of agreement, in such manner as an arbitrator

appointed by the Central Government in this behalf may

decide.

7C. The Central Government may, with a view to

requisitioning any property under section 7A or determining

43



the compensation payable under section 7B, by order,

require any person to furnish to such authority as may be

specified in the order such information in his possession

relating to such property as may be so specified. .

7D. Any person authorized in this behalf by the Central

Government may enter into any premises and inspect such

premises and any vehicle, vessel or animal therein for the

purpose of determining whether, and if so in what manner,

an order under section 7A should be made in relation to

such premises, vehicle, vessel or animal, or with a view to

securing compliance with any order made under that

section

7E. (1) Any person remaining in possession of any

requisitioned premises in contravention of any order made

under section 7A may be summarily evicted from the

premises by any officer empowered by the Central

Government in this behalf.

(2) Any officer so empowered may, after giving to any

woman not appearing in public reasonable warning and

facility to withdraw, remove or open any lock or bolt or

break open any door of any building or do any other act

necessary for effecting such eviction.

7F. (1) When any premises requisitioned under section 7A

are to be released from requisition, the possession thereof

shall be delivered to the person from whom possession was

taken at the time when the premises were requisitioned, or

if there were no such person, to the person deemed by the

Central Government to be the owner of such premises, and

44



such delivery of possession shall be a full discharge of the

Central Government from all liabilities in respect of such

delivery, but shall not prejudice any rights in respect of the

premises which any other person may be entitled by due

process of law to enforce against the person to whom

possession of the premises is so delivered.

(2) Where the person to whom possession of any premises

requisitioned under section 7A is to be given under sub-

section (1) cannot be found or is not readily ascertainable

or has no agent or any other person empowered to accept

delivery on his behalf, the Central Government shall cause

a notice declaring that such premises are released from

requisition to be affixed on some conspicuous part of such

premises and publish the notice in the Official Gazette.

(3) When a notice referred to in sub-section (2) is published

in the Official Gazette, the premises specified in such notice

shall cease to be subject to requisition on and from the date

of such publication and be deemed to have been delivered

to the person entitled to possession thereof, and the Central

Government shall not be liable for any compensation or

other claim in respect of such premises for any period after

the said date.

7G. The Central Government may, by notification in the

Official Gazette, direct that any powers conferred or any

duty imposed on that Government by any of the provisions

of sections 7A to 7F shall, under such conditions, if any, as

may be specified in the direction, be exercised or

discharged by such officer as may be specified.

45



7H. If any person contravenes any order made under

section 7A or section 7C, he shall be punishable with

imprisonment for a term which may extend to one year or

with fine or with both.

87. The Petitioners submit that their entitlement to the

protection of Article 21 of our Constitution is wholly

frustrated by the action of the Respondents. Article 21 of

our Constitution declares:

21. Protection of life and personal liberty- No person shall

be deprived of his life or personal liberty except according

to procedure established by law.

88. A private citizen in any democratic society is entitled to

know whether his Legislature has issued any law mandating

compulsory civic duty. Such a law ought to, in view of

Article 21 of the Constitution of India:

i. define the people it targets; that is, the law ought to

define a 'resident' for the purpose of such law; and to

prescribe 'minimum age thereof'; the law should then make

suitable provision to exempt the elderly, sick, disabled,

people with special needs, caregivers to the sick,

individuals with criminal antecedents;

ii. state the range of activities for which, the State may

choose to recruit residents;

iii. the law should provide the nature, manner and modeof notice;

iv. the law also ought to provide for a forum before which

to contest the decision of one or more statutory officers.

46



89. Because the Census Act, 1948 was never meant to recruit

private citizens for the performance of 'Governmental work',

the Act incorporates no protection of any kind to prevent

arbitrary enforcement thereof, in relation to private citizens.

90. The Petitioners submit that they have not filed, on the

instant cause of action, any other petition before this

Hon’ble Court or before any other Court of competent

jurisdiction.

91. The Petitioners further assert that the violation of their

fundamental rights by the conduct of Respondents herein is

such that the Relief sought herein offers an adequate

remedy under the circumstances.

92. That, under these circumstances, the petitioners seek

intervention of this Court under Article 226 of the

Constitution, amongst others, on the following:

GROUNDS

I. The use of the words 'shall be bound to serve accordingly' in

Section 4(2) of the Census Act, 1948 has to be read in a

manner as will compel 'Government employees only' to

perform 'census duty' notwithstanding the actual

employment contract in relation to such 'Government

employees'. The interpretation7 of Section 4(2) of the

Census Act, 1948 in such a manner wherein ‘a Government

7 The rule of construction is “to intend the Legislature to have meantwhat they have actually expressed.” The object of all interpretation isto discover the intention of Parliament, “but the intention of Parliamentmust be deduced from the language used,” for “it is well accepted thatthe beliefs and assumptions of those who frame Acts or Parliamentcannot make the law.”

47



employee could be compelled to perform services added to

his original employment contract by virtue of special statute

or legislation’ is fully consistent with the decision of the

Constitution Bench of our Hon’ble Supreme Court in Roshan

Lal Tandon v. Union of India8. In this case, the Court held:

9. We pass on the consider the next contention of the

petitioner that there was contractual right as regards the

condition of service applicable to the petitioner at the time

he entered Grade 'D' and the condition of service could not

be altered to his disadvantage afterwards by the

notification issued by the Railway Board. It was said that

the order of the Railway Board dated January 25, 1958.

Annexure 'B', laid down that promotion to Grade 'C' from

Grade 'D' was to be based on seniority-cum-suitability and

this condition of service was contractual and could not be

altered thereafter to the prejudice of the petitioner. In our

opinion, there is no warrant for this argument. It is true that

the origin of Government service is contractual. There is an

offer and acceptance in every case. But once appointed to

his post or office, the Government servant acquires a statusand his rights and obligations are no longer determined by

consent of both parties, but by statute or statutory rules

which may be framed and altered unilaterally by the

Government. In other words, the legal position of a

Government servant is more one of status than of contract.

The hall-mark of status is the attachment to a legal

relationship of rights and duties imposed by the public law

and not by mere agreement of the parties. The emolument

of the Government servant and his terms of service are

governed by statute or statutory rules which may be

8 AIR 1967 SC 1889 : [1968] 1 SCR 185

48



unilaterally altered by the Government without the consent

of the employee. It is true that Art. 311 imposes

constitutional restrictions upon the power of removal

granted to the President and the Governor under Art. 310.

But it is obvious that the relationship between the

Government and its servant is not like an ordinary contract

of service between a master and servant. The legal

relationship is something entirely different, something in

the nature of status. It is much more than a purely

contractual relationship voluntarily entered into between

the parties. The duties of status are fixed by the law and in

the enforcement of these duties society has an interest. In

the language of jurisprudence status is a condition of

membership of a group of which powers and duties are

exclusively determined by law and not by agreement

between the parties concerned. The matter is clearly stated

by Salmond and Williams on Contract as follows:

"So we may find both contractual and status-

obligations produced by the same transaction. The

one transaction may result in the creation not only of

obligations defined by the parties and so pertaining to

the sphere of contract but also and concurrently of

obligations defined by the law itself, and so pertaining

to the sphere of status. A contract of service between

employer and employee, while for the most part

pertaining exclusively to the sphere of contract,

pertains also to that of status so far as the law itself

has seen fit to attach to this relation compulsory

incidents, such as liability to pay compensation for

accidents. The extent to which the law is content to

leave matters within the domain of contract to be

49



determined by the exercise of the autonomous

authority of the parties themselves, or thinks fit to

bring the matter within the sphere of status by

authoritatively determining for itself the contents of

the relationship, is a matter depending on

considerations of public policy. In such contracts as

those of service the tendency in modern times is to

withdraw the matter more and more from the domain

of contract into that of status."

(Salmond and Williams on Contracts. 2nd edition p. 12).

11. We are therefore of the opinion that the petitioner has

no vested contractual right in regard to the terms of his

service and that Counsel for the petitioner has been unable

to make good his submission on this aspect of the case.

II. Another judgment of the Hon’ble Supreme Court in the case

of Union of India v. Arun Kumar Roy 9 has reaffirmed the

above principles in the following language:

18. The question whether the terms embodied in the Order

of appointment should govern the service conditions of

employees in Government service or the rules governing

them is not an open question now. It is now well settled that

a Government servant whose appointment though

originates in a contract, acquires a status and thereafter is

governed by his service rules and not by the terms of

contract. The powers of the Government under Article 309

to make rules, to regulate the service conditions of its

employees are very wide and unfettered. These powers can

be exercised unilaterally without the consent of the

9 AIR 1987 SC 737 : (1986) 1 SCC 675

50



employees concerned. It will, therefore, be idle to contend

that in the case of employees under the Government, the

terms of the contract of appointment should prevail over

the rules governing their service conditions. The origin of

Government service often times is contractual. There is

always an offer and acceptance, thus bringing it to being a

completed contract between the Government and its

employees. Once appointed, a Government servant

acquires a status and thereafter his position is not one

governed by the contract of appointment. Public law

governing service conditions steps into regulate the

relationship between the employer and employee. His

emoluments and other service conditions are thereafter

regulated by the appropriate statutory authority

empowered to do so. Such regulation is permissible in law

unilaterally without reciprocal consent. This Court made this

clear in two Judgments rendered by two Constitution

Benches of this Court in Roshan Lal Tandon v. Union of India

(1968) ILLJ 576 SC and in State of Jammu & Kashmir v.

Triloki Nath Khosa (1974) ILLJ 121 SC

19. Thus it is clear and not open to doubt that the terms

and conditions of the service of an employee under the

Government who enters service on a contract, will once he

is appointed, be governed by the rules governing his

service conditions. It will not be permissible thereafter for

him to rely upon the terms of contract which are not in

consonance with the rules governing the service.

20. The powers of the Government under Article 309 of the

Constitution to make rules regulating the service conditions

of the government employees cannot, in any manner, be

51



fettered by any agreement. The respondent cannot,

therefore, succeed either on the terms of the contract or on

the notification on which the High Court has relied upon.

Nor can he press into service the rule of estoppel against

the Government.

III. Therefore, the use of the word 'shall’ in section 4 (2) is

primarily meant to override any employment contract that

does not specify ‘census work’ as an incident of

employment contract. Because, a Government employee

whether contracting for a short term or for a longer term is

a contracting party and could, upon ordinary principles of

law governing contracts, object to the rendering of a service

not specified in his individual employment contract, the

Parliament has deemed it proper to phrase the language in

section 4 (2) in such a manner so as to ensure that

employment contracts that are contrary are overridden and

employment contracts that make no provision for such

service are thereby supplemented.

IV. It may further be noted that every State Government is

required to assist the Central Government in relation to the

implementation and enforcement of a Central Statute. In

fact such co-operation is a critical component of every

Federal Constitution and Constitution of India, in Article

25610 clearly mandates such co-operation.

V. As such, a State Government, in entering into anemployment contract with any person is bound to be

10 “256. Obligation of States and the Union – The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive

power of the Union shall extend to the giving of such directions to a State asmay appear to the Government of India to be necessary for that purpose”

52



mindful of the obligation cast upon it under Article 256 of

the constitution. Accordingly even if the employment

contract between the State Government and its employee

makes no reference to the obligation of the State

Government to depute its employees to perform services in

connection with the enforcement of a central legislation, by

virtue of Article 256 of the Constitution, the Parliament is

authorized to modify such employment contracts and the

provision in section 4 (2) of the Census Act 1948, precisely

accomplishes such a result11.

VI. Therefore, the language contained in section 4 (2) of the

Census Act, 1948 is wholly confined to employees under the

services of the state Government. Because the Petitioners

are neither employees of the State nor of the Central

Government, Section 4 (2) of the Census Act, 1948 is clearly

inapplicable to the petitioners. As such the giving of

impugned notices by the Respondents is wholly

misconceived or misplaced. A Writ of Prohibition will

therefore lie to restrain the Respondents from proceeding

any further12

.

11 At this juncture, it may also be noted that, by reason of the federaldoctrine incorporated into our Constitution, a State Legislation or theGovernment is not permitted to similarly enlist the services employeesof the Central Government for the enforcement or implementation of aState Legislation.

12 “The Constitution enshrines and guarantees the rule of law and

Article 226 is designed to ensure that each and every authority in the

State, including the Government acts bona fide and within the limits of

its power and we consider that when a court is satisfied that there is

an abuse or misuse of power and its jurisdiction is invoked, it is

incumbent on the court to afford justice to the individual”.

Pratap Singh Kairon v. State of Punjab [AIR 1964 SC 72 : (1964) 4SCR 733]

53



VII. Section 7 merely creates a duty in persons whose

assistance is necessary for the taking of census to act in

such manner as will facilitate the taking of census. In doing

so, the scope of Section 7 is greatly curtailed by the statute.

The assistance required of a person is always ‘in relation to

persons confined to such land, factory, firm or

establishment’. An employee of a private organization may

be directed to assist in the taking of census of other co-

employees only. To illustrate, an employee of Factory A, a

private firm, may be directed to assist in the taking of

census of other employees of Factory A only. No part of

Section 7 authorizes a District Magistrate to direct

employees of Factory A to assist in the taking of census of

employees of Factory B. The emphasis in Section 7 leads to

no other conclusion:

…to give such assistance as shall be specified in the order

towards the taking of a census of the persons who are, at

the time of the taking of the census, on the lands of such

owners, occupiers, tenure-holders, farmers and assignees,

or in the premises of factories, firms and other

establishments, or within the areas for which such local

authorities are established, as the case may be, and the

persons to whom an order under this section is directed



within the meaning of the Indian Penal Code. (emphasis

supplied).

VIII. The reference to Section 7 of the Census Act, 1948 in the

impugned Notices is without the authority of law; should

Respondent 6 show that his authority to invoke Section 7 of

54



the Census Act, 1948 has been formally notified, the

impugned Notices would nevertheless be ultra-vires the

Census Act, 1948 in relation to Petitioners 3 to 10.

IX. Section 11 of the Census Act, 1948 invites prosecution and

punishment of a 'census officer' who refuses to perform the

duty assigned to him. It says:

11. (1) (a) Any census-officer or any person lawfully

required to give assistance towards the taking of census

who refuses to perform any duty imposed upon him by this

Act or any rule made thereunder, or any person who

hinders or obstructs another person in performing any such

duty...shall be punishable with fine which may extend to

one thousand rupees and ..... shall also be punishable withimprisonment which may extend to three years.

X. Because the above provision when read with Section 4(2)

and Section 7 imposes a penal consequence upon any

person who is appointed as a ‘census officer’ in terms of

Section 4(2) of the Act, the canons of interpretation call for

a ‘strict interpretation’ and the impugned notices do not

survive a ‘strict interpretation’ of these two provisions. The

principles that govern the interpretation of a penal provision

may be noted in order to conclude that the impugned

notices do not survive a strict interpretation of the statute.

The Hon'ble Supreme Court in the case of R.Kalyani v. Janak

C Mehta13 held:

26. Although the legal principle that a penal statute must

receive strict construction, it is not in doubt or dispute, we

may notice some authorities in this behalf.

13 JT 2008 (12) SC 279 : (2009) 1 SCC 516

55



In Section 263 of the Francis Bennion's Statutory

Interpretation it is stated:

A principle of statutory interpretation embodies the policy

of the law, which is in turn based on public policy. The Court

presumes, unless the contrary intention appears, that the

legislator intended to conform to this legal policy. A

principle of statutory interpretation can therefore be

described as a principle of legal policy formulated as a

guide to legislative intention.

Maxwell in ‘The Interpretation of Statutes’ (12th Edn) says:

The strict construction of penal statutes seems to manifest

itself in four ways: in the requirement of express language

for the creation of an offence; in interpreting strictly words

setting out the elements of an offence; in requiring the

fulfillment to the letter of statutory conditions precedent to

the infliction of punishment; and in insisting on the strict

observance of technical provisions concerning criminal

procedure and jurisdiction.

In Craies and Statute Law (7th Edn. At p. 529) it is said that

penal statutes must be construed strictly. At page 530 of

the said treatise, referring to U.S. v. Wiltberger (1820) 2

Wheat (US) 76, it is observed, thus:

The distinction between a strict construction and a more

free one has, no doubt, in modern times almost

disappeared, and the question now is, what is the true

construction of the statute? I should say that in a criminal

statute you must be quite sure that the offence charged is

within the letter of the law. This rule is said to be founded

on the tenderness of the law for the rights of individuals,

56



and on the plain principle that the power of punishment is

vested in the Legislature, and not in the judicial

department, for it is the Legislature, not the Court, which is

to define a crime and ordain its punishment.

In Tuck v. Priester (1887) 19 QBD 629 which is followed in

London and County Commercial Properties Investments v.

Attn Gen. (1953) 1 WLR 312, it is stated:

We must be very careful in construing that section, because

it imposes a penalty. If there is a reasonable

interpretation, which will avoid the penalty in any

particular case, we must adopt that construction.

Unless penalties are imposed in clear terms they are

not enforceable. Also where various interpretations of a

section are admissible it is a strong reason against adopting

a particular interpretation if it shall appear that the result

would be unreasonable or oppressive.

Blackburn, J. in Wills v. Thorp said (1875) LR 10 QB 383:

When the Legislature imposes a penalty, the words

imposing it must be clear and distinct.

XI. The petitioners would be subject to unreasonable,

unintended and illegal consequences should this Court not

adhere to the ‘rule of strict interpretation of a penal

statute’. As clearly laid down by the Hon’ble Supreme Court

in Glaxo Laboratories (I) Ltd v. Presiding Officer, Labour

Court, Meerut 14, the unreasonable consequences that would

be visited upon the petitioners is most clearly evident from

the following passage in the aforesaid judgment:

14 AIR 1984 SC 505 : (1984) 1 SCC 1

57



16…The decision proceeds on the language of the standing

order which came for interpretation before this Court. There

is a marked difference between the language of Clause 10

of S.O. 22 under which action is proposed to be taken by

the appellant in this case and S.O. 24 (1) that came for

interpretation in that case. Clause (1) of S.O. 24 which was

before the Court in that case did not refer to such specific

acts of misconduct as drunkenness, fighting, indecent or

disorderly behaviour, use of abusive language etc. If a

workman is involved in a riot or indulge in fighting

somewhere far away from the premises of the

establishment, it has no causal connection with his

performance of duty in the industrial establishment in which

he is employed. Further in that case, the Court put a wide

construction on a penal measure but did not choose to set

out its reasons for departing from the well-established

principle that penal statutes generally receive a strict

construction. 'A statute is regarded as penal for the purpose

of construction if it imposes fine, penalty or forfeiture other

than penalty in the nature of liquidation of damages or

other penalties which are in the nature of civil remedies. It is a general rule that penal enactments are to be construed

strictly and not extended beyond their clear meaning. See

Halsbury's Law of England, 4th edition Vol.1 44 paragraphs

909, 910 at page 560. It cannot be seriously questioned

that S.O. 22 is a penal statute in the sense that it provides

that on proof of misconduct penalty can be imposed. It

cannot be disputed that it is a penal statute. It must

therefore, receive strict construction, because for a penalty

to be enforced, it must be quite clear that the case is within

both the letter and the spirit of the statute. If the expression

'committed within the premises of the establishment or in

58



the vicinity there of is given a wide construction so as to

make the clause itself meaningless and redundant, the

penal statute would become so vague and would be far

beyond the requirement of the situation as to make it a

weapon of torture. A clause with a statutory flavour 'like

legislation must at all costs be interpreted in such a manner

that it could not operate as a rogue's charter: Davis and

Sons v. Alkin [1977] I.C.R. 66. If any misconduct committed

anywhere irrespective of the time-place content where and

when it is committed is to be comprehended in Clause 10

merely because it has some remote impact on the peaceful

atmosphere in the establishment, there was no justification

for using the words of limitation such as 'committed within

premises of the establishment or in the vicinity thereof’.

These are words of limitation and they must cut down the

operation of the clause. Therefore, these words of limitation

must receive their due share in the interpretation of Clause

10 and Clause 10 cannot receive such a construction as to

make the words of limitation wholly redundant.

XII. The petitioners rely upon Maxwell’s ‘Principles of Statutory

Interpretation’ [Twelfth Edition – Seventeenth Impression

2009 By P.ST.J.LANGAN]. In pertinent part, it prescribes

that:

The principle applied in construing a penal Act is that if, in

construing the relevant provisions, “there appears any

reasonable doubt or ambiguity”, it will be resolved in favour

of the person who would be liable to the penalty 15. “If there

is a reasonable interpretation which will avoid the penalty in

any particular case”, said Lord Esher M.R., “we must adopt

15 London v. Country Commercial Properties Investments Ltd. V. Att.-Gen (1953) 1 W.L.R 312, per Upjohn J. at p.319

59



that construction. If there are two reasonable constructions

we must give the more lenient one. That is the settled rule

for the construction of penal sections.” 16 Or, as Plowman J

has said more recently: “In every case the question is

simply what is the meaning of the words which the statute

has used to describe the prohibited act or transaction? If

these words have a natural meaning, that is their meaning,

and such meaning is not to be extended by any reasoning

based on the substance of the transaction. If the language

of the statute is equivocal and there are two reasonable

meanings of that language, the interpretation which will

avoid the penalty is to be adopted.” 17 The court must

always see that the person to be penalized comes fairly and

squarely within the plain words of the enactment. It is not

enough that what he has done comes substantially within

the mischief aimed at by the statute: “the sooner this

misunderstanding is dispelled and the supposed doctrine

given its quietus the better it will be for all concerned, for

the doctrine seems to involve substituting ‘the uncertain

and crooked cord of discretion’ for ‘the golden and straight

metwant of the law.’ ”

18

(page 239)

The strict construction of penal statutes seems to manifest

itself in four ways; in the requirement of express language

for the creation of an offence; in interpreting strictly words

setting out the elements of an offence; in requiring the

fulfillment to the letter of statutory conditions precedent to

the infliction of punishment; and in insisting on the strict

16 Tuck & Sons v. Priester (1887) 19 Q.B.D. 629 at p.638

17 Re H.P.C. Productions, Ltd [1962] Ch.466, at p.485

18 L.R.C. v. Duke of Westminister [1936] A.C. 1, per Lord Tomlin at p.19,quoting 4 Inst. 41. But see, ante, pp.140-143. But see, ante, pp.140-143

60



observance of technical provisions concerning criminal

procedure and jurisdiction. (page 239, 240)

Express language necessary for creation of criminal

offences:

In the first place, no act is to be deemed criminal unless it is

clearly made so by the words of the statute concerned.

Thus a mere declaration that “all lotteries are unlawful”

does not create any offence on which a prosecution can be

based 19. And an exemption clause, setting out conditions on

which acts which are made punishable under other

provisions of the statute may be done, does not per se

operate to make non-observance of the conditions

criminal20…(page 240)

Strict construction of words setting out the elements of an

offence:

If there is any ambiguity in the words which set out the

elements of an act or omission declared to be an offence,

so that it is doubtful whether the act or omission in question

in the case falls within the statutory words, the ambiguity

will be resolved in favour of the person charged. This is, in

practice, by far the most important instance of the strict

construction of penal statutes. (page 240)

Punishments:

Punishment can be imposed only if the circumstances of the

case fall clearly with in the words of the enactment. Thus

disqualification from holding a driving licence could not be

imposed under the Road Traffic Act, 1930, s 6[1], on a

19 Sales-Matic, Ltd v. Hinchcliffe [1959] 1 W.L.R. 1005

20 R. v. Staincross Justices, ex p. Teasdale [1961] 1 Q.B.170

61



person convicted of stealing a car who was not also

convicted of taking and driving away [for the latter offence,

but not the former, was in the relevant schedule], even

though he asked for other offences, including that of taking

and driving away, to be taken into consideration.21 (page

244)

Wide sense given to words:

The effect of the rule of strict construction might be

summed up by saying that, where an equivocal word or

ambiguous sentence leaves a reasonable doubt of its

meaning which the canons of interpretation fail to solve, the

benefits of the doubt should be given to the subject and

against the legislature which has failed to explain it self.22…

(page 246)

Encroachment on rights:

Statutes which encroach on the rights of the subject,

whether as regards person or property, are subject to strict

construction in the same way as penal Acts. It is the

recognized rule that they should be interpreted, if possible,

so as to respect such rights,23 and if there is any ambiguity,

the construction which is in favour of the freedom of the

individual should be adopted. 24. One aspect of this

approach to legislation is the presumption that a statute .…

21 R. v. Williams (1962) 1 W.L.R. 1268. But see R. V. Assa Singh (1965)2 Q.B. 312 : by s.9 (1) of the Homicide Act 1957 the sentence in a caseof non-capital murder was made imprisonment for life, but an order for

deportation under the Common-wealth Immigrants Act, 1962 is not asentence, and could therefore be coupled with a sentence under s.9(1).See also R. v. Walters (1969) 1 Q.B. 255

22 R. v. Chapman (1931) 2 K.B. 606

23 Walsh v. Secretary of State for India (1863) to H.L.C. 367 per LordWestbury L.C.; Hough v. Windus (1884) 12 Q.B.D. 224, per Bowen L.J.

24 David v. Da Silva (1934) A.C. 106

62



another is the presumption that proprietary rights are not

taken away without provision being made for

compensation25. (page 252)

This strict method of construction may be seen, first of all,

in the courts attitude to statute which encroach on the

individual’s rights in his person and liberty (page 252)

Statutes imposing burdens:

Statutes which impose pecuniary burdens are subject to the

same rule of the construction. It is well settled rule of law

that all charges upon the subject must be imposed by clear

and unambiguous language, because in some degree they

operate as penalties; the subject is not to be taxed unless

the language of the statute clearly imposes the

obligation26…(page 256)

XIII. The petitioners further rely upon Justice G.P.Singh’s

‘Principles of Statutory Interpretation’ [10th Edition, 2006,

Wadhwa]. It is said therein:

Hardships, inconvenience, injustice, absurdity and anomaly

to be avoided:

In selecting out of different interpretations “the court will

adopt that which is just, reasonable and sensible rather

than that which is none of those things” 27 as it may be

presumed “that the Legislature should have used the word

25 Att-Gen. v. Horner (1884) 14 Q.B.D. 245, per Brett M.R.; BelfastCorporation v. O.D.Cars, Ltd (1960) A.C.490. But this is no more thanpresumption and may sometimes be inappropriate: Westminister Bank, Ltd. V. Beverley Borough Council (1968) 3 W.L.R. 671.

26 Russell v. Scott (1948) A.C. 422, per Lord Simonds; D’Avigdor-Goldsmid v. I.R.C. (1953) A.C.347

27 Holmes v. Bradfield Rural District Council (1949) 1 ALL ER 381, p.384 (KBD) (FINNEMORE, J); Nasiruddin v. State Transport AppellateTribunal, AIR 1976 SC 331, p.338 : (1975) 2 SCC 671.

63



in that interpretation which least offends our sense of

justice” 28. If the grammatical construction leads to some

absurdity or some repugnance of inconsistency with the

rest if the instrument, it may be departed from so as to

avoid that absurdity, and inconsistency 29. Similarly, a

construction giving rise to anomalies should be avoided 30.

As approved by VENKATARAMA AIYAR, J., “Where the

language of a statute, in its ordinary meaning and

grammatical construction, leads to a manifest contradiction

28 Simms v. Registrar of Probates, (1900) AC 323, p.335 (PC) (LORDHOBHOUSE). See further Cramas Properties Ltd. v. Cannaught Fur Trimmings Ltd ., (1965) 2 ALL ER 382 (HL), p.385 (LORD REID), p.387(LORD GUEST) (A reasonable construction is to be preferred to anirrational construction leading to uncertainty); Trent River Authority v.National Coal Board , (1970) 1 ALL ER 558, p.563 (HL). (LORDWILBERFORE) (“When the statutory words are capable of two

meanings preference should be given to that meaning which producesthe more reasonable and just result.”); Madhav Rao Jivajirao v. Unionof India, AIR 1971 SC 530, p.576 : 1971 (1) SCC 85 p.162 (SHAH, J)(“The court will interpret a statute, as far as possible, agreeable to

justice and reason and that in case of two or more interpretations, onewhich is more reasonable and just will be adopted, for there is always apresumption against the law-maker intending injustice and unreason”);Union of India v. B.S.Agarwal, AIR 1998 SC 1537, p.1546 : (1997) 8 SCC89 (court to lean in favour of such interpretation which conforms to

justice and fair play and prevents potentiality to injustice); DebenhamsPlc. v. Westminister City Council, (1987) 1 ALL ER 51, p.55 : (1987) AC396 : (1986) 3 WLR 1063 (HL) (That meaning which produces an

unreasonable result is to be rejected in favour of that which does not);Paradise Printers v. Union Territory of Chandigarh, AIR 1988 SC 354,p.358 : 1988 (1) SCC 440 (when there is a choice of meanings, there isa presumption that one which produces an unjust or inconvenientresult was not intended); Union of India v. North Telumer Colliary , AIR1989 SC 1728, p.1732 : (1989) 2 SCC 342 (construction which leads to‘unjust benefit’ to be avoided’); Sachida Nand Singh v. State of Bihar ,AIR 1998 SC 1121, p.1123 : 1988 (2) SCC 493 (natural meaningleading to mischievous consequences to be avoided when alternativeconstruction is open); Bhatia International v. Bulk Trading S.A.., AIR2002 SC 1432 p.1438 : (2002) 4 SCC 105; Rakesh Wadhwa v.

Jagadamba Industrial Corporation, AIR 2002 SC 2004 p.2014 : (2002) 5SCC 440 (Eighth Edition p.113 of this book is referred); Unique ButyleTube Industries P. Ltd. V. U.P.Financial Corporation, (2003) 2 SCC 455p.463 : 2003 ALL LJ 427; D Saibaba v. Bar Council of India, AIR 2003 SC2502 p.2507 (Eighth edition of this book p.113 is referred);Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K.Suresh Reddy (2003) 7 SCC 667 p.678 : (2003) 7 SCC 667 : AIR 2003 SC 3592; Lalit Mohan Pandey v. Pooran Singh (2004) 6 SCC 626, pp.643, 644 : AIR2004 SC 2303.

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of the apparent purpose of the enactment, or to some

inconvenience or absurdity, hardship or injustice,

presumably not intended, a construction may be put upon it

which modifies the meaning of the words, and even the

structure of the sentence.” 31 (pg. 127)

XIV. An educational institution is generally subject to regulation

and the scope and extent of such regulation varies in

proportion to the nature of education imparted by such

educational institution. A diverse range of human conduct is

subject to regulation and educational institutions do not

become agencies of the Government merely because they

29 Grey v. Pearson, (1857) 6 HLC 61, p.106 : 10 ER 1216, p.1234 (HL);See further title 2(a) ‘Natural and Grammatical Meaning’, text andnotes 18 (p.79), 22(p.80). Also see Shamrao v. District Magistrate,

Thana, AIR 1952 SC 324, p.327 : 1952 SCR 683. “The object of theconstruction of a statute being to ascertain the will of the Legislature,it may be presumed that neither injustice nor absurdity was intended.If, therefore literal interpretation which would avoid it, then such aninterpretation may be adopted”: Own Thomas Mangin v. IRC, (1971) 2WLR 39, p.42 (PC) (LORD DONOVAN) : (1971) 1 ALL ER 179, p.182referred in Imperial Chemicals Industries v. Colmer , (1996) 2 ALL ER23, p.32.

30 Veluswami Thevar v. G.Raja Nainar , AIR 1959 SC 422, pp.427, 428 :1959 Supp (1) SCR 404. K.Prabhakaran v. P.Jayarajan, (2005) 1 SCC754, p.773 (para 33).

31 Tirath Singh v. Bachittar Singh, AIR 1955 SC 830, p.833 : 1955 (2)SCR 457 (passage from MAXWELL, Interpretation of Statutes, 11th

Edition, p.221 approved); State of M.P. v. Azad Bharat Finance Co., AIR1967 SC 276, p.278 : 1966 Supp SCR 473; Union of India v.Sankalchand , AIR 1977 SC 565/, pp.2337, 2358, 2373 : (1977) 4 SCC193 : 1977 SCC (Lab) 435; CIT v. National Taj Traders, AIR 1980 SC485, p.490 : (1980) 1 SCC 370; K.P.Verghese v. I.T.Officer , AIR 1981 SC1922, p.1928 : (1981) 4 SCC 173; Bhag Mal v. Ch.Parbhu Ram, (1985)1 SCC 61, p.88 : AIR 1985 SC 150; State of Tamil Nadu v. KodaikanalMotor Union, (1986) 3 SCC 91, p.100 : AIR 1986 SC 1173;Commissioner of Income Tax v. J.H.Gotla Yadgiri, (1985) 4 SCC 343,p.359 : AIR 1985 SC 1698; C.W.S (India) Ltd. Commissioner of IncomeTax , JT 1994 (3) SC 116, p.121 : 1994 Supp (2) SCC 296; R.Rudraiah v.State of Karnataka, JT 1998 (1) SC 435, pp.443, 444: AIR 1998 SC1070, p.1075 : (1998) 3 SCC 23; Molar Mal v. Kay Iron Works (P). Ltd .,AIR 2000 SC 1261 p.1266 : (2000) 4 SCC 285; Padmasundara Rao v.State of T.N., AIR 2002 SC 1334 pp.1340, 1341 : (2002) 3 SCC 533;Modern School v. Union of India, AIR 2004 SC 2236, p.2257 : (2004) 9SCC 741. (This entire para is quoted with approval by SINHA.J. from 9 th

Edn., pp.121, 122 of this book).

65



are subject to regulation. A private educational institution

that does not receive any aid, grant, or other financial

assistance from the Government, whether directly or

indirectly, is not an agency or instrumentality of the

Government. The first petitioner and its members are purely

private organizations and the fact that educational

institutions are subject to intense regulation does not

render such regulated entity, an instrumentality of the

Government.

XV. A teacher in a private unaided educational institution is

primarily a private employee and the terms and conditions

that govern the relationship between a teacher and her

employer institution is not formulated by the Government.

That is, the terms and conditions that define an

employment contract between a private unaided

educational institution and its employees is neither

formulated nor approved by the Government, As such the

employment contract that governs the services of the

teaching faculty in a private educational institution does not

and need not incorporate any condition that binds a teacherto render any service for the benefit of any person other

than the contracting educational institution. Accordingly,

the teaching faculty in a private unaided educational

institution is not obligated to render any service beyond

that stipulated in the relevant employment contract.

XVI. Further, private unaided educational institutions that are

members of KUSMA do not formulate contracts that bind

their employees to render services not covered by such

employment contracts. Therefore, in the absence of a

66



Statute either by Legislature of a State or by the Parliament,

the Executive Government of a State or of the Center is not

authorized to override and modify employment contracts

that are entered into between purely private parties. Any

such interference is opposed to the modern notion of

individual liberty or would plainly be arbitrary - in either

case, wholly opposed to the principles enshrined in the

Constitution of India.

XVII. Accordingly, the respondents should be restrained from

proceeding against the petitioners in view of the fact that

their conduct is without the authority of law.

XVIII. Further, the competitive pressure upon students is ever

increasing and teaching faculty in private unaided

educational institutions are often unable to pay requisite

attention to individual students due to paucity of time. The

Respondents are wholly unjustified in assuming that

teachers in private unaided educational institution are

accustomed to leisure.

XIX. While it is true that census taking is a critical part of

Government work, any intention to draft private individuals

must be clearly expressed in uncertain terms by the

Parliament of India and the fact that the Parliament has

made no such mention in the Census Act 1948, is clearly

evident upon an ordinary reading of the Census Act 1948.

Further the Rules known as Census Rules 1990, issued by

the Central Government in terms of sub-section (1) of

Section 18 of the Census Act 1948 do not express any

intention to draft private citizens for the purpose of census

67



taking because the Parliament has made no provision

howsoever to facilitate drafting of private persons for

census work. The action of the respondents in issuing the

impugned notices for the purpose of drafting the services of

private citizens is tantamount to usurpation by a public

body of a power not authorized to it. Accordingly a Writ of

Prohibition shall issue by this Hon’ble Court for the purpose

of restraining a public body from assuming a power not

vested in it.

XX. The essential work of a teacher has no rational relation

whatsoever to the task of an enumerator. A teacher in a

private unaided educational institution is not more readily

suited than say, an advocate in practice in a Court of law or

any other graduate or professional, to perform the task of

an enumerator.

XXI. The petitioners respectfully submit that, should the

Respondents 'disclose any legal authority under the Census

Act, 1948 to 'summon a private person and to compel such

private person to discharge government work under thethreat of punishment ', the petitioners would thereafter

reserve the right to supplement this petition, subject to the

leave of this Hon'ble Court, with grounds and arguments

upon the unconstitutionality in regard to the offending

provision of the Census Act, 1948.

XXII. The Petitioners are fully deprived of the protection accorded

to them under Article 21 of the Constitution of India. Article

21 of the Constitution forbids the Legislature from issuing

any law for the purpose of inhibiting the liberty of an

68



individual unless the language employed therein is definite

and certain. The language employed in the Census Act,

1948 offers no authority whatsoever to the Respondents to

recruit private citizens for the purpose of census duty.

Accordingly, this Hon'ble Court is vested with a duty, in

terms of Article 226, to intervene for the purpose of

protecting the Petitioners' constitutional right enshrined in

Article 21 of the Constitution.

GROUNDS IN SUPPORT OF INTERIM RELIEF

XXIII. The Petitioners are entitled to succeed on the merits on the

matter. Accordingly, the petitioners are entitled to an

interim injunction in relation to the operation of the

impugned Notices in view of a reasonable likelihood of their

success.

XXIV. A law that fails to express in certain terms, the curtailment

of the liberty of an individual imposes a burden upon the

Executive to demonstrate that the plain language of the law

leads to no other inference than to authorise thecurtailment of the liberty of the citizens. The Respondents

are unlikely to succeed in demonstrating that the law at

issue leads to any such inference. Accordingly, an interim

injunction is absolutely warranted.

XXV. Because the conduct of the Respondents in restraining the

liberty of the petitioners is not clearly provided for under

the relevant statute, it becomes the duty of this Hon'ble

Court to safeguard the constitutionally guaranteed liberties

of the petitioners by issuing a restraint upon the operation

69



of the impugned Notices. Accordingly, for the proper

protection of the petitioners under Article 226 of the

Constitution of India, an interim injunction is absolutely

warranted in relation to the operation of the impugned

Notices.

XXVI. Because penal consequences attend the disobedience of a

'census duty' properly imposed upon a person, in the event

of a legitimate doubt over the authority of the Government

to impose a 'census duty' upon an individual, the issue of an

'interim injunction' is absolutely warranted until such doubt

is properly and completely resolved. Accordingly, the

Petitioners are entitled, under the ordinary law governing

injunction and under the Constitution of India, to a restraint

upon the operation of impugned Notices until such time that

this Writ Petition is conclusively answered by this Hon'ble

Court.

70



PRAYER

WHEREFORE, IN VIEW OF THE CIRCUMSTANCES NARRATED

ABOVE, THIS HON’BLE COURT MAY GRACIOUSLY BE

PLEASED TO:

i. Issue a judicial Order of any other nature or

description to quash forthwith, impugned Notices

produced as Annexure G to O as being illegal and ultra

vires the ‘Census Act, 1948 and Rules and

Notifications issued thereunder’;

ii. Issue a Writ of Prohibition or a Writ of any other nature

or description or any Order or direction to restrain

Respondents from wrongfully summoning teachers in

employment at educational institutions that are

members of first petitioner society, for the purpose of

discharging duties in terms of the impugned Notices;

iii. Issue any other Order or direction as this Hon’ble

Court may deem fit or expedient in the facts and

circumstances of this case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL

EVER IN DUTY, PRAY.

K.V.DHANANJAY.

Bangalore Roll No.KAR/659/2002

Date: 08-Jun-2010 ADVOCATE FOR PETITIONERS

INTERIM PRAYER

71



WHEREFORE, IN VIEW OF THE OF CIRCUMSTANCES

NARRATED ABOVE, THIS HON'BLE COURT MAY GRACIOUSLY

BE PLEASED TO, PENDING THE COMPLETE ADJUDICATION

AND DETERMINATION OF THIS WRIT PETITION:

i. Issue an ad-interim ex-parte injunction upon the

impugned Notices produced herewith as Annexure G

to O;

ii. Issue any other Order or direction as this Hon’ble

Court may deem fit or expedient in the facts and

circumstances of this case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL

EVER IN DUTY, PRAY.

K.V.DHANANJAY.

Bangalore Roll No.KAR/659/2002

Date: 08-Jun-2010 ADVOCATE FOR PETITIONERS

Address for Service of Notice:

K.V.DHANANJAYAdvocateNo.296KamakshipalyaMagadi Main RoadBangalore 560 079

email: [email protected]

Phone: +91 9902909390

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Private citizens cannot be drafted for Census Duty - Writ Petition

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