Judgment

CHINNAPPA REDDY, J. :- I agree with my learned brother, Varadarajan, J. that the second proviso to R. 151 (i) (ii) (b) of the Bombay Civil Service Rules is void as it offends Arts. 14, 16 and 21 of the Constitution. The proviso provides for payment of subsistence allowance at the rate of Re. 1/- per month to a Government servant, who is convicted by a competent Court and sentenced to imprisonment and whose appeal against the conviction and sentence is pending. The award of subsistence allowance at the rate of Re. 1/- per month can only be characterised as ludicrous. It is mockery to say that subsistence allowance is awarded and to award Re. 1/- per month. For the reasons given by my brother Varadarajan, J., I agree that the proviso should be struck down.

2. Though I share the view expressed by my brother that public employment opportunity is national wealth in which all citizens are equally entitled to share and that no class of people can monopolise public employment in the guise of efficiency or other ground, I am afraid it is nonsequitur and, as at present advised, I wish to guard myself against accepting the view that the right to equal opportunity to public employment may be treated as a new form of private property with its attribute of competitive exploitation. The fundamental right to property has been abolished because of its incompatibility with the goals of justice, social, economic and political and equality of status and of opportunity and with the establishment of a socialist democratic republic, as conemplated by the Constitution. There is no reason why a new concept of property should be introduced in the place of the old so as to bring in its wake the vestiges of the doctrine of laissez faire and create, in the name of efficiency, a new oligarchy. Efficiency has many facets and one is yet to discover an infallible test of efficiency to suit the widely differing needs of a developing society such as ours. There is a present inherent danger of a class dominated civil service resulting from the concept of employment opportunity as private property, We have to guard ourselves against any such result. I agree with the order proposed by my brother.

VARADARAJAN, J. :- 3. The appeal by special leave is preferred by the State of Maharashtra against the Division Bench judgment of the Bombay High Court in Special Civil Application No. 4292 of 1976* holding that the second proviso to R. 151 (1) (ii) (b) of the Bombay Civil Services Rules, 1959 will apply to the respondent Chandrabhan Tale for purposes of payment of subsistence allowance at the nominal rate of Re. 1/- per month only for the period during which he is lodged in prison on conviction and not for the subsequent period after he is released on bail pending consideration of his appeal against the trial Courts judgment.

* Reported in 1977 Mah LJ 278.

4. The respondent Chandrabhan Tale who was a Head Constable in the appellants Police Force was prosecuted for offences under Sec. 161, I.P.C. and S. 5 (1)(d) read with S. 5 (2) of the Prevention of Corruption Act, 1947 in the Court of the Special Judge, Wardha in Special Case No. 3 of 1974. The Special Judge convicted him of both the offences on 14-1-1976 and sentenced him to undergo rigorous imprisonment for 6 months under Sec. 16 1, I. P. C. and for one year and fine of Rs. 100/- under Section 5 (1) (d) read with S. 5 (2) of the Prevention of Corruption Act, 1947. The respondent was on bail pending trial and was released on bail even after his conviction by the trial Court to enable him to file an appeal in the High Court against his conviction. His Criminal Appeal No. 30 of 1976 was admitted by a learned single Judge of the Bombay High Court on 20-2-1976 and he was allowed to continue on bail on the same terms pending consideration of the appeal. We are told that he has been acquitted by the High Court and reinstated in service with all the benefits. He did not even appear in this appeal before us as he is no lo