( 1 ) THIS matter came before the Full Bench on reference from the Division Bench as an important question regarding interpretation of Rule 4 (10) of the Prisons (Bombay Furlough and Parole) Rules 1959 arises as to whether the word shall is mandatory in the context of the provisions of Rule 4 (10) and more particularly its later part or whether the word shall can be construed as may so as to enable the prison authorities to consider the request for furlough of prisoner who has surrendered late after release on furlough or parole. Rule 4 (10) makes the following reading: Rule 4: when prisoners shall not be granted furlough: The following categories of prisoners shall not be considered for release on furlough: (1) xx xx xx xx (10) Prisoners who have at any time escaped or attempted to escape from lawful custody or have defaulted in any way in surrendering themselves at the appropriate time after release on parole or furlough.

( 2 ) THE contention of the petitioner is that although he had surrendered late by 25 days after he was released on parole he is not totally ineligible for being released on furlough and the authorities have the power and duty to consider his application for furlough on merits and thereafter to grant or refuse furlough on merits and in the present case the authorities have refused to consider his request for furlough without going into the merits only at the threshold on the ground that the petitioner-prisoner is not at all eligible to be considered for being released on furlough and the authorities have mechanically considered the provisions of Rule 4 (10) for releasing the petitioner on furlough.

( 3 ) ON behalf of the respondent authorities it is submitted that plain and simple reading of Rule 4 (10) is clear and unambiguous and not permitting any discretion to the authorities; namely that the category of defaulters shall not be considered for being released on furlough. The respondents have also relied upon the Division Bench judgment in the case of Juvansingh L. Jadeja v. State of Gujarat 14 (1973) GLR 104. In that case while considering the validity of Rule 4 (2) the scheme of Rule 4 (10) was also referred to and the validity of Rule 4 was upheld even while holding the provision to be mandatory in the context of Rule 4 (2 ). Relying on this judgment the respondents authorities have submitted that Rule 4 (10) is also mandatory and can not be construed as directory.

( 4 ) ANOTHER decision relied upon by the respondents-authorities is also a Division Bench judgment in Nanubhai Bhanjibhai v. State of Gujarat in Special Criminal Application No. 496 and 597 of 1981 decided on 5/11/1985 In that case the question was of carrying forward furlough which was not granted for no fault on the part of the prisoner. Statutory note (3) to Rule 3 provided that if at any time a prisoner who could have been granted furlough is either not granted or is refused the same the period for which he could have been granted the furlough shall not be carried forward but shall lapse. By construing this provision reasonably and reading it down to make it reasonable the Division Bench held that:the words on account of any fault or act or misconduct on his part should be read into note 3 after the words is either not granted or is refused the same in order that the note does not suffer from the vice of arbitrariness violating Art. 14. The Division Bench further observed that:in our opinion plain reading of Rule 4 makes it clear that the prisoners enumerated in clauses (1) to (3) and (7) to (10) are not eligible to be released on furlough. So far as the prisoners enumerated in clauses (4) 10 (6) of Rule 4 are concerned the authority concerned has power to grant or refuse to release prisoners on furlough. In other words while clauses (1) to (3) and (7) to (10) of Rule 4 deal with eligibility criteria clauses (4) to (6) deal with power of the authority concerned to refuse release of a prisoner on furlough. Prisoners fallin