DR. AMBEDKAR....................AWARD 299
Positive Powers
In this as in the other two cases there are on the one hand positive powers of the Thakore Saheb which is an inflexible term and on the other there is recommendation which is always a flexible term. That being so according to the rule the flexible term must give way to the inflexible term. That is to say ‘recommend’ cannot mean direct or bind.
The case reported in (1917) I. K. B. 19 referred to by Sir Maurice Gwyer seems to be in conflict with the two cases I have referred to. But on a closer examination it will be seen that there is no conflict and the case is easily distinguishable. In 1917 I.K.B. 19 the appointing authority, was ‘just’ an appointing authority and no more. It had no positive powers which could be said to be in danger of being nullified by interpreting the word . . . . . . ‘recommend’ to mean a binding direction.
The rule as laid down in the two cases referred to by me seems to be that where there exist positive powers which are capable of being exercised independently, the word recommend cannot mean a binding direction, but where there are no positive powers it may have that meaning. In the two cases referred to by me there were positive powers and therefore the decision was that recommendation did not mean binding direction.
In the case referred to by Sir Maurice Gwyer there were no positive powers and therefore it was held that recommendation could mean a binding direction. The case of Thakore Saheb vs. Vallabhbhai is one which in my opinion falls in the class under which the two cases cited by me fall and not under the class of cases reported in (1917) L K. B. 19.” [1]
��
l: The Bombay Chronicle : dated 2nd May 1939.