Special Leave Petition Civil No 6497 of 1991
From the Judgment and Order dated 1841990 of the Bombay High Court in WP No 419 of 1990
section Ganesh Ravinder Narain PK Ram and Ms Amrita Mitra for the Petitioner
KK Singhvi and AK Gupta for the Respondent
The Order of the Court was delivered by K JAYACHANDRA REDDY J The petitioner Company is engaged in the business of manufacture of aluminium products and its factory is located at Kalwa in Thane District Maharashtra
The Company obtains aluminium as raw materi als for consumption from another factory of theirs situated in a different State
With effect from 11082 the Company at Kalwa was included in the municipal jurisdiction of Thane
Prior to that date the factory was not within the jurisdiction of Thane Municipality and did not have to pay any octroi on the raw materials brought into its factory at Kalwa
By a notification dated 23882 the Government of Maharashtra constituted the Municipal Corporation of the City of Thane and Kalwa was brought within the jurisdiction of the Thane Municipal Corporation the respondent herein and all goods imported into the area of the Thane Municipal Corporation were subjected to octroi at the rates mentioned in Schedule I to the Maharashtra Municipalities Octroi Rules 1968  Rules  for short
Schedule I to the said Rules contains description of various goods and articles which were liable to octroi and minimum and maximum rates are prescribed
Item No77 in the said Schedule I to the said Rules covered non ferrous metals including aluminium and Entry provided for the levy of octroi duty on the alu minium and_other goods mentioned therein at the minimum rate of 05 and at the maximum of 4
The respondent Corporation was levying octroi duty on the imports of aluminium raw materials made by the 212 petitioner Company into Kalwa at the rate of 13 from 1101982 to 1441987
Then with effect from 15487 the respondent Corporation was levying octroi at the rate of 2
On 18587 the Thane Manufacturer s Association made a representation to the respondent Corporation about the increase in octroi rates pointing out that the increase was having a disastrous effect on their industrial units located within the limits Of the Corporation
In reply to the said representation the respondent Corporation addressed a letter dated 20111987 in which it was pointed out and clarified inter alia that goods specified in Entry 77 in Schedule I to the said Rules when raw material is imported for use in the manufacture of finished goods it would be subject to the levy of octroi not exceeding 125 and not less
On receipt of this letter the petitioner Company made detailed enquiries and was informed that under Rule 4 of the said Rules the goods mentioned in Part IA of that Schedule which were imported by certain industrial undertakings are liable to be subjected to octroi at a lower rate
The Compa ny also noticed further that Part IA of the Rules provided that the goods specified in Entry 77 when imported by an industrial undertaking for use as a raw material for proc essing within that undertaking and if a declaration in Form 14 is filed the levy
octroi in such cases would not exceed 125 and would not be less than 025
The petitioner however did not file any such Form 14 duly filled in and according to them they acted under a mistake of law and under the bonafide impression that the octroi levied on and recovered by the Corporation at the rate of 13 in respect of the period from 11082 to 14487 and at the rate of 2 from 15487 onwards represented the correct rate
The petitioner however having later realised by going through the records and the financial accounts and other documents which are duly audited claimed refund of the excess of octroi duty which has been paid by them
On 8388 the petitioner Company addressed a letter to the respondent Corporation pointing out that under a mistake of law they paid excess amount and therefore the excess amount so paid should be refunded
The respondent Corporation in their reply dated 16588 stated that the petitioner company had not complied with the procedure specified in Part IA of the Schedule II to the said Rules for availing such concessional rates therefore the refund cannot be sanctioned
However the petitioner Company by their letter dated 19489 claimed a refund of total amount of Rs 135410179 p
The respond ent again rejected the claim reiterating that the procedure specified in Part IA of Schedule II to the Rules was not complied with
Being aggrieved the Company filed a writ of mandamus seeking  refund
A Division Bench of the High Court dismissed the
same holding that the concessional rate of octroi duty was available only if the declaration in Form 14 was filed with the octroi authorities
Questioning the said 213 Order this special Leave Petition has been filed and it is being disposed of at the admission stage itself after no tice
Most of the facts in this case are not in dispute
Admittedly the aluminium raw material was imported by the petitioner Company and octroi duty at the normal rate was paid and no declaration in Form 14 was filed
It is only after the lapse of long time that the petitioner Company has made a claim for refund
The learned counsel for the peti tioner Company submitted that a procedural failure should not disentitle the petitioner Company provided if otherwise the Company could have legitimately claimed
The learned counsel appearing for the respondent Municipal Corporation submitted that the concessional rate would be available only if the raw material was utilised by the Company for manufac turing goods within the industrial undertaking
If a decla ration had been filed in proper Form 14 there could have been a scope for verification and in the absence of such a declaration the question of refunding at this distance of time does not arise
It is also his further submission that the concession should have been availed at the time when it was available
Having failed to avail the question of claim ing the same later does not arise and consequently no refund can be claimed
The amended Rules came into force in 1970
Rule 42 provides for payment octroi at a lower rate by certain industrial undertakings in respect of the goods mentioned in Part IA of Schedule II to the Rules
Aluminium is at Entry No77
Part I A reads thus PART I A List of goods on which octroi shah be payable at a lower rate by Certain industrial under takings
1 All goods specified in entries 6c 35 40 64 65 71 77 and 86 in Schedule I and khobra mentioned in entry 25 raw rubber and latex mentioned in entry 70 in that Schedule when imported by an industrial undertaking for use as raw material for processing within that undertaking and when declaration in respect thereof is issued by the undertaking in Form 14 shall be subject to octroi by any Council at a rate not exceeding 125 per cent and not less than 025 per cent
XX XX XX It can be seen from the above rule that to avail the concession a declaration in Form 14 has to be made in respect of the raw material 214 imported
Form 14 is as under FORM 14 Part I A and I1 of Schedule II  Declaration to be made by an importer import ing dutiable goods as raw material for his industrial undertaking I    do hereby declare that the goods in respect of which I have separately given a declaration under rule 14 have been imported by me as raw material to be used in the manufacture of    in my industrial undertaking viz here give full name and address of the undertaking      and I shall not use them for any other purpose for sale or otherwise dispose them of to any other party for any other purpose except having previously paid the difference between the octroi due on such goods at ordinary rates and the octroi paid on concessional rates under Schedule I1 to the Maharashtra Municipalities Octroi Rules 1968
Date    
Signature of the Importer The declaration contemplated in Form 14 is to the effect that the goods imported shall not be used for any other purpose for sale or otherwise etc
It can thus be seen that an incentive is sought to be given to such entrepreneurs by such concession if the raw material which is imported is also utilised in the industrial undertaking without selling or disposing of otherwise
That being the object a verifica tion at the relevant time by the octroi authorities becomes very much necessary before a concession can be given
In the absence of filing such a declaration in the required Form 14 there is no opportunity for the authorities to verify
Therefore the petitioner Company has definitely failed to fulfil an important obligation under the law though proce dural
The learned counsel however submitted that even now the authorities can verify the necessary records which are audited and submitted to the authorities and find out wheth er the material was used in its own undertaking or not
We do not think we can accede to this contention
Having failed to file the necessary declaration he cannot now turn around and ask the authorities to make a verification of some records
The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has ceased to be there
May be that the raw material was used in the industrial undertaking as claimed by the petitioner Company or it may not be
In any event the failure to file the necessary declaration has necessarily prevented the 215 authorities to have a proper verification
Shri Ganesh learned counsel for the petitioner Company relied on the judgment of this Court in Kirpal Singh Duggal vs Municipal Board Ghaziabad  in support of his submission that the non fulfilment of procedural re quirement does not bar the claimant from persuing his remedy in a court of law
That was a case where the appellant entered into a contract and supplied the goods to the Gov ernment
The Municipal Board collected toll when the trucks were passing through the toll barrier
The appellant ob tained a certificate that the transported goods were meant for Government work
The appellant claimed exemption on the basis of the certificate but not within time
The Court observed thus But counsel for the respondent contended that the rules framed by the Government regarding the procedure constituted a condition prece dent to the exercise of the right to claim refund and recourse to the civil court being conditionally strict compliance with the procedure prescribed the civil court was incompetent to decree the suit unless the condition was fulfilled
We are unable to agree with that contention
The rules framed by the Government merely set up the procedure to be followed in preferring an application to the Municipality for obtaining refund of the tax paid
The Municipality is under a statuto ry obligation once the procedure followed is fulfilled to grant refund of the toll
The application for refund of the toll must be made within fifteen days from the date of payment of the toll
It has to be accompanied by the original receipts
If these procedural requirements are not fulfilled the Municipality may decline to refund the toll and relegate the claimant to a suit
It would then be open to the party claiming a refund to seek the assistance of the court and to prove by evidence which is in law admissible that the goods transported by him fell within the order issued under section 1573 of the Act
The rules framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15 1939 do not purport to bar the jurisdiction of the civil court if the procedure is not followed Relying on these observations Shri Ganesh learned counsel for the petitioner Company contended that in the instant case though the procedural requirement is not ful filled by filing a declaration in Form 14 still that is not a bar to invoke the jurisdiction of the civil court or the High 216 Court by way of a writ and seek a refund
We are unable to agree
In Duggal s case the appellant as a matter of fact obtained certificate but failed to make the application for refund within time
It is in that context this Court ob served that the Municipality was under a statutory obliga tion once the procedure followed is fulfilled and if it is not fulfilled the Municipality may decline
The granting of a certificate that the appellant used the goods for Govern ment work made all the difference
But in the instant case the non fulfillment of the requirement even though procedur al has disentitled the petitioner Company because there was no way to verify whether it was entitled for such conces sion
In HMM Limited and another vs Administrator Bangalore City Corporation and another 19894 S C C 640 no doubt the view taken in Dugal s case was confirmed but it does not make any difference so far as the present case is concerned for the reasons stated above
In that case the question was whether the goods namely Horlicks was consumed within the city or not and there was no dispute as to the quantum which was credited pursuant to the directions of the High Court
Hence no further verification was necessary
Therefore these two cases are distinguishable
However a concession has to be availed at the time when it was available and in the manner prescribed
The common dictionary meaning of the word concession is the act of yielding or conceding as 10 a demand or argument something conceded usually implying a demand
claim or request a thing yielded a grant
In the Dictionary of English Law by Earl Jowitt the meaning of concession is given as under Concession a grant by a central or local public authority to a private person or pri vate persons for the utilisation or working of lands an industry a railway waterworks etc
 The expressions rebate and concession in the commer cial parlance have the same concept
In Halsbury s Laws of England 4th edn
Para 198 it is observed as under Application for rebate
When a rating author ity receives an application for a rebate it has a duty to determine whether the residen tial occupier is entitled to a rebate and if so the amount to which he is entitled and it must request him in writing to furnish such information and evidence as it may reasonably require as to the persons who reside in the hereditament his income and the income of his spouse
Unless 217 the rating authority is satisfied that the residential occupier has furnished all the information and evidence it requires it is under no duty to grant a rebate  emphasis supplied In Kedarnath Jute Manufacturing Co vs Commercial Tax Officer Calcutta and Ors   the appellant which was a public limited Company sought exemption under the provisions of the Bengal Finance Sales Tax Act 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to that sub clause granting exemption
It was contended on behalf of the appel lant that proviso to the sub clause was only directory and the dealer is not precluded where the proviso is not strict ly complied with from producing other relevant evidence to prove that the sales were for the purposes mentioned in the said sub clause
The contention on behalf of the respondent was that the dealer can claim exemption under the sub clause but he must comply strictly with the conditions under which the exemption can be granted
Rejecting the appellant s contention this Court held thus Section 52a ii of the Act in effect exempts a specified turnover of a dealer from sales tax
The provision prescribing the exemption shall therefore be strictly con strued
The substantive clause gives the exemption and the proviso qualifies the sub stantive clause
In effect the proviso says that part of the turnover of the selling dealer covered by the terms of sub clause ii will be exempted provided a declaration in the form prescribed is furnished
To put it in other words a dealer cannot get the exemption unless he furnishes the declaration in the prescribed form
 It was further held as under There is an understandable reason for the stringency of the provisions
The object of section 52 a ii of the Act and the rules made thereunder is self evident
While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers  of specified classes of goods it seeks also to prevent fraud and collusion in an attempt to evade tax
In the nature of things in view of innumerable transactions that may be entered into between dealers it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section
Therefore 218 presumably to achieve the twofold object namely prevention of fraud and facilitating administrative efficiency the exemption given is made subject to a condition that the person claiming the exemption shall furnish a decla ration form in the manner prescribed under the section
The liberal construction suggested will facilitate the commission of fraud and introduce administrative inconveniences both of which the provisions of the said clause seek to avoid It can thus be seen that the submission namely that the dealer even without filing a declaration can later prove his case by producing other evidence is also rejected
This ratio applies on all fours to the case before us
As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession
For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification
Fail ure to file the same would automatically disentitle the Company from claiming any such concession
In any event the petitioner Company cannot claim conces sion at this distance as a matter of right
In Orissa Cement Ltd vs State of Orissa  Ors A I R  it was observed thus We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatical ly result in a direction for a refund of all collections thereof made earlier
The decla ration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and in the latter sphere the Court has and must be held to have a certain amount of discretion
It is well settled proposition that it is open to the Court to grant mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to ad vance the interests of justice In the instant case the octroi duty paid by the peti tioner Company would naturally have been passed on to the consumers
Therefore there is no justification to claim the same at this distance of time and the court in its discre tion can reject the same
For the above reasons this Spe cial Leave Petition is dismissed with costs
VPR Petition dis missed


Summary:
Rule 4 of the Civil Services Examination Rules provide that every candidate appearing at the examination who is otherwise eligible shall be permitted three attempts at the examination
The attempts are now increased to four
Under Proviso to the said Rule the restriction on the number of attempts is not applicable in the case of Scheduled Castes and Scheduled Tribes candidates who are otherwise eligible
By a notification dated 13121986 the Central Executive Authority inserted second proviso to Rule 4
The said second proviso provided that a candidate who on the basis of the results of the previous Civil Services Examination had been allocated to the IPS or Central Services Group A  but who expressed his intention to appear in the next Civil Services Main Examination for competing for IAS IFS IPS or Central Services Group A  and who was permitted to abstain from the probationary training in order to so appear shall be eligible to do so subject to the provisions of Rule 17 and that the said candidate when allocated to a service on the basis of the next Civil Services Main Examination can either join that service or the service to which he has already been allocated on the basis of the previous CSE and that if he fails to join either of the services his alloca tion based on one or both the examinations as the case may be will stand cancelled
Further notwithstanding anything contained in Rule 8 a candidate who accepts allocation to a service and is appointed to that service shall not be eligi ble to appear again in the CSE unless he has first resigned from the service
In other words a candidate failing within the ambit of this proviso can appear in the CSE for all the permitted attempts subject to his age limit if he intends to appear again in the CSE provided he first resigns from the service which he accepts on allocation and to which he is appointed
Rule 8 of the Civil Services Examination Rules precludes the candidate who have been appointed to the IAS or IFS from sitting in the ensuing examination while in service
The said rule provide that a candidate who is appointed to the Indian Administrative Service IAS or the Indian For eign Service IFS on the basis of result of an earlier examination before the commencement of the ensuing examina tion and 48 continues to be a member of that service will not be eligi ble to compete at the sub sequent examination even if he is disillusioned and wants to switch over
Further this rule states that in case a candidate has been appointed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examination but before the main examination the candidate if continues to be a member of that service shall not be eligible to appear in the ensu ing main examination notwithstanding that the said candidate has qualified himself in the preliminary examination
Simi larly if a candidate is appointed to the IAS or IFS after the commencement of the Main examination but before the announcement of the result and continues to be a member of that service the said candidate shall not be considered for appointment to any servicepost on the basis of the result of this examination
Rule 17 of the Civil Services Examination Rules provide that if a candidate has been approved for appointment to IPS and expresses his intention to appear in the CSE Main for higher civil service the services for which he is eligible to compete are IAS IFS and Central Services Group A 
Similarly a candidate who has been approved for appointment to the Central Services Group A  and expresses his inten tion to appear in the next CSE Main the services to which he will be eligible to compete are IAS IFS and IPS
The second proviso to Rule 17 provides that a candidate who is appointed to a Central Services Group B  on the result of an earlier examination will be considered for appointment to IAS IFS IPS and Central Services Group A 
The eligibility of a candidate to appear in the Civil Services Examination with regard to nationality age and qualifications is given under Regulation 4 of the IAS Appointment by Competitive Examination Regulations 1955
Clause iii a of the said Regulation provides that unless covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf every candidate appearing for the examination after 1st January 1979 who is otherwise eligible shall be permitted three attempts at the examination and the appearance of a candi date at the examination will be deemed to be an attempt at the examination irrespective of his disqualification or cancellation as the case may be of his candidature
The legality and constitutionality of second proviso to Rule 4 and 49 Rule 17 was challenged before the Central Administrative Tribunal
The Tribunal held that the second proviso to Rule 4 and Rule 17 were valid and were not hit by Article 14 and 16 of the Constitution
In appeals to this court it was contended on behalf of the appellants 1 that second proviso to Rule 4 of the CSE Rules was invalid because a it puts embargo restricting the candidates who are seeking to improve their position vis a vis their career in government service b it travels beyond the intent of main rule viz Rule 4 c it is ultra vires to clause iii a of regulation 4 of the IAS Appointment by competitive Examination Regulation 1955 in as much as the power to notify exceptions do not include the power to make candidates ineligible who are otherwise eligi ble in terms of clause i to iii of Regulation 4 d it is bad since the authorities have stepped out of the consti tutional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the House of Parliament e it is arbitrary and irrational having no nexus with the object of recruitment to the post of civil services f it is violative of Articles 14 and 16 of the Constitution because it discriminates between group A  and group B  services ie it excludes the candidates appointed to group A  services from competition while no such embargo is placed restricting the candidates to Group B  services 2 that the second proviso is not applicable to the candidates belonging to SC or ST 3 Proviso to Rule 17 of the Civil Services Examination is invalid since it places restriction on candidates who are seeking to improve their position vis a vis their career
DismiSsing the appeals this Court HELD 1
If Rule 4 of Civil Services Examination Rules is examined in juxtaposition of clause iii a of Regulation 4 it is clear that both Rule 4 of CSE Rules and Clause iii a of the Regulation 4 show that every eligible candi date appearing at the Civil Services Examination should be permitted three attempts at the examination which are now increased to four under Rule 4 of the CSE Rules
The eligi bility of a candidate to appear in the CSE with regard to nationality age and educational qualifications is given under clauses i to iii of Regulation 4 but the Govern ment by exercise of its executive power has imposed certain restrictions under some specified circumstances
A plain and grammatical reading of clause iii a of Regulation 4 shows that if the number of 50 attempts are covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf then the notification will become enforceable and only in the absence of such notification every candidate normally can appear for all permitted attempts at the examination whether three or four
The impugned second proviso does not restrict or put an embargo on the number of attempts in the normal course
But the restriction is only when the conditions enumerated in the impugned proviso are satisfied
The restriction imposed by the impugned proviso cannot be said to be unjust unreasonable or arbitrary or change of any policy
Moreover the spirit of the main rule is not in any way disturbed
80 B F 92 D 11 The restriction or embargo as the one under consid eration is not only placed on the candidates who on the basis of the result of the previous CSE had been allocated and appointed to IPS or Central Services Group A  but also on the candidates appointed in the higher echelon of civil service
There is a far more restrictive rule in existence namely Rule 8 of the CSE Rules which precludes the candi dates who have been appointed to the IAS or IFS from sit ting in the ensuing examination while in service
Further this rule states that in case a candidate has been appoint ed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examination but before the Main examination that candidate if continues to be a member of that service shall not be eligible to appear in the ensuing main examination notwithstanding that the said candidate has qualified himself in the preliminary examina tion
Similarly if a candidate is appointed to the IAS or IFS after the commencement of the main examination but before the announcement of the result and continues to be a member of that service the said candidate shall not be considered for appointment to any servicepost on the basis of the result of this examination
But there is no bar for a candidate who is appointed to the IASIFS resigning from that service and sitting in the examination for IPS or any Central Service Group A 
86 B F 86 G H Under Rule 4 of CSE Rules notwithstanding anything contained in Rule 8 a candidate who accepts allocation to a service and appointed to that service shall not be eligible to appear again in the CSE unless he first resigns from that service
In other words a candidate who is allocated and appointed to a service can sit in the ensuing examination provided he first resigns from that service
This restric tion is a reasonable one in order to 51 achieve the desired result
Thus the second proviso to Rule 4 of the CSE Rules does not travel beyond the intent of the main rule putting any unjustifiable embargo and the proviso is not ultra vires Regulation 4iii a of Regulations 1955 on the ground that it makes the candidates ineligible who are otherwise eligible in terms of clauses i to iii of the said Regulation and the proviso to Rule 17 is not in valid
86H 87 A C 2
An enactment is never to be held invalid unless it be beyond question plainly and palpably in excess of legislative power or it is ultra vires or inconsistent with the statutory or constitutional provisions or it does not conform to the statutory or constitutional requirements or is made arbitrarily with bad faith or oblique motives or opposed to public policy
87 C D 21 While interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous the court is bound to construe them in their ordinary sense with reference to other clauses to the Act or Rules as the case may be so far as possible to make a consistent enactment of the whole statute or series of statutesRulesRegulations relating to the subject mat ter
Added to this in construing a statute the court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and the underlying intendment of the said statute and that every statute is to be interpreted without any violence to its language and applied as far as its explicit language admits consistent with the established rule of interpretation
83 F G Maxwell on the Interpretation of statutes 10th Edn
page 7 Craies on Statute Law 5th Edn 6th Edn page 89 referred to
King Emperor vs Benoari Lal Sharma AIR 1945 PC 48 Wardurton vs Loveland 1832 2 D  CH
HL 480Suffers vs Briggs 8 Commissioner of Income Tax vs
section Teja Singh   M Pentiah and Ors
vs Muddala Veeramallappa and Ors   It
Col Prithi Pal Singh Bedi etc
vs Union of India  Ors
  AR Auntlay vs
RS Nayak   Maharashtra State Board of Secondary and Higher Secondary Education and Anr
vs Paritosh Bhupesh Kurmar sheth etc
 1985 I SCR 29 Philips India Ltd vs Labour Court Madras and Ors   Balasinor Nagrik Cooperative Bank Ltd vs Babubhai Shankerlal Pandya and Ors  52 Dr
Ajay Pradhan vs State of Madhya Pradesh and Ors
   LIC vs Escorts   referred to
22 A Proviso to a SectionRule is expected to except or qualify something in the enacting part and presumed to be necessary
When the impugned second proviso to Rule 4 of the CSE Rules is interpreted in its grammatical meaning and cognate expressions and construed harmoniously with the substantive rule it is pellucid that the said proviso only carves out an exception to Rule 4 of the CSE Rules in given circumstances and under specified conditions and therefore the second proviso cannot be read in isolation and inter preted literally
On the other hand the substantive Rule 4 is be read in conjunction with the two provisos appended thereto so as to have a correct interpretation
83H 85 E F 23 In the Proviso in dispute there are no positive words or indications which would completely exclude the operation of the substantive rule the spirit of which is reflected in Regulation 4 of the Regulations 1955
The restriction imposed by the second proviso is only under certain circumstances
Although the notification introducing the impugned proviso has to be strictly construed the Court cannot overlook the very aim and object of the proviso thereby either defeating its purpose or rendering it redun dant or inane or making it otiose
Judged from any angle it is not possible to hold that there is a violent breach of the provisions of the substantive Rule 4 of CSE Rules and Regulation 4 iii a and it cannot
be held that the im pugned second proviso either subverts or destroys basic objectives of Rule 4 and that it is ultra vires
85F H 86 A B Maxwell on The Interpretation of statute 11th edn
page 155 Kent s Commentary on American Law 12th Edn
1 463 referred to
Gen vs Chelsea Waterworks Co 1731 Fitzg
195 Piper vs Harvey1958 I QB 439 R vs Leeds Priso Gover nor  Ram Narain Sons Ltd and Ors
vs Assit
Commissioner of Sales Tax and Ors   Abdul Jabar Butt  lint
vs State of Jammu and Kashmir   Commissioner of Income Tax vs section Teja Singh   The Commissioner of Income Tax Mysore Travancore Cochin and Coorg Bangalore vs The Indo Mercantile Bank Ltd   Madras  Southern Mahratta Railway Co vs Bezwada Municipality 1944 LR 71 IA 113 Corpn
of the City of Toronto vs Attorney General for Canada 1946AC 32 Mackinnon Mack enzie  Co Ltd vs Audrey D  Cost and Anr 1987 2 SCC 469 referred to
The argument that the second proviso is bad since the authorities have stepped out of the constitutional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the Houses of the Parlia ment has to be rejected because the proviso has been intro duced by the Central Executive Authority under the powers flowing from Article 731 a of the Constitution accord ing to which the executive power of the Union subject to the provisions of the Constitution shall extend to the matters with respect to which Parliament has power to make laws but of course subject to the proviso made thereunder
Needless to point out that whilst by virtue of clause 1 a of Arti cle 73 the executive power of the Union which is co exten sive with the legislative power of Parliament can make laws on matters enumerated in List I Union List and List II Concurrent list to the Seventh Schedule of the Constitu tion under Article 162 of the Constitution the executive power of the State Executive which is coextensive with that of the State legislature can make laws in respect of matters enumerated in List III  State List and also in respect of matters enumerated in List II Concurrent List subject to the provisions of the Constitution
77 D G 31 In the instant case the Central executive authority has not either expressly or impliedly changed the policy of the Government by exercising unreasonable and arbitrary discretion and the present Rule 4 with its newly added second proviso does not repeal the essential features of the pre existing Rule 4 but only limits the ambit of the opera tion of the price 4 under a given situation
Hence there is no substance in the contention that the second proviso is bad and that the central executive authority has trans gressed the constitutional limits
77 H 78 A 4
Article 14 declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India
The cherished principle underlying the above Article is that there should be no discrimination between one person and another if as regards the subject matter of the legislation their posi tion is the same
103 H 104 A 41 Differential treatment does not per se constitute violation of Article 14 and it denies equal protection only when there is no rational or reasonable basis for the dif ferentiation
Thus Article 14 condemns discrimination and forbids class legislation but permits classification 54 founded on intelligible differentia having a rational rela tionship with the object sought to be achieved by the ActRuleRegulation in question
The Government is legiti mately empowered to frame rules of classification for secur ing the requisite standard of efficiency in services and the classification need not scientifically be perfect or logi cally complete
Every classification is likely in some degree to produce some inequality
104 B D RK Dalmia vs Justice Tendolkar   Budhan Choudhry vs State of Bihar   Kumari Chitra Ghosh and Anr
vs Union of India and Ors   State of Jammu  Kashmir vs Triloki Nath Khosa  Ors   AS Sangwan vs Union of India  Akhil Bhartiya Soshit Karamchari Sangh Railway vs Union of India  Ors vs   Deepak Sibal vs Punjab University   Chiranjit Lal vs Union of India  Ameeroo nissa vs Mahboob  Gopi Chand vs Delhi Admin istration   EP Royappe vs Stale of Tamil Nadu   Maneka Gandhi vs Union of India 1978 1 SCC 248 Ramana vs International Airport Authority of India AIR  Union of India vs Tulsiram Patel   Swadeshi Cotton Mills vs Union of India1981 2 SCR 533 Central Inland Water Transport Corporation vs Brojo Nath  Devadasan vs Union of India   Birendra Kumar Nigam and 0rs
vs Union of India WP Nos
220 222 of 1963 decided on 13364 referred to 42 The selections for IAS IFS and IPS Group A  services and group B  service are made by a combined com petitive examination and viva voce test
There cannot be any dispute that each service is a distinct and separate cadre having its separate field of operation with different status prospects pay scales the nature of duties the responsibilities to he post and conditions of service etc
Each of the services is founded on intelligible differentia which on rational grounds distinguishes persons grouped together from those left out and that the differences are real and substantial having a rational and reasonable nexus to the objects sought to be achieved
Therefore once a candidate is selected and appointed to a particular cadre he cannot be allowed to say that he is at par with the others on the ground that all of them appeared and were selected by a combined competitive examination and viva voce test and that the qualifications prescribed are comparable
The classification of services is not based on artificial in equalities but is hedged within the salient features 55 and truly founded on substantial differences
Judged from this point of view it is not possible to hold that the classification rests on an unreal and unreasonable basis and that it is arbitrary or absurd
103C 106C 103 D E 43 It cannot also be disputed that the candidates allocated to Group A  services are more meritorious com pared to candidates allocated to Group B  services
Conse quently those allocated to Group  B  services get lower position compared to those allocated to Group A  services
The pay scales in Group B  services are comparatively less than those meant for IAS IFS and IPS and Central Services Group A 
There is a clear cut separation on the basis of ranking and merit and therefore it cannot be said by any stretch of imagination that both Group A  and Group B  services fail under one and the same category but on the other these services are two distinct and separate catego ries falling under two different classifications
Therefore there is no discrimination whatsoever involved on account of the introduction of the second proviso in question and the said proviso is not ultra vires of Article 14 or Article 16 of the Constitution of India
97 B C 106G 5
In the normal course a candidate belonging to SCST category can enjoy all the benefits under the rules and regulations
But the restriction imposed under the second proviso is only for a specified category of candidates by treating all such candidates at par and without making any exception to the candidates belonging to SCST
The submis sion that the second proviso is an independent one does not merit consideration because the second proviso to Rule 4 begins with the words provided further    which expression would mean that a strict compliance of the second proviso is an additional requirement to that of the substan tive rule 4 and the first proviso
The expression provided further spells out that the first proviso cannot be read in isolation or independent of the second proviso but it must be read in conjunction with the second proviso
89 C E 51 Once the candidates belonging to SC or ST get through one common examination and interview test and are allocated and appointed to a service based on their ranks and performance and brought under the one and the same stream of category then they too have to be treated among all other regularly and lawfully selected candidates and there 56 cannot be any preferential treatment at that stage on the ground that they belong to SC or ST though they may be entitled for all other statutory benefits such as to the relaxation of age the reservation etc
The unrestricted number of attempts subject to the upper age limit is available to the SCST candidates in the normal course but that is subject to the second proviso because when once they are allocated and appointed along with other candidates to a categorypost they are treated alike
Therefore there is no merit in the submission that the second proviso is not applicable to the candidates belonging to SC or ST
89 E G91H 92 A 52 There may be some hard cases but the hard cases cannot be allowed to make bad law
As long as the second proviso does not suffer from any vice it has to be con strued uniformly giving effect to all those falling under one category in the absence of any specific provision ex empting any particular class or classes of candidates from the operation of the impugned proviso and no one can steal march over others failing under the same category
Hence the right of candidates belonging to SC and ST competing further to improve their career opportunities is limited to the extent permissible under the second proviso 10 Rule 4 read with Rule 17 of the CSE Rules
91 F G CA Rajendran vs Union of India  Ors 
   State of Kerala vs NN Thomas   Akhil Bharriya Soshit Karamchari SanghRailway vs Union of India 1963 Suppl
1 SCR 439 Triloki Nath vs State of JK   T Devadasan vs Union of India   Comptroller and Auditor General of India vs KS Jaganna than   Janki Prasad vs State of JK   General Manager vs Rangachan AIR 1962 SC
36 referred to
There is no denying the fact that the civil service being the top most service in the country has got to be kept at height distinct from other services since these top echelons have to govern a wide variety of departments
Therefore the person joining this higher service should have breadth of interest and ability to acquire new knowl edge and skill since those joining the service have to be engaged in multiple and multifarious activities
In order to achieve this object the selectees of this higher civil services have to undergo training in the National AcademyTraining institutes wherein they have to undergo careful programme of specialized 57 training as probationers
The various schemes of training are based on the conviction that splendid active experience is the real training and the selectees are to be trained in the academies in all kinds of work they have to handle afterwards with a band of senior chosen officers
92 H 93 A B 61 The rationale underlying the course at the training centres is that the officers of civil services must acquire an understanding of the constitutional social economic and administrative framework within which they have to function and also must have a complete sense of involvement in the training and thereafter in the service to which he is ap pointed
The initial training is in the nature of providing young probationers an opportunity to counter act their weak points and at the same time develop their social abilities and as such the aspect of training is the most important of all
93 C D Hermer Fines the Theory and Practice of Modern Govern ment United Nations Handbook on Civil Service Laws and Practice referred to
Lila Dhar vs State of Rajasthan  Ors 1981 4 SCC 159 referred to
62 The effort taken by the Government in giving utmost importance to the training programme of the selectees so that this higher civil service being the top most service of the country is not wasted and does not become fruitless during the training period is in consonance with the provi sions of Article 51 A j of the Constitution
77 A 63 There is a dynamic and rational nexus between the impugned second proviso and the object to be achieved