tition C No 499 of 1991
Under Article 32 of the Constitution of India
WITH Civil Appeal Nos
4788  4794 of 1992
CS Vaidyanathan K Lahiri PPRao Vishwajeet Singh RB Misra 4 RK Khanna Surya Kant R Singhvi CVS Rao Ms A Subhashini RP Singh SN Terdol A Sharan HK Puri Ms Abha Sharma and KK Lahiri for the appearing parties
The Judgment of the Court was delivered by K RAMASWAMY J
Special leave granted
As the trio raised common questions of law they are disposed of by a common judgment
The 1st petitioner in the Writ Petition is an Association representing the officers of the State Civil Service of UP and petitioner Nos 2 to 17 are its members
some of them and Bihar State Officers are the appellants in the two appeals respectively
On January 19 1984 the association represented to the Govt
of India requesing to remove wide disparity prevailing in different States of promotional avenues from the State Civil Services to All India Administrative Service
The officers from Andhra Pradesh and Kerala on completion of 8 to 9 years of service are becoming qualified for promotion to All India Administrative Service while the officers from States like Uttar Pradesh and Bihar would get chance only after putting 24 to 27 years of service
The Estimate Committee of Seventh Lok Sabha too in its 77th Report highlighted the injustice
A committee of A senior Secretaries constituted by the Union Govt
recommended after due consideration to evolve equitable principles of comparable seniority from different States for promotion to Indian Administrative Service
Pursuant thereto the Central Govt
proposed to amend the Indian Administrative Service Regulation of Seniority Rules 1954 for short the Seniority Rules 
In the meantime the Rules were repealed and replaced by IAS Regulation of Seniority Rules 1987 which came with effect from Nov 6 1987 for short New Seniority Rules 
The first respondent issued Circular letter dated September 9 1986 to the State Govts
indicating amendments for fixation of seniority of officers promoted from State Civil Services  to IAS to give weightage over and above 4 years in the assignment of year of allotment as per the existing relevant rules namely four years for the first 12 years State service with additional weightage of one year for every two to three years  completed service subject to a maximum of five years
After receiving suggestions or comments from State Governments the Central India exercising the power under sub sec
1 of Sec 3 of All India Service Act 1951 for short the Act  amended the New Seniority Rules 1987 which amendment was published in the Gazette of India on February 3 1989 for short the First Amendment Rules 
The proviso thereto was made limiting its operation prospectively from February 3 1989
Putting the proviso and its prospective operation in issue the appellants from UP in Civil Appeal No 4788 of 1992SLP C No 13823 of 1991 filed Original Application No 18 of 1989 in the Central Administrative Tribunal Allahabad at Lucknow Circuit Bench contending that they were promoted in 1980 onwards but by limiting its application to November 6 1987 they were discriminated
Bihar Officers questioned the Rule in OA No 136 of 1989 before the CAT at Patna
Therein the appellants though found to be entitled to the total weightage of 9 years since their juniors were given 1983 as the year of allotment by operation of proviso to Rule 33ii of the First Amendment Rules were given 1983 as the year of allotment
Thereby they were denied 3 years weightage
The Tribunal at Lucknow held that the prospective operation discriminated the Senior State Civil Service Officers but it refused to direct the Union Govt
to amend the Rules with retrospective effect
However the Govt
of India was requested to reconsider the matter to give retrospective operation to the First Amendment Rules
The Tribunal at Patna upheld the rules and dismissed the application
The Officers from Uttar Pradesh through their Association filed the Writ Petition under article 32 of the Constitution seeking writ of certiorari to quash the order dated December 12 1990 made by the Ministry of Personnel Public Grievance and Pension Department and for a mandamus to extend the benefits flowing from the First Amendment Rules to its members promoted prior to January 1988 and to the petitioners Nos 2 to 17 in particular
It is needless to state that the First Amendment Rules would operate with full effect from 1992 while the Promotee Officers promoted between 1988 to 1991 would reap partial benefit
Rule 3 of the Seniority Rules 1954 postulated assignment of the year allotment as per the Rules to every officer appointed to the Indian Administrative Service be it a direct recruit or a Promotee officer
The Promotee officer appointed in accordance with rule 9 of the IAS Recruitment Rules read with regulation 9 of IAS Promotion Regulations shall be allotted an year of allotment next below the junior most direct recruit officer recruited in accordance with rule 7 of the Recruitment Rules Direct Recruitment Rules and who officiated continuously in a senior post from a date earlier than the date of the commencement of such officiation by the Promotee officer
Under the New Seniority Rules 1987 rule 31 postulates that every officer shall be assigned year of allotment in accordance with the provisions hereinafter contained in the rules
The year of allotment of an officer in service at the commencement of the amended Seniority Rules shall be the same as per the rule 32 as has been assigned to him by the Central Govt
in accordance with the orders and instructions in force immediately before the commencement of the New Seniority Rules
Sub rule 3 of Rule 3 provides thus 33 The year of allotment of an officer appointed to the Service after the commencement of these rules shall be as follows 33i the year of allotment of a direct recruit officer shall be the year following the year in which the competitive examination was held Provided that if a direct recruit officer is permitted to join probationary training under rule 51 of the IAS Probation Rules 1954 with direct recruit officers of a subsequent year of allotment then he shall be assigned that subsequent year as the year of allotment
3ii The year of allotment of a promotee officer shall be determined in the following manner a For the service rendered by him in the State Civil Service upto twelve years in the rank not below that of a Deputy Collector or equivalent he shall be given a weightage of four year towards fixation of the year of allotment b He shall also be given a weightage of one year for every completed three years of service beyond the period of twelve years referred to in sub clause a subject to a maximum weightage of five years
In the calculation fractions are to be ignored
c The weightage mentioned in sub clause b shall be calculated with effect from the year in which the officer is appointed to the service Provided that he shall not be assigned a year of allotment earlier than the year of allotment assigned to an officer senior to him in that select list or appointed to the service on the basis of an earlier Select List
33 iii The year of allotment of an officer appointed by selection shall be determined in the following manner a for the first 12 years of gazetted service he shall be given a weightage of 4 years towards fixation of the year of allotment b he shall also be given a weightage of one year for every completed 3 years of service beyond the period of 12 years referred to in sub clause a subject to a maximum weightage of 5 years
In this calculation fractions are to be ignored c the weightage mentioned in sub clause b shall be calculated with effect from the year in which the officer is A appointed to the service Provided that he shall not become senior to another non State Civil Service Officer already appointed in the service
Provided further that he shall not be allotted a year earlier than the year of allotment assigned to an officer already appointed to the service in accordance with sub rule 1 of rule 8 of the Recruitment Rules whose length of class I continuous service in the State Civil Service in the State Civil Service is equal to or more than the length of Class I continuous service of the former in connection with the affairs of the State
A plain and fair reading of the sub rules manifests the Central Govt s intention that the year of allotment of a direct recruit officer shall be the year following the year in which the competitive examination was held
If any such officer was permitted to join probationary training with direct recruit officers of a subsequent year of allotment then he shall be assigned that subsequent year as the year of allotment
In determining the seniority of a promotee officer in assigning year of allotment the service rendered in the State Civil Service upto 12 years as Dy
Collector or equivalent posts weightage of 4 years shall be given
In addition heshe shall also be given further benefit of one year weightage of every completed 3 years of service beyond the period of 12 years subject to a maximum weightage of 5 years
In its calculations fractions are to be ignored
the weightage shall be computed from the year of appointment of the officer to the service
The offending proviso limits the operation of Rule 33iia and b that such an officer shall not be assigned an year of allotment earlier than the year of allotment assigned to the officers senior to him in that select list or appointed on the basis of an earlier select list
Under rule 33 iii also though not relevant for the purpose of the case but serves as an analogy that the year of allotment of an officer appointed by selection shall also be given the year of allotment in the same manner as adumbrated in sub rule 33 ii and its effect also was circumscribed under the proviso that he shall not become senior to another non State Civil Service Officer already appointed to the service
It is therefore clear that the New Seniority Rules were to be operative from November 6 1987 and the First Amendment Rules from February 3 1989 with the result that in assigning the year of A allotment full weightage of 9 years  eligible service was given to the promotee State Civil Service Officers
However the senior officer to himher appointed from the State Civil Service earlier in the same select list or one above him in the previous select list shall remain senior to him
Thereby the proviso averted the effect of pushing an officer who gained entry into IAS service by application of rule of weightage in 33ii of the rules down in seniority
It is settled law that ability merit and suitability are the criteria to select an officer of the State Civil Service for inclusion in the select list for promotion under regulation 9 of the IAS Promotion Regulations 1955 read with rule 9 of the IAS Recruitment Rules 1954
In that behalf no change was brought about
A junior officer who thus superseded a senior State Civil Officer became entitled to carry his year of allotment and became senior to him in the cadre of l
But for the proviso the operation of Rule 33ii the senior officer would have been saddled with the disability to be pushed down in seniority which would have nullified and frustrated the hard earned earlier promotion and consequential effect on seniority earned by dint of merit and ability
Moreover the entry into the service is from different streams and predominantly by direct recruitment and promotion
The direct recruit gets his year of allotment from the succeeding year of his recruitment
The direct recruit officers appointed earlier to 1988 also would be adversely effected in their seniority
Under sec
32 of the Act every rule made by the Central Govt
under sec31 and every regulation made thereunder or in pursuance of any such rules shall be laid as soon as may be after such or regulation is made before each House of Parliament while in session
Before the expiry of the session if both Houses agree to make any modification to such rules or regulations or both Houses agree to make any modification to such rules or regulations or both Houses agree that such rules or regulations should not be made the rule or regulation shall thereafter have effect only in such modified form or be of no effect as the case may be
SO however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or the regulation
Thereby the rules or regulations made in exercise of the power under sec
31 of the Act regulating recruitment and the conditions of service for persons appointed to an All India Service are statutory in character
No statute shall be construed so as to have retrospective operation unless its language is such as plainly to require such construction
The Legislature as its policy give effect to the statute or statutory rule from a specified time or from the date of its publication in the State Gazette
It is equally settled law that court would issue no mandamus to the legislature to make law much less retrospectively
It is the settled cannons of construction that every word phrase or sentence in the statute and all the provisions read together shall be given full force and effect and no provision shall be rendered surplusage or nugatory
I is equally settled law that the mere fact that the result of a statue may be unjust does not entitle the court to refuse to give effect to it
However if two reasonable interpretations are possible the court would adopt that construction which is just reasonable or sensible
Courts cannot substitute the words or phrases or supply casus omissus
The court could in an appropriate case iron out the creases to remove ambiguity to give full force and effect to the legislative intention
But the intention must be gathered by putting up fair construction of all the provisions reading together
This endeavour would be to avoid absurdity or unintended unjust results by applying the doctrine of purposive construction
In Smt
Hire Devi  Ors
vs District Board Shahjahanpur  the constitution bench of this court interpreting sections 70 and 90 of the UP District Board Act in particular the expression orders of any authority whose sanction is necessary held that  No doubt it is the duty of the court to try to harmonise various provisions of an Act passed by the Legislature
But it is certainly not the duty of the court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act
In Nalinakhaya Bysck vs Shyam Suder haldar 7 Ors1953 SCR 533 at 545 this court held that it is not competent to any court to proceed upon the assumption that the Legislature has made a mistake
The court must proceed on the footing that the Legislature intended what it has said
Even if there is some defect in the phraseology used by the Legislature the court cannot aid the Legislature s defective phrasing of an act or add or amend or by construction make up deficiencies which are left in the Act
The approach adopted contra by the High Court was held illegal
In Commissioner of Sales Tax UP vs Auriya Chamber of Commerce Allahabad  at 438 this court held that in a developing country like ours any legal system may permit judges to play a creative role and innovate to ensure justice without doing violence to the norm as set by legislation
But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of in strumentalities
Thus it is settled law that where the intention of statutory amendment is clear and expressive words cannot be interpolated
In the first place they are not in the case needed
If they should be added the statute would more than likely fail to carry out the legislative intent
The words are the skin of the language which the Legislature intended to convey
Where the meaning of the legislative intent is what the statute says to be so
If the language is plain clear and explicit it must be given effect and the question of interpretation does not arise
If found ambiguous or unintended the court can at best iron out the creases
Any wrong order or defective legislation cannot be righted merely because it is wrong
At best the court can quash it if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice
It could thus be held that the legislature intended that the First Amendment Rules would operate prospectively from February 3 1989 the date of their publication in the Gazette of India
Its policy is explicit and unambiguous
Rule 33 ii intended to remedy the imbalances while at the same time the proviso intended to operate prospectively to avert injustice to the officers recruitedpromoted earlier than the officer promoted later to that date
Whether the proviso is violative of article 14 and article 161 of the Constitution of India Undoubtedly all the promotees form the state civil service constitute a class preceding or succeeding or succeeding the First Amendment Rules
The purpose of temporary truce carved out by the proviso is self evident
By dint of merit ability and suitability a junior officer could seal a march over the senior officers in the state civil service and get entry into the Indian Administrative services earlier to the senior officers and thus becomes a member of the Indian Administrative services officer who was superseded and subsequently became qualified for inclusion in the select list after the New seniority Rules or the First Amendment Rules came into force indisputably would be junior in IAS cadre to his erstwhile junior officers in state civil services
If he gets benefit of the free play of the First Amendment Rules it would have the inevitable effect of depriving and he would be pushed down and would again become junior to him in senior officer though had varied length of services but because of late promotion to Indian Administrative service would receive and forego proportionate weightage of past service for a short period till the rules fully become operational
The first Amendment Rules doubtless provided the weightage to a maximum of 9 years and would track back the year of allotment anterior to the date of inclusion in the select list under the Recruitment Rules read with Promotion Regulations
The proviso intended to protect the seniority of the officer promotedappointed earlier than the appellants and its effect would be that till rule 33 ii fully becomes operational graded weightage was given to the promotees
In other words it prevented to get seniority earlier to the date of hisher appointment to the Indian Administrative service
Equally it intended not to let endless compulsive circumstances denied the benefits of full 9 years weightage to officers promoted during 1987 to 1992
The discrimination though is prevented unequals to become equals
The contention of sri PP Rao therefore that invidious discrimination was meted out to senior officers and that they are similarly circumstanced are devoid of force
This Court by a Constitution Bench in the state of Jammu  Kashmir V T N Khosa  at 463 held that the amended rules varying the conditions of service would operate in future and governs the future rights of the existing personnel
The promoted state civil Service Officers who had already the year of allotment in IAS cadre are not discriminated
But the benefit o f full weightage of 9 years was cut down and applied in varied degree to officers promoted during the transitional period to prevent unjust results and to mete out justice to the junior officers or officers promoted earlier and upto 1992
It is equally settled law that in an affirmative action the court strike down a rule which offends the right to equality enshrined in articles 14 and 161 of the Constitution like the one arose in DS Nakara vs Union of India  and B Prabhakar Rao vs state of AP 19852 suppl SCR 379 this court extended parity in an affirmative action by reading the rule down without doing violence to the language or injustice to others
The application of the First Amendment Rule has the inevitable and insiduous effect of doing injustice to the direct recruitpromotee officers or officers promoted earlier to Feb 3 1989 and the proviso avoided such injustice to the date of promotion to IAS the rule to all the senior irrespective of the date of promotion to IAS cadre would land in or lead to inequitous or unjust results which itself is unfair arbitrary and unjust results which itself is unfair arbitrary and unjust offending article 14 of the Constitution
To avoid such unconstitutional consequences the proviso to rule 33 ii of the First Amendment Rules was made
The doctrine or kicking down or picking up put forth in Union of India vs PK Roy at 201 202 equally cannot be extended to the facts of the case
But for the proviso the operation of rule 33 ii would be inconsistent with sec
31A of the Act
Equally though the doctrine of reading down is a settled principle of law its application to the facts of the case would lead to injustice to the officers promoted earlier to the appellants
A writ of mandamus commanding the respondents to give full benefit of weightage of rule 33 ii and b of the First Amendment Rules would amount to direct the executive to disobey the proviso which is now held to be intra vires of the Constitution
In the light of the above discussion no directions could be given to the central Govt
to amend to Rules
Therefore we have no hesitation to hold that though Govt
of India has power to amend the New Seniority Rules by First Amendment Rules prospectively giving weightage of total 9 years services to promotee officers of state Civil services in assigning a year of allotment no direction or mandamus could be issued commanding the Central Govt
To disobey the proviso or to apply the rules retrospectively to all the officers even to word out monetary benefits as contended by sri Vaidyanathan
His further contention that the First Amendment Rules would be applied with effect form the date of the New seniority Rules or date of intimation of the proposed First Amendment Rules to the state Government for limited retrospectivity also cannot be acceded to for the same reasons
In this context it is necessary to note that Sec
31A of the Act which provides 31A The power to make rules conferred by this section shall include the power to give retrospective effect from a date not earlier than the date of commencement of commencement of this Act to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable
 Its bare reading clearly indicates that the Rules made under the Act shall not be given retrospective effect so as to prejudicially affect the interest of any person to whom such rules may be applicable
The attempt of Sri Vidyanathan that this rule may be so read as applicable only to the promotee officers vis a vis the senior promotee officers cannot be accepted
The Lucknow Bench of the CAT glossed over it by adopting strange construction that since the offending proviso to rule 33 ii of the First Amendment Rules would apply to promotee officers inter se  sub section 1 a of section 3 of the Act would not apply to the direct recruits to say the least is disparate construction
There is a distinction between right and interest
No one has vested right to promotion or seniority but an officer has an interest to seniority  But an officer has an interest to seniority acquired by working out the rule
Of course it could be taken away only by operation of valid law
Sub section 1A of sec
3 of the Act enjoins the authorities not to give retrospective effect to such a rule or regulation so as to avoid Prejudicial affect to the interest of any person to whom such rule may be applicable
The operation of law may have the effect of postponing the future consideration of the claims or legitimate expectation of interest for promotion
Take a case as an illustration
Articles 14 161 164 335 and 46 read with proviso to article 309 of the Constitution empowers the President or the Governor to make satutory rules of reservation where there is no adequate representation to persons belonging to scheduled castes and scheduled Tribes in a service or posts in connection with the affairs of the Central Govt
or the state Government
By operation of rule of reservation appointments or promotions given to a Scheduled Caste or Scheduled Tribe officer though prejudicially affect the interest of officers of general category on parity of merit in the larger public interest by the operation of the rule of reservation discrimination in favour of scheduled castes and scheduled Tribes ins constitutionally permissible as class
Therefore the proviso to rule 33 ii of the Amendment Rules is consistent with section 31A of the Act and that therefore it is not ultra vires of the power of the central Govt
nor it offends articles 14 and 161 of the constitution
Counsel for the appellantspetitioners are their contention that there is no vested right to seniority and is variable and defeasible by operation of law
In AK Bhatnagar vs Union of India1991 1 SCR 544 this court held that seniority is an incidence of services and when rules prescribe the method of computation It is squarely governed by such rules
This would be amplified by following hypothetical illustrations
In a direct recruitment the seniority would be arranged in the order of merit and it starts from the date of joining the duty
Suppose A  to D  were appointed on the same day and A  was senior most among them
But A  did not pass the prescribed tests and for varied reasons A s probation was confirmed after a long period
In the meanwhile B  to D  were confirmed B  to D  thereby became senior to A  though appointed in the same day and A  was No I among them
Suppose probation was not declared mala fide resulting in delayed confirmation and A  challenged it in a court of law issued by the court to confirm A  challenged it in court of law and succeeded in proving mala fide action and consequential direction was issued by the court to confirm A  from the date of his appointment
Though B  to D  become seniors to A  later confirmation and the consequential defeasance of acquired seniority
An empolyee has an interest in the accrued seniority which by operation of law also is liable to be varied
by A  later confirmation and the consequential defeasance of acquired seniority
An employee has an interest in the accrued seniority which by operation of law also is liable to be varied
Suppose A  to D  were appointed on the same day by direct recruitment A  and D  are general candidates and B  and C  though far below in merit and yet were assigned 2nd and 3rd places as per roster and D  lost seniority though secured at the competitive examination due to operation of roster system D  became junior to B  and C 
BY operation of law D  s legitimate interest was thereby defeated
suppose in promotion posts also similar situation may emerge A  though senior most in the feeder cadre due to pendency of charges he was superseded by B  to D  and thereby they gained early entry into promoted posts and thereby was promoted
Though B  to D  became initially seniors to A  he was rested to his seniority in D  became initially seniors to A  he was restored to his seniority in promotion posts as well and B  to D  interest was defeated
Suppose the promotion was on the basis of merit and ability D  was found to be more meritorious and was promoted earlier to A  to C  D  thereby would become senior to A  to C  though he was junior most in the feeder service
The right to seniority and interest thereby were varied by operation of law
Suppose B  and C  also have the benefit of reservation in promotion as well and by its application they were promoted earlier to A  though the latter was more meritorious
A  was later on promoted
He cannot claim his seniority over B  and C  who scaled a march over A  and became senior to A  in promoted cadre or service
The seniority of A  thereby was varied
However law itself may protect the legitimate interest in seniority while granting relief to persons similarly circumstanced like the one under sec
31A of the Act read with proviso to Rule 33ii  iii of the First Amendment Rules
It was neither void nor ultra vires offending articles 14 and 161 of the Constitution
Admittedly the draft of the First Amendment Rules as circulated to the State Government did not contain the offending proviso
It is stated in the counter affidavit filed on behalf of the Central Govt
that some of the State Government had suggested to incorporate the proviso and after necessary consultation the proviso was added to the First Amendment Rule
Section 31 of the Act provide thus 31 Regulation of recruitment and conditions of services
1 The Central Govt
may after consultation with the Governments of the State concerned including the State of Jammu and Kashmir and by notification in the Official Gazette make rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Service
 It is thereby clear that sec
31 empowers the Central Govt
to make any rule regulating the recruitment and the conditions of service of All India Service which include amendment from time to time but the rider it engrafted is that the power should be exercised after consultation with the Governments of the State concerned
It is already held that by operation of sub section 2 of section 3 of the Act the rules or regulations are statutory in character
The meaning of the word consultation  was considered in catena of case
This Court in Union of India vs Sankalchand Himatlal Sheth  Anr1977 4 SCC 193 held that the word consult implies a conference of two or more persons or an impact of two or more minds in respect of a topics in order to enable them to evolve a correct or at least a satisfactory solution
In order that the two minds may be able to confer and produce a mutual impact it is essential that each must have for its consideration full and identical facts which can at one contitute both the source and foundation of the final decision
In that case the question related to the transfer of a High Court from one High Court to another
In that context this court considered whether sounding of the Chief Justice of India without meaningful consultation would be proper discharge of the constitutional obligation by the President
In that context the principle of law laid was that the respective view point of the Govt
and the Chief Justice must be known to each other and both were to the discuss and examine the merits of the proposed transfer
The meaning of the word consultation was evaluated in that backdrop
This Court approved the dictum laid by K Subba Rao
J as he then was in RPushpam vs State of Madras AIR 1953 Madras 392
In State of UP vs Manmohan Lal Srivastava  at 542 the word consultation in article 320 of the Constitution of India was considered by a Constitution Bench
It was held that the word consultation did not envisage mandatory character for consultation but the Constitution makers allowed the discretion to the appointing authority to consult the Public Service Commission
But the executive Govt
cannot completely ignore the existence of the Public Service Commission or to pick up and choose cases in which it may or may not be consulted
However prior consultation was held to be not mandatory for removal of a Govt
servant as the Central Govt
has not been tied down by the advice of the UPSC
This court did not extend the rule of consultation to making the advice of the Commission on those matter binding on the Govt
In the absence of a binding character this Court held that non compliance of article 3203c would not have the effect of nullifying the final order passed by the Govt
of removal of the Govt
servant from service
In UR Bhatt vs Union of India AIR 1962 SC 1344 this Court held that the absence of consultation of the Public Service Commission or any irregularity in consultation under article 320 does not effect the ultimate decision taken by the authority under article 311 of the Constitution
In Ram Gopal Chaturvedi vs State of Madhya Pradesh   the same view was reiterated
In N Raghavendra Rao vs Dy
Commissioner South Kanara Mangalore   words prior approval of the Central Govt
in construing the proviso to sec
1157 of SR Act of the words of varying the conditions of service the Constitution Bench held that prior approval would include general approval to the variation in the conditions of service with certain limits indicated by the Central Govt
Same view was reiterated by another Constitution Bench in Mohd Sujat Ali  Ors
vs Union of India
  at 469 471
In Chandramouleshwar Prasad vs Patna High Court  Ors  at 674  675 construing the word consultation in article 233 of the Constitution another Constitution Bench in the context of removal of a District Judge by the Governor on the recommedation of the High Court held that consultation or deliberation is not complete or effective unless the parties thereto ie the State Govt
and High Court make their respective points of view known to each other and discuss and examine the relative merits of their views
If the one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more cannot be said to have been issued after consultation
In that case it was held that the absence of any consultation with the High Court rendered the order to removal dated October 17 1968 passed by the State Govt
illegal
In Narain Sankaran Mooss vs State of Kerala  Anr   the facts were that the State Govt
 exercising the power under Sec 4 1 of the Electricity Supply Act cancelled the licence of the appellant without consulting the Electricity Board
The question was whether cancellation would be ultra vires of the power
While examining that question this court considered whether consultation was mandatory or directory and held that the revocation of the licence trenches into the right to carry on business guarantee under article 191g of the Constitution
Therefore when the Act prescribed prior consultation of the Electricity Board such condition was incorporated to prevent abuse to power and to ensure just exercise of the power
Section 4 of the Electricity Supply Act enjoins in public interest to consult the Board before revocation of the licence
Consultation provided an additional safeguard to the license and when revoking the licence the Govt
act in two stages
Before and after the explanation was received and when the Govt
considered the explanation it is mandatory that it should consult the Electricity Board and non consultation rendered the order as void
Consultant of the Board was therefore held to be a condition precedent for making order of revocation
In Naraindas Indurkhya vs State of MP  Ors  MP Madhyamik Siksha Adhiniyam Act 1973 provided that before prescribing the text books the Chairman of the Board was to be consulted
Its infraction was considered and held that any attempted exercise of the power by the State Govt
without complying with this condition would be null and void
On the facts of the case it was held that the notification issued by the State Govt
without consultation of Chairman was invalid being in breach of mandatory requirement of the proviso to Sec4 1 of the Act
In Hindustan Zinc Ltd vs AP Electricity Board  Ors  the revision of tariff was effected without consulting the Consultative Council
This Court held that the revision of tariff was a question of policy under Sec 78A of the Indian Electricity Supply Act
The failure of the Board to consult the Consultative Council whether rendered the revision of tariff invalid
It was held that the consequence of non compliance of Sec
16 was not provided and the nature of the function of the Consultative Council and force of its advice being at best only persuasive it cannot be said that the revision of tariff without seeking the advice of the Consultative Council rendered the revision of tariff itself invalid
On the other hand the Board after revision of the tariff has to place the revised tariff on the table of the House or Houses of the Stat Legislature and such statement is open to discussion therein the Board is bound to take into consideration such modification if made or any comments made on such statement by the State Legislature
Under those circumstance it was held that the non compliance of Sec 165 did not render the revision of tariff invalid
In Rollo  Anr
vs Minister of Town  Country Planning 1948 1 All Eng
Report of the Towns Act 1946 envisages the Minister of Town  Country Planning after consultation with the local authorities if satisfied that it is expedient in the national interest that any area of land should be developed as a new town by the Corporation established under the Act he may make an order designating that area as a site of the proposal of the new town
On October 7 1946 press notice was issued giving the date of meeting of the representatives of the local authorities and the Minister explained in the meeting what he had in his mind in arriving at the boundaries of the area
Objections were raised and public enquiry was held
But actual explanation was not sought from any local authorities
In those circumstance contention was raised that there was no consultation as adumbrated under Sec
Repelling the contention the House of Lords held that in the meeting the local authorities clearly were informed of the general nature of the proposal the areas suggested it size and what the Minister wished and intended to do
Discussion was followed
Minutes were prepared and press notice was issued stating what had happened
In those circumstance it was held that there was consultation and the requirement was complied with
The ratio of Morris J in Elecher  Ors
vs Minister of Town  Country Planning 1947 2 All
Reports 496 was approved
The same view was reiterated in Sinfield  Ors
vs London Transport Executive Law Report 1970 Chancery Divn
In Derham  Anr
vs Church Commissioners of England 1954 Appeal Cases 245 the Judicial Committee was to consider the question of consultation with Church Commissioners of effecting the union of beneficers under Sec
31 of the Pastoral Reorganisation Measure 1949 which postulates of consultation so far as is practicable
Construing the language it was held that a meeting was held explaining the proposed scheme the members of the Church though opposed the scheme it was approved
As such it was held that the action was valid and their was proper consultation
In Port Louis Corporation vs Attorney General of Mauritius 1965 Appeal Cases 1111 the local Govt
of Mauritius was empowered under the Local Government Ordinance 1962 by sec
73 1 to alter the boundries of any town district or village after consultation with the local authorities concerned
The Governor and Council of Ministers in May 1963 had in their minds to alter the boundaries of Port Louis so that the villages surrounding Port Louis Township would be embraced within and would enlarge the area of the town of Port Louis
The Minister by a letter asked the views of the local authorities enclosing the details of the proposed alternation and the map
Majority Councillors had resigned on the ground that they has no mandate to express any views
On subsequent nomination those Councillors raised certain points and asked for information which was duly complied with
Further information was called for but the Minister refused to extend time nor supplied information
The Governor in Council has issued a proclamation extending the boundaries of Port Louis Action was initiated by the local authorities for declaration that the proclamation was ultra vires null and void in so far as it related to the extended boundries of the town of Port Louis contending that there had been no consultation as required by Sec
73 1 of the Ordinance
The Judicial Committee construing the word after consultation in that setting held that the local authorities has received a clear proposal
The failure to supply information by detailed answers to their questions would not render the proclamation as invalid
Accordingly uphold the action as affirmed by the Supreme Court of Mauritius
The ratio in Union of India  Ors
vs Dr section Krishna Murthy  Ors   renders little assistance to the appellants
In that case the question was the year of allotment under the Forest Service Regulation of Seniority Rules 1968
By fixation of the year of allotment it had retrospective effect from the dated when the promotee was brought into select list or the date of appointment whichever was later
Under those circumstance it was held that retrospective operation of the rules did not prejudicely affect any vested right much less any fundamental rights of the officers recruited from the State service
The result of the above discussion leads to the following conclusions 1 Consultation is a process which requires meeting of minds between the parties involved to evolve a correct or at least satisfactory solution
There should be meeting of mind between the proposer and the persons to be consulted on the subject of consultation
There must be definite facts which constitute foundation and source for final decision
The object of the consultation is to render consultation meaningful to serve the intended purpose
Prior consultation in that behalf is mandatory
2 When the offending action effects fundamental rights or to effectuate built in insulation as fair procedure consultation is mandatory and non consultation renders the action ultra vires or invalid or void
3 When the opinion or advice binds the proposer consultation is mandatory and its infraction renders the action or order illegal
4 When the opinion or advice or view does not bind the person or authority any action or decision taken contrary to the advice is not illegal nor becomes void
5 When the object of the consultation is only to apprise of the proposed action and when the opinion or advice is not binding on the authorities or person and is not bound to be accepted the prior consultation is only directory
The authority proposing to take action should make known the general scheme or outlines of the actions proposed to be taken be put to notice of the authority or the persons to be consulted have the views or objections taken them into consideration and thereafter the authority or person would be entitled or hashave authority to pass appropriate orders or take decision thereon
In such circumstance it amounts to an action after consultation
6 No hard and fast rules could be laid no useful purpose would be served by formulating words or definitions nor would it be appropriate to lay down the manner in which consultation must take place
It is for the Court to determine in each case in the light of its facts and circumstances whether the action is after consultation was in fact consulted or was it a sufficient consultation
7 Where any action is legislative in character the consultation envisages like one under Sec
31 of the Act that the Central Govt
is to intimate to the State Governments concerned of the proposed action in general outline and on receiving the objections or suggestions the Central Govt
or Legislature is free to evolve its policy decision make appropriate legislation with necessary additions or modification or omit the proposed one in draft bill or rules
The revised draft bill or rules amendments or additions in the altered or modified form need not again be communicated to all the concerned State Governments nor have prior fresh consultation Rules or Regulations being legislative in character would tacitly receive the approval of the State Government through the people s representative when laid on the floor of each House of Parliament
The Act or the Rule made at the final shape is not rendered void or ultra vires or invalid for non consultation
The proposal for amending the new Seniority Rules in the draft was only for inviting discussion and suggestions on the scope and ambit of the proposed law and the effect of the operation of the First Amendment Rules
Keeping the operational effect in view the proposed amendment could be modified or deleted or altered
The Central Govt
is not bound to accept all or every proposal or counter proposal
Consultation with the Ministry of Law would be sufficient
Thereby the Central Govt
is not precluded to revise the draft rules in the light of the consultation and advice
The Central Govt
had prior consultation with the State Governments concerned and the Law Department
In the light of the above principle and applying them to the facts of this case we have no hesitation to hold that the general consultation has by the Central Govt
with the State Govts
and Union Territories was sufficient and it was not necessary to have prior consultation again to bring the proviso on statutes as part of the First Amendment Rules
The contention of Sri Vaidyanathan that the proviso is rendered void for the absence of consultation of the State Govts
is devoid of any force
By operation of sub sec
2 of Sec 3 the rules laid on the floor of each House of the Parliament
There were no suggestions or alterations made by either House of Parliament
Under the circumstance we have no hesitation to hold that the failure to consult all the State Governments or Union Territories on the proviso to rule 33ii or iii of the First Amendment Rules does not render the proviso ultra vires invalid or void
Accordingly we do not find any merit to issue the writ as prayed for in the writ petition
The Writ Petition and Civil Appeal arising out of SLP C No 1246990 are dismissed
The appeal arising out of SLP C No 1382391 is allowed and the order of the Central Administrative Tribunal Allahabad Bench at Lucknow is set side
But in the circumstance parties are directed to bear their own costs throughout
WP C No 49991 dismissed
CA No 479492 dismissed
CA No 478892 allowed


Summary:
A large number of doctors employed in the State Health Services of the appellant State were leaving India for higher studies after obtaining leave for a couple of years and thereafter they were neither returning to India nor were sending any further applications for extension of leave
This was causing considerable hardship to the public
As this trend persisted the state authorities wanted to take appropriate corrective steps
Since the absentee doctors had not informed the department of their addresses personal service of notice on such doctors could not be effected
A general notice was published and press communique was issued in newspapers in India and abroad calling upon them to offer their explanations for remaining absent from service for more than five years within the specified time and indicating that on their failure to do so the services of 320 doctors would be terminated with the concurrence of the State Public Service Commission and the approval of the State Cabinet
Services of doctors were accordingly terminated
The respondent filed a Public Interest Litigation before the High Court stating that the particular doctor was unwell and was in need of financial help
The services of this doctor had also been terminated along with others
The details as to how she was taken ill and admitted in a hospital outside the country and then brought back to India for further treatment in the State were given
The High Court directed the appellants to pay the post retirement benefits to the medical officer doctor concerned
Earlier the High Court had also directed payment of Rs2000 to the respondent writ petitioner as relief to the doctor concerned
Allowing the appeal of the State this Court HELD 11
It is not known how the respondent writ petitioner became so interested in the beneficiary who was being taken care of in the hospital and receiving attention of eminent doctors and who had atleast a brother with whom she was staying for sometime
The respondent writ petitioner could not tell about the other family members and relations of the beneficiary or how and why in this background the respondent chose the beneficiary for showering her benevolence in preference over the far more needy old and sick persons who are unfortunately in large number in the appellant State
The judgment under challenge also does not indicate any reason
360 B D 12
Since there is no reason at all in the order under challenge or in the writ petitioner which may justify the relief granted in the present case the writ petition should have been dismissed
360 H 361 A 13
There is also no reason to accede to the request made on behalf of the respondent that the cheque for Rs 2000 mentioned in the first paragraph of the High Court s orders drawn in the name of the beneficiary may be directed to be drawn in the name of the respondent writ petitioner for the beneficiary s fingers had since become stiff and hence the cheque could not be encashed
There is no suggestion to the effect that the beneficiary has no relation of her own who can look after her needs
361 B 2
There is no doubt that the State should strive to promote the welfare of its people so that at least the bare necessities of life are met and the needy and the sick are properly looked after
This can be done only by adopting a welfare scheme in the interest of the general public and since the resources of the State are not unlimited the State is not expected in absence of relevant reasons to choose an individual for special treatment at the cost of the others
Ordinarily therefore it is desirable for the State authorities to take up the individual cases coming to their notice and do their best in accordance with the policy decision of general application
This will ensure equal treatment to all of course in accordance with the individual needs
Unless all relevant materials are placed by an applicant it will be onerous task for the Court to take upon itself to determine the extent of help a particular individual has to get
The circumstance that a particular person is smart enough to approach the Court or is so fortunate to get somebody to do that on his or her behalf cannot be a valid ground to divert the State funds to his or her advantage at the cost to corresponding disadvantage to others
A judicial process should not be allowed to be used for the satisfaction of an individual s whims pious though they may apparently look
360 E F G