ivil Appeal Nos
1639 40 of 1987
From the Judgment and order dated 20121984 of the Madras High Court in WP No 349 of 1979
AK Sen and AV Rangam for the Appellants
section Rangarajan Ms Asha Rani Sanjay Parikh and Sanjiv Madan for the Respondents
The Judgment of the Court was delivered by SEN J
These appeals by special leave are directed against a judgment of a Division Bench of the Madras High Court dated December 20 1984 reversing the judgment and order of a learned Single Judge dated March 27 1979 and allowing the writ petition filed by respondent No 1 herein Thiru Chaturvedi Badrinath a senior member of the Indian Administrative Service and directing the issuance of a writ of mandamus ordaining the State Government of Tamil Nadu from granting the requisite permission of the Government under r 17 of the All India Services Conduct Rules 1968 for the institution of a suit for damages for defamation by him against respondent No 2 Thiru V Karthikeyan the then Chief Secretary to the State Government of Tamil Nadu by a defamatory statement that he
493 allegedly made to a correspondent of the Indian Express against him
A The facts
At the relevant time respondent No 1 Thiru Badrinath was the Commissioner of Archives  Historical Research Tamil Nadu
On September 71973 he delivered a speech at a function held by the History Association of the Presidency College Madras criticising the time capsule buried in the precincts of the Red Fort at Delhi and said that it was full of distortions of historical facts describing it as neither history nor fiction 
This led to a furore both in Parliament as well as in the national press
The Government feeling greatly embarrassed by the controversy created about the authenticity of the time capsule started disciplinary inquiry against respondent No 1 under rr 6 and 7 of the All India Services Conduct Rules on the view that being a civil servant it was not desirable that he should have participated in a public discussion on the time capsule
However the State Government by a GO dated August 25 1977 dropped the disciplinary proceedings
Just a day before ie On August 24 1977 a signed news item appeared in all the editions of the Indian Express about the controversy regarding the time capsule stating that a Government spokesman charged respondent No 1 as trying to sabotage the civil services from within 
Taking umbrage at the offending utterance respondent No 1 addressed a letter dated August 25 1977 expressing his anguish that such a statement was made by a Government spokesman and desired to know as to who that Government spokesman was and whether he indeed uttered the words and if so whether that reflected the views of the Government
On the same day respondent No 2 in his capacity as the Chief Secretary replied that he had no information to communicate to him on the subject
On December 5 1977 respondent No 1 addressed another letter to respondent No 2 in the form of a representation complaining of the defamatory attack on him demanding that the Government should issue a contradiction through the press
The Government did not accede to the demand
In the meanwhile respondent No 1 apparently addressed a letter to a certain Shastri Ramachandran the press correspondent of the Indian Express asking him to disclose the name of the Government spokesman
The correspondent by his letter dated December 14 1977 informed that the Government spokesman was respondent No 2 who during a telephonic conversation with him had made the offending utterance
There were certain other utterances attributed to respondent No 2 with which we are not concerned
Upon this respondent No 1 by his letter dated December 19 1977 sought permission to meet the Chief Minister and personally place before him his grievance set out in his aforesaid representation
The grievance of 494 respondent No 1 is that the letter was never replied to
Eventually on December 28 1977 respondent No 1 applied for sanction of the Government under r 17 of the Rules seeking permission to institute a suit against respondent No 2 for damages for defamation
This was sought on the ground that in an interview with Thiru Shastri Ramachandran the corresondent of the Indian Express respondent No 2 had charged him with trying to sabotage the civil services from within and that the charge was per se defamatory and was made with intent to bring disrepute to his career as a scholar and historian and caused irreparable damage to his reputation as a civil servant
By the impugned GO dated February 7 1978 the Government refused to grant the permission applied for to respondent No 1
Against the refusal respondent No 1 moved the High Court under article 226 of the Constitution for the issuance of a writ of mandamus and other appropriate writs directions and orders
A learned Single Judge V Ramaswami J by his judgment and order dated January 23 1979 dismissed the writ petition on the ground that respondent No 1 was not entitled to grant of the requisite permission under r 17 of the Rules as a matter of course and it could not be said that the refusal of the Government to grant such permission was arbitrary capricious or on irrelevant consideration
On the contrary he held that the Government refusal was based on proper grounds inasmuch as the Government had taken into account all the relevant considerations including public interest and the interest of maintenance of discipline in the civil service
The learned Single Judge further observed that public interest was certainly a proper ground on which the Government could refuse the permission if they were of the view that grant of such permission would expose another officer to unnecessary harassment through vexatious proceedings or encourage feud among civil servants and that had to be prevented
Aggrieved respondent No 2 preferred an appeal under cl 15 of the Letters Patent
A Division Bench MM Chandurkar CJ and Sathiadev J by its judgment and order dated December 20 1984 allowed the appeal holding that the refusal of the State Government to grant the requisite permission under r 17 of the Rules could not be justified on the ground of public interest
The entire judgment of the Division Bench proceeds on the wrongful hypothesis that the obtaining of prior permission of the Government under r 17 was a condition precedent for the maintainability of a suit for damages
It also manifestly erred in its view that the speech delivered by respondent No 1 at the function was in his official capacity as the Commissioner of Archives  Historical Research and therefore the intended suit fell within the ambit of r 17 of the Rules in 495 asmuch as it was a suit for the vindication of an official act
We are afraid it is difficult to sustain the judgment of the Division Bench
In exercise of the powers conferred by sub section
1 of section 3 of the All India Services Act 1951 the Central Government after consultation with the Government of the States concerned framed the All India Services Conduct Rules
The Rules are a complete code in itself obviously designed to frame a Code of Conduct for the members of the Service to ensure absolute integrity and devotion to duty and responsibility in order that there is a fearless and impartial civil service in existence in the country
They form the bullwork of the executive power of the Union and the States and also form the instrumentality through which such powers have to be exercised
The key provision is the one contained in r 3 which is spinal importance and reads 3
General 1 Every member of the Service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the Service
2 Every member of the Service shall take all possible steps to ensure integrity of and devotion to duty by all Government servants for the time being under his control and authority
3 i No member of the Service shall in the performance of his official duties or in the exercise of powers conferred on him act otherwise than in his own best judgment to be true and correct except when he is acting under the direction of his official superior
ii The direction of the official superior shall ordinarily be in writing
Where the issue of oral direction becomes unavoidable the official superior shall confirm it in writing immediately thereafter
iii A member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible and in such caseit shall be the duty of the official superior to confirm the direction in writing
496 Explanation Nothing in clause i of sub rule 3 shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from or approval of a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities After laying down a rigorous code by framing r 3 to ensure that members of such
service discharge their duties and functions with absolute integrity and do nothing which is unbecoming of a member of the Service the Central Government has provided by rr 4 to 20 the various constraints under which the members of the Service must function
These rules necessarily form part of their conditions of service under sub section
1 of section 3 of the All India Services Act
Rule 4 places a restraint on the use of position or influence to secure directly or indirectly employment of near relations in a private organisation r 5 on taking part in politics and contesting elections r 6 on having connection with the mass media the press or the radio r 7 on engaging in criticism of Government r 8 on giving evidence before any committee person or other authority except with the previous sanction of the Government and where such sanction has been accorded on giving evidence criticising the policy or any action of the Government r 9 on unauthorised communication of information r 10 on asking for or accepting contributions to or raising of public subscription r 11 on accepting gifts r 11A on giving or taking of dowry r 12 on taking part in public demonstration r 13 on private trade or employment r 14 on investment lending and borrowing r 15 on insolvency and habitual indebtedness r 16 on acquisition of property movable or immovable r 17 on having recourse to any Court or the press for the vindication of an official act or character r 18 on convassing for others r 19 on taking a second spouse and r 20 on consumption of intoxicating drinks and drugs
A close analysis of these Rules clearly brings out that the provision contained in r 17 is nothing but a restraint on a member of the Service
Rule 17 of the Rules read with the Explanation thereto provides as follows  17
Vindication of acts and character of members of the Service No member of the Service shall except with the previous sanction of the Government have recourse to any court or to the press for the vindication of official act which has been the subject matter of adverse criticism or attack of a defamatory character
497 Explanation Nothing in this rule shall be deemed to A prohibit a member of the Service from vindicating his private character or any act done by him in his private capacity
Provided that he shall submit a report to the Government regarding such action
 According to its plain terms r 17 is in the nature of a restraint on a member of the All India Services from bringing a suit for damages for defamation for an act done in the exercise of his official duties as a public servant or from going to the press in vindication of his official act or character
explanation to r 17 seeks to restrict the scope and effect of the restraint placed by r 17
No member of the Service is prohibited from vindicating his private character for any act done by him in his private capacity
Proviso thereto however casts on him a duty to report to the Government regarding such action
Analysing the provision of r 17 Sri Asoke Sen learned counsel for the appellants contends that to attract r 17 three conditions must be fulfilled namely 1 The intending plaintiff must be a member of the Service
2 The suit must be for the vindication of his official act or character
3 The official act must be the subject of a defamatory statement
According to the learned counsel though two of the conditions are fulfilled namely 1 that respondent No 1 was a member of the Service and 2 the subject matter viz the statement made by respondent No 2 and alleged to be of a defamatory character was made by him in his official capacity as the Chief Secretary there was non fulfilment of the third condition
He rightly urges that the speech delivered by respondent No 1 criticising the authenticity of the time capsule was merely an expression of opinion on his private capacity
In substance the contention is that r 17 read with the Explanation thereto clearly places such private acts outside the purview of the restraint placed by r 17
The contention to the contrary by respondent No 1 Thiru Badrinath was that it was not open to the appellants to say that r 17 was not attracted and he drew our attention to the concession made by the learned Advocate General as reflected in the judgment of the learned Single Judge The learned Advocate General also stated that the act complained of was an official act and therefore the intended suit was to vindicate an official act which was the subject matter of a defamatory criticism
Therefore we H 498 have to proceed on the basis that the criticism which is A complained of as defamatory related to an official act of the petitioner
In view of this concession he contends that it is now not open to the t appellants to say that r 17 was not attracted
In dealing with these contentions it is
rather pertinent to observe that the learned Single Judge did not record a finding that r 17 of the Rules was not attracted in the facts and circumstances of the case
After setting out the provision contained in r 17 he observes that the requirement of r 17 are that i the act which has been the subject matter of adverse criticism should be an official act and ii the criticism of the attack must be defamatory in character
We are entirely in agreement with the view expressed by the learned Single Judge
No construction other than the one reached by him is possible
During the course of his judgment the learned Single Judge adverts to paragraph 17 of the writ petition where respondent No l has averred that his intended suit was to vindicate his private character and not to vindicate any official act
The case of respondent No 1 therefore throughout has been that r 17 of the Rules was not attracted to the suit and indeed he goes on to aver that he was entitled to file a suit even without the permission of the Government under r 17
However he goes on to say that if a suit were to be filed it might land him into trouble in that disciplinary proceedings might be taken against him for having instituted a suit without previous permission of the Government
On the assumption that such sanction was necessary under r 17 he moved the High Court for grant of an appropriate writ under article 226 of the Constitution apparently by way of ex abundanti cautela
The learned Single Judge did not deal with the scope and ambit of r 17 in view of the concession made by the learned Advocate General
We have no manner of doubt that the appellants are not bound by the concession made by the learned Advocate General before the learned Single Judge
It is unfortunate that the State Government was not properly advised at the earlier stages of the proceedings in insisting upon the view that such permission was required under r 17 and that it was justified in refusing to grant the permission prayed for
The concession made by the learned Advocate General being on a matter of law is not binding
That apart Sri Ashoke Sen learned counsel for the appellants has very fairly accepted the point of view put forth by respondent No 1 in the writ petition that no such permission was required
499 In the premises the decision of the Division Bench appealed from suffers from a serious infirmity
In the instant case respondent No 1 Thiru Badrinath made a speech incidentally at a time when he was holding the post of the Commissioner of Archives  Historical Research at a function organised by the History Association of the Presidency College Madras
He was invited to make a speech on the occasion presumably for his attainments in the field
But the speech delivered by him on the occasion could not be treated to be an official act of his and therefore the suit brought by him against respondent No 2 Thiru V Karthikeyan the then Chief Secretary of Tamil Nadu could not be treated to be a suit for the vindication of his official act
It is common knowledge that persons of erudition and eminence are often times asked to grace such occasions or make a speech and when they do so undoubtedly they give expression to their personal views on various subjects
By no stretch of imagination can it be said that while doing so they act in the discharge of their official duties merely because they happen to hold public office
At the end of the day we wish to mention that Thiru Badrinath stated before us that he had filed the suit in the High Court for damages for defamation against respondent No 2 Thiru V Karthikeyan without waiting for the prior permission of the State Government under r 17 of the Rules and that the suit was filed before the expiry of the period of limitation of one year as provided for by article 75 of the 
He further stated that the Registry of the High Court however returned the plaint with the endorsement that the same be presented after the decision in the writ petition
He drew our attention to the averment in paragraph 22 of his affidavit in reply to the effect I respectfully submit that at the time I had filed WP No 9791978 against Go dated the 7th February 1978 1 had formally presented to the Registry of the Madras High Court a civil suit for defamation against the Chief Secretary
I was advised to do this in order to prevent the time limit for such suits from expiring should the decision in the writ petition be that the defamatory attack on me by Shri Karthikeyan being of a personal kind I was covered by the proviso in Rule 17 and would not therefore require government sanction under Rule 17
Quite correctly after a note being made of the date on which the suit was presented it was returned to me saying that it would have to wait for a decision in the writ petition
Following the judg 500 ment in the writ appeal setting aside the decision in WP9791978 I have been waiting for government sanction
It also transpires that the suit was filed by respondent No 1 without serving a notice as required under section 80 of the Code of Civil Procedure 1908
We refrain from expressing any opinion as to whether the return of the plaint for representation after the decision of the writ petition would save the running of the time
The questions whether the suit is barred by limitation or not or whether the same was competent without a notice under section 80 of the Code are question to be determined by the High Court in the suit
Accordingly the appeals must succeed and are allowed
The judgment and order passed by the Division Bench of the High Court are set aside and that of the learned Single Judge dismissing the writ petition restored
The High Court will now proceed with the suit brought by respondent No 1 in accordance with law
The rights and n contentions of the parties are left open
There shall be no order as to costs
HLC Appeals allowed


Summary:
 In exercise of the powers conferred by Section 2392Ea of the Uttar Pradesh Kshetra Samiti and Zila Parishads Adhiniyam 1961 various Zila Parishads framed a bye law providing that right to trade in carcass utilisation in the rural area of the respective Zila Parishads shall be put to public auction
Such activities comprised of taking of the carcass of dead animals to a specified place skinning of the carcass storage of bones and skins curing and dyeing of such skins and preparation of leather goods
In a writ petition challenging the validity of the said bye law a Single Judge of the High Court struck down the latter part of the bye law framed by one of the Zila Parishads providing for farming out of the privilege of utilisation and disposal of carcass of dead animals on the ground that it created a monopoly in favour of an individual or group of individuals
A Division Bench reiterated that view in two writ petitions filed before it and distinguished the decision of this Court in State of Maharashtra vs Mumbai Upnagar Gramodyog Sangh  taking a contrary view on the ground that the restrictions were reason able within the meaning of article 196 in the context of the thickly populated metropolitan city
The correctness of the said decision of the Division Bench was open to question
Another Division Bench referred the matter to a Full Bench which expressly repelled the aforesaid view and held that it was competent for the Zila Parishads to frame such bye laws in exercise of the powers conferred by section 2392Ea of the Act
539 Against the various judgments and orders of the High Court special leave petitions and appeals by special leave challenging the constitutional validity of the aforesaid bye law were filed in this Court
In SLPC No 1900 of 1981 this Court in order to protect the interests of persons traditionally engaged in the work of skinning tanning etc directed the State Government to frame a Model Scheme for carcass utilisation in the Etawa district at the village panchayat level on an experimental basis and passed certain incidental directions as to the price payable for skins bones and horns
As nothing further was done in partial modification of its earlier orders this Court directed the Zila Parishad Etawa to issue licence to any person who applied for the same
In the meantime the Government of Uttar Pradesh issued a Circular dated June 7 1986 stating that in future the licences for disposal of carcass of animals should be granted only to registered industrial cooperative societies formed by the persons engaged in this work
Disposing of the Special Leave Petitions and civil appeals  HELD It is plain upon the reading of the Circular dated June 7 1986 issued by the State Government that the contract system envisaged by the impugned bye law framed by the different Zila Parishads in the State has been virtually abandoned and the State Government proposes to replace the system of auction by a system of licensing giving preferential right to cooperative societies consisting of members of the traditional occupation for the disposal of carcass of dead animals
544E F In view of the subsequent policy decision taken by the State Government the present controversy no longer survives
It would be open to different Zila Parishads in view of the directive of the State Government to frame the appropriate Bye laws consistent with and for the implementations of the policy declared by the State Government
The Zila Parishads while considering the question shall keep in view the directions issued by this Court on April 15 1983 and also the order passed introducing the licence system in the Zila Parishad Etawa on an experimental basis544F G For a meaningful effectuation of the policy decision of the Government which is taken in the larger interests of a sizeable segment of the weaker sections of the society it is of utmost importance that the 540 work of formation of cooperative society of the members of the traditional occupation who lack the will and the ability to organise themselves should be taken up by the social welfare department of the State Government and every effort should be made to bring the members of the traditional occupation within the fold of these cooperative societies
The social welfare department shall take effective steps to organise such cooperative societies
544H 545A B Wherever it is not possible to implement the policy decision and there is likely to be a loss of revenue or other compelling reason it would be open to the Zila Parishads as a purely transitory measure and with the prior concurrence of the State Government to arrange for carcass utilisation by auction if the Bye laws permit such auction
It is only where for any compelling reason the said policy decision cannot be implemented effectively in any area that the concerned Zila Parishad could with the prior sanction of the State Government continue the present contract system subject to such variation as may be necessary till the cooperative societies are formed
545C D1