Holding

The proviso to Rule 3(3)(ii) of the First Amendment Rules is intra‑vires, constitutionally valid, and must operate prospectively; it cannot be made retrospective, and no mandamus can be issued to compel such retrospective application.

Summary

The petitioners, an association of Uttar Pradesh State Civil Service officers, challenged the First Amendment Rules (1989) to the IAS (Regulation of Seniority) Rules, arguing that the proviso limiting Rule 3(3)(ii) to prospective operation denied them full weightage of seniority and violated Articles 14 and 16(1) of the Constitution. The Court examined whether the Central Government could give retrospective effect to the amendment, whether the proviso required prior consultation with all States, and whether the amendment conflicted with Section 3(1A) of the All India Services Act. It held that the proviso was intra‑vires, consistent with the Act, and was intended to operate only prospectively to avoid upsetting seniority of earlier promotees. Consequently, no mandamus could be issued to compel retrospective application. The Court dismissed the writ petition and one appeal, but allowed the appeal that sought to set aside the CAT order, affirming the validity of the amendment.

Issues considered

Whether the proviso to Rule 3(3)(ii) of the First Amendment Rules, which limits its operation to prospective effect, is constitutionally valid under Articles 14 and 16(1).
Whether the First Amendment Rules can be given retrospective effect to officers promoted before 3 February 1989.
Whether the Central Government’s power under Section 3 of the All India Services Act requires prior consultation with all State Governments for the proviso.
Whether the proviso violates Section 3(1A) of the All India Services Act which bars retrospective effect prejudicial to any person’s interest.
Whether the petitioners possess a vested right to seniority that cannot be altered by subsequent rule‑making.

Legislation cited

All India Services Act, 1951s. Section 3(1), s. Section 3(1A), s. Section 3(2)
Constitution of Indias. Article 14, s. Article 16(1)
First Amendment Rules, 1989 to the IAS (Regulation of Seniority) Rules
Indian Administrative Service (Regulation of Seniority) Rules, 1987

Subjects

senioritypromotionIndian Administrative ServiceAll India Services Actprospective legislationconstitutional validityequalityconsultationrule‑makingvested right

Judgment

INDIAN ADMINISTRATIVE SERVICE (S.C.S.) A
ASSOCIATION, U.P. AND ORS.
v.
UNION OF INDIA AND ORS.

NOVEMBER 11, 1992
B
[A.M: AHMADI, M.M. PUNCHHI AND K. RAMASWAMY, JJ.]

Indian Administrative Service (Regulation of Senion'ty)(First Amend-
ment) Rules, I989:

Rule 3(3)(ii) Seniority of promotees/direct recntits assigning year of
c
allotn1e11t--Procedure-Legis/ative intention tt-·hat is-Junior officer prontoted
on nierit superseding seniors-Year of allotment of such officer-Fixation of

Interpretation of Stahttes:

l.A.S. (Regulation of Seniority) (First Amendment) Rules, I981}-Ru/e D
3(3) (ii) proviscr--<:onstntction-Whether prospective in operation-Legislative
inte11tion-Wltat is.

Constitution of India, 1950:

Articles I4, 16 and Rule 3(3)(ii), proviso of I.A.S. (Regulation of E
Senian·ty) (First An1end1nent) Rules, 1989-Constitutional validity of-
Wliether inconsistent with Section 3( IA) of the All India Services Act, I957.

All India Services Act, I95I:

Section 3( lA)--Rules made under-Rule 3(3)(ii) proviso of the First F
An1endn1ent Rules, 1989-<:onsultation--Object, in1portance and nature
of-Fail11rc to consult all States and Union Tcnitories-Whether proviso to
Rule 3 (3 J unco11stifltrional.

On 19.1.1984, the Association [petitioner No. l in W.P. (0 No. 499
of 1991] requested the Union Government (Respondent) to remove the G
disparity prevailing in different states of promotional avenues from State
Civil Services to A.II India A.dministrative Sen·ice.

A Committee of Senior Secretaries, constituted by the Union
Government, recommended an equitable principle of comparable seniority
from different States for promotion to the Indian Administrative Service. H
389
390 SUPREME COURT REPORTS [1993] 2 S.C.R.

A The I.A.S. (Regulation of Seniority) Rules, 1987 came into force with
effect from 6.11.1987, repealing the old Rules.

In a Circular dated 9.9.1986 issued by the respondent-Union
Government directed the State Governments to give weigbtage over and
above rour years the assignment or year or allotment as per the existing
B rules, namely, four years for the first U years State service with additional
weigbtage one year for every two to three years completed service subject
to a maximum or live years.

union Government amended and published the New Seniority
C Rules, 1987, arter considering the suggestions from. the State Govern-
ments. The First Amendment Rules was published in the Gazette or India
on 3.2.1989 which was given prospective operation from 3.2.1989.

The appellants in C.A. No. 4794 of 1992 questioned Rule 3(3) (ii)
proviso orthe First Amendment Rules, in an application before the C.A.T.
D at Patna. They contended that though they were found to be entitled to the
total weigbtage or 9 years since the juniors were given 1983 as the year of
allotment by operation of proviso to Rule 3(3)(ii) of the First Amendment
Rules, were given 1983 as the year of allotment and thereby the appellants
were denied the 3 years weigbtage.

E . The Tribunal upheld the Rules and dismissed the application,
against which appeal - C.A. No. 4794 of 1992 - was filed in this Court.

The appellants in C.A. No. 4788 of 1992, some members of the
Association - petitioner No. 1 of the W.P. (C) No. 499 of 1991 - filed an
application before the Central Administrative Tribunal at Lucknow con-
F tending that they were promoted in 1980 onwards, and they were dis-
criminated in fixation of their seniority.

The Tribunal held that the prospective operation of the 1987 Rules
discriminated the Senior State Civil Service Officers, but refused lo direct
G the Union Government to amend the Rules but retrospective effect. How-
ever, it requested the Government of India to reconsider the matter and
to give retrospective operation to the First Amendment Rules. This
decision was questioned ht an appeal - C.A. No. 4788 of 1992.

In WP(C)No. of 499 of 1991, Petitioner No. 1 - An Association
H representing the officers of the U.P. State Civil Service - and petitioners
I.AS. ASSCN. v. U.O.l. 391

2-17, its members filed the writ petition under Article 32 of the Constitu- A
lion to quash the order of the respondent - Union Government dated
12.12.1990, and for a direction to extend the benefit flowing from the First
Amendment Rules to its members promoted prior to January 1988. It was
contended that the First Amendment Rules operated with effect from 1992,
whereas the promotee Officers were promoted between 1988 to 1991 and
that they would get only partial benefit. B

As these cases raised common questions of law, they were beard
together.

Dismissing WP(C)No. 499/1991 and C.A. No. 4794 of 1992, and C
allowing C.A. No. 4788 of 1992, this Conrt,

HELD: 1.01. The entry into the service is from different streams and
predominantly by direct recruitment and promotion. The direct recruit
gets bis year of allotment from the succeeding year of his recruitment. The
direct recruit officers appointed earlier to 1988 also would be adversely D
affected in their seniority. (403-D)

1.02. Rule 3(3) 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
E
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. [400-G-H]

1.03. In determining the seniority of a pron1otee officer in assigning
year of allotment, the senice rendered in the State Civil Service upto J.2 F
years as Dy. Collector, or equivalent posts, weightage of 4 years shall be
given. In addition he/she 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 G
of appointment of the officer to the service. (402-E]

1.04. The offending proviso limits the operation of Rule 3(3) (ii) (a)
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. [402-F) H
392 SUPREME COURT REPORTS (199,2) SUPP. 2 S.C.R.

A LOS. The proviso aims that the State Civil Service senior officer,
though had varied length of services, but because oflate promotion to Indian
Administrative Service, would receive and forego proportionate weightage of
past service for a short period till the rules fully become operational. [406-B]

1.06. The first amendment rules doubtless provided the remedy to
B remove existing discriminatory results by giving graded 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. [406-C]

1.07. The Proviso intended to protect the seniority of the officers
c promoted/appointed earlier than the appellants and its effect would be that
till rule 3(3)(ii) fully becomes operational graded weightage was given to the
promotees. In other words it prevented to get seniority earlier to the date of
his/her appointment to the Indian Administrative Service. Equally it in-
tended not to let endless chain reaction occur to unsettle the settled interests
D in seniority. These compulsive circumstances denied the benefits of full 9
years weightage to officers promoted during 1987 to 1992. The discrimina-
tion, though is discernible, but inevitable to ensure just results. In other
words the proviso prevented unequals to become equals. [406-D-E]

1.08. The new Seniority Rules were to be operative from November 6,
E 1987 and the First Amendment Rules from February 3, 1989 with the result
that in assigning the year of allotment, full weightage of 9 years' eligible
service was given to the promotee State Civil Service Officers. However, the
senior officer to him/her 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. There~y the proviso averted the effect of pushing an officer
F who gained entry into IAS service by application of rule ofweightage in Rule
3(3)(ii) of the Rules down in seniority. [402-H, 403-A-B]

1.09. By dint of merit, ability and suitability a junior officer could
steal a march over the senior omcers in the State Civil Service and get
G entry into the Indian Administrative Service earlier to the senior officers
and thus becomes a member of the Indian Administrative Service. There-
by he becomes senior in service. The senior State Civil Service 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 I.AS. cadrr. to his
H erstwhile junior officers in State Civil Service. If he gets the benefit of the
I.AS. ASSCN. v. U.0.1. 393

free play of the First Amendment Rules, it would have the inevitable effect A
of depriving the promoted erstwhile junior officer of the benefit of early
promotion and he would be pushed down and would again become junior
to him in the Indian Administrative Service. (405-G-H; 406-A-B)

1.10. A junior officer who superseded a senior State Civil Officer
became entitled to carry his year of allotment and became senior to him B
in the cadre of l.A.S. But for the proviso, the operation of Rule 3(3)(ii),
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. [403-E) C

2.01. No statute shall be construed so as to have retrospective
operation unless its language is such as plainly to require such a construe·
tion. 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. (404-A) D

2.02. Court would issue no mandamus to the legislature to make
law much less retrospectively.

2.03. It is the settled cannons of construction that every word,
E
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. [404-B)

2.04. The mere fact that the result of a statute may be unjust, does
not entitle the court to refuse to give effect to it. However, if two reasonable F
interpretations are possible, the Court would adopt that construction
which is just, reasor.able 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 G
up fair construction of all thP. provisions reading together. This endeavour
would be to avoid absurdity or unintended unjust results by applying the
doctrine or purposive construction. (404-C-D]

2.05. Where the intention of :ttatutory amendment is clear and
expressive, words cannot be interpolated. In the first place they are not, in H
394 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A 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. [405-B]

2.06. Where the meaning of the statute is clear and sensible, either
with or without omitting the words or adding one, interpolation is im-
B proper, since the primary purpose 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. [405-C]

2.07. If found ambiguous or unintended, the court can at best iron
c 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. (405-D]

2.08. The Legislature intended that the First Amendment Rules
D
would operate prospectively from Fe'>ruary 3, 1989, the date of their
publication in the Gazette of India. Its policy is explicit and unambiguous,
Rule 3(3)(ii) intended to remedy the imbalances while at the same time the
proviso intended to operate prospectively to avert injustice to the officers
recruited/promoted earlier than the officer promoted later to that date.
E The proviso carved out an exception to ward off injustice to the olficers
that became members of l.A.S. earlier to those dates. [405-E]

Smt. Hire De;·i & Ors. v. District Board, Shahjahanpur, [1952] SCR
1131; Na!inakhaya Bysck v. Shyam Sunder Haldar & Ors., (1953] SCR 533
F at 545 and Commissioner of Sales Tax, U.P. v. Auriya Chamber of Com-
merce, Allahabad, (1986] 2 SCR 430 at 438, referred to.

3,01. The application of the First Amendment Rules has the in·
evitable and insiduous effect of doing injustice to the direct
recruit/promotee officers or ollicers promoted earlier to Feb. 3, 1989 and
-
G the proviso avoided such unjust results. Giving retrospective effect or
directing to apply the rule to all the seniors irrespective of the date of
promotion to l.A.S. cadre would land in or lead to inequitous or unjust
results which itself is unfair, arbitrary and unjust, offending Art. 14 of the
Constitution. To avoid such unconstitutional consequences the proviso to
H Rule 3(3)(ii) of the First Atnendment Rules was made. (407-C]
I.AS. ASSCN. v. U.0.1. 395

3.02. But for the proviso the operation of Rule 3(3)(ii) would he A
inconsistent with Sec. 3(1A) of the Act. Equally though the doctrine 'Read·
ing 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 appel-
lants. A writ of mandamus commanding the respon\ients to give full
benefit of weightage of Rule 3(3)(ii)(a)&(b) of the First Amendment Rules
would amount to direct the executive to disobey the proviso which is now
B
held to be intra vires of the Constitutions. (407-D)

3.03. The proviso to Rule 3(3)(ii) of the First Amendment Rules is
consistent with section 3(1A) of the Act and it is not ultra vires of the power
of the Central Govt. nor it offends Arts. 14 and 16(1) of the Constitution. C
(409-A]

3.04. There is a distinction between right and interest. No one has a
vested right to promotion or 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. (408-E] D
3.05. Law itself may protect the legitimate interest in seniority while
granting relief to persons similarly circumstanced like the one under sec.
3(1A) of the Act read with proviso to Rule 3(3) (ii) & (iii) of the First
Amendment Rules. It was neither void nor ultra vires offending ¥ts. 14 E
and 16(1) of the Constitution. (410-C]

State of Jammu & Kashmir v. T.N. Khosa, (1974) 1 SCR 771 at 779;
J. Kumar v. Union of India, (1982] 3 SCR 453 at 463 and Union of India v.
P.K Roy, (1968) 2 SCR 186 at 201-202, distinguished.
F
D.S. Nakara v. Union of India,. [1983] 2 SCR 165; B. Prabhakar Rao
v. State of A.P., (1985] 2 Supp. SCR 379 and A.K. Bhatnagar v. Union of
India, (1991) 1 SCC 544, referred to.

4.01. Consnltation is a process which requires meeting of minds
between the parties involved in the process of consultation on the material G
facts and points involved to evolve a correct or at least satisfactory solution.
There should be meeting of minds 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. (415-E]

4.02. The object of the consultation is to render consultation mean· H
396 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A ingful to serve the intended purpose. Prior consultation in that behalf is
mandatory. (415-E]

4.03. When the offending action effects fundamental rights or to
effectuate built in insulation, as fair procedure, consultation is is man-
datory and non-consultation renders the action ultra vires or invalid or
B void. (415-F]

4.04. When the opinion or advice binds the proposer, consultation is
mandatory and its infraction renders the action or order illegal. [415-F)

4.05. When the opinion or advice or view does not bind the person
c or authority, any action or decision taken contrary to the advice is not
illegal, nor becomes void. (415-G]

4.06. When the object of the consultation is only to apprise of the
proposed action and llhen the opinion or advice is not binding on the
D authorities or person and is not bound to be accepted, the prior consult-
ation 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 there-
after, the authority or person would be entitled or has/have authority to
E
pass appropriate orders or take decision thereon. In such circumstances
ii amounts to an action "after consultation", (415-H, 416-A-B]

4.07. No hard and fast rule could be laid, no useful purpose would
be served by formulating words or definitions nor would it be appropriate
F or 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 cir-
cumstances whether the action is "after consultation\ "was in fact con-
sulted" or was it a "sufficient consultation", [416-C]
-
4.08. Where any action is legislative in character, the consultation
G envisages like one under Sec. 3 (1) of the Act, that the Central Govt. is to
intimate to the State Governments concerned of the proposed action in
general outlines 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
H the proposed one in draft bill or rules. The revised draft bill or rules,
l.A.S. ASSCN. v. U.O.l. 397

amendments or additions in the altered or modified from need not again A
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 Governments through the
people's representatives when laid on the Door of each House of Parlia~
ment. The Act or the Rule made at the final shape is not rendered void or
ultra vires or invalid for non-consultation. [416-D-FJ
B

4.09. 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. [416-G]
c
4.10. 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. [416-H] D
4.11. The general consultation had by the Central Govt. with the
State Govts. and lfnion Territories was sufficient and it was not necessary
to have prior consultation agairl to bring the proviso on statutes as part
of the First Amendment Rules. (417-B]
E
4.12. By operation of sub-sec. (2) of Sec. 3 the rules were laid on the
floor of each House of the Parliament. There were no -suggestions or
alterations made by either House of Parliaments. Thus the First Amend·
men! Rules stood approved by the Parliament. (417-C]

4.13. The failure to consult all the State Governments or Union F
Territories on the proviso to Rule 3(3)(ii) or (iii) of the First Amendment

-· Rules does not render the proviso ultra vires, invalid or void. (417-D]

Union of India v. Sanka/chand Himatla/ Sheth & Anr., (1977] 4 SCC
193; R.Pushpam v. State of Madras, AIR 1953 Madras 392; State of U.P. v. G
Manmohan Lal Srivastava, (1958] SCR 533 at 542; U.R. Bhatt v. Union of
India, AIR 1962 SC 1344; Ram Gopal Chaturvedi v. State of Madhya Pradesh,
(1970] l SCR 472; N. Raghavendra Rao v. Dy. Commissioner, South Kanara,
Mangalore, (1964] 7 SCR549;Mohd. SujatA/i& Ors. v. Union of India, (1975]
l SCR 449 at 469 · 471; Chandramou/eshwaf Prasad v. Patna High Court &
Ors., (1970] 2 SCR 666 at 674-675; Narain Sankaran Mooss v.State of Kera/a H
398 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
A &Anr., [1974] 2 SCR 60;Naraindas lndurkhya v.Stateof M.P. & Ors., (1974]
3 SCR628; Hindustan Zinc Ltd. v.A. P. Electricity Board& Ors., [1991) 3 SCC
299; Rollo & Anr. v. Minister of Town & Country Planning, [1948) l All Eng.
Reports 13; Electher & Ors. v. Minister of Town & Country Planning, [1947) 2
All. Eng. Reports 496; Sinfield & Ors. v. London Transport Executive, Law
Reports 1970 Chancery Divn., Derham & Anr. v. Church Commissioners for
B England, 1954 Appeal Cases 245 and Port Louis Corporation v. Attomey
General of Mauritius, 1965 Appeal Cases llll, referred to.

Union of India & Ors. v. Dr. S. Krishna Murthy & Ors., [1989) 4 SCC
689, distinguished.

c ORIGINAL JURISDICTION : Writ Petition (C) No. 499 of 1991.

(Under Article 32 of the Constitution of India).
WITH
'..:ivil Appeal Nos. 4788 & 4794 of 1992.
D
C.S. Vaidyanathan, K. Lahiri, P.P.Rao, Vishwajeet Singh, R.B. Misra,
R.K. Khanna, Surya Kant, R. Singhvi, C.V.S. Rao, Ms. A. Subhashini, R.P.
Singh, S.N. Terdol, A. Sharan, H.K. Puri, Ms. Abha Sharma and K.K.
Lahiri for the appearing parties.

E 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.
F
The 1st petitioner in the Writ Petition is an Association representing
the officers of the State Civil Service of U.P. 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
-
G 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
H after putting 24 to 27 years of service. The Estimate Committee of Seventh
l.A.S. ASSCN. v. U.0.1. [RAMASWAMY, J.] 399

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 l.A.S.
B
(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' lo
I.A.S. to give woightage over and above 4 years in the assignment of year c
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 D
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 U.P.
in Civil Appeal No. 4788 of 1992[S.L.P. (C) No. 13823 of 1991] filed E
Original Application No. 18 of 1989 in the Central Administrative Triounal,
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 0.A. No. 136 of
1989 before the C.A. T. at Patna. Therein the appellants though found to
F
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 3(3)(ii) 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 dis- G
criminated 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 retrospec-
tive operation to the First Amendment Rules .. The Tribunal at Patna
upheld the rules and dismissed the application. The Officers from Uttar H
••'
400 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A Pradesh through their Association filed the Writ Petition under Art 32 of ~
t

the 'constitution seeking writ of certiorari to quash the order dated Decem-
ber 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. ll is needless
B 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
c of 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 !AS Recruit-
ment Rules read with regulation 9 of !AS 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
D (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 3(1) postulates that every officer shall be assigned year of allotment
in accordance with the provisions hereinafter contained in the rules. The
E year of allotment of an officer in service at the commencement of the
amended Seniority Rules shall be the same as per the rule 3(2) 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:

F "3(3) The year of allotment of an officer appointed to the
Service after the commencement of these rules shall be as
follows:- , .
3(3)(i) the year of allotment of a direct recruit officer shall
be the year following the year in which the competitive
G examination was held:

Provided that if a direct recruit officer is permitted
to join probationary training under rule 5(1) of the !AS
(Probation) Rules, 1954, with direct recruit officers of a
H subsequent year of allotment, then he shall be assigned
I.AS. ASSCN. v. U.0.l. [RAMASWAMY, J.] 401

that subsequent year as the year of allotme~t. A
3(ii) 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 B
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 c
twelve years, referred to in sub-clause (a), subject to a
maximum weightage of five years. In the calculation, frac-
tions are to be ignored.

(c) The weightage mentioned in sub-clause (b) shall be D
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 allot-
ment earlier than .the year of allotment assigned to an
officer senior. to hi1n in that select list or appointed to the E
service on the basis of an earlier ~elect List.

3(3) (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· F
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, G
referred to in sub-clause (a), subject to a maximum
we~ghtage 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 H
402 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A appointed to the service:

Provided that he shall not become senior to another
non-State Civil Service Officer already appointed in the
service.

B
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 is
c equal to or more than the length of Class 1·continuous
service of the former in connection with the affairs of the
State. 11

A plain and fair reading of the sub-rules manifests the Central Govt's
D 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
!hat subsequent year as the year of allotment. In determining the seniority
of a promotee officer in assigning year of allotment, the Service rendered
E in the State Civil Service upto 12 years as Dy. Collector, or equivalent posts,
weightage of 4 years shall be given. In addition he/she 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
F computed from the year of appointment of the officer to the service. The
offending proviso limits the operation of Rule 3(3)(ii)( a) 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 3(3) (iii) also,
though not relevant for the purpose of the case but serves as an analogy,
G 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
3(3) (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 lo the service. ll is, therefore, clear that the New Seniority Rules
H were to be operative from November 6, 1987 and the First Amendment
I.AS. ASSCN. v.• U.0.1. [RAMASWAMY, J.] 403

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
him/her 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
B
entry into IAS service by application of rule of weightage in 3(3)(ii) 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 c
superseded a senior State Civil Officer became entitled to carry his year
of allotment and became senior to him in the cadre of I.AS. But for the
proviso, the operation of Rule 3(3)(ii), 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 con- D
sequential 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 reci uit gets his year of
allotment from the succeeding year of his recruit:inent. The direct recruit
officers appointed earlier to 1988 also would be adversely effected in their E
seniority.

Under sec. 3(2) of the Act, every rule made by the Central Govt.
under sec.3(1) and every regulation made thereunder or in pursuance of
any such rules, shall be Ia;d, as soon as may be, after such rule or regulation
is made, before each House of Parliament while in session. Before the F
expiry of the session, if both Houses agree to make any modification to
such rules or regulations or both Houses agree that such rules or regula-
tions 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 G
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. 3(1) of the Act regulating recruitment and the conditions of
service for persons appointed to an All India Service are statutory in
character. H
404 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A No statute shall be construed so as to have retrospective operation
unless its language is such as plainly to require such a 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 restrospectively. It is the settled cannons of con-
B struction 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. It is equally settled law
that the mere fact that the result of a statute may be unjust, does not entitle
the court to refuse to give effect to it. However, if two reasonable inter-
c pretations 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 legisla-
tive intention. But the intention must be gathered by putting up fair
D 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. v. District Board, Shahjahanpur, [1952] SCR
1131, the constitution bench of this court interpreting sections 70 and 90
E of the U.P. 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
F Act". In Nalinakhaya Bysck v. Shyam Suder haldar & Ors., [1953] 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
G 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, U.P. v. Auriya Chamber of Commerce, Al-
lahabad, [1986] 2 SCR 430 at 438, this court held that in a developing
country like ours any legal system may permit judges to play a creative role
H and innovate tO ensure justice without doing violence to the norm as set by
I.A.S. ASSCN. v. U.O.L [RAMASWAMY, J.] 405

legislation. But to invoke judicial activism to set at naught legislative A
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
B
more than likely fail to carry out the legislative intent. The words are the
skin of the language which the Legislature intended to convey. Wbere the
meaning of the statute is clear and sensible, either with or without omitting
the words or adding one, interpolation is improper, since the primary
purpose of the legislative intent is what the statute says to be so. If the c
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 D
power or manifestly illegal vitiated by fundamental laws or gross miscar-
riage 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 publicatipn in the Gazette of India. Its policy is
explicit and unambiguous. Rule 3(3)(ii) intenped to remedy the imbalances
while at the same time the proviso intended to operate prospectively to E
avert injustice to the officers recruited/promoted earlier than the officer
promoted later to that date. The proviso carved out an exception to ward
off injustice to the officers that became members of I.A.S. earlier to those
dates.

Whether the proviso is violative of Art. 14 and Art. 16( 1) of the
Constitution of India? Undoubtedly all the promotees from the State Civil
Service constitute a class preceding 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 G
steal a march over the senior officers in the State Civil Service and get
entry into the Indian Administrative Service earlier to the senior officers
and thus becomes a member of the Indian Administrative Service. Thereby
he becomes senior in service. The senior state civil service 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 H
406 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A force, indisputably would be junior in l.A.S. cadre to his erstwhile junior
officers in State Civil Service. If he gets the benefit of the free play of the
First Amendment Rules, it would have the inevitable effect of depriving
the promoted erstwhile junior officers of the benefit of early promotion
and he would be pushed down and would again become junior to him in
the Indian Administrative Service. The proviso aims that the State Service
B
senior officer, though had varied length of services, ~ut because of late
promotion to Indian Administrative Service, would receive and forego
proportionate weigbtage of past service for a short period till the rules fully
become operational. The First Amendment Rules doubtless provided the
remedy to ;emove existing discriminatory results by giving graded
c 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
lo protect the seniority of the officers promoted/appointed earlier than the
appellants and its effect would be that till rule 3{3)(ii) fully becomes
D operational graded weightage was given to the promotees. In other words
it prevented to get seniority earlier to the date of his/her appointment to
the Indian Administrative Service. Equally it intended not to let endless
chain reaction occur to unsettled the settled interests in seniority. These
compulsive circumstances denied the benefits of full 9 years weightage to
officers promoted during 1987 to 1992. The discrimination, though is
E discernible, but inevitable to ensure just results. In other words the proviso
prevented unequals to become equals. The contention of Sri P.P. Rao,
therefore, that invidious discrimination was meted out to senior officers
and that they are similarly circumstanced are devoid of force.

F This court by a Constitution Bench in the State of Jammu & Kashmir
v. T.N. Khosa, [1974] 1 SCR 771 at 779, and I.Kumar v. Union of India,
[1982]3 SCR 453 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 ratio therein does not apply to the peculiar facts
on hand. The promoted State Civil Service Officers who had already the
G year of allotment in I.AS. cadre are not discriminated. But the benefit of
full wdghtage 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.

H It is equally settled law that in an affirmative action the court can
I.AS. ASSCN. v. U.O.l. [RAMASWAMY, J.) 407

strike down a rule which offends the right to equality enshrined in Arts. 14 A
and 16(1) of the Constitution or ultra vires of the Constitution. But at the
same time in a given situation like the one arose in D.S. Nakara v. Union
of India, [1983] 2 SCR 165 and B. Prabhakar Rao v. State of A.P., [1985] 2
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 Rules has the inevitable
B
and insiduous effect of doing injustice to the direct recruit/promotee
officers or officers promoted earlier to Feb. 3, 1989 and the proviso
avoided such unjust results. Giving retrospective effect or directing to apply
t~e rule to all the seniors irrespective of the date of promotion to I.AS.
cadre would land in or lead to inequitous or unjust results which itself is c
unfair, arbitrary and unjust, offending Art. 14 of the Constitution. To avoid
such unconstitutional consequences the proviso to rule 3(3)(ii) of the First
Amendment Rules was made. The doctrine or kicking down or picking up,
put forth in Union of India v. P.K Roy, [1968] 2 SCR 1986 at 201-202,
equally cannot be extended to the facts of the case. But for the proviso the D
operation of rule 3(3) (ii) would be inconsistent with Sec. 3 (lA) 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 command-
ing the respondents to give full benefit of weightage of rule 3(3)(ii)(a) and
(b) of the First Amendment Rules would amount to direct the executive E
to disobey the proviso which is now held to be intra vires of the Constitu-
tion. In the light of the above discussion no directions could be given to
the Central Govt. to amend the 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 F
years service to promotee officers of State Civil Service 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 work 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 G
date of intimation of the proposed First Amendment Rules to the State
Governments for limited retrospectivity also cannot be acceded to for the
same reasons.

In this context it is necessary to noie that Sec, 3(1A) of the Act which H
408 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A provides thus :

"3(1A) 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 this
Act, to the rules or any of them but no retrospective effect
B shall be given to any rule so as to prejudicially affect the
interests of any person to whom such rule may be ap-
plicable."

Its bare reading clearly indicates that the Rules made under the Act
c 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 Vaidyanathan that this rule may be so read as applicable only to the
promotee officers vis-a-vis the senior promotee officers cannot be ac-
cepted. The Lucknow Bench of the C.A.T. glossed over it by adopting
D strange construction that since the offending proviso to rule 3(3)(ii) of the
First Amendment Rules would apply to promotee officers inter se, sub-sec-
tion (l)(a) of section 3 of the Act would not apply to the direct recruits,
to say the least, is a disparate construction. There is a distinction between
right and interest. No one has a vested right to promotion or seniority, but
an officer has an interest to seniority acquired by working out the rule. Of
E course, it could be taken away only by operation of valid law. Sub-section
(lA) 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
F claims or legitimate expectation of interest for promotion. Take a case as
an illustration. Articles 14, 16(1), 16(4), 335 and 46 read with proviso to
Art. 309 of the Constitution empowers the President or the Governor to
make statutory rules of reservation, where there is no ade.quate repre-
sentation to persons belonging to Scheduled Castes and Scheduled Tribes
in a service or posts in connection with the affairs of the Central Govt. or
G 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
metit, in the larger public interest by operation of the rule of reservation
discrimination in favour of Scheduled Castes and Scheduled Tribes is
H constitutionally permissible as a class. Therefore, the proviso to rule
I.AS. ASSCN. v. U.0.1. [RAMA.SWAMY, J.] 409

3(3)(ii) of the First Amendment Rules is consistent with section 3(1A) of A
the Act, and that th'erofore, it is not ultra vires of the power of the Central
Govt., nor it offends Arts. 14 and 16(1) of the Constitution.

Counsel for the appellants/petitioners are right in their contention
that there is no vested right to seniority and is variable and defe~sible by
B
operation of law. In A.K Bhatnagar v. Union of India, [1991] 1 SCC 544,
this court held that seniority is an incidence of service 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 c
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. l among them. Suppose probation was not declared ma/a fide D
resulting in delayed confirmation and 'A" challenged it in a court of law
and succeeded in proving ma/a fide action and consequential direction was
issued by the court to confirm 'A' from the date of his appointment.
Though 'B' to 'D' became seniors to 'A' by early confirmation, their
seniority was varied by 'A' later· confirmation and the consequential
defeasance of acquired seniority. An employee has an interest in the E
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' are scheduled caste and
scheduled tribe respectively. In the order of merit 'D' stands second but
by operation of roster 'B' and 'C' though far below in merit and yet were F
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 prm,notion posts also similar situations
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 G
entry into promoted posts and thereby they became seniors. 'A' later on
was exonerated of the charges and thereby was promoted. Though 'B' to
'D' became initially seniors to 'A' he was .restored to his seniority in
promotion posts as well and 'B' to 'D's interest was defeated. Suppose the
promotion was on the basis of merit and ability 'D' was found to be more H
410 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A meritorious and was promoted earlier to 'A' to 'C'. 'D' thereby w_ould
become senior lo 'A' lo 'C' though he was juniormost in the feeder service.
The right lo 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
B 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. 3(1A) of the Act read with proviso to Rule 3(3)(ii) & (iii) of the First
c Amendment Rules. It was neither void nor ultra vires offending Arts. 14
and 16 (1) of the Constitution.

Admittedly, the draft of the First Amendment Rules, as circulated
to the State Governments, did not contain the offending proviso. It is stated
D in the counter affidavit filed on behalf of the Central Govt. that some of
the State Governments had suggested to incorporate the proviso and after
necessary consultation the proviso was added to the First Amendment.
Rules. Section 3(1) of the Act provides thus:

"3(1) Regulation of recruitment and conditions of services.
E - (1) The Central Govt. may, after consultation with the
Governments of the States 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
F India Service. T!

It is thereby clear that sec. 3(1) 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
-
G Governments of the States 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 con-
sidered in catena of cases. This Court in Union of India v. Sanka/chand
Hirnat/a/ Sheth & Anr., [1977] 4 SCC 193, held that the word "consult"
H implies a conference of two or more persons or an impact of two or more
I.AS. ASSCN. v. U.0.1. [RAMASWAMY. J.] 411

minds in respect of a topic in order to enable them to evolve a correct or A
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 once constitute both
the source and foundation of the final decision. In that case the question
related to the transfer of a High Court Judge from one High Court to
B
another. In that context this court considered whether soundin:.( of the
Chief Justice of lnd;a 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 discuss
and examine the merits of the proposed transfer. The meaning of the word C
"consultation" was evaluated in that backdrop. This court approved the
dictum laid by K. Subba Rao, J., as he then was, in R. Pushpam v. State of
Madras, AIR 1953 Madras 392.

In State of U.P. v. Manmohan Lal Srivastava, [1958] SCR 533 at 542, D
the word "consultation" in Art. 320 of the Constitution of India was con-
sidered 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 coml?letely
ignore the existence of the Public Service Commission or to pick up and E
choose cases in which it may or may not be consulted. However, prior
consultation was held to be nat mandatory for removal of a Govt. servant
as the Central Govt. has not been tied down by the advice of the U:P.S.C.
This court did not extend the rule of consultation to making the advice of
the Commission on those matters bindi~g on the GoVt. In the absence of F
a binding character, this Court held that non-compliance of Art. 320(3)(c)
would not have the effect of nullifying the final order passed by the Govt.
of removal of the Govt. servant from service. In U.R. Bhatt v. Union of
India, A.JR 1962 SC 1344, this court held that the absence of consultation
of the Public Service Commission or any irregularity in consultation under
Art. 320 does not effect the ultimate decision taken by the authority under G
Art. 311 of the Constitution. In Ram Gopal Chaturvedi v. State of Madhya
Pradesh, [1970] 1 SCR 472, the same view was reiterated. In N.
Raghavendra Rao v. Dy. Commissioner. South Ka11ara, Mangalore, [1964] 7
SCR 549, words "prior approval" of the Central Govt. in construing the
proviso to sec. 115 (7) of S.R.Act of the words of varying the conditions of H
412 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A service the Constitution Bench held that "prior approval" would include
general approval to the variation in the conditions of service within certain
limits indicated by the Central Govt. Same view was reiterated by another
Constitution Bench in Mohd. Sujat Ali & Ors. v. Union of India,. [1975] 1
SCR 449 at 469- 471.

B
In Chandramouleshwar Prasad v. Patna High Court & Drs., [1970] 2
SCR 666 at 674 & 675, construing the word "consultation" in Art. 233 of
the Constitution, another Constitution Bench in the context of removal of
a District Judge by the Governor on the recommendation of the High
Court, held that "consultation'' or "deliberation11 is not complete or effective
C unless the parties thereto, i.e., 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
D 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 of removal dated October 17, 1%8 passed by the
State Govt. illegal.

In Narain Sankaran Mooss v. State of Kera/a & Anr., [1974] 2 SCR
E 60, 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 can-
cellation would be ultra vires of the power. While examining that question,
this court considered whether consultation was mandatory or directory,
F and held that the revocation of the licence trenches into the right to carry
on business guaranteed under Art. 19(1)(g) of the Constitution. Therefore,
when the Act prescribes 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.
G Consultation provided an additional safeguard to the licence 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. Consultation of the Board, was,
H therefore, held to be a condition precedent for making order of revocation.
I.AS. ASSCN. v. U.O.L !RAMASWAMY, J.] 413

In Naraindas Indurkhya v. State of M.P. & Ors., [1974] 3 SCR 628, A
M.P. 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
B
issued by the State Govt. without consultation of Chairman was invalid
being in breach of mandatory requirement of the proviso to Sec.4 ( 1) of
the Act.

In Hindustan Zinc Ltd. v. A.P. Electricity Board & Ors., [1991] 3 SCC
299, the revision of tariff was effected without consulting the Consultative C
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 D
Council and force of its advice being at best ouly persuasive, it cannot be
said that the revision of tariff, without seeking the advice of the Consult-
ative 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 State Legislature and such
statement is open to discussion therein, the Board is bound to take into E
consideration such modification, if made, or any comments made on such
statement by the State Legislature. Under those circumstances it was held
that the non-compliance of Sec. 16(5) did not render the revision of tariff
invalid.
F
In Rollo & Anr. v. Minister of Town & Country Planning [1948] 1 All
Eng. Reports 13, Sec. 1 (1) 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 interesi 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 G
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 H
414 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A authorities. In those circumstances contention was raised that there was no
consultation as adumbrated under Sec. 1(1). Repeliing 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, its size
and what the Minister wished and intended to do. Discussion was followed.
Minutes were prepared and press notice was issued stating what had
B
happened. In those circumstances it was held that there was consultation
and the requirement was complied with. The ratio of Morris, J. in E/echer
& Ors. v. Minister of Town & Country Planning, (1947] 2 All. Eng. Reports
496, was approved. The same view was reiterated in Sinfield & Ors. v.
London Transport Executive. Law Reports 1970 Chancery Divn.
c
In Derham & Anr. v. Church Commissioners for England, 1954 Appeal
Cases 245, the Judicial Committee was to consider the question of consult-
ation with Church Commissioners for effecting the union of beneficers
under Sec. 3 (1) of the Pastoral Reorganisation Measures, 1949 which
D 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 v. Attorney General of Mauritius, 1965
E Appeal Cases 1111, the local Govt. of Mauritius was empowered under the
Local Government Ordinance, 1962 by sec. 73 {1) to alter the boundaries
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
F 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
alteration and the map. Majority Councillors had resigned on the ground
that they had no mandate to express any views. On subsequent nomination,
those Councillors raised certain points and asked for information, which
G was duly complied with. Further information was called for, but the Mini-
ster refused to extend time nor supplied information. The Governor in
Council had 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
H extended boundaries of the town of Port Louis, contending that there had
I.AS. ASSCN. v. U.O.l. [RAMASWAMY, J.] 415

been no consultation as required by Sec. 73 (1) of the Ordinance. The A
Judicial Committee construing the word "after consultation" in that setting
held that the local authorities had 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 aciion as affirmed by
the Supreme Court of Mauritius.
B
The ratio in Union of India & Ors. v. Dr. S. Krishna Murthy & Ors.,
[1989] 4 SCC 689, renders little assistance to the appellants. In that case
the question was the year of allotment under the Forest Service (Regula-
tion of Seniority) Rules, 1968. By fixation of the year of allotment it had
retrospective effect from the date when the promotee was brought into C
select list or the date of appointment whichever was later. Under- those
circumstances it was held that retrospective operation for 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: D
(1) Consultation is a process which requires meeting of minds be-
tween the parties involved in the process of consultation on the material
facts and points involved to evolve a correct or at least satisfactory solution.
There should be meeting of minds between the proposer and the persons
to be consulted on the subject of consultation. There must be definite facts E
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
F
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.
G
(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 H
416 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A authorities or person and is not bound to be accepted, the prior consult-
ation 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 has/have authority to pass ap-
B propriate orders or take decision thereon. In such circumstances it
amounts to an action "after consultation".

(6) No hard and fast rule could be laid, no useful purpose would be
served by formulating words or definitions nor would it be appropriate to
C 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 "aftef consultation"; "was in fact consulted or was it
1
'

a "sufficient cousultation".

D (7) Where any action is legislative in character, the consultation
envisages like one under Sec. 3 (1) of the Act, that the Central Govt. is to
intimate to the State Governments concerned of the proposed action in
general outlines and on receiviog 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
E 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 Governments through the people's repre-
F sentatives 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
G 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
H precluded to revise the draft rules in the light of the consultation and
•
I.AS. ASSCN. v. U.O ..J. [RAMASWAMY, J.] 417

advice. The Central Govt. had prior consultation with the State Govern- A
ments concerned and the Law Department.

Jn the light of the above principles and applying them to the facts of
this case we have no hesitation to hold that the general consultation had
by the Central Govt. with the State Govts. and Union Territories was
sufficient and it \\'as not necessary to have prior consultation again to bring B
the proviso on statutes as part of the First Amendment Rules. The conten-
tion 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 were laid on the floor
of each House of the Parliament. There were no suggestions or alterations c
made by either House of Parliament. Thus the First Amendment Rules
stood approved by the Parliament. Under the circumstances we have no
hesitation to hold that the failure to consult all the State Governments or
Union Territories on the proviso to rule 3(3)(ii) or (iii) of the First
Amendment Rules does not render the proviso ultra vires, invalid or void. D
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 S.L.P. (C)
No. 12469/90 are dismissed. The appeal arising out of S.L.P. (C) No.
13823/91 is allowed and the order of the Central Administrative Tribunal,
Allahabad Bench at Lucknow is set aside. But in the circumstances parties
are directed to bear their own costs throughout. E

VPR. WP(C) No. 499/91-dismissed.
CA. No. 4794/92· dismissed.
CA. No. 4788/92-allowed.