Holding

The July 28, 1986 memo was illegal and was quashed; promotions must be made in accordance with the seniority‑cum‑reservation rules applicable from 1973.

Summary

The SC/ST Officers Welfare Council filed a writ petition under Article 32 challenging a July 28, 1986 memorandum that raised the minimum length of service required for promotion in the Provincial Medical Health Services of Uttar Pradesh, allegedly to deny promotion to three SC/ST officers. The petition sought quashing of the memo and a declaration that promotions should follow the seniority‑cum‑reservation rules in force since 1973. The Court examined whether the memo was a colourable and ultra vires exercise of power that violated constitutional provisions on reservation in promotion. Relying on Articles 15, 16, 17, 46, 335, 309, 162 and 261 of the Constitution and earlier case law, the Court held that the memo was illegal, quashed it, and directed the State to consider the three officers and all other eligible officers for promotion according to the pre‑existing rules, creating super‑numerary posts if necessary. The petition was allowed and the respondents were ordered to implement the promotions within six months.

Issues considered

The July 28, 1986 memo increasing minimum service length for promotion is ultra vires and violates reservation provisions.
Whether promotions of SC/ST officers must be based on seniority and reservation as per rules applicable from 1973.
Whether the Department's deviation from the seniority‑cum‑rejection principle amounts to a colourable exercise of power.
Whether the memo should be quashed and the promotions of the affected officers regularised.

Legislation cited

Constitution of Indias. Article 15(2), s. Article 15(4), s. Article 16, s. Article 162, s. Article 16(4), s. Article 16(4A), s. Article 17, s. Article 261, s. Article 309, s. Article 335, s. Article 46

Subjects

reservation in promotionSC/STseniorityad hoc appointmentconstitutional lawArticle 16(4)Article 335administrative lawcolourable exercise of powerpublic serviceequalitydiscrimination

Judgment

•

A THE SCHEDULE CASTES AND SCHEDULED TRIBES
OFFICERS' WELFARE COUNCIL
v.
STATE OF UTTAR PRADESH AND ANR.

SEPTEMBER 19, 1996
B
[K. RAMASWAMY, FAIZAN UDDIN AND G.B. PATTANAIK, JJ.]

Se1vice Law :

C U.P. Regulation of Ad hoc Appointment (On Posts Within 171e PwvieWi
Of The Public SelVice Commission) Rules 1979:

Provincial Medical Health services-Reservation in pri.01110-
tion-Promotion· to posts of Deputy Chief Medical Officer, Chief Medical
Officer Additional Director, Director-Fixing minimum length of ser-
D viCl--Memorandum dated July 28, 1986 increasing the minimum length of
se1Vice-ln view of the new C1ite1ia three officers be/ongiilg to S CfST were
denied their entitlement to promotion as Chief Medical Officers and Joint
Directors-ReselVation Policy should be strictly adhered to and not left to the
whims of officers to introduce their own criteria contrary to the general
E po/icy-Department not preparing separate list of general candidates,
Schedule Castes and Scheduled Tribes in integrating the111 as per the roster
prepared ~y the Govemment-Obviozisly it is an illegal procedure fallowed t<?
deprive the officers belonging to SC, ST and Backward Classes in integrating
their seniority according to rostef--Hence the Memo dated July 28, 1986 and
all other i11cide11tal instructions issued i11 furtherance thereof are
F quashed-Govemment to consider the cases of the three officers and all other
eligible officers according to 1Ules in vogue from 1973 till the date of intro-
ducing the offending ntles--If necessary to create supemumer01y posts i11 the
respective vacancies to which the three officers are eligible to be co11sidered
and promoted in accordance with the rules with all consequential
G benefits-Directions issued.

Constitution of India-A1ticle l6-Rese1vation in Promotion.

Consumer Educatio11 & Research Centre & Ors. v. Union of India &
Ors., (1995) 3 SCC 432; Dalmia Cement (Bharat) Ltd. & Anr. v. Union of
H India & Ors. Etc., JT (1996) 4 SC 555; Mur/idhar Dayandeo Kesekar v.
544
SC/ST OFFICERS WELFARE COUNCIL v. STATE 545

Vishwanath Pandu Barde & Anr., [1995] Supp. 2 SCC 549; Bihar State A
Electricity Board & Ors. v. Panneshwar Kumar Agarwala Etc. Etc., JT (1996)
5 SC 555; State of U.P. v. Dr. R.K. Tandon, [1995] 3 SCC 616 and State of
U.P. & Ors. v. Dr. R.K. Tandon & Ors., JT (1996) 7 SC 174, relied on.

Indra Sawlzney v. Union of India, [1992] Supp. 3 SCC 217, referred
to. B

"Constitutional Law of India" edited by M. H-idayatullah, former Chief
Justice (Vol. II) at pages 294; Swami Vivekanand : Lecture entitled "The
Before Us" ( 1897) published in "The Complete Works of Swami Viveka11a11d"
(Vol. 3, p. 269 (1979 edn.) Swami Ranganathananda: "Enlightened Speeches" C
(First Edition), 1985; "Law, Justice and the Philosophy of Man", by Swami
Ranganathananda; Swami Ranganathananda "Social Responsibilities of
Public Administration" an article in "The Responsible Society-17ie Ethos of
which India Lacks Today" a commemorative volume to Justice V.S. Desh-
pande, former Chief Justice of Delhi High Court; "Eternal Values for a
Changing Society" by Swami Ranganathananda (1971-3rd Edn.) page 693, D
SA. de Smith "17ie abuse of statutory powers; "Ultra vires breach of statutory
duty" by Peter Cane, Fellow of Corpus Christi College, OJ..ford, published in
Public Law Seties, 1981 p. 11; "Public Administration" by Pfiffner-presthus
(4th Edn.) p. 550; "Responsibility in Government : Theory and Practice" by
Herbert J. Spiro; "British Government and the Constitution-Test, Cases and E
Materials" by Colin Twpin (Third Edition-1995) p. 315 & "The Nature and
Destiny and Man" Vol. II (New York: Charles Scribner's Sons, 1948) pp.
266 561, referred to.

CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 621 of
1987. F
(Under Article 32 of the Constitution of India.)

D.N. Goburdan, Ms. Pinky Anand and Ms. Geeta Luthra for the the
Petitioner.
G
R.C. Verma for Ashok K. Srivastava, A.K. Goel, Mrs. M. Qamarud-
din and M. Qamaruddin for the Respondents.

The following Order of the Court was delivered :

This writ petition under Article 32 was referred to a Bench of three H
546 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.

A Judges to decide an important question of constitutional dimension raised
in this case.

Admittedly, in the Health Department of Government of U.P. called
Provincial Medical Health Services (for short, the 'Services') recruitment
to the post of Doctors and promotion up to the post of Director were
B regulated by executive instructions of the Government and fr:om the year
1973 Government had appointed the doctors to the service. Until the U.P.
Regulation of Ad hoc Appointment (On Posts Within The Purview Of The ,.
Public Service Commission) Rules, 1979 were made by the Governor, in
exercise of power under proviso to Article 309 of the Constitution, all the
c appointments and also promotions came to be made on ad hoc basis. The
petitioner-Association is seeking for a writ to quash the memo dated July
28, 1986 and for declaration that promotions made within the cadre shall
be on the basis of seniority subject to rejection on ground of unfitness and
to regularise the services of all the officers in the cadre as per instructions
D as were in vogue prior to the date of that memo and other reliefs;

The admitted position from the record, is that the Personnel Depart-
ment of the Government has issued model rules to all the departments to
exercise the power under the proviso to Article 309 of the Constitution and
to frame the statutory rules for appointment made in accordance with the
E rules. Pending making of the Rules, ad hoc appointments could be made
but it would be for one year and as soon as regular appointments were
made, the ad hoc. appointments were to be regularised in accordance with
the rules. In this case, admittedly, no statutory rules were made nor the
procedure even as per instructions in force, was followed. Adhocism was
F the rule at the whim of the Department of Medical Health. In the Services, ·
as per !nstructions in vogue, appointment to the post of Doctor could be
made from amongst qualified doctors and diploma-holders. For promotion .
.,
from the post of Medical Officer to the post of Deputy Medical Officers
etc., qualifications and experience have been prescribed. Prior to July 28,
1986, for promotion to the post to Deputy Chief Medical Officer ex-
G perience of eight years of service was prescribed and for promotion to the
post of Chief Medical Officer, two years'experience as Deputy Chief
Medical Officer was prescribed. Similarly, for promotion to the post of
Joint Director, -two years' experience as Chief Medical Officer was
prescribed; for promotion to the post of Additional Director, two years'
H experience as Joint Director was prescribed; and for promotion to the post
SC/ST OFFICERS WELFARE COUNCIL v. STATE 547

of Director, one years experience as Additional Director but on the basis A
of merit and ability, was prescribed. For all other posts, seniority, subject
to rejection on the ground of. unfitness, was the rule. No minimum length
of service was prescribed.

In the offending Memo dated July 28, 1986, they have increased the
minimum length of service from 8 years to 12 years for promotion from the
B
post of Medical Officer to the post of Deputy Chief Medical Officer and
to 15 years for promotion from Deputy Chief Medical Officer to the post
of Chief Medical Officer with a minimum experience of two years and
selection would be subject to merit and ability. Similarly, for promotion
from the post of Chief Medical Officer to the post of Joint Director, total c
service of 15 years and minimum experience of one year was prescribed.
Merit and ability was prescribed for promotion from the post of Joint
Director to the post of Additional Director; total length of service
prescribed was 25 years with a minimum of four years' service as Joint
Director subject to merit and ability. For promotion from the post of D
Additional Director to the post of Director, total service of 28 years with
minimum qualifying service of one year subject to merit and ability, was
the criteria. In normal circumstances, such prescription laying down mini-
mum service as qualification would be unexceptionable to augment the
efficiency in the Services and would evoke no ire. But whether it was laid
only as pretext and subterfuge to deny the constitutional right and to E
frustrate the constitutional objective is the question. In the first instance,
we reacted against the contentions of Sri Goburdhan, learned counsel for
the petitioner. But when he ripped apart the veil and succeeded in con-
necting the links as camouflage, the game plan became transperently visible
and naked to indicate that colourable exercise of power was used and
F
abused to denude the legitimate rights of the officers belonging to reserved
categories and to deny them of their rights. Sri Verma, very fairly, was
unable to support the actions of the Department.

Sri Goburdhan contend that this procedure was devised only to avoid
promotion to three eligible officers belonging to the Scheduled Castes and G
Scheduled Tribes as Joint Directors etc. and this was demonstrated with
reference to the instructions issued by the Personnel Department and the
successive orders issued by the respondents. It is not in dispute that the
Personnel Department had issued instructions on December 27, 1956 that
the principle of seniority-cum-rejection on the ground of being unfit for H
548 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A selection as eligibility criteria should strictly be observed. Where eligible
and able persons are available in Government service, opportunity should
be given to all. If no suitable and experienced officer is available, there is
a possibility of worsenining in future of the persons facing the seniority
criteria. The Government, therefore, directed that seniority-cum-rejection
on the ground of being unfit be followed in promotion. The eligible persons
B
should be offered opportunity. This principle eversince is being followed
uniformly in all the Departments. In Memo No. E-210/80-SR-25-77 Per-
sonnel 1 dated April 9, 1980, the Government had issued instruction to
frame the statutory rules and the manner and procedure to select the
personnel was indicated and deviation as laid in para 5, which is relevant,
c reads as under:

"5. This has also been decided by the State Government that if in
adopting the provision as laid down in the enclosed model draft
there comes any difficulty then instead thereof, as an exception
and in special circumstances, if there is necessary to make any
D other arrangement in public interest then it may be done only after
the consultation with the Karmik (personnel) and Judicial depart-
ment with the higher orders (Council of Ministers of equivalent)
or it' can be continued."

E The Personnel Department further issued directions on December
31, 1973 that there was a provision for reservation as per the orders of the
Government dated March 8, 1973 for. the Scheduled Caste and Scheduled
Tribe persons in promotions. It read as under :

"The Government has taken decision that the SC/ST will avail the
F benefits of reservation in service and posts on which the promotion
is made on seniority basis and the promotions is done in the
prescribed manner."

The Government have, therefore, reiterated the decision that SC/STs
G officers will avail of the benefit of reservation in services and posts and also
in promotion. The principle of promotion is made on seniority basis subject
to rejection on the ground of unfitness and the promotion is done in the
prescribed manner.

But, in this case, instead of implementing the Government directions
H in promoting those three officers as per rules, the offending criteria was
SC/ST OFFICERS WELFARE COUNCIL v. STATE 549

introduced. It is not in dispute that the Government have issued that in A
case any special circumstances are made out in derogation to the general
principles, the approval of the Personnel Department, Law Department
and the Cabinet Sub-Committee was required to be obtained before issuing
the special rules governing the Services. But, in this case, admittedly, the
Medical Health Department in deviation of the general principle of B
seniority, subject to rejection on the ground of unfitness, introduced merit
and ability to fill up that post of Chief Medical Officer and upwards,
without obtaining prior approval of those three functionaries. The counsel
for the petitioner contends members of the petitioner association also do
not feel shy to compete on merit and ability provided their cases were
considered honestly, sincerely and objectively without pre-disposed C
prejudice.

In the counter-affidavit, it has not been stated that the Department
had obtained approval of the three authorities. Therefore, the offending
resolution was obviously contrary to the general principles laid down by D
Government. It is also brought out from the orders passed by the Depart-
ment itself the from 1973 till January 12, 1986 the rule of seniority-cum-
rejection on the ground of unfitness was in vogue and they did not insist
upon a minimum qualifying service in each of the promotional post except
the minimum experience in the particular post which was prescribed for
promotion. It is also to be noted that the Department had relaxed the E
above prescribed qualifying and minimum length of service immediately
after six months when claim of general candidates had come up for
consideration and after the promotion was given to the general candidates
the rule was restored. The petitioner have specifically pleaded that the rule
of minimum qualifying service was prescribed only to deny the promotion F
to three eligible officers belonging to SCs/STs because they did not have,
while the general candidats had the prescribed total length of service. In
paragraphs 9 and 10 of the writ petition, they have specifically averred and
in para 25 of additional affidavit it is reiterated giving insistence in that
behalf. In paragraph 25 of the counter-affidavit filed by the respondents,
they vaguely denied that relaxation to general candidates in the interest of G
administration was given. When the petitioners pointed out that other
Departments were not insisting upon the administrative experience, merit
and ability upon the minimum qualifying service, it has been stated in the
counter-affidavit that since the promotee officers up to the level of Chief
Medical Officer, Joint Director, Additional Director are required to have H
550 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.Q..

A administrative experience, minimum qualifying service etc. were insisted
upon. But when it was pointed out that in other Departments administra-
tive officers were not required to put up minimum qualifying service, they
have stated in the counter- affidavit that in other Department, it was not
insisted upon since the posts are administrative posts. The stand taken in
the counter-affidavit is mutually inconsistent and blows hot and cold at the
B same time. It is a volte face justification given by the Department only1o-
justify their arbitrary and mala fide action. As soon as the Scheduled Caste
and the Scheduled Tribe officers were eliminated from consideration and
general candidates were promoted, they looked around and found it safe
to retrace their steps and to fall in general line by restoring the rule of
C minimum length of service, merit and ability and qualifying service. This
gets demonstrated by the above undisputed facts.

It is also seen that when the post of Additional Director became
vacant for general candidates only and when they were not available for
D promotion since they did not have required length of minimum qualifying
service, the Department relaxed the requirement of minimum qualifying
service on the specious plea that services of the officers were required.
They have stated that they were the only special circumstances for the
officers concerned. Again, after the officers from general category were
promoted, the general prescription of qualifying service was insisted upon.
E These circumstances clearly would indicate that the persons manning the
Department are using a policy of pick and choose to suit their convenience
in abuse of colourable exercise of power creating disharmony in policy and
resorting to victimisation of the eligible officers since they belong to
reserved category. There circumstances would clearly and in unmistakable
F terms demonstrate that the aforesaid instructions came to be issued by
mala fide exercise of the power by the concerned officers with a view to
deprive the eligible SC/ST officers for promotion to the posts to which they
are entitled as Chief Medical Officers and Joint Directors.

G Under JHe scheme of the Constitution the political executive headed
by the Governor of the State is assisted by the Chief Minister appointed
by the Governor and the Council of Ministers appoin~d on the advice of
the Chief Minister who would be collectively responsible for the ad-
ministrat.ion of the State. The administration is carried on by and in the
name of the Governor but the Chief Minister, Council of Minister and the
H individual Ministers in charge of the assigned subjects individually and
SC;ST OFFICERS WELFARE COUNCIL v. STATE 551

collectively are responsible for the functioning of the concerned Ministry. A
The Constitution further envisages permanent bureaucracy with all India
services and State services envisaged in Part XIV; their recruitment and
conditions of service are regulated by provisions contained in Chapter XIV
or any Acts of Legislature or the rules made under proviso to Article 309
of the Constitution or even executive instructions co-extensive with the
legislative power of the State Legislature. The political executive lays
B
broadly the policies and programmes consistent with their political
manifesto but should be in conformity with the Directive Principles of the
) State Policy which binds the Government in power and also the Fundamen-
tal Rights. The bureaucracy works out the details of the policy and applies
the law to the given circumstances in assisting the political executive. The c
preamble, the fundamental rights and the directive principles envisage
establishment of an egalitarian social order to accord socio-economic
justice, liberty. equality or status and of opportunity, dignity of person and
fraternity in an integrated Bharat. The Indian social order is based on
hierarchical social structure. Since the Scheduled Tribes habitate in
reserved forests and forest areas, the funding fathers of the Constitution D
recognised and protected their special interests in Schedules V and VI to
·the Constitution so as to integrate them in the mainstream of the national
life. Equally, the Schedule Castes who were denied social integration and
kept away from the mainstream of the national life due to practice of
untouchability abolished by Article 17 are protected from discrimination. E
In Part III of the Constitution, in particular Articles 17 and 15(2) enable
them to have access to public places and denial of equality due to un-
touchability was declared to be constitutional offence punishable under
Civil Rights Protection Act; Articles 14, 16 and 15 grant equality. Article
46 protects them from exploitation and directs the State to accord socio-
economic justice, facilities and opportunities to have opportunities for F
appointment to an office/service/post so as to accord soio-economic justice
for their integration in the mainstream of national life. The social imbalan-
ces should be removed only through rule of law. Law is a social engineer.
The social justice was held to be a fundamental right by a Bench of three
Judges in Consumer Education & Research Centre & Ors. v. Union of India G
& Ors., 1995] 3 SCC 432 and Dalmia Cement (Bharat) Ltd. & Anr. v. Union
of India & Ors. Etc., JT (1996) 4 SC 555. Economic empowerment was also
held by a Bench of three Judges in Mur/idhar Dayandeo Kesekar v. Vish-
wanath Pandu Barde & Anr., {1995] Supp. 2 SCC 549 and Bihar State
Electricity Board & Ors. v. Panneshwar Kumar Ag01wala Etc. Etc., JT (1996)
5 SC 555 to be fundamental right available to them. By operation of Article H
552 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A 38 and 46, in particular, facilities and opportunities are required to be
provided to them to improve their excellence in all spheres of life. The
State, therefore, has evolved, as held by this Court in Indra Sawhney v.
Union of India, [1992) Supp. 3 SCC 217 appointment or employment to an
office particularly in the service under the State as means to provide -
facilities and opportunities for employment. The opportunity for education
B given under Article 15( 4) and employment accord to them right to equality
;
of opportunity and of status and the dignity of person, economic empower-
ment and opportunity to improve excellence. The Constitution (77th
Amendment) Act, 1995 introducing clause (4A) of Article 16 made (
provision for reservation iQ matters of promotion of any class or classes of
c posts in service under the State in favour of Scheduled Castes and
Scheduled Tribes which in the opinion of the State are not adequately
represented in the services under the State. Article 335 of the Constitution
enjoins upon the State to take into consideration the claims of the
Scheduled Castes and the Scheduled Tribes in making appointments to
services and posts in connection with the affairs of the Union or of a State,
D consistently with the maintenance of· efficiency of administration. It is
settled law that conditions of services include everything from cradle to
grave, viz., recruitment to service or posts under the State, promotion,
salary, pension etc. The conditions of services are regulated either by
statautory rules or in their absence executive instructions. There is no need
E for pre-existing statutory rules to regulate the conditions of services.
Proviso to Article 309 of the Constitution gives power to the President or
the Governor, as the case may be, subject to law made by the Parlia-
ment/the State Legislature to constitute services and to regulate the service
conditions by making statutory rules go~erning the conditions of si::rvice.
Under Article 162, the executive has the power to issue executive ir\struc-
F tions consistent with the fundamental rights in Chapter III, to regulate
conditions of service but they are subject to the law made by the State
Legislature or the Rules made by the Governor under proviso to Article
309 of the Constitution. Executive instructions can also be made to supple-
ment the law to fill in the yawning gaps. The permanent bureaucracy,
G therefore, in evolving the principles or giving shape to the policy of the
political executive on in applying the law, rules or instructions, is guided
by constitutional philosophy and public policy envisaged thereunder. Ar-
ticle 261 of the Constitution, therefore, accords full faith and credit to the
executive acts and records of the Union and the States, the law made by
the Parliament or the Legislature or such of the rules or regulations etc.
H made in furtherance thereof as well as judicial proceedings of the Union
SC/ST OFFICERS WELFARE COUNCIL v. STATE 553

and of every State. A

In the "Constitutional Law of India" edited by M. Hidaytullah, former
Chief Justice (Vol. II) at pages 294, on the doctrine of "full faith and credit"
it is stated that relationship between the Union and the States leaves
Article 261 to play greater role than its counter-part does in the U.S.
Constitution. Our experience since the formation of the Constitution fully B
supports this" conclusion. The public acts, records and judicial proceedings,
.... in recognition of law, accorded by Article 261 are in accord with Entry 12
of the Concurrent List subject to the law made by the Parliament in clause
(2) of Article 261". The founding fathers of the Constitution posed full faith
and credit under Article 261 to all the enumerated acts, proceedings etc.
with absolute faith that they are done to further the goals set down in the
c
Preamble, the basic structure of the Constitution. But the crux of the
matter is not the grammer of the language but the spirit behind the doctrine
of full faith and credit. The reason is that the political executive assisted
by the permanent bureaucracy faithfully impiements the constitutional
philosophy and applies the law to further the goals set down in the D
Constitution to establish the egalitarian social order under the rule of law
and applies the law objectively, dispassionately and truthfully to elongate
the constitutional perspectives and the objectives of the law made there-
under. Therefore, full faith and credit is accorded to the public acts and
records. That apart, the same may be relied on by other States.
E
Swami Vivekanand in his lecture entitled "The Work Before Us"
(1897) published in "The Complete Works of Swami Vivekananda" (vol. 3,
p. 269 (1979 adn.) has stated the scope of enlightened citizenship thus :

"The problem of life is becoming deeper and broader every day as F
the world moves on. The watchword and the essence have been
preached in the days of yore when the Vedantic truth was first
discovered, the solidarity of all life. One atom in the universe
cannot move without dragging the whole world along with it. There
cannot be any progress with the whole world following in the wake, G
and it is becoming every day clearer that the solution of any
problem can, never be attained on racial, or national, or narrow
grounds. Every idea has to become broad till it covers the whole
of this world, every aspiration must go on increasing till it has
engulfed the whole of humanity, nay the whole of life, within its
scope. This will explain why our country for the last two centuries H
554 SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.

A has not been what she was in the past. We find that one of the
causes which led to this degeneration was the narrowing of our
view, narrowing the scope of our actions".

Swami Ranganathananda in his Inaugural Address at Swami
Vivekananda Auditorium, speaking on the concept of enlightened citizen-
B ship as envisaged in Gita and its relevance in a democracy has stated in
"Enlightened Speeches" (First Edition, 1985) a publication of Ramakrishna
Mission, New Delhi, thus :

"That is the primary status of man in India since 1950 -
c sovereign and free citizens in a sovering democratic republic. Since
then, we have been re-living in India the ancient and modern
V{estern political experience, in a big way, and learning our lessens
in this new experience of, and adpating it into, a nation-wide
political democracy, in the context of immense human diversities
and complex social structures, of a continental size and millennia-
D old cultural traditions, which would have staggered the leaders of
the simple Greek city states. The several national and state elec-
tions since independence have given a democratic political educa-
tion to our people, which we never had in our millennia-old history.
The Constitution treats the entire people of India as sovereign and
E free; none is treated as slaves or as outside that citizenship all the
people of India are transformed into citizens of a free democratic
state. What a beautiful concept and ex.Perience.

It is a big change from subjection to freedom, from being praja
or subject to citizenship. But it is unfortunate that we did not
F understand its implications or appreciate its significance; and we
failed to take sustained energetic steps to assimilate the beauty and
strength of this citizenship concept and value. After experiencing
the ectasy of it during the first flag hoisting ceremony on the 26th
January 1950, we day by- day forgot all about it. We did not give
serious thought to the question, what does it mean to be citizens
G
of a free democracy? What changes should this statuts produce in
myself, in my attitude and in my behaviour, to be able to deserve
this status and to strengthen my new democratic state? After a
little effervescence of a day or two, that ectasy of freedom slowly
evaported away. The consciousness of being a free citizen, and
H what it involved during the modern period of our history, had
SC/ST OFFICERS WELFARE COUNCIL v. STATE 555

dawned only in few people of our country. That has been our A
nation's misfortune. If during these thirty years, our intelligentsia,
constituted of our school-and-college-educated section, had real-
ized and assimilated the meaning of citizenship, what political and
economic strength, what human energy resources, what shall-round
national progress we would have achieved by now. In our Indian
context at least, therefore, we have to introduce this new term, B
namely enlightned citizenship, making a distinction between mere
political adult citizenship and enlightened citizenship. It is like the
milk in our Indian market where we have to ask for pure milk,
unlike in the West where our people, when they go there find an
adjective sounds puzzling and absured to the people there, since C
all milk there is pure".

At page 259, under the heading "Citizenship on the Focus of Human
Equality", he has stated elaborately that we are primarily citizens of India
and secondarily only these and other !;imilar functionaries. All these are
only the functions that we severally perform as citizens of the country. He D
emphasised the unity of awareness of citizenship to elongate wider
spectrum of functional affinity by getting rid of all forms of mental abera-
tions from the humble to the high and the mighty and to widen broad
mental horizens. He quoted from Bhartrhari in his Niti-sataka (verse 64)
the four qualities of man thus :
E
"There is one type of people called the sat-purusas, good people,
who sacrifice their own self-interest and work for the welfare of
other people; the next group consists of the samanyas, the
generality, or the majority, who also work for the welfare of other
people, but without sacrificing their own self-interest; there are F
other .the third group are the manava-raksasas, demons among
men, who destroy other people's welfare in order to gain their own
selfish interests; but they the fourth group on the contrary - alas,
I do not know what to call them - destory other people's welfare,
even without gaining anything for themselves."
G
x x x x x x x

"The second group will constitute the majority of the population
in every society. And enlightened citizenship belongs to that
category. The Philosophy by which they live can also be described,
in the language of the nineteenth-century British political H
556 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.

A philosophy, as enlightened self-interest. They are frankly not as-
cetics; they have their own presonal and family interests to achieve;
but they include these in a wider concern for society as a whole;
and that constitutes the vital element of enlightenment attached to
their self-interest. But there is need for this group to be alert;
otherwise, there is every chance of this enlightenment getting
B eroded and self-interest ruling supreme. And once this erosion
takes place, they slide slowly down and join the third group, among
whom are found all those who indulge in all sorts of social malprac-
tices, like bribery, corruption, tax-evasion, smuggling, food and
drug adulteration. Out of these, some fall further down into the
fourth category and become sheer vandals. The only remedy
c against the second type sliding into the third and fourth categories
is alterness, and constant looking up to the people of the first
category - the sat-purusas and drawing inspiration from that small
minority of men and women who are, in the language of Jes us in
New Testament, the 'salt of the earth'."
D
x x x x x x x x x

"Human equality at the spiritual level has been preached and
practised in our country since ages. This is the meaning of, and is
E derived from, the Vedantic teaching of the same divine Atman in
all beings - integral, inalienable, and full, and the samatvam and
the sama-darsitvam, '~quality and sameness of vision', flowing from
it. A few sanints and devotees had realized this truth and lived by
it. Bhakter jat nai, 'There is no caste and class distinction among
devotees of God (as he dwells in all)', is a famous saying of Sri
F Ramakrishna. This great truth had never been translated into the
wide social and economic fields, or transformed into a social fact
of human awareness affecting millions. But that opportunity has
come to us in the modern age, through the massage of modern
democracy - political, economic, and social. That sama-darsityam
at the spiritual level becomes, today, buttressed and strengthened
G
by ~ sama-darsitvam at the political and social level, by the modern
concept and practice of citizenship of a democratic state.
Democratic citizenship is a focus of not only human freedom. and
dignity but also of human equality. Swami Vivekananda considered
the significance of the emerging modern period of our history to
H consist essentially in this practical implementation of the Vedantic
SC/ST OFFICERS WELFARE COUNCIL v. STATE 557

vision of human freedom, dignity and equality. In our new India, A
therefore, political efforts and spiritual efforts coalesce and rein-
force each other, in the struggle to evolve an egalitarian society;
the spiritual effort stresses human unity in the one Atman in all,
and political effort stresses human unity in the unity of citizenship
in our democracy."
B
On "Law, Justice and the Philosophy of Man", Swami Ran-
ganathananda has stated thus :

"Our country is now discussing, and tardily going about affording,
legal aid to the poor; it is good that we are slowly realizing that
administering and dispensing law may not always be the same as c
dispensing justice, and that our democracy cannot be well estab-
lished without bringing law closest to justice. Theoritically, our law
is equal to all, and all are· equal before our law. But in actual
operation, it benefits the rich and the strong, not the poor and the
weak. The Sanskrit word dharma stands for the integrating prin- D
ciple in human society and can be translated roughly as justice or
righteousness or ethical sense. Next to the truth of the Atman, it
i& the most significant and pervasive truth and value in Indian
culture. Dharma is that very truth of the Atman reflected in the
social context of human interactions. The Brhadarnyaka
Upanishad gives the following exposition of dharma as righteous- E
ness, as the soul of justice :

Yet He (the Cosmic Person) did not flourish (even after
projecting all power into the universe - intellectual, politico-
military, commercial and labour). He specially projected that ex-
cellent form, dharma, or righteousness. This dharma is the F
controller of the Ksatriya (the holder of power and authority).
Therefore there is nothing higher than that, even a weak man hopes
(to defeat) a stronger man through dharma, as (one contending)
with the king. That dharma is verily truth.
G
Until law becomes not only in formulation but also in operation,
law has no meaning."

In "The Responsible Society - The Ethos of which India lacks Today",
a commemorative volume to Justice V.S. Deshpande, former Chief Justice
of Delhi High Court, in his article "Sdcial Responsibilities of Public Ad- H
558 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A ministrators" Swami Ranganathananda has stated at page 1 thus :

"I consider the administator primarily as a citizen of India and
I want him to always remember this truth. It will do him good to
know what that means. Nobody is bor1 an administrator, and
nobody is always an administrator. We are all born citizens of a
B free India, and acquire the status of full citizenship at the age of
maturity as laid down under the Constitution. Some of those
mature citizens choose to be, and are called upon to become, our
administrators for some years of their life. This means that their
primary individuality is not as administrators, but as citizens. We
c are all essentially citizens of free India called upon to perform
particular functions in the service of our nation, so that citizenship
constiutes our primary being, and what we do as administrators,
or as members of some other profession becomes merely the
function we discharge deriving inspiration from that being.:"

D On "The Problem of Motivation", he has stated that bureaucracy is
necessary for every State which is part of the whole process of Government.
But a functionary need not be a bureaucrat, static and wooden, though
functioning as a bureaucrat. On "Bureaucracy : Static versus Dynamic" at
page 4, he has stated thus :
E
"A static bureaucracy and a dynamic bureaucracy are both
bu,reaucracies; the difference lies only in attitudes; the first repre-.
sents a low notion of man as a mere functionary, man as a mere
bureaucrat. That is a very poor state of man, in which he or she
draws from his or her function to enrich his or her inner being
F which is otherwise empty; and this is the state of mind that is prone
to, and often succumbs to, corruption. The second represents man
as inwardly rich in his being, in the strength of citizenship awar-
ness .and patriotic impulse, and pouring out the richness into his
or her function. And this attitude fosters a spirit of service and
contains much innate strength to resist and overcome corrupting
G
influences. In these context, attitude plays a great part. A change
of attitude can produce termendous results. And attitude is some-
thing that one can control, that one can manipulate, that one can
make to grow. This attitude control is an integral part of a
philosophy of man, which can enrich one's being as well as func-
H tion."
..
SC/ST OFF1CERS WELFARE COUNCIL v. STATE 559

In his article "Role of the People and Institutions in a Responsible A
Society", published in "The Responsible Society" (ibid), Justice H.R. Khan-
na, former Judge of this Court has expressed his views at page 55 bout the
role of the civil servants and has stated that "Apart from ensuring that there
is no trespass by one wing of the State upon the domain of the other wings,
we have also to ensure that within each wing proper norms which have
been evolved for the healthy functioning of democracy are adhered to and B
complied with. lt is in this context that one may first turn to the executive.
This is the· strongest wing of the State and consists of two parts - the
.. ministers and the civil servants. So far as the ministers are concerned it is
they who normally take the policy decisions and lay down the general
pattern of administration. The execution of those decisions and the applica- C
tion of policy matters to individual cases is, however, tci be left to the civil
servants. The civil servants, therefore, of necessity, have to act in fulfilment
of the promises in the policy and the Constitution. It is the duty of the civil
servants to carry out the policies to fulfil the constitutional objectives and
the responsibility of the government".
D
In "Eternal Values for a Changing Society" by Swami Ran-
ganathananda (1971 - 3rd Edn.) at page 693, the pragmatic philosopher
had in his speech advised the young Indian Administrative Officers, stating
under the heading"The Administrator in a Welare State" that the State in
a democratic society deives its strength from the co-ordinated wills of all E
its free and equal citizens. In the absence of this strength, the State
becomes an imposition on the people. States have always been looked upon
as irksome burdens by the people at large in our country, who have
tolerated their existence for the little benefits of order and security derived
from them. Quoting Bertrand Russel in his "Impact of Science on Society",
Swami Ranganathananda has stated "Unless men increase in wisdom as F
much as in knowledge, increase of knowledge will be increase of sorrow".
Buddhi connotes this ripening of knowledge into wisdom. Intelligence at
the buddhi level creates a pattern of what Sorokin calls altruism in human
character. It cannot function except in a creative and constructive way.
Detachment and stability, resourcefulness ar.d sympathy, are the hallmarks G
of such a character, at once efficient and human. He has stated that the
Indian Administrative Service Training School has kept this two-fold ef-
ficiency as its objective, and has adopted for its motto the pregnant
message of Sri Krisna in the second chapter of the Gita, verse 50; Yogah
karmasu kausalam - Yogi is efficiency for action. A world of ethical and
spiritual thought has been compressed in· that brief message. Therefore, he H
560 SUPREME COURT REPORTS [1996JSUPP. 6 S.C.R.

A has 'exhorted the IAS Officers thus : "Our politics and administration will
have to breathe the spirit of this yoga if we are to realize the objectives of
a welare State, If we are to establish a polity based on social justice and
social peace, a polity free from all forms of exploitation, not merely
economic, but also political and mental. This yoga however, is not a
teaching to compose the distractions of a mere nation and people, but is
B universal in its scope".

S.A. de Smith in his article "The abusd of statutory powers" Published
in Public Law Series 1956 (page 233) has stated at page 237 under the
heading "Misuse of Powers in Bad Faith and in Good Faith" that a
C discretiojlry power may be exercised invalidly if its repository exercises it
for aii improper purpose or on the basis of irrelevant considerations or in
disregard of relevant considerations or with gross unreasonableness .... The ,_
concept of bad faith eludes precise definition, but in relation to the exercise
of statutory powers it may be said to comprise dishonesty and malice. A
power is exercised dishonesty if its repository in_tends to achive an object
D other than that for which he believes the power to have been conferred.
His intention may be to promote another public interest or his own private
interests. A power is exercised maliciously if its repository is motivated by
personal animosity towards those who are directly affected by its exercise. )-

On the "Ultra vires breach of Statutory duty" by Peter Cane, Fellow
E of Corpus Christi College, Oxford, published in public Law Series, 1981 at
page 11, the author has stated at page 13 on the "The Content and Scope
of the Duty" that duties are not always couched in terms of such crystal
clarity that they are practically self-applying. One of the important differen-
ces between a duty and a power is that the holder of a power has a greater
or less freedom to give concrete content to the power in particular cir-
F cumstances, whereas the bearer of a duty has no control over the content
of the duty. At page 19, he cori£ludes by saying that the legal consequences
of the use of the word 'duty' are varied and complex and depend to a large
extent on how open-textured is the language in which the content of the
duty is cast as well as on the political sensitivity of the area in which the
G duty operates, Secondly, by developing the notion of ultra vires, breach of
duty, the courts have given themselves a degree of flexibility and power in
the enforcement (or non enforcement of the duties of public authorities
which has hitherto existed only in relation to the control of powers and
discretions.

H In "Public Administration" by Pfiffner-Presthus (4th Edn.) at page
SC/ST OFFICERS WELFARE COUNCIL v. STATE 561

550 it is stated that public administration is responsible to the rule of law A
doctrine which proves a fairly effective standard for judging administrative
decisions. Political responsibility is similarly involved with the idea of
government's control by public opinion, political parties, and the com-
munity, Responsibility is also commonly used to denote the obligation of
an individual to behave according to certain standards of conduct. In public B
administration, responsibility often has a negative connotation; we are
usually satisifed if the official is kept from wrong doing. On "Responsibility
and Accountability", he· states that accountability refers to the formal or
legal locus of responsibility, Responsibility, on the other hand, has a highly
personal, moral quality and is not necessarily related to formal status or
power, although it is probably true that greater power brings greater C
responsibility. Thus a department head is accountable for the actions of all
his subordinates, although iii actual fact he is not "responsible for their use
of the power which he must of necessity delegate to them. Similarly, in
exercising discretion the official is morally responsible for his decisions,
although he is often not legally accountable. In practice, responsibility must
be shared; it percolates down the stream throughout the entire administra- D
tiv:e branch. On the other hand, accountability, which concerns the formal
relationships between administration and the legislative and judicial
branches, can never be shareq,. In general, the bureaucracy is regarded as
accountable to elected representatives and to the courts who give meaning
to the rule of law doctrine. Within the Executive branch, accountability is E
sought through a hierarchy of offices and duties and makes possible a "line
of command" from top to bottom. The chiefs of the various departments
must. answer to the President as repository of power. Each section and

-.
division heads are legally accountable in turn to departmental heads. Upon
the Executive head falls the impossible task of coordinating and directing
' the entire executive branch. Under the Constitutional mandate that gives F
the President "executive power" and directs him to ensure that "the laws
are faithfully executed." The Council of Ministers is accountable for the
entire administrative branch. The bureaucracy has a representative func-
tion. In the case of regulatory activity, for example, administrators give
meaning to board legislative declarations of social policy by their decisions G
in specific cases. In advancing the social objectives of the community, they
sometimes develop the rule of public interest which is applied when
decisions are made. The bureaucracy shares with the legislature the task
of ensuring that the community receives a reasonable amount of justice in
the distribution of public resources. Moreover, by virtue of a recruitment
policy that gathers individuals with socio-economic backgrounds far more H
562 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A varied than those of elected representatives. The bureaucracy may be
viewed as a truer cross-section of the nation, providing necessary supple- ·
ment to the incomplete representation which the Parliament offers. Al-
though this thesis violates traditional democratic theory, the hard facts of
administrative policy determination and the official's role in compromising
group demands suggest that orthodox interpretations require some
B modification, formulation and principles and policies; application of them
requires pragmatism with broad vision to elOngate the Constitution
physolophy. Obviously, therefore, full faith was given to their acts and
actions. In selecting among alternative policies, in extending or narrowing
the efficacy of rule or policy, the official necessarily must work in a value
C context. Various factors impinging upon a particular decision are isolated
and require assignment of relative weights nor in accordance with what the
official thinks is "right" but. in tune with and to effectuate mandates of the
Constitution.; The "public interest" will be the ultimate element in this
process. In "Responsibility in Government : Theory and Practice" by Her-
bert J. Spiro had stated at pages 86-87 and 95 thus :
D
".... Modern law modern hureacycracy were created to fill the same
needs. On the Continent, especially, the birth and growth of each
cannot be conceived of without the other. Administrative law was ·
designed to make responsible conduct possible for the ruler's new
in~truments, the bureaucrats, by giving them reasonable expecta-
E tions of the probable consequences of their acts. As it became
more than just administrative law facilitated mo~e responsible
conduct for all to whom it applied. Belief in the political respon-
sibility of individuals is, therefore, intimately linked with advocacy
of the rule of law. This rule of law, together with the resources

F
already mentioned, gives us two components of the deliberately
created, explicit casual responsibility of the early bureaucrats. As
T
the third component, they were endowed with not only the
capacity, but the obligation, to make decisions. In other words,
they had to exercise their discretion when they applied to speemc
cases the general rules and instructions laid down for them by the
G sovereign himself, or on his behalf. Finally, the carefully cultivated
esprit de corps of the new public services and, indeed, the spirit
of the whole epoch, endowed both public servants and the subjects
on whom they acted with the purpose and determination needed
to make the novel system work."

H x x x x x x x x x

J:i._
SC/ST OFFICERS WELFARE COUNCIL v. STATE 563

"It lead us also to characterise a healthy bureaucratic situation A
as a situation of responsibility par excellence."

x x x x x x x x x

"They consider the bureaucrat, or the citizen, responsible so
long as he is honest, broadly speaking. They want to prevent, or B
at least to punish, dishonesty. The honesty of public servants and
citizens is certainly an important matter."

x x x x x x x x x

"In terms of the constitutional, democratic postulate, each C
citizen delegates parts of his original, general casual responsibility
to other groups and individuals - to political parties, to legislative
and other representatives, to judges, and to administrators.
Moreover, in the course of the constant division and sub division
for labour, new special responsibilities are created". D
In "British Government and the Constitution - Taxt, Cases and
Materials" by Colin Turpin (Third Edition - 1995) it is stated at page 315
thus:

"Legitimacy is primarily a feature of constitutional systems.
E
- They possess this quality by virtue of a general public support for
their authority, and may have it in greater or lesser decree. Suc-
cessive governments, even unpopular ones, benefit from the
legitimacy attaching to the constitutional order, so that their own
actions are. perceived as 'legitimate'. It will be evident that this is
not the same thing as 'lawful' although legality is normally a F
condition of legitimacy, in that a government which disregards the
law is seen to .be acting disordantly with the constitutional system
from which its legitimacy is derived".
' Reinhold Niebuhr's has stated in "(T)he Nature and Destiny of Man" G
Vol. II (New York: Charles Scribner's Sons, 1948) p 266 at page 561 that
bureaucracy, therefore, shares this responsibility when it talks in its forward
thrust to effectuate the Constitutional philosophy and public justice. Ad-
mihistrative responsibility lies in giving shape and content not only to the
policies laid down in the Constitution and by the executive, but also applies
them to given set of facts. In this case, on the facts the executive H
564 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A bureaucracy has forfeited the faith and credit according to them by the
Constitution and betrayed public faith in honest and dispassionate decision
making process and in applying the given set of standards of executive
orders in giving promotions to different classes of offieers in diametrically
opposite way frustrating the constitutional .objectives to promo~e socio-
B economic justice and equality of opportunity in promotion to the officers
of the appellant-Association.

It is settled law that the Constitution having given the benefit of
reservation and having adopted the policy by the Government, the policy
should strictly be adhered to and it should not be made a farce and
C introducing at the whim of the officers, their own criteria contrary to the
general policy. Therefore, it was directed by this Court in State of U.!'. v..
Dr. R.K. Tandon, [1995] 3 SCC 616 in paragraph 6 that the rule of
reservation if applied and the candidates were selected, accordingly, therr
seniority vis-a-vis general candidates should be in accordance with the
D roster maintained by the State Government. The same was reiterated in
State of U.P. & Ors. v. Dr. R.K Tandon & Ors., JT (1996) 7 SC 174 in
paragraph 8 thus :
,
"Yet another problem that was brought to our notice is that while
preparing their inter se seniority and fitment, the Government was
E not strictlyfollowing the rule of roster and reserved for Scheduled
Caste Scheduled Tribe and Backward Class candidates and their
placement on the respective vacancies earmarked for them in the
roster. It would be obvious that when the Government makes
appointments through administrative instructions or statutory
F rules, the appointment of candidates should be according to order
of merit and roster. The Government should follow the rule of
reservation and make appointments as per roster points. That
procedure is also prescribed even in the Ad hoc Rules. Therefore,
even appointments from the lists of 1971, 1977, 1978, 1979 and
among those retired from service or had the benefit of court orders
G or non-selectees, the inter se seniority should accordingly be deter-
mined as per the rule of reservation and roster. Even among the
non-selectees when they are appointed under Ad hoc Rules and
seniority under Rule 7 thereof is determined, the same principie
should be followed. There roster points should also be worked out
H and appointments made accordingly. There shall be direction to
SC/ST OFFICERS WELFARE'COUNCIL v. STATE 565

follow this procedure so that there will not be any deviation from A
the rules of appointment, reservation so that and the order of
appointment. would become according to rules and remain legal."

-
It is not in dispute that the department was not preparing separate
list of the general candidates, Scheduled Castes and Scheduled Tribes in
integrating them as per the roster prepared by the Government. It is B
obviously illegal procedure followed to deprive the officers belonging to
Scheduled Castes, Scheduled Tribes and Backward Classes in integrating
their seniority according to roster. Therefore, we have no hesitation to
quash the offending memo issued by the Department of Provincial Medical
Health Service, Government of U.P. dated July 28, 1986 and all other c
incidental instructions issued in furtherance thereof.· The Government is
directed to consider the cases of the three officers and all other eligible
officers according to rules in vogue from 1973 till the date of introducing
these offending rules. If necessary, the Government is directed to create
supernumerary posts in the respective vacancies to which the three officers
are eligible to be considered and promoted in accordance with the rules D
with all consequential benefits.

The writ petition is accordingly allowed. The respondents are
directed to consider the cases of the three officers and if found fit, to
promote them or any of other eligible officers within a period of six months E
from the date of the receipt of this order with all consequential benefits in
accordance with the rules. The cases of all other officers should also be
considered according to rules and if found eligible, they may be promoted
against respective vacancies as per roster. No costs.

G.N. Petition allowed.

-