O R D E R
This writ petition under Article 32 was referred to a Bench of three 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 Service (for short, the ‘Services’) recruitment to the posts of Doctors and promotion up to the post of Director were regulated by executive instructions of the Government and from 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 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 as were in vogue prior to the date of that memo and other reliefs.
The admitted position from the record, is that the Personnel Department 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 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 the rule at the whim of the Department of Medical Health. In the services, as per instructions in vague, 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 Officer etc., qualifications and experience have been prescribed. Prior to July 28, 1986, for promotion to the post of Deputy Chief Medical Officer experience 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’ experience as Joint Director was prescribed; and for promotion to the post of Director, one year’s experience as Additional Director but on the basis 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 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 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 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 minimum 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 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 connecting the links as camouflage, the game plan became transperently visible and naked to indicate that colourable exercise of power was used and 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 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 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 should be offered opportunity. This principle eversince is being followed uniformly in all the Departments. In Memo No. E210/80-SR-25-77 Personnel 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, 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 other
arrangement in Public interest then
it may be done only after the
consultation with the Karmik
(personnel) and Judicial department
with the higher orders (Council of
Ministers or equivalent) or it can
be continued."
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
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 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 gound of unfitness and the promotion is done in the prescribed manner.
But, in this case, instead of implementing the Government directions in promoting those three officers as per earlier rules, the offending criteria was introduced. It is not in dispute that the Government have issued that in 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 seniority, subject to rejection on the ground of unfitness, introduced merit and ability to fill up the 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 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 the Government. It is also brought out from the orders passed by the Department itself that from 1973 till January 12, 1986 the rule of seniority-cum-rejection on the ground of unfitness was in vague and they did not insist upon a minimum qualifying service in each of the promotional posts 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 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 to three eligible officers belonging to SCs/STs because they did not have, while the general candidates had the prescribed total length of service In paragraphs 9 and 10 or 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 counteraffidavit filed by the respondents they have vaguely denied that relaxation to general candidates in the interest of administration was given. When the petitioners pointed out that other Departments were not insisting upon the administrative experience merit and ability and 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 Directors Additional Director are required to have administrative experience minimum qualifying service etc. were insisted upon. But when it was pointed out that in other Departments administrative officers were not required to put up minimum qualifying service they have stated in the counter-affidavit that in other Departments, it was not insisted upon since the posts are administrative posts. The stand taken in the counteraffidavit is mutually inconsistent and blows hot and cold at the same time. It is a volte face justification given, by the Department only to 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 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 promotion since they did not have required length of minimum qualifying services 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 officer from general category were promoted the general prescription of qualifying service was insisted upon. 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. These circumstances would clearly and in unmistakable 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.
Under the 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 the Ministers appointed on the advice of the Chief Minister who would be collectively responsible for the administration of the State. The administration is carried on by and in the name of the Governor put the Chief Minister, Council of Ministers and the individual Ministers in charge of the assigned subjects individually and collectively are responsible for the functioning of the concerned Ministry. 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 the provisions contained 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 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 Fundamental Rights. The bureaucracy works out the details of the policy and applies the law to the given circumstances in assisting the political executive. The preamble, the fundamental right and the directive principles envisage establishment of an egalitarian social order to accord socio-economic justice, liberty, equality of status and of opportunity, dignity of person and fraternity in an integrated Bharat. The Indian social order is based on hierachical social structure. since the Scheduled Tribes habitate in reserved forests and forest areas, the founding fathers of the Constitution recognised and protected their special interests in Scheduled V and VI to the Constitution so as to integrate them in the mainstream of the national life. Equally, the Scheduled 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. 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 untouchability 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 appointment to an office/service/post so as to accord soio-economic justice for their integration in the Mainstream of national life. The social imbalances 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 the Judges in Consumer Education & Research Centre & Ors. Vs. Union of India & Ors.[(1995) 3 SCC 432 and Dalmia Cement (Bharat) Ltd. & Anr. vs. Union of India s Ors. etc. [JT 1996 (4) SC 555]. Economic empowerment was also held by a Bench of three Judges in Murlidhar Dayandeo Kesekar vs. Vishwanath Pandu Barde & Anr.[1995 Supp.(2) SCC 549] and Bihar State Electricity board & Ors. vs. Parmeshwar kumar Agarwal etc. etc. [JT 1996 (5) SC 555] to be fundamental right available to them. By operation of Articles 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 VS. Union of India [(1993) Supp. 3 SCC 217] appointment or employment to an office particulary in the services under the State as means to provide facilities and opportunities for employment. The opportunity for education given under Article 15(4) and employment accord to them right to equality of opportunity and of status and the dignity of person, economic empowerment and opportunity to improve excellence. The Constitution [77th Amendment] Act, 1995 introducing clause [4A] of Article 16 made provision reservation in matters of promotion of any class or classes of posts in service under the State in favour of the 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, 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 services or posts under the State, promotion, salary pension etc. The conditions of services are regulated either by statutory rules or in their absence executive instructions. There is no need for preexisting 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 Parliament/the State Legislature to constitute services and to regulate the service conditions by making statutory rules governing the conditions of service. Under Article 162, the executive has the power to issue executive instructions 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 supplement the law to fill in the yawning gaps. The permanent bureaucracy, therefore, in evolving the principles or giving shape to the policy or the political executive on in applying the law, rules or instructions is guided by constitutional philosophy and policy envisaged thereunder. Article 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. made in furtherance thereof as well as judicial proceedings of the Union and of every State.
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 Supports this conclusion. The public acts, records and judicial proceedings, in recognition of laws, 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 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 implements the constitutional philosophy and applies the law to further the goals set down in the Constitution to establish the egalitarian social order under the rule of law and applies the law objectives of the law made thereunder. Therefore full faith and credit is accorded to the public acts and records. That apart the same may be relied on by other States.
Swami Vivekanand in his lecture entitled "The Work Before Us [1897] published in "The Complete Works of Swami Vivekananda" [Vol.3, p. 269 (1973 edn.)] has Stated the scope of enlightened citizenship thus:
The problem of life is becoming
deeper and broader every day as 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,
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 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 Vevekananda Auditorium speaking on the concept of enlightened citizenship 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 - sovereign
and free citizens in a seoverign
democratic republic. Since then, we
have been reliving in India the
ancient and modern Western
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-old cultural
traditions, which would have
staggered the leaders of the simple
Greek city states. The several
national and state elections since
independence have given a
democratic political education to
our people, which we never had in
our millennia-old history. The
Constitution treats the entire
people of India as sovereign and
free, none 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
experience.
It is a big change from
subjection to freedom, from being
praja or subject to citizenship.
But it is unfortunate that we did
not 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 did not give serous thought to
the question, what does it mean to
be citizens of a free democracy?
What changes should this statuts
produce in myself, in my attitude
and in my behavious, 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 afree
citizen and what it involved during
the modern period of our history,
had dawned only in a few pwople of
our country. That has Been our
nation’s misfortune. If during
these thirty years, our
intelligentsia, constituted of our
school-and-college educated
section, had realized and
assimilated tho meaning of
citizenship what political and
economic strength, what human
energy resources what all-round
national progress we would d have
achieved by now. In our Indian
context at least therefore, we have
to introduce this new term, 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 peoples where they
go there find such an adjective
sounds puzzling and absured to the
people there, sinc 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 similar functionaries. All these are only the functions that we severally perform as citizens of the country. He emphasised the unity of awareness of citizenship to elongate wider spectrum of funtional affinity by getting rid of all forms of mental aberations 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:
"There is one type of people called
the sat-purusas, good people who
sacrifice their own self-interest
and work for the welare 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 other the third
group are the manava-raksasas
demons among men, who destroy other
people’s welare 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-destroy other people’s
welare, even without gaining
anything for themselves"
"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 philosophy, as
enlightened self interest. They are
frankly not ascetics; they have
their own personal and family
interest to achieve, but they
include the 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 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 malpractices, like
bribery corruption, tax-evasions
smuggling food and drug
adulteration. Out or these some
fall further down into the fourth
category and become sheer vandals.
The only remedy against the second
type sliding into the third and
fourth categories is alertness, 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
Jesus in New Testament, the salt of
the earth’."
"Human equality at the
spiritual level has been preached
and practised in our country since
ages. This is the meaning of, and
is derived from the Vedantic
teaching of the same divine Atman
in all beings - integral,
inalienable, and full, and the
samatvam and the sama-darsitvam,
equality 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
saving of Sri 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 message of
modern democracy - political,
economic, and social. That sama-
darsityam at the spiritual level
becomes today, buttressed and
strengthened by a sama-darsitvam at
the political and social leve, 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 consist
essentially in this practical
implementation of the Vedantic
vision of human freedom dignity and
equality. In our new India,
therefore political efforts and
spiritual efforts coalesce and
reinforce 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.
On Law justice and the Philosophy of Man" Swami Ranganathananda 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
dispensing justice, and that our
democracy cannot be well
established 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
principle in human society and can
be translated roughly as justice or
righteousness or ethical sense.
Next to the truth of the Atman, it
is 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 Brhadaranyaka
Upanishad gives the following
exposition of dharma as
righteousness as the soul of
justice:
Yet He (the Cosmic Person) did
not flourish (even after projecting
all power into the universe -
intellectuals politico-military,
commercial and labour). He
specially projected that excellent
forms dharma or righteousness. This
dharma is the 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 tone
contending) with the king. That
dharma is verily truth.
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 "Social Responsibilities of Public Administrators" Swami Ranganathananda has stated at page 1 thus:
"I consider the administator
primarily as a citizen of India and
want him to always remember this
truth. It will do him good to know
what that means. Nobody is born an
administrator, and nobody is always
an administrator. We are all born
citizens of a 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
administraors for some years of
Their life. This means that their
primary individuality is not as
administrators, but as citizens. We
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"
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:
"A static bureaucracy and a dynamic
bureaucracy are both bureaucracies;
the difference lies only in
attitudes; the first represents 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 which
is otherwise empty; and this is the
state or 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 awarness and
patriotic impulse, and pouring out
the richness into his or her
function. And this attitude fosters
a spirit of service and contain
much innave strength to resist and
overcome corrupting influences. In
these context, attitude plays a
great part. A change of attitude
can produce termendous results. And
attitude is something 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
function.
In his article "Role of the People and Institutions in a Responsible Society published in "The Responsible Society" [ibid], Justice H.R. Khanna former Judge of this Court has expressed his views at page 55 about 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 complied with. It is in this context that one maw first turn to the executive. This is the strongest wing of the State and consists of two parts- the minister and the civil servants. So far as the minister 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 application of policy matters to individual cases is, however to 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".
In "Eternal Values for a Changing Society" by Swami Ranganathananda [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 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 secuirty derived from them. Quoting Bertrand Russel in his ’Impact of Science on Society", Swami Ranganathananda has stated "Unless men increase in wisdom as 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 and sympathy, are the hallmarks of such a character, at once efficient and human. He has stated that the Indian Administrative Service Training School has kept this two-fold efficiency 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 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 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 discretionry power may be exercised invalidly if its repository exercises it for an 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 dishonestly if its repository intends to achieve an object 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 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 importan differences 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 circumstances, whereas the bearer of a duty has no control over the content of the legal consequences of the use of the word ’duty’ are varied and complex and depend to a large extent on how opentextured is the language in which the content if the duty is cast as well as on the political sensitivity of the area in which the 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 n relation to the control of powers and discretions.
In "public Administration" by pfiffner-presthus [4th Edn.] at page 550 it is stated that public administration is responsible to the rule of law dcotrine which proves a fairly effective standard for judging administrative decisions. Political responsibility is similarly involved with idea of government’s control by public opinion, political parties, used to denote the obligation of an individual to behave according to certain standards of conduct. In public administration, responsibility often has a negative connotation; we are usually satisifed if the official is kept from wring 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 grater power brings grater responsibility. Thus a department head is accountable for the actions of all his subordinates, although in 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 administrative branch. On the other hand, accountability, which concerns the formal relationships between administration and the legislative and judicial branches, can never be shared. 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 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 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 function. In the case of regulatory activity for example, administrators give meaning to broad legislative declarations of social policy by their decisions in specific cases. In advancing the social objectives of the community, they sometimes develop the rule or 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 varied than those of elected representatives. The bureaucracy mas be viewed as a truer cross-section of the nation, providing necessary supplement to the incomplete representation which the Parliament offers. Although 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 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, extending or narrowing the efficacy of rule policy, the official necessarily must work in a value 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 Herbert j Spiro had stated at pages 86-87 and 95 thus:
"... Modern law and modern
bureacycracy 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 instruments, the bureaucrats,
by giving them reasonable
expectations of the probable
consequences of their acts. As it
became more than just
administrative law facilitated more
responsible conduct for all to whom
it applied. Belief in the political
responsibility of individuals is ,
therefore, intimately linked with
advocacy of the rule of law. This
rule of law, together with the
resources already mentioned, gives
us two components of the
deliberately created, explicit
casual responsibility of the early
bureaucrats. As 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 specific cases the general rules
and instructions laid down for them
by the 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."
"It leads us also to
characterise a healthy bureaucratic
situation as a situation of
responsibility par excellence."
"They consider the bureaucrat,
or the citizen, responsible so long
as he is honest, or at least to
punish, dishonesty. The honesty of
public servants and citizens is
certainly an important matter."
"In terms of the
constitutional, democratic
postulate, each 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 subdivision of labor, new
special responsibilities are
created."
In "British Government and the Constitution Text, Cases and Materials" by Colin Turpin [Third Edition-1995] it is stated at page 315 thus:
"Legitimacy is primarily a feature
of constitution systems. They
possess this qualify by virtue of a
general public support for their
authority, and may have it in
grater of lesser degree. Successive
government 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 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 "The Nature and Destiny of Man" Vol.ll [New York : Charles Scribner’s sons, 1948] p 266 at page 561 that bureaucracy, therefore, shares this responsibility when it talks in forward thrust to effectuate the Constitutional philosophy 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 fats the executive 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 officers in diametrically opposite socio-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 introducing at whin of the officers, their own criteria contrary to the general policy. Therefore, it was directed by this Court in state of U.P. Vs. Dr. R.K. Tandon [(1995) 3 SCC 616] in paragraph 6 that the rule of reservation if applied and the candidates were selected, accordingly, their seniority vis-a-vis general candidates should be in accordance with the roster maintained by the state Government. The same was reiterated in State of U.P. & Ors. vs. 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 not
strictly following the rule of
roster and reserved for Scheduled
Caste strictly following 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 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 or non- selectees, the inter
se seniority should accordingly be
determined 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 points should
be followed this procedure so that
there will not be any deviation
from 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 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 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 post in the respective vacancies to which the three officers are eligible to be considered and promoted in accordance with the rules with all consequential benefits.
The writ petition is accordingly allowed. The respondent are directed to consider the cases of the officers and if found, to promote them or any of other eligible officers within a period of six months 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.