The
Scheduled Castes and Scheduled Tribes Officers Welfare C Vs. State of Uttar Pradesh & Anr [1996] INSC 1161 (19 September 1996)
K. Ramaswamy,
Faizan Uddin, G.B. Pattanaik
ACT:
HEAD NOTE:
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. E- 210/80-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 counter- affidavit 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 counter- affidavit 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 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 there under.
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 a free 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" 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 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'." 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 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 open- textured 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." X X X X X "It leads us also to characterise
a healthy bureaucratic situation as a situation of responsibility par
excellence." X X X X X "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."
X X X X X "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 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.
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