STATE OF KERALA v. SUNDARAM IYER — 1983 DIGILAW 102 (KER)

Judgment :- 1. These three appeals arise from the judgment in O.P. No. 3076 of 1982. W.A. No. 87 of 1983 is by the State, W.A. No. 88 of 1983 by the 2nd respondent in OP. and W.A. No. 122 of 1983 by the Petitioners in the Original Petition. Since there are three appeals from the same judgment, reference to the parties in this judgments will be as they are arrayed in the Original Petition. 2. The 2nd respondent was the Chief Engineer, Public Health Engineering Department. His date of birth is 4-4-1927. He attained 55 years on 3-4-1982. Under R.60(a) Part I of the Kerala Service Rules, his retirement was to take effect from the A.N. of the last date of the month in which he attained 55 years of age, which meant his retirement was to take effect with effect from 1-5-1982 The Government felt that his continued services were necessary, in view of the fact that certain important negotiations with World Bank authorities regarding Water Supply Schemes with which he was intimately connected, were pending. Therefore by Ext. P1 order dated 7-4-1982 his services as Chief Engineer, P.H.E.D. was extended for a period of two years with effect from 1-5-1982. By the same order an additional post of Chief Engineer in the P.H.E.D. was created and Shri. K. Govindan Nair was provisionally promoted against the newly created post. The 1st petitioner is the senior-most Superintending Engineer and the 2nd petitioner, one of the senior Superintending Engineers. According to them, they are in the normal course entitled to be promoted to the post of Chief Engineer. The petition was filed for the issuance of an appropriate writ to quash Ext. P1 order in so far as it extended the services of the 2nd respondent by two years with effect from 1-5-1982. The learned judge as per the judgment under appeal set aside Ext. P1 in so far as it related to the grant of extension of service to the 2nd respondent and directed the Government to re-examine the matter in accordance with law and with due regard to the observations contained in the judgment. The learned judge, however, permitted the 2nd respondent to continue as Chief Engineer for three months more to enable the Government to make up its mind about the future course of action. W A. Nos. The learned judge, however, permitted the 2nd respondent to continue as Chief Engineer for three months more to enable the Government to make up its mind about the future course of action. W A. Nos. 87 and 88 are filed against the quashing of Ext. Pl. The petitioners in the Original/ Petition had attacked Ext. P1, among other things on malafides. This ground did not find favour with the learned Judge. It is this finding that is the subject-matter of W.A. No. 122 of 1983. 3. The learned Advocate-General appearing for the State in W. A. No. 87 of 1983 and the counsel for the appellant in W. A No. 88 of 1983 submit that the learned judge erred in interfering with Ext. P1 order by his defective approach to the question involved and also by an incorrect understanding of R.60(a) and Note 3 thereunder. According to them, order Ext. P1 was passed strictly in accordance with the provisions of law and after taking into consideration the needs of the Department. The relevant rule clothed the Government with the necessary powers to extend the service of an officer when found necessary. Having found the ground of mala fides unsustainable, the learned judge should have allowed Ext P1 to stand. According to them, Note 3 does not strictly apply. If at all, the case has to be decided in terms of Note 5. They also contend that undue reliance placed by the learned judge on R.10 Part I which deals with consultation with the Finance Department is also wrong in as much as the Rule is only directory and not mandatory. In any case there is compliance with R.10 since the Adviser who initiated the proposal was in charge of finance also. They have also a case that the petition is liable to be dismissed for the reason that Shri K. Govindan Nair who was promoted against the newly created additional post by the same order was not made a party to the petition. According to them, the petitioners have no locus standi to sustain the petition. They have no vested right to get promoted as the Chief Engineers. These submissions were met by the petitioner's counsel with the plea that the judgment was based on a proper appreciation of R.60(a) and Note 3 thereunder and R.10 Part I K SR. 4. According to them, the petitioners have no locus standi to sustain the petition. They have no vested right to get promoted as the Chief Engineers. These submissions were met by the petitioner's counsel with the plea that the judgment was based on a proper appreciation of R.60(a) and Note 3 thereunder and R.10 Part I K SR. 4. We may now briefly advert to the facts of the case as disclosed in the Original Petition and the counter-affidavit. The petitioners have stated that it was not necessary to extend the term of the 2nd respondent since negotiations were going on for Water Supply Schemes with the World Bank Authorities for more than a decade during which period eminent persons who had occupied the post of Chief Engineer were not considered necessary to be granted extension of service. One Mr. J. D. Joy Singh in the cadre of Superintending Engineer in the Department was sent for special training at the World Bank at Washington and his services could have been utilised for further negotiations. The services of a person in the cadre of Chief Engineer is not indispensable. The ground urged for extension is a mere excuse without any bona fides. The records available do not disclose that there was proper application of mind in passing Ext. P1 order. They do not disclose any absolute necessity to retain the service of the 2nd respondent. Even if it was found necessary he could only be re-employed for a maximum period of one year at a time. Successive popular governments had repeatedly decided after due consideration of all the relevant aspects of the matter, against the extension of the services of any officer. Ext. P1 order is passed during the short period of the President's Rule when it was expected that a popular government would assume office shortly. The petitioners have given certain details in the petition about the lack; of bona fides behind Ext. P1 order. The counter affidavit filed by the State disclosed the following details. It is not admitted that the 1st petitioner is the senior-most Superintending Engineer. Shri K Govindan Nair was the senior-most in the feeder category. The chances for promotion of the petitioners are entirely dependent upon the arising of vacancies. The Public Health Engineering Department had been processing major World Bank and bilaterally assisted schemes in the Water Supply Sector for some time. Shri K Govindan Nair was the senior-most in the feeder category. The chances for promotion of the petitioners are entirely dependent upon the arising of vacancies. The Public Health Engineering Department had been processing major World Bank and bilaterally assisted schemes in the Water Supply Sector for some time. Preliminary negotiations with the World Bank regarding the major schemes in the Water Supply Sector were evolved only during the period 1980-81. At the time of processing these schemes and in the matter of conducting preliminary negotiations the 2nd respondent played a crucial part. The knowledge and experience that he gained during such negotiations influenced the Government to come to the conclusion that his services should be made available for the successful completion of further negotiations so that there could be continuity. The Government felt that public interest required that his services should be continued and that his services as the Chief Engineer should be available to the Government for the successful completion of the negotiations. The Government felt that a new incumbent to the office would be new to these sphere of activities and that continuity of the personnel was ordinarily desired by the international agencies. Mr. Joy Singh about whom mention is made in the petition is a relatively junior ranking officer who had only assisted the 2nd respondent in such negotiations. The order Ext P1 was passed strictly in conformity with the relevant rules in the Kerala Services Rules. The counter affidavit filed by the 2nd respondent while detailing the services rendered by him and setting out his achievements endorsed what was contained in the counter affidavit filed by the State. We will now consider the rival contentions and the judgment under appeal against the above facts. 5. According to us, W. A. No. 122 of 1983 can be disposed of without any detailed discussion. This Writ Appeal is directed against that part of the judgment of the learned judge in which he rejected the plea of mala fides. In Para.11 of the judgment the learned judge has observed that "On the averments made and the materials available, I am unable to hold that Ext. P1 decision was based on extraneous considerations such as a desire to favour the 2nd respondent." We agree with respect that the materials placed by the petitioners are neither sufficient nor persuasive to hold that the order Ext. P1 decision was based on extraneous considerations such as a desire to favour the 2nd respondent." We agree with respect that the materials placed by the petitioners are neither sufficient nor persuasive to hold that the order Ext. P1 was passed improperly, under influence or mala fide. The petitioners have not given acceptable data to hold that the order Ext. P1 was passed mala fide. Except stating that in passing Ext. PI order a departure was made from the settled policy and that a presumption of mala fides is possible from the circumstances of the case, nothing further is set out in the petition or the affidavit. Random references to newspaper reports are absolutely insufficient to make out a case of mala fides. The court should have before it strong evidence and persuasive circumstances even to examine cases of mala fides laid at the door of the executive. In this case there is a total absence of such materials. We agree with the learned judge that the petitioners have failed in making out a case of mala fide exercise of power in passing Ext. P1. The case built on locus standi also need not detain us long. It may be true that the petitioners do not come in for consideration to be appointed as Chief Engineer immediately. It is also correct to say that the petitioners do not have a vested right for this post. Even so the 1st petitioner as the Seniormost Superintending Engineer could aspire to be considered to the post, if the extension order had not been passed. The locus jurisprudence has expanded considerably and it cannot be said that the petitioners lack locus standi to maintain the petition. We agree with the learned judge on this point also. 6. That takes us to the important question whether Ext. P1 order has been passed in compliance with R.60(a) Part I of the K S.R., and whether Note3 of the Rule controls it. While considering the validity of Ext. P1 order, tested against the requirements of the Rule and the note, the learned judge held that there was total absence of application of mind by the authorities regarding the various requirements of the rule. He also found that the absence of consultation under R.10 with the Financial Department rendered he order unsupportable. While considering the validity of Ext. P1 order, tested against the requirements of the Rule and the note, the learned judge held that there was total absence of application of mind by the authorities regarding the various requirements of the rule. He also found that the absence of consultation under R.10 with the Financial Department rendered he order unsupportable. He further held that even assuming for a moment that consultation was only directory, the position still remained that the requirements of the Rule were completely overlooked. After referring to the files made available to him, the learned judge observed: "It is clear from the above that before passing Ext. P1 order, no one had cared to examine the scope of Note 3 to R.60 (a) and find out whether the 2nd respondent could be retained on re-employment terms". In Para.18, the learned judge observed: "The file also does not disclose that any one had brought to the notice of the Adviser the availability of Sri Joy Singh to take up the thread of negotiations, or the circumstance that change of personnel had been creating no problems for other departments like the P.W.D." and then proceeded to formulate the following questions to support his conclusion of a total lack of application of mind: "When was the scheme for bilateral assistance first mooted? What was its magnitude? What stage had the negotiations reached by the time of Ext. P1, and who were the Government representatives involved? Was there any previous experience of foreign agencies being discouraged by new face? Had the Department, or anyone else who could be supposed to be in the know of things, raised the problem of continuity in any note or other communication? Were the negotiations likely to take two years? Was the 2nd respondent unwilling to be dealt with under Note 3? What impact the proposal could have made on the morale of other officers, and the Department in general? The records do not give any answer to these questions. The first respondent's counter affidavit does not indicate that the above questions were either asked or attempted to be answered". (para. 18) With great respect, we wish to state that the learned judge has subjected the order Ext. P1 to such minute scrutiny as will not be justified in exercise of Art.226 jurisdiction. The first respondent's counter affidavit does not indicate that the above questions were either asked or attempted to be answered". (para. 18) With great respect, we wish to state that the learned judge has subjected the order Ext. P1 to such minute scrutiny as will not be justified in exercise of Art.226 jurisdiction. It is not the function of this Court to insist upon a disclosure of all information from the executive when the validity of an order is questioned especially when it is not tainted with mala fides. We do not feel it will be proper to extend the jurisdiction under Art.226 to such an extent as to call upon the executive to justify its acts in such detailed manner. In this case, materials are placed before the court by way of pleadings on either side and the files to test whether Ext. P1 order had been passed in compliance with the Rules governing it. The learned judge has observed in Para.15 as follows after perusing the files: "On 2-4-1982, the Special Secretary met the Adviser with "Papers available in regard to the retirement and filling up of the vacancy", and held some discussions; and on 5-4-'82, the Adviser minuted that 'though Government's policy was not to give extensions, there was a case for extending the services of the 2nd respondent for two years as his continued presence would be useful,' in conducting negotiations with the World Bank and other Government missions who will be coming for discussions in connection with these projects". It is after referring to this and the other papers on the file that the learned judge observed that no one had cared to examine the scope of Note 3 to R.60(a). We are constrained to observe, with respect, that on facts, it cannot be said that there was a total absence of application of mind regarding the various aspects of the case. Files may not contain all the various aspects of discussion in a particular matter. While dealing with orders emanating from the heads of Departments, the usual inference that all the necessary aspects of the case had been taken into account, will have to be drawn. We would like to view the order Ext. P1 against this setting and will proceed to consider the challenge against it with reference to the materials that are before us. 7. The relevant paragraphs in Ext. We would like to view the order Ext. P1 against this setting and will proceed to consider the challenge against it with reference to the materials that are before us. 7. The relevant paragraphs in Ext. P1 relating to the extension of the 2nd respondent's service read as follows: "Shri N. S. Bhairavan, Chief Engineer", Public Health Engineering Department is due to retire on superannuation on 30-4-1982. Government consider that his continuance as Chief Engineer, Public Health Engineering Department for a further period of two years from 1-5-1982 is necessary at a time like this when the Public Health. Engineering Department is processing major World Bank and bilaterally assisted schemes in the Water Supply Sector especially in conducting negotiations with World Bank and other Government missions who will be coming for discussions in connection with these projects. Government are therefore pleased to order that Shri Bhairavan's service as Chief Engineer, Public Health Engineering Department will be extended for a period of 2 years with effect from 1-5-1982" The decision was taken by the Adviser, who, as per the rules and distribution of business among advisers, was in charge of the Public Health Engineering Department as well as Finance, after necessary discussions. The Adviser has minuted as follows: "Though it is not the policy of the Government to give extension of service to officers superannuating in the normal course, there is a case for considering extension of service to Shri Bhairavan, as his wide experience and undoubted abilities will be an asset to the Government at a time like this, when the P.H.E.D. is processing major World Bank and bilaterally assisted schemes in the Water supply sector. His continued presence will be useful in conducting negotiations with Word Bank and other Government missions who will be coming for discussions in connection with these projects. Therefore I recommend that extension may be given in his case for a period of two years". It was pursuant to this that Ext. P1 order was passed. The above extract from the file clearly reflects a proper consideration of the need to extend the service of the 2nd respondent, of an application of mind regarding his credentials for the same and regarding the benefits that would accrue to the Department by his continued service. It was pursuant to this that Ext. P1 order was passed. The above extract from the file clearly reflects a proper consideration of the need to extend the service of the 2nd respondent, of an application of mind regarding his credentials for the same and regarding the benefits that would accrue to the Department by his continued service. The above extract, in our view, clearly shows that the Adviser had viewed the public interest, if the 2nd respondent was given extension of service. When the need to continue his service is so clearly spelt out in this minute, the question that falls for our decision is whether the absence of expression like "absolute necessity," and re-employment after retirement that we find in note 3, should influence us to hold that Ext. P1 is not validly passed. With respect, we would like to observe that the learned judge was not right in saying that failure to consider Mr. Joy Singh's case, failure to give an opportunity to the 2nd respondent to see whether he receives the offer or spurns it and failure to consider how the proposal made would affect the morale of the other officers in the Department, and the absence in the counter affidavit of indications that the above questions were either asked or attempted to be answered, were sufficient to view Ext. P1 order as one passed without observing the mandate contained in R.60(a). In our view, such questions are purely academic in nature and not relevant to the case. Nobody has a case that the 2nd respondent is unwilling to accept the job. No one has a case that the morale of the officers in the Department would be affected. The Head of a Department should be expected to consider the various aspects before a decision is taken and it is our considered view that in the absence of bias, undue influence or mala fides, an intensive investigation into the background of an order, in the manner suggested by the learned judge, will not be justified. 8. The Head of a Department should be expected to consider the various aspects before a decision is taken and it is our considered view that in the absence of bias, undue influence or mala fides, an intensive investigation into the background of an order, in the manner suggested by the learned judge, will not be justified. 8. Before we refer to the Rule and the Note we may usefully refer to a decision by Balakrishna Eradi, J. as he then was in Balakrishnan Nair G. v. The Travancore Devaswom Board (ILR.1972(1) Kerala 25) as to how the learned judge understood the scope of this court's jurisdiction while considering an extension under R.60(a) Part I K.S.R. In that case the Devaswom Commissioner was given extension of service by one year in the service of the Travancore Devaswom Board. After quoting the Rule the learned judge observed as follows: "In the instant case it is seen from the relevant resolution of the Board, a copy of which has been produced along with the counter-affidavit and marked as Ext. BI, that the decision to re-entertain the 2nd respondent into its service for a term of one year was taken by the Board in view of the opinion formed by it that the service of such an experienced and honest officer like the 2nd respondent would be of considerable help in successfully implementing the'Kodi Archana' scheme started by the Sabarimala! Devaswom and some other similar schemes that had been already undertaken. Under R.60(a) referred to above it is entirely for the Board to decide whether the continuance of one of its servants beyond the normal date of compulsory retirement is necessary on public grounds. If that authority bona fide forms that opinion, the correctness of such opinion cannot be challenged before this Court under Art.226 of the Constitution (See Union of India v. Col. F. N. Sinha and Another (1970) II S.C.W.R. 393). It is not possible for me to accept the contention advanced by the petitioner that the grounds stated by the Board in Ext. BI for coming to the conclusion that the retention of the 2nd respondent in service was necessary in the interests of its administration are not germane under R.60(a). F. N. Sinha and Another (1970) II S.C.W.R. 393). It is not possible for me to accept the contention advanced by the petitioner that the grounds stated by the Board in Ext. BI for coming to the conclusion that the retention of the 2nd respondent in service was necessary in the interests of its administration are not germane under R.60(a). On the other hand, in my opinion, that the retention in service beyond the age of 55 years of an officer of proved honesty and ability would be of help in the matter of implementation of some schemes which had been already commenced by him is a circumstance of undoubted relevance in determining whether or not the exercise of the discretionary power conferred by R.60(a) of extending his tenure of service". With respect, we feel that this is the correct approach to be made while considering an order like Ext. P1. It is necessary to note that the learned judge was not called upon to consider the impact of Note 3 to R.60(a). Even so, the confines of Art.226 jurisdiction while considering an order under R.60(a) have been clearly laid down in the above decision. 9. Now we will read R.60(a): "60. (a) Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years. He may be retained after this date only with the sanction of Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances". The 2nd respondent, attained the age of 55 years on 3-4-1982. He was to retire on superannuation on 30-4-1982. Under the Rule he can be retained after this date only with the sanction of the Government. The sanction is present here. Retention has to be on public grounds which must be recorded in writing. This condition is also satisfied because the minutes of the Adviser and the two paragraphs in Ext.P1 clearly contain recorded reasons in writing for retention of the 2nd respondent on public grounds. We do not think it necessary to enter into a detailed discussion whether Note 3 controls R.60(a) or not. For the purpose of this judgment, we hold that Note 3 forms part of the Rule. We do not think it necessary to enter into a detailed discussion whether Note 3 controls R.60(a) or not. For the purpose of this judgment, we hold that Note 3 forms part of the Rule. But what has to be decided is whether Ext. P1 order is bad for its failure to comply with the elements in Note 3. This we propose to do despite the fact that Ext. P1 order on its face does not purport to be one passed under Note 3. We will read Note 3 and then proceed to consider its scope: "Note 3: Even in cases where it is found absolutely necessary to retain the services of an officer who has attained the age of 55 years as far as possible only re-employment after retirement should be resorted to, which shall not ordinarily be sanctioned for more than one year at a time". Juxtaposed with Note 3, we may also read Note 5 on the strength of which a submission was made by the 2nd respondent's counsel before us: "Note 5: Except when extension of service is specifically sanctioned, the retirement of an officer is automatic and no separate sanction is required". The 2nd respondent's counsel submits that Ext. P1 order is not one passed under Note 3. Note 3 speaks of re-employment of an officer after retirement. If the Government finds that it is absolutely necessary to retain the services of an officer who has attained the age of 55 years, the Government should resort, as far as possible, to re-employment of that officer after retirement in which case such re-employment shall ordinarily be limited for a period not more than one year at a time. Relying upon Note 5 it is submitted that in this case it is not re-employment after retirement but is extension of service before retirement. Under Note 5, if there is no extension of service, then retirement of an officer is automatic without any separate sanction for it. He submits that the requirements of Note 3 need be looked into only if Ext. P1 order is one under which the 2nd respondent was re-employed after retirement. In case of extension of service the date of retirement is not the date on which the Officer superannuates but the date on which the extension expires. He submits that the requirements of Note 3 need be looked into only if Ext. P1 order is one under which the 2nd respondent was re-employed after retirement. In case of extension of service the date of retirement is not the date on which the Officer superannuates but the date on which the extension expires. He tries to reinforce the submission with reference to Note 2 to R.SA in Appendix X Part A of K.S.R. which reads: "Note 2: Date of retirement on superannuation means the date on which the Government servant quits service on superannuation. In the case of extension of service, the date of expiry of such extension shall be reckoned as the date of retirement on superannuation." If Ext. P1 order is one by which the 2nd respondent is given extension of service under Note 5 read with R.60(a) then all the requirements of R.60(a) are satisfied. We find some force in the submission. The order Ext. P1 is passed on 7-4-82'. The 2nd respondent was to retire on 30-4-1982. Therefore Ext. P1 is not a re-employment after retirement. By Ext. P1 the 2nd respondent is given extension of service. R.60(a) says that the Government can retain an officer on public grounds which must be recorded in writing. Since the requirements are satisfied the order has to stand. Nothing can be said against the order as being violative of either the Rule or the Note. 10. We will not rest content with the above conclusion. Even conceding for argument sake that Note 3 should also be satisfied, we do not think we will be justified in faulting Ext. P1 order for the reason that the learned judge mentioned in the judgment. It is true that the files or the counter affidavits do not use the words "absolutely necessary" to justify Ext. P1 extension. Even if we consider Ext. P1 order to mean a re-employment after retirement, we find sufficient indications in the files to infer that the Adviser had applied his mind properly. He has minuted that the 2nd respondent is an officer of undoubted ability with wide experience. His continuance was thus felt necessary in the interests of the Department and the public. A strong plea was made by the petitioners against the extension of two years given in Ext. P1 at a time. Here again, we find, that Note 3 is not unduly rigid. His continuance was thus felt necessary in the interests of the Department and the public. A strong plea was made by the petitioners against the extension of two years given in Ext. P1 at a time. Here again, we find, that Note 3 is not unduly rigid. While Note 3 speaks of sanction for only one year at a time, the use of the word 'ordinarily' is suggestive of some discretion in the authority to go beyond one year in appropriate case. The Minutes of the Adviser have dealt upon the negotiations going on with the World Bank Authorities which might occupy some length of time which might justify the extension by two years. We find that the consistent policy of successive elected popular governments had been against such extension which, in our view, is a salutary and desirable principle. The petitioners' case here is that Ext. P1 order is a departure from this well settled principle. On a close consideration of the facts pleaded by the petitioners, it may not be possible to agree with the petitioners' case. On the facts of this case, we find that the requirements of Note 3 are also satisfied and therefore we do not find sufficient justification to invalidate Ext. P1 order. Ext. P1 order cannot be characterised as one passed either arbitrarily as is contended by the petitioners or in defiance of the provisions contained in R.60 (a) and Note 3 as is found by the learned Judge. The extent of scrutiny in such cases should be limited to a reasonable appraisal of the facts and circumstances of the case and the court should not undertake a search for reasons to fault the order. If with reference to the files and other materials the court could be satisfied that the order was passed in public interest, the court should normally stay its hands and not try to probe into it incisively to discover invalidating circumstances. It is in this view that we hold that the court normally should not search for reasons to find fault with orders like Ext. P1. In support of the view, we rely on the following guidelines issued by the Supreme Court and this Court. A Full Bench of this Court in Sreedharan v. State of Kerala (1976 KLT. It is in this view that we hold that the court normally should not search for reasons to find fault with orders like Ext. P1. In support of the view, we rely on the following guidelines issued by the Supreme Court and this Court. A Full Bench of this Court in Sreedharan v. State of Kerala (1976 KLT. 594) while considering the scope of its jurisdiction where an order under S.60A, KSR., Part T, was under challenge, observed that in Para.7: "No doubt, this Court cannot weigh the various aspects for and against an employee to determine whether it is in the public interest or not to retire the Government servant. The decision must certainly be that of the Government, and only that of the Government, and therefore the learned Advocate-General is well-founded in his submission that we are not only unable to sit in judgment but that our scrutiny will be very limited". In Union of India v. J. N. Sinha (AIR. 1971 SC. 40) while considering the right of the appropriate authority under Fundamental Rules, R.560) to retire a government servant if it is of the opinion that it is in the public interest to do so, observed as follows in Para.8: "The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority roust be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts ". 11. What remains to be considered in this context is the submission made based on R.10 Part I of K.S.R. which reads:, " ' "No powers may be exercised or delegated under these rules except after consula-tion with the Finance Department. It shall be open to that Department to prescribe, by general or special order, cases in which its consent may be presumed to have been given". The learned judge observes that under R.10 the Finance Department has to be consulted before exercise of powers, under the K.S.R. Its consent can be presumed only if there are orders issued in that behalf. The learned judge observes that under R.10 the Finance Department has to be consulted before exercise of powers, under the K.S.R. Its consent can be presumed only if there are orders issued in that behalf. He further observes that consent is a strong word which is different from consultation and according to him from the negative language used, the requirements of the rule appear to be mandatory. After referring to certain authorities he concludes that R.10 reflects the legislative intent that the exercise of power without consultation with the Finance Department renders an order passed invalid. The petitioners' counsel repeated this submission before us also, now re-inforced with a finding in their favour by the learned Judge. The learned Advocate-General and the 2nd respondent's counsel met this plea contending that the Rule was only directory and not mandatory. They further submit that since the Adviser who initiated the move was in charge of finance also the necessary consultation should be deemed to be present. According to us the second part of the rule does not apply. In the first part the word used is 'may', which in our view considerably softens the rigour of the rule. The insistence on consultation with the Finance Department should be viewed in the particular context of each case. It will be useful to consider as to what is the financial implication in Ext. P1 order. The financial burden is only in the creation of an additional post. With this the petitioners have no complaint, for, they themselves will be benefited if the additional post continues. They are not prejudiced by the creation of an additional post. What they contend is that the passing of Ext. P1 order without the formal consultation with the Finance Department makes the order unsupportable under R.10. Cannot consultation be inferred in this case? To the State's submission that the Adviser is in charge of the finance also, the petitioners' counsel submits that he is not the Head of the Department. He invites us to the definition clause R.12(13) dealing with "Heads of Departments" which says that the term includes(a) officers who have been declared by the Government to be Heads of Departments, (b) Any other authority to which the Government may delegate the powers of a Head of Department (see Appendix II). He invites us to the definition clause R.12(13) dealing with "Heads of Departments" which says that the term includes(a) officers who have been declared by the Government to be Heads of Departments, (b) Any other authority to which the Government may delegate the powers of a Head of Department (see Appendix II). In Appendix II among the list of Heads of Departments neither the Adviser nor the Minister is shown. The counsel therefore submits that a decision by the Adviser without consultation with the Finance Department offends R.10. 12. The definition Clause.12(13) is an inclusive definition. It is not disputed that in this case the Adviser is in charge of Finance also. The Finance Department including the Finance Secretary is under him. The petitioners counsel submits that the consultation as contemplated under R.10 should start from the grass roots and should reach the Head of the Department in the usual course when alone effective consultation under R.10 will be satisfied. We do not find much substance in this submission. Apart from the fact that the rule is directory in nature, the fact that the proposal itself was initiated by the Adviser in charge of finance, sufficient compliance with R.10 should be presumed and the order cannot be faulted for absence of such consultation, as projected by the petitioner's counsel. As indicated above, this consultation is to bring into focus the financial implications of a proposal. A wide-ranging proposal involving high financial implications, without effective and proper consultation with the Finance Department will be viewed with suspicion and the proposal can be subjected to critical analysis by a court. But not in a case like this where the only financial implication is not the extension of the 2nd respondent's service but the creation of an additional post with which the petitioners have no complaint. The learned judge has observed that the extension of service of an officer may have financial implications relating to increments, pension and gratuity making the opinion of the Finance Department important and that the rule has a purpose and design in the public interest; the public ground in R.60(a) is not altogether foreign to the public interest underlying R.10. With great respect, the scrutiny of Ext. P1 order based on non-compliance with R.10 in the manner done by the learned judge does not appear to us wholly justified. With great respect, the scrutiny of Ext. P1 order based on non-compliance with R.10 in the manner done by the learned judge does not appear to us wholly justified. In the facts of the case, we hold that there is sufficient compliance with R.10 because it was the Adviser in charge of Finance who had passed Ext. P1. The fact that the State is supporting Ext.P1 order by filing its counter affidavit and also by taking the matter in appeal even after a popular government came into being, are factors to show that the order does not suffer from arbitrariness and that it was passed in haste at a time when there was no popular ministry. We therefore hold that the learned judge was not right in quashing Ext. P1 order. 13. The 2nd respondent's counsel contends that the Original Petition is not maintainable because there is only a partial challenge against Ext. P1 and one of the beneficiaries under it Shri K. Govindan Nair has not been a party. In other words, Ext. P1 order is one and indivisible and in the absence of a challenge against the entire order without Shri Govindan Nair on the party array, this Court shall not approve the invalidation of the said order. He submits that the prayer in the petition is to quash Ext. P1 only to the extent that it extends the service of the 2nd respondent. To this submission, the petitioners' counsel says that the second part of the order promoting Shri Govindan Nair as additional Chief Engineer is severable and can stand even when the earlier part is quashed and therefore this plea has to fail. This new plea put forward now is not wholly without substance. If Ext. P1 is quashed only to the extent that it grants extension to the 2nd respondent what remains is the promotion of Shri Govindan Nair as additional Chief Engineer. There cannot be an additional Chief Engineer without a Chief Engineer. When the matter goes back to the Government, a decision could be taken which might prejudice Govindan Nair. Therefore, it can be contended that in the absence of Govindan Nair, the challenge against Ext. P1 is not proper. It might also be contended that when the matter goes back the entire case is at large before the Government and what would ultimately happen to Shri Govindan Nair is anybody's guess. Therefore, it can be contended that in the absence of Govindan Nair, the challenge against Ext. P1 is not proper. It might also be contended that when the matter goes back the entire case is at large before the Government and what would ultimately happen to Shri Govindan Nair is anybody's guess. While we hold that it would have been more proper for the petitioners to have impleaded Shri Govindan Nair also, we do not propose to dismiss the petition on this tenuous ground of non-impleading him and non-challenging the entire order. On a consideration of the judgment under appeal and the relevant facts and other materials including the files made available before us by the learned Advocate-General, we hold that the learned judge was not right in quashing Ext. P1 order to the extent that it granted extension to the 2nd respondent. In the result, we allow W. A. Nos. 87 and 88 of 1983 and dismiss W.A. No. 122 of 1983 and consequently dismiss O.P. No. 3076 of 1982 with direction that the parties will bear their respective costs.