SUSHIL CHANDRA SRIVASTAVA v. STATE OF U P — 1995 DIGILAW 1101 (ALL)

R. A. SHARMA, J. Petitioner in writ petition No. 2020 of 1995 is an advocate of this Court. Petitioner No. 1 in writ petition No. 3587 of 1995 is registered Association of the Employees and Officers of U. P. Public Service Commission, Allahabad (hereinafter referred to as the Commission), of which petitioner No. 2 is the President. They have filed these writ petitions challeng ing the thirteenth amendment dated September 7, 1994 of the Uttar Pradesh Public Service Commission (Limitation of Function) Regulation, 1954, made under the proviso to clause (3) of Article 320 of the Constitution dispensing with the consultation with the Commission on the matters relating to appoint ment by promotion to the State Civil service and post and the principle to be followed in making such appointment. Consultation with the Commission as regards the appointment by direct recruitment to ibe State Civil service and post has also been reduced/curtailed substantially. 2. Both the Commission and the State Government have filed their counter-affidavits and the petitioner has filed rejoinder-affidavit in reply thereto. We have heard Sri Ashok Bhushan, learned counsel for the peti tioner, Sri Rakesh Owivedi, learned Additional Advocate-General and Sri V. M. Sahai, learned counsel for the Commission. We have also heard the learned counsel for the interveners. 3. Learned counsel for the petitioner has challenged the impugned regulations on two grounds, viz. (i) they are outside the purview of Proviso to clause (3) of Article 320 of the Constitution and amount to fraud on the Constitution ; and (ii) they are unreasonable, arbitrary and are violative of Article 14 of the Constitution. Learned Additional Advocate General apart from disputing the above contentions, has raised preliminary objection about the maintainability of the writ petitions at the instance of the peti tioners. 4. Before dealing with the main issue it is necessary to deal with the Primarily objection at threshold. Petitioner in writ petition No. 2020 of 1995 is a practising Advocate of this Court. He filed this writ petition as a public interest litigation. His grievance is that the impugned regulations nave been issued in violation of constitutional obligations and they have caused injury to the public interest. Petitioner in writ petition No. 2020 of 1995 is a practising Advocate of this Court. He filed this writ petition as a public interest litigation. His grievance is that the impugned regulations nave been issued in violation of constitutional obligations and they have caused injury to the public interest. He says that he being an advocate practising before this Court is vitally interested in the welfare of the public and the public interest and if the impugned regulations are implemented the Commission will become a non- entity, and the State Government will be free to make appointment by promotion or even by direct recruitment to any post and the service in the Scale without regard to merit, which will ultimately affect the rule of law as welt as law and order in the State. In writ petition No. 3587 of 1995 the petitioner No. 1 is Association of the employees and officers of the Commission. Its grievance is that in view of the impugned regulations the working of the Commission will be reduced, which may lead to retrenchment of some of its employees. 5. It is true that a person who files a writ petition under Article 226 of the Constitution must be a person aggrieved by the action or the order impugned in the writ petition. This is the rule which has to be followed in a private litigation which can only be maintained at the instance of the aggriev ed person. Such a rule has, however, been relaxed in public interest litigation by a series of decisions of Supreme Court according to which any person acting bona fide and having sufficient interest for initiating such an action for purpose of redressal of the public wrong or public injury, can file a writ petition. Reference, in this connection, may be made to Janta Dal v. H. C. Chaudhary, AIR 1993 SC 892 ; D. C. Wadha v. State of U. P. . AIR 1987 579 and Bangalore Medical Trust v. B. S. Muddappa, AIR 19 91 SC 1902 ). A practicing advocate has sufficient interest to maintain a writ petition by way of public interest litigation, if by the impugned action the public interest of public good is really being affected. AIR 1987 579 and Bangalore Medical Trust v. B. S. Muddappa, AIR 19 91 SC 1902 ). A practicing advocate has sufficient interest to maintain a writ petition by way of public interest litigation, if by the impugned action the public interest of public good is really being affected. The fact that the practising advocate has such a right and interest to file writ petition by way of public interest litigation for the redressal of grievance relating to public interest, has been recognised by the Supreme Court in S. P. Gupta v. President of India, AIR 1982 SC 149 . Recently in Jai Shanker Prasad v. State of Bihar, AIR 1993 SC 1906 a writ petition at the instance of an advocate before the High Court and appeal arising therefrom before the Supreme Court, were entertained. The preliminary objection regarding maintainability of writ petition No. 2020 of 1995 has, therefore, to be rejected. 6. The grievance of the petitioners in writ petition No. 3587 of 1995 is purely speculative. Their case is that if the impugned amendment is imple mented there will be hardly any work with the Commission on account of which there is likelihood of retrenchment of the Commissions employee. Such an interest is too remote to be given judicial recognition. That apart, Government in para 3 of its counter-affidavit has stated that there is no intention or proposal of the Government to abolish any post created in the Commission. Apprehension of the petitioner regarding retrenchment of the employees of the Commission has thus been denied, the interest of the petitioner being purely speculative without any reasonable basis, this writ petition is misconceived and is not maintainable. 7. Executive power of the State is discharged by the council of minis ters aided and advised by the civil servants. It is function of the ministers to lay down the policy and it is the duty of the Civil Servants to carry it out. Civil Servants do not merely carry out the policy laid down by the ministers, but they also administer the law by exercising various powers assigned to them by the legislative enactments and the Rules and Regulations framed thereunder. They also exercise executive power of the Slate for and on behalf of the Government. Civil Servants do not merely carry out the policy laid down by the ministers, but they also administer the law by exercising various powers assigned to them by the legislative enactments and the Rules and Regulations framed thereunder. They also exercise executive power of the Slate for and on behalf of the Government. Functions of the Civil Servants seeing the im portance of the Civil Servants in the democratic set-up our Constitution-makers did not accept the system of (sic) committed civil servants of the Government. They accepted the system consisting of politically neutral, fearless, efficient and meritorious civil servants for implementing the Government policy and for running the administration. In order to achieve this object, provisions have been made in the Constitution for the appointment of the Government servants selected by the Commission, which is an independent and autonomous body consisting of experts. Chapter II of Part XIV of the Constitution deals with Public Service Commission. Article 315 provides for separate Public Service Commission both for Centre and the State. Functions of the Com mission have been specified in Article 320, according to which one of the important functions is to conduct the examinations for the appointments to the Civil Services and post on merit. Article 320 (3), which requires the constitution with the Commission on the matters specified therein, is repro duced below : "320 (3 ). Functions of the Com mission have been specified in Article 320, according to which one of the important functions is to conduct the examinations for the appointments to the Civil Services and post on merit. Article 320 (3), which requires the constitution with the Commission on the matters specified therein, is repro duced below : "320 (3 ). The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted- (a) on all matters relating to methods of recruitment to civil services and for civil posts ; (b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or trans fers ; (c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters ; (d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Govern ment of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid or, as the case may be, out of the Consolidated Fund of the State ; (e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Com mission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them : Provided that the President as respects the all-India Services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any parti cular circumstances, it shall not be necessary for a Public Service Commission to be consulted. " 8. Although clause (3) of Article 320 requires consultation by the Government with the Commission on the matter specified therein, but proviso appended thereto has conferred the power on the Government to take certain matters which may be specified by means of regulations outside the purview of the Commission and in such matters consultation with it is not required. Government is thus free to specify any matter set out in sub-clauses (a) to (e) of clause (3) of Article 320, so as to exclude the necessity of consultation with the Commission. 9. The Government of Uttar Pradesh has framed regulations in exercise of power conferred on it by Proviso to Article 320 (3) of the Constitution which are known as The Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954 (hereinafter referred to as the regulations ). These regulations have already been amended twelve times by the Government taking various matters out of the purview of the Commission. By thirteenth amendment, which has been impugned in this writ petition, the matters relating to the suitability of the candidates in making promotion to the State service and post and the principle to be followed in such cases have been completely taken out of the purview of the Commission. By the same amendment con sultation with the Commission on matters relating to direct appointment to the State service and post have also been substantially curtailed/reduced. The impugned regulations, as introduced by the thirteenth amendment, are as under: "3. It shall not be necessary for the Commission to be consulted on matters relating to methods of recruitment to civil services and posts, or the principles to be followed in making appointments, through direct recruitment to such services and posts, or the suitability of candidates for such appointments, in the following cases : (a) When the appointing authority in respect of the service or posts concerned is an authority other than the Governor, unless in any particular case, Government have directed or may after consultation with the Commission direct that the service or post in question shall be within the purview of the Commission. Note ;-The services and posts mentioned in the Schedule appen ded to the U. P. Public Service Commission (Limitation of Functions) Regulations, 1941, as in force before the date of this notification, shall continue to remain under the purview of the Commission until a direction to the contrary is issued by the Government, after consultation with the Commission. (b) When the appointing authority in respect oi the service or post concerned is the Governor, but the Governor for any reason directs, after consultation with the Commission, that the service or post in question shall be outside the purview of the Commission. (c) When the appointing authority in respect of the service or post concerned is the Governor or is an authority other than the Governor and the person concerned being directly appoint ed on ad hoc basis on or before the date notified by Government possessed requisite qualifications for regular appoint ment at the time of such ad hoc appointment and has completed three years continuous service on or after the said date. 6. Promotion.-It shall not be necessary to consult the Commission : (a) on the suitability of candidates in making promotion to a post, notwithstanding the fact that certain percentage of such post is within the purview of the Commission, (b) on the principles to be followed in making promotion to a post where : (i) promotion is the only source of recruitment, (ii) direct recruitment is one of the sources of recruitment and the same is not made through the Commission. Explanation.--The provisions of this regulation shall also apply to requisition pending with the Commission on the date of commencement of the Uttar Pradesh Public Service Commission (Limitation of Functions) (Thirteenth Amendment.) Regulation 1994 in which selection for promotion has not been finalised by the Commission. " 10. By the impugned Regulation necessity of consultation with the Commission on matters relating to suitability of the candidates in making promotions to civil service and post as well as principle to be followed in making such promotions, has been completely dispensed with, it is now no more necessary for the Government to consult the Commission for making appointment by promotions to any State service or post. Government is also not required to consult the Commission on matter relating to recruitment to civil service or principle to be followed in making such appointment in all those cases where the Governor is not the appointing authority. Even regarding those services where the appointing authority is the Governor, consultation with the Commission can be dispensed with by Governor without formulating any further regulation under proviso to Clause (3) of Article 320 of the Constitution. Thus consultation with the Commission on matter relating to direct recruitment has been completely excluded, when the appointing authority is an authority other than the Governor and in chose services where the Gover nor is the appointing authority consultation with the Commission depends on the will of the Governor, which means the State Government. As men tioned above appointments by promotion have been completely taken out of the purview of the Commission. Thus the State Government is free to make appointment to the State services and the post, both, by direct recruitment as well as by promotion, without consulting the Commission. Commission thus has become a non-entity, in the matter of appointment and promotion to the State service and post. All this has been done by the Government in exer cise of power under the proviso to Clause (3) of Article 320. 11. Law with regard to proviso is well settled by the decisions of the Court. Supreme Court in S. B. K. Oil Mills v. Subhash Chandra Yograj Sinha, AIR 1961 SO 1596, has, in this connection, laid down as under : "the law with regard to provisos is well settled and well understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. " Proviso which creates an exception cannot be construed so as to nullity the enactment to which it is added, because it does not contain a general rule and what it contains is an exception to the general rule. The exception cannot swallow up the general rule. Reference in this connection may also be made to R. S. Swamiji v. Slate of Mysore, AIR 1966 SC 1172 , wherein Macboth v. Ashley (Iis74)2 SC and Div. 352, which has laid down that an exception can not swallow general rule, was referred to. The exception cannot swallow up the general rule. Reference in this connection may also be made to R. S. Swamiji v. Slate of Mysore, AIR 1966 SC 1172 , wherein Macboth v. Ashley (Iis74)2 SC and Div. 352, which has laid down that an exception can not swallow general rule, was referred to. In Madhu Gopal v. VI Additional District Judge, AIR 1989 SG 155 while considering the effect of the proviso it has been laid down as under ; "in any event, it is a well settled principle of construction that unless clearly indicated, a proviso would not take away substan tial rights given by section or sub-section. " It was accordingly held therein that the proviso cannot defeat and destroy that which is contained in the section or sub-section to which it is added, unless intention of the legislature is clear. 12. Although Government is the appointing authority of ail civil servants, but the constitution-makers by enacting Article 320 require the selection of the Government servants by the Commission, which is independent and auto nomous body, free from control of the Government. Proviso to Clause (3) to Article 320 was added so as to enable the Government to make such appoint ments without consultation with the Commission in exceptional cases, where such consultation is not found expedient. It was never intended that the general rule which is contained in Clauses (1) and (3) of Article 320 would be nullified by exercising the power under the Proviso to Clause (3 ). By the impugned amendment, exception which is contained in Proviso to Clause (3) of Article 320, has been converted into a general rule and the general rule which is contained Clauses 1 and 3. of said Article, has been nullified and given a good-bye. Such a situation is not contemplated by Article 320. Such a power, therefore, cannot be exercised under the said proviso. 13. It is true that Clause (3) of Article 320 have been held to be direc tory by the Supreme Court. But that does not give any right to the Govern ment to ignore the Commission altogether. Such a situation is not contemplated by Article 320. Such a power, therefore, cannot be exercised under the said proviso. 13. It is true that Clause (3) of Article 320 have been held to be direc tory by the Supreme Court. But that does not give any right to the Govern ment to ignore the Commission altogether. In State of U. P. v. Manbodhan Lal, AIR 1957 SC 912 Supreme Court while declaring Article 320 (3) (c) as directory, has laid down as under ; "if it had been intended by the makers of the Constitution that con sultation with the Commission should be mandatory, the proviso would not have been there, or, at, any rate in the terms in which it stands. That does not amount to saying that it is open to the Executive Government, completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. " In the instant case the State Government has, by impugned amendment, ignored the Commission in the matter of appointment to the State Service. What has been given by Clauses (1) and (3) of Article 320, has been taken away by the Government, by exercising the power under the proviso to Clause (c ). Such a power is not conferred by the said proviso. 14. A Departmental Committee consisting of the Government servants for making selection for appointment to the civil services, either by direct recruitment or by promotion, is no substitute of the Commission. The ground realities of the present day cannot be lost sight of. Mechanism through which honest and efficient persons are victimised by high-ups are well known. Reference in this connection may be made to a decision of Supreme Court in Delhi Transport Corporation v. D. T. C. Mazdoor Congress, AIR 1991 SC 101 , where in paragraphs 223 and 243 it v/as laid down as under : "there is need to minimize the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however, high they may be. There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can con veniently and easily be covered by the rule of law. **** The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many funda mental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbe of undefined premises and uncertain applications. That will be a mockery of them. **** The prevailing social conditions and actualities of life are to be taken into account to adjudging whether the impugned legislation would subserve the purpose of the society. The arbitrary, unbridled naked power of wide discretion to dismiss a permanent employee without any guidelines or procedure would tend to defeat the constitutional purpose of equality and allied purposes referred to above. Courts would cake note of actualities of life that persons actuated to corrupt practice are capable, to maneuver with higher echelons in diverse ways and also camouflage their activities by becoming sycophants or chronics to the superior officers. Sincere, honest and devoted subordinate officer (area) unlikely to lock the boots of the corrupt superior officer. Courts would cake note of actualities of life that persons actuated to corrupt practice are capable, to maneuver with higher echelons in diverse ways and also camouflage their activities by becoming sycophants or chronics to the superior officers. Sincere, honest and devoted subordinate officer (area) unlikely to lock the boots of the corrupt superior officer. They develop a sense of self-pride for their honesty, integrity and apathy and inertia for wards the corrupt and tend to undermine or show signs of disrespect or disregard towards them. Thereby, they not only become inconvenient to the corrupt officer but also stand an impediment to the on-going smooth siphony of corruption at a grave risk to their prospects in career or even to their tenure of office. The term efficiency is as elusive and relative one to the adopt capable to be applied in diverse circumstances. If a superior officer develops likes towards sycophant, though corrupt, he would tolerate him and found him to be efficient and pay encomiums and corruption in such cases stand no impediment. When he finds a sincere, devoted and honest officer to be incon venient, it is easy to cast him/her off by writing confidential with delightfully vague language imputing to be not up to the mark, wanting public relations etc. Yet times they may be termed to be "security risk" (to their activities ). Thus they spoil the career of the honest, sincere and devoted officers. Instances either way are galore in this regard. Therefore, one would be circumspect, pragatic and realistic to these actualities of life while engulating constitutional validity of wide arbitrary, uncanalised and unbridled discretionary power of dismissal vested in an appropriate authority either by a statute or a statutory rule. Vesting arbitrary power would be a feding ground for nepotism and insolence ; instead of subserving the constitutional purpose, it would defeat the very object, in particular, when the tribe of officers of honest, integrity and devotion are struggling under despondence to continue to maintain honesty, integrity and devo tion to the duty, in particular, when moral values and ethical standards are fast corroding in all walks of life including public services as well. It is but the need and imperative of the society to pat on the back of those band of honest, hard-working officers of integrity and devotion to duly. It is but the need and imperative of the society to pat on the back of those band of honest, hard-working officers of integrity and devotion to duly. It is the societys interest to accord such officers security of service and avenues of promotion. That apart, the haunting fear of dismissal from service at the vagary of the concerned officer would dry up all springs of idealism of the employee and in the process coarse on the con science and degrades his spirit. The nobler impulses of minds and the higher values of life would not co-exist with fear. When fear haunts a man, happiness vanishes. Where fear is, justice cannot be, where fear is, freedom cannot be. There is always a carving in the human heart for satisfaction of the needs of the spirit, by arming by certain freedom, for some basic values without which life is not worth living. It is only when the satis faction of the physical needs and the demands of the spirit co exists, there will be true efflorescence of the human personality and the free exercise of individual faculties. Therefore, when the Constitution assures dignity of the individual and the right to livelihood the exercise of the power by the executive should be cushioned with adequate safeguards for the rights of the employees against any arbitrary and capricious use of those powers. " 15. In view of prevailing conditions as have been highlighted by Honble Supreme Court in Delhi Transport Corporation V. D. T. C. Mazdoor Congress (supra) it is not only desirable but is also necessary that the selection of the Government servants for appointment to State service should be through an independent and autonomous body like Commission and such matters should not be left to the Government or its officers. Even if provi sion contained in Clause (3) of Article 320 are directory in nature, it is not open to the Government to by-pass the Commission altogether by exercising its power under proviso to the said Clause. Power under the proviso cannot be exercised for making the provisions of said clauses (1) and (3) of Article 320 ineffective and nugatory. Said proviso cannot be used for destroying what is contained in Clauses (I) and (3) of Article 320. The first contention of the learned counsel for the petitioner has, therefore, to be accepted. 16. Power under the proviso cannot be exercised for making the provisions of said clauses (1) and (3) of Article 320 ineffective and nugatory. Said proviso cannot be used for destroying what is contained in Clauses (I) and (3) of Article 320. The first contention of the learned counsel for the petitioner has, therefore, to be accepted. 16. When a Government action/order is challenged on the ground of arbitrariness, unfairness or unreasonableness, it is the duty of the Govern ment to place reasons before the Court for passing such orders. In the instant case only reason given by the Government in its counter-affidavit, for passing the impugned amendment, is the delay in making selection and disposal of other functions which is caused at the level of the Commission. But who is responsible for such delay has not been clearly stated. Petitioner in his rejoinder affidavit has stated that the Government is equally responsible for such delay. No reason as to why the selection could not be made at an early date by the Commission on requisition sent by the Commission, has been given. Whether Government supplied full and complete information and whether there was any order from the Courts staying the selection, have also not been stated, in the counter affidavit. Allegations are vague, That apart, it has not been stated as to what step has been taken by the Government so as to remove the delay. Reasons given by the Government in support of the impugned action for dispensing with the consultation with the Commission, apart from being vague, cannot sustain the notification under challenge. 17. It may also be stated that in the counter-affidavit filed on behalf of the Commission it has been stated that it was not consulted by the Govern ment before making the impugned amendment in the Regulations. In this connection Report of the Study Team on Recruitment Selection,; U. P. S. C. State P. S. Cs. And Training, submitted to the Government of India, has been filed as Annexure C A- 1, from perusal of which it appears that a con vention has been established by the Central Government requiring consulta tion with the Commission before exercising the power under proviso to Clause (3) of Article 320. And Training, submitted to the Government of India, has been filed as Annexure C A- 1, from perusal of which it appears that a con vention has been established by the Central Government requiring consulta tion with the Commission before exercising the power under proviso to Clause (3) of Article 320. Relevant extract from the said report is reproduced below : "the proviso to Article 320 (3) does not require the President or Governor to consult a Public Service Commission before exercising his power to grant exemptions. We consider, however, that it is the spirit of the Constitution that exemption from consultation with the Public Service Commission should be made very sparingly. We learn that the Union Government has established a convention that exemptions are made only after prior consulta tion with the Union Public Service Commission. We suggest that the State Governments should establish a similar convention. Further it would be desirable to lay down a procedure that the exemption should be reviewed every five years in consultation with a Public Service Commission. " 18. Although the impugned amendment cannot be struck down on the ground that it was issued without consulting the Commission, but this aspect has been high-lighted only for purpose of showing the convention established by the Central Government in such matters is not being followed at the State level. 19,. For the reasons given above Writ Petition No. 2020 of 1995, Sushi I Chandra Srivastava v. State of U. P. and others, is allowed with costs. Regulation 3 (a) and (b) and Regulation 6 of the Uttar Pradesh Public Service Commission (Limitation of Functions) (Thirteenth Amendment) Regulations, 1994, are declared ultra vires and are quashed. Writ Petition No. 3587 of 1993 -Uttar Pradesh Lok Sewa Ayog Karamcharij Adhikari Sangh v. State of U. P, and others, is dismissed without costs as not maintainable. Petition allowed. .