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2005 DIGILAW 277 (GAU)

Abdul Kalam v. State of Manipur

2005-04-01

MAIBAM B.K.SINGH, T.NANDAKUMAR SINGH

body2005
JUDGMENT T. Nanda Kumar Singh, J. 1. In the factual context of these two writ appeals, this Court had been asked to decide two important questions of public importance, viz. 1. Whether or not the State Government (Governor of Manipur), while making the Recruitment Rules for a Gazetted post in the service of the Government of Manipur by exercising the power under Article 309 of the Constitution of India, is not at all required to consult the Constitutional Body, i.e. Manipur Public Service Commission, constituted under Article 320 of the Constitution of India even if consultation with the Public Service Commission is not required under the Manipur Public Service Commission (Exemption from Consultation) Regulations 1972 framed by the Governor of Manipur in exercise of the powers conferred by proviso to Clause (3) of the Article 320 of the Constitution of India? 2. Whether or not this Court, while exercising its writ jurisdiction under Article 226 of the Constitution of India, has no power of judicial review to pronounce upon the validity of the Rules so framed and action taken by the State Government in exercise of the power under Article 309 of the Constitution of India? 2. As stated above, these two writ appeals involve common questions of law and fact and, accordingly, being disposed of by a common judgment and order. For convenience of this Court, for the purpose of factual matrix, writ appeal No. 180 of 1999 had been discussed and referred to for passing the common judgment & order. A brief resume of fact leading to the filing of writ appeal No. 180 of 1999 is required to be discussed: 3. The Appellant, Md. Abdul Kalam (Appellant in both the writ appeal Nos. 180 of 1999 and 194 of 1999) is a Post Graduate Degree holder in History and was initially appointed as Record Attendant under the Directorate of Social Welfare, Art & Culture (Art & Culture Wing) vide order of the Director, Social Welfare, Arts & Culture, Manipur being No. 3/3/86-SE, Imphal, 30.9.1986. At the relevant time, Manipur State Archive was under the common Directorate of Social Welfare, Arts & Culture, Manipur. At the relevant time, Manipur State Archive was under the common Directorate of Social Welfare, Arts & Culture, Manipur. Under the Social Welfare, Arts & Culture, Manipur (Archivist of the Manipur State Archive), Recruitment Rules, 1983 framed by the State Government under Article 309 of the Constitution of India, method of recruitment to the post of Archivist was by direct recruitment, failing which by deputation. As such, according to the then Recruitment Rules, 1983 there was no avenue for filling up the post of Archivist by promotion from the lower post in the Directorate of Arts & Culture, Govt. of Manipur. The Director of Arts & Culture, Govt. of Manipur felt that the said Recruitment Rules for Archivist, 1983 was required to be modified in conformity with the existing Recruitment Rules for the post of Archivist of the National Archives of India. Accordingly, the Director wrote a letter being No. 6/2/82-SE (Pt), Imphal 18.1.1995 to the Under Secretary (Art & Culture), Govt. of Manipur that the then Recruitment Rules for Archivist, 1983 was required to be modified in conformity with the existing Recruitment Rules for the post of Archivist of National Archives of India and other States as well, to fit with the expansion and development of Manipur State Archives. The said letter of the Director of Art & Culture, dated 18.1.1995 was also accompanied with the Recruitment Rules for the post of Archivist for the other States i.e. Karnataka etc. and job chart of the Archivist. In reply to the said letter of the Director of Art & Culture, Manipur dated 18.1.1995, the Under Secretary (Art & Culture), Govt. of Manipur under his letter dated 23.5.1995 requested the Director, Art & Culture, Manipur to furnish proposal in the prescribed Manipur Public Service Commission Form No. 8 and 10 for further consideration at an early date. In compliance with the direction of the Govt. of Manipur under the said letter of the Under Secretary, (Art & Culture), Govt. of Manipur, the Director, Arts & Culture, Manipur under his letter dated 13.6.1995 had furnished the proposed Recruitment Rules for the post of Archivist in the Manipur Public Service Commission Form No. 8 along with the job chart to the Government of Manipur. The Under Secretary (Art & Culture), Govt. of Manipur under his letter dated 26.6.1995 requested the Director (Art & Culture), Govt. The Under Secretary (Art & Culture), Govt. of Manipur under his letter dated 26.6.1995 requested the Director (Art & Culture), Govt. of Manipur to furnish the informations, i.e. (1) pay scale of Assistant Micro Photographist and Record Attendant along with copies of the existing Recruitment Rules and (2) whether the post of Assistant Archivist was in existence in the Department. The said informations required by the Government under the said letter of the Under Secretary (Art & Culture), Govt. of Manipur dated 26.6.1995 had been furnished by the Director (Art & Culture), Govt. of Manipur, under his letter dated 2.8.1996 to the Under Secretary (Art & Culture), Govt. of Manipur and in the said letter of the Director (Art & Culture), Govt. of Manipur, it was clearly stated that the post of Assistant Archivist which was created and filled up on regular basis had been upgraded to the post of Archivist vide Govt. order No. 4/4/85-SE (Pt-II) dated 16.11.1993. The Govt. of Manipur after getting all the necessary information mentioned above, the concerned department, i.e. Department of Personnel & Administrative Reforms (Personnel Division), Govt. of Manipur had discussed the same and also the respective job charts for the posts of Assistant Micro Photographist and Record Attendant, and the department of Personnel, Government of Manipur was of the opinion that the post of Assistant Micro Photographist, on seeing its job chart, may not be kept as the feeder to Archivist. Accordingly, under the letter of the Under Secretary (DP), Govt. of Manipur dated 30.12.1996 requested the Secretary (Art & Culture) Govt. of Manipur to re-examine in the light of the opinion of the DP, that Record Attendant having five years experience may be considered for promotion to the post of Archivist and the post of Assistant Micro Photographist may not be kept as the feeder to the post of Archivist. The Directorate of Art & Culture, Govt. of Manipur after thorough discussion of the said suggestion, made by the Department of Personnel, Government of Manipur under their letter dated 30.12.1996 as well as the Recruitment Rules for the post of Archivist for the other States, had requested the Deputy Secretary (Art & Culture), Govt. The Directorate of Art & Culture, Govt. of Manipur after thorough discussion of the said suggestion, made by the Department of Personnel, Government of Manipur under their letter dated 30.12.1996 as well as the Recruitment Rules for the post of Archivist for the other States, had requested the Deputy Secretary (Art & Culture), Govt. of Manipur that regarding the proposal for amendment of Recruitment Rules for the post of Archivist, we propose, to provide the promotional avenue for the post of record Attendant, since the post of Preservation Assistant and Assistant Micro Photographist are not feeder post to Archivist as per the Recruitment Rules of the said post of other States. And that the Deputy Secretary (Art & Culture), Govt. of Manipur under his letter dated 11.9.1997 had clearly requested the Under Secretary (DP), Govt. of Manipur that the post of Preservation Assistant, Assistant Micro Photographist in the feeder channel for promotion to the post of Archivist be excluded. 4. In exercise of the power conferred by proviso to Clause (3) of Article 320 of the Constitution of India and in supersession of all previous regulations on the subject, the Governor of Manipur makes the Regulations called Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972 (hereinafter called the Regulation, 1972). According to Regulation, 1972 it would not be necessary for the State Government to consult the Manipur Public Service Commission in the matter regarding appointment and framing of Regulations for the posts mentioned in the Schedule to the said Regulations, 1972. Admittedly, the post of Archivist, which is a Gazetted post carrying the pay scale ranging from Rs. 1640 to 2900, is not included in the posts mentioned in the schedule to Regulation, 1972 for which the Government is not required to consult the Manipur Public Service Commission. In other words, according to Regulation, 1972 it is a must for the State Government to consult the Manipur Public Service Commission in the matter of framing the Recruitment Rules for the post of Archivist. Relevant portion of 1972 Regulations are reproduced hereunder: NOTIFICATION No. 1/40/71-S In exercise of the powers conferred by the proviso to Clause (3) of Article 320 of the Constitution and in supersession of all previous regulations on the subject, the Governor of Manipur hereby makes the following regulations, namely: 1(1) These regulations may be called the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972. (2) These regulations shall come into force with effect from the 21.10.1972. 2. It shall not be necessary to consult the Commission in regard to any of the matters mentioned in Sub-clauses (a) and (b) of Clause (3) of Article 320 of the Constitution in case of the services and posts specified in the schedule to these Regulations. 3. Save as otherwise expressly provided in the rules governing recruitment to the civil service or civil post concerned, it shall not be necessary to consult the Commission in regard to the selection for appointment:- (a) To a post included in All India Service, of any Officer who is already a member of an All India Service. (b) To a post included in a State Service Class I, of any Officer who is already member of an All India Service or a State Service, Class I or State Service Class II. (c) To a State Service, Class II, or to a post included in a State Service; Class II, of any Officer who is already a member of a State service, Class II, or State Service, Class III. (d) To a State Service, Class III or to a post included in a State Service, Class III, of any Officer who is already a member of a State Service, Class III. (e) To a tenure post included in a State Service Class I, or a State Service, Class II or Class III, of an Officer of a State Service. Note: In this regulation (i) The term Officer includes a person holding a permanent or quasi-permanent appointment, but does not include a person in temporary employment; officiating appointment. (ii) The term State Service means service in a State appointments to which are made by the Governor or as the case may be, by the Head of Deptt. (iii) The term tenure post means a post, whether permanent or temporary, which has been classified as a tenure post in consultation with Commission. SCHEDULE (1) Posts in respect of which the authority to appoint is specifically conferred on the Governor by the Constitution. (2) Posts of Chairman or Members of any Board, Tribunal, Commission, Committee or other similar authority created by or under the provisions of a statute. SCHEDULE (1) Posts in respect of which the authority to appoint is specifically conferred on the Governor by the Constitution. (2) Posts of Chairman or Members of any Board, Tribunal, Commission, Committee or other similar authority created by or under the provisions of a statute. (3) Posts of Chairman or Members of any Board, Tribunal, Commission, Committee or other similar body appointed by or under the authority of a resolution of the State Legislature or by a resolution of Government for the purpose of conducting any investigation or enquiry into or for advising Government on specified matters. (4) Posts on the personal staff attached to holders of posts mentioned in items (1) to (3) above. (5) Posts in the Secretariat of the State Legislature. (6) District Judges, Sessions Judges, Additional District Judges and Additional Sessions Judges in the State. (7) All civil and criminal judicial posts in the State under the control of the High Court other than those included in item (6). (8) All services/posts carrying a pay or scale of pay with a maximum of less than rupees five hundred, save as otherwise expressly provided in the relevant rules or orders governing recruitment thereto. (9) Posts in Secretariat and personal staff of the Governor and posts in the Government Hospitality Organization. (10) Any service or post or class of posts in respect of which the Commission has agreed that it shall not be necessary for it to be consulted. Sd/- S.M. Krishnatry Chief Secretary, Government of Manipur 5. Government of Manipur also issued General Instructions regarding consultation with the Manipur Public Service Commission. The Chief Secretary, Govt. of Manipur under his letter No. 1/30/72-S (Pt) Imphal, the 9.4.1972 had circulated; Part I, Constitutional Provisions, Part II, Manipur Public Service Commission (Exemption from consultation) Regulation, 1972 and Procedural Guidelines for following the statutory provisions, Part III, Executive Instructions/Guidelines for the Government Department, Part IV, Revised Departmental Promotion Committees for all Class of post in the Government of Manipur which are under the purview of the Manipur Public Service Commission and Part IV, Manipur Public Service Commission Form, to be used by the Department/Offices, for compliance" to all: (1) All Secretariat Officers, Govt. of Manipur. (2) All Head of Departments, Offices Manipur. (3) Development Commissioner/Secretary/Commissioner for Revenue & Land Reforms and Taxes/Hill Commissioner, Manipur. (4) All the Deputy Commissioners, Manipur. 6. of Manipur. (2) All Head of Departments, Offices Manipur. (3) Development Commissioner/Secretary/Commissioner for Revenue & Land Reforms and Taxes/Hill Commissioner, Manipur. (4) All the Deputy Commissioners, Manipur. 6. According to Part III, the Executive Instructions (General Instructions regarding consultation with the Manipur Public Service Commission) which was circulated under the said letter of the Chief Secretary, Govt. of Manipur dated 9.4.1972, the Manipur Public Service Commission is required to be consulted in respect of method of recruitment to services and posts which are not included in the said schedule, Regulation, 1972 by the State Government. Relevant portion of the said instructions i.e. General Instructions regarding consultation with Manipur Public Service Commission are quoted hereunder: PART III A GENERAL INSTRUCTIONS REGARDING CONSULTATION WITH THE MANIPUR PUBLIC SERVICE COMMISSION The Manipur Public Service Commission have come into existence with effect from 21.10.1972 and the jurisdiction of the Union Public Service Commission ceased over this State with effect from this date. It is, therefore, necessary that all references to and consultation with the Commission as required under Article 320 of the Constitution shall in respect of services and posts under the control of this Govt. be made henceforward with the Manipur Public Service Commission. The procedure and categories of posts and services which are exempted from the purview of the Commission have been laid down in the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972, which were notified under this Government Notification No. 1/40/71-S dated the 3rd October, 1972 for the sake of convenience some of the salient features of the aforesaid Regulations are recapitulated below: (i) Under the erst while Union Public Service Commission (Exemption from Consultation) Regulations, 1958, all the Class III & IV posts irrespective of the pay scales were exempted from the purview of the Commission. But now all the posts carrying the scale of pay the maximum of which is Rs. 500/- and above, such as. Graduate Teachers. Overseers, Extension Officer etc. have been brought within the purview of the Commission in addition to Class I and II posts, which were already there vide para 8 of the Schedule to the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972. 3. 500/- and above, such as. Graduate Teachers. Overseers, Extension Officer etc. have been brought within the purview of the Commission in addition to Class I and II posts, which were already there vide para 8 of the Schedule to the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972. 3. It may be clarified that the position under the Exemption from Consultation Regulations is that consultation with the Commission in regard to any of the matters prescribed in Sub-clause (a) and (b) of Clause 3 of Article 320 of the Constitution is not necessary in respect of services and posts specified in the schedule thereto. In respect of other services and posts under Article 320(a) and (b), the method of recruitment to such services and posts should be settled in consultation with the Commission and until such action is taken it would not be correct to make individual appointments without consultation with the Commission on the basis of the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972. In other words, Regulations 3 of the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972 can be availed of only where recruitment rules have been framed in consultation with the Manipur Public Service Commission as provided in Article 320(a) and (b) of the Constitution and such rules provide for the appointments of the type envisaged in the Regulations. It may, therefore, be noted that consultation with the Commission will be necessary even in cases of appointments which would normally be covered by Regulation 3 of the Manipur Public Service Commission (Exemption from Consultation) Regulations if the method of recruitment for the grade/services in question has not been finalized in consultation with the Commission. Part III B of the said letter of the Chief Secretary dated 9.4.1972 i.e. Instructions Regarding Framing of Recruitment Rules for Services/Posts, relevant portion of which are quoted hereunder: Under the provisions of Article 320(3)(a) & (b) of the Consultation, the Manipur Public Service Commission are required to be consulted on all matters relating to methods of recruitment to Civil Services & Civil posts and 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. The method of recruitment and principles of appointments, promotion etc. as decided in consultation with the Commission are covered by the Recruitment Rules. The method of recruitment and principles of appointments, promotion etc. as decided in consultation with the Commission are covered by the Recruitment Rules. Such Rules are framed under the authority vested in the Governor by the proviso to Article 309 of the Constitution and have to be duly notified. 2. It is not necessary to consult the Manipur Public Service Commission in framing the recruitment rules for the services and posts specified in the schedule to the Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972. For all other posts and services including those to which appointments may be made without consulting the Commission under the Provision of Regulation 3 of Manipur Public Service Commission (Exemption from Consultation) Regulations, 1972, Recruitment Rules should be framed in consultation with the Commission. 6. Where the procedure for consultation with the Commission has been correctly followed and information necessary for the consideration of such proposals has been fully given, it would ordinarily be possible for the Commission to convey their advice within three weeks. If the Commission's advice on the draft Recruitment Rules is not received within this period the Secretariat Department should settle the matter by personal discussion with the Commission. In case the provisions of the final draft are at variance with the draft Rules as concurred in by the Appointment & Services Departments of the Government of Manipur the variation should be brought to the notice of the Chief Secretary. 7. The procedure indicated in (a) and (b) para 5 above will also apply to the amendments proposed to be made in existing Recruitment Rules. Such proposals should be sent along with the information in the prescribed proforma MPSC-10. 8. Recruitment Rules for Services/Posts or amendments in the existing Recruitment Rules, as approved by the Manipur Public Service Commission, are required to be notified in Manipur Gazette by the Appointing Authorities/Heads of Deptts. within four weeks from the date of the Commission's letter of approval. 7. In compliance with the said provisions of Regulations, 1972 and said instructions of the Government of Manipur, the Govt. of Manipur had consulted the Manipur Public Service Commission by sending proposed Recruitment Rules for the post of Archivist to the Manipur Public Service Commission. within four weeks from the date of the Commission's letter of approval. 7. In compliance with the said provisions of Regulations, 1972 and said instructions of the Government of Manipur, the Govt. of Manipur had consulted the Manipur Public Service Commission by sending proposed Recruitment Rules for the post of Archivist to the Manipur Public Service Commission. The Joint Secretary, Manipur Public Service Commission under his letter dated 9.1.1998 had informed the opinion of the Commission to the State Government and the said letter of the Manipur Public Service Commission dated 9.1.98 reads as under: No. 5/4/83-R.R/MPSC Manipur Public Service Commission Dated – 9.1.1998 To The Deputy Secretary (DP), Govt. of Manipur, Imphal Subject: Amendment of R/Rules for the Post of Archivist, Manipur State Archives. Sir, In inviting a reference to your letter No. 1/4/83(R.R)/DP dated 4th Nov. 1997 on the above subject, I am directed to say that the Commission have agreed to the draft R/Rules for the post of Archivist, Manipur State Archives as proposed by the Department. 2. The R/Rules for the post as approved by the Commission is enclosed herewith for early notification in the Manipur Gazette. 10 spare copies of the same may please be sent to the Commission for official use/record. Yours faithfully, Sd/- (K. Ravi Singh), Joint Secretary Manipur Public Service Commission 8. According to the Recruitment Rules for the post of Archivist, approved by the Commission, only the post of Record Attendant was a feeder post to Archivist and Record Attendant with ten years regular service in the grade with the requisite qualification of (1) 2nd Class Masters Degree in History from a recognized University or its equivalent and (2) one year Diploma in Archive Keeping/Archival Assistant from a recognized Institution. Further case of the Petitioner is that the Petitioner had completed the Diploma course mentioned above and Petitioner is eligible for appointment by promotion to the post of Archivist. 9. Further case of the Petitioner is that the Petitioner had completed the Diploma course mentioned above and Petitioner is eligible for appointment by promotion to the post of Archivist. 9. The State Government, after receiving the said letter of the Manipur Public Service Commission dated 9.1.98 approving the proposed Recruitment Rules for the post of Archivist, wherein the post of Record Attendant was the only feeder post to the post of Archivist, made a new proposal to the Manipur Public Service Commission for further amendment of the Recruitment Rules for the post of Archivist by adding the posts of Assistant Micro Photographist, Preservation Assistant and Record Attendant in the feeder posts to Archivist. The Manipur Public Service Commission, after due consideration of the said proposal made by the Government of Manipur and other relevant factors, had intimated the concurrence of the Commission to the said proposal of the State Government regarding the Recruitment Rules for the post of Archivist under the letter of Joint Secretary, Manipur Public Service Commission dated 9.2.99 to the Deputy Secretary (DP), Govt. of Manipur. The said letter of the Joint Secretary, Manipur Public Service Commission dated 9.2.99 reads as follows: To The Deputy Secretary (DP), Govt. of Manipur Dated – 9.2.1999 Sub: Amendment of R.Rs. for the post of Archivist in the Manipur State Archives. Sir, In continuation of the Commission's letter of even number dated 30.11.1998 on the above subject, I am directed to say that since the Court's interim order dated 19.11.98 in C.R. No. 1110/98 filed by Abdul Kalam has been vacated on 17.12.98, the Commission have decided to process the proposal for reviewing R/Rs for the post of Archivist. The existing post of Asstt. Archivist was upgraded to the post of Archivist n the year 93. Under the existing R.Rs. of the Asstt. Archivist, it is laid down that it is a promotion post for Record Attendant and Preservation Asstt. Who possess the essential qualification laid down for direct recruitment failing which it shall be filled up by direct recruitment. In this connection, certain issues are involved. Assuming that once a post ceased to exist, its R.R. will also deemed to be non existent and as a corollary, once a post if upgraded its R.R. will no longer apply and fresh R.R. need to be framed or the old R.Rs. of the Archivist revived. While framing R.Rs. In this connection, certain issues are involved. Assuming that once a post ceased to exist, its R.R. will also deemed to be non existent and as a corollary, once a post if upgraded its R.R. will no longer apply and fresh R.R. need to be framed or the old R.Rs. of the Archivist revived. While framing R.Rs. the hierarchy of the Deptt. need to be kept in picture. The hierarchy is determined by the R.Rs. and the pay scales attached to the posts. 2. In the R.Rs. approved and sent by the Commission vide their letter dated 9.1.98, the post of Archivist was made a promotional post of Record Attendant with 10 years regular service in the grade with the requisite qualification in Col. 7 which is 2nd Class Master's Degree in History and 1 year Diploma in Archives Keeping/Archival Science as proposed by the Deptt.. In the review proposal sent vide Deptt.'s letter dated 2.11.98, it is made a promotional post of Asstt. Microphotographist with 7 years regular service in the grade failing which by direct recruitment. In this connection, it is pointed out that the qualifications for Asstt. Microphotographist differ from that of the proposed qualification for Archivist in that the former is restricted to Photography and Reprography. Tenure of the work is also totally different hence long (sic) since could not make up the qualification requirement. 3. In view of the position stated above, the Commission is of the opinion that for restricted upward mobility and without sacrificing skill and knowledge, the post of Archivist may be made promotional post of the Asstt. Microphotographist with 7 years regular service in the grade and possessing one year Diploma in Archives Keeping/Archival Science. For giving equal opportunity, Record Attendant/Preservation Asstt. Who are Graduate with 10 years regular service in their respective grades possessing one year Diploma in Archives Keeping/Archival Science may be put on the feeder line along with the Asstt. Microphotographist for the post. 4. The Draft/Rules for the post as approved by the Commission is enclosed for early notification in the Manipur Gazette. 10 spare copies of the same may please be sent to the Commission for official use/record. Yours faithfully, Sd/- K. Ravi Singh, Joint Secretary, Manipur Public Service Commission 10. The Appellant filed writ petition being WP (C) No. 166 of 1999 against the State of Manipur and Ors. 10 spare copies of the same may please be sent to the Commission for official use/record. Yours faithfully, Sd/- K. Ravi Singh, Joint Secretary, Manipur Public Service Commission 10. The Appellant filed writ petition being WP (C) No. 166 of 1999 against the State of Manipur and Ors. in this Court for quashing the said letter of the Manipur Public Service Commission dated 9.2.99 wherein the Manipur Public Service Commission conveyed approval to the proposed Recruitment Rules for the post of Archivist in which the post of Asstt. Micro Photographist, Preservation Asstt. over and above the post of Record Attendant are included in the feeder post to Archivist. 11. The State Government, after receiving the said letter of Manipur Public Service Commission dated 9.2.99 had acted in war footing and framed Recruitment Rules for the post of Archivist without consulting the Manipur Public Service Commission that only the post of Assistant Micro Photographist is the feeder post for the post of Archivist and only the Asstt. Micro Photographist having passed MA in History with 7 years regular service in the grade is eligible for promotion to the post of Archivist vide notification No. 1/4/83(R.R)/DP, Imphal, 19.3.1999. The said notification of the Govt. of Manipur dated 19.3.99 was also published in the Manipur. Extraordinary Gazette No. 340, Imphal, Saturday 20.3.1999. Publication of Government notification in the Manipur Gazette, normally, took a couple of months save and except notification of the said notice of the Government of Manipur dated 19.3.1999 in the Manipur Gazette dated 20.3.1999. Being aggrieved by the said Recruitment Rules for the post of Archivist framed by the Govt. of Manipur vide notification dated 19.3.99 filed writ petition being WP (C) No. 283 of 1999 for quashing the said Recruitment Rules for the post of Archivist dated 19.3.99 on the grounds amongst other reasons: (i) Job chart of the Asstt. Micro Photographist are totally different from that of Archivist. (ii) The State Government has to publish the said Recruitment Rules for the post of Archivist, concurred and accepted by the Manipur Public Service Commission. (iii) The impugned Recruitment Rules for the post of Archivist dated 19.3.99 was prepared without any consultation with the Manipur Public Service Commission. Micro Photographist are totally different from that of Archivist. (ii) The State Government has to publish the said Recruitment Rules for the post of Archivist, concurred and accepted by the Manipur Public Service Commission. (iii) The impugned Recruitment Rules for the post of Archivist dated 19.3.99 was prepared without any consultation with the Manipur Public Service Commission. (iv) The concurrence or acceptance of the Manipur Public Service Commission will be required for all the Recruitment Rules for the post for which consultation with the Manipur Public Service Commission is required under the Regulation, 1972 and instructions mentioned above and without consultation with the Manipur Public Service Commission no Recruitment Rules could be framed for such posts. 12. The Respondent Nos. 1 to 4 i.e. State of Manipur, Director of Art & Culture, Deptt. of Personnel and Admn. Reforms and Shri Kh. Raghumani Singh, Dy. Secretary (DP), (as he then was) filed a joint affidavit-in-opposition in WP (C) No. 283/99. In the affidavit-in-opposition of the Respondents, Respondents had mentioned in para 2 that "it is absolute prerogative of the State functionary to make amendment or alteration of the earlier Recruitment Rules according to the changes, need and development of the particular department to which posts are born." But in para 5 of the affidavit-in-opposition, the Respondents admitted that under the Manipur Public Service Commission (Exemption) Regulations, the Manipur Public Service Commission is to be consulted on all framing and amendment of Recruitment Rules of any gazetted posts concerning with change in the method of recruitment and principles of promotion/transfer etc. It is also further stated that by the word "consultation" with the Manipur Public Service Commission does not ipso facto mean that the State is bound to follow even if error has been carved out by the Manipur Public Service Commission. The impugned Recruitment Rules dated 19.3.1999 available at Annexure-A/14 to the writ petition No. 283/99 was issued in exercise of power of the State Government and the same has been notified in the official gazette of Manipur. 13. It appears, from bare perusal of the affidavit-in-opposition of the Respondents, that they admitted that the Manipur Public Service Commission is required to be consulted on all framing/amendment of Recruitment Rules of gazetted posts. 13. It appears, from bare perusal of the affidavit-in-opposition of the Respondents, that they admitted that the Manipur Public Service Commission is required to be consulted on all framing/amendment of Recruitment Rules of gazetted posts. The learned Single Judge had taken up the WP (C) No. 166/99 and WP (C) No. 283/99 jointly and disposed of by a common judgment & order dated 17.9.99 for dismissing the said two writ petitions on the main ground that the Government is competent to finalize the Recruitment Rules with or without modification according to the advice given by the Manipur Public Service Commission. But the learned Single Judge did not decide the point clearly as to whether or not consultation with the Manipur Public Service Commission is not at all required by the State Government in framing the Recruitment Rules or amending the Recruitment Rules for the Gazetted post in the service of Govt. of Manipur even if the State Govt. framed the said Regulations, 1972 while passing the said impugned judgment & order dated 17.9.99. Writ appeal No. 180/99 is against the said judgment & order dated 17.9.99 passed in WP(C) No. 283/99 and WA No. 194 is also against the judgment & order dated 17.9.99 passed in WP (C) No. 1766/99. This Court, for coming to just decision, had directed the State Government to produce the relevant file for perusal and from perusal, it is clear that the impugned Recruitment Rules for the post of Archivist dated 19.3.99 (Annexure-A/14) had been framed without any consultation with the Constitutional Body i.e. Manipur Public Service Commission. 14. Learned Counsel for the Respondents had opposed the present writ appeal basing on two main thrusts i.e. (1) The State Government is not at all required to consult the Manipur Public Service Commission in making/amending the Recruitment Rules for the Gazetted post i.e. Archivist and (2) this Court while exercising the power under Article 226 has inherent lack of power for judicial review in respect of the matters dealing with the present writ petitions as well as the writ appeals inasmuch as the only remedy against the State Government in such matter would be the remedy mentioned in Article 323 of the Constitution of India and the aggrieved party has no remedy under Article 226 of the Constitution. Accordingly, this Court had formulated the two important questions of public importance mentioned above. 15. Accordingly, this Court had formulated the two important questions of public importance mentioned above. 15. Justice Ahmadi, Chief Justice of India, (as he then was), stated that "Judges of the superior Court have been entrusted with the task of upholding the Constitution and to this end have been conferred the power to interpret it. It is they who have to ensure that balance of power envisaged by the Constitution is maintained and that the legislature and executive do not, in the discharge of their function, transgress constitutional limitations." Our Constitution is founded on a nice balance of power amongst three wings of the Statutes, namely, Executive, Legislature and Judiciary. Judicial Review is a part of the basic structure of our Constitution. Under our Constitution scheme the Supreme Court and High Courts are the sole repositories of the power of judicial review. It is now well settled position in law that jurisdiction of Supreme Court and High Courts under Article 32 and 226 of the Constitution of India respectively are sacrosanct and is indisputably a part of basic structure of the Constitution. The power of judicial review of the Constitutional Courts, i.e. Supreme Court and High Courts include the power to pronounce upon the validity of statutes, action taken, and order passed by the individuals and body felling within the ambit of the expression "statutes" under Article 12 of the Constitution. For authoritative decision in this proposition, we can safely refer to the decision of the Apex Court in 1) Kesavananda Bharati v. State of Kerala, (13 Judges) reported in (1973) 4 SCC 225 2) Special Ref No. 1/9 Keshar Singh Re reported in AIR 1965 SC 745 , 3) Indira Gandhi v. Raj Narain reported in 1975 Supp SCC 1 (CB), 4) Minerva Mills Ltd. v. Union of India reported in (1980) 3 SCC 625 (CB), 5) Kaihoto Hollohain v. Zachilhu reported in 1992 Supp (2) SCC 651: AIR 1993 SC 412 (CB) and 6) L. Chandrakumar v. Union of India reported in (1997) 3 SCC 261 : 1997 (1) GLT (SC) 1 (7 Judges). 16. In Kesavananda Bharati (supra) 13 Judges Constitutional Bench by a majority of 7:6, held that though, by virtue of Article 368, Parliament is empowered to amend the Constitution, that power cannot be exercised so as to damage the basic feature of the Constitution or to destroy its basic structure. 16. In Kesavananda Bharati (supra) 13 Judges Constitutional Bench by a majority of 7:6, held that though, by virtue of Article 368, Parliament is empowered to amend the Constitution, that power cannot be exercised so as to damage the basic feature of the Constitution or to destroy its basic structure. The Apex Court in Keshavananda Bharati (supra) at para-1529 of the SCC held that "the power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or the State legislatures have acted within the four corners of the legislative laws earmarked for them; and the Court also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution. Judicial Review has, thus, become an integral part of our constitutional system and a power has been vested in the High Courts and Supreme Court to decide about the constitutional validity of provision of statutes. If the provision of statutes are found to be violative of any article of the constitution which is the touch stone for the validity of all laws, the Supreme Court and High Courts are empowered to strike down the said provision." The Apex Court in Keshavandana Bharati (supra) had quoted the speech of Dr. Ambedkar, in the constitutional assembly on 9th December, 1948 while dealing with the draft Article 25 (corresponding to Article 32 of the Constitution) "if I was asked to name any particular Article in this Constitution as a most important an Article without which this Constitution would be a nullity I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it and I am glade that the House has realized its importance." The Apex Court in Minverva Mills Case (supra) para-21 of the SCC 644 held that" 21. The newly introduced Clause (4) of Article 368 must suffer the same fate as Clause (5) because the two clauses are interlinked. Clause (5) purports to remove all limitations on the amending power while Clause (4) deprives the courts of their power to call in question any amendment of the Constitution. Our Constitution is founded on a nice balance of power among the three wings of the State, namely, the Executive, the Legislature and the Judiciary. Clause (5) purports to remove all limitations on the amending power while Clause (4) deprives the courts of their power to call in question any amendment of the Constitution. Our Constitution is founded on a nice balance of power among the three wings of the State, namely, the Executive, the Legislature and the Judiciary. It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens of one of the most valuable modes of redress which is guaranteed by Article 32. The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law shall pronounce upon the validity of such destruction seems to us a transparent case of transgression of the limitations on the amending power. Relevant portion of para No. 87 of the SCC in Kesavananda Bharati (supra) reads as follows: 87.... It is cardinal principle of our Constitution that no one howsoever highly placed and no authority however lofty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgress such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law". The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. 17. The Constitution Bench in Kaihoto Hollohain v. Zachilhu (supra) had considered the validity of para 7 of the 10th Schedule to the Constitution of India, which has excluded judicial review. The majority of the judgment delivered by Venkatachaliah, J. struck down the said offending provisions by applying the doctrine of severability. Para 6(1) of the 10 Schedule to the extent it seeks to impart finality to the decision of the Speaker/Chairman is followed. But the concept of statutory finality embodied in para-6(1) does not detract from or abrogate judicial review under Article 136, 226 and227 of the Constitution of India in so far as infirmities based on violation of the constitutional mandate malafide, non-compliance with the Rule of natural justice and perversity, are concerned. 18. Constitution Bench of the Apex Court in L. Chandrakumar (supra) held that the power of judicial review of the High Court under Article 226 of the Constitution of India is the basic structure of Constitution and cannot be excluded even by constitutional amendment by introducing Article 323Aand 323B and by enacting the statutes with "Administrative Tribunal Act, 1985 (Act No. 13 of 1985 by the Parliament) Para Nos. 78, 90 and 99 of the SCC in L. Chandrakumar (supra) are quoted hereunder: 78. The legitimacy of the power of courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the judiciary, would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure, the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. 90. Ordinarily, therefore, the power of High Courts and Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. 90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. 99. In view of the reasoning adopted by us. we hold that Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B. to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. 99. In view of the reasoning adopted by us. we hold that Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B. to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. 19. The Apex Court in Surya Dev Rai v. Ramchander Rai and other, reported in (2003) 6 SCC 675 held that by the amendment of Code of Civil Procedure by enacting the Act called Code of Civil Procedure (Amendment) Act, 1999 cannot and does not in any manner affect the jurisdiction of the High Court under Article 226 and 227 of the Constitution. Para 10 of the SCC in Surya Dev Rai (supra) is quoted hereunder: 10. Article 226 of the Constitution of India preserves to the High Court the power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well settled. Para 10 of the SCC in Surya Dev Rai (supra) is quoted hereunder: 10. Article 226 of the Constitution of India preserves to the High Court the power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well settled. It would suffice for our purpose to quote from the seven-Judge Bench decision of this Court in Hari Vishnu Kamath v. Ahmad Ishaque. The four propositions laid down therein were summarized by the Constitution Bench in Custodian of Evacuee Property v. Khan Saheb Abdul Shukoor as under (AIR p. 1094, para 15). The High Court was not justified in looking into the order of 2.12.1952, as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vishnu Kamath v. Ahmad Ishaque and the following four propositions were laid down- (1) Certiorari will be issued for correcting errors of jurisdiction. (2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amendable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. 20. From the discussions above, we are of the considered view that this Court has the power for judicial review. Accordingly, second question of public importance regarding jurisdiction of this Court formulated above is answered in positive. Now, having our jurisdiction, we have to see the manner of exercising the power of judicial review and its limitations. 21. 20. From the discussions above, we are of the considered view that this Court has the power for judicial review. Accordingly, second question of public importance regarding jurisdiction of this Court formulated above is answered in positive. Now, having our jurisdiction, we have to see the manner of exercising the power of judicial review and its limitations. 21. The Apex Court in Ranjit Thakur v. Union of India and other reported in (1987) 4 SCC 611 had discussed the power of judicial review on the decision of the administrative authority. Para 25 of the SCC in Ranjit Thakur (supra) reads as follows: 25. Judicial review generally speaking, is not directed against a decision, but is directed against the "decision-making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review. In Council of Civil Service Union v. Minister for the Civil Service Lord Diplock said: Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community. 22. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community. 22. We may also profitably refer to the decision of the Apex Court in Style (Dressland) v. Union Territory, Chandigarh and another reported in (1999) 7 SCC 89 wherein it is held that the Courts are more concerned with the decision making process rather than the decision itself while exercising the power of judicial review. Para 11 of the SCC in Style (Dressland) (supra) reads as under: 11. Even the administrative orders and not (sic only) quasi-judicial are required to be made in a manner in consonance with the rules of natural justice, when they affect the rights of the citizens to the property or the attributes of the property. While exercising the powers of judicial review the court can look into the reasons given by the Government in support of its action but cannot substitute its own reasons. The Court can strike down an executive order, if it finds the reasons assigned were irrelevant and extraneous. The courts are more concerned with the decision-making process than the decision itself. 23. The Apex Court in Consumer Action Group and another v. State of T.N. and other reported in (2000) 7 SCC 425 held that when a wide power is vested in the Government it is to be exercised with great caution. Para 30 of the SCC in Consumer Action Group (supra) reads as follows: 30. When such a wide power is vested in the Government it has to be exercised with greater circumspection. Greater is the power, greater should be the caution. No power is absolute, it is hedged by the checks in the statute itself. Existence of power does not mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence nor in the extra-statutory field. Entrustment of such a power is only for the public good and for the public cause. No power is absolute, it is hedged by the checks in the statute itself. Existence of power does not mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence nor in the extra-statutory field. Entrustment of such a power is only for the public good and for the public cause. While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both, viz. the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. 24. Mr. N.P.C. Singh, learned senior Counsel appearing for the private Respondent No. 6, Shri N. Indramani Singh and also for the Department of Personnel & Administrative Reforms, Govt. of Manipur by heavily relying on the decision of the Apex Court in Manbodhan Lal Srivastava v. State of U.P. reported in AIR 1957 SC 912 submits that writ petitions as well as writ appeals are not maintainable inasmuch as no cause of action arose for filing writ petition as well as writ appeals because, Article 320(3)(C) of the Constitution does not confer any right on the public servant in the absence of consultation or any irregularities in consultation with the Commission to enable him relief under the special power of a High Court under Article 226 of the Constitution. As held by the Apex Court in Radhakrishna Agarwal and other v. State of Bihar and other reported in (1977) 3 SCC 457 that a judgment is to be understood in the context of fact of that particular case, we are required to see what is the fact of the case in Manbodhan Lal Srivastava (supra). In Manbodhan Lal Srivastava (supra) the Commission was consulted and after considering the opinion of the Commission, the inquiry report and several explanations submitted by Respondent, Shri Manbodhan Lal Srivastava, Government passed its final order dated September, 12, 1953 reducing the Respondents in rank from U.P. Education Service (Junior Scale) to Subordinate Education Service w.e.f August 2, 1952 and compulsorily retiring him. The case of Manbodhan Lal Srivastava was that his written explanation submitted on July 3, 1953 was not before the Commission, when the Commission framed its opinion and therefore, there was irregularity in consulting the Commission. It was also the case of Manbodhan Lal Srivastava that it was mandatory on the part of the Government to consult the Commission under Article 320(3)(C) of the Constitution. But in the case of Manbodhan Lal Srivastava (supra) the State of U.P. had not framed the regulations in exercise of its power under proviso to Clause (3) Article 320 of the Constitution specifying the matter in which, general or in any particular class of case or in any particular circumstances, it was not necessary for a Public Service Commission to be consulted. But the Apex Court in Manbodhan Lal Srivastava (supra) held that once a regulation was framed by the State Government in exercise of the power under proviso to Clause (3) of Article 320 of the Constitution, the State Government has to follow it. The relevant portion of para 7 in Manbodhan Lal Srivastava (supra) is quoted hereunder: 7. Article 320 does not come under Chap.-I headed Services of part XIV. It occurs in Chap.-II of that part headed Public Service Commissions. Articles320 and 323 lay down the several duties of a Public Service Commission. Article 321 envisages such "additional functions" as may be provided for by Parliament or a state Legislature. Articles 320 and 323 begin with the words. It shall be the duty, and then proceed to prescribe the various duties and functions of the Union or a State Public Service Commission, such as to conduct examinations for appointments: to assist in framing and operating schemes of joint recruitment: and of being consulted on all matters relating to methods of recruitment or principles in making appointments to Civil Services and on all disciplinary matters affecting a civil servant. Perhaps, because of the use of the word shall in several parts of Article320, the High Court was led to assume that the provisions of Article 320(3)(C) were mandatory, but in our opinion, there are several cogent reasons for holding to the contrary. Perhaps, because of the use of the word shall in several parts of Article320, the High Court was led to assume that the provisions of Article 320(3)(C) were mandatory, but in our opinion, there are several cogent reasons for holding to the contrary. In the first place, the proviso to Article 320, itself, contemplates that the President or the Governor, as the case may be, may make regulations specifying the matters in which ether generally, or in any particular class or case or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. The words quoted above give a clear indication of the intention of the Constitution makers that they did envisage certain cases or classes of cases in which the commission need not be consulted. If the provisions of Article 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary. If it had been intended by the makers of the Constitution that consultation 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. Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body not directly concerned, with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind: and secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services. It is, therefore, incumbent upon the Executive Government when it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation. 25. It is, therefore, incumbent upon the Executive Government when it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation. 25. Therefore, the ratio laid down by the Apex Court in Manbodhan Lal Srivastava (supra) is that once regulations is framed by the State Government in exercise of its power conferred by proviso to Clause (3) of Article 320, the State Government is bound to follow it. In the present case in hand, the Regulation, 1972 had already been framed by the State Government of Manipur, i.e. Governor of Manipur in exercise of its power conferred by proviso to Clause (3) of Article 320 of the Constitution of India and also had issued instructions mentioned above under which it is compulsory on the part of the State Government to consult the Manipur Public Service Commission in making/amending the Recruitment Rules for the post of Archivist. The Respondents in their affidavit-in-opposition had admitted that the consultation with the Manipur Public Service Commission in framing the Recruitment Rules or amending the Recruitment Rules for the post of Archivist is required. Therefore, such being the situation, the submission of learned Senior Counsel has no force. 26. Mr. Kh. Tarunkumar, learned Counsel appearing for the Appellants, in order to impress this Court had referred to a decision of the Apex Court in Banwarilal Agarwal v. State of Bihar and other Reported in AIR 1961 SC 849 (CB) and submitted that the ratio laid down in the Manbodhan Lal Srivastava (supra) had been followed by the Apex Court in Banwarilal Agarwal (supra). The Supreme Court in Banwarilal Agarwal (supra) reiterated that once regulations in exercise of power conferred by the proviso to Clause (3) of Article 320 of the Constitution was framed it is mandatory on the part of the State Government to follow it. Para 16 of AIR in Banwarilal Agarwal (supra) reads as follows: 16. The Supreme Court in Banwarilal Agarwal (supra) reiterated that once regulations in exercise of power conferred by the proviso to Clause (3) of Article 320 of the Constitution was framed it is mandatory on the part of the State Government to follow it. Para 16 of AIR in Banwarilal Agarwal (supra) reads as follows: 16. Stress was laid on behalf of the Respondent on the fact that Section 59does not require that regulations must have the concurrence of the Mining Boards; and it was pointed out that this Court in State of U.P. v. Manbodhan Lal Srivastava 1958 SCR 533 : AIR 1957 SC 912 in holding that Article 320(3) of the Constitution was not mandatory, relied, inter alia, on the fact that the requirement of the consultation with the Commission does not extend to making the advice of the Commission, on these matters, binding on the government. While it is true that this Court did attach weight to this circumstance, we have to remember that this was the only one of the several circumstances, on the total consideration of which, the court decided that the provision for consultation in Article 320(3) was not mandatory. One of these circumstances was that Article 320(3) contained a proviso, which pave a clear indication of the intention of the Constitution makers that they did envisage certain cases or class of cases in which the Commission need not be consulted. If the provisions of Article 320(3) were of a mandatory character, observed Sinha J. (as he then was), while delivering the judgment of the Court, the Constitution would not have left it to the discretion of the head of the executive government to undo these provisions by making regulations to the contrary. It has to be noticed, as pointed out above, that Section 60 of the Mines Act, 1952, also lays down clear provisions where the consultation as required in Section 59 need not take place. Here, however the legislature has not left it to the discretion of the executive government to undo these provisions by making regulations to the contrary. The legislature itself has given clear guidance as to the cases where such consultation need not be made by the Government. What is more, the legislature has laid down that regulations made without such consultation would have a limited life. 27. The legislature itself has given clear guidance as to the cases where such consultation need not be made by the Government. What is more, the legislature has laid down that regulations made without such consultation would have a limited life. 27. In the present case as stated above, there are also general instructions, i.e. 1) General Instructions regarding consultation with the Manipur Public Service Commission and 2) Instructions regarding framing of Recruitment Rules for services and post which are quoted above, issued by the Government of Manipur. It is also admitted fact that under the said instructions, the State Government is required to consult the Manipur Public Service Commission i.e. Constitutional Body constituted under Article 320 of the Constitution of India in making/amending the Recruitment Rules for the post of Archivist. The Apex Court had discussed about the executive instructions of the Government and its binding nature to the Government in British Machinery Supplies Co. v. Union of India and other reported in (1996) 9 SCC 663 wherein the Apex Court held that the authority cannot over look the executive instructions which is, at least binding on the departments as they had been made it known to all concerned. The executive instruction is issued for the purpose of maintaining uniformity in taking decision in the particular point/subject by the executive authority and also to follow it by the authority concerned. And it is also know to all that the Executive Instruction is issued for not violating it but to follow it. 28. After making serious discussions mentioned above, we are also to see as to whether non-consultation with the constitutional authority, i.e. Manipur Public Service Commission by the State Government in framing the Recruitment Rules for the post of Gazetted Officer by obliterating constitutional authority i.e., Manipur Public Service Commission will cause serious consequence or material danger to the public in future. After making serious discussions mentioned above, we are also to see as to whether non-consultation with the constitutional authority, i.e. Manipur Public Service Commission by the State Government in framing the Recruitment Rules for the post of Gazetted Officer by obliterating constitutional authority i.e., Manipur Public Service Commission will cause serious consequence or material danger to the public in future. After application of our judicial mind to the overall circumstances and consequences of non-consultation with the Manipur Public Service Commission by the State Government, we are of the considered view that non-consultation of the Manipur Public Service Commission in framing the impugned Recruitment Rules for the post of Archivist dated 19.3.99 in spite of existence of Regulations, 1972 and instructions mentioned above would cause serious consequences not only to the applicant but also to the Government servants as a whole and general public of the State of Manipur at large. 29. Accordingly, the impugned Recruitment Rules for the post of Archivist dated 19.3.1999 is hereby quashed and as a consequence thereof any regular appointment to the post of Archivist under the impugned Recruitment Rules dated 19.3.99 has to go. Writ appeals are allowed to the extent mentioned above. No order as to costs. Petition allowed.