TMI Blog1992 (11) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Civil Services to All India Administrative Service. The officers from Andhra Pradesh and Kerala, on completion of 8 to 9 years of service are becoming qualified for promotion to All India Administrative Service, while the officers from States like Uttar Pradesh and Bihar would get chance only after putting 24 to 27 years of service. The Estimate Committee of Seventh Lok Sabha too in its 77th Report highlighted the injustice. A committee of A senior Secretaries constituted by the Union Govt. recommended, after due consideration, to evolve equitable principles of comparable seniority from different States for promotion to Indian Administrative Service. Pursuant thereto the Central Govt. proposed to amend the Indian Administrative Service (Regulation of Seniority) Rules, 1954, for short the Seniority Rules . In the meantime the Rules were repealed and replaced by I.A.S. (Regulation of Seniority) Rules, 1987 which came with effect from Nov. 6, 1987 for short New Seniority Rules . The first respondent issued (Circular letter dated September 9, 1986 to the State Govts. indicating amendments for fixation of seniority of officers promoted from State Civil Services to I.A.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rules would operate with full effect from 1992, while the Promotee Officers promoted between 1988 to 1991 would reap partial benefit. Rule 3 of the Seniority Rules, 1954 postulated assignment of the year allotment as per the Rules to every officer appointed to the Indian Administrative Service, be it a direct recruit or a Promotee officer. The Promotee officer appointed in accordance with rule 9 of the IAS Recruitment Rules read with regulation 9 of IAS Promotion Regulations shall be allotted an year of allotment next below the junior most direct recruit officer recruited in accordance with rule 7 of the Recruitment Rules (Direct Recruitment Rules) and who officiated continuously in a senior post from a date earlier than the date of the commencement of such officiation by the Promotee officer. Under the New Seniority Rules 1987, rule 3(1) postulates that every officer shall be assigned year of allotment in accordance with the provisions hereinafter contained in the rules. The year of allotment of an officer in service at the commencement of the amended Seniority Rules shall be the same as per the rule 3(2) as has been assigned to him by the Central Govt. in accordance with the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Service Officer already appointed in the service. Provided further that he shall not be allotted a year earlier than the year of allotment assigned to an officer already appointed to the service in accordance with sub-rule (1) of rule 8 of the Recruitment Rules, whose length of class I continuous service in the State Civil Service in the State Civil Service is equal to or more than the length of Class I continuous service of the former in connection with the affairs of the State . A plain and fair reading of the sub-rules manifests the Central Govt s intention that the year of allotment of a direct recruit officer shall be the year following the year in which the competitive examination was held. If any such officer was permitted to join probationary training with direct recruit officers of a subsequent year of allotment then he shall be assigned that subsequent year as the year of allotment. In determining the seniority of a promotee officer in assigning year of allotment, the service rendered in the State Civil Service upto 12 years as Dy. Collector, or equivalent posts, weightage of 4 years shall be given. In addition he/she shall also be given further benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned by dint of merit and ability. Moreover, the entry into the service is from different streams and predominantly by direct recruitment and promotion. The direct recruit gets his year of allotment from the succeeding year of his recruitment. The direct recruit officers appointed earlier to 1988 also would be adversely effected in their seniority. Under sec. 3(2) of the Act, every rule made by the Central Govt. under sec.3(1) and every regulation made thereunder or in pursuance of any such rules, shall be laid, as soon as may be, after such or regulation is made, before each House of Parliament while in session. Before the expiry of the session, if both Houses agree to make any modification to such rules or regulations or both Houses agree to make any modification to such rules or regulations or both Houses agree that such rules or regulations should not be made, the rule or regulation shall thereafter have effect, only in such modified form or be of no effect as the case may be. SO, however, that any such modification or annulment shall be, without prejudice to the validity of anything previously done under that rule or the regulation. Thereby the rules or regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is some defect in the phraseology used by the Legislature the court cannot aid the Legislature s defective phrasing of an act or add or amend or, by construction make up deficiencies which are left in the Act. The approach adopted contra by the High Court was held illegal. In Commissioner of Sales Tax, U.P. v. Auriya Chamber of Commerce, Allahabad, [1986] 2 SCR 430 at 438, this court held that in a developing country like ours any legal system may permit judges to play a creative role and innovate to ensure justice without doing violence to the norm as set by legislation. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of in strumentalities. Thus it is settled law that where the intention of statutory amendment is clear and expressive, words cannot be interpolated. In the first place they are not, in the case, needed. If they should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the Legislature intended to convey. Where the meaning of the legislative intent is what the statute says to be so. If the language is plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Promotion Regulations. The proviso intended to protect the seniority of the officer promoted/appointed earlier than the appellants and its effect would be that till rule 3(3) (ii) fully becomes operational graded weightage was given to the promotees. In other words it prevented to get seniority earlier to the date of his/her appointment to the Indian Administrative service. Equally it intended not to let endless compulsive circumstances denied the benefits of full 9 years weightage to officers promoted during 1987 to 1992. The discrimination, though is prevented unequals to become equals. The contention of sri P.P Rao, therefore, that invidious discrimination was meted out to senior officers and that they are similarly circumstanced are devoid of force. This Court by a Constitution Bench in the state of Jammu Kashmir V. T. N. Khosa, [1974] 1 SCR 453 at 463, held that the amended rules varying the conditions of service would operate in future and governs the future rights of the existing personnel. The promoted state civil Service Officers who had already the year of allotment in I.A.S cadre are not discriminated. But the benefit o f full weightage of 9 years was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no direction or mandamus could be issued commanding the Central Govt. To disobey the proviso or to apply the rules retrospectively to all the officers even to word out monetary benefits as contended by sri Vaidyanathan. His further contention that the First Amendment Rules would be applied with effect form the date of the New seniority Rules or date of intimation of the proposed First Amendment Rules to the state Government for limited retrospectivity also cannot be acceded to for the same reasons. In this context it is necessary to note that Sec. 3(1A) of the Act which provides: 3(1A) The power to make rules conferred by this section shall include the power to give retrospective effect from a date not earlier than the date of commencement of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable. Its bare reading clearly indicates that the Rules made under the Act shall not be given retrospective effect so as to prejudicially affect the interest of any person to whom such rules may be applicable . The attempt of Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that seniority is an incidence of services and when rules prescribe the method of computation, It is squarely governed by such rules. This would be amplified by following hypothetical illustrations. In a direct recruitment the seniority would be arranged in the order of merit and it starts from the date of joining the duty. Suppose A to D were appointed on the same day and A was senior most among them. But A did not pass the prescribed tests and for varied reasons A s probation was confirmed after a long period. In the meanwhile B to D were confirmed B to D thereby became senior to A though appointed in the same day and A was no. I among them. Suppose probation was not declared mala fide resulting in delayed confirmation and A challenged it in a court of law issued by the court to confirm A challenged it in court of law and succeeded in proving mala fide action and consequential direction was issued by the court to confirm A from the date of his appointment. Though B to D become seniors to A later confirmation and the consequential defeasance of acquired seniority. An empolyee has an interest in the accrued seniority which by operation of law als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsultation the proviso was added to the First Amendment Rule. Section 3(1) of the Act provide thus: 3(1) Regulation of recruitment and conditions of services. (1) The Central Govt. may, after consultation with the Governments of the State concerned (including the State of Jammu and Kashmir), (and by notification in the Official Gazette) make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All India Service. It is thereby clear that sec. 3(1) empowers the Central Govt. to make any rule regulating the recruitment and the conditions of service of All India Service, which include amendment from time to time, but the rider it engrafted is that the power should be exercised after consultation with the Governments of the State concerned . It is already held that by operation of sub-section (2) of section 3 of the Act, the rules or regulations are statutory in character. The meaning of the word consultation was considered in catena of case. This Court in Union of India v. Sankalchand Himatlal Sheth Anr.,[1977] 4 SCC 193, held that the word consult implies a conference of two or more persons or an impact of two or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution. In Ram Gopal Chaturvedi v. State of Madhya Pradesh, [1970] 1 SCR 472, the same view was reiterated. In N. Raghavendra Rao v. Dy. Commissioner, South Kanara, Mangalore, [1964] 7 SCR 549, words prior approval of the Central Govt. in construing the proviso to sec. 115(7) of S.R. Act of the words of varying the conditions of service the Constitution Bench held that prior approval would include general approval to the variation in the conditions of service with certain limits indicated by the Central Govt. Same view was reiterated by another Constitution Bench in Mohd. Sujat Ali Ors. v. Union of India., [1975] 1 SCR 449 at 469-471. In Chandramouleshwar Prasad v. Patna High Court Ors. [1970] 2 SCR 666 at 674 675, construing the word consultation in Art. 233 of the Constitution, another Constitution Bench in the context of removal of a District Judge by the Governor on the recommedation of the High Court, held that consultation or deliberation is not complete or effective unless the parties thereto, i.e., the State Govt. and High Court make their respective points of view known to each other and discuss and examine the relative merits of their views. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of tariff was effected without consulting the Consultative Council. This Court held that the revision of tariff was a question of policy under Sec 78A of the Indian Electricity Supply Act. The failure of the Board to consult the Consultative Council whether rendered the revision of tariff invalid. It was held that the consequence of non-compliance of Sec. 16 was not provided and the nature of the function of the Consultative Council and force of its advice being at best only persuasive, it cannot be said that the revision of tariff, without seeking the advice of the Consultative Council, rendered the revision of tariff itself invalid. On the other hand the Board after revision of the tariff has to place the revised tariff on the table of the House or Houses of the Stat Legislature and such statement is open to discussion therein, the Board is bound to take into consideration such modification, if made, or any comments made on such statement by the State Legislature. Under those circumstance it was held that the non-compliance of Sec 16(5) did not render the revision of tariff invalid. In Rollo Anr. v. Minister of Town Country Planning [1948] 1 All Eng. Report 13, Sec. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Ministers in May 1963 had in their minds to alter the boundaries of Port Louis, so that the villages surrounding Port Louis Township would be embraced within and would enlarge the area of the town of Port Louis. The Minister by a letter asked the views of the local authorities, enclosing the details of the proposed alternation and the map. Majority Councillors had resigned on the ground that they has no mandate to express any views. On subsequent nomination, those Councillors raised certain points and asked for information, which was duly complied with. Further information was called for, but the Minister refused to extend time nor supplied information. The Governor in Council has issued a proclamation extending the boundaries of Port Louis Action was initiated by the local authorities for declaration that the proclamation was ultra vires, null and void in so far as it related to the extended boundries of the town of Port Louis, contending that there had been no consultation as required by Sec. 73 (1) of the Ordinance. The Judicial Committee construing the word after consultation in that setting held that the local authorities has received a clear proposal. The failure to suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration, and thereafter, the authority or person would be entitled or has/have authority to pass appropriate orders or take decision thereon. In such circumstance it amounts to an action after consultation . (6) No hard and fast rules could be laid, no useful purpose would be served by formulating words or definitions nor would it be appropriate to lay down the manner in which consultation must take place. It is for the Court to determine in each case in the light of its facts and circumstances whether the action is after consultation ; was in fact consulted or was it a sufficient consultation . (7) Where any action is legislative in character, the consultation envisages like one under Sec. 3(1) of the Act, that the Central Govt. is to intimate to the State Governments concerned of the proposed action in general outline and on receiving the objections or suggestions, the Central Govt. or Legislature is free to evolve its policy decision, make appropriate legislation with necessary additions or modification or omit the proposed one in draft bill or rules. The revised draft bill or rules, amendments or additions in the altered or modified form need not again be co ..... 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