Kerala High Court
Union vs Netticadan Antonio on 1 February, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 18TH DAY OF MAY 2016/28TH VAISAKHA, 1938
WP(C).No. 22956 of 2007 (Z)
----------------------------
AGAINST THE ORDER/JUDGMENT IN OA 530/2004 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 01-02-2007
PETITIONERS :
------------ UNION
1. OF INDIA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF REVENUE MINISTRY OF FINANCE, NEW DELHI.
2. THE CHAIRMAN,
CENTRAL BOARD OF EXCISE AND CUSTOMS,
NORTH BLOCK, NEW DELHI.
3. THE CHIEF COMMISSIONER OF CENTRAL EXCISE,
KERALA ZONE, CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD,
COCHIN-682018.
BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SR.P.ARM
RESPONDENTS :
--------------
1. NETTICADAN ANTONIO,
INSPECTOR OF CENTRAL EXCISE, O/O THE COMMISSIONER OF
CENTRAL EXCISE & CUSTOMS, COCHIN COMMISSIONERATE,
C.R.BUILDINGS, I.S.PRESS ROAD, COCHIN-682018.
2. KURIEN P.MATHEW,
INSPECTOR OF CENTRAL EXCISE, SERVICE TAX RANGE,
TRIVANDRUM DIVISION, TRIVANDRUM.
3. V.T.JOSEPH,
INSPECTOR OF CENTRAL EXCISE, FACT RANGE,
CENTRAL EXCISE DIVISION, ERNAKULAM 1, CENTRAL EXCISE BHAVAN,
KATHRIKADAVU, COCHIN-18.
4. V.JAYARAJ, INSPECTOR OF CENTRAL EXCISE,
KOTTAYAM II RANGE, KOTTAYAM.
5. PRADEEP KUMAR,
INSPECTOR OF CENTRAL EXCISE, EXCISE RANGE, PUNALUR.
WP(C).No. 22956 of 2007 (Z)
ADDL.R6 : SAKTHIDHARAN,
SUPERINTENDENT OF CENTRAL EXCISE,
ERNAKULAM II DIVISION,
CENTRAL EXCISE BHAVAN,
KATHRIKADAVU,
KALOOR-17.
RESIDING AT PALLAVI, 48/295A,
VAYANASSALA ROAD, ELAMAKKARA.
ADDL.R7 K.BALACHANDRAN,
AIR CUSTOMS SUPERINTENDENT,
INTERNATIONAL AIRPORT,
THIRUVANANTHAPURAM.
ADDL.R8 K.PADMAKUMAR,
AIR CUSTOMS SUPERINTENDENT,
INTERNATIONAL AIRPORT,
THIRUVANANTHAPURAM.
ADDL.R9 BENNY.P.JACOB,
SUPERINTENDENT OF CENTRAL EXCISE,
CENTRAL EXCISE HEADQUARTERS OFFICE,
I.S.PRESS ROAD, KOCHI-18.
ADDL.R10 PHILIP SEBASTIAN,
SUPERINTENDENT OF CENTRAL EXCISE,
CENTRAL EXCISE HEADQUARTERS OFFICE,
I.S.PRESS ROAD, KOCHI-18.
ADDITIONAL R6 TO R10 ARE IMPLEADED AS PER ORDER DTD.30.7.2015 IN
I.A.2700/15.
R1TO3 BY ADV. SRI.M.A.SHAFIK
ADDL.6 & 7 BY ADV. SRI.M.T.BALAN
ADDL.6 & 7 BY ADV. SRI.B.JAYABAL
R4 & 5 BY ADV. SRI.O.V.RADHAKRISHNAN (SR.)
R4 & 5 BY ADV. SMT.K.RADHAMANI AMMA
R4 & 5 BY ADV. SRI.ANTONY MUKKATH
ADDL R6 TO R10 BY ADV. SRI.K.RAMAKUMAR (SR.)
ADDL R6 TO R10 BY ADV. SRI.T.RAMPRASAD UNNI
ADDL BY ADV. SMT.AMMU CHARLES
ADDL BY ADV. SRI.S.M.PRASANTH
ADDL BY ADV. SRI.C.DINESH
ADDL BY ADV. SMT.ASHA BABU
ADDL BY ADV. SRI.G.RENJITH
ADDL BY ADV. SMT.JINNU SARA GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-05-2016,
ALONG WITH W.P.(C)No.8768/2008, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 22956 of 2007 (Z)
APPENDIX
PETITIONERS' EXHIBITS:-
EXT.P1 : COPY OF ORDER DTD.1.2.2007 OF THE CAT,
ERNAKULAM BENCH IN OA.530/2004.
EXT.P2 : COPY OF ORIGINAL APPLICATION FILED
BY THE RESPONDENTS.
EXT.P3 : COPY OF REPLY STATEMENT FILED BY THE
PETITIONERS IN EXT.P2 O.A.
EXT.P4 : COPY OF M.A.510/04 FILED BY THE
RESPONDENTS IN EXT.P1 OA.
EXT.P5 : COPY OF ADDL.REPLY STATEMENT FILED
BY THE PETITIONERS.
True copy
P.A to Judge
(CR)
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
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W.P.(C)Nos.22956 of 2007 & 8768 of 2008
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Dated this the 18th day of May, 2016
JUDGMENT
Ramachandra Menon, J.
Whether consultation with the UPSC is 'mandatory' or 'directory', in relation to relaxation of the Recruitment Rules by widening the zone of consideration [reducing the requisite minimum service of '8' years to '7' years] for promotion to the post of Superintendent, Central Excise, from the post of Inspector, Central Excise, when the said exercise was done pursuant to Annexure-A1 order dated 18.6.2004 in furtherance of 'cadre restructuring' brought about all over India as a one time measure? The said order, of course, refers to Annexure-A2 Recruitment Rules, wherein Rule 6 stipulates that consultation with the UPSC is necessary, if at all the Recruitment Rule is to be relaxed. The O.A. preferred by the applicants has been virtually allowed by the C.A.T., setting aside Ext.A1, just for the reason that there was no consultation with the UPSC which is under challenge.
W.P.(C)Nos.22956/2007 & 8768/2008 2
2. Coming to the sequence of events, reference is made to the pleadings and proceedings as referred to in W.P.(C) No.22956/2007, except where it is separately referred to. The said Writ Petition has been filed by the Union of India and others, who were the respondents 1 to 3 before the Tribunal, whereas the other one i.e., W.P.(C)No.8768/2008 has been preferred by the respondents 4 and 5 before the Tribunal, who are stated as adversely affected because of the order passed by the Tribunal.
3. The applicants before the Tribunal were appointed as Inspectors in the Central Excise Department and were having service of more than the minimum/requisite extent as envisaged in Annexure-A2 Rules for promotion. They belonged to the 'general category'. Their grievance was mainly with regard to non-availability of sufficient extent/venue to be promoted to the post of 'Superintendent of Central Excise'; on comparison with similar venue open to the post of 'Superintendent of Customs', in so far as Kerala region is concerned. Admittedly, on becoming successful in the process of selection conducted by the Staff Selection Commission for the post of Inspectors (Central W.P.(C)Nos.22956/2007 & 8768/2008 3 Excise) and Preventive Officers (Customs), the applicants opted for the post of Inspectors (Central Excise) and on coming out successful, they were appointed as Inspectors (Central Excise). The next promotion is to the post of Superintendent (Central Excise) in so far as the Central Excise Department is concerned, whereas it is Superintendent (Customs) in respect of the other stream. The eligibility to be promoted to the post of Superintendent (Central Excise) as per Annexure-A2 Recruitment Rules is by way of promotion; subject to having '8 years' of regular service in the grade of Inspector. Similar stipulation is there in the case of promotion to the post of Superintendent (Customs). The further promotion post in respect of both the above categories is to the common cadre of 'Assistant Commissioner'; subject to eligibility including satisfaction of 5 years' service in the feeder category of Superintendent, which is having all India seniority.
4. According to the applicants, the distribution of posts was quite arbitrary, without any regard to the job requirements in the two different wings; i.e., 'Central Excise' and 'Customs' and W.P.(C)Nos.22956/2007 & 8768/2008 4 that the persons who joined the Customs Department were fortunate to get a walk over ignoring the others/counter parts like the applicants who joined the Central Excise Department. The grievance was being projected particularly with reference to stagnation and the circumstances existing in other parts of the country. In the meanwhile, the scarcity in obtaining sufficient qualified candidates to be promoted to Group-B service in the ministerial and non-ministerial wings was felt by the Government, when it was observed that, because of the situation, much hardships were caused to the Union/Department and that the organisational interest was at stake. This led to detailed work study, based on which, a 'cadre restructuring' was sought to be made, which was implemented based on the decision of the Union Cabinet. At the same time, it was also observed that the Recruitment Rules in respect of the concerned posts required to be relaxed a little, by widening the zone of consideration [by lessening the requisite number of '8' years of experience in the feeder category, to '7' years]. In the course of further proceedings, taking note of the sequence of events and the W.P.(C)Nos.22956/2007 & 8768/2008 5 organisational requirements, Annexure A1 came to be passed in the year 2004, which was on the basis of the decision taken by the Union Cabinet as a 'one time measure' and never to be a precedent in view of the specific intent for which it was being passed.
5. The 2nd respondent in the present Writ Petition, who was the applicant No.2 before the Tribunal, joining hands with their Association, had approached the Tribunal earlier, by filing O.A.No.712/2002, with regard to the availability and allocation of the posts to be promoted. The said O.A. was disposed of as per the verdict passed on 16.6.2003, directing the Chairman of the Central Board of Excise and Customs to consider the representation as to the grievance projected therein. Pursuant to the said direction, the matter was considered and the concerned respondent passed an order on 7.4.2004, whereby 14 posts (out of 24 posts of Superintendents) found in excess in the Commissionerate of Customs (Preventive) were set apart to the Central Excise wing, retaining only 10 posts in the Customs Department. The grievance projected was that the allocation was W.P.(C)Nos.22956/2007 & 8768/2008 6 not comparable to the work load and job requirement and hence arbitrary. The matter was considered at length, both on the question of facts and law, and the Tribunal, as per Ext.P8 order produced in W.P.(C)No.8768/2008, held that the case was not fit to be admitted, as devoid of any merit. Accordingly, interference was declined and the O.A. was dismissed. This was challenged by the concerned applicants by filing W.P.(Civil).No.23146/2004. After hearing both the sides, the verdict passed by the Tribunal was upheld by a Bench of this Court as per Ext.P9 judgment in W.P.(C)No.8768/2008; however, observing in the last paragraph that, if at all the petitioners were not satisfied with the decision conveyed by the concerned respondents as to re-allocation of the posts and if they believed that, by placing better particulars and details before the concerned respondent, he could be persuaded to review the decision, such a course was left open for facilitating such review. It is conceded by both the sides that no such Review Petition was ever filed and hence the said finding has become final.
W.P.(C)Nos.22956/2007 & 8768/2008 7
6. While so, the respondents 1 to 3 in W.P.(C) No.22956/2007 approached the Tribunal by filing O.A.No.530/2004 mainly challenging Annexure-A1 relaxation; raising the following prayers:-
I. To call for the records relating to Annexure A1 to A10 and to quash Annexure-A1, being illegal, arbitrary and against the provisions of Recruitment Rules;
II. To declare that the essential qualifications prescribed by the Recruitment Rules cannot be diluted by relaxations by issuing Executive Orders like Annexure-A1;
III. To direct the 2nd respondent to implement the proposal in Annexure-A8 so as to further the avowed object of cadre restructuring by reducing stagnation and boosting employee morale; IV. To direct the respondents to consider the applicants for promotion to the posts of Superintendents available in the zones where vacancies exist;
W.P.(C)Nos.22956/2007 & 8768/2008 8 V. To issue such other appropriate orders or directions this Hon'ble Court may deem fit, just and proper in the circumstances of the case.
7. Some additional respondents came to be impleaded and after completion of the pleadings, the matter was heard and decided by the Tribunal, whereby interference was made with Annexure-A1. The reason, as obvious from the order, is to the effect that, relaxation of the Recruitment Rules as per Annexure- A1 was quite contrary to the stipulation under 'Rule 6' of Annexure-A2 Rules; which specifically insisted to have consultation with the UPSC to effect any relaxation, if at all so intended by the Government; whereas admittedly, no such consultation was made with the UPSC. This made the Union/Department to feel aggrieved, who contend that it has quite adversely affected the rights and interests of several persons all over India and further that the applicants were not entitled to challenge the proceedings, having no 'locus standi' and that the O.A. itself was not maintainable. It is accordingly, that the matter has been sought to be intercepted by filing W.P.(C) W.P.(C)Nos.22956/2007 & 8768/2008 9 No.22956/2007 raising other grounds as well.
8. The respondents 4 and 5 before the Tribunal, who belonged to the 'reserved category', have approached this Court by filing W.P.(C)No.8768/2008, challenging the verdict passed by the Tribunal, contending that consultation with the UPSC as envisaged under Rule 6 of Annexure-A2 Recruitment Rules is not mandatory, but directory. It is pointed out that the applicants before the Tribunal did not have any 'locus standi' to have filed the O.A.; more so, since the appointment was only in relation to the 'reserved category', by virtue of 'cadre restructuring', whereas the applicants belonged to the 'unreserved category'. It was also contended that the said respondents (who are the petitioners in the W.P.(C)No.8768/2008) were having the stipulated service of more than '8' years in the feeder category and as such, they were not desirous of having any concession extended as per Annexure-A1 and hence their rights and interests ought not to have been affected adversely. It is further pointed out that, promotions have already been effected, based on Annexure-A1 relaxation, in all other States in India; whereas W.P.(C)Nos.22956/2007 & 8768/2008 10 it got stalled only in the State of Kerala, because of the intervention made by the Tribunal.
9. Heard Mr.Thomas Mathew Nellimoottil, learned Standing Counsel appearing for the petitioners in W.P.(C) No.22956/2007, Mr.Antony Mukkath, the learned counsel appearing for the petitioners in W.P.(C)No.8768/2008, Mrs.Shameena Salahuddin, the learned counsel appearing for the respondents/O.A. Applicants and Mr.K.Shri Hari Rao who is representing the counsel appearing for the concerned party respondents at length.
10. The main submission put forth by the learned Standing Counsel for the Department is that, the idea and understanding of the applicants as to the scope of the Rule, insisting consultation with the UPSC, is not at all correct. It is pointed out that such consultation is not at all mandatory, in view of the law declared by the Supreme Court as per decision reported in State of U.P Vs. Manbodhan Lal Srivastava [ AIR 1957 SC 912 (para13)]. Reliance is also sought to be placed on the verdict passed by the Apex Court in G.S.Lamba and others Vs. Union W.P.(C)Nos.22956/2007 & 8768/2008 11 of India and others [1985 (2) SCC 604 (para.27)]; besides citing the decision of the Apex Court in Union of India Vs. Pushpa Rani & others [2008 (9) SCC 242], to contend that the scope of interference in matters involving 'policy' is very limited and that no judicial review is possible as a matter of course. The learned counsel also submits that promotions have been effected in all other States and that the issue with regard to the 'cadre restructuring' and allocation of seats/posts has become final. It is further stated that the interference made by the Tribunal will not in any way come to the rescue of the O.A. applicants, in so far as the posts identified were only in the 'reserved category' and not in the 'unreserved category' to which the O.A. applicants belonged.
11. Almost similar contentions are raised by the learned counsel appearing for the petitioners in W.P.(C)No.8768/2008. The learned counsel submits that, even though enhancement of the number of posts resulted in all India level is about 70%, in so far as Kerala is concerned, it so happened that, it came only to an extent of 44%. That apart, it was noted that there was no W.P.(C)Nos.22956/2007 & 8768/2008 12 adequate representation of Scheduled Castes/Scheduled Tribes in service to the requisite extent (15%+7.5%) with reference to the total number of cadre posts and as such, the backlog had to be filled up. It was in the said circumstance, that the re-allotted '14 posts' of Superintendent were exclusively sought to be filled by the candidates belonging to the 'reserved' category and no vacancy in the unreserved category was ever sought to be filled up. This being the position, the O.A. applicants, who belonged to the 'unreserved category', could never have successfully raised a challenge in respect of the course and proceedings pursued in relation to the 'reserved' category. More so, when the rights of the persons belonging to the 'reserved' category, by virtue of the Constitution mandate under Article 16(4A) of the Constitution of India, is a 'Constitutional right' and not a statutory right. Reference is also made to the 'Rule 7' of the Annexure-A2 Recruitment Rules in this regard. Besides placing reliance on the decision of the Apex Court in State of U.P Vs. Manbodhan Lal Srivastava (AIR 1957 SC 912), reference is also made to other decisions as well; such as State of A.P. and another Vs. W.P.(C)Nos.22956/2007 & 8768/2008 13 Dr.Rahimuddin Kamal [1997 (3) SCC 505], Ram Gopal Chaturvedi Vs. State of Madhya Pradesh [AIR 1970 SC 158 (para.(7)], Dr.M.C.Bindal Vs. R.C.Singh and others [AIR 1989 SC 134 (para.12)], G.S.Lamba and others Vs. Union of India and others [1985 (2) SCC 604 (para.27)] and Union of India and others Vs. R.P.Singh [2014 (7) SCC 340 (paras.13, 21)]. With regard to the 'locus standi' of the original applicants, the learned counsel places reliance on the verdicts of the Apex Court in Retd. Armed Forces Medical Association and others Vs. Union of India and others (2006(11) SCC731), Ashok Kumar Gupta and another Vs. State of U.P. and others (1997 (5) SCC 201) and Dr.Umakant Saran Vs. State of Bihar and others (AIR 1973 SC 964). Referring to the nature of pleadings and the case set up, it is pointed out that reduction in the chance for promotion, based on the actual number of vacancies available in Kerala, is the root cause for the grievance of the applicants, which cannot be a cause of action by itself to raise the challenge, in view of the ruling rendered by the Supreme Court in Union of India and others Vs. N.Y.Apte W.P.(C)Nos.22956/2007 & 8768/2008 14 and others [1998 (6) SCC 741 para (6)].
12. Smt.Shameena Salahuddin, the learned counsel appearing for the respondents/O.A.applicants submits that consultation with the UPSC is 'mandatory', in so far as a clear stipulation is there in 'Rule 6' of Annexure-A2 Recruitment Rules. There is no dispute that the Rules have not been amended and that the said Rules have been framed by the Government, in exercise of the power under Article 309 of the Constitution of India. The learned counsel submits that the law is well settled, that the statutory Rules cannot be changed by way of 'Executive orders' and as such, the relaxation sought to be given as per Annexure-A1, has been rightly intercepted by the Tribunal, for want of consultation with the UPSC; which hence warrants no interference. Reliance is sought to be placed on the decisions rendered by the Supreme Court in Keshav Chandra Joshi and others Vs. Union of India and others [1992 Suppl. (1) SCC 272], Sooraj Parkash Guptha & others Vs. State of Jammu & Kashmir [AIR 2000 SC 2386]; contending that consultation is 'mandatory'. The learned counsel submits with reference to the W.P.(C)Nos.22956/2007 & 8768/2008 15 challenge as to the 'locus standi', that the O.A. applicants will be adversely affected once they come to the stream of Assistant Commissioners, which is having 'all India seniority' and since Annexure-A1 is a common order applicable to both the 'reserved' and 'unreserved' categories, relaxation of the Rule without complying the requirement as stipulated in the 'Rule 6' is an instance of arbitrariness in pursuing the proceedings. In response to the submission made by the learned Standing Counsel for the Union/Department and the learned counsel for the other contesting respondents, that the aggrieved parties who are affected by virtue of the interference made by the Tribunal were not impleaded in the party array; it is stated as not necessary, as the grievance was against the chance of the juniors to have a march over the O.A. applicants to get promoted and occupy higher levels, by virtue of relaxation.
13. As discussed above, the factual dispute, if at all any, in relation to 'cadre re-structuring' of the posts has attained finality, which was never a subject matter to be considered by the Tribunal in the O.A. now under consideration. The dispute raised W.P.(C)Nos.22956/2007 & 8768/2008 16 earlier in this regard; particularly the one in O.A.No.712/2002, wherein interference was declined, has become final by virtue of the dismissal of W.P.(C)No.23146/2004 as per Ext.P9 judgment produced in W.P.(C)No.8768/2008. Even though a 'right of review' (if at all any tenable ground was there) was reserved in favour of the petitioners, such a course was never pursued and as such, this Court need not go to such questions. In view of the nature of challenge raised and the interference made by the Tribunal with reference to non-compliance of 'Rule 6' of Annexure-A2 Rules (i.e., granting relaxation of the Rules without consultation with the UPSC), the only point to be considered is whether the consultation with the UPSC to relax the qualification was 'mandatory' and if so, would such non-compliance vitiate the proceedings and selection; pursuant to Annexure-A1? It is also necessary to consider whether quashing of Annexure-A1 order by the Tribunal, which is having application all over India, will not adversely affect the rights and claims of others in different States, who were never afforded an opportunity of hearing before passing the verdict now under challenge.
W.P.(C)Nos.22956/2007 & 8768/2008 17
14. This Court has gone through the various judgments cited across the Bar by both the sides; with reference to Article 320 of the Constitution of India and other relevant provisions of law. Verdicts have been rendered by the Apex Court referring to the nature of consultation contemplated in different Rules and moulding of reliefs which could be given to the parties concerned. In some cases, it has been held that it is 'mandatory' and in some other cases it has been held as not mandatory, but 'directory'; depending upon the facts and circumstances. The learned counsel for the petitioners seek to place reliance more on the verdict of the Supreme Court in State of U.P Vs. Manbodhan Lal Srivastava (AIR 1957 SC 912), which is a decision rendered by a 'Constitution Bench'. Paragraphs 10, 11, 12 and 13 of the said verdict, for convenience, are extracted below:-
10. The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Art. 320 (3)
(c)? It does not, either in express terms or by W.P.(C)Nos.22956/2007 & 8768/2008 18 implication provide that the result of such a non-
compliance is to invalidate the proceedings ending with the final order of the Government.
This aspect of the relevant provisions of Part XIV of the Constitution, has a direct bearing on the question whether Art. 320 is mandatory. The question whether a certain provision in a statute imposing a duty on a public body or authority was mandatory or only directory, arose before their Lordships of the Judicial Committee of the Privy Council in the case of Montreal Street Rly. Co. v. Normandin, 1917 A.C. 170 (B).
In that case the question mooted was whether the omission to revise the jury lists as directed by the statute, had the effect of nullifying the verdict given by a jury. Their Lordships held that the irregularities in the due revision of the jury lists, will not ipso facto avoid the verdict of a jury. The Board made the following observations in the course of their judgment :
"........ The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed., p. 596 and following W.P.(C)Nos.22956/2007 & 8768/2008 19 pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The King Emperor, 1945 F C R 99 : (A I R 1945 F C
67) (C). In that case, the Federal Court had to consider the effect of non-compliance with the provisions of S. 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers, etc. The Court repelled the contention that the provisions of S. 256, aforesaid, were mandatory. It was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court, W.P.(C)Nos.22956/2007 & 8768/2008 20 were very emphatic and of a prohibitory character.
11. An examination of the terms of Art. 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Art. 320 (3) (c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory.
If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. (3) of Art. 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution. Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid.
On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non- compliance with those provisions will not render the proceeding invalid. In that connection, the following W.P.(C)Nos.22956/2007 & 8768/2008 21 quotation from Crawford on "Statutory Construction'
-Art. 261 at p. 516, is pertinent:
"The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other ........."
12. We have already indicated that Art. 320 (3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by a writ.
On the other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a Court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has not been contended at any stage that they had not been complied with- he has no remedy against any W.P.(C)Nos.22956/2007 & 8768/2008 22 irregularity that the State Government may have committed.
Unless, it can be held, and we are not prepared to hold, that Art. 320 (3) (c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320 (3) (c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.
13. In view of these considerations, it must be held that the provisions of Art. 320 (3) (c) are not mandatory and that non-compliance with those provisions, does not afford a cause of action to the respondent in a Court of law. It is not for this Court further to consider what other remedy, if any, the respondent has. Appeal No. 27 is, therefore, allowed and appeal No. 28 dismissed. In view of the fact that the appellant did not strictly comply with the terms of Art. 320 (3) (c) of the Constitution, we direct that each party bear its own costs throughout.
15. It is true that the issue involved therein was in relation to the disciplinary proceedings and the punishment imposed upon the delinquent employee, for which consultation with the Commission had to be made in terms of the relevant Rules, which in fact was stated as not done. But the line of approach has been W.P.(C)Nos.22956/2007 & 8768/2008 23 explained by the Court with reference to other sub clauses of the Article as well; where the word `shall' appears, as it appears under Article 320(3)(c). The Court observed that, if it was to be held that provision under Article 320(3)(c) was 'mandatory' in terms, the other clauses or sub-clauses of that Article will have to be equally held to be mandatory. The Apex Court further held that, if a finding was rendered as above, any appointment made to the Public Services or the Union or the State without complying with the said requirement of consultation in terms of Article 320(3) and presumably with reference to clause (a) and clause (b) would adversely affect the person so appointed to the Public Service, without any fault on his part and without any contribution or say from his side, which result according to the Apex Court, could not have been contemplated by the makers of the Constitution. It was accordingly held that, use of the word 'shall' in a statute, though generally taken in a mandatory sense, need not necessarily mean that in all cases it has to be so. The aforesaid decision of the Constitution Bench was followed by the subsequent benches of the Supreme Court of different strength at W.P.(C)Nos.22956/2007 & 8768/2008 24 different points of time; depending on the facts and circumstances of each case. But no decision is brought to the notice of this Court from either side; particularly from the part of the applicants in the O.A., to the effect that the above verdict passed by the Constitution bench of the Apex Court and the observations therein have been watered down in any manner, to sustain the order passed by the Tribunal with regard to the non- compliance of the Rule.
16. The issue can be viewed from another angle as well. 'Rule 7' of Annexure-A2 Rules reads as follows:-
"7. Saving: Nothing in these rules shall affect reservations, relaxation of age limit and other concessions required to be provided for candidates belonging to the Scheduled Castes, the Scheduled Tribes and other special categories in accordance with the orders issued by the Central Government from time to time in this regard."
In view of the given set of facts and circumstances, the entire promotion exercise was in respect of the posts earmarked in the 'reserved' category, in so far as the State of Kerala is W.P.(C)Nos.22956/2007 & 8768/2008 25 concerned. This, in other words, means that the rights and interests of the persons, who belonged to 'unreserved' categories, were never to be affected in any manner, in so far as no vacancy was available in the said category and nobody in the 'unreserved' category was eligible to compete. The short question is, whether the persons who belonged to the 'unreserved' category could raise a challenge against the filling up of the vacancies exclusively earmarked for the 'reserved' category. The said question is posed with reference to the power of relaxation envisaged under 'Rule 6' of the Annexure-A2 Recruitment Rules and in turn, this has to be considered in the light of 'Rule 7'. Reading both the Rules together, it can be said that 'Rule 7' will come to the rescue of the persons who belong to the 'reserved' categories and as such, by virtue of the 'non obstante clause' contained in Rule 7, the adverse stipulation, if at all any in the Rules, shall have no application, in so far as the filling up exercise is exclusively for the 'reserved' categories. In other words, the need to have consultation as envisaged in Rule 6 of the Annexure-A2 Recruitment Rules will stand eclipsed, by virtue of W.P.(C)Nos.22956/2007 & 8768/2008 26 Rule 7, in so far as the 'reserved' category is concerned. This is more so, since the fact that there was backlog in the 'reserved' category in Kerala is never in dispute and the said backlog vacancies had necessarily to be filled up, in conformity with the constitutional mandate.
17. The consequence of relaxation ordered as per Annexure-A1 is also a pertinent factor to be noted. It is not a case, where the relaxation has caused in placing any 'higher hurdle' on the way of the O.A. applicants, for being considered for promotion to the posts of Superintendent. The O.A. applicants are, of course, having the requisite extent of service of '8' years in the feeder category. Considering the scarcity of suitable hands to be promoted all over India and the need to meet the organisational requirements in identifying sufficient number of persons to man the chair/offices assigning various duties to be discharged, to prevent pilferage of money and such other aspects touching the economic base of the country; the course pursued by the Government vide Annexure-A1 relaxing the minimum service, has only thrown the zone of consideration a bit more W.P.(C)Nos.22956/2007 & 8768/2008 27 wider and that is all. By virtue of the relaxation in the minimum number of years of experience, by reducing it from '8' to '7', all the persons in the entire country are given the benefit. No particular person/class, no particular caste or no particular State is identified or isolated to be given the benefits. It was placed for consideration before the Union Cabinet, who approved the same and it was thereafter, that the relaxation was sought to be implemented by issuing Annexure-A1 order, as a 'policy decision'. This being the position, the interference made by the Tribunal, merely reading the law by its letters, instead of taking the same by its spirit, is liable to be intercepted; more so, in the light of the law declared by the Supreme Court in State of U.P Vs. Manbodhan Lal Srivastava (AIR 1957 SC 912).
18. Yet another aspect to be considered is whether the O.A. applicants were justified in pursuing the matter without impleading the affected parties in the party array. As stated earlier, Annexure-A1 is a common order applicable throughout the country and quashing of the said order will naturally put the clock back to 'zero'. This in turn will adversely affect the rights W.P.(C)Nos.22956/2007 & 8768/2008 28 and interests of the persons who have been promoted to the posts of Superintendent in all the States in India. Such an order could not have been passed without affording an opportunity of hearing to the concerned affected parties, atleast in a representative capacity. As it stands so, there is total infringement of the fundamental principle of 'audi alteram partem'. The order passed by the Tribunal is liable to be intercepted on this ground as well.
19. This Court finds force in the submission made by the learned counsel appearing for the petitioners in both the Writ Petitions, that the decision to lessen the rigor of the qualifying service; throwing the zone of consideration a bit more open/wider, considering the organisational requirement and making it applicable throughout the country was a 'policy decision' and the same is not liable to be interfered by a Court of law. The O.A. applicants, who admittedly belonged to the 'unreserved' category, could not have validly raised any challenge with regard to the course and exercise exclusively meant for the 'reserved' category. This is more so, when no benefits were to be W.P.(C)Nos.22956/2007 & 8768/2008 29 obtained/conferred upon the O.A. applicants, as the posts in question were exclusively earmarked for the 'reserved' category and the challenge has turned to be just an academic exercise.
In the above circumstances, we find that the interference made by the Tribunal, setting aside Annexure-A1 order, is not correct or sustainable. The verdict passed by the Tribunal stands set aside. The Writ Petitions stand allowed and the Original Application stands dismissed. No cost.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
ANIL K.NARENDRAN, JUDGE skj True copy P.A to Judge