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9. The applicant has filed a replication.

10. We have heard Mr. P.S. Patwalia, learned Counsel for the applicant, Mr. Mukesh Kaushik, learned Counsel appearing on behalf of U.P.S.C. (Respondent No.2) and Mr. Sanjay Goyal, learned Counsel for respondent No. 1 at considerable length.

11. The main thrust of the submissions made by the learned Counsel for the applicant is that since his employer. Respondent No. 1 has found merit in his representation on the basis of A.C.R. gradings and has requested the UPSC to convene a review DPC to regularize the ad hoc promotion of the applicant to the grade of Joint Commissioner, it was incumbent upon the UPSC to obey the direction of Government of India as contained in letter dated 5.6.2002 (quoted above). It was emphasized that the UPSC being an advisory or consultative body cannot turn down the request to convene the review DPC. To fortify this submission. Mr. P.S. Patwalia, learned Counsel for the applicant placed reliance on certain observations made by the Apex Court in different decisions. A reference was made to the decision in the case of A.N. D 'Silva v. Union of India, AIR 1962 SC 1130, in which the provisions of Article 320(3) came to be interpreted and it was held that consultation of UPSC does not mean that it acts as appellate authority over the Inquiry Officer. In the said decision, it was also observed that the President is not bound by the advice of the Commission. Reference was also made to another decision in the case of Union of India and Ors v. Dr. (Mrs.) S.B. Kohli and Anr., 1973(3) SCC 592=1973 SLJ 226 (SC). This decision does not appear to be germane to the category in hand. Emphatic reliance has been placed on yet another decision of the Apex Court in the case of Dr. H. Mukherjee v. Union of India and Ors., AIR 1994 SC 495= 1994( 1) SLJ 107 (SC) in which again the scope of Article 323 of the Constitution of India was considered with reference to the earlier decision in the case of Jatinder Kumar v. The State of Punjab, AIR 1984 SC 1850=1984(2) SLJ 477 (SC). The recommendations of the Commission were not accepted by the Government of India in view of certain subsequent developments. The question before the Apex Court was whether ACC (Appointments Cabinet Committee) was justified in taking into consideration the subsequent developments for by-passing the recommendations of the UPSC. It was held that there is nothing in Article 323 to suggest that the Government cannot take into consideration the developments subsequent to the selection made by the UPSC. Such a view would not be in public interest and may lead to serious complications if the Government is enjoined to make the appointment notwithstanding certain serious matters having come to its notice subsequent to the recommendation made by the Commission. All that Article 323 requires is that the reasons have to be communicated to the Legislature if the advice of the Commission has not been accepted while placing a copy of the report as to the work done by the Commission. A passing reference was also made to another decision of the Apex Court in the case of Dr. P.K. Jaiswalv. Ms. Debi Mukerjee and Ors, AIR 1992 SC 749=1992(1) SLJ 220 (SC). In that case, a recommendation made to the UPSC by the Government for selection of candidate for a post was subsequently with-drawn before the post was advertised by the Commission on the ground that amendment of the Recruitment Rules for providing promotion to the post was under consideration. The Commission proceeded with the selection process. It was held that Commission cannot insist on going ahead with the selection and the candidate who was called for interview by the Commission does not have a vested right and that after the with-drawl of the recommendation for making the selection, the exercise undertaken by the Commission was not only futile but waste of public time and money besides hardship to candidates who seek appointment. We have given our thoughtful consideration to each one of the above decisions cited by Mr. P.S. Patwalia and find that they are directly not on the point. The gamut of the above decisions, however, is that the role of the UPSC is advisory or consultative in nature and the Government is not obliged to accept the advice or the recommendation of the UPSC. Reliance on the above quoted decisions is obviously mis-placed as neither of the decision is an authority on the point that the Commission is bound in every case to yield to the wishes of the appointing authority.

12. Turning to the core question, we may sound a note of caution that the relationship of Government of India and that of UPSC is not that of master and servant. The latter owes its worth and existence to the constitutional provisions contained in Chapter II of Part XIV of Constitution of India. The UPSC has come into being pursuant to the provisions of Article 315. The founding fathers of the Indian Constitution realized that the democratic system could be maintained only if the civil servants were appointed solely on the basis of merit, by open competition and only if they could carry on the administration independently, instead of blindly carrying out the orders of their political superiors. They have rightly rejected the 'spoils system', under which the administration is carried on by civil servants appointed in consideration of their political service to the party in power. With this avowed object in view, the Constitution gave birth to a Public Service Commission at the Union as well as the State level. It was supposed to be an autonomous body so that it could carry on its functions independently, fairly and impartially through the agency of men of high integrity, knowledge and qualification. The aim and object to constitute Public Service Commission is to ensure recruitment/selection to the civil services on the basis of merits by an impartial body. Clause (3) of Article 320 of the Constitution enjoins that the PSC shall be consulted: (a) on all matters relating to methods of recruitment to civil services and for civil posts; (b) on the principles to be followed in making appointments to civil services and posts and in making promotions etc.; (c) on all disciplinary matters affecting a person serving under the Government of India in a civil capacity, including memorials or petitions relating to such matters. There are other matters in which Commission has to be consulted. It is true that the law as settled by the Apex Court is that the words 'shall be consulted' are not to be construed in the sense that in default of consultation, the action of Government under any of the Sub-clauses of Clause (3) of Article 320 would be null and void. Nevertheless where the Government does not accept the recommendation of the Commission, say, as to selection of the candidate, it is the duty of the Government to place the reasons for its non-acceptance before the appropriate Legislature, but it has no obligation to communicate such reasons to the Commission or to the candidate concerned. Inspite of the non-compulsive nature of the advice or the recommendation tendered by the UPSC, this constitutional body cannot be rendered superfluous. If any vacancy is to be filled, the Government must make the appointment in the order of merit fixed by the Commission. So also, the Government cannot appoint a person whose name does not appear in the list, though it is open to the Government to decide how many appointments it will make. When one says that the advice/ recommendations of the UPSC is not binding or may not be accepted by the Government, it 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 under the proviso to Article 320, they are meant to be followed in letter and spirit and it goes without saying that consultation with the Commission in all the matters detailed in Clause (3) of Article 320 has been specifically provided for, in order, firstly, to give an assurance to the services that a wholly independent body not directly concerned with the making of orders adversely affecting public servant, has considered the action proposed to be taken against a particular public servant, with an open mind and secondly, to afford the Government unbiased advise 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 the public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the retirements of the situation. Similarly, public faith and confidence is doubly assured if the recruitment/selection of the candidates is made by a body which is independent impartial and fair. Therefore, the element of 'consultation' cannot totally be ignored in the matters of public service. All things remaining the same, the Government is bound to accept the selection made by the Commission N.T. Bevin Katta etc. v. Karnataka Public Service Commissioner and Ors., AIR. 1990 SC 1233, or to accept the advice tendered by the Commission. The Government is duty bound to consult the Commission and, therefore, the advice given by the Commission cannot be lightly brushed aside. The Government is bound to give effect to the advice of Constitution State ofU.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912. Ours is a constitutional system of checks and balances. The advice tendered by a constitutional authority cannot normally be ignored or rendered Otiose by another constitutional functionary. Mutual respect of each one of the constitutional functionaries is the signature tune of our constitutional scheme.

13. In view of the above discussion, we would be inclined to repel the extreme submission on behalf of the applicant that the Government as the appointing authority wields absolute power to require the UPSC to convene the review DPC. As a constitutional body, the UPSC is not supposed to take dictation from the Government though the latter has a final say in the matter of public employment. The Commission is an independent constitutional authority and exercise the powers and performs its functions and discharges duties as specified in the Constitution particularly in Article 320 in accordance with its own procedure and the law regulating its functioning. Certainly, the executive Government is not in a position to issue commands to the UPSC to act in a particular manner.

15. It is well settled proposition of law that absence of consultation or if there is consultation, the result of which goes against the employees, does not afford him a cause of action. The provisions of Article 320(3) have been held to be not mandatory and, therefore, do not confer any right on the public servant. In this connection, a reference may be made to the decisions of the Apex Court in the case of Manbodhan Lal Srivastava (supra) and Ram Gopal Chaturvedi v. State of Madhya Pradesh, AIR 1970 SC 158. The firm legal position as it stands is that the words 'shall be consulted' are not to be construed in the sense that in default of consultation, the action of Government under any of the sub-clauses of Clause (3) of Article 320 would be null and void. The applicant, therefore, has no indefeasible right to enforce the order of the Government of India for convening of the review DPC in his matter. We failed to understand, how came the applicant to enforce the obligation, if any, to convene the review DPC.