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PETITIONER: INDIAN ADMINISTRATIVE SERVICE (S.C.S.) ASSOCIATION, U.P. AND

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT11/11/1992

BENCH: [A.M. AHMADI, M.M. PUNCHHI AND K. RAMASWAMY, JJ.]

ACT:      Indian Administrative Service (Regulation of Seniority) (First Amendment) Rules 1989:      Rule 3(3)(ii)  Seniority of  promotees/direct  recruits assigning year  of allotment-Procedure-Legislative intention what is-Junior officer promoted on merit superseding seniors Year of allotment of such officer Fixation of.      Interpretation of Statutes:      I.A.S.  (Regulation  of  Seniority)  (First  Amendment) Rules,  1989-Rule   3(3)  (ii)  proviso-Construction-Whether prospective in operation-Legislative intention-What is.      Constitution of India 1950:      Articles 14  16 and  Rule 3(3)(ii)  proviso  of  I.A.S. (Regulation of  Seniority)  (First  Amendment)  Rules  1989- Constitutional  validity   of-  Whether   inconsistent  with Section 3(LA) of the All India Services Act, 1957.      All India Services Act, 1951:      Section 3(1A)-Rules  made under-Rule  3(3)(ii), proviso of  the  First  Amendment  Rules,  1989-Consultation-Object, importance and  nature of-Failure  to consult all Stares and Union   Territories-Whether    proviso    to    Rule    3(3) unconstitutional.

HEADNOTE: On 19.1.1984, the Association [petitioner No. 1 in W.P. (C)  No.   499  of  1991]  requested  the  Union  Government (Respondent) to remove the disparity prevailing in different states of  promotional avenues  from State Civil Services to All India Administrative Service. A Committee  of Senior  Secretaries, constituted by the Union Government,  recommended  an  equitable  principle  of comparable seniority  from different States for promotion to the Indian Administrative Service. The I.A.S.  (Regulation of  Seniority) Rules, 1987 came into force  with effect  from 6.11.1987,  repealing the  old Rules. In a  Circular dated 9.9.1986 issued by the respondent- Union Government  directed the  State  Governments  to  give weightage over  and above  four years the assignment of year of allotment  as per  the existing rules, namely, four years for  the  first  12  years  State  service  with  additional weightage one  year for  every two  to the  years  completed service subject to a maximum of five years. Union  Government   amended  and   published  the   New Seniority Rules,  1987, after  considering  the  suggestions from the  State Governments.  The First  Amendment Rules was published in the Gazette of India on 32.1989 which was given

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prospective operation from 3.2.1989. The appellants in C.I. No. 4794 of 1992 questioned Rule 3(3) (ii)  proviso of  the  First  Amendment  Rules,  in  an application before  the CAT.  at Patna.  They contended that though they were found to be entitled to the total weightage of 9  years since the juniors were given 1983 as the year of allotment   by operation  of proviso to Rule 3(3)(ii) of the First Amendment  Rules, were  given  1983  as  the  year  of allotment and thereby the appellants were denied the 3 years weightage. The  Tribunal   upheld  the  Rules  and  dismissed  the application, against  which appeal - C.A. No. 4794 of 1992 - was filed in this Court. The appellants  in C.A.  No. 4788 of 1992, some members of the  Association -  petitioner No.  1 of the W.P. (C) No. 499 of  1991 -  filed  an  application  before  the  Central Administrative Tribunal at Lucknow contending that they were promoted in  1980 onwards,  and they  were discriminated  in fixation of their seniority. The Tribunal held that the prospective operation of the 1987 Rules  discriminated the  Senior  State  Civil  Service Officers, but  refused to  direct the  Union  Government  to amend  the  Rules  but  retrospective  effect.  However,  it requested the  Government of  India to reconsider the matter and to  give retrospective  operation to the First Amendment Rules. This  decision was questioned hl an appeal - C.A. No. 4788 of 1992. In WP(C)No.  of 499  of 1991,  Petitioner No.  1  -  An Association representing  the officers  of  the  U.P.  State Civil Service  - and petitioners 2-17, its members filed the writ petition  under Article 32 of the Constitution to quash the  order  of  the  respondent  -  Union  Government  dated 12.12.1990, and  for  a  direction  to  extend  the  benefit flowing from  the  First  Amendment  Rules  to  its  members promoted prior  to January  1988. It  was contended that the First  Amendment  Rules  operated  with  effect  from  1992, whereas the  promotee Officers were promoted between 1988 to 1991 and that they would get only partial benefit. As these  cases raised  common questions  of law,  they were heard together. Dismissing WP(C)No.  499/1991 and  CA No. 4794 of 1992, and allowing C.A No. 4788 of 1992, this Court, HELD:  1.01.   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 affected in their seniority. [403-D] 1.02. Rule  3(31 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. [400-G-H] 1.03.  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 of one year weightage of every completed 3 years of service. beyond the period  of 12 years, subject to a maximum weightage of 5 years. In  its calculations fractions are to be ignored. The weightage shall  be computed  from the year G of appointment of the officer to the service. [402-E]

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1.04. The  offending proviso  limits the  operation  of Rule 3(3) (ii) (a) and (b) that such an officer shall not be assigned an  year of  allotment earlier  than  the  year  of allotment assigned  to the  officer senior  to him  in  that select list  or appointed  on the basis of an earlier select list. [1402-F] 105. The  proviso aims  that the  State  Civil  Service senior officer’  though had  varied length  of services, but because of  late promotion to Indian Administrative Service, would receive  and forego  proportionate weightage  of  past service for  a short  period till  the  rules  fully  become operational. [406-B] 1.06. The  first amendment rules doubtless provided the remedy to  remove existing  discriminatory results by giving graded weightage  to a  maximum of  9 years  and would track back the year of allotment anterior to the date of inclusion in the  select list  under the  Recruitment Rules  read with Promotion Regulations. [406-C] 1.07. The  Proviso intended to protect the seniority of the officers  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  in tended  not  to  let endless  chain   reaction  occur  to  unsettle  the  settled interests  in   seniority.  These  compulsive  circumstances denied the  benefits of  full 9  years weightage to officers promoted during  1987 to 1992. The discrimination, though is discernible, but inevitable to ensure just results. In other words the proviso prevented unequals to become equals. [406- D-E] 1.08. The new Seniority Rules were to be operative from November 6, 1987 and the First Amendment Rules from February 3, 1989  with the  result that  in  assigning  the  year  of allotment, full  weightage of  9 years’ eligible service was given to the promotee State Civil Service Officers. However, the senior officer to him/her appointed from the State Civil Service earlier  in the same select list or one above him in the previous select list shall remain senior to him. Thereby the proviso  averted the  effect of  pushing an  officer who gained entry  into IAS  service by  application of  rule  of weightage in  Rule 3(3) (ii) of the Rules down in seniority. [402-H, 403-A-B] 1.09. By  dint of merit, ability and suitability junior officer could  steal a march over the senior officers in the State  Civil   Service  and   get  entry   into  the  Indian Administrative Service  earlier to  the senior  officers and thus becomes  a member of the Indian Administrative Service. Thereby he becomes senior in service. The senior State Civil Service officer,  who was superseded and subsequently became qualified tor  inclusion in  the select  list, after the new Seniority Rules  or the  First  Amendment  Rules  came  into force, indisputably  would be  junior in I.A.S. cadre to his erstwhile junior officers in State Civil Service. If he gets the benefit  of the  free play of the First Amendment Rules, it  would  have  the  inevitable  effect  of  depriving  the promoted erstwhile  junior officer  of the  benefit of early promotion and he would be pushed down and would again become junior to  him in  the Indian Administrative Service. [405-G H; 406-A-B] 1.10. A  junior officer  who superseded  a senior State Civil Officer became entitled to carry his year of allotment and became  senior to him in the cadre of I.A.S. But for the proviso, the  operation of Rule 3(3)(ii), the senior officer

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would have  been saddled  with the  disability to  be pushed down in  seniority which would have nullified and frustrated the hard  earned earlier  promotion and consequential effect on seniority earned by dint of merit and ability. [403-E] 2.01. No  statute shall  be construed  so  as  to  have retrospective operation  unless  its  language  is  such  as plainly to  require such a construction. The legislature, as its policy,  give effect  to the  statute or  statutory rule from a specified time or from the date of its publication in the State Gazette. 1404-A] 2.02. Court  would issue no mandamus to the legislature to make law much less retrospectively. 2.03. It  is the  settled cannons  of construction that every word,  E phrase or sentence in the statute and all the provisions read  together shall  be  given  full  force  and effect and  no provision  shall be  rendered  surplusage  or nugatory. [404-B] 2.04. The mere fact that the result of a statute may be unjust, does  not entitle the court to refuse to give effect to  it.  However,  if  two  reasonable  interpretations  are possible, the  Court would  adopt that construction which is just, reasonable  or sensible.  Courts cannot substitute the words or phrases or supply casus omissus. The court could in an appropriate case iron out the creases to remove ambiguity to give  full force and effect to the legislative intention. But the  intention must  be  gathered  by  putting  up  fair construction of  all the  provisions reading  together. This endeavour would  be to  avoid absurdity or unintended unjust results by  applying the doctrine or purposive construction. 1404-C-D] 2.05. Where  the intention  of statutory  amendment  is clear and  expressive, words  cannot be interpolated. In the first place  they are  not, in  the ease,  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. [405- B] 2.06. Where  the meaning  of the  statute is  clear and sensible, either  with or  without  omitting  the  words  or adding one,  interpolation is  improper, since  the  primary purpose of  the legislative  intent is what the statute says to be  so. If  the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. [405-C] 2.07. If  found ambiguous  or unintended, the court can at best  iron out  the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the  court can quash it, if it violates the fundamental rights or  is ultra vires of the power or manifestly illegal vitiated  by   fundamental  laws  or  gross  miscarriage  of justice. [405-D] 2.08. The Legislature intended that the First Amendment Rules would operate prospectively from February 3, 1989, the date of  their publication  in the  Gazette  of  India.  Its policy is  explicit and  unambiguous, Rule 3(3)(ii) intended to remedy  the imbalances while at the same time the proviso intended to  operate prospectively to avert injustice to the officers  recruited/promoted   earlier  than   the   officer promoted later  to that  date. The  proviso  carved  out  an exception to  ward off injustice to the officers that became members of I.A.S. earlier to those dates. [405-E] Smt. Hire  Devi & Ors. v. District Board, Shahjahanpur, [1952] SCR  1131; Nalinakhaya Bysck v. Shyam Sunder Haldar & Ors., [1953]  SCR 533  at 545 and Commissioner of Sales Tax, U.P. v.  Auriya Chamber of Commerce, Allahabad, 119861 2 SCR

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430 at 438, referred to. 3.01. The  application of the First Amendment Rules has the inevitable  and insiduous  effect of  doing injustice to the direct  recruit\promotee officer  or  officers  promoted earlier to  Feb. 3, 1989 and the proviso avoided such unjust results. Giving  retrospective effect  or directing to apply the rule  to all  the seniors  irrespective of  the date  of promotion  to   I.A.S.  cadre  would  land  in  or  lead  to inequitous  or   unjust  results  which  itself  is  unfair, arbitrary and unjust. offending Art. 14 of the Constitution. To avoid  such unconstitutional  consequences the proviso to Rule 3(3)(ii) of the First Amendment Rules was made. [407-C] 3.02.  But  for  the  proviso  the  operation  of  Rule 3(3)(ii) would  be inconsistent  with Sec. 3(1A) of the Act. Equally though  the doctrine  ’Reading down’  is  a  settled principle of  law, its  application to the facts of the case would lead  to injustice to the officers promoted earlier to the  appellants.   A  writ   of  mandamus   commanding   the respondents to  give  full  benefit  of  weightage  of  Rule 3(3)(ii)(a)&(b) of the First Amendment Rules would amount to direct the  executive to  disobey the  proviso which  is now held to be intra vires of the Constitutions. [407-D] 3.03.  The  proviso  to  Rule  3(3)(ii)  of  the  First Amendment Rules  is consistent with section 3(1A) of the Act and it is not ultra vires of the power the Central Govt. nor it offends Arts. 14 and 16(1) of the Constitution. [409-A] 3.04.  There   is  a   distinction  between  right  and interest.  No  one  has  a  vested  right  to  promotion  or seniority, but  an officer  has  an  interest  to  seniority acquired by  working out  the rule.  Of course,  it could be taken away only by operation of valid law. [408-E] 3.05. Law itself may protect the legitimate interest in seniority  while   granting  relief   to  persons  similarly circumstanced like  the one under sec. 3(1A) of the Act read with proviso  to  Rule  3(3)  (ii)  &  (iii)  of  the  First Amendment  Rules.  It  was  neither  void  nor  ultra  vires offending Arts. 14 and 16(1) of the Constitution. [410-C] State of  Jammu &  Kashmir v.  T.N. Khosa, [1974] 1 SCR 771 at  779; J. Kumar v. Union of India, [1982] 3 SCR 453 at 463 and  Union of India v. P.K Roy, 11968] 2 SCR 186 at 201- 202, distinguished. D.S. Nakara  v. Union  of India,.  [1983] 2 SCR 165; B. Prabhakar Rao  v. State  of A.P., [1985] 2 Supp. SCR 379 and A.K Bhatnagar  v. Union of India, [1991] 1 SCC 544, referred to. 4.01. Consultation  is a process which requires meeting of minds  between the  parties involved  in the  process  of consultation on  the material  facts and  points involved to evolve a  correct or  at least  satisfactory solution. There should be  meeting of  minds between  the proposer  and  the persons to  be consulted  on the  subject  of  consultation. There must be definite facts which constitute foundation and source for final decision. [415-E] 4.02. The  object of  the  consultation  is  to  render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory. [415-E] 4.03. When  the offending  action  effects  fundamental rights  or  to  effectuate  built  in  insulation,  as  fair procedure, consultation  is mandatory  and  non-consultation renders the action ultra vires or invalid or 4.04. When  the opinion  or advice  binds the proposer, consultation is  mandatory and  its infraction  renders  the action or order illegal. 1415-F] 4.05. When  the opinion or advice or view does not bind the person  or  authority,  any  action  or  decision  taken

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contrary to  the advice  is not  illegal, nor  becomes void. [415-G] 4.06. When  the object  of the  consultation is only to apprise of  the proposed  action and  when  the  opinion  or advice is  not binding  on the  authorities or person and is not bound  to be  accepted, the  prior consultation  is only directory. The  authority proposing  to take  action  should make known  the general  scheme or  outlines of  the actions proposed to  be taken,  be put to notice of the authority or the persons  to be  consulted, have the views or objections, taken  them   into  consideration,   and  there  after,  the authority or  person would be entitled or has/have authority to pass appropriate orders or take decision thereon. In such circumstances it  amounts to an action "after consultation". [415-H, 416-A-B] 4.07. No  hard and  fast rule  could be laid, no useful purpose would  be served by formulating words or definitions nor would  it be appropriate or 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 cir cumstances whether  the action is "after consultation", "was in fact  consulted" or  was it  a "sufficient consultation". [416-C] 4.08. 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 outlines 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 from need not again be communicated  to all  the concerned State Governments nor have prior  fresh consultation.  Rules or  Regulations being legislative in character, would tacitly receive the approval of   the    State   Governments    through   the    people’s representatives when  laid on  the floor  of each  House  of Parliament. The  Act or  the Rule made at the final shape is not rendered  void  or  ultra  vires  or  invalid  for  non- consultation. [416-D-F] 4.09 The  proposal for amending the new Seniority Rules in  the   draft  was   only  for   inviting  discussion  and suggestions on  the scope  and ambit of the proposed law and the effect  of the  operation of  the First Amendment Rules. Keeping  the   operational  effect   in  view  the  proposed amendment could be modified or deleted or altered. [416-G] 4.10 The  Central Govt.  is not  bound to accept all or every proposal  or counter  proposal. Consultation  with the Ministry of  Law would  be sufficient.  Thereby the  Central Govt. is  not precluded  to revise  the draft  rules in  the light of the consultation and advice. [416-H] 4.11 The  general consultation had by the Central Govt. with the  State Govts.  and Union Territories was sufficient and it was not necessary to have prior consultation again to bring the proviso on statutes as part of the First Amendment Rules. [417-B] 4.12 By  operation of  sub-sec. (2) of Sec. 3 the rules were laid  on the  floor of  each House  of the  Parliament. There were  no suggestions  or alterations  made  by  either House of  Parliaments. Thus  the First Amendment Rules stood approved by the Parliament. [417-C] 4.13 The  failure to  consult all the State Governments or Union  Territories on  the proviso  to Rule  3(3) (ii) or (iii) of  the First  Amendment Rules  does  not  render  the

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proviso ultra vires, invalid or void. [417-D] Union of  India v.  Sankalchand Himatlal  Sheth & Anr., [1977] 4  SCC 193;  R. Pushpam  v. State of Madras, AIR 1953 Madras 392; State of U.P. v. Manmohan Lal Srivastava, [1958] SCR 533  at 542;  U.R. Bhatt  v. Union of India, AIR 1962 SC 1344; Ram  Gopal Chaturvedi  v.  State  of  Madhya  Pradesh, [1970] 1  SCR 472;  N. Raghavendra  Rao v. Dy. Commissioner, South Kanara, Mangalore, [1964] 7 SCR 549; Mohd. Sujat Ali & Ors. v.  Union of  India,  [1975]  1  SCR  449  at  469-471; Chandramouleshwar Prasad  v. Patna High Court & Ors., [1970] 2 SCR  666 at  674-675; Narain  Sankaran Mooss  v. State  of Kerala &  Anr, [1974] 2 SCR 60; Naraindas Indurkhya v. State of M.P.  & Ors.,  [1974] 3  SCR 628;  Hindustan Zinc Ltd. v. A.P. Electricity Board, Ors., [1991] 3 SCC 299; Rollo & Anr. v. Minister  of Town  & Country  Planning, [1948] 1 All Eng. Reports 13;  Electher &  Ors. v.  Minister of Town & Country Planning, [1947] 2 All. Eng. Reports 496; Sinfield & Ors. v. London Transport Executive, Law Reports 1970 Chancery Divn., Derham &  Anr. v.  Church Commissioners  for  England,  1954 Appeal Cases  245 and  Port Louis  Corporation  v.  Attorney General of Mauritius, 1965 Appeal Cases 1111, referred to. Union of  India &  Ors. v.  Dr.  S.  Krishna  Murthy  & Ors.,[1989] 4 SCC 689, distinguished.

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  (C) No.  499  of 1991.  (Under Article 32 of the Constitution of India).                             WITH      Civil Appeal Nos. 4788 & 4794 of 1992.      C.S.  Vaidyanathan,   K.  Lahiri,  P.P.Rao,  Vishwajeet Singh, R.B.  Misra, 4  R.K. Khanna,  Surya Kant, R. Singhvi, C.V.S. Rao,  Ms. A.  Subhashini, R.P. Singh, S.N. Terdol, A. Sharan, H.K.  Puri, Ms.  Abha Sharma and K.K. Lahiri for the appearing parties.      The Judgment of the Court was delivered by      K. RAMASWAMY, J. Special leave granted.      As the  trio raised  common questions  of law, they are disposed of by a common judgment.      The  1st   petitioner  in   the  Writ  Petition  is  an Association representing  the officers  of the  State  Civil Service of U.P. and petitioner Nos. 2 to 17 are its members. some of  them and Bihar State Officers are the appellants in the two  appeals respectively.  On  January  19,  1984,  the association represented  to the  Govt. of India requesing to remove wide  disparity prevailing  in  different  States  of promotional avenues  from the  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

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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. to  give weightage  over and  above 4  years  in  the assignment of year of allotment as per the existing relevant rules, namely,  four years  for the  first  12  years  State service with  additional weightage of one year for every two to three  years’ completed  service subject  to a maximum of five years.  After receiving  suggestions or  comments  from State Governments,  the Central  India exercising  the power under sub-sec.  (1) of Sec. 3 of All India Service Act, 1951 for short,  ’the Act’  amended the New Seniority Rules, 1987 which amendment  was published  in the  Gazette of  India on February 3,  1989 for short the ’First Amendment Rules’. The proviso   thereto    was   made   limiting   its   operation prospectively from February 3, 1989. Putting the proviso and its prospective operation in issue, the appellants from U.P. in Civil  Appeal No.  4788 of  1992[S.L.P. (C)  No. 13823 of 1991] filed  Original Application  No. 18  of  1989  in  the Central  Administrative   Tribunal,  Allahabad   at  Lucknow Circuit Bench,  contending that  they were  promoted in 1980 onwards but by limiting its application to November 6, 1987, they were  discriminated. Bihar Officers questioned the Rule in O.A.  No. 136 of 1989 before the C.A.T. at Patna. Therein the appellants  though found  to be  entitled to  the  total weightage of  9 years since their juniors were given 1983 as the year  of allotment  by  operation  of  proviso  to  Rule 3(3)(ii) of the First Amendment Rules were given 1983 as the year  of   allotment.  Thereby  they  were  denied  3  years weightage.      The Tribunal  at  Lucknow  held  that  the  prospective operation  discriminated  the  Senior  State  Civil  Service Officers but  it refused  to direct the Union Govt. to amend the Rules  with retrospective  effect. However, the Govt. of India  was  requested  to  reconsider  the  matter  to  give retrospective operation  to the  First Amendment  Rules. The Tribunal  at  Patna  upheld  the  rules  and  dismissed  the application. The  Officers from  Uttar Pradesh through their Association filed  the Writ  Petition under  Art. 32  of the Constitution seeking  writ of  certiorari to quash the order dated December  12, 1990  made by the Ministry of Personnel, Public Grievance  and Pension  Department and for a mandamus to extend  the benefits  flowing from  the  First  Amendment Rules to  its members  promoted prior to January 1988 and to the petitioners  Nos. 2  to 17 in particular. It is needless to state  that the  First Amendment 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

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same as per the rule 3(2) as has been assigned to him by the Central Govt. in accordance with the orders and instructions in force  immediately before  the commencement  of  the  New Seniority Rules. Sub-rule (3) of Rule 3 provides thus:      "3(3) The  year of  allotment of an      officer appointed  to the   Service      after  the  commencement  of  these      rules shall be as follows:      3(3)(i) the  year of allotment of a      direct recruit officer shall be the      year following  the year  in  which      the  competitive   examination  was      held:      Provided that  if a  direct recruit      officer  is   permitted   to   join      probationary  training  under  rule      5(1) of  the IAS (Probation) Rules,      1954, with  direct recruit officers      of a  subsequent year of allotment,      then he shall be assigned      that subsequent year as the year of      allotment.      3(ii) The  year of  allotment of  a      promotee    officer     shall    be      determined   in    the    following      manner]:-      (a) For the service rendered by him      in the  State  Civil  Service  upto      twelve years, in the rank not below      that  of   a  Deputy  Collector  or      equivalent, he  shall  be  given  a      weightage  of   four  year  towards      fixation of the year of allotment;      (b)  He   shall  also  be  given  a      weightage of  one  year  for  every      completed three  years  of  service      beyond the  period of twelve years,      referred  to   in  sub-clause  (a),      subject to  a maximum  weightage of      five  years.  In  the  calculation,      fractions are to be ignored.      (c) The weightage mentioned in sub-      clause (b) shall be calculated with      effect from  the year  in which the      officer   is   appointed   to   the      service:      Provided  that   he  shall  not  be      assigned  a   year   of   allotment      earlier than  the year of allotment      assigned to  an officer  senior, to      him  in   that   select   list   or      appointed to  the  service  on  the      basis of an earlier Select List.      3(3) (iii) The year of allotment of      an officer  appointed by  selection      shall   be    determined   in   the      following manner:      a)  for   the  first  12  years  of      gazetted service, he shall be given      a  weightage  of  4  years  towards      fixation of the year of allotment;      (b)  he   shall  also  be  given  a      weightage of  one  year  for  every      completed 3 years of service beyond      the period of 12 years, referred to

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    in sub-clause  (a),  subject  to  a      maximum weightage  of 5  years.  In      this calculation,  fractions are to      be ignored;      (c) the weightage mentioned in sub-      clause (b) shall be calculated with      effect from  the year  in which the      officer is    A  appointed  to  the      service:      Provided that  he shall  not become      senior to  another non-State  Civil      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 of one year weightage of every completed 3 years of service, beyond the period  of 12 years, subject to a maximum weightage of 5 years. In  its calculations fractions are to be ignored. the weightage shall be  computed from the year of appointment of the officer to the service. The offending proviso limits the operation of  Rule 3(3)(ii)(a)  and (b) that such an officer shall not  be assigned an year of allotment earlier than the year of  allotment assigned to the officers senior to him in that select  list or  appointed on  the basis  of an earlier select list. Under rule 3(3) (iii) also, though not relevant for the  purpose of  the case but serves as an analogy, that the year  of allotment  of an officer appointed by selection shall also be given the year of allotment in the same manner as adumbrated  in sub-rule 3(3) (ii) and its effect also was circumscribed under  the proviso  that he  shall not  become senior to  another non-State  Civil Service  Officer already appointed to  the service.  It is, therefore, clear that the New Seniority  Rules were  to be  operative from November 6, 1987 and  the First  Amendment Rules  from February  3, 1989 with the  result that  in assigning the year of A allotment, full weightage of 9 years’ eligible service was given to the promotee State  Civil Service  Officers. However, the senior officer to  him/her appointed  from the  State Civil Service earlier in  the same  select list  or one  above him  in the previous select list shall remain senior to him. Thereby the proviso averted  the effect of pushing an officer who gained entry into  IAS service  by application of rule of weightage

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in 3(3)(ii)  of the  rules down  in seniority. It is settled law that  ability, merit and suitability are the criteria to select an  officer of  the State Civil Service for inclusion in the  select list  for promotion under regulation 9 of the IAS Promotion  Regulations, 1955 read with rule 9 of the IAS Recruitment Rules,  1954.  In  that  behalf  no  change  was brought about.  A junior  officer who  thus    superseded  a senior State Civil Officer became entitled to carry his year of allotment and became senior to him in the cadre of l.A.S. But for  the proviso,  the operation  of Rule  3(3)(ii), the senior officer  would have  been saddled with the disability to be  pushed down  in seniority  which would have nullified and  frustrated   the  hard  earned  earlier  promotion  and consequential effect  on seniority  earned 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 made  in exercise  of the power under  sec. 3(1) of the Act regulating recruitment and the conditions  of service  for persons  appointed to an All India Service are statutory in character.      No  statute   shall  be   construed  so   as  to   have retrospective operation  unless  its  language  is  such  as plainly to  require such  construction. The  Legislature, as its policy,  give effect  to the  statute or  statutory rule from a specified time or from the date of its publication in the State  Gazette. It  is equally  settled law  that  court would issue  no mandamus to the legislature to make law much less  retrospectively.   It  is   the  settled   cannons  of construction that  every word,  phrase or  sentence  in  the statute and  all the provisions read together shall be given full force  and effect  and no  provision shall  be rendered surplusage or  nugatory. I  is equally  settled law that the mere fact  that the  result of  a statue may be unjust, does not entitle  the court  to refuse  to  give  effect  to  it. However, if two reasonable interpretations are possible, the court  would   adopt  that   construction  which   is  just, reasonable or  sensible. Courts  cannot substitute the words or phrases  or supply  casus omissus.  The court could in an appropriate case iron out the creases to remove ambiguity to give full force and effect to the legislative intention. But the  intention   must  be   gathered  by   putting  up  fair construction of  all the  provisions reading  together. This endeavour would  be to  avoid absurdity or unintended unjust results by applying the doctrine of purposive construction.      In  Smt.   Hire  Devi   &  Ors.   v.  District   Board, Shahjahanpur, [1952]  SCR 1131,  the constitution  bench  of this court  interpreting sections  70 and  90  of  the  U.P.

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District Board  Act, in  particular, the expression. "orders of any  authority whose  sanction is necessary", held that " No doubt  it is  the duty  of the  court to try to harmonise various provisions  of an Act passed by the Legislature. But it is  certainly not  the duty  of the  court to stretch the words used  by the  Legislature to fill in gaps or omissions in the  provisions of an Act". In Nalinakhaya Bysck v. Shyam Suder haldar  7 Ors.[1953]  SCR 533  at 545, this court held that it  is not  competent to  any court to proceed upon the assumption that  the Legislature  has made  a  mistake.  The court must  proceed on  the  footing  that  the  Legislature intended what  it has  said. Even if there 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 plain, clear and explicit, it must be given effect and the question of interpretation  does not  arise. If  found  ambiguous  or unintended, the  court can at best iron out the creases. Any wrong order  or  defective  legislation  cannot  be  righted merely because  it is wrong. At best the court can quash it, if it  violates the  fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross  miscarriage of justice. It could thus be held that the legislature  intended that  the  First  Amendment  Rules would operate  prospectively from February 3, 1989, the date of their  publication in the Gazette of India. Its policy is explicit and  unambiguous. Rule 3(3) (ii) intended to remedy the imbalances  while at  the same time the proviso intended to operate  prospectively to avert injustice to the officers recruited/promoted earlier  than the  officer promoted later to that date.      Whether the  proviso is  violative of  Art. 14 and Art. 16(1) of  the Constitution  of India?  Undoubtedly  all  the promotees form  the state  civil service  constitute a class preceding or  succeeding or  succeeding the  First Amendment Rules. The  purpose of  temporary truce  carved out  by  the proviso is  self-evident. By  dint  of  merit,  ability  and suitability a  junior officer  could seal  a march  over the senior officers  in the  state civil  service and  get entry into the  Indian  Administrative  services  earlier  to  the senior officers  and thus  becomes a  member of  the  Indian Administrative services  officer,  who  was  superseded  and subsequently became  qualified for  inclusion in  the select list, after  the New  seniority Rules or the First Amendment Rules came  into force,  indisputably  would  be  junior  in I.A.S. cadre to his erstwhile junior officers in state civil services. If  he gets  benefit of the free play of the First

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Amendment Rules,  it would  have the  inevitable  effect  of depriving and he would be pushed down and would again become junior to him in senior officer, though had varied length of services,  but   because  of   late  promotion   to   Indian Administrative   service,    would   receive    and   forego proportionate weightage  of past  service for a short period till the rules fully become operational. The first Amendment Rules doubtless  provided the  weightage to  a maximum  of 9 years and would track back the year of allotment anterior to the  date   of  inclusion  in  the  select  list  under  the Recruitment  Rules  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 cut  down and  applied in  varied degree to  officers promoted  during the transitional period to prevent  unjust results  and to  mete out  justice to the junior officers or officers promoted earlier and upto 1992.      It is equally settled law that in an affirmative action the court  strike down  a rule  which offends  the right  to equality enshrined in Arts. 14 and 16(1) of the Constitution like the  one arose in D.S. Nakara v. Union of India, [1983] 2 SCR  165 and  B. Prabhakar  Rao v.  state of A.P., [1985]2 suppl, SCR 379, this court extended parity in an affirmative action by  reading the  rule down  without doing violence to the language  or injustice to others. The application of the First Amendment Rule has the inevitable and insiduous effect of doing  injustice to  the direct recruit/promotee officers or officers  promoted earlier  to    Feb.  3  1989  and  the proviso avoided  such injustice  to the date of promotion to I.A.S the rule to all the senior irrespective of the date of promotion  to   I.A.S.  cadre  would  land  in  or  lead  to inequitous  or   unjust  results  which  itself  is  unfair, arbitrary and  unjust  results    which  itself  is  unfair, arbitrary and unjust, offending Art. 14 of the Constitution. To avoid  such unconstitutional  consequences the proviso to rule 3(3)   (ii)  of the First Amendment Rules was made. The doctrine or  kicking down  or picking up, put forth in Union of India  v. P.K. Roy, [1968] 2 SCR 1986 at 201-202, equally cannot be  extended to  the facts of the case.  But for  the proviso  the   operation  of   rule  3(3)   (ii)  would   be inconsistent with sec. 3(1A) of the Act.  Equally though the doctrine of  reading down is a settled principle of law, its application to the facts of the case would lead to injustice to the  officers promoted  earlier to the appellants. A writ of mandamus  commanding the respondents to give full benefit of weightage  of  rule  3(3)  (ii)  and  (b)  of  the  First

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Amendment Rules  would amount  to direct  the  executive  to disobey the  proviso which is now held to be  intra vires of the Constitution.   In  the light of the above discussion no directions could  be given to the central Govt. to  amend to Rules. Therefore,  we have no hesitation to hold that though Govt. of India has power to amend the New Seniority Rules by First Amendment  Rules  prospectively  giving  weightage  of total 9  years services  to promotee officers of state Civil services in  assigning a  year of allotment, 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 Vidyanathan that this rule may be so read as applicable only to the  promotee  officers  vis-a-vis  the  senior  promotee officers cannot be accepted.  The Lucknow Bench of the C.A.T glossed over  it by adopting strange construction that since the offending  proviso  to  rule  3(3)  (ii)  of  the  First Amendment Rules  would apply to promotee officers inter se , sub-section (1)  (a) of section 3 of the Act would not apply to the  direct   recruits, to  say the  least, is  disparate construction. There  is  a  distinction  between  right  and interest. No  one has  vested       right  to  promotion  or seniority, but an officer has an interest to seniority , But an officer  has an interest to seniority acquired by working out the  rule. Of  course, it  could be  taken away  only by operation of  valid law.  Sub-section (1A)  of sec. 3 of the Act enjoins the authorities not to give retrospective effect to such  a rule  or regulation  so as  to avoid "Prejudicial affect to  the interest" of any person to whom such rule may be applicable.  The operation  of law may have the effect of postponing  the   future  consideration  of  the  claims  or legitimate expectation  of interest  for promotion.  Take  a case as  an illustration.  Articles 14 16(1), 16(4) ,335 and 46 read  with proviso  to Art.  309  of  the    Constitution empowers the  President or  the Governor  to  make  satutory rules of  reservation,  where  there  is  no        adequate representation to  persons belonging to scheduled castes and scheduled   Tribes in  a service or posts in connection with the affairs of the Central Govt. or the state Government. By operation of  rule of reservation appointments or promotions given to  a Scheduled  Caste  or  Scheduled  Tribe  officer,

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though prejudicially  affect the  interest  of  officers  of general category  on parity  of merit,  in the larger public interest  by  the  operation  of  the  rule  of  reservation discrimination in  favour of  scheduled castes and scheduled Tribes ins constitutionally permissible as class. Therefore, the proviso  to rule  3(3) (ii)  of the  Amendment Rules  is consistent  with   section  3(1A)   of  the  Act,  and  that therefore, it is not ultra vires of the power of the central Govt. nor it offends Arts. 14 and 16(1) of the constitution.      Counsel  for   the  appellants/petitioners   are  their contention that  there is  no vested right to  seniority and is variable  and defeasible  by operation   of  law. In A.K. Bhatnagar v. Union of India,[1991] 1 SCR 544 this court held 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  also is  liable to be varied. by  ’A’ later  confirmation  and  the  consequential defeasance  of   acquired  seniority.  An  employee  has  an interest in the accrued seniority which by operation  of law also is  liable to  be  varied.  Suppose  ’A’  to  ’D’  were appointed on  the same day by direct recruitment ’A’ and ’D’ are general  candidates and  ’B’ and ’C’ though far below in merit and yet were assigned 2nd and 3rd places as per roster and ’D’  lost seniority  though secured  at the  competitive examination due  to operation  of roster  system ’D’  became junior to  ’B’ and ’C’. BY operation of law ’D’ s legitimate interest was  thereby defeated.  suppose in  promotion posts also similar situation may emerge. ’A’ though senior most in the feeder  cadre,  due  to  pendency  of  charges,  he  was superseded by ’B’ to ’D’ and thereby they gained early entry into promoted  posts and thereby was promoted. Though ’B’ to ’D’ became  initially seniors  to ’A’  he was  rested to his seniority in  ’D’ became  initially seniors  to ’A’  he  was restored to  his seniority  in promotion   posts as well and ’B’ to  ’D’ interest was defeated. Suppose the promotion was on the  basis of  merit and ability ’D’ was found to be more meritorious and  was promoted  earlier to  ‘A’ to  ‘C’,  ‘D’ thereby would  become senior  to ‘A’  to ‘C’  though he  was junior most  in the  feeder service.  The right to seniority and interest  thereby  were  varied  by  operation  of  law. Suppose ‘B’  and ‘C’ also have the benefit of reservation in promotion as  well and by its application they were promoted earlier to  ‘A’ though  the latter was more meritorious. ‘A’ was later  on promoted.  He cannot  claim his seniority over ‘B’ and ‘C’ who scaled a march over ‘A’ and became senior to ‘A’ in  promoted cadre  or service.  The  seniority  of  ‘A’ thereby was  varied. However,  law itself  may  protect  the

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legitimate interest  in seniority  while granting  relief to persons similarly  circumstanced like  the  one  under  sec. 3(1A) of  the Act read with proviso to Rule 3(3)(ii) & (iii) of the  First Amendment Rules. It was neither void nor ultra vires offending Arts. 14 and 16(1) of the Constitution.      Admittedly, the  draft of the First Amendment Rules, as circulated to  the State  Government  did  not  contain  the offending proviso.  It is  stated in  the counter  affidavit filed on  behalf of the Central Govt. that some of the State Government had  suggested to  incorporate  the  proviso  and after necessary  consultation 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 more minds in respect of a topics in order to  enable   them  to   evolve  a  correct  or  at  least  a satisfactory solution.  In order  that the  two minds may be able to  confer and  produce a mutual impact it is essential that each must have for its consideration full and identical facts which  can  at  one  contitute  both  the  source  and foundation of  the final decision. In that case the question related to  the transfer of a High Court from one High Court to another.  In that  context this  court considered whether sounding of  the Chief  Justice of  India without meaningful consultation would be proper discharge of the constitutional obligation by  the President.  In that context the principle of law  laid was that the respective view point of the Govt. and the  Chief Justice  must be known to each other and both were to  the discuss  and examine the merits of the proposed transfer.  The   meaning  of  the  word  "consultation"  was evaluated in  that backdrop.  This Court approved the dictum laid by  K. Subba  Rao. J.,  as he then was, in R.Pushpam v. State of Madras, AIR 1953 Madras 392.      In State of U.P. v. Manmohan Lal Srivastava, [1958] SCR 533 at  542, the  word "consultation"  in Art.  320  of  the Constitution of  India  was  considered  by  a  Constitution Bench. It  was held  that the  word "consultation"  did  not envisage  mandatory  character  for  consultation,  but  the Constitution makers allowed the discretion to the appointing authority to  consult the Public Service Commission. But the executive Govt.  cannot completely  ignore the  existence of the Public Service Commission or to pick up and choose cases in which  it may  or may  not be  consulted. However,  prior

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consultation was  held to  be not mandatory for removal of a Govt. servant as the Central Govt. has not been tied down by the advice  of the  U.P.S.C. This  court did  not extend the rule of  consultation to making the advice of the Commission on those  matter binding  on the  Govt. In  the absence of a binding character,  this Court  held that  non-compliance of Art. 320(3)(c)  would not  have the effect of nullifying the final order  passed by  the Govt.  of removal  of the  Govt. servant from  service. In  U.R. Bhatt v. Union of India, AIR 1962  SC   1344,  this   Court  held  that  the  absence  of consultation  of   the  Public  Service  Commission  or  any irregularity in  consultation under Art. 320 does not effect the ultimate  decision taken by the authority under Art. 311 of the  Constitution. 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  the one  party makes a proposal to the other who has a counter proposal in his mind which is  not communicated  to the proposer the direction to give effect  to the  counter proposal without anything more, cannot be  said to  have been  issued after consultation. In that case  it was  held that the absence of any consultation with the  High Court  rendered the  order to  removal  dated October 17, 1968 passed by the State Govt. illegal.      In Narain  Sankaran Mooss  v. State  of Kerala  & Anr., [1974] 2  SCR 60,  the facts  were  that  the  State  Govt., exercising the  power under  Sec. 4  (1) of  the Electricity Supply Act,  cancelled the  licence of the appellant without consulting the  Electricity Board.  The question was whether cancellation would  be  ultra  vires  of  the  power.  While examining  that  question,  this  court  considered  whether consultation was  mandatory or  directory, and held that the revocation of  the licence  trenches into the right to carry on  business   guarantee  under   Art.   19(1)(g)   of   the Constitution.  Therefore,  when  the  Act  prescribed  prior consultation of  the Electricity  Board such  condition  was incorporated to  prevent abuse  to power  and to ensure just exercise of  the power.  Section 4 of the Electricity Supply Act enjoins, in public interest, to consult the Board before revocation  of   the  licence.   Consultation  provided   an additional safeguard  to the  license and  when revoking the licence the  Govt. act  in two  stages. Before and after the explanation was  received and  when the Govt. considered the explanation, it  is mandatory  that it  should  consult  the Electricity Board and non-consultation rendered the order as void. Consultant  of the  Board, was therefore, held to be a condition precedent for making order of revocation.

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    In Naraindas  Indurkhya v. State of M.P. & Ors., [1974] 3  SCR  628,  M.P.  Madhyamik  Siksha  Adhiniyam  Act,  1973 provided that before prescribing the text-books the Chairman of the  Board  was  to  be  consulted.  Its  infraction  was considered and held that any attempted exercise of the power by the  State Govt.  without complying  with this  condition would be  null and  void. On  the facts  of the case, it was held that the notification issued by the State Govt. without consultation of  Chairman was  invalid being  in  breach  of mandatory requirement  of the  proviso to  Sec.4 (1)  of the Act.      In Hindustan Zinc Ltd. v. A.P Electricity Board & Ors., [1991] 3 SCC 299 the revision 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(1)  of the Towns Act, 1946 envisages the Minister of Town & Country Planning after consultation with  the local  authorities, if satisfied that it is  expedient in  the national  interest that any area of land should   be  developed as a new town by the Corporation established under  the Act, he may make an order designating that area  as a  site of  the proposal  of the  new town. On October 7,  1946 press  notice was issued giving the date of meeting of  the representatives of the local authorities and the Minister  explained in  the meeting  what he  had in his mind in  arriving at  the boundaries of the area. Objections were  raised   and  public  enquiry  was  held.  But  actual explanation was  not sought  from any  local authorities. In those circumstance  contention was  raised that there was no consultation as  adumbrated under  Sec. 1(1).  Repelling the contention, the  House of Lords held that in the meeting the local authorities  clearly  were  informed  of  the  general nature of  the proposal,  the areas  suggested,  it size and what the  Minister wished and intended to do. Discussion was followed. Minutes  were prepared and press notice was issued stating what had happened. In those circumstance it was held that there was consultation and the requirement was complied with. The  ratio of Morris, J. in Elecher & Ors. v. Minister of Town  & Country Planning, [1947] 2 All. Eng. Reports 496, was approved.  The same  view was  reiterated in  Sinfield & Ors. v.  London Transport Executive Law Report 1970 Chancery Divn.      In Derham  & Anr.  v. Church  Commissioners of England, 1954  Appeal  Cases  245,  the  Judicial  Committee  was  to consider  the   question   of   consultation   with   Church Commissioners of  effecting the  union of  beneficers  under Sec. 3(1) of the Pastoral Reorganisation Measure, 1949 which

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postulates of  "consultation  so  far  as  is  practicable". Construing the  language it was held that a meeting was held explaining the  proposed scheme,  the members  of the Church though opposed  the scheme,  it was approved. As such it was held  that  the  action  was  valid  and  their  was  proper consultation.      In  Port  Louis  Corporation  v.  Attorney  General  of Mauritius, 1965  Appeal  Cases  1111,  the  local  Govt.  of Mauritius  was   empowered  under   the   Local   Government Ordinance, 1962 by sec. 73 (1) to alter the boundries of any town, district or village, after consultation with the local authorities concerned. The Governor and Council of 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  supply  information  by  detailed answers to their questions would not render the proclamation as invalid. Accordingly uphold the action as affirmed by the Supreme Court of Mauritius.      The ratio  in Union  of India  & Ors. v. Dr. S. Krishna Murthy &  Ors., [1989]  4 SCC 689, renders little assistance to the appellants. In that case the question was the year of allotment under the Forest Service (Regulation of Seniority) Rules, 1968.  By fixation  of the  year of  allotment it had retrospective effect  from the  dated when  the promotee was brought  into   select  list  or  the  date  of  appointment whichever was  later. Under  those circumstance  it was held that  retrospective   operation  of   the  rules   did   not prejudicely  affect   any  vested   right  much   less   any fundamental rights  of the officers recruited from the State service.      The  result  of  the  above  discussion  leads  to  the following conclusions:      (1) Consultation is a process which requires meeting of minds between the parties involved to evolve a correct or at least satisfactory solution. There should be meeting of mind between the  proposer and the persons to be consulted on the subject of  consultation. There must be definite facts which constitute foundation  and source  for final  decision.  The object  of   the  consultation  is  to  render  consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory.      (2)  When  the  offending  action  effects  fundamental rights  or  to  effectuate  built  in  insulation,  as  fair procedure, consultation  is mandatory  and  non-consultation renders the action ultra vires or invalid or void.      (3) When  the opinion  or advice  binds  the  proposer, consultation is  mandatory and  its infraction  renders  the

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action or order illegal.      (4) When  the opinion  or advice  or view does not bind the person  or  authority,  any  action  or  decision  taken contrary to the advice is not illegal, nor becomes void.      (5) When  the object  of the  consultation is  only  to apprise of  the proposed  action and  when  the  opinion  or advice is  not binding  on the  authorities or person and is not bound  to be  accepted, the  prior consultation  is only directory. The  authority proposing  to take  action  should make known  the general  scheme or  outlines of  the actions proposed to  be taken,  be put to notice of the authority or the persons  to be  consulted; have the views or objections, taken them into consideration, 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 communicated  to all  the concerned State Governments nor have prior  fresh consultation  Rules or  Regulations  being legislative in character, would tacitly receive the approval of the  State Government through the people’s representative when laid  on the floor of each House of Parliament. The Act or the  Rule made at the final shape is not rendered void or ultra vires or invalid for non-consultation.      The proposal  for amending  the new  Seniority Rules in the draft  was only  for inviting discussion and suggestions on the scope and ambit of the proposed law and the effect of the operation  of the  First Amendment  Rules.  Keeping  the operational effect  in view  the proposed amendment could be modified or  deleted or  altered. The  Central Govt.  is not bound to  accept all  or every proposal or counter proposal. Consultation with  the Ministry  of Law would be sufficient. Thereby the  Central Govt.  is not  precluded to  revise the draft rules in the light of the consultation and advice. The Central  Govt.   had  prior   consultation  with  the  State Governments concerned and the Law Department.      In the  light of  the above principle and applying them to the facts of this case we have no hesitation to hold that the general  consultation has  by the Central Govt. with the State Govts. and Union Territories was sufficient and it was not necessary  to have prior consultation again to bring the proviso on  statutes as  part of  the First Amendment Rules. The contention  of Sri  Vaidyanathan  that  the  proviso  is rendered void  for the  absence of consultation of the State Govts. is devoid of any force.      By operation  of sub-sec.  (2) of Sec. 3 the rules laid on the  floor of each House of the Parliament. There were no suggestions  or   alterations  made   by  either   House  of

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Parliament. Under  the circumstance we have no hesitation to hold that  the failure  to consult all the State Governments or Union  Territories on  the proviso  to rule  3(3)(ii)  or (iii) of  the First  Amendment Rules  does  not  render  the proviso ultra vires, invalid or void. Accordingly, we do not find any  merit to  issue the writ as prayed for in the writ petition. The  Writ Petition and Civil Appeal arising out of S.L.P. (C)  No. 12469/90  are dismissed.  The appeal arising out of  S.L.P. (C)  No. 13823/91 is allowed and the order of the Central  Administrative  Tribunal,  Allahabad  Bench  at Lucknow is  set side.  But in  the circumstance  parties are directed to bear their own costs throughout. VPR.                      WP (C) No. 499/91-dismissed.                            C.A. No. 4794/92-dismissed.                            C.A. No. 4788/92-allowed.