# INDIAN ADMINISTRATIVE SERVICE (S.C.S.) ASSOCIATION, U.P. AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [1992] Supp. 2 S.C.R. 389
- **Court:** Supreme Court of India
- **Decided:** 1992-11-11
- **Bench:** A.M: Ahmadi, M.M. Punchhi, K. Ramaswamy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-administrative-service-s-c-s-association-u-p-and-ors-v-union-of-india-11839
- **Pages:** 29

## Headnote

Indian Administrative Service (Regulation of Senion'ty)(First Amendment) Rules, I989:
Rule 3(3)(ii) Seniority of promotees/direct recntits assigning year of
allotn1e11t--Procedure-Legis/ative intention tt-·hat is-Junior officer prontoted
on nierit superseding seniors-Year of allotment of such officer-Fixation of
Interpretation of Stahttes:
A
B
c
l.A.S. (Regulation of Seniority) (First Amendment) Rules, I981}-Ru/e D
3(3) (ii) proviscr--<:onstntction-Whether prospective in operation-Legislative
inte11tion-Wltat is.
Constitution of India, 1950:
Articles I4, 16 and Rule 3(3)(ii), proviso of I.A.S. (Regulation of E
Senian·ty) (First An1end1nent) Rules, 1989-Constitutional validity ofWliether inconsistent with Section 3( IA) of the All India Services Act, I957.
All India Services Act, I95I:
Section 3( lA)--Rules made under-Rule 3(3)(ii) proviso of the First
F
An1endn1ent Rules, 1989-<:onsultation--Object, in1portance and nature
of-Fail11rc to consult all States and Union Tcnitories-Whether proviso to
Rule 3 ( 3 J unco11stifltrional.
On 19.1.1984, the Association [petitioner No. l in W.P. (0 No. 499
of 1991] requested the Union Government (Respondent) to remove the G
disparity prevailing in different states of promotional avenues from State
Civil Services to A.II India A.dministrative Sen·ice.
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. H
389
A
B
390
SUPREME COURT REPORTS
[1993] 2 S.C.R.
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 weigbtage over and
above rour years the assignment or year or allotment as per the existing
rules, namely, four years for the first U years State service with additional
weigbtage one year for every two to three years completed service subject
to a maximum or live years.
union Government amended and published the New Seniority
C Rules, 1987, arter considering the suggestions from. the State Governments. The First Amendment Rules was published in the Gazette or India
on 3.2.1989 which was given prospective operation from 3.2.1989.
The appellants in C.A. No. 4794 of 1992 questioned Rule 3(3) (ii)
proviso orthe First Amendment Rules, in an application before the C.A.T.
D at Patna. They contended that though they were found to be entitled to the
total weigbtage or 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 weigbtage.
E .
The Tribunal upheld the Rules and dismissed the application,
F
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 lo direct
G 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 ht an appeal - C.A. No. 4788 of 1992.
In WP(C)No. of 499 of 1991, Petitioner No. 1 - An Association
H representing the officers of the U.P. State Civil Service - and petitioners
I.AS. ASSCN. v. U.O.l.
391
2-17, its members filed the writ petition under Article 32 of the ConstituA
lion to quash the order of the respondent - Union Government dated
12.12.1990, and

## Text

_Characters 0–39,830 of 71,275. This is a partial read: ask again with offset=39830 for what follows._

INDIAN ADMINISTRATIVE SERVICE (S.C.S.)
ASSOCIATION, U.P. AND ORS.
v.
UNION OF INDIA AND ORS.
NOVEMBER 11, 1992
[A.M: AHMADI, M.M. PUNCHHI AND K. RAMASWAMY, JJ.]
Indian Administrative Service (Regulation of Senion'ty)(First Amendment) Rules, I989:
Rule 3(3)(ii) Seniority of promotees/direct recntits assigning year of
allotn1e11t--Procedure-Legis/ative intention tt-·hat is-Junior officer prontoted
on nierit superseding seniors-Year of allotment of such officer-Fixation of
Interpretation of Stahttes:
A
B
c
l.A.S. (Regulation of Seniority) (First Amendment) Rules, I981}-Ru/e D
3(3) (ii) proviscr--<:onstntction-Whether prospective in operation-Legislative
inte11tion-Wltat is.
Constitution of India, 1950:
Articles I4, 16 and Rule 3(3)(ii), proviso of I.A.S. (Regulation of E
Senian·ty) (First An1end1nent) Rules, 1989-Constitutional validity ofWliether inconsistent with Section 3( IA) of the All India Services Act, I957.
All India Services Act, I95I:
Section 3( lA)--Rules made under-Rule 3(3)(ii) proviso of the First
F
An1endn1ent Rules, 1989-<:onsultation--Object, in1portance and nature
of-Fail11rc to consult all States and Union Tcnitories-Whether proviso to
Rule 3 ( 3 J unco11stifltrional.
On 19.1.1984, the Association [petitioner No. l in W.P. (0 No. 499
of 1991] requested the Union Government (Respondent) to remove the G
disparity prevailing in different states of promotional avenues from State
Civil Services to A.II India A.dministrative Sen·ice.
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. H
389
A
B
390
SUPREME COURT REPORTS
[1993] 2 S.C.R.
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 weigbtage over and
above rour years the assignment or year or allotment as per the existing
rules, namely, four years for the first U years State service with additional
weigbtage one year for every two to three years completed service subject
to a maximum or live years.
union Government amended and published the New Seniority
C Rules, 1987, arter considering the suggestions from. the State Governments. The First Amendment Rules was published in the Gazette or India
on 3.2.1989 which was given prospective operation from 3.2.1989.
The appellants in C.A. No. 4794 of 1992 questioned Rule 3(3) (ii)
proviso orthe First Amendment Rules, in an application before the C.A.T.
D at Patna. They contended that though they were found to be entitled to the
total weigbtage or 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 weigbtage.
E .
The Tribunal upheld the Rules and dismissed the application,
F
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 lo direct
G 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 ht an appeal - C.A. No. 4788 of 1992.
In WP(C)No. of 499 of 1991, Petitioner No. 1 - An Association
H representing the officers of the U.P. State Civil Service - and petitioners
I.AS. ASSCN. v. U.O.l.
391
2-17, its members filed the writ petition under Article 32 of the ConstituA
lion 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.
B
As these cases raised common questions of law, they were beard
together.
Dismissing WP(C)No. 499/1991 and C.A. No. 4794 of 1992, and C
allowing C.A. No. 4788 of 1992, this Conrt,
HELD: 1.01. The entry into the service is from different streams and
predominantly by direct recruitment and promotion. The direct recruit
gets bis year of allotment from the succeeding year of his recruitment. The
direct recruit officers appointed earlier to 1988 also would be adversely D
affected in their seniority. (403-D)
1.02. Rule 3(3) 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]
E
F
1.03. In determining the seniority of a pron1otee officer in assigning
year of allotment, the senice rendered in the State Civil Service upto J.2
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]
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 officers senior to him in
that select list or appointed on the basis of an earlier select list. [402-F)
H
A
B
c
392
SUPREME COURT REPORTS (199,2) SUPP. 2 S.C.R.
LOS. The proviso aims that the State Civil Service senior officer,
though had varied length of services, but because oflate 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 intended not to let endless chain reaction occur to unsettle the settled interests
D 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]
E
F
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. There~y the proviso averted the effect of pushing an officer
who gained entry into IAS service by application of rule ofweightage 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 a junior officer could
steal a march over the senior omcers in the State Civil Service and get
G 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 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.AS. cadrr. to his
H erstwhile junior officers in State Civil Service. If he gets the benefit of the
I.AS. ASSCN. v. U.0.1.
393
free play of the First Amendment Rules, it would have the inevitable effect A
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 B
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. [ 403-E)
C
2.01. No statute shall be construed so as to have retrospective
operation unless its language is such as plainly to require such a construe·
tion. 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. (404-A)
D
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,
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
E
not entitle the court to refuse to give effect to it. However, if two reasonable
F
interpretations are possible, the Court would adopt that construction
which is just, reasor.able 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 G
up fair construction of all thP. provisions reading together. This endeavour
would be to avoid absurdity or unintended unjust results by applying the
doctrine or purposive construction. (404-C-D]
2.05. Where the intention of :ttatutory amendment is clear and
expressive, words cannot be interpolated. In the first place they are not, in H
394
SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
A 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. [405-B]
B
c
D
E
F
G
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 Fe'>ruary 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 olficers
that became members of l.A.S. earlier to those dates. [405-E]
Smt. Hire De;·i & Ors. v. District Board, Shahjahanpur, [1952] SCR
1131; Na!inakhaya Bysck v. Shyam Sunder Haldar & Ors., (1953] SCR 533
at 545 and Commissioner of Sales Tax, U.P. v. Auriya Chamber of Commerce, Allahabad, (1986] 2 SCR 430 at 438, referred to.
3,01. The application of the First Amendment Rules has the in·
evitable and insiduous effect of doing injustice to the direct
recruit/promotee officers or ollicers 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 l.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
H
Rule 3(3)(ii) of the First Atnendment Rules was made. (407-C]
-
I.AS. ASSCN. v. U.0.1.
395
3.02. But for the proviso the operation of Rule 3(3)(ii) would he A
inconsistent with Sec. 3(1A) of the Act. Equally though the doctrine 'Read·
ing 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 respon\ients 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
B
of the Central Govt. nor it offends Arts. 14 and 16(1) of the Constitution. C
(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]
D
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 ¥ts. 14 E
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, (1968) 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.
F
4.01. Consnltation is a process which requires meeting of minds
between the parties involved in the process of consultation on the material G
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 mean· H
396
SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
A
ingful to serve the intended purpose. Prior consultation in that behalf is
mandatory. (415-E]
B
c
4.03. When the offending action effects fundamental rights or to
effectuate built in insulation, as fair procedure, consultation is is mandatory and non-consultation renders the action ultra vires or invalid or
void. (415-F]
4.04. When the opinion or advice binds the proposer, consultation is
mandatory and its infraction renders the action or order illegal. [ 415-F)
4.05. 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. (415-G]
4.06. When the object of the consultation is only to apprise of the
proposed action and llhen the opinion or advice is not binding on the
D 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 thereE
after, the authority or person would be entitled or has/have authority to
pass appropriate orders or take decision thereon. In such circumstances
ii 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
F
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 circumstances 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
G 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
H the proposed one in draft bill or rules. The revised draft bill or rules,
-
-·
l.A.S. ASSCN. v. U.O.l.
397
amendments or additions in the altered or modified from need not again A
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 Door of each House of Parlia~
ment. The Act or the Rule made at the final shape is not rendered void or B
ultra vires or invalid for non-consultation. [416-D-FJ
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 lfnion Territories was sufficient and it was not necessary
to have prior consultation agairl 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 Amend·
men! 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 proviso ultra vires, invalid or void. (417-D]
Union of India v. Sanka/chand Himatla/ Sheth & Anr., (1977] 4 SCC
c
D
E
F
193; R.Pushpam v. State of Madras, AIR 1953 Madras 392; State of U.P. v. G
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] l SCR 472; N. Raghavendra Rao v. Dy. Commissioner, South Kanara,
Mangalore, (1964] 7 SCR549;Mohd. SujatA/i& Ors. v. Union of India, (1975]
l SCR 449 at 469 · 471; Chandramou/eshwaf Prasad v. Patna High Court &
Ors., (1970] 2 SCR 666 at 674-675; Narain Sankaran Mooss v.State of Kera/a H
398
SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
A &Anr., [1974] 2 SCR 60;Naraindas lndurkhya v.Stateof M.P. & Ors., (1974]
3 SCR628; Hindustan Zinc Ltd. v.A. P. Electricity Board& Ors., [1991) 3 SCC
299; Rollo & Anr. v. Minister of Town & Country Planning, [1948) l 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
B
c
D
Reports 1970 Chancery Divn., Derham & Anr. v. Church Commissioners for
England, 1954 Appeal Cases 245 and Port Louis Corporation v. Attomey
General of Mauritius, 1965 Appeal Cases llll, referred to.
Union of India & Ors. v. Dr. S. Krishna Murthy & Ors., [1989) 4 SCC
689, distinguished.
ORIGINAL JURISDICTION : Writ Petition (C) No. 499 of 1991.
(Under Article 32 of the Constitution of India).
WITH
'..:ivil Appeal Nos. 4788 & 4794 of 1992.
C.S. Vaidyanathan, K. Lahiri, P.P.Rao, Vishwajeet Singh, R.B. Misra,
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.
E
The Judgment of the Court was delivered by
F
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
G 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
H after putting 24 to 27 years of service. The Estimate Committee of Seventh
-
l.A.S. ASSCN. v. U.0.1. [RAMASWAMY, J.]
399
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 l.A.S.
(Regulation of Seniority) Rules, 1987 which came with effect from Nov. 6,
1987 for short 'New Seniority Rules'. The first respondent issued Circular
letter dated September 9, 1986 to the State Govts. indicating amendments
B
for fixation of seniority of officers promoted from State Civil Services' lo
I.A.S. to give woightage 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
c
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 D
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 Triounal,
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 0.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.
E
F
The Tribunal at Lucknow held that the prospective operation disG
criminated 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 H
•
400
SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
A Pradesh through their Association filed the Writ Petition under Art 32 of
t
the 'constitution seeking writ of certiorari to quash the order dated Decem-
~
ber 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
B January 1988 and to the petitioners Nos. 2 to 17 in particular. ll 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
c of 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 !AS Recruitment Rules read with regulation 9 of !AS 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
D (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
E
year of allotment of an officer in service at the commencement of the
amended Seniority Rules shall be the same as per the rule 3(2) as has been
assigned to him by the Central Govt in accordance with the orders and
instructions in force immediately before the commencement of the New
Seniority Rules, Sub-rule (3) of Rule 3 provides thus:
F
"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
G
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 !AS
(Probation) Rules, 1954, with direct recruit officers of a
H
subsequent year of allotment, then he shall be assigned
I.AS. ASSCN. v. U.0.l. [RAMASWAMY, J.]
that subsequent year as the year of allotme~t.
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 hi1n in that select list or appointed to the
service on the basis of an earlier ~elect List.
3(3) (iii) The year of allotment of an officer appointed by
selection shall be.determined in the following manner:-
401
A
B
c
D
E
(a) for the first 12 years of gazetted service, he shall be·
F
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,
G
referred to in sub-clause (a), subject to a maximum
we~ghtage 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
H
A
B
c
402
SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
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 subrule (1) of rule 8 of the Recruitment Rules, whose length
of class I continuous service in the State Civil Service is
equal to or more than the length of Class 1 ·continuous
service of the former in connection with the affairs of the
State.
11
A plain and fair reading of the sub-rules manifests the Central Govt's
D 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
!hat subsequent year as the year of allotment. In determining the seniority
E
F
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,
G 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 lo the service. ll is, therefore, clear that the New Seniority Rules
H
were to be operative from November 6, 1987 and the First Amendment
I.AS. ASSCN. v.• U.0.1. [RAMASWAMY, J.]
403
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 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
B
c
of allotment and became senior to him in the cadre of I.AS. 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 conD
'
sequential 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 reci uit gets his year of
allotment from the succeeding year of his recruit:inent. The direct recruit
officers appointed earlier to 1988 also would be adversely effected in their
E
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 Ia;d, as soon as may be, after such rule or regulation F
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 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 G
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.
H
A
B
c
404
SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.
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. It is
equally settled law that court would issue no mandamus to the legislature
to make law much less restrospectively. 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. It is equally settled law
that 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
D 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.
E
F
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. 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 & 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
G 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
H
and innovate tO ensure justice without doing violence to the norm as set by
I.A.S. ASSCN. v. U.O.L [RAMASWAMY, J.]
405
legislation. But to invoke judicial activism to set at naught legislative A
judgment is subversive of the· constitutional harmony and comity of instrumentalities.
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. Wbere 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. 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
B
c
can quash it, if it violates the fundamental rights or is ultra vires of the D
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 publicatipn in the Gazette of India. Its policy is
explicit and unambiguous. Rule 3(3)(ii) intenped 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
E
off injustice to the officers that became members of I.A.S. earlier to those
dates.
Whether the proviso is violative of Art. 14 and Art. 16( 1) of the
Constitution of India? Undoubtedly all the promotees from the State Civil
Service constitute a class preceding or succeeding the First Amendment
Rules. The purpose of temporary truce carved out by the proviso is
self-evident.