(1.) This application has been filed on behalf of Assam Rajyik Uddog Karmi Sanga, through its President claiming the relief that the impugned Corrigendum forwarded on 26/2/92 (Anmexure-IV) be set aside. The Corrigendum is quoted below :- "CORRIGENDUM" Dated Dispur the 24th Oct. 91 No. FPC. 6/91/35 : In the A.S. (BOP) Rules, 1990 notified under notification No, FPC. 24/90/181 dated 6.10.90 and published in the extraordinary issue of the Assam Gazette dated 22.12.90 the following correction shall be made. In the Schedule-A to the aforesaid Rules, under the head 'Industries Department" and below the sub-head" Director of Industries" the existing entry in Col (3) against the posts grouped under the 'Subordinate Industries Service (Technical Grade-Ill (Page 227) shall be substituted by the following . 975-15-1005-20-1205-EB-20-1225-30-1435-40-1635-50-1955/- Sd/-P. Shome Officer-on-Special Duty, Finance (PRU) Department. Memo No, EPC. 6/91/35-A Sd/-Engineer, i/c Central Workshop and Manager, Industrial Estate, Guwahati
(2.) The brief facts are as follows :- Under the Director of Industries there is a service known as Subordinate Industries Service (Technical) and the Pay Scale is as follows :- liraae -i 275-4/500-875 II 240-380- 420-730 III 220-340- '' In 1979- the Pay Commission recommended that Grade-Ill be abolished and marged with Grade-II to form a unified cadre, that is available at page-212 of the 1979 report. This recommendation was accepted and in Assam Services (RO)P) Rules, 1983 in Schedule-A, the pay scale of S.I.S. (Technical) Grade-II plus Grade-Ill the Scale of pay of Rs. 420 to 730 was given. On 27.3.87 the Government amended Schedule-A to ROP Rules 1983 and the pay scale tor Subordinate Industry Services (Technical) Grade-II was Rs. 470-800/- that is Annexure-1 to the Writ Application and that is quoted below :- ANNEXURE-I THE ASSAM GAZETTE JULY 19,1987 THE 27th March, 1987 No. EPC, 0-85-16 : In exercise of the powers conferred by the proviso to Articles 309 of the Constitution of India, the Governor of Assam is pleased to order that the following further amendments shall be made in the Schedule-A to the Assam Services (Revision of Pay) Rules, 1983 published in the Extraordinary issue of the Assam Gazette dated 22nd July, 1983 under Notification No. FPC. 49/82/128 dated 27th June, 1983 namely :-
1. Under the Head "Industries Department" and below the subhead" Subordinate Industries Service (Technical) Grade-II (Page-173) the existing entries in colum (3) and (4) against the posts mentioned thereunder shall be substituted by the following : (3) Rs. 470-12- 530-EB-12-590-EB-15-680- 20-800/- (4) Only I.T.I. Certificate holders in respective trade should be appointed in future. 2. Under the head " Industries Department" and below the sub-head "Subordinate Industries Service (Technical) Grade-Ill," the following new entries shall be inserted in Column (4) against the posts mentioned thereunder (Page-175). (4) Only I.T.I. Certificate holders in [respective trade should be appointed in future. Sd/-Illegible, Officer-on-Special Duty Finance (Pay Research Unit) Department."
(3.) Meanwhile a new Pay Commission was set up and the report submitted on 8.5.90 and no modification was recommended in respect of the Industry Department. On 6.12.90 the Government by Notification made the Assam Services (ROP) Rules, 1990 which was deemed to have come into force with effect from 1.1.89 and the pay Scales of S.I.S. Grade-II plus Grade-Ill were revised to Rs. 1065 to 2095/- p.m. that is available at page No. 227 of the Report regarding subordinate Industrial Services (Technical) Grade-II and the same Scale was also given to Grade-Ill save and except moulder. Thereafter this impugned corrigendum was issued by which the pay scale was reduced to Rs. 975/-to 1935/- Hence this Writ Application.
(4.) I have heard Shri G.K. Bhattacharjee, learned Advocate for the petitioner and Shri M. Nath, learned Government Advocate, Assam. No affidavit-in-opposition was filed. No record was produced. Shri Bhattacharjee makes the following submissions :-
i) That Grade-Ill of the service was abolished and the Corrigendum can not create Grade-Ill and that can not be done inasmuch as a notification was issued incorporating the recommendation of the Pay Commission and that became a Rule under the Proviso to Article 309 of the Constitution of India and that can not be changed by issuing of a notification. ii) The corrigendum is arbitrary and not supported by any justification and it is unconstitutional and liable to be quashed. iii) Without amending the Rules the Corrigendum can not be issued.
(5.) In support of his contention Shri Bhattacharjee relies on a judgment reported in 1981 (I) S.C.C. Page-246 (Akhil Bharatiya Karntachari Sangh (Railway) Represented by its Assistant General Secretary on behalf of the Association, Petitioners-Vs - Union of India and Others, Respondents) and he specifically relies on paragraphs-20,23, 24 and 123, Paragraphs-26, 24 and 123 are quoted below :-
" 20 - In one out of a few reasonable tenable constructions of the constitutional provisions vis-a-vis the impugned executive direclives may sustain the latter, the Court should and would refrain from using the judicial guillotine. There is a committee of coordinate constitutional instrumentalities geared to shared constitutional goals which persuades the judicature to sustain rather than slay, save where the breach in brazen the transgression is plain or the effective co-existence of the fundamental right and the administrative scheme is illusory. This Court has, no (sic) former occasions, upheld executive and legislative action hovering "perilously near" but not plunging into unconstitutionality (See In re Kerala Education Bill") It is a constant guide-line which we must vigilently remember, as we have stated earlier, that our Constitution is a dynamic document with destination social revolution. It is not anaemic nor neutral but vigorously purposeful and value-laden as the very descriptive objectives of four Republic proclaim. Where ancient social injustice freezes the genial current of the soul for whole human segments our Constitution is not non-aligned, Activist equalisation, as a realistic strategy of producing human equality, is not legal anathema for Article 14 and 16. To hold otherwise is constitutional obscurantism and legal literalism, allergic to sociologically intelligent interpretation.
24. These broader observations are necessary to set our sights right, to appreciate that our Constitution lays the gravestone on the old unjust order and the cornerstone of the new human order. This constitutional consciousness is basic to interpretative wisdom. We may now start with the facts of case and spell out the particular problems demanding our consideration. Constitutional questions cannot be viewed in vacuuo but must be answered in the social milieu which gives it living meaning. After all, the world of facts enlivens the world of words. And logomachy is no law but a fatal, though fascinating, futility if alienated from the facts of life. So, before prcouncing on the legality of the impugned ten orders we must sketch the social setting in which they were issued and the socio-economic facts which cloths Article 16(4) with flesh and blood. The wisest in council, the ablest in debate and the most agreeable companion in the commerce of human life, is that man who has assimilated to his understanding the greatest number of facts 13. 123. Because Fundamental Rights are justiciable and Directive Principles; are not, it was assumed in the beginning, that Fundamental Rights held a superior position under the Constitution than the Directive Principles, and that the latter were only of secondary importance as compared with the Fundamental Rights. That way of thinking is of the past and has become obsolete. It is now universally recognised that the difference between the Fundamental Rights and Directive Principles lies in this that Fundamental Rights are primarily aimed at assuring political freedom to the citizen by protecting them against excessive State action while the Directive Principles are aimed at securing social and economic freedoms by appropriate State action. The Fundamental Rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to Courts So they are made justiciable. But it is also evident that notwithstanding their great importance the Directive Principles can not in the very nature of things be enforced in a Court of law. It is unimaginable that any Court can compel a legislature to make a law. If the Court can compel Parliament to make laws then parliamentary democracy would soon be reduced to an oligarchy of Judges. It is in that sense that the Constitution says that the Directive Principles shall not be enforceable by Courts. It does not mean that Directive Principles are less important than Fundamental Rights or that they are not binding on the various organs of the State. Article 37 of the Constitution emphatically states that directive Principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It follows that it becomes the duty of the Court to apply the Directive Principles in interpreting the Constitution and the laws. The Directive Principles should serve the Courts as a code of interpretation. Fundamental Rights should thus be interpreted in the light of the Directive Principles and the latter, should whenever and whereever possible, be read into the former. Every law attacked on the ground of infringement of a Fundamental Right, should among other considerations, be examined to find out if the law does not advance one or other of the Directive Principles or if it is not indischarge of some of the undoubted obligations of the State, constitutional or otherwise, towards its citizens or sections of its citizens, flowing out of the Preamble, the Directive Principles and other provisions of the Constitution."
(6.) Article 166 of the Constitution requires that all executive action state Government shall be expressed to be taken in the name of the governor. The Constitution however, does not require any particular formula for compliance with Article 166 (1). But the Court has to see is whether in substance of the requirement has been complied with because the provision is only directory. Thus there is substantial compliance with the Clause where a notificaation is signed by a Secretary by order of the Governor. An order signed by the Chief Secretary on behalf of the Government has been held to be substantial compliance with Article 166 even though if does not express to have been made in the name of the Governor. On the other hand there is no compliance that these Clauses where a Secretary to the Government issues a letter without mentioning the name of the Governor at all (See AIR 1961 S.C. Page-1762 (Barsay-Vs-State of Bombay). An inter-departmental communication issued thy a Secretary without mentioning that he was acting by order of the Chief Commissioner, Delhi and there is no independent evidence to show that (he Governor and infact made or concured in making of the order would vitiate the order (See 1962 (Suple) 3 S. C.R. Page-713 (Bachhittar-Vs-State of Punjab) and 1959 S.C.R. Page-1424 (Ghaomall- Vs-State of Delhi). Qlause-I of Article 166 of the Constitution does not prescribed how an executive action of the Government has to be performed. It only prescribes the mode in which such act is to be expressed. Hence failure to comply with Article 166(1) does not nullify the order, but only takes away the constitutional immunity or proof, the order would be up-held if the State can otherwise prove that the order was in fact made by the Governor. This may the proved by producing the relevant Government records or by affidavit of a responsible officer, that is, what is, lacking in the instant case. The impugned notification is bad on that count.
(7.) The next question is that whether this corrigendum could have been issued in view of the fact that the earlier rule was made in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. No-doubt Clause-IV of that notification provides as follows :-
"4. If any question arises relating to the interpretation of these rules shall be referred to the Government of Assam in the Finance Department whose decision there on shall be final."
And the Corrigendum says that this was issued as per the direction of the Finance Department. But the Clause quoted above will show that it relates to power of interpretation and it does not give any power to the Finance Department to issue a Corrigendum. The Dictionary meaning of the word 'Corrigendum' means things to be corrected. It means there must be an error and there is a necessity to amend or rectify it. In the garb of Corrigendum a rule can not be altered and/or changed, but, that is, what appears to have been done in the instant case. In order to alter or modify a rule the same procedure adopted in making of the rule have to be gone through. Modification means a change and alteration or amendment which introduces new element into the details or cancel some of them but leave the general purpose and effect of the subject matter intact. A modification is an alteration or change which may be characterised in quantitative change as either an increase or a decrease (See Black's Law Dictionary). In the instant case I find that by Annexure--IV a modification was made in the garb of Corrigendum infringing the rights of the petitioner and that can not be done in the manner sought to he done vide Annexure-IV. Accordingly I hold that this Annexure- IV is without authority of law and the same is quashed. The petitioner shall be entitled to all the benefits as given in the R.O.P. Rules which was duly accepted by the Government and in pursuance of which the earlier notification was issued. The Writ Application is accordingly allowed.
(8.) I however, leave the parties to bear their own costs.