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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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CWP No. 4621 of 2011
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Reserved on : 23.12.2015
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Date of decision 28.12.2015 _____________________________________________________ f ___ __H____________Union of India and another ……Petitioners. Vs.
o
Shankar Lal Sharma
t …..Respondent. -------------------------------------------------------------------------------------------
Coram r The Hon'ble Mr. Justice Rajiv S u harma, Judge The Hon'ble Mr. Justice Su o reshwar Thakur, Judge Whether approved for reporting?1 Yes.
For the petitioners:
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Mr. Angrez Kapoor, Advocate, vice Mr. h
Ashok Sharma, Assistant SolicitorGeneral of India. For th i e g respondent: Mr. Ravinder N. Sharma and Mr. PawanGautam, Advocates.
H Rajiv Sharma, J.: This petition is instituted against the judgment rendered bythe learned Central Administrative Tribunal, Chandigarh Bench in Original Application No. 283-HP-2009, dated 02.06.2010.
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2. Key facts necessary for the adjudication of this petition are
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that the respondent superannuated/retired from All India Radio, Shimla on 26.09.1992. He falls in the area not covered und . er Pthe Central Government Health Scheme (hereinafter referred t H o as "CGHS"for the sake of brevity). He was given fixed medical al f lowance of `100/-per month. He remained under treatment fro m o Indira Gandhi MedicalCollege and Associated Hospitals, Shimla. He was advised to undergo surgical procedure for Coronary Arter r y B t ypass Grafting (CABG). Thedoctors referred him to Prime Hea u rt and Vascular Institute, Mohali. Heremained admitted as an indoor patient from 03.06.2008 to 17.06.2008, i.e., fo C r 15 o days. He incurred an expenditure of`1,79,559/- on his treatment. He also incurred an additional sum of`20,000/- towards post operation follow up, medicines and
transpor g tationh charges. He submitted medical bills for reimbursementof me i dical expenses. However, the claim of the respondent was rejected
H on 23.12.2008 in view of letter, dated 20.08.2004. The letter, dated 23.12.2008, reads thus: "...This has a reference to your notice dated 23.9.08 and this office regd. Letter of even No. SML-10(3)/2008-dated
20.11.08, regarding reimbursement of medical claims to
Shri Shanker Lal Sharma, resident of Shanker Niwas,
Middle Sangti, Summerhill, Shimla.
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In this connection, it is intimated that the case was forwarded to competent authority in the Government of .
India i.e. Ministry of Health & Family Welfare New De P lhi. The Ministry of Health & Family Welfare has sent a . copy of their letter No. S. 14025/4/96-MS dt . 20ThAugust,2004, which is self explanatory and rele f vant tHo the case ofShri Shanker Lal Sharma. A copy of the said letter is enclosed.
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Keeping in view the i t nst ruction contained in theenclosed Ministry of Hea r lth & Family Welfare order, themedical claim of S u hri Shanker Lal Sharma cannot bereimbursed.."
3. Feeling a C ggrieveod, the respondent approached the learnedCentral Administra tive Tribunal, Chandigarh Bench by way of an Original A h pplication No. 283-HP-2009, seeking reimbursement of
`1,79 i ,55 g 9/- with interest @25% per annum. The Original Applicationwas contested by the petitioner-Union of India. The petitioner-Union of
H India filed a detailed reply to the Original Application. According to the reply filed by the petitioner-Union of India, the matter was taken upwith the Nodal Ministry, i.e., Ministry of Health & Family Welfare through their Headquarters, i.e., DG, AIR, New Delhi, so that the case
of the respondent could be considered as per rules. However, the
Ministry of Health & Family Welfare, New Delhi clarified the position
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and also made available a copy of OM, dated 20.08.2004, which
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clarified the entire issue about extension of CCS Medical Attendance Rules, 1944 to Central Government pensioners residing in non- . CGPHS areas. There is also a reference of letter, dated 25.02.2000 H in the reply. It was specifically stated that the case of the respon dent was not covered by the judgment, dated 13.03.2008, renderfed by the Hon'ble High Court of Punjab & Haryana in CWP t N o. o6559 of 2006, titled as Mohinder Singh Vs. UOI. The learned r Central Administrative Tribunal, Chandigarh Bench, relying upon t u he judgment of Hon'ble High Court of
Punjab & Haryana in CW o P No. 6559 of 2006, titled as MohinderSingh Vs. UOI., allo C wed the Original Application on 02.06.2010 andordered the Union of India to consider the claim of the respondent for reimbursemen h t of medical expenditure incurred by him for his
treatm i en g t in Prime Heart and Vascular institute, Mohali at the ratesfixed by the Central Government under the rules or the actual
H expenditure, whichever was less and the claim of the respondent for follow-up treatment was ordered to be considered under the rules bythe Union of India. Thereafter, a speaking order was passed by the Head of Office, All India Radio, Shimla on 07.12.2010 vide Annexure P-
6. Respondent also filed a Contempt Petition for the implementation of judgment, dated 02.06.2010 and thereafter the present petition was
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filed assailing the judgment, dated 02.06.2010, rendered by the
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learned Central Administrative Tribunal, Chandigarh Bench in Original Application No. 283-HP-2009, dated 02.06.2010.
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4. The sum and substance of the grounds ta H ken in thepresent petition is that O.M. dated 05.06.1998 was only a departmental communication during the process of consultation afnd was not meant
to be a final order. It was also stated in Para -1o1 of the petition that a
Special Leave to Appeal (Civil) CC 9939 r /2t004 titled as Union of India
and another Vs. Prabhakar Sri u dhar Bapat raising an identical issue
was pending before the Hon o 'ble Supreme Court, wherein also the issuerelating to the scope C and effect of OMs dated 5.6.1998 and 20.8.2004as well as the non -applicability of the CS(MA) Rules to pensioners in non-CGHS ar h eas was in question. The copies of the orders passed bythe H i on g 'ble Supreme Court have been placed on record staying theContempt proceedings in identical matters. The relevant portion of the
H grounds taken in the writ petition reads thus: "...It was only an intra departmental communication duringthe process of consultation, not meant to be a final order. During the process of examination of the proposal,
Department of Expenditure did not agree to the proposal in
view of huge financial implications. The CS(MA) Rules were
never amended so as to include pensioners residing in non-
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CGHS areas within the ambit of the said Rules. The controversy in any event was set at rest by a subsequent .
OM dated 20.8.2004 issued by the Ministry of Hea P lth, wherein, it was clarified that the earlier OM dated 5.6 . .1998 did not have the effect of extending the CS(MA) Rules to pensioners residing in non-CGHS areas. T f hu s tHhe judgmentof the Punjab and Haryana High o Court is also of noassistance in the matter and reliance placed by the Tribunal in that regard is misconceived. t Th e facts and circumstancesleading to the filing of th r e present petitioner are set outhereunder.
11. That inste o ad of u accepting the well reasoned speakingorder passed by the petitioners, the respondent with a viewto pressu C rize the petitioners filed a contempt petition beforethe Ce ntral Administrative Tribunal being C.P. NO. 55 of2 h 011, a copy whereof is annexed as Annexure P-7. The saidcontempt petition came up for hearing before the Tribunal on
ig28 th April, 2011. During the course of hearing the factum of the passing of the speaking order was orally brought to the
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notice of the Tribunal. It was also pointed out to the Tribunal that SLP © NO. ../2004 (CCNo9939)----UOI & Anr V/s Prabhakar Sridhar Bapat raising an identical issue waspending before the Supreme Court wherein also the issue relating to the scope and effect of Oms dated 5.6.1998 and
20.8.2004 as well as the non-applicability of the CS(MA)
Rules to pennsioners in non CGHS areas was in question. It
was also pointed out that in the SLP the Supreme Court had
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stayed the contempt proceedings. A copy of the said stay order passed by the Supreme Court in SLP © No. …/2004 .
(CCNo 9939)----UOI & Anr. V/s Prabhakar Sridhar Ba . pa P t isannexed as Annexure P-8......"
5. In order to mitigate the hardships faced by H the retired Government officials, the Central Government f o ramed f a Scheme calledthe Central Government Health Scheme ( t CG HS). It was started underthe Ministry of Health and Family Welfare in 1954 with the objective of providing comprehensive medical care r facilities to Central Government
employees, pensioners and o their u dependents residing in CGHS coveredcities. CGHS currently covers 25 cities.
6. The Ce nt C ral Government took a conscious decision on therecommendat h ions of the Fifth Central Pay Commission to grant fixedmedical g allowance @ `100/- per month to Central Governmentpensi i oners/family pensioners residing in areas not covered by Central H Government Health Scheme administered by the Ministry of Health & Family Welfare and corresponding Health Schemes administered by other Ministries/Departments for their retired employees for meetingexpenditure on day-to-day medical expenses that do not require hospitalization vide notification, dated 19.12.1997. The notification,
dated 19.12.1997, reads as under:
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"The undersigned is directed to state that in pursuance of Government's decision on the recommendations of the 5th
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Central Pay Commission announced in this Departme P nt's resolution No. 45/86/97-P & P.W. (A) dated H 30.9 . 1977,sanction of the President is hereby accorded to the grant offixed medical allowance @ Rs.100 f p.m. to CentralGovernment pensioners/family pensioners/residing in areas not covered by Central G ove o rnment Health Schemeadministered by the Ministry t of Health & Family Welfareand corresponding Health Schemes administered by other Ministries/Departmen u ts fo r r their retired employees formeeting expenditure on day-to-day medial expenses that do
not require hosp o italization."
7. A pragm a C tic and holistic decision was taken on 05.06.1998vide Annexur h e P-3 that the pensioners should not be deprived ofmedical g facilities from the Government in their old age when theyrequir i e them most and the Ministry had no objection to the extension of H the CS(MA) Rules to the Central Government pensioners residing in non-CGHS areas as recommended by the Pay Commission. The O.M. dated 05.06.1998 reads as under:
"The undersigned is directed to refer to the Department of Pension and Pensioners' Welfare, O.M. No. 45/74/97-PP & PW(C), dated 15.04.1997 on the above subject and to say that it has been decided by this
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Ministry that the pensioners should not be deprived of medical facilities from the Government in their old age .
when they require them most. This Ministry h P as, therefore, no objection to the extension of the C . S(MA) Rules to the Central Government pensioners residing in non-CGHS areas as recommende f d
bHy the PayCommission. However, the responsibility of administrating the CS(MA) Ru le o s for pensioners cannotbe handled by CGHS. It sh t ould be administered by therespective Ministries/D r epartments as in the case ofserving employees u covered under CS(MA) Rules, 1944.The Department of Pension and Pensioners Welfarewould need o to have the modalities worked out for theimplementation of the rules in consultation with the Min is C tries/Department prior to the measure beingintroduced to avoid any hardship to the pensioners. The h pensioners could be given a one-time option at the time g
of their retirement for medical coverage under CGHS or i
under the CS(MA) Rules, 1944. In case of a pensioneropting for CGHS facilities, he/she would have to get
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himself/herself registered in the nearest CGHS city for availing of hospitalization facilities. In such cases, the reimbursement claims would be processed by theAdditional Directors, CGHS of the concerned city. For those opting for medical facilities under the CS(MA)
Rules, the scrutiny of the claims would have to be done
by the parent office as in the case of serving employees
and they payment would also have to be made by them.
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The list of AMAs to be appointed under CS(MA) Rules would be decided Ministry/Department-wise as .
provided under the rules. The beneficiaries o . f P theCS(MA) Rules, 1944 would be entitled to avail of hospitalization facilities as provided under these rules.
The Departments of Pension a ndH Pensioners'
Welfare are requested to take f o urthe f r necessary actionin the matter accordingly."
8. The Department of Pension t an d Pensioners' Welfare by making reference to O.M. dated u 15.4. r 1997 in O.M. dated 05.06.1998has decided that the pensioners should not be deprived of medical facilities from the Governme o nt in their old age when they require them
most. Thus, the M in C istry had no objection to the extension of theCS(MA) Rules to the Central Government pensioners residing in non- CGHS areas h as recommended by the Pay Commission. However, the
respo i ns g ibility of administering the CS(MA) Rules for pensioners cannot H be handled by CGHS. It was to be administered by the respective Ministries/Departments as in the case of serving employees covered under CS(MA) Rules, 1944. The Department of Pension and PensionersWelfare was required to have the modalities worked out for the implementation of the rules in consultation with the
Ministries/Department prior to the measure being introduced to avoid
any hardship to the pensioners. The pensioners were required to be
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given one time option at the time of their retirement for medical
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coverage under CGHS or under the CS(MA) Rules, 1944. In case a pensioner opts for CGHS facilities, he/she would have t . o Pget himself/herself registered in the nearest CGHS city for H availing of hospitalization facilities. In such cases, the reimburseme nt claims were to be processed by the Additional Directors, CGHSf of the concerned city. Those opting for medical facilities und er othe CS(MA) Rules, the scrutiny of the claims was to be done b r y th t e parent office as in the caseof serving employees and the pa u yment was also to be made by them.The Department of pension o and Pensioners' Welfare was required totake further necessary C action in the matter accordingly. 9. One Sh . Prabhakar Sridhar Bapat, who retired from theservice of Po h stal Department on 01.03.1991, suffered from InferoPostered g Lateral Stemy. He was admitted in the nearest privatehospi i tal, namely, Dinanath Mangeshkar Hospital and Research Center.
H Angiography and Angioplasty was done on 28 th and 30 th September,
2002. He was discharged from the hospital on 02.10.2002. Hesubmitted anapplication for reimbursement ofmedical expenses of `1,55,307.54/-to Post Master General, Vadodara vide letter, dated
11.02.2003. He was informed vide letter, dated 28.02.2003 that the
Civil Servants (Medical Attendance) Rules (in short CS(MA) Rules) do
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not apply to retired Government Officials. On this ground, the
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reimbursement was not allowed. He filed an Original Application No. 205 of 2003 before the Central Administrative Tribunal, Ahme . daPbad Bench, Ahmedabad, which was allowed by the Central Ad H ministrative Tribunal, Ahmedabad Bench, Ahmedabad on 10.11.2 003. There is reference of O.M. dated 05.06.1998 in para No. 7 of tfhe judgment. The learned Central Administrative Tribunal, A t hm edoabad Bench has madeobservations in para-9 of the judgme r nt hat the decisions discussedabove have consistently held that in view of Order dated 5.6.1998, the terms of CS(MA) Rules wou o ld be uapplicable to the retiree of the PostalDepartment, who we C re not residing in the areas covered under theScheme or have n ot opted for Medical Allowance. The Union of Indiawas directed h to sanction the admissible amount in terms of CS(MA)Rules a g nd pay the same within a period of three months to theapplic i ant. Feeling aggrieved by the judgment, dated 10.11.2003,
H rendered by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad, the Union of India preferred SCA No. 3843/2004before the High Court of Gujarat at Ahmedabad. The Division Bench of Gujarat High Court dismissed the same on 02.04.2004. The Union of
India preferred Special Leave to Appeal (Civil) No. 10659/05 against
the judgment, dated 02.04.2004. The Hon'ble Supreme Court
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intervened and stayed the Contempt proceedings on 02.05.2005. These
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copies are on the record of this case, though subsequently SLPs . w P eredismissed and the stay orders were vacated, as discussed in para (supra).
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10. It would be apt at this stage to reiterate th at the Original Application filed by the respondent bearing Originafl Application No. 283-HP-2009 was allowed by the Central Aodministrative Tribunal, Chandigarh Bench by placing reliance t on the judgment, dated 13.3.2008, rendered by the Punjab anrd Haryana High Court in CWP No. 6559 of 2006, titled as o Mohiunder Singh Vs. Union of India andothers.
11. Now, we C would advert to Office Memorandum, dated 20.08.2004, A h nnexure P-4, which reads as under:
ig "Office MemorandumSub:- Clarification on the views of this Department onH
recommendation of the5 th Central Pay Commission on extension of CS(MA) Rules, 1944 to Central Government pensioners residing in areas not covered by CGHS. The CS(MA) Rules, 1944 is not applicable tothe Central Government pensioners. The 5 th Central Pay Commission had recommended extension of CS(MA) Rules,
areas not covered by CGHS. On a reference received from
the Department of Pension and Pensioners Welfare on this
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subject, the response of the Department of Health had been conveyed through the O.M. No. S. 14025/4/96-MS .
dated 5.6.1998. The response of this Department was t P hat it did not have any objections to the proposal of exte . nsion of CS(MA) Rules, 1944 to central governm en H t pensionersresiding in non-CGHS areas as recommended by the 5 th Pay Commission, subject to th o e co f ndition that theresponsibility of administering t he CS(MA) Rules, 1944 forpensioners would be of t the Departments/Ministriesconcerned. The said u O.M. r dated 5.6.1998 was in reply to areference in O.M. No. 457497 PP & PW (c ) dated 15.4.97
from the Depar o tment of Pensions and Pensioners' Welfare.After th C at also communication between these twodepar tments had continues on this subject. In fact, in a h subsequent O.M. of the same number dated 12.1.1999, theviews of all the Ministries/Departments of the Government
ig of India had been sought before a final decision could betaken. But unfortunately, the O.M. dated 5.6.1998 hasH
been misinterpreted by some pensioners as the final order of the Government of India to extend CS(MA) Rules, 1944 to pensioners. A lot of avoidable litigation has already takenplace, because some pensioners have obtained favourable orders from various courts/tribunals on the basis of the
said O.M. dated 5.6.1998.
It is therefore considered necessary to clarify
unequivocally that the O.M. dated 5.6.1998 was not
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intended to be a final order extending the applicability of CS(MA) Rules, 1944 to pensioners. In fact, it is not possible .
for any individual department to take such policy decisi P ons without obtaining views of various departments . , and particularly, the Department of Expenditure. Such being the case, in the process of examining the r f eco mmHendation ofthe 5 th Pay Commission on this is o sue, the Department ofExpenditure has categorically s aid that in view of hugefinancial implications, it is n t ot feasible to extend CS(MA)Rules, 1944 to pensioners. Therefore u , any r interpretation based on the O.M.dated 5.6.199 o 8 of this Department that the pensionerscome within the purview of the CS(MA) Rules, 1944 iswholly misplaced. "
12. The gis t o C f O.M. dated 20.08.2004 is that in sequel to O.M. dated 12.1.1999, the views of all the Ministries/Departments of the Gover i nm g ent o
hf India were sought before a final decision could be taken. However, O.M. dated 5.6.1998 was misinterpreted by some pensioners
H as the final order of the Government of India to extend CS(MA) Rules, 1944 to pensioners. It is was clarified that O.M. dated 5.6.1998 was notintended to be a final order extending the applicability of CS(MA) Rules, 1944 to pensioners. In fact, according to O.M. dated 20.08.2004, it was
not possible for any individual department to take such policy decisions
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without obtaining views of various departments and particularly the
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Department of Expenditure.
13. In order to mitigate the hardships faced by the r . etPired employees, who were not covered under the CS(MA) Ru le H s, 1944, theCentral Government, as noticed above, has framed Central Government Health Scheme. However, the area cfovered under the
Scheme was limited to 25 cities. A conscious deocision was taken to give
benefit to those retirees, who do not fal r l wi t thin the areas covered underthe Scheme by giving them fixed medical allowance @ `100/- per month on 19.12.1997. u
14. The dec C ision, odated 5.6.1998 is in sequel to therecommendations made by the 5 th Pay Commission of Central Government. h The Pay Commission recommendations are made bytaking i into consideration all the pros and cons put before it by all thestake hgolders. The decision has been taken primarily to redress the
H grievance of all those retired Government Officials, who were not covered under CGHS and were also not covered under CS(MA) Rules,1944. These pensioners as per O.M., dated 5.6.1998 were to be given one time option at the time of their retirement for medical coverage
under CGHS or under the CS(MA) Rules, 1944. In case a of a
pensioner opting for CGHS facilities, he/she was to get himself/herself
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registered in the nearest CGHS city for availing of hospitalization
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facilities and in such cases, the reimbursement claim was to be processed by the Additional Directors, CGHS of the concerned ci . ty Pand for those opting for medical facilities under the CS(MA H ) Rules, the scrutiny of the claims was to be done by the parent of f fice as in the caseof serving employees and the payment was to be o made by them. 15. A specific ground has been taken in the petition that the Hon'ble Supreme Court was seized of r the t matter relating to the scopeand effect of O.Ms. dated 05.06. u 1998 and 20.08.2004 as well as thenon-applicability of the CS(MA) Rules to pensioners in non CGHS areas was in question.
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16. We do no C t accept the plea taken in the petition that O.M. dated 5.6.199 h 8 wa s intra departmental communication. The decisiondated 5 g .6.1998 was a conscious decision. It was a final order. Therespo i ndent and similarly situated persons have changed their position
Hby getting themselves treated from various institutes legitimately expecting that they are covered under CS(MA) Rules. According to OfficeMemorandum, dated 20.08.2004, the view of all the Ministries/Departments of the Government of India were sought before
a final decision could be taken. This Office Memorandum is dated
20.08.2004, but till date no material has been placed on record that
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O.M., dated 05.06.1998 was withdrawn, rescinded, superseded or any
.
corrigendum was issued. The operation of O.M., dated 05.06.1998 has not been suspended. The only requirement as per O.M., . daPted 05.06.1998 was to work out the modalities in consultat H ion with the Ministries/Department, that too, to avoid any ha rdship to the pensioners. It was to be followed by the Ministerial Afct. The pensioners were to be given one time option at the tim t e ofo their retirement eitherto opt for CGHS or under the CS(MA) R r ules, 1944 for medical coverage.There was sufficient time for co u nsultation with various Departmentsfrom 05.06.1998 to 20.0 o 8.2004. Though it is stated that theDepartment of Expen C diture has categorically said that in view of hugefinancial implicatio ns, it is not feasible to extend CS(MA) Rules, 1944 topensioners, but that decision has not been placed on record. The issue was with g regahrd to the applicability of CGHS Scheme floated in 1954and t i he applicability of CS(MA) Rules, 1944 to the retirees, who were
H not residing in the areas covered by CGHS Scheme. The O.M. dated 05.06.1998 cannot be stated to be a decision in isolation since it isbased on the recommendations made by the 5 th Pay Commission of the Central Government. The main objective underlined in the issuance of
O.M. dated 05.06.1998 was to mitigate the hardships faced by the
retired Government officials.
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17. The Central Government must act like a model employer.
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Ours is a socialist welfare State. The difficulties faced by the retired Government officials have rightly been redressed by O.M. . daPted 05.06.1998. Thus, O.M., dated 05.06.1998 supplements H the CS(MA) Rules by extending the scope of health coverage to retir ed Government Officials as well. f
18. The matter is required to be co t ns ideored from another angle.There is a Scheme floated by the Central Government in 1954, whereby, the persons who have been e u nrollerd under the Scheme can getthemselves treated in 25 cit o ies across the country. All the GovernmentOfficials who retired C from the Central Government constitute ahomogeneous class whether they are living in station 'A' or 'B' aftertheir retireme h nt. There is no reason assigned why the respondent andsimilarly g situated person have been left out from the applicability ofCGHS i or CS(MA) Rules, 1944. It is a case of invidious discrimination.
H The CGHS facilities could not be restricted to specified places. The respondent and similarly situated person are to be treated at par withthose persons who are residing at Delhi and other areas covered under CGHS. There is no intelligible differentia so as to differentiate the
retired Government officials vis-a-vis some other retired persons only
on the ground of residing in a particular place. The objective of the
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Scheme is to provide better health facilities to the retired Government
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officials. It is with this objective that O.M. dated 5.6.1998 was issued.
19. In Sant Ram Sharma Vs. State of Rajasthan and o . thPers,
AIR 1967 Supreme Court 1910, their Lordships of the H on H 'ble SupremeCourt have held that it cannot be said that till statuto f ry rules governingpromotion to selection grade posts are framed government cannot issue administrative instructions regarding prin t cip leos to be followed. TheirLordships have held as under:
r
"7. We u proceed to consider the nextcontention of Mr. N. C. Chatterjee that in the absence of any s o tatutory rules governing promotions to
s ele C ction grade posts the Government cannot issueadministrative instructions and such administrative h instructions cannot impose any restrictions not found it g
the Rules already framed. We are unable to accept this i
argument as correct. It is true that there is no specificprovision in the Rules laying down the principle of
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promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannotissue administrative instructions regarding the principle to be followed in promotions of the officers
concerned to selection grade posts. It is true that
Government cannot amend or supersede statutory
Rules by administrative instructions but if the rules are
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silent on any particular point Government can fill up the gaps and supplement the rules and issue .
instructions not inconsistent with the rules a . lre P adyframed.
8. In B. N. Nagarajan v. State of Mysore, AIR 1966 SC 1942, it was pointed out by this f Co urtH that it is notobligatory under the proviso to Art. 309 of the Constitution to make rules o f r o ecruitment etc., before aservice can be constitute t d or a post created or filled,and secondly, the S r tate Government has executivepower, in relati u on to all matters with respect to whichthe Legislature of the State has power, to make laws. It follows o from this that the State Government willhav C e executive power in respect of Sch. 7, List II Entry4 1. State Public Services, and there is nothing in the h terms of Art. 309 of the Constitution which abridgesthe power of the executive to act under Art. 162 of the
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Constitution without a law. A similar view was takenby this Court in T. Cajec v. U. Jormonik Siem, l961-1 H
SCR 750 = (AIR 1961 SC 276) where Wanchoo. J., as he then was, who delivered judgment on behalf of the majority, observed as follows at pp. 762-764 of theReport (SCR) = (at p. 281 of AIR) :
"The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law
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with the assent of the Governor so far as the appointment and removal of a Siem was concerned. In .
this connection, the High Court relied on para 3 (1 . )(g P ) ofthe Schedule, which lays down that the District Council shall have the power to make laws with respect to the
appointment and succession of Chiefs anHd Headmen.
The High Court seems to be of o the vi f ew that until sucha law is made there could be no power of appointment of a Chief or Siem li t ke the respondent and inconsequence there would be no power of removal either. With resp u ect, it r seems to us that the High Courthas read fa o r more into para 3(l)(g), than is justified byits language. Paragraph 3(1) is in fact something like alegis C lative list and enumerates the subjects on whichth e District Council is competent to make laws. Under h Para 3(1)(g) it has power to make laws with respect tothe appointment or succession of Chiefs or Headmen
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and this would naturally include the power to removethem. But it does not follow from this that theH
appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to thateffect.................................Further once the power of appointment falls within the power of administration of
the district the power of removal of officers and others
so appointed would necessarily follow as a corollary.
The Constitution could not have intended that all ad-
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ministration in the autonomous districts should come to a stop till the Governor made regulations under para .
l9(1)(b) or till the District Council passed laws un P der Para 3(l)(g). The Governor in the first instance an . d the District Councils thereafter were vested with the powerto carry on the administration and that inH our opinion included the power to app o oint f and remove thepersonnel for carrying on the administration. Doubtlesswhen regulations are mad t e under Para 19(1)(b) or lawsare passed under P r ara 3(1) with respect to theappointment or u removal of the personnel of theadministra o tion, the administration authorities would bebound to follow the regulations so made or the laws sopass C ed. But from this it does not follow that till there gulations were made or the laws were passed, there h could be no appointment or dismissal of the personnelof the administration. In our opinion, the authorities
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concerned would at all relevant times have the powerto appoint or remove administrative personnel under H
the general power of administration vested in them by the Sixth Schedule. The view therefore taken by the High Court that there could be no appointment orremoval by the District Council without a law having been first passed in that behalf under Para 3(1)(g)
cannot be sustained."
9. We pass on to consider the next contention of Mr. N. C. Chatterjee that if the executive
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Government is held to have power to make appointments and lay down conditions of ser P vice .without making rules in that behalf under the proviso to Art. 309, there will be a violation of Arts. 14 a . nd 16
because the appointments would be arbitrary and
capricious. In our view, there is no f su bsHtance in thiscontention of the petitioner. If o the State of Rajasthanhad considered the case of the petitioner alongwith the other eligible candidates t be fore appointments to theselection posts there would be no breach of the
provisions of A u rts. 1 r 4 and 16 of the Constitutionbecause e o veryone who was eligible in view of theconditions of service and was entitled to considerationwas actually considered before promotion to those se lec C tion posts were actually made. It was said by Mr. h C. B. Agarwala on behalf of the respondents that anobjective evaluation of the merit of the officers is made
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each year and promotionismade on scrutiny of therecord sheets dealing with the competence, efficiency H
and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not consideredalongwith respondents 3 and 4 at the time of promotion to the posts of Deputy Inspector General of Police in
1955 or to the rank of Inspector General of Police or
Additional Inspector General of Police in 1966. There
was, however, a vague suggestion made by the
25
petitioner in paragraph 68 of his rejoinder petition dated July 17, 1967 that "the State Government could .
not have possibly considered my case, as t P hey considered and even in this counter-affidavit co . nsider Shri Hanuman Sharma and Shri Sultan Singh senior to me by the new type of seniority they f ha veH invented fortheir benefit". Even though o there is no specificallegation by the petitioner that there was no consideration of his case, respondent No. 1 has
definitely asserted in para t graphs 23, 25, 40 and 44 of
the counter-affid u avit t r hat at the time of promotion ofrespondent o s 3 and 4 to the selection posts of DeputyInspector General of Police and of Inspector General ofPolic C e the case of the petitioner was considered. We areth erefore of the opinion that the petitioner is unable to h substantiate his argument that there was noconsideration of his case at the time of promotion of
ig
respondents 3 and 4 to the selection posts. We musttherefore proceed on the footing that respondent No. 1 H
had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner at the time of the promotion of respondents 3and 4 to the selection grade-posts. It is therefore not possible to accept the argument of Mr. N. C. Chatterjee
that there was any violation of the constitutional
guarantee under Arts. 14 and 16 of the Constitution in
the present case. Mr. N. C. Chatterjee argued that the
26
introduction of the idea of merit into the procedure of promotion brings in an element of personal evaluat P ion, .and that personal evaluation, opens the door . to theabuses of nepotism and favouritism, and so, there was a violation of the constitutional guarantee under Arts.
14 and 16 of the Constitution. We ar f e u naHble to acceptthis argument as well found o ed. The question of aproper promotion policy depends on various conflicting factors. It is obvious tha t t t he only method in whichabsolute objectivity can be ensured is for all promotions
to be made en u tirely r on grounds of seniority. Thatmeans tha o t if a post falls vacant it is filled by theperson who has served longest in the post immediatelybelo C w. But the trouble with the seniority system is thatit is so objective that it fails to take any account of h personal merit. As a system it is fair to every officialexcept the best ones, an official has nothing to win or
ig
lose provided he does not actually become so inefficientthat disciplinary action has to be taken against him. H
But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem,therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to
protect the public interest in having posts filled by the
most able man? In other words, the question is how to
find a correct balance between seniority and merit in a
27
proper promotion-policy. In this connection Leonard D. White has stated as follows : .
"The principal object of a promo P tion system is to secure the best possible inc H omeben . ts forthe higher positions, while maintaining the morale ofthe whole organization. The main in f terest to be servedis the public interest, not th o e personal interest ofmembers of the official group concerned the public interest is best secured whe n reasonable opportunities
for promotion exist for a t ll qualified employees, when
really superior u civil s r ervants are enabled to move asrapidly u o p the promotion ladder as their meritsdeserve and as vacancies occur, and when selectionfor C promotion is made on the sole basis of merit. Fort he merit system ought to apply as specifically in h making promotions as in originalrecruitment............Employees often prefer the rule of
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seniority, by which theeligible longest inservice isautomatically awarded the promotion within limits, H
seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factorin the making of a successful employee. Seniority is given most weight in promotions from the lowest to
other subordinate positions. As employees move up
the ladder of responsibility, it is entitled to less and
less weight. When seniority is made the sole
28
determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in .
service in a particular grade is best suited P for promotion to a higher grade; the very opposite m . ay be true."
(Introduction to the f St udHy of PublicAdministration, 4th Edn., pp. o 380, 383).As a matter of lon g administrative practicepromotion to selection gr t ade posts in the Indian PoliceService has been ba r sed on merit and seniority hasbeen taken into u consideration only when merit of thecandidate o s is otherwise equal and we are unable toaccept the argument of Mr. N. C. Chatterjee that thispro C cedure violates, in any way, the guarantee underA rts. 14 and 16 of the Constitution.
20. T h heir Lordships of the Hon'ble Supreme Court in Excel Wear i Vs g . Union of India and others, AIR 1979 Supreme Court 25 haveheld that the difference pointed out by Supreme Court in AIR 1963 SC
H 1047 between the doctrinaire approach to the problem of socialism and the pragmatic one is very apt and may enable the Courts to lean moreand more in favour of nationalization and State ownership of an industry after the addition of the word 'Socialist' in the Preamble of the
Constitution. But so long as the private ownership of an industry is
recognised and governs an overwhelmingly large proportion of our
29
economic structure, it is possible to say that principles of socialism and
.
social justice can be pushed to such an extreme so as to . ign P orecompletely or to a very large extent the interests of another section of the public namely the private owners of the under tak H ings? TheirLordships have held as under:
"24. We now proceed to o deal
f with the rival contentions. But before w t e do so, we may make somegeneral observation r s. Concept of socialism or asocialist state u has undergone changes from time totime, from country to country and from thinkers tothinkers. o But some basic concept still holds the field.In the case of Akadasi Padhan v. State of Orissa, 1 9 C 63 Supp (2) SCR 691 : (AIR 1963 SC 1047) thequestion for consideration was whether a law h creating a State monopoly is valid under the latter g
part of Art. 19 (6) which was introduced by the (First i
Amendment) Act, 1951. While considering thatquestion, it was pointed out by Gajendragadkar J., as
H
he then was, at page 704 (of SCR) : (at p. 1053 of AIR) :- "With the rise of the philosophy of Socialism, thedoctrine of State ownership has been often discussed by political and economic thinkers.
Broadly speaking, this discussion discloses a
difference in approach. To the socialist,
nationalisation or State ownership is a matter of
30
principle and its justification is the general notion of social welfare. To the rationalist, nationalisation or .
State ownership is a matter of expedie P ncy dominated by considerations of economic effi . ciency and increased output of production. T hi H s latter viewsupported nationalisation only when it appeared clear that State ownership w o ould f be more efficient,more economical and mo re productive. The formerapproach was not ver t y much influenced by theseconsiderations, and r treated it a matter of principlethat all important and nation-building industries should c o ome u under State control. The first approachis doctrinaire, while the second is pragmatic. Thefi C rst proceeds on the general ground that all national wealth and means of producing it should come h
under national control, whilst the second supportsnationalisation only on grounds of efficiency and
ig
increased output."The difference pointed out between theH
doctrinaire approach to the problem of socialism and the pragmatic one is very apt and may enable the courts to lean more and more in favour ofnationalisation and State ownership of an industry after the addition of the word 'Socialist' in the
Preamble of the Constitution. But so long as the
private ownership of an industry is recognised and
governs an overwhelmingly large proportion of our
31
economic structure, is it possible to say that principles of socialism and social justice can P be .pushed to such an extreme so as to ignore completely or to a very large extent the intere . sts of
another section of the public namely the private
owners of the undertakings? Most o f thHe industries
are owned by limited compa o nies i f n which a numberof shareholders, both big and small, holds the shares. There are cr t edi tors and depositors andvarious other persons connected with or having dealings with u the u r ndertaking. Does socialism go tothe exte o nt of not looking to the interests of all suchpersons? In a State owned undertaking theG C overnment or the Government company is the owner. If they are compelled to close down, they, h
probably, may protect the labour by several othermethods at their command, even, sometimes at the
ig
cost of the public exchequer. It may not be alwaysadvisable to do so but that is a different question. H
But in a private sector obviously the two matters involved in running it are not on the same footing. One part is the management of he business done bythe owners or their representatives and the other is running the business for return to the owner not
only for the purpose of meeting his livelihood or
expenses but also for the purpose of the growth of
the national economy by formation of more and
32
more capital. Does it stand to reason that by such rigorous provisions like those contained in the .
impugned sections all these interests should P be completely or substantially ignored? The que . stions posed are suggestive of the answers .
H
21. Their Lordships of the Hon'ble Supreme f Court in Minerva Mills Ltd. and others Vs. Union of Indi a o and others, AIR 1980 Supreme Court 1789 have held that m t erely because the Directive Principles are non-justiciable, it u does rnot follow that they are in anyway subservient or inferior to the Fundamental Rights. The Directive Principles impose an obliga o tion on the State to take positive action for
creating socio-econ om C ic conditions in which there will be an egalitariansocial order w h ith social and economic justice to all, so that individualliberty w g ill become a cherished value and the dignity of the individual aliving i reality, not only for a few privileged persons but for the entire H people of the country. Their Lordships have held as under: "112. Now it is interesting to note that although fundamental' rights and directive principles appear in theConstitution as distinct entities, there was no such demarcation made between them during the period prior to
the framing of the Constitution. If we may quote the words
of Granville Austin in his book.
33
Both types of rights had developed as a common demand, products of the national and social revolutions, of .
their almost inseparable intertwining, and of the chara P cter of Indian politics itself. They were both placed on the . same pedestal and treated as falling within the game category compendiouly described as "fundamenta l HRights". The Sapru Committee in its constitutio o nal p f roposals made in1945, recommended that the declaration of fundamental rights in its wider sense wa t s absolutely necessary andenvisaged these rights as falling in two classes ; one justiciable and the u other r non-justiciable the former beingenforceable in o courts of law and the latter, not. Thecommittee however, felt difficulty in dividing thefundamental rights into these two classes and, left the whole is C sue to be settled by the Constitution-making body h with the observation that though the talk was difficult, itwas by no means impossible. This suggestion of the Sapru
ig Committee perhaps drew its inspiration from the IrishConstitution of1937, which made adistinction between H
justiciable and non-justiciable rights and designated the former as Fundamental Rights and the latter as Directive Principles of Social Policy. Dr. Lauterpacht also made asimilar distinction between justiciable and non-justiciable rights in his "international Bill of the Rights of Man". The
substantial provisions of this Bill were in two parts; Part I
dealt with personal or individual rights enforceable in
courts of law while Part II set out social and economic
34
rights incapable of or unsuitable for such enforcement. Sir B. N. Rau, who was the Constitutional Adviser to P the .government of India, was considerably impressed by . theseideas and he suggested that the best way of giving effect to the objectives set out in the Objectives Resolution was to
split up the objectives into Fundamenta l HRights and
Fundamental Principles of State Po o licy, t f he former relatingto personal and political rights e nforceable in courts of lawand the latter relating to soc t ial and economic rights andother matters, not so enfor r ceable and proposed that the Ch.on fundamental righ u ts may he split up into two parts; Part'a' dealing with o the latter kind of rights under the heading"fundamental Principles of Social Policy" and Part 'b'dealing C with the former under the heading '"fundamentalRights ". The Fundamental Rights Sub-Committee also h recommended that "the list of fundamental rights should beprepared in two parts, the first part consisting of rights
ig enforceable by appropriate legal process and the secondconsisting of directive principles of social policy". A week H
later, while moving for consideration, the Interim Report on Fundamental Rights, Sardar Vallabhbhai Patel said: This is a preliminary report or an interim reportbecause the committee when it sat down to consider the question of fixing the fundamental rights and its
incorporation into the Constitution, came to the conclusion
that the fundamental rights should be divided into two
parts the first part justiciable and the other non-
35
justiciable. This position was reiterated by Sardar Vallabhbhai Patel when he said while presenting the .
Supplementary Report. There were two parts of P the Report; one contained fundamental rights H which . werejusticiable and the other part of the Rep ort referred tofundamental rights which were not justiciable but were directives. . It will, therefore, be se o en tha f t from the point ofview of importance and significance, no distinction was drawn between justiciable a t nd non-justiciable rights andboth were treated as forming part of the rubric of
Fundamental Rights, th r e only difference being that
whereas the forme u r were to be enforceable in courts of
law, the latter o were not to be so enforceable. This proposalof dividing the fundamental rights into two parts, one part justic ia C ble and the other non-justiciable, was however not h easy of adoption because it was a difficult task to decidein which category a particular fundamental right should
ig
be included. The difficulty may be illustrated by pointingout that at one time the right to primary education was H
included in the draft list of fundamental rights, while the equality clause figured in the draft list of fundamental principles of social policy. But ultimately a division of thefundamental rights into justiciable and non-justiciable rights was agreed upon by the Constituent Assembly and
the former were designated as "fundamental Rights" and
the latter as "directive Principles of State Policy". It has
sometimes been said that the fundamental rights deal
36
with negative obligations of the State not to encroach on individual freedom, while the directive principles impose .
positive obligations on the State to take certain kind P of action. But, I find it difficult to subscribe to this propo . sition because, though the latter part may he tr H ue that thedirective principles require positive action to be taken by the State, it is not wholly co o rrect f to say that thefundamental rights impose onl y negative obligations onthe State. There are a few fu t ndamental rights which havealso a positive content an r d that has been, to some extent,unfolded by the u recent decisions of this court inHussainara o Khatoon (I) v. State of Bihar, MadhavHayawadanrao Hoskot v. State of Maharashtra and SunilBatra C (I) v. Delhi Administration. There are newdime nsions of the fundamental rights which are being h opened up by this court and the entire jurisprudence offundamental rights is in a stage of resurgent evolution.
ig
Moreover, there are three Articles, namely, Article 15 (2) ,Article 17 and Article 23 within the category ofH
fundamental rights which are designed to protect the individual against the action of other private citizens and seen to impole positive obligations on the State to ensurethis protection to the individual. I would not, therefore, limit the potential of the fundamental rights by subscribing
to the theory that they are merely negative obligations
requiring the State to abstain as distinct from taking
positive action. The only distinguishing feature, to my
37
mind, between fundamental rights and directive principles is that whereas the former are enforceable in a court of .
law, the latter, are not. And the reason for this is obvio P us. It has been expressed succinctly by the Pla . nning Commission in the following words :
The non-justifiability clause only f pr oviHdes that theinfant State shall not be imme o diately called upon toaccount for not fulfilling the new obligations laid upon it. A State just awakened to fr t eed om with its many pre-occupations might be crushed under the burden unless it
was free to decide u the o r der, the time, the place and themode of fulfilli o ng them. The social and economic rights andother matters dealt with in the directive principles are bytheir ve C ry nature incapable of judicial enforcement andmore over, the implementation of many of those rights h would depend on the state of economic development in thecountry, the availability of necessary finances and the
ig
government's assessment of priority of objectives andvalues and that is why they are made non-justiciable. But H
merely because the directive principles are non-justiciable, it docs not follow that they are in any way subservient or inferior to the fundamental rights.113. The Indian Constitution is first and foremost a social document. The majority of its provisions
are either directly aimed at furthering the goals of the
socio-economic revolution or attempt to foster this
revolution by establishing the conditions necessary for its
38
achievement. Yet despite the permeation of the entire Constitution by the aim of national renascence, says .
Granville Austin,
P
The core of the commitment to the social revo . lution lies. . in the fundamental rights and the directive principles of State policy. Those are the f co nsHcience of theConstitution and, according to Granville Austin, they are designed to be the chief instrum o ents in bringing about
the great reforms of the soci o-economic revolution and
realising the constitutional t goals of social, economic and
political justice for r all. The fundamental rights
undoubtedly prov u ide for political justice by conferring
various free o doms on the individual, and also make asignificant contribution to the fostering of the social rev olu C tion by aiming at a society which will be h egalitarian in texture and where the rights of minoritygroups will be protected. But it is in the directive
ig
principles that we find the clearest statement of thesocioeconomic revolution. The directive principles aim at H
making the Indian masses free in the positive sense, free from the passivity engendered by centuries of coercion by society and by nature, free from the abject physicalconditions that had prevented them from fulfilling their best selves. The fundamental rights are no doubt
important and valuable in a democracy, but there can be
no real democracy without social and economic justice to
the common man and to create socio-economic conditions
39
in which there can be social and economic justice to everyone, is the theme of the directive principles. It is the .
directive principles which nourish the roots o . f P ourdemocracy, provide strength and vigour to it and attempt to make it a real participatory democracy which does not
remain merely a political democracy bu t aHlso becomes
social and economic democracy with f f undamental rights
available to all irrespective o f t o heir power, position orwealth. The dynamic p t rovisions of the directiveprinciples fertilise the static provisions of the fundamental right u s. The r object of the fundamental rightsis to protect o individual liberty, but can individual libertybe considered in isolation from the socio-economicstruct C ure in which it is to operate. There is a realcon nection between individual liberty and the shape and h form of the social and economic structure of the society.Can there be any individual liberty at all for the large
ig
masses of people who are suffering from want andprivation and who arecheated out of their individual H
rights by the exploitative economic system? Would their individual liberty not come in conflict with the liberty of the socially and economically more powerful class and inthe process, get mutilated or destroyed? It is axiomatic that the real controversies in the present day society are
not between power and freedom but between one form of
liberty and another. Under the present socio-economic
system, it is the liberty of the few which is in conflict
40
with the liberty of the many. The directive principles therefore) impose an obligation on the State to take .
positive action for creating socio-economic conditions P in which there will be an egalitarian social order with . social and economic justice to all, so that individual liberty will become a cherished value and the digHnity of the individual a living reality, not only fo f r a few privileged persons but for the entire peopl o e of the country. It will thus be seen that the directiv e principles enjoy a very high place in the consti r tuti t onal scheme and it is only inthe framework of u the socio-economic structure envisagedin the directi o ve principles that the fundamental rights areintended to operate, for it is only then they can becomemean C ingful and significant for the millions of our poorand deprived people who do not have even the bare h necessities of life and who are living below the povertylevel.
ig 117.Now on this question Article 37 is emphatic and H
makes the point in no uncertain terms. It says that the directive principles are "nevertheless fundamental in the governance of the country and it shall be the duty of theState to apply these principles in making laws". There could not have been more explicit language used by the
Constitution-makers to make the directive principles
binding on the State and there can be no doubt that the
State is under a constitutional obligation to carry out
41
this mandate contained in Article 37. In fact, non- compliance with the directive principles would be .
unconstitutional on the part of the Stale and it would P not only constitute a breach of faith with the peopl . e who imposed this constitutional obligation on the State but it would also render a vital part of th e HConstitution meaningless and futile. Now it is o sign f ificant to note thatfor the purpose of the directive principles, the "state" hasthe same meaning as given t to it under Article 13 for thepurpose of the fundam r ental rights. This would meanthat the same St u ate which is injected from taking anyaction in inf o ringement of the fundamental rights is toldin no uncertain terms that it must regard the directiveprinci C ples as fundamental in the governance of thecou ntry and is positively mandated to apply them in h making laws. This gives rise to a paradoxical situationand its implications are far-reaching. The State is on the
ig
one hand, prohibited by the constitutional injunction inArticle 13 from making any law or taking any executive H
action which would infringe any fundamental right and at the same time it is directed by the constitutional mandate in Article 37 to apply the directive principles inthe governance of the country and to make laws for giving effect to the directive principles. Both are
constitutional obligations of the State and the question
is, as to which must prevail when there is a conflict
between the two. When the State makes a law for giving
42
effect to a directive principle, it is carrying out a constitutional obligation under Article 37 and if it were .
to be said that the State cannot make such a P law because it comes into conflict with a fundamental . right, it can only be on the basis that fund am H ental rightsstand on a higher pedestal and have precedence over directive principles. But, as we o have f pointed out above,it is not correct to say that under our constitutionalscheme, fundamental righ t ts are superior to directiveprinciples or that dir r ective principles must yield tofundamental rig u hts. Both are in fact equallyfundamenta o l and the courts have therefore in recenttimes tried to harmonise them by importing the directiveprinci C ples in the construction of the fundamental rights.It h as been laid down in recent decisions of this court h that for the purpose of determining the reasonablenessof the restrictions imposed on fundamental rights, the
ig
court may legitimately take intoaccount thedirectiveprinciples and where executive action is taken orH
legislation enacted for the purpose of giving effect to a directive principle, the restriction imposed by it on a fundamental right may be presumed to be reasonable. Ido not propose to burden this opinion with reference to all the decided cases where this principle has been
followed by the court, but I may refer only to one
decision which, I believe, is the latest on the point,
43
namely, Pathumma v. State of Kerala, where Fazal Ali,j. summarised the law in the following words : .
One of the tests laid down by this court is tha P t, in judging the reasonableness of the restrictions im . posed by clause (5) of Article 19, the court has to bear in mind the directive principles of State polic f y. SoH also in theState of Bihar v. Kameshwar o Singh, this court reliedupon the directive principle contained in Article 39 in arriving at its decision th t at the purpose for which theBihar Zimindari Abolition legislation had been passed
was a public pu u rpose r . The principle accepted by thiscourt was o that if a purpose is one falling within thedirective principles, it would definitely be a publicpurp C ose. It may also be pointed out that in a recentde cision given by this court in Kasturi Lal Lakshmi h Reddy v. State of J. and K. it has been held that everyexecutive action of the government, whether in
ig
pursuance of law or otherwise, must be reasonable andinformed with public interest and the yardstick forH
determining both reasonableness and public interest is to be found in the directive principles and therefore, if any executive action is taken by the government forgiving effect to a directive principle, it would prima facie be reasonable and in public interest. It will, therefore,
be seen that if a law is enacted for the purpose of giving
effect to a directive principle and it imposes a restriction
on a fundamental right, it would be difficult to condemn
44
such restriction as unreasonable or not in public interest. So also where a law is enacted for giving effect .
to a directive principle in furtherance of P the constitutional goal of social and economic justice . it may conflict with a formalistic and doctrinaire view of equality before the law, but it wou f ld almHost alwaysconform to the principle of equa o lity before the law in itstotal magnitude and dimension, because the equality clause in the Constitution d t oc s not speak of mere formalequality before the law r but embodies the concept of realand substantive u equality which strikes at inequalitiesarising on o account of vast social and economicdifferentials and is consequently an essential ingredientof so C cial and economic justice. The dynamic principle ofeg alitarianism fertilises the concept of social and h economic justice; it is one of its essential elements andthere can be no real social and economic justice where
ig
there is a breach of the egalitarian principle. If,therefore, there is a law enacted by the legislature H
which is really and genuinely for giving effect to a directive principle with a view to promoting social and economic justice, it would be difficult to say that suchlaw violates the principle of egalitarianism and is not in accord with the principle of equality before the law as
understood not in its strict and formalistic sense, but in
its dynamic and activist magnitude. In the
circumstances, the court would not be unjustified in
45
making the presumption that a law enacted really and genuinely for giving effect to a directive principle in .
furtherance of the cause of social and economic just P ice, would not infringe any fundamental right under . Article 14 or Article 19. Mr. G. H. Alexandrowick, an eminent jurist, in fact, says: "legislation implem enHting Part IV must be regarded as permitted o restri f ctions on Part III".Dr. Ambedkar, one of the chief architects of theConstitution, also made it t clear while intervening duringthe discussion on the r Constitution (First Amendment)Bill in the Lok Sa u bha on 18/05/1951, that in his view,So o far as the doctrine of implied powers isconcerned, there is ample authority in the Constitutionitsel C f, namely, in the directive principles "to permitP arliament to make legislation, although it will not be h specifically covered by the provisions contained in thepart on fundamental rights". If this be the correct
ig
interpretation of the constitutional provisions, as Ithink it is, theamended Article 31-G does nomore H
than codify the existing position under the constitutional scheme by providing immunity to a law enacted really and genuinely for giving effect to adirective principle, so that needlessly futile and time- consuming controversy whether such law contravenes
Article 14 or Article 19 is eliminated. The amended
Article 31-C cannot in the circumstances be regarded
as violative of the basic structure of the Constitution.
46
118. But I may in the alternative, for the purpose of argument, assume that there may be a few .
cases where it may be found by the court, perhaps P on a narrow and doctrinaire view of the H scope . andapplicability of a fundamental right as in KarimbilKunhikoman v. State of Kerala, whe f re a law awardingcompensation at a lower rate to holders of larger blocks of land and at higher ra o te to holders of smaller
blocks of land was str t uck down by this court' asviolative of the equa r lity clause, that a law enactedreally and gen u uinely for giving effect to a directiveprinciple is violative of a fundamental right under Article 14 or Article 19. Would such a law enacted in
disc C hargeo of the constitutional obligation laid upon theS tate under Article 37 be invalid, because it infringes h a fundamental right? If the court takes the view that itis invalid, would it not be placing fundamental rights
ig
above directive principles, a position not supported atall by the history of their enactment as also by the H
constitutional scheme already discussed by me. The two constitutional obligations, one in regard to fundamental rights and the other in regard to directiveprinciples, are of equal strength and merit and there is no reason why, in case of conflict, the former should
be given precedence over the latter. I have already
pointed out that whether or not a particular mandate
of the Constitution is justiciable has no bearing at all
47
on its importance and significance and justiciability by itself can never be a ground for placing one .
constitutional mandate on a higher pedestal tha . n P theother. The effect of giving greater weightage to the constitutional mandate in regard to fundamental
rights would be to relegate the directive pHrinciples to a
secondary position and emas o culate f the constitutionalcommand that the directive principles shall be fundamental in the gove t rna nce of the country and itshall be the duty of t r he State to apply them in makinglaws. It would u amount to refusal to give effect to thewords "fu o ndamental in the governance of the country"and a constitutional command which has beendec C lared by the Constitution to be fundamental wouldb e rendered non-fundamental. The result would be h that a positive mandate of the Constitutioncommanding the State to make a law would be
ig
defeated by a negative constitutional obligation not toencroach upon a fundamental right and the law made H
by the legislature pursuant to a positive constitutional command would be delegitimised and declared unconstitutional. This plainly would be contrary to theconstitutional scheme because, as already pointed out by me, the Constitution does not accord a higher place
to the constitutional obligation in regard to
fundamental rights over the constitutional obligation in
regard to directive principles and does not say that the
48
implementation of the directive principles shall only be within the permissible limits laid down in the Ch. on .
fundamental rights. The main thrust of the argum P ent of Mr. Palkhivala was that by reason o . f the amendment of Article 31-G, the harmony and balance between fundamental rights and dire ctiHve principles are disturbed, because fundam o ental f rights which had,prior to the amendment, precedence over directiveprinciples are now, as t a result of the amendment,made subservient to directive principles. Mr. Palkhivala pic u tures r quely described the positionemerging o as a result of the amendment by saying thatthe Constitution is now made to stand on its headinst C ead of its legs. But in my view the entire premiseo n which this argument of Mr. Palkhivala is based is h fallacious because it is not correct to say, and I havein the preceding portions of this opinion, given cogent
ig
reasons for this view, that prior to the amendmentsfundamental rights had a superior or higher position H
in the constitutional scheme than directive principles and there is accordingly no question at all of any subversion of the constitutional structure by theamendment. There can be no doubt that the intention of the Constitution-makers was that the fundamental
rights should operate within the socio-economic
structure or a wider continuum envisaged by the
directive principles, for then only would the
49
fundamental rights become exercisable by all and a proper balance and harmony between fundamental .
rights and directive principles secured. P The Constitution-makers therefore never contemplate . d that a conflict would arise between the c H onstitutionalobligation in regard to fundamental rights and the constitutional mandates in o reg f ard to directiveprinciples. But if a conflict does arise between thesetwo constitutional mand t ates of equal fundamentalcharacter, how is th r e conflict to be resolved? TheConstitution did not provide any answer because such a situation was u not anticipated by the Constitution-
makers and this problem had therefore to be solved by
Par C liamenot and some modus operandi had to bee volved in order to creminate the possibility of conflict h howsoever remote it might be. The way wan shown inno uncertain terms by Jawaharlal Nehru when he
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said in the Lok Sabha in the course of discussion onthe Constitution (First Amendment) Bill: H
The directive principles of State policy represent a dynamic move towards a certain objective. The fundamental rights represent something static, topreserve certain rights which exist. Both again are right. But somehow and sometime it might so happen
that that dynamic movement and that static standstill
do not quite fit into each other.
50
The dynamic movement towards a certain objective necessarily means certain changes taking .
place : that is the essence of movement. Now it m P ay be that in the process of dynamic movement c . ertain existing relationships are altered, varied or affected. In fact, they are meant to aff f ect thHose settledrelationships and yet if yo o u come back to thefundamental rights they are meant to preserve, not indirectly, certain settle t d relationships. There is acertain conflict in the two approaches, not inherently, because that w u as n r ot meant, I am quite sure. Butthere is t o hat slight difficulty and naturally when thecourts of the land have to consider these matters theyha C ve to lay stress more on the fundamental rightst han on the directive principles. The result is that the h whole purpose behind the Constitution, which wasmeant to be a dynamic Constitution leading to a
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certain goal step by step, is somewhat hampered andhindered by the static element being emphasised a H
little more than the dynamic element. . If in the protection of individual liberty you protect also individual or group inequality, then you come intoconflict with that directive principle which wants, according to your own Constitution, a gradual
advance, or let us put it in another way, not so
gradual but more rapid advance) whenever possible
to a State where there is less and less inequality and
51
more and more equality. If any kind of an appeal to individual liberty and freedom is construed to mean .
as an appeal to the continuation of the ex . is P tinginequality, then you get into difficulties. Then you become static, unprogressive and cannot change and
you cannot realize the ideal of an ega litHarian society
which I hope most of us aim o at. P f arliament took theview that the constitution al obligation in regard todirective principles shou t ld have precedence over theconstitutional obligat r ion in regard to the fundamentalrights in Articl u es 14 and 19, because fundamentalrights tho o ugh precious and valuable for maintainingthe democratic way of life, have absolutely nome C aning for the poor, downtrodden and economicallyb ackward classes of people who unfortunately h constitute the bulls of the people of India and the onlyway in which fundamental rights can be made
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meaningful for them is by implementing the directiveprinciples, for the directive principles are intended to H
bring about a socioeconomic revolution and to create a new socio-economic order where there will be social and economic justice for all and everyone, not only afortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and
development and exercise the fundamental rights.
Parliament therefore amended Article 31-C with a
view to providing that in case of conflict directive
52
principles shall have precedence over the fundamental rights in Articles 14 and 19 and the .
latter shall yield place to the former. The posi P tive constitutional command to make laws for giving . effect to the directive principles shall prevail over the negative constitutional obligation not to Hencroach on the fundamental rights embo o died i f n Articles 14 and19. Parliament in making this amendment was moved by the noble philosop t hy eloquently expressed inhighly inspiring and evocative words, full of passion and feeling, by u Chan r drachud, J. (as he then was) inhis judgm o ent in Kesvananda Bharati case at page991 of the Report. I may quote here whatCh C andrachud, J. (as he then was) said on thato ccasion, for it sets out admirably the philosophy h which inspired Parliament in enacting the amendmentin Article 31-C. The learned Judge said:
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I have stated in the earlier part of my judgmentthat tin' Constitution accords a place of pride toH
fundamental rights and a place of permanence to the directive principles. I stand by what I have said. The preamble of our Constitution recites that the aim ofthe Constitution is to constitute India into a sovereign democratic republic and to secure to "all its citizens",
justice social, economic and political liberty and
equality. Fundamental rights which are conferred and
guaranteed by Part III of the Constitution undoubtedly
53
constitute the ark of the Constitution and without them a man's reach will not exceed his grasp. But it .
cannot be overstressed that, the directive principle P s of State policy are fundamental in the governance . of the country. What is fundamental in the governance of the country cannot surely be less s ignHificant than what is fundamental in the lif o e of a f n individual. Thatone is justiciable and the other not may show the intrinsic difficulties in m t ak ing the latter enforceablethrough legal proces r ses but that distinction does notbear on their r u elative importance. An equal right ofmen and o women to an adequate means of livelihood ;the right to obtain humane conditions of workens C uring a decent standard of life and full enjoymento f leisure ; and raising the level of health and h nutrition are not matters for compliance with the writof a court, As I look at the provisions of Parts III and
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IV, I feel no doubt that the basic object of conferringfreedoms on individuals, is the ultimate achievement H
of the ideals set out in Part IV. A circumspect use of the freedoms guaranteed by Part III is bound to subserve the common good but voluntary submissionto restraints is a philosopher's dream. Therefore, Article 37 enjoins the State to apply the directive
principles in making laws. The freedom of a few have
then to be abridged in order to ensure the freedom of
all. It is in this sense that Parts III and IV, as said by
54
Granville Austin together constitute "the conscience of the Constitution". The nation stands today at the .
crossroads of history and exchanging the . t P imehonoured place of the phrase, may I say that the directive principles of State policy should not be
permitted to become "a mere rope o f sHand". If the
State fails to create con o ditions f in which thefundamental freedoms could be enjoyed by all, the freedom of the few will t be at the mercy of the manyand then all freedom r s will vanish. In order, therefore,to preserve th u eir freedom, the privileged few mustpart with o a portion of it. This is precisely whatParliament achieved by amending Article 31-C.Parliament made the amendment in Article 31-C b ec C ause it realised that "if the State fails to create h conditions in which the fundamental freedoms couldbe enjoyed by all, the freedom of the few will be at
ig themercy of themany and then all freedoms willvanish" and "in order, therefore, to preserve their H
freedom, the privileged few must part with a portion of it". I find it difficult to understand how it can at all be said that the basic structure of the Constitution isaffected when for evolving a modus vivendi for resolving a possible remote conflict between two
constitutional mandates of equally fundamental
character, Parliament decides by way of amendment
of Article 31-G that in case of such conflict the
55
constitutional mandate in regard to directive principles shall prevail over the constitutional .
mandate in regard to the fundamental rights un P der Articles 14 and 19. The amendment in Article 31 . -G far from damaging the basic structure of the Constitution strengthens and re-enforces it by g f ivin g Hfundamentalimportance to the rights of o the members of thecommunity as against the rights of a few individuals and furthering the objecti ve of the Constitution to
build an egalitarian soc t ial order where there will be
social and econ u omic r justice for all, everyone includingthe low vi o sibility areas of humanity in the country willbe able io exercise fundamental rights and the dignityof C the individual and the worth of the human personw hich are cherished values will not remain merely the h exclusive privileges of a few but become a livingrealityfor the many. Additionally, this question may
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also be looked at from another point of view so far asthe protection against violation of Article 14 isH
concern"d. The principle of egalitarianism. , as I said before, is an essential element of social and economic justice and, therefore, where a law is enacted forgiving effect to a directive principle with a view to promoting social and economic justice, it would not
run counter to the egalitarian principle arid would not
therefore be violative of the basic structure, even if it
infringes equality before the law in its narrow and
56
formalistic sense. No law which is really and genuinely for giving effect to a directive principle P can .be inconsistent with the egalitarian principle and therefore the protection granted to it unde . r the
amended Article 31-C against violation of Article 14
cannot have the effect of dam f ag ingH the basicstructure. I do not therefore s o ee how any violation ofthe basic structure is involved in the amendment of Article 31-C. In fact, once we accept the proposition
laid down by the major t ity decision in Kesavananda
Bharati case t u hat th r e unamended Article 31-G wasconstitutionally valid, it could only be on the basis
that it did o not damage or destroy the basic structureof t C he Constitution and moreover in the Order made inW awan Rao case on 9/05/1980 this court expressly h held that the unamended Article 31-C "does notdamage any of the basic or essential features of the
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Constitution or its basic structure", and if that be so, itis difficult to appreciate how the amended Article 31- H
C can be said to be violative of the basic structure. If the exclusion of the fundamental rights embodied in Articles 14 and 19 could be legitimately made forgiving effect to the directive principles set out in clauses (b) and (c) of Article 39 without affecting the
basic structure, I fail to see why these fundamental
rights cannot be excluded for giving effect to the other
directive principles. If the constitutional obligation in
57
regard to the directive principles set out in clauses (b) and (c) of Article 39 could be given precedence over .
the constitutional obligation in regard to P the fundamental rights under Articles 14 and H 19, th . ere isno reason in principle why such preced ence cannot begiven to the constitutional obligatio f n in regard" to theother directive principles which stand on the same footing. It would, to my min d, o be incongruous to holdthe amended Article 31-C invalid when the
unamended Article 3 r 1-G t has been held to be valid bythe majority d u ecision in Kesavananda Bharati caseand by th o e Order made on 9/05/1980 in Woman Raocase.12 C 3. I would therefore declare S. 55 of the Constitution (Forty second Amendment) Act, 1976 h
which inserted Ss. (4) and (5) in Article 368 asunconstitutional and void on the ground that it
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damages the basic structure of the Constitution andgoes beyond the amending power of Parliament. But H
so far as S. 4 of the Constitution (Forty-second Amendment) Act, 1976 is concerned, I hold that, on the interpretation placed on the amended Article 31-G by me, it does not damage or destroy the basic structure of the Constitution and is within the
amending power of Parliament and I would therefore
declare the amended Article 31-G to be constitutional
and valid.
58
22. Their Lordships of the Hon'ble Supreme Court in S.P. . Gupta Vs. President of India and others , AIR 1982 Supreme . CoPurt 149 have held that the judiciary has therefore a socio economic destination and a creative function. It has to use the wo rdsH of Glanville Austin, to become an arm of the socio-economic revolfution and perform an active role calculated to bring social justi ce o within the reach of the common man. Their Lordships have held a t s under:
"26. Having d u isposerd of the preliminary objection inregard to locu o s standi of the petitioners, we may nowproceed to consider the questions which arise fordetermin C ation in these Writ Petition.The questions are ofgreat constitutional significance affecting the principle of h independence of the judiciary which is a basic feature of g the Constitution and we would therefore prefer to begin the i
discussion by making a few prefatory remarks highlightingwhat the true function of the judiciary should be in a
H
country like India which ismarching along the road to social justice with the banner of democracy and the rule of law, for the principle of independence of the judiciary is notan abstract conception but it is a living faith which must derive its inspiration from the constitutional charter and its
nourishment and sustenance from the constitutional
values.It is necessary for every Judge to remember
constantly and continually that our Constitution is not a
59
non - aligned national charter.It is a document of social revolution which casts an obligation on every .
instrumentality including the judiciary, which is a separ P ate but equal branch of the State, to transform the statu . s quo ante into a new human order in which justice, social, economic and political will inform all institut ionHs of national life and there will be equality of sta o tus a f nd opportunity forall.The judiciary has therefore a socio economic destinationand a creative function.It has t to use the words of GlanvilleAustin, to become an arm r of the socio - economic revolutionand perform an active role calculated to bring social justice within the rea o ch o u f the common man.It cannot remaincontent to act merely as an umpire but it must befunction C ally involved in the goal of socio - economicjustice .The British concept of justicing, which to quote h Justice Krishna iyer, is still "bugged by the heirs of ourcolonial legal culture and shared by many on the bench" is
ig that "the business of a Judge is to hold his tongue until thelast possible moment and to try to be as wise as he is paid H
to look" and in the same strain are the words quoted by Professor Gordon Reid from 'a memorandum to the Victorian government by Irvin, C.J.in 1923 where thejudicial function was idealized in the following words :
The duty of His Majesty's Judges is to hear and
determine issues of fact and of law arising between the
king and the subject or between a subject and a subject
presented in a form enabling judgment to be passed upon
60
them, and when passed, to be enforced by a process of law.There begins and ends the function of the .
judiciary.Now this approach to the judicial function m P ay be alright for a stable and static society but not . for a society pulsating with urges of gender justice, worker justice, minorities justice, dalit justice f and eHqual justice,between chronic unequals.Where o the contest is betweenthose who are socially or economically unequal, the judicial process may prove dis astrous from the point of
view of social justice, if the J t udge adopts a merely passive
or negative role and u does r not adopt a positive and creativeapproach.The o judiciary cannot remain a mere bystanderor spectator but it must become an active participant in thejudicial C process ready to use law in the service of socialjustic e through a proactive goal - oriented approach.But h this cannot be achieved unless we have judicial cadreswho share the fighting faith of the constitution and who
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are imbued with the constitutional values.The necessity ofa judiciary which is in tune with the social philosophy of H
the constitution has nowhere been better emphasised than in the words of justice Krishna Iyer which we quote: Appointment of Judges is a serious process wherejudicial expertise, legal learning, life's experience and high integrity are components, but above all are two
indispensables - social philosophy in active unison with
the socialistic articles of the Constitution, and second, but
equally important, built - in resistance to pushes and
61
pressures by class interests, private prejudices, government threats and blandishments, party loyalties .
and contrary economic and politicial ideologies pro . jec P tinginto pronouncements.Justice Krishna lyer goes on to say in his inimitable style :
Justice Cardozo approvingly f qu oteHd PresidentTheodore Roosevelt's stress on the social philosophy of the Judges, which shakes and o shapes the course of a
nation and, therefore, the c t hoi ce of Judges for the highercourts which makes an r d declares the law of the land,must be in tune u with the social philosophy of theConstitution.Not mastery of the law alone, but social vision and creative craftsmanship are important inputs
in su C ccessfuol justicing.What is necessary is to haveJud ges who are prepared to fashion new tools, forge h new methods, innovate new strategies and evolve a newjurisprudence, who are judicial statesmen with a social
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vision and a creative faculty and who have, above all, adeep sense of commitment to the Constitution with an H
activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half - hungrymillions of India who are continually denied their basic human rights.We need Judges who are alive to the socio
- economic realities of indian life, who are anxious to
wipe every tear from every eye, who have faith in the
constitutional values and who are ready to use law as
62
an instrument for achieving the constitutional objectives.This has to be the broad blueprint of the .
appointment project for the higher echelons of judi P cial service.It is only if appointments of Judges are . made with these considerations weighing predominantly with the appointing authority that we c f an hHave a trulyindependent judiciary committed o only to the Constitutionand to the people of India.The concept of independence of the judiciary is a noble co ncept which' inspires the
constitutional scheme and c t onstitutes the - foundation on
which rests the ed u ifice o r f our democratic polity.If there isone principle o which runs through the entire fabric of theConstitution, it is the principle of the rule of law andunder C the Constitution, it is the judiciary which isent rusted with the task of keeping every organ of the h state within the limits of the law and thereby making therule of law meaningful and effective.It is to aid the
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judiciary in this task that the power of judicial reviewhas been conferred upon the judiciary and it is byH
exercising this power which constitutes one of the most potent weapons in armory of the law, that the judiciary seeks to protect the citizen against violation of hisconstitutional or legal rights or misuse or abuse of power by the State or its officers.The judiciary stands between
the citizen and the State as a bulwark against executive
excesses and misuse or abuse of power by the executive
and therefore it is absolutely essential that the judiciary
63
must be free from executive pressure or influence and this has been secured by the Constitution - makers by .
making elaborate provisions in the Constitution to wh P ich detailed reference has been made in the judgme . nts in Sankalchand Sheth case.But it is neces sa H ry to remindourselves that the concept of independence of the judiciary is not limited only o to in f dependence fromexecutive pressure or influenc e but it is a much widerconcept which takes within t its sweep independence frommany other pressures r and prejudices.It has manydimensions, nam u ely, fearlessness of other powercentres, ec o onomic or political, and freedom fromprejudices acquired and nourished by the class to whichthe Ju C dges belong.If we may again quote the eloquentwor ds of Justice Krishna Iyer : h
Independence of the Judiciary is not genuflexion ;nor is it opposition to every proposition of government.It
ig is neither Judiciary made to opposition measure norgovernment's pleasure.The tycoon, the communalist, the H
parochialist, the faddist, the extremist and radical reactionary lying coiled up and subconsciously shaping judicial mentations are menaces to judicialindependence when they are at variance with Parts III and IV of the Paramount Parchment.Judges should be of
stern stuff and tough fibre, unbending before power,
economic or political, and they must uphold the core
principle of the rule of law which says, "be you ever so
64
high, the law is above you." This is the principle of independence of the judiciary which is vital for the .
establishment of real participatory.democra P cy, maintenance of the rule of law as a dynamic co . ncept and delivery of social justice to the vuln er H able S.of thecommunity.It is this principle of independence of the judiciary which we must keep in mind f while interpreting
the relevant provisions of the c on o stitution.
23. Their Lordships of the H r on'tble Supreme Court in D.S. Nakara and others Vs. Union of u India, AIR 1983 Supreme Court 130 have held that Article 41 o o bligates the State within the limits of its economic capacity and development, to make effective provision for securing the right to C work, to education and to provide assistance in cases of une h mployment, old age, sickness and disablement, and in other i ca g ses of undeserved want. Article 43(3) requires the State toendeavour to secure amongst other things full enjoyment of leisure and
H social and cultural opportunities. Their Lordships have held as under: "32.Having succinctly focussed our attention on theconspectus of elements and incidents of pension the main question may now be tackled. But, the approach of Court
while considering such measure, is of paramount
importance. Since the advent of the Constitution, the State
action must be directed towards attaining the goals set out
65
in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. .
Article 38 (1) enjoins the State to strive to promote welfar P e of the people by securing and protecting as effective as . it may a social order in which justice social, econom ic and politicalshall inform all institutions of the nationa f l life.H In particularthe State shall strive to minimise the inequalities in income and endeavour to eliminate inequ al o ities in status, facilitiesand opportunities. Article 39 ( t d) enjoins a duty to see thatthere is equal pay for equa r l work for both men and womenand this directive sho u uld be understood and interpreted inthe light of the o judgment of this Court in Randhir Singh v.Union of India, (1982) 1 SCC 618 : (AIR 1982 SC 879).Revealing the scope and content of this facet of equality, Chinna pp C a Reddy, J. speaking for the Court observed asu h nder (para 1) : "Now, thanks to the rising social and political
ig consciousness and the expectations roused as aconsequence and the forward looking posture of this Court, H
the underprivileged also are clamouring for their rights and are seeking the intervention of the Court with touching faith and confidence in the Court. The Judges of the Court havea duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the guest of the Five
Star hotel."
Proceeding further, this Court observed that where
all relevant considerations are the same, persons holding
66
identical posts may not be treated differently in the matter of their pay merely because they belong to different .
departments. If that can't be done when they a . re P inservice, can that be done during their retirement ?
Expanding this principle, one can confidently say that if
pensioners form a class, their computation cHannot be by
different formula affording unequa o l treat f ment solely on theground that some retired earlier and some retired later. Article 39 (e) requires the St t ate to secure that the healthand strength of workers, r men and women, and children oftender age are not a u bused and that citizens are not forcedby economic n o ecessity to enter avocations unsuited to theirage or strength.Article 41 obligates the state within thelimits of C its economic capacity and development, to makeeffect ive provision for securing the right to work, to h education and to provide assistance in cases ofunemployment, old age, sickness and disablement,and in
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other cases of underserved want.Article 43 (3) requires theState to endeavour to secure amongst other things fullH
enjoyment of leisure and social and cultural opportunities. 33. Recall at this stage the Preamble, the floodlight illuminating the path to be pursued by the State to set upa Sovereign Socialist Secular Democratic Republic. Expression 'socialist' was intentionally introduced in the
Preamble by the Constitution (Forty-Second Amendment)
Act, 1976. In the Objects and Reasons for amendment
amongst other things, ushering in of socio-economic
67
revolution was promised. The clarion call may be extracted: .
"The question of amending the Constitution P for removing the difficulties which have arisen in ach . ieving the objective of socio-economic revolution, which would end poverty and ignorance and disease f an d Hinequality ofopportunity, has been engaging the active attention of Government and the public for s om o e time... ... ..It is, therefore, propos t ed to amend the Constitutionto spell out expressly the high ideals of socialism... .. .. ..to make the u dir r ective principles morecomprehensiv o e.. ... ... ..."What does a Socialist Republic imply? Socialism isa mu C ch misunderstood word. Values determinecont emporary socialism pure and simple. But it is not h necessary at this stage to go into all its ramifications. Theprincipal aim of a socialist State is to eliminate inequality
ig in income and status and standards of life. Thebasicframework of socialism is to provide a decent standard of H
life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitabledistribution of income. This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism.
During the formative years, socialism aims at providing
all opportunities for pursuing the educational activity. For
want of wherewithal or financial equipment the
68
opportunity to be fully educated shall not be denied. Ordinarily, therefore, a socialist State provides for free .
education from primary to Ph. D. but the pursuit m . us P t beby those who have the necessary intelligent quotient and not as in our society where a brainy young man coming
from a poor family will not be able to pHrosecute the
education for want of wherewitha o l whi f le the ill equippedson or daughter of a well to do father will enter the portals of higher education t a nd contribute to nationalwastage. After the educa r tion is completed, socialism aimsat equality in pursu u it of excellence in the chosen avocationwithout let or o hindrance of caste, colour, sex or religionand with full opportunity to reach the top not thwarted byany co C nsiderations of status, social or otherwise. Buteven here the less equipped person shall be assured a h decent minimum standard of life and exploitation in anyform shall be eschewed. There will be equitable
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distribution of national cake and the worst off shall betreated in such a manner as to push them up the ladder. H
Then comes the old age in the life of everyone, be he a monarch or a mahatma, a worker or a pariah. The old age overtakes each one, death being the fulfilment of lifeproviding freedom. from bondage. But here socialism aims at providing an economic security to those who have
rendered unto society what they were capable of doing
when they were fully equipped with their mental and
physical prowess. In the fall of life the State shall ensure
69
to the citizens a reasonably decent standard of life, medical aid, freedom from want, freedom from fear and .
the enjoyable leisure, relieving the boredom and P the humility of dependence in old age. This is what Arti . cle 41 aims when it enjoins the State to secure public assistance in old age, sickness and disablemen f t. It Hwas such asocialist State which the Preamb o le directs the centres ofpower Legislative, Executive and Judiciary to strive to set up. From a wholly feudal t exp loited slave society to avibrant, throbbing socia r list welfare society is a longmarch but during u this journey to the fulfilment of goalevery State a o ction (illegible) taken must be directed, andmust be so interpreted, as to take the society one steptoward C s the goal.24. T h heir L ordships of the Hon'ble Supreme Court in SanjeevCoke M g anufacturing Company Vs. M/s. Bharat Coking Coal Ltd.And a i nother, AIR 1983 Supreme Court 239 have held that the broad H egalitarian principle of social and economic justice for all was implicit in every Directive Principle and, therefore, a law designed to promote a Directive Principle, even if it came into conflict with the formalistic and doctrinaire view of equality before the law, would most certainly
advance the broader egalitarian principle and the desirable
70
constitutional goal of social and economic justice for all. Their
.
Lordships have held as under:
"16. While we broadly agree with muc . h tPhat has been said by Bhagwati J. in the extracts a H bove quoted,we do not think that those observations r f eally advance, Mr.Sen's contention. To accept the submission of Shri Sen that a law founded on discrimination i o s not entitled to theprotection of Article 31-C, as such a law can never be said tobe to further the directive p r rinc t iple affirmed in Article 39 (b),would indeed be, to use a hackneyed phrase, to put the cart before the horse. If t u he law made to further the directiveprinciple is nece o ssarily non-discriminatory or is based on areasonable classification, then such law does not need any protect ion C such as that afforded by Art. 31-C. Such lawwould be valid on its own strength, with no aid from Art. 31-C h . To make it 2 condition precedent that a law seeking the g haven of Art. 31-C must be non-discriminatory or based on i
reasonable classification, is to make Article 31-C H
meaningless. If Article 14 is not offended, no one need give any immunity from an attack based on Art. 14. Bhagwati J. did not say anything to the contrary. On the other hand, itappears to us, he was, at great pains to point out that thebroad egalitarian principle of social and economic justice for all was implicit in every Directive Principle and, therefore, a
law designed to promote a Directive Principle, even if it came
into conflict with the formalistic and doctrinaire view of
71
equality before the law, would most certainly advance the broader egalitarian principle and the desirable constitutional .
goal of social and economic justice for all. If the law w P as aimed. at the broader egalitarianism of the Di . rective Principles, Article 31-C protected the law from needless, unending and rancorous debate on the quest ionH whether the law contravened Article 14's concep o t of e f quality before thelaw. That is how we understand Bhagwati J.'s observations. Never for a mom t ent did Bhagwati, J. let in byanother door the very controversy which was shut out by Article 31-C. Of cou u rse, r the law seeking the immunityafforded by Art o . 31-C must be a law directing the policy ofthe State towards securing a Directive Principle. Here, weare conte C nt to use the very words of Article 31-C. While weagree w ith Bhagwati, J. that the object of the law must be tog h ive effect to the Directive Principle and that the connectionwith the Directive Principle must not be 'some remote or
ig tenuous connection', we deliberately refrain from the use ofthe words 'real and substantial', 'dominant', 'basically and H
essentially necessary' and 'closely and integrally connected', lest anyone chase after the meaning of these expressions, forgetting for the moment the words of thestatute, as happened once when the words 'substantial and compelling reasons' were used in connection with appeals
against orders of acquittal and a whole body of literature
grew up on what were 'substantial and compelling reasons'.
As We have already said, we agree with much that has
72
been said by Bhagwati J. and what we have now said about the qualifying words is only to caution ourselves .
against adjectives getting the better of the noun. Adjecti P ves are attractive forensic aids but in matters of interpre . tation they are diverting intruders. These observations have the full concurrence of Bhagwati, J."
f H
25. Their Lordships of the Hon'b t le Su o preme Court in AtamPrakash Vs. State of Haryana and o r thers (1986) 2 Supreme CourtCases 249 have held that the implication of introduction of the word 'socialist' into the Preamble o of th u e Constitution is clearly to set up avibrant throbbing socialist welfare society". Court must strive to give such an interpretat ion C as will promote the march and progress towardsa Socialistic D h emocratic State. Their Lordships have held as under: g "12. A scrutiny of the list of persons in whose i
favour the right of pre-emption is vested under S.. 15reveals certain glaring facts which appear to detract from
H
the theory of preservation of the integrity of the family and the theory of agnatic fight of succession. First we notice that neither the father nor the mother, figures in the listthough the father's brother does. The son's daughter and the daughter's daughter do not appear though the son's
son and the daughter's son do.. The sister and the sister's
son are excluded though the brother and the brother's son
are included. Thus relatives of the same degree are
73
excluded either because they are women or because they are related through women. It is not as if women and those .
related through women are altogether excluded beca P use the daughter and daughter's son are included. . If the daughter is to be treated on a par with the son. and the daughter's son is treated on a par with th eH son's son it does not appear logical why the o fath f er's son (brother)should be included and not the father's daughter (sister).These are but a few of the t intrinsic contradictions thatappear in the list of relativ r es mentioned in S. 15 as entitledto the right of pre-emption. It is ununderstandable why a son's daughter, a daughter's daughter, a sister or a sister's
son should have no ruight of pre-emption whereas a father's
brother's son h o as that right. As S. 15 stands, if the sole
owner of C a property sells it to his own father, mother,sister, sister's son, daughter's daughter or son's daughter,t h he sale can be defeated by the vendor's father's brother's g son claiming a right of pre-emption.26.
i
Their Lordshisps of the Hon'ble Supreme Court in Sodan H Singh and others Vs. New Delhi Municipal Committee and others (1989) 4 Supreme Court Cases 155 have held that though in view of theinclusion of the word "socialist" in the Preamble of the Constitution by the 42ndAmendment greater concern must be shown to improve the
condition of the poor population in the country, and every effort should
be made to allow them as much benefit as may be possible, but that by
74
itself cannot remedy all the problems arising from poverty. Even the
.
Constitution as it stood originally was committed to economic justice and welfare of the needy, but for that reason either then or no . wP the other provisions of the Constitution and the laws cannot H be ignored. Their Lordships have held as under:
"22. On behalf of some of o the fpetitioners it wascontended that in view of the inclusion of the word
"socialist" 'in the Pre r am t ble of the Constitution by the42nd Amendm u ent greater concern must be shown toimprove " the condition of the poor population in thecountry, o and every effort should be made to allowthem as much benefit as may be possible. There caC nnot be any quarrel with this proposition, but thatby itself cannot remedy all the problems arising from h
poverty. Even the Constitution as it stood originally g
was committed to economic justice and welfare of the i
needy. But for that reason either then or now theother provisions of the Constitution and the laws
H
cannot be ignored. It is therefore, not possible to interpret thedecision inOlga Tellis (AIR1986 SC 180) in the manner suggested on behalf of thepetitioners to bolster their case with the aid of Art.
21.
75
27. Their Lordships of the Hon'ble Supreme Court in D.V.
.
Kapoor Vs. Union of India and others, AIR 1990 Supreme Court 1 P 923 have held that the measure of deprivation of pension therefore, m . ust be correlative to or commensurate with the gravity of the grave H misconduct or irregularity as it offends the right to assistance at f the evening of his life as assured under Article 41 of the Con stitution. Their Lordshipshave held as under: o
"6. As seen thet exercise of the power by the President is h u edgedr with a condition precedent thata finding o should be recorded either in departmentalenquiry or judicial proceedings that the pensionerco C mmitted grave misconduct or negligence in the discharge of his duty while in office, subject of the h
charge. In the absence of such a finding the g
President is without authority of law to impose i
penalty of withholding pension as a measure ofpunishment either in whole or in part permanently or
H for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs. 60/-.7. Rule 9 of the rules empowers the President only to withhold or withdraw pension
permanently or for a specified period in whole or in
part or to order recovery of pecuniary loss caused to
the State in whole or in part subject to minimum.
76
The employee's right to pension is a statutory right. The measure of deprivation therefore, must he .
correlative to or commensurate with the gravity P of the grave misconduct or irregularity as i H t offen . ds theright to assistance at the evening of his life asassured under Art. 41 of the Constitution. The impugned order discloses o tha f t the Presidentwithheld on permanent basis the payment ofgratuity in addition to t pension. The right to gratuityis also a statutory r right. The appellant was notcharged with nor was given an opportunity that his gratuity wou u ld be withheld as a measure of
punishm o ent. No provision of law has been brought too C ur notice under which, the. President is empowered to withhold gratuity as well, after his retirement as h
a measure of punishment. Therefore, the order towithhold the gratuity as a measure of penalty is
ig
obviously illegal and is devoid of jurisdiction." H 28. Their Lordships of the Hon'ble Supreme Court in Kerala Hotel and Restaurant Association and others Vs. State of Kerala and others (1990) 2 Supreme Court Cases 502 have held that the expression 'socialist' was intentionally introduced in the Preamble by
the Constitution (Forty-second Amendment) Act, 1976 with the
principal aim of eliminating inequality in income and status and
77
standards of life. The emphasis on economic equality in our socialist
.
welfare society has to pervade all interpretations made in the con . tex P t ofany challenge based on hostile discrimination. Their Lordships have held as under:
H
"5 The preamble to the Co f nst itution containsthe solemn resolve to secure o to all its citizens, interalia, economic and social justice along with equality of status and opportun t ity . The expression 'socialist'was intentionally introduced in the preamble by the
Constitution u (Fortyr-Second Amendment) Act, 1976with th o e principal aim of eliminating inequality inincome and status and standards of life. Theemphasis on economic equality in our socialist wC elfare society has topervade all interpretations h made in the context of any challenge based ong
hostile discrimination. It is on the altar of this i
vibrant concept in our dynamic constitution that theattack based on hostile discrimination in the H
present case must be tested when the legislature intended to rest content with placing the tax burden only on the haves excluding the have-nots from thetax net for satisfying the tax need from this source. The reasonableness of classification must be
examined on this basis when the object of the
taxing provision is not to tax sale of all cooked food
and thereby tax everyone but to be satisfied with
78
the revenue raised by taxing only the sale of costlier food consumed by those who can bear the burden."
.P
tax .
29. Their Lordships of the Hon'ble Supreme Court H in Narendra Kumar Maheshwari Vs. Union of India and oth f ers , 1990 (Supp) Supreme Court Cases 440 have held that self o made rule can become enforceable on the application of persons t if it was shown that it had created legitimate expectation in their r minds that the authority would abide by such a policy/guideline u . Where such guidelines are intended to clarify or implement the o conditions and requirements precedent to the exercise of certain rights conferred in favour of citizens or persons and a deviation t herCefrom directly affects the rights so vested the persons whos h e rights are affected have a clear right to approach the Court i fo g r relief. Sometimes guidelines control the choice of persons H competing with one another for the grant of benefits, largesses or favours and, if the guidelines are departed from without rhyme or reason, an arbitrary discrimination may result which may call forjudicial review. Their Lordships have held as under:
"69. Shri Ganesh submitted that the CCI is duty bound to act in accordance with the guidelines which lay down the princi- ples regulating the sanction of capital
79
issues. This is especially so because the guidelines had been published. It was submitted that the investing public is, .
therefore, entitled to proceed on the basis that the CCI wo P uld act in conformity with the guidelines and would enforce . them while sanctioning a particular capital issue. It was submitted that it is not permissible to deviate from the gHuidelines. In this connection, reliance was placed o by h f im as well as byShri Haksar, appearing for the pet itioner in T.C. No. 161/88,upon the observations of this t Court inRamanna DayaramShetty v. International Airpo r rt Authority, [1979] 3 SCR 10 14,where this Court obs u erved that it must be taken to be thelaw that where o the Government is dealing with the public,whether by way of giving jobs or entering into contracts orissuing qu C otas or licence or granting other forms of largess,the gov ernment could not act arbitrarily at its sweet will and,lik h e a private individual, deal with any persons it please, butits action must be in conformity with standard or norm which
igis not arbitrary, irrational or irrelevant. We accept theposition that the power of discre- tion of the government in H
the matter of grant of largess including award of jobs, contracts, quotas, licences etc. must be confirmed and structured by rational, relevant and nondiscriminatorystandard or norm and if the government departed from such standard or norm in any particular case or cases, the action
of the government would be liable to be struck down, unless
it could not be shown by the government that the departure
was not arbitrary but was based on some valid principle
80
which in itself was not irrational, irrele- vant, unreasonable or discriminatory. Mr. Haksar drew our attention to the .
observations of this Court in the case ofMotilal Padam P pat Sugar Mills v. Uttar Pradesh, [1979] 2 SCR 641, whe . re this Court reiterated that claim of change of polic y w H ould not besufficient to exonerate the government from the liability; the government would have to show w o hat f precisely was thechanged policy and also its reaso n and justification so thatthe Court could judge for itself t which way the public interestlay and what the equity r of the case demanded. It wascontended by Shri Haksar that there were departures from the guidelines a o nd th u ere was no indication as to why suchdepartures had been made.106. It may, however, be stated that being not
statuto ry C in character, these guidelines are not enforceable.S h ee the observations of this Court inFernandez v. State ofMysore, [1967] 3 SCR 636: Also see R. Abdullah Rowther v.
ig State Transport, etc., AIR 1959 SC 896; Dy.Asst. Iron & SteelController v. Manekchand Proprietor, [1972] 3 SCR 1; Andhra H
Industrial Work v. CCI & E, [1975] 1 SCR 321; K.M. Shanmugham v. S.R.V.S. Pvt. Ltd., [1964] 1 SCR 809). A policy is not law. A statement of policy is not a prescriptionof binding criterion. In this connection, reference may be made to the observations of Sagnata invest- ments Ltd. v.
Norwich Corpn., [1971] 2 QB 614 and p. 626. Also the
observations in British Oxygen Co. v. Board of Trade, [1971]
AC 6 10. See also Foulkes' Administrative Law, 6th Ed. at
81
page 18 1-184. In Ex. P. Khan, [1981] 1 All E.R. page 40, the court held that a circular or self made rule can become .
enforceable on the application of persons if it was sho P wn that it had created legitimate expectation in their mind . s that the authority would abide by such a policy/guideline. However, the doctrine of legitimate expec- tati onH applies only when a person had been given rea o son t f o believe that theState will abide by the certain p olicy or guideline on thebasis of which such applicant t might have been led to takecertain actions. This doct r rine is akin to the doctrine ofpromissory estoppel. u See also the observa- tions of LordWilberforce in IR o C v. National Federation, [1982] AC 617).However, it has to be borne in mind that the guidelines onwhich th C e petitioners have relied are not statutory incharact er. These guidelines are not judicially enforceable.Th h e competent authority might depart from these guidelineswhere the proper exercise of his discretion so warrants. In
igthe present case, the statute provided that rules can bemade by the Central Government only. Further- more, H
according to Section 6(2) of the Act, the competent authority has the power and jurisdiction to condone any deviation from even the statutory requirements prescribedunder Sections 3 and 4 of the Act. In Regina v. Preston Supplementary, [1975] 1 WLR p. 624 at p. 631, it had been
held that the Act should be administered with as little
technicality as possible. Judicial review of these matters,
though can always be made where there was arbitrariness
82
and mala fide and where the purpose of an authority in exercis- ing its statutory power and that of legislature in .
confer- ring the powers are demonstrably at variance, sho P uld be exercised cautiously and soberly.
.
107. We would also like to refer to one more aspect of the enforceability of the guidelines by pers f ons inH the positionof the petitioners in these cases. Gu o idelines are issued byGovernments and statutory authorities in various types of situations. Where such guidelines are intended to clarify or
implement the conditions and r t equirements precedent to the
exercise of certain rig u hts c r onferred in favour of citizens orpersons and a d o eviation therefrom directly affects the rightsso vested the persons whose rights are affected have a clearright to ap C proach the court for relief. Sometimes guidelinescontrol the choice of persons competing with one another forth h e grant of benefits largesses or favours and, if the guide-lines are departed from without rhyme or reason, an arbi-
ig trary discrimination may result which may call for judicialreview. In some other instances (as in the Ramanna Shetty, H
case), the guidelines may prescribe certain standards or norms for the grant of certain benefits and a relaxation of, or departure from, the norms may affect persons, not direct- lybut indirectly, in the sense that though they did not seek the benefit or privilege as they were not eligible for it on the
basis of the announced norms, they might also have entered
the fray had the relaxed guidelines been made known. In
other words, they would have been potential competitors in
83
case any relaxation or departure were to be made. In a case of the present type, however, the guidelines operate in a .
totally different field. The guidelines do not affect or regu P late the right of any person other than the company apply . ing for consent. The manner of application of these guidelines, whether strict or lax, does not either directl y Hor indirectly, affect the rights or potential rights o o f any f others or deprivethem, directly or indirectly, of any advantages or benefits towhich they were or would have t been entitled. In this context,there is only a very limited r scope for judicial review on theground that the guide u lines have not been followed or havebeen deviated fr o om. Any member of the public can perhapsclaim that such of the guidelines as impose controls intendedto safegua C rd the interests of members of the public investingin such public issues should be strictly enforced and not d h eparte d from departure therefrom will take away theprotection provided to them. The scope for such challenge
igwill necessarily be very narrow and restricted and willdepend to a considerable extent on the nature and extent of H
the deviation. For in- stance, if debentures were issued which provide no security at all or if the debt-equity ratio is 6000:1 (as alleged) as against the permissible 2:1 (orthereabouts) a Court may be persuaded to interfere. A Court, however, would be reluctant to interfere simply because one
or more of the guidelines have not been adhered to even
where there are substantial deviations, unless such
deviations are, by nature and extent such as to prejudice the
84
interests of the public which it is their avowed object to protect. Per contra, the Court would be inclined to perhaps .
overlook or ignore such deviations, if the object of the sta P tute or public interest warrant, justify or neces H sitate . suchdeviations in a particular case. This is beca use guidelines,by their very nature, do not fall into f the category oflegislation, direct, subordinate or ancillary. They have only an advisory role .to play and non -ad o herence to or deviationfrom them is necessarily and t implicitly permissible if thecircumstances of any particu- lar fact or law situation warrants the same. J u udicia r l control takes over only wherethe deviation either involves arbitrariness or discrimination
or is so fundame o ntal as to undermine a basic public purposewhich the C guidelines and the statute under which they areissued are intended to achieve.
30. T h heir Lordships of the Hon'ble Supreme Court in
Comm i is g sioner of Income Tax, Bangalore Vs. Vasudeo V. Dempo, H 1993 Supp (1) Supreme Court Cases 612 have held that circulars issued by department (Wealth Tax) normally meant to be followed and accepted by the authorities. Their Lordships have held as under: "5. We have heard learned Counsel for the parties at length. We do not propose to express any
considered opinion as learned Counsel appearing for
the Department fairly accepted that the Act had been
amended on April 1, 1989, and what was provided in the
85
circular has how been incorporated in the Schedule itself. That lends support to the view taken by the High .
Court. Further, the Department; as is clear from P the circular, at all points of time, intended that H the sp . ousesin Goa should be treated as individuals and grantedexemption accordingly. We, however, consider it necessary to observe that the circula f rs issued by the
Department are normally meant to be followed and
accepted by the authorities. W o e do not find any
justification for the office r rs not following it nor was theDepartment justified in purtsuing the matter further inthis Court."
u
31. Their Lordship o s of the Hon'ble Supreme Court in
Consumer Educat ion C & Research Centre and others Vs. Union ofIndia and oth h ers (1995) 3 Supreme Court Cases 42 have held that thejurispru g dence of personhood or philosophy of the right to life envisagedunder i Article 21, envisages its sweep to encompass human personality
Hin its fullblossom with invigorated health whichis awealthto the workman to earn his livelihood, to sustain the dignity of person and tolive a life with dignity and equality. Their Lordships have further held that right to health and medical care to protect his health and vigour
while in service or post retirement is a fundamental right of a worker
under Article 21, read with Articles 39(e), 41, 43, 48-A and all related
86
articles and fundamental human rights to make the life of the workman
.
meaningful and purposeful with dignity of person. Their Lordships have held as under:
.P
21. Article 38(1) lays down the foundation for human rights and enjoins the State to Hpromote the welfare of the people by securing f and protecting, as effectively as it may, a soc ial o order in which justice,social, economic and p t olitical, shall inform all theinstitutions of the nat r ional life. Art 46 directs the Stateto protect the p u oor from social injustice and all formsof exploitation. Article 39(e) charges that the policy of the State s o hall be to secure "the health and strength ofthe C workers". Article 42 mandates that the Statess hall make provision, statutory or executive "to secure h just and humane conditions of work". Article 43directs that the State shall "endeavour to secure to all
ig
workers, by suitable legislation or economicorganisation or any other way to ensure decent H
standard of life and full enjoyment of leisure and social and cultural opportunities to the workers". Article 48-A enjoins the State to protect and improvethe environment. As human resources are valuable national assets for peace, industrial or material
production, national wealth, progress, social stability,
decent standard of life of worker is an input. Art 25(2)
of the universal declaration of human rights ensures
87
right to standard of adequate living for health and well being of the individual including medical care, .
sickness and disability. Article 2(b) of the Internatio P nal Convention on Political, Social and Cultural . Rights protects the right of worker to enjoy just and favourable conditions of work ensu rinHg safe and healthy working conditions.
f
22. The expression 'l o ife' assured in Art.21 ofthe Constitution does t not connote mere animalexistence or continue r d drudgery through life. It has amuch wider u meaning which includes right tolivelihood, o better standard of life, hygienic conditionsin work place and leisure. In Olga Tellis v. BombayMu C nicipal Corporation, (1985) 3 SCC 545 : (AIR 1986S C 180), this Court held that no person can live h without the means of living i.e. means of livelihood. Ifthe right to livelihood is not treated as a part of the
ig
constitutional right to life, the easiest way of deprivinga person of his right to life would be to deprive him of H
his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content of meaningfulness but it would makelife impossible to live, leave aside what makes life liveable. The right to life with human dignity
encompasses within its fold, some of the finer facets
of human civilisation which makes life worth living.
The expanded connotation of life would mean the
88
tradition and cultural heritage of the persons concerned. In State of H.P. v.Umed Ram Sharma, .
(1986) 2 SCC 68 : (AIR 1986 SC 847), this Court h P eld that the right to life includes the quality of l . ife as understood in its richness and fullness by the ambit ofthe Constitution. Access to road w f as heHld to be anaccess to life itself in that State."
32. Their Lordships of the Hon'b t le Suopreme Court in SurjitSingh Vs. State of Punjab and others r AIR 1996 Supreme Court 1388 have held as under:
u
"It is otherwis o e important to bear in mind that selfpreservat C ion of ne's life is the necessary con-concomitant ofthe rig ht to life enshrined in Article 21 of the Constitution ofIn h dia, fundamental in nature, sacred, precious andinviolable. The importance and validity of the duty and right
ig to self defence in criminal law. Centuries ago thinkers of thisGreat land conceived of such right had recognised it.H
Attention can usefully be drawn to verses 17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine."
"5.
33. Their Lordships of the Hon'ble Supreme Court in Director General of Posts and others Vs. B. Ravindran and another (1997) 1
89
Supreme Court Cases 641 have held that the intention behind the
.
orders issued in 1963, 1964, 1978 and 1983 was to give some more benefit to the re-employed pensioners/ex-servicemen. The effect . ofP the benefit was to be given at a stage prior to the considerati on H of hardship.Their Lordships have further held that under these c f ircumstances, theGovernment could not have, under the guise of a clarificatory order, taken away the right which had acc t rue do to such re-employedpensioners with retrospective effect by r declaring that while consideringhardship the last pay drawn a u t the time of retirement was to becompared with the initial p o ay plus pension whether ignorable or not.The 1985 clarificatory C instructions were not only inconsistent with therelevant provisions of the Civil Service Regulations and the 1978 and1983 orders but its effect was to supersede the said provision and the orders. T g heir hLordships have held as under: i
"15. However it was submitted by the learned H
counsel for the appellants that the orders which were issued in 1963, 1964,1978 and 1983 did not deal with the aspect of hardship and were not intended to replaceor change the basic policy contained in the 1958instructions. They were intended as relaxations and, therefore, they cannot be said to have the effect of
altering or modifying the 1958 policy. When the entire
pension was made ignorable in the case of personnel
90
below Commissioned Officers rank the position substantially changed and therefore the Government .
was obliged to clarity that as contemplated by the 19 P 58 instructions hardship is to be seen from the . point whether pay plus pension plus pension equivalent of gratuity (whether ignorable or not) wa f s l ess H than the etime of retirement. What the Government thereby did was to reiterate that it there o was no hardship noadvance increment should be granted. What is overlooked by the learned c t ou nsel is that he intentionbehind the orders issued in 1963, 1964, 1978 and 1983 was to give some u morer benefit to the re-employedpensioner/ex-se o rvicemen. The effect of the benefit was tobe given at a stage prior to the consideration ofhardship C . The ignorable part of the pension was to beignore d while totalling up the initial pay plus thep h ension in order to find out whether the retiredpensioner thereby was likely to get more or less than
ig what he was getting at the time of the retirement. Tothat the 1958 policy stood altered or modified. Though H
the said four order did not directly deal with the aspect of hardship they did by widening the gas between the initial pay plus the non-ignorale part of the pension andthe pay he drew before his retirement and therebyfurther necessitated giving of advance increments to alleviate hardship. It is, therefore, not correct to say that
those orders had no concern with the aspect of hardship.
What the contention raised on behalf of the appellants
further overlooks is that pursuant to the orders issued in
91
1963 and 1964 corresponding amendments were made in Articles 521 and 526 of Civil Service Regulations. The .
said Regulations were some time prior to 1914 and h P ad acquired statutory authority under Section 96-B . (4) of the government of India Act, 1919 and H have beencontinued in force by virtue of Article 313 of the Constitution. They are, therefore. sta f tut ory in nature.
After its amendment in 1964 it r ea o d as under:-"526(a) .... .... ....(b) .... .... ....
(c) In case of service p r erstonnel who retire from theForces before attai u ning the age of 55 and are re- em-ployed in civil o posts on or after 16th January 1964 thepension shown below shall be ignored in fixing theirpay on re-employment-
(i) in th C e case of pensions not exceeding Rs. 50 Per h mensem, the actual pension;(ii) In other case the first Rs. 50 of the pension.
ig16.The subsequent orders issued in 1978 and1983 were supplementary in nature and did have aH
binding force. Under these circumstances, the Government could not have, under the guise of a clarificatory order, taken away the right which hadaccrued to such re-employed pensioners withretrospective effect by declaring that while considering hardship the last pay drawn at the time or retirement
was to be compared with the initial pay plus pension
whether ignorable or not. The 1985 clarificatory
instructions were not only in consistent with the
92
relevant provisions of the Civil Service Regulations and the 1978 and 1983 orders but its effect was to .
supersede the said provision and the orders. P The Tribunal was, therefore, right in holding the . said instructions in so far as it directed to take into consideration the ignorable part of f the p H ension alsowhile considering hardship invalid and without any authority of law. These appeals are, therefore, dismissed
with no order as to costs.
o
34. Their Lordships of the Hon r 'blet Supreme Court in Samatha
Vs. State of A.P. and others (19 u 97) 8 Supreme Court Cases 191 have held that it is an establish o ed rule of interpretation that to establish Socialist Secular Democratic Republic, the basic structure under the rule of law, pra gmCatic, broad and wide interpretation of the Constitution h makes social and economic democracy with liberty, equal i ity g of opportunity, equality of status and fraternity a reality to "we, H the people of India", who would include the Scheduled Tribes. All State actions should be to reach the above goal with this march under rule of law. Their Lordships have further held that it is necessary to considerat this juncture the meaning of the word "socialism" envisaged in the Preamble of the Constitution. Establishment of the egalitarian social
order through rule of law is the basic structure of the Constitution. The
Fundamental Rights and the Directive Principles are the means, as two
93
wheels of the chariot, to achieve the above object of democratic
.
socialism. The word "socialist" used in the Preamble must be read from the goals Articles 14, 15, 16, 17,21, 23, 38, 39, 46 and all other co . gnPate articles seek to establish, i.e., to reduce inequalities in H income and status and to provide equality of opportunity and f acilities. Their Lordships have held as under: f
"52. The word 'person' in tohe interplay of juristic thought is either natural or ar t tificial. Natural persons are human beings while artifi r cial persons are Corporations. Corporations are either Corporation aggregate or Corpora-tion sole. Inu "English Law" by Kenneth Smith and Denis Kee o nan (Seventh Edition) at page 127, it is stated th C at "(L)egal personality is not restricted tohuman beings. In fact various bodies and associations ofp h ersons can, by forming a corporation to carry out their g functions, create an organisation with a range of rights i
and duties not dissimilar to many of those possessed byhuman beings. In English law such corporations are H
formed either by charter, statute or registration under the Companies Acts; there is also the common law concept of the Corporation Sole". At page 163, it isfurther stated that "(T) he Crown is the executive head inthe United Kingdom and Commonwealth, and government departments and civil servants act on behalf
of the Crown", In "Salmond on Jurisprudence" by P.J.
Fitzgerald (Twelfth Edition), at page 66, it is stated that
"(A) legal person is any subject- matter other than a
94
human being to which the law attributes personality. This extension, for good and sufficient reasons, of the concep- .
tion of personality beyond the class of human being P s is one of the most noteworthy feats of H the . legalimagination....". At page 72, it is further amplified that"(T)he King himself, however, is in law no mere mortalman. He has a double capacity, being n f ot only a natural person, but a body politic, that is to say, a corporation
sole. The visible wearer of th t e crow o n is merely the livingrepresentative and agen r t for the time being of thisinvisible and underlying persona ficta, in whom by lawthe powers and pre u rogatives of the government of thisrealm are vest o ed". In "Jurisprudence" by R.W.M. Dias(Fifth Edition), at page 265, it is stated that".... the valueof person C ifying group activities is further reduced by thefact th at courts have evolved ways of dealing with suchac h tivities without resorting to the device of persona".79. It is necessary to consider at this juncture
igthe meaning of the "socialism" envisaged in thePreamble of the Constitution. Establishment of theH
egalitarian social order through rule of law is the basic structure of the Constitution. The Fundamental Rights and the Directive Principles are the means, as twowheels of the chariot, to achieve the above object ofdemocratic socialism. The word "socialist" used in the Preamble must be read from the goals Articles 14, 15,
16, 17, 21, 23, 38, 39, 46 and all other cognate Articles
seek to establish, i.e., to reduce inequalities in income
and status and to provide equality of opportunity and
95
facilities. Social justice snjoins the Court to uphold government's endeavour to remove economic .
inequalities, to provide decent standard of living to P the poor and to protect the interest of the wea H ker se . ctionsof the society so as to assimilate all the s ections of thesociety in the secular integrated socialist Bharat withdignity of person and equality of status f to all.
107. It is an established r ule o of interpretation thatto establish Socialist Secula t r Democratic Republic, thebasic structure under th r e rule of law, pragmatic broadand wide interpretation of the Constitution makessocial and economi u c democracy with liberty, equality ofopportunity, e o quality of status and fraternity a reality to"we, the people of india", who would include theSchedul C ed Tribes. All State actions should be to reachthe a bove goal with this march under rule of law. The h interpretation of the words 'person' 'regulation' and'distribution' require to be broached broadly to
ig elongate socio-economic justice to the tribals. The word'regulates' in para (2)(b) of the Fifth Schedule to the H
Constitution and the title of the Regulation would not only control allotment of land to the Tribes in Scheduled area but also prohibits transfer of private orGovernment's land in such areas to the non-tribals.While later clause (a) achieves the object of prohibiting transfer inter vivos fay tribals to the non-tribals or non-
tribals inter se, the first clauses includes the State
Government or being an juristic person integral scheme
of para 5(2) of Schedule, The Regulation seeks to
96
further achieve the object of declaring with a presumptive evidence that the land in the Scheduled .
Areas belongs to the Scheduled Tribes and any trans P fer made to a non-tribal shall always be deemed to . have been made by a tribal unless the transferee establish the contra. It also prohibits transfer of the H land in any form known to law and declared such f tr ansfer as void except by way of testamentary di o sposition by a tribal tohis kith and kin/tribal or by partition among them. The regulation and its predeces t sor law in operation in therespective areas regulate transfer between a tribal and non-tribal with pr u ior prermission of the designatedofficer as a condition precedent to prevent exploitation of the tribals. o If a tribal is unwilling to purchase landfrom a C non-tribal, the State Government is enjoined topurch ase the land from a non-tribal as per the h principles set down in the regulations and to distributethe same to a tribal or a cooperative society composed
ig solely of tribals." H 35. Their Lordships of the Hon'ble Supreme Court in AIR India Statutory Corporation and others Vs. United Labour Union and others (1997) 9 Supreme Court Cases 377 have held that Preamble of the Constitution, as its integral part, is designed to realize socio-
economic justice to all people including workmen, harmoniously
blending the details enumerated in the Fundamental Rights and the
97
Directive Principles. The Act is a social welfare measure to further the
.
general interest of the community of workmen as opposed to the particular interest of the individual entrepreneur. Their Lordship . s hPave held as under:
H
"14. As noted, the appellant, to sta rt with, was a statutory authority but pending appeal in f this Court, due to change in law and in order to b t e in t o une with open economy,it became a company registered under the Companies Act.To consider its sweep on r the effect of Heavy Engineeringcase (AIR 1970 SC 8 u 2) on the interpretation of the phrase"appropriate Go o vernment", it would be necessary torecapitulate the Preamble, Fundamental Rights (Part III) andDirective C Principles (Part IV) - trinity setting out theconscie nce of the Constitution deriving from the source "We,th h e people", a charter to establish an egalitarian social order g in which social and economie justice with dignity of person i
and equality of status and opportunity, are assured to everycitizen in a socialist democratie Bharat Republic. The H
Constitution, the Supreme law heralds to achieve the above goals under the rule of law. Life of law is not logic but is one of experience. Constitution provides an enduring instrument,designed to meet the changing needs of each succeeding generation altering and adjusting the unequal conditions to
pave way for social and economie democracy within the
spirit drawn from the Constitution. So too, the legal redressal
within the said parameters. The words in the Constitution or
98
in an Act are but a frame work of the concept which may change more than the words themselves consistent with the .
march of law. Constitutional issues require interpreta P tion broadly not by play of words or without the accepta . nce of the line of their growth. Preamble of the Constitution, as its integral part, is designed to realise socio-e f con omHic justice toall people including workmen, harmoniously Wending the details enumerated in the Fund am o ental Rights and theDirective Principles. The Act is social welfare measure to further the general interest r of t t he community of workmen asopposed to the pa u rticular interest of the individualentrepreneurs. I o t seeks to achieve a public purpose, i.e.,regulated conditions of contract labour and to abolish itwhen it is C found to be of perennial nature etc. The individualinterest can, therefore, no longer stem the forward flowingti h de and must, of necessity give way to the broader publicpurpose of establishing social and economie democracy in
ig which every workman realises socio-economic justiceassured in the Preamble, Arts. 14, 15 and 21 and theH
Directive Principles of the Constitution. 36. Their Lordships of the Hon'ble Supreme Court in NagaPeople's Movement of Human Rights Vs. Union of India (1998) 2 Supreme Court Cases 109 have held that executive instructions issued
to fill up the gaps in statutory provisions have binding force. Their
Lordships have held as under:
99
"56. In State of Uttar Pradesh v. Chandra Mohan Nigam & Ors., 1978 (1) SCR 521, this Court, while consider P ing .the validity of Rule 16(3) of the All India Se . rvices(Death- Cum-Retirement Benefits) rules, 1958, which empowered the Central Government to compulsorily
retire a member of the All India Serv f ice , t H ook note ofthe instructions issued by the Gov o ernment and observed:- "Since rule 16(3) itself does not contain any guidelines, directions or r crit t eri a, the instructions issuedby the Government furnish an essential and salutary procedure for the p u urpose of securing uniformity in ap-plication of the o rule. These instructions really fill up theyawing gaps in the provisions and are embedded in theconditio C ns of service. These are binding on the Govern-ment and cannot be violated to the prejudice of the Gov-e h rnment servant." [p. 531] 57. In Supreme Court Advocates-On-Record As-
ig sociation & Ors. v. Union of India, 1993 (4) SCC 441,one of us, Verma j., as the learned Chief Justice then H
was, speaking for the majority, after pointing out that in actual practice, the real accountability in the matter of appointments of superior Judges is of the Chief Justiceof India and the Chief Justice of the High Courts and notof the executive, has said :-
"If that is the position in actual practice of the constitutional provisions relating to the appoint- ments of the superior judges, wherein the executive it- self holds out that it gives primacy to the opinion of the
100
Chief Justice of India, and in the matter of accountability also it indicates the pri- mary responsibility of the Chief Justice of India, it stands to reason that the a P ctual
.practice being in conformity with the constitutional scheme, should also be accordedlegal sanction by permissible constitutional interpretation." In the present case, the so called clarification vide. O.M.
dated 20.08.2004 cannot be termed as amendment or s up H ersession of
the earlier O.M. dated 05.06.1998. The real natur f e of O.M. dated
05.06.1998 is that the statutory benefits have b o een made applicable to
the retired Government officials not r r esi t din g in CGHS areas. Rightshave accrued to the retired Gove u rnment officials on the basis of O.M.dated 5.6.1998 and the same could not be taken away on the basis of notification dated 20.08.200 o 4.
37. Their L ord C ships of the Hon'ble Supreme Court in Secretary,H.S.E.B. Vs. S h uresh and others (1999) 3 Supreme Court Cases 601 have heldthat the democratic policy ought to survive with full vigour: socialist status i a g s enshrined in the Constitution ought to be given its full play H and it is in this perspective the question arises-is it permissible in the new millennium to decry the cry of the labour force desirous of absorption after working for more than 240 days in an establishmentand having their workings supervised and administered by an agency within the meaning of Article 12 of the Constitution. The answer
cannot possible be in the affirmative. The law courts exist for the
society and in the event the law courts feel the requirement in
101
accordance with principles of justice, equity and good conscience, the
.
law courts ought to rise up to the occasion to meet and redress the expectation of the people. Their Lordships have further held . tPhat socialism ought not to be treated as a mere concept or an i H deal, but the same ought to be practiced in every sphere of life. Indi a is a Socialist State as the Preamble depicts and the aim of socialismf, therefore, ought to be to distribute the common richness a t nd thoe wealth of the countryin such a way so as to subserve the n r eed and the requirement of thecommon man. Their Lordships ha u ve held as under: "3. Ou o rs is a socialist State as the Preambledepicts a C nd the aim of socialism, therefore, ought to be todistribu te the common richness and the wealth of thecountry in such a way so as to sub-serve the need and the r h eqirement of the common man. Article 39 is a pointer in that g direction. Each clause under the Article specifically fixes i
certain social and economic goal so as to expand the horizon H
of benefits to be accrued to the general public at large. In particular reference to Article 39(a) it is seen that the State ought to direct its policies in such a manner so that thecitizens - men and women equally, have the right of anadequate means of livelihood and it is in this perspective again that the enactment in the statute book as noticed
above (The Contract Labour (Regulation and Abolition) Act
1970) ought to be read and interpreted so that social and
102
economic justice may be achieved and the constitutional directive be given a full play. .
10. Turning attention, however, on to the legislative in P tent in the matter of enactment of the Act of 1970, at th . e first blush itself, it appears that in expression of its intent, the legislature very aptly coined the enactm f en t, Has such, forregulation and abolition of contrac o t labour. Conceptually,engagement of contract labour by itself lends to various abuses and in accordance w ith devout objective as
enshrined in the Constitution t and as noticed herein before,
this enactment has b u een i r ntroduced in the statute book inthe year 1970, t o o regulate contract labour and to provide forits abolition in certain circumstances since prior to such, thefactum of C engagement of contract labour stood be set withexploit ing tendencies and resulted in unwholesome labourp h ractice.18. As noticed above Draconion concept of law is no
ig longer available for the purpose of interpreting a social andbeneficial piece of legislation specially on the wake of the H
new millennium. The democratic polity ought to survive with full vigour: socialist status as enshrined in the Constitution ought to be given its full play and it is in this perspective thequestion arises - is it permissible in the new millennium to decry the cry of the labour force desirous of absorption after
working for more than 240 days in an establishment and
having their workings supervised and administered by an
agency within the meaning of Article 12 of the Constitution -
103
the answer cannot possibly be in the affirmative - the law Courts exist for the society and in the event law Courts feel .
the requirement in accordance with principles of just P ice, equity and good conscience, the law Courts ought rise . up to the occasion to meet and redress the expectation of the people. The expression 'regulation' cannot po ssHibly be read as contra public interest but in the in o terest f of public.
38. Their Lordships of the Hon'ble t Su preme Court in G.B. Pant University of Agriculture and u Tech r nology Vs. State of U.P., AIR2000 Supreme Court 2695 o have held that socialistic concept of thesociety as laid down in Part III and IV of the Constitution ought to be implemented in the tr C ue spirit of the Constitution. Their Lordships haveheld as under h : g "3. There cannot possibly be any doubt that i
socialistic concept of the society as laid down in Part III andIV of the Constitution ought to be implemented in the true
H
spirit of the Constitution. Decisions are there of this Court galore wherein this Court on more occasions than one stated that democratic socialism aims to end poverty, ignorance,disease and inequality of opportunity. In D. S. Nakara's case, (1983) 1 SCC 305 : AIR 1983 SC 130 : (1983 Lab IC 1),
as also lately in Secretary, H.S.E.B. v. Suresh, (1999) 3 SCC
601 : 1999 AIR SCW 892 : AIR 1999 SC 1160 : (1999 Lab IC
104
1323), the same has been well pronounced and we need not dilate on that score any further.
P.
In this case, the plea of financial implication H was re.jectedby the Hon'ble Supreme Court.
39. Their Lordships of the Hon'ble o Su f preme Court in Municipal Corporation of Delhi Vs. Femal e Workers (Muster Roll)and another (2000) 3 Supreme Court Ca t ses 224 have held that a just social order can be achieved only u when r inequalities are obliterated andeveryone is provided what is o legally due. These observations have beenmade by their Lordships of the Hon'ble Supreme Court while interpreting Mater nit C y Benefit Act, 1961 vis-a-vis Article 42 of theConstitution o h f India. Their Lordships have held as under: g "33. A just social order can be achieved only when i
inequalities are obliterated and everyone is provided what islegally due. When who constitute almost half of the segment
H
of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the placewhere they work; they must be provided all the facilities to which they are entitled. To become a mother is the most
natural phenomena in the life of a woman. Whatever is
needed to facilitate the birth of child to a woman who is in
service, the employer has to be considerate and sympathetic
105
towards her and must realise the physical difficulties which a working woman would face in performing her duties at the .
work place while carrying a baby in the womb or w P hile rearing up the child after birth. The Maternity Benef . it Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may ove f rco meH the state ofmotherhood honourably, peaceably, o undeterred by the fearof being victimised for forced abse nce during the pre or post-natal period.
t
40. Their Lordships of t u he H r on'ble Supreme Court in SteelAuthority of India Ltd. an o d others Vs. National Union WaterfrontWorkers and others C (2001) 7 SCC 1 have held the Preamble to theConstitution is the lodestar and guides those who find themselves in agrey area whi h le dealing with its provisions. It is now well settled that ininterpre g ting a beneficial legislation enacted to give effect to the DirectivePrinci i ples of State Policy which is otherwise constitutionally valid, the
H consideration of the Court cannot be divorced from those objectives. Their Lordships have held as under: "9. After the advent of the Constitution of India, theState is under an obligation to improve the lot of the work- force. Article 23 prohibits, inter alia, begar and other similar
forms of forced labour. The Directive Principle of State Policy
incorporated in Art. 38 mandates the State to secure a social
106
order for promotion of welfare of the people and to establish an egalitarian society. Art. 39 enumerates the principles of .
policy of the State which include welfare measures for P the workers. The State policy embodied in Art. 43 mandat . es the State to endeavour to secure, by a suitable legislation or economic organisation or in any other way forH all workers, agricultural, industrial or otherwis o e, wo f rk a living wageconditions of work ensuring a de cent standard of life andfull enjoyment of leisure t and social and culturalopportunities. Art. 43A enjo r ins on the State to take steps bysuitable legislation o u r in any other way to secure theparticipation of o workers in the management of undertaking,establishment, or other organizations engaged in anyindustry. C The fundamental rights enshrined in Arts. 14 and16 gu arantee equality before law and equality ofo h pportunity in public employment. Of course, the preambleto the Constitution is the lodestar and guides those who find
ig themselves in a grey area while dealing with its provisions.It is now well settled that in interpreting a beneficial H
legislation enacted to give effect to directive principles of the state policy which is otherwise constitutionally valid, the consideration of the Court cannot be divorced from thoseobjectives. In a case of ambiguity in the language of a beneficial labour legislation, the Courts have to resolve the
quandary in favour of conferment of, rather than denial of, a
benefit on the labour by the legislature but without rewriting
and/or doing violence to the provisions of the enactment.
107
41. Their Lordships of the Hon'ble Supreme Court in State of . Uttaranchal and others Vs. Sidharth Srivastava and others (2 . 00 P 3) 9 Supreme Court Cases 336 have held that administrative order exists unless it is quashed or it ceases to operate for any othe r rHeason. Their Lordships have held as under:
f
"21 In terms of Sec t tio n o 86 of the Act, it wasargued that the reservation policy of the State of U.P. isembodied in the Uttar Pradesh Service (Reservation for Scheduled Castes, Srcheduled Tribes and Other
Backward Cla o sses) u Act, 1994, the executive decisiondated 29.8.2001 cannot override the U.P. act of 1994(supra) C because the State Act continues to remain inforce in Uttaranchal by virtue of the Section 86 of theA h ct. Assuming that be the position, as and whenUttaranchal State Public Service Commission proceeds
ig to make selection, the policy contained in the U.P. Act of1994 is to be followed unless it is amended by theH
Legislature of the State of Uttaranchal. It cannot also be contended that the State of Uttaranchal has no right to have its own reservation policy to meet therequirements of the new State having due regard tovarious factors. Moreover, when the selection made by the UPPSC itself, as already stated above, is not for the
State of Uttaranchal and it has no legal or binding effect
to compel the State of Uttaranchal to appoint the
selected candidates, the question of applying
108
reservation policy as embodied in U.P. Act of 1994 does not arise. Consequently, this contention also fails.
P.
42. Their Lordships of the Hon'ble Supreme C H ourt . in M.Nagaraj and others Vs. Union of India and others (2006) 8 Supreme Court cases 212 have held that principles of fedra f lis m, secularism,
reasonableness and socialism, etc. are beyond t o he words of a particularprovision. They are systematic and stru r ctu t ral principles underlying andconnecting various provisions of the Constitution. They give coherence to the Constitution. They make u the Constitution an organic whole.
Their Lordships have furthe o r held that social justice is one of the sub-
divisions of the con ce C pt of justice. It is concerned with distribution ofbenefits and burdens throughout a society as it results from social
institutions. h Their Lordships have held as under:
ig
"19. Constitution is not an ephermal legal documentembodying a set of legal rules for the passing hour. It sets H
out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposiverather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be
construed not in a narrow and constricted sense but in a
wide and liberal manner so as to anticipate and take
account of changing conditions and purposes so that
109
constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems a P nd .challenges.
20. This principle of interpretation is partic . ularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights a f s a Hgift from theState to its citizens. Individuals possess basic human rights independently of any c on o stitution by reason ofbasic fact that they are m t embers of the human race.These fundamental right r s are important as they possessintrinsic value. Part u -III of the Constitution does not conferfundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain
subject C s fromo the area of political controversy to placethem beyond the reach of majorities and officials and to h establish them as legal principles to be applied by thecourts. Every right has a content. Every foundational
ig
value is put in Part-III as fundamental right as it hasintrinsic value. The converse does not apply. A right H
becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which the fundamental value isincorporated. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that
of it which protects and which entrenches fundamental
rights and freedoms to which all persons in the State are
to be entitled is to be given a generous and purposive
110
construction. In the case of Sakal Papers (P) Ltd. & Others
v. Union of India and others this Court has held that while .
considering the nature and content of fundamental rig P hts, the Court must not be too astute to interpret the lan . guage in a literal sense so as to whittle them down. The Court must interpret the Constitution in a manne r Hwhich would enable the citizens to enjoy the rig o hts g f uaranteed by it inthe fullest measure. An instan ce of literal and narrowinterpretation of a vital fun t damental right in the IndianConstitution is the early r decision of the Supreme Court inthe case of A.K. Go u palan v. State of Madras . Article 21 ofthe Constitutio o n provides that no person shall be deprivedof his life and personal liberty except according toprocedu C re established by law. The Supreme Court by amajo rity held that 'procedure established by law' means h any procedure established by law made by the Parliamentor the legislatures of the State. The Supreme Court refused
ig
to infuse the procedure with principles of natural justice. Itconcentrated solely upon the existence of enacted law.H
After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan10 and held in its landmark judgment in Maneka Gandhi v. Union of Indiaand another that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further
held that the procedure should also be in conformity with
the principles of natural justice. This example is given to
demonstrate an instance of expansive interpretation of a
111
fundamental right. The expression 'life' in Article 21 does not connote merely physical or animal existence. The right .
to life includes right to live with human dignity. This . Co P urthas in numerous cases deduced fundamental features which are not specifically mentioned in Pa H rt-III on theprinciple that certain unarticulated rights are implicit in the enumerated guarantees. For exa f mple, freedom of
information has been held to be i o mplicit in the guarantee
of freedom of speech and expres sion. In India, till recently,
there is no legislation s r ecu t ring freedom of information.However, this Cou u rt by a liberal interpretation deducedthe right to k o now and right to access information on thereasoning that the concept of an open government is thedirect r C esult from the right to know which is implicit in theright of free speech and expression guaranteed under h Article 19(1)(a).24. The point which is important to be noted is that
ig
principles of federalism, secularism, reasonableness andsocialism etc. are beyond the words of a particular H
provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution. They give coherence to the Constitution.They make the Constitution an organic whole. They are part of constitutional law even if they are not expressly
stated in the form of rules.
27. Under the Indian Constitution, the word 'federalism' does not exist in the preamble. However, its
112
principle (not in the strict sense as in U.S.A.) is delineated over various provisions of the Constitution. In particular, .
one finds this concept in separation of powers un P der Articles 245 and 246 read with the three H lists . in theseventh schedule to the Constitution.33. From these observation s, which are binding on us, the principle w o hich f emerges is that"equality" is the essence of dem ocracy and, accordingly abasic feature of the Con t stitution. This test is veryimportant. Free and f r air elections per se may notconstitute a basic u feature of the Constitution. On theirown, they do not constitute basic feature. However, free and fair election as a part of representative democracy is
an ess C ential ofeature as held in the Indira Nehru Gandhiv. R aj Narain (Election case). Similarly, federalism is an h important principle of constitutional law. The word'federalism' is not in the preamble. However, as stated
ig
above, its features are delineated over various provisionsof the Constitution like Articles 245, 246 and 301 and the H
three lists in the seventh schedule to the Constitution. 34. However, there is a difference between formal equality and egalitarian equality which will bediscussed later on.
50. Social justice is one of the sub-divisions of the concept of justice. It is concerned with the distribution of benefits and burdens throughout a society as it results
113
from social institutions property systems, public organizations etc. .
51. The problem is what should be the ba P sis of distribution? Writers like Raphael, Mill and . Hume define 'social justice' in terms of rights. Other writers like Hayek and Spencer define 'social ju f stic e'H in terms ofdeserts. Socialist writers define 's o ocial justice' in terms ofneed. Therefore, there are three criteria to judge the basis of distribution, namely, rig t hts , deserts or need. Thesethree criteria can be pu r t under two concepts of equality"formal equality" u and "proportional equality". "Formalequality" mea o ns that law treats everyone equal and doesnot favour anyone either because he belongs to theadvan C taged section of the society or to thedisa dvantaged section of the society. Concept of h "proportional equality" expects the States to takeaffirmative action in favour of disadvantaged sections of
ig
the society within the framework of liberal democracy.102.In the matter of application of theH
principle of basic structure, twin tests have to be satisfied, namely, the 'width test' and the test of 'identity'. As stated hereinabove, the concept of the'catch-up' rule and 'consequential seniority' are not constitutional requirements. They are not implicit in
clauses (1) and (4) of Article 16. They are not
constitutional limitations. They are concepts derived from
service jurisprudence. They are not constitutional
114
principles. They are not axioms like, secularism, federalism etc. Obliteration of these concepts or insertion .
of these concepts do not change the equality . c P odeindicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from
taking cognizance of the compelling Hinterests of
backward classes in the society o . Clau f ses (1) and (4) ofArticle 16 are restatements of the principle of equality under Article 14. Clause t (4 ) of Article 16 refers toaffirmative action by w r ay of reservation. Clause (4) ofArticle 16, how u ever, states that the appropriateGovernment o is free to provide for reservation in caseswhere it is satisfied on the basis of quantifiable datathat b C ackward class is inadequately represented in theser vices. Therefore, in every case where the State h decides to provide for reservation there must exist twocircumstances, namely, 'backwardness' and 'inadequacy
ig of representation'. As stated above equity, justice andefficiency are variable factors. These factors are context- H
specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are thelimitations on the mode of the exercise of power by the State. None of these limitations have been removed by
the impugned amendments. If the concerned State fails
to identify and measure backwardness, inadequacy and
overall administrative efficiency then in that event the
115
provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 .
and 16 (equity code). The parameters mentioned P in Article 16(4) are retained. Clause (4A) is derived . from clause (4) of Article 16. Clause (4A) is confined to SCs and STs alone. Therefore, the present caHse does not change the identity of the C o onsti f tution. The word"amendment" connotes change. The question is whether the impugned amendments discard the original
constitution. It was vehem t ently urged on behalf of the
petitioners that th u e Sta r tement of Objects and Reasonsindicate that the impugned amendments have been promulgated o by the Parliament to overrule the decision ofthis court. We do not find any merit in this argument. Und er C Article 141 of the Constitution the pronouncement h of this court is the law of the land. The judgments of thiscourt in Virpal Singh1, Ajit Singh (I)2 , Ajit Singh (II)3 and
ig
Indra Sawhney5, were judgments delivered by this courtwhich enunciated the law of the land. It is that lawH
which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to theStates to provide for reservation. It is well- settled that the Parliament while enacting a law does not provide
content to the "right". The content is provided by the
judgments of the Supreme Court. If the appropriate
Government enacts a law providing for reservation
116
without keeping in mind the parameters in Article 16(4) and Article 335 then this court will certainly set aside .
and strike down such legislation. Applying the "w P idth test", we do not find obliteration of any o . f the constitutional limitations. Applying the te st H of "identity",we do not find any alteration in the existing structure of the equality code. As stated above, n f one of the axioms
like secularism, federalism e tc. o which are overarchingprinciples have been v t iolated by the impugnedconstitutional amendm r ents. Equality has two facets"formal equality" and "p oportional equality". Proportional equality is equalit u y "in fact" whereas formal equality is
equality "in law". Formal equality exists in the Rule of
Law. C In theo case of proportional equality the State isexp ected to take affirmative steps in favour of h disadvantaged sections of the society within theframework of liberal democracy. Egalitarian equality is
ig
proportional equality.103. The criterion for determining the validity H
of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and thelimitations imposed thereon as also the limitations on mode of exercise of the power. Though the amending
power in Constitution is in the nature of a constituent
power and differs in content from the legislative power,
the limitations imposed on the constituent power may
117
be substantive as well as procedural. Substantive limitations are those which restrict the field of the .
exercise of the amending power. Procedural limitati P ons on the other hand are those which impose restr . ictions with regard to the mode of exercise of th H e amendingpower. Both these limitations touch and affect the constituent power itself, disregard of f which invalidates
its exercise. [See: Kihoto Hollo ha o n v. Zachillhu & Others.
43. Their Lordships of the Ho r n'btle Supreme Court in Nandi Infrastructure Corridor Enterpr u ises Limited and others Vs. Election Commission of India and o another (2010) 13 Supreme Court Cases 334 have explained the difference between terms "Cancel" and
"Suspend". Their Lo rdCships have held as under:
" h 4. It is surprising that by jugglery of words the use of the
ig expression`cancel' in paragraph 2 of the order dated8/5/2008 has been tried to be justified. If thatwastheH
intention, the same should have been conveyed to the State Government after the order of cancellation was passed. The expressions "cancel" and "suspend" are conceptuallydifferent. At the same time there could not have been cancellation and suspension. "Cancel" means to destroy the
force, effectiveness or validity of an order, a decision, to
bring to nothingness. "Suspend" means to debar temporarily
a privilege or make temporarily ineffective. To "suspend" is
118
to take a temporary measure while to "cancel" has an element of permanency."
P.
44. Their Lordships of the Hon'ble Supreme Court in G . eneral Manager (Operations) State Bank of India and ano H ther Vs. R. Periyasamy (2015) 3 Supreme Court Cases 101 f h ave held that Presumption is that the decision or executive o order is properly and validly made and the initial onus of pro t of rests upon party alleging invalidity of order validly made. Th u eir L r ordships have held as under: "14. In administrative law, it is a settled principlethat the onus o of proof rests upon the party alleging theinvalidit C y of an order[9]. In other words, there is apresu mption that the decision or executive order isproperly and validly made, a presumption expressed int h he maxim omnia praesumuntur rite esse acta which g means 'all things are presumed to be done in due form. i
15. The Division Bench, in appeal, apparently found itfit to rely on an additional affidavit filed for the first
H
time by the respondent in his Writ Petition, referring to the letter dated 30.12.1987 by which the respondent is purported to have sought the production of certaindocuments. It is not disputed that the respondent had not at any stage earlier made any grievance that he had
written a letter dated 30.12.1987 calling upon the bank
to produce certain documents for his perusal and which
was denied. It is further not in dispute that there is no
119
record of the bank having received the letter and there is no proof for it. The bank has denied receiving the .
letter and according to the bank they had recei . ve P d aletter dated 28.12.1987 and they had replied by their letter dated 14.01.1988. In their reply, there was no
reference to the letter dated 30.12.1987 b H ecause they
had not received it. We find that in the f ab sence of proof
that any such letter demanding certain documents was
received by the bank, it was no o t permissible for theHigh Court to proceed to draw an inference that there was a failure of natura r l jtustice in the bank havingdenied certain docu u ments. Thus it may be said, that anadministrative o authority such as the Appellant, cannotbe put to proof of the facts or conditions on which thevalidity o C f its order must depend, unless the Respondentcan p roduce evidence which will shift the burden ofp h roof on the shoulders of the Appellant. How muchevidence is required for this purpose will always depend
igon the nature of that particular case. In PotatoMarketing Board v. Merricks[11], it was held that if an H
order has an apparent fault on the face of it, the burden is easily transferred. However, if the grounds of attack are bad-faith or unreasonableness, the Plaintiff's task isheavier."
45. In view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court as discussed hereinabove, it is held that a
"socialist State", as the Preamble depicts, is the basic structure of the
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Constitution of India read with other cognate Articles of Part-III and
.
Part-IV of the Constitution of India. Similarly, the 'welfare State' is the basic feature of the Constitution of India. There is a difference be . twPeen 'basic structure' and 'basic features' of the Constitution. Th H eir lordships of the Hon'ble Supreme Court of India in Supreme f Cou rt Advocates- on-Record-Association and another Vs. Uni on o of India, JT 2015 (10)SC1 have held that the expressions "'basic structure" and "basic features" of the Constitution convey di r fferetnt ideas though some of the
learned Judges used those exp u ressions interchangeably. The basic
structure of the Constitutio o n is the sum total of the basic features ofthe Constitution. Som C e of the basic features identified so far by thisCourt are democra cy, secularism, equality of status, independence of judiciary, judicial review and some of the fundamental rights. Most of
the b i as g ic fea
htures identified so far in the various cases referred to earlier are not emanations of any single Article of the Constitution.
HThey are concepts emanating from a combination of a number of Articles each of them creating certain rights or obligations or both.Their Lordships have held as under:
"497. An analysis of the judgments of the above mentioned cases commencing from Bharati case yields the following propositions: (I) Article 368 enables the Parliament to amend any provision of the Constitution; (ii) The power
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under Article 368 however does not enable the Parliament to destroy the basic structure of the Constitution; (iii) None of .
the cases referred to above specified or declared what is P the basic structure of the Constitution; (iv) The expre . ssions
"basic structure" and "basic features" convey different ideas though some of the learned Judges used tho seH expressions interchangeably. (v) The basic structu o re of f the Constitution isthe sum total of the basic featu res of the Constitution;(vi)Some of the basic features iden t tified so far by this Court aredemocracy, secularism, eq r uality of status, independence ofjudiciary, judicial re u view and some of the fundamentalrights; (vii) The o abrogation of any one of the basic featuresresults normally in the destruction of the basic structure ofthe Cons C titution subject to some exceptions; (viii) As towhen the abrogation of a particular basic feature can be s h aid t o destroy the basic structure of the Constitutiondepends upon the nature of the basic feature sought to be
ig amended and the context of the amendment. There is nouniversally applicable test vis-à-vis all the basic features. H
498. Most of the basic features identified so far in the various cases referred to earlier are not emanations of any single Article of the Constitution. They are conceptsemanating from a combination of a number of Articles each of them creating certain rights or obligations or both (for the
sake of easy reference I call them " ELEMENTS "). For
example, (a) when it is said that democracy is a basic
feature of our Constitution, such a feature, in my opinion,
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emerges from the various articles of the Constitution which provide for the establishment of the legislative bodies .
(Parliament and the State Legislatures) and the Arti P cles which prescribe a periodic election to these bodies bas . ed on adult franchise; the role assigned to these bodies, that is, to make laws for the governance of this f Co unHtry in theirrespective spheres ; and the o establishment of anindependent machinery for condu cting the periodic electionsetc.;
(b) the concept r of t secularism emanates fromvarious Articles 15 a u nd 16 which prohibits the State frompracticing any o kind of discrimination on the ground ofreligion and Articles 25 to 30 which guarantee certainfundamen C tal rights regarding the freedom of religion toevery person and the specific mention of such rights withr h eference to minorities. 499. The abrogation of a basic feature may ensue as
ig a consequence of the amendment of a single Article in thecluster of Articles constituting the basic feature as itH
happened in Minerva Mills case and Indira Nehru Gandhi case." 46. The legislation and the policies of the State must be pro-poor, pro-scheduled caste, scheduled
tribes and other weaker sections of the society including
the pensioners. The system must give due respect and
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maintain the dignity of the retired personnel by providing them
.
sufficient means including good health care in their twilight years.
47. In the instant case, O.M. dated 05.06.1998 was n . eitPher suspended nor cancelled. According to O.M. dated 2 0.0 H 8.2004, thematter was required to be discussed, but the Court can take judicial notice of the fact that since till date, no dec isi o on ha
fs been taken, the Union of India has accepted the applicability of O.M. dated 05.06.1998, otherwise some decision was bound r to t have been taken either tosuspend or cancel O.M. dated 05 u .06.1998 for 17 years. In view of thelanguage employed in O.M. dated 20.08.2004, the principle of contemporanea exposi C tio wouold not be attracted. It is wrong on the partof the petitioners to contend that O.M. dated 05.06.1998 wassuperseded. W h ord 'supersession' has not been mentioned at all in O.M.dated 2 g 0.08.2004. O.M. dated 05.06.1998 also supplemented theCS(M i A) Rules, 1944.
H48.O.M. dated 5.6.1998 was discussed by the learned Central Administrative Tribunal in its various judgments including O.A. No.205 of 2003 titled as Mr. Prabhakar Sridhar Bapat Vs. Union of India and another, decided on 10.11.2003. It was also discussed by the
Division Bench of Gujarat High Court in SCA No. 3843/2004, whereby
the petition filed by the Union of India was dismissed on 02.04.2004
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and also by the Punjab and Haryana High Court in CWP No. 6559 of
.
2006, decided on 13.03.2008. In this petition also, a specific ground has been taken that identical issues raised in O.A. No. 205/2003 . , tiPtled as Mr. Prabhakar Sridhar Bapat Vs. Union of India an d H Another waspending before the Hon'ble Supreme Court including f the applicability ofO.Ms. dated 5.6.1998 and 20.08.2004. The Hon'ble Supreme Court has dismissed the SLPs. on 03.04.2012. T t he Roeview Petition was alsodismissed by the Hon'ble Supreme C r ourt on 30.10.2013. Thus, thejudgment rendered by the learned Central Administrative Tribunal Ahmedabad Bench in O.A. o No. 20u5 of 2003 on 10.11.2003, which hasmerged in the judgm C ent rendered by the Division Bench of GujaratHigh Court in Special Civil Application No. 3843/2004 decided on 02.04.2004, w h ere u pheld by the Hon'ble Supreme Court on 03.04.2012.49.
g T e Union of India should have taken a common senseview t i o address the serious issue of welfare of its retired employees. We
H can take judicial notice of the fact that a retired person needs more medical care vis-a-vis a young employee. A serving employee, whoenjoys benefits under the CS(MA) Rules, 1944, cannot be left high and dry immediately after retirement for want of medical care. His medical
issues are required to be looked into with more sensitivity, compassion
and sympathy. His genuine requirements for medical treatment cannot
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be permitted to be buried in the labyrinth of red tapism. The
.
recommendations of the Pay Commission, though recommendatory, have to be given highest regard, since the Central Governmen . t Phas planned to improve the conditions of service of Centr al H Governmentemployees by examining, reviewing, evolving and recommending changes including pension and other retiral benefits. f
50. The Seventh Central Pay C t om miossion constituted videnotification, dated 28.02.2014, has a r lso strongly recommended theintroduction of Health Insurance Scheme for Central Government employees and pensioners. I o n theu interregnum, for the benefit ofpensioners residing C outside the CGHS areas, the Commissionrecommended that CGHS should empanel those hospitals which are already empa h nelled under CS(MA)ECHS for catering to the medicalrequirem g ents of these pensioners on a cashless basis. The Commissionhas a i lso recommended that the remaining 33 postal dispensaries
H should be merged with CGHS and all postal pensioners, irrespective of their participation in CGHS while in service, should be covered underCGHS after making requisite subscription.
51. The legal maxim "salus populi suprema lex esto" can usefully be called in aid in the present case also. It means "Let the good (or safety) of the people be the Supreme (or highest) law". Salus is
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a latin word, which means health/prosperity, safety as per Black's Law
.
Dictionary. Thus, health of the people should be the supreme law.
52. It is the prime responsibility of the State Governm . enPt to protect health and vigour of retired Government officials H , this being their fundamental right under Article 21, read with Art icles 39(3), 41, 43, 48-A of the Constitution of India. The steps shoufld be taken by the State to protect health, strength and vi t gou r oof the workmen. Non-providing of post-retirement medical ca r re o retired Government officialin a city not covered by CGHS at par with in service employee would result in violation of Article o 21 ouf the Constitution of India. Moreover,employees need med C ical care most after their retirement. The Statecannot call its own actions as wrong. We have clarified and explained O.M. dated 2 h 0.08 .2004 and it is made clear that all the CentralGovernm g ent pensioners residing in non-CGHS areas would be coveredeither i under the CS(MS) Rules, 1944 or CGHS as per their option to be
H sought for by the Central Government. In order to avoid litigation, this judgment shall apply to all the retired Government officials residing innon-CGHS areas. There should be equality of health benefits to retirees as well in their evenings of life. There cannot be any discrimination
while extending the social benefits to in service and retirees. It is the
prime responsibility of the State to protect the health of its workers. In
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view of the phraseology employed in O.M. dated 05.06.1998, Note 2
.
appended to Rule 1 is read down to extend the benefit of CS(MA) Rules, 1944 to retired Government officials residing in non-CGHS ar . easP to save it from unconstitutionality and to make it workab le H . The higherCourts have to evolve new interpretive tools in changing times. The neo capitalism may concentrate wealth in the hands of ffew persons which
would be contrary to the philosophy of the Co nsotitution of India. Right
to health is a human right. The action r of t the petitioner-Union of Indianot to reimburse the medical bills u to the respondent and also not givingoption to him and similar o ly situate persons residing in a city notcovered under CGHS C as per O.M. dated 5.6.1998 to either opt for CGHSScheme or CS(MA ) Rules, 1944, is illegal, arbitrary, capricious,discriminatory, thus, violative of Articles 14, 16 and 21 of the
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54. Accordingly, the writ petition is dismissed. However, the
.
Union of India is directed to seek the option from the respondent and similarly situated retired employees residing in non-CGHS are . asP for medical coverage either under CGHS Scheme or under C H S(MA) Rules, 1994 as per Office Memorandum, dated 05.06.1998 wit hin a period of six months. Henceforth, the pensioners should be givefn one time option at the time of their retirement for medica t l c ovoerage under the CGHSScheme or CS(MA) Rules, 1994. The Union of India is also directed to release a sum of `1,79,559/- u incurrred by the respondent on histreatment and a sum of `20 o ,000/- incurred by the respondent towardspost operation follow C up, medicines and transportation charges within aperiod of three mon ths from today, failing which, the respondent shallbe entitled to interest @12% per annum. The miscellaneous applicat g ion(s)h, if any, also stand(s) disposed of. No costs. i
"Salus populi suprema lex esto - The health of the people
H should be supreme law". (Rajiv Sharma) Judge (Sureshwar Thakur)
Judge
December 28, 2015
(bhupender)