HC relief to retired govt employees
HC relief to retired govt employees
Shimla, December 30The High Court has directed the Centre to ask employees at the time of their retirement if they want to be covered under the Central Service (Medical Allowance) CS (MA) Rules or the Central Government Health Scheme (CGHS). A division bench comprising Justice Rajiv Sharma and Justice Sureshwar Thakur, in order to avoid litigation, made it clear that the judgment was applicable to all retired government officials residing in non-CGHS areas. The court observed: “There should be equality of health benefits to retirees. Right to health is a human right. The health of the people should be the supreme law based on the legal maxim ‘salus populi suprema lex esto’.” The court passed the order in a case of medical reimbursement of a retired Central government employee. While dismissing the petition of the Central government, the court observed that a ‘socialist state’, as the Preamble depicts, is the basic structure of the Constitution of India read with other cognate Articles of Part-III and Part-IV of the Constitution of India. The ‘welfare of state’ is the basic feature of the Constitution of India. There is a difference between ‘basic structure’ and ‘basic feature’ of the Constitution. The action of the Union of India not to reimburse medical bills to the respondent and also not giving an option to him is illegal, arbitrary, capricious, discriminatory and in violation of Articles 14, 16 and 21 of the Constitution of India. The court observed: “There cannot be any discrimination while extending the social benefits to serving and retired employees. It is the prime responsibility of the state to protect the health of its workers.” It said: “The legislation and the policies of the state must be pro-poor, pro-Scheduled Caste, Scheduled Tribes and other weaker sections, including the pensioners. The system must give due respect and maintain the dignity of the retired employees by providing them sufficient means, including good health care in their twilight years.” The court observed: “The decision in matters pertaining to the health of the employee should be taken with utmost humane approach. A serving employee, who enjoys 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 be permitted to be buried in the labyrinth of red-tapism.”
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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4621 of 2011
Reserved on : 23.12.2015
Date of decision 28.12.2015
Union of India and another ……Petitioners.
Shankar Lal Sharma
The Hon’bleMr. Justice Rajiv Sharma, Judge
The Hon’bleMr. Justice Sureshwar Thakur, Judge
Whether approved for reporting?1 Yes.
For the petitioners: Mr.AngrezKapoor, Advocate, vice Mr.Ashok Sharma, Assistant Solicitor
General of India.
For the respondent: Mr.Ravinder N. Sharma and Mr.PawanGautam, Advocates.
Rajiv Sharma, J.:
This petition is instituted against the judgment rendered bythe learned Central Administrative Tribunal, Chandigarh Bench inOriginal Application No. 283HP2009,dated 02.06.2010.
1Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
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2. Key facts necessary for the adjudication of this petition arethat the respondent superannuated/retired from All India Radio,Shimla on 26.09.1992. He falls in the area not covered under theCentral Government Health Scheme (hereinafter referred to as “CGHS”for the sake of brevity). He was given fixed medical allowance of `100/permonth. He remained under treatment from Indira Gandhi MedicalCollege and Associated Hospitals, Shimla. He was advised to undergosurgical procedure for Coronary Artery Bypass Grafting (CABG). Thedoctors referred him to Prime Heart and Vascular Institute, Mohali. Heremained admitted as an indoor patient from 03.06.2008 to17.06.2008, i.e., for 15 days. He incurred an expenditure of`1,79,559/onhis treatment. He also incurred an additional sum of`20,000/towardspost operation follow up, medicines andtransportation charges. He submitted medical bills for reimbursementof medical expenses. However, the claim of the respondent was rejectedon 23.12.2008 in view of letter, dated 20.08.2004. The letter, dated23.12.2008, reads thus:
“...This has a reference to your notice dated 23.9.08 andthis office regd. Letter of even No. SML10(3)/2008dated20.11.08, regarding reimbursement of medical claims toShriShankerLal Sharma, resident of ShankerNiwas,Middle Sangti, Summerhill, Shimla.
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In this connection, it is intimated that the case wasforwarded to competent authority in the Government ofIndia i.e. Ministry of Health & Family Welfare New Delhi.The Ministry of Health & Family Welfare has sent a copyof their letter No. S. 14025/4/96MSdt. 20Th August,2004, which is self explanatory and relevant to the case ofShriShankerLal Sharma. A copy of the said letter isenclosed.
Keeping in view the instruction contained in theenclosed Ministry of Health & Family Welfare order, themedical claim of ShriShankerLal Sharma cannot bereimbursed..”
3. Feeling aggrieved, the respondent approached the learnedCentral Administrative Tribunal, Chandigarh Bench by way of anOriginal Application No. 283HP2009,seeking reimbursement of`1,79,559/withinterest @25% per annum. The Original Applicationwas contested by the petitionerUnionof India. The petitionerUnionofIndia filed a detailed reply to the Original Application. According to thereply filed by the petitionerUnionof India, the matter was taken upwith the Nodal Ministry, i.e., Ministry of Health & Family Welfarethrough their Headquarters, i.e., DG, AIR, New Delhi, so that the caseof the respondent could be considered as per rules. However, theMinistry of Health & Family Welfare, New Delhi clarified the position. ::: Downloaded on - 31/12/2015 10:00:13 :::HCHPHigh Court of H.P.
and also made available a copy of OM, dated 20.08.2004, whichclarified the entire issue about extension of CCS Medical AttendanceRules, 1944 to Central Government pensioners residing in nonCGHSareas. There is also a reference of letter, dated 25.02.2000 in the reply.It was specifically stated that the case of the respondent was notcovered by the judgment, dated 13.03.2008, rendered by the Hon'bleHigh Court of Punjab & Haryana in CWP No. 6559 of 2006, titled asMohinder Singh Vs. UOI. The learned Central Administrative Tribunal,Chandigarh Bench, relying upon the judgment of Hon'ble High Court ofPunjab & Haryana in CWP No. 6559 of 2006, titled as MohinderSingh Vs. UOI., allowed the Original Application on 02.06.2010 andordered the Union of India to consider the claim of the respondent forreimbursement of medical expenditure incurred by him for histreatment in Prime Heart and Vascular institute, Mohali at the ratesfixed by the Central Government under the rules or the actualexpenditure, whichever was less and the claim of the respondent forfollowuptreatment was ordered to be considered under the rules bythe Union of India. Thereafter, a speaking order was passed by theHead of Office, All India Radio, Shimla on 07.12.2010 vide Annexure P6.Respondent also filed a Contempt Petition for the implementation ofjudgment, dated 02.06.2010 and thereafter the present petition was::: Downloaded on - 31/12/2015 10:00:13 :::HCHPHigh Court of H.P.
filed assailing the judgment, dated 02.06.2010, rendered by thelearned Central Administrative Tribunal, Chandigarh Bench in OriginalApplication No. 283HP2009,dated 02.06.2010.
4. The sum and substance of the grounds taken in thepresent petition is that O.M. dated 05.06.1998 was only a departmentalcommunication during the process of consultation and was not meantto be a final order. It was also stated in Para11of the petition that aSpecial Leave to Appeal (Civil) CC 9939/2004 titled as Union of Indiaand another Vs. Prabhakar Sridhar Bapatraising an identical issuewas pending before the Hon'ble Supreme Court, wherein also the issuerelating to the scope and effect of OMs dated 5.6.1998 and 20.8.2004as well as the nonapplicabilityof the CS(MA) Rules to pensioners innonCGHSareas was in question. The copies of the orders passed bythe Hon'ble Supreme Court have been placed on record staying theContempt proceedings in identical matters. The relevant portion of thegrounds 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 inview of huge financial implications. The CS(MA) Rules werenever amended so as to include pensioners residing in non:::
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CGHS areas within the ambit of the said Rules. Thecontroversy in any event was set at rest by a subsequentOM dated 20.8.2004 issued by the Ministry of Health,wherein, it was clarified that the earlier OM dated 5.6.1998did not have the effect of extending the CS(MA) Rules topensioners residing in nonCGHSareas. Thus the judgmentof the Punjab and Haryana High Court is also of noassistance in the matter and reliance placed by the Tribunalin that regard is misconceived. The facts and circumstancesleading to the filing of the present petitioner are set outhereunder.
11. That instead of accepting the well reasoned speakingorder passed by the petitioners, the respondent with a viewto pressurize the petitioners filed a contempt petition beforethe Central Administrative Tribunal being C.P. NO. 55 of2011, a copy whereof is annexed as Annexure P7.The saidcontempt petition came up for hearing before the Tribunal on28th April, 2011. During the course of hearing the factum ofthe passing of the speaking order was orally brought to thenotice of the Tribunal. It was also pointed out to the Tribunalthat SLP © NO. ../2004 (CCNo9939)UOI&Anr V/sPrabhakar Sridhar Bapat raising an identical issue waspending before the Supreme Court wherein also the issuerelating to the scope and effect of Oms dated 5.6.1998 and20.8.2004 as well as the nonapplicabilityof the CS(MA)Rules to pennsioners in non CGHS areas was in question. Itwas also pointed out that in the SLP the Supreme Court had
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stayed the contempt proceedings. A copy of the said stayorder passed by the Supreme Court in SLP © No. …/2004(CCNo 9939)UOI&Anr. V/s Prabhakar Sridhar Bapat isannexed as Annexure P8......”
5. In order to mitigate the hardships faced by the retiredGovernment officials, the Central Government framed a Scheme calledthe Central Government Health Scheme (CGHS). It was started underthe Ministry of Health and Family Welfare in 1954 with the objective ofproviding comprehensive medical care facilities to Central Governmentemployees, pensioners and their dependents residing in CGHS coveredcities. CGHS currently covers 25 cities.
6. The Central Government took a conscious decision on therecommendations of the Fifth Central Pay Commission to grant fixedmedical allowance @ `100/permonth to Central Governmentpensioners/family pensioners residing in areas not covered by CentralGovernment Health Scheme administered by the Ministry of Health &Family Welfare and corresponding Health Schemes administered byother Ministries/Departments for their retired employees for meetingexpenditure on daytodaymedical expenses that do not requirehospitalization 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 ofGovernment's decision on the recommendations of the 5thCentral Pay Commission announced in this Department'sresolution No. 45/86/97P& P.W. (A) dated 30.9.1977,sanction of the President is hereby accorded to the grant offixed medical allowance @ Rs.100 p.m. to CentralGovernment pensioners/family pensioners/residing inareas not covered by Central Government Health Schemeadministered by the Ministry of Health & Family Welfareand corresponding Health Schemes administered by otherMinistries/Departments for their retired employees formeeting expenditure on daytodaymedical expenses that donot require hospitalization.”
7. A pragmatic and holistic decision was taken on 05.06.1998vide Annexure P3that the pensioners should not be deprived ofmedical facilities from the Government in their old age when theyrequire them most and the Ministry had no objection to the extension ofthe CS(MA) Rules to the Central Government pensioners residing innonCGHSareas as recommended by the Pay Commission. The O.M.dated 05.06.1998 reads as under:
“The undersigned is directed to refer to the Departmentof Pension and Pensioners' Welfare, O.M. No.45/74/97PP& PW(C), dated 15.04.1997 on the abovesubject and to say that it has been decided by this::: Downloaded on - 31/12/2015 10:00:13 :::HCHPHigh Court of H.P.
Ministry that the pensioners should not be deprived ofmedical facilities from the Government in their old agewhen they require them most. This Ministry has,therefore, no objection to the extension of the CS(MA)Rules to the Central Government pensioners residing innonCGHSareas as recommended by the PayCommission. However, the responsibility ofadministrating the CS(MA) Rules for pensioners cannotbe handled by CGHS. It should be administered by therespective Ministries/Departments as in the case ofserving employees covered under CS(MA) Rules, 1944.The Department of Pension and Pensioners Welfarewould need to have the modalities worked out for theimplementation of the rules in consultation with theMinistries/Department prior to the measure beingintroduced to avoid any hardship to the pensioners. Thepensioners could be given a onetimeoption at the timeof their retirement for medical coverage under CGHS orunder the CS(MA) Rules, 1944. In case of a pensioneropting for CGHS facilities, he/she would have to getHimself/herself registered in the nearest CGHS city foravailing of hospitalization facilities. In such cases, thereimbursement claims would be processed by theAdditional Directors, CGHS of the concerned city. Forthose opting for medical facilities under the CS(MA)Rules, the scrutiny of the claims would have to be doneby the parent office as in the case of serving employeesand they payment would also have to be made by them.
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The list of AMAs to be appointed under CS(MA) Ruleswould be decided Ministry/Departmentwise
Asprovided under the rules. The beneficiaries of theCS(MA) Rules, 1944 would be entitled to avail ofhospitalization facilities as provided under these rules.The Departments of Pension and Pensioners'Welfare are requested to take further necessary actionin the matter accordingly.”
8. The Department of Pension and Pensioners' Welfare bymaking reference to O.M. dated 15.4.1997 in O.M. dated 05.06.1998has decided that the pensioners should not be deprived of medicalfacilities from the Government in their old age when they require themmost. Thus, the Ministry had no objection to the extension of theCS(MA) Rules to the Central Government pensioners residing in nonCGHSareas as recommended by the Pay Commission. However, theresponsibility of administering the CS(MA) Rules for pensioners cannotbe handled by CGHS. It was to be administered by the respectiveMinistries/Departments as in the case of serving employees coveredunder CS(MA) Rules, 1944. The Department of Pension and PensionersWelfare was required to have the modalities worked out for theimplementation of the rules in consultation with theMinistries/Department prior to the measure being introduced to avoidany 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 medicalcoverage under CGHS or under the CS(MA) Rules, 1944. In case apensioner opts for CGHS facilities, he/she would have to gethimself/herself registered in the nearest CGHS city for availing ofhospitalization facilities. In such cases, the reimbursement claims wereto be processed by the Additional Directors, CGHS of the concernedcity. Those opting for medical facilities under the CS(MA) Rules, thescrutiny of the claims was to be done by the parent office as in the caseof serving employees and the payment was also to be made by them.The Department of pension and Pensioners' Welfare was required totake further necessary action in the matter accordingly.
9. One Sh. Prabhakar Sridhar Bapat, who retired from theservice of Postal Department on 01.03.1991, suffered from InferoPostered Lateral Stemy. He was admitted in the nearest privatehospital, namely, DinanathMangeshkar Hospital and Research Center.Angiography and Angioplasty was done on 28th and 30th September,2002. He was discharged from the hospital on 02.10.2002. Hesubmitted an application for reimbursement of medical expenses of`1,55,307.54/toPost Master General, Vadodara vide letter, dated11.02.2003. He was informed vide letter, dated 28.02.2003 that theCivil Servants (Medical Attendance) Rules (in short CS(MA) Rules) do
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not apply to retired Government Officials. On this ground, thereimbursement was not allowed. He filed an Original Application No.205 of 2003 before the Central Administrative Tribunal, AhmedabadBench, Ahmedabad, which was allowed by the Central AdministrativeTribunal, Ahmedabad Bench, Ahmedabad on 10.11.2003. There isreference of O.M. dated 05.06.1998 in para No. 7 of the judgment. Thelearned Central Administrative Tribunal, Ahmedabad Bench has madeobservations in para9of the judgment that the decisions discussedabove have consistently held that in view of Order dated 5.6.1998, theterms of CS(MA) Rules would be applicable to the retiree of the PostalDepartment, who were not residing in the areas covered under theScheme or have not opted for Medical Allowance. The Union of Indiawas directed to sanction the admissible amount in terms of CS(MA)Rules and pay the same within a period of three months to theapplicant. Feeling aggrieved by the judgment, dated 10.11.2003,rendered by the learned Central Administrative Tribunal, AhmedabadBench, Ahmedabad, the Union of India preferred SCA No. 3843/2004before the High Court of Gujarat at Ahmedabad. The Division Bench ofGujarat High Court dismissed the same on 02.04.2004. The Union ofIndia preferred Special Leave to Appeal (Civil) No. 10659/05 againstthe judgment, dated 02.04.2004. The Hon'ble Supreme CourtHigh Court of H.P.
intervened and stayed the Contempt proceedings on 02.05.2005. Thesecopies are on the record of this case, though subsequently SLPs weredismissed and the stay orders were vacated, as discussed in para(supra).
10. It would be apt at this stage to reiterate that the OriginalApplication filed by the respondent bearing Original Application No.283HP2009was allowed by the Central Administrative Tribunal,Chandigarh Bench by placing reliance on the judgment, dated13.3.2008, rendered by the Punjab and Haryana High Court in CWPNo. 6559 of 2006, titled as Mohinder Singh Vs. Union of India andothers.
11. Now, we would advert to Office Memorandum, dated20.08.2004, Annexure P4,which reads as under:
Sub:Clarificationon the views of this Department onrecommendation of the 5th Central Pay Commission on extension ofCS(MA) Rules, 1944 to Central Government pensioners residing inareas not covered by CGHS.The CS(MA) Rules, 1944 is not applicable tothe Central Government pensioners. The 5th Central PayCommission had recommended extension of CS(MA) Rules,1944 to the Central Government pensioners residing in theareas not covered by CGHS. On a reference received fromthe Department of Pension and Pensioners Welfare on this
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subject, the response of the Department of Health hadbeen conveyed through the O.M. No. S. 14025/4/96MSdated 5.6.1998. The response of this Department was thatit did not have any objections to the proposal of extensionof CS(MA) Rules, 1944 to central government pensionersresiding in nonCGHSareas as recommended by the 5thPay Commission, subject to the condition that theresponsibility of administering the CS(MA) Rules, 1944 forpensioners would be of the Departments/Ministriesconcerned.The said O.M. dated 5.6.1998 was in reply to areference in O.M. No. 457497 PP & PW (c ) dated 15.4.97from the Department of Pensions and Pensioners' Welfare.After that also communication between these twodepartments had continues on this subject. In fact, in asubsequent O.M. of the same number dated 12.1.1999, theviews of all the Ministries/Departments of the Governmentof India had been sought before a final decision could betaken. But unfortunately, the O.M. dated 5.6.1998 hasbeen misinterpreted by some pensioners as the final orderof the Government of India to extend CS(MA) Rules, 1944 topensioners. A lot of avoidable litigation has already takenplace, because some pensioners have obtained favourableorders from various courts/tribunals on the basis of thesaid O.M. dated 5.6.1998.It is therefore considered necessary to clarifyunequivocally that the O.M. dated 5.6.1998 was not
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intended to be a final order extending the applicability ofCS(MA) Rules, 1944 to pensioners. In fact, it is not possiblefor any individual department to take such policy decisionswithout obtaining views of various departments, andparticularly, the Department of Expenditure. Such being thecase, in the process of examining the recommendation ofthe 5th Pay Commission on this issue, the Department ofExpenditure has categorically said that in view of hugefinancial implications, it is not feasible to extend CS(MA)Rules, 1944 to pensioners.Therefore, any interpretation based on the O.M.dated 5.6.1998 of this Department that the pensionerscome within the purview of the CS(MA) Rules, 1944 iswholly misplaced. “
12. The gist of 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 theGovernment of India were sought before a final decision could be taken.However, O.M. dated 5.6.1998 was misinterpreted by some pensionersas 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 wasnot possible for any individual department to take such policy decisions
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without obtaining views of various departments and particularly theDepartment of Expenditure.
13. In order to mitigate the hardships faced by the retiredemployees, who were not covered under the CS(MA) Rules, 1944, theCentral Government, as noticed above, has framed CentralGovernment Health Scheme. However, the area covered under theScheme was limited to 25 cities. A conscious decision was taken to givebenefit to those retirees, who do not fall within the areas covered under
the Scheme by giving them fixed medical allowance @ `100/permonth on 19.12.1997.
14. The decision, dated 5.6.1998 is in sequel to therecommendations made by the 5th Pay Commission of CentralGovernment. The Pay Commission recommendations are made bytaking into consideration all the pros and cons put before it by all thestake holders. The decision has been taken primarily to redress thegrievance of all those retired Government Officials, who were notcovered 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 givenone time option at the time of their retirement for medical coverageunder CGHS or under the CS(MA) Rules, 1944. In case a of apensioner opting for CGHS facilities, he/she was to get himself/herself::: Downloaded on - 31/12/2015 10:00:15 :::HCHP
High Court of H.P.
registered in the nearest CGHS city for availing of hospitalizationfacilities and in such cases, the reimbursement claim was to beprocessed by the Additional Directors, CGHS of the concerned city andfor those opting for medical facilities under the CS(MA) Rules, thescrutiny of the claims was to be done by the parent office as in the caseof serving employees and the payment was to be made by them.
15. A specific ground has been taken in the petition that theHon'ble Supreme Court was seized of the matter relating to the scopeand effect of O.Ms. dated 05.06.1998 and 20.08.2004 as well as the
nonapplicabilityof the CS(MA) Rules to pensioners in non CGHS areaswas in question.
16. We do not accept the plea taken in the petition that O.M.dated 5.6.1998 was intra departmental communication. The decisiondated 5.6.1998 was a conscious decision. It was a final order. Therespondent and similarly situated persons have changed their positionby getting themselves treated from various institutes legitimatelyexpecting that they are covered under CS(MA) Rules. According to OfficeMemorandum, dated 20.08.2004, the view of all theMinistries/Departments of the Government of India were sought beforea final decision could be taken. This Office Memorandum is dated20.08.2004, but till date no material has been placed on record that::: Downloaded on - 31/12/2015 10:00:15 :::HCHPHigh Court of H.P.
O.M., dated 05.06.1998 was withdrawn, rescinded, superseded or anycorrigendum was issued. The operation of O.M., dated 05.06.1998 hasnot been suspended. The only requirement as per O.M., dated05.06.1998 was to work out the modalities in consultation with theMinistries/Department, that too, to avoid any hardship to thepensioners. It was to be followed by the Ministerial Act. The pensionerswere to be given one time option at the time of their retirement eitherto opt for CGHS or under the CS(MA) Rules, 1944 for medical coverage.There was sufficient time for consultation with various Departmentsfrom 05.06.1998 to 20.08.2004. Though it is stated that theDepartment of Expenditure has categorically said that in view of hugefinancial implications, it is not feasible to extend CS(MA) Rules, 1944 topensioners, but that decision has not been placed on record. The issue
was with regard to the applicability of CGHS Scheme floated in 1954and the applicability of CS(MA) Rules, 1944 to the retirees, who werenot residing in the areas covered by CGHS Scheme. The O.M. dated05.06.1998 cannot be stated to be a decision in isolation since it isbased on the recommendations made by the 5th Pay Commission of theCentral Government. The main objective underlined in the issuance ofO.M. dated 05.06.1998 was to mitigate the hardships faced by theretired Government officials.::: Downloaded on - 31/12/2015 10:00:15 :::HCHPHigh Court of H.P.
17. The Central Government must act like a model employer.Ours is a socialist welfare State. The difficulties faced by the retiredGovernment officials have rightly been redressed by O.M. dated05.06.1998. Thus, O.M., dated 05.06.1998 supplements the CS(MA)Rules by extending the scope of health coverage to retired GovernmentOfficials as well.
18. The matter is required to be considered from another angle.There is a Scheme floated by the Central Government in 1954, whereby,the persons who have been enrolled under the Scheme can getthemselves treated in 25 cities across the country. All the GovernmentOfficials who retired from the Central Government constitute ahomogeneous class whether they are living in station 'A' or 'B' aftertheir retirement. There is no reason assigned why the respondent andsimilarly situated person have been left out from the applicability ofCGHS or CS(MA) Rules, 1944. It is a case of invidious discrimination.The CGHS facilities could not be restricted to specified places. Therespondent and similarly situated person are to be treated at par withthose persons who are residing at Delhi and other areas covered underCGHS. There is no intelligible differentia so as to differentiate theretired Government officials visa-vissome other retired persons onlyon the ground of residing in a particular place. The objective of the::: Downloaded on - 31/12/2015 10:00:15 :::HCHPHigh Court of H.P.
Scheme is to provide better health facilities to the retired Governmentofficials. It is with this objective that O.M. dated 5.6.1998 was issued.
19. In Sant Ram Sharma Vs. State of Rajasthan and others,AIR 1967 Supreme Court 1910, their Lordships of the Hon'ble SupremeCourt have held that it cannot be said that till statutory rules governingpromotion to selection grade posts are framed government cannot issueadministrative instructions regarding principles to be followed. TheirLordships have held as under:
“7. We proceed to consider the nextcontention of Mr. N. C. Chatterjee that in the absence
of any statutory rules governing promotions toselection grade posts the Government cannot issueadministrative instructions and such administrativeinstructions cannot impose any restrictions not found itthe Rules already framed. We are unable to accept thisargument as correct. It is true that there is no specificprovision in the Rules laying down the principle ofpromotion of junior or senior grade officers to selectiongrade posts. But that does not mean that till statutoryrules are framed in this behalf the Government cannotissue administrative instructions regarding theprinciple to be followed in promotions of the officersconcerned to selection grade posts. It is true thatGovernment cannot amend or supersede statutoryRules by administrative instructions but if the rules are::: Downloaded on - 31/12/2015 10:00:15 :::HCHPHigh Court of H.P.
silent on any particular point Government can fill upthe gaps and supplement the rules and issueinstructions not inconsistent with the rules alreadyframed.8. In B. N. Nagarajan v. State of Mysore, AIR 1966SC 1942, it was pointed out by this Court that it is notobligatory under the proviso to Art. 309 of theConstitution to make rules of recruitment etc., before aservice can be constituted or a post created or filled,and secondly, the State Government has executivepower, in relation to all matters with respect to whichthe Legislature of the State has power, to make laws.It follows from this that the State Government willhave executive power in respect of Sch. 7, List II Entry41. State Public Services, and there is nothing in theterms of Art. 309 of the Constitution which abridgesthe power of the executive to act under Art.162 of theConstitution without a law. A similar view was takenby this Court in T. Cajec v. U. JormonikSiem, l9611SCR 750 = (AIR 1961 SC 276) where Wanchoo. J., ashe then was, who delivered judgment on behalf of themajority, observed as follows at pp. 762764of theReport (SCR) = (at p. 281 of AIR) :"The High Court has taken the view that theappointment and succession of a Siem was not anadministrative function of the District Council and thatthe District Council could only act by making a law::: Downloaded on - 31/12/2015 10:00:15 :::HCHPHigh Court of H.P.
with the assent of the Governor so far as theappointment and removal of a Siem was concerned. Inthis connection, the High Court relied on para 3 (1)(g) ofthe Schedule, which lays down that the District Councilshall have the power to make laws with respect to theappointment and succession of Chiefs and Headmen.The High Court seems to be of the view that until sucha law is made there could be no power of appointmentof a Chief or Siem like the respondent and inconsequence there would be no power of removaleither. With respect, it seems to us that the High Courthas read far more into para 3(l)(g), than is justified byits language. Paragraph 3(1) is in fact something like alegislative list and enumerates the subjects on whichthe District Council is competent to make laws. UnderPara 3(1)(g) it has power to make laws with respect tothe appointment or succession of Chiefs or Headmenand this would naturally include the power to removethem. But it does not follow from this that theappointment or removal of a Chief is a legislative act orthat no appointment or removal can be made withoutthere being first a law to thateffect.................................Further once the power ofappointment falls within the power of administration ofthe district the power of removal of officers and othersso appointed would necessarily follow as a corollary.The Constitution could not have intended that all ad:::Downloaded on - 31/12/2015 10:00:15 :::HCHPHigh Court of H.P.
ministration in the autonomous districts should come toa stop till the Governor made regulations under paral9(1)(b) or till the District Council passed laws underPara 3(l)(g). The Governor in the first instance and theDistrict Councils thereafter were vested with the powerto carry on the administration and that in our opinionincluded the power to appoint and remove thepersonnel for carrying on the administration. Doubtlesswhen regulations are made under Para 19(1)(b) or lawsare passed under Para 3(1) with respect to theappointment or removal of the personnel of theadministration, the administration authorities would bebound to follow the regulations so made or the laws sopassed. But from this it does not follow that till theregulations were made or the laws were passed, therecould be no appointment or dismissal of the personnelof the administration. In our opinion, the authoritiesconcerned would at all relevant times have the powerto appoint or remove administrative personnel underthe general power of administration vested in them bythe Sixth Schedule. The view therefore taken by theHigh Court that there could be no appointment orremoval by the District Council without a law havingbeen first passed in that behalf under Para 3(1)(g)cannot be sustained."
9. We pass on to consider the nextcontention of Mr. N. C. Chatterjee that if the executive::: Downloaded on - 31/12/2015 10:00:15 :::HCHPHigh Court of H.P.
Government is held to have power to makeappointments and lay down conditions of servicewithout making rules in that behalf under the provisoto Art. 309, there will be a violation of Arts. 14 and 16because the appointments would be arbitrary andcapricious. In our view, there is no substance in thiscontention of the petitioner. If the State of Rajasthanhad considered the case of the petitioner alongwith theother eligible candidates before appointments to theselection posts there would be no breach of theprovisions of Arts. 14 and 16 of the Constitutionbecause everyone who was eligible in view of theconditions of service and was entitled to considerationwas actually considered before promotion to thoseselection posts were actually made. It was said by Mr.C. B. Agarwala on behalf of the respondents that anobjective evaluation of the merit of the officers is madeeach year and promotion is made on scrutiny of therecord sheets dealing with the competence, efficiencyand experience of the officers concerned. In the presentcase, there is no specific allegation by the petitioner inthe writ petition that his case was not consideredalongwith respondents 3 and 4 at the time of promotionto the posts of Deputy Inspector General of Police in1955 or to the rank of Inspector General of Police orAdditional Inspector General of Police in 1966. Therewas, however, a vague suggestion made by the::: Downloaded on - 31/12/2015 10:00:16 :::HCHPHigh Court of H.P.
petitioner in paragraph 68 of his rejoinder petitiondated July 17, 1967 that "the State Government couldnot have possibly considered my case, as theyconsidered and even in this counteraffidavitconsiderShri Hanuman Sharma and Shri Sultan Singh senior tome by the new type of seniority they have invented fortheir benefit". Even though there is no specificallegation by the petitioner that there was noconsideration of his case, respondent No. 1 hasdefinitely asserted in paragraphs 23, 25, 40 and 44 ofthe counteraffidavitthat at the time of promotion ofrespondents 3 and 4 to the selection posts of DeputyInspector General of Police and of Inspector General ofPolice the case of the petitioner was considered. We aretherefore of the opinion that the petitioner is unable tosubstantiate his argument that there was noconsideration of his case at the time of promotion ofrespondents 3 and 4 to the selection posts. We musttherefore proceed on the footing that respondent No. 1had considered the case of the petitioner and takeninto account the record, experience and merit of thepetitioner at the time of the promotion of respondents 3and 4 to the selection gradeposts.It is therefore notpossible to accept the argument of Mr. N. C. Chatterjeethat there was any violation of the constitutionalguarantee under Arts. 14 and 16 of the Constitution inthe present case.Mr. N. C. Chatterjee argued that the::: Downloaded on - 31/12/2015 10:00:16 :::HCHPHigh Court of H.P.
introduction of the idea of merit into the procedure ofpromotion brings in an element of personal evaluation,and that personal evaluation, opens the door to theabuses of nepotism and favouritism, and so, there wasa violation of the constitutional guarantee under Arts.14 and 16 of the Constitution. We are unable to acceptthis argument as well founded. The question of aproper promotion policy depends on various conflictingfactors. It is obvious that the only method in whichabsolute objectivity can be ensured is for all promotionsto be made entirely on grounds of seniority. Thatmeans that if a post falls vacant it is filled by theperson who has served longest in the post immediatelybelow. But the trouble with the seniority system is thatit is so objective that it fails to take any account ofpersonal merit. As a system it is fair to every officialexcept the best ones, an official has nothing to win orlose provided he does not actually become so inefficientthat disciplinary action has to be taken against him.But, though the system is fair to the officials concerned,it is a heavy burden on the public and a great strain onthe efficient handling of public business. The problem,therefore is how to ensure reasonable prospect ofadvancement to all officials and at the same time toprotect the public interest in having posts filled by themost able man? In other words, the question is how tofind a correct balance between seniority and merit in a::: Downloaded on - 31/12/2015 10:00:16 :::HCHPHigh Court of H.P.
proper promotionpolicy.In this connection Leonard D.White has stated as follows :
"The principal object of a promotionsystem is to secure the best possible incombents forthe higher positions, while maintaining the morale ofthe whole organization. The main interest to be servedis the public interest, not the personal interest ofmembers of the official group concerned the publicinterest is best secured when reasonable opportunitiesfor promotion exist for all qualified employees, whenreally superior civil servants are enabled to move asrapidly up the promotion ladder as their meritsdeserve and as vacancies occur, and when selectionfor promotion is made on the sole basis of merit. Forthe merit system ought to apply as specifically inmaking promotions as in originalrecruitment............Employees often prefer the rule ofseniority, by which the eligible longest in service isautomatically awarded the promotion within limits,seniority is entitled to consideration as one criterion ofselection. It tends to eliminate favouritism or thesuspicion thereof; and experience is certainly a factorin the making of a successful employee. Seniority isgiven most weight in promotions from the lowest toother subordinate positions. As employees move upthe ladder of responsibility, it is entitled to less andless weight. When seniority is made the sole::: Downloaded on - 31/12/2015 10:00:16 :::HCHPHigh Court of H.P.
determining factor, at any level, it is a dangerousguide. It does not follow that the employee longest inservice in a particular grade is best suited forpromotion to a higher grade; the very opposite may betrue."(Introduction to the Study of PublicAdministration, 4th Edn., pp. 380, 383).As a matter of long administrative practicepromotion to selection grade posts in the Indian PoliceService has been based on merit and seniority hasbeen taken into consideration only when merit of thecandidates is otherwise equal and we are unable toaccept the argument of Mr. N. C. Chatterjee that thisprocedure violates, in any way, the guarantee underArts. 14 and 16 of the Constitution.
20. Their Lordships of the Hon'ble Supreme Court in ExcelWear Vs. Union of India and others, AIR 1979 Supreme Court 25 haveheld that the difference pointed out by Supreme Court in AIR 1963 SC
1047 between the doctrinaire approach to the problem of socialism andthe pragmatic one is very apt and may enable the Courts to lean moreand more in favour of nationalization and State ownership of anindustry after the addition of the word 'Socialist' in the Preamble of theConstitution. But so long as the private ownership of an industry isrecognised and governs an overwhelmingly large proportion of our::: Downloaded on - 31/12/2015 10:00:16 :::HCHPHigh Court of H.P.
economic structure, it is possible to say that principles of socialism andsocial justice can be pushed to such an extreme so as to ignorecompletely or to a very large extent the interests of another section ofthe public namely the private owners of the undertakings? TheirLordships have held as under:
“24. We now proceed to deal with the rivalcontentions. But before we do so, we may make somegeneral observations. Concept of socialism or asocialist state has undergone changes from time totime, from country to country and from thinkers tothinkers. But some basic concept still holds the field.In the case of AkadasiPadhan v. State of Orissa,1963 Supp (2) SCR 691 : (AIR 1963 SC 1047) the
question for consideration was whether a lawcreating a State monopoly is valid under the latterpart of Art. 19 (6) which was introduced by the (FirstAmendment) Act, 1951. While considering thatquestion, it was pointed out by Gajendragadkar J., ashe 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 oftendiscussed by political and economic thinkers.Broadly speaking, this discussion discloses adifference in approach. To the socialist,nationalisation or State ownership is a matter of::: Downloaded on - 31/12/2015 10:00:16 :::HCHPHigh Court of H.P.
principle and its justification is the general notion ofsocial welfare. To the rationalist, nationalisation orState ownership is a matter of expediencydominated by considerations of economic efficiencyand increased output of production. This latter viewsupported nationalisation only when it appearedclear that State ownership would be more efficient,more economical and more productive. The formerapproach was not very much influenced by theseconsiderations, and treated it a matter of principlethat all important and nationbuildingindustriesshould come under State control. The first approachis doctrinaire, while the second is pragmatic. Thefirst proceeds on the general ground that all nationalwealth and means of producing it should comeunder national control, whilst the second supportsnationalisation only on grounds of efficiency andincreased output."
The difference pointed out between thedoctrinaire approach to the problem of socialismand the pragmatic one is very apt and may enablethe courts to lean more and more in favour ofnationalisation and State ownership of an industryafter the addition of the word 'Socialist' in thePreamble of the Constitution. But so long as theprivate ownership of an industry is recognised andgoverns an overwhelmingly large proportion of our::: Downloaded on - 31/12/2015 10:00:16 :::HCHP
High Court of H.P.
economic structure, is it possible to say thatprinciples of socialism and social justice can bepushed to such an extreme so as to ignorecompletely or to a very large extent the interests ofanother section of the public namely the privateowners of the undertakings? Most of the industriesare owned by limited companies in which a numberof shareholders, both big and small, holds theshares. There are creditors and depositors andvarious other persons connected with or havingdealings with the undertaking. Does socialism go tothe extent of not looking to the interests of all suchpersons? In a State owned undertaking theGovernment or the Government company is theowner. If they are compelled to close down, they,probably, may protect the labour by several othermethods at their command, even, sometimes at thecost of the public exchequer. It may not be alwaysadvisable to do so but that is a different question.But in a private sector obviously the two mattersinvolved 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 isrunning the business for return to the owner notonly for the purpose of meeting his livelihood orexpenses but also for the purpose of the growth ofthe national economy by formation of more and::: Downloaded on - 31/12/2015 10:00:16 :::HCHPHigh Court of H.P.
more capital. Does it stand to reason that by suchrigorous provisions like those contained in theimpugned sections all these interests should becompletely or substantially ignored? The questionsposed are suggestive of the answers.
21. Their Lordships of the Hon'ble Supreme Court in MinervaMills Ltd. and others Vs. Union of India and others, AIR 1980Supreme Court 1789 have held that merely because the DirectivePrinciples are nonjusticiable,it does not follow that they are in anyway subservient or inferior to the Fundamental Rights. The DirectivePrinciples impose an obligation on the State to take positive action forcreating socioeconomicconditions in which there will be an egalitariansocial order with social and economic justice to all, so that individualliberty will become a cherished value and the dignity of the individual aliving reality, not only for a few privileged persons but for the entirepeople of the country. Their Lordships have held as under:
“112. Now it is interesting to note that althoughfundamental' rights and directive principles appear in theConstitution as distinct entities, there was no suchdemarcation made between them during the period prior tothe framing of the Constitution. If we may quote the wordsof Granville Austin in his book.::: Downloaded on - 31/12/2015 10:00:17 :::HCHPHigh Court of H.P.
Both types of rights had developed as a commondemand, products of the national and social revolutions, oftheir almost inseparable intertwining, and of the characterof Indian politics itself. They were both placed on the samepedestal and treated as falling within the game categorycompendiouly described as "fundamental Rights". TheSapru Committee in its constitutional proposals made in1945, recommended that the declaration of fundamentalrights in its wider sense was absolutely necessary andenvisaged these rights as falling in two classes ; onejusticiable and the other nonjusticiablethe former beingenforceable in courts of law and the latter, not. Thecommittee however, felt difficulty in dividing thefundamental rights into these two classes and, left thewhole issue to be settled by the Constitutionmakingbodywith the observation that though the talk was difficult, itwas by no means impossible. This suggestion of the SapruCommittee perhaps drew its inspiration from the IrishConstitution of 1937, which made a distinction betweenjusticiable and nonjusticiablerights and designated theformer as Fundamental Rights and the latter as DirectivePrinciples of Social Policy. Dr.Lauterpacht also made asimilar distinction between justiciable and nonjusticiablerights in his "international Bill of the Rights of Man". Thesubstantial provisions of this Bill were in two parts; Part Idealt with personal or individual rights enforceable incourts of law while Part II set out social and economic::: Downloaded on - 31/12/2015 10:00:17 :::HCHPHigh Court of H.P.
rights incapable of or unsuitable for such enforcement. SirB. N. Rau, who was the Constitutional Adviser to thegovernment of India, was considerably impressed by theseideas and he suggested that the best way of giving effect tothe objectives set out in the Objectives Resolution was tosplit up the objectives into Fundamental Rights andFundamental Principles of State Policy, the former relatingto personal and political rights enforceable in courts of lawand the latter relating to social and economic rights andother matters, not so enforceable and proposed that the Ch.on fundamental rights may he split up into two parts; Part'a' dealing with the latter kind of rights under the heading"fundamental Principles of Social Policy" and Part 'b'dealing with the former under the heading '"fundamentalRights". The Fundamental Rights SubCommitteealsorecommended that "the list of fundamental rights should beprepared in two parts, the first part consisting of rightsenforceable by appropriate legal process and the secondconsisting of directive principles of social policy".
A weeklater, while moving for consideration, the Interim Report onFundamental Rights, SardarVallabhbhai Patel said:This is a preliminary report or an interim reportbecause the committee when it sat down to consider thequestion of fixing the fundamental rights and itsincorporation into the Constitution, came to the conclusionthat the fundamental rights should be divided into twoparts the first part justiciable and the other non:::Downloaded on - 31/12/2015 10:00:17 :::HCHPHigh Court of H.P.
justiciable. This position was reiterated by SardarVallabhbhai Patel when he said while presenting theSupplementary Report. There were two parts of theReport; one contained fundamental rights which werejusticiable and the other part of the Report referred tofundamental rights which were not justiciable but weredirectives. . It will, therefore, be seen that from the point ofview of importance and significance, no distinction wasdrawn between justiciable and nonjusticiablerights andboth were treated as forming part of the rubric ofFundamental Rights, the only difference being thatwhereas the former were to be enforceable in courts oflaw, the latter were not to be so enforceable. This proposalof dividing the fundamental rights into two parts, one partjusticiable and the other nonjusticiable,was however noteasy of adoption because it was a difficult task to decidein which category a particular fundamental right shouldbe included. The difficulty may be illustrated by pointingout that at one time the right to primary education wasincluded in the draft list of fundamental rights, while theequality clause figured in the draft list of fundamentalprinciples of social policy. But ultimately a division of thefundamental rights into justiciable and nonjusticiablerights was agreed upon by the Constituent Assembly andthe former were designated as fundamental Rights" andthe latter as "directive Principles of State Policy". It hassometimes been said that the fundamental rights deal::: Downloaded on - 31/12/2015 10:00:17 :::HCHPHigh Court of H.P.
with negative obligations of the State not to encroach onindividual freedom, while the directive principles imposepositive obligations on the State to take certain kind ofaction. But, I find it difficult to subscribe to this propositionbecause, though the latter part may he true that thedirective principles require positive action to be taken bythe State, it is not wholly correct to say that thefundamental rights impose only negative obligations onthe State. There are a few fundamental rights which havealso a positive content and that has been, to some extent,unfolded by the recent decisions of this court inHussainaraKhatoon (I) v. State of Bihar, MadhavHayawadanraoHoskot v. State of Maharashtra and SunilBatra (I) v. Delhi Administration. There are newdimensions of the fundamental rights which are beingopened up by this court and the entire jurisprudence offundamental rights is in a stage of resurgent evolution.Moreover, there are three Articles, namely, Article 15 (2) ,Article 17 and Article 23 within the category offundamental rights which are designed to protect theindividual against the action of other private citizens andseen 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 subscribingto the theory that they are merely negative obligationsrequiring the State to abstain as distinct from takingpositive action. The only distinguishing feature, to my::: Downloaded on - 31/12/2015 10:00:17 :::HCHPHigh Court of H.P.
mind, between fundamental rights and directive principlesis that whereas the former are enforceable in a court oflaw, the latter, are not. And the reason for this is obvious.It has been expressed succinctly by the PlanningCommission in the following words :
The nonjustifiabilityclause only provides that theinfant State shall not be immediately called upon to
account for not fulfilling the new obligations laid upon it. AState just awakened to freedom with its many preoccupationsmight be crushed under the burden unless itwas free to decide the order, the time, the place and themode of fulfilling them. The social and economic rights andother matters dealt with in the directive principles are bytheir very nature incapable of judicial enforcement andmoreover, the implementation of many of those rightswould depend on the state of economic development in thecountry, the availability of necessary finances and thegovernment's assessment of priority of objectives andvalues and that is why they are made nonjusticiable.Butmerely because the directive principles are nonjusticiable,it docs not follow that they are in any way subservient orinferior to the fundamental rights.
113. The Indian Constitution is first andforemost a social document. The majority of its provisionsare either directly aimed at furthering the goals of thesocioeconomicrevolution or attempt to foster thisrevolution by establishing the conditions necessary for its::: Downloaded on - 31/12/2015 10:00:17 :::HCHPHigh Court of H.P.
achievement. Yet despite the permeation of the entireConstitution by the aim of national renascence, saysGranville Austin,The core of the commitment to the social revolutionlies. . in the fundamental rights and the directiveprinciples of State policy. Those are the conscience of theConstitution and, according to Granville Austin, they aredesigned to be the chief instruments in bringing aboutthe great reforms of the socioeconomicrevolution andrealising the constitutional goals of social, economic andpolitical justice for all. The fundamental rightsundoubtedly provide for political justice by conferringvarious freedoms on the individual, and also make asignificant contribution to the fostering of the socialrevolution by aiming at a society which will beegalitarian in texture and where the rights of minoritygroups will be protected. But it is in the directiveprinciples that we find the clearest statement of thesocioeconomic revolution. The directive principles aim atmaking the Indian masses free in the positive sense, freefrom the passivity engendered by centuries of coercionby society and by nature, free from the abject physicalconditions that had prevented them from fulfilling theirbest selves. The fundamental rights are no doubtimportant and valuable in a democracy, but there can beno real democracy without social and economic justice tothe common man and to create socioeconomicconditions::: Downloaded on - 31/12/2015 10:00:17 :::HCHPHigh Court of H.P.
in which there can be social and economic justice toeveryone, is the theme of the directive principles. It is thedirective principles which nourish the roots of ourdemocracy, provide strength and vigour to it and attemptto make it a real participatory democracy which does notremain merely a political democracy but also becomessocial and economic democracy with fundamental rightsavailable to all irrespective of their power, position orwealth. The dynamic provisions of the directiveprinciples fertilise the static provisions of thefundamental rights. The object of the fundamental rightsis to protect individual liberty, but can individual libertybe considered in isolation from the socioeconomicstructure in which it is to operate. There is a realconnection between individual liberty and the shape andform of the social and economic structure of the society.Can there be any individual liberty at all for the largemasses of people who are suffering from want andprivation and who are cheated out of their individualrights by the exploitative economic system? Would theirindividual liberty not come in conflict with the liberty ofthe socially and economically more powerful class and inthe process, get mutilated or destroyed? It is axiomaticthat the real controversies in the present day society arenot between power and freedom but between one form ofliberty and another. Under the present socioeconomicsystem, it is the liberty of the few which is in conflict::: Downloaded on - 31/12/2015 10:00:17 :::HCHPHigh Court of H.P.
with the liberty of the many. The directive principlestherefore) impose an obligation on the State to takepositive action for creating socioeconomicconditions inwhich there will be an egalitarian social order with socialand economic justice to all, so that individual liberty willbecome a cherished value and the dignity of theindividual a living reality, not only for a few privilegedpersons but for the entire people of the country. It willthus be seen that the directive principles enjoy a veryhigh place in the constitutional scheme and it is only inthe framework of the socioeconomicstructure envisagedin the directive principles that the fundamental rights areintended to operate, for it is only then they can becomemeaningful and significant for the millions of our poorand deprived people who do not have even the barenecessities of life and who are living below the povertylevel.
117. Now on this question Article 37 is emphatic andmakes the point in no uncertain terms. It says that thedirective principles are "nevertheless fundamental in thegovernance of the country and it shall be the duty of theState to apply these principles in making laws". Therecould not have been more explicit language used by theConstitutionmakersto make the directive principlesbinding on the State and there can be no doubt that theState is under a constitutional obligation to carry out::: Downloaded on - 31/12/2015 10:00:18 :::HCHPHigh Court of H.P.
this mandate contained in Article 37. In fact, noncompliancewith the directive principles would beunconstitutional on the part of the Stale and it would notonly constitute a breach of faith with the people whoimposed this constitutional obligation on the State but itwould also render a vital part of the Constitutionmeaningless and futile. Now it is significant to note thatfor the purpose of the directive principles, the "state" hasthe same meaning as given to it under Article 13 for thepurpose of the fundamental rights. This would meanthat the same State which is injected from taking anyaction in infringement of the fundamental rights is toldin no uncertain terms that it must regard the directiveprinciples as fundamental in the governance of thecountry and is positively mandated to apply them inmaking laws. This gives rise to a paradoxical situationand its implications are farreaching.The State is on theone hand, prohibited by the constitutional injunction inArticle 13 from making any law or taking any executiveaction which would infringe any fundamental right andat the same time it is directed by the constitutionalmandate in Article 37 to apply the directive principles inthe governance of the country and to make laws forgiving effect to the directive principles. Both areconstitutional obligations of the State and the questionis, as to which must prevail when there is a conflictbetween the two. When the State makes a law for giving::: Downloaded on - 31/12/2015 10:00:18 :::HCHPHigh Court of H.P.
effect to a directive principle, it is carrying out aconstitutional obligation under Article 37 and if it wereto be said that the State cannot make such a lawbecause it comes into conflict with a fundamental right,it can only be on the basis that fundamental rightsstand on a higher pedestal and have precedence overdirective principles. But, as we have pointed out above,it is not correct to say that under our constitutionalscheme, fundamental rights are superior to directiveprinciples or that directive principles must yield tofundamental rights. Both are in fact equallyfundamental and the courts have therefore in recenttimes tried to harmonise them by importing the directiveprinciples in the construction of the fundamental rights.It has been laid down in recent decisions of this courtthat for the purpose of determining the reasonablenessof the restrictions imposed on fundamental rights, thecourt may legitimately take into account the directiveprinciples and where executive action is taken orlegislation enacted for the purpose of giving effect to adirective principle, the restriction imposed by it on afundamental right may be presumed to be reasonable. Ido not propose to burden this opinion with reference toall the decided cases where this principle has beenfollowed by the court, but I may refer only to onedecision which, I believe, is the latest on the point,::: Downloaded on - 31/12/2015 10:00:18 :::HCHPHigh Court of H.P.
namely, Pathumma v. State of Kerala, where FazalAli,j.summarised the law in the following words :
One of the tests laid down by this court is that, injudging the reasonableness of the restrictions imposedby clause (5) of Article 19, the court has to bear in mindthe directive principles of State policy. So also in theState of Bihar v. Kameshwar Singh, this court reliedupon the directive principle contained in Article 39 inarriving at its decision that the purpose for which theBihar Zimindari Abolition legislation had been passedwas a public purpose. The principle accepted by thiscourt was that if a purpose is one falling within thedirective principles, it would definitely be a publicpurpose. It may also be pointed out that in a recentdecision given by this court in KasturiLal LakshmiReddy v. State of J. and K. it has been held that everyexecutive action of the government, whether inpursuance of law or otherwise, must be reasonable andinformed with public interest and the yardstick fordetermining both reasonableness and public interest isto be found in the directive principles and therefore, ifany executive action is taken by the government forgiving effect to a directive principle, it would prima faciebe reasonable and in public interest. It will, therefore,be seen that if a law is enacted for the purpose of givingeffect to a directive principle and it imposes a restrictionon a fundamental right, it would be difficult to condemn::: Downloaded on - 31/12/2015 10:00:18 :::HCHPHigh Court of H.P.
such restriction as unreasonable or not in publicinterest. So also where a law is enacted for giving effectto a directive principle in furtherance of theconstitutional goal of social and economic justice it mayconflict with a formalistic and doctrinaire view ofequality before the law, but it would almost alwaysconform to the principle of equality before the law in itstotal magnitude and dimension, because the equality clause in the Constitution does not speak of mere formalequality before the law but embodies the concept of realand substantive equality which strikes at inequalitiesarising on account of vast social and economicdifferentials and is consequently an essential ingredientof social and economic justice. The dynamic principle ofegalitarianism fertilises the concept of social andeconomic justice; it is one of its essential elements andthere can be no real social and economic justice wherethere is a breach of the egalitarian principle. If,therefore, there is a law enacted by the legislaturewhich is really and genuinely for giving effect to adirective principle with a view to promoting social andeconomic justice, it would be difficult to say that suchlaw violates the principle of egalitarianism and is not inaccord with the principle of equality before the law asunderstood not in its strict and formalistic sense, but inits dynamic and activist magnitude. In thecircumstances, the court would not be unjustified in::: Downloaded on - 31/12/2015 10:00:18 :::HCHPHigh Court of H.P.
making the presumption that a law enacted really andgenuinely for giving effect to a directive principle infurtherance of the cause of social and economic justice,would not infringe any fundamental right under Article14 or Article 19. Mr. G. H. Alexandrowick, an eminentjurist, in fact, says: "legislation implementing Part IVmust be regarded as permitted restrictions on Part III".Dr.Ambedkar, one of the chief architects of theConstitution, also made it clear while intervening duringthe discussion on the Constitution (First Amendment)Bill in the LokSabha on 18/05/1951, that in his view,So far as the doctrine of implied powers isconcerned, there is ample authority in the Constitutionitself, namely, in the directive principles "to permitParliament to make legislation, although it will not bespecifically covered by the provisions contained in thepart on fundamental rights". If this be the correctinterpretation of the constitutional provisions, as Ithink it is, the amended Article 31Gdoes no morethan codify the existing position under theconstitutional scheme by providing immunity to a lawenacted really and genuinely for giving effect to adirective principle, so that needlessly futile and timeconsumingcontroversy whether such law contravenesArticle 14 or Article 19 is eliminated. The amendedArticle 31Ccannot in the circumstances be regardedas violative of the basic structure of the Constitution.::: Downloaded on - 31/12/2015 10:00:18 :::HCHP
High Court of H.P.
118. But I may in the alternative, for thepurpose of argument, assume that there may be a fewcases where it may be found by the court, perhaps ona narrow and doctrinaire view of the scope andapplicability of a fundamental right as in KarimbilKunhikoman v. State of Kerala, where a law awardingcompensation at a lower rate to holders of largerblocks of land and at higher rate to holders of smallerblocks of land was struck down by this court' asviolative of the equality clause, that a law enactedreally and genuinely for giving effect to a directiveprinciple is violative of a fundamental right underArticle 14 or Article 19. Would such a law enacted indischarge of the constitutional obligation laid upon theState under Article 37 be invalid, because it infringesa fundamental right? If the court takes the view that itis invalid, would it not be placing fundamental rightsabove directive principles, a position not supported atall by the history of their enactment as also by theconstitutional scheme already discussed by me. Thetwo constitutional obligations, one in regard tofundamental rights and the other in regard to directiveprinciples, are of equal strength and merit and there isno reason why, in case of conflict, the former shouldbe given precedence over the latter. I have alreadypointed out that whether or not a particular mandateof the Constitution is justiciable has no bearing at all::: Downloaded on - 31/12/2015 10:00:18 :::HCHPHigh Court of H.P.
on its importance and significance and justiciability byitself can never be a ground for placing oneconstitutional mandate on a higher pedestal than theother. The effect of giving greater weightage to theconstitutional mandate in regard to fundamentalrights would be to relegate the directive principles to asecondary position and emasculate the constitutionalcommand that the directive principles shall befundamental in the governance of the country and itshall be the duty of the State to apply them in makinglaws. It would amount to refusal to give effect to thewords "fundamental in the governance of the country"and a constitutional command which has beendeclared by the Constitution to be fundamental wouldbe rendered nonfundamental.The result would bethat a positive mandate of the Constitutioncommanding the State to make a law would bedefeated by a negative constitutional obligation not toencroach upon a fundamental right and the law madeby the legislature pursuant to a positive constitutionalcommand would be delegitimised and declaredunconstitutional. This plainly would be contrary to theconstitutional scheme because, as already pointed outby me, the Constitution does not accord a higher placeto the constitutional obligation in regard tofundamental rights over the constitutional obligation inregard to directive principles and does not say that the::: Downloaded on - 31/12/2015 10:00:18 :::HCHPHigh Court of H.P.
implementation of the directive principles shall only bewithin the permissible limits laid down in the Ch. Onfundamental rights. The main thrust of the argumentof Mr.Palkhivala was that by reason of theamendment of Article 31G,the harmony and balancebetween fundamental rights and directive principlesare disturbed, because fundamental rights which had,prior to the amendment, precedence over directiveprinciples are now, as a result of the amendment,made subservient to directive principles. Mr.Palkhivala picturesquely described the positionemerging as a result of the amendment by saying thatthe Constitution is now made to stand on its headinstead of its legs. But in my view the entire premiseon which this argument of Mr.Palkhivala is based isfallacious because it is not correct to say, and I havein the preceding portions of this opinion, given cogentreasons for this view, that prior to the amendmentsfundamental rights had a superior or higher positionin the constitutional scheme than directive principlesand there is accordingly no question at all of anysubversion of the constitutional structure by theamendment. There can be no doubt that the intentionof the Constitutionmakerswas that the fundamentalrights should operate within the socioeconomicstructure or a wider continuum envisaged by thedirective principles, for then only would the::: Downloaded on - 31/12/2015 10:00:19 :::HCHPHigh Court of H.P.
fundamental rights become exercisable by all and aproper balance and harmony between fundamentalrights and directive principles secured. TheConstitutionmakerstherefore never contemplated thata conflict would arise between the constitutionalobligation in regard to fundamental rights and theconstitutional mandates in regard to directiveprinciples. But if a conflict does arise between thesetwo constitutional mandates of equal fundamentalcharacter, how is the conflict to be resolved? TheConstitution did not provide any answer because sucha situation was not anticipated by the Constitutionmakersand this problem had therefore to be solved byParliament and some modus operandi had to beevolved in order to creminate the possibility of conflicthowsoever remote it might be. The way wan shown inno uncertain terms by Jawaharlal Nehru when hesaid in the LokSabha in the course of discussion onthe Constitution (First Amendment) Bill:The directive principles of State policy representa dynamic move towards a certain objective. Thefundamental rights represent something static, topreserve certain rights which exist. Both again are
right. But somehow and sometime it might so happenthat that dynamic movement and that static standstilldo not quite fit into each other.::: Downloaded on - 31/12/2015 10:00:19 :::HCHPHigh Court of H.P.
The dynamic movement towards a certainobjective necessarily means certain changes takingplace : that is the essence of movement. Now it maybe that in the process of dynamic movement certainexisting relationships are altered, varied or affected.In fact, they are meant to affect those settledrelationships and yet if you come back to thefundamental rights they are meant to preserve, notindirectly, certain settled relationships. There is acertain conflict in the two approaches, not inherently,because that was not meant, I am quite sure. Butthere is that slight difficulty and naturally when thecourts of the land have to consider these matters theyhave to lay stress more on the fundamental rightsthan on the directive principles. The result is that thewhole purpose behind the Constitution, which wasmeant to be a dynamic Constitution leading to acertain goal step by step, is somewhat hampered andhindered by the static element being emphasised alittle more than the dynamic element. . If in theprotection of individual liberty you protect alsoindividual or group inequality, then you come intoconflict with that directive principle which wants,according to your own Constitution, a gradualadvance, or let us put it in another way, not sogradual but more rapid advance) whenever possibleto a State where there is less and less inequality and::: Downloaded on - 31/12/2015 10:00:19 :::HCHPHigh Court of H.P.
more and more equality. If any kind of an appeal toindividual liberty and freedom is construed to meanas an appeal to the continuation of the existinginequality, then you get into difficulties. Then youbecome static, unprogressive and cannot change andyou cannot realize the ideal of an egalitarian societywhich I hope most of us aim at. Parliament took theview that the constitutional obligation in regard todirective principles should have precedence over theconstitutional obligation in regard to the fundamentalrights in Articles 14 and 19, because fundamentalrights though precious and valuable for maintainingthe democratic way of life, have absolutely nomeaning for the poor, downtrodden and economicallybackward classes of people who unfortunatelyconstitute the bulls of the people of India and the onlyway in which fundamental rights can be mademeaningful for them is by implementing the directiveprinciples, for the directive principles are intended tobring about a socioeconomic revolution and to create anew socioeconomicorder where there will be socialand economic justice for all and everyone, not only afortunate few but the teeming millions of India, wouldbe able to participate in the fruits of freedom anddevelopment and exercise the fundamental rights.Parliament therefore amended Article 31Cwith aview to providing that in case of conflict directive::: Downloaded on - 31/12/2015 10:00:19 :::HCHPHigh Court of H.P.52
principles shall have precedence over thefundamental rights in Articles 14 and 19 and thelatter shall yield place to the former. The positiveconstitutional command to make laws for giving effectto the directive principles shall prevail over thenegative constitutional obligation not to encroach onthe fundamental rights embodied in Articles 14 and19. Parliament in making this amendment was movedby the noble philosophy eloquently expressed inhighly inspiring and evocative words, full of passionand feeling, by Chandrachud, J. (as he then was) inhis judgment in KesvanandaBharati case at page991 of the Report. I may quote here whatChandrachud, J. (as he then was) said on thatoccasion, for it sets out admirably the philosophywhich inspired Parliament in enacting the amendmentin Article 31C.The learned Judge said:I have stated in the earlier part of my judgmentthat tin' Constitution accords a place of pride tofundamental rights and a place of permanence to thedirective principles. I stand by what I have said. Thepreamble of our Constitution recites that the aim ofthe Constitution is to constitute India into a sovereigndemocratic republic and to secure to "all its citizens",justice social, economic and political liberty andequality. Fundamental rights which are conferred andguaranteed by Part III of the Constitution undoubtedly::: Downloaded on - 31/12/2015 10:00:19 :::HCHPHigh Court of H.P.
constitute the ark of the Constitution and withoutthem a man's reach will not exceed his grasp. But itcannot be overstressed that, the directive principles ofState policy are fundamental in the governance of thecountry. What is fundamental in the governance ofthe country cannot surely be less significant thanwhat is fundamental in the life of an individual. Thatone is justiciable and the other not may show theintrinsic difficulties in making the latter enforceablethrough legal processes but that distinction does notbear on their relative importance. An equal right ofmen and women to an adequate means of livelihood ;the right to obtain humane conditions of workensuring a decent standard of life and full enjoymentof leisure ; and raising the level of health andnutrition are not matters for compliance with the writof a court, As I look at the provisions of Parts III andIV, I feel no doubt that the basic object of conferringfreedoms on individuals, is the ultimate achievementof the ideals set out in Part IV. A circumspect use ofthe freedoms guaranteed by Part III is bound tosubserve the common good but voluntary submissionto restraints is a philosopher's dream. Therefore,Article 37 enjoins the State to apply the directiveprinciples in making laws. The freedom of a few havethen to be abridged in order to ensure the freedom ofall. It is in this sense that Parts III and IV, as said by::: Downloaded on - 31/12/2015 10:00:19 :::HCHPHigh Court of H.P.
Granville Austin together constitute "the conscience ofthe Constitution". The nation stands today at thecrossroads of history and exchanging the timehonoured place of the phrase, may I say that thedirective principles of State policy should not bepermitted to become "a mere rope of sand". If theState fails to create conditions in which thefundamental freedoms could be enjoyed by all, thefreedom of the few will be at the mercy of the manyand then all freedoms will vanish. In order, therefore,to preserve their freedom, the privileged few mustpart with a portion of it. This is precisely whatParliament achieved by amending Article 31C.Parliament made the amendment in Article 31Cbecause it realised that "if the State fails to createconditions in which the fundamental freedoms couldbe enjoyed by all, the freedom of the few will be atthe mercy of the many and then all freedoms willvanish" and "in order, therefore, to preserve theirfreedom, the privileged few must part with a portionof it". I find it difficult to understand how it can at allbe said that the basic structure of the Constitution isaffected when for evolving a modus vivendi forresolving a possible remote conflict between twoconstitutional mandates of equally fundamentalcharacter, Parliament decides by way of amendmentof Article 31Gthat in case of such conflict the::: Downloaded on - 31/12/2015 10:00:19 :::HCHPHigh Court of H.P.
constitutional mandate in regard to directiveprinciples shall prevail over the constitutionalmandate in regard to the fundamental rights underArticles 14 and 19. The amendment in Article 31Gfarfrom damaging the basic structure of the Constitutionstrengthens and reenforcesit by giving fundamentalimportance to the rights of the members of thecommunity as against the rights of a few individualsand furthering the objective of the Constitution tobuild an egalitarian social order where there will besocial and economic justice for all, everyone includingthe low visibility areas of humanity in the country willbe able to exercise fundamental rights and the dignityof the individual and the worth of the human personwhich are cherished values will not remain merely theexclusive privileges of a few but become a livingrealityfor the many. Additionally, this question mayalso be looked at from another point of view so far asthe protection against violation of Article 14 isconcern"d. The principle of egalitarianism. , as I saidbefore, is an essential element of social and economicjustice and, therefore, where a law is enacted forgiving effect to a directive principle with a view topromoting social and economic justice, it would notrun counter to the egalitarian principle arid would nottherefore be violative of the basic structure, even if itinfringes equality before the law in its narrow and::: Downloaded on - 31/12/2015 10:00:19 :::HCHPHigh Court of H.P.
formalistic sense. No law which is really andgenuinely for giving effect to a directive principle canbe inconsistent with the egalitarian principle andtherefore the protection granted to it under theamended Article 31Cagainst violation of Article 14cannot have the effect of damaging the basicstructure. I do not therefore see how any violation ofthe basic structure is involved in the amendment ofArticle 31C.In fact, once we accept the propositionlaid down by the majority decision in KesavanandaBharati case that the unamended Article 31Gwasconstitutionally valid, it could only be on the basisthat it did not damage or destroy the basic structureof the Constitution and moreover in the Order made inWawanRao case on 9/05/1980 this court expresslyheld that the unamended Article 31C"does notdamage any of the basic or essential features of theConstitution or its basic structure", and if that be so, itis difficult to appreciate how the amended Article 31Ccan be said to be violative of the basic structure. Ifthe exclusion of the fundamental rights embodied inArticles 14 and 19 could be legitimately made forgiving effect to the directive principles set out inclauses (b) and (c) of Article 39 without affecting thebasic structure, I fail to see why these fundamentalrights cannot be excluded for giving effect to the otherdirective principles. If the constitutional obligation in::: Downloaded on - 31/12/2015 10:00:20 :::HCHPHigh Court of H.P.
regard to the directive principles set out in clauses (b)and (c) of Article 39 could be given precedence overthe constitutional obligation in regard to thefundamental rights under Articles 14 and 19, there isno reason in principle why such precedence cannot begiven to the constitutional obligation in regard" to theother directive principles which stand on the samefooting. It would, to my mind, be incongruous to holdthe amended Article 31Cinvalid when theunamended Article 31Ghas been held to be valid bythe majority decision in KesavanandaBharati caseand by the Order made on 9/05/1980 in Woman Raocase.
123. I would therefore declare S. 55 of theConstitution (Forty second Amendment) Act, 1976which inserted Ss. (4) and (5) in Article 368 asunconstitutional and void on the ground that itdamages the basic structure of the Constitution andgoes beyond the amending power of Parliament. Butso far as S. 4 of the Constitution (FortysecondAmendment) Act, 1976 is concerned, I hold that, onthe interpretation placed on the amended Article 31Gby me, it does not damage or destroy the basicstructure of the Constitution and is within theamending power of Parliament and I would therefore
declare the amended Article 31Gto be constitutionaland valid.::: Downloaded on - 31/12/2015 10:00:20 :::HCHPHigh Court of H.P.
22. Their Lordships of the Hon'ble Supreme Court in S.P.Gupta Vs. President of India and others , AIR 1982 Supreme Court149 have held that the judiciary has therefore a socio economicdestination and a creative function. It has to use the words of GlanvilleAustin, to become an arm of the socioeconomicrevolution and performan active role calculated to bring social justice within the reach of thecommon man. Their Lordships have held as under:
“26. Having disposed of the preliminary objection inregard to locus standi of the petitioners, we may nowproceed to consider the questions which arise fordetermination in these Writ Petition.The questions are ofgreat constitutional significance affecting the principle ofindependence of the judiciary which is a basic feature ofthe Constitution and we would therefore prefer to begin thediscussion by making a few prefatory remarks highlightingwhat the true function of the judiciary should be in acountry like India which is marching along the road tosocial justice with the banner of democracy and the rule oflaw, for the principle of independence of the judiciary is notan abstract conception but it is a living faith which mustderive its inspiration from the constitutional charter and itsnourishment and sustenance from the constitutionalvalues.It is necessary for every Judge to rememberconstantly and continually that our Constitution is not a::: Downloaded on - 31/12/2015 10:00:20 :::HCHPHigh Court of H.P.
non alignednational charter.It is a document of socialrevolution which casts an obligation on everyinstrumentality including the judiciary, which is a separatebut equal branch of the State, to transform the status quoante into a new human order in which justice, social,economic and political will inform all institutions of nationallife and there will be equality of status and opportunity forall.The judiciary has therefore a socio economic destinationand a creative function.It has to use the words of GlanvilleAustin, to become an arm of the socio economicrevolutionand perform an active role calculated to bring social justicewithin the reach of the common man.It cannot remaincontent to act merely as an umpire but it must befunctionally involved in the goal of socio economicjustice.The British concept of justicing, which to quoteJustice Krishna iyer, is still "bugged by the heirs of our
colonial legal culture and shared by many on the bench" isthat "the business of a Judge is to hold his tongue until thelast possible moment and to try to be as wise as he is paidto look" and in the same strain are the words quoted byProfessor Gordon Reid from 'a memorandum to theVictorian 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 anddetermine issues of fact and of law arising between theking and the subject or between a subject and a subjectpresented in a form enabling judgment to be passed upon::: Downloaded on - 31/12/2015 10:00:20 :::HCHPHigh Court of H.P.
them, and when passed, to be enforced by a process oflaw.There begins and ends the function of thejudiciary.Now this approach to the judicial function maybe alright for a stable and static society but not for asociety pulsating with urges of gender justice, workerjustice, minorities justice, dalit justice and equal justice,between chronic unequals.Where the contest is betweenthose who are socially or economically unequal, thejudicial process may prove disastrous from the point ofview of social justice, if the Judge adopts a merely passiveor negative role and does not adopt a positive and creativeapproach.The judiciary cannot remain a mere bystanderor spectator but it must become an active participant in thejudicial process ready to use law in the service of socialjustice through a proactive goal orientedapproach.Butthis cannot be achieved unless we have judicial cadreswho share the fighting faith of the constitution and whoare imbued with the constitutional values.The necessity ofa judiciary which is in tune with the social philosophy ofthe constitution has nowhere been better emphasisedthan in the words of justice Krishna Iyer which we quote:
Appointment of Judges is a serious process wherejudicial expertise, legal learning, life's experience andhigh integrity are components, but above all are twoindispensables socialphilosophy in active unison withthe socialistic articles of the Constitution, and second, butequally important, built inresistance to pushes and::: Downloaded on - 31/12/2015 10:00:20 :::HCHPHigh Court of H.P.
pressures by class interests, private prejudices,government threats and blandishments, party loyaltiesand contrary economic and political ideologies projectinginto pronouncements.Justice Krishna lyer goes on to sayin his inimitable style :
Justice Cardozo approvingly quoted PresidentTheodore Roosevelt's stress on the social philosophy ofthe Judges, which shakes and shapes the course of anation and, therefore, the choice of Judges for the highercourts which makes and declares the law of the land,must be in tune with the social philosophy of theConstitution.Not mastery of the law alone, but socialvision and creative craftsmanship are important inputsin successful justicing.What is necessary is to haveJudges who are prepared to fashion new tools, forgenew methods, innovate new strategies and evolve a newjurisprudence, who are judicial statesmen with a socialvision and a creative faculty and who have, above all, adeep sense of commitment to the Constitution with anactivist approach and obligation for accountability, not toany party in power nor to the opposition nor to theclasses which are vociferous but to the half hungrymillions of India who are continually denied their basichuman rights.We need Judges who are alive to the socioeconomicrealities of indian life, who are anxious towipe every tear from every eye, who have faith in theconstitutional values and who are ready to use law as::: Downloaded on - 31/12/2015 10:00:20 :::HCHPHigh Court of H.P.
an instrument for achieving the constitutionalobjectives.This has to be the broad blueprint of theappointment project for the higher echelons of judicialservice.It is only if appointments of Judges are madewith these considerations weighing predominantly withthe appointing authority that we can have a trulyindependent judiciary committed only to the Constitutionand to the people of India.The concept of independenceof the judiciary is a noble concept which' inspires theconstitutional scheme and constitutes the foundationonwhich rests the edifice of our democratic polity.If there isone principle which runs through the entire fabric of theConstitution, it is the principle of the rule of law andunder the Constitution, it is the judiciary which isentrusted with the task of keeping every organ of thestate within the limits of the law and thereby making therule of law meaningful and effective.It is to aid thejudiciary in this task that the power of judicial reviewhas been conferred upon the judiciary and it is byexercising this power which constitutes one of the mostpotent weapons in armory of the law, that the judiciaryseeks to protect the citizen against violation of hisconstitutional or legal rights or misuse or abuse of powerby the State or its officers.The judiciary stands betweenthe citizen and the State as a bulwark against executiveexcesses and misuse or abuse of power by the executiveand therefore it is absolutely essential that the judiciary::: Downloaded on - 31/12/2015 10:00:20 :::HCHPHigh Court of H.P.
must be free from executive pressure or influence andthis has been secured by the Constitution makersbymaking elaborate provisions in the Constitution to whichdetailed reference has been made in the judgments inSankalchandShethcase.But it is necessary to remindourselves that the concept of independence of thejudiciary is not limited only to independence fromexecutive pressure or influence but it is a much widerconcept which takes within its sweep independence frommany other pressures and prejudices.It has manydimensions, namely, fearlessness of other powercentres, economic or political, and freedom fromprejudices acquired and nourished by the class to whichthe Judges belong.If we may again quote the eloquentwords of Justice Krishna Iyer :
Independence of the Judiciary is not genuflexion ;nor is it opposition to every proposition of government.Itis neither Judiciary made to opposition measure norgovernment's pleasure.The tycoon, the communalist, theparochialist, the faddist, the extremist and radicalreactionary lying coiled up and subconsciously shapingjudicial mentations are menaces to judicialindependence when they are at variance with Parts IIIand IV of the Paramount Parchment.Judges should be ofstern stuff and tough fibre, unbending before power,economic or political, and they must uphold the coreprinciple of the rule of law which says, "be you ever so::: Downloaded on - 31/12/2015 10:00:20 :::HCHPHigh Court of H.P.
high, the law is above you." This is the principle ofindependence of the judiciary which is vital for theestablishment of real participatory.democracy,maintenance of the rule of law as a dynamic conceptand delivery of social justice to the vulnerable S.of thecommunity.It is this principle of independence of thejudiciary which we must keep in mind while interpretingthe relevant provisions of the constitution.
23. Their Lordships of the Hon'ble Supreme Court in D.S.Nakara and others Vs. Union of India, AIR 1983 Supreme Court 130have held that Article 41 obligates the State within the limits of itseconomic capacity and development, to make effective provision forsecuring the right to work, to education and to provide assistance incases of unemployment, old age, sickness and disablement, and inother cases of undeserved want. Article 43(3) requires the State toendeavour to secure amongst other things full enjoyment of leisure andsocial and cultural opportunities. Their Lordships have held as under:
“32. Having succinctly focussed our attention on theconspectus of elements and incidents of pension the mainquestion may now be tackled. But, the approach of Courtwhile considering such measure, is of paramountimportance. Since the advent of the Constitution, the Stateaction must be directed towards attaining the goals set out::: Downloaded on - 31/12/2015 10:00:21 :::HCHPHigh Court of H.P.
in Part IV of the Constitution which, when achieved, wouldpermit us to claim that we have set up a welfare State.Article 38 (1) enjoins the State to strive to promote welfare ofthe people by securing and protecting as effective as it maya social order in which justice social, economic and politicalshall inform all institutions of the national life. In particularthe State shall strive to minimise the inequalities in incomeand endeavour to eliminate inequalities in status, facilitiesand opportunities. Article 39 (d) enjoins a duty to see thatthere is equal pay for equal work for both men and womenand this directive should be understood and interpreted inthe light of the 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,Chinnappa Reddy, J. speaking for the Court observed asunder (para 1) :"Now, thanks to the rising social and politicalconsciousness and the expectations roused as aconsequence and the forward looking posture of this Court,the underprivileged also are clamouring for their rights andare seeking the intervention of the Court with touching faithand confidence in the Court. The Judges of the Court havea duty to redeem their constitutional oath and do justice noless to the pavement dweller than to the guest of the FiveStar hotel."Proceeding further, this Court observed that whereall relevant considerations are the same, persons holding::: Downloaded on - 31/12/2015 10:00:21 :::HCHPHigh Court of H.P.
identical posts may not be treated differently in the matterof their pay merely because they belong to differentdepartments. If that can't be done when they are inservice, can that be done during their retirement ?Expanding this principle, one can confidently say that ifpensioners form a class, their computation cannot be bydifferent formula affording unequal treatment solely on theground that some retired earlier and some retired later.Article 39 (e) requires the State to secure that the healthand strength of workers, men and women, and children oftender age are not abused and that citizens are not forcedby economic necessity to enter avocations unsuited to theirage or strength.Article 41 obligates the state within thelimits of its economic capacity and development, to makeeffective provision for securing the right to work, toeducation and to provide assistance in cases ofunemployment, old age, sickness and disablement,and inother cases of underserved want.Article 43 (3) requires theState to endeavour to secure amongst other things fullenjoyment of leisure and social and cultural opportunities.
33. Recall at this stage the Preamble, the floodlightilluminating the path to be pursued by the State to set upa Sovereign Socialist Secular Democratic Republic.Expression 'socialist' was intentionally introduced in thePreamble by the Constitution (FortySecondAmendment)Act, 1976. In the Objects and Reasons for amendmentamongst other things, ushering in of socioeconomic::: Downloaded on - 31/12/2015 10:00:21 :::HCHPHigh Court of H.P.
revolution was promised. The clarion call may beextracted:
"The question of amending the Constitution forremoving the difficulties which have arisen in achievingthe objective of socioeconomicrevolution, which wouldend poverty and ignorance and disease and inequality ofopportunity, has been engaging the active attention ofGovernment and the public for some time... ... ..It is, therefore, proposed to amend the Constitutionto spell out expressly the high ideals of socialism... .. .. ..tomake the directive principles morecomprehensive.. ... ... ..."What does a Socialist Republic imply? Socialism isa much misunderstood word. Values determinecontemporary socialism pure and simple. But it is notnecessary at this stage to go into all its ramifications. Theprincipal aim of a socialist State is to eliminate inequalityin income and status and standards of life. The basicframework of socialism is to provide a decent standard oflife to the working people and especially provide securityfrom cradle to grave. This amongst others on economicside envisaged economic equality and equitabledistribution of income. This is a blend of Marxism andGandhism leaning heavily towards Gandhian socialism.During the formative years, socialism aims at providingall opportunities for pursuing the educational activity. Forwant of wherewithal or financial equipment the::: Downloaded on - 31/12/2015 10:00:21 :::HCHPHigh Court of H.P.
opportunity to be fully educated shall not be denied.Ordinarily, therefore, a socialist State provides for freeeducation from primary to Ph. D. but the pursuit must beby those who have the necessary intelligent quotient andnot as in our society where a brainy young man comingfrom a poor family will not be able to prosecute theeducation for want of wherewithal while the ill equippedson or daughter of a well to do father will enter theportals of higher education and contribute to nationalwastage. After the education is completed, socialism aimsat equality in pursuit of excellence in the chosen avocationwithout let or hindrance of caste, colour, sex or religionand with full opportunity to reach the top not thwarted byany considerations of status, social or otherwise. Buteven here the less equipped person shall be assured adecent minimum standard of life and exploitation in anyform shall be eschewed. There will be equitabledistribution of national cake and the worst off shall betreated in such a manner as to push them up the ladder.Then comes the old age in the life of everyone, be he amonarch or a mahatma, a worker or a pariah. The old ageovertakes each one, death being the fulfilment of lifeproviding freedom. from bondage. But here socialism aimsat providing an economic security to those who haverendered unto society what they were capable of doingwhen they were fully equipped with their mental andphysical prowess. In the fall of life the State shall ensure::: Downloaded on - 31/12/2015 10:00:21 :::HCHPHigh Court of H.P.
to the citizens a reasonably decent standard of life,medical aid, freedom from want, freedom from fear andthe enjoyable leisure, relieving the boredom and thehumility of dependence in old age. This is what Article 41aims when it enjoins the State to secure public assistancein old age, sickness and disablement. It was such asocialist State which the Preamble directs the centres ofpower Legislative, Executive and Judiciary to strive to setup. From a wholly feudal exploited slave society to avibrant, throbbing socialist welfare society is a longmarch but during this journey to the fulfilment of goalevery State action (illegible) taken must be directed, andmust be so interpreted, as to take the society one steptowards the goal.
24. Their Lordships of the Hon'ble Supreme Court in SanjeevCoke Manufacturing Company Vs. M/s. Bharat Coking Coal Ltd.And another, AIR 1983 Supreme Court 239 have held that the broadegalitarian principle of social and economic justice for all was implicit inevery Directive Principle and, therefore, a law designed to promote aDirective Principle, even if it came into conflict with the formalistic anddoctrinaire view of equality before the law, would most certainlyadvance the broader egalitarian principle and the desirable::: Downloaded on - 31/12/2015 10:00:21 :::HCHPHigh Court of H.P.
constitutional goal of social and economic justice for all. TheirLordships have held as under:
“16. While we broadly agree with much thathas been said by Bhagwati J. in the extracts above quoted,we do not think that those observations really advance,Mr.Sen's contention. To accept the submission of ShriSen that alaw founded on discrimination is not entitled to theprotection of Article 31C,as such a law can never be said tobe to further the directive principle affirmed in Article 39 (b),would indeed be, to use a hackneyed phrase, to put the cartbefore the horse. If the law made to further the directiveprinciple is necessarily non-discriminatory or is based on areasonable classification, then such law does not need anyprotection such as that afforded by Art. 31C.Such law
would be valid on its own strength, with no aid from Art. 31C.To make it 2 condition precedent that a law seeking thehaven of Art. 31Cmust be non-discriminatory or based onreasonable classification, is to make Article 31Cmeaningless. If Article 14 is not offended, no one need giveany 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 forall was implicit in every Directive Principle and, therefore, alaw designed to promote a Directive Principle, even if it cameinto conflict with the formalistic and doctrinaire view of
::: Downloaded on - 31/12/2015 10:00:21 :::HCHPHigh Court of H.P.
equality before the law, would most certainly advance thebroader egalitarian principle and the desirable constitutionalgoal of social and economic justice for all. If the law wasaimed.at the broader egalitarianism of the DirectivePrinciples, Article 31Cprotected the law from needless,unending and rancorous debate on the question whether thelaw contravened Article 14's concept of equality before thelaw. That is how we understand Bhagwati J.'sobservations. Never for a moment did Bhagwati, J. let in byanother door the very controversy which was shut out byArticle 31C.Of course, the law seeking the immunityafforded by Art. 31Cmust be a law directing the policy ofthe State towards securing a Directive Principle. Here, weare content to use the very words of Article 31C.While weagree with Bhagwati, J. that the object of the law must be togive effect to the Directive Principle and that the connectionwith the Directive Principle must not be 'some remote ortenuous connection', we deliberately refrain from the use ofthe words 'real and substantial', 'dominant', 'basically andessentially necessary' and 'closely and integrallyconnected', lest anyone chase after the meaning of theseexpressions, forgetting for the moment the words of thestatute, as happened once when the words 'substantial andcompelling reasons' were used in connection with appealsagainst orders of acquittal and a whole body of literaturegrew up on what were 'substantial and compelling reasons'.As We have already said, we agree with much that has::: Downloaded on - 31/12/2015 10:00:21 :::HCHPHigh Court of H.P.
been said by Bhagwati J. and what we have now saidabout the qualifying words is only to caution ourselvesagainst adjectives getting the better of the noun. Adjectivesare attractive forensic aids but in matters of interpretationthey are diverting intruders. These observations have thefull concurrence of Bhagwati, J.”25. Their Lordships of the Hon'ble Supreme Court in AtamPrakash Vs. State of Haryana and others (1986) 2 Supreme CourtCases 249 have held that the implication of introduction of the word'socialist' into the Preamble of the Constitution is clearly to set up avibrant throbbing socialist welfare society”. Court must strive to givesuch an interpretation as will promote the march and progress towardsa Socialistic Democratic State. Their Lordships have held as under:
“12. A scrutiny of the list of persons in whosefavour the right of pre-emption is vested under S.. 15reveals certain glaring facts which appear to detract fromthe theory of preservation of the integrity of the family andthe theory of agnatic fight of succession. First we noticethat neither the father nor the mother, figures in the listthough the father's brother does. The son's daughter andthe daughter's daughter do not appear though the son'sson and the daughter's son do.. The sister and the sister'sson are excluded though the brother and the brother's sonare included. Thus relatives of the same degree are::: Downloaded on - 31/12/2015 10:00:22 :::HCHPHigh Court of H.P.
excluded either because they are women or because theyare related through women. It is not as if women and thoserelated through women are altogether excluded becausethe daughter and daughter's son are included. If thedaughter is to be treated on a par with the son.and thedaughter's son is treated on a par with the son's son itdoes not appear logical why the father's son (brother)should be included and not the father's daughter (sister).These are but a few of the intrinsic contradictions thatappear in the list of relatives mentioned in S. 15 as entitledto the right of preemption.It is ununderstandablewhy ason's daughter, a daughter's daughter, a sister or a sister'sson should have no right of pre-emption whereas a father'sbrother's son has that right. As S. 15 stands, if the soleowner of a property sells it to his own father, mother,sister, sister's son, daughter's daughter or son's daughter,the sale can be defeated by the vendor's father's brother'sson claiming a right of preemption.
26. Their Lordshisps of the Hon'ble Supreme Court in SodanSingh 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 bythe 42nd Amendment greater concern must be shown to improve thecondition of the poor population in the country, and every effort shouldbe made to allow them as much benefit as may be possible, but that by::: Downloaded on - 31/12/2015 10:00:22 :::HCHPHigh Court of H.P.
itself cannot remedy all the problems arising from poverty. Even theConstitution as it stood originally was committed to economic justiceand welfare of the needy, but for that reason either then or now theother provisions of the Constitution and the laws cannot be ignored.Their Lordships have held as under:
“22. On behalf of some of the petitioners it wascontended that in view of the inclusion of the word"socialist" 'in the Preamble of the Constitution by the42nd Amendment greater concern must be shown toimprove " the condition of the poor population in thecountry, and every effort should be made to allowthem as much benefit as may be possible. Therecannot be any quarrel with this proposition, but thatby itself cannot remedy all the problems arising frompoverty. Even the Constitution as it stood originallywas committed to economic justice and welfare of theneedy. But for that reason either then or now theother provisions of the Constitution and the lawscannot be ignored. It is therefore, not possible tointerpret the decision in Olga Tellis (AIR 1986 SC180) in the manner suggested on behalf of thepetitioners to bolster their case with the aid of Art.21.::: Downloaded on - 31/12/2015 10:00:22 :::HCHPHigh Court of H.P.
27. Their Lordships of the Hon'ble Supreme Court in D.V.Kapoor Vs. Union of India and others, AIR 1990 Supreme Court 1923have held that the measure of deprivation of pension therefore, must becorrelative to or commensurate with the gravity of the grave misconductor irregularity as it offends the right to assistance at the evening of hislife as assured under Article 41 of the Constitution. Their Lordshipshave held as under:
“6. As seen the exercise of the power by thePresident is hedged with a condition precedent thata finding should be recorded either in departmentalenquiry or judicial proceedings that the pensionercommitted grave misconduct or negligence in thedischarge of his duty while in office, subject of thecharge. In the absence of such a finding thePresident is without authority of law to imposepenalty of withholding pension as a measure ofpunishment either in whole or in part permanently orfor a specified period, or to order recovery of thepecuniary loss in whole or in part from the pension ofthe employee, subject to minimum of Rs. 60/.
7. Rule 9 of the rules empowers thePresident only to withhold or withdraw pensionpermanently or for a specified period in whole or inpart or to order recovery of pecuniary loss caused tothe State in whole or in part subject to minimum.::: Downloaded on - 31/12/2015 10:00:22 :::HCHPHigh Court of H.P.
The employee's right to pension is a statutory right.The measure of deprivation therefore, must hecorrelative to or commensurate with the gravity ofthe grave misconduct or irregularity as it offends theright to assistance at the evening of his life asassured under Art. 41 of the Constitution. Theimpugned order discloses that the Presidentwithheld on permanent basis the payment ofgratuity in addition to pension. The right to gratuityis also a statutory right. The appellant was notcharged with nor was given an opportunity that hisgratuity would be withheld as a measure ofpunishment. No provision of law has been brought toour notice under which, the. President is empoweredto withhold gratuity as well, after his retirement asa measure of punishment. Therefore, the order towithhold the gratuity as a measure of penalty isobviously illegal and is devoid of jurisdiction.”
28. Their Lordships of the Hon'ble Supreme Court in KeralaHotel and Restaurant Association and others Vs. State of Keralaand others (1990) 2 Supreme Court Cases 502 have held that theexpression 'socialist' was intentionally introduced in the Preamble bythe Constitution (FortysecondAmendment) Act, 1976 with theprincipal aim of eliminating inequality in income and status and::: Downloaded on - 31/12/2015 10:00:22 :::HCHPHigh Court of H.P.
standards of life. The emphasis on economic equality in our socialistwelfare society has to pervade all interpretations made in the context ofany challenge based on hostile discrimination. Their Lordships haveheld as under:
“5 The preamble to the Constitution containsthe solemn resolve to secure to all its citizens, interalia, economic and social justice along with equalityof status and opportunity. The expression 'socialist'was intentionally introduced in the preamble by theConstitution (FortySecondAmendment) Act, 1976with the principal aim of eliminating inequality inincome and status and standards of life. Theemphasis on economic equality in our socialistwelfare society has to pervade all interpretationsmade in the context of any challenge based onhostile discrimination. It is on the altar of thisvibrant concept in our dynamic constitution that theattack based on hostile discrimination in thepresent case must be tested when the legislatureintended to rest content with placing the tax burdenonly on the haves excluding the havenotsfrom thetax net for satisfying the tax need from this source.The reasonableness of classification must beexamined on this basis when the object of thetaxing provision is not to tax sale of all cooked foodand thereby tax everyone but to be satisfied with::: Downloaded on - 31/12/2015 10:00:22 :::HCHPHigh Court of H.P.
the revenue raised by taxing only the sale of costlierfood consumed by those who can bear the taxburden.”
29. Their Lordships of the Hon'ble Supreme Court in NarendraKumar Maheshwari Vs. Union of India and others, 1990 (Supp)Supreme Court Cases 440 have held that self made rule can becomeenforceable on the application of persons if it was shown that it hadcreated legitimate expectation in their minds that the authority wouldabide by such a policy/guideline. Where such guidelines are intendedto clarify or implement the conditions and requirements precedent tothe exercise of certain rights conferred in favour of citizens or personsand a deviation therefrom directly affects the ights so vested thepersons whose rights are affected have a clear right to approach theCourt for relief. Sometimes guidelines control the choice of personscompeting with one another for the grant of benefits, largesses orfavours and, if the guidelines are departed from without rhyme orreason, an arbitrary discrimination may result which may call forjudicial review. Their Lordships have held as under:
“69. Shri Ganesh submitted that the CCI is dutybound to act in accordance with the guidelines which laydown the principlesregulating the sanction of capital::: Downloaded on - 31/12/2015 10:00:22 :::HCHPHigh Court of H.P.
issues. This is especially so because the guidelines had beenpublished. It was submitted that the investing public is,therefore, entitled to proceed on the basis that the CCI wouldact in conformity with the guidelines and would enforce themwhile sanctioning a particular capital issue. It was submittedthat it is not permissible to deviate from the guidelines. Inthis connection, reliance was placed by him as well as byShriHaksar, appearing for the petitioner in T.C. No. 161/88,upon the observations of this Court inRamannaDayaramShetty v. International Airport Authority,  3 SCR 10 14,where this Court observed that it must be taken to be thelaw that where the Government is dealing with the public,whether by way of giving jobs or entering into contracts orissuing quotas or licence or granting other forms of largess,the government could not act arbitrarily at its sweet will and,like a private individual, deal with any persons it please, butits action must be in conformity with standard or norm whichis not arbitrary, irrational or irrelevant. We accept theposition that the power of discretionof the government inthe matter of grant of largess including award of jobs,contracts, quotas, licences etc. must be confirmed andstructured by rational, relevant and non-discriminatory standard or norm and if the government departed from suchstandard or norm in any particular case or cases, the actionof the government would be liable to be struck down, unlessit could not be shown by the government that the departurewas not arbitrary but was based on some valid principle::: Downloaded on - 31/12/2015 10:00:22 :::HCHPHigh Court of H.P.
which in itself was not irrational, irrelevant,unreasonableor discriminatory. Mr.Haksar drew our attention to theobservations of this Court in the case ofMotilalPadampatSugar Mills v. Uttar Pradesh,  2 SCR 641, where thisCourt reiterated that claim of change of policy would not besufficient to exonerate the government from the liability; thegovernment would have to show what precisely was thechanged policy and also its reason and justification so thatthe Court could judge for itself which way the public interestlay and what the equity of the case demanded. It wascontended by ShriHaksar that there were departures fromthe guidelines and there was no indication as to why suchdepartures had been made.
106. It may, however, be stated that being notstatutory in character, these guidelines are not enforceable.See the observations of this Court inFernandez v. State ofMysore,  3 SCR 636: Also see R. Abdullah Rowther v.State Transport, etc., AIR 1959 SC 896; Dy.Asst. Iron & SteelController v. Manekchand Proprietor,  3 SCR 1; AndhraIndustrial Work v. CCI & E,  1 SCR 321; K.M.Shanmugham v. S.R.V.S. Pvt. Ltd.,  1 SCR 809). Apolicy is not law. A statement of policy is not a prescriptionof binding criterion. In this connection, reference may bemade to the observations of Sagnata investmentsLtd. v.Norwich Corpn.,  2 QB 614 and p. 626. Also theobservations in British Oxygen Co. v. Board of Trade, AC 6 10. See also Foulkes' Administrative Law, 6th Ed. At::: Downloaded on - 31/12/2015 10:00:23 :::HCHPHigh Court of H.P.
page 18 1184.
In Ex. P. Khan,  1 All E.R. page 40, thecourt held that a circular or self made rule can becomeenforceable on the application of persons if it was shownthat it had created legitimate expectation in their minds thatthe authority would abide by such a policy/guideline.However, the doctrine of legitimate expectationapplies onlywhen a person had been given reason to believe that theState will abide by the certain policy or guideline on thebasis of which such applicant might have been led to takecertain actions. This doctrine is akin to the doctrine ofpromissory estoppel. See also the observationsof LordWilberforce in IRC v. National Federation,  AC 617).However, it has to be borne in mind that the guidelines onwhich the petitioners have relied are not statutory incharacter. These guidelines are not judicially enforceable.The competent authority might depart from these guidelineswhere the proper exercise of his discretion so warrants. Inthe present case, the statute provided that rules can bemade by the Central Government only. Furthermore,according to Section 6(2) of the Act, the competent authorityhas the power and jurisdiction to condone any deviationfrom even the statutory requirements prescribedunder Sections 3 and 4 of the Act. In Regina v. PrestonSupplementary,  1 WLR p. 624 at p. 631, it had beenheld that the Act should be administered with as littletechnicality as possible. Judicial review of these matters,though can always be made where there was arbitrariness::: Downloaded on - 31/12/2015 10:00:23 :::HCHPHigh Court of H.P.
and mala fide and where the purpose of an authority inexercisingits statutory power and that of legislature inconferringthe powers are demonstrably at variance, should
be exercised cautiously and soberly.
107. We would also like to refer to one more aspect ofthe enforceability of the guidelines by persons in the positionof the petitioners in these cases. Guidelines are issued byGovernments and statutory authorities in various types ofsituations. Where such guidelines are intended to clarify orimplement the conditions and requirements precedent to theexercise of certain rights conferred in favour of citizens orpersons and a deviation therefrom directly affects the rightsso vested the persons whose rights are affected have a clearright to approach the court for relief. Sometimes guidelinescontrol the choice of persons competing with one another for
the grant of benefits largesses or favours and, if the guidelinesare departed from without rhyme or reason, an arbitrarydiscrimination may result which may call for judicialreview. In some other instances (as in the RamannaShetty,case), the guidelines may prescribe certain standards ornorms for the grant of certain benefits and a relaxation of, ordeparture from, the norms may affect persons, not directlybut indirectly, in the sense that though they did not seek thebenefit or privilege as they were not eligible for it on thebasis of the announced norms, they might also have enteredthe fray had the relaxed guidelines been made known. Inother words, they would have been potential competitors in::: Downloaded on - 31/12/2015 10:00:23 :::HCHPHigh Court of H.P.
case any relaxation or departure were to be made. In a caseof the present type, however, the guidelines operate in atotally different field. The guidelines do not affect or regulatethe right of any person other than the company applying forconsent. The manner of application of these guidelines,whether strict or lax, does not either directly or indirectly,affect the rights or potential rights of any others or deprivethem, directly or indirectly, of any advantages or benefits towhich they were or would have been entitled. In this context,there is only a very limited scope for judicial review on theground that the guidelines have not been followed or havebeen deviated from. Any member of the public can perhapsclaim that such of the guidelines as impose controls intendedto safeguard the interests of members of the public investingin such public issues should be strictly enforced and notdeparted from departure therefrom will take away theprotection provided to them. The scope for such challengewill necessarily be very narrow and restricted and willdepend to a considerable extent on the nature and extent ofthe deviation. For instance,if debentures were issuedwhich provide no security at all or if the debtequityratio is6000:1 (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 oneor more of the guidelines have not been adhered to evenwhere there are substantial deviations, unless suchdeviations are, by nature and extent such as to prejudice the::: Downloaded on - 31/12/2015 10:00:23 :::HCHPHigh Court of H.P.
interests of the public which it is their avowed object toprotect. Per contra, the Court would be inclined to perhapsoverlook or ignore such deviations, if the object of the statuteor public interest warrant, justify or necessitate suchdeviations in a particular case. This is because guidelines,by their very nature, do not fall into the category oflegislation, direct, subordinate or ancillary. They have onlyan advisory role .to play and nonadherenceto or deviationfrom them is necessarily and implicitly permissible if thecircumstances of any particularfact or law situationwarrants the same. Judicial control takes over only wherethe deviation either involves arbitrariness or discriminationor is so fundamental as to undermine a basic public purposewhich the guidelines and the statute under which they areissued are intended to achieve.
30. Their Lordships of the Hon'ble Supreme Court inCommissioner of Income Tax, Bangalore Vs. Vasudeo V. Dempo,1993 Supp (1) Supreme Court Cases 612 have held that circularsissued by department (Wealth Tax) normally meant to be followed andaccepted by the authorities. Their Lordships have held as under:
“5. We have heard learned Counsel for theparties at length. We do not propose to express anyconsidered opinion as learned Counsel appearing forthe Department fairly accepted that the Act had beenamended on April 1, 1989, and what was provided in the::: Downloaded on - 31/12/2015 10:00:23 :::HCHPHigh Court of H.P.
circular has how been incorporated in the Scheduleitself. That lends support to the view taken by the HighCourt. Further, the Department; as is clear from thecircular, at all points of time, intended that the spousesin Goa should be treated as individuals and grantedexemption accordingly. We, however, consider itnecessary to observe that the circulars issued by theDepartment are normally meant to be followed andaccepted by the authorities. We do not find anyjustification for the officers not following it nor was theDepartment justified in pursuing the matter further inthis Court.”
31. Their Lordships of the Hon'ble Supreme Court inConsumer Education & Research Centre and others Vs. Union ofIndia and others (1995) 3 Supreme Court Cases 42 have held that thejurisprudence of personhood or philosophy of the right to life envisagedunder Article 21, envisages its sweep to encompass human personalityin its full blossom with invigorated health which is a wealth to theworkman to earn his livelihood, to sustain the dignity of person and tolive a life with dignity and equality. Their Lordships have further heldthat right to health and medical care to protect his health and vigourwhile in service or post retirement is a fundamental right of a workerunder Article 21, read with Articles 39(e), 41, 43, 48Aand all related::: Downloaded on - 31/12/2015 10:00:23 :::HCHPHigh Court of H.P.
articles and fundamental human rights to make the life of the workmanmeaningful and purposeful with dignity of person. Their Lordships haveheld as under:
21. Article 38(1) lays down the foundation forhuman rights and enjoins the State to promote thewelfare of the people by securing and protecting, aseffectively as it may, a social order in which justice,social, economic and political, shall inform all theinstitutions of the national life. Art 46 directs the Stateto protect the poor from social injustice and all formsof exploitation. Article 39(e) charges that the policy ofthe State shall be to secure "the health and strength ofthe workers". Article 42 mandates that the Statesshall make provision, statutory or executive "to securejust and humane conditions of work". Article 43directs that the State shall "endeavour to secure to allworkers, by suitable legislation or economicorganisation or any other way to ensure decentstandard of life and full enjoyment of leisure andsocial and cultural opportunities to the workers".Article 48Aenjoins the State to protect and improvethe environment. As human resources are valuablenational assets for peace, industrial or materialproduction, 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::: Downloaded on - 31/12/2015 10:00:23 :::HCHPHigh Court of H.P.
right to standard of adequate living for health andwell being of the individual including medical care,
sickness and disability. Article 2(b) of the InternationalConvention on Political, Social and Cultural Rightsprotects the right of worker to enjoy just and favourable conditions of work ensuring safe and
healthy working conditions.
22. The expression 'life' assured in Art.21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of life, hygienic conditionsin work place and leisure. In Olga Tellis v. BombayMunicipal Corporation, (1985) 3 SCC 545 : (AIR 1986SC 180), this Court held that no person can live without the means of living i.e. means of lively hood. Ifthe right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him ofhis 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 lifeliveable. The right to life with human dignityencompasses within its fold, some of the finer facetsof human civilisation which makes life worth living.The expanded connotation of life would mean the::: Downloaded on - 31/12/2015 10:00:23 :::HCHPHigh Court of H.P.
tradition and cultural heritage of the personsconcerned. In State of H.P. v.Umed Ram Sharma,(1986) 2 SCC 68 : (AIR 1986 SC 847), this Court heldthat the right to life includes the quality of life asunderstood in its richness and fullness by the ambit ofthe Constitution. Access to road was held to be anaccess to life itself in that State.”
32. Their Lordships of the Hon'ble Supreme Court in Surjit Singh Vs. State of Punjab and others AIR 1996 Supreme Court 1388have held as under:
“It is otherwise important to bear in mind that self preservation of one's life is the necessary co concomitant of the right to life enshrined in Article 21 of the Constitution ofIndia, fundamental in nature, sacred, precious andinviolable. The importance and validity of the duty and right to self defence in criminal law. Centuries ago thinkers of thisGreat land conceived of such right had recognised it.Attention can usefully be drawn to verses 17, 18, 20 and22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in thewords of the Divine.”
33. Their Lordships of the Hon'ble Supreme Court in DirectorGeneral of Posts and others Vs. B. Ravindran and another (1997) 1::: Downloaded on - 31/12/2015 10:00:24 :::HCHPHigh Court of H.P.
Supreme Court Cases 641 have held that the intention behind theorders issued in 1963, 1964, 1978 and 1983 was to give some more benefit to the reemployed pensioners/exservicemen. The effect of the benefit was to be given at a stage prior to the consideration of hardship.Their Lordships have further held that under these circumstances, the Government could not have, under the guise of a clarificatory order, taken away the right which had accrued to such reemployedpensioners with retrospective effect by declaring that while consideringhardship the last pay drawn at the time of retirement was to becompared with the initial pay plus pension whether ignorable or not. The 1985 clarificatory 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 theorders. Their Lordships have held as under:
“15. However it was submitted by the learnedcounsel for the appellants that the orders which wereissued in 1963, 1964,1978 and 1983 did not deal withthe 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 ofaltering or modifying the 1958 policy. When the entirepension was made ignorable in the case of personnel::: Downloaded on - 31/12/2015 10:00:24 :::HCHPHigh Court of H.P.
below Commissioned Officers rank the positionsubstantially changed and therefore the Governmentwas obliged to clarity that as contemplated by the 1958instructions hardship is to be seen from the pointwhether pay plus pension plus pension equivalent ofgratuity (whether ignorable or not) was less than the etime of retirement. What the Government thereby didwas to reiterate that it there was no hardship noadvance increment should be granted. What isoverlooked by the learned counsel is that he intentionbehind the orders issued in 1963, 1964, 1978 and 1983was to give some more benefit to the re-employedpensioner/ex-servicemen. The effect of the benefit was tobe given at a stage prior to the consideration ofhardship. The ignorable part of the pension was to beignored while totalling up the initial pay plus thepension in order to find out whether the retiredpensioner thereby was likely to get more or less thanwhat he was getting at the time of the retirement. Tothat the 1958 policy stood altered or modified. Thoughthe said four order did not directly deal with the aspectof hardship they did by widening the gap between theinitial pay plus the non-ignorale part of the pension andthe pay he drew before his retirement and therebyfurther necessitated giving of advance increments toalleviate hardship. It is, therefore, not correct to say thatthose orders had no concern with the aspect of hardship.What the contention raised on behalf of the appellantsfurther overlooks is that pursuant to the orders issued in::: Downloaded on - 31/12/2015 10:00:24 :::HCHPHigh Court of H.P.
1963 and 1964 corresponding amendments were madein Articles 521 and 526 of Civil Service Regulations. Thesaid Regulations were some time prior to 1914 and hadacquired statutory authority under Section 96-B(4) ofthe government of India Act, 1919 and have beencontinued in force by virtue of Article 313 of theConstitution. They are, therefore. statutory in nature.After its amendment in 1964 it read as under:-
"526(a) .... .... ....
(b) .... .... ....
(c) In case of service personnel who retire from theForces before attaining the age of 55 and are re- employedin civil posts on or after 16th January 1964 thepension shown below shall be ignored in fixing theirpay on re-employment-
(i) in the case of pensions not exceeding Rs. 50 Permensem, the actual pension;
(ii) In other case the first Rs. 50 of the pension.
16. The subsequent orders issued in 1978 and1983 were supplementary in nature and did have abinding force. Under these circumstances, theGovernment could not have, under the guise of aclarificatory order, taken away the right which hadaccrued to such re-employed pensioners withretrospective effect by declaring that while consideringhardship the last pay drawn at the time or retirementwas to be compared with the initial pay plus pensionwhether ignorable or not. The 1985 clarificatoryinstructions were not only in consistent with the::: Downloaded on - 31/12/2015 10:00:24 :::HCHPHigh Court of H.P.
relevant provisions of the Civil Service Regulations andthe 1978 and 1983 orders but its effect was to
supersede the said provision and the orders. TheTribunal was, therefore, right in holding the saidinstructions in so far as it directed to take intoconsideration the ignorable part of the pension alsowhile considering hardship invalid and without anyauthority of law. These appeals are, therefore, dismissedwith no order as to costs.
34. Their Lordships of the Hon'ble Supreme Court in SamathaVs. State of A.P. and others (1997) 8 Supreme Court Cases 191 haveheld that it is an established rule of interpretation that to establishSocialist Secular Democratic Republic, the basic structure under therule of law, pragmatic, broad and wide interpretation of theConstitution makes social and economic democracy with liberty,equality of opportunity, equality of status and fraternity a reality to “we,the people of India”, who would include the Scheduled Tribes. All Stateactions should be to reach the above goal with this march under rule oflaw. Their Lordships have further held that it is necessary to considerat this juncture the meaning of the word “socialism” envisaged in thePreamble of the Constitution. Establishment of the egalitarian socialorder through rule of law is the basic structure of the Constitution. TheFundamental Rights and the Directive Principles are the means, as two::: Downloaded on - 31/12/2015 10:00:24 :::HCHPHigh Court of H.P.
wheels of the chariot, to achieve the above object of democraticsocialism. The word “socialist” used in the Preamble must be read fromthe goals Articles 14, 15, 16, 17,21, 23, 38, 39, 46 and all other cognatearticles seek to establish, i.e., to reduce inequalities in income andstatus and to provide equality of opportunity and facilities. TheirLordships have held as under:
“52. The word 'person' in the interplay of juristicthought is either natural or artificial. Natural persons arehuman beings while artificial persons are Corporations.Corporations are either Corporation aggregate orCorpora-tion sole. In "English Law" by Kenneth Smithand Denis Keenan (Seventh Edition) at page 127, it isstated that "(L)egal personality is not restricted tohuman beings. In fact various bodies and associations ofpersons can, by forming a corporation to carry out theirfunctions, create an organisation with a range of rights
and duties not dissimilar to many of those possessed byhuman beings. In English law such corporations areformed either by charter, statute or registration underthe Companies Acts; there is also the common lawconcept of the Corporation Sole". At page 163, it isfurther stated that "(T) he Crown is the executive head inthe United Kingdom and Commonwealth, andgovernment departments and civil servants act on behalfof 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::: Downloaded on - 31/12/2015 10:00:24 :::HCHPHigh Court of H.P.
human being to which the law attributes personality. Thisextension, for good and sufficient reasons, of the conceptionof personality beyond the class of human beings isone of the most noteworthy feats of 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 not only a naturalperson, but a body politic, that is to say, a corporationsole. The visible wearer of the crown is merely the livingrepresentative and agent for the time being of thisinvisible and underlying persona ficta, in whom by lawthe powers and prerogatives of the government of thisrealm are vested". In "Jurisprudence" by R.W.M. Dias(Fifth Edition), at page 265, it is stated that".... the valueof personifying group activities is further reduced by thefact that courts have evolved ways of dealing with suchactivities without resorting to the device of persona".
79. It is necessary to consider at this juncturethe meaning of the "socialism" envisaged in thePreamble of the Constitution. Establishment of theegalitarian social order through rule of law is the basicstructure of the Constitution. The Fundamental Rightsand the Directive Principles are the means, as twowheels of the chariot, to achieve the above object ofdemocratic socialism. The word "socialist" used in thePreamble must be read from the goals Articles 14, 15,16, 17, 21, 23, 38, 39, 46 and all other cognate Articlesseek to establish, i.e., to reduce inequalities in incomeand status and to provide equality of opportunity and::: Downloaded on - 31/12/2015 10:00:24 :::HCHPHigh Court of H.P.
facilities. Social justice enjoins the Court to upholdgovernment's endeavour to remove economicinequalities, to provide decent standard of living to thepoor and to protect the interest of the weaker sectionsof the society so as to assimilate all the sections of thesociety in the secular integrated socialist Bharat withdignity of person and equality of status to all.
107. It is an established rule of interpretation thatto establish Socialist Secular Democratic Republic, thebasic structure under the rule of law, pragmatic broadand wide interpretation of the Constitution makessocial and economic democracy with liberty, equality ofopportunity, equality of status and fraternity a reality to"we, the people of India", who would include theScheduled Tribes. All State actions should be to reachthe above goal with this march under rule of law. Theinterpretation of the words 'person' 'regulation' and'distribution' require to be broached broadly toelongate socio-economic justice to the tribals. The word'regulates' in para (2)(b) of the Fifth Schedule to theConstitution and the title of the Regulation would notonly control allotment of land to the Tribes inScheduled 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 prohibitingtransfer inter vivos fay tribals to the non-tribals or nontribalsinter se, the first clauses includes the StateGovernment or being an juristic person integral schemeof para 5(2) of Schedule, The Regulation seeks to::: Downloaded on - 31/12/2015 10:00:24 :::HCHPHigh Court of H.P.
further achieve the object of declaring with apresumptive evidence that the land in the ScheduledAreas belongs to the Scheduled Tribes and any transfermade to a non-tribal shall always be deemed to havebeen made by a tribal unless the transferee establishthe contra. It also prohibits transfer of the land in anyform known to law and declared such transfer as voidexcept by way of testamentary disposition by a tribal tohis kith and kin/tribal or by partition among them. Theregulation and its predecessor law in operation in therespective areas regulate transfer between a tribal andnon-tribal with prior permission of the designatedofficer as a condition precedent to prevent exploitationof the tribals. If a tribal is unwilling to purchase landfrom a non-tribal, the State Government is enjoined topurchase the land from a non-tribal as per theprinciples set down in the regulations and to distributethe same to a tribal or a cooperative society composed solely of tribals.”
35. Their Lordships of the Hon'ble Supreme Court in AIR IndiaStatutory Corporation and others Vs. United Labour Union andothers (1997) 9 Supreme Court Cases 377 have held that Preamble ofthe Constitution, as its integral part, is designed to realize socioeconomicjustice to all people including workmen, harmoniouslyblending the details enumerated in the Fundamental Rights and the::: Downloaded on - 31/12/2015 10:00:25 :::HCHPHigh Court of H.P.
Directive Principles. The Act is a social welfare measure to further thegeneral interest of the community of workmen as opposed to theparticular interest of the individual entrepreneur. Their Lordships haveheld as under:
“14. As noted, the appellant, to start with, was astatutory authority but pending appeal in this Court, due tochange in law and in order to be in tune with open economy,it became a company registered under the Companies Act.To consider its sweep on the effect of Heavy Engineeringcase (AIR 1970 SC 82) on the interpretation of the phrase"appropriate Government", it would be necessary torecapitulate the Preamble, Fundamental Rights (Part III) andDirective Principles (Part IV) trinitysetting out theconscience of the Constitution deriving from the source "We,the people", a charter to establish an egalitarian social orderin which social and economie justice with dignity of personand equality of status and opportunity, are assured to everycitizen in a socialist democratie Bharat Republic. TheConstitution, the Supreme law heralds to achieve the abovegoals under the rule of law. Life of law is not logic but is oneof experience. Constitution provides an enduring instrument,designed to meet the changing needs of each succeedinggeneration altering and adjusting the unequal conditions topave way for social and economie democracy within thespirit drawn from the Constitution. So too, the legal redressalwithin the said parameters. The words in the Constitution or::: Downloaded on - 31/12/2015 10:00:25 :::HCHPHigh Court of H.P.
in an Act are but a frame work of the concept which maychange more than the words themselves consistent with themarch of law. Constitutional issues require interpretationbroadly not by play of words or without the acceptance ofthe line of their growth. Preamble of the Constitution, as itsintegral part, is designed to realise socioeconomicjustice toall people including workmen, harmoniously Wending thedetails enumerated in the Fundamental Rights and theDirective Principles. The Act is social welfare measure tofurther the general interest of the community of workmen asopposed to the particular interest of the individualentrepreneurs. It seeks to achieve a public purpose, i.e.,regulated conditions of contract labour and to abolish itwhen it is found to be of perennial nature etc. The individualinterest can, therefore, no longer stem the forward flowingtide and must, of necessity give way to the broader publicpurpose of establishing social and economie democracy inwhich every workman realises socioeconomicjusticeassured in the Preamble, Arts. 14, 15 and 21 and theDirective 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) 2Supreme Court Cases 109 have held that executive instructions issuedto fill up the gaps in statutory provisions have binding force. TheirLordships have held as under:
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“56. In State of Uttar Pradesh v. Chandra Mohan Nigam&Ors., 1978 (1) SCR 521, this Court, while consideringthe validity of Rule 16(3) of the All India Services(Death- Cum-Retirement Benefits) rules, 1958, whichempowered the Central Government to compulsorilyretire a member of the All India Service, took note ofthe instructions issued by the Government and observed:-
"Since rule 16(3) itself does not contain anyguidelines, directions or criteria, the instructions issued
by the Government furnish an essential and salutaryprocedure for the purpose of securing uniformity in applicationof the rule. These instructions really fill up theyawing gaps in the provisions and are embedded in theconditions of service. These are binding on the Governmentand cannot be violated to the prejudice of the Governmentservant." [p. 531]57.In Supreme Court Advocates-On-Record Association&Ors. v. Union of India, 1993 (4) SCC 441,one of us, Verma j., as the learned Chief Justice thenwas, speaking for the majority, after pointing out that inactual practice, the real accountability in the matter ofappointments 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 ofthe constitutional provisions relating to the appointmentsof the superior judges, wherein the executive itselfholds out that it gives primacy to the opinion of the::: Downloaded on - 31/12/2015 10:00:25 :::HCHPHigh Court of H.P.
Chief Justice of India, and in the matter of accountability also it indicates the primaryresponsibility of the Chief Justice of India, it stands to reason that the actualpractice 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 supersession ofthe earlier O.M. dated 05.06.1998. The real nature of O.M. dated05.06.1998 is that the statutory benefits have been made applicable tothe retired Government officials not residing in CGHS areas. Rightshave accrued to the retired Government officials on the basis of O.M.dated 5.6.1998 and the same could not be taken away on the basis ofnotification dated 20.08.2004.
37. Their Lordships of the Hon'ble Supreme Court in Secretary,H.S.E.B. Vs. Suresh and others (1999) 3 Supreme Court Cases 601 have heldthat the democratic policy ought to survive with full vigour: socialiststatus as enshrined in the Constitution ought to be given its full playand it is in this perspective the question arisesisit permissible in thenew millennium to decry the cry of the labour force desirous ofabsorption after working for more than 240 days in an establishmentand having their workings supervised and administered by an agencywithin the meaning of Article 12 of the Constitution. The answercannot possible be in the affirmative. The law courts exist for thesociety and in the event the law courts feel the requirement in::: Downloaded on - 31/12/2015 10:00:25 :::HCHPHigh Court of H.P.
accordance with principles of justice, equity and good conscience, thelaw courts ought to rise up to the occasion to meet and redress theexpectation of the people. Their Lordships have further held thatsocialism ought not to be treated as a mere concept or an ideal, but thesame ought to be practiced in every sphere of life. India is a SocialistState as the Preamble depicts and the aim of socialism, therefore, oughtto be to distribute the common richness and the wealth of the countryin such a way so as to subserve the need and the requirement of thecommon man. Their Lordships have held as under:
“3. Ours is a socialist State as the Preambledepicts and the aim of socialism, therefore, ought to be todistribute the common richness and the wealth of thecountry in such a way so as to subservethe need and the requirement of the common man. Article 39 is a pointer in thatdirection. Each clause under the Article specifically fixescertain social and economic goal so as to expand the horizonof benefits to be accrued to the general public at large. Inparticular reference to Article 39(a) it is seen that the Stateought to direct its policies in such a manner so that thecitizens menand women equally, have the right of anadequate means of livelihood and it is in this perspectiveagain that the enactment in the statute book as noticedabove (The Contract Labour (Regulation and Abolition) Act1970) ought to be read and interpreted so that social and::: Downloaded on - 31/12/2015 10:00:25 :::HCHPHigh Court of H.P.
economic justice may be achieved and the constitutionaldirective be given a full play.
10. Turning attention, however, on to the legislative intentin the matter of enactment of the Act of 1970, at the firstblush itself, it appears that in expression of its intent, thelegislature very aptly coined the enactment, as such, forregulation and abolition of contract labour. Conceptually,engagement of contract labour by itself lends to variousabuses and in accordance with devout objective asenshrined in the Constitution and as noticed herein before,this enactment has been introduced in the statute book inthe year 1970, to regulate contract labour and to provide forits abolition in certain circumstances since prior to such, thefactum of engagement of contract labour stood be set withexploiting tendencies and resulted in unwholesome labourpractice.
18. As noticed above Draconion concept of law is nolonger available for the purpose of interpreting a social andbeneficial piece of legislation specially on the wake of thenew millennium. The democratic polity ought to survive withfull vigour: socialist status as enshrined in the Constitutionought to be given its full play and it is in this perspective thequestion arises isit permissible in the new millennium todecry the cry of the labour force desirous of absorption afterworking for more than 240 days in an establishment andhaving their workings supervised and administered by anagency within the meaning of Article 12 of the Constitution :::Downloaded on - 31/12/2015 10:00:25 :::HCHPHigh Court of H.P.
the answer cannot possibly be in the affirmative thelawCourts exist for the society and in the event law Courts feelthe requirement in accordance with principles of justice,equity and good conscience, the law Courts ought rise up tothe occasion to meet and redress the expectation of thepeople. The expression 'regulation' cannot possibly be readas contra public interest but in the interest of public.
38. Their Lordships of the Hon'ble Supreme Court in G.B. PantUniversity of Agriculture and Technology Vs. State of U.P., AIR2000 Supreme Court 2695 have held that socialistic concept of thesociety as laid down in Part III and IV of the Constitution ought to beimplemented in the true spirit of the Constitution. Their Lordships haveheld as under:
“3. There cannot possibly be any doubt thatsocialistic concept of the society as laid down in Part III andIV of the Constitution ought to be implemented in the truespirit of the Constitution. Decisions are there of this Courtgalore wherein this Court on more occasions than one statedthat democratic socialism aims to end poverty, ignorance,disease and inequality of opportunity. In D. S. Nakara'scase, (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 SCC601 : 1999 AIR SCW 892 : AIR 1999 SC 1160 : (1999 Lab IC::: Downloaded on - 31/12/2015 10:00:26 :::HCHPHigh Court of H.P.
1323), the same has been well pronounced and we need notdilate on that score any further.In this case, the plea of financial implication was rejectedby the Hon'ble Supreme Court.
39. Their Lordships of the Hon'ble Supreme Court inMunicipal Corporation of Delhi Vs. Female Workers (Muster Roll)and another (2000) 3 Supreme Court Cases 224 have held that a justsocial order can be achieved only when inequalities are obliterated andeveryone is provided what is legally due. These observations have beenmade by their Lordships of the Hon'ble Supreme Court whileinterpreting Maternity Benefit Act, 1961 visavisArticle 42 of theConstitution of India. Their Lordships have held as under:
“33. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. When who constitute almost half of the segmentof our society have to be honoured and treated with dignityat places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities towhich 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::: Downloaded on - 31/12/2015 10:00:26 :::HCHPHigh Court of H.P.
towards her and must realise the physical difficulties which a working woman would face in performing her duties at thework place while carrying a baby in the womb or whilerearing up the child after birth. The Maternity Benefit Act,1961 aims to provide all these facilities to a working womanin a dignified manner so that she may overcome the state ofmotherhood honourably, peaceably, undeterred by the fearof being victimised for forced absence during the pre or postnatalperiod.
40. Their Lordships of the Hon'ble Supreme Court in Steel Authority of India Ltd. and others Vs. National Union WaterfrontWorkers and others (2001) 7 SCC 1 have held the Preamble to theConstitution is the lodestar and guides those who find themselves in agrey area while dealing with its provisions. It is now well settled that ininterpreting a beneficial legislation enacted to give effect to the DirectivePrinciples of State Policy which is otherwise constitutionally valid, theconsideration 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 workforce.Article 23 prohibits, inter alia, beggar and other similarforms of forced labour. The Directive Principle of State Policyincorporated in Art. 38 mandates the State to secure a social::: Downloaded on - 31/12/2015 10:00:26 :::HCHPHigh Court of H.P.
order for promotion of welfare of the people and to establishan egalitarian society. Art. 39 enumerates the principles ofpolicy of the State which include welfare measures for theworkers. The State policy embodied in Art. 43 mandates theState to endeavour to secure, by a suitable legislation oreconomic organisation or in any other way for all workers,agricultural, industrial or otherwise, work a living wageconditions of work ensuring a decent standard of life andfull enjoyment of leisure and social and culturalopportunities. Art. 43A enjoins on the State to take steps bysuitable legislation or in any other way to secure theparticipation of workers in the management of undertaking,establishment, or other organizations engaged in anyindustry. The fundamental rights enshrined in Arts. 14 and16 guarantee equality before law and equality ofopportunity in public employment. Of course, the preambleto the Constitution is the lodestar and guides those who findthemselves in a grey area while dealing with its provisions.It is now well settled that in interpreting a beneficiallegislation enacted to give effect to directive principles of thestate policy which is otherwise constitutionally valid, theconsideration of the Court cannot be divorced from thoseobjectives. In a case of ambiguity in the language of abeneficial labour legislation, the Courts have to resolve thequandary in favour of conferment of, rather than denial of, a benefit on the labour by the legislature but without rewritingand/or doing violence to the provisions of the enactment.::: Downloaded on - 31/12/2015 10:00:26 :::HCHPHigh Court of H.P.
41. Their Lordships of the Hon'ble Supreme Court in State ofUttaranchal and others Vs. SidharthSrivastava and others (2003) 9Supreme Court Cases 336 have held that administrative order existsunless it is quashed or it ceases to operate for any other reason. TheirLordships have held as under:
“21 In terms of Section 86 of the Act, it wasargued that the reservation policy of the State of U.P. isembodied in the Uttar Pradesh Service (Reservation forScheduled Castes, Scheduled Tribes and OtherBackward Classes) Act, 1994, the executive decisiondated 29.8.2001 cannot override the U.P. act of 1994(supra) because the State Act continues to remain inforce in Uttaranchal by virtue of the Section 86 of theAct. Assuming that be the position, as and whenUttaranchal State Public Service Commission proceedsto make selection, the policy contained in the U.P. Act of1994 is to be followed unless it is amended by theLegislature of the State of Uttaranchal. It cannot also becontended that the State of Uttaranchal has no right tohave its own reservation policy to meet therequirements of the new State having due regard tovarious factors. Moreover, when the selection made bythe UPPSC itself, as already stated above, is not for theState of Uttaranchal and it has no legal or binding effectto compel the State of Uttaranchal to appoint theselected candidates, the question of applying::: Downloaded on - 31/12/2015 10:00:26 :::HCHPHigh Court of H.P.
reservation policy as embodied in U.P. Act of 1994 doesnot arise. Consequently, this contention also fails.
42. Their Lordships of the Hon'ble Supreme Court in M.Nagaraj and others Vs. Union of India and others (2006) 8 SupremeCourt cases 212 have held that principles of fedralism, secularism,reasonableness and socialism, etc. are beyond the words of a particularprovision. They are systematic and structural principles underlying andconnecting various provisions of the Constitution. They give coherenceto the Constitution. They make the Constitution an organic whole.
Their Lordships have further held that social justice is one of the subdivisionsof the concept of justice. It is concerned with distribution ofbenefits and burdens throughout a society as it results from socialinstitutions. Their Lordships have held as under:
“19. Constitution is not an ephermal legal documentembodying a set of legal rules for the passing hour. It setsout principles for an expanding future and is intended toendure for ages to come and consequently to be adapted tothe various crisis of human affairs. Therefore, a purposiverather than a strict literal approach to the interpretationshould be adopted. A Constitutional provision must beconstrued not in a narrow and constricted sense but in awide and liberal manner so as to anticipate and takeaccount of changing conditions and purposes so that::: Downloaded on - 31/12/2015 10:00:26 :::HCHPHigh Court of H.P.
constitutional provision does not get fossilized but remainsflexible enough to meet the newly emerging problems andchallenges.
20. This principle of interpretation is particularlyapposite to the interpretation of fundamental rights. It is afallacy to regard fundamental rights as a gift from theState to its citizens. Individuals possess basic humanrights independently of any constitution by reason ofbasic fact that they are members of the human race.These fundamental rights are important as they possessintrinsic value. PartIIIof the Constitution does not conferfundamental rights. It confirms their existence and givesthem protection. Its purpose is to withdraw certainsubjects from the area of political controversy to placethem beyond the reach of majorities and officials and toestablish them as legal principles to be applied by thecourts. Every right has a content. Every foundationalvalue is put in PartIIIas fundamental right as it hasintrinsic value. The converse does not apply. A rightbecomes a fundamental right because it has foundationalvalue. Apart from the principles, one has also to see thestructure of the Article in which the fundamental value isincorporated. Fundamental right is a limitation on thepower of the State. A Constitution, and in particular thatof it which protects and which entrenches fundamentalrights and freedoms to which all persons in the State areto be entitled is to be given a generous and purposive::: Downloaded on - 31/12/2015 10:00:26 :::HCHPHigh Court of H.P.
construction. In the case of Sakal Papers (P) Ltd. & Othersv. Union of India and others this Court has held that whileconsidering the nature and content of fundamental rights,the Court must not be too astute to interpret the languagein a literal sense so as to whittle them down. The Courtmust interpret the Constitution in a manner which wouldenable the citizens to enjoy the rights guaranteed by it inthe fullest measure. An instance of literal and narrowinterpretation of a vital fundamental right in the IndianConstitution is the early decision of the Supreme Court inthe case of A.K. Gopalan v. State of Madras . Article 21 ofthe Constitution provides that no person shall be deprivedof his life and personal liberty except according toprocedure established by law. The Supreme Court by amajority held that 'procedure established by law' meansany procedure established by law made by the Parliamentor the legislatures of the State. The Supreme Court refusedto infuse the procedure with principles of natural justice. Itconcentrated solely upon the existence of enacted law.After three decades, the Supreme Court overruled itsprevious decision in A.K. Gopalan10 and held in itslandmark judgment in Maneka Gandhi v. Union of Indiaand another that the procedure contemplated by Article 21must answer the test of reasonableness. The Court furtherheld that the procedure should also be in conformity withthe principles of natural justice. This example is given to
demonstrate an instance of expansive interpretation of a::: Downloaded on - 31/12/2015 10:00:26 :::HCHPHigh Court of H.P.
fundamental right. The expression 'life' in Article 21 doesnot connote merely physical or animal existence. The rightto life includes right to live with human dignity. This Courthas in numerous cases deduced fundamental featureswhich are not specifically mentioned in PartIIIon theprinciple that certain unarticulated rights are implicit inthe enumerated guarantees. For example, freedom ofinformation has been held to be implicit in the guaranteeof freedom of speech and expression. In India, till recently,there is no legislation securing freedom of information.However, this Court by a liberal interpretation deducedthe right to know and right to access information on thereasoning that the concept of an open government is thedirect result from the right to know which is implicit in theright of free speech and expression guaranteed underArticle 19(1)(a).
24. The point which is important to be noted is thatprinciples of federalism, secularism, reasonableness andsocialism etc. are beyond the words of a particularprovision. They are systematic and structural principlesunderlying and connecting various provisions of theConstitution. They give coherence to the Constitution.They make the Constitution an organic whole. They arepart of constitutional law even if they are not expresslystated in the form of rules.
27. Under the Indian Constitution, the word'federalism' does not exist in the preamble. However, its
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principle (not in the strict sense as in U.S.A.) is delineatedover various provisions of the Constitution. In particular,one finds this concept in separation of powers underArticles 245 and 246 read with the three lists in theseventh schedule to the Constitution.
33. From these observations, which arebinding on us, the principle which emerges is that"equality" is the essence of democracy and, accordingly abasic feature of the Constitution. This test is veryimportant. Free and fair elections per se may notconstitute a basic feature of the Constitution. On theirown, they do not constitute basic feature. However, freeand fair election as a part of representative democracy isan essential feature as held in the Indira Nehru Gandhiv. Raj Narain (Election case). Similarly, federalism is animportant principle of constitutional law. The word'federalism' is not in the preamble. However, as statedabove, its features are delineated over various provisionsof the Constitution like Articles 245, 246 and 301 and thethree lists in the seventh schedule to the Constitution.
34. However, there is a difference betweenformal equality and egalitarian equality which will bediscussed later on.
50. Social justice is one of the subdivisionsofthe concept of justice. It is concerned with the distributionof benefits and burdens throughout a society as it results::: Downloaded on - 31/12/2015 10:00:27 :::HCHPHigh Court of H.P.
from social institutions property systems, publicorganizations etc.
51. The problem is what should be the basisof distribution? Writers like Raphael, Mill and Hume
define 'social justice' in terms of rights. Other writers likeHayek and Spencer define 'social justice' in terms ofdeserts. Socialist writers define 'social justice' in terms ofneed. Therefore, there are three criteria to judge the basisof distribution, namely, rights, deserts or need. Thesethree criteria can be put under two concepts of equality"formal equality" and "proportional equality". "Formalequality" means that law treats everyone equal and doesnot favour anyone either because he belongs to the
advantaged section of the society or to thedisadvantaged section of the society. Concept of"proportional equality" expects the States to takeaffirmative action in favour of disadvantaged sections ofthe society within the framework of liberal democracy.
102. In the matter of application of theprinciple of basic structure, twin tests have to besatisfied, namely, the 'width test' and the test of'identity'. As stated hereinabove, the concept of the'catchup'
rule and 'consequential seniority' are notconstitutional requirements. They are not implicit inclauses (1) and (4) of Article 16. They are notconstitutional limitations. They are concepts derived fromservice jurisprudence. They are not constitutional::: Downloaded on - 31/12/2015 10:00:27 :::HCHP
High Court of H.P.
principles. They are not axioms like, secularism,federalism etc. Obliteration of these concepts or insertionof these concepts do not change the equality codeindicated by Articles 14, 15 and 16 of the Constitution.Clause (1) of Article 16 cannot prevent the State fromtaking cognizance of the compelling interests ofbackward classes in the society. Clauses (1) and (4) ofArticle 16 are restatements of the principle of equalityunder Article 14. Clause (4) of Article 16 refers toaffirmative action by way of reservation. Clause (4) ofArticle 16, however, states that the appropriateGovernment is free to provide for reservation in caseswhere it is satisfied on the basis of quantifiable datathat backward class is inadequately represented in theservices. Therefore, in every case where the Statedecides to provide for reservation there must exist twocircumstances, namely, 'backwardness' and 'inadequacyof representation'. As stated above equity, justice andefficiency are variable factors. These factors are contextspecific.There is no fixed yardstick to identify and
measure these three factors, it will depend on the factsand circumstances of each case. These are thelimitations on the mode of the exercise of power by theState. None of these limitations have been removed bythe impugned amendments. If the concerned State failsto identify and measure backwardness, inadequacy andoverall administrative efficiency then in that event the::: Downloaded on - 31/12/2015 10:00:27 :::HCHPHigh Court of H.P.
provision for reservation would be invalid. Theseamendments do not alter the structure of Articles 14, 15and 16 (equity code). The parameters mentioned inArticle 16(4) are retained. Clause (4A) is derived fromclause (4) of Article 16. Clause (4A) is confined to SCsand STs alone. Therefore, the present case does notchange the identity of the Constitution. The word"amendment" connotes change. The question is whetherthe impugned amendments discard the originalconstitution. It was vehemently urged on behalf of thepetitioners that the Statement of Objects and Reasonsindicate that the impugned amendments have beenpromulgated by the Parliament to overrule the decision ofthis court. We do not find any merit in this argument.Under Article 141 of the Constitution the pronouncementof this court is the law of the land. The judgments of thiscourt in Virpal Singh1, Ajit Singh (I)2 , Ajit Singh (II)3 andIndra Sawhney5, were judgments delivered by this courtwhich enunciated the law of the land. It is that lawwhich is sought to be changed by the impugnedconstitutional amendments. The impugned constitutionalamendments are enabling in nature. They leave it to theStates to provide for reservation. It is wellsettledthatthe Parliament while enacting a law does not providecontent to the "right". The content is provided by thejudgments of the Supreme Court. If the appropriateGovernment enacts a law providing for reservation::: Downloaded on - 31/12/2015 10:00:27 :::HCHPHigh Court of H.P.
without keeping in mind the parameters in Article 16(4)and Article 335 then this court will certainly set asideand strike down such legislation. Applying the "widthtest", we do not find obliteration of any of theconstitutional limitations. Applying the test of "identity",we do not find any alteration in the existing structure ofthe equality code. As stated above, none of the axiomslike secularism, federalism etc. which are overarchingprinciples have been violated by the impugnedconstitutional amendments. Equality has two facets"formal equality" and "proportional equality". Proportionalequality is equality "in fact" whereas formal equality isequality "in law". Formal equality exists in the Rule ofLaw. In the case of proportional equality the State isexpected to take affirmative steps in favour ofdisadvantaged sections of the society within theframework of liberal democracy. Egalitarian equality isproportional equality.
103. The criterion for determining the validityof a law is the competence of the lawmaking
authority.The competence of the lawmakingauthority would depend on the ambit of the legislative power, and thelimitations imposed thereon as also the limitations onmode of exercise of the power. Though the amendingpower in Constitution is in the nature of a constituentpower and differs in content from the legislative power,the limitations imposed on the constituent power may::: Downloaded on - 31/12/2015 10:00:27 :::HCHPHigh Court of H.P.
be substantive as well as procedural. Substantivelimitations are those which restrict the field of theexercise of the amending power. Procedural limitationson the other hand are those which impose restrictionswith regard to the mode of exercise of the amendingpower. Both these limitations touch and affect theconstituent power itself, disregard of which invalidatesits exercise. [See: KihotoHollohan v. Zachillhu& Others.
43. Their Lordships of the Hon'ble Supreme Court in NandiInfrastructure Corridor Enterprises Limited and others Vs. ElectionCommission of India and another (2010) 13 Supreme Court Cases
334 have explained the difference between terms “Cancel” and“Suspend”. Their Lordships have held as under:
“4. It is surprising that by jugglery of words the use of theexpression`cancel' in paragraph 2 of the order dated8/5/2008 has been tried to be justified. If that was theintention, the same should have been conveyed to the StateGovernment after the order of cancellation was passed. Theexpressions "cancel" and "suspend" are conceptuallydifferent. At the same time there could not have beencancellation and suspension. "Cancel" means to destroy theforce, effectiveness or validity of an order, a decision, tobring to nothingness. "Suspend" means to debar temporarilya privilege or make temporarily ineffective. To "suspend" is::: Downloaded on - 31/12/2015 10:00:27 :::HCHPHigh Court of H.P.
to take a temporary measure while to "cancel" has anelement of permanency.”
44. Their Lordships of the Hon'ble Supreme Court in GeneralManager (Operations) State Bank of India and another Vs. R.Periyasamy (2015) 3 Supreme Court Cases 101 have held thatPresumption is that the decision or executive order is properly andvalidly made and the initial onus of proof rests upon party alleginginvalidity of order validly made. Their Lordships have held as under:
“14. In administrative law, it is a settled principlethat the onus of proof rests upon the party alleging theinvalidity of an order. In other words, there is apresumption that the decision or executive order isproperly and validly made, a presumption expressed inthe maxim omniapraesumuntur rite esseacta whichmeans 'all things are presumed to be done in due form.
15. The Division Bench, in appeal, apparently found itfit to rely on an additional affidavit filed for the firsttime by the respondent in his Writ Petition, referring tothe letter dated 30.12.1987 by which the respondent ispurported to have sought the production of certaindocuments. It is not disputed that the respondent hadnot at any stage earlier made any grievance that he hadwritten a letter dated 30.12.1987 calling upon the bankto produce certain documents for his perusal and whichwas denied. It is further not in dispute that there is no::: Downloaded on - 31/12/2015 10:00:27 :::HCHP
High Court of H.P.
record of the bank having received the letter and thereis no proof for it. The bank has denied receiving theletter and according to the bank they had received aletter dated 28.12.1987 and they had replied by theirletter dated 14.01.1988. In their reply, there was noreference to the letter dated 30.12.1987 because theyhad not received it. We find that in the absence of proofthat any such letter demanding certain documents wasreceived by the bank, it was not permissible for theHigh Court to proceed to draw an inference that therewas a failure of natural justice in the bank havingdenied certain documents. Thus it may be said, that anadministrative authority such as the Appellant, cannotbe put to proof of the facts or conditions on which thevalidity of its order must depend, unless the Respondentcan produce evidence which will shift the burden ofproof on the shoulders of the Appellant. How muchevidence is required for this purpose will always dependon the nature of that particular case. In PotatoMarketing Board v. Merricks, it was held that if anorder has an apparent fault on the face of it, the burdenis 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 ofthe Hon'ble Supreme Court as discussed hereinabove, it is held that a“socialist State”, as the Preamble depicts, is the basic structure of the::: Downloaded on - 31/12/2015 10:00:28 :::HCHPHigh Court of H.P.
Constitution of India read with other cognate Articles of PartIIIandPartIVof the Constitution of India. Similarly, the 'welfare State' is thebasic feature of the Constitution of India. There is a difference between'basic structure' and 'basic features' of the Constitution. Their lordshipsof the Hon'ble Supreme Court of India in Supreme Court AdvocatesonRecordAssociationand another Vs. Union of India, JT 2015 (10)SC1 have held that the expressions “'basic structure” and “basicfeatures” of the Constitution convey different ideas though some of thelearned Judges used those expressions interchangeably. The basicstructure of the Constitution is the sum total of the basic features ofthe Constitution. Some of the basic features identified so far by thisCourt are democracy, secularism, equality of status, independence ofjudiciary, judicial review and some of the fundamental rights. Most ofthe basic features identified so far in the various cases referred to
earlier are not emanations of any single Article of the Constitution.They are concepts emanating from a combination of a number ofArticles each of them creating certain rights or obligations or both.
Their Lordships have held as under:
“497. An analysis of the judgments of the abovementioned cases commencing from Bharati case yields thefollowing propositions: (I) Article 368 enables the Parliamentto amend any provision of the Constitution; (ii) The power::: Downloaded on - 31/12/2015 10:00:28 :::HCHPHigh Court of H.P.
under Article 368 however does not enable the Parliament todestroy the basic structure of the Constitution; (iii) None ofthe cases referred to above specified or declared what is thebasic structure of the Constitution; (iv) The expressions“basic structure” and “basic features” convey different ideas
though some of the learned Judges used those expressionsinterchangeably. (v) The basic structure of the Constitution isthe sum total of the basic features of the Constitution;(vi)Some of the basic features identified so far by this Court aredemocracy, secularism, equality of status, independence of
judiciary, judicial review and some of the fundamentalrights; (vii) The abrogation of any one of the basic featuresresults normally in the destruction of the basic structure ofthe Constitution subject to some exceptions; (viii) As towhen the abrogation of a particular basic feature can besaid to destroy the basic structure of the Constitutiondepends upon the nature of the basic feature sought to be
amended and the context of the amendment. There is nouniversally applicable test visàvisall the basic features.
498. Most of the basic features identified so far in thevarious cases referred to earlier are not emanations of anysingle Article of the Constitution. They are conceptsemanating from a combination of a number of Articles eachof them creating certain rights or obligations or both (for thesake of easy reference I call them “ ELEMENTS ”). Forexample, (a) when it is said that democracy is a basicfeature of our Constitution, such a feature, in my opinion,::: Downloaded on - 31/12/2015 10:00:28 :::HCHPHigh Court of H.P.
emerges from the various articles of the Constitution whichprovide for the establishment of the legislative bodies(Parliament and the State Legislatures) and the Articleswhich prescribe a periodic election to these bodies based onadult franchise; the role assigned to these bodies, that is, to
make laws for the governance of this Country in theirrespective spheres ; and the establishment of anindependent machinery for conducting the periodic electionsetc.;
(b) the concept of secularism emanates fromvarious Articles 15 and 16 which prohibits the State frompracticing any kind of discrimination on the ground ofreligion and Articles 25 to 30 which guarantee certainfundamental rights regarding the freedom of religion toevery person and the specific mention of such rights withreference to minorities.
499. The abrogation of a basic feature may ensue asa consequence of the amendment of a single Article in thecluster of Articles constituting the basic feature as ithappened in Minerva Mills case and Indira Nehru Gandhicase.”
46. The legislation and the policies of theState must be propoor,proscheduledcaste, scheduled
tribes and other weaker sections of the society includingthe pensioners. The system must give due respect and::: Downloaded on - 31/12/2015 10:00:28 :::HCHPHigh Court of H.P.
maintain the dignity of the retired personnel by providing themsufficient means including good health care in their twilight years.
47. In the instant case, O.M. dated 05.06.1998 was neithersuspended nor cancelled. According to O.M. dated 20.08.2004, thematter was required to be discussed, but the Court can take judicial
notice of the fact that since till date, no decision has been taken, theUnion of India has accepted the applicability of O.M. dated 05.06.1998,otherwise some decision was bound to have been taken either tosuspend or cancel O.M. dated 05.06.1998 for 17 years. In view of thelanguage employed in O.M. dated 20.08.2004, the principle ofcontemporaneaexpositiowould not be attracted. It is wrong on the partof the petitioners to contend that O.M. dated 05.06.1998 wassuperseded. Word 'supersession' has not been mentioned at all in O.M.dated 20.08.2004. O.M. dated 05.06.1998 also supplemented theCS(MA) Rules, 1944.
48. O.M. dated 5.6.1998 was discussed by the learned CentralAdministrative 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 theDivision Bench of Gujarat High Court in SCA No. 3843/2004, wherebythe petition filed by the Union of India was dismissed on 02.04.2004::: Downloaded on - 31/12/2015 10:00:28 :::HCHPHigh Court of H.P.
and also by the Punjab and Haryana High Court in CWP No. 6559 of2006, decided on 13.03.2008. In this petition also, a specific groundhas been taken that identical issues raised in O.A. No. 205/2003, titledas Mr.Prabhakar Sridhar Bapat Vs. Union of India and Another waspending before the Hon'ble Supreme Court including the applicability ofO.Ms. dated 5.6.1998 and 20.08.2004. The Hon'ble Supreme Courthas dismissed the SLPs. on 03.04.2012. The Review Petition was alsodismissed by the Hon'ble Supreme Court on 30.10.2013. Thus, thejudgment rendered by the learned Central Administrative TribunalAhmedabad Bench in O.A. No. 205 of 2003 on 10.11.2003, which hasmerged in the judgment rendered by the Division Bench of GujaratHigh Court in Special Civil Application No. 3843/2004 decided on02.04.2004, were upheld by the Hon'ble Supreme Court on 03.04.2012.
49. The Union of India should have taken a common senseview to address the serious issue of welfare of its retired employees. Wecan take judicial notice of the fact that a retired person needs moremedical care visavisa young employee. A serving employee, whoenjoys benefits under the CS(MA) Rules, 1944, cannot be left high anddry immediately after retirement for want of medical care. His medicalissues are required to be looked into with more sensitivity, compassionand sympathy. His genuine requirements for medical treatment cannot::: Downloaded on - 31/12/2015 10:00:28 :::HCHPHigh Court of H.P.
be permitted to be buried in the labyrinth of red tapism. Therecommendations of the Pay Commission, though recommendatory,have to be given highest regard, since the Central Government hasplanned to improve the conditions of service of Central Governmentemployees by examining, reviewing, evolving and recommendingchanges including pension and other retiral benefits.
50. The Seventh Central Pay Commission constituted videnotification, dated 28.02.2014, has also strongly recommended theintroduction of Health Insurance Scheme for Central Governmentemployees and pensioners. In the interregnum, for the benefit ofpensioners residing outside the CGHS areas, the Commissionrecommended that CGHS should empanel those hospitals which are
already empanelled under CS(MA)ECHS for catering to the medicalrequirements of these pensioners on a cashless basis. The Commissionhas also recommended that the remaining 33 postal dispensariesshould be merged with CGHS and all postal pensioners, irrespective oftheir participation in CGHS while in service, should be covered underCGHS after making requisite subscription.
51. The legal maxim “saluspopulisupremalexesto” 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 Government to protect health and vigour of retired Government officials, this being their fundamental right under Article 21, read with Articles 39(3), 41,43, 48A of the Constitution of India. The steps should be taken by theState to protect health, strength and vigour of the workmen. Non providing of postretirement medical care to retired Government official in a city not covered by CGHS at par with in service employee wouldresult in violation of Article 21 of the Constitution of India. Moreover,employees need medical care most after their retirement. The Statecannot call its own actions as wrong. We have clarified and explainedO.M. dated 20.08.2004 and it is made clear that all the CentralGovernment pensioners residing in non CGHS areas would be covered either under the CS(MS) Rules, 1944 or CGHS as per their option to besought for by the Central Government. In order to avoid litigation, thisjudgment shall apply to all the retired Government officials residing in non CGHS areas. There should be equality of health benefits to retireesas well in their evenings of life. There cannot be any discriminationwhile extending the social benefits to in service and retirees. It is theprime responsibility of the State to protect the health of its workers. In::: Downloaded on - 31/12/2015 10:00:28 :::HCHPHigh Court of H.P.
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 areas to save it from unconstitutionality and to make it workable. The higherCourts have to evolve new interpretive tools in changing times. The neocapitalism may concentrate wealth in the hands of few persons whichwould be contrary to the philosophy of the Constitution of India. Rightto health is a human right. The action of the petitioner Union of India not to reimburse the medical bills to the respondent and also not givingoption to him and similarly situate persons residing in a city notcovered under CGHS 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 theConstitution of India. The decision in matters pertaining to the healthof the employee should be taken with utmost humane approach.
53. Ordinarily we would have ordered the retired Governmentofficials to refund the amount already received by them, but taking intoconsideration that this would be oppressive and cause undue hardshipto them, we order the Union of India not to make recoveries from therespondent and similarly situate persons residing in nonCGHSareasin the event of their opting for CS(MA) Rules or CGHS.
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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 nonCGHSareas for
medical coverage either under CGHS Scheme or under CS(MA) Rules,1994 as per Office Memorandum, dated 05.06.1998 within a period ofsix months. Henceforth, the pensioners should be given one time option at the time of their retirement for medical coverage under the CGHSScheme or CS(MA) Rules, 1994. The Union of India is also directed to release a sum of `1,79,559/incurred by the respondent on his treatment and a sum of `20,000/incurred by the respondent towards post operation follow up, medicines and transportation charges within aperiod of three months from today, failing which, the respondent shall be entitled to interest @12% per annum. The miscellaneousapplication(s), if any, also stand(s) disposed of. No costs.
“Saluspopuli supreme alexes toThe health of the people should be supreme law”.
December 28, 2015
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