judgement:
(Civil) No. 1247 of 1986.
244 (Under Article 32 of the Constitution of India).
Ranji Thomas and T. Sridharan for the Petitioners.
B.P. Beri, B.R. Agarwala, Miss Sushma Manchanda, Miss A. Subhashini, B.D. Sharma, R.S. Yadav, Yogeshwar Prasad, Mrs. section Dikshit, H.K. Puri and P. Paremeshwaran for the Respond ents.
The following Order of the Court was delivered: ORDER The facts of this case are indeed, distressing.
The Lions Club, Pottery Town at Khurja in Uttar Pradesh arranged and conducted, as part of its social service programme, an "Eye Camp" intended to extend facilities of expert Ophthal mic surgical services to the residents of the town.
The Club invited Dr. R.M. Sahay of the Sahay Hospital, Jaipur and his team of doctors to offer the surgical services.
The Camp was arranged in 'Aggarwal Dharamshala ' at Novelty Road, Khurja.
Dr. R.M. Sahay and his team of doctors and para medical staff, who arrived in Khurja on 21st April, 1986, examined about 122 patients.
One hundred and eight patients were operated upon, 88 of them for Cataract which, with the modern advances in Ophthalmic Surgery, is considered a relatively minor and low risk surgery.
Dr. Sahay left Khurja that evening for Moradabad where he was scheduled to conduct similar operations at another "Eye Camp.
" But the whole programme at Khurja, however laudable the intentions with which it might have been launched, proved a disastrous medical misadventure for the patients.
The oper ated eyes of the patients were irreversibly damaged, owing to a post operative infection of the Intra Ocular Cavities of the operated eyes.
The doctors present at the Camp got in touch with Dr. Sahay at Moradabad and administered anti biotic medication, both oral and local, for the infection.
Dr. Sahay returned on the 24th April and undertook himself some ameliorative treatment.
But the operated eyes had been damaged completely.
Similar mishap, but on lesser scale affecting some 15 patients, repeated itself at Moradabad.
Some of the victims were later sent to and treated at Dr. Sahay 's Hospital at Jaipur.
But their condition did not improve.
It is now undisputed that this terrible medical mishap was due to common contaminating source.
The suggestion in the Report of the 245 enquiries that ensued is that, in all probability, the source of the infection, referred to as E coli infection of the intra ocular cavity, was the "normal saline" used on the eyes at the time of surgery.
Dr. Sahay who had himself brought all medicines and surgical instruments for use at the Camp claims to have purchased the Saline from a certain M/s. Mehtaad Company, Jaipur on 22.3.1986 under Invoice No. 1533.
The matter was brought before this Court in the form of a Public Interest Litigation under Article 32 by two social activists, Shri A.S. Mittal and Shri Om Prakash Tapas, acting on behalf of an organisation called 'Union for Welfare and Human Rights '.
Originally, the four respondents were the State of U.P., Dr. R.M. Sahay, the Chief Medical Officer, Buland Sahar District (U.P.) and the Lions Club of Pottery Town, Khurja.
However, this Court by its order dated 26.9.1986 directed the Indian Medical Council and the Union of India to be impleaded as parties to the proceedings.
All the respondents have filed their respective counter affida vits.
In the Writ Petition, the petitioners have made serious allegations about the very bona fides of, and the intention behind, the sponsoring of the iII fated 'eye camp ' and have alleged that motives of monetary gains by way of State and International subsidies.
But no material is placed before the Court to substantiate this allegation.
The prayers in the writ petition are that: the victims of this medical mishap be given expert rehabilitatory treatment and appro priate compensation; that Government do conduct a thorough investigation as to the conditions which rendered a medical misadventure of such a scale possible and evolve proper guide lines which will prevent recurrence of such tragedies; and that appropriate legal action be instituted against Dr. R.M. Sahay and his team and also against officers of the Government who, according to allegations, committed serious breaches of duty in sanctioning permission for the conduct of the 'eye camp ' without ensuring a strict compliance with the conditions prescribed in the Guidelines prescribed by the Government in that behalf and in not effectively dis charging the duties enjoined upon them to over see the satisfactory and safe functioning of the camp.
At the directions of the Government of Uttar Pradesh, the Deputy Director (Eye Treatment).
conducted an inquiry into the happenings and his report and recommendations submitted to the Government are produced in the proceedings.
Similarly, the inquiry report dated 8.6.1986 conducted by Shri Shatrughan Singh, Sub Divisional Magistrate, Khurja as to the incident, are also before the Court.
We 246 have perused these reports and the counter affidavits and heard learned counsel.
So far as the grievance in the Writ Petition of prosecutorial inaction on the part of the Government and the need to direct Government to initiate appropriate action against those responsible for the tragedy is concerned, it was submitted before us that persuant to the results of the inquiries conducted by the Deputy Director (Eye Treatment) and the Sub Divisional Magistrate, appropriate follow up action is contemplated by the Government against persons concerned and that, indeed, a criminal case has been regis tered against Dr. R.M. Sahay under Section 338 of the Indian Penal Code.
It was, however, submitted on behalf of Dr. R.M. Sahay, Respondent No. 2, that we should abstain from saying any thing which might tend to pre judge merits of the prosecu tion.
In his counteraffadivit, Dr. Sahay says: "The police has registered a case u/s 338 of the Indian Penal Code, against the Answering Respondent, and he has been admitted to bail.
Any process by which the answering respondent would be compelled to disclose, in advance, his defence at the criminal trial by replying to specific allegations in the Writ Petition would be violative of article 20(3) of the Con stitution of India, in so far as it concerns the Answering Respondent.
" Referring to the limited scope of the present proceed ings, Dr. Sahay expresses the confidence: " . that in view of the noble objective of this kind litigation, it will not in any manner be prejudicial to the answering re spondent.
" We think we should accept the submission of the doctor and should abstain from pronouncing on the question of culpable rashness or negligence on the part of the doctors or others against whom separate action is either pending or contemplated.
But there are some assumptions and Statements in counteraffidavit of Dr. Sahay that cannot be allowed to pass without comment.
It is undisputed that out of those operated at Khurja, at least 84 persons suffered permanent damage of the operated eyes.
It is said 247 that about 15 similar cases occurred at the Moradabad 'Eye Camp '.
Indeed, in the course of his counter affidavit, Dr. Sahay admitted the unfortunate event which he called a "Mishap": "The medical mishap at the Khurja Camp is the only one he has encountered in his entire extensive experience." "Despite all possible care MISHAPS cannot always be avoided in human errors because the error of one link in the entire chain may sometime result in a total failure.
" But the doctor 's description of what happened to the victims is somewhat of an over simplification.
As to the. devastation the almost universal post operative infection left behind in its trial, the doctor says: "It is unfortunate that despite every care taken by the Answering Respondent and his associates and assistants a large number of patients could not regain their vision in the Khurja Camp." "It is extremely unfortunate that some 84 patients ' vision could not be restored despite every care bestowed by the answering respond ent and his associates and assistants." "The number of patients operated upon at Moradabad Camp for cataract were about 380 and the vision of about 10 of them could not be restored.
A small percentage of failures is considered normal . . " (Emphasis supplied) We are afraid, the doctor may not be justified in this description of the large scale and calamitous effects the operation had on the hapless victims.
It is, perhaps, a euphemism to call the incident as one where "some 84 pa tients ' vision could not be restored.
" These are not mere cases of eye sight of the patients not having been restored in the sense that the surgical operations conducted on them did not yield the desired result; or that no positive bene fit was derived by them from the surgery.
But the picture is entirely different.
It is not merely that the unfortunate patients did not derive any benefit from the surgery but were greatly worse of than they were before the surgery, owing to the post operative intra ocular infection that damaged the operated eyes beyond redemption.
Even according to Dr. Sahay the modern techni 248 ques in opthalmic surgery render cataract a minor operation.
A cataract affected eye when properly operated is expected to become normal.
The operation is meant to remove an ob struction to vision and restoration of normal eye sight.
This implies that the eyes of patients selected for opera tion had the potential for restoration of sight.
In the present cases, they have become totally blind in the operat ed eyes.
Apart altogether from the causal connection between the widespread infection and medication or surgical procedures, as the case may be, applied or employed, it is really undis puted that such a general and widespread post operative infection did occur.
Referring to the medical management of the emerging crisis, Dr. Sahay himself says: "It may be mentioned that on the morning of 22nd April, 1986, Dr. R. Sekhri opened the bandage and suspected intra ocular infection and therefore commenced antibiotic treatment both local and oral.
On the 22nd April, Dr. Sekhri reached Moradabad for consultations.
The Answering Respondent approved of the antibiotic medicines and sent Dr. M. Punjabi with additional supplies of medicines of Khurja.
On 23.4.1986 both Dr. Sekhri and Dr. M. Punjabi gave anterior chamber wash and antibiotic medicines.
At about midnight the answering respondent rushed by road to Khurja without any consideration for his personal comfort and commenced attending the patients.
He washed anterior chambers performed vitrec tomy (removing the infected part) and adminis tered pain relieving medicines.
The petition ers have inexactly described the doings as operation, sedation and removal of Cornea.
All this was done in the same room in which the earlier operations were performed.
One of the points brought out in the petition is that the propaganda literature published by the Lions Club in relation to the camp was that allurements, prohibited by medical ethics, were held out to the patients with attrac tive slogans such as 'Get Operated and go home ', 'No re striction of food ', 'No bed rest ', and 'No stitches to be removed ' etc., etc.
It was alleged that the guidelines required a minimal institutional post operative care for few days under constant competent medical supervision and that in the present case the patients were allowed to go back immediately after the operations.
Dr. Sahay 's affidavit, in a way, does not deny this kind of propaganda or lack of 249 institutional post operation care.
Indeed, some justifica tion is pleaded.
Dr. Sahay says in his counter affidavit: "It is true that in the modern technique a cataract operation by Crye Micro Surgery System does not require 10 days immobility or liquid diet and the like, because the modern sutures securely seal the operation incision and make it water tight.
The sutures are seldom removed and the patient is, in normal cases fit enough to move about within few hours of the operation.
The Khurja Camp opera tions were conducted between the hours of about 11 A.M. to 6 P.M. with half an hour 's break.
The 9 operation tables for three sur geons gave ample room and time for pre opera tion steps and post operative procedures.
" How far the lack of intensive post operative institu tional care contributed to the infection or the aggravation of its effects is a matter which cannot be decided in these proceedings.
These are technical matters for professional medical assessments.
But the guidelines prescribed by Gov ernment do not prima facie, seem to encourage such compla cence in regard to the imperatives of post operative care.
The problems of the Ophthalmic Health Status of the Indian citizen are of a dimension causing an under standable concern.
The very large number of cases of impairment of visual acuity in the country needs the purposeful involve ment of voluntary social organisations so as to provide an augmented, broad based, participatory medi care for the general improvement of the tone of ophthalmic health in the country.
Government of India, evolved a comprehensive policy and programme for control of blindness, which, amongst other things, envisaged a programme for the promotion of eye care through 'eye camps ' organised by social and voluntary organ isations and to provide financial assistance to them.
Our attention was drawn to the circular No. T. 12011/4/82/ OPTH dated 13.10.1982 issued by the Ministry of Health and Family Welfare to all the States and Union Terri tories, laying down certain norms and guidelines for the conduct of such 'eye camps '.
A copy of that circular is annexure 'R 1 ' to the counter affidavit dated 10.1.1987 filed on behalf of the State of U.P. Pursuant thereto, on 18.4.1984 State Government issued appropriate directions to its officers and authorities for strict compliance with the guidelines issued by the Central Government.
It is on the basis of these guidelines that permis 250 sion was accorded to the Lions Club to conduct the eye camp.
The permission granted by Chief Medical Officer, Buland Shahar on 21.4.
1986 says: "The Lions Club, Pottery Town, Institute/organisation is permitted to hold free eye camps applied with the specific condition that the camps will be organised in rural areas and supervised by Senior Ophthal mic Surgeon & the operation will be performed by the qualified Ophtalmic surgeon and staff and that competent ophthalmic Surgeon(s) would remain at the camp site throughout the duration of the camp till the last patient is discharged." 8.
Though the events ,at the eye camp raise several questions of interest on the law as to professional negli gence, we do not want to be understood as intending to record any findings on the conduct of Dr. R.M. Sahay and his team or the officers of U.P. Government who granted permis sion for the eye camp and who, allegedly, did not discharge their duties implicit in the guidelines issued by Govern ment.
A mistake by a medical practitioner which no reasona bly competent and a careful practitioner would have commit ted is a negligent one.
One of the questions that might arise in the appropriate forum is whether the doctors, judged by the circumstances in which they were working, made a mistake and if so whether such a mistake was negligent.
A vast amount of legal literature concerns the concept of 'reasonable man ' in the Law of Torts.
To some, like Sir Allen Herbert, he is "never a woman"; to some others 'an odious and insufferable creature who never makes a mistake '; and according to Lord Radcliff the parties would become disembodied spirits in whose place arises the idea of a reasonable man as the "anthropomorphic conception of jus tice.
But the law recognises the dangers which are inherent in surgical operations.
Mistakes will occur on occasions despite the exercise of reasonable skill and care.
Jackson and Powell on 'Professional Negligence ', (1982 Edn.) say: " . .
In White vs Board of Governors of Westminister Hospital, a surgeon accidentally cut the retina during an operation on the plaintiff 's right eye.
As a result the eye became useless and had to be removed.
Thompson J acquitted the surgeon of any negligence.
He was working 251 within a very few millimeters and exercised due skill, care and judgment . " (Page 232) But, in a case where the plaintiff developed meningitis as a result of some infection in the apparatus used in the operation it was held that there must have been some negli gence by the hospital staff for which the hospital authority was responsible.
(ibid para 6.53) But where the operation is a race against time, the Court will make greater allowance for mistake on the part of the surgeon or his assistants, taking into account the 'Risk benefit ' test.
In Dr. Laxman Balakrishna Joshi vs Trimback Bapu Godbola, A.I.R. 1969 S.C. 128, Para 11, this Court held: .lm "The duties which a doctor owes to his patient are clear.
A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.
Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.
A breach of any of those duties gives a right of action for negligence to the patient.
The practitioner must bring to his task a reasona ble degree of skill and knowledge and must exercise a rea sonable degree of care.
Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law re quires: The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in case of emergency . " Street on Torts (1983) (7th edn.) suggests that doctrine of Res Ipso Loquitur is attracted: " . . where an unexplained accident occurs from a thing under the control of the defend ant, and medical or other experts evidence shows that such accidents would not happen if proper care were used, there is at least evidence of negligence for a jury." (P. 126) Charlsworth & Percy on 'Negligence ' refer to a case where a 252 woman was placed in the same ward with another suspected of, and later found to be suffering from, puerperaI fever and as a result she got puerperal fever herself.
The doctor was held negligent in not isolating her when the other case was suspected and in not taking steps to prevent her from being infected.
(See P. 546).
The explanation of the doctors appears to be that the infection occurred despite all precaution.
Though it is not said so in so many words, the drift of the explanation is that the saline, used to irrigate the eyes during surgery to maintain turgidity of the operational surface, which was purchased from a reputed manufacturer might be the source of the contamination.
If that be so, the question of the li ability of the manufacturer for what is called "product liability" and the further question whether in such cases of mass use, a pre test for safety and purity of the article was necessary and whether failure to do so would be action able.
These questions are necessarily to be answered on evidence.
In these proceedings neither do we have full evidence nor does the scope of the proceedings permit such findings to be recorded conclusively.
The aspects to which the present proceed ings are confined are: (a) Whether the Guidelines prescribing norms and conditions for the conduct of 'eye camps ' are sufficiently comprehensive to ensure the protection of the patients who are generally drawn from the poorer and less affluent sec tion of society or whether any further guide lines would require to be evolved? (b) What relief, monitary or otherwise, should be afforded to those who have suffered? Re: Point (a): 11.
After the institution of these proceedings Central Government, in the wake of reports of mishaps in 'Eye Camps ', constituted a Committee under the Chairmanship of the Union Health Minister with six State Health Ministers and four experts as members to re examine and update the existing guidelines or evolve fresh ones.
As a result of the deliberations of the said Committee and pursuant to its recommendations, the guidelines for conduct of eye camps earlier issued have been updated and revised.
A copy of the Revised Guidelines issued on 253 9.2.
1988 by the Ministry of Health & Family Welfare vide their No. T. 12019/41/86 OPTH (Pt II) dated 9.2.
1988, is filed before the Court.
We have perused these guidelines which are sent to all the States for implementation.
The Indian Medical Council, after its impleadment in these proceedings also constituted a sub committee with Dr. P. Shiva Reddy and other members.
The Committee deliberated on the issue and its recommendations in regard to the norms for the conduct and management of eye camps have been filed before this Court.
We place record our appreciation of the assistance rendered by the Council.
We have examined the revised guidelines issued on 9.2.
1988 by the Union Government and the recommendation of the subcommittee of the Indian Medical Council.
The two sets of norms though evolved independently, substantially cover all the important areas.
We think that the Revised norms issued by the Union Government on 9.2.1988 arrived at after a careful study of all aspects of the problem are quite comprehensive.
However, we venture to suggest that some points made in the Report and Recommendation of the expert sub committee of the Indian Medical Council may be consid ered by the Union Government for incorporation in their Revised Guidelines dated 9.2.1988.
The prescriptions re ferred to by the said sub committee of the Indian Medical Council at pages 4,5 and 10 respectively, of the report are these: "Staff: The operations in the camp should only be performed by qualified, experienced Oph thalmic Surgeons registered with Medical Council of India or any State Medical Council.
The camp should not be used as a training ground for post graduate students, and opera tive work should not be entrusted to post graduate students.
" "There should be a pathologist to examine Urine, blood, sugar etc.
It is preferable to have a Dentist to check the teeth for sepsis and a Physician for general medical check up." "Midication: (a) All medicines to be used should be of standard quality duly verified by the doctor in charge of the camp.
" 254 These aspects are generally covered in the Government 's Revised Guidelines dated 9.2.1988.
But, for the sake of special emphasis keeping their importance in view the above aspects stressed in the Report of the Sub committee of the Indian Medical Council may be considered for incorporation in the Revised Guidelines of 9th February, 1988.
We direct accordingly. '13.
The necessity of maintenance of the highest stand ards of a septic and sterile conditions at places where Ophthalmic surgery or any surgery is conducted cannot be over emphasised.
It is not merely on the formulation of the theoretical standards but really on the professional commit ment with which the prescriptions are implemented that the ultimate result rests.
Government, States and Union, incur enormous expenditure of public money on health care, But, the standards of cleanliness and hygiene in public hospitals unfortunately, leave greatly to be desired.
The maintenance of steriles, aseptic conditions in hospitals to prevent cross infections should be ordinary, routine and minimal incidents of maintenance of hospitals.
Purity of the drugs and medicines intended for man use would have to be ensued by prior tests and inspection.
But, owing to a general air of cynical irreverence towards values that has, unfortunate ly, developed and to the mood of complacence with the con tinuing deterioration of standards, the very concept of standards and the imperatives of their observance tend to be impaired.
This is a disturbing feature.
The remedy lies in a ruthless adherence to the virtue of method and laying down practical procedures in the minutes of detail and by exact ing not merely expecting strict adherence to these proce dures.
On point (a), we think that the Revised guidelines dated 9.2.1988, with the suggested modifications, can be held to be satisfactory.
Re: Point (b): Pursuant to earlier orders of this Court, each of the victims had been paid a sum of Rs.5,000.00 by the State Government by way of interim relief.
Shri Ranji Thomas, learned Counsel for the petitioners, submitted that this was a wholly avoidable mishap and is entirely the result of the composite negligence on the part of the surgical team and the authorities of the U.P. Government, who failed to ensure obedience to the norms.
Learned counsel also sought to rest the right of the victims for damages on the footing that the persons who organised the 'eye camp ' were acting pursuant to and under the 255 authority of Government and that on the doctrine of the State action the activity must be reckoned as that of the State itself which must, accordingly be held vicariously liable.
In regard to the quantum of relief, learned counsel submitted that the unfortunate victims had suffered irre versible damage of the eyes which has rendered them wholly incapacitated.
We are afraid in the circumstances of this case, the factual foundations laid before the Court and the limited scope of the proceedings no appeal could be made to the doctrine of State action.
Shri Yogeshwar Prasad, learned Senior Counsel appearing for the State of Uttar Pradesh, submitted that the State would approach the matter not with the spirit of a litigant in any adversy action but would look upon the proceedings as a participatory exploration for relief to the victims.
He further submitted that the State would indeed, be willing to render help to the victims within the constraints of its resources.
Indeed, the factual foundations requisite for establish ing the proximate causal connection for the injury has yet to be established conclusively.
These matters would have to be gone into in the criminal and other proceedings that may be pending or in the contemplation of the Government.
However, we think that on humanitarian consideration, the victims should be afforded some monitary relief by the State Government.
We direct that in addition to the sum of Rs.5,000, already paid by way of interim relief, the State Government shall pay a further sum of Rs. 12,500 to each to the victims.
The victims entitled to receive the additional payment shall be the same as those who had the benefit of the interim relief of Rs.5,000.
The amount shall be deposit ed, as was done in the matter of distribution of interim relief, with the District Judge who shall arrange to dis tribute the same in accordance with the procedure adopted at the time of administration of the interim relief.
The depos it shall be made within two months from today and the Dis trict Judge shall ensure distribution within the next two months.
We further direct that, additionally, if any of the Victims are, otherwise, eligible for any benefit of pension under any of the existing schemes now in force in the State, their cases shall be considered for such benefit.
The Legal Aid and Advice Board of U.P. State shall take up this issue and process the claims of the victims for such other bene fits under any of the existing Government schemes providing for aid to the aged, the disabled, and the destitute, sub ject to the condi 256 tion that the victims otherwise satisfy the conditions of those schemes.
We place on record the services rendered by the petitioners in espousing the cause of these unfortunate victims and prosecuting it with diligence.
We direct the State of U.P. to pay their costs which is quantified at Rs.5,000.
The Writ Petition is disposed of accordingly.
Y.L. Petition disposed of.

summary/full:
Lions Club.
Pottery Town, Khurja (U.P.) actuated by the desire to provide relief and facilities of opthalmic surgi cal services particularly to the persons residing in rural areas, suffering from eye troubles, arranged and opened an "Eye Camp" at Khurja after obtaining necessary permission from the Chief Medical Officer, Buland Sahar.
In this con nection, the Club invited Dr. R.M. Sahay of the Sahay Hospi tal at Jaipur and team of Doctors to do the surgical job.
The Club published propaganda literature with attractive slogans, e.g., 'Get operated and go home ', 'No restriction on food '. 'No bed rest ' and 'No stitches to be removed '.
In response thereto substantial number of patients visited the Camp.
Dr. Sahay arrived in Khurja on 21.4.1986 and examined about 122 patients.
One hundred and eight patients were operated upon, 88 of them for cataracts.
Dr. Sahay left Khurja that evening for Moradabad where he was schedule to conduct another similar Eye Camp.
It is unfortunate that the project which was opened for the good of the suffering people, proved a disastrous medi cal mis adventure, as the operated eyes of the patients were irreversibly damaged, owing to a post operative infection of the intra Ocular Cavities of the operated eyes.
and the eyes were completely damaged.
Similar mishap happened at Morada bad also though on a lesser scale, the number of affected persons being 15 only.
To remove the infection that caused this damage.
Doctors gave the necessary treatment but to no avail.
242 In order to find out the causes of this mishap, i.e. the source of infection.
the Government appointed Inquiry Committee.
reports whereof were placed before the Court for favour of perusal.
Two social activists, Shri A.S. Mittal and Shri Om Prakash Tapas have filed these Writ Petition in the form of a Public Interest Litigation.
The Petitioners have made serious allegations about the very bona fides behind the sponsoring of iII fated 'eye camp ' and have alleged monetary gains on the part of the sponsors but the Court did not find any material to substan tiate the said allegation.
The petitioners prayed that (i) the victims of this medical mishap be given expert rehabili tatory treatment and appropriate compensation, (ii) that the Government do conduct a thorough investigation as to the conditions which rendered a medical misadventure of such a scale possible and evolve proper guidelines which will prevent recurrence of such tragedies and.
(iii) that appro priate legal action be instituted against Dr. Sahay and his team and other Government officials concerned.
Pursuant to the reports of the Inquiries conducted into the causes of mishap.
penal action had been initiated against Dr. Sahay & others.
The Court considered the following aspects of these proceed ings; (a) Whether the Guidelines prescribing norms and condi tions for the conduct of "Eye Camps" are sufflciently com prehensive to ensure the protection of the patients who are generally drawn from the poor and less affluent section of the society or whether any further guidelines are required to be evolved.
(b) What relief, monetary or otherwise should be afford ed to those who have suffered? Disposing of the Writ Petition, this Court, HELD: Modern techniques in opthalmic surgery render cataract a minor operation.
A cataract affected eye when properly operated Is expected to become normal.
The opera tion Is meant to remove an obstruction to vision and resto ration of normal eyesight, This Implies that the eyes of patients selected for operation has the potential for resto ration of sight.
In the Instant case, they have become totally blind In the operated eyes, [247H; 248A B] 243 A mistake by a medical practitioner which no reasonably competent and careful practitioner would have committed is a negligent one.
[250D] One of the questions that might arise in the appropriate forum is whether the Doctors judged by the circumstances in which they were working made a mistake and if so whether such a mistake was negligent.
[250D E] Law recognises the dangers which are inherent in surgi cal operation.
Mistakes will occur on occasions despite the exercise of reasonable skill and care.
[250G] Jackson and Powell on Professional Negligence, 1982 Edn.
The necessity of the highest standards of aseptic ster ile conditions at places where opthalmic surgery or any surgery is conducted cannot be over emphasised.
It is not merely on the formulation.
of the theoretical standards but really on the professional commitments with which the pre scriptions are implemented that the ultimate result rests.
[254B C] The factual foundations requisite for establishing the proximate causal connection for the injury has yet to be established conclusively.
On humanitarian consideration, the victims should be afforded some monetary relief by the State Government.
In addition to the sum of Rs.5,000 already paid by way of interim relief, the State Government shall pay a further sum of Rs. 12,500 to each of the victims.
The vic tims entitled to receive the additional payment shall be the same as those who had the benefit of the interim relief of Rs.5,000.
[255D F] That the Revised Guidelines dated 9.2.1988 with the suggested modifications can be held to be satisfactory.
[254F] The Court abstained from pronouncing on the question of culpable rashness or negligence on the part of the Doctors or others against whom separate action is either pending or contemplated.
[246G] Dr. Laxman Balakrishna Joshi vs Trimbak Bapu Godbols, ; , Para 11 and Street on Torts, [1983] (7th Edn.), referred to


judgement:
vil Appeal Nos.
3490 91 of 1987.
From the Judgment and Order dated 5.3.
1986 and 1.4.1986 of the Andhra Pradesh Administrative Tribunal, Hyderabad in R.P. Nos.
1595 of 1983 and 788 of 1984.
P.A. Choudhary, T.V.S.N. Chari, Ch.
Badrinath and Mrs. Sumitha Rao for the Appellants.
C. Seetharammayya, B. Parthasarthi and A. Subba Rao for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
These appeals by the State of Andhra Pradesh are directed against the judgments of the Andhra Pradesh Administrative Tribunal, Hyderabad, in R.P. Nos. 1595 and 788 of 1984.
Originally, the Government of Andhra Pradesh, in purported exercise of its powers under Clause 5 of Article 371 D of the Constitution passed an order G.O. Ms. No. 215 dated 14.7.1986 to annul the two judgments of the Tribunal.
On 20.12.1986, this Court negatived the powers of annulment assumed by the State Government by striking down Clause 5 of Article 371 D and the proviso thereto as being opposed to the basic structure of the Constitution.
Thereafter, the State has.preferred these appeals by special leave against the judgments of the Administrative Tribunal.
What falls for consideration in these appeals is whether amended Rule 3 of the Andhra Pradesh Treasury and Accounts Subordinate Service Rules 1963 (hereinafter referred to as the Rules) is violative of the Andhra Pradesh Public Employ ment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (hereinafter referred to as the Presidential Order) issued on 18.10.1975 by the President of India under clauses 1 and 2 of Article 371 D of the Consti tution.
The validity of the amended Rule was questioned in the context of certain Assistant Section Officers in the Finance Department of the Government of Andhra Pradesh (hereinafter referred to as the 346 Secretariat Officers) borne on zone VII being appointed to the post of Sub Treasury Officers borne on the Subordinate Offices under the Directorate of Treasuries and Accounts (hereinafter referred to as the Local Cadre) borne on zones I to IV.
For a proper appreciation of the matter, it is necessary that Rule 3 before and after amendment and the Presidential Order are set out.
Under Rule 3 of the Rules, the posts of Head Accountants and Sub Treasury Officers could be filled up by any of the following methods: (i) By direct recruitment; (ii) By promotion from category 3, 4 or 5 of Branch II or from category 3 of Branch I, III, IV, VI or category 2 of Branch VIi; and (iii) By transfer from among the U.D. Clerks (now called Assistant Section Officers) in the Finance Department of the Secretariat.
Rule 3 thus made provision for the posts of Head Accountants and Sub Treasury Officers being filled inter alia by: Promotion of Upper Division Clerks of the Directorate of Treasuries and Accounts & Transfer from among the Assistant Section Officers in the Finance Department of the Secretari at.
However as per other Rules, only 4 Assistant Section Offi cers, at any given time were eligible for being recruited as Sub Treasury Officers.
On 18.10.1975, the Presidential Order came to be passed.
Para 3 of the Order which enjoins the State Government to organise the posts under the State into different local cadres reads as follows: "3.
Organisation of Local Cadres (1) The State Government shall, within a period of twelve months from the commence ment of this Order, organise classes of posts in the civil services of, and classes of civil posts under the State into different local cadres for different parts of the state to the extent, and in the manner, hereinafter provided." 347 Para 5 which deals with local cadres and transfers of per sons consists of 2 sub paras.
The para reads as follows: "5.
Local Cadres and transfers of persons (1) Each part of the State for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, discharge, seniority, promotion and transfer, and such other matters as may be specified by the State Government, in respect of that category of post.
(2) Nothing in this Order shall prevent the State Government from making provision for (a) the transfer of a person from any local cadre to any Office or Establishment to which this Order does not apply, or vice versa; (b) the transfer of a person from a local cadre comprising posts in any Office or Establishment exercising territorial jurisdiction over a part of the State to any other local cadre comprising posts in such part, or vice versa; and (c) the transfer of a person from one local cadre to another local cadre where no qualified or suitable person is avail able in the latter cadre or where such transfer is otherwise considered necessary on the public interest.
A fourth clause was subsequently inserted as per G.O. Ms. No. 34 G.A.D. (S.P.F.) dated 24.1.81 and it reads as follows: (d) the transfer of a person from one local cadre to another local as reciprocal condition subject to the condition that the persons so transferred shall be assigned seniority in the latter cadre with reference to the date of his transfer to that cadre.
" Thereafter, the Government of Andhra Pradesh by G.O.P. No. 728 General Administration S.P.W.A. Department dated 1.11.1975 issued various instructions in relation to the aforesaid Presidential Order including para 5 regarding inter cadre transfers.
348 Seven persons belonging to category 5 of Branch II of the A.P. Treasury and Accounts Subordinate Service presented a representation petition No. 706 of 78 before the A.P. Administrative Tribunal for declaring Rule 3 of the Rules ultra vires, in so far as it made provision for promotion of Clerks of the Directorate of Treasuries and Accounts and Assistants of the Finance Department of the Secretariat to the posts of Head Accountants and Sub Treasury Officers, in violation of para 5(1) of the Presidential Order.
It was urged by them that with the promulgation of the Presidential Order, the posts of Head Accountants and Sub Treasury Offi cers had become zonal posts and as such the zone will be the unit for recruitment, appointment, discharge, seniority, promotion and transfer to such a zonal post under paragraph 5(1) of the Presidential Order.
They claimed that the Serv ice rules issued under Article 309 of the Constitution, as they existed at the time of the Presidential Order did not conform to the local cadres created under the Presidential Order and hence the State Government had issued G.O. No. 728 for suitable amendments being made to the Service Rules in each service.
They further claimed that only the U .D.
Accountants of the Feeder Sources of the zone alone are eligible for consideration in that particular zone for promotion to the rank of Head Accountant and Sub Treasury Officer and not the personnel from other zones including U.D. Accountants of the Directorate of Treasuries and Ac counts and Assistants of the Finance Department of the Secretariat.
In reply the State of A.P. while admitting that under the Presidential Order, the posts of Head Accountant/Sub Treasury Officers were organised into zonal posts nevertheless contended that the personnel from differ ent categories mentioned under the Rules are entitled for being considered for promotion to the rank of Head Account ants/Sub Treasuries Officers by reason of para 5(2)(a) of the Presidential Order and the detailed instructions con tained in para 10(a) of G.O.P. No. 728 dated 1.11.1975.
The relevant portion in G.O.P. No. 728 dated 1.11.1975 reads as follows: "Though posts may be organised into separate local cadres, para 5(2) of the Presidential Order provides that the State Government may make a provision for transfer of persons from, and to, local cadres under certain circumstances.
These are elucidated below: (a) Transfer of a person from any local cadre to any office or establishment to which the order does not apply, or vice versa.
349 This enables a provision being made for drawing persons on tenure basis from different local cadres to fill equivalent posts in Major Development Projects, Special Offices or Establishments etc.
There are also cases where provision exists for appointment of persons in mofussil offices by transfer to the offices of Heads of Departments.
For in stance, a certain proportion of ministerial posts in the offices of Heads of Departments is to be filled by transfer from ministerial categories in the subordinate offices in the districts.
A provision of this kind is protected under the Presidential Order.
" The full bench of the Tribunal considered the rival conten tions of the parties and came to the view that para 5(1) of the Presidential Order made it clear that for the purpose of promotion, zonal cadre has to be treated as a separate unit and consequently the posts of Head Accountants/Sub Treasury Officers, which have been declared as zonal posts could be filled up by promotion only on zonal basis and consequently Rule 3 of the Rules which specified various categories of posts without reference to zone as feeder posts for the purpose of promotion to the posts in question are inconsist ent with para 5(1) of the Presidential Order.
The Full Bench therefore held that "after the promulgation of Presidential Order the provisions of Rule 3 referred to above would have to be reviewed so as to make them consistent with the provi sions of the Presidential Order.
" The Full Bench also con sidered the scope and effect of G.O. No. 728 dated 1.11.75 and held as follows: "In our opinion, once this point is conceded, the contents of paragraph 10 of G.O. (P) No. 728 dated 1.11.1975 cited by the respondents in this respect would be properly understood.
What that paragraph clearly suggests is that under paragraph 5(2) of the Presidential Order it is open to the State Government to authorise transfer of a person from any local cadre to any office or establishment to which the order does not apply or vice versa.
It is in this context that the particular paragraph clarifies the types of trans fers which the Government would authorise.
The sentence "a provision of this kind is protected under the Presidential Order" occurring in that paragraph has, therefore, to be read as conveying that a provision of this kind could be made by the State Government under paragraph 5(2) of the Presidential Order.
Apparently the respondents have mis 350 interpreted this sentence to understand that the provision of Rule 3 of A.P. Treasuries and Accounts Subordinate Serv ice Rules in question continues to be operative without any specified provision being made in the rules in pursuance of the authority given to the State Government under paragraph 5(2) of the Presidential Order.
This clearly cannot be the correct interpretation as discussed above." (Emphasis supplied) Thus it came about that the Full Bench declared that the various categories of feeder posts including Assistants, (now named Assistant Section Officers of the Secretariat) from which promotion to the posts of Head Accountants/Sub Treasury Officers can be made, cannot be made operative after the promulgation of the Presidential Order.
After the Full Bench of the Tribunal rendered its judg ment holding that Rule 3 ceased to have operative force after the Presidential Order was made, the State Government amended Rule 3 and gave retrospective effect to the amended Rule with effect from 18.10.1975.
The amendment to the Rule was made in the following terms: "The amendment hereby made shall be deemed to have come into force on the 18th October, 1975.
AMENDMENT In the said rules, in the Table under Rule 3, in column (3) against category (2) Head Accountants and Sub Treasury Officers of Branch II for items (ii) and (iii), the follow ing items shall be substituted, namely: (ii) By promotion from category 3, 4 or 5 of Branch II; (iii) By transfer from among the category of Upper Division Accountants (Senior Accountants) of Branch I, Branch III or Branch VI or Upper Division Accountants (Senior Accountants) of Branch VII); (iv) By transfer from among the category of Assistants (Assistant Section Officers) of Finance and Planning (Fi nance Wing) Department of the Secretariat.
" Challenging the validity of the amended rule two representa tion 351 petitions viz. R.P. No. 1595 of 83 and R.P. No. 788 of 84 came to be filed before the A.P. Administrative Tribunal.
Once again, a plea was raised that amended Rule 3 was also violative of the Presidential Order.
The State contended that the amended Rule had been issued by the Governor in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution and hence the validity of the Rule cannot be questioned by the petitioners.
It was secondly contended that the earlier G.O. was not violative of the Presidential Order or the provisions of Article 371 D, but even so as it was considered by the Tribunal to be inoperative because the special provisions did not explicity state that they had been made in exercise of the authority vested in the State Government under para 5(2) of the Presi dential Order, the Government had set right the lacuna pointed out by the Tribunal by framing the amended rule specifically in exercise of the powers conferred on Govern ment under para 5(2) of the Presidential Order.
The Tribunal held that what was challenged by the peti tioners was not the powers of the Governor to issue the statutory rule but the Government 's power to fill a zonal post by the method of transfer by a person who did not belong to the zone in which the vacancy had arisen by refer ring to para 5(2) of the Presidential Order in the Preamble of the Notification making the amendment.
Dealing with this question the Tribunal referred extensively to the judgment rendered by the Full Bench of the Tribunal in the earlier case R.P. No. 708 of 78 and held that the judgment of the Full Bench did not afford scope to the State Government to pass a G.O. in conflict with para 5(1) of the Presidential Order and furthermore the impugned G.O. Ms. No. 196 did not set out under which sub para viz. sub para a, b or c in para 5(2) of the Presidential Order the G.O. was issued and therefore the amended G.O. cannot be upheld.
It was also held by the Tribunal that there was no justification for transferring a person who does not belong to concerned zone to be inducted into that zone merely because such a practice had existed in the past and moreover the underlying purpose of the Presidential Order would be destroyed if the State Government is allowed to fill up vacancies in zonal posts by a person not belonging to that zone.
It is the correctness of the view taken by the Tribunal that is challenged in these appeals.
Mr. T.V.S.N. Chari, learned counsel for the State and Mr. Seetaramiah, learned counsel for the respondents ad vanced arguments in support of their respective contentions in the appeals.
352 Before we examine the correctness of the view taken by the Tribunal striking down the amended Rule 3 as being violative of the Presidential Order, we may usefully recall the relevant provisions of the Presidential Order which have to be borne in mind.
As already stated para 3(1) enjoins the State Government to organise various classes of posts in the civil services and classes of civil posts under the State into different local cadres for different parts of the State in accordance with the further provisions contained in para 3.
For our purposes it is unnecessary to refer to the other provisions of para 3 except to point out that the direction contained in para 3(1) is not an inexhorable one.
Sub para 8 of para 3 makes provision for the Central Government, if it is not practicable or expedient to organise local cadres under the paragraph in respect of any non gazetted category of posts in any department, to make a declaration to that effect, and it is further provided that on such declaration being made, the provisions of the para shall not apply to such category of posts.
It is, however, common ground that the posts of Head Accountants and Sub Treasury Officers have been constituted into Zones I to IV and the U.D. Assistants and Assistant Section Officers in the Finance Department of the Secretariat have been organised for the city of Hydera bad into a separate category falling under Zone VII.
The question for consideration is whether the U.D. Clerks of the Directorate and Assistant Section Officers in the Secretari at falling under Zone VII can be transferred by promotion to the local cadre posts in zones I to IV.
The Tribunal has held that such transfers cannot be effected for the follow ing reasons: 1.
The reasons which weighed with the full Bench for strik ing down the unamended Rule 3 will hold good for striking down of the amended Rule 3 also.
The amendment to the Rule cannot be deemed to have been regularly effected by the Government because the Rule does not set out under which relevant clause viz. clause (a), (b) or (c) of sub para 2 of para 5 of the Presidential Order the Government has exercised its powers to amend the Rule.
The amendment sought to be effected by the Govt.
would have the effect of destroying the scheme of constituting separate local cadres and separate zones contained in para 5(1) of the Presidential Order.
There is no convincing reason as to why persons in the Directorate who do not belong to Zones I to IV should be in 353 ducted into those zones and the system cannot be allowed to be continued merely because such a practice was in vogue prior to the issue of the Presidential Order.
Since the amended Rule is virtually a repetition of the old Rule, it cannot be legitimised merely because Government claims to have amended the Rule in purported exercise of its powers under para 5(2) of the Presidential Order.
On a consideration of the matter, we find that the Tribunal has clearly erred in everyone of the reasons given by it for striking down the amended Rule 3.
In the first place, we must point out that the Tribunal has failed to construe para 5(2) of the Presidential Order in its proper perspective and give full effect to the powers conferred thereunder on the State Government to make provi sions contrary to the scheme of local cadres prescribed under Para 5(1).
The words of sub para (2) of Para 5 viz. "nothing in this order shall prevent the State Government from making provision for" sets out the over riding powers given to the State Government under the sub para.
Such over riding powers have been given to the State Government in express terms in recognition of the principle that public interest and administrative exigencies have precedence over the promotional interests of the members belonging to local cadres and zones.
Since Para 5(2) also forms a part of the Presidential Order, it forms part of the scheme envisaged for creating local cadres and zones.
The Tribunal was, therefore, in error in taking the view that if the State Government was to exercise its powers under Para 5(2) and make provision for promotion of UD Assistants in the Direc torate and Assistant Section Officers in the Secretariat to be transferred to posts in Zones I to IV, it will be the very negation of the creation of cadres and zones under Para 5(1) and it will be destructive of the scheme underlying the Presidential Order.
In fact the Tribunal has realised the operative force of Para 5(2) to some extent but it has failed to give full effect to its realisation of the scope of Section5(2).
In Para 12 of its judgment in RP No. 1595 of 1983 the Tribunal has stated that since the amended rule refers to Para 5(2) of the Presidential Order "it will no longer be open to the petitioners to attack the amendment as was done in respect of the earlier amendment in the previous RP".
The Tribunal has thus noticed that the amended Rule has been brought about by the Government in exercise of its powers under Para 5(2) but it has failed to draw the logical inference following therefrom.
354 As regards the view taken by the Tribunal that the reasons which weighed with the Full Bench for holding that the unamended Rule ceased to have operative force after the Presidential Order was made would have relevance even with reference to the amended Rule, the Tribunal cannot be said to have acted correctly.
The Full Bench was concerned with the amended Rule 3 which was framed long before the Presi dential Order was passed.
In order to make the provisions of the old Rule to have currency even after the Presidential Order was passed, the Government issued G.O. Ms. No. 728 on 1 11 75.
However, the Full Bench was of the view that the G.O. did not conform to the requirements of para 5(2) of the Presidential Order and therefore the Full Bench held the old Rule cannot have operative force "without any specific provision being made in the Rules in pursuance of the au thority given to the State Government under para 5(2) of the Presidential Order.
" It was in acceptance of this position the Government had issued G.O. Ms. No. 196 dated 17.6.83 for amending Rule 3 so as to make the Rule conform to the re quirements of para 5(2) of the Presidential Order.
The Tribunal has failed to realise this position and has there fore committed the error of holding that the view taken by the Full Bench with reference to the old Rule will continue to hold good even with reference to the amended Rule.
Anoth er patent error which the Tribunal has committed is in holding that G.O. Ms. No. 196 is not valid because it does not set out the relevant clause under which the Government was exercising its powers under the Presidential Order.
The Tribunal 's observation is worded as under: "In the impugned G.O. Ms. No. 196 supra, no particular sub paragraph has been invoked.
The situation under which each sub sub para will be applicable has been stated.
Clearly provisions contained in sub sub para (b) and (c) are not attracted; much less sub sub para (a).
We are, therefore, not convinced that recruitment by the method of transfer could come under any one of the aforesaid provisions.
" The observations of the Tribunal is manifestly wrong because G.O. Ms. No. 196 clearly sets out that the Notification was being issued by the Government in exercise of its powers under Section 3 of the Andhra Pradesh Ordinance 5 of 83 read with para 5(2)(a) of the Presidential Order.
The Tribunal has completely lost sight of the relevant portion of the G.O.
We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for 355 personnel belonging to other zones being transferred on promotion to offices in other zones.
In drawing such conclu sions, the Tribunal has travelled beyond the limits of its jurisdiction.
We need only point out that the mode of re cruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the Executive.
It is not for judicial bodies to sit in judgment over the wisdom of the Executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the Executive.
As already stated, the question of filling up of posts by persons belonging to other local categories or zones is a matter of administrative necessity and exigency.
When the Rules provide for such transfers being effected and when the transfers are not assailed on the ground of arbi trariness or discrimination, the policy of transfer adopted by the Government cannot be struck down by Tribunals or Court of law.
In the light of our discussion, we find that the griev ance expressed by the State over the judgment of the Tribu nal is well founded.
In so far as Civil Appeal No. 3491 of 87 is concerned, though there was no direct challenge there in to the validity of the amended Rule 3, the Tribunal has allowed the Representation Petition filed by the petitioners because of the view taken by it in R.P. No. 1595 of 1983.
Hence the judgment of the Tribunal in that case also has to be set aside.
In the result, we set aside the judgments of the Tribu nal, and allow both the appeals and declare Rule 3 of the amended Rule to be intra vires of the Presidential Order.
There will be no order as to costs.
Y. Lal Appeals allowed.

dataset_name: IN-Abs

summary/full:
In these two appeals filed by the State of Andhra Pra desh against the orders of the Andhra Pradesh Administrative Tribunal, the question that arises for consideration is whether amended Rule 3 of the Andhra Pradesh Treasury and Accounts Subordinate Service Rules 1963 Is violative of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order 1975.
The circumstances under which this question has arisen are stated hereinbelow.
Prior to the filing of Representative Petitions Nos.
1595 and 788 of 1984 by the Respondents in the Tribunal out of which these appeals have arisen, seven persons belonging to category 5 of Branch II of the Andhra Pradesh Treasury and Accounts Subordinate Service had presented a Petition before the Andhra Pradesh Administrative Tribunal challeng ing the vires of Rule 3 of the Andhra Pradesh Treasury and Accounts Subordinate Service Rules 1963, being violative of para 5(1) of Andhra Pradesh Public Employment Order, issued by the President of India under clauses (1) & (2) of Article 371 D of the Constitution, inter alia on the ground that it made provision for promotion of clerks of the Directorate of Treasuries and Accounts and Assistants of the Finance De partment of the Secretariat to the post of Head Accountants and Sub Treasury Officer which posts had become Zonal posts after the promulgation of Presidential order.
According to them only the U.D. Accountants of the feeder sources of the Zone were eligible for consi 343 deration in that particular Zone for promotion to the rank of Head Accountant and Sub Treasury Officer and not the personnel from the other Zones, including U.D. Accountants of the Directorate.
The Tribunal held that by virtue of para 5(1) of the Presidential order, for purposes of promotion, Zonal Cadre had to be treated as a separate unit and consequently the posts of Head Accountants/SubTreasury Officers, could be filled up by promotion only on Zonal basis and as such Rule 3 which specified various categories of posts without refer ence to Zone as feeder posts for the purpose of promotion to the posts in question were inconsistent with para 5(1) of the Presidential order.
The Tribunal therefore declared that after the promulgation of Presidential order, the provisions of Rule 3 would have to be reviewed so as to make them consistent with the provisions of the Presidential order.
The Tribunal further declared that various categories of feeder posts including the posts of Assistant Section Offi cers of the Secretariat from which promotion to the posts of Head Accountants/Sub Treasury Officer could be made, Could not be made operative after the promulgation of the Presi dential order.
After the aforesaid decision of the Tribunal, the State Government amended Rule 3 and gave it a retrospec tive operation w.e.f. 18.10.1975.
The validity of the amended Rule was questioned by the Respondents in the context of certain Assistant Section Officers in the Finance Department (Secretariat Service) borne on Zone VII being appointed to the post of Sub Treas ury Officers borne on the Subordinate Offices under the Directorate of Treasuries and Accounts borne on Zones I to IV, by filing the said Representation Petitions before the Andhra Pradesh Administrative Tribunal.
It was again con tended before the Tribunal that the amended Rule 3 was violative of the Presidential order.
According to the State the amended Rule had been issued by the Governor in exercise of the power conferred on him by the Proviso to Article 309 of the Constitution and hence the validity of the Rule could not be questioned by the Petitioners.
It was further con tended by the State that the earlier G.O. was not violative of the Presidential order of the provisions of Article 371 D, but even so, as it was considered by the Tribunal to be inoperative because the special provision did not explicitly state that they had been made in exercise of the authority vested in the State Government under para 5(2) of the Presi dential order, the Government had set right the lacuna by framing the amended Rule specifically in exercise of the powers conferred on Government under para 5(2) of the Presi dential order.
344 The Tribunal held that the impugned G.O. 196 did not set out under which sub para viz., sub para (a), (b) or (c) in para 5(2) of the Presidential order, the G.O. was issued and therefore the amended G.O. could not be upheld.
The Tribunal also declared that there was no justification for transfer ring a person who did not belong to concerned Zone to be inducted into that Zone, as that would defeat the underlying purpose of the Presidential order.
The State has, therefore, preferred these appeals.
Allowing the appeals this Court, HELD: That the Tribunal has failed to construe para 5(2) of the Presidential order in its proper perspective and give full effect to the powers conferred thereunder on the State Government to make provisions contrary to the scheme of local cadres prescribed under para 5(1).
The words in para 5(2) viz., "nothing in this order shall prevent the State Government from making provision for" sets out the over riding powers given to the State Government under the sub para.
Such overriding powers have been given to the State Government in express terms in recognition of the principle that public interest and administrative exigencies have precedence over the promotional interests of the members belonging to local cadres and zones.
[353C E] In order to make the provisions of old rule to have currency even after the Presidential order was passed, the Government issued G.O. Ms. No. 728 on 1.11.75.
The Govern ment has issued G.O. Ms. No. 196 dated 17.6.83 for amending Rule 3 so as to make the Rule conform to the requirements of para 5(2) of the Presidential order.
[354B, C D] The mode of recruitment and the category from which the recruitment for a service should be made are all matters which are exclusively within the domain of the Executive.
It is not for judicial bodies to sit in judgment over the wisdom of the Executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision failing exclusively within the purview of the Executive.
[355B] The question of filling up of posts by persons belong ing to other local categories or zones is a matter of admin istrative necessity or exigency.
When the rules provide for such transfers being effected and when the transfers are not assailed on the ground of arbitrariness or discrimination the policy of transfer adopted by the Government cannot be struck down by Tribunals or Court of Law.
[355C] 345 Rule 3 of the amended Rule declared to be intra vires of the Presidential Order.
[355E F]


judgement:
vil Appeal NO. 186875 of 1986.
From the Judgment and Order dated 28.2.1986 of the Andhra Pradesh High Court in W.P. Nos.
10181 of 1983, 11830, 4677, 4763, 4778 of 1985, 4926, 4935 and 4948 of 1986.
308 A.K. Ganguli, A.K. Sen, Shanti Bhushan, Harish N. Salve, section Krishnan, J.B. Dada Chanji, Mrs. A.K. Verma, Joel Pares, R. Dave, A. Subba Rao, Sunil Kumar Jain, Vijay Hansaria, K. Srinivasa Mufti, Kailash Vasudev, Nauni Lal, A.T.M. Sampath, R. Karanjawala, Mrs. M. Karanjawala and H.S. Anand for the Appellants.
M.K. Banerjee, Solicitor General, B. Datta, Additional Solicitor General, T.V.S.N. Chari, Ms. Sunita and Ms. Vrinda Grover for the Respondents.
The Judgment of the Court was delivered by PATHAK, CJ.
These appeals are directed against the judgment of the High Court of Andhra Pradesh dismissing several writ petitions filed by the appellants challenging assessments made under the Andhra Pradesh General Sales Tax Act 1957 on the value of packing material at the rate ap plicable to goods packed therein.
The appellants in some of the appeals are manufacturers of or dealers in beer, the appellants in the other appeals are manufacturers of or dealers in cement.
The beer is sold in bottles packed in cartons.
The cement is sold in gunnies.
Section 5 of the Andhra Pradesh General Sales Tax Act (hereinafter referred to as 'the Act ') provides for the levy of sales tax on the turnover of goods at the rates specified in that provision.
In the case of goods mentioned in the First Schedule to the Act tax is leviable at the rates, and at the point of sale, specified therein.
In the case of goods mentioned in the Sixth Schedule, likewise tax is leviable at the rates and at the points specified therein.
Item 19 of the First Schedule speaks of 'Containers other than gunnies and bottles '.
These goods are subject to tax at the rate of 5 paise in the rupee at the point of first sale in the State.
Item 123 of the First Schedule enumerates 'glass and glassware ', which is subject to sales tax at 9 paise in the rupee at the point of first sale in the State.
In respect of cement tax is leviable by reference to item 18 of the First Schedule at the rate of 10 paise in the rupee at the point of first sale in the State, while gunnies, formerly mentioned under item 67 of the First Schedule, and now included in item 157 of that Schedule, are subject to tax at the point of first sale in the State.
And beer is covered by item 1 of the Sixth Schedule under the category 'Country Liquor ' taxable at the rate of 10 paise in the rupee at every point of sale other than at the point of last sale, at which point the rate is 5 paise per rupee.
309 Clause (s) of Section 2 of the Act defines 'turnover ' to mean the total amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment or any other thing of value) including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof; or the aggregate of amounts charged under section 5 C. With effect from 8 July, 1983, section 6 C was inserted in the Act by Andhra Pradesh Act No. 11 of 1984, and it provides: 'Notwithstanding anything in sections 5 and 6 A, where goods packed in any materials are sold or purchased, the materials i,n which the goods are so packed shall be deemed to have been sold or purchased along with the goods and the tax shall be leviable on such sale or purchase of the materials at the rate of tax, if any, as applicable to the sale, or, as the case may be, purchase of goods themselves. ' The net turnover of a dealer assessable to tax is deter mined under rule 6 of the Andhra Pradesh General Sales Tax Rules, after deducting the amount specified in clauses (a) to (1) of that rule from the total turnover.
Of these clauses, clause (g) speaks of: 'Amounts relating to charges for services rendered in connection with the packing of goods when specified and charged for by the dealer separately, without including them in the price of goods sold. ' The appellants filed the writ petitions, out of which the present appeals arise, in the High Court at Hyderabad challenging the assessments to sales tax made on the turn over of packing material employed either by way of bottles for containing beer or by way of gunny bags for packing cement.
The appellants challenged the application of such rate in assessments made in relation to the period before 8 July, 1983.
The appellants also challenged the application of that rate proposed pursuant to section 6C in show cause no tices issued by the concerned authority.
While dismissing the writ petitions, the High Court has proceeded on the basis that having regard to the nature of the goods and to the trade practice in respect of beer and cement the con tainers were necessary concomitants in the transactions, and the transfer of 310 property in the containers was incidental or unavoidable, that the sale transactions had to be regarded as composite and integrated sales of the containers and their contents and what was really sold was the bottled beer or the cement packed in gunny bags.
The learned Judges observed further that even where money was paid to the dealer as security deposit refundable on the return of the bottles the sale of the bottle could not be treated as an independent transac tion different and distinct from the transaction of sale of the beer.
So also was the case in the sale of cement con tained in gunnies.
The learned Judges expressed the view that the consideration paid by the purchaser to the dealer consists not only of the price of the contents, namely, beer or cement, but also includes the price of the containers, that is the bottles and the cartons in the case of beer and gunnies in the case of cement.
It is commonly accepted that a transaction of sale may consist of a sale of the product and a separate sale of the container housing the product with respective sale consider ations for the product and the container separately; or it may consist of a sale of the product and a sale of the container but both sales being conceived of as integrated components of a single sale transaction; so.
, what may yet be a third case, it may consist of a sale of the product with the transfer of the container without any sale consid eration therefore.
The question in every case will be a question of fact as to what are '.
the nature and ingredients of the sale.
It is not right in law to pick on one ingredi ent only to the exclusion of the others and deduce from it the character of the transaction.
For example, the circum stance that the price of the product and the price of the container are shown separately may be evidence that two separate transactions are envisaged, but that circumstance alone cannot be conclusive of the true character of the transaction.
It is not unknown that traders may, for the advantage of their trade, show what is essentially a single sale transaction of product and container, or a transaction of a sale of the product only with no consideration for the transfer of the container, as divisible into two separate transactions, one of sale of the product, and the other a sale of the container, with a distinct price shown against each.
Similarly where a deposit is made by the purchaser with the dealer, the deposit may be pursuant to a transac tion where there is no sale of the container and its return is contemplated, and in the event of its not being returned the security is liable to forfeiture.
Alternatively, it may be a case where the Container is sold and the deposit repre sents the consideration for the sale, and in the event of the container being returned to the dealer the deposit is returned by way of consideration for the re sale.
In every case, the assessing authority is obliged to ascertain the 311 true nature and character of the transaction upon a consid eration of all the facts and circumstances pertaining to the transaction.
That the problem almost always requires factual investigation into the nature and ingredients of the trans action has been repeatedly emphasised by this Court.
In Hyderabad Deccan Cigarette Factory vs The State of Andhra Pradesh, [1966] 17 STC 624 this Court said: "It is not possible to state as a proposition of law that whenever particular goods were sold in a container the parties did not intend to sell and buy the container also.
Many cases may be visualized where the container is comparatively of high value and sometimes even higher than that contained in it.
Scent or whisky may be sold in costly containers.
Even cigarettes may be sold in silver or gold caskets.
It may be that in such cases the agreement to pay an extra price for the con tainer may be more readily implied.
In the present case, if we may say so with respect, all the authorities, including the High Court, dealt with the question as a question of law without considering the relevant factors which would sustain or negative any such agreement . .
A perusal of the orders of the various author ities and the High Court shows that a simple question of fact has been sidetracked by copious citations.
Whether there was an agree ment to sell the packing materials is a pure question of fact and that question cannot be decided on fictions or surmises.
That is what has happened in this case.
The Commercial Tax Officer invoked a fiction; the, Assistant Com missioner of Commercial Taxes relied upon the doctrine of "finished product"; the Appellate Tribunal relied upon surmises; and the High Court, on the principle of implied agreement.
But none has tackled the real question.
The burden lies upon the Commercial Tax Officer to prove that a turnover is liable to tax.
No doubt he can ask the assessee to produce the relevant material; and if he does not produce the same, he may draw an adverse inference against him.
But, he must decide the crucial question whether the packing materials were subject of the agreement of sale, express or implied.
To ascertain the said fact he can rely upon oral statements, accounts and other documents, personal enquiry and other relevant circumstances such as the nature and the purpose of the packing materials used.
" 312 Again, in Commissioner of Taxes, Assam vs Prabhat Marketing Co., Ltd., [1967] 19 STC 84 this Court accepted as well founded submission that the parties may have intended in the circumstances to sell hydrogenated oil apart from the con tainers, and the mere fact that the price of the containers was not separately fixed would make no difference in the assessment of sales tax, and went on to observe: "It is well established that in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goodS, the agreement must be supported by money consideration, and that as a result of the transaction the property should actually pass in the goods.
Unless all the ingredients are present in the transaction there could be no sale of goods and sales tax cannot be imposed State of Madras vs Gannon Dunkerley and Co. (Madras) Ltd.; , . . . . . . . . . . .
The question as to whether there is an agree ment to sell packing material is a pure ques tion of fact depending upon the circumstances found in each case.
" There can be as many different kinds of transactions as the circumstances of the case may require either by reason of prevailing trade practice or market conditions or person al convenience, and as human ingenuity may devise for bona fide reducing the burden of tax.
In The State of Karnataka vs Shaw Wallace and Company Ltd., [1981] 48 STC 169 the High Court of Karnataka pointed out that there was an agreement to sell the bottles and crates in which the liquor was conveyed and there was also an agreement in regard to the price of those containers, and therefore the turnover in regard to those items had to be determined and the appropri ate rate of sales tax had to be charged as provided in the Karnataka Sales Tax Act.
Reference was made to the require ment in the Karnataka Excise Act, 1966 that the liquor had to be sold in sealed containers but that, the High Court said, did not automatically lead to the conclusion that the same rate of sales tax was applicable to containers also.
It was observed that such a presumption could not be made, specially when separate rates were specified in the Sales Tax Act in regard to the containers and the contents.
In Arlem Breweries Ltd. vs The Assistant Commissioner of Sales Tax, Panaji, [1983] 53 STC 172 the Panaji Bench of the High Court of Bombay noted that item 22 of the First Schedule to the Goa, Daman and Diu Sales Tax Act, 1964, which spoke of the item "foreign liquor and 313 India made foreign liquor" indicated that the tax was levied only on the liquor and not against the bottle and liquor or bottled liquor.
The sale was of beer and the bottles were treated separately.
It was also pointed out that the agree ment by the assessee with the wholesaler did not create any obligation on the purchasers to return the bottles nor did it fix any time for their return.
The payment of an amount for the bottles in advance as a term of the sale was re ferred to as cost of the bottles and this, the High Court said, constituted the sale price of the bottles although described as a deposit.
In M/s Jamana Flour & Oil Mill (P) Ltd. vs State of Bihar, ; this Court affirmed the finding that there was an implied agreement of the sale of gunny bags.
It said: "Admittedly gunny bags are a different commod ity and sale thereof is assessable to tax at 4 1/2 %.
It is not disputed that the appellant bought gunny bags for packing wheat products for the purpose of sale.
The control order contemplates a net weight which means that the weight of the bag is included in the price to be charged by the dealer.
Under the Explana tion when packing is done in cloth bags, a higher rate is admissible.
The scheme clearly suggests that the price of gunny bags is inclusive and where cloth bag is used, a higher price over and above what has been provided for ordinary containers is permitted.
" It is, therefore, perfectly plain that the issue as to whether the packing material has been sold or merely trans ferred without consideration depends on the contract between the parties.
The fact that the packing is of insignificant value in relation to the value of the contents may imply that there was no intention to sell the packing, but where any packing material is of significant value it may imply an intention to sell the packing material.
In a case where the packing material is an independent commodity and the packing material as well as the contents are sold independently, the packing material is liable to tax on its own footing.
Wheth er a transaction for sale of packing material is an inde pendent transaction will depend upon several factors, some of them being: 1.
The packing material is a commodity having its own identity and is separately classified in the Schedule; 2.
There is no change, chemical or physical, in the packing either at the time of packing or at the time of using the content; 314 3.
The packing is capable of being reused after the con tents have been consumed; 4.
The packing is used for convenience of transport and the quantity of the goods as such is not dependent on pack ing; 5.
The mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product.
In one case, Punjab Distilling Industries Ltd. vs The Com missioner of Income Tax, Simla, [1959] Supp. 1 SCR 683 where the bottles were sold by the assessee under a buy back scheme, the security deposit for the return of the bottles was held to be merely in the nature of an incentive to the buyer to return the bottles.
Turning to section 6C of the Act, it seems to envisage a case where it is the goods which are sold and there is no actual sale of the packing material.
The section provides by legal fiction that the packing material shall be deemed to have been sold along with the goods.
In other words, although there is no sale of the packing material, it will be deemed that there is such a sale.
In that event, the section de clares, the tax will be leviable on such deemed sale of the packing material at the rate of tax applicable to the sale of the goods themselves.
It is difficult to comprehend the need for such a provision.
It can at best be regarded as a provision by way of clarification of an existing legal situation.
If the transaction is one of sale of the goods only, clearly all that can be taxed in fact is the sale of the goods, and the rate to be applied must be read in the case of such goods.
It may be that the price of the goods is determined upon a consideration of several components, including the value of the packing material, but nonetheless the price is the price of the goods.
It is not open to anyone to say that the value of the different components which have entered into a determination of the price of the goods should be analysed and separated, in order that dif ferent rates of tax should be applied according to the character of the component (for example, packing material).
What section 6C intends to lay down is that even upon such analy sis the rate of tax to be applied to the component will be the rate applied to the goods themselves.
And that is for the simple reason that it is the price of the goods alone which constitutes the transaction between the dealer and the purchaser.
No matter what may be the component which enters into such price, the parties understand between them that the purchaser is paying the price of the goods.
Section 6C merely clarifies and explains that 315 the components which have entered into determining the price of the goods cannot be treated separately from the goods themselves, and that no account was in fact taken of the packing material when the transaction took place, and that if such account must be taken then the same rate must be applied to the packing material as is applicable to the goods themselves.
We find it difficult to accept the conten tion of the appellants that a rate applicable to the packing material in the Schedule should be applied to the sale of such packing material in a case under section 6C, when in fact there was no such sale of packing material and it is only by legal fiction, and for a limited purpose, that such sale can be contemplated.
In the circumstances, no question arises of section 6C being constitutionally discriminatory, and therefore invalid.
In the appeals before us, we find that the High Court has proceeded on the assumption that the transactions are covered by trade practice and having regard to the nature of the goods it has inferred that what is charged is the price of the bottled beer or of cement packed in gunny bags, and reference has also been made to the Excise Law and the Cement Control Order requiring that the liquor or the ce ment, as the case may be, must be sold in bottles or in gunny bags respectively.
We are constrained to observe that no attempt has been made by the tax authorities to ascertain the facts of each case and to determine what were the actual ingredients of the contract and the intention of the par ties.
Assumptions have been made when what was required was a detailed investigation into the facts.
We have indicated earlier the several possibilities which are open in cases of this kind, and how the ultimate conclusion can be vitally affected by the tests to be applied.
Because of the lack of adequate and clear factual material, the High Court also was compelled to proceed on the basis of generalised statements and broad assumptions.
We are unable, in the circumstances, to hold that the cases can be regarded as disposed of final ly.
It is regrettable but the cases must go back for proper findings on facts to be ascertained on fuller investigation.
In the circumstances, the appeals are allowed, the impugned judgment and order of the High Court in the several cases are set aside and the cases are remanded to the High Court for further consideration and disposal in the light of the observations made by us.
In the case of the writ peti tions before us, the assessing authority will allow the dealer to show cause and thereafter upon evidence led before it determine the matter.
There is no order as to costs.
R.S.S. Appeals allowed.

summary/full:
The appellants in some of the appeals are manufactur ers of or dealers in beer, the appellants in the other appeals are manufacturers of or dealers in cement.
The appellants filed writ petitions in the Andhra Pradesh High Court challenging the assessment made under the Andhra Pradesh General Sales Tax Act, 1957 on the turnover of packing material employed either by way of bottles for containing beer or by way of gunny bags for packing cement.
The appellants challenged the application of such rate in assessments made in relation to the period before 8 July, 1983.
The appellants also challenged the application of that rate proposed pursuant to section 6C in show cause notices issued by the concerned authority.
Section 6C was inserted in the Act with effect from 8 July, 1983.
The High Court while dismissing the writ petitions, proceeded on the basis that, having regard to the nature of the goods and to the trade practice in respect of beer and cement, the containers were necessary concomitants in the transactions, and the transfer of property in the containers was incidental or unavoidable, that the sale transactions had to be regarded as composite and integrated sales of the containers and their contents and what was really sold was the bottled beer or the cement packed in gunny bags.
The learned Judges expressed the view that the consideration paid by the purchaser to the dealer consisted not only of the price of the contents, namely, beer or cement, but also included the price of the containers, that is, the bottles and the cartons in the case of beer and gunnies in the case of cement.
While allowing the appeals and remanding the cases to the High 306 Court, and in the case of the writ petitions, while direct ing the assessing authority to determine the matters after allowing the dealers to show cause, this Court, HELD: (1) A transaction of sale may consist of a sale of the product and a separate sale of the container housing the product with respective sale considerations for the product and the container separately; or it may consist of a sale of the product and a sale of the container but both sales being conceived of as integrated components of a single sale transaction; or what may yet be of a third case, it may consist of a sale of the product with the transfer of the container without any sale consideration therefore.
The question in every case will be a question of fact as to the nature and ingredients of the sale.
It is not right in law to pick on one ingredient only to the exclusion of the others and deduce from it the character of the transaction.
In every case, the assessing authority is obliged to ascer tain the true nature and character of the transaction upon a consideration of all the facts and circumstances pertaining to the transaction.
[310C E; H; 311A] Hyderabad Deccan Cigarette Factory vs The State of A. P., [1966] 17 STC 624, referred to.
(2) There can be as many different kinds of transactions as the circumstances of the case may require either by reason of prevailing trade practice or market conditions or personal convenience, and as human ingenuity may devise for bonafide reducing the burden of tax.
Whether a transaction for sale of packing material is an independent transaction will depend upon several factors.
[312E] (3) The issue as to whether the packing material has been sold or merely transferred without consideration de pends on the contract between the parties.
The fact that the packing is of insignificant value in relation to the value of the contents may imply that there was no intention to sell the packing, but where any packing material is of significant value it may imply an intention to sell the packing material.
In a case where the packing material is an independent commodity and the packing material as well as the contents are sold independently.
The sale of the packing material is liable to tax independently.
[313E G] Commissioner of Taxes, Assam vs Prabhat Marketing Co. Ltd., [1967] 19 STC 84; The State of Karnataka vs Shaw Wel lace & Company Ltd., [1981] 48 STC 169; Arlem Breweries Ltd. vs The Assistant Commissioner of Sales Tax, Panaji, [1983] 53 STC 172; M/s. Jamana Flour 307 Mill (P) Ltd. vs State of Bihar, ; and Punjab Distilling Industries Ltd. vs The Commissioner of Income Tax, Simla, [1959] Supp. 1 SCR 683, referred to.
Section 6C seems to envisage a case where it is the goods which are sold there is no actual sale of the packing material.
The section provides by legal fiction that the packing material Shall be deemed to have been sold alongwith the goods.
In that event, the tax will be leviable on such deemed sale of the packing material at the rate of tax applicable to the sale of the goods themselves.
It is diffi cult to comprehend the need for such a provision.
It can at best be regarded as a provision by way of clarification of an existing legal situation, which merely explains that the components which have entered into determining the price of the goods cannot be treated separately from the goods them selves, and that no account was in fact taken of the packing material when the transaction took place, and that if such account must be taken then the Same rate must be applied to the packing material as is applicable to the goods them selves.
[314D E; 315A B] (5) It is difficult to accept the contention of the appellants that a rate applicable to the packing material in the Schedule should be applied to the sale of such packing material in a case under section 6C, when in fact there was no such sale of packing material and it is only by legal fic tion, and for a limited purpose, that such sale can be contemplated.
In the circumstances, no question arises of section 6C being constitutionally discriminatory, and therefore invalid.
[315B C] (6) The High Court has proceeded on the assumption that what is charged is the price of the bottled beer or of cement packed in gunny bags.
No attempt was made by the tax authorities to ascertain the facts of each case and to determine what were the actual ingredients of the contract and the intention of the parties.
Assumptions had been made when what was required was a detailed investigation into the facts.
Because of the lack of adequate and clear factual material, the High Court also was compelled to proceed on the basis of generalised statements and broad assumptions.
[315C E]