Central Administrative Tribunal - Delhi
Ajay Kumar Joshi vs Union Of India Through on 9 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL NEMCH OA 3604/2010 With OA 2537/2010 MA 2267/2010 MA 2469/2010 MA 2631/2010 MA 2675/2010 MA 125/2011 MA 386/2011 MA 387/2011 New Delhi this the 9th day of May, 2011 Honble Mr Justice V.K.Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) OA 3604/2010 Ajay Kumar Joshi, Presently posted as Director General, Uttarakhand Administrative Academy Nainital, Government of Uttarakhand, Son of Shri M.C. Joshi, Resident of PW-5, PWD Colony, Race Course, Dehradun. Applicant (By Advocate Shri H.L.Tiku,Sr. Advocate with Mr. Sumit Thakur and Ms. Apoorva Tewari ) VERSUS 1. Union of India through Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi. 2. State of Uttarakhand through Chief Secretary, Civil Secretariat, 4, Subhash Road, Dehradun. 3. Principal Secretary, Department of Personnel, Government of Uttarakhand Civil Secretariat, 4, Subhash Road, Dehradun. 4. Sri. Subhash Kumar, IAS Presently posted as Chief Secretary Government of Uttrakhand & Chief Secretary to Chief Ministers Office, Government of Uttarakhand, Civil Secretariat, 4, Subhash Road, Dehradun. Respondents (Shri M.K.Bhardwaj for Respondent No.1, Shri R. Venkataramani, Sr. Advocate with Ms. Rachna Srivastava and Mr. Aljo K.Joseph, for Respondents No. 2 and 3. OA 2537/2010 Ajay Kumar Joshi, Presently posted as Additional Chief Secretary & Infrastructure Development Commissioner, Government of Uttarakhand, Son of Shri M.C. Joshi, Resident of PW-5, PWD Colony, Race Course, Dehradun. Applicant (By Advocate Shri H.L.Tiku,Sr. Advocate with Mr. Sumit Thakur and M. Apoorva Tewari ) VERSUS 1. Union of India through Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi. 2. State of Uttarakhand through Chief Secretary, Civil Secretariat, 4, Subhash Road, Dehradun. 3. Principal Secretary, Department of Personnel, Government of Uttarakhand Civil Secretariat, 4, Subhash Road, Dehradun. 4. Sri Suneel Kumar Muttoo, IAS Presently posted as Additional Chief Secretary & Social Welfare Commissioner, Government of Uttarakhand Civil Secretariat, 4, Subhash Road, Dehradun. 5. Sri Subhash Kumar, IAS, Presently posted as Additional Chief Secretary to Chief Minister & Forest & Rural Development Commissioner, Government of Uttarakhand Civil Secretariat, 4, Subhash Road, Dehradun. 6. Sri Keshav N. Desiraju, IAS Presently posted as Additional Secretary Health, Ministry of Health & Family Welfare, Government of India, Room No. 148, A Wing, Nirman Bhawan, New Delhi. 7. Sri N.S. Napalchayal, IAS Presently posted as Chief Secretary, Government of Uttarakhand Civil Secretariat, 4, Subhash Road, Dehradun. Respondents (Shri M.K.Bhardwaj for Respondent No.1, Shri R. Venkataramani, Sr. Advocate with Ms. Rachna Srivastava and Mr. Aljo K.Joseph, for Respondents No. 2 and 3. None for respondents No 4 and 6. Mr. Nidhesh Gupta, Sr. Advocate with Mr. Vijay Pandidta for Respondent N0.5 Mr. M.N. Krishnamni, Sr. Advocate with Mr. Aman Sinha, AAG and Mr. Daleep Kumar Dhayani for Respondent No.7) O R D E R Mr.L.K.Joshi, Vice Chairman (A):
We are dealing with both the OAs in this common order, with the consent of the learned counsel for the parties, as common facts and questions of law are involved in both the OAs.
2. In OA number 3604 of 2010 the grievance of the Applicant stems from the concurrence given by the first Respondent, Department of Personnel and Training (DOP&T), in response to the letters dated 31.05.2010 and 08.10.2010 of the second Respondent, State of Uttarakhand, to the availability of one vacancy in the apex scale of IAS in Uttarakhand cadre as on 31.05.2010 in terms of the provisions of Rule 3 (2) (ii) and (iii) of the IAS (Pay) Rules, 2007 in addition to two vacancies in this grade already concurred in by the first Respondent by letter dated 19.09.2008. He is further aggrieved by the orders dated 12.09.2010 and 13.09.2010 whereby the fourth Respondent, Shri Subhash Kumar, has been appointed as Chief Secretary of Government of Uttarakhand and concurrently as Chief Secretary in the office of the Chief Minister respectively. The following relief has been sought:
a) To set aside the orders dated 13.10.2010, 12.09.2010 and 12.09.2010 contained as Annexure P-1 to P-3 to this application;
b) To issue appropriate guidelines of general application for posting of officers on the post of Chief Secretary in State cadres.
c) To declare that the post of Director General, Uttarakhand Administrative Academy, Nainital is not equal in status and responsibility to the post of Chief Secretary, Government of Uttarakhand.
d) Such order orders as this tribunal may deem just, fit and proper be also passed in the interest of justice.
3. The grievance of the Applicant in OA number 2537 of 2010 arose from the recommendations of the Screening Committee, which met on 19.02.2010 and which declared the following officers fit for the apex scale of Chief Secretary:
Sl. No. Name of the officer Grading 1 Shri Vijendra Pal Unfit 2 Shri A K Joshi Fit 3 Shri Suneel Kumar Muttoo Fit 4 Shri Subhash kumar Fit 5 Shri Keshavdesi N. Raju Fit The Applicant is also aggrieved by order dated 31.05.2010, whereby the fourth and the fifth Respondents, Shri Suneel Kumar Muttoo and Shri Subhash Kumar had been promoted to the scale of Rs. 80,000 (fixed) of the IAS. Yet another grievance of the Applicant is that the State of Uttarakhand had created 18 posts under the second proviso to Rule 4 (2) of the IAS (Cadre) Rules. The following reliefs were sought:
a) To set aside the recommendations of the Screening Committee held on 19.02.2010 in so far as they relate to the respondent no. 4,5 & 6 as the same have been made in the absence of any valid post and valid prior concurrence from Govt. of India.
b) To set aside the promotion orders dated 31.05.2010 passed in favour of the respondent nos 4 & 5.
c) To set aside the order dated 28.05.2010 whereby 18 posts have been created purportedly in exercise of powers conferred under second proviso to rule 4 (2) of the IAS (Cadre) Rules.
d) To direct the State of Uttarkhand to fill up the post of Chief Secretary ( a cadre post), only from those officers in the CS Grade who are deemed appointed against cadre posts, and officers in CS Grade should be deemed appointed against the cadre posts on the basis of their respective inter se seniority. A Miscellaneous Application number 2557/2010 was filed on 28.09.2010 seeking amendment of the OA to amend the prayer clause as follows:
To set aside the order dated 19.09.2008 of the Government of India in so far as it relates to the concurrence accorded in respect of availability of one ex-cadre vacancy in Chief Secretary Grade of pay in the Uttarakhand Cadre of the IAS. The Tribunal passed the following order on 01.11.2010:MA 2557/2010
This Misc. Application has been filed under Order VI Rule 17 of Code of Civil Procedure, 1908 read with provision of the Administrative Tribunals Act, 1985 seeking amendment of the Original Application. The proposed amendment seeks to incorporate the following relief:
To set aside the order dated 19.09.2008 of the Government of India insofar as it relates to the concurrence accorded in respect of availability of one ex-cadre vacancy in Chief Secretary Grade of pay in the Uttarakhand Cadre of the IAS This part of the relief has not been incorporated in paragraph 8 pertaining to the relief. Even though, in the first part of the Original Application in which an employee under rules is obliged to state as to against which order the Original Application has been filed, it has been clearly mentioned as follows:-
The applicant assails the validity of Government of India letter dated 19.09.2008 insofar as it relates to the concurrence accorded in respect of availability of one ex-cadre vacancy in Chief Secretary Grade of pay in the Uttarakhand Cadre of IAS.
2. Even though, therefore, in para no. 1 it has been mentioned that the applicant assails Government of India letter dated 19.09.2008, but it has been omitted to be mentioned in the relief clause of the Original Application.
3. Notice on this Misc. Application was given to the respondents who have filed reply. All that is urged is that if the challenge had been made to letter dated 19.09.2008, this Tribunal would not have even entertained this application and rather dismissed the same being barred by time.
4. We have heard learned counsel for the parties and with their assistance examined the records of the case. We are absolutely convinced that the mistake is an inadvertent one, as surely, in para no. 1, the applicant has clearly stated about assailing of the Government of Indias letter dated 19.09.2008 and when the same has been omitted in the prayer clause, it has to be termed as an inadvertent mistake. Law in regard of amendment in pleadings is liberal. Insofar as the plea as regards limitation is concerned, the same would still be open to the respondents. Inasmuch as, if it be the case of the respondents that challenge to Government of Indias letter dated 19.09.2008 is barred by time, surely, the same would also be considered at the time of hearing.
5. For the reasons mentioned above, present Misc. Application is allowed. The applicant is permitted to amend the OA so as to incorporate the challenge to order dated 19.09.2008 in the prayer clause. An amended OA is already on record.
6. Counsel for the respondents seeks time to file reply to the amended OA. Reply be filed two days before the next date fixed with an advance copy to the counsel opposite.
4. In essence, the grievance of the Applicant is that on 19.09.2008, when the concurrence of the Respondent, DOP&T, was given for two available vacancies in the grade of Chief Secretary, only one vacancy was actually available in that grade on that date and two ex-cadre posts could not have been created under Rule 9 (7) of IAS (Pay) Rules, as proposed by the Government of Uttarakhand in its letter dated 3.09.2008, because 17 persons were already working against State Deputation Reserve fixed at 13. Since the person just above the Applicant in the gradation list, namely, Shri Vijendra Pal, was found `unfit by the Selection Committee, only the Applicant could have been selected, being number 2 in the gradation list. Respondents 4 and 5 would not have been in the panel for want of vacancies and the Applicant would have been the only contender for the Chief Secretarys post.
5. The facts of the case need to be mentioned in some detail. The Applicant is a direct recruit officer of the Indian Administrative Service (IAS). He secured second position in the combined gradation list of 160 officers of the IAS of the 1977 batch on the basis of marks secured in the Civil Services Examination of 1976 held by the Union Public Service Commission and the assessment of the Lal Bahadur Shastri National Academy of Administration at Mussoorie. He was allocated to the Uttar Pradesh cadre of the IAS. As on 01.01.2010, out of the 114 officers of the 1977 batch of the IAS remaining in service, the Applicant is at serial number two in the gradation list whereas the fourth Respondent, Shri Subhash Kumar is at 111th position. The State of Uttarakhand was created in the year 2000 by the enactment of Uttar Pradesh Reorganisation Act, 2000. By virtue of the Section 72 of the aforesaid Act a separate cadre of IAS for the newly created State of Uttarakhand was created. The Applicant was allocated to the new cadre of Uttarakhand. He approached the Lucknow Bench of this Tribunal in OA number 84/2001, which stayed his allocation to the new state. The OA was partly allowed with directions to the DOP&T to reconsider the case of the Applicant. However, the Applicant, by his representation dated 10.07.2009, decided not to pursue the matter further. He joined the State of Uttarakhand on 12.10.2009. He was appointed to the grade of Principal Secretary in 2003, while working in the Government of Uttar Pradesh. The Union Government, in consultation with the Government of Uttarakhand, framed the Indian Administrative Service (Fixation of Cadre Strength) Sixth Amendment Regulations, 2004 by notification dated 04.10.2004. The cadre strength fixed in the schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 provided 51 posts at item 1 of the schedule, known as the Senior Duty Posts under the Government of Uttarakhand, which included the posts of Chief Secretary and the Director General Uttarakhand Administrative Academy, Nainital. These posts under item 1 are known as cadre posts under Rule 2 (b) of the Indian Administrative Service (Cadre) Rules, 1954, which reads thus:
"(b) 'Cadre post' means any of the posts is specified under item 1 of each cadre in schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955."
Further, at item 3 of the above said schedule there is provision for State Deputation Reserve, which is 25% of the Senior Duty Posts and which was fixed at 13 in the order dated 04.10.2004.
6. The Government of Uttarakhand sought the concurrence of the Government of India by letter dated 03.09.2008 with respect to the vacancies in the Chief Secretary's scale. The relevant portion of the above said letter is reproduced below:
Please refer to your letter no. 22011/1/2005-AIS (II) dated 14th May, 2007 on the subject mentioned above.
2- I am directed to say that the authorized cadre strength of IAS Cadre of Uttarakhand was fixed vide notification no. 11031/4/2000 & AIS (II)-A dated 4th October, 2004. The total number of sanctioned cadre post in Chief Secretarys scale is two (2). At present two officers are working in this grade. The State has decided to create two ex-cadre posts in the above scale under rule 9(7) of IAS (Pay) Rules, 2007.
3- You are requested to confirm two vacancies for promotion in the scale f Rs.26000/- (fixed). A chart of showing the availability of officers is enclosed. The table giving the scale wise availability of officers as on 01.09.2008, appended to the above said letter has been reproduced below:
SN. Pay Scale/post Total No. sanctioned post Officer working against cadre post Officer working against SDR No. of vacant cadre post +ex-cadre 1 Rs.26000/-
Chief Secretary Scale 2 1 1 1+1=2 2 Rs.22400-24500/-
Principal Secretary 5 5 3 Nil
3.
Rs.18400-22400/-
Supertime Scale 19 19
-
Nil
4. Rs.15100-18300/-
Selection Grade, Junior Administrative Grade & Junior Scale 25 25 13 Nil Total No. sanctioned SDR 13 Officers working against SDR 17 The Government of India concurred in with the proposal about availability of two vacancies in the scale of Rs. 26,000 (fixed) [pre-revised]. On 02.12.2009 Shri Indu Kumar Pande, then Chief Secretary, took voluntary retirement from service and Shri N S Napalchyal was appointed in his place. As a result the ex-cadre post which he was occupying came to an end and SDR came to 16 on that date.
7. On joining the Uttarakhand cadre of IAS in October 2009, the Applicant submitted a detailed representation dated 09.12.2009 to the Government of Uttarakhand praying that an accurate determination of vacancies in the grade of Chief Secretary was absolutely essential considering that the promotion to the post was vacancy based. He also relied in this regard on the paragraph 24 of the `guidelines for promotion dated 28.03.2000. He stated in his representation that no ex-cadre post in any grade, including the grade of the Chief Secretary, could be created in view of the fact that the State Deputation Reserve, as fixed by the order dated 4.11.2004 exceeded 13. The Applicant preferred another representation dated 08.02.2010, challenging the correctness of the letter dated 03.09.2008 of the State Government, inter alia, on the ground that the letter had been sent in great haste as the matter had been put up and approved by the Chief Secretary on the same day, in which five levels of officers from Under Secretary onwards were involved. He also pointed out that the said proposal was in violation of Rule 8 (2) of the IAS (Cadre) Rules, 1954. The Government of Uttarakhand rejected the representation of the Applicant dated 9.12.2009 by order dated 18.02.2010. A meeting of the Screening Committee was fixed for 19.02.2010 in New Delhi. The Screening Committee considered four vacancies, two cadre posts and two ex-cadre posts, for promotion to the grade of Chief Secretary. The Screening Committee made the recommendation in respect of four officers for promotion to the grade of Chief Secretary. A note was put up on 22.02.2010 by the Principal Secretary stating that two officers would be promoted initially because DOP&T had permitted two vacancies and the rest two would be promoted after obtaining the concurrence of the DOP&T.
8. The Applicant sent a reminder on 26.02.2010 stating therein that his representation dated 08.02.2010 had not been decided. The Government of India also sought comments of the Government of Uttarakhand on the representation of the Applicant dated 08.02.2010, by its letter dated 31.03.2010. However, there was no action taken on this communication from the Central Government.
9. In the meantime, the fourth Respondent, Shri Subhash Kumar, who was then Principal Secretary of the Department of Personnel of the State Government, wrote to the Secretary, DOP&T on 29.03.2010, seeking extension for the incumbent Chief Secretary, Shri N S Napalchyal, on the ground that he (Shri N S Napalchyal) had spent very little time on the post of the Chief Secretary and it would not be in the interest of the State Government to change the Chief Secretary within such a short period. The Applicant sent a representation to the Cabinet Secretary, Government of India, on 04.04.2010 alleging a nexus between Shri N S Napalchyal and Shri Subhash Kumar to subvert the entire process of fair selection to the post of Chief Secretary, with the ultimate objective of getting the latter appointed to the said post. Shri N S Napalchyal was granted extension for a further period of six months with effect from 30.04.2010 by the notification dated 28.04.2010 of the Government of India. Meanwhile, the Government of India wrote to the State of Uttarakhand on 07.05.2010 to examine the points raised by the Applicant in his representation to the Cabinet Secretary and to submit a fresh proposal for confirmation of vacancies in the grade of the Chief Secretary for prior concurrence of DOP&T. The Government of Uttarakhand took no notice of this communication and approved the recommendation dated 19.02.2010 of the Screening Committee on 25.05.2010. Three persons, namely, Shri A K Joshi, the Applicant herein, Shri Sunil Kumar Mattoo and Shri Subhash Kumar were promoted to the grade of Chief Secretary. The note dated 25.05.2010 put up by the Principal Secretary, Personnel of the Government of Uttarakhand mentioned, inter alia, that although the Government of India had given approval only for two vacancies by letter dated 19.09.2008, but subsequently the number of vacancies has risen to 3, consequent to the retirement of Shri Indu Kumar Pandey. It was mentioned in the above note that the third vacancy obviously existed and it was merely a formality to send a fresh proposal to seek the concurrence of the Government of India. Meantime, the second Respondent, State of Uttarakhand created 18 posts in the grades of Additional Chief Secretary (01), Principal Secretary (08), Additional Secretary (05) and Chief Development Officer (04) by order dated 28.05.2010 under second proviso to Rule 4 (2) of the Indian Administrative Service (Cadre) Rules, 1954. These posts were created for two years. The three officers, whose promotion was approved by the Chief Minister on 25.05.2010, were promoted to the grade of Rs. 80,000 (fixed) by separate orders dated 31.05.2010. On the same date the Principal Secretary, Personnel, Government of Uttarakhand, wrote to the Secretary, DOP&T, Government of India informing him that after the approval given by the first Respondent about two vacancies in the grade of Chief Secretary by the Government of India, another vacancy arose on the retirement of Shri Indu Kumar Pandey and the Government of Uttarakhand promoted three officers to the grade of Chief Secretary. This was sent only for the information of the first Respondent. In the attached table giving availability of officers scale wise, the number of officers working against the SDR was shown as nine.
10. The Applicant was posted as Director General, Uttarakhand Administrative Academy, Nainital. The Applicant joined the aforesaid post under protest by giving a representation dated 21.08.2010. Meanwhile, the Applicant had filed OA number 2537 of 2010 before this Tribunal on 03.08.2010, seeking, inter alia, interim directions to the second Respondent, State of Uttarakhand, not to appoint the fourth, fifth and the sixth Respondents therein to the post of Chief Secretary. The Tribunal passed the following order on 06.09.2010:
MA 2267/2010Considering the averments made in this Misc. Application, we issue notice to the respondents on interim directions as sought for, returnable on the date already fixed in the main OA i.e. 27.09.2010. The Registry will send a copy of this order to the respondents as well. We expect the respondents to file the reply two days before the next date fixed with an advance copy to the counsel opposite so that the matter is decided on the date fixed itself. If our directions are not complied with and no reply is filed by the next date, we will consider grant of interim directions, as sought for. Thereafter, the incumbent Chief Secretary, Shri N S Napalchyal, applied for voluntary retirement from service on 12.09.2010, which happened to be a Sunday, and his request was acceded to on the same day. The fourth Respondent in OA 2537/2010, Shri Subhash Kumar, was appointed Chief Secretary also on the same day, that is, 12.09.2010. By its order dated 13.10.2010 the Government of India gave its concurrence to the availability of one vacancy in the apex scale in Uttarakhand cadre as on 31.05.2010 in terms of Rule 3 (2) (ii) and (iii) of the Indian Administrative Service (Pay) Rules, 2007, in addition to the two vacancies in this grade to which concurrence had earlier been given by its letter dated 19.09.2008.
11. The Applicant made an application dated 04.01.2010, under the Right to Information Act, 2005, requesting for giving him a copy of the order dated 19.09.2008 of the Government of India, by which two vacancies in the grade of Chief Secretary had been approved by the Government of India. He was informed by letter dated 28.01.2010 that the said letter was not available on the file and that it would be made available to him after it was received. The words used are jisko prapt karne ke uprant aapko uplabdha karaya jayega. It has not been elucidated as to from whom it would be received. It was made available to him on 26.02.2010.
12. It is in the above background of facts that the issues have to be considered in these Original Applications.
Preliminary objections by the Respondents.
13. The first objection raised by the Respondents is regarding the territorial jurisdiction of the Principal Bench of the Central Administrative Tribunal. It was urged that the Allahabad Bench alone had the jurisdiction in this matter. It was urged that a careful perusal of the prayers made by the Applicant in the OAs would reveal that these had challenged the orders of the Government of Uttarakhand and in the matter relating to that State. It was submitted that in the light of the notification issued by the Government of India on 23.11.2000, the Allahabad Bench of the Tribunal was the competent forum to decide all service disputes relating to All India Services in Uttarakhand. The relevant portion of the aforesaid notification is reproduced below:
"S. No. Bench Jurisdiction of the Bench 3. Allahabad Bench (i) State of Uttar Pradesh
excluding the Districts mentioned against serial number 4 under the jurisdiction of Lucknow Bench.
(ii) State of Uttaranchal
4. Lucknow Bench Districts of Lucknow, Hardoi, Kheri, Rai Bareli, Sitapur, Unnao, Faizabad, Ambedkar Nagar, Baharaich, Shravasti, Barabanki, Gonda, Balrampur, Pratapgarh, Sultanpur in the State of Uttar Pradesh.
14. It was further contended that the Applicant had earlier filed an OA challenging his allocation to Uttarakhand cadre before the Lucknow Bench. Advertence has been made to Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 to urge that the Applicant could not have filed his Applications before the Principal Bench. The Rule 6 ibid is extracted below:
6. Place of filing application.- (1) An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction-
the applicant is posted for the time being, or the cause of action, wholly or in part, has arisen:
Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under Section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter.
(2) Notwithstanding anything contained in sub-rule (1), a person who has ceased to be in service by reason of retirement, dismissal or termination of service may at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application. It was argued that the order passed by the Government of India on 19.09.2008 has been challenged only in the amended OA only to bring the matter within the jurisdiction of this Bench. However, it was argued that the challenge to the order dated 19.09.2008 was barred by limitation. If this communication was to be disregarded as being hopelessly barred by limitation, there could be no argument regarding the Principal Bench having jurisdiction in this matter. It was urged that the Central Government being a party would not give jurisdiction to the Principal Bench. It was contended that the Applicant was most reluctant to come to the Uttarakhand Cadre. The Cadre was allocated to him on the creation of the State in the year 2000, but he waged a legal battle before the Tribunal to avoid coming to the cadre. It was submitted that in the year 2009, on carefully weighing his prospects of becoming Chief Secretary in Uttar Pradesh or Uttarakhand, he wrote to the Government of India not to press the matter regarding allocation of the Uttarakhand Cadre to him. He joined the second Respondent only on 12.10.2009. He had, it was urged, no right to aspire to the post of Chief Secretary of a State, which he had spurned for so long. It was further urged that the Applicant was not prejudiced by the order dated 19.09.2008 as he was promoted to the grade of Chief Secretary. It was further argued that the relief sought in OA 3604 of 2010 were all addressed for a redress of grievances against the Government of Uttarakhand. The order dated 12.09.2010 of posting of Shri Subhash Kumar as Chief Secretary and the order dated 13.09.2010 posting him (Shri Subhash Kumar) as Chief Secretary to Chief Minister could not be challenged by him as the matter regarding postings of officers of All India Services was the exclusive preserve of the State Government under Rule 7 of the Indian Administrative Service (Cadre) Rules, 1954, which reads thus:
7. Postings- All appointments to cadre posts shall be made:-
(a) in the case of a State Cadre, by the State Govt.; and
(b) in the case of a Joint Cadre, by the State Govt. concerned. It was also argued that as far the relief b) sought by the Applicant regarding issuance of appropriate guidelines of general application for posting of officers on the post of Chief Secretary in State cadre was concerned, it was outside the adjudicatory domain of this Tribunal. It was argued that no such judicial authority vested in the Tribunal to go beyond the individual service disputes. As regards the prayer c) in OA number 3604/2010 to declare the post of Director-General, Uttarakhand Academy of Administration as not equal in status and responsibility to the post of Chief Secretary, could also not be adjudicated by this Tribunal in view of the fact that it was a cadre post under the rules and had the same grade of Rs. 80,000 (fixed), as the post of Chief Secretary. It was further argued that the order dated 19.09.2008 was passed much before the Applicant joined the State on 12.10.2009. Obviously, the request made by the State Government on 03.09.2008 to the Central Government could not have been aimed at the Applicant with an intent to spoil his chances of promotion to the post of Chief Secretary.
15. The other objection of the Respondents was regarding the OA number 2537 of 2010 being barred by limitation as the order being assailed was dated 19.09.2008. It was argued that the Tribunal was bound by Section 21 of the Administrative Tribunals Act, 1985. Sections 20 and 21 ibid have been extracted below:
20. Applications not to be admitted unless other remedies exhausted.- (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, -
if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.
21. Limitation. - (1) A Tribunal shall not admit an application, -
in a case where a final order such as is mentioned in Clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
in a case where an appeal or representation such as is mentioned in Clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in Clause (a), or , as the case may be, Clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in Clause (a) or Clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. It was argued that under Section 21 ibid the OA has to be filed within one year of passing of the order. Since the order of the Central Government was passed on 19.09.2008, the Applicant ought to have approached the Tribunal within one year of passing of that order, whereas he has approached the Tribunal only in August 2010.
16. Before addressing us on the issue of jurisdiction, the learned counsel for the Applicant made submissions regarding limitation because the Respondents had linked the question of limitation with the question of jurisdiction stating that if challenge to the order dated 19.09.2008 was not maintainable because of limitation then there would be no jurisdiction for the Principal Bench to entertain this Application. It was submitted by the learned senior counsel that a plain reading of Section 21 read with Section 20 ibid would clearly demonstrate that period of one year of limitation under Section 21 (a) applies in such cases where final order has been made by the Government or other authority rejecting any statutory appeal or representation made by an employee in connection with his grievance. It was submitted that there was no provision for making any statutory appeal or representation for redress of grievance against order granting concurrence to the vacancies and, therefore, Section 21 has no application in this case. In fact in the service rules of the All India Services there was no mechanism of redress of grievances by way of statutory appeal or representation. In the circumstances the limitation would be governed by the residuary Article of Limitation Act, 1963. The provision is as follows:
"Description of application Period of limitation Time from which period begins to run
137. Any other application Three years When the right to for which no period of apply accrues. limitation is provided elsewhere in this division Reliance has been placed on Asia Resorts Ltd. V. Usha Barco Ltd., AIR 2002 SC 55. It has been held thus in paragraph 15 of the judgement:
15. There is not much controversy that the residuary Article 137 of the Limitation Act applies so far as the period of limitation is concerned for an application under Section 20 of the Arbitration Act, 1940. The residuary Article 181 of the Limitation Act, 1908 was replaced by Article 137 in the Limitation Act, 1963. Earlier, Article 181 was applicable only in respect of application to be filed under the Civil Procedure Code. This Article was replaced by Article 137 in the Limitation Act, 1963 in a modified form. By insertion of Article 137, it cast a wider net so as to include any application for which no period of limitation was provided elsewhere in that division. The third division of the Limitation Act, 1963 deals with various applications to be filed under various special statutes. The definitions of 'applicant' and 'application' are also inserted in the Limitation Act, 1963. Therefore, it is clear that the intention of the Legislature was to provide a residuary Article prescribing period of limitation for filing petitions and applications under the various special laws. This Court in Kerala State Electricity Board v. T.P. Kunhaliumma, AIR 1997 SC 282 held that Article 137 would apply to any petition or application filed under any Act to a civil Court and it cannot be confined to applications contemplated by or under the Code of Civil Procedure. In Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority, 1998 (2) SCC 338; Union of India and Another v. M/ s. L.K. Ahuja and Co., 1988 (3) SCC 76; Steel Authority of India Ltd. v. J.C. Budhiraja, Government and Mining Contractor, 1999 (8) SCC 122] and Union of India and Another v. M/s. Vijay Construction Co., AIR 1983 Delhi 193, this Court held that the period of limitation for filing application under Section 20 of the Arbitration Act, 1940 is as prescribed under Article 137 of the Limitation Act. Further, it was contended that the period of limitation would begin from the date of knowledge of the order challenged in the OA. The order dated 19.09.2008 had neither been published in newspapers nor notified in the Gazette of India. It was also not circulated to the officers of the cadre. Therefore, there was no question of the Applicant having any knowledge of the order dated 19.09.2008, especially because he was not in the Uttarakhand cadre till 12.10.2009. On being transferred to that cadre he vaguely came to know about the concurrence given by the Government of India, but the exact nature of the order and the terms in which it was given was not known to him. As already adverted to above, when the Applicant asked for a copy of the aforesaid order under the Right to Information Act, 2005, it was not given to him on the ground that the said order was not available in the record. It was only on 26.02. 2010 that the copy of the order was made available to the Applicant. The learned senior counsel would contend that the period of limitation would run from 26.02.2010 only. Reliance has also been placed on Seema Chaudhary V. Union of India, 2202 VI AD (Delhi) 982. The petitioner in the Writ Petition (cited supra) was claiming that she should be appointed to Group A of Indian Customs and Central Excise Service, whereas the respondents resisted the same by saying that having accepted service in Group B, she was estopped from claiming appointment to Group A. It was also urged by the respondents that the letter of appointment was issued on 08.02.1993, whereas the OA was filed on 19.02.1999. It was, therefore, barred by limitation. The petitioner had argued that she came to know about diversion of posts in June 1998 and, therefore, limitation would count only from the period of knowledge. The Tribunal rejected the OA on the grounds of limitation. The Honourable Delhi High Court held thus:
22. Was it a case where the technical rules of delay and laches should be allowed to prevail over the merit of the matter.
23. We have noticed that the Tribunal extensively quoted from Bablanis case alone. Bablanis case was decided in 1994. Therein there had been delay of 15-20 years. A question which arises is as to whether the respondents can be permitted to continue to act arbitrarily. The contention of the petitioner to the effect that they were not aware of the factual position so as to enable them to lay their claim has not been disbelieved. Question of delay and laches may arise only when a set of facts were known to the petitioner but he did not take any action for a long time although he is aware thereof. Question of slipping over the right for a long time will arise only when one knows about his right. A cause of action relating to enforcement of right would arise only when factual background is known. Reliance has also been placed on N Balakrishnan V. M Krishnamurthy, JT 1998 (6) 242, in which the facts were as follows:
3. A suit for declaration of title and ancillary reliefs filed by the respondent was decreed ex-parte on 28.10.1991. Appellant, who was defendant in the suit, on coming to know of the decree moved an application to set it aside. But the application was dismissed for default on 17.02.1991. Appellant moved for having that order set aside only on August 19, 1995 for which a delay of 883 days was noted. Appellant also filed another application to condone the delay by offering an explanation .. The Honourable Supreme Court laid down the following principles as regards condoning of delay in the case:
10.It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. As regards jurisdiction, it was submitted that if the cause of action arose fully or partly in two places, the Bench at either of the places would have the jurisdiction to entertain the OA. It is clear from the reading of the Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987, which has been quoted above. It was urged that the impugned orders dated 19.09.2008 and 13.10.2010 were passed by the DOP&T, Government of India. The meeting of the Screening Committee was held in Delhi. Obviously, part of the cause of action has arisen in Delhi.
17. On consideration of the arguments of the learned counsel for the parties on the issues regarding limitation and jurisdiction, we are of the considered opinion that the challenge to the order dated 19.09.2008 is not barred by limitation and because the said order and the order dated 13.10.2010 have been passed by the Government of India, the Principal Bench at New Delhi has the jurisdiction to entertain this Original Application. A careful reading of the Section 21 read with Section 20 of the Administrative Tribunals Act, 1985 would show that the limitation of one year applies to final order such as is mentioned in Clause (a) of sub-section (2) of Section 20. This final order relates to the order made by the competent authority rejecting any statutory appeal or representation. In the instant case there is no statutory appeal or representation against orders such as passed by the Government of India, which have been impugned in the OAs before us. In view of this Section 21 ibid will not apply for limitation in this case. It would be governed by the residuary article 137 of the Limitation Act. Moreover, there is another angle to be considered, that is, the date of knowledge of the impugned order dated 19.09.2008. As has been argued, the impugned order is not such that it would be in common knowledge after it has been passed. It is not notified in the Gazette, not published in the newspapers and not circulated to the members of service. The attempts of the Applicant to procure the order did not succeed in the first instance, as he was informed that the said order was not available on the file. It was only by his persistent efforts that the impugned order was made available to him. In such view of the matter also, it would be unfair to bar challenge to the order dated 19.09.2008 on the ground of limitation. Looked at any way, it is clear that the OA is not barred by limitation as contended by the Respondents. There is no difficulty in holding that the Principal Bench at New Delhi has jurisdiction to entertain these OAs in view of the fact that part of the cause of action has arisen in Delhi inasmuch as the impugned orders have been passed by DOP&T, Government of India.
18. In essence, the argument advanced on behalf of the Applicant on merits is that the Respondents have completely disregarded the provisions of the All India Services Act, 1951 (AIS Act, 1951) and the Rules and Regulations made there under in effecting promotions to the grade of Chief Secretary, which has completely vitiated the procedure and as a result the consideration has not been fair and just. Section 3 of the AIS Act, 1951 provides for regulation of requirement and conditions of service for the members of the service. The aforesaid Section 3 has been extracted below:
3. Regulation of requirement and conditions of service (1) The Central Government may, after consultation with the Governments of the States concerned [including the State of Jammu and Kashmir], (and by notification in the Official Gazette) make rules for the regulation of recruitment, and the conditions of service of persons appointed, to an All India Service.
(1A) The power to make rules conferred by this section shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any persons to whom such rule may be applicable.
(2) Every rule made by the Central Government under the section and every regulation made under or in pursuance of any such rule, shall be laid, as soon as may be after such rule or regulation is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both houses agree that such rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation. In exercise of the powers conferred by Section 3 of AIS Act, 1951, the Central Government framed the IAS (Cadre) Rules, 1954. Rule 4 (1) ibid provides for determining the strength and composition of the IAS cadre in the States et cetera by appropriate regulations made in this regard. IAS (Fixation of Cadre Strength) Regulations, 1955 were enacted in pursuance of the aforementioned Rule 4 (1). The cadre posts are defined as those posts which are mentioned as Senior Duty Posts at item 1 of the schedule to the IAS (Fixation of Cadre Strength) Regulations, 1955 as per Section 2 (b) of the IAS (Cadre) Rules, 1954. As we have already seen above the Senior Duty Posts for Uttarakhand Cadre were fixed as 51 by order dated 04.11.2004. Thus the cadre posts in that cadre would be 51. Additionally, certain reserves have also been prescribed, which could be utilised if administrative exigencies so demanded. These reserves for Uttarakhand Cadre were fixed as follows:
"1. Central Deputation Reserves (CDR) @40% of Senior Duty Posts 20
2. State Deputation Reserves (SDR) @25% of Senior Duty Posts 13
3. Training Reserve @3.5% of Senior Duty Posts 02
4. Leave Reserve and Junior Post Reserve @16.5% of Senior Duty Posts 08 The learned senior counsel pointed out that the posts under the SDR and CDR are distinct as clarified by the letter dated 13.06.2000 of the DOP&T. The relevant portion of the aforesaid letter is quoted below:
(i) The State Deputation Reserve will comprise the following:-
All ex-cadre posts held by cadre officers under the control of the State Government including those on inter-cadre deputation to another State Government.
All posts under a Company, Association or a body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the State.
All posts under a Municipal Corporation or Local Body under the control of the State Government.
(ii) The Central Deputation will comprise the following:-
All posts held by the All India Services officers under the control of the Central Government including posts under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government and all posts under Rule 6 (2) (ii) of the IAS/IPS/IFS (Cadre) Rules, i.e. the posts in an international organization, an autonomous body not controlled by the Government or private body. The argument was that the SDR and CDR were distinct and it would be wrong to attempt to combine the two. Advertence has been made to Rule 8 of the IAS (Cadre) Rules, 1954, which provides that a cadre officer shall not hold an ex-cadre post in excess of the number specified under the SDR. Rule 8 has been extracted below:
8. Cadre and ex-cadre posts to be filled by cadre officers (1) Save as otherwise provided in the rules, every cadre posts shall be filled by cadre Officer.
(2) A cadre officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under item 5[now item 3] of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955.
(3) The State Government may, with the prior approval of the Central Government, appoint a cadre officer to hold an ex-cadre post in excess of the number specified for the concerned State in item 5 [now item 3] of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 and, for so long as the approval of the Central Government remains in force, the said ex-cadre post shall be deemed to be in to addition to the number specified in item 5 [now item 3] of the said Schedule. (emphasis added) It was submitted that there was no exception to the rule and being mandatory, it had to be followed at all times while filling up the posts and vacancies. It was also argued that the Central Government issued `guidelines regarding promotion to various grades in IAS by letter dated 28.03.2000. Paragraph 24 of the General Guidelines for promotion has been extracted below:
24. AVAILABILITY OF VACANCIES Whenever promotions are vacancy based, while computing the available vacancies for filling up the same by promoting officers placed in the panel, care should be taken to ensure that the total ex-cadre posts created in various grades for the purpose do not exceed in sum the permissible quota of State Deputation Reserve indicated in the respective Cadre Schedule. Provisions of rule 9(7) of the IAS (Pay) Rules, 1954 would also require to be followed while making promotions in the highest grade of the Service. (emphasis added) It also enjoins that SDR should not be exceeded while making promotions/selections. It was argued that the State Government had the flexibility available to it to create ex-cadre posts in any grade, subject to the condition that the State Deputation Reserve should not be exceeded, subject also to the condition that the number of ex-cadre posts in the apex scale should not exceed the number of cadre posts, as provided under Rule 9 (7) of the Indian Administrative Service (Pay) Rules, 2007. Rule 9 ibid reads thus:
9. Pay of members of the Service appointed to posts not included in schedule II. (1) No member of the Service shall be appointed to a post other than a post specified in Schedule II, unless the State Government concerned in respect of posts under its control, or the Central Government in respect of posts under its control, as the case may be, make a declaration that the said post is equivalent in status and responsibility to a post specified in the said Schedule.
(2) The pay of a member of the Service on appointment to a post other than a post specified in Schedule II shall be the same as he would have been entitled to, had he been appointed to the post to which the said post is declared equivalent.
(3) For the purpose of this rule, post other than a post specified in Schedule II includes a post under a body (incorporated or not, which is wholly or substantially owned or controlled by the Government).
(4) Notwithstanding anything contained in this rule, the State Government concerned in respect of any posts under its control, or the Central Government in respect of any posts under its control, may, for sufficient reasons to be recorded in writing, where equation is not possible, appoint any member of the Service to any such post without making a declaration that the said post is equivalent in status and responsibility of a post specified in Schedule II.
(5) A member of the Service on appointment to a post referred to in sub-rule (4), in respect of which no pay or scale has been prescribed, shall draw such rate of pay as the State Government in consultation with the Central Government in the case of a post under the control of the State Government, or as the Central Government in the case of a post under the control of the Central Government may, after taking into account the nature of duties and responsibilities involved in the post, determine.
(6) A member of the Service on appointment to a post referred to in sub-rule (4), in respect of which any pay or scale of pay has been prescribed, shall draw where the pay has been prescribed, the prescribed pay and where scale of pay has been prescribed, such rate of pay not exceeding the maximum of the scale as may be fixed in this behalf by the State Government, or as the case may be, by the Central Government.
Provided that the pay allowed to an officer under this sub-rule and sub-rule (5) shall not at any time be less than what he would have drawn had he not been appointed to a post referred to in sub-rule (4).
(7) At no time the number of members of the Service appointed to hold posts, other than cadre posts referred to in sub-rule (1) and sub-rule (4), which carry pay of Rs.26000/- per mensem and which are reckoned against the State Deputation Reserve, shall except with the prior approval of the Central Government, exceed the number of cadre posts at that level of pay in a State cadre or, as the case may be, in a Joint cadre. (emphasis added) In other words, at the most two ex-cadre posts could be created in the apex scale in Uttarakhand cadre subject to the condition that the State Deputation Reserve of 13 was not exceeded. It was argued that Rule 9 (7) of the Indian Administrative Service (Pay) Rules, 2007 had to read with Rule 8 (2) of Indian Administrative Service (Cadre) Rules, 1954 and `guidelines of 28.03.2000. It was contended that at the time the proposal was sent to the Government of India for ascertaining the vacancies, the State Deputation Reserve was being utilised to the extent of 17. The Government of India could not have given its concurrence for two vacancies in the apex scale de hors the rules in this regard. While dealing with the nuances of Rule 9 (7) of the IAS (Pay) Rules, 2007, the learned senior counsel contended that the aforesaid rule would apply in respect of posts in the apex scale which are reckoned against the State Deputation Reserve. It was submitted that in Uttarakhand Cadre there were two cadre posts in the apex scale, namely, Chief Secretary and Director General, Uttarakhand Administrative Academy, Nainital. It was urged that the state could have only two posts in the apex scale, to be reckoned against the State Deputation Reserve. The State Government could create two ex-cadre posts against these posts but it had to be read with Rule 8 (2) of the IAS (Cadre) Rules, 1954. It was contended that Rule 8 (2) of the IAS (Cadre) Rules, 1954 has specifically provided that a cadre officer would not hold an ex-cadre post in excess of the State Deputation Reserve provided under item 3 of Schedule to IAS (Fixation of Cadre Strength) Regulations, 1955. It was argued that the above rule was mandatory in nature and had to be followed at all times. Thus read together harmoniously, it meant that only two ex-cadre posts could be created in the apex grade, subject to the condition that SDR did not exceed the prescribed number of 13. In other words, since the utilised SDR stood at 17 on 13.09.2008, two ex-cadre posts could not have been created on that date.
19. It was further contended that the Government of Uttarakhand abused its powers under second proviso to Rule 4 (2) of the Indian Administrative Service (Cadre) Rules, 1954 to create 18 posts in May, 2010. Rule 4 ibid has been reproduced below:
4. Strength of Cadres 4(1) The strength and composition of each of the cadres constituted under rule 3 shall be determined by regulations made by the Central Government in consultation with the State Governments in this behalf and until such regulations are made, shall be as in force immediately before the commencement of these rules.
(2) The Central Government shall, [ordinarily] at the interval of every [five] years, re-examine the strength and composition of each cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit:
Provided that nothing in this sub-rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any cadre at any other time:
Provided further that State Government concerned may add for a period not exceeding two year [and with the approval of the Central Government for a further period not exceeding three years, to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts. (emphasis added) These posts were created to give an impression that on 31.05.2010, the date on which appointment of the officers was made to the apex scale, the State Deputation Reserves was below the prescribed limit of 13, by assuming, though wrongly, that the posts so created would add to the strength of cadre posts. It was argued on behalf of the Applicant that the creation of posts under the second proviso to the Rule 4 (2) would not add to the cadre posts. Reliance has been placed on E P Royappa V. State of Tamil Nadu and another, (1974) 4 SCC 3. The facts in this case were that the petitioner was posted as Chief Secretary of Tamil Nadu on 13.11.1969. The Government of Tamil Nadu created a temporary post of Deputy Chairman of State Planning Commission in the grade of Chief Secretary for one year and posted the petitioner in that post on 07.04.1971. The petitioner did not join the post but went on leave. On 27.06.1972 the Government of Tamil Nadu created a temporary post of Officer on Special Duty in the grade of Chief Secretary and posted the petitioner to that post, after expiry of his leave. The petitioner filed the petition before the Honourable Supreme Court under Article 32 of the Constitution in July 1972. The issues raised in this case were succinctly summed up thus:
8.The petitioner's contentions were these. First, the petitioner is appointed to a post or transferred to a post which is not validly created. The post of Officer on Special Duty is said to be not a post carrying duties and responsibilities of a like nature to cadre posts within the meaning of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954. Second, under Rule 9 of the Indian Administrative Service (Pay) Rules, 1954 no member of the Service shall be appointed to a post other than a post specified in Schedule III unless the State Government concerned in respect of posts under its control or the Central Government in respect of posts under its control, as the case may be, make a declaration that the said post is equivalent in status and responsibility to a post specified in the said Schedule. It is, therefore, said that the petitioner who is a cadre post holder, viz., holding the post of Chief Secretary cannot be posted to a non-scheduled post without a declaration that the non-scheduled post is equal in status and responsibilities to a scheduled post. Third, the petitioner is posted to an office which is inferior in status and office to that of the Chief Secretary. Therefore, the order is a hostile discrimination offending Articles 14 and 16. Forth, the creation of the post as well as the appointment and transfer of the petitioner to the post is mala fide. The Honourable Supreme Court, while considering the above issues, inter alia, made the following observations whether the posts created under second proviso to Rule 4 (2) ibid would be counted as cadre posts:
17. It was contended that neither the post of Deputy Chairman, Planning Commission nor the post of Officer on Special Duty was a Cadre post within the meaning of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954. The Additional Solicitor-General as well as the Advocate-General of the State did not contend that either of the posts was a Cadre post within the meaning of the Indian Administrative Service (Cadre) Rules. The strength and composition of the Cadre as contemplated by Rule 4 of the Indian Administrative Service (Cadre) Rules is to be determined by the Central Government in consultation with the State Government. The relevant provision is sub-rule (2) of Rule 4. It states that the Central Government shall at the interval of every three years re-examine the strength and composition of each such Cadre in consultation with the State Government or the State Governments concerned and may make such alterations as it deems fit. There are two provisos in the sub-rule. The first proviso states that nothing shall be deemed to affect the power of the Central Government to alter the strength and composition of the Cadre at any other time. The second proviso states that the State Government may add for a period not exceeding one year and with the approval of Central Government for a further period not exceeding two years, to a State or joint Cadre one or more posts carrying duties and responsibilities of a like nature of cadre posts. It, therefore, follows that the strength and composition of the Cadre shall be determined by regulations made by the Central Government in consultation with the State Government. The State Government alone cannot alter the strength and composition of the Cadre.
18. The aforementioned second proviso to Rule 4 (2) of the Cadre Rules does not confer any power on the State Government to alter the strength and composition of the Cadre. If such power were conferred on the State examination of the strength and composition at the interval of every three years by the Central Government in consultation with the State Government would be nullified. The meaning of the second proviso to Rule 4 (2) is that the State Government may add for a period mentioned there to the Cadre one or more posts carrying duties and responsibilities of the like nature of a Cadre post. The posts so added do not become Cadre posts. There temporary posts do not increase the strength of the Cadre. The addition of the post of Deputy Chairman, Planning Commission or Officer on Special Duty to the Indian Administrative Service Cadre of Tamil Nadu State is not permissible because that would result in altering the strength and composition of the Cadre. The State has no such power within the second proviso to Rule 4 (2) of the Cadre Rules. (emphasis added) Reliance has also been placed on K Prasad and others V. Union of India and others, AIR 1988 SC 535. We are, however, refraining from discussing this case, as in our considered opinion, it has no relevance in the instant OA. The Applicant has also relied on G S Gill and others V. The State of Punjab and Others, (1975) 3 SCC 73. However, the issue in this case was whether some State Civil Service officers appointed to hold some posts in senior time scale of IAS, created under Rule 4 (2) ibid, were holding substantive posts or officiating posts. It was held that the appointment to the said posts was not substantive. The issue is not germane to the OA in hand. The sum and substance of the argument of the learned senior counsel was that the posts created under second proviso to Rule 4 (2) ibid could not be counted as cadre posts, but were actually ex-cadre posts. In yet another argument the learned senior counsel submitted that if the State Government had the unbridled power to create any number of posts under Rule 4 (2) of IAS (Cadre) Rules, 1954, then the whole concept of accurate determination of vacancies under Rules 3 (2) (ii) and (iii) would become redundant because the State Government could create any number of cadre posts in any grade. It was vehemently contended that in the light of these arguments it would be an absolutely anomalous proposition that the posts created under Rule 4 (2) of the IAS (Cadre) Rules, 1954 would be counted against cadre posts. It was urged that in the light of the judgement in E Royappa (supra) and the above analysis, the posts created temporarily under Rule 4(2) ibid have to be counted as ex-cadre posts. He would contend that in view of this the utilisation of State Deputation Reserve stood at 27 and not 9, as claimed by the Respondents. It was further argued that the State Government had been less than honest in not including the name of one Shri Sandhu, an officer of Uttarakhand cadre on deputation to Punjab cadre, which would have added one more number to the utilization of SDR. It was urged that a person on inter-State deputation has to be counted against SDR as clarified by the DOP&T by its letter dated 13.06.2000, which, inter alia, provided that:
(i) The State Deputation Reserve will comprise the following:
All ex-cadre posts held by cadre officers under the control of the State Government including those on inter-cadre deputation to another State Government.
20. He also submitted that it was mandatory under the IAS (Pay) Rules, 2007 to seek prior concurrence of the Central Government for available vacancies for promotion to selection grade and above. Rules 3 (2) (i) and (ii) were introduced by amending the IAS (Pay) Rules, 1954 in the year 2007. Rule 3 (2) of the IAS (Pay) Rules, 2007 is quoted below:
(2) (i) Appointment to the Selection Grade and to posts carrying pay above the grade in the Indian Administrative Service shall be made by selection on merit, as per criteria that may be prescribed by the Central Government, with due regard to seniority.
Provided that a member of the Service shall be appointed to the Super Time Scale only after he has completed phase IV mandatory Mid Career Training as prescribed.
(ii) Appointment of a member of the Service in the scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be mandatory upon the State Cadre or the Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Central Government on the number of available vacancies in each grade.
(iii) The Central Government shall accord such concurrence within a period of thirty days from the date of receipt of such references and if the Central Government does not accord concurrence within a period of said thirty days, the concurrence on availability of vacancies shall be deemed to have been accorded. The position emanating as referred to this clause shall be placed before the Screening Committee at the time it meets to consider promotion in these grades.
(iv) A member of the Service shall be entitled to draw pay in the scales of Selection Grade and above only on appointment to these grades. (emphasis added) The learned senior counsel further contended that the DOP&T had specifically pointed out in its circulars and letters dated 28.03.2007, 14.05.2007, 25.03.2008 and 19.06.2008 the rationale for introducing Rules 3 (2) (ii) and (iii) by way of amendment of the year 2007 in the existing IAS (Pay) Rules. The Central Government has issued circulars dated 28.03.2007, 14.05.2007, 25.03.2008 and 19.06.2008 about the compliance of Rules 3 (2) (ii) and (iii) of the IAS (Pay) Rules, 2007. The Additional Secretary (DOP&T) in his letter dated 28.03.2007 explained the rationale behind the introduction of Rules 3 (2) (ii) and (iii) thus:
(c) A new provision has also been added in Rule 3 (2) (ii) of the IAS (Pay) Rules 2007, stating that appointments of officers in the Scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be mandatory upon the State Cadre or the Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Central Government on the number of available vacancies in each grade. The provision was required for better cadre management of the service as it was noticed by experience that the State Government were often making promotions in their respective cadres beyond the number of available vacancies in various grades. (emphasis added) The letter dated 14.05.2007 from the Director, DOP&T, addressed to the Chief Secretaries of the States is about proposals regarding confirmation of vacancies in Selection Grade and above in terms of the above mentioned Rules 3 (2) (ii) and (iii) ibid. The letter reads thus:
The IAS (Pay) Rules 2007 have been notified by this department on 20th March 2007 and Rules 3(2)(ii) & (iii) thereof makes it mandatory for the State Cadres or Joint Cadre Authority to seek the prior concurrence of the Central Government regarding the number of available vacancies for appointment of a member of the service in the Selection Grade of IAS and above.
2. It is provided under paragraph 24 of the Guidelines regarding promotion to various grades in the Indian Administrative Service dated 28.3.2000 that whenever promotions are vacancy based, while computing the available vacancies for filling up the same by promoting officers placed in the panel, care should be taken to ensure that the total ex-cadre posts created in various grades for the purpose do not exceed in sum the permissible quota of State Deputation Reserves indicated in the respective Cadre Schedules. Further, as per these guidelines, promotions to the Selection Grade and above in the IAS are vacancy based.
3. It is also provided under paragraph 3 of the above mentioned guidelines that vacancies to be taken into account should be clear vacancies arising in a grade due to death, retirement, resignation, promotions and deputation. As regards vacancies arising due to deputation, only those cases of deputation for periods exceeding one year should be taken into account, taking due note of the number of deputationists likely to return to the cadre. Purely short term vacancies arising as a result of the officers proceeding on leave, training or on deputation for a short-term period or as a result of overutilisation of the sanctioned State Deputation Reserve not approved by the Central Government, should not be taken into account for the purpose of preparation of a panel.
4. Therefore, before sending any proposal to this department for concurrence to the availability of the number of vacancies in the Selection Grade and above as per the provisions of rule 3(2) (ii) & (iii) of the IAS (Pay) Rules 2007, all necessary details regarding the authorized strength of the posts in the particular grade and the officers in position (with anticipated vacancies on the date of eligibility of a particular batch for promotion to particular grade) in the grade to which promotions are proposed to be made may be sent to this department at least 3 months before the promotions are proposed. Besides, the position regarding the number of ex-cadre posts created in each grade from Time Scale to Chief Secretary Grade may also be indicated along with the permissible quota of State Deputation reserve. The provisions of paragraph 3 of the guidelines regarding promotion should also be kept in mind while taking into account the vacancies arising due to deputation. (emphasis added) The circular dated 25.03.2008, after quoting the above mentioned rules and the letter dated 14.05.2007 stated that:
2. It is clarified that the insertion of a new clause in the Pay Rules for obtaining the concurrence of vacancies from the Central Government does not absolve the State Cadre/Joint Cadre Authorities from ascertaining and verifying the existence of vacancies in the cadre as per the Pay Rules, Promotion Guidelines and the instructions of this Department prior to sending the proposal. The onus of the correctness of the details and the existence of vacancies lies with the concerned State/Joint Cadre Authorities and any concurrence obtained on the basis of incomplete or incorrect information would be ab-initio void and the promotion would be liable for cancellation. These conditions hold true even if the promotions are given in exercise of the powers given to the State/Joint Cadre Authorities under rule 3 (2)(ii) of the IAS (Pay) Rules.
3. This department has received complaints through the CVC that the instructions of the Central Government are not being strictly followed by some cadre authorities in the matters of promotions to posts of the level of the Selection Grade and above in the IAS. It is, therefore, requested that all the State/Joint Cadre Authorities may ensure strict adherence to the provisions contained in Rule 3 (2) (ii) & (iii) of IAS (Pay) Rules, 2007 after thorough verification of the vacancy position in different grades of the IAS in the cadre. (emphasis added) The circular dated 19.06.2008 further stipulated that:
2. In order to enforce the provisions of Rule 3(2) (ii) and (iii) of the IAS (Pay) Rules, 2007 regarding the requirement of prior concurrence of the Central Government to the availability of vacancies at the level of Selection Grade and above effectively, it is requested that all the State/Joint Cadre Authorities may clearly indicate in the last para of the appointment order the details of the communication from this Department conveying concurrence of the Central Government to the availability of vacancies at the level of the Selection Grade and above against which such appointments have been made. In case it has been treated as deemed concurrence by the State Government under Rule 3 (2) (iii), the reference no. and date of receipt in this Department of the proposal from the State Government for concurrence of vacancies and reminder, if any, should be reflected in the appointment/promotion order. It is clarified that if a query has been asked by this Department or further information has been sought, the date of receipt in this Department of the final and complete information sent by the State Government should be mentioned in the order. (emphasis added) It was stated that it had been noticed from experience that the State Governments were often making promotions in their respective cadres in excess of the number of available vacancies in various grades. It is in view of this that the aforesaid provision of seeking prior concurrence of the Government of India was introduced for better cadre management. It has also been mentioned in the said letter that it would be mandatory upon the State Cadre to seek prior concurrence of the Central Government. The letter dated 14.05.2007, inter alia, mentioned that such proposals should be sent at least three months in advance with all the details of the posts. By letter dated 19.06.2008, it was requested that the State Cadre Authorities should clearly indicate in the last paragraph of the order of appointment the details of communication from the DOP&T conveying concurrence of the Central Government to the availability of vacancies at the level of Selection Grade or above against which appointments have been made. The learned senior counsel would contend that it was absolutely clear from the reading of Rule 3 (2) (ii) and (iii) and subsequent instructions that the concurrence for the availability of vacancies has mandatorily to be obtained prior to the selection and not after the selection. There was no provision for ex post facto approval for determination of vacancies in Rule 3 (2) of the IAS (Pay) Rules, 2007 or in any other rule. The provision that the details of the communication from the Central Government should be mentioned in the order of promotion has been introduced only to ensure that prior concurrence was taken. The learned counsel would contend that it was trite that a thing had to be done in the manner in which it was prescribed to be done under the statutory rules and it could not be done in any other manner. It was argued that any executive instructions contrary to the above stand in this regard would become infructuous in view of the amendment in the IAS (Pay) Rules in the year 2007 and introduction of the aforesaid Rule 3 (2) (ii) and (iii). The note dated 13.10.2010 of the Desk Officer of the DOP&T, proposing to give ex post facto approval regarding three vacancies in the apex scale, placed on record by the Applicant, has been extracted below:
PUC is a letter from Chief Secretary, Uttarakhand regarding State Govt.s proposal for concurrence of the Central Government to the availability of one vacancy in the Apex Scale in terms of rule 3 (2) (ii) & (iii) of IAS Pay Rules, 2007, subsequent to the promotion.
2. The Chief Secretary has drawn reference to this Departments letter dated 19.9.2008 whereby concurrence to the availability of 2 vacancies in the Apex Scale was conveyed and stated that the meeting of the Screening Committee for filling up these two vacancies was held on 19th February, 2010 and in the same meeting, the Committee also made recommendations for filling up another vacancy i.e. 3rd vacancy on account of retirement of Shri Indu Kumar Pande on 12th December, 2009 for which concurrence of the Central Government was obtained. On the basis of the recommendations of the Screening Committee, the State Government has ordered the promotion of three IAS officers on 31/5/2010. At the same time the State Government had requested this Department to convey concurrence to the availability of 3rd vacancy. The incumbency position provided by State Government vide letter dated 31.5.2010 is as follows:
Grade No. of Cadre posts Utilization of cadre posts No. of Officers occupying Ex cadre posts under SDR Officers on inter-cadre deputation Available vacancies Vacancies for which confirmation is sought Chief Secretary Grade 2 1 - - 3 3 ASTS 13 13 - - - -
STS 19 15 - - - -
Selection Grade/ Sr. Scale/ JAG 34 34 9 - - -
Total 68 63 9 - - 3
3. Rule Position. As per rule 3(2)(ii) of IAS (Pay) Rules, 2007 Appointment of a member of the Service in the scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be mandatory upon the State Cadres or the Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Central Government on the number of available vacancies in each grade. Further, under Rule 3(2)(iii) of IAS (Pay) Rules, The Central Government shall accord such concurrence within a period of thirty days form the date of receipt of such references and if the Central Government does not accord concurrence within a period of said thirty days, the concurrence on availability of vacancies shall be deemed to have been accorded. The position emanating as referred to this clause shall be placed before the Screening Committee at the time it meets to consider promotion in these grades.
4. It may be stated that the said letter of the State Government for concurrence of one vacancy in the Apex Scale as on 31/5/2010 doesnt appear to have been received in the Section. However, on the basis of incumbency position given by the State Government, it is observed that the 3 vacancies in the Apex Scale as on 31/5/2010 have actually been there. The no. of ex-cadre posts under SDR quota are also within permissible limit of 13 posts.
5. If approved, we convey the concurrence to the availability of 3rd vacancy in the Apex Scale of IAS in Uttarakhand cadre. It has been pointed out that the number of cadre posts has been inflated by the State Government to 68 and the State Deputation Reserve has been reduced to 9, by taking into account 18 posts created temporarily under Rule 4 (2) of the IAS (Cadre) Rules, 1954. The learned senior counsel would contend that, as argued earlier, these posts could not have been included in the cadre posts and as a result the information given by the State Cadre to the Central Government was wrong. It was pointed out that in the circular of 17.06.2008 it had been clearly stated that the State Cadre would be responsible for any wrong information supplied by it to the Central Government. Apart from that, it was submitted that in the light of the above arguments it was most inappropriate for the Central Government to have given ex post facto approval in the teeth of Rule 3 (2) (ii) and (iii) of the IAS (Pay) Rules, 2007.
21. It was further contended that on 03.09.2008 there was only one cadre post vacant in Uttarakhand Cadre. The proposal of the State Government was for creation of two ex-cadre posts under Rule 9 (7) of the IAS (Pay) Rules, 2007. The proposal was not acceptable because on that date the State Deputation Reserve was already 17 against the prescribed number of 13. The table annexed with the letter dated 03.09.2008, already quoted above, itself showed the State Deputation Reserve to be 17 against the sanctioned SDR of 13. It has further been argued that the aforesaid letter was sent by the State Cadre in undue haste, as would be clear from the copies of the note sheets placed on record, inasmuch as the proposal was cleared at five levels on the same day, that is, on 03.09.2008 itself. The Central Government also did not pay any attention to the glaring error that the proposal was for creation of ex-cadre posts, when the State Deputation Reserve was exceeded.
22. The role of the Screening Committee in recommending four persons for promotion, while the approval by the Central Government was only for two vacancies has also been questioned. It was contended that the recommendations of the Screening Committee were also against the intent of Rule 3 (2) (ii) and (iii) ibid. Reliance has been placed on Ashok Kumar Das V. University of Burdwan, (2010) 3 SCC 616. In the cited case the resolution of the Executive Council of the University framing guidelines for selection of non-teaching staff of the University was called into question as not being in accordance with the Government order dated 17.10.1985. The High Court directed that the said guidelines be sent to the Government for its concurrence. The concurrence of the government was received on 10.10.2002. The resolution of the Executive Council dated 26.06.1995 was approved. The contention raised before the Honourable Supreme Court was that the guidelines approved by the resolution dated 26.06.1995 would be effective on or from 10.10.2002, the date of approval by the State Government, and would not be applicable from the earlier date of the resolution by the Executive Council. The Honourable Supreme Court held thus:
15. The words used in Section 21 (xiii) are not "with the permission of the State Government" nor "with the prior approval of the State Government", but "with the approval of the State Government". If the words used were "with the permission of the State Government", then without the permission of the State Government the Executive Council of the University could not determine the terms and conditions of service of non-teaching staff. Similarly, if the words used were "with the prior approval of the State Government", the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of the State Government. But since the words used are "with the approval of the State Government", the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise. By implication it would imply that in the instant case the vacancies could have been filled up only on prior concurrence, because of the provision in the rules to that effect. The ex post facto approval sought by the State Government and given by the Central Government is illegal, contended the learned senior counsel.
23. It was also argued that although the Applicant was more meritorious than Respondent, Shri Subhash Kumar, and also senior to him in the gradation list of 1977, yet he was placed in a position subordinate to him as Director General, Uttarakhand Administrative Academy. It was argued that the Chief Secretary was the President of the Governing Body of the said Academy, whereas the Director General was only the Member Secretary. Further, the Centre for Good Governance of the said academy was also headed by the Chief Secretary as President and the Director General was only ex officio Chief Executive Officer and Member, Board of Governors. It was also argued that it was because of this reason that the post of the Director General of the Academy was not filled up since its inception in 2004 by an officer of the apex grade and the Commissioner, Kumaon Division had been holding the charge of the post. The State Government demonstrated by its own action in not filling up the post that it was inferior to the post of the Chief Secretary. It was urged that the post being inferior in the status to the post of Chief Secretary, the senior person should have been posted as the Chief Secretary and the one junior should have been posted as the Director General, whereas the State Government acted in reverse. We shall not go into this question as the issue before us is regarding promotion to the apex grade and both the posts, the post of Chief Secretary and the post of Director General, are in the apex grade.
24. The learned senior counsel would finally contend that in the light of submissions made by him it was amply clear that the selection/promotion to the posts in the apex grade was vitiated by illegality and, therefore, the consideration for promotion for the said posts cannot be said to be fair and just.
25. The learned senior counsel for the Respondents, State of Uttarakhand and the Principal Secretary, Personnel of the Government of Uttarakhand would contend at the outset that the Applicant had fiercely resisted his allocation to Uttarakhand Cadre before the Tribunal and did not join the cadre for nine years. He had given the reasons for not joining the cadre as his unfamiliarity with the State of Uttarakhand, state of his health because of which it would be difficult for him to work in the new State and the health of his parents. He was, therefore, in any case not suitable for the post of Chief Secretary. It was further contended that the Applicant could not have any grievance as he had been appointed to the grade of Chief Secretary. The post of Director-General of the Administrative Academy was in the same grade as the post of Chief Secretary. He had only the right for consideration to the apex grade, but he did not have any right to the specific post of Chief Secretary. It was submitted that the only eligibility criterion was 30 years of service in the preceding grade. The inter-se seniority in the batch would be of no consequence in giving him preference for the post of Chief Secretary.
26. The learned senior counsel would further contend that the State Deputation Reserve was not relevant at the stage of sending the proposal to the Government of India for concurrence of vacancies because of the fact that the SDR was dynamic in nature and kept on fluctuating due to retirement, transfer, deputation et cetera. It was also urged that the State Deputation Reserve and Central Deputation Reserve had to be taken into consideration jointly. The learned senior counsel bases his arguments regarding consideration of SDR and CDR jointly on the Office Memorandum number 11033/2002-AIS-11 dated 27.01.2005, which has been quoted in the counter affidavit and which reads thus:
(iv) The State Governments may also have the flexibility to create ex-cadre posts subject to the following:-
The number of ex-cadre posts at the Rs. 26,000 (fixed) Grade will not exceed the number of cadre posts.
2) The total number of persons on ex-cadre posts and Central Deputation shall not exceed the CDR+SDR for the State. It was contended that at no time the number of ex-cadre posts exceeded SDR and CDR combined. It has further been pointed out that on 03.09.2008 two officers were working in the grade of Chief Secretary, namely, Shri Indu Kumar Pandey on the cadre post of Chief Secretary and Shri N S Napalchyal was posted on the ex-cadre post of Additional Chief Secretary. One cadre post of Director-General, Uttarakhand Administrative Academy and one ex-cadre post were vacant. After concurrence of the Government of India for two vacancies on 19.09.2008, Shri Indu Kumar Pandey, Chief Secretary sought voluntary retirement from IAS, which was sanctioned on 02.12.2009. Shri N S Napalchyal was then posted as Chief Secretary on the same date. The learned senior counsel would endeavour to explain that before the meeting of the Screening Committee one more ex-cadre post had fallen vacant and, therefore, there was nothing illegal in the Screening Committee taking cognizance of three vacancies being available, one cadre post and two ex-cadre posts. According to the guidelines for promotion of the year 2000, already adverted to above, the officers who had completed 30 years of service were eligible to be in the zone of consideration. The said guidelines also provided for taking into account anticipated vacancies. One vacancy was to occur on 30.04.2010 on the retirement of Shri N S Napalchyal. In the light of the provision of paragraph 3 of the guidelines (ibid), after due consideration of officers on the basis of "Merit with due regard to seniority", the Screening Committee furnished its recommendations for promotion to four posts. It was further argued that the cadre review for Uttarakhand Cadre became due in the year 2009 and a proposal to that effect was sent to the Government of India by letter dated 25.09.2009. Pending cadre review the State Government created 18 additional posts for two years exercising the powers under second proviso to Rule 4 (2) of the IAS (Cadre) Rules, 1954. Later, one post was withdrawn and only 17 posts remained, which were so created. It was urged that the State Government was fully justified in creating these posts, as the developmental activities of the State Government had grown manifold after the last cadre review in the year 2004 and there was pressing need for officers to carry out these programmes. As a consequence of this action of the State Government of adding 17 posts to the cadre strength, the State Deputation Reserve was utilised only to the extent of 9 and it remained the same on the date of promotion to the grade of Chief Secretary, that is, on 31.05.2010. It was submitted that as per paragraph 5.2 of the clarification issued by the DOP&T by letter number 11033/1/98-AIS (II) dated 23.04.1998, the posts which were created under second proviso to Rule 4 (2) ibid were to be counted as temporary addition to the cadre posts and they would not be counted against State Deputation Reserve. The paragraph 5.2 has been extracted below:
5.2 Under second proviso to sub-rule 2 of Rule 4 of the Cadre Rules, the State Government is competent to add for a period not exceeding one year and, with the approval of the Central Government, for a further period not exceeding two years, to a State or Joint Cadre one or more posts, carrying duties or responsibilities of a like nature to cadre posts. Doubts have been raised whether such posts are to be considered as cadre posts or as ex-cadre posts against the State Deputation Reserve. It is hereby clarified that the posts which are created in exercise of the powers of the State Governments under the second proviso under sub-rule 2 of rule 4 of the Cadre Rules are to be counted as temporary cadre posts added temporarily to the Cadre Schedule and as such, they are not to be counted against the State Deputation Reserve. However, only such posts which are created for increasing the number of posts with a particular designation already included in the Cadre Schedule would be counted in this category. (emphasis added) It was further submitted that the cadre strength of Uttarakhand Cadre was revised in July 2010 and the total authorised strength of the cadre increased from 94 to 120. The revised number of cadre posts increased from 51 to 66. Out of these 15 cadre posts, which were increased in the cadre review, 12 posts were being operated under the State Deputation Reserve and later on temporarily added under Rule 4 (2) of the IAS (Cadre) Rules, 1954, were incorporated in the cadre strength of Uttarakhand Cadre. The nub of the argument is that at the time of making promotions the State Deputation Reserve was 9, well within the prescribed limit of 13. Therefore, the Respondent, State of Uttarakhand, was well within its rights to promote three persons from the panel prepared by the Screening Committee to the apex grade of Chief Secretary. He would contend that there was no clear infraction of rules. The application of the rules in the manner these were applied was not for the benefit of any one person. The Applicant would not have any locus to protest. The Government of India reaffirmed the concurrence given earlier on 19.09.2008. It was reiterated that the third vacancy was so obvious that there was no need to write to the Government of India for concurrence. The later approval given by the Government of India was, for all practical purposes, and amounted to deemed approval under Rule 3 (2) (ii) and (iii) of the IAS (Pay) Rules, 2007. The learned counsel would contend that in the light of the facts and circumstances explained above, there was no scope for review in the year 2011. It would be a futile exercise, contended the learned senior counsel. It was further contended that there was no mala fide in the exercise of power under Rule 4 (2) of IAS (Cadre) Rules, 1954. The learned counsel would further contend that the Applicant had already been promoted to the grade of Chief Secretary. His contention that he would have had better chances of promotion to the post of Chief Secretary if there had been only two persons contending for that instead of four persons, such contention is not tenable because chances of promotion is not a right. Reliance has been placed on The State of Mysore V. G N Purohit and others, (1967) SLR 753; Ramchandra Shankar Deodhar and others V. The State of Maharastra and others, (1974) 1 SCC 317; Mohmmad Shujat Ali and others V. Union of India and others, (1975) 3 SCC 76; and Bakshish Singh V. Union of India and others, 1985 (Supp.) SCC 116. In G N Purohit (supra) the Honourable Supreme Court held that:
10. It is then urged on behalf of the respondents that by changing the system from district-wise to state-wise the respondents have been very hard hit and have become very junior. It appears from the figures supplied by the respondents that there were 665 Junior Health Inspectors in the old State of Mysore on November 1, 1956 while only 48 Junior Health Inspectors were allotted to the new State of Mysore after the Act. So long as the district-wise system continued these 48 persons would naturally have better chances of promotion in their districts but when the cadre was made state-wise, these 48 were likely to go down in the seniority as the list of 1963 actually shows. It is urged that this has affected their chances of promotion which were protected under the proviso to S. 115 (7) of the Act, which lays down that the conditions of service applicable immediately before the appointed day to the case of any person allotted to the new State shall not be varied to his disadvantage except with the previous approval of the Central Government. It is said on behalf of the respondents that as their chance of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. It is enough in this connection to refer to the State of Orissa v. Durga Charan Das, A.I.R. 1966 SC 1547. In Ramchandra Shankar Deodhar, the same principle was reiterated after citing the case of G N Purohit (supra). In Md. Shujat Ali (supra) it was held that the rule which confers a right to promotion or the right to be considered for promotion is a condition of service, but it should not be confused with mere chance of promotion. The same view has been reiterated in Bakhshish Singh (supra). Finally, the learned senior counsel would contend that the Applicant's reliance on E Royappa (supra) is misconceived. The judgement in the aforesaid case, it was contended, did not give any support to the submission of the Applicant. It was urged that the temporary addition to the cadre strength was entirely within the ambit of Rule 4 (2) of IAS (Cadre) Rules, 1954 and the action of the State Government was to meet the needs of the administration.
27. The learned senior counsel for the seventh Respondent, Shri N S Napalchyal, would contend that the Applicant had no right to challenge the creation of two ex-cadre posts by order dated 19.09.2008 because he participated in the selection and did not challenge the procedure before the meeting of the Screening Committee. Reliance has been placed on K A Nagamani V. Indian Airlines and others, (2009) 5 SCC 515. It was held thus in this case:
53. Yet another aspect of the matter: That the appellant admittedly had participated in the similar selection process for erstwhile Grades 15 and 16, Manager (Maintenance/Systems) and Senior Manager (Maintenance/Systems) respectively. The Corporation had given adequate opportunity to the appellant to compete with all other eligible candidates at the selection for consideration of the case of all eligible candidates to the post in question.
54. The Corporation did not violate the right to equality guaranteed under Articles 14 and 16 of the Constitution. The appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion. He would emphasise that the only criterion for eligibility was 30 years of service in the preceding grade. All those who were considered were eligible. There was no other criteria like the position in the merit list of the selection for the year 1977 or seniority in the gradation list. It was further contended that the Applicant resisted coming to the Uttarakhand Cadre inter alia, on the ground that he was physically unfit to work in the said cadre. He could have been rejected on that ground itself, contended the learned senior counsel. Once the Applicant has been promoted to the apex grade, he could not have any grievance left. It was urged that the present OA was like Public Interest Litigation inasmuch as the selection of someone else had been challenged, without having any grievance. The learned senior counsel would argue that it was well established that the Tribunal could not hear an application in the nature of PIL. He would also submit that if the selection were at all to be set aside, the selection of the Applicant would also be set aside. It was argued that there was no violation of Rule 9(7) of IAS (Pay) Rules because only two posts had been created in accordance with the provisions of the said Rule. In so far as the Rule 3(2)(ii) and (iii) of IAS(Pay) Rules, 2007 was concerned, concurrence of the Government of India had been sought on 3.09.2008 and approval had been given on 17.09.2008. In view of this there was full compliance of this Rule too. It was further argued that violation of paragraph 24 of Guidelines of 2000 had been claimed. The Guidelines were only directory in nature and no legal right for their enforcement had been created. Further, the Office Memorandum dated 27.01.2005, already adverted to above, would supersede these Guidelines of 2000. It was reiterated that State Deputation Reserve and Central Deputation Reserve had to be jointly seen and that the status of the State Deputation Reserve was relevant only at the time of promotion. It was further contended that it was entirely the prerogative of the State Government to appoint someone as Chief Secretary as it was a sensitive post. Reliance has been placed on Citizens for Justice and Peace V. State of Gujrat and others, (2009) 11 SCC 213, in which it was held that:
11. An appointment of a government servant is the prerogative of the particular Government, particularly, when it is a sensitive appointment of Director General of Police. We, under the doctrine of judicial review, would not extend our hands to upset such an appointment, more particularly, in the factual panorama which is available today. We hold that the present Writ Petition has become redundant and we dispose it of as such. As for any disciplinary action against Shri Pandey, it is for the Government concerned. We will not enter the fact finding exercise.
28. The learned senior counsel for the fifth Respondent, Shri Subhash Kumar, would contend that under Rule 9(7) of the IAS (Pay) Rules, 2007 two ex-cadre posts could be created without the permission of the Central Government because there were two cadre posts. He would emphasise the words at that level of pay used in the Rule to say that imbalance in State Deputation Reserve had to be seen for each scale of pay and creation of posts would be prohibited only where there was excess utilisation of SDR. The Rule 9(7) is reproduced below with the emphasis of the learned senior counsel:
9.(7) ..State Deputation Reserve, shall except with the prior approval of the Central Government, exceed the number of cadre posts at that level of pay in a State Cadre or, as the case may be, in a Joint cadre. It was further elucidated that Rule 3(2) (ii) also similarly mentioned in these grades and vacancies in each grade, which lends credence to the argument that imbalance in SDR has to be seen in respective grades and the grade in which there is no imbalance, there could be no restriction on creation of prescribed number of posts. He would contend that if the action taken was within the rules, violation of guidelines would not matter. He also reiterated that utilisation of SDR had to be seen at the time of promotion and that SDR and CDR had to be jointly counted. The learned senior counsel would contend that if the selection were to be made today, the situation would be entirely different in view of the fact that in the interregnum cadre review had taken place. Reconsideration, in these facts and circumstances, would be an exercise in futility. Advertence has been made to the letter number 20011/4/92-AIS-II dated 28.03.2000, which is on the subject of guidelines regarding promotion to various grades of the IAS, already adverted to above. Paragraph 3 of the above guidelines reads thus:
3. Scale of pay and appointment in these grades (1) The scale of pay admissible to a member of the Service and the dates with effect from which the said scale shall be deemed to have come into force, shall be as follows:-
Junior Scale - Rs.800-275-13500 (with effect from the 1st day of January, 1996.) Senior Scale - (i) Time Scale - Rs.10650-325-15850 (with effect from the 1st day of January, 1996.)
(ii) Junior Administrative Grade -
Rs.12750-375-16500 (non-functional) (with effect from the 1st day of January, 1996).
(iii) Selection Grade Rs.15100-400-18300/- (with effect from the 1st day of January, 1996).
Super Time Scale (a) Rs.18400-500-22400 (with effect from the 1st day of January, 1996) Above Super Time Scale (i) Rs.22400-525-24500/-
(ii) Rs,26000/- (fixed)
(iii) Rs.30000/- (fixed) (for the post of Cabinet Secretary in Government of India only).
(with effect from the 1st day of January, 1996) Note Appointment of a member of the Service to the Time Scale and above shall be regulated as per the provisions in the Guidelines regarding promotion to various grades in the Indian Administrative Service. The learned senior counsel would contend that the note above provided that the promotions to various grades would be as per the `guidelines for promotion, adverted to earlier, and that guidelines could be overlooked with the prior approval of the Central Government. It was argued that the Applicant should not have expected even to be promoted because he had stated again and again in the past that he was medically unfit to join the State of Uttarakhand. He would contend that the Applicant had been absolutely opportunistic in his approach inasmuch as he tried his best not to be allocated to Uttarakhand Cadre, but when he smelt an opportunity of becoming the Chief Secretary of that State, he staked his claim for the same. It was also pointed out that one Shri Mohan Singh Bora filed a writ of quo warranto before the High Court at Nainital, challenging the appointment of Shri Subhash Kumar as Chief Secretary, which was dismissed by the Honourable High Court by an order dated 24.12.2010. He would contend that the contents of the said Writ Petition have been lifted verbatim from the present OA. He would contend that this only showed the desperation of the Applicant, who was obviously in collusion with said Mohan Singh Bora.
29. We have given our utmost consideration to the arguments of the learned counsel for the parties and have gone through the record placed before us in the OAs.
30. The central point in the OAs, in our considered opinion, is the contention of the Applicant that the consideration for promotion to the apex grade of Chief Secretary has not been fair and just and, therefore, the whole selection is vitiated. Consideration for promotion has been held to be a fundamental right by the Honourable Supreme Court. This consideration has to be fair and just. Fairness in administrative action is a tenet of the principles of natural justice, as has been held in Maneka Gandhi Vs. Union of India and another, (1978) (1) SCC 248 by the Honourable Supreme Court. Therefore, the issue has not to be looked at from the viewpoint that the Applicant would have no grievance because he had been promoted to the apex grade and that he did not have any right to the post of Chief Secretary, appointment to which was the prerogative of the State Government. The issue, as placed before us by the Applicant, is that in a fair selection based on scrupulous observation of rules, he would have been the only person to be promoted, because there was only one vacancy in the grade of Chief Secretary on 3.09.2008. The State Government had created two ex-cadre posts in violation of the rules. Even if the consideration was for two vacancies, as approved by the Central Government, Shri Subhash Kumar, who was appointed Chief Secretary, would not have been selected and only the Applicant and Shri Sunil Kumar Muttoo, the fourth Respondent in OA number 2537/2010 would have made it to the apex grade. The scenario would have been quite different. The case of G.N. Purohit (supra) has no relevance in this case. The question is not that the chance of promotion would have increased. The Applicant has already been promoted to the grade of Chief Secretary. If only he was to be promoted to the apex grade, he would have a high chance of promotion to the post of Chief Secretary. It is not promotion to the apex grade, which is the issue. The issue is about the selection for the post of Chief Secretary. The Applicant could not have any grievance if after fair promotion to the apex grade, one of the selected persons was promoted to that grade in preference to him, because he would have no indefeasible right to be appointed Chief Secretary. The issue is, therefore, that he has been deprived of the right to be appointed Chief Secretary because promotions made to the apex grade were in violation of the rules.
31. We are also unable to agree to the contention of the Respondents that the status of State Deputation Reserve has to be taken into account only at the time of effecting the promotions. A plain reading of Rule 3 (2) (ii) will make it amply clear that the State Cadre has to seek prior concurrence of the Central Government on the number of available vacancies in each grade. The rule is absolutely unambiguous. The intent behind the Rule has been rammed home very clearly in the letter dated 28.03.2007 of the DOP&T, which has been quoted above. The letter states in clear terms that it shall be mandatory upon the State Cadre to seek prior concurrence of the Central Government on the number of available vacancies in each grade. It has further been made clear that the provision has become necessary to be introduced because the State Governments are often making promotions beyond the number of available vacancies in various grades. This letter, in essence, captures the illegality committed by the Respondents in not seeking prior concurrence for the third vacancy, only on the ground that it was an obvious vacancy. There is no such exemption in the aforesaid rule that if in the opinion of the State Government a vacancy was obvious, there was no need to seek prior concurrence. The reading of the Rule would also show that there is no provision for ex post facto approval. There is no merit in the contention raised on behalf of the Respondents that by order dated 16.10.2010 the Central Government gave its deemed approval for creation of posts under Rule 3 (2) (iii) of the IAS (Pay) Rules, 2007, because the deemed permission under the said rule is considered to be given if the proposal of the State Cadre is not concurred in by the Central Government within one month. It is not deemed permission, if granted ex-post facto. The Central Government has violated its own rules by giving ex post facto approval to the proposal of the State Government.
32. Since prior concurrence is necessary for available vacancies for promotion, it would stand to reason that consideration of State Deputation Reserve would be relevant only at the time when the approval for the available vacancies is given. Rule 8 (2) of the IAS (Cadre) Rules, 1954 is clear that a Cadre officer shall not hold an ex--cadre post in excess of the State Deputation Reserve. Rule 9 (7) of the IAS (Pay) Rules, 2007 stipulates that ex- cadre posts in the apex grade shall not exceed the number of cadre posts at that level. These two rules have to be read harmoniously. The interpretation that it would mean that the State Deputation Reserve has to be considered for each grade is misconceived. The Sub-clause "at that level of pay" is only to signify that it is referring to earlier sub-clause "other than cadre posts........................ which carry pay of Rs. 26,000....". Nothing more than this has to be read in this Rule. By no stretch of the imagination this rule can be interpreted to mean that the status of State Deputation Reserve has to be seen for each grade. Indubitably, it has to be seen for all the cadre posts together. It is entirely the choice of the State Cadre to create ex-cadre posts in any of the grades. But put together these cannot exceed the State Deputation Reserve. If it were so, the State Deputation Reserve would have been worked out for each of the posts. The only qualification is that in the apex scale only that number of ex-cadre posts can be created, which exist in the Senior Duty Posts, that is, cadre posts. It would be wrong to interpret it to mean that regardless of the utilization of SDR, as many ex-cadre posts can be created in the apex grade as there are cadre posts (two posts in the instant case). When it was clearly mentioned in the letter dated 03.09.2008 of the State Government that the utilisation of SDR was 17, beyond the prescribed 13, the Central Government was in error in approving the available vacancies as two. We are in agreement with the Applicant that on 03.09.2008 only one vacancy in the cadre post was available and that alone should have been considered for filling up. It would be a wrong statement to make that there has been no infraction of any rule. All the rules and regulations and instructions issued under them have to be read together. A combined reading of the rules would make it abundantly clear that the State Deputation Reserve has to be considered at the time of giving approval for the available vacancies and certainly not at the time of making promotions and that prior concurrence of the Central Government would be necessary before the meeting of the Screening Committee. The argument that the State Deputation Reserve and the Central Deputation Reserve have to be jointly considered is equally misconceived. None of Rules quoted above even mentions CDR. A careful reading of the Office Memorandum dated 27.01.2005, cited by the Respondents and quoted above in paragraph 27 of this order, does not support the contention that for creation of ex-cadre posts SDR and CDR have to be jointly considered. The OM adverted to above only stipulates that the number of persons on ex-cadre posts and on central deputation shall not exceed SDR+CDR. The meaning is crystal clear that the number of persons on ex-cadre posts would not exceed SDR and the number of persons on central deputation would not exceed CDR.
33. It was repeatedly argued that the State Government had rightly created additional 17 posts under the second proviso to rule 4 (2) of the IAS (Cadre) Rules, 1954 before obtaining the concurrence of the Central Government by letter dated 31.05.2010 and it had resulted in reduction of the utilisation of the State Deputation Reserve because there had been an addition to the cadre posts. The instructions in this regard in the Office Memorandum of 23.04.1998, quoted by the Respondents, do not support the contention that these posts would be counted as temporary addition to cadre strength and not counted against the State Deputation Reserve. Second proviso to Rule 4 (2) of the IAS (Cadre) Rules, 1954 is reproduced below for ease of reference:
Provided further that the State Government concerned may add for a period not exceeding two years and with the approval of the Central Government for a further period not exceeding three years to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts. (emphasis added) Paragraph 5.2 of the clarification issued by the DOP&T and quoted by the Respondents, reads thus:
5.2 Under second proviso to sub-rule 2 of Rule 4 of the Cadre Rules, the State Government is competent to add for a period not exceeding one year and, with the approval of the Central Government, for a further period not exceeding two years, to a State or Joint Cadre one or more posts, carrying duties or responsibilities of a like nature to cadre posts. Doubts have been raised whether such posts are to be considered as cadre posts or as ex-cadre posts against the State Deputation Reserve. It is hereby clarified that the posts which are created in exercise of the powers of the State Governments under the second proviso under sub-rule 2 of rule 4 of the Cadre Rules are to be counted as temporary cadre posts added temporarily to the Cadre Schedule and as such, they are not to be counted against the State Deputation Reserve. However, only such posts which are created for increasing the number of posts with a particular designation already included in the Cadre Schedule would be counted in this category. (emphasis added) The posts created by the State Government are such posts, which already exist in the cadre like Principal Secretary or Additional Chief Secretary. These posts, as would be clear from the highlighted portion of the clarification of 23.04.1998 would be counted in State Deputation Reserve. If posts created had been of the nature carrying duties and responsibilities of a like nature to cadre posts, such as, for example, Officer on Special Duty, these would be counted as temporary addition to cadre posts. In fact the second proviso to Rule 4 (2) ibid only sanctions creation of such posts, which are of a like nature to cadre posts and not the creation of posts already existing in the cadre. Therefore, temporary creation of the posts of Principal Secretary and Additional Secretary under second proviso to Rule 4 (2) ibid would not count in the cadre posts. Moreover, this stand is in the teeth of the ratio laid down by the Honourable Supreme Court in E Royappa, wherein it has been held in paragraph 18 that the second proviso to the Rule 4 (2) of the IAS (Cadre) Rules, 1954 does not confer any power on the State Government to alter the strength and composition of the cadre. It has been clearly held that the posts which are added under the second proviso do not increase the strength of the Cadre. In paragraph 81 ibid it has been held that only the Central Government can alter the strength of the cadre in its cadre review. The State Government cannot make any permanent addition to the cadre strength. Moreover, we have already held that the status of State Deputation Reserve has to be considered at the time of granting of approval for available vacancies and not at the time of promotion. The argument advanced was that at the time of promotion the utilisation of State Deputation Reserve was 9 because of the creation of 17 additional posts. The argument is neither correct nor material for consideration in the circumstances of this case.
34. We are of the considered opinion that the aspect of the Applicant resisting his allocation to the Uttarakhand Cadre is not germane to the issue. Once that chapter is closed by the Applicant joining the said cadre, he could aspire to the post of Chief Secretary unhampered by the reasons he had advanced for his inability to join that particular cadre. The dismissal of the PIL by the Honourable High Court of Nainital is also not relevant in the context of the controversy before us. It is also not quite right to argue that the Applicant had no right to protest after he participated in the selection. The Applicant had been protesting against the whole process much before the selection was made.
35. The argument that `guidelines for promotion can be overlooked for promotion with the prior concurrence of the Central Government is not maintainable because these guidelines have been issued only to draw attention to relevant rules, which are mandatory and cannot be overlooked with the prior concurrence of the Central Government because there is no such provision in the rules.
36. We also find it intriguing that after obtaining the approval for vacancies by way of prior concurrence by letter dated 03.09.2008, the Respondents should make promotions only in May 2010. In these circumstances, it should have been possible for the Respondents to go back to the Central Government and seek fresh prior concurrence, instead of resorting to all sorts of roundabout methods to justify their action.
37. We are also unable to agree to the contention that it would be an exercise in futility now to ask the State Government to reconsider the issue. Why should it be an exercise in futility, as argued by the learned senior counsel for the Respondents, is not clear. If promotions/selections have been made in total contravention of the prescribed rules, the whole process of promotions/selections has been vitiated and has to be set aside. If the promotion had been made in accordance with the rules, the scenario for the selection for the post of the Chief Secretary would have been different as discussed above. In such view of the matter the Application is not in the nature of Public Interest Litigation. The dismissal of a PIL by the Honourable Nainital High Court also has no relevance here.
38. On the basis of the above consideration, the impugned orders dated 19.09.2009 and 13.10.2010 and all the consequential promotions made by the state Government are quashed and set aside, including that of the Applicant. The State Government is directed to make fresh selections after following due procedure as per the law within two months from the receipt of a certified copy of this order as per the existing position of the existing posts and CDR et cetera. However, the present arrangement may continue in the interest of administration for two months till fresh selection is made. There will be no orders as to costs.
( L.K.Joshi ) (V.K.Bali ) Vice Chairman (A) Chairman dkm/sk