Central Administrative Tribunal - Hyderabad
Between vs R.S. Chopra ( 2002(6) Scc 381) Has Held ... on 18 March, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH : AT HYDERABAD OA 307/07 & MA 449/08 Date of Order : 18-03-2009 Between:-
Md. Shafiquzzaman S/o Zafirulzaman, Aged about 54 years, Managing Director, A.P. Warehousing Corporation, Nampally, Hyderabad (under orders of transfer As Principal Secretary to Government, Rain Shadow Areas Development Dept.) ...Applicant And
1. State of A.P., rep. by its Chief Secretary to Government, Secretariat, Hyderabad.
2. State of A.P., rep. by its Secretary to Government, General Administration (Special-A) Department, Secretariat, Hyderabad.
3. Union of India, rep. by its Secretary, Dept. of Personnel & Admnv. Reforms, Ministry of Home Affairs, New Delhi.
4. Sri M. Veerabhadraiah, IAS (1998 Batch), Managing Director, APCOB, Hyderabad, (under orders of transfer As Managing Director, AP Warehousing Corporation). ....Respondents Counsel for the Applicant :Sri Md. Shafiquzzaman (party-in-person) Counsel for the Respondents :Sri J. Sudheer, Senior Counsel rep. State of A.P. along with Sri DY Setti, for State of A.P. for RR 1 & 2 Sri G. Jayaprakash Babu, Sr. CGSC for R-3 CORAM:
THE HON'BLE JUSTICE MR P.LAKSHMANA REDDY :VICE-CHAIRMAN THE HON'BLE SRI R. SANTHANAM : MEMBER (ADMN.) (Order per Hon'ble Sri R. Santhanam, Member (A) )
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This OA has been filed impugning GO Rt. No. 1853 General Administration (Special A) Department dated 6.4.2007 issued by the Respondent No.1 insofar as it relates to the transfer of the applicant and the Respondent No.4. Also impugned is para-1 of Memo No. 358/Special A/2006-1 dated 20.4.2007 counting the post of Principal Secretary, Rain Shadow Development Department against one of the 10 cadre posts.
2. The facts of the case, as seen from the application, are as follows :-
The applicant is a 1977 batch officer of the Indian Administrative Service borne on AP Cadre. He was promoted to the grade of Secretary in the year 1993 and to the grade of Principal Secretary in the year 2002. It is the applicant's grievance that though he was promoted to these grades, he was never posted in a regular cadre post in either of these grades.
3. As per Sub-rule 1 of Rule-4 of Indian Administrative Service (Cadre) Rules, 1954, the strength and composition of each of the cadres shall be determined by regulations made by the Central Government in consultation with the State Government. The Union of India in consultation with the Government of AP, has fixed the strength of the Indian Administrative Service Cadre of AP as follows and notified in the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955:
"1. Senior posts under the State Government 170
2. Central Deputation Reserve (CDR) at the rate of 40% of 1 above 68
3. State Deputation Reserve (SDR) at the rate of 25% of item 1 above 42
4. Training Reserve at the rate of 3.5% of item 1 above 6
5. Posts to be filled by promotion and selection under rule 8 of the IAS (Recruitment) Rules, 1954 not exceeding 33.3% of 1, 2, 3 and 4 above 95
6. Leave Reserve and Junior Posts Reserve at the rate of 16.5% of item 1 above 28
7. Posts to b filled by direct recruitment (items 1+2+3+4+6-5) 219 Direct Recruitment Posts 219 Promotion Posts 95 Total Authorised Strength 314"
The Senior posts under the State Government are called the cadre posts and these include posts in various grades like Chief Secretary, Principal Secretary, Secretary etc.,. There are 3 cadre posts in the grade of Chief Secretary and 12 cadre posts in the grade of Principal Secretary. While the posts of Chief Electoral Officer and that of Commissioner of Commercial Taxes are shown separately under the Principal Secretary grade, the other 10 posts of Principal Secretary are clubbed together and shown in the list. The number of posts against the State Deputation Reserve is shown as 42. It is the applicant's case that these 42 posts constitute the ex-cadre posts because they are extra to the cadre and the State Government is permitted by the IAS (Cadre) Rules to create only 42 ex-cadre posts. The second proviso to Rule 4(2) of IAS (Cadre) Rules, 1954, authorises the State Government to "add for a period not exceeding 2 years and with the approval of the Central Government for a period not exceeding 3 years to a State or Joint cadre posts carrying duties and responsibilities of a like nature to cadre posts". The State Government, according to the applicant, is also required to declare how many of these ex-cadre posts should be in the Principal Secretary grade. It is his contention that the Respondent No.1, in gross violation of the IAS (Cadre) Rules and the law laid down by the Hon'ble Apex Court in a number of cases, has created a large number of ex-cadre posts in different grades. According to his information, the State Government created more than 75 ex-cadre posts against the permissible limit of 42. They have also promoted more than 55 officers as Principal Secretaries, which is almost five times the cadre strength of Principal Secretaries and beyond the total ex-cadre strength fixed for the State by the statutory rules. This has resulted in junior officers being promoted as Principal Secretaries when there are no vacancies (as happened recently when the officers of 1983 batch were promoted as Principal Secretaries) and posted in cadre posts while their seniors are shunted to either ex-cadre posts or posts which are neither cadre posts nor ex-cadre posts. This is an arbitrary and illegal exercise of power by the State Government violating Articles 14, 16 and 21 of the Constitution and also ultra vires the IAS (Cadre) Rules.
4. The applicant also contends that under the Cadre Rules, ex-cadre posts can be created to meet emergency requirement of such posts based on an objective assessment of the nature of duties and responsibilities of such ex-cadre posts. These Rules have been made to restrain the State Governments from exercising any arbitrary or discriminatory power and to prevent them from transferring and posting IAS Officers as per their whims and fancies. Creation of ex-cadre posts without any objective assessment or requirement is done only to humiliate senior officers apart from this being a drain on the public exchequer. The Hon'ble Supreme Court in the case of Union of India Vs. R.S. Chopra ( 2002(6) SCC 381) has held that creation of excess ex-cadre posts by the State Government than permitted by rules is contrary to law and such posts do not exist in the eye of law. Therefore the holder of such a post cannot claim pay scales of the post. The State Government's action in creating a number of ex-cadre posts in an artificial manner, without getting the approval of the Council of Ministers, to favour junior officers is arbitrary and illegal violating Articles 14, 16 and 21 of the Constitution of India. The applicant has further submitted that the State Government cannot create posts for more than one year (since amended to 2 years) and with the permission of Government of India for 2 more years (since amended to 3 more years) and the Central Government does not have the power to keep the ex-cadre posts alive for more than the stipulated period until and unless the Government of India in consultation of the State Government increases the cadre strength. Therefore the action of the State Government in continuing the excess ex-cadre posts beyond the statutory time prescribed under the rules is unconstitutional and illegal.
5. The applicant has submitted that the post of Managing Director, A.P. Warehousing Corporation (APWC) is not a cadre post of IAS and therefore the Government ought not to have posted the applicant as Managing Director in the first place. As soon as his posting order was issued, he made a representation to the 1st Respondent stating that the post of Managing Director, APWC is a junior level post which had mostly been filled up by junior level officers of the rank of Secretary or below and that IAS officers of 29 or 30 years seniority were never posted as Managing Director of the Corporation excepting in two cases including that of the applicant. He also pointed out that the order suffers from a number of legal infirmities :
(i) it is not a cadre post;
(ii) it is not equivalent to that of Principal Secretary; and
(iii) even if it is declared as ex-cadre post, it would only further increase the number of ex-cadre posts already created in flagrant violation of rules.
He has referred to the observations of the Hon'ble Supreme Court in E.P. Royappa Vs. State of Tamil Nadu reported in (1974) 4 Supreme Court Cases 3 and requested that he may be posted in a cadre post. Subsequently the Government, by the impugned order dated 6.4.2007, posted him as Principal Secretary to Government, Rain Shadow Area Development Department posting Respondent No.4 who belongs to 1988 batch as Managing Director of the State Warehousing Corporation. He has submitted that the Government by GO Rt No. 3094, GAD, dated 14.6.2004 created an ex-cadre post of Secretary to Government, Rain Shadow Areas Development Dept.,. and right from inception, this department has been headed by a Secretary level officer only or a Principal Secretary holding full additional charge. In a period of 3 years, this department had seen about 8 Secretaries. It never had any regular officer and no officer in the cadre of Principal Secretary was posted on a regular basis. Therefore posting of the applicant as Principal Secretary of that department was not warranted and it was done only to humiliate the applicant. At the time of issue of the impugned G.O. the post of Secretary to Government, Rain Shadow Areas Development Dept. was not declared as equivalent to the post of Principal Secretary. It was done later only to accommodate the applicant. Citing the observations of the Hon'ble Supreme Court in the case of P.K. Chinnaswamy Vs. Govt. of Tamil Nadu (AIR 1988 SC 78), the applicant has stated that it is unjust and improper to keep an officer in a far too junior post than his rank would warrant, hardly extracting any worthwhile work from him and paying him salary out of the consolidated fund of the State.
6. In the context of his posting as Managing Director, AP Warehousing Corporation and Principal Secretary, Rain Shadow Areas Development Dept., , the applicant has stated that the State Government cannot equate an ex-cadre post to one grade at one time and to another grade of IAS at another time. Rule-9 of Indian Administrative Service (Pay) Rules, lays down that no officer should be posted to a post not included in the Schedule-III of the Pay Rules. This is a mandatory direction to the State Government. Posting an officer to a non-cadre post by declaring equivalence is only an exception to the above general rule. The Hon'ble Supreme Court of India has examined the scope and purpose of sub-rule-1 of Rule-9 of the Indian Administrative Service (Pay) Rules in the case of E. P. Royappa Vs. State of Tamil Nadu (supra) and held that "if the State Government wants to appoint a Member of the Indian Administrative Service to a non-cadre post created by it, it cannot do so unless it makes declaration setting out which is the cadre post to which such non-cadre post is equivalent in status and responsibility. The making of such declaration is a sine qua non of the exercise of power under Sub-rule (1)". The determination of equivalence is a condition precedent before a member of the Indian Administrative Service can be appointed to a non-cadre post under Sub-rule (1). The applicant has invited attention to a decision given by Government of India in Ministry of Home Affairs letter No. 32/52/56-AIS(II) dated 10.7.1956, in which it is stated that the basic criteria for the determination of equivalence is "the nature and responsibilities of duties attached to the post and not the pay attached to the post". The applicant has contended that in the present case the responsibilities have remained static and the upgradation of the status of the post to that of Principal Secretary is in violation of the Rules. The Respondents, by issuing GO Rt. No. 1853 dated 6-4-2007, have violated Rule-9(1) of Indian Administrative Service (Pay) Rules, as well as the directions of the Hon'ble Supreme Court in EP Royappa's case. The applicant has further submitted that "declaration of equivalence after posting an officer is against the Indian Administrative Service (Cadre) Rules and Pay Rules and violative of the judgment of the Hon'ble Supreme Court as the status and responsibilities of a non-cadre post for the purpose of determination of equivalence cannot depend on who is going to occupy it. It is really the other way round. The equivalence in status and responsibility determined on an objective assessment of the nature and responsibilities of the functions and duties attached to the post should decide which officer should occupy it". The applicant has contended that no objective assessment had been made to determine the functions and responsibilities of the post of Secretary, Rain Shadow Areas Development Dept., to declare it equivalent to that of Principal Secretary. The Government cannot treat the requirement of Rule-9 of All India Service (Pay) Rules as mere formality to be dispensed with or manipulated at their sweet will. The applicant has assailed the action of the Respondents in treating the Secretary, Rain Shadow Areas Development Dept., as equivalent to the Principal Secretary to the Government and posting the applicant in that post as bad, illegal, arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India.
7. Since his representations to the State Govt., have not yielded any result, the applicant has approached this Tribunal seeking the following relief (as per amended application).
(a) call for records pertaining to Memo No. 358/Special-A/2006-1 dated 20.4.2007 and set aside Para 1 of the said Memo as illegal arbitrary, contrary to IAS Cadre Rules R/w IAS Fixation of Cadre Strength Regulations and contrary to the Judgment rendered by the Hon'ble Supreme Court of India in E.P. Royappa V Tamil Nadu and others AIR 1974 SC 555 and Union of India V. R.S. Chopra 2002 (6) SCC 381 and consequently;
(b) declare that all the ex-cadre posts existing for more than two years without prior approval of Government of India are wholly illegal, without power or jurisdiction and contrary to IAS Cadre Rules;
(c) declare G.O. Rt. No. 1853 GAD dated 6-4-2007 in so far as it relates to applicant as illegal and violative of Articles 14, 16 and 21 of the Constitution and contrary to IAS Cadre Rules 1954 and set aside the same, and consequently;
(d) hold that creation of all excess ex-cadre posts beyond 42 posts are wholly illegal, without power or jurisdiction, arbitrary, contrary to IAS Cadre Rules 1954 and IAS (Fixation of Cadre Strength) Regulations 1955 and contrary to the law laid down in E.P. Royappa Vs. State of Tamil Nadu and others and consequently direct the official respondents to immediately notify all such 42 posts as per Rules, and consequently,
(e) direct the official respondents not to notify any ex-cadre posts unless and until prior equivalence of such posts is done under as per IAS Cadre Rule 4 r/w 8 and consequently;
(f) direct the official respondents not to equate any ex-cadre post to one grade of IAS at one time and to another grade of IAS the other time, and consequently;
(g) direct the official respondent No.3 to ensure that the law enunciated by Hon'ble Supreme Court in Union of India V. R.S. Chopra 2002 (6) Supreme 381 regarding non entitlement of salary to the officers holding the post in excess of prescribed limit, are strictly implemented, and consequently;
(h) direct the official respondents to post the applicant in the Cadre post of Principal Secretary to Government as per Rules with all consequential benefits and pass such other orders as are deemed fit and proper under the circumstances of the case.
8. Respondents 1 and 2 have filed a reply statement. They have stated that the strength of the IAS Cadre has to be reviewed once in 5 years by the Government of India and though proposals for review of the cadre strength were forwarded to Government of India in the year 2003, the review had not taken place since 1997, for nearly 12 years which necessitated the State Government to create a number of ex-cadre posts. They have maintained that the ex-cadre posts are in no way inferior to the cadre posts since they are being equated to the cadre posts with reference to the responsibilities and status. The State Government is forwarding copies of the orders creating ex-cadre posts and duly equating them to those of cadre posts, to Government of India for their information. The difference between cadre and ex-cadre posts is only with regard to the approval of M/o PPG & Pensions, DoP&T, New Delhi. In all other respects i.e duties, responsibilities, status and monetary benefits, ex-cadre posts are equal to cadre posts. They have added that the post of Principal Secretary, RSAD has been counted against the 10 cadre posts of Principal Secretary to Government as per orders issued vide memo No. 358/Special.A/AI/2007, dated 20.4.2007. This post had been created to take steps for increase in the rainfall in the State through scientific methods. Hence officers with intellectual capacity and capable of yielding results are being posted in that particular post. Referring to the applicant's contention that officers of 1983 batch have been promoted to the rank of Principal Secretary when there were no vacancies, the Respondents have stated that the policy of the State Government is to promote IAS Officers batch-wise without considering the vacancy position. The applicant was also a beneficiary of this policy a few years ago. He cannot now turn around and attribute malafide intentions to the Government. The Respondents have stated that the ex-cadre post of Secretary, RSAD was initially created for want of a cadre post and a Secretary level officer was posted. It is quite common in administration that whenever an officer in a higher level or lower level is posted against a particular post, the post will be created on the basis of the grade of the officer who is posted in that department but not keeping the grade of the particular post which is supposed to be created. It is also quite common that departments of Secretariat are generally headed by Principal Secretary or Secretary as per the availability. The Respondents have claimed that there is provision in the cadre rules for the State Government to create posts as per the administrative feasibility and the State Government has been intimating to the Government of India by marking copies to the Government.
9. In their additional reply affidavit filed in March, 2008, the Respondents have stated that the Government of India while fixing the cadre strength of State of Andhra Pradesh has allowed the State Government to have 10 posts in the scale of Rs.22400-24500 (pre-revised scale) viz., Principal Secretary to Government of Andhra Pradesh. It is up to the State Government to utilize the 10 posts as per the administrative requirements. Among the 10 posts, the post of Principal Secretary, RSAD has been included. As such the post against which the applicant is posted is a cadre post. Respondents have stated that the applicant has no locus standi to question the creation of ex-cadre posts since the post to which he was transferred viz., Principal Secretary, RSAD, is not an ex-cadre post and he is in no way subjected to any loss. The applicant cannot file O.A. which is in the nature of a public interest litigation. Respondents have also stated that the need to create more than the stipulated number of ex-cadre posts also arose because as against the Central Deputation Reserve of 68 only 32 officers are on Central Deputation. Since the remaining 36 officers are continuing in the State Cadre, creation of more ex-cadre posts had become inevitable to accommodate these officers. The Respondents have further stated that the Government of India, DoP&T vide their letter dated 25.1.2005 have conveyed certain guidelines, according to which the total number of persons on ex-cadre posts and Central Deputation shall not exceed the CDR + SDR for the State. According to this equation, number of persons on ex-cadre posts and Central Deputation ( 85+32=117) shall not exceed CDR + SDR (68+42=110). In view of this, State Government is only utilizing 7 ex-cadre posts in excess. The Respondents have reiterated that there are no fixed posts of Secretary to Government / Principal Secretary to Government in each department. As per the suitability of the Officers, State Government will issue orders posting officers to a particular post and the said post will be equated to that of a cadre or ex-cadre post as per the cadre strength of Andhra Pradesh. The Respondents have further stated that the applicant can have no grievance now since the order posting Sri M. Veerabhadraiah, Respondent No.4 as Managing Director of APWC, issued in impugned GO 1853 dated 6.4.2007 is deemed to have been canceled since orders have been issued posting the Respondent No. 4 as Special Commissioner, Commercial Taxes, vide G.O. 2967, G.A. (Spl. A) Dept., dated 29.5.2007. Therefore, the prayer of the applicant for quashing the impugned memo and order has no base and the OA should be dismissed in limini.
10. The learned senior Central Government Standing Counsel filed a copy of the instructions received from Respondent No.3 in which it is stated that the subject matter of the OA is the concern of State Government of Andhra Pradesh, that the department of Personnel & Training is only a proforma respondent in the case and do not intend to file a separate reply in the matter. It is further stated that the Government of India had also requested the State Government of Andhra Pradesh and the Accountant General (A&E), Andhra Pradesh for taking corrective action in regard to overutilization of State Deputation Reserve (SDR) quota by the State Government vide letter No. 11030/26/2007-AIS-II dated 10.9.2007.
11. The applicant filed a rejoinder in which he has reiterated the points made in the application. He has submitted that as per rules the State has got no power either to fix the strength of the cadre or alter the cadre. Likewise, it is not open to the State Government to declare or count any post against a cadre post and such a contention is anathema to the rules and regulations and deserves to be rejected outright. The applicant has further submitted that the post of Managing Director, APSWC, where he is presently working or the post of Secretary, RSAD, to which he was posted are both non-est in law because their creation was not in accordance with the IAS Cadre Rules. Both these posts were created in excess of the 42 permissible ex-cadre posts under the rules. Referring to the contention in the reply affidavit that there are 85 ex-cadre posts, the applicant has submitted that the Respondents have created another 50 posts variously styled as Vice-Chairman and Managing Director of a number of corporations. These posts are in excess of what is stated by the respondents in their reply affidavit. The creation of these posts has been suppressed by the Respondents. As regards the contention of the Respondents that the shortfall in Central Deputation Reserve is one of the reasons for creation of more number of ex-cadre posts, the applicant has contended that in several cases where the officers have opted for Central Deputation, the State Government has refused to spare their services. He has therefore submitted that the shortfall is taking place because of the State Government only. The applicant has further submitted that the CDR and SDR limits have to be independently maintained and one's shortfall cannot be made up from the other. Each one is governed by different rules which cannot be violated. Therefore, the clubbing of these two i.e. CDR and SDR, is contrary to law and it cannot be countenanced in terms of rules.
12. The case was heard extensively. The applicant forcefully argued his case in person. Sri G. Jayaprakash Babu, learned senior standing counsel for Central Government appeared for Respondent No.3 and Sri J. Sudheer, learned senior counsel appeared for Respondents 1 and 2 and presented his arguments with total conviction, assisted by the learned standing counsel for the Government of Andhra Pradesh. The 4th Respondent neither appeared in person nor was represented by his counsel. The volumes of material papers furnished by both the applicant and the respondents were gone through. The case laws cited by the applicant were also carefully considered.
13. Before we frame issues for consideration before us, it is relevant to examine whether this Tribunal can go into all the issues raised by the applicant. The learned Standing Counsel for the Respondents Sri J. Sudheer argued vehemently that the applicant was initially aggrieved by his transfer and posting as Principal Secretary, Rain Shadow Areas Development Department from the post of Managing Director, APSWC. He had impugned GO 1853 only. Though he was working as Managing Director, APSWS since January, 2007, he had not challenged this appointment before this Tribunal. This OA was filed only after he was posted as Principal Secretary, Rain Shadow Areas Development Department. This Tribunal passed interim orders of status quo on 24.4.2007 and accordingly the applicant is being continued as Managing Director, APSWC. The OA has now become infructuous since Sri R.S. Goel has been posted as Principal Secretary, RSAD Department vide GO Rt. No. 5152 dated 2.9.2007 and the impugned GO Rt. No. 1853 is no longer in force as far as the applicant is concerned. The issue is therefore academic and this Tribunal is not a platform for academic discussion. The issues raised by the applicant are in the nature of a public interest litigation and the Tribunal cannot entertain public interest litigation in service matters.
14. The applicant on the other hand argued with equal vehemence that he had represented against his posting as Managing Director, APSWC, to the Chief Secretary, that he was transferred within 3 months of this posting as Principal Secretary, RSAD, that both these posts are junior posts and a person of his seniority and rank should not be humiliated by posting him to such junior posts, that both the posts are created in excess of the permissible limit of ex-cadre posts that can be created by the State and that there has been flagrant violation of Rules in creating posts and in posting senior officers who are found inconvenient by the respondents. The applicant further submitted that he is affected by the creation of a large number of ex-cadre posts and by his posting in one of the illegal posts and unless the illegal posts in excess of the permissible number are abolished, there is every possibility that he may be posted in another of these illegal posts which have been created without any objective assessment. He further maintained that his case is attracted by Rule-8(2) of the IAS (Cadre) Rules, which is unambiguous and states as follows :-
"A cadre Officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under item 5 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955."
15. We have given careful consideration to the arguments of the petitioner and the learned counsel for the Respondents. We are not convinced by the argument of the learned counsel for the Respondents that the matter has become infructuous once the posting of the applicant as Principal Secretary, RSAD, has been nullified by posting another officer there. We find that the applicant has raised a number of important issues that have a direct bearing on his service condition and we are of the considered view that this Tribunal has the jurisdiction and power to adjudicate on these issues under section 14 of the Administrative Tribunals Act.
16. The issues that arise for consideration in this case are as follows :-
(i) whether the State Government has got unbridled power to create cadre and ex-cadre posts in the IAS ;
(ii) whether the posts in Government owned Corporations can be classified as ex-cadre posts;
(iii) whether the post of Principal Secretary, Rain Shadow Areas Development can be considered as a cadre post or an ex-cadre post;
(iv) whether the State Government can equate any ex-cadre post to one grade at one time and to another grade of IAS at another time;
(v) whether the ex-cadre posts in excess of the State Deputation Reserve (SDR) can be termed illegal;
(vi) whether ex-cadre posts existing for more than 2 years without approval of Government of India can be termed illegal;
(vii) what is to be done in respect of ex-cadre posts in excess of the prescribed limit;
(viii) whether the impugned G.O. is legally sustainable; and
(ix) to what relief, if any, is the applicant entitled.
17. Issue No. (i) : Whether the State Government has got unbridled power to create cadre and ex-cadre posts in the IAS : The IAS (Cadre) Rules, 1954, have been formulated by the Central Government in consultation with the Governments of the State in exercise of the powers conferred by sub-section (1) of Section 3 of the All India Services Act, 1951. The Cadre Rules enable the Central Government to determine the strength and composition of the IAS cadre in each State by framing regulations and in exercise of such power, the Cadre Strength Regulations, 1955, have been framed by the Central Government. These regulations indicate not only the total authorised strength for each State but also the number of posts for different categories of posts within the cadre. The important Rules governing cadre management are found in Rule-4 and 8 of IAS (Cadre) Rules which are re-produced below for convenience :-
4. Strength of Cadres - (1) The strength and composition of each of the cadres constituted under Rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Government 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 such cadre in consultation with the State Government or the State Government 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 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 of Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts".
8. Cadre and ex-cadre posts to be filled by cadre officers - (1) Save as otherwise provided int he rules, every cadre post shall be filled by a 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 (at present item No. 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 number specified for the concerned State in Item 5 (at present item No.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 addition to the number specified in Item 5 ( at present item No.3) of the said Schedule".
18. The term cadre post means any of the posts specified under item (1) of each cadre in the Schedule to the IAS (Fixation of Cadre Strength) Regulations, 1955. The power to alter the strength and composition of the cadre posts vests in the Central Government only vide sub-rule 1 of Rule-4 of Cadre Rules. The Government of India vide decisions at para 1.2 under Rule-4 of the Cadre Rules have made it clear that "the Central Government reserve the right to take a final decision regarding inclusion of a post in the cadre". It has also been clarified that the posts included in the cadre acquire the character of permanency. It is seen from para 1.4 of Govt. of India instructions under Rule-4 of the IAS (Cadre) Rules that the posts which are required on long term basis which carry duties and responsibilities similar to senior cadre posts should be included in the cadre. At the time of triennial (now quinquennial review), a realistic estimate is required to be made of the new posts required during the next 4 to 6 years on the basis of experience of the previous rate of expansion of the Cadre and of the additional posts required for implementation of various programmes and policies and the cadre strength should be fixed after taking these needs into consideration.
19. The learned counsel for the Respondents argued that the second proviso to Rule-4.2 gives powers to the State Government to add for a period not exceeding 2 years and with the approval of the Central Government for a further period not exceeding 3 years one or more posts carrying duties of a like nature to cadre posts. In his opinion, the State Government has the power to temporarily to add to the number of "cadre" posts. We are not able to agree with this contention of the learned counsel. Government of India have clarified vide Sl. No. 3 of Government of India decisions under Rule-4, that temporary additions to or subtractions from a cadre are not to be taken into account for cadre calculations or for calculating the number of selection grade posts. It has also been clarified that posts cannot be added temporarily to the cadre unless such posts already exist in the cadre. The Hon'ble Supreme Court in E.P. Royappa's case (supra) has also upheld this view. To quote the observations of Their Lordships Chief Justice Ray and Justice Palekar :
"HELD
(i) Per Ray, C.J. and Palekar, J.
The 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 which could only be determined by regulations made by the Central Government in consultation with the State Government. The meaning of this proviso is that the State Government may add for a period mentioned there to the Cadre one or more posts carrying the duties and responsibilities of the like nature of a Cadre post. The posts so added do not become Cadre posts. These temporary posts do not increase the strength of the Cadre".
The Rule position as narrated above read with Govt., of India's decisions/instructions on the subject and the interpretation of Hon'ble Judges of the Supreme Court make it clear that only the Govt. of India have the power to create cadre posts.
20. As regards creation of ex-cadre posts, the learned counsel for the Respondents refuted the contention of the applicant that no post can be created without the approval of the Council of Ministers. He took us to the Second Schedule of the A.P. Government Business Rules and Secretariat Instructions which deals with cases to be brought before the Council. Entry No. 22 of the Second Schedule reads as follows :
"22. Non-Plan cases in respect of New Services or Schemes or otherwise where recurring expenditure is Rs.20,00,000 and above and non-recurring expenditure is Rs.1,00,00,000 and above :
Provided that this rule shall not apply to a plan scheme.
Provided further that where it is proposed to create any post or upgrade any post, whether the expenditure is under non-plan or plan, such cases shall invariably be placed before the Council of Ministers, for prior approval except in respect of upgradation or creation of ex-cadre posts in the matter of posting of All India Service Officers, due to administrative exigencies."
The learned counsel therefore maintained that creation of ex-cadre posts can be done by the State Government without the approval of the Council of Ministers.
21. Ex-cadre posts are posts which are outside the cadre. These are the posts which are referred to in the second proviso to Rule-4 (2) of the Cadre Rules. There seems to be some misunderstanding about the concept of ex-cadre posts. While the applicant maintains that all those posts which are not included in the cadre posts and which are held by IAS Officers are ex-cadre posts, the learned counsel for the Respondents maintained that the ex-cadre posts are those which are created in Government departments while the posts in public sector organizations are foreign service posts and are not considered as ex-cadre posts though they are included in the State Deputation Reserve. The applicant in support of his contention invited attention to Govt. of India Decisions under Rule-4 in which it is clearly stated that "the posts which are ex-cadre of IAS/IPS cadre are to be manned by cadre officers and counted against deputation reserve provided in the cadre (MHA lr. No. 40/5/66-AIS(III) dated 27.12.1966). He also invited attention to Govt. of India lr. No. 15/36/66 dated 20.4.1960 which reads as follows :-
"A question arose as to how and under what circumstances, the ex-cadre posts, under the State Government, or under a body, incorporated or not, which is wholly or substantially owned or controlled by the State Government, or the Government of India, should be declared equivalent to cadre post ............."
This according to the applicant would clearly establish the characteristics of the ex-cadre posts.
22. The Govt. of India have clarified the scope of second proviso to Rule-4 (2) of the IAS (Cadre) Rules, 1954, in paras 6.2 and 6.3 of MHA letter No. 14/53/65.AIS(III) dated 21.3.1966. The relevant portions from these two paragraphs are extracted below :-
"6.2. The provision regarding addition of extra cadre posts for short periods did not exist in the ICS/IP Cadre Rules, nor did it exist in the Indian Civil Administrative Cadre Rule, 1950 or the Indian Police Cadre Rules, 1950. Even the original draft of the present IAS/IPS Cadre Rules did not contain such proviso. It was only in the Chief Secretaries' Conference held in 1954 to consider the drafts of the various All India Services Rules & Regulations, that the question of making such a provision in the Cadre Rules, was raised by the Government of West Bengal. The discussion which took place in the Conference on this question indicates clearly the scope of this provision in the Cadre Rules. ......
6.3. It would appear from the above discussion that the provision was made to meet the sudden and immediate need for extra posts carrying duties and responsibilities analogous to cadre posts subject to the condition that such posts will be held by cadre officers only. In actual practice occasions for resorting to this provision will be rare and ordinarily the need for such extra cadre post is not for a period exceeding one year. If the need for such extra cadre posts is for a period exceeding one year generally the need is considered to be a permanent one unless the State Governments are certain that they will not need such post beyond a particular fixed period not exceeding three years in all. Therefore, steps should be taken for the inclusion of such post in the permanent cadre on the expiry of one year. The idea is that by including such posts in the permanent cadre, the State Government will be able to assess correctly their needs for recruitment on the basis of the competitive examination".
In para-8.2 under the same caption i.e. Government of India's Decisions under Rule-4, the legal position in respect of posts temporarily added to the IAS/IPS cadre has been clarified. It is stated that a post temporarily added to the cadre is not a cadre post as defined in the IAS/IPS (Cadre) Rules, 1965. It is also not a cadre post for the purpose of IAS/IPS (Fixation of Cadre Strength) Regulations, 1955. An extra post (carrying duties and responsibilities analogous to cadre) can be temporarily added to the cadre when a cadre officer is available to man such posts. In para-9.3 under the same caption, it is clarified that the posts which are ex-cadre of IAS/IPS cadre are to be manned by cadre officers and to be counted against deputation reserve provided in the cadre. In para-7 of the Govt., of India's Decisions under Rule-4, it has been stated unambiguously that the State Governments are not competent to exceed the number of posts specified against items 2 and 5 to 8 of the cadre strength (at present items 3, 4 and 6 as per DoP&T Notification No. 11033/05/2003-AIS II dated 24.08.2006) without the prior sanction of the Central Government under Rule-4.2 of the proviso thereto. The items at 3, 4 and 6 are (i) State Deputation Reserve @ 25% of senior posts of the State Government; (ii) leave reserve and junior reserve @ 16.5% of item (1) above; (iii) training Reserve @ 3.5% of the item 1 of the above. The only conclusion that one can draw from the foregoing discussion is that the State Governments are not competent to create ex-cadre posts beyond the limit stipulated in the schedule to IAS (Fixation of Cadre Strength), Regulations, 1955, without the prior sanction of the Central Government. The first issue is found accordingly.
23. Issue No. (ii) : Whether the posts in Governments owned Corporations can be classified as ex-cadre posts : This issue has been answered indirectly in Department of Personnel & Training letter No. 11031/18/88-AIS(II) dated 8.12.1988 referred to in para-3 under the caption : Govt., of India's instructions under Rule-4. It is stated therein that "the question whether the posts in Public Sector undertakings could be en-cadred in the All India Services has been examined further and the Govt., of India have been advised that such posts cannot be en-cadred in the cadre schedules of the All India Services as Cadre Posts". Since they are not cadre posts, they have to be considered as non-cadre posts or ex-cadre posts. The non-cadre posts are called ex-cadre posts when cadre officers are appointed to man these posts as seen from para-5.2 of Govt. of India's Decisions under Rule-4. The position has been further clarified in para-6.1 of Govt., of India's instructions under Rule-4. In their letter No. 11033/1/98-AIS(II) dated 13.6.2000 of Govt., of India, Ministry of Personnel, Public Grievances & Pensions, Dept. of Personnel & Training addressed to Chief Secretaries of all States /UTs on the composition of Central and State Deputation reserve, it has been clarified that :-
"(i) The State Deputation Reserve will comprise the following :
(a) 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.
(b) 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.
(c) All posts under a Municipal Corporation or Local Body under the control of the State Government."
It should be clear from the above that all posts to which IAS Officers are deputed will be ex-cadre posts and they should be included in the State Deputation Reserve. The learned counsel for the Respondents argued that the posts in Public Sector undertakings are not ex-cadre posts and that they come under the category of Foreign Service posts. He thus sought to justify their non-inclusion in the list of ex-cadre posts submitted by the State Government to the Govt. of India. Since the Govt., of India's instructions on the subject are very clear, we are not able to accept the contentions of the learned counsel for the Respondents. We therefore hold that the posts in Government owned Corporations when they are manned by All India Service Officers should be classified as ex-cadre posts since they become extra to the cadre. It follows that they will be non-cadre posts when not manned by All India Service Officers. The second issue is found accordingly.
24. Issue No. (iii) : Whether the post of Principal Secretary to RSAD shall be considered as cadre post or an ex-cadre post : Rain Shadow Area Development Department is a new department that was created in the year 2004 by GO Ms No. 133 dated 4.6.2004. The staffing pattern of the department indicated in the order shows that it would be headed either by a Principal Secretary or Secretary. In GO Ms 3094, General Administration (Spl. A) Dept. dated 14.6.2004 the Government created the ex-cadre post of Secretary to Govt., RSAD Department in the Super Time Scale of IAS. Under Rule-9 of IAS (Pay Rules) 1954, the ex-cadre post was declared equal in status and responsibilities to the cadre post of Secretary to Govt.,. From the material papers made available by the learned counsel for the Respondents it is seen that this post is shown as one of the 94 ex-cadre posts for which sanction was accorded for continuance in GO Rt. No. 1363 GAD (Special. A) Department dated 11.3.2005. It is seen from the annexure to this GO that 55 ex-cadre posts were already existing as on 10.3.2004 (excluding posts in Govt. owned Corporations which should also have been included) whereas the maximum number of ex-cadre posts that could be created by the State Government was only 42 as per the strength of the cadre fixed by the Government of India. Therefore, we are of the view that the ex-cadre post of Secretary, RSAD Dept.,. was not a validly created post since the State Govt., had already created more than the permissible limit of ex-cadre posts.. It is seen that this post was shown as one of the 85 ex-cadre posts shown in the Annexure to GO Rt No. 1347, Genl. Admn., (Spl.A) Dept., dated 10.3.2006 in which sanction was accorded for continuance of the ex-cadre post for the period upto 28.2.2007. Though the post of Secretary, RSAD Dept., was not a validly created ex-cadre post, atleast on paper its continuance was sanctioned upto 28.2.2007 by a Government Order. But in the list of ex-cadre posts annexed to GO Rt. No. 1603, Genl. Admn. (Spl.A) Dept., dated 21.3.2007 by which sanction was accorded by the Government for continuance of ex-cadre posts for a further period upto 28.2.2008, the post of Secretary, RSAD Dept., does not find a place. It is therefore to be presumed that the Government had decided to abolish this post because it is not shown as a cadre post either in Memo No. 129/Spl. A/A1/2007-1 dated 21.3.2007. Therefore, as on 21.3.2007, the post of Secretary, RSAD Dept., was neither a cadre post nor an ex-cadre post. The learned counsel for the Respondents argued that the post of Principal Secretary, RSAD Dept., had been counted against 10 cadre posts in above Super Time Scale of IAS vide memo No. 358/Spl. A/2006-1 dated 20.4.2007 consequent upon the transfer of the applicant as Principal Secretary, RSAD Dept.,. He contended that the Government had the power to create an ex-cadre post in the grade of Principal Secretary and to count this post against the 10 cadre posts of Principal Secretaries that are available in Sl. No. 1 of the strength of the IAS Cadre of Andhra Pradesh as fixed by Government of India. We are not able to accept this argument because as on 21.3.2007 there were already 10 posts of Principal Secretary to Government which had been identified department wise vide memo No. 129/Spl.A/A1/2007-1 dated 21.3.2007. Although the memo No. 358/Spl.A/2006-1 dated 20.4.2007 states that the Principal Secretary to Govt.,, RSAD Dept., shall be counted against 10 cadre posts in above Super Time Scale of IAS, it does not state which of the 10 posts was removed from the list that is given in Memo No. 129/Spl.A/A1/2007-1 dated 21.3.2007. It is also not clear what procedure was adopted to remove one of the Principal Secretaries' posts from the list. It has to be borne in mind that posts included in the cadre acquire the character of permanency. The State Government cannot count the 10 cadre posts of Principal Secretaries in different ways on different days to suit their whims and fancies. Therefore the post of Principal Secretary, RSAD was neither a cadre post nor an ex-cadre post when the applicant was transferred by the impugned G.O. The third issue is decided accordingly.
25. Issue No. (iv) : Whether State Governments can equate any ex-cadre post to one grade at one time and to another grade at another time : The applicant argued that both the posts of MD, APSWC and Secretary, RSAD Dept., were earlier held and equated with the level of Secretary to Govt., and they cannot be equated to the level of Principal Secretary subsequently. He contended that these orders are in direct violation of the directions of the Hon'ble Supreme Court in E.P. Royappa's case (supra). The Hon'ble Supreme Court had held therein that "the Government must apply its mind to the nature and functions attached to the non-cadre post and determine the equivalence. Their pay attached to the non-cadre post is not material. In para-84 of the judgment in this case the Hon'ble Supreme Court observed as follows :-
"It is clear, for reasons we have already discussed while dealing with the Order dated April 7, 1971, that in making these two Orders dated June 26, 1972 and June 27, 1972, the State Government proceeded on the wrong assumption that it can create a non-Cadre post in the rank or grade of any Cadre post it likes, regardless of the nature and responsibilities of the functions and duties attached to such non-Cadre post. The State Government first created the post of Officer on Special Duty in the rank of Member, Board of Revenue and on the very next day, because it was decided that the petitioner should be appointed to that post, converted it into one of the grade of Chief Secretary. This shows clearly that the State Government did not apply its mind and determine on an objective appraisal of the nature and responsibilities of the functions and duties attached to the post of Officer on Special Duty whether it was equivalent in status and responsibility to the post of Member, Board of Revenue or to the post of Chief Secretary. The nature and responsibilities of the functions and duties attached to the post of Officer on Special Duty could not change in a day and indeed it was not the case of the respondents that they changed at any time. If that be so, how could the post of Officer on Special Duty be declared to be equivalent in status and responsibility to the post of Member, Board of Revenue on one day and to the post of Chief Secretary, on the very next day. Either it was equivalent to the post of Member, Board of Revenue or equivalent to the post of Chief Secretary. But it could not be equivalent to one post at one time and to another post at another time, when the nature and responsibilities of the functions and duties attached to it remained the same".
The Hon'ble Supreme Court therefore held that "the nature and responsibilities of the functions and duties remaining the same, the equivalence which is a matter of objective assessment cannot vary from time to time".
26. In the case of Karl Reddy Vs. State of Punjab (supra), the Chandigarh Bench referring to the declaration of the State Government that the ex-cadre post of Principal Secretary, Programme Implementation was equivalent in status and responsibility to the cadre post of Principal Secretary, Financial Commissioner under Rule-9(1) of AIS (Pay) Rules, 1954, observed as follows :-
"We are definitely of the view that the said equivalence appears to be hollow inasmuch as it is only fulfillment of a technical or legal requirement but, in fact, the post does not have adequate work and responsibility and status commensurate with the post of Principal Secretary. Declaration of equivalence (of posts) under Rule 9 (1) of the 1954 pay rules requires serious application of mind, which should not merely be in name but in spirit and substance as well."
In the case of K.L. Manhas Vs. Union of India & Others, the Chandigarh Bench of this Tribunal observed that "declaration of equivalence of posts in sine qua non to the making of an order appointing a member of service to a post other than a post specified in Schedule III of the Pay Rules". The Bench noted that in the case of the applicant therein no declaration of equivalence had been made on the date the impugned order was passed or even served on the applicant.
27. The Govt., of India have also issued instructions vide MHA lr. No. 6/43/62 AIS(1) dated 2.9.1963 objecting to the practice of equating ex-cadre posts to one grade at one time and to another grade at another time. The first two paragraphs of this letter issued under Govt., of India's Decision under Rule-10 give a clear indication of Govt., of India's views on the subject:-
"1.1. Instances have come to the notice of the Government of India in which State Government kept in abeyance I.A.S. cadre posts under their control, under this rule and simultaneously created, in lieu, ex-cadre posts involving identical duties and responsibilities but carrying remuneration different from (generally above) that laid down for the corresponding cadre posts.
1.2. The Government of India are of the view that, as a general rule, action of this nature not only has the effect of altering the structure of the State I.A.S. cadre concerned, but also tends to defeat more than one object embodied in the All India Services Rules. The rules do not necessarily require the appointment of a cadre officer to an ex-cadre post of this type. The appointment of a non-cadre officer to what should really be a cadre post would be open to obvious objection; but so also would the appointment of a cadre officer to an ex-cadre post which, by the very nature of duties and responsibilities involved, should actually be a cadre post. The holding in abeyance of certain cadre posts, and their substitution by ex-cadre posts carrying different scales of rates or pay as well as status would thus result in an artificial exclusion of certain posts from the cadre. Such appointments generally mean a departure from the Pay Rules, and result in a distortion of the cadre structure. In certain circumstances, there may well be reason to consider, the upgrading of a cadre post from the senior time-scale to super time-scale on account of enhanced responsibilities. The proper course to adopt, in such cases, would, however, be for the State Government to justify the upgrading of the post in question and make appropriate proposals to the Central Government for a revision of the State Cadre Schedule. In considering such proposals, the need for maintaining a broad measure of all-India uniformity would, no doubt, have to be borne in mind."
28. The applicant took us to the copies of the note files on pages 67 to 73 of the material papers submitted by him to show that declaration of equivalence has been done in a routine manner with no application of mind, more to fulfill a technical formality after deciding on the posting of the officer. He added that the State Government invariably declared equivalence after selecting and posting an officer to a particular post. The learned counsel for the Respondents invited our attention to the definition of the term Secretary in the Andhra Pradesh Government Business Rules. Secretary, according to this definition means 'Secretary to the Government of the State and includes a Special Chief Secretary, a Principal Secretary, a Special Secretary and an ex-officio Special Chief Secretary / Principal Secretary / Secretary to the Government'. He added that a Department can be headed by a Special Chief Secretary, Principal Secretary or a Secretary and since the nature of duties and responsibilities are the same, there is nothing wrong in posting any of the officers of these grades to head the Department and to equate that ex-cadre post with the cadre post of Secretary or Principal Secretary. Though there may be some logic in this argument from a purely administrative point of view, this contention is not supported by either the cadre rules or Government of India's decisions on the subject. The Hon'ble Supreme Court's interpretation of the law is also very clear and unambiguous. Therefore, we are of the considered view that as per law the State Government cannot equate one ex-cadre post to a cadre post of one grade at one time and another grade at another time.
29. Issue Nos. (v) & (vi) : Whether the ex-cadre posts in excess of State Deputation Reserve can be termed illegal & Whether ex-cadre posts existing for more than 2 years without approval of Govt. of India can be termed illegal : The applicant also referred to the decision of the Hon'ble Supreme Court in Hawa Singh Dhankar's case in which it has been held that "creation of temporary ex-cadre posts and continuing them indefinitely for years by issuing fresh sanction every year by the state government without the approval of the Central Government is illegal". A reading of Rule-4.1 and 4.2 of the All India Service (Cadre) Rules make it clear that the State Government's powers with regard to creation of temporary ex-cadre posts is subject to certain limitations. In MHA lr. No. 40/5/66/AIS (III) dated 27.12.1966, the Government of India have stated clearly that there is restriction on the powers of the State Government for the creation of ex-cadre posts as the number of such posts is not to exceed the number shown against deputation reserve in the cadre. Sub-rule 2 & 3 of Rule-8 also support the contention of the applicant that the ex-cadre posts in excess of the State Deputation Reserve are illegal. Sub-rule-2 of Rule-8 states that a cadre officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under Item 5 (at present Item 3) of the schedule to the IAS (Fixation of Cadre Strength) Regulations, 1955. Sub-rule 3 of Rule-8 provides an exception to the sub-rule 2 and states that "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 (presently item-3 of the schedule) to IAS (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 an addition to the number specified in item 5 ( presently item-3 of the said schedule)". This sub-rule makes it clear that ex-cadre posts can exceed the number shown in the fixation of cadre strength Regulations against State Deputation Reserve to the extent prior approval of the Government of India is obtained. But this sub-rule has to be read along with the second proviso to Sub-rule 2, which states that no ex-cadre post can be continued beyond 5 years under any circumstances.
30. The applicant submitted that the contention of the State Government that ex-cadre posts beyond the permissible limit have been created because the last cadre review was taken up in 1997 and State Government is forced to create ex-cadre posts due to exigencies of administration is only an excuse to manipulate the cadre and to post liable officers wherever needed. He drew our attention to the fact that in March, 1998 i.e. within a few months of cadre review in 1997, Government operated about 115 ex-cadre posts (65 as per letter dated 6.7.2007 and approximately 50 posts of Vice-Chairman and MDs of various organizations) i.e. 73 more than the permissible limit. According to him, creation of such large number of posts is illegal and simply sending a copy of the illegal order to Government of India does not meet the legal requirement of prior approval as envisaged in the rules. He added that even with the approval of the Government of India, no ex-cadre post can survive beyond 5 years under the law and if the respondents wanted to continue it beyond 5 years, they should either request the Govt. of India to change the Rules or post non IAS Officers to those posts. We see a lot of force in the argument of the applicant. In the case of Guduru Kishan Rao & Others etc., vs. Sutirtha Bhattacharya & Others etc., reported in 1998 (2) SLR 233 , the Hon'ble Supreme Court, adjudicating on the issue whether the notification dated 15.12.1993 viz., the IAS (Fixation of Cadre Strength) Twelfth Amendment Regulation, 1993, which provides for an increase of 14 posts against item No. 3 for the period indicated therein in order to accommodate 14 State Civil Service Officers who had been excluded from the purview of consideration while preparing the select list for the year 1987, held as follows :-
"The Cadre Strength of the Indian Administrative Service for each of the State is fixed by the regulation which regulation is framed in exercise of power under sub-rule (1) of Rule 4 of the Cadre Rules. This being the position the notification increasing the number of posts in respect of item No. 3 of the Schedule relating to Andhra Pradesh as well as the increase of the total authorised strength of the cadre in Andhra Pradesh in nothing but an amendment to the Regulation in question, and therefore, notwithstanding the level of notification that the same has been issued under sub-section (1) of Section 3 of the Act read with sub-rule (2) of Rule 4 of the Cadre Rules and Rule 3 of the Residuary Rules, the same cannot have the status of an Act or the Rule as contended by Mr. Salve the learned counsel appearing for the appellants. On a plain grammatical meaning of the words used in the notification being given as well as the object for which the notification has been issued if borne in mind the only conclusion that can be arrived at is that the said notification is a regulation amending the Cadre Strength Regulation and called the 12th Amendment Regulation, 1993".
31. The learned counsel for the Respondents referred to the Govt. of India guidelines dated 25.1.2005 referred to in para-9 (supra) according to which the number of ex-cadre posts and the Central Deputation Reserve should not exceed SDR + CDR and argued that the State Govt., can have more ex-cadre posts than SDR would permit. In our opinion, this guideline is contrary to the law laid down in Gudur Kishan Rao's case (supra) and amounts to amending the Regulations and altering the strength and composition of the cadre in violation of sub-rule (1) of Rule-4 of IAS Cadre Rules. The law is well settled that administrative instructions cannot override a statutory rule. It has been held by the Hon'ble Supreme Court in Union of India & Another Vs. Charanjit S. Gill & Others (2000(5) SCC 742) that "the administrative instructions issued or the notes attached to the rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Government, however, has the power to fill up the gaps in supplementing the rules by issuing instructions if the rules are silent on the subject provided the instructions issued are not inconsistent with the rules already framed".
32. The rule position is thus very clear regarding the creation of ex-cadre posts. Simply stated, the State Government can normally create ex-cadre posts up to the permissible limit only as specified in the Regulations against the State Deputation Reserve. This number can be exceeded as per the second proviso to Rule-2 of the IAS (Cadre) Rules for 2 years without the permission of the Govt. of India and upto a maximum of 5 years with the prior approval of the Govt. of India. This provision should be used on rare occasions "to meet the sudden and immediate need for extra posts". The power to create ex-cadre posts under the second proviso to Rule-2 cannot be exercised arbitrarily and without any limit because as per sub-rule 2 of Rule-8, a cadre officer shall not hold an ex-cadre post in excess of the permissible limit and as per Rule-8(3), the State Govt., can appoint a Cadre Officer to hold an ex-Cadre post in excess of the number specified for the concerned State only with the prior approval of the Govt. of India. The (v) and (vi) issues are found accordingly.
33. Issue No. (vii) : what is to be done in respect of ex-cadre posts in excess of the prescribed limit : The learned counsel for the respondents submitted that the State Government has been keeping the Govt. of India informed of the number of ex-cadre posts that are being continued every year. He made available a copy of the letter dated 27.10.2007 from the Principal Secretary, GAD (Spl.A) Department to the Secretary to Govt., Dept. of Personnel & Training, Govt. of India, pointing out that as on 1.10.2007, the State Government was utilizing 85 ex-cadre posts out of which 33 ex-cadre posts are continued for more than 2 years. A copy of the list of posts existing as on 1.10.2007 was also enclosed along with the letter and the specific approval of the Govt. of India was sought for continuance of the ex-cadre posts over and above the fixed number in deviation of IAS (Cadre) Regulations and IAS (Pay) Rules. It was also informed that the State Government was forced to exceed the fixed number of posts since 10 years have elapsed after the last cadre review and several welfare schemes / development works have been launched for which IAS Officers were required to be posted. A similar letter has been sent on 17.10.2008 seeking concurrence for utilization of 82 ex-cadre posts beyond the permissible limit of SDR of 42 posts. It appears that no reply has been received from Govt. of India to these letters. From the material papers furnished by the learned counsel for the Respondents, we find that every year the State Govt., has been according sanction for the continuance of temporary ex-cadre posts and marking a copy to the Secretary, Dept., of Personnel & Training in the Ministry of Personnel, Public Grievances. Details of the Government Order in which sanction was given for continuance of ex-cadre posts, date of GO and the number of ex-cadre posts continued are given below :-
Sl. No. GO No. Dt. of GO No. of ex-cadre posts covered 1 1334 15/03/03 75 2 1172 10/03/04 83 3 1363 11/03/05 94 4 1347 10/03/06 85 5 1609 21/03/07 85 The number of ex-cadre posts shown in the above table does not include the posts of Vice-Chairmen and MDs of various public sector undertakings to which IAS Officers have been posted. According to the cadre rules and the Govt., of India instructions on the subject these posts should have been included in the State Deputation Reserve. The applicant contended that there are about 50 such posts and even if this number is taken as 40, it is obvious that the State Government has created and utilized about 110 to 125 ex-cadre posts every year which is far in excess of the permissible limit of 47 ex-cadre posts as per the latest cadre review and the IAS (Fixation of Cadre Strength) Thirteenth Amendment Regulations, 2008, notified by Govt. of India on 18.12.2008.
34. The applicant further contended that giving promotions without there being vacancies is not only bad in practice but also bad in law. It is an irregularity by itself which results into another irregularity of exceeding the limits of ex-cadre posts. It also results in keeping a number of cadre posts vacant which is violative of Rule-10 of the cadre rules which states that cadre posts cannot be kept vacant for more than six months without the specific approval of the Central Government.
35. We have given careful consideration to the reasoned arguments of the applicant and the spirited response of the learned counsel for the Respondent. It is not in dispute that the State Government has created a large number of ex-cadre posts, far more than the IAS Cadre Rules and Regulations would permit. It is also not in dispute that some of these ex-cadre posts have been in existence for more than 5 years. It is difficult to pinpoint when the rot set in. Suffice it to say that things would not have come to such a pass had the Govt., of India enforced the IAS (Cadre) Rules and the Regulations effectively. Why they did not do so is a mystery. It is unfortunate that Dept. of Personnel & Administrative Reforms, the 3rd Respondent herein, did not even bother to file a counter affidavit explaining their stand when a number of serious issues have been raised in the application. The inaction of the 3rd Respondent has emboldened the State Governments to create ex-cadre posts at will and violate the Rules, Regulations and Govt. of India's instructions with impunity year after year. It is clear from the various instructions issued by the Govt. of India that many State Governments have been resorting to the practice of keeping cadre posts in abeyance and creating ex-cadre posts in different grades to post officers of their choice thus altering the strength and composition of the cadre. If it is not possible for the Govt. of India to enforce the rules, the Rules should be suitably amended to give more powers to the State to create ex-cadre posts and to manage their cadres to suit their requirements. A reference has been made in para-10 (supra) to the letter F. No. 11030/26/2007-AIS (II) issued by the DoPT on 10.9.2007 to the 1st Respondent pointing out the violation of the provisions of Rule-9(7) of the IAS (Pay) Rules, 2007 and Rule-8(2) of the AIS (Cadre) Rules, 1954, requesting the 1st Respondent to take urgent steps to reduce excess ex-cadre posts to the permissible limits within the ambit of the Rules. It is quite possible that similar letters would have been sent to the Chief Secretaries of other States also because creation of ex-cadre posts is not peculiar to Andhra Pradesh only. We are also aware that the creation of ex-cadre posts over and above the permissible limit has been going on in Andhra Pradesh for a number of years. It is also possible that neither the political executive nor even the Chief Secretary to the Govt., has been adequately briefed about the implications of creating a large number of ex-cadre posts in contravention of cadre rules and regulations and in violation of Hon'ble Supreme Court's observations on the subject. Since these violations have been going on for a number of years, it may be difficult to correct the situation overnight. It should, however, be possible to make an objective assessment of the need for each and every ex-cadre post and to post suitable officers of appropriate rank against those posts within a period of four months. We understand from newspaper reports that the 1st Respondent has constituted a Committee under the Chairmanship of Shri S.P.K. Naidu with three other IAS Officers as Members to identify the Civil Service positions that can be earmarked as cadre posts and those that should be non-cadre posts.. This is a good beginning and we hope this would lead to the logical conclusion of pruning the number of ex-cadre posts and posting suitable officers within a period of four months.
36. Issue No. (viii) : Whether the impugned G.O. is legally sustainable :- GO No. 1853, General Administration (Special. A) dated 6.4.2007 has been challenged in this application in so far as it relates to the transfer of the applicant and the 4th Respondent. Applicant has taken the plea that the post of Principal Secretary to Govt., RSAD Dept., was neither a cadre post nor an ex-cadre post and it is not even declared as equivalent to Principal Secretary to Govt., prior to transferring and posting the applicant and therefore illegal and arbitrary and violative of Articles 14, 16 & 21 of the Constitution of India and ultra vires of Rule-9 of IAS (Pay) Rules, and against the principles laid down by the Hon'ble Supreme Court in E.P. Royappa's case and R.S. Chopra's case (supra) and K.L. Manhas Vs. Union of India (1993 (6) SLR 615). He has also challenged the action of the 1st Respondent in effecting promotions from the cadre of Secretary to Principal Secretary without having vacancies in the cadre of Principal Secretary either in the cadre or in ex-cadre as per rules and accommodating the newly promoted officers as Principal Secretaries and posting them against the available cadre posts and the ex-cadre posts created under the Rules. We have already discussed in Para-24 (supra) the issue whether the post of Principal Secretary to Govt., RSAD Dept., should be considered as a cadre post or an ex-cadre post and come to the conclusion that as on the date the impugned G.O. was issued, the post of Principal Secretary to Govt., RSAD Dept., was neither a cadre post nor an ex-cadre post. Since the State Govt., already exceeded the number of ex-cadre posts that can be created as per the Regulations and Govt., of India's prior approval had not been obtained for creation of additional ex-cadre posts for appointment of IAS Officers against those posts, the impugned G.O. violates the provisions of Sub-rule 2 and 3 of Rule-8 of the IAS Cadre Rules. Therefore, the impugned G.O. in so far as the applicant is concerned is illegal. Accordingly it is to be quashed and set aside in so far as the applicant is concerned. The Memo No. 358/Special. A/2006-I, dated 20.4.2007 is also illegal because the post of Principal Secretary RSAD Dept., was not in existence at the time of issue of the impugned G.O. and the post is not properly created and the declaration of equivalence is in violation of the Hon'ble Supreme Court's observations in E.P. Royappa's case. Therefore the impugned memo dated 20.4.2007 is also to be quashed and set aside.
37. Issue No. (ix) : To what relief is the applicant entitled : The applicant pleaded that he never held a cadre post either in the rank of Secretary or Principal Secretary and that he was always posted in an insignificant post not befitting his seniority and rank. The discussion in the foregoing paragraphs makes it clear that the applicant is occupying a post which is neither a cadre post nor a validly created ex-cadre post. Since it has been in existence for more than 5 years, it ceases to be an ex-cadre post as per the second proviso of Sub-rule (2) of Rule-4 of the cadre rules and it can be held only by a non-cadre officer. The applicant is therefore entitled to be posted to a cadre post or an ex-cadre post within the permissible limit of 47 ex-cadre posts identified or to be identified by the Government after making an objective assessment of their duties and responsibilities of such posts. We therefore consider that a direction to the Respondent No.1 to post the applicant in a suitable cadre or ex-cadre post will be quite in order.
38. In the result, the OA is allowed on the following lines :
(i) The impugned G.O.No.1853, General Administration (Spl.A) Dept., dated 6.4.2007 is quashed and set aside insofar as the applicant is concerned;
(ii) Para-1 of the Memo No. 358/Special.A/2006-I dated 20.4.2007 counting the post of Principal Secretary, RSAD Dept., as one of the 10 cadre posts of Principal Secretary is also quashed and set aside;
(iii) Respondent No.1 is directed to undertake an exercise to identify the cadre posts and ex-cadre posts in accordance with the provisions of IAS Cadre Rules, 1954, and the IAS (Fixation of Cadre Strength) Thirteenth Amendment Regulations, 2008. This exercise shall be completed within a period of one month from the date of receipt of a copy of this order. While undertaking this exercise, the following factors shall be kept in view :
(a) all ex-cadre posts that are in existence with or without the approval of the Govt., of India for more than 5 years shall be abolished ;
(b) all ex-cadre posts that are in existence for more than 2 years without the approval of the Govt. of India shall be abolished ;
(c) an objective assessment shall be made of the nature of duties and responsibilities of posts before they are made ex-cadre posts;
(d) declaration of equivalence in status and responsibility of ex-cadre post to cadre post shall be made before posting the officer in accordance with the directions of the Hon'ble Supreme Court in E.P. Royappa's case.
(e) the total number of posts in the State Deputation Reserve including ex-cadre posts shall not exceed 47 i.e. the number fixed at Sl. No.3 of the schedule to the IAS (Fixation of Cadre Strength) Thirteenth Amendment Regulations, 2008;
(f) creation of ex-cadre posts beyond the permissible limit shall be resorted to in accordance with the second proviso to Rule-4(2) only after making an objective assessment of the requirement, duties and responsibilities of these posts ;
(g) posting of cadre officers to these ex-cadre posts created beyond permissible limits shall be in accordance with Rule-8(3) of the IAS (Cadre) Rules ;
(iv) The process of transferring IAS Officers holding illegal ex-cadre posts to the cadre posts or the ex-cadre posts created within permissible limits and that of filling up vacant cadre posts shall be completed within 3 months after the above exercise is completed ;
(v) The 1st respondent is directed to transfer the applicant either to a cadre post or to one of the ex-cadre posts created within the permissible limit of 47 with due regard to his seniority and rank within the above stipulated time.
39. The MA 449/08 is also disposed of accordingly. There shall be no order as to costs.
(R. SANTHANAM) (P.LAKSHMANA REDDY) Member (Admn.) Vice-Chairman Issue No. (i) : There seems to be some misunderstanding about the concept of ex-cadre posts. While the applicant maintains that all those posts which are not included in the cadre posts and which are held by IAS Officers are ex-cadre posts. But the learned counsel for the Respondents maintain that the ex-cadre posts are those which are created in Government departments while the posts in public sector organizations are foreign service posts and are not considered as ex-cadre posts though they are included in the State Deputation Reserve. The applicant in support of his contention invited attention to Govt. of India Decisions under Rule-4 in which it is clearly stated that "the posts which are ex-cadre of IAS/IPS cadre are to be manned by cadre officers and counted against deputation reserve provided in the cadre (MHA lr. No. 40/5/66-AIS(III) dated 27.12.1966). He also invited attention to Govt. of India lr. No. 15/36/66 dated 20.4.1960 which reads as follows :-
"A question arose as to how and under what circumstances, the ex-cadre posts, under the State Government, or under a body, incorporated or not, which is wholly or substantially owned or controlled by the State Government, or the Government of India, should be declared equivalent to cadre post ............."
This according to the applicant would clearly establish the characteristics of the ex-cadre posts. The applicant referred to the decision of the Chandigarh Bench of this Tribunal in the case of Mr. Kral Reddy Vs. State of Punjab wherein this Tribunal had decried the propensity of state governments creating ex-cadre posts to post inconvenient officers. The Chandigarh Bench had referred to the Hon'ble Supreme Court's ruling in Hawa Singh Dhankar's case in which it was held that "creation of temporary ex-cadre posts and continuing them indefinitely for years by issuing fresh sanction every year by the state government without the approval of the Central Government is illegal".
Issue No. (ii) : The learned counsel for the Respondents argued that the concept of equivalence is applicable only to ex-cadre posts and not to posts in a Corporation or an Association etc.,. In support of his contention he quoted Rule-9(3) IAS (Pay) Rules. Rule-9 of IAS (Pay) Rules states as follows :-
"9. Pay of members of the Service appointed to posts not included in Schedule III-(1) No members 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 the 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 on the said Schedule.
(2) The pay of a member of the Service on appointment to a post other than a post specified in Schedule III shall be the same as he would have been entitled to, had he been appointed in 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 III 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 reason to be recorded in writing, where equation is not possible, appointment any members of the service to any such post without making a declaration that the said post is equivalent in status and responsibility to a post specified in the Schedule III".
A conjoint reading of Rule-9(1) and 9(3) would make it clear that the declaration of equivalence is required for posts in public sector undertakings also. In fact the terms and conditions of appointment of the applicant as Managing Director, APSWS, show that it has been treated as equivalent in status and responsibility to the cadre post of Principal Secretary to Govt., under Rule-9 of IAS (Pay) Rules, 1954. It shows that the Respondents 1 and 2 are aware that an IAS Officer appointed as VC/MD of Government owned Corporations, they are to be treated as ex-cadre posts.
Issue No. (iii) : The applicant submitted that there is nO provision either in the cadre rules or in the Pay Rules under which a post can be counted as a cadre post. According to him, there is no such concept because it is in direct conflict with the concept of permanence which is with the hallmark of a cadre post.
The applicant also pointed out that no Government Order has been issued for creation of post of Principal Secretary or even counting it as a cadre post. The impugned memo is only a direction to the Pay & Accounts Officer for the purpose of drawal of salary of officers.
In the case of Kral Reddy Vs. State of Punjab (supra), the Chandigarh Bench referring to the declaration of the State Government that the ex-cadre post of Principal Secretary, Programme Implementation was equivalent in status and responsibility to the cadre post of Principal Secretary, Financial Commissioner under Rule-9(1) of AIS (Pay) Rules, 1954, observed as follows :-
"We are definitely of the view that the said equivalence appears to be hollow inasmuch as it is only fulfillment of a technical or legal requirement but, in fact, the post does not have adequate work and responsibility and status commensurate with the post of Principal Secretary. Declaration of equivalence (of posts) under Rule 9 (1) of the 1954 pay rules requires serious application of mind, which should not merely be in name but in spirit and substance as well."
In the case of K.L. Manhas Vs. Union of India & Others, the Chandigarh Bench of this Tribunal observed that "declaration of equivalence of posts in sine qua non to the making of an order appointing a member of service to a pot other than a post specified in Schedule III of the Pay Rules". The fact noted that in the case of applicant therein no declaration of equivalence had been made on the date the impugned order was passed or even served on the applicant.
The applicant took us to the copies of the note files on pages 67 to 73 of the material papers submitted by him to show that declaration of equivalence has been done in a routine manner with no application of mind, more to fulfill a technical formality after deciding on the posting of the officer. He added that the State Government invariably declared equivalence after selecting and posting an officer to a particular post.
Issue No. (v) : The applicant submitted that the various components of a cadre of State were as determined and notified in the cadre Regulations and the letter of Govt. of India does not have and cannot have the effect of amended Regulations. In the case of Guduru Kishan Rao & Others etc., vs. Sutirtha Bhattacharya & Others etc., reported in 1998 (2) SLR 233 , the Hon'ble Supreme Court adjudicating on the issue whether the notification dated 15.12.1993 viz., the IAS (Fixation of Cadre Strength). Twelfth Amendment Regulation, 1993 which provides for an increase of 14 posts against item No. 3 for the period indicated therein in order to accommodate 14 State Civil Service Officers who had been excluded from the purview of consideration while preparing the select list for the year 1987, held as follows :-
"The Cadre Strength of the Indian Administrative Service for each of the State is fixed by the regulation which regulation is framed in exercise of power under sub-rule (1) of Rule 4 of the Cadre Rules. This being the position the notification increasing the number of posts in respect of item No. 3 of the Schedule relating to Andhra Pradesh as well as the increase of the total authorised strength of the cadre in Andhra Pradesh in nothing but an amendment to the Regulation in question, and therefore, notwithstanding the level of notification that the same has been issued under sub-section (1) of Section 3 of the Act read with sub-rule (2) of Rule 4 of the Cadre Rules and Rule 3 of the Residuary Rules, the same cannot have the status of an Act or the Rule as contended by Mr. Salve the learned counsel appearing for the appellants. On a plain grammatical meaning of the words used in the notification being given as well as the object for which the notification has been issued if borne in mind the only conclusion that can be arrived at is that the said notification is a regulation amending the Cadre Strength Regulation and called the 12th Amendment Regulation, 1993".
The applicant also referred to the decision of the Hon'ble Supreme Court in Hawa Singh Dhankar's case in which it has been held that "creation of temporary ex-cadre posts and continuing them indefinitely for years by issuing fresh sanction every year by the state government without the approval of the Central Government is illegal".
Issue No. (vi) : Supreme Court's decision in Hawa Singh Dhankar's case.
Issue No. (vii) : The applicant further contended that giving promotions without there being vacancies is not only bad in practice but also bad in law. It is an irregularity by itself which results into another irregularity of exceeding the limits of ex-cadre posts. It also results in keeping a number of cadre posts vacant which is violative of Rule-10 of the cadre rules which states that cadre posts cannot be kept vacant for more than six months without the specific approval of the Central Government. The applicant also submitted that the Hon'ble Supreme Court has observed in E.P. Royappas's case that the overall object of the IAS Cadre rules is "to ensure that the public services are in the discharge of their duties, not exposed to the demoralizing and depraving effects of personal or political nepotism or victimization or the vagaries of the political machine".
Issue No. (ix) : Tribunal's order in OA 1144/2002 (page 101 of the material papers)