Patna High Court
S.A.F. Abbas And Ors. vs State Of Bihar And Ors. on 7 November, 1969
Equivalent citations: AIR1970PAT397, AIR 1970 PATNA 397, 1970 LAB. I. C. 1518, 1970 BLJR 31, ILR 48 PAT 1043, 1970 PATLJR 9
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Misra, C.J.
1. All these petitions have been heard together as they raise common questions of law and questions of fact arising in more or less similar circumstances. The petitioners and members of the opposite party, except (1) the State of Bihar and (2) the Union of India, are all members of the Indian Administrative Service. The petitioners were initially recruited to the executive branch of the Bihar Civil Service but were subsequently appointed by promotion to the Indian Administrative Service. The members of the opposite party, however, were appointed as a result of the competitive examination held for recruitment of candidates for the Indian Administrative Service in terms of the All India Services Act, 1951, It may also be stated as general approach to the question that the officers who are fanged as opposite party entered the service earlier than the petitioners who were appointed by promotion on a later date. The petitioners may be compendiously called "promoted officers" and 'the opposite party as "direct recruits". It may be stated that it is not questioned that if there were no provision in the rules framed by the Government of India, in pursuance of the power conferred upon it under the 1951 Act, the direct recruits would be senior to the promoted officers. A complication, however, has been introduced into this position on account of the fixation of seniority in terms of what is called the Indian Administrative Service (Regulation of Seniority) Rules, 3954, which regulates seniority not only among the direct recruits inter se and the promoted officers inter se but also lays down the criterion for determining the relative seniority between an officer recruited to the Service as a result of the competitive examination and an officer appointed to the Service by promotion, from the rank of State Civil Service. It may be stated here that the criterion laid down is that of continuous officiation in a senior post by both categories of officers, in which event, if a direct recruit started officiating in the senior post from a date earlier than the date of commencement of such officiation by a promoted officer, then the promoted officer shall rank next below the junior-most of the officers, who are direct recruits, who started officiating in a senior post from a date earlier than the promoted officers. In substance, the entire controversy centres round this question and it is accordingly the interpretation of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, which has been mooted by learned Counsel for the parties.
It may be stated further that apart from the petitioners and the direct recruits who are directly affected, and who are represented by their Counsel in each one of the petitions, the State of Bihar (opposite party No. 1) and the Union of India (opposite party No. 2) have been represented by their respective Counsel before us. So far as the Union of India is concerned, it supports the stand of the direct recruits inasmuch as the latest Order of the Government of India is in favour of the seniority claimed by the direct recruits, but the learned Advocate-General for the State of Bihar has informed the Court that the State only seeks a decision from the Court to re-shuffle the seniority of the officers in accordance with the direction of the Court. It may be stated that the counter-affidavit filed on behalf of the State of Bihar is in consonance with the recommendation of the State of Bihar which was accepted by the Government of India, in the first instance, by the letter of Shri S. Narayanswamy, Deputy Secretary, Government of India, dated the 3rd September, 1958, giving the promoted officers seniority over the direct recruits, by virtue-of the recommendation by the State of Bihar contained in the letter of the then Chief Secretary Shri M.S. Rao, dated the 9th July, 1958. It may also be stated that by virtue of the approval granted by the Government of India, the recommendation contained in the letter of the Chief Secretary, Bihar, Shri M.S. Rao, the petitioners have been shown in the civil list as ranking senior to the opposite party direct recruits, but subsequently a representation was filed by Shri P.S. Appu which was rejected by the Government of India by letter No. 3/7/57--AIS(II), dated the 18th October, 1958 (vide paragraph 26, page 11, Vol. 1 of the brief in C. W. J. C. No. 853 of 1968). Subsequent representations were, however, made by two of the opposite parries, one, by Shri K.A. Eamsubramaniam and another by Shri S.D. Prasad, which were forwarded to the Government of India by the State of Bihar sometime in 1965, and the Government of India took a decision on these representations holding that the previous order of the Government of India was incorrect and that the direct recruits should be held to be senior to the promoted officers and that the rank of the officers as members of the Indian Administrative Service, Bihar Cadre, should be revised accordingly.
2. The order of the Government of India is contained in the letter dated the 20th of September, 1967, by the Deputy Secretary, Government of India, Ministry of Home Affairs, to the Secretary, Appointment Department, Government of Bihar, being No. 26/5/64--AIS(II) -- Vide Annexure 1, p. 19, Vol. 1, of the brief in G. W. J. C. No. 853/ 68, which stands as follows:
"Subject -- I. A. S. Bihar--Seniority--S/ Shri K.A. Ramasubramanian, S.D. Prasad and P.S. Appu -- Representations.
Sir, I am directed to refer to your letter No. I/C1--1022/66A--5040, dated the 14th April, 1967, on the above subject and to say that the matter was further examined in consultation with the Ministry of Law, who have reiterated their earlier advice and said that Rule 2 (g) of the I.A.S. (Regulation of Seniority) Rules, 1954, does not permit retrospective declaration of a post equivalent to a senior post of the I. A. S. The declaration made by the State Government in the present cases cannot have retrospective operation. It will have prospective operation. The Government of India have, therefore, decided to revise the seniority of the officers concerned. It will appear from the attached statement that the relevant dates for the purpose of fixation of seniority will be 26th December, 1955 in the case of S/Shri S.C. Mishra, S.A.F. Abbas, R.S. Mandal, S.K. Sinha and S.K. Chakravarty, 1-2-1956 in the case of Shri N.P. Sinha, 26-9-1955 in the case of Shri S. Sahay and 17th October, 1965 in the case of S/Shri Ramanand Sinha, Anwar Karim, R.C. Sinha, S.K. Chose and M. Alam. As Shri M.K. Mukharji, the seniormost regular recruit of of 1950 batch started officiating continuously in senior posts with effect from the 2nd May, 1955, a date earlier than the relevant dates of S/Shri S.C. Mishra, S.A.F. Abbas, R.S. Mandal, S.K. Sinha, S.K. Chakravarty, N.P. Sinha and S. Sahay, these officers may be re-allotted to the year 1950 and may be placed below Shri S.D. Prasad (RR--1950) and above Shri P.S. Appu (RR--1951). Shri N. Nagamani, the seniormost regular recruit of 1952 batch started officiating continuously in senior posts earlier than the relevant date of S/Shrj Ramanand Sinha, Anwar Karim, R.C. Sinha, S.K. Ghosh and M. Alam. These officers may be allotted to the year 1952 and may be placed below Shri K.K. Srivastava (RR--1952) and above Shri R.B. Lal (SCS Sr--1952). The officers concerned may be informed accordingly in suitable terms.
Yours faithfully."
Before taking up the question of interpretation of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, it may be relevant to point out in a short compass the circumstances which led to the promulgation of these rules after the creation of the service on the eve of the declaration of independence for India on the 15th of August, 1947. Since popular government was already in operation both in the States and Centre, a decision was taken at the Premiers' Conference held in October 1946, of which Sardar Vallabhbhai Patel was the Chairman, to the effect that two All India Services, being the Indian Administrative Service and the Indian Police Service, should be created to take the place of the Indian Civil Service and the Indian Police of the British regime and recruitment to these two Services should be made through the Federal Public Service Commission on the basis of competitive examination to be held every year of a high standard. The Services should be free from political control, contented and having a sense of security. It was also decided that a maximum of twenty five percent of superior posts (cadre posts) should be thrown open to the State Civil/Police Service Officers of outstanding merit as against the maximum of twenty percent of superior posts in the I.C.S./I.P.
3. Accordingly, the two All India Services were formed and they were put on a statutory basis under the Indian Civil Administrative (Cadre) Rules, 1950, the I.P. (Cadre) Rules, 1950 and the Indian Administrative and Police Service (Pay) Rules, 1950. This was followed by the All India Services Act, 1951, which the Indian Parliament passed under Article 312 (1) of the Constitution of India, which empowered the Government of India, in consultation with the State Governments, to make rules for the regulation of recruitment and conditions of service of the persons appointed to an All India Service. In terms' of Section 3 of the All India Services Act, 1951, a series of rules were promulgated in consultation with the State Governments. Under the Indian Administrative Service/Indian Police Service (Recruitment) Rules, 1954, the I.C.S./I.P. officers became members of the Indian Administrative Service/Indian Police Service, subject to the provisions of Article 314 of the Constitution of India. Generally, these rules follow the pattern of the rules applicable to the former I.C.S. and I.P. officers. Attention may, however, be invited to the following rules which are relevant for deciding the point in controversy in the instant applications.
They are:
The Indian Administrative Service (Recruitment) Rules, 1954;
The Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955;
The Indian Administrative Service (Appointment by Promotion) Regulations, 1955;
The Indian Administrative Service (Appointment by Selection) Regulations, 1956;
The Indian Administrative Service (Cadre) Rules, 1954;
The Indian Civil Administration (Cadre) Rules, 1950;
The Indian Administrative Service (Pay) Rules, 1954;
The Indian Administrative and Police Services (Pay) Rules, 1950;
The Indian Administrative Service (Regulation of Seniority) Rules, 1954;
The Indian Police Service (Regulation of Seniority) Rules, 1954; Bihar Service Code, Appendix 6, Rule 14.
It may be stated that it is the last three in the series of rules which are crucial for determining the relative seniority of the petitioners as well as the direct recruits, other rules being more or less subsidiary to throw light upon the provisions of the Regulation of Seniority Rules. Here it is relevant to set out the following charts which would apply a bird's-eye view with regard to the relevant dates in connection with the question of seniority.
Name of Officer Date of appointment to the I. A. S. Date of officiation in senior I. A. S. scale as originally agreed by Govt. of India.
Date of officiation in se-nior I. A. S. scale as proposed by State Govt.
Remarks.
1.
2.
3.
4.
5.
Shri S. C. Mishra 26-12-55:
28-12-54:
28-12-54:
The Govt of Indid (Shri Prabhakar Rao's Letter No. 5/27/55 AIS (I) dated 14th August, 1956) have recognised their officiation with effect from the date of occurrence of the subs-tantive vacancies. But these officers were in ad hoc list of 1954 and the State Govt. recommended that these officers should be on officiation in view of the provision in the Bihar Service Code.
Shri S. A. F. Abbas 28-12-55 15-6-55 28-12-54 Bhri K. S. Mandal 26-12-35 1-10-55 28-12-54 Shri S. S. Sahay 26-9-56 Not yet agreed 28-12-54 Was Dy. Secy. Revenue in Dept. from 6-3-63.1 2 3 4 5
Shri B. Sinha 17.10.56 do 28-12-54 Was Dy. Secy. Development Dept. from 1-4-54.
Shri R C. Sinha 17-10-56 do 28-12-54 Was Secy, to Chief Minis-ter from 22-9-52.
Shri S. K. Ghosh 17-10-56 do 28-12-54 Wag Dy. Secy. Irrigation Dept. from 1.9.54.
Name of Officer Date of continuous officiation in senior scale as accepted in 1958.
Year of allotment Year of re-allotment Shri S. C. Mishra 28-12-54 1948 1950 Shri S. A. F. Abbas 28-12-54 1948 1950 Shri R. S. Mandal 28-12-54 1948 1950 Shri S. Sahay 28-12-54 1948 1950 Shri R. Sinha 28-12-54 1948 1952 Shri R. C. Sinha 28-12-54 1948 1952 Shri S. K. Ghosh 28-12-54 1948 1952
4. Rule 1 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, deals with the title and Rule 2 contains the relevant definitions. It defines 'cadre' which means an Indian Administrative Service Cadre constituted in accordance with Rule 3 of the Indian Administrative Service (Cadre) Rules, 1954, Rule 2 (g), which is one of the contentious provisions, stood thus before it was amended.
"'Senior post' means a post included under Item I of each Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, framed under Sub-rule (1) of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954, or any post declared equivalent thereto by the State Government concerned;"
Rule 3 deals with the assignment of year of allotment and prior to amendment stood thus:
"3. Assignment of year of allotment.-
(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule.
(2) The year of allotment of an officer in service at the commencement of these rules shall be the same as has been assigned to him or may be assigned to him by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules:
Provided that where the year of allotment of an officer appointed in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules has not been determined prior to the commencement of these Rules, his year of allotment shall be determined in accordance with the provision in Clause (b) of Sub-rule (3) of this rule and for this purpose, such officer shall be deemed to have officiated in a senior post only if and for the period for which he was approved for such officiation by the Central Government in consultation with Commission.
(3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be-
(a) where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held;
(b) where the officer is appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former:
Provided that the year of allotment of an officer appointed to the Service in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service in accordance with Rule 7 of those Rules so started officiating, shall be deemed ad hoc by the Central Government in consultation with the State Government concerned;
Provided further that an officer appointed to the Service after the commencement of these rules in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Administrative Service (Appointment by Promotion) Regulations framed under Sub-rule (1) of Rule 8 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission.
Explanation 1--. An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement;
Explanation 2.-- An officer shall be treated as having officiated in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstance.
(c) where the officer is appointed to the Service by selection in accordance with Sub-rule (2) of Rule 8 of the Recruitment Rules, such year as may be determined ad hoc by the Central Government on the recommendation of the State Government concerned and in consultation with the Commission:
Provided that he shall not be allotted a year earlier than the year of allotment of an officer appointed to the Service in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules, whose length of service in the State Civil Service is more than the length of continuous service of the former in connection with the affiairs of the State."
Rule 4 provides for seniority of officers inter se. Sub-rule (4) of this Rule relates to the seniority of officers appointed to the Service on or after the 11th day of April, 1958, who were assigned the same year of allotment. Rule 5 deals with the seniority of officers placed in List II or List III by the special Recruitment Board and Rule 5-A with the seniority of officers appointed under the Indian Administrative Service (Special Recruitment) Regulations, 1956. Rule 5-B is not relevant. Rule 6 deals with the preparation of gradation list, 7 deals with fixation of seniority on transfer to another cadre. 8 relates to interpretation and 9 is repeal and saving. The relevant rules, therefore, on which stress has been laid are 2 (g) and 3, particularly Rule 3 (3) (b). Reference to Sub-rule (1) of Rule 8 of the Recruitment Rules relates to recruitment by promotion and Rule 7 refers to recruitment as a result of a competitive examination.
I have already stated that so far as the direct recruits are concerned, they are given their year of allotment, being the year following the one in which such examination was held, in terms of Rule 3 (3) (a), but the year of allotment assigned to a promoted officer is the year of allotment of the junior-most of the direct recruits who started continuous officiation in a senior post from a date earlier than the date of commencement of such officiation by a promoted officer. The claim of the direct recruits in this case is that they should rank higher than those promoted officers who were appointed to the Indian Administrative Service on a date later than their appointment, unless they started continuous official ion in a senior post, which officiation received approval of the Central Government in consultation with the Public Service Commission. 'Senior post', as I have already indicated, means a post included under Item I of each Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, or a post declared equivalent thereto by the State Government concerned.
5. Mr. Daphtary appearing on behalf of petitioner Ram Chandra Sinha (C. W. J. C. No. 854/68) has contended that the decision of the Government of India allotting certain years, being the year 1948 in the case of his client petitioner Ram Chandra Sinha, must be taken to be final as this decision was arrived at after a full consideration of the letter of the State Government, being the letter of Shri M.S. Rao, dated the 9th July, 1958 (annexure C, page 13, of the brief in C. W. J. C. No. 853/68-Volume III), which approval was communicated to the State Government in the letter of Shri Narayanaswamy, Deputy Secretary, Government of India. The reason assigned by the Government of India for revising this decision, stating that the Government of India's previous decision was incorrect, must be held to be invalid and the order quashed inasmuch as there was no error or misrepresentation in the letter of Shri M.S. Rao. The Government of India took a decision after a mature consideration of the reasons assigned in Shri M.S. Rao's letter and reversed that decision without hearing the petitioners, which amounted to a violation of the principle of natural justice. He has referred in this connection to the decision of the Supreme Court in Union of India v. T.R. Varma, AIR 1957 SC 882. On behalf of the Union of India as also the direct recruits, it has been urged that the orders passed in regard to the seniority of these officers are all administrative orders in which no reasons are to be assigned, no officer has got any vested right to be heard in person and the principle of natural justice cannot be invoked in a case like this. It is true, no doubt, that the previous order was passed in September, 19.58 and the promoted officers continued to hold rank higher than the direct recruits from that date onwards up to 1967 when the previous decision was revoked and the seniority of these officers was ordered to be revised. In my opinion, the contention put forward on behalf of the petitioners cannot be accepted as correct. In a matter of administration, it is open to the departmental authority to pass any suitable order, if materials be on record for assessing the merit of claim or claims of the officer or officers concerned. If, however, any officer feels aggrieved by such an order, it is open to him to put in a representation for reconsideration of the decision and it can well be taken as established that if the authority taking the decision is satisfied that there is substance in the grievance made by the officer adversely affected by that order, the decision must be altered and justice done between the parties. It is true that normally this should be done within a reasonable time to avoid further complications by virtue of any officer having enjoyed the benefit of that decision for such a long time and, unless there be very compelling reason to do so, such a decision should not be altered if a long time has passed since the decision taken one way and alteration sought to be made on a subsequent date. As an abstract question of administrative policy, however, it is difficult to uphold the contention that if a decision has been arrived at by the Government on the administrative side, it cannot be altered if the Government is satisfied that the decision was wrong. In this particular case, it has been urged on behalf of the direct recruits that there is no delay caused on account of any inaction or acquiescence on their part. In fact, after the rejection of the representations by Shri P.S. Appu, Shri K.A. Ramasubramanian and Shri S.D. Prasad, the opposite party questioned the correctness of the decision of the Government of India allotting the particular years to the promotees as early as 1960. It was the Government of Bihar that did not forward their representations to the Central Government up to the year 1965 and then two years were taken for the decision to be arrived at. It cannot be urged that there is no substance in the contention raised on behalf of the opposite party although it is unfortunate that the matter has taken such a protracted course and the promoted officers have enjoyed high posts by virtue of their seniority for at least nine years after the year of allotment ordered in their favour in 1958. As I have already indicated, there is no question either of violation of the principle of natural justice in this case because tbere is no provision for a personal hearing and, as for detailed objection by the petitioners, the matter was gone into and, although the Government of India adhered to its decision of 1967, it must be assumed that it felt satisfied that the decision taken in favour of the direct recruits was a correct decision. The decision of the Supreme Court not being a decision in an administrative matter cannot be deemed to have any relevance in the case of an administrative order passed by the Government.
6. The second point raised by Mr. Daphtary, objecting to the stand of the letter of the Government of India, that consultation with the Public Service Commission was not held is that this stand cannot be taken to be legal or even factually correct. This is not stated in the counter-affidavit filed on behalf of the Union of India in all the petitions although this statement finds place in the counter-affidavit filed in the case of petitioner Ramchandra Sinha. He has urged, however, that the select list of officers for promotion to the Indian Administrative Service cadre was actually prepared in 1954, and not in 1955. In that year the seniority rules were promulgated in September, they were well known to the authorities, and approval was given to the ad boc list by the Union of India in consultation with tbe Chairman of the Public Service Commission and this list was ready in December, 1954. It is true, no doubt, that the ad hoc list was not a select list which contained the list of officers found fit for promotion, but the ad boc list referred to the fitness of certain officers for officiation in a senior post.
Mr. Daphtary has urged that this ad hoc list consisting of officers who were considered fit for officiation in a senior post must be taken to be sufficient compliance with the proviso to Rule 3 (3) (b), because when the Chairman of the Public Service Commission was satisfied about the fitness of all the petitioners for officiation in a senior post and the Union Public Service Commission approved it, this should be sufficient compliance with the requirement of the said proviso. Learned Counsel for the Union of India and the direct recruits have contended against the correctness of this argument. It is accordingly necessary to quote here the back-ground in which the ad hoc list was prepared and which is referred to in the letter of Shri M.S. Rao (annexure C, page 23, of the brief in C. W. J. C. No. 853 of 1968, Volume III):
"After careful consideration the State Government have come to the conclusion that the term 'current waiting list of District Magistrates' must include the select list prepared each year under Regulation 7 of the I. A. S. (Appointment by Promotion) Regulations and any other list of State Civil Service Officers approved by the Union Public Service Commission for officiation or trial in posts carrying pay in the senior I. A. S. scale. We have first the list which was prepared by an ad hoc committee presided over by the Chairman, Union Public Service Commission. This committee met in September, 1954, before the I. A. S. (Appointment by Promotion) Regulations were issued, but after the I. A. S. (Recruitment) Rules had come into force. This Committee selected State Civil Service Officers for substantive appointment in the vacancies that existed in promotion quota. At the same time, it prepared a list of State Civil Service Officers considered suitable for officiation in posts in senior I. A. S. scale. This latter list which may for the sake of convenience be called the 'ad-hoc list 1954' was approved by the Union Public Service Commission in their letter, dated the 28th December, 1954. The ad hoc committee was constituted on the same lines as the selection committee under the I. A. S. (Appointment by Promotion) Regulations and the only reason why it was an ad hoc committee is that the Regulations had not been issued by the Central Government."
It may be stated that earlier dates of continuous officiation in a senior post were recommended in Shri Rao's letter but the Government of India chose to circumscribe it to the date of the preparation of the ad hoc list which was the 28th of December, 1954, in regard to these petitioners. In fact, there was nothing irregular in granting approval of officiation from a date when the ad hoc list was prepared of officers who were considered fit for holding senior posts and as such qualified for promotion to the cadre of the Indian Administrative Service.
7. It has, however, been urged on behalf of the Union of India by Mr. C.B. Agarwala as also on behalf of opposite party Nos. 3 to 14, the direct recruits, that, in any case, this approval was given without the concurrence of the Public Service Commission. It has been urged by Mr. Daphtary on behalf of petitioner Ram Chandra Sinha that, in the first place, preparation of the ad hoc list in consultation with the Chairman of the Union Public Service Commission and formally approved by the Union Public Service Commission must be taken to be sufficient so far as the preparation of the list for officiation in a senior post was concerned. But, even assuming that there was no such approval, consultation with the Public Service Commission was merely directory and not imperative. He has referred to Montreal Street Rly. Co. v. Normandin, 1917 AC 170 = (AIR 1917 PC 142); State of U. P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 and Bhopal Sugar Industries Ltd. v. Income-tax Officer, Bhopal, AIR 1961 SC 182. It is true, no doubt, that so far as the decisions of the Supreme Court are concerned, it has been ruled that consultation with the Public Service Commission under Article 320 of the Constitution of India is not mandatory but purely directory, i. e. even if it be found that there was no actual consultation, it would not affect the validity of an appointment made or an order passed. It has, however, been urged on behalf of the Union of India that where such a power has been conferred on the Government under an Act for making any appointment in consultation with the Public Service Commission, omission to do so may not be fatal to the appointment, but such a power cannot be claimed under any rule. If any rule made by the Executive Government provides for such consultation, it must be held to be imperative and any act done without compliance with such a rule must be held to vitiate the order passed. Making an appointment in consultation with the Public Service Commission is one thing but giving approval to a recommendation of the State Government without consulting the Public Service Commission is quite different. Failure in the former case may be a mere irregularity so as not to shake the validity of the act, but failure to observe the requirement of the rule framed by the Executive Government for consultation with the Public Service Commission must be distinguished and treated as imperative. To my mind, however, it is difficult to draw such a line of distinction. If the argument were to prevail that where consultation with the Public Service Commission is provided for under any legislative enactment, failure to carry it out may be merely an irregularity, but where such a provision has been made in the rule, it must be treated as violative of an imperative provision, would amount to saying that every provision of a rule irrespective of its character must always be treated as literally binding. In my opinion, however, there is no warrant for such contention. All provisions of law whether as an Act passed by the Parliament or any rule, regulation, bye-law or executive instruction, must be interpreted by the canons which are applicable to the interpretation of any enactment put on the statute book by the Legislature. It is well settled that they are all in the nature of laws prevailing in the country and the same principle should apply in interpreting them, and whether a particular provision is directory or mandatory must depend upon the circumstances of each case in construing rules and regulations in the same manner as will apply in construing an Act passed by the Parliament. In the present case whatever might be the legal effect of the preparation of the ad hoc list, it seems clear that the Government of India gave its approval to the ad hoc list which was drawn up by the State Government in consultation with the Chairman of the Union Public Service Commission and duly approved by the Commission. The Government of India in 1958, therefore, in accepting the recommendation contained in the letter of Shri M. S. Rao was clearly influenced by the consideration that a list which had the approval of the Chairman of the Union Public Service Commission and the Commission (sic) could well be taken to have been made in compliance with the rule and as such further reference to the Union Public Service Commission would be a superfluous act. It is notable that the rules regarding seniority were promulgated on the 8th September, 1954, before the approval of the Union Public Service Commission was granted for the ad hoc list prepared. It was in that sense that no reference was made and, as has been held by the Supreme Court in the above cases that consultation with the Public Service Commission is a directory provision, in the special circumstances of this case, it is conspicuous that it was not necessary to make a further reference, though as a matter of abundant caution the same could have been done before granting approval.
The stand in the counter-affidavit of the Union of India that formal approval of the Public Service Commission was not obtained in 1958 has no merit, because this has reference, obviously, to consultation which, in the circumstances of this case, would have been as an act purely ex majorie cautela. The preparation of the ad hoc list by the selection committee presided over by the Chairman of the Union Public Service Commission, which is a list of officers in which the petitioners are included as considered fit for officiation in a senior post and the approval of such a list by the Union Public Service Commission must be taken to be sufficient compliance with the second proviso requiring approval of the period of such officiation prior to the date of the inclusion of their names in the select list by the Central Government in consultation with the Commission. It may be stated that the letter by Shri S.P. Mukherjee Under-Secretary to the Government of India, dated the 7th May, 1957, No. 3/35/57 (page 102, Vol. I of the brief in C. W. J. C. 853/68) also refers to the question of seniority and disapproval is expressed only in respect of 'fit for trial list' and not 'fit for officiation list'.
8. It has been further contended in regard to the approval of the Central Government that it was necessary that it should be given only after formal consultation with the Union Public Service Commission, and where the Central Government would give such an approval without consulting the Union Public Service Commission, it would not be valid in terms of Rule 3 (3) (b), proviso two. Reliance has been placed on the following passage in Craies Statute Law, at page 260:
"If there be any one rule of law clearer than another, it is this, that where the Legislature have expressly prescribed one or more particular modes of dealing with property, such expression always excludes any other mode, except as specifically authorised."
This does not appear to have any relevance so far as the present proceeding in regard to the exercise of power by the Government of India in granting approval is concerned. Reference has been made to the decision of the Supreme Court in the case of Patna Improvement Trust v. Smt. Lakshmi Devi, AIR 1963 SC 1077 and the case of K. S. Srinivasan v. Union of India, AIR 1958 SC 419. The decision in the case of Patna Improvement Trust, AIR 1963 SC 1077, however, is not relevant because it does not relate to a decision of the Government of India in consultation with the Union Public Service Commission, but to acquisition of land under the Land Acquisition Act only after a valid notification under Section 4 (i) of the Act or a declaration under Section 6 of the Act. This case, therefore, is of no assistance to learned counsel for the opposite party.
The decision in Srinivasan's case, AIR 1958 SC 419 has no particular bearing because that also related to the construction of Rules 4 (b) and 3 of the Central Government Civil Services (Temporary Service) Rules, 1949, as to whether they were directory or mandatory. The real question in that case was whether without any declaration of a temporary post as quasi-permanent, it could acquire last character, although this was to be done in consultation with the Union Public Service Commission. Their Lordships did not decide that question. S.K. Das, J., who delivered that judgment, in paragraph 22, spoke thus:
"Rule 4 (b) of the Temporary Service Rules states that when recruitment to a specified post is required to be made in consultation with the Public Service Commission, no declaration under Rules 3 and 4 (a) shall be issued except after consultation with the Commission. In the view which we have taken of the order dated December 14, 1953, it is not really necessary to decide in the present case whether the provisions of Rule 4 (b) are merely directory or mandatory. It is sufficient to state that the Public Service Commission was not consulted before the order dated December 14, 1953 was issued, and the appointing authority did not intend the order as a declaration under Rules 3 and 4 (a)."
The conclusion drawn, therefore, from non-consultation with the Public Service Commission was that the authority did not really make any declaration at all. The decision thus rested upon a conclusion of fact; but so far as the effect of Rule 4 (b) was concerned, it was left open. No doubt, the principle underlying Article 320 of the Constitution is distinct from the provision of a rule to be administered by a subordinate authority, but upon that also, it was observed that quasi-permanent status was a creature of the rules, and Rule 4 (b) requires that no declaration under Rule 3 shall be made except after consultation with the Public Service Commission.
9. It has been urged by learned counsel for the Union of India, on the authorities of East Riding County Council v. Park Estate (Rridlington) Ltd., 1957 AC 223 and Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur, AIR 1965 SC 895 that even if the provision with regard to consultation with the Public Service Commission be held to be directory, there should be a substantial compliance with the requirement of such a provision and not that it should be completely dispensed with. No doubt, in the above case ATR 1965 SC 895, their Lordships of the Supreme Court had to deal with a situation in which there was substantial compliance with the requirement of the rule and this was adverted to in specific terms. The question for consideration was the validity of the publication of a resolution passed in Hindi in a Urdu Newspaper of considerable local circulation and whether such publication was in conformity with Section 94 (3) of the U. P. Municipalities Act (Act 2 of 1916 as amended by Act 7 of 1953). That, however, is not the ratio of that decision. So far as the directory provision is concerned, it has been held, as I have already indicated in a series of decisions that failure to comply with such a provision does not render ipso facto the act done as invalid. The court is at liberty to examine all the circumstances of the case in order to pronounce upon the validity or otherwise of such an act in the event of non-compliance with the directory provision of law. In the instant case, however, even assuming that substantial compliance with the directory provision is necessary, it has been done beyond question. When the ad hoc list was being prepared regarding the fitness of the officers of the State Civil Service for promotion to the rank of the I. A. S. it was prepared sanctioning their fitness for officiation in a senior post. This list was prepared, as I have already said, by a special committee appointed on the same lines as Rule 3 under the I. A. S. (Appointment by Promotion) Regulations, . presided over by the Chairman of the Union Public Service Commission and this recommendation had the formal sanction of the Commission on the 28th of December, 1954. It is true, no doubt, that this committee formally recommended the fitness of the officers for officiation in a senior post and the State Government later on recommended that the posts they had held with effect from that date should be treated as continuous officiation for the purpose of determining seniority; and the Central Government in the circumstances disclosed, accepted . that recommendation. It is difficult to come to any other conclusion than that this was substantial compliance with the requirement that the Central Government should errant its approval in consultation with the Public Service Commission in regard to the posts held by the promoted officers as a case of continuous officiation, which fact would be taken into account for determining seniority of the officers concerned. The Fast Riding County Council Case, 1957 AC 223 has no bearing on the point under discussion.
10. It has also been contended by Mr. Daphtary that there is nothing on record to show that there was no consultation with the Public Service Commission even in a more formal manner inasmuch as the denial to it is given by an Under Secretary in the Home Ministry of the Union Government, who admittedly had no concern with the department, and the approval was given in the letter of Shri Narayanswamy to the recommendation of the State Government in September, 1958. It is well settled that he was not competent to do so and the only person who could really give the denial would be the person who dealt with the matter., such as Shri Narayan-
swamy, or some other person who would be in a position to speak from personal knowledge of what happened when approval was accorded by the Government of India. It may also be noticed that in this case there is no statement on record that the Union Public Service Commission was consulted in the matter as was done in Srinivasan's case, AIR 1958 SC 419 where the Public Service Commission was consulted and which refused to give its approval to the post of the petitioner in the Supreme Court as equivalent to the post of Public Relations Officer which was a quasi-permanent post. There is substance in this contention also on behalf of the petitioners. The counter-affidavit stating that the Public Service Commission was not consulted, or stating the circumstances in which it was not consulted, will be relevant for enabling the court to come to a correct conclusion as to the effect of failure to consult the Union Public Service Commission. I have already referred to Srinivasan's case and I may add that whereas the majority did not think it proper to express any opinion as to whether the provision of Rule 4 (b) of the Central Civil Services (Temporary Service) Rules, 1949, was directory or mandatory, Bose, J. clearly stated that consultation with the Public Service Commission by the Department concerned even in respect of this rule must be held to be directory and not mandatory on the authority of several decisions of the Supreme Court as also the decision of the Privy Council in 1917 AC 170 = (AIR 1917 PC 142).
11. The next question which has been argued at great length by learned counsel for the parties refers to the expression 'senior post' the exact scope of which is to be precisely determined, inasmuch as it is the continuous officiation only in a senior post which is necessary for deciding the comparative seniority of a direct recruit and a promoted officer, if both have officiated in such a post. It is true that the posts the petitioners were holding on the date of the preparation of the 'fit for officiation' or ad hoc list in December, 1954 could not be regarded as senior cadre posts included under item 1 of each schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, because they were holding posts of the rank of Additional District Magistrates as Deputy Secretaries some of which were ex-cadre posts or in other posts under the State Government held by them. It is, therefore, clear that they could claim the benefit of Rule 3 (3) (b), second proviso, only if it could be established that these posts were equivalent to a senior cadre post and were declared as such by the State Government, It has been contended on behalf of the Union of India that although prior approval was given in September, 1956 by the Government of India treating the posts held by the petitioners as equivalent to senior cadre posts, this was under a mistaken notion on account of the representation made by the State Government contained in the letter of Shri M.S. Rao. The Government of India was under the impression that these officers already were holding posts which were equivalent to senior cadre posts on the 28th of December, 1954; so that there could be no technical objection to accepting the recommendation of the State Government in respect of the petitioners. It is contended, however, that it was not so, and these posts were declared equivalent by the State Government after the appointment of the petitioners to the Indian Administrative Service with effect from the 26th of December, 1955. This will be a case, therefore, of retrospective declaration which is not contemplated under Rule 2 (g) which covers only the case of a prospective declaration. It has been urged, however, by Mr. Daphtary for petitioner Ram Chandra Sinha, that the ground assigned in the letter of the Government of India for revising its previous decision of 1958 is not sustainable inasmuch as declaration contemplates an existing fact and not necessarily bringing into existence new fact although it may signify either according to the circumstances of a case. If the word 'declaration' has been used in Rule 2 (g), it must be reasonably construed as referring to a post which was not declared a senior post prior to the appointment of an officer of the State Civil Service to the cadre of the Indian Administrative Service.
Our attention has been drawn by learned counsel to the Indian Administrative Service (Cadre) Rules, 1954, of which Rule 9 lays down that a non-cadre officer cannot hold a cadre post excepting for a short period not exceeding three months, and if it is for a longer period, not without the approval of the Central Government as provided in Sub-rules (2), (3) and (4). That being the position, there could be no occasion for declaration by the State Government of a non-cadre post as equivalent to a cadre post held by an officer of the State Civil Service. This limitation in regard to a non-cadre Officer is general and not the exceptional situation which arises for determining seniority when such non-cadre officer has been selected for promotion to the I. A. S. Cadre. It is also true, no doubt, that under Rule 9 of the Indian Administrative Service (Pay) Rules, 1954, an I. A. S. Officer can be deputed to a non-cadre post only when it is declared as such; without that there may be technical objection to his drawing the salary to which he is entitled as a cadre officer. Mr. C.B. Agarwala has contended that 'declaration' here only refers to a prospective declaration and the same principle should apply to 'declaration' as contemplated in Rule 2 (g). Mr. Daphtary, however, has contended, in reply, that even in respect of Rule 9, it is not necessary that a declaration should always precede the deputation of an I. A. S. Cadre Officer to a non-cadre post without which such officiation will be void, but it only contemplates the factum of a declaration. Mere failure to make the declaration prior to the deputation of an I. A. S. officer to hold such a post cannot reasonably be taken to render the holding of such post as void and depriving the officer of the privileges of the Service to which he belongs, such as salary, leave, pension, etc., but that such a declaration has to be made. There is no authority to the contrary as the word 'declaration' implies that this amounts to recognising a fact, vide Maxwell (page 213, 11th edition). See also Government of India's decisions at page 238 and Pay Rule 9 of the All India Services Manual. But, even assuming that in respect of Rule 9 such a prior declaration is necessary, this cannot affect the meaning of 'declaration' in Rule 2 (g) of these Rules. The real meaning of 'declaration' in Rule 2 (g) is to be read in conjunction with the second proviso to Rule 3 (3) (b) which has used the expression "shall be deemed to have officiated continuously in a senior post", which implies that in the present context, in any case, the possibility of a declaration at a subsequent stage is not ruled out. The objection emphatically formulated in the counter-affidavit on behalf of the Union of India, as also urged by learned Counsel for the Union, is that if such retrospective declaration were permissible it would result in much mischief and the State Government might declare any post as equivalent to a cadre post much later than the appointment of an officer of the State Civil Service to the Indian Administrative Service, only to enable him to obtain the benefit of seniority as against the direct recruits. This has been repeated several times in the counter-affidavit as also has been put forward as a principal ground even in the letter of the Government of India, dated the 20th September, 1967, finally allowing the representations of Shri Ram Subramanian and Shri S.D. Prasad. It is urged that this apprehension is not well founded. If the rule making authority has conferred such wide power upon the State Government, there is a definite policy behind it which has been dealt with in the decision of the Supreme Court in Anand Prakash Saksena v. Union of India, AIR 1968 SC 754. The policy underlying this provision has been thus stated in paragraph 21 (at page 760) of the report:
"The object of Rule 3 (3) (b) is to fix the seniority of the promotees in relation to direct recruits. The promotees obtain promotion after long service in the State Civil Services. From the point of view of the promotee, his seniority should be counted from the date of his joining the State Civil Service. From the point of view of the direct recruit, the seniority of the promotee should be counted from the date of his ap-
pointment to the Indian Administrative Service.
Rule 3 (3) (b) attempts to strike a just balance between the conflicting claims. It gives the promotee the year of allotment of the junior-most direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. If no direct recruit was officiating continuously in a senior post on an earlier date the seniority of the promotee is determined ad hoc. In our opinion, the Rule is not arbitrary or discriminatory and is not violative of Articles 14 and 16 of the Constitution."
If this is the policy of the Government of India as provided in Rule 3 (3) (b), it must be given an interpretation which is in consonance with this policy. If it were to be held that unless an officer of the State Civil Service, before his appointment to the Indian Administrative Service, holds a post which is declared as equivalent to a senior cadre post, he cannot get the benefit of this officiation, it is likely to result in substantially defeating the policy of the Government, even if not entirely. There may be a few cases in which the State Civil Service officers are actually holding a post of equal responsibility but the declaration of the equivalence has no relevance prior to this appointment and the expressions 'an equivalent post' or a post of equal rank and responsibility would have no meaning. I am, therefore, inclined to accept the contention of Mr. Daphtary, on behalf of the petitioners, that the word 'declaration' even generally and more so in the present context cannot be construed as having only prospective effect, but it must be taken in a more general sense of treating a post of equal rank and responsibility as equivalent post at any time. If, however, the State Government would declare a post of a distinctly lower rank as equivalent to a senior cadre post, in the first place, the Central Government will not accept it and, even if it were so, the court of law on a consideration of the fact might strike it down as unreasonable and invalid declaration, and the promotee cannot get the benefit of seniority by virtue of such declaration. The apprehension, therefore, expressed in the counter-affidavit is ruled out, in the first instance, by the requirement of the second proviso to this Rule which is that (sic) in the next place there should be either holding of a regular senior post or of a post equivalent thereto which is held by a promoted officer continuously with the approval of the Central Government and the Central Government, as I have already indicated, generally, acting on the approval of the Public Service Commission. An extreme case of au absurd situation, therefore which is the basis of the apprehension, cannot arise. If, on the contrary, it were to be accepted that the word 'declaration' should be taken only to refer to a prospective declaration amounting to creation or bringing into existence a new post with the nomenclature of equivalence with a cadre post then this is bound to nullify the policy of the Government in respect of the promoted officers as it was laid down in Rule 2 (g) and Rule 3 (3) (b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954. This also has been clearly brought out, if I may say so with respect, in the judgment" of the Supreme Court in Anand Prakash Saksena's case, AIR 1968 SC 754. Mr. Agarwala has placed reliance on the case of Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854 in which the question for consideration was the definition of quasi-permanent service under Clauses (i) and (ii) of Rule 3 of Central Civil Services (Temporary Service) Rules, 1949. That Rule stands as follows:
"A Government servant shall be deemed to be in quasi-permanent service:--
(i) if he has been in continuous Government service for more than three years;
(ii) if the appointing authority, being satisfied as to his suitability in respect of age, qualfications, work and character, for employment in a quasi-permanent capacity has issued a declaration to that effect, in accordance with such instructions as the Governor-General may issue from time to time."
Leaving aside some uncertainty as to the wording of these two clauses of Rule 3 and as to whether a 'comma' occurs with 'and' towards the end of Clause (i) or a mere 'semi-colon' or a 'semi-colon' with 'and', it is a case where the two clauses were read together as conjunctive with reference to the clauses as such and the subsequent rules, and in that context, therefore, a formal declaration was necessary. The formal declaration of a temporary post as a quasi-permanent post has been held to be imperative before a temporary post can be clothed with the character of a quasi-permanent post, but, in the present context, the word 'declaration' has to be read in the light of Rule 3 (3) (b) and the intention of Government sought to be carried out in determining the seniority of various categories of recruits to the Indian Administrative Service, and Champaklal's case is not relevant for this purpose.
12. Reference has been made to Civil Appeals Nos. 942 and 943 of 1966 (The Income Tax Officer, Alleppey v. N. C. Ponnose decided in the Supreme Court on the 28th of July, 1969) for the proposition that no retrospective operation could be given by a departmental authority to any rule. In that case a Tahsildar who had no authority, on the relevant date, to attach an assessee's property for realisation of Income-tax dues under the Finance Act, 1963, was held not competent to do it and his act could not be held to be valid retrospectively. That was how the Supreme Court ruled in this case and ruled in favour of the creditor who sought to attach ii in execution of his own dues. The relevant observation on the point runs thus:--
"The legal fiction could not be extended beyond its legitimate field and the aforesaid words occurring in Section 4 of the Finance Act, 1963, could not be construed to embody conferment of a power for a retrospective authorisation by the State in the absence of any express provision in Section 2 (44) of the Act itself. It may be noticed that in a recent decision of the Constitution Bench of this court in B.S. Vadera v. Union of India, AIR 1969 SC 118 it has been observed with reference to rules framed under the proviso to Article 309 of the Constitution that these rules can be made with retrospective operation. This view was, however, expressed owing to the language employed in the proviso to Article 309 that 'any rules so made shall have effect subject to the provisions of any such Act'."
This case, therefore, relates only to the scope of the power of the executive authority. If Rule 3 (3) (b) cannot be construed to confer any privilege upon a promoted officer, undoubtedly, the act of the Central Government or the State Government giving the benefit to him would not be held to he valid. If, however, the Rule empowers the State Government to do it, the decision in this case would be no bar; on the contrary, this Rule itself says that if the Rule makes it retrospective, the authority concerned has got the power to apply it retrospectively and if the word "declare* in Rule 2 (g) is held to cover not only the case of a future declaration but also recognising the existence of a fact, then this decision would lend support to the petitioners' contention and would not go against it. The decision of the Supreme Court in Civil Appeal No. 2162 of 1968 (State of Orissa v. B.K. Mohapatra), disposed of on 11-4-1969 = (reported in MR 1969 SC 1249) deals with a case where a police officer's name was only included in the 'fit for trial list' and, as such, the observation in this judgment can have no effect where the petitioners were not in the 'fit for trial list', because it was a different list altogether as referred to in the above letter of Shri M.S. Rao. They were included in the ad hoc list, which is different from the 'fit for trial list' as the letter of Shri Rao itself has clearly stated. The implication of the ad hoc list is almost that of a select list, because the ad hoc list was prepared keeping in view the Regulation of Seniority Rule, 1955, which was available to the State of Bihar and to the Central Government in a draft form, and it was thus that approval was given by the Union Public Service Commission. The decision, therefore, in the Orissa case must be held to be not applicable to such a list. Another decision in Civil Appeal No. 1464 (N) of 1968 (Purtabpore Co. Ltd. v. Cane Commr. of Bihar, disposed of on 21-11-1968) = (reported in AIR 1970 SC 1896) also is of no assistance to learned counsel for the opposite party respondents. That relates to the case of an order of the Cane Commissioner of Bihar and it was held that the right acquired by the owner of a mill to purchase the sugarcane from a certain area could not be affected on a subsequent date. This decision, therefore, also has no bearing on the question for consideration in the present case. In Writ Petn. Nos. 173 to 175 of 1967 (A.K. Kraipak v. Union of India, disposed of on 29-4-1969) = (reported in AIR 1970 SC 150) it has been held that the dividing line between the administrative power and quasi judicial power is quite thin and is being gradually obliterated. This is a complete answer to the contention raised on behalf of the opposite party respondents that the order passed by the Government of India is an Administrative order and, therefore, it cannot be quashed. Hegde J., in this judgment, has made an exhaustive review of the case laws on this point and has come to that conclusion. In that case the petitioners were gazetted officers serving in the Forest Department of the State of Jammu and Kashmir. They felt aggrieved by the selection made from among the officers serving in the said department to the Indian Forest Service which was constituted in 1966 under Section 3 (i) of the All India Services Act, 1951. The order passed by the selecting authority was quashed. It is no longer open, therefore, now to contend that the matter of the claim of an officer to appointment by promotion when the same has not been made in accordance with the rules and procedure, and even in regard to the basic concept of justice, cannot have any value. The following quotation was made from the judgment of Shah, J., in State of Orissa v. Dr. (Miss) Binapani Dei, (1967) 2 SCR 625 = (AIR 1967 SC 1269) :--
"We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice....."
13. I have dealt with the argument of learned Counsel for the opposite party respondents on the footing that Rule 2 (g) is to be construed with Rule 3 (3) (b) and that the scope of the word 'declaration' in Rule 2 (g) is to be gathered with reference to what is laid down in the latter rule. The argument, however, may also be considered in the light of the submission made by learned Counsel for the opposite party respondents in so far as the contention has been that Rule 2 (g) refers only to the post declared as equivalent to a cadre post as contemplated in Rule 9 of the pay Rules and that the declaration must, in any case, be only prospective. It is urged that Rule 3 (3) (b) which relates to the comparative seniority of a direct recruit with reference to a promoted officer, should be construed independently of Rule 2 (g). It appears, however, that even on such a construction the conclusion is not altered. The comparative seniority provision gives the benefit of continuous officiation to a promoted officer with effect from the date prior to the inclusion of his name in the select list if such period of officiation is approved by the Central Government in consultation with the Commission, inasmuch as such officiation shall be deemed to be offieiation in a senior post. Senior post is defined in Rule 2 (g) which is different from the cadre post; and any post declared as equivalent to a cadre post shall also be treated as a senior post in terms of this rule. Let us take the definition of senior post as incorporated in this rule. The proviso lays down that even where there is no actual continuous officiation in such a senior post, i. e., in a cadre post or in a post declared equivalent thereto by the State Government, nevertheless, the holding of any post by a promoted officer prior to the inclusion of his name in the select list shall amount to his holding a senior post, provided officiation in such a post is approved by the Central Government in consultation with the Commission. To my mind, it is an additional privilege granted to a promoted officer that whenever he has officiated in a post involving discharge of duties of equal responsibility with the senior post independent of all other considerations if the Central Government is satisfied that the post as such is of equal status in consultation with the Public Service Commission, such officiation shall inure for the benefit of the promoted officer irrespective of whether it is, or can be, a declared post as contemplated in Rule 2 (g). The crux in the matter of allowing the benefit of continuous officiation for the purpose of seniority may not be any kind of declaration at all involving the difficulty as to prospective or retrospective declaration, but the mere recognition by the Central Government of the status of the post in consultation with the Public Service Commission, (sic) and there is no time-limit as to when such approval is granted, as the proviso does not lay down any point of time at which such approval is to be extended by the Central Government. The word 'deemed' in itself postulates recognition of a past fact almost on the same footing as 'declaration' but, if anything, it is even freer from ambiguity than the word 'declared'. Oxford Concise Dictionary puts one of the meanings of the word 'deem' as 'as if it were' which means that although it was not so there before in fact; the authority having the power to grant recognition will do it as such and then it will be considered to be on the same footing. In Stroud's Judicial Dictionary (Volume I-3rd Edition) it is said at page 754 "when a thing is to be "deemed" something else, it is to be treated as that something else with the attendant consequen-
ces'. It is not necessary to refer to the various contexts in which there are very nice sets of meaning of this word. It is sufficient to state as is mentioned in Words and Phrases (Volume 11, page 481) that the word, 'deemed' as used in an Act providing that after the death of the husband the wife's legal settlement shall be "deemed" to be the place where he was last legally settled, it is equivalent to the expression "shall be taken to be". Hence, in this context also, if the Central Government gives its approval to a promoted officer officiating continuously on a certain post as a senior post, it shall be taken to be officiation in a senior post. It is true, no doubt, that such approval must be given in a bona fide manner as, in fact, was done in the present case, because Shri M.S. Rao brought to the notice of the Central Government the circumstances in which a proposal was made for fixing the year of allotment with reference to the post which these officers were holding and also with reference to the letter of Shri Prabhakar Rao and Appendix 6, Rule 14, of the Bihar Service Code, pointing out that the officers for whom the year of allotment was to be fixed concerning their officiation on the 28th of December, 1954, were treated to be in the current waiting list of District Magistrates. Reference may be made in this connection to paragraph 12 in Shri M. S. Rao's letter, the relevant portion of which has been quoted at page 19 of this judgment. Even in the remarks column of Annexure A (at page 30 of the paper book in C. W. J. C. No. 853/68-Volume III), which has been quoted at page 9 of this judgment, Shri M.S. Rao pointedly brought to the notice of the Central Government the contents of the letter of Shri Prabhakar Rao, No. 5/27/55 AIS(i), dated the 14th August, 1956 in which the suggestion was that the period of continuous officiation of these officers should be recognised with effect from the date of occurrence of the substantive vacancies, but the recommendation of the Bihar Government was that since these officers were included in the ad hoc list of 1954, they should be held to be in officiation in view of the provisions of the Bihar Service Code. Shri Narayanswamy's letter was addressed to the Government of Bihar in answer to this and there is no question, therefore, of any kind of misrepresentation whatsoever. The stand in the counter-affidavit of the Union of India that there was misconception caused by the letter of the Government of India is without any substance, and that is why in the impugned letter dated the 20th September, 1967, of the Government of India, there is no reference to any misconception or misrepresentation but only to what the Government of India regarded as an error on its part in giving its approval to the proposal of the Government of Bihar which amounted to a retrospective declaration of the posts held by the petitioners as senior posts. If, therefore, the conclusion be, even on the assumption of the correctness of the argument on behalf of the Union of India, that Rule 2 (g) is not applicable to the case of the promoted officers, then it is not that prior officiation cannot be equated with officiation in a senior post but that the matter is governed entirely by the second proviso to Rule 3 (3) (b), and in that case, the question of declaration does not arise and it is only the acknowledgment of such officiation by the Central Government deeming such officiation to be an officiation in a senior post that will confer the benefit on the promoted officer. The entire basis of the objection in the revised order of the Government of India, therefore, based on retrospectivity completely disappears. It has rightly been urged by Mr. Daphtary, on behalf of the promoted officers, that the question of any misrepresentation or any misconception being caused by the letter of the Chief Secretary of Bihar, Shri M.S. Rao, is wholly irrelevant and, as has been held in S.K. Ghosh v. Union of India, AIR 1968 SC 1385, the revision of that order by the Central Government is arbitrary and liable to be struck down as violating Article 16 of the Constitution.
14. It has further been urged that Rule 2 (g) is intended only to cover continuous officiation in a senior post or declared equivalent to it only in respect of direct recruits and does not cover the case of a promoted officer. In the case of the latter, he must hold directly a senior cadre post such as the post of a District Magistrate or any other post included in the cadre list approved by the Central Government as the post included in the I. A. S. cadre for every State must have the approval of the Central Government. To ,my mind, this contention is, examined on its merit, equally fallacious as I have already said in the preceding paragraph. Rule 3 (3) (b) refers to comparative seniority and if the provision in regard to the equivalence were confined only to direct recruits, then the wording of the proviso should have been different. As it stands, it obviously applies to both categories of officers not only holding of senior posts but also of equivalent posts, and the argument must be overruled as being without substance. A single Judge decision of the Calcutta High Court in Arun Ranjan Mukherjee v. Union of India, (1967) 2 Lab LJ 289 (Cal), has, if I may say so with respect, taken the correct view with regard to the scope of Rule 2 (g) and held that it is applicable retrospectively and State Government can say so by mere expression of intention without following any particular form.
15. Yet another consideration in regard to the construction to be put upon the second proviso to Rule 3 (3) (b) is that even if Rule 2 (g) be held to be applicable only to direct recruits in so far as the second part of it regarding equivalence is concerned, as has been contended by learned counsel for the opposite party-respondents and also for the Union of India, then for the purpose of continuous officiation the proviso will have to be read in wider amplitude since the wording of this proviso is that such a promoted officer shall be deemed to have officiated continuously in a senior post. This 'deeming' provision as has been authoritatively recognised by judicial pronouncements as also in books on canons of interpretation is significant, for in that case even where no declaration of senior post is formally made in terms of this proviso where such continuous officiation by a promoted officer prior to the inclusion of his name in the select list is approved by the Central Government in consultation with the Commission, such officiation must be taken to be officiation in a senior post. If the language were, however, that such an officer must have officiated continuously in a senior post prior to the date of his inclusion in the select list etc., if the period of such officiation is approved by the Central Government in consultation with the Commission, then possibly this proviso will be governed entirely by rule Rule 2 (g) and in that case senior post would mean a post included in item one of each Schedule or any post declared equivalent thereto by the State Government concerned. But in view of the fictional recognition given to the holding of a post on account of the use of the word 'deemed', it seems reasonable to hold that a promotee is entitled to get the benefit of continuous officiation for the purpose of seniority even where he has not held a senior post in the formal sense of the term as defined in Rule 2 (g). If the Government of India in consultation with the Public Service Commission would be satisfied about the nature of the post held by a promoted officer, as to the nature of its rank and seniority as being equal to a senior post, the necessity of a formal declaration would be altogether dispensed with as already held and, in that view of the matter, the question of retrospective declaration will not even arise. The stand of the State of Bihar as contained in the letter of Shri S.V. Sohoni appears to me sound. The following passage in this letter is relevant:--
"(c) the use of the word "deemed" in the second proviso of Rule 3 (3) (b) of the Regulation of Seniority Rules is very significant. It seems to confer wide powers on the Central and State Governments for periods to be counted towards continuous officiation even if the officer might not in fact, have held a post which was already a declared 'senior post'. In its legal sense, the word 'deemed' means that something must be assumed to be a fact, whether it may or may not be so. Whenever this word is used in a Statute, whatever act is required to be deemed or taken as true of any person or thing, it must in law, be considered as having already been duly adjudged or established concerning such person or thing accordingly. Accordingly, the use of the word 'deemed' in the second proviso of Rule 3 (3) (b) of the Regulation of Seniority Rules indicates that it was not even necessary to declare the posts held by the abovementioned officers as equivalent to cadre posts under Rule 2 (g) of the Regulation or Seniority Rules."
Thus, the same conclusion is arrived at by a proper construction of the second proviso to Rule 3 (3) (b) as it stands or by reading it in juxtaposition with Rule 2 (g), in which case the contention put forward on behalf of the Union of India and opposite parties 3 to 8 that Rule 2 (g) is applicable only to a post to be declared as equivalent to a cadre post under Pay Rule 9, cannot be regarded as having any force. I may also invite attention to the fact that in the subsequent decision of the Government of India even Pay Rule 9 has been construed otherwise and even a cadre officer can now be deputed to a non-cadre post. This is incorporated as Sub-rule (4) to Rule 9, added on the 22nd of June, 1960, and it stands thus:--
"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 post 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 to a post specified in Schedule III."
This is so even in respect of Clause (i) of Rule 9 upon which learned Counsel for the opposite party have banked in support of their contention of retrospectivity but the argument loses much of its force when it is borne in (mind that--Ed.) there is no provision corresponding to Rule 9 of the Pay Rules, 1954, in respect of a post in the State Civil Service. I am satisfied, therefore, that the approval by the Government of India to the recommendation contained in Shri M.S. Rao's letter of July, 1958, in regard to the continuous officiation of these officers in a senior post with effect from 28-12-54 in respect of the petitioners, must be taken to be the approval of the Government of India duly given consistent with proviso two to Rule 3 (3) (b).
16. It is also contended that Rule 2 (g) cannot legitimately be taken to include, or to have reference to, a post in State Civil Service, because if it were so, it would be ultra vires the powers of the Parliament. Declaration is to be made by the State Government in regard to the rank of a post held by a provincial civil officer whereas this rule has been promulgated by the Central Government affecting the service conditions of officers who do not belong to the Central Service, but belong to the Civil Service of the State. Such a provision by the Central Government in regard to the State Civil Service could not be made either by the Parliament of India or the rule-making authority under the Central Act. The Parliament or the Central Government might do so in regard to the Central Service but to attempt to do so concerning the service conditions of State Civil Service Officers, would be unconstitutional. This contention too appears to me to be without substance. These rules have been made under the power conferred upon the Central Government under Section 3 of the All India Services Act, 1951, as I have stated above, and lays down the principle in regard to the determination of seniority of an officer to be recruited to the All India Service. To argue, therefore, that this Rule by the Rule making authority of the Central Government seeks to affect the service conditions of an officer of the State Civil Service, is altogether incorrect. By this rule, it is intended only to treat certain categories of posts which are not cadre posts as equivalent thereto, so that a senior member of the State Civil Service may not suffer unduly in rank when he is appointed to the Indian Administrative Service in relation to an officer who has been recruited as a result of a competitive examination.
17. It has also been contended that the year of allotment of direct recruits having once been determined under Rule 3 (3) (a), it cannot be altered. It has been argued on behalf of the direct recruits that if the promoted officers are given a year of allotment earlier than the year of allotment of the direct recruits in terms of Rule 3 (3) (b) and the proviso, this would deprive them of their vested right. That right is acquired by virtue of the year of allotment itself. It appears to me, however, that there is no force in this contention either. Rule 3 (3) (a) deals with the year of allotment of a direct recruit as such. Clause (b), however, deals with the comparative seniority. There is no question, therefore, of any vested right to be acquired by any officer because all these rules taken together, which are intended to cover the seniority of officers recruited to the Indian Administrative Service from various sources, also refer to the comparative seniority of the various categories of the officers. It has, however, been contended that the provision of Rule 3 (3) (a) is to be read in conjunction with Rule 4 (3). That rule, so far as it is relevant, provides thus:--
"4. Seniority of officers.-
x x x x x x (3) The seniority of officers appointed to the Service after the commencement of these rules and before the 11th day of April, 1958, who are assigned the same year of allotment shall be in the following order, that is to say-
(i) Officers appointed to the Service on the results of a competitive examination in accordance with Rule 7 of the Recruitment Rules ranked inter se in accordance with Rule 10 of the Indian Administrative Service (Probation) Rules, 1954.;
(ii) officers appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules ranked inter se in the order of the date of their appointment:
xxxxx"
It has been contended that once a particular year of allotment has been assigned to a direct recruit and a promotee also is given the same year of allotment, automatically, all the officers directly appointed will rank senior to those who entered the Service by promotion from the rank of State Civil Service. In my opinion, however, Rule 4 (3) has no such effect. Paragraph 21 itself in Anand Prakash Saksena's case, AIR 1968 SC 751 is relevant on this matter. It states "This contention is devoid of merit. The seniority of direct recruits inter se and pro-motees inter se is fixed by Rule 4. The object of Rule 3 (3) (b) is to fix the seniority of the promotees in relation to the direct recruits". This shows that, in the opinion of their Lordships of the Supreme Court, Rule 4 deals only with inter se ranking of officers of both categories. So far as their comparative seniority is concerned, they refer to Rule 3 (3) (b) alone as being relevant. The argument of learned Counsel for the Union of India and the direct recruits even from this angle cannot be taken to be correct.
18. It has also been urged that, in fact, there was no factual officiation by the promotees in senior-scale posts. Reference in this connection is made to the posts held by the petitioners. In this connection, I may quote here the relevant passage from Shri Sohoni's letter to the Secretary (Services), Ministry of Home Affairs, Government of India, New Delhi (vide Annexure 'E' of the brief in C. W. J. C. No. 853/68, page 99 at 113 Vol. III).
"5. All the promoted officers, except Shri Alam, held the same post or similar posts from a date much earlier than 28th December, 1954, which is the date from which the benefit of continuous officiation has been given to them under the second proviso to Rule 3 (3) (b) of the Regulation of Seniority Rules. Shri S. C. Mishra was appointed as Director of Gram Panchayats on 20th August 1948. This post is now a senior cadre post of the I. A. S. After that, he held the post of Deputy Secretary in the Local Self Govt. Depart, from the 9th October, 1949. On 4th August, 1954, he was appointed to the cadre post of Deputy Secretary in the L. S. G. Department, in addition to his own duties as Chairman of the Patna Improvement Trust. He held this post till 18th March, 1955. Shri S. A. F. Abbas was Development Training Officer in the Administrative Training School on 20th December, 1954. He joined this post on 23rd December, 1954. Be-
fore that, he was Additional Deputy Secretary in the Development Department from 22nd April, 1953, and Secretary to Food Production and Development Commissioner from 13th January, 1950. For about six months in 1953-54, he officiated as Registrar, Co-operative Societies, which is a senior cadre post. The same post of Secretary to the Food Production and Development Commissioner has been converted into that of Deputy Development Commissioner and has since been included in the cadre. Therefore, Shri Abbas can legitimately claim that he held a senior post continuously from 13th January, 1950. Shri R.S. Mandal was appointed as Mayurakshi Resettlement Officer on 5th July, 1949, which was a post in the rank of Additional District Magistrate. He joined as Additional Collector, Santhal Par-ganas, on 3rd November, 1950. In 1952, he was transferred as Deputy Director of Development and Rehabilitation in the Damodar Valley Corporation and succeeded Shri K.S.V. Raman, I. C. S., as Director, Development and Land Acquisition in the Damodar Valley Corporation in August, 1953. which post he held on 28th December, 1954. and continued to bold till June, 1956. Therefore, in his case also, it can be said that he continuously held a senior post from 3rd November, 1950, if not from 5th July, 1949. Shri R.C. Sinha was appointed as Secretary to the Chief Minister on 8th February, 1949. In 1952, the duties and responsibilities of the post of Secretary to the Chief Minister were reappraised and the State Government upgraded the post to the status of Deputy Secretary to Government with effect from 22nd, September, 1952. He held this post on 28th December, 1954, and left it only in 1961.
Thus, while these officers were holding posts equivalent to senior cadre posts from a date much earlier than 28th December, 1954, the benefit of continuous officiation was limited upto 28th December, 1954, only. I may point out that, in a sense, it is arbitrary. This is the date when the list of officers considered suitable for officiating appointment to senior cadre posts in the I. A. S. was approved by the Union Public Service Commission. This list was called the ad hoc list because, at the time it was prepared, the Indian Administrative Service (Appointment by Promotion) Regulations had not come into force, but the Seniority Rules were promulgated on September 9, 1954. The former Regulations were in the draft stage. However, in preparing the list, the same procedure, as was prescribed subsequently in the Regulations, was followed; and the list was prepared on a rigorous test of merit. After the Promotion Regulations were finalished, all these officers were included in the first 'Select List' which became operative on 26th December, 1955. Due to delay in finalisation of the Promotion Regulations, there was delay in the preparation of the "Select List'. The record of service of these officers will show that these officers would have been included in the 'Select List' if the preparation of such a list had been undertaken earlier. Therefore, they have suffered for no fault of theirs and for a circumstance which could have been avoided if the fact of their officiation were reported timely to the Central Government and the Union Public Service Commission. Thus, it has been unfair to limit the benefit of continuous officiation from 28th December, 1954. If the matter were now re-opened, in all fairness, the year of allotment of these officers should be determined on the basis of the actual date on which-they were appointed to the posts intrinsically equivalent to senior cadre posts. If this is done, it will be found that most of the officers held such posts from dates which were earlier than that of continuous officiation of any direct recruit to the I. A. S. in Bihar, and, in that case, their seniority will have to be re-fixed on an ad hoc basis under the first proviso to Rule 3 (3) (b) of the Regulation of Seniority Rules.
6. In view of what has been stated above, the State Government strongly support the prayer contained in the representations filed by the promoted officers affected by the decision of the Government of India, communicated in their letter dated 20 September, 1967. The least that should be done is to revoke this decision and restore the previous year of allotment, and fixed finally in Government of India's letter No. 6/18/56-AIS(II), dated 3rd September, 1968".
The letter of Shri S.V. Sohom, points out the posts which the officers held at the time of their promotion for appointment to Indian Administrative Service as also the date from which the benefit of continuous officiation was allowed to them by the Central Government and how these posts were of equal responsibility with any senior post held by any senior person; and even assuming; that the salary was not the same, it would not make the least difference inasmuch as what equivalence requires is not equality in salary but the nature and the duties involved in it which would make it equal to the senior post. In that view of the matter, even the post of an Additional District Magistrate could well be equated by the State Government to the post of a District Magistrate, as in fact it has been subsequently done, and the ex-cadre post of Deputy Secretary might well be equated to the post of a Deputy Secretary which is a cadre post when the incumbents were already declared to belong to the current list of the District Magistrates. The Government of India was fully justified in approving the officiation of these officers in such posts as officiation in equivalent posts.
19. Learned Counsel has relied upon two decisions in support of his contention. One is the case of S.M. Naqavi v. President of India, ILR 47 Pat 533 = (1968 Lab IC 1426) and another is D.R. Nim v. Union of India, AIR 1967 SC 1301. In the case of S.M. Naqavi, ILR 47 Pat 533 = (1968 Lab 1C 1426) a Division Bench of this court has taken the view that the benefit of continuous officiation is admissible to an officer whose name was included in the ad hoc list, but not to an officer whose name was included only in the "fit for trial list' because such a list was not within the contemplation of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, as the Government of India made clear beyond doubt in the following passage:
"The question whether the officiation in senior posts of the State Civil Service Officers after inclusion of their names in the 'fit for trial list' should or should not be taken into account for the purpose of seniority, on their subsequent appointment to the Indian Administrative Service, has been engaging the attention of the Government. As the Government are aware, the Indian Administrative Service (Appointment by Promotion) Regulations do not provide for the preparation of any such 'fit for trial' list. Such a list has been defined merely to enable the State Government to try out a few officers irrespective of their seniority with a view to test their suitability for senior posts, and is intended only to avoid specific references to the Union Public Service Commission for casual short term appointments of the State Civil Service officers to senior Indian Administrative Service posts. The Union Public Service Commission, who were consulted in this respect, have advised that any officiation of the State Civil Service Officers included in the 'fit for trial list' should not be taken into account to determine their seniority in the Indian Administrative Service. The Government of India have accordingly decided that wherever such lists have been prepared in some States, the officiation in the senior posts of the State Civil Service Officers included in the 'fit for trial list' cannot be counted for the purpose of determining the seniority of such officers under the Indian Administrative Service (Regulation of Seniority) Rules, 1954." -- (vide page 540 of S.M. Naqavi's case, ILR 47 Pat 533 = (1968 Lab IC 1426)).
As their Lordships have observed in this judgment, the view of the Central Government in regard, however, to the officers included in the ad hoc list was different as is stated in paragraph 12 of the judgment at page 543 (of ILR 47 Pat) = (at p. 1429 of Lab IC). As explained above, as to why the Government of India took up a different attitude in regard to the officers included in the ad hoc list is not material but definitely there was no misconception in the mind of the Home Ministry of the Central Government in regard to this matter. If the contention of learned Counsel for the Union of India and for opposite party Nos. 3 to 8 be accepted as correct that Rule. 2 (g) does not apply to officers of the State Civil Service, men any difficulty created by lack of formal declaration in regard to the senior posts held by them will completely disappear, as already stated, inasmuch as the second proviso to Rule 3 (3) (b) itself will be deemed to have been carried out in the manner in which the ad hoc list was prepared and approval of the Union Public Servic Commission was granted to it. In the case of D.R. Nim, AIR 1967 SC 1301, a date of continuous officiation was assigned to a police officer who was promoted from U. P. Police Service as a result of a competitive examination held in 1938. He was appointed Superintendent of Police with effect from the 25th of June, 1947. He officiated till he was appointed to the Indian Police Service against the promotion quota of the Indian Police Service cadre of Uttar Pradesh with effect from the 22nd of October, 1955. After the promulgation of the rules and regulations in regard to the determination of seniority of officers appointed by promotion came into force, the seniority of the appellant D.R. Nim also had been determined. He was given a year of allotment by the Central Government which he challenged as arbitrary. The Government of India explained the reasons for assigning him that date, being the 19th of May, 1951, by virtue only of instructions issued vide Shri R.G. Dutt's letter No. 1/18/58-AIS, dated the 22nd of June, 1951. It was held by the Supreme Court that this date was fixed without taking into consideration the period of officiation of the appellant as officiating Superintendent of police with effect from the 25th of June, 1947. Sikri, J., who spoke for the Court, put the point as follows:--
"The above statement of the case of the Government further shows that the date, May 19, 1951, was an artificial and arbitrary date having nothing to do with the application of the first and the second proviso to Rule 3 (3). It appears to us that under the second proviso to Rule 3 (3) the period of officiation of a particular officer has to be considered and approved or disapproved by the Central Government in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a hat -- and that is what it seems to have done in this case -- and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso."
Unlike Nim's case, AIR 1967 SC 1301, the Government of India gave its approval to the recommendation in the letter of Shri M. S. Rao on foot of the ad hoc list accepted by the Union Public Service Commission on the 28th of December, 1954. The names in the ad hoc list were treated by the State Government in terms of Appendix 6, Rule 14, of the Bihar Service Code, as those of officers fit for appointment as District Magistrates. Since the Bihar Government under its own code could draw up such a list -- and this was mentioned in the letter of Shri M.S. Rao and full circumstances also stated as to how all the other officers should get the benefit of the ad hoc list -- when the Government of India gave its approval to the ad hoc list as such, such an approval cannot be held to be arbitrary or erroneous or given under any misconception but based on good reason, and the year of allotment proposed by the State of Bihar was accordingly approved by the Central Government. Nim's case, AIR 1967 SC 1301 therefore, which is relied upon by learned Counsel for the opposite party respondents, appears to me to be an authority in favour of the petitioners that where a date of officiation has been approved by the Government on intelligible basis, this must be upheld as correct, as was done in the present case. If a arbitrary and artificial date were given without considering the circumstances set out in detail in the above letter of the Government of Bihar, the decision in this case might well be cited as an authority in support of the case of the direct recruits. The position being quite different, it appears to me that the crux is where approval has been given taking into consideration all the circumstances of a case which are rational and intelligible, that approval cannot be withdrawn by the Government of India to the prejudice of the interest of the officer affected by such withdrawal.
20. It has also been contended that even assuming that Shri Narayanswamy's letter dated the 3rd September, 1958, be construed as approval of the officiation of the promotees within the second proviso to Rule 3 (3) (b) of the seniority Rules, that approval having been again withdrawn by the Government of India, it is the same as not having been given at all and it could not be challenged. This argument has only to be stated in order to be rejected. If the Government of India be taken to have given a valid approval, as has been contended on behalf of the petitioners and if the petitioners have acquired a right to continue on the post, it would be unintelligible to argue that the same authority could withdraw the approval and jeopardise the interest of the employees in a capricious way. It is as good as saving that if a person is once appointed by the Government, the Government being an appointing authority and having the power to dismiss the Government servant can do so without valid reason. This will be fundamentally opposed to the security of tenure of the Government employee, that once he acquired a right to continue in the post, Government can remove him, at its option. It is, therefore, difficult to understand the contention urged on behalf of the opposite party respondents that if it lay on the part of the Government of India to grant approval, which was done in 1958, the approval can be withdrawn in 1967. It must be taken as well established that the validity of the approval of 1958, if at all, may be challenged; but once it is found that it was a valid approval, it would not be open to the Government to withdraw it on the ground that the authority which can grant approval also would be at liberty to withdraw it.
21. It has also been urged that the order of the Central Government is final. To this contention it is urged in reply that if this position be taken at Its face value, then there is more substance in the objection by the petitioners that the order of the Central Government passed in 1958 accepting the date of continuous officiation proposed in Shri M.S. Rao's letter should be taken to be final. No provision is made for appeal against such an order in the Civil Services (Classification, Control and Appeal) Rules and as such the Government of India would have no power to revise it. In any case, it is difficult to support the contention on behalf of the opposite party respondents that the order passed by the Government of India cannot be quashed by this Court. Learned Counsel for the opposite party respondents has relied upon a decision of the Supreme Court in Parry and Co. Ltd. v. Commercial Employees Association, AIR 1952 SC 179 in which it is stated that a writ of certiorari will not lie merely on the ground that a decision by an inferior Tribunal with jurisdiction is erroneous. That, however, was a decision of a quasi-judicial authority under the provisions of Section 51 of the Bihar Shops and Establishments Act. But it may be noticed that even in that judgment, it was conceded by Mr. Issacs that in spite of such a statutory provision the superior Court is not deprived of its power to issue a writ although it can do so only on the ground of manifest defect of jurisdiction or of a manifest fraud of the party procuring it. The decision of the Government of India is not the decision of a Tribunal and, in that view of the matter, the case is clearly distinguishable.
22. It has also been urged that the present writ petition is barred on the principle of constructive res judicata and judicial propriety. Reference is made in this connection to the order passed by this Court, to which I was a party, in C. W. J. C. No. 787 of 1967. This was a petition filed by some of the direct recruits (Shri K.A. Ramasubramaniam, Shri S.D. Prasad and Shri P.S. Appu) for a writ of mandamus directing the State of Bihar to give effect to the decision of the Government of India revising the seniority list of the petitioners vis-a-vis the opposite party respondents. It is true, no doubt, that when the State of Bihar expressed its willingness to implement the decision of the Government or India, the writ application had to be allowed. Learned Counsel for the opposite party respondents has urged that the State was bound, therefore, by its own agreement to abide by the decision of the Government of India. The promoted officers filed an application in that case for being impleaded as party on the ground that their interest was being adversely affected by the stand of the State of Bihar and as such they sought an opportunity to oppose the application of the direct recruits. Their prayer was refused. It is urged, however, on behalf of the petitioners that this cannot operate as res judicata. In order to understand the contention, the following paragraph of the order passed by this Court may be quoted:--
"In the circumstances, the writ application should stand allowed as the opposite party to this application, the State of Bihar, has accepted the point of view of the petitioners and the order of the Government of India will be implemented. There is opposition to this on behalf of the promoted officers affected by this order. There is an application filed by them to the effect that they should be joined as opposite party to this application and matter may be considered on merit in their presence. The admission of the claim of the petitioners by the State of Bihar should not be taken to be sufficient to dispose of this application because, in the very nature of it, this application involves some prejudice to the interest of the promoted officers which is the direct consequence of the admission made by the State of Bihar.
Having heard learned Counsel for the parties at some length, the petitioners insisting upon the application being allowed in view of the stand of the State of Bihar and Mr. Balbhadra Prasad Singh for the promoted officers opposing it on the ground of the prejudice caused to the promoted officers, it appears to us that this application as it is at present constituted has to be allowed. We are not prepared at this stage to add the promoted officers as parties to this application and their application is, therefore, rejected. The present application, however, stands allowed.
This order is, however, without prejudice to the right of the promoted officers to agitate this question, if they are advised to do so, in an application properly framed for that purpose.
It has beeu contended by Mr. Basudeva Prasad for the opposite party respondents that this would operate as res judicata on the authority of the Supreme Court in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1. That was a case in which a reporter attached to the English Weekly "Blitz" wanted to publish a detailed report of the proceedings in the Court which however, Justice Tarkunde of the Bombay High Court disallowed on a grievance made by one of the witnesses. This was an oral order. The reporter, Naresh Shridhar Mirajkar, felt aggrieved by the order and moved the High Court of Bombay by a writ petition under Article 226 of the Constitution. That petition was, however, dismissed on the ground that the impugned order was a judicial order of the High Court and was not amenable to a writ under Article 226. Mirajkar, however, made an application under Article 32 of the Constitution praying to the Supreme Court for enforcement of a fundamental right under Article 19 (1) (a) and (g) of the Constitution. This was dismissed by the Supreme Court on the ground that since he made an application under Article 226 in the High Court of Bombay and it was dismissed, the proper remedy for the petitioner was to file an appeal against the judgment of the Bombay High Court. The same not having been done, the decision would operate as res judicata and the petitioner could not seek the same remedy in the Supreme Court by way of an application under Article 32 of the Constitution, It is true that their Lordships followed that course on the ground that the order passed by the learned Judge, Justice Tarkunde, was not collateral in the sense that the jurisdiction of the Judge to pass that order could be challenged otherwise than by a proceeding in appeal. Mr. Basudeva Prasad has contended that although the petitioner, Mirajkar, in that case was not directly a party to the proceedings before the learned Judge on the criminal side, yet an order passed against him was held to be conclusive. Likewise, the petitioners in the present case, although not parties to the above writ application (C. W. J. C. No. 787 of 1967), must be held to be affected by this order of the Court refusing to make them party. They should have gone up in appeal to the Supreme Court against that order and failing that they must be bound by that order. In my opinion, however, the contention is absolutely devoid of force. It is true that the prayer of the petitioners to be im-pleaded as parties to that application was rejected but, in the first place, they were no parties to that application and as such they would not be bound by that order and, in the second place, it is clearly stated in the order itself that the application was being allowed without prejudice to the rigbt of the petitioners, which means that they would be at liberty to agitate the question in an independent application to be filed by them. It is well-known principle of res judicata that where a court keeps an issue open giving opportunity to the parties to re-agitate the question, it does not come within the principle of res indicata at all, because this implies an order of the Court not to decide a point where the Court directly leaves open an issue to be agitated in a future proceeding. The contention, therefore, of Mr. Basudeva Prasad must be rejected. Learned Counsel has also referred to Halsbury's Laws of England, volume 22 (third Edition), p. 780, Articles 1660 and 1661. They, however, deal with conclusiveness of judgments and merger of cause of action in judgment which are general principles and have no bearing upon the point raised in the instance case.
23. It has further been contended that no writ can issue to perpetuate an illegality. In my opinion, since I have already held that no illegality was committed by the Gov-
ernment of India in granting approval to the date of officiation of the petitioners in senior posts or in posts equivalent to senior posts for the purpose of seniority, the withdrawal thereof by a subsequent deed would be an illegality and there is no reason why the same should not be quashed by a writ of certiorari.
24. It has been contended that certiorari. cannot be issued to quash the order of the Central Government because the interpretation put by the Central Government on Rules 2 (g) and 3 cannot be characterised as perverse. The view taken by the Central Government, if anything, is at least plausible. Reference has been made in support of this contention to the case of Principal, Patna College, Patna v. Kalyan Srinivas Raman, AIR 1966 SC 707. That was a case where an order of the Vice-Chancellor in regard to the University Regulation concerning the percentage of a candidate was quashed by the High Court, but the Supreme Court set aside that order on the ground that merely because the construction put by the High Court on the Regulation appeared to it to be more reasonable than the construction put upon it by the Vice-Chancellor would not justify quashing of the order. That, however, was a case where there was considerable ambiguity in the Regulation concerned and the various Articles of the Regulation were examined to come to that conclusion. Unlike that case, the petitioners had an order passed in their favour by the Central Government fixing the seniority in September 1958 and they held high posts under the Government by virtue of such seniority, but, as a result of the revised order, they would loss their seniority and would have to revert to lower posts after nine years. Apart from the propriety of the course adopted by the Central Government, in such circumstances, this would be a fit case in which if the High Court is satisfied about the error in the order of the revision passed by the Government of India, to quash it, and not that no certiorari could issue in this case. Every canon of justice in the present circumstances would be attracted in favour of the petitioners and it cannot be reasonably argued that no certiorari can issue in this case on the authority of the case of a student seeking admission to an examination on the interpretation of an ambiguous Rule in respect of which the interpretation of the Vice-Chancellor, being equally plausible, was upheld by the Supreme Court. Moreover, the present case is not of the type dealt with by their Lordships of the Supreme Court, It is not a simple case but consideration of a number of rules and regulations is involved and, if anything, according to the petitioners, the second proviso to Rule 3 (3) (b) is clear enough and the interpretation sought to be put upon it on behalf of the petitioners was accepted by the Government of India after mature consideration as all the relevant factors in regard to the officiation by the petitioners were set out in the letter of Shri M.S. Rao, which was accepted by the Central Government.
25. I may also clarify the position in regard to the preparation of the ad hoc list which received the approval of the Union Public Service Commission on the 28th of December, 1954. I have already said that although the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, came into force in 1955 (6th June, 1955), this was already in a draft form well known to the Central Government as also the Governments of the various States and the selection committee was appointed in terms of Regulation 3 of these Regulations. Regulation 4 deals with the conditions of eligibility for promotion and regulation 5 provides for preparation of a list of suitable officers, which was done in this case in September 1954. Regulation 6 provides for consultation with the Commission which, in this case, was done, as the list prepared by the committee presided over by the Chairman of the Union Public Service Commission was submitted to the Public Service Commission as spoken of in Regulation 6, and the Commission gave its approval duly on the 28th of December, 1954. It is true, no doubt, that the select list was formally prepared only after these Regulations were actually made and promulgated in a formal manner, but the entire procedure prescribed in these Regulations has been followed. The contention, therefore, that there was no consultation with the Public Service Commission, as is sought to be denied in the counter-affidavit by the Union of India, is misconceived. The confusion has been caused because these Regulations came into existence in 1955, but what was required to be done under the provisions of these Regulations, in fact, had been done in 1954, exactly in the manner contemplated in these Regulations and, in that view of the matter, the requirement of the second proviso to Rule 3 (3) (b) is complied with and the petitioners must be deemed to have officiated continuously in a senior post approved by the Central Government in consultation with the Public Service Commission. The Government of India was, obviously, aware of this position and that probably explains why the reason assigned in the final letter of the Government of India, dated the 20th September, 1967, which is sought to be quashed, has not referred to non-consultation with the Union Public Service Commission but merely to the defect that no declaration could be made by the State Government of treating any post which is not a cadre post as equivalent thereto with retrospective effect, which is supposed to have been done in the letter sent to the Account-ant-General, Bihar, in respect of the petitioners in Annexure D series to the counter-affidavit by opposite party Nos. 3 to 8 (vide page 37 of the paper book in C. W. J. C. No. 853/68-Volume III). In my opin-
ion, this erroneous conception on the part of Home Ministry of the Union of India has led to the withdrawal of the approval granted nine years before to the recommendation contained in the letter of Shri M.S. Rao. It is clear that there are two shields in this case on which the petitioners may rely in support of their case. One is, that the statement contained in the letter of Shri M.S. Rao regarding the nature of the posts held by the petitioners in itself should be deemed to be a declaration inasmuch as no formal act is to be done to enable the State Government to treat a particular kind of post as a senior post, if Rule 2 (g) is interpreted in a comprehensive manner to include not only 'declaration' under Pay Rule 9 but, further, the declaration to be made by the State Government in regard to a post under its control. But, as I have already said, even leaving this matter out of consideration, the second shield on which the petitioners can rely is the second proviso to Rule 3 (3) (b) which uses not only a word similar in import as 'declare' but of a clearer character by using the word 'deem', which has been recognised in the cases referred to earlier as also in the following cases: Muller v. Dalgety & Co., Ltd., (1909) 9 CLR 693 at p. 696, Re Rogers & Mc.Far-land, (1909) 19 OLR 022 at p. 631 and R. v. Norfolk County Council, (1891) 60 LJQB S79 at p. 380.
In Muller's case, (1909) 9 CLR 693 per Griffith, C. J.-
"The word 'deemed' ..... is more commonly used for the purpose of creating ....
a 'statutory fiction' ..... that is, for the purpose of extending the meaning of some term to a subject-matter which it does not properly designate...." In Re Rogers and Mc. Farland, Riddell, J. held-- "It would, I think, be quite impossible for us, so far as the authorities go, to hold that 'deemed' means anything less than 'adjudged' or 'conclusively considered' for the purposes of legislation". In (1891) 60 LJQB 379, Cave, J. observed-- "Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless.... .it is to be deemed to be that thing,"
26. Another feature of some importance in support of the contention raised in Shri Sohoni's letter (annexure E, page 99 of the brief in C. W. J. C. No. 853/68-Volume III) with regard to Rule 3 (3) (b), that will act as the second and independent shield apart from Rule 2 (g), is that under Rule 2 (g) what is defined is a senior post, which is a cadre post included in item 1 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 or any post declared equivalent thereto by the State Government concerned. How-
ever, so far as the second proviso is concerned, reference is not made to a post to be held by such an officer, but privilege is conferred upon the officer. The Central point in Rule 2 (g) is the 'post' but the central point in the second proviso is the 'officer concerned', and it is said that if an officer has officiated continuously in a post, it shall be deemed to be a senior post if such officiation prior to the date of the inclusion of his name in the select list is approved by the Central Government in consultation with the Commission. The question of any declaration is completely ruled out so far as the 'deeming' provision under this proviso is concerned. I may reiterate that where the post held by such an officer is not a senior post in terms of Rule 2 (g), i. e., not declared as such, but nevertheless if the Central Government is satisfied that it is a post of a character which should give the officer concerned the benefit of continuous officiation for the purpose of seniority, in consultation with the Commission, such a post shall be taken to be a senior post in the eye of law.
In such a case the question of declaration of any kind becomes redundant; and if that be so, the entire basis of the reasoning in the letter of the Government of India, dated the 20th September, 1967 (annexure 1, at page 19 of the brief in C. W. J. C. No. 853 of 1968, Volume III), loses all its force. It is a pure question of interpretation of this Rule and since such an act is of a quasi-judicial character, it has got to be quashed as an invalid order and, more so, because the effect of it is to put the petitioners in a rank much lower than what they have enjoyed for at least nine years prior to the order of reversion to a different lower rank. Hence, this is a fit case for issue of a writ of certiorari to quash the subsequent order of the Central Government.
27. The argument in regard to the scope of Rule 2 (g) bearing on the scope of the term "declaration' and Rule 3 (3) (b) and proviso thereof has been reiterated as learned counsel for the Union of India and for Respondents Nos. 3 to 14 have urged it with slightly different shades. Since the applications are being allowed on the general ground of invalidity of the order of the Government of India revoking the approval given to the seniority of the promoted officers in 1958, it is not necessary to set out in detail the specific facts of each case.
28. The applications are thus allowed. The order of the Government of India dated the 20th of September, 1967 is quashed and it is directed that the petitioners must continue to hold rank as assigned to them in 1958. There will be no order as to costs.
U.N. Sinha, J.
29. I have perused the judgment prepared by the learned Chief Justice and I agree that all the writ applications should be allowed and that the order of the Central Government dated the 20th September, 1967, be quashed by a writ of certiorari. I shall mention the salient features of these writ applications and my conclusions thereon.
30. There are seven petitioners in these six writ applications as follows:--
C. W. J. C. 853/68 -- Sri Syed Abul Faz-
lul Abbas and Sri Ram Sewak Mandal.
C. W. J. C. 854/68 -- Sri Ram Chandra Sinha.
C. W. J. C. 877/68 -- Sri Samir Kumar Ghosh.
C. W. J. C. 878/68 -- Sri Satish Chandra Mishra.
C. W. J. C. 879/68 -- Sri Smheshwar Sahay. C. W. J. C. 880/68 -- Sri Ramanand Sinha.
They were promoted to the Indian Administrative Service from the Bihar State Civil Service in the years 1955 and 1956 as follows :--
Names of officers.
Date of promotion.
1.
Sri Satish Chandra Mishra 26-12-1955
2. Sri Syed Abul Fazlul Abbas 26-12-1955
3. Sri Ram Sewak Mandal 26-12-1955
4. Sri Sinheshwar Sahay 26-9-1956
5. Sri Ram Chandra Sinha 17-10-1956
6. Sri Ramanand Sinha 17-10-1956
7. Sri Samir Kumar Ghosh 17-10-1956.
In substance, the grievance of the petitioners is that their year of allotment [given under Rule 3 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954] was varied by the Central Government by an order dated the 20the September, 1967, with the consequence that all of them have come down in the gradation list [prepared under Rule 6 of the said Rules] of the members of the Indian Administrative Service so far as this State is concerned. These Rules had come into effect from the 8th September, 1954.
31. The grievance of the petitioners is based on the fact, that, by an order dated the 3rd September, 1958, the Central Government had given a more advantageous year of allotment to the petitioners, with the result that they were much higher up in the gradation list. By that order all the seven petitioners had been allotted the year 1948 and had been placed below Sri B.B. Srivastava, I. A. S., who was a direct recruit of the year 1948, By the latter order passed in 1967, the petitioners of C. W. J. C. 853/ 68, 878/68 and 879/68 have been re-allotted the year 1950 and have been placed below Sri S.D. Prasad, a direct recruit of the year 1950 and above Sri P.S. Appu, a direct recruit of the year 1951. The petitioners of C. W. J. C. 854/68, 877/68 and 880/68 have been re-allotted the year 1952 and have been placed below Sri K.K. Srivastava, a direct recruit of the year 1952, and above Sri Rule B. Lal, a special recruit of the year 1952. When the petitioners had been allotted the year 1948 earlier, all of them were much higher than Sri S. D. Prasad in the gradation list. The earlier order of the Central Government of the year 1958 was based on the recommendation of the Government of Bihar made on the 9th July, 1958. The letter from the Government of Bihar to the Government of India had been written by Sri M.S. Rao, the then Chief Secretary to the Government of Bihar, Appointment Department, and I shall henceforth refer to this letter as Shri Rao's letter. The letter in reply from the Government of India to the Government of Bihar was written by Sri S. Narayanswamy, Deputy Secretary to the Government of India, Ministry of Home Affairs, and I shall refer to this letter as Sri Narayanswami's letter. It will be necessary to quote the relevant portions from the letter of Sri Rao. After mentioning the names of all the petitioners in Paragraph 9 of his letter Sri Rao had mentioned in the same paragraph as follows:--
"As all these officers started continuous officiation in the senior scale after 15th December, 1953 their year of allotment is to be determined under Rule 3 (3) (b) of the I. A. S. (Regulation of Seniority) Rules, 1954. The first proviso to Rule 3 (3) (b) will not apply to these officers."
Thereafter Sri Rao stated as follows in Paragraphs 10 and 11:--
"10. The Government of India have already recognised the period of officiation in senior posts of some of these officers, the details of which are given in Annexures 'A' to this letter. For the reasons given below the State Government proposed to make certain alterations noted in Column 5 of An-nexure 'A' in the dates of commencement of continuous officiation of some of officers.
11. When a State Civil Service Officer's name is included in the Select List prepared under Regulation 7 of the I. A. S. (Appointment by Promotion) Regulations, 1955, and he is appointed on a particular date to a cadre post or an equivalent post in accordance with Rule 9 of the I. A. S. (Recruitment) Rules, 1954, his officiation in senior posts for purposes of the I. A. S. (Regulation of Seniority) Rules begins from that date."
Referring to Annexure B of his letter Sri Rao stated as follows:--
"Annexure 'B' to this letter gives a complete gradation list of the officers of the State I. A. S. Cadre who are employed in posts in the senior scale worked out according to the principles recommended by the State Government in the earlier paragraphs. The Government of India are requested to notify the gradation list accordingly."
With respect to the petitioner of C. W. J. G. No. 854 of 1968, Sri Ram Chandra Sinha, a specific reference was made by Sri Rao in his letter in the following words:--
"On a straightforward application of the provision in the Bihar Service Code, those officers who were holding posts of Deputy Secretaries to Government on the relevant dates get the benefit. But where a junior officer was a Deputy Secretary and got the benefit of the Rule, the State Government have decided that it would be appropriate to allow the benefit to officers higher in the list even though they were not actually Deputy Secretaries to Government. One such officer is Shri Ram Chandra Sinha who has all along been Secretary to the Chief Minister. And another is Shri Rash Bihari Lal, who has been Director of Public Relations, These two posts are not inferior in duties and responsibilities to a post of Deputy Secretary to Government. Two other officers, Shri Anwar Karini and Shri S.M. Naqvi were holding posts of Additional Collectors. In this state, State Civil Service Officers of A. D. M.'s rank are appointed Additional Collectors or Deputy Secretaries to Government,"
It was on this letter that the Central Government had given the year of allotment to all the petitioners in 1958. The impugned re-allotment appears to have been made on the representation made by three of the respondents in these cases, who are Sri K.A. Ramasubrarnanium, Sri S.D. Prasad and Sri P.S. Appu. In the letter of the Central Government sent to the Government of Bihar dated the 20th September, 1967, the date of appointment of the petitioners to the Indian Administrative Service, the date of their commencement of continuous officiation in the senior posts other than those declared equivalent to cadre posts and the relevant date for determining their seniority were given as follows:--
Date of appointment to I. A. S. Date of commencement of continuous officiation in senior posts other than those declared equivalent to cadre posts retrospectively.
Relevant date for determining seniority.
1.
Shri S. C. Mishra ...
26-12-1955 23-7-1956 26-12-1955
2. Shri S. A. F. Abbas ...
26-12-1955 27-1-1956 26-12-1955
3. Shri R. S. Mandal ...
26-l2-1955 24-9-1956 26-12-1955
4. ...
...
...
...
...
5. ...
...
...
...
...
6. ...
...
...
...
7. Shri S. Sahay ...
26-9-1955 86-8-1956 26-9-1955
8. Shri Ramanand Sinha ...
17-10-1956 20-7-1958 17-10-1956
10. Shri B. C. Sinha ...
17-10-1956 14-1-1957 17-10-1956
11. Shri S. K. Ghosh ...
17-10-1956 4-12-1956 17-10-1956
12. ...
...
...
...
[The date of appointment of Sri S. Sahay (Sri Sinheshwar Sahay) to the Indian Administrative service should be 26th September, 1956 and not 26th September, 1955].
32. In order to appreciate the contentions raised in this Court as to how the Central Government had made a change in the year of allotment, it will be necessary to quote a letter sent from the Central Government to the Government of Bihar on the 28th August, 1968. The letter was sent by Sri R.D. Thappar, Joint Secretary to the Government of India, Ministry of Home Affairs to Sri S.V. Sohoni, Chief Secretary to the Government of Bihar. It stated as follows:--
"Dear Shri Sohoni, Please refer to your D. O. letter No. 37/ C. S. (R) dated 18-3-68 to Sri Prasad forwarding views of the State Government on the representations of Sri S.C. Mishra and other promoted officers against the decision of the Govt. of India communicated with this Ministry's letter D/- 26-5-64 -- AIS (II) dated 20-9-67.
2. These representations and views of the State Government have been examined carefully. We have also had the benefit of the opinion of the Solicitor-General on the various issues arising out of this case. We have been advised categorically that the State Government is not competent to declare as equivalent to a senior post in the cadre retrospectively and for purposes of determining seniority under the second proviso to Rule 3 (3) (b) of the IAS (Regulation of Seniority) Rules 1954 officiation in the senior post declared as equivalent by the State Government requires approval of the Central Government and U. P. S. C. before it can count on 'continuous officiation'. In view of this opinion, the Government of India do not find any reason to alter the decision taken in their letter dated 20-9-67. They therefore reject the representations of Sri S.C. Mishra and other promoted officers who may be informed accordingly.
Yours sincerely, Sd. R.D. Thapar."
It appears that this letter had been sent from the Central Government on the representations made by relevant rules from the Indian Administrative Service (Regulation of Seniority) Rules, 1954 may now be quoted. Rule 2 (g) of the Rules reads as follows:--
"2. Definitions -- In these rules, unless the context otherwise requires-
(g) 'Senior post' means a post included under Item I of each Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 framed under Sub-rule (1) of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954, or any post declared equivalent thereto by the State Government concerned;"
[The definition of 'Senior post' has undergone many changes, but according to the learned counsel for all the parties, the definition given above will govern these cases.] Rule 3 of the Rules, so far as it is applicable, is quoted below:--
"3. Assignment of year of allotment. --(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule.
(2) ....
(3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be-
(a) ....
(b) where the officer is appointed to the service by promotion in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former.
Provided that the year of allotment of an officer appointed to the service in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service in accordance with Rule 7 of those Rules so started officiating, shall be determined ad hoc by the Central Government in consultation with the State Government concerned.
Provided further that an officer appointed to the Service after the commencement of these rules in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Administrative Service (Appointment by Promotion) Regulations framed under Sub-
rule (1) of Rule 8 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission."
33. At this stage a few facts have to be mentioned from the writ application filed by Sri Ram Chandra Sinha in C. W. J. C. 854 of 1968, as Sri Daphtary has based some argument on these facts. It is stated in paragraph 40 of the application that this petitioner had received Annexure I, dated the 25th September, 1967, which had mentioned, amongst others, that Sri Ram Chandra Sinha had been allotted the year 1952 and that the petitioner had written to the Chief Secretary, Bihar, on the 6th January, 1968 to take up the matter with the Government of India. On the 10th September, 1968 the Chief Secretary of Bihar had informed the petitioner that the Government of India had sent the letter dated the 28th August, 1968, which has been quoted above (from Sri R.D. Thapar to Sri S.V. Sohoni). The petitioner has stated in paragraph 43 of his application that on the 11th September, 1968 he had sent a letter to the Chief Secretary, Bihar, requesting him to furnish copies of the following papers:-- (a) letter of the Government of India dated the 20th September, 1967, and (b) documents on the basis of which seniority of the petitioner was fixed in the year 1958 and the documents relied upon for changing the decision in 1967. According to the petitioner, no reply was sent to this letter nor has he been given the papers asked for.
34. The first contention raised by Sri C.K. Daphtary is that after his client, Sri Ram Chandra Sinha had been allotted the year 1948, by the Central Government, acting under the appropriate rules, this allotment should not have been changed by the Central Government without giving an opportunity to his client to show that the first allotment should not have been varied. It is contended that there had been a violation of natural justice in the procedure adopted by the Central Government. Sri Daphtary has argued that if the Central Government had proposed to reopen the question of allotment under the Regulation of Seniority Rules, his client may have shown that he was entitled to a year of allotment even earlier than 1948. Our attention has been drawn to paragraph 44 of Sri Ram Chandra Sinha's writ application, where it has been mentioned that the seniority of the petitioner has to be fixed under the first proviso to Rule 3 (3) (b) and not under the second proviso, and, therefore, consultation with the Union Public Service Commission was not necessary in this case. Whatever may be the merit of the last contention raised by Sri Daphtary, his argument that the Central Government should not have made any change in the year of allotment, in 1967, in the circumstances that it was made, is not without force. By re-allotment of the year, Sri Ram Chandra Sinha's seniority has been reduced by twelve places in the gradation list between 1958 and 1967. [As a matter of fact, the seniority of all the petitioners has been affected by the order passed by the Central Government in 1967]. In the counter-affidavit filed on behalf of the Union of India it has been stated in paragraph 23 that in their letter dated the 9th July, 1958, the State Government had not placed all facts in their proper perspective. It is stated further, that acting on the basis of incorrect information, the Government of India had agreed to assign a certain year of allotment in 1958. In this connection, Sri C.B. Agarwala, appearing on behalf of the Union of India, has referred to Sri Rao's letter and has argued that the State Government had never mentioned in this letter that certain posts had been declared earlier as equivalent posts within the meaning of Rule 2 (g), quoted above. It is difficult to accede to the contention raised by Sri Agarwala in this context. Clearly, all aspects of the matter were placed by the State Government before the Central Government, requesting the latter to notify the gradation list according to the recommendation. Paragraph 10 of Sri Rao's letter had stated thus:--
"The second proviso to Rule 3 (3) (b) of the I. A. S. (Regulation of Seniority) Rules 1954, says that an officer promoted to the service after the commencement of these rules shall be deemed to have officiated continuously in a senior post prior to the date of inclusion of his name in the select list prepared in accordance with the requirements of the I. A. S. (Appointment by Promotion) Regulation if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission. The officers whose cases are being considered here were approved by the Central Government, in consultation with the Union Public Service Commission, as being suitable for officiation or for trial in senior posts in the I. A. S. Cadre. Under the provision in the Bihar Service Code, these officers were entitled to pay in the senior I. A. S. scale while holding posts of Deputy Secretaries to Government. A number of posts of Deputy Secretaries in Government are actually held by Cadre officers and several of the posts are included in the State I. A. S. Cadre. The State Government, therefore, recommend that the period during which they were allowed pay in the senior I. A. S. scale under the provision of the Bihar Service Code, after having been included in one of the lists prepared in consultation with the Commission, should be recognized by the Central Government under the second proviso to Rule 3 (3) (b) of the I. A. S. (Regulation of Seniority) Rules."
With respect to Sri Ram Chandra Sinha, in particular, paragraph 17 of Sri Rao's letter stated as follows:--
"It will appear from Annexure 'A' that there are four officers Sarvashri Ram Chandra Sinha, Rash Behari Lal, Anwar Karim and S.M. Naqvi, who have been given this benefit. Sri Ram Chandra Sinha has been holding the post of Secretary to the Chief Minister, and Shri Rash Bihari Lal the post of Director of Public Relations. These two posts are equivalent in duties and responsibilities to a post of Deputy Secretary to Government. Shri Anwar Karim and Shri S.M. Naqvi were holding posts of Additional Collector, of the same rank as A. D. M. when officers below them in the list were already Deputy Secretaries to Government."
So it is difficult to appreciate the argument that the State Government had not given the correct facts or that the question of declaration of equivalence was not brought to the notice of the Central Government in 1958. The main argument of Sri C.B. Agarwala is that declaration, of equivalence under Rule 2 (g) of the Indian Administrative Service (Regulation of Seniority) Rules has to be a deliberate communication or publication of a decision taken by the State Government and that the communication or publication must be with prospective effect and cannot be made retrospectively with effect from an anterior date. In my opinion, whether a declaration of equivalence will be effective retrospectively or not can arise only when steps are taken under Rule 3 of the Regulation of Seniority Rules for the allotment of a year contemplated by it and the effect of a declaration going backwards is inherent in its conception, if facts necessitate retrospective declaration. The declaration of equivalence has to be made under the Regulation of Seniority Rules, which came into force on the 8th September, 1954, and Rule 2 (g) of the Rules mentions that by 'senior post' is meant a post included under item 1 of each schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. The Indian Administrative Service (Fixation of Cadre Strength) Regulations came into force on the 22nd October, 1955 and without any retrospective effect the gap between the 8th September, 1954 and the 22nd October, 1955 could not have been filled up. Furthermore, if Sri C.B. Agarwala's contention, that, a declaration of equivalence under Rule 2 (g) of the Regulation of Seniority Rules had not been made by the State Government earlier than Sri Rao's letter, is valid, then it is difficult to appreciate as to the basis on which the Central Government had in their letter dated the 20th September, 1967 fixed the "relevant date for determining seniority" as the 26th December, 1955 in the case of Sri Satish Chandra Mishra, Sri Syed Abul Fazlul Abbas and Sri Ram Sewak Mandal, 26th September, 1956 in the case of Sri Sinheshwar Sahay, and, 17th October, 1956 in the case of Sri Ramanand Sinha, Sri Ram Chandra Sinha and Sri Samir Kumar Ghosh. As stated earlier, these were the dates on which these officers were substantively promoted to the Indian Administrative Service. Taking one example for this purpose, it may be mentioned that Sri Satish Chandra Mishra was the Chairman of the Patna Improvement Trust on the 26th December, 1955. If he was holding a non-cadre post and a non-declared post, then this could not have been the relevant date for allotting a year under the Regulation of Seniority Rules. The contention put forward on behalf of the direct recruits on the interpretation of Rule 2 (g) of the Indian Administrative Service (Regulation of Seniority) Rules is in variance with the argument of Sri Agarwala. Sri Basudeva Prasad has argued that Rule 2 (g) did not confer any power to make any declaration and he argued that if Rule 2 (g) defines senior posts and for the purpose of defining senior posts mention about the declaration is necessary in regard to non-cadre posts, such a declaration has to be made under some power lying outside the seniority Rules. It is difficult to hold that Sri Basu-deva Prasad's contention is valid to any extent.
The second contention of Sri C.B. Agarwala is that consultation with the Union Public Service Commission contemplated by Rule 3 (3) (b) second proviso of the seniority Rules was mandatory, and as there was no such consultation in 1958, the Central Government was entitled to make a re-allotment in 1967. But, in my opinion, reading the letters written by Sri Rao and Sri Narayanswamy as a whole, it is clear that there was a substantial compliance with this proviso in this context. How the matter had been considered by the Union Public Service Commission was mentioned in detail in paragraphs 12 and 13 of Sri Rao's letter. I may mention that the inclusion of the petitioners' names in the ad hoc list dated the 28th December, 1954 may not have been accepted by the Central Government for the purpose of taking into consideration continuous officiation for the purpose of the second proviso to Rule 3 (3) (b) of the Seniority Rules, without anything more, but, this list had been followed by a Select List of 1955, which had been approved by the Union Public Service Commission on the 26th December, 1955 and the Central Government must have taken this into consideration in accepting the State Government's recommendation made in 1958 that the petitioners' continuous officiation in a senior post should start from the 28th December, 1954, when the ad hoc List had been approved by the Union Public Service Commission. What the Union Public Service Commission had approved on the 28th December, 1954, was known to the Central Government as will appear from the letter from the Union Public Service Commission dated the 28th December, 1954, which is on the record. Sri Narayanswamy's letter dated the 3rd September, 1958 shows that consultation with the Union Public Service Commission or its approval was found necessary in certain matters and in the case of Sri Huda, approval of the Union Public Service Commission was asked to be intimated to enable the Central Government to determine his year of allotment. In the case of Sri Rizvi and Sri Naqvi it had been mentioned that they were in the "Fit for Trial List of 1956 and were included in the Select List of 1956, which was approved by the Commission on the 18th February, 1957, and, therefore, it is quite clear that some distinction was made by the Central Government between the officers who had been included in the ad hoc List of 1954 and those who were included in the "Fit for Trial" list of 1956.
The reason is not far to seek. The ad hoc list in which the names of the petitioners were included was approved by the Union Public Service Commission on the 28th December, 1954, whereas the Indian Administrative Service (Appointment by Promotion) Regulations 1955 had come into effect on the 6th June, 1955, which contemplated lists of suitable persons for promotion. Obviously, for this reason the Central Government had accepted the recommendation of the Union Public Service Commission with respect to the petitioners, made in December, 1954 and followed up by the inclusion in the Select List of December, 1955 and had given the earlier year of allotment to the petitioners in 1958. In my opinion, it was a matter of regret that the Central Government had found it necessary to reconsider its decision in September, 1967. Under Rule 8 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, if any question arises relating to the interpretation of these rules, the matter is required to be referred to the Central Government, who'se decision thereon is taken to be final, and, therefore, when the Central Government had come to a conclusion with respect to the year of allotment, in 1958, it should have adhered to its decision with respect to such an important matter. In my opinion, the reasons advanced in this Court by the Central Government for its decision, given in September, 1967, cannot be accepted to be valid reasons, and, therefore, the petitioners are entitled to the relief claimed by them.
Untwalia, J.
35. I also agree with my Lord the Chief Justice that all the Writ applications should be allowed and the impugned order be quashed by a writ of certiorari. I would, however, like to record my views as hereunder on some of the points involved and canvassed in these cases.
36. Since the order passed in 1958 was an administrative order -- pure and simple, as I am inclined to think, it is difficult to accept the contention that under no circumstances the Central Government can review the order determining seniority of various officers. In the first instance, although in one sense it concerns the persons whose seniority was determined by the order, it cannot be said that the order has got to be made after giving opportunity to all the officers concerned either of being heard or of making representation in writing. At the stage when the seniority inter se was determined of the promoted officers vis-a-vis direct recruits in the year 1958, the stage of exercise of the power in a quasi-judicial way had not reached. Any authority who makes an administrative order must be deemed to have the power to modify, revise or review the order on a proper case being made out or if exigencies of the situation so require. But at the second stage when the order was reviewed in the year 1967, in my opinion, although the character of the order remained administrative, the power had to be exercised quasi-judicially. The earlier order could not be varied without giving an opportunity of representation to the officers against whom it was varied. I would have held that the power so exercised without giving an opportunity to the officers concerned violated the principles of natural justice and the order was liable to be quashed on that ground alone but I do not think it advisable to do so in the present cases. There are two reasons for this. Most of the officers concerned subsequently had made their representations, and the Government of India, on a consideration of the viewpoints presented by them, reiterated its earlier decision made in September, 1967 and rejected their representations. Secondly, the viewpoints of both sides have been thoroughly and elaborately argued before us on merits and, therefore, it is just and proper to decide which of the two orders--one of the year 1958 and the other of 1967--is correct in law on merits.
37. On the 21st of October, 1946 an agreement was entered into between the Government of India and the Governments of the then Provinces regarding the constitution of an Indian Administrative Service to provide officers for the Central Government and the Governments of the various Provinces including Bihar. The strength including both the number and character of posts of the Service was to be as specified in the Schedule appended to the Memorandum of Agreement. The total authorised strength of the Service was 96 for the Province of Bihar, out of which 50 specified posts were senior posts under the Provincial Government and 17 under the Central Government. Recruitment to the Service was to be by direct recruitment or by promotion of the members of the Provincial Civil Service. Direct recruits were to be selected on the results of a competitive examination. Twenty five per cent of the superior posts which, in case of Bihar, came to 17 could be filled up by promotion of the members of the Provincial Civil Service, In the Schedule given at page 55 of the All India Services Manual, 1967 Edition, only 8 posts of Deputy, Joint or Additional Secretaries to Government were shown as senior posts under the Provincial Government. The posts of other such secretaries to the Government were not senior posts; that is to say, all posts of Deputy, Joint or Additional Secretaries were not scheduled as senior posts.
38. In exercise of the powers conferred by Sub-section (2) of Section 241 and Section 247 of the Government of India Act, 1935 and the Agreement aforesaid dated the 21st October, 1946 the Governor-General of India, in consultation with the Provincial Governments, made the Indian Civil Administrative Cadre Rules, 1950. A 'cadre officer' under the said Rules meant an officer belonging to any of the categories specified in Rule 4, the last category of which was of the members of the Indian Administrative Service. A 'cadre post' meant any duty post included in the Schedule. Rule 5 provided that except with the sanction of the Government of India no cadre post could be filled otherwise than by a cadre officer unless in the opinion of the Provincial Government the vacancy was not likely to last more than 3 months or there was no suitable cadre officer available for filling the vacancy, and that if a person other than a cadre officer was appointed to a cadre post for a period exceeding 3 months, the Provincial Government was to report the fact to the Government of India together with the reasons for making such an appointment.
39. The All India Services Act, 1951 (Act LXI of 1951) passed by the Central Parliament came in force on the 29th October, 1951. Section 3 provides that the Central Government may, after consultation with the Governments of the States concerned, make rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Service, which included the Indian Administrative Service. Under Section 4 all rules in force immediately before the commencement of this Act and applicable to an All India Service continued to be in force and were to be deemed to be rules made under this Act. On the 8th September, 1954 came into force the following Rules framed under Act LXI of 1951-
(i) The Indian Administrative Service (Cadre) Rules, 1954, (ii) The Indian Administrative Service (Recruitment) Rules, 1954. (iii) The Indian Administrative Service (Regulation of Seniority) Rules, 1954. (iv) The Indian Administrative Service (Pay) Rules, 1954.
40. On the 6th of June, 1955 came into force the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 made in pursuance of Sub-rule (1) of Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954. The Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 made under Sub-rule (1) of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954 came into force on the 22nd of October, 1955. For discussion of the points at issue, it will be necessary to refer to the relevant provisions of the Rules and Regulations aforesaid. Therefore, for the sake of brevity and convenience, the four Rules hereinafter shall be referred to as the Cadre Rules, Recruitment Rules, Regulation of Seniority Rules and the Pay Rules and the two Regulations will be referred to as Appointment by Promotion Regulations and Fixation of Cadre Strength Regulations.
41. It appears that there have been amendments in the various provisions of the Rules and Regulations from time to time. At all places in my judgment except otherwise indicated reference will be made to those provisions of the Rules and Regulations which were there at the relevant time in the years 1954 to 1956.
42. Appointment by promotion to the Service was made even before coming into force of the Rules and Regulations of 1954 and 1955 in accordance with the Memorandum of Agreement and the previous Rules. Since all the petitioners were appointed to the service in the years 1955 and 1956 their cases will be governed by the Rules and Regulations which had been framed by then. It may, however, be stated here that the original definition of the 'senior post' in Clause (g) of Rule 2 of the Regulation of Seniority Rules of 1954 made reference to a post included under Item 1 of each Schedule to "the Indian Administrative Service (Cadre) Regulations, 1954". Some such Regulation was under contemplation in the year 1954 but finally the Regulation was the Fixation of Cadre Strength Regulations of 1955 effective from 22-104955. An ad hoc list was prepared with the approval of the Union Public Service Commission on 28-12-1954. All these petitioners along with some others were shown in that list as "fit to hold in an officiating capacity, Indian Administrative Service Cadre posts" (vide annexure 3 to the Writ Application in C. W. J. C. 877/68). But that was not the Select List within the meaning of Regulation 7 of the Appointment by Promotion Regulations, 1955. The Select List prepared under Regulation 7 undisputedly was the one which was finally approved by the Union Public Service Commission on 26-12-1955. The names of all the petitioners find place in this List. Sarvashri Mishra, Abbas and Mandal were appointed to the Service on 26-12-1955, Shri Sahay was appointed on 26-9-1956 and Sarvashri Ramanand Sinha, R.C. Sinha and S.K. Ghosh were appointed to the Service on 17-10-1956. All these seven petitioners by the first order of the Government of India were assigned 1948 as the year of allotment which was changed to 1950 in the case of the first three, 1951 in the case of Shri Sahay and 1952 in the case of last three by the impugned order of the Central Government made in 1967. The question in this case in which of the two assignments of the year of allotment to the various petitioners is correct in law.
43. Under Rule 7 of the Recruitment Rules, the direct recruits, respondents 3 to 14, were appointed to the Service through competitive examinations held in the years 1947 to 1951. Under Rule 8 came the petitioners by promotion from the State Civil Service. Rule 11 of the Recruitment Rules provided that all rules corresponding to these rules in force immediately before their commencement stood repealed but any order made or action taken under the repealed rules was to be deemed to have been made Or taken under the corresponding provisions of the Recruitment Rules, 1954. The expression in the various parts of the Regulation of Seniority Rules e. g.-
"An officer appointed in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules"
or "in accordance with Rule 7 of those Rules" has got to be read to mean with the help of Rule 11 of the Recruitment Rules that the said expression not only means appointment in accordance with Rule 8 (1) or Rule 7 of the Recruitment Rules, 1954 but even the appointment so made in accordance with the previous rules repealed by the Recruitment Rules, The matter becomes quite obvious when the language of the provisos to Sub-rule (2) of Rules 3 and 4 is kepi in view. If that were not so, the first part of both the provisos would read with reference to the dates as follows-
"Provided that where the year of allotment or the seniority of an officer appointed after 8-9-54 has not been determined prior to or before 8-9-54."
The expression will be meaningless. But if the said provisos are read with the help of Rule 11 of the Recruitment Rules, as I have indicated above, it would mean that where the year of allotment of an officer appointed in accordance with the rules which existed before 8-9-54 has not been determined prior to 8-9-54, his year of allotment was to be determined in accordance with the provision in Clause (b) of Sub-rule (3) of Rule 3. Respondents 3 to 14, the direct recruits, un-disputedly were all appointed to the Service before 8-9-1954. It cannot, therefore, be said that the years of allotment which were assigned to them were in accordance with Clause (a) of Rule 3 (3) because that applies to an officer appointed to the Service after 8-9-1954. Substantially, however, there was no difference and each of the respondents was assigned the year of allotment on the results of the competitive examination the year following the year in which such examination was held, and it continued to be the same under Sub-rule (2) of Rule 3. The petitioners, however, as stated above, were all appointed to the Service after commencement of the Recruitment Rules. Hence, their year of allotment had to be determined with reference to Clause (b) of Sub-rule (3) of Rule 3. Under this clause the year of allotment of the juniormost direct recruit who officiated continuously in a senior post from a date earlier than the commencement of such officiation by a promoted officer has to be assigned to the latter. Although neither Rule 3 nor Rule 4 of the Regulation of Seniority Rules provides in express terms that a member of the Service, who has been assigned prior year of allotment, will be senior to the one who has been assigned a later year of allotment, be he a direct recruit or a promotee, it is obvious that an officer getting a prior year of allotment will be senior to the one getting a later year. When officers belonging to either class are given the same year of allotment, their seniority inter se as also in relation to each other is determined under Rule 4. Under Sub-rule (3) of Rule 4, as it stood before the amendment brought about in the year 1958, as between the officers appointed to the Service on the results of the competitive examination and officers appointed by promotion, the former getting the same year of allotment en block ranked senior to the latter who were assigned the same year of allotment irrespective of the fact whether some in the former group had officiated or not continuously in a senior post from a date earlier than the date of commencement of such officiation by the latter. But after amendment in the year 1958 in that regard too, the seniority of all officers appointed to the Service on or after the 11th day of April, 1958 who are assigned the same year of allotment has been made to depend upon the dates of their respective officiation in a senior post,
44. All the petitioners, as stated above, were assigned 1948 as their year of allotment by the order of the Central Government made in 1958 on the footing that all of them had officiated continuously in a senior post from the 28th of December, 1954 the date when their names were included in the Ad hoc List, if not earlier. The junior-most direct recruit who had started officiating continuously in a senior post earlier than 28-12-1954 had, had his year of allotment, 1948. On that footing, in accordance with Rule 4 (3) of the Regulation of Seniority Rules, as it stood then, all the petitioners were placed below the direct recruits who had been assigned 1948 as the year of allotment notwithstanding the fact that some of them had not officiated continuously in a senior post prior to 28-12-1954.
45. The first proviso to Clause (b) was not attracted in the petitioners' cases as, on the facts which are not in dispute, none of them started officiating continuously in a senior post from a date earlier than the date on which any of the direct recruits -- respondents 3 to 14--so started officiating. The expression "officers recruited to the Service in accordance with Rule 7 of those Rules", meaning thereby Rule 7 of the Recruitment Rules, has got to be given the meaning which I have explained above to cover the cases of respondents 3 to 14 who were recruited before coming into force of the Recruitment Rules, 1954, otherwise there will be no express Rule in the Regulation of Seniority Rules for fixation of Seniority of the officers appointed after 8-9-1954 in relation to those appointed before that date. The second proviso to Clause (b) of Sub-rule (3) of Rule 3 of the Regulation of Seniority Rules will govern the cases of the petitioners in so far as the period of their continuous officiation in a senior post from 28-12-1954 to 26-12-1955 is concerned. In view of the principle of law laid down by the Supreme Court in Civil Appeal No. 2162 of 1968 decided on 11-4-1969 = (reported in AIR 1969 SC 1249) the Ad Hoc List prepared in consultation with, and approval of, the Union Public Service Commission on 28-12-1954 in so far as the petitioners are concerned, cannot be taken to be a Select List, even assuming such an ad hoc List prepared in respect of those found suitable for promotion to the Service, a point which was not decided in the Orissa case, could be held to be a Select List within the meaning of appointment by promotion Regulations. In case of the petitioners, even the Ad hoc List prepared had found them fit to hold in an officiating capacity Indian Administrative Service Cadre post; in other words, it was a fit for trial list. Neither Mr. Daphtary nor any other learned Counsel appearing for the petitioners contended otherwise.
46. The question, however, is whether the petitioners' period of officiation in a senior post prior to their inclusion in ihe Select List prepared on 26-12-1955 can be said to have been approved by the Central Government in consultation with the Union Public Service Commission within the meaning of the second proviso to Rule 3 (3) (b) of the Regulation of Seniority Rules. It is only then that they can be said to have officiated continuously in a senior post prior to 26-12-1955, not otherwise. It is to be remembered that the period of officiation in a senior post by a promoted officer after the inclusion of his name in the Select List but before he is appointed to the Service under Regulation 9 of the Appointment by Promotion Regulations did not require the approval of the Central Government. The first proviso to Clause (b) of Sub-rule (3) of Rule 8 provides for a situation which is not covered by Clause (b). The second proviso cuts down the period of officiation either under Clause (b) or under the first proviso to that period only which has been approved by the Central Government in consultation with the commission, if the said period relates to a date prior to the inclusion of the name of the promoted officer in the Select List. In D.R. Nim v. Union of India, AIR 1967 SC 1301 while considering the identical provisions of the Rules and Regulations of the All India Public Service, Sikri, J., said at page 1303 (column 1)-
"The second proviso limits the operation of the first proviso by dividing the officiating period into two classes: first, a period before the date of inclusion of an officer in the Select List, and secondly, the period after that date. The first period can only be counted if such period is approved by the Central Government in consultation with the Commission."
This case has been followed in the Orissa Case, (Civil Appeal No. 2162 of 1968 decided on 11-4-1969 = (reported in AIR 1969 SC 1249) and it has been said-
"....the object of the second proviso is to cut down the period of officiation which would be taken into consideration under Rule 3 (3) (b)."
In my opinion, Mr. C.B. Agarwala, on the basis of the aforesaid two decisions of the Supreme Court was right in his submission that the word 'deemed' in the second proviso refers to the period of officiation as approved by the Central Government. Even though the actual period of officiation in a senior post before the inclusion of the name of the promoted officer in the Select List may be longer, the promoted officer will get advantage only of such period as has been approved by the Central Government in consultation with the Commission. Thus, by a legal fiction he will be deemed to have officiated continuously in a senior post for that period only. It does not mean that a post which is not a senior post as defined in Clause (g) of Rule 2 of the Regulation of Seniority Rules will be deemed to be a senior post merely because continuous officiation in such a post has been approved by the Central Government in consultation with the commission. But, I shall presently show, the same result will follow by a different process of reasoning.
47. When the relevant Rules and Regulations were framed in 1954-55, some confusion cropped up in relation to the definition of the cadre post or a senior post. Experience made the Government wiser, and by subsequent amendments the confusion or the defect, if any, which was there has been removed. I have already stated that in Clause (b) of Rule 2 of the Indian Civil Administrative Cadre Rules, 1950 "Cadre post' meant any duty post included in the Schedule; it was not confined to the senior cadre posts only as mentioned in item 1 or 2 of the Schedule. In the Indian Administrative Service (Cadre) Rules, 1954, as they stood prior to the amendment, the expression 'cadre post' meant any of the posts specified as such in the Regulations made under Sub-rule (1) of Rule 4. The Fixation of Cadre Strength Regulations, 1955 specified in the Schedule to those Regulations the posts borne on, and the strength and composition of, the cadre of the Indian Administrative Service of the various States. These Schedules have been amended from time to time. But what I want to point out is that in the Schedule appertaining to each State are mentioned not only the senior cadre posts but also the Junior ones. The definition of 'Cadre post' given in the Cadre Rules, 1954 was amended by a notification dated the 5th April, 1966 and thereafter it meant any of the posts specified under Item 1 of each cadre of the Schedule to the Fixation of Cadre Strength Regulations, 1955; that means the senior posts only under the State Government. Under Rule 9 of the cadre Rules a cadre post in a State could be filled up by a person who was not a cadre officer under certain circumstances and for a limited period enumerated in the said rule. Regulation 8 of the Appointment by Promotion Regulations provides that a member of the State Civil Service after his name is included in the Select List can be appointed to a cadre post in accordance with the provision of Rule 9 of the Cadre Rules. Such officiation in the senior cadre post undoubtedly can be counted for the purposes of determining the seniority of the promoted officer when he is finally appointed to the Service from the Select List under Regulation 9 of the Appointment by Promotion Regulations. It was rightly urged on behalf of the Union of India and respondents 3 to 14 that a member of the State Civil Service could be appointed to the Indian Administrative Service only by his appointment to a senior post because he is appointed against the promotion quota of the senior cadre posts only. It was further pointed out on their behalf that under Rule 9 of the Pay Rules, 1954 no member of the Service can be appointed to a post other than a post specified in Schedule III unless the State Government concerned in respect of post under its control or the Central Government in respect of post under its control, as the case may be, makes a declaration that the said post is equivalent in status and responsibility to a post specified in the said Schedule.
Out of Schedule III, we are concerned with group B. in these cases, which relates to posts carrying pay in the senior time-scale of the Indian Administrative Service under the State Governments including posts carrying special pay in addition to pay in the time-scale. Rule 3 of the Pay Rules prescribes the time-scales of pay on Junior scale as also on Senior Scale. I shall advert to these provisions of the Pay Rules a bit later after I have discussed the main contentious question with reference to the definition of 'senior post' given in Clause (g) of Rule 2 of the Regulation of Seniority Rules.
48. According to the definition, as it stood at the relevant time, 'senior post' meant a senior cadre post under the State Government or "any post declared equivalent thereto by the State Government concerned". No mode was prescribed for declaring a post equivalent to the senior cadre post nor was it indicated at what time the post was to be declared equivalent whether it could be declared only prospectively or it could be so done retrospectively or, to be more accurate, retroactively. It created some confusion or it might have given a long handle to State Government to show favour to the promoted officers by declaring any post equivalent to a senior cadre post for the purpose of giving undue weightage to the promoted officers in the matter of seniority in relation to the direct recruits. It seems to me that this led to a drastic amendment of the definition of 'senior post' which, as it stands now after the 17th April, 1967, means a senior cadre post under the State Government and includes a post included in the number of posts specified in items 2 and 5 which are also senior posts in the Schedule to the Fixation of Cadre Strength Regulations and the posts added to the cadre under the second proviso to Sub-rule (2) of Rule 4 of the Cadre Rules, 1954. The amendment has completely done away with the power of the State Government to declare any post equivalent to a senior cadre post Not only that, by the same Notification of amendment dated 17-4-1967, second proviso to Rule 3 (3) (b) has been deleted and in its place a new Explanation as No. 1 has been introduced, whereunder the period of continuous officiation of a promoted officer in a senior post shall, for the purposes of determination of his seniority, count only from the date of his inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post whichever is later.
49. But fortunately for the petitioners and unfortunately for respondents 3 to 14 we are concerned in these cases with the definition of senior post as it stood at the relevant time before the amendment. To my mind, if the power of the State Government of declaring any post equivalent to a senior cadre post as envisaged under Clause (g) of Rule 2 of the Regulation of Seniority Rules is to be interpreted to mean a prospective declaration only, such an interpretation will rob the power of the main purpose for which it was conferred at the nascent stage of the Service wherein members of the State Civil Service were allowed to enter by promotion after giving them some weightage in the matter of seniority by striking out a just balance between the conflicting claims of the direct recruits and the promotees in respect of inter se seniority, as observed by the Supreme Court in paragraph 21 at page 760 in the case of Boddu Venkatakrishna Rao v. Smt. Boddu Satyavathi, AIR 1968 SC 751. Such a power of declaring any post equivalent to a senior cadre post is not to be found in Indian Civil Administrative (Cadre) Rules, 1950 nor was any similar Rule shown to us which governed the field before 8-9-1954 when the Regulation of Seniority Rules, 1954 came into force. The question of assignment of the year of allotment to a promoted officer cropped up only when he was appointed to the Service and not before. The question of declaring a post held by the promoted officer before his promotion equivalent to a senior cadre post did not arise or in any event such declaration was not necessary before his promotion and appointment to the Service. It was only after his appointment that the State Government could feel the necessity to declare that the post held by the promoted officer before his appointment to the Service was a post equivalent to the senior cadre post. If the declaration related to a period after the inclusion of the name of the officer in the Select List, no check by approval of the Central Government was provided for. But if it related to a period prior to that, a check was provided for under the second proviso to Clause (b) of Sub-rule (3) of Rule 3.
If the Central Government considered the declaration by the Stale Government of a post equivalent to a senior cadre post as mala fide, unjustified or unreasonable, it could withhold its approval of the period of officiation in the allegedly senior post prior to the date of inclusion of the name of the officer in the Select List. But if it gave its approval on a consideration of the materials placed before it, as, I shall presently show, was done in these cases, it is not correct to say as has been said later by the Central Government in its impugned order that the State Government had no power to declare a post equivalent to a senior cadre post retrospectively. Almost all the petitioners continued in the same post even on appointment to the Service which they were holding on 28-12-1954. In view of the provision contained in Rule 9 of the Pay Rules, Mr. C. B. Agarwala had to concede that those posts, although they were not added to the cadre of' senior post in the Schedules to the Fixation of Cadre Strength Regulations, had to be taken as senior posts and the officers concerned were entitled to the senior time-scale of pay under Rule 3 of the Pay Rules read with Rule 9. Learned Counsel, however, contended that under Rule 9 of the Pay Rules a prior declaration has to be made before a member of the Service is appointed to a post other than that specified in Schedule HI but he had to concede that if due to a mistake a member of the Service is appointed to a post other than the post specified in Schedule III, the mistake can be rectified by a subsequent declaration and the member of the Service cannot be made to suffer in regard to his pay, etc., for the said mistake. I am, therefore, inclined to think that the declaration of the posts held by the petitioners as equivalent to senior cadre posts made by the State Government was in one sense a declaration of an existing fact which existed on 28-12-1954 or in another sense, preferably in that the declaration clothed the said posts with the status of a senior post within the meaning of Clause (g) of Rule 2 of the Regulation of Seniority Rules retroactively. The effect of the declaration was not retrospective in the sense that by a legal fiction the fact of declaration was pushed back to an anterior date but it had a retroactive effect in the sense that the declaration when made clothed the post with the character of a senior post from an anterior date. Such a declaration in relation to a particular post, undoubtedly, could inure to the advantage of a direct recruit also for the purpose of finding out the date of his officiation in a senior post, if that post was held by him.
50. It would appear from the facts stated in Shri M.S. Rao's letter dated the 9th July, 1958 as also in various other annexures and affidavits filed in these cases on the basis of which a statement was prepared by learned Counsel for the Union of India showing the posts held, periods and upgradation orders issued by the State Government, that correspondence started between the Government of Bihar and the Central Government as soon as petitioners Mishra, Abbas and Mandal were appointed to the Service on 26-12-1955. The correspondence related to the fixing of the dale of officiation in a senior post. The Government of India in its letter dated the 14th August, 1956 written by Shri Prabhakar Rao agreed to the date of officiation in senior Indian Administrative Service scale and consequently in a senior post as 28-12-1954, 15-6-1955 and 1-10-1955 respectively in the cases of the said three petitioners. In Shri M.S. Rao's letter of the 9th July, 1958 recommendations were made to the Central Government for accepting the date of officiation in senior Indian Administrative Service scale in cases of all the petitioners from 28-12-1954. One of the points made out on behalf of the respondents was that this recommendation was only for fixation of the date of officiation in senior Indian Administrative Service scale and not in a senior post.
In my opinion, throughout the letter, it would be noticed, fixation of the date of officiation in senior Indian Administrative Service scale was meant for fixation of date of officiation in a senior post for the purpose of determining the relative seniority of the promoted officers vis-a-vis the direct recruits.
In this connection, I may pointedly refer to the statement in paragraph 10 of the letter-
"The Government of India have already recognised the period of officiation in senior posts of some of these officers the details of which are given in Annexure 'A' to this letter."
In Annexure 'A', however, in the third column the heading was-
"Date of officiation in senior I. A. S, scale as agreed by Government of India."
And, as against this heading, the three dates with reference to petitioners Mishra, Abbas and Mandal were shown as already alluded to. The case made out in the letter of the State Government dated the 9th July, 1958 in substance was like this. Under sub-paragraph (2) of Paragraph 14, Appendix 6 of Bihar Service Code if the post of a Deputy Secretary to Government, which was not a cadre post, "is held by an officer of the Indian Administrative Service or a Deputy Collector whose name 'is on the current waiting list "for District Magistrates or who would have otherwise been appointed as a District Magistrate the post shall pay in the senior scale of the Indian Administrative Service plus a special pay of Rs. 150/-." The clear view of the State Government expressed in the letter of the 9th July, 1958, was that to all intents and purposes and in substance the ad hoc List prepared with the approval of the Union Public Service Commission on 28-12-1954, in which the names of the officers belonging to the State Civil Service had been included, had the effect of a waiting list for District Magistrates entitling the said officers to get pay in the senior scale of the Indian Administrative Service plus a special pay of Rs. 150/- if they were holding the post of a Deputy Secretary to the Government. Many of the petitioners were holding such posts on 28-12-1954. Some who were senior to them were holding special post and they could not be debarred from reaping the advantage of the said provision in the Bihar Service Code. That being so, the recommendation was that all those officers should get "the benefit of officiation in the senior scale for purposes of seniority with effect from the date on which their name was included in anyone of the lists which are equivalent to, in fact, covered by the term 'waiting list for District Magistrate." In my opinion, reading the letter of the State Government as a whole, it would be noticed that it had the effect of declaring the posts held by the petitioners on 28-12-1954 as senior posts within the meaning of Clause (g) of Rule 2 of Regulation of Seniority Rules. The declaration in unequivocal or express language is not to be found in the letter of the State Government because the period of officiation commencing from 28-12-1954 as suggested by the State Government required the approval of the Central Government. Letters in express language to that effect were written to the Accountant-General, Bihar, in the subsequent years 1959, 1960 and in some other years, too, as would appear from an-nexures D/2 and D/3 to the counter-affidavit of respondents 3 to 8 in C. W. J. C. 853 of 1968 as also from various other annexwes as mentioned in the statement given by learned Counsel for the Union of India. It would appear from that statement that such letters were written to the Accountant-General as and when approval was accorded by the Central Government. The question oi writing such letters in express language to the Accountant-General, it seems to me, arose because his office, as usually known, being too technical would not sanction the payment in the senior scale for a Senior Post without an express or unequivocal declaration to that effect by the State Government. For the purpose of determination of seniority, however, the letter written by the State Government in the language in which it was couched by Shri M.S. Rao in view of the law not being very clearly provided in Clause (g) of Rule 2 of the Regulation of Seniority Rules had the effect of declaring the posts held by the petitioners as senior posts. That it was so understood by the Central Government will be clear from its letter dated 3-9-1958, a copy of which is Annexure 2 to the writ application in C. W. J. C. 854 of 1968. While according sanction to the proposal of the State Government contained in its letter dated the 9th July, 1958 the Central Government said in regard to the petitioners and a few others that it accepts the recommendation of the State Government, "who may be finally allotted to the year 1948 and placed below Shri B.B. Shrivastava, I. A. S. (1948 R.R.)". In regad to Shri Nageshwar Prasad Sinha, another officer who is not a petitioner in these cases, it was stated in the letter aforesaid of the Central Government that "he may be allowed to count for the purpose of seniority his officiation in equivalent post" from the 24th December, 1955. I fail to understand the argument put forward on behalf of the respondents that the Central Government was made to accord its approval by misrepresentation of facts by the State Government or by any wrong statement. In any event, this is not the ground mentioned in the review order under challenge in these cases passed in the year 1967. The only ground mentioned in the said order, as I read it, is that since the Central Government had been advised that there could be no retrospective declaration of a senior post under Rule 2 (g) of the Regulation of Seniority Rules, it proposed to revise the order of allotment and to fix the same with reference to the dates of substantive appointment to the Service. It may, however, be pointed out here, as I have already stated, that most of the petitioners continued to hold the same posts even after their appointment to the Service, which they were holding on 28-12-1954. It would appear from the statement supplied by the learned Counsel for the Union of India on the basis of the materials in these cases that petitioner Mishra, apart from holding the post of Deputy Secretaries -- either cadre or non-cadre, was holding the post of the Chairman, Patna Improvement Trust, on 28-12-1954 which post he was holding from before and continued to hold until 13-2-1958. Similarly, petitioner Abbas held the post of Development Training Officer, Administrative School, on 28-12-1954 and held it until 27-12-1956. Petitioner Mandal was Director of Kehabilitation and Development, Damodar Valley Corporation, on 28-12-1954 and held it up to 4-6-1956. Petitioner K.C. Sinha was Secretary to the Chief Minister on 28-12-1954 and continued to be so till May, 1958. Petitioner S. Sahay was Deputy Secretary," Revenue Department on 28-12-54 and continued as such till the date of his appointment to the service. Petitioners Rama-nand Sinha and S.K. Ghosh were Additional Deputy Secretaries to the Government of Bihar on 28-12-1954 and continued to be so until their appointment to the Service or shortly thereafter. ' It would bear repetition to say that such posts as were held by many of the petitioners on 28-12-1954 became senior posts from the date of their appointment to the service as conceded to by Mr. C.B. Agarwala, learned Counsel for the Union of India, with reference to Rule 9 of the Pay Rules. It would be highly unjust and illogical to hold that the posts which the petitioners were holding on 28-12-1954 could not be declared to be senior posts within the meaning of Rule 2 (g) of the Regulation of Seniority Rules, even though in substance the declaration was made in the letter of the State Government dated the 9th July, 1958, and in express language in letters written subsequently to the Accountant-General. In my opinion, on a wrong view of the law the Central Government has revised its previous order. In any event, in the confused state of law, as it existed at the relevant time, it is difficult to find that the order of the Central Government made in the year 1958 was such as could justify its revision 9 years later,
51. Apropos the strenuous argument put forward on behalf of the respondents that the approval given by the Central Government in its letter dated 8-9-1958 for the period of officiation of the petitioners in senior posts before inclusion of their name in the Select List was invalid as it was in violation of the mandatory requirement of the second proviso to Rule 3 (3) (b) of the Regulation of Seniority Rules inasmuch as the approval wets accorded without the consultation with the Union Public Service Commission, I would lay stress on the fact that neither in the impugned order nor in any of the counter-affidavits filed on behalf of the respondents there it a clear statement of fact that the approval was accorded by the Central Government without such consultation. Even assuming it was so, the failure on the part of the Central Government to. perform its duty of consulting the Commission before according the approval will not invalidate the order made in favour of the petitioners. The requirement of the approval by the Central Government under the proviso aforesaid is undoubtedly mandatory. But the requirement of the Central Government to consult the Commission before according the approval cannot be held to be mandatory so as to result in the nullification of the approval given in breach of the said requirement. I don't think that inclusion of the petitioners' name in the ad hoc List with the approval of the Commission had, in any manner, the effect of approval of the period of officiation in question by the Central Government in consultation with the Commission. The two types of consultation were different and distinct; one could not take the place of the other. I am, however, inclined to think that in the state of law as it existed in the years 1954 to 1958 the Central Government might not have thought it necessary to consult the commission for according its approval to the period of officiation of the petitioners in senior posts when the period proposed by the State Government was to commence only from 28-12-1954 the date when the petitioners' name had been included in the Ad hoc List with the approval of the Commission. It may well be that the Central Government thought that to all intents and purposes the Ad hoc List was in substance the select List and for according approval to the period of officiation in a senior post from that date it was not quite necessary to consult the Commission. Whatever might have been the cause of the failure, if any, of the Central Government to consult the Commission, it is clear that the alleged failure cannot entail the nullification of the order made by the Central Government in favour of the petitioners in the year 1958.