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2. The facts as stated by the applicant and relevant to the controversy are that upto 1996 there existed only one post of Principal Chief Conservator of Forest (for short, PCCF) in the State Government. On 28.9.96, one temporary ex-cadre post of PCCF (Forest Settlement and Working Plan) was created and declared equivalent in status and responsibilities to the IFS cadre post of PCCF (Ann. A5). The applicant was promoted to the cadre post of PCCF after due selection by the Screening Committee on 30.11.1996 (Ann. A7) and Shri D.C. Sood was appointed PCCF (Working Plan and Forest Settlement). The Selection Committee had in fact considered names of 6 officers to the level of Chief Conservator of Forest including the applicant and respondent No. 3 for selection to the two posts of PCCF and selected, on the basis of seniority-cum-merit, the applicant and Shri D.C. Sood. On 15 July, 98 respondent No. 3, Shri V.S. Sancheti was promoted to the post of Additional PCCF in the scale of Rs. 22400-525-24000 (Ann. A9) based on the recommendation made by the 5th Central Pay Commission for creating an inter-mediary scale between the post of Chief Conservator of Forests and PCCF. On 23 September, 1998, all of sudden on the eve of the Assembly Elections of the State, the applicant was transferred from the post of PCCF to a non-existing post of Officer on Special Duty (Forest) (for short, OSD (Forest) and by the same order respondent No. 3, who is 4 years junior to the applicant, was promoted as PCCF in place of the applicant. The respondent No. 3 assumed the charge of the office of PCCF on 24.9.1998 when the applicant was away to Bikaner.

4. The case of the applicant is based on the premise that no member of the IFS can be appointed to a post other than a post specified in third schedule under Rule 9 (1) of the Indian Forest Service (Pay) Rules, 1968 (for short, Pay Rules, 1968) unless the State Government or the Central Government makes a declaration that the said post is equivalent in status and responsibilities to a post specified in the said schedule. This power of declaration has to be exercised by the Government reasonably and keeping in mind the status and responsibilities of the given post and the specified post in the third schedule are comparable but the post of PCCF and the OSD and Advisor (Forest) has no such comparison and for the period no duties were specified for the newly created post, it has to be said that the post has no status. It has also been stated that the State Government has not exercised its powers to declare equivalency in a reasonable and bonafide manner. On the other hand, it was with an arbitrary motive to extend undue benefit to respondent No. 3. It has also been stated that when the applicant was transferred to the post of OSD (Forest) on 23.9.1998, the said post did not exist as per rule 9 of the Pay Rules, 1968 and it was on 21.1.1999 that the State Government sanctioned creation of this post with a changed name as Advisor (Forest) for the period 25.9.1998 to 28.2.1999 and it was declared that this post is equivalent in status and responsibilities to the cadre post of PCCF. Not only retrospective equivalence but the creation of the post is bad in law and even the schedule of the cadre strength rules were not modified. In fact, under the provisions of the Rules, no power has been given to the State Government to issue a retrospective order with respect to declaration of equivalency under the provisions of Section 9 (1) so that no member of the service shall be appointed unless a declaration of equivalency made by the relevant Government. Thus a bare reading of the provision makes it clear that such declaration has to be made prior to the appointment and not afterwards and the order dated 21.1.1999 is therefore bad in law, arbitrary, void and liable to be quashed. It has also been contended that since declaration of equivalence is sine-qua-non for making the transfer order to ex-cadre post and where no declaration is made a subsequent order of declaration cannot cure the initial effect and, therefore, the transfer order of 23.9.1998 also is void being illegal, without any authority and is, therefore, liable to be set-aside. It has also been stated that the post of Advisor (Forest) was created by the State Government without any justification when there was no allocation of work for the post. As per Rule 9 (7), the number of the ex-cadre posts of the rank of PCCF cannot exceed the number of cadre posts of PCCF except with the prior approval of the Central Government. There already existed one ex-cadre post of PCCF (Work Plan and Forest Settlement), prior approval should have been obtained before creation of the post of Advisor (Forest) in the same scale of pay as that of PCCF.

7. Respondent No. 2 in their reply have strongly contested the case of the applicant. It appears from their reply that they have not denied the facts as stated by the applicant in paragraph 3 above. It has been stated by the State Government that vide order dated 23.9.1998 the State Government decided to transfer the applicant from the post of PCCF to the newly created post of OSD (Forest) and promote and post respondent No. 3, who was functioning as Additional PCCF, as PCCF. Respondent No. 3 was already functioning as Additional PCCF and was considered suitable for promotion to the post of PCCF, his promotion to the said post was proper and justified and the averment that he was four years junior to the applicant has no relevance. It has also been stated that subsequent to the issuance of the order dated 21.1.1999, by which an ex-cadre post of Advisor (Forest) had been created and was declared equivalent in status and responsibilities to the cadre post of PCCF under Rule 9 of the Pay Rules, 1968, a corrigendum (Ann. R2/1) to the order of even number dated 23.9.1998 was issued vide No. 5 (3) Pers/AI/98 dated 23.1.1999 by which the post of Advisor (Forest) Rajasthan was substituted for the post of OSD. It has, therefore, been contended that the applicant is deemed to have been appointed to the post of Advisor (Forest) w.e.f. 25.9.1998. The allegation that the applicant was transferred from the post of PCCF on 23.9.1998 just on the eve of the Assembly Elections is denied as being not correct as the Assembly Elections were held on 25.9.1998 i.e. after two months of such transfer. As regards the averment that though Shri D.C. Sood, PCCF was senior and available but the previous Government for the ulterior motives, chose to consider the junior officer respondent No. 3 for the post of PCCF, it has been stated that Shri Sood was already holding the post of PCCF and as such there was no necessity or requirement to disturb him. The applicant cannot, in fact, have any grievance about non-posting of Shri Sood. Shri Sood has himself not aired such a grievance and the applicant has no locus standi to air his grievance and make wild allegations. It is relevant to state that the said respondent No. 3, having placement after Shri Sood, was the senior most available and was already holding the post of Additional PCCF, thus ho undue favour has been given to respondent No. 3. Respondent No. 2 has vehemently denied the averments of alleged ulterior motive, being utterly baseless, malacious and pre-posterous. In fact, since the applicant has been posted as Advisor (Forest) which post was also in the pay scale of Rs. 24000-650-26000 and declared equivalent in status and responsibilities to the post of PCCF, no injury or prejudice was caused to the applicant. There was, therefore, no requirement of cancelling the said order dated 23.9.1998 or giving any reply to the representation made by the applicant for cancelling of the said order. As regards the averments that there being only one cadre post of PCCF and one ex-cadre post having already been created, the State Government was not competent to create another ex-cadre post without obtaining the prior approval of the Central Government as required under Rule 9 (7), it has been stated on behalf of respondent No. 2 that since the post of Advisor (Forest) had been created as new post for the first time, certain administrative problems needed to be sorted out and the matter in any case is entirely between the cadre controlling authority and the State Government and the applicant has no right to question the same and that even ex-post-facto sanction can be obtained by the State Government. It has been asserted that it cannot, therefore, be alleged that the whole exercise of transfer and declaration of equivalence has become illegal and void. With regard to alleged illegal transfer and the applicant having been put to great amount of humiliation and harassment, it has been stated that initially the State Government had considered it proper to utilise the services of the applicant by designating him as OSD but on further consideration, it was thought proper to indicate his status by designating him as Advisor (Forest) and that is why a corrigendum dated 23.1.1999 was issued. No doubt, the declaration of equivalence has been made effective from 25.9.1998 by the order dated 21.1.1999 but the said retrospective declaration is only a mere technicality and did not cause any serious injury or prejudice to the applicant and his emoluments and status from 25.9.1998 has been duly and properly protected.

17. We have very carefully considered the pleadings and arguments as also the case law cited by the parties regarding the question of "retrospective equivalence". It has to be appreciated that the administration of a State is like a living organism. There are activities going on all the time. Situations arise all the time and these have to be tackled by the State Government keeping in view the nature of these situations; the overall interest of the State and the public; the personalities involved and so on. In choosing somebody to head a Department, it has also to be seen whether the person is not only efficient, a person of integrity but in an overall context, whether he can provide the requisite leadership to the entire structure of the Department and thereby contribute to the development of the State and its people. Therefore, selection of a persons to be head of Department is such an exercise that each has its own ingredients and it follows that there just cannot be a mathematical formula prescribed which will hold forth in all situations to come. It is precisely for this reason that the framers of the law have not prescribed any detailed procedure for the selection to the posts like PCCF and have only talked of "Appointment to the Selection Grade and to posts carrying pay above the time-scale of pay in the Indian Forest Service shall be made by selection on merit with due regard to seniority" as can be seen from the provisions of Rule 3(3) of the Pay Rules, 1968. Although the applicant has mentioned that selection of the respondent No. 3 has been for ulterior motives by the previous Government, he has not been able to substantiate it. In fact, he has used the "previous Government" to hint that it was a decision on narrow political considerations. However, had it been so, the next Government, which happened to be the political executive of the party in opposition earlier, would have, as it is seen now a days with regard to such political appointments, changed the incumbent immediately but he is continuing even though the present Government is soon going to complete one year of its existence. We are aware of the fact that we are not required to go into all this but had to mention this to arrive at the conclusion that no ulterior motives, as alleged, can be attributed, prima facie, to the selection of respondent No. 3 for the post of PCCF and it has to be held that the applicant was transferred from the post of PCCF and respondent No. 3 appointed thereon was an act carried out by the State Government within its administrative domain and powers. The case of C. Dinker (supra) on which the learned Counsel for the applicant had relied is, therefore, distinguishable and not applicable in this case. It also appears from the reply of respondent No. 3 that there have been instances earlier also when a junior was promoted in similar manner and even the applicant himself was promoted as PCCF over his senior. This being the background, we feel that the case law cited before us, as far as it concerns the "retrospective equivalence", though helpful in its own way, is not directly applicable to the controversy in hand, primarily because the "organic" situation in each case was peculiar to the situation prevailing in that case. Having said this, we can proceed to examine the delay between transfer of the applicant on 23.9.1998 and creation/ equivalence of the post of Advisor (Forest) on 21.1.1999 with its retrospective effect from 23.9.1998 alongwith the corrigendum dated 23.1.1999 substituting the designation OSD with Advisor (Forest). We feel that it is well within the powers of the State Government to transfer an officer any time and we cannot intervene unless the transfer is violative of statutory rules or there are ground of mala-fide. The law is now well settled in this regard. In this case, as argued by the learned Counsel for respondent No. 2, the State Government, acting within its administrative powers, considered it desirable to transfer the applicant from the post of PCCF and we have no reason to question such transfer without their being patent illegality or perversity. It has further been stated that it took some time to process the case within the Government and obtain necessary financial concurrence and other approvals before the order of creation of the ex-cadre post of Advisor (Forest) could be issued and equivalence to PCCF declared. It has been submitted before us that getting through with these technical requirements was the only reason that caused the delay and there was absolutely no intention of causing any so called harassment etc. to the applicant and we have no reasons to disbelieve this. We also feel that since the applicant is enjoying the same pay scale as that of the post of PCCF he held before the transfer and the post of Advisor (Forest) has been declared to be equivalent in status to that of PCCF, no prejudice or injury has been caused to the applicant and the matter regarding correspondence between the State and the Central Government regarding obtaining the necessary approvals is an issue which is of no direct concern to the applicant. Strong emphasis was placed by the learned Counsel for the applicant on the use of "shall" in Rule 9 (7) read with Sub-rule (1) of Rule 9 of the Pay Rules. We have given our serious attention to this and have come to the conclusion that a complete reading of the rule indicates that the intention of the said rule is that a cadre officer cannot be posted to an ex-cadre post figuring in the Third Schedule to the rule in a routine manner and the equivalence shall have to be done. The idea behind the provision is that an officer who has been inducted into a cadre shall not, on the whims of the power that be, shunted out to any or every post. He has to be given a post which is declared equivalent in pay scale and status to that of a cadre post. This, however, does not mean that the equivalence has to be done on the same day an officer is transferred/posted out of a cadre post. It is quite possible in administrative exigencies that in some odd case, there could be a gap between the transfer and issuance of the formal order of creation of a new post and declaration of its equivalence. The use of word "shall" is to emphasise that there just cannot be a situation where a cadre officer is kept on an ex-cadre post indefinitely because that will destroy the very basis of the constitution of the All India Services. There has to be a declaration of equivalence either alongwith the creation of post or as early thereafter as possible. Of course, the delay has to be reasonable and the Tribunal can certainly go into the delay and explanation offered. In this particular case, we are of the opinion that the delay was not fatal and the State Government has been able to explain the delay of a little less than four months satisfactorily and by the orders dated 21.1.1999, 23.9.1998 and 18.9.1999 have adequately protected the interests of the applicant and, therefore, we feel that there is no justification for us to interfere with the impugned orders dated 23.9.1998 and 21.1.1999.