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9. Mr. Gehlaut has also invoked the doctrine of legitimate expectation by relying upon a decision of the Tribunal in Kamal Kumar v. UOI 1999 SLJ (CAT) 285, to contend that once applicant has been allowed to continue as Secretary, he has a legitimate expectation to continue as such and any adverse action de hors the rules and law would not be countenanced in law.

10. Learned Counsel states that National Commission for SC is a constitutional body constituted under Article 338 of the Constitution of India. According to him, National Commission has its own procedure and regulations in the light of the rules of procedure of National Commission, framed under Article 338(4) of the Constitution of India. Accordingly it is stated that the applicant was appointed by the competent authority, i.e., President as Secretary and has been designated as such. It is also stated that in the National Commission, the post of Secretary is in the fixed scale of 8,000, which has been raised to 26,000 (fixed) and vide officer order dated 09.08.2005, the applicant has been appointed on a fixed pay of Rs. 26,000, which is admissible to a Secretary to the Government of India and Secretariat service.

13. As an alternate submission, it is stated that the applicant was already in the pay scale of Additional Secretary to the Government of India, when appointed in the centre in May, 2003 with no fixed tenure of the post held by him. Now Paragraph 17.06 of the Central Service Staffing Scheme mandates that officers at the level of Additional Secretary, having one year or less for superannuation, need not be reverted to the parent cadres, but they may be given extension of the tenure. As the applicant is superannuating on 29.02.2008, he may be retained. Learned Counsel has also relied upon Transaction of Business Rules, 1961 and 3rd Schedule under Rule 8 to contend that for appointment, resignation and removal of the special office in ST Commission, Article 338 empowers only the Prime Minister and President and, as applicant has been appointed by the President, the order passed by the DoP&T, correcting the website, is without jurisdiction. Learned Counsel would contend that what is applicable on the applicant in the matter of pay scale in Commission are not the pay scales of Indian Administrative Service. Learned Counsel would also contend that vires of the Central Staffing Scheme has been upheld by the Apex Court in S.L. Shukla v. Union of India 2006(3) SLJ SC 301 is no more in dispute but the case is distinguishable and would not apply to the present situation, as therein promotion was in issue but the present is a case of appointment, wherein DoP&T has no role and as the appointment of applicant as equivalent to the Secretary to the Government of India was of regular nature, he cannot be reverted.

29. It is trite that when a thing is to be done in a particular manner, no other manner can be subscribed in law. If applicant has not been appointed on empanelment as Secretary to the Government of India without following due process as envisaged under Clause 14 of the Staffing Scheme, his claim to treat him as Secretary to the Government of India cannot be countenanced in law.

30. We have seen the reply of the Commission, which it at variance with the reply filed by the respondent No. 1. The distinction made to treat the applicant as Secretary to the Government of India by the Counsel of the Commission is that being a constitutional body under Article 338 of the Constitution of India once the pay scale has been fixed as 26,000 (fixed), appointment of the applicant in that scale would deem to be an appointment as Secretary to the Government of India on a non-Secretariat posts is misconceived. Nobody can be empanelled as a Secretary to the Government of India whether on a Secretariat or Non-Secretariat post without being considered as per the procedure under the Central Staffing Scheme and with the approval of the Competent Authority. The contention put forth by the applicant highlighting Rule 8 under Schedule of the Transaction of Business Rules that special officer under Article 338 are to be appointed by the Prime Minister and the President, we do not find that the Secretary to the Commission has been designated as a special officer. No doubt, the President is the Appointing Authority of the executives including the post of Secretary, yet an appointment de hors the Rules without following due process cannot be treated as an appointment in accordance with the law. Applicant who was on compulsory wait, merely his posting being an Additional Secretary to the Government of India as Secretary to the Commission for SC would not alter his status and shall not amount to an appointment on empanelment as a Secretary to the Government of India. We find from the record that one Shri K.K. Gupta was earlier appointed as a Secretary, National Commission for Scheduled Tribes in the rank and pay of the Additional Secretary. Accordingly, the contention put forth that when the status of the Secretary of Commission is equivalent to the Secretary, Additional Secretary cannot be posted is unfounded.