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3. By an order passed on 23.5.2007 interim order has been continued, finding prima facie case in favour of applicant.

4. Applicant, a direct recruit in Indian Administrative Service (IAS) was allocated to Himachal Pradesh Cadre in 1971. On 1.5.2003 he was appointed as an Adviser in the rank and pay of Additional Secretary and also as Director General, DGS&D under the Ministry of Commerce in the rank and pay of Additional Secretary in October, 2003.

5. Applicant, who was empanelled as Additional Secretary in the Centre, on compulsory waiting in the Ministry of Commerce was appointed by the Appointments Committee of the Cabinet (ACC), as Secretary, National Commission for Scheduled Castes (SC). The website of Department of Personnel and Training (DoP&T) shown designation of applicant as Additional Secretary, which was represented against by applicant, led to an order passed by the DoP&T on 17.1.2007, wherein, on clarification, it has been asserted that applicant's rank is of Additional Secretary. This was further represented to.

26. Having regard to the above, Apex Court in Satya Narain Shukla v. Union of India and Ors. upheld the constitutional validity of Staffing Scheme by holding that Paragraph 14 of the Central Staffing Scheme is intra vires and also ruled that post of Additional Secretary is not a promotional post for IAS Officer. Non-empanelment as Secretary to the Government of India is neither arbitrary nor contrary to the rules and if not vitiated by mala fide cannot be interfered in a judicial review.

27. Applying the aforesaid, applicant admittedly belongs to Himachal Pradesh cadre and had been empanelled as Additional Secretary to the Government of India. For being empanelled under the Central Staffing Scheme, the methodology under Paragraph 14 of the Staffing Scheme has to be undertaken. On perusal of the official records produced before us that we find is that a Special Committee of the Secretaries held on 21/28-12-2004 in the Cabinet Secretariat when considered empanelment of IAS Officers of 1971 batch for Secretary level appointment, insofar as the case of the applicant is concerned recommended him for appointment as Secretary or equivalent on a non-Secretariat post. However, this proposal was not accepted by the Competent Authority and subsequently, on constitution of the Special Committee of the Secretaries on 24.01.2005 in the Cabinet Secretariat on account of certain serious irregularities brought to the limelight against the applicant, it was recommended that the empanelment of the applicant as Secretary or Secretary equivalent at the Centre be stalled and was decided to be reviewed once the charges are clear. Though on perusal of the records, applicant who has been recommended for empanelment as Secretary or equivalent earlier the proposal was not approved and kept in abeyance to be reviewed when the charges are cleared. Subsequent proceedings attending to the presidential order dated 26.07.2005 clearly established that earlier decision to keep the appointment as Secretary in abeyance has not been revoked and rather applicant who was yet to be absolved in the disciplinary proceedings to be instituted against him and as the aforesaid process was taking time he was appointed as Secretary, National Commission for SC not in the capacity and as a result of the earlier decision but as a posting to the applicant on his compulsory wait in the rank of an Additional Secretary to the Government of India. However, as the applicant was appointed as Secretary in National Commission for Scheduled Castes by an order passed on 26.07.2005 by the ACC, we have called for the record leading to these orders. On perusal of the concerned file, what we find that ACC had undertaken an exercise where vacancies at the level of Additional Secretaries are to be filled up. In such an event, insofar as case of the applicant is concerned, it is decided that as the applicant, an Additional Secretary to the Government of India in whose respect a decision to repatriate him to his parent cadre was taken in Feb. 2005 but on keeping this decision in abeyance, applicant was put on compulsory wait as the disciplinary proceedings contemplated against him were taking time, meanwhile it was decided to appoint applicant as Secretary to the National Commission for Scheduled Castes. Accordingly order appointing the applicant as Secretary was issued on 26.07.2005.

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.

32. The record preceding the order passed by the respondents appointing the applicant as Secretary to the Commission indicate that the applicant was treated and operated in the matter of posting as an Additional Secretary to Government of India. He was posted as D.G. (S&D), Ministry of Commerce in October, 2003-where he continued upto February, 2005 and then put on compulsory wait. While on compulsory wait, he was posted as Secretary of National Commission for SC but, not on promotion as Secretary to Government of India or equivalent.