Delhi High Court
Ajay Kumar Joshi vs Union Of India & Ors. on 16 August, 2011
Author: Dipak Misra,Chief Justice
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 23rd May, 2011
Date of decision : 16th August, 2011
+ W.P.(C) 3457/2011
AJAY KUMAR JOSHI ..... Petitioner
Through: Mr.A. Mata, Sr. Advocate with
Mr.Apoorva Tiwari, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.A.S.Chandhiok, ASG with
Mr.Sanjeev Sachdeva, Advocate for
Union of India.
+ W.P.(C) 3476/2011
STATE OF UTTARAKHAND THROUGH PRINCIPAL
SECRETARY AND ANR. ..... Petitioners
Through: Mr.Soli J.Sorabjee, Sr. Advocate with
Ms.Rachana Srivastava, Advocate
versus
AJAY KUMAR AND ORS. ..... Respondents
Through: Mr.A. Mata, Sr. Advocate with
Mr.Apoorva Tiwari, Advocate for R-1
Mr.A.S.Chandhiok, ASG with
Mr.Sanjeev Sachdeva, Advocate for
Union of India.
WP(C) 3457/2011 & connected matters page 1 of 60
+ W.P.(C) 3477/2011
STATE OF UTTARAKHAND AND ANR. ..... Petitioners
Through: Mr.Soli J.Sorabjee, Sr. Advocate with
Ms.Rachana Srivastava, Advocate
versus
AJAY KUMAR JOSHI AND ORS. ..... Respondents
Through: Mr.A. Mata, Sr. Advocate with
Mr.Apoorva Tiwari, Advocate for R-1
Mr.A.S.Chandhiok, ASG with
Mr.Sanjeev Sachdeva, Advocate for
Union of India.
+ W.P.(C) 3485/2011
SUBHASH KUMAR ..... Petitioner
Through: Mr.Dushyant Dave and Mr.Nidesh
Gupta, Sr. Advocates with
Mr.Sumit Bansal, Advocate
versus
AJAY KUMAR JOSHI AND ORS. ..... Respondents
Through: Mr.A. Mata, Sr. Advocate with
Mr.Apoorva Tiwari, Advocate for R-1
Mr.A.S.Chandhiok, ASG with
Mr.Sanjeev Sachdeva, Advocate for
Union of India.
+ W.P.(C) 3486/2011
SUBHASH KUMAR ..... Petitioner
Through: Mr.Dushyant Dave and Mr.Nidesh
Gupta, Sr. Advocates with
Mr.Sumit Bansal, Advocate
versus
WP(C) 3457/2011 & connected matters page 2 of 60
AJAY KUMAR JOSHI AND ORS. ..... Respondents
Through: Mr.A. Mata, Sr. Advocate with
Mr.Apoorva Tiwari, Advocate for R-1
Mr.A.S.Chandhiok, ASG with
Mr.Sanjeev Sachdeva, Advocate for
Union of India.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
Regard being had to the commonality of controversy, this batch of writ
petitions was heard together and is disposed of by a singular order. Ajay Kumar
Joshi, the petitioner in W.P.(C) No.3457/2011, preferred two original applications
before the Central Administrative Tribunal, Principal Bench, New Delhi (for
short „the tribunal‟) forming the subject matter of O.A. Nos.2357/2010 and
3604/2010 assailing the action of the State of Uttarakhand in extending the
benefit of promotion to the respondent nos. 4 to 6 in the pay scale of the Chief
Secretary and further challenging the selection of the respondent - Subhash
Kumar for the post of Chief Secretary of the State on the foundation that there
WP(C) 3457/2011 & connected matters page 3 of 60
has been total violation of the provisions contained in the Rules, Regulations and
instructions in the field. The tribunal accepted the contentions raised by the
applicant before it and set aside the benefit of promotion extended to the
respondent - Subhash Kumar and also quashed the order of promotion of the
applicant and directed to make fresh selection after following the due procedure
as postulated in law within two months with a further stipulation that the
present arrangement would remain in vogue during the said period. Shri A.K.
Joshi has preferred W.P.(C) No.3457/2011 for quashing the direction by which
his promotion has been annulled and further to issue a command for restoration
of his promotion. The State of Uttarakhand has preferred W.P.(C) No.3476/2011
and W.P.(C) No.3477/2011 challenging the order passed by the tribunal and
Subhash Kumar has preferred W.P.(C) No.3485/2011 and W.P.(C) No.3486/2011.
Be it noted, the stand and stance put forth by the State of Uttarakhand and
Subhash Kumar are same and their prayer is for quashment of the order passed
by the tribunal in entirety.
2. Presently to the factual matrix. The applicant before the tribunal in OA
No.3604/2010 called in question the legal propriety of the concurrence given by
the Secretary, Department of Personnel & Training (DOPT), in response to the
letters dated 31.5.2010 and 8.10.2010 of the State of Uttarakhand as regards the
WP(C) 3457/2011 & connected matters page 4 of 60
availability of one vacancy in the apex scale of Indian Administrative Service
(IAS) in the Uttarakhand cadre as on 31.5.2010 in terms of the provisions of Rule
3(2)(ii) and (iii) of the IAS (Pay) Rules, 2007 (for short „the 2007 Rules‟) in
addition to two vacancies in the said grade for which concurrence has already
been given by the respondent by communication dated 19.9.2008 and further
challenged the orders dated 12.9.2010 and 13.9.2010 whereby the 4th respondent,
Subhash Kumar, had been appointed as the Chief Secretary of the Government of
Uttarakhand. In the said application, the relief sought was to set aside the afore-
mentioned two orders dated 12.9.2010 and 13.10.2010 contained in Annexures P-
1 to P-3 of the original application; to issue appropriate guidelines of general
application for posting of officers on the post of Chief Secretary in the State
cadres; and to declare that the post of Director General, Uttarakhand
Administrative Academy, Nainital is not equal in status and responsibility to the
post of Chief Secretary, Government of Uttarakhand.
3. OA No. 2537/2010 was preferred assailing the action of the Screening
Committee which met on 19.2.2010 recommending four officers, namely, Ajay
Kumar Joshi, Suneel Kumar Muttoo, Subhash Kumar and Keshavdesi N. Raju as
fit for the apex scale of the Chief Secretary. The applicant was further aggrieved
by the order dated 31.5.2010 whereby Suneel Kumar Muttoo and Subhash
WP(C) 3457/2011 & connected matters page 5 of 60
Kumar had been promoted to the scale of Rs.80,000/- (fixed) of the IAS, and the
creation of 18 posts by the State of Uttarakhand under the second proviso to Rule
4(2) of the IAS (Cadre) Rules, 1954 (for short „the 1954 Rules‟). The prayer in the
petition was to set aside the recommendations of the Screening Committee held
on 19.2.2010 as far as they relate to the respondent Nos. 4, 5 and 6 as the same has
been made in the absence of prior concurrence of the Government of India and
non-availability of valid posts and further to set aside the order of promotion
dated 31.5.2010 passed in favour of respondent Nos.4 and 5 therein; and to
invalidate the order dated 28.5.2010 whereby 18 posts have been created by the
State of Uttarakhand and to command the State of Uttarakhand to fill up the post
of Chief Secretary (a cadre post) only from those officers in the CS Grade who are
deemed to have been appointed against cadre posts on the basis of their
respective inter se seniority. Be it noted, a further relief was added for setting
aside the order dated 19.9.2008 of the Government of India which related to
concurrence accorded in respect of the availability of one ex-cadre vacancy in the
Chief Secretary Grade of pay in the Uttarakhand cadre of the IAS.
4. The grievance of the applicant, in essence, was that on 19.9.2008, when the
concurrence of the respondent-DOP&T was given for two available vacancies in
the grade of Chief Secretary, only one vacancy was actually available on that date
WP(C) 3457/2011 & connected matters page 6 of 60
and, therefore, two ex-cadre posts could not have been created under Rule 9(7) of
the IAS (Pay) Rules as proposed by the Government of Uttarakhand in its letter
dated 3.9.2008 because 17 persons were already working against State
Deputation Reserve fixed at 13. It was the further stand that since the person
above the petitioner in the gradation list was found „unfit‟ by the Selection
Committee, the petitioner alone could have been selected and the respondent
nos.4 and 5 could not have been empanelled in the select list as the vacancies
were not available.
5. As is discernible from the factual exposition, the cadre strength of IAS
officers in Uttarakhand state was determined at 94 under the IAS (Fixation of
Cadre Strength) Regulations, 1955 vide the Government of India notification
dated 4th October, 2004. The post categorized under Senior Duty Posts (SDP) are
commonly known as cadre posts and the posts under State Deputation Reserve
(SDR) are called ex-cadre posts. There are four grades having different pay-
scales in SDP. The Chief Secretary grade is also known as the apex grade in the
cadre, the highest grade having pay-scale of Rs.80,000/- (fixed).
6. In 2008, the State Government under Rule 9(7) of the 2007 Rules created
two ex-cadre posts under SDR in the Chief Secretary grade as against two cadre
posts already existing under SDP. The said cadre posts that existed are the Chief
WP(C) 3457/2011 & connected matters page 7 of 60
Secretary and Director General, Uttarakhand, Administrative Academy, Nainital.
On 3rd September, 2008, the State Government sent a proposal for concurrence to
the Government of India for filling up of two vacancies in the Chief Secretary
grade as there were two officers, namely, Shri Indu Kumar Pandey and Shri N.S.
Napalchyal, who were already working in the Chief Secretary grade and two
vacancies were available. At that point of time, 17 officers were working under
SDR against the prescribed limit of 13. The Central Government accorded its
concurrence in respect of two vacancies in the Chief Secretary grade vide
communication dated 19th September, 2008. Before the meeting of the Screening
Committee, Shri Indu Kumar Pandey, the then Chief Secretary took voluntary
retirement on 2nd December, 2009 and therefore, the number of vacancies
increased from two to three in the Chief Secretary grade. The Screening
Committee held its meeting on 19th February, 2010 and took into account that
apart from these three vacancies, one more vacancy would take place on 30th
April, 2010 due to retirement of Shri N.S. Napalchyal. Regard being had to the
aforesaid circumstances, the Committee considered all the officers in the zone of
consideration and gave its recommendations finding Ajay Kumar Joshi, Sunil
Kumar Muttoo, Subhash Kumar and Keshav N. Desi Raju as „fit‟ and one
Vijendra Paul to be „unfit‟.
WP(C) 3457/2011 & connected matters page 8 of 60
7. On the basis of the recommendations of the Screening Committee, the
State Government promoted the officers, namely, Ajay Kumar Joshi, Sunil
Kumar Muttoo and Subhash Kumar in the Chief Secretary grade on 31st May,
2010. The fourth likely vacancy that was taken into consideration by the
Screening Committee could not be filled up because the officer who was to retire
on 30th April, 2010 was, in fact, given an extension of six months, that is, upto 31 st
October, 2010 by the Government of India. After making the promotions, the
State of Uttarakhand apprised the Government of India in respect of filling up of
the third vacancy also which had arisen due to voluntary retirement of an officer
on 2nd December, 2009 after the concurrence dated 19th September, 2008 for two
vacancies. A reminder was also sent to the Government of India on 8th October,
2010 in the said regard.
8. The Government of India, vide letter dated 13th October, 2010, granted
concurrence for the third vacancy as on 31st May, 2010 under Rule 3(2)(ii)(iii) of
the 2007 Rules in continuation of its earlier concurrence dated 19th September,
2008, which were for two vacancies. On 12th September, 2010, an officer working
in the Chief Secretary grade, N.S. Napalchyal, the then Chief Secretary, took
voluntary retirement and the State Government appointed Subhash Kumar as
WP(C) 3457/2011 & connected matters page 9 of 60
the new Chief Secretary on 12th September, 2010 after considering all officers
including Ajay Kumar Joshi, who was working in the Chief Secretary grade.
9. The tribunal noted that by virtue of Section 72 of the Uttar Pradesh
Reorganisation Act, 2000, a separate cadre of Indian Administrative Services for
the newly created State was created. The applicant was allocated to the new
cadre of Uttarakhand. After certain litigations, the applicant jointed the State of
Uttarakhand on 12.10.2009.
10. The Union Government, in consultation with the Government of
Uttarakhand, framed the Indian Administrative Service (Fixation of Cadre
Strength) Sixth Amendment Regulations, 2004 which came into force on
4.10.2004. The cadre strength to the Indian Administrative Service (Fixation of
Cadre Strength) Regulations, 1955 (for short „the 1955 Regulations‟) provided 51
posts at item No.1 of the schedule, known as SDP under the Government of
Uttarakhand, which included the posts of the Chief Secretary and the Director
General of Uttarakhand Administrative Academy, Nainital, known as cadre
Posts under Rule 2(b) of the 1954 Rules.
11. The tribunal took note of the fact that at item No.3 of the above schedule,
there is a provision for SDR, which is 25% of the SDP and it was fixed at No.13 in
WP(C) 3457/2011 & connected matters page 10 of 60
the order dated 04.10.2004. The Government of Uttarakhand sought the
concurrence of the Union of India by letter dated 3.9.2008 in respect of the
vacancies in the scale of the Chief Secretary. The Government of India concurred
with the proposal about the availability of two vacancies in the scale of Rs.26,000
(fixed) [pre-revised]. On 2.12.2009, as set forth, the then Chief Secretary, Indu
Kumar Pandey, took voluntary retirement from service and N.S. Napalchyal was
appointed in his place. It was contended that the ex-cadre post which he was
occupying came to an end and SDR came to 16 on that day. The applicant
submitted a representation dated 9.12.2009 seeking an accurate determination of
vacancies in the grade of Chief Secretary since the promotion to the post was
vacancy based. He placed reliance on the guidelines for promotion framed on
28.3.2000. He stated in the representation that no ex-cadre post in any grade,
including the grade of the Chief Secretary, could be created in view of the fact
that the SDR, as fixed by the order dated 4.11.2004, exceeded 13. He submitted
another representation on 8.2.2010 challenging the correctness of the letter dated
3.9.2008 of the State Government on the foundation that the letter had been sent
in great haste as the matter had been put up and approved by the Chief Secretary
on the same day, in which five levels of officers from Under Secretary onwards
WP(C) 3457/2011 & connected matters page 11 of 60
were involved and such an action / proposal was in violation of Rule 8(2) of the
1954 Rules.
12. As noticed, the first representation dated 9.12.2009 was rejected by the
State of Uttarakhand. A meeting of the Screening Committee held at New Delhi
on 19.2.2010 considered four vacancies, two cadre posts and two ex-cadre posts,
for promotion to the grade of Chief Secretary. The Committee made the
recommendation in respect of four officers for promotion to the grade of Chief
Secretary. A note was put up on 22.2.2010 by the Principal Secretary stating that
two officers would be promoted initially because DOP&T had permitted two
vacancies and the rest two would be promoted after obtaining the concurrence of
the DOP&T. At this stage, the applicant sought intervention of the Central
Government as regards his representation dated 8.2.2010 and the Government of
India sought comments from the Government of Uttarakhand but no action was
taken. In the meantime, Subhash Kumar, who was the Principal Secretary of the
Department of Personnel of the State Government, wrote to the Secretary,
DOP&T, on 29.3.2010 seeking extension for the incumbent Chief Secretary, N.S.
Napalchyal, who was granted extension for a further period of six months with
effect from 30.4.2010. At this stage, the Government of India wrote to the State of
Uttarakhand on 7.5.210 to examine few aspects and to submit a fresh proposal
WP(C) 3457/2011 & connected matters page 12 of 60
for confirmation of vacancies in the grade of Chief Secretary for prior
concurrence of DOP&T. The Government of Uttarakhand took no notice of this
communication and approved the recommendation dated 19.2.2010 of the
Screening Committee on 25.5.2010. Three persons, namely, A.K. Joshi, Sunil
Kumar Mattoo and Subhash Kumar were promoted to the grade of Chief
Secretary. At this stage, the State of Uttarakhand created 18 posts in the grade of
Additional Chief Secretary under the second proviso to Rule 4(2) of the 1954
Rules and the posts were created for two years. Before the tribunal, certain
correspondences between the State of Uttarakhand and the Government of India
were referred to.
13. The applicant who was posted as Director General, Uttarakhand
Administrative Academy, Nanital joined the said post under protest and
submitted a representation to the competent authority. When no response was
shown, he preferred the original application. During the pendency of the
original application, N.S. Napalchyal, the incumbent Chief Secretary, applied for
voluntary retirement from service on 12.9.2010 and his request was acceded to.
The fourth respondent, Subhash Kumar, was appointed as the Chief Secretary on
that day. By order dated 13.10.2010, the Government of India gave its
concurrence to the availability of one vacancy in the apex scale in Uttarakhand
WP(C) 3457/2011 & connected matters page 13 of 60
cadre as on 31.5.2010 in terms of Rule 3(2) (ii) & (iii) of the Indian Administrative
Service (Pay) Rules, 2007, in addition to the two vacancies in the said grade to
which concurrence had earlier been given by its letter dated 19.9.2008.
14. Preliminary objections were raised with regard to territorial jurisdiction
and limitation but the tribunal, after referring to Sections 20 and 21 of the
Administrative Tribunals Act, 1985, came to hold that the Principal Bench at
Delhi has jurisdiction to entertain the original application and further the delay,
if any, deserves to be condoned and, accordingly, so ordered. Thereafter, the
tribunal proceeded to deal with the merits of the case.
15. The principal contention that was urged before the tribunal on behalf of
the applicant was that the respondents in complete disregard of the statutory
provisions engrafted under the All India Services Act, 1951, the Rules and
Regulations framed thereunder erroneously determined the vacancies in SDR
and on the said basis, two ex-cadre posts could not have been created and
resultantly the Government of India could not have given its concurrence for two
vacancies in the apex scale by acceding to the initial proposal of the State
Government. It was also urged that while effecting promotion to the grade of
Chief Secretary, the basic requirement stipulated under Rule 9(7) of the 2000
WP(C) 3457/2011 & connected matters page 14 of 60
Rules which has to be read in conjunction with Rule 8(2) of the 1954 Rules was
not kept in view.
16. Quite apart from the above, it was also contended that the Govt. of
Uttarakhand in creating 18 posts in May, 2010 abused its power under the
second proviso to Rule 4 (2) of the 1954 Rules. Placing reliance on E.P. Royappa
V. State of Tamilnadu & another, (1974) 4 SCC 3, it was asserted that the creation
of posts under the second proviso to Rule 4(2) would not add to the cadre posts,
but were actually to be treated as ex-cadre posts. In this regard, it was submitted
that the State Government does not have the unbridled power to create any
number of posts under Rule 4(2) of the 1954 Rules, as conferment of power
would make the concept of accurate determination of the vacancies under Rule
3(2)(ii) and (iii) totally redundant because the State Government could create any
number of ex-cadre posts in any grade. It was also contended that it would be an
absolutely anomalous proposition that the posts created under Rule 4(2) of the
1954 Rules would be counted against cadre posts.
17. It was also submitted that it was mandatory under the 2007 Rules to seek
prior concurrence of the Central Government for available vacancies for
promotion to selection grade and above. In this regard, reliance was placed on
the communication dated 28.3.2007 of the Additional Secretary (DOP&T) to
WP(C) 3457/2011 & connected matters page 15 of 60
explain the rationale behind the introduction of Rule 3(2)(ii) and (iii) which
basically provide for better cadre management of the service. It was put forth
that such a step was taken as the State Governments were making promotions in
respect of the cadre beyond the number of available vacancies. It was
highlighted that there is no provision for ex-post facto determination of
vacancies in Rule 3(2) of the 2007 Rules or any other Rule. Further, the stand was
taken that on 3.9.2008, as only one cadre post was vacant in Uttarakhand, the
proposal of the State Government for creation of two ex-cadre posts under Rule
9(7) of the 2007 Rules could not have been accepted because on that date the SDR
was already 17 against the prescribed number of 13.
18. It was the applicant‟s grievance that though he was more meritorious than
Subhash Kumar and also senior to him in the gradation list of 1977, yet he was
placed in a position subordinate to him as the Director General, Uttarakhand
Academy, Nainital. It was argued that the Chief Secretary was the president of
the Governing Body of the said Academy whereas the Director General was only
the member secretary. It was urged that the post being inferior in status to the
post of the Chief Secretary, the senior person should have been posted as the
Chief Secretary and the junior should have been posted as the Director General.
WP(C) 3457/2011 & connected matters page 16 of 60
19. On behalf of the second respondent, it was set forth that the applicant was
unfit to be appointed to the post of the Chief Secretary. The applicant could not
have any grievance as he had been appointed to the grade of Chief Secretary as
the post of the Director General, Administrative Academy is equivalent to the
post of Chief Secretary. It was put forth that the only eligibility criteria which
existed for appointment to the post of Chief Secretary was 30 years of service in
the preceding grade and, therefore, the inter-se seniority in the batch is totally
inconsequential. The SDR was not relevant at the stage of sending the proposal
to the Government of India for concurrence of vacancy as the SDR is dynamic in
nature and keeps on fluctuating due to various reasons such as retirement,
transfer, deputation, etc. At no time, the number of ex-cadre posts exceeded the
combined strength of SDR and Central Deputation Reserve (CDR). That apart,
on 3.9.2008, two officers were working in the grade of Chief Secretary and one
cadre post of Director General, Uttarakhand Administrative Academy and one
ex-cadre post were vacant. After concurrence was received for two vacancies on
19.9.2008 from the Government of India, Indu Kumar Pandey, who was
appointed as Chief Secretary, sought voluntary retirement from IAS which was
sanctioned on 2.12.2009. N.S. Napalchyal, who was previously posted on the ex-
cadre post of Additional Chief Secretary, succeeded him as Chief Secretary
WP(C) 3457/2011 & connected matters page 17 of 60
resulting in one more vacancy in the ex-cadre post and, therefore, there was
nothing illegal in the action of the Screening Committee taking cognizance of the
availability of three vacancies as the same is provided under the Promotion
Guidelines, 2000.
20. With respect to creation of 18 additional posts for 2 years, pending cadre
review due in 2009, exercising the powers under the second proviso to Rule 4(2)
of the 1954 Rules, it was urged that the State Government was fully justified in
creating these posts as the development activities of the State had multiplied
considerably after the last cadre review in the year 2004 and there was pressing
need for officers to execute these programmes. As per paragraph 5.2 of the
clarification issued by the DOP&T by letter No. 11033/1/98-AIS(II) dated
23.4.1998, the posts which were created under the above-mentioned cadre rule
were to be counted as temporary addition to the cadre posts and they could not
be counted against SDR which, according to the respondent, was utilized only to
the extent of 9 well within the prescribed limit of 13 on the date of promotion to
the grade of Chief Secretary, i.e., on 31.5.2010. Therefore, the respondent-State of
Uttarakhand was within its right to promote 3 persons from the panel prepared
by the Screening Committee to the apex grade of Chief Secretary. As regards the
third vacancy created due to retirement of N.S. Napalchyal, it was reiterated that
WP(C) 3457/2011 & connected matters page 18 of 60
there was no need to write to the Government of India for concurrence as the
later approval given by the Government of India, for all practical purposes, did
tantamount to deemed approval under Rule 3(2)(ii) & (iii) of the IAS (Pay) Rules,
2007. It was contended that as the applicant had already been promoted to the
grade of Chief Secretary, his contention that he would have better chances of
promotion to the said post had there been only two contenders for that instead of
four, is not tenable because chance of promotion is not a right. Reliance was
placed on the decisions rendered in The State of Mysore v. G.N. Purohit & Ors,
(1967) SLR 753; Ramchandra Shankar Deodhar & Ors. v. State of Maharashtra
& Ors, (1974) 1 SCC 3; Mohmmad Shujat Ali & Ors, v. UOI & Ors., (1975) 3 SCC
76; and Bakshish Singh v. UOI & Ors., 1985 (Supp.) SCC 116.
21. The fifth respondent - Subhash Kumar emphasizing the words "at that
level of pay" used in the Rule 9(7) of the 2007 Rules contended that two ex-cadre
posts could be created without the permission of the Central Government as two
cadre posts existed at the time of creation.
22. The seventh respondent - N.S. Napalchayal, placing reliance on K.A.
Nagmani v. Indian Airlines & Ors., (2009) 5 SCC 515, contended that the
applicant had no right to challenge the creation of two ex-cadre posts by order
dated 19.9.2008 because he participated in the selection and chose not to
WP(C) 3457/2011 & connected matters page 19 of 60
challenge the procedure before the meeting of the Screening Committee. Even if
selection was at all to be set aside, the selection of the applicant would also be set
aside. With regard to the applicant‟s claim of violation of paragraph 24 of the
Guidelines of 2000, it was argued that the guidelines were only directory in
nature and did not create any legal right for their enforcement. That apart, SDR
and CDR had to be jointly seen and the status of the SDR was, therefore, relevant
at the time of promotion. Placing reliance upon Citizens for Justice and Peace v.
State of Gujarat & Ors., (2009) 11 SCC 213, it was asserted that the appointment
to the post of Chief Secretary being a sensitive post, it is the prerogative of the
State Government to choose an eligible candidate and no one has a right to be
posted in a particular post.
23. The fundamental issues that emerged for consideration before the tribunal
in the backdrop of the 1954 Rules, IAS (Fixation of Cadre Strength) Regulations,
1955, clarificatory letter dated 13.06.2000 of the DOP&T, para 24 of the general
guidelines for promotion issued by the Central Government on 28.3.2000, and
the 2007 Rules were whether the State Government could create additional posts
and further, whether the promotion to the apex grade of Chief Secretary had
been done in a legally justified manner when there was no prior concurrence by
the Central Government.
WP(C) 3457/2011 & connected matters page 20 of 60
24. The tribunal opined that consideration for promotion is a legal right and
the issue has not to be looked at from the viewpoint that whether the applicant
once promoted to the apex grade could have any right to the post of Chief
Secretary. The tribunal held that at the time of selection for the post of Chief
Secretary, if the rules had been scrupulously observed, the applicant would have
been the only person to be promoted as there was a singular vacancy in the
grade of Chief Secretary on 30.9.2008. It has also been opined by the tribunal that
the creation of two ex-cadre posts by the State Government was in violation of
the rules and even if the consideration was for two vacancies, as approved by the
Central Government, Subhash Kumar, who was appointed as the Chief
Secretary, could not have been selected and only Sunil Kumar Muttoo, the fourth
respondent in OA No.2537/2010, could have made it to the apex grade and the
scenario would have been quite different.
25. The tribunal repelled the stand that as the applicant has already been
promoted to the grade of Chief Secretary, he could not have any grievance on the
foundation that he has been deprived of the right to be appointed to the post of
Chief Secretary on the ground that promotions made to the apex grade were in
violation of the 2007 Rules. The tribunal opined that a plain reading of Rule
3(2)(ii) of the 2007 Rules would make it amply clear that the State Cadre has to
WP(C) 3457/2011 & connected matters page 21 of 60
seek prior concurrence of the Central Government on the number of available
vacancies in each grade and the said Rule is absolutely unambiguous. The
tribunal further made observations as to the intent behind the Rule and said that
the same is clear from the letter dated 28.03.2007 of the DOP&T. It stated that the
letter provides in clear terms that it shall be mandatory upon the State Cadre to
seek prior concurrence of the Central Government on the number of available
vacancies in each grade. Thereafter, the tribunal proceeded to state as follows:
"This letter, in essence, captures the illegality committed by
the Respondents in not seeking prior concurrence for the third
vacancy, only on the ground that it was an obvious vacancy.
There is no such exemption in the aforesaid rule that if in the
opinion of the State Government a vacancy was obvious, there
was no need to seek prior concurrence. The reading of the
Rule would also show that there is no provision for ex post
facto approval. There is no merit in the contention raised on
behalf of the Respondents that by order dated 16.10.2010 the
Central Government gave its deemed approval for creation of
posts under Rule 3(2)(iii) of the IAS (Pay) Rules, 2007, because
the deemed permission under the said rule is considered to be
given if the proposal of the State Cadre is not concurred in by
the Central Government within one month. It is not deemed
permission, if granted ex-post facto. The Central Government
has violated its own rules by giving ex post facto approval to
the proposal of the State Government.
26. The tribunal further stated that since prior concurrence is necessary for
available vacancies for promotion, it would stand to reason that consideration of
SDR would be relevant only at the time when the approval for the available
WP(C) 3457/2011 & connected matters page 22 of 60
vacancies is given. The tribunal opined that Rule 8(2) of the 1954 Rules and Rule
9(7) of the 2007 Rules have to be read harmoniously. The tribunal thereafter
observed as follows:
"The interpretation that it would mean that the State
Deputation Reserve has to be considered for each grade is
misconceived. The Sub-clause "at that level of pay" is only to
signify that it is referring to earlier sub-clause "other than
cadre posts .................. which carry pay of Rs.26,000...".
Nothing more than this has to be read in this Rule. By no
stretch of the imagination this rule can be interpreted to mean
that the status of the State Deputation Reserve has to be seen
for each grade. Indubitably, it has to be seen for all the cadre
posts together. It is entirely the choice of the State Cadre to
create ex-cadre posts in any of the grades. But put together
these cannot exceed the State Deputation Reserve. If it were
so, the State Deputation Reserve would have been worked out
for each of the posts. The only qualification is that in the apex
scale only that number of ex-cadre posts can be created, which
exist in the Senior Duty Posts, that is, cadre posts. It would be
wrong to interpret it to mean that regardless of the utilization
of SDR, as many ex-cadre posts can be created in the apex
grade as there are cadre posts (two posts in the instant case).
When it was clearly mentioned in the letter dated 03.09.2008
of the State Government that the utilisation of SDR was 17,
beyond the prescribed 13, the Central Government was in
error in approving the available vacancies as two."
27. The tribunal accepted the stand of the applicant that on 03.09.2008, only
one vacancy in the cadre post was available and that alone should have been
considered for filling up. The tribunal stated that it would be erroneous to hold
that there has been no infraction of any rule as all the rules and regulations and
WP(C) 3457/2011 & connected matters page 23 of 60
the instructions issued under them have to be read together. A combined reading
of the rules and instructions would make it abundantly clear that the SDR has to
be considered at the time of giving approval for the available vacancies and not
at the time of making promotions; and that prior concurrence of the Central
Government would be necessary before the meeting of the Screening Committee.
The argument that the SDR and the CDR have to be jointly considered was
misconceived. The tribunal opined that a careful reading of the Office
Memorandum dated 27.01.2005, cited by the respondents therein, does not
support the contention that for creation of ex-cadre posts, SDR and CDR have to
be jointly considered. The OM adverted to, only stipulates that the number of
persons on ex-cadre posts and on central deputation shall not exceed SDR + CRD
and, therefore, the number of persons on central deputation would not exceed
the CDR.
28. After so stating, the tribunal referred to the second proviso of Rule 4(2) of
the 1954 Rules which provides that the State Government concerned may add for
a period not exceeding two years and with the approval of the Central
Government for a further period not exceeding three years to a State or Joint
Cadre, one or most posts carrying duties or responsibilities of a like nature to
WP(C) 3457/2011 & connected matters page 24 of 60
cadre-post. The tribunal referred to paragraph 5.2 of the clarification issued by
the DOP&T and thereafter proceeded to express thus:
"The posts created by the State Government are such posts,
which already exist in the cadre like Principal Secretary or
Additional Chief Secretary. These posts, as would be clear
from the highlighted portion of the clarification of 23.04.1998
would be counted in State Deputation Reserve. If posts
created had been of the nature carrying duties and
responsibilities of a like nature to cadre posts, such as, for
example, Officer on Special Duty, these would be counted as
temporary addition to cadre posts. In fact the second proviso
to Rule 4(2) ibid only sanctions creation of such posts, which
are "of a like nature to cadre posts" and not the creation of
posts already existing in the cadre. Therefore, temporary
creation of the posts of Principal Secretary and Additional
Secretary under second proviso to Rule 4(2) ibid would not
count in the cadre posts. Moreover, this stand is in the teeth
of the ratio laid down by the Honourable Supreme Court in E
Royappa, wherein it has been held in paragraph 18 that the
second proviso to the Rule 4 (2) of the IAS (Cadre) Rules, 1954
does not confer any power on the State Government to alter
the strength and composition of the cadre. It has been clearly
held that the posts which are added under the second proviso
do not increase the strength of the Cadre. In paragraph 81
ibid it has been held that only the Central Government can
alter the strength of the cadre in its cadre review. The State
Government cannot make any permanent addition to the
cadre strength. Moreover, we have already held that the
status of State Deputation Reserve has to be considered at the
time of granting of approval for available vacancies and not at
the time of promotion. The argument advanced was that at
the time of promotion the utilisation of State Deputation
Reserve was 9 because of the creation of 17 additional posts.
The argument is neither correct nor material for consideration
in the circumstances of this case."
WP(C) 3457/2011 & connected matters page 25 of 60
29. After so holding, it has been further observed by the tribunal that in the
obtaining factual matrix, it was possible on the part of the State Government to
go back to the Central Government and seek fresh prior concurrence as the
promotions were made only in May, 2010. It repelled the argument that in
praesenti, it would be an exercise in futility to ask the State Government to
reconsider the issue as all concerned have been extended the benefit of
promotion because the said promotions had been made in total contravention of
the prescribed rules and further had the promotion been made in accordance
with the rules, the scenario for the selection to the post of Chief Secretary would
have been different. Being of this view, it proceeded to direct as follows:
"38. On the basis of the above consideration, the impugned
orders dated 19.9.2008 and 13.10.2010 and all the
consequential promotions made by the State Government are
quashed and set aside, including that of the Applicant. The
State Government is directed to make fresh selections after
following due procedure as per the law within two months
from the receipt of a certified copy of this order as per the
existing position of the existing posts and SDR et cetera.
However, the present arrangement may continue in the
interest of administration for two months till fresh selection is
made."
30. For the sake of convenience, we think it apposite to enumerate the
conclusions arrived at by the tribunal in seriatim:
WP(C) 3457/2011 & connected matters page 26 of 60
(a) The stand of the State of Uttarakhand that the vacancies in the SDR and
the CDR are to be jointly computed and the status of the SDR is relevant
only at the time of effecting promotion is unacceptable.
(b) The SDR would be relevant only at the time when the approval for the
available vacancies is given, and under Rule 8(2) of the 1954 Rules, a cadre
officer is not entitled to hold an ex-cadre post in excess of the State
Deputation Reserve.
(c) The ex-cadre posts in the apex grade shall not exceed the number of cadre
posts at that level.
(d) As it was clearly mentioned in the letter dated 3.9.2008 of the State
Government that the utilization of SDR was 17 beyond the prescribed
number of 13, the Central Government had committed an error in
approving the available vacancies as 2 whereas on 3.9.2008, only 1 vacancy
in the cadre post was available.
(e) The second proviso to Rule 4(2) of the 1954 Rules read with paragraph 5.2
of the clarification issued by the DOP&T categorically conveys that the
State Government cannot create posts already existing in the cadre but can
WP(C) 3457/2011 & connected matters page 27 of 60
only create posts which are "of a like nature to cadre post" and such
creation of posts would not count towards the posts in the cadre.
(f) If Rule 4(2) of the 1954 Rules and Rule 3 and Rule 9 of the 2007 Rules are
conjointly read, it would clearly convey that the State Government has no
authority to alter the strength and composition of the cadre.
(g) The concurrence given by the Central Government initially on 12.9.2008
was incorrect as concurrence could have been given only in respect of 1
post.
(h) The post facto concurrence given on 13.10.2010 would not validate the
promotions as obtaining of prior concurrence under the 2007 Rules is
mandatory.
(i) The stand of the State Government and other respondents that issue of a
direction for fresh consideration would be an exercise in futility is
unacceptable as the promotions have been given in contravention of the
prescribed Rules and Regulations.
31. We have heard Mr.Soli J. Sorabjee, learned senior counsel along with
Ms.Rachana Srivastava, learned counsel for the petitioner in WP(C)
Nos.3476/2011 and 3477/2011, Mr.Dushyant Dave and Mr.Nidesh Gupta,
WP(C) 3457/2011 & connected matters page 28 of 60
learned senior counsel along with Mr.Sumit Bansal, learned counsel for the
petitioner in WP(C) Nos.3485/2011 and 3486/2011, Mr.Mata, learned senior
counsel along with Mr.Apoorv Tiwari, learned counsel for the petitioner in
WP(C) No.3457/2011 and for the respondent no.1 in WP(C) Nos.3476/2011,
3477/2011, 3485/2011 and 3486/2011 and Mr.A.S.Chandhiok, learned ASG along
with Mr.Sanjeev Sachdeva, learned counsel for the respondent-Union of India in
all the writ petitions. Be it noted, we have heard all the contesting parties.
32. Mr. Mata, learned senior counsel appearing for Mr. Ajay Kumar Joshi,
criticizing the order of the tribunal, contended that the State Government could
not have promoted the respondents when the posts were not sanctioned in terms
of Rule 3(2)(ii) and (iii) of the 2007 Rules as the said Rule is mandatory in nature
and the posts in the grade can only be sanctioned when there is prior
concurrence by the Central Government. It is urged by him that there is a
distinction between prior concurrence and post facto concurrence and the post
facto concurrence would never cure the defect since as per the postulates
enshrined in the Rule, prior concurrence is mandatory and to that extent, the
conclusion arrived at by the tribunal is absolutely correct and justified and does
not require interference by the Court. The learned counsel would further submit
that the tribunal has failed to appreciate the case of the petitioner inasmuch as
WP(C) 3457/2011 & connected matters page 29 of 60
the stand of the petitioner was that he was the only candidate who could have
been considered regard being had to his seniority and also taking note of the fact
that there was sanction for the post by the Central Government, but the tribunal
has failed to appreciate the same in proper perspective and expressed the view
that the total selection process is erroneous and thereby proceeded to quash the
order of promotion passed in favour of the petitioner and issued a direction to
proceed afresh. To buttress the said submission, the learned senior counsel has
pressed into service the 2007 Rules and drawn inspiration from the decision in
Ashok Kumar Das & Ors v. University of Burdwan & Ors., (2010) 3 SCC 616.
33. It is contended by Mr. Soli J. Sorabjee, learned senior counsel for the State
of Uttarakhand, that the issue of grant of approval is an issue which is between
two governments, namely, the State Government and the Union of India and
does not confer any cause of action on a member of the service. The learned
senior counsel submitted that the fixation of cadre strength is within the
exclusive domain of the Central Government and the State Government and
when there is a post-facto approval, this should be regarded as a matter
pertaining to the adjustment of the cadre strength and hence, the tribunal has
totally erred in lancetting the same. His further submission is that the
respondent No.1, Ajay Kumar Joshi, the applicant before the tribunal, was
WP(C) 3457/2011 & connected matters page 30 of 60
promoted to the apex scale, the Chief Secretary grade and, therefore, he had no
concern how the vacancies were determined and concurrence was given. The
Screening Committee took cognizance of the vacancies on an additional post
created temporarily under second proviso to Rule 4(2) of the 1954 Rules as a
consequence of which the right of the said applicant was never infringed.
34. Mr. Chandhiok, learned Additional Solicitor General for Union of India,
urged that the controversy, if any, was between the State Government and the
Central Government and when the Central Government has granted post-facto
approval, the controversy, if any, should have been allowed to put to rest. It is
his further submission that in a matter of cadre adjustment, the incumbents
cannot have any say and the tribunal has fallen into grave error by entertaining
the same in exercise of the power of judicial review.
35. Mr.Dushyant Dave, learned senior counsel appearing for the petitioner in
WP (C) Nos. 3485/2011 and 3486/2011, has submitted that it is the prerogative of
the State Government to appoint the eligible person as Chief Secretary and no
incumbent has a right to claim appointment or promotion to a particular post.
The learned senior counsel would submit that the tribunal has fallen into grave
error by laying unnecessary emphasis on the "chances of promotion" vis-à-vis
the post in question. It is canvassed by him that the tribunal should have
WP(C) 3457/2011 & connected matters page 31 of 60
accepted the stand of the respondent that once the applicant before the tribunal
had been brought in the grade of Chief Secretary, the controversy is put to rest
and it should not have adverted to the facet of claim of the applicant that his
consideration for the post of Chief Secretary has been curtailed by creating
further posts without prior concurrence of the Central Government.
36. To appreciate the controversy in proper perspective, it is necessary to refer
to the various rules, regulations and guidelines and dwell upon the controversy.
37. Rule 4 of the 1954 Rules deals with strength of cadre. The said rule reads
as follows: -
"4. Strength of Cadres -
(1) The strength and composition of each of the cadres
constituted under Rule 3 shall be as determined by
regulations made by the Central Government in
consultation with the State Governments in this behalf
and until such regulations are made, shall be as in force
immediately before the commencement of these rules.
(2) The Central Government shall, ordinarily at the interval
of every five years, re-examine the strength and
composition of each such cadre in consultation with the
State Government or the State Governments concerned
and may make such alterations therein as it deems fit:
Provided that nothing in this sub-rule shall be deemed
to affect the power of the Central Government to alter
the strength and composition of any cadre at any other
time:
WP(C) 3457/2011 & connected matters page 32 of 60
Provided further that State Government concerned may
add for a period not exceeding two years (and with the
approval of the Central Government for a further
period not exceeding three years) to a State or Joint
Cadre one or more posts carrying duties or
responsibilities of a like nature to cadre posts."
[Emphasis supplied]
38. Rule 7 deals with posting. It reads as follows: -
"7. Posting - All appointments to cadre posts shall be
made-
a. In the case of a State Cadre, by the State Government;
and
b. In the case of a Joint Cadre, by the State Government
concerned."
39. Rule 8 provides for cadre and ex-cadre posts to be filled by cadre officers.
It is as follows: -
"8. Cadre and ex-cadre posts to be filled by cadre officers-
(1) Save as otherwise provided in these rules, every cadre
posts shall be filled by a cadre officer.
(2) A cadre officer shall not hold an ex-cadre post in excess
of the number specified for the concerned State under Item 5
(now item 3) of the Schedule to the Indian Administrative
Service (Fixation of Cadre Strength) Regulations, 1955.
(3) The State Government may, with the prior approval of
the Central Government, appointed a cadre officer to hold an
ex-cadre post in excess of number specified for the concerned
State in item 5 (now item 3) of the Schedule to the Indian
WP(C) 3457/2011 & connected matters page 33 of 60
Administrative Service (Fixation of Cadre Strength)
Regulations, 1955 and, for so long as the approval of the
Central Government remains in force, the said ex-cadre post
shall be deemed to be addition to the number specified in item
5 (now item 3) of the said Schedule."
[Emphasis supplied]
40. At this juncture, we may refer to sub-rule (2) of Rule 3 of the 2007 Rules. It
is as follows:-
"3. Scale of pay and appointment in these grades.
(1) xxx xxx xxx
(2)(i) Appointment to the Selection Grade and to posts
carrying pay above this grade in the Indian
Administrative Service shall be made by selection on
merit, as per criteria that may be prescribed by the
Central Government with due regard to seniority.
Provided that a member of the Service shall be
appointed to the Super Time Scale only after he has
completed phase IV mandatory Mid Career Training as
prescribed.
(ii) Appointment of a member of the Service in the scales of
Selection Grade and above shall be subject to
availability of vacancies in these grades and for this
purpose, it shall be mandatory upon the State Cadres or
the Joint Cadre Authorities, as the case may be, to seek
prior concurrence of the Central Government on the
number of available vacancies in each grade.
(iii) The Central Government shall accord such concurrence
within a period of thirty days from the date of receipt of
such references and if the Central Government does not
accord concurrence within a period of said thirty days,
WP(C) 3457/2011 & connected matters page 34 of 60
the concurrence on availability of vacancies shall be
deemed to have been accorded. The position emanating
as referred to this clause shall be placed before the
Screening Committee at the time it meets to consider
promotion in these grades.
(iv) A member of the Service shall be entitled to draw pay in
the scales of Selection Grade and above only on
appointment to these grades."
[Underlining by us]
41. The relevant part of Rule 9, which deals with pay of members of the
service appointed to posts not included in Schedule II, is enumerated herein
below: -
"9. Pay of members of the Service appointed to posts and
included in Schedule II.
(1) No member of the Service shall be appointed to a post
other than a post specified in Schedule II, unless the
State Government concerned in respect of posts under
its control, or the Central Government in respect of
posts under its control, as the case may be, make a
declaration that the said post is equivalent in status and
responsibility to a post specified in the said Schedule.
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) Notwithstanding anything contained in this rule, the
State Government concerned in respect of any posts
under its control, or the Central Government in respect
of any posts under its control, may, for sufficient
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
WP(C) 3457/2011 & connected matters page 35 of 60
equivalent in status and responsibility of a post
specified in Schedule II.
(5) & (6) xxx xxx xxx
(7) At no time the number of members of the Service
appointed to hold posts, other than cadre posts referred
to in sub-rule (1) and sub-rule (4), which carry pay of
Rs.26,000/- per mensem and which are reckoned
against the State Deputation Reserve, shall except with
the prior approval of the Central Government, exceed
the number of cadre posts at that level of pay in a State
cadre or, as the case may be, in a Joint cadre."
[Emphasis supplied]
42. On a careful scrutiny of the factual scenario in question and the
submissions urged, the core issues that emanate for consideration are:-
(i) What is the exact role of the State Government and the Central
Government in the fixation of cadre strength?
(ii) Whether the post facto concurrence would cure the defect despite the
language employed in Rule 3(2)(ii) and (iii) of the 2007 Rules?
(iii) Whether the tribunal is justified in quashing the promotions of all the
incumbents on the ground that there has been violation of the Rules and
Regulations?
WP(C) 3457/2011 & connected matters page 36 of 60
(iv) Can an eligible person put forth a claim for being posted as Chief Secretary
on the ground that when the post was going to be filled up, he was the
only candidate eligible for consideration?
43. First, we shall advert to the issue with regard to the existence of cadre and
ex-cadre posts in the State of Uttarakhand as determined by the tribunal. As is
manifest, placing reliance on Rule 4(2) of the 1954 Rules read with Rule 8 of the
said Rules, the tribunal has opined that the determination of the cadre post by
the State is unacceptable and further the ex-cadre post had exceeded its limit.
While dealing with the role of the Central Government in creation of post, their
Lordships in E.P. Royappa (supra) have ruled thus:
"17. It was contended that neither the post of Deputy
Chairman, Planning Commission nor the post of Officer on
Special Duty was a Cadre post within the meaning of Rule 4
of the Indian Administrative Service (Cadre) Rules, 1954. The
Additional Solicitor-General as well as the Advocate-General
of the State did not contend that either of the posts was a
Cadre post within the meaning of the Indian Administrative
Service (Cadre) Rules. The strength and composition of the
Cadre as contemplated by Rule 4 of the Indian Administrative
Service (Cadre) Rules is to be determined by the Central
Government in consultation with the State Government. The
relevant provision is sub-rule (2) of Rule 4. It states that the
Central Government shall at the interval of every three years
re-examine the strength and composition of each such Cadre
in consultation with the State Government or the State
Governments concerned and may make such alternations as it
deems fit. There are two provisos in the sub-rule. The first
WP(C) 3457/2011 & connected matters page 37 of 60
proviso states that nothing shall be deemed to affect the
power of the Central Government to alter the strength and
composition of the Cadre at any other time. The second
proviso states that the State Government may add for a period
not exceeding one year and with the approval of Central
Government for a further period not exceeding two years, to a
State or joint Cadre one or more posts carrying duties and
responsibilities of a like nature of Cadre posts. It, therefore,
follows that the strength and composition of the Cadre shall
be determined by regulations made by the Central
Government in consultation with the State Government. The
State Government alone cannot alter the strength and
composition of the Cadre.
18. The aforementioned second proviso to Rule 4(2) of the
Cadre Rules does not confer any power on the State
Government to alter the strength and composition of the
Cadre. If such power were conferred on the State examination
of the strength and composition at the interval of every three
years by the Central Government in consultation with the
State Government would be nullified. The meaning of the
second proviso to Rule 4(2) is that the State Government may
add for a period mentioned there to the Cadre one or more
posts carrying duties and responsibilities of the like nature of
a Cadre post. The posts so added do not become Cadre posts.
These temporary posts do not increase the strength of the
Cadre. The addition of the post of Deputy Chairman,
Planning Commission or Officer on Special Duty to the Indian
Administrative Service Cadre of Tamil Nadu State is not
permissible because that would result in altering the strength
and composition of the Cadre. The State has no such power
within the second proviso to Rule 4(2) of the Cadre Rules."
[Emphasis added]
44. In this context, we may refer with profit to the decision in K. Prasad &
Ors. v. Union of India & Ors., AIR 1988 SC 535 wherein, while dealing with the
WP(C) 3457/2011 & connected matters page 38 of 60
strength and composition of the cadre under the IFS (Cadre) Rules, 1966,
especially Rule 4 of the said Rules, their Lordships referred to the decision in
E.P. Royappa (supra) and expressed the view as follows:
"22. ...The argument is that it is for the Central Government
to fix the strength and composition of the cadres and that this
power can be exercised by it at any time. The first proviso to
rule 4(2) of the Cadre Rules, it is said, places this beyond all
doubt. As against this, it is contended by the direct recruits
that the proviso relied upon is only a proviso to rule 4(2) and
does not extend to rule 4(1). It is urged that it has application
only to the power of the Central Government to make
alterations to the cadre strength in between the three-year
review contemplated by rule 4(2). Shri Kakkar, in this context,
referred us to the following observations in Royappa v. State
of Tamil Nadu, (1974) 2 SCR 348 at p.379 : (AIR 1974 SC 555 at
p.578):
"We now turn to the first ground of challenge which
alleges contravention of the second proviso to R.4(2) of
the Indian Administrative Service (Cadre) Rules, 1954
and R.9, sub-r. (1) of the Indian Administrative Service
(Pay) Rules, 1954. So far as the second proviso to R.4(2)
of the Indian Administrative Service (Cadre) Rules, 1954
is concerned, we do not think it has any application.
That proviso merely confers limited authority on the
State Government to make temporary addition to the
cadre for a period not exceeding the limit therein
specified. The strength and composition of the cadre
can be determined only by the Central Government
under R.4(1) and the Central Government alone can
review it triennially or at any other intermediate time
under R.4(2)."
23. We do not think that such a narrow interpretation of the
proviso is warranted. As we see it, the proviso only outlines
WP(C) 3457/2011 & connected matters page 39 of 60
the general principle that, whoever has the power to do a
particular thing has also the power to exercise it from time to
time, if need be : (vide, S.14 of the General Clauses Act, 1897).
It had to be specifically put in because of the language of the
main part of sub-rule (2) providing for a triennial review lest it
should be construed as a restriction on the general power
otherwise available. We, therefore, agree with the contention
of the initial recruits that the Central Government has the
power to alter the strength and composition of the cadres at
any time. We are, however, still of the view that the
contention urged on behalf of the initial recruits cannot be
accepted for a different reason. If the terms of the relevant
rules are scrutinised, it will be seen that the strength and
composition of the cadre has to be determined by regulations
and that these regulations have to be made by the Central
Government in consultation with the State Government. It is
a well settled principle that, if a statutory power has to be
exercised in a particular manner, any exercise of that power
has to comply with that procedure. It follows, therefore, that
if the initial composition can be only drawn up in consultation
with the State Government and by regulations, it will not be
permissible for the Central Government to modify or alter the
same save in the same manner. In fact also, it has been
brought to our notice, there have been subsequent increases in
the authorised strength of almost all State cadres and this has
been effected by an appropriate amendment to the
Regulations. It is not the case of the Government that before
the second and third selections were made, either the State
Government was consulted or the regulations were amended
for increasing the strength. Nor is it even their case that there
was any specific order by the Central Government changing
the strength and composition of any cadre. We are, therefore,
of opinion that it is not possible to accept the contention of the
initial recruits that the mere appointment of an excess number
of officers should be treated as an automatic expansion of the
cadre strength and composition in exercise of the power
available under Rule 4(1)."
[Underlining is ours]
WP(C) 3457/2011 & connected matters page 40 of 60
Be it noted, in the said case, a contention was raised that the Regulations
and the Rules were not mandatory as they do not outline the consequences that
will follow on violation of their requirements. Repelling the said submission,
their Lordships proceeded to hold as follows:
"It is difficult to accept, in this context, the submission that the
cadre strength could be varied without amending the
Regulations and schedule or without consulting the State
Government concerned. The former course would leave the
strength of the cadre easily alterable, fluctuating and
indeterminable and thus nullify the entire purpose of the
Cadre Strength Regulation. So far as the latter is concerned,
this Court held, in Kapur v. Union of India, (1975) 2 Serv LR
531 (Punj & Har) that it is open to a State Government to
overutilise the deputation reserve in an All India Service
without consulting the Central Government. Equally, we
think, it is not open to the Central Government to alter the
strength and composition of the Cadre without consulting the
State Government concerned. "
[Emphasis supplied]
45. We have referred to the aforesaid decision in extenso as we find that what
has been laid down therein is that the procedure prescribed under the Rules are
to be followed. It is not open to the State Government to overutilize the
deputation reserve in All India Service without consulting the Central
Government and similarly the Central Government is not empowered to alter the
WP(C) 3457/2011 & connected matters page 41 of 60
strength and composition of the cadre without consulting the State Government
concerned.
46. In this context, we may refer with profit to a passage from Harjeet Singh v.
Union of India & Ors., (1980) 3 SCC 205 wherein their Lordships, while
interpreting Rule 9 of the IPS (Cadre) Rules, 1954 and IPS (Fixation of Cadre
Strength) Regulations, 1955, have opined thus:
"On the other hand we think that the Fixation of Cadre
Strength Regulations made Under Rule 4 of the Cadre Rules
do not over-ride the Recruitment Rule, the remaining Cadre
Rules and the Seniority Rules so as to render invalid any
service rendered by a non-cadre officer in a cadre post on the
mere ground of breach of the Fixation of Cadre Strength
Regulations, when there has been strict compliance with Rule
9 of the Cadre Rules. We think that fixation of Cadre strength
is the exclusive concern of the Central and the State
Governments and the Regulations are made for their
convenience and better relationship. Excessive utilisation of
'Deputation or Central Reserve' is a matter for adjustment and
controversy between the Central and the State Governments
and is of no concern to any member of the Service. For
example no cadre officer who is asked to fill a deputation post
can refuse to join the post on the ground that the 'Deputation
Reserve' has already been exceeded. The Regulations are not
intended to and do not confer any right on any member of the
Service, unlike some other Rules which do confer or create
rights in the members of the Services. Among other Rules, for
instance, Rule 9(2) of the Recruitment Rules stipulates that the
total number of persons recruited by promotion shall not at
any time exceed 25% of the posts shown against item Nos. 1
and 2 of the cadre in the schedule to the Fixation of Cadre
Strength Regulations. Now, if at a point of time this limit is
WP(C) 3457/2011 & connected matters page 42 of 60
exceeded, direct recruits may have a just cause for complaint
and it may perhaps be held that to the extent of the excess the
appointments by promotion are invalid and confer no rights
of seniority over direct recruits. But, as we said, the Fixation of
Strength Regulation confer no rights on members of the
Service and a mere breach of the Regulation furnishes no
cause of action to any member of the service on the ground
that, his seniority is affected in some round about way."
[Emphasis supplied]
47. At this stage, we may refer to the decision in K. Rajendran & Ors. v. State
of Tamil Nadu & Ors., AIR 1982 SC 1107. We are absolutely conscious that the
said decision was rendered in a different context but their Lordships have delved
into the concept of Governmental administration and the necessities of
alterations in the staffing pattern and have opined that it is within the exclusive
domain of the executive, of course subject to judicial review within permissible
parameters.
48. The scope of judicial review as far as fixation of cadre strength is
concerned rests on the principle whether there had been proper determination of
cadre strength as per the rules. On an x-ray of the anatomy of the Rules, it is
vivid that the determination of the strength of the cadre has to be done by both
the Governments in consultation. The stand of the State is that the number of ex-
cadre posts at no point of time exceeded the combined strength of the SDR and
CDR posts. Pending cadre review in 2009 in exercise of Rule 4(2) of the 1954
WP(C) 3457/2011 & connected matters page 43 of 60
Rules, 18 additional posts for two years were created. It was also the stand that
two posts existed on 3.9.2008 as two officers were working, one as the Chief
Secretary and the other as Director General, Uttarakhand Administrative
Academy and both the posts were in the grade of Chief Secretary. One ex-cadre
post was vacant and, hence, concurrence was sought for two vacancies and after
concurrence, two posts resulted. The tribunal has opined that when the State
Government had communicated that the utilization of SDR was 17 beyond the
prescribed limit of 13, the Central Government was in error in approving the
available vacancies as the vacancy position was one.
49. In this context, we may refer with profit to the communication of the
competent authority of the Central Government on 19.9.2008. It reads as follows:
"I am directed to refer to your letter Nos.2255/Thirty/-I-2008-
12(19)/2005 dated 3.9.2008 on the abovementioned subject
and to convey the concurrence of this Department to the
availability of 2 vacancies in ASTS-II. Rs.26,000/- of IAS in
Uttarakhand as per the provisions of Rule 3(2)(ii)&(iii) of the
IAS(Pay) Rules, 2007."
50. After the said concurrence was given, as the factual matrix reveals, the
State Government, by order dated 31.5.2010, promoted three officers to the Chief
Secretary grade against three vacancies. Because of the said position, the State
WP(C) 3457/2011 & connected matters page 44 of 60
Government, by letter dated 8.10.2010, wrote to the Central Government stating
thus:
"2. Pursuant to concurrence given by the Government of
India, a meeting of Screening Committee could be held on the
19th February, 2010. In the meeting due to retirement of the
Chief Secretary Mr. Indu Kumar Pande on 2nd December,
2009, one more vacancy in Chief Secretary grade, had
occurred. Therefore, the Screening Committee took the
cognizance of three obvious vacancies in the Chief Secretary
grade (one against cadre posts and two against ex-cadre posts)
and furnished its recommendations accordingly. Taking into
consider the recommendations made by the Screening
Committee, the State Government vide order dated 31st May,
2010 promoted three officers to the Chief Secretary grade
against three obvious vacancies available in this grade.
3. Since the meeting of Screening Committee was held in
pursuance of the concurrence given by the Government of
India‟s letter dated 19th September, 2008 and the State
Government had issued promotion orders accordingly,
therefore, the Government of India has also been apprised of
the aforesaid facts vide State Governments letter No.807,
dated 31st May, 2010, a copy of which is being enclosed
herewith. By this letter, the Government of India‟s approval
to the actions taken by the State Government in this matter
was also sought (Enclosure-III). The statement showing
grade-wise sanctioned strength of SDP and SDR and officers
in position against the sanctioned strength as on 31st May,
2010 is also enclosed with this letter of 31st May, 2010.
4. Here, it is also worthwhile to mention that by making
the said promotions on 31st May, 2010 all the four posts in the
Chief Secretary grade were filled up. Thereafter, due to
retirement of the then Chief Secretary Shri N.S. Napalchyal on
12th September, 2010, one vacancy in Chief Secretary grade
has occurred and presently only three officers are working in
WP(C) 3457/2011 & connected matters page 45 of 60
this grade. For the promotion against one available vacancy, a
proposal for the concurrence of the Government of India is
being sent separately."
51. After the concurrence was sought, the DOP&T of the Central Government
prepared the following note:
"2. The Chief Secretary has drawn reference to this
Department‟s letter dated 19.9.2008 whereby concurrence to
the availability of 2 vacancies in the Apex Scale was conveyed
and stated that the meeting of the Screening Committee for
filling up these two vacancies was held on 19th February, 2010
and in the same meeting, the Committee also made
recommendations for filling up another vacancy i.e. 3rd
vacancy on account of retirement of Shri Indu Kumar Pande
on 12th December, 2009 for which concurrence of the Central
Government was obtained. On the basis of the
recommendations of the Screening Committee, the State
Government has ordered the promotion of three IAS officers
on 31.5.2010. At the same time the State Government had
requested this Department to convey concurrence to the
availability of 3rd vacancy. The incumbency position provided
by the State Government vide letter dated 31.5.2010 is as
follows:
Grade No. of Utilization No. of Officer on Available Vacancies
Cadre of cadre Officers inter-cadre vacancies for which
posts posts occupying deputation confirmation
Ex cadre is sought
posts
under SDR
Secretary
ASTS 13 13 -- -- -- --
STS 19 15 -- -- -- --
Selection 34 34 9 -- -- --
Grade / Sr.
WP(C) 3457/2011 & connected matters page 46 of 60
Scale /
JAG
3. Rule Position: As per rule 3(2)(ii) of IAS (Pay) Rules,
2007,
"Appointment of a member of the Service in the scales of
Selection Grade and above shall be subject to availability of
vacancies in these grades and for this purpose, it shall be
mandatory upon the State Cadres or the Joint Cadre
Authorities, as the case may be, to seek prior concurrence of
the Central Government on the number of available vacancies
in each grade".
Further, under Rule 3(2)(iii) of IAS(Pay) Rules, "The Central
Government shall accord such concurrence within a period of
thirty days from the date of receipt of such references and if
the Central Government does not accord concurrence within a
period of said thirty days, the concurrence on availability of
vacancies shall be deemed to have been accorded. The
position emanating as referred to this clause shall be placed
before the Screening Committee at the time it meets to
consider promotion in these grades".
4. It may be stated that the said letter of the State
Government for concurrence of one vacancy in the Apex Scale
as on 31.5.2010 doesn‟t appear to have been received in the
Section. However, on the basis of incumbency position given
by the State Government, it is observed that the 3 vacancies in
the Apex Scale as on 31.5.2010 have actually been there. The
no. of ex-cadre posts under SDR quota are also within
permissible limit of 13 posts.
5. If approved, we convey the concurrence to the
availability of 3rd vacancy in the Apex-Scale of IAS in
Uttarakhand cadre."
WP(C) 3457/2011 & connected matters page 47 of 60
52. Thereafter, approval was granted and on 13.10.2010, a letter was
communicated, which is as follows:
"I am directed to refer to the State Government‟s letter
no.807/30-1-10-12(19)/2002-TC, dated 31st May, 2010 and d.o.
no.1470/XXX-1/12(19)2005/TC-I, dated 08.10.2010 on the
above mentioned subject and to convey the concurrence of
this Department to the availability of one vacancy in Apex
Scale of IAS in Uttarakhand cadre as on 31.5.2010 in terms of
the provisions of Rule 3(2)(ii) & (iii) of the IAS(Pay) Rules,
2007, in addition to existing 2 vacancies in this grade already
concurred to by this Department vide letter dated 19.9.2008."
53. On a perusal of these aspects, it is perceptible that whether there existed
two vacancies on 3.9.2008 or not is not clear. True it is, it has been laid down in
Harjeet Singh (supra) that the fixation of cadre strength is the exclusive concern
of the Central and the State Governments and the Regulations are made for their
convenience and better relationship and the excessive utilization of „Deputation
or Central Reserve‟ is a matter of adjustment and controversy between the
Central and the State Governments. Thus, it is in the domain of the Central and
the State Governments. Yet, there has to be application of mind to the
stipulations prescribed under the Rules and Regulations and there cannot be an
oversight of any fact. The tribunal has not really considered how it has precisely
arrived at the conclusion that the ex-cadre posts were not limited to 13 and there
WP(C) 3457/2011 & connected matters page 48 of 60
was only a singular vacancy in the grade of Chief Secretary. Regard being had to
the concept of cadre adjustment and the inter-play of Rule 4 of the 1954 Rules
and Rule 9(7) of the 2007 Rules wherein the Central Government and the State
Government have requisite roles, we are of the considered opinion that there
should be a proper determination of the vacancies in the Chief Secretary grade
that existed on 19.9.2008, the date on which the first concurrence was given by
the Central Government. We are disposed to think that the tribunal has fallen
into error by expressing the view that the singular vacancy existed. The proper
course is to direct both the Governments to determine the vacancy keeping in
view the 1954 Rules, the cadre fixation method and the Regulations.
54. The second and third issues can be dealt on a common base. The plea of
the State Government was that the third vacancy ensued and when the vacancy
existed, the grant of concurrence was a mere formality. The language employed
in Rule 3(2) clearly lays down that the appointment of a member of the service in
the scales of selection grade and above shall be subject to availability of vacancies
in these grades and for this purpose, it shall be mandatory upon the State cadre
or the joint cadre authorities, as the case may be, to seek prior concurrence of the
Central Government on the number of vacancies in each grade. Thus, merely on
the assumption of existence of vacancy, the State Government cannot fill up the
WP(C) 3457/2011 & connected matters page 49 of 60
post. Prior concurrence has its signification and legal sanctity. In this regard, we
may refer with profit to the decision in Union of India and Ors. v. Vinod Kumar
and Ors. (1996) 10 SCC 78 wherein it has been held thus:
"Section 5D(7)(a) of the Employees Provident Fund and
Miscellaneous Provisions Act, 1952 specifies that the method
of recruitment and other conditions of service of Addl. Central
Provident Fund Commissioner and other officers and
employees of the Central Board shall be such as may be
specified by the Central Board in accordance with the rules
and orders applicable to officers and employees of the Central
Government drawing corresponding scales of pay. A proviso
specifies that where the Central Board is of the opinion that it
is necessary to make a departure from the said rules or orders
in respect of any of the matters specified in the main
provision, it shall obtain the prior approval of the Central
Government. Without obtaining such prior approval,
employees were recruited, in deviation of the Rules. It was
contended that ex-post facto approval was obtained. Rejecting
the contention the Supreme Court held:
Under the proviso, where the Central Board is of the
opinion that it is necessary to make a departure from
the said rules or orders in respect of any of the matters
enumerated above it is mandatory that it should obtain
prior approval of the Central Government. Admittedly,
prior approval was not obtained. On the other hand, ex
post facto approval was obtained but in the teeth of the
language of the proviso ex post fact approval is not an
approval in the eye of law. Under these circumstances,
the Tribunal had rightly held that the approval was not
valid in law and the matter was kept at large and
directed the Appellant to issue notification afresh for
recruitment in accordance with rules. We do not find
any illegality in the order."
[Emphasis added]
WP(C) 3457/2011 & connected matters page 50 of 60
55. In U.P. Avas Evam Vikas Parishad and another v. Friends Co-op. Housing
Society Ltd. and another, AIR 1996 SC 114, the Apex Court deliberated on the
difference between approval and permission and proceeded to state as follows:
"5. This Court in Life Insurance Corpn. Of India v.
Escorts Ltd., (1986) 1 SCC 264 : (AIR 1986 SC 1370),
considered the distinction between "special permission"
and "general permission", "previous approval" or
"prior approval" in paragraph 63 held that "we are
conscious that the word "prior" or "previous" may be
implied if the contextual situation or the object and
design of the legislation demands it, we find no such
compelling circumstances justifying reading any such
implication into S.29(1) of the Act". Ordinarily, the
difference between approval and permission is that in
the first case the action holds good until it is
disapproved while in the other case it does not become
effective until permission is obtained. But permission
subsequently granted may validate the previous act. As
to the word "approval" in S.33(2)(b) of the Industrial
Disputes Act, it was stated in Lord Krishna Textiles
Mills Ltd. v. Workmen, (1961) 1 Lab LJ 211 at 215-16 :
(AIR 1961 SC 860 at p.863) that the management need
not obtain the previous consent before taking any
action. The requirement that the management must
obtain approval was distinguished from the
requirement that it must obtain permission, of which
mention is made in S.33(1)."
56. In High Court of Judicature for Rajasthan v. P.P. Singh and another, AIR
2003 SC 1029, a three-Judge Bench of the Apex Court reiterated the principle in
U.P. Avas Evam Vikas Parishad (supra). In the said case, their Lordships
WP(C) 3457/2011 & connected matters page 51 of 60
observed that the decision of the High Court in its interpretation of Rule 15 of the
Rules of the High Court of Judicature for Rajasthan, 1952 was erroneous as it did
not use the words "prior approval". In that context, their Lordships stated thus:
"36. Furthermore, the terminology „consultation‟ used
in R.15 having regard to purport and object thereof
must be given its ordinary meaning. In Words and
Phrases (Permanent Edition, 1960, Volume 9, page 3) to
„consult‟ is defined as „to discuss something together, to
deliberate.‟ Corpus Juris Secundum (Volume 16A, Ed.
1956, page 1242) also says that the word „consult‟ is
frequently defined as meaning „to discuss something
together, or to deliberate.‟ By giving an opportunity to
consultation or deliberation the purpose thereof is to
enable the Judges to make their respective points of
view known to the others and discuss and examine the
relative merits of their view. It is neither in doubt nor in
dispute that the Judges present in the meeting of the
Full Court were supplied with all the requisite
documents and had full opportunity to deliberate upon
the Agenda in question.
37. There is another aspect of the matter which may
require consideration. For all intent and purport the
report of the two-Judges Committee has been approved
by the Full Court. Once approved, it terminated into a
decision of the Full Court itself. In the instant case even
the Governor has acted upon the recommendations of
the High Court. The writ petitioners-first respondents
herein did not question the appointments of the
appointees not the High Court. Thus, there cannot be
any doubt whatsoever that for all intent and purport the
opinion of the two-Judges Committee received approval
at the hands of the Full Court.
WP(C) 3457/2011 & connected matters page 52 of 60
38. The High Court, in our opinion, further
committed a manifest error in arriving in its conclusion
in so far as it failed to take into consideration that R.15
does not postulate the prior approval of the Full Court
in relation to any action which may be initiated by the
Chief Justice."
We have referred to the aforesaid decision solely for the purpose that the
postulate for prior concurrence or prior approval or previous approval stands on
a different footing from approval, "subject to approval" or "grant of permission".
57. In Behari Kunj Sahkari Avas Samiti v. State of Uttar Pradesh and
Ors. (2008) 12 SCC 306, their Lordships have held thus:
"The question whether the transfer or sale of an evacuee
property without prior or previous approval of the Custodian
General is valid and whether post facto approval constitutes
sufficient compliance with the provisions of The
Administration of Evacuee Property Act, 1950.
Section 10(1) enacts that the duty of the custodian is to
preserve and maintain the property. Sub-section (2) enacts
that only for the purposes enumerated in Sub-section (1) there
could be transfer or sale of the property and no such action
could be taken without the previous approval of the
Custodian General. The Supreme Court held on a construction
of the relevant provisions:
"The approval of the Custodian General is to be taken
first. This is clear from the expression "previous
approval", before the order is passed. Post-facto
approval is not sufficient. This procedure was not
followed. Tender process was not adopted which would
have ensured that the best price was available. If the
WP(C) 3457/2011 & connected matters page 53 of 60
order dated 30-1-1985 is a nullity, further action is of no
consequence."
58. Recently, in Ashok Kumar Das and others (supra), a two-Judge Bench of
the Apex Court, while adverting to the expressions „approval of the State
Government‟ and „prior approval‟ has opined thus:
"15. The words used in Section 21(xiii) are not "with
the permission of the State Government" nor "with the
prior approval of the State Government", but "with the
approval of the State Government". If the words used
were "with the permission of the State Government",
then without the permission of the State Government
the Executive Council of the University could not
determine the terms and conditions of service of the
non-teaching staff. Similarly, if the words used were
"with the prior approval of the State Government", the
Executive Council of the University could not
determine the terms and conditions of service of the
non-teaching staff without first obtaining the approval
of the State Government. But since the words used are
"with the approval of the State Government", the
Executive Council of the University could determine the
terms and conditions of service of the non-teaching staff
and obtain the approval of the State Government
subsequently and in case the State Government did not
grant approval subsequently, any action taken on the
basis of the decision of the Executive Council of the
University would be invalid and not otherwise."
59. In Hira Lal Sharma v. Municipal Corporation of Delhi, 64 (1996) DLT 527,
a Division Bench of this Court was considering the provision enshrined under
Section 96 of the Delhi Municipal Corporation Act, 1957 which laid a postulate
WP(C) 3457/2011 & connected matters page 54 of 60
that no appointment to any category A post within the meaning of clause (1) of
sub-section (8) of Section 90 shall be made except after consultation with the
Union Public Service Commission. In that context, the Bench opined as follows:
"When Section 96 is closely examined, the intention of the
legislature becomes crystal clear. The legislators in their
wisdom have incorporated the words "That no appointment
in the category A post shall be made except after consultation
with the Commission. There is a clear legislative mandate that
no appointment shall be made in this category unless there is
prior approval by the Commission. The relaxation has been
made with regard to other categories. The category to which
the post of respondent no.2 belongs is a category where the
Legislature in clear, explicit and categoric terms directed that
the appointment to the said post cannot be made
without prior approval of the Commission."
60. In view of the aforesaid enunciation of law, there can be no scintilla of
doubt that prior concurrence is a categorical imperative. It is absolutely
mandatory. In view of the language employed in the Rules, the post facto
approval would not validate the promotions conferred. However, as we have
opined, whether there existed one or two vacancies when first concurrence was
given had not been ascertained by the Central Government in proper
perspective. The tribunal, as stated hereinbefore, has not appositely analyzed the
vacancy position and has also not taken into consideration the concept of cadre
adjustment. Therefore, we are of the considered opinion that the Central
Government and the State Government should work out the exact number of
WP(C) 3457/2011 & connected matters page 55 of 60
existing vacancies giving due regard to the concept of cadre adjustment. Be it
noted, the tribunal has opined that there was only a singular post in the grade of
Chief Secretary when the first concurrence was given by the Central Government
and, hence, A.K. Joshi being the singular candidate could alone have been
considered for the post of the Chief Secretary. We have already dislodged the
finding with regard to the determination of the vacancy. Hence, we have
directed both the Governments to carry out the exercise afresh. There has to be
application of mind keeping in view the rule position while determining the said
vacancy. The said exercise should be completed within a period of six weeks. At
this juncture, we may note with profit the tribunal, while quashing the orders of
concurrence, had directed the existing arrangement to continue. This Court had
directed status quo to be maintained. In view of the said position, it is directed
that after completing the exercise pertaining to determination of the existing
vacancy a review DPC shall be held and the cases of all incumbents shall be
considered after following the due procedure after obtaining of concurrence
within a period of six weeks. Till the said exercise is carried out, the order of
status quo shall remain in force.
61. The fourth issue pertains to the filling up of the post of Chief Secretary. At
this juncture, it is profitable to refer to the Promotion Guidelines, 2000.
WP(C) 3457/2011 & connected matters page 56 of 60
Annexure I to the said Guidelines deals with the principles regarding the
promotion of members of the IAS and composition of DPCs. Para 6 of the said
Guidelines, which deals with the gradation of Chief Secretary, is as follows: -
"Para VI: Promotion in the Grade of Chief Secretary.
The zone of consideration for promotion in this grade would
consist of all the members of the service who have completed
30 years of service. Appointment in this grade would be
made from amongst the officers thus cleared, at any time
during the relevant year and subject to the provisions of rule
9(7) of the IAS (Pay) Rules, 1954 (as amended in 2007). The
Screening Committee for this purpose shall consist of the
Chief Secretary concerned, one officer working in this grade in
the cadre and another officer of the cadre serving in
Government of India in the same grade."
62. Annexure II provides for general guidelines for promotion, etc. and
functioning of screening committees. Para 3 deals with determination of
vacancies and para 24 deals with availability of vacancies. Both the paragraphs,
being relevant, are reproduced below: -
"Annexure II: General Guidelines for promotion etc. and
functioning of Screening Committees.
3. Determination of vacancies:
It is essential that the number of vacancies in respect of which
a panel is to be prepared should be estimated as accurately as
possible. For this purpose, the vacancies to be taken into
account should be the clear vacancies arising in a grade due to
death, retirement, resignation, promotions and deputation..."
WP(C) 3457/2011 & connected matters page 57 of 60
24. Availability of vacancies:
Whenever promotions are vacancy based, while computing
the available vacancies for filling up the same by promoting
officers placed in the panel, care should be taken to ensure
that the total ex-cadre posts created in various grades for the
purpose do not exceed in sum the permissible quota of State
Deputation Reserves indicated in the respective Cadre
Schedules. Provisions of rule 9(7) of the IAS (Pay) Rules, 1954
(as amended in 2007) would also require to be followed while
making promotions in the highest grade of the Service."
63. In Citizens for Justice and Peace v. State of Gujarat and others, (2009) 11
SCC 213, it has been opined that an appointment of a government servant is the
prerogative of the particular Government especially when it is a sensitive
appointment of the Director General of Police. And under the doctrine of
"judicial review", the court should not extend its hands to upset such an
appointment, more particularly, in the factual panorama which is perceptible
today. The said principle would apply to the post of Chief Secretary. One has a
right to be considered for the Chief Secretary‟s grade but on being promoted to
the said grade, he cannot put forth a claim that he being fit and senior should be
appointed to the post of Chief Secretary. That, in our considered opinion, is the
prerogative of the State Government.
64. In view of the aforesaid premised reasons, we proceed to record our
conclusions and directions in seriatim:
WP(C) 3457/2011 & connected matters page 58 of 60
(i) The conclusion of the tribunal that a singular post existed in the grade of
Chief Secretary is not correct as the foundation or basis of the finding of
the tribunal in this regard is not clear.
(ii) The cadre adjustment is within the domain of the Central Government and
the State Government but the same has to be done by following the Rules
and Regulations in letter and spirit and such adjustment should show
application of mind.
(iii) The obtaining of prior concurrence from the Central Government in view
of the language employed in Rule 3(2) of the 2007 Rules is mandatory and
a post facto concurrence would not validate the promotion.
(iv) As the incumbents are holding the post in the grade of Chief Secretary for
almost two years, the status quo existing as on today shall be maintained
for a period of three months.
(v) The State Government and the Central Government shall carry out the
exercise of the cadre strength as on today keeping in view the Rule
position within a period of six weeks and thereafter, a fresh DPC be held
for consideration of the candidates to the said grade. It should be borne in
mind that the selection and concurrence are vacancy based and both the
WP(C) 3457/2011 & connected matters page 59 of 60
authorities should rationally determine the vacancy position while filling
up the Chief Secretary‟s grade after adjusting the cadre.
65. Consequently, the order of the tribunal is modified and the writ petitions
are disposed of with the above directions. The parties shall bear their
respective costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
AUGUST 16, 2011
pk/dk
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