Delhi High Court
State Of U.P. Through Principal ... vs Ashok Kumar Sharma And Ors on 18 October, 2012
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 18.10.2012
+ W.P.(C) 2395/2012 & CM Nos. 5145 & 8727/2012
RAJ NARAIN SINGH & ORS ... Petitioners
versus
DR ASHOK KUMAR SHARMA & ORS ... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr G.D. Gupta, Sr. Adv. with Mr Piyush Sharma.
For the Respondents : Mr Neeraj K. Jain, Sr. Adv. with Mr Saurav Agarwal and
Mr Vipul Sharda, Adv. for R-1&2.
Mr Sumeet Pushkarna with Mr Varun Dubey for R-3/UOI
Mr Naresh Kaushik for R-4/UPSC.
Mr Rakesh Dwivedi, Sr. Adv. with Mr Upendra Mishra
and Mr Ajit Sharma for R-5.
Mr R.N. Singh, Mr A.S. Singh.
AND
+ W.P.(C) 2396/2012 & CM Nos.5148/2012, 8730/2012
AKHILESH KR BARNWAL & ORS ... Petitioners
versus
DR ASHOK KUMAR SHARMA & ORS ... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Jitendra Mohan Sharma, Mr P.S. Patwalia, Sr. Advs.
with Mr Piyush Sharma.
For the Respondents : Mr Neeraj K. Jain, Sr. Adv. with Mr Saurav Agarwal and
Mr Vipul Sharda, Adv. for R-1&2.
Mr Sumeet Pushkarna with Mr Varun Dubey for R-3/UOI
Mr Naresh Kaushik for R-4/UPSC.
Mr Rakesh Dwivedi, Sr. Adv. with Mr Upendra Mishra
and Mr Ajit Sharma for R-5.
WP(C) 2395, 2396 & 5846/2012 Page 1 of 27
Mr R.N. Singh, Mr A.S. Singh
AND
+ W.P.(C) 5846/2012 & CM No. 12022/2012
STATE OF U.P. THROUGH PRINCIPAL SECRETARY... Petitioners
versus
ASHOK KUMAR SHARMA AND ORS ... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Rakesh Dwivedi, Sr. Adv. with Mr Upendra Mishra
and Mr Ajit Sharma
For the Respondents : Mr Neeraj K. Jain, Sr. Adv. with Mr Saurav Agarwal and
Mr Vipul Sharda, Adv. for R-1&2.
Mr Sumeet Pushkarna with Mr Varun Dubey for R-3/UOI
Mr Naresh Kaushik for R-4/UPSC.
Mr P.S. Patwalia, Sr. Adv. with Mr Piyush Sharma
for R-5 to 13.
Ms Sweety Manchanda, CGSC.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. These three writ petitions are directed against the order dated
07.03.2012 passed by the Central Administrative Tribunal, Principal Bench,
New Delhi, in O.A. No. 3605/2010. W.P. (C) 2395/2012 and W.P. (C) No.
2396/2012 have been filed by persons belonging to the U.P. State Civil
Services who were also respondents before the Tribunal in the said O.A.
W.P.(C) 5846/2012 has been filed by the State of U.P being aggrieved by the
above mentioned impugned order.
2. The dispute is actually between the officers of the U.P. State Civil
Services (UPSCS) and those of the Non-State Civil Services (NSCS). The
dispute is with regard to appointment to the Indian Administrative Service in
terms of the Indian Administrative Service (Recruitment) Rules, 1954
(hereinafter referred to as 'the said Rules'). The respondent Nos. 1 and 2 in
these petitions belong to the Non-State Civil Services (NSCS) and they are
claiming recruitment to the Indian Administrative Service under rule 4(1)(c)
of the said Rules. Before we proceed further it would be appropriate to set
out the relevant rules. They are as follows:-
"4. Method of recruitment of the Service:- (1) Recruitment to
the Service after the commencement of these rules, shall be by
the following methods, namely:-
(a) By a competitive examination;
(aa) Omitted.
(b) By promotion of a [substantive] member of a State Civil
Service;
(c) by selection, in special cases from among persons, who hold
in a substantive capacity gazetted posts in connection with the
affairs of a State and who are not members of a State Civil
Service.
4. (2) Subject to the provisions of these rules,
(a) the method or methods of recruitment to be
adopted for the purpose of filing up any particular
vacancy or vacancies as may be required to be
filled during any particular period of recruitment,
shall be determined by the Central Government in
consultation with the Commission and the State
Government concerned;
(b) the number of persons to be recruited by each
method shall be determined on each occasion by
the Central Government in consultation with the
State Government concerned.
4 (3) Notwithstanding anything contained in sub-rule (1), if in
the opinion of the Central Government the exigencies of the
service so require, the Central Government may, after
consultation with the State Government and the Commission,
adopt such methods of recruitment to the Service other than
those specified in the said sub-rule, as it may by regulations
made in this behalf prescribe.
4 (4) Notwithstanding anything hereinbefore contained in this
rule, in relation to the State of Jammu & Kashmir, recruitment
to the State Cadre on its initial constitution shall be made by
such method as the Central Government may after consultation
with the State Government and the Commission, prescribe.
[4(5) & 4 (6)]
xxxx xxxx xxxx xxxx
8. Recruitment by promotion or selection for appointment to
State and Joint Cadre:- (1) The Central Government may, on
the recommendations of the State Government concerned and in
consultation with the Commission and in accordance with such
regulations as the Central Government may, after consultation
with the State Governments and the Commission, from time to
time, make, recruit to the Service persons by promotion from
amongst the [substantive] members of a State Civil Service.
8(2) The Central Government may, in special
circumstances and on the recommendation of the
State Government concerned and in consultation
with the Commission and in accordance with such
regulations as the Central Government may, after
consultation with the State Government and the
Commission, from time to time, make, recruit to
the Service any person of outstanding ability and
merit serving in connection with the affairs of the
State who is not a member of the State Civil
Service of that State [but who holds a gazetted post
in a substantive capacity].
8(3) (a) Where a vacancy occurs in a State
Cadre which is to be filled under the
provision of this rule, the vacancy shall
be filled by promotion of a member of
the State Civil Service or, as the case
may be, by selection of any other
officer serving in connection with the
affairs of that State.
(b) Where a vacancy occurs in a Joint
Cadre which is to be filled under the
provision of this rule, the vacancy shall,
subject to any agreement in this behalf,
be filled by promotion of a member of
the State Civil Service of any of the
States constituting the group or as the
case may be, by selection of any other
officer serving in connection with the
affairs of any such State(s).
9. Number of persons to be recruited under rule -8
9(1) The number of persons recruited under rule 8 in any
State or group of States shall not, at any time,
exceed 33 1/3 percent of the number of senior posts
under the State Government, Central Deputation
Reserve, State Deputation Reserve and Training
Reserve in relation to that State or to the group of
States, in the Schedule to the Indian Administrative
Service (Fixation of Cadre Strength) Regulations,
1955:
Provided that the number of persons recruited under
sub-rule (2) of the rule 8 shall not at any time exceed
fifteen per cent of the number of persons recruited
under rule 8.
Explanation: For the purpose of calculation of the
posts under this sub-rule, fractions, if any, are to be
ignored.
9(2) Notwithstanding anything contained in this rule, in
relation to the State of Jammu and Kashmir, the
number of persons recruited under sub-rule (1) shall
not upto 30th April, 2002, exceed at any time, fifty
per cent of the number of senior posts under the
State Government, central deputation reserve, state
deputation reserve and the training reserve in
relation to that State in the Schedule to the Indian
Administrative Service (Fixation of Cadre Strength)
Regulations, 1955.
9 (2A) & 9(3)[Omitted]"
3. The said respondent Nos. 1 and 2 had approached the Tribunal by way
of the said O.A. challenging the recommendations of State of U.P. dated
27.03.2010 whereby the said State of U.P. recommended that all the 29
vacancies consequent upon the cadre review of 2003 but with reference to
01.01.2004 ought to be filled up from the UPSCS leaving no vacancy for the
NSCS. A letter dated 22.05.2010 was also sent by the State of U.P. to the
Central Government reiterating the recommendations in the earlier letter
dated 27.03.2010. This was followed by the Central Government
notification of 17.05.2010 issued by the DoPT indicating the cadre strength
based upon the cadre review as on 31.03.2003. By a letter dated 01.06.2010,
the Central Government informed the State of U.P. that it has been decided
to keep 11 vacancies of 2004 in abeyance in view of the pendency of a writ
petition before the Lucknow Bench of the Allahabad High Court and to re-
determine the remaining vacancies as proposed by the State Government as
per details given therein which indicated that for the year 2004 the vacancies
for the UPSCS were 18. No vacancies were indicated insofar as the NSCS
was concerned. Though, 11 vacancies were kept in abeyance.
4. On 06.09.2010 the Lucknow Bench of the Allahabad High Court
decided Writ Petition No. 1718/2006 (Mahesh Chand v. Union of India &
Ors. and other connected petitions). Paragraph 2 of the said decision is as
under:-
"At the outset it would be appropriate to mention that in view
of quashing of the proposal of the State Government dated
6.1.06, by which eleven vacancies were proposed to be filled in
by selection from amongst Non State Civil Service Officers
(Non-SCS officers) by Delhi High Court vide order dated
14.11.08 along with quashing of the notification dated 1.2.06 by
means of which the aforesaid eleven vacancies were notified to
be filled in by selection from amongst Non-SCS officers and
the said judgment having been upheld by the Supreme Court,
the plea of the petitioner of Writ Petition No. 1718 (SB) of
2006, Mahesh Chand and that of Sri Upendra Mishra appearing
for the State Government is that all these petitions have become
infructuous and merely for academic interest, no findings are
required to be given on other issues, which are involved in the
writ petition as no selection now can takes place nor can it
proceeded with when the notification determining vacancies
aforesaid itself has been quashed."
Ultimately the court observed as under:-
"The Court is not supposed to decide an issue only for
academic reason but it is only when an action is taken, such a
plea can be raised and of course, by a person who feels
aggrieved by such determination. There is no challenge to the
determination of vacancies made.
Once the notification regarding determination of
vacancies has been quashed, there remains nothing for the
Court to decide in the present proceedings, with respect to
validity of such a selection, which has not attained finality, in as
much as the result of the selection has not been declared nor the
same could now be given effect to.
Merely because certain Non-SCS officers feel that they
stand selected in the final select list without even declaration of
result, they cannot claim any right, treating them to have been
selected, particularly when this challenge to the order passed by
the Delhi High Court failed before the apex court.
So far the determination of equivalence of posts is
concerned, a plea which has been raised in the writ petitions of
Surya Prakash and U.P. Civil Services Association, we are
informed by the learned counsel for the State that the process of
redetermination of equivalence is on and the equivalence has
actually been redetermined but in view of the interim orders
passed by this Court, final effect has not been given.
Submission is that equivalence of posts has been done
strictly in accordance with the proposition laid down in the case
of Sub-Inspector Rooplal and another (supra).
We thus, do not find any reason to restrain the State
Government from determining the equivalence of the posts of
that of the post of Deputy Collector, in terms of the Rules.
If any person feels aggrieved by such determination of
vacancies and/or by the equivalence of posts, he will be at
liberty to challenge the same, in the appropriate forum.
Even otherwise, when a fresh selection is to be made, the
State Government could very well issue a fresh notification
regarding equivalence of posts and we do not find any ground
for looking into the validity of such determination, even if it
suffers from any illegality, as the same would not persuade us
to uphold the selection process, which is incomplete till date
and which now cannot be finalized, for the aforesaid reason of
quashing of notification of determination of vacancies, and the
freshly determined equivalence of posts will not have any
hearing upon the present selection.
In the writ petition of Ashok Kumar Sharma, the main
grievance is that all three directions issued by the Central
Administrative Tribunal, Lucknow Bench should be quashed.
In fact, the said judgment has lost its efficacy and does
not require any adjudication by us in the present petitions, as
the selection, for which the present directions were issued, itself
cannot be given effect to.
We thus, are of the considered opinion that the present
writ petitions have lost their efficacy and importance and rather,
they have become infructuous, which do not require any further
orders to be passed.
We, however, made it clear that we have declined to
enter into any of the pleas, which have not been decided by the
Delhi High Court, for the reason that the present selection
cannot be finalized for the aforesaid reason of quashing of the
notification of determination of vacancies and the proposal sent
by the State Government for the said determination and also in
view of the fact that equivalence of the posts is being
redetermined or has been redetermined.
The question, "whether Rule 8 (2) of (sic) Rule 9 (1) and
proviso of the Rules 1954 read with Regulation-3, Regulation-
5 of Regulations, 1997 would mean selection of Non-SCS
officers to be decided by taking into account 15% of 33.33%
posts of the entire cadre strength under Rule 8 or it would
means 15 % of the total Officers recruited under Rule 8 (2)"
and how it is to be interpreted and whether the redetermination
of vacancies made by the Central Government on the proposal
of the State Government has rightly been made or not, and
whether equivalence of posts has been correctly determined, are
such issues which can be agitated by the aggrieved persons,
afresh, if they feel aggrieved by any such decision or
notification issued by the State Government or the Central
Government, as the case may be.
Any observation made, finding recorded or directive
issued by the Central Administrative Tribunal, Lucknow Bench,
in this regard, would not be binding nor shall effect the claim of
any person aggrieved, to which he may be otherwise entitled
under law.
All the petitions have, therefore, become infructious and
are hereby dismissed as such."
(underlining added)
5. We may point out at this stage itself that the NSCS officers preferred a
Special Leave Petition before the Supreme Court against the said decision of
the Lucknow Bench of the Allahabad High Court. That Special Leave
Petition (Civil) No. 27592/2010 was dismissed by the Supreme Court on
08.10.2010. The order passed by the Supreme Court was as under:-
"Permission to file SLP is declined. Special leave petition is
dismissed. It is, however, open to the petitioners to challenge
the orders dated 27.3.2010 of the State Government or the
consequential order dated 10.9.2010 of the Government of
India."
It is obvious that although the Supreme Court dismissed the Special Leave
Petition, it granted liberty to the petitioners therein (Non-SCS Officers) to
challenge the order dated 27.03.2010 and the consequential order dated
10.09.2010. We may also note that in the meanwhile, on 08.09.2010, the
State of U.P. wrote to the Central Government requesting that, consequent
upon the decision of the Lucknow Bench of the Allahabad High Court,
instead of 18 vacancies for the year 2004 for the promotion quota from
UPSCS officers, all the 29 vacancies (including 11 vacancies which were
earlier kept in abeyance) be re-determined for the UPSCS officers so that the
amended proposal for the selection committee meeting could be sent to the
Union Public Service Commission.
6. This proposal of the State Government was approved by the Central
Government by virtue of its communication dated 10.09.2010 which is to the
following effect:-
"No. 14015/22/2010-AIS-1
Government of India
Ministry of Personnel Public Grievances & Pensions
Department of Personnel & Training
New Delhi, 10th September, 2010
To
The Chief Secretary
Government of Uttar Pradesh
Lucknow
(Kind attn: Shri Yogeshwar Ram Joint Secy.)
Sub: High Court Allahabad Lucknow Bench order
Dated 6th September, 2010 in WP No. 1718
(SB)/2006 in the matter of Mahesh Chand vs
UOI & Ors.- reg.
Sir,
I am directed to refer to your proposal contained in the
letter No. 4123(1)/KTwo-1/2010 dated 8th September, 2010 on
the subject cited above and to convey herewith that the
competent authority has approved the re-determination of
Promotion Quota vacancies of IAS as 29 in place of 18 for the
Select List year 2004 in the light of the following observations
of the Hon'ble High Court, Lucknow Bench in their order dated
6th September, 2010.
"Once the notification regarding determination of
vacancies has been quashed, there remains nothing
for the court to decide in the present proceedings,
with respect to validity of such a selection, which
has not attainted finality in as much as the result of
the selection has not been declared nor the same
could now be given effect to. Merely because
certain Non-SCS officers feel that they stand
selected in the final select list without even
declaration of result they cannot claim any right
treating them to have been selected particularly
when this challenge to the order passed by the
Delhi High Court failed before the apex court."
2. It is requested that the State Government may take
further necessary action to send requisite proposal to UPSC for
convening of the Selection Committee Meetings for the Select
List Years 2004 onwards.
Yours faithfully,
S.S. SHUKLA
Under Secretary to the Govt. of India
Ph. 23092695"
7. In view of the liberty given by the Supreme Court, two of the Non-
SCS Officers filed the said O.A. No. 3605/2010 before the Central
Administrative Tribunal which has been allowed by virtue of the impugned
order dated 07.03.2012. The petitioners are aggrieved by that order and are
before us.
8. Before we discuss the rival contentions, it would be necessary for us
to point out that in an earlier writ petition titled Hemraj Singh Chauhan &
Ors. v. Union of India & Ors: W.P. (C) 19103-04/2006, a Division Bench
of this court had, inter alia, made the following observations:-
"46. At this juncture, it would be useful to notice the proviso to
Rule 5(1) of the Promotion Regulations which mandates the
yearly preparation of the select list. It would not be justified for
the governments at the Centre and the State to delay the
exercise of cadre review and then present the affected parties
with a fait accompli by saying that the exercise cannot be
carried out retrospectively even if admittedly there was a
failure on their part to carry out such exercise in time. As far as
the present case is concerned, there should be no difficulty in
undertaking the cadre review exercise as indicated hereinabove.
It is made clear that the exercise that preceded the issuance of
the impugned notification dated 1stFebruary 2006, including
determining the vacancies available to those whom the
interveners represent, should be undertaken as if it was taking
place on 30th April 2003 and with reference to the date of 1st
January 2004.
Thereafter, the said Division Bench came to the following conclusion and
gave the following decision:-
"47. Accordingly, the impugned judgment dated 15th December
2006 of the Tribunal is set aside. The impugned notification
dated 1st February 2006 as well the letter dated 6th January
2006 and notification dated 25th August 2005 on which it is
based are hereby set aside. It is clarified that the Cadre Review
for the State of Uttar Pradesh was due on 30th April 2003. The
Central Government and the State Government will now
proceed to undertake the cadre review exercise which fell due
as on that date with reference to the vacancy position as on 1st
January 2004 in the manner indicated hereinabove within a
period of eight week from today. The further consequential
steps of considering which of the petitioners are eligible for
promotion and which if any of the non SCS officers (selectees)
are qualified for selection should be completed within a further
period of four weeks thereafter. We clarify that we have not
expressed any opinion on the issue (as mentioned in para 25 of
this judgment) pending consideration by the Allahabad High
Court, Lucknow Bench."
(underlining added)
9. It should be made clear that in that writ petition, the main issue was
whether the cadre review ought to have been held in 2005 or 2003. This was
in the backdrop of the fact that the previous cadre review had been held in
1998 and that, normally, cadre review is a 5-yearly process. The Division
Bench directed that the cadre review be held as on 30.04.2003 with reference
to the vacancy position of 01.01.2004.
10. The Union of India went up to the Supreme Court by way of a Special
Leave Petition in which the Supreme Court granted leave and after hearing
the matter disposed of the Civil Appeal No. 2651-52/2010 on 23.03.2010
(reported as Union of India & Anr. v. Hemraj Singh Chauhan & Anr:
2010 (4) SCC 290) directing as under:-
"47. Therefore, this Court accepts the arguments of the learned
counsel for the appellants that Rule 4(2) cannot be construed to
have any retrospective operation and it will operate
prospectively. But in the facts and circumstances of the case,
the Court can, especially having regard to its power under
Article 142 of the Constitution, give suitable directions in order
to mitigate the hardship and denial of legitimate rights of the
employees.
48. The Court is satisfied that in this case, for the delayed
exercise of statutory function the Government has not offered
any plausible explanation. The respondents cannot be made in
any way responsible for the delay. In such a situation, as in the
instant case, the directions given by the High Court cannot be
said to be unreasonable. In any event, this Court reiterates those
very directions in exercise of its power under Article 142 of the
Constitution of India subject to the only rider that in normal
cases the provision of Rule 4(2) of the said Cadre Rules cannot
be construed retrospectively."
11. Thus, while the Supreme Court did not agree with the Division Bench
of this court that rule 4(2) of the said Rules could be construed to have
retrospective operation, in the facts of the present case, the Supreme Court
was satisfied that the direction given by the High Court could not be said to
be un-reasonable and the Supreme Court said so in exercise of its power
under Article 142 of the Constitution of India.
12. With this background, let us now examine the rival submissions. The
learned counsel appearing on behalf of the petitioners submitted that the
impugned order passed by the Central Administrative Tribunal cannot be
sustained inasmuch as the Non- SCS Officers had no right to be considered
for recruitment to the IAS. They placed reliance on the Supreme Court
decision in the case of P.M. Bayas v. Union of India & Ors: 1993 (3) SCC
319. The observations of the Supreme Court relevant for the present case are
as under:-
"9. We may examine the scheme of the Rules and Regulations.
Rule 4(1) of the Rules provides four sources of recruitment to
the IAS. The competitive examination and by promotion of
substantive members of the State Civil Service are the two main
sources of recruitment. Rule 4(1)(c) provides recruitment to
IAS "by selection, in special cases from among persons, who
hold in a substantive capacity gazetted posts in connection with
the affairs of a State and who are not members of the State Civil
Service". "In special cases from among persons" means the
selection as special cases of the persons who have established
their outstanding merit and ability while serving the State.
Members of the State Civil Service who are not 'outstanding'
but are only 'good' and 'very good' are also eligible to be
considered for appointment to IAS but under Rule 8(2) of the
Rules, it is only an 'outstanding' officer who is eligible. It is the
outstanding merit and ability which makes him a 'special case'
in terms of Rule 8(2) of the Rules. Rule 8(2) of the Rules read
with Regulation 3 of the Regulations lays down the procedure
for making the special selection provided under Rule 4(1)(c) of
the Rules. The Central Government, being the appointing
authority to the IAS, has to be finally satisfied about the
existence of the "special circumstances" as a condition
precedent for making special recruitment. The "special
circumstances" are to be spelled out from Rule 8(2) of the
Rules read with Regulation 3 of the Regulations. Rule 8(2)
which talks of "outstanding ability and merit" when read with
Regulation 3(1) and 3(4-A) of the Regulations makes it clear
that the "special circumstances" required to be seen are (i) the
existence of officers with 12 years of continuous service in a
gazetted post under the State Government -- other than State
Civil Officers -- who are of outstanding merit and ability and
(ii) the satisfaction of the State Government that, in public
interest, it is necessary to consider such officers for promotion
to the IAS.
10. Reading Rule 8(2) and the Regulations together it is further
clear that the process of selection has to be initiated by the State
Government and as such it is for the State Government in the
first instance to be satisfied regarding the existence of the
"special circumstances" as culled out by us in the para above.
11. It is the State Government which proposes the names of
suitable officers under the Regulations for appointment by
selection to the IAS. The proposals of the State Government are
considered by the Selection Committee and its
recommendations are placed before the State Government.
Thereafter the State Government sends the recommendations
along with its observations, if any, to the Union Public Service
Commission for approval. When finally approved by the
Commission the appointments are made by the Central
Government. Regulation 3(4-A) further provides that the
Central Government may not appoint any person if it is of the
opinion that, during the period intervening between the final
approval by the Commission and the date of proposed
appointment, there occurs any deterioration in the work of such
officer or there is any other ground which renders him
unsuitable for appointment or it is necessary and expedient so
to do in public interest. It is, thus, obvious that the "special
circumstances" as required under the Rules and the Regulations
have to be seen by the State Government. The Central
Government being the appointing authority has to finally
approve the State Government's proposals which reach the
Central Government through the process of selection."
(underlining added)
It is apparent from the above extract that rule 4(1)(c) provides recruitment to
IAS "by selection, in special cases from among persons, who hold in a
substantive capacity gazetted posts in connection with the affairs of a State
and who are not members of the State Civil Service". The Supreme Court
held that the expression "in special cases from among persons" meant the
selection as special cases of the persons who have established their
outstanding merit and ability while serving the State. It is only an
outstanding officer who would be eligible. And it is the outstanding merit
and ability of such a person which would make him a 'special case' in terms
of Rule 8(2) of the said Rules. What is also discernable from the above
extract is that it is first the State Government which has to be 'satisfied' and
it is the State Government which has to make the recommendation and it is
then for the Central Government to arrive at its own satisfaction that the
special circumstances exist. This is a condition precedent for making the
'special recruitment'.
13. It is, therefore, clear that there is no right as such which has been spelt
out in favour of the Non-SCS Officers.
14. It should also be noted that the Non-SCS Officers who had intervened
in the Delhi High Court in Hemraj Singh Chauhan (supra) had also filed a
Special Leave Petition being SLP (C) 6758-59/2009, which, after leave was
granted got converted to (Civil Appeal No. 2651-52/2010) . The said civil
appeals were disposed of by the Supreme Court by virtue of its judgment
dated 23.03.2010 in the following manner:-
"15. However, before the High Court the stand of the Central
Government was that the cadre review of the IAS of Uttar
Pradesh cadre was due in 2003 but unfortunately it was held in
2005 when the State of Uttar Pradesh had sent its proposal.
Such review was made effective from 25-8-2005 when the
revised cadre strength of the IAS cadre of Uttar Pradesh was
notified in the Official Gazette in terms of the statutory
provisions. The further stand of the appellants was that the
cadre review undertaken in 2005 cannot be given retrospective
effect.
16. However, before the High Court the stand of the Uttar
Pradesh Government was slightly changed and it filed a "better
affidavit" and took the stand that they have no objection to any
direction for exercise of cadre review to be undertaken with
reference to the vacancy position as on 1-1-2004.
17. The High Court after hearing the parties was pleased to set
aside the judgment of CAT dated 15-12-2006 and the
Notifications dated 1-2-2006 and 25-8-2005 were set aside. The
State Government and the Central Government were directed
that the cadre review exercise should be undertaken as if it was
taking place on 30-4-2003 with reference to the vacancy
position as on 1-1-2004.
18. In order to resolve the controversy in this case, the relevant
statutory provisions may be noted. The respondents being SCS
officers, are seeking promotion to IAS in terms of Rule 4(1)(b)
of the relevant recruitment rules. Rule 4(1)(b) of the Indian
Administrative Service (Recruitment) Rules, 1954 is set out:
"4. Method of recruitment to the Service.--(1)***
(b) by promotion of substantive member of a State
Civil Service;"
19. In tune with the said method of recruitment, substantive
provisions have been made under Rule 8 for recruitment by
promotion. Rule 8(1) of the Recruitment Rules in this
connection is set out below:-
"8. Recruitment by promotion or selection for
appointment to State and Joint Cadre.--(1) The
Central Government may, on the recommendations
of the State Government concerned and in
consultation with the Commission and in
accordance with such regulations as the Central
Government may, after consultation with the State
Governments and the Commission, from time to
time, make, recruit to the Service persons by
promotion from amongst the substantive members
of a State Civil Service."
xxxx xxxx xxxx xxxx
22. Another regulation relevant in this connection is the Indian
Administrative Service (Cadre) Rules, 1954 (hereinafter
referred to as "the Cadre Rules"). Under Rule 4 of the said
Cadre Rules, the strength and composition of the cadres
constituted under Rule 3 shall be determined by regulations
made by the Central Government in consultation with the State
Government and until such regulations are made, shall be as in
force immediately before the commencement of those Rules.
23. Rule 4(2) has come up for interpretation in this case and to
appreciate its true contents, the said Rule 4(2) is set out below:
"4. (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:
Provided further 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 Sate or Joint Cadre one or more
posts carrying duties or responsibilities of a like
nature to cadre posts."
24. The main controversy in this case is, whether re-
examination of the strength and composition of cadre in the
State of Uttar Pradesh had taken place in accordance with the
mandate of Rule 4 sub-rule (2)."
xxxx xxxx xxxx xxxx
"42. Concurring with the aforesaid interpretative exercise, we
hold that the statutory duty which is cast on the State
Government and the Central Government to undertake the cadre
review exercise every five years is ordinarily mandatory subject
to exceptions which may be justified in the facts of a given
case. Surely lethargy, inaction, an absence of a sense of
responsibility cannot fall within the category of just exceptions.
43. In the facts of this case neither the appellants nor the State
of Uttar Pradesh has justified its action of not undertaking the
exercise within the statutory time-frame on any acceptable
ground. Therefore, the delayed exercise cannot be justified
within the meaning of "ordinarily" in the facts of this case. In
the facts of the case, therefore, the Court holds that there was
failure on the part of the authorities in carrying out the timely
exercise of cadre review."
15. The learned counsel appearing for the respondent Nos. 1 & 2 (Non-
SCS Officers) submitted that he is not making a claim for a quota for Non-
SCS Officers and that was not his claim before the Tribunal although the
Tribunal virtually has gone on to hold as such. According to the learned
counsel, his limited claim was that the directions given by the Delhi High
Court and confirmed by the Supreme Court in Hemraj Singh Chauhan
(supra) have not been followed. According to the learned counsel for the
respondent Nos. 1 & 2, the direction was that the said respondents, who were
included in the group of officers who were being considered for the said 11
vacancies, ought to be considered for selection in view of the developments
which had taken place in 2005-2006. But, we fail to understand as to how
the learned counsel for the said respondents can make such a submission,
once the letters dated 01.02.2006, 06.01.2006 and the notification dated
25.08.2005 had all been set aside by the Division Bench in Hemraj Singh
Chauhan's case and that had not been disturbed by the Supreme Court. It is
apparent that the direction in Hemraj's case was to have a cadre review as
on 30.04.2003 with reference to the vacancy position as on 01.01.2004. It is
in this light that a proposal for cadre review was submitted by the State
Government to the Central Government. The Central Government accepted
the proposal and issued the notification dated 17.05.2010 wherein it was
indicated that the posts to be filled by promotion under rule 8 of the said
Rules (not exceeding 33.33%) would be 163 as against the posts to be filled
by direct recruits which was indicated at 374. Subsequent thereto, the
vacancy position was indicated in the letters dated 27.03.2010 and
22.05.2010 whereby 29 vacancies were indicated for 2004. We have already
seen above that the Central Government in response thereto by virtue of its
letter dated 01.06.2010 had indicated that there should be a re-determination
of the promotion quota vacancy in view of the fact that the matter with
regard to the 11 vacancies was sub-judice with the Lucknow Bench of the
Allahabad High Court and that the matter in that respect should be kept in
abeyance. However, as we have indicated above, the Lucknow Bench
dismissed the writ petition as having become infructuous. That being so, the
11 vacancies also got released and subsequently the entire 29 vacancies were
allocated to the U.P. State Civil Services Officers. The U.P. government had
taken a conscious decision not to allocate any vacancy to the Non-SCS
Officers. That recommendation has been accepted by the Central
Government. Insofar as the satisfaction of the State government and the
Central Government is concerned, the courts have a very limited role to play
and we cannot substitute our views in place of the administrative decisions
of the State Government and the Central Government who are to determine
whether a special case has arisen or not so as to invoke rule 4(1)(c) of the
said Rules. It is for the State Government and the Central Government to
decide as to whether any selection has to be made by invoking rule 4(1)(c) of
the said Rules or not, in a deserving case.
16. We may make it clear that the learned counsel for the respondent Nos.
1 & 2 has fairly stated that there is no question of malafides in the present
case. The learned counsel for the said respondents has also fairly stated as
we have already pointed out above, that no 'higher' claim is being made
except to seeking 'implementation' of the directions given by the Division
Bench of this High Court in Hemraj's case as approved by the Supreme
Court . We have already indicated that the understanding of the order as
represented by the learned counsel for the respondent Nos. 1 & 2 does not
appeal to us and, in our view, is not a correct understanding of the case. The
Division Bench in Hemraj's case directed that a cadre review as on
30.04.2003 be conducted keeping in mind the vacancy position on
01.01.2004. It did not say that the Non-SCS officers had any right to seek
recruitment under the said Rule 4(1)(c). The Division Bench had directed
that once the exercise of cadre review and vacancy position is carried out the
further consequential steps of considering which of the 'petitioners' are
eligible for promotion and which, if any, of the Non-SCS officers are
qualified for selection should be completed within a period of four-weeks
thereafter. This only meant that once the cadre review is done and the
vacancy position is determined the recruitment by 'promotion' or by 'special
selection' be concluded within the stipulated time. Neither did the Division
Bench grant any right to the Non-SCS officers (including the respondent
Nos. 1 & 2, herein) nor did it 'recognize' or 'save' any such right. The
manner and type of recruitment through the 'special' route of rule 4(1)(c) has
already been explained by the Supreme Court in P.M. Bayas (supra), a case
which though cited before the Tribunal was not even discussed by it and, this
is why the Tribunal fell into error. After the directions of the Division Bench
in Hemraj's case had been approved by the Supreme Court, the cadre
review as on 30.04.2003 with reference to the vacancies as on 01.01.2004
was done. 29 vacancies fell for 2004 and the State Government decided to
allocate all of them to the UPSCS and none to the Non-SCS as according to
them no special circumstances prevailed so as to also involve the special
recruitment method of Rule 4(1)(c) of the said Rules from among Non-SCS
officers. This was approved by the Central Government. We do not find
any fault with the course adopted by the State Government and Central
Government in not allocating any vacancy to the Non-SCS Officers. There
is no quota for them and the learned counsel for the respondent Nos. 1 and 2
had fairly stated that he is not making any such claims.
17. In view of the foregoing discussion, the writ petitions, that is, W.P.(C)
2395/2012, W.P.(C) 2396/2012 and W.P.(C) 5846/2012, are allowed and the
impugned order of the Tribunal is set aside. All pending applications also
stand disposed of.
BADAR DURREZ AHMED, J
SIDDHARTH MRIDUL, J
OCTOBER 18, 2012
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