Remanded

State of Uttarakhand through Principal Secretary and Anr. v. Ajay Kumar and Ors.

Delhi HC16 Aug 2011W.P.(C)/3476/2011

Case brief

AI extract

What is this about?

This batch of writ petitions challenged the validity of promotions to the Grade of Chief Secretary in Uttarakhand and the Trinity of the Central Government's concurrence due to alleged irregularities in vacancy determination. The High Court held that prior concurrence is mandatory, post facto approval does not validate promotions, and directed the governments to determine the exact vacancy positio

What did the court decide?

Tribunal order modified; promotions quashed; Central and State Governments directed to determine vacancy position and hold fresh DPC within six months; status quo maintained for three months.

State of Uttarakhand through Principal Secretary and… — Service and Employment | Delhi HC (2011)

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Signature Not Verified Signed By:RAM DATT Signing Date:09.09.2024 16:54 Certify that the digital and physical file have been compared and the digital data is as per s the physical file an d no page is missing.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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' 0//o

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Reserved on : 23^^^ May, 2011 Date of decision : 16*^^ August, 2011

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W.P.(C) 3457/2011

AJAY KUMAR JOSHI

..... Petitioner

Through: Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate

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versus

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AND ORS. Respondents Through: Mr.A.S.Chandhiok, ASG with Mr.Sanjeev Sachdeva, Advocate for Union of India.

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UNION OF INDIA AND ORS.

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W.P.(C) 3476/2011

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STATE OF UTTARAKHAND THROUGH PRINCIPAL ' SECRETARY AND ANR. .

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Petitionel's

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Mr.Soli J.Sorabjee, Sr. Advocate with Ms.Rachana Srivastava, Advocate

Through:

versus

AJAY KUMAR AND ORS.

..... Respondents

Through: Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate for R-l! Mr.A.S.Chandhiok, ASG witli Mr.Sanjeev Sachdeva^ Advocate for

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Union of India.

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i'V}^(C) 3457/2011 c?' conneded matters

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page 1 pf/W

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W.P.(C) 3477/2011

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STATE OF UTTARAKHAND AND ANR. Petitioners Through: Mr.SoliJ.Sorabjee,Sr. Advocate with Ms.Rachana Srivastava, Advocate

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versus

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AJAY KUMARJOSHI AND ORS. Respondents Through; Mr.A. Mata, Sr. Advocatewith , Mr.Apoorva Tiwari, Advocate for R-1. Mr.A-S.Chandhiok, ASG with Mr.SanjeevSachdeva, Advocate for Union of hidia.

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: W.P.(C) 3485/2011

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SUBHASH KUMAR Petitioner Through: Mr.Dushy^nt Dave and Mr.Nidesh Gupta, Sr. Advocates with Mr.Sumit Bansal, Advocate

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versus

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AJAY KUMARJOSHI AND ORS. Respondents Through; Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate for R-1 Mr.A.S.Chandhiok, ASG with Mr.SanjeevSachdeva, Advocate for Union of hidia.

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W.P.(C) 3486/2011

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: Petitioner Through; Mr.Dushyant Dav^ and Mr.Nidesh Gupta, Sr. Advocates with Mr.Sumit Bansal, Advocate

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SUBHASH KUMAR

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versus

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\yi'(C) 3457/20! I connecied matters

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page 2 of 60

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AJAY KUMARJOSHI AND ORS. Respondents Through: Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate for R-1 Mr.A.S.Chandhiok, ASG with Mr.SanjeevSachdeva, Advocate for • Union of hidia.

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CORAM:

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HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

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Whetl-ierreportersof die local papersbe allowedto see the judgment? Yes 2. To be referredto tlie Reporterornot? Yes 3. Whetliertlie judgmentsholildbe reportedin tlie Digest? Yes

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DIFAK MISRA, CJ

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Regard being had to the commonalityof controversy,this batch of writ •petitionswas heard togetherand is disposedof by a singularorder. Ajay Kumar Joshi, the petitionerinW.P.(C)No.3457/2011/preferredtwo originalapplications before the Central Administrative Tribunal, Principal Bench, New Delhi (for short 'the tiibunal') 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 promotionto the respondentnos. 4 to 6 in the pay scale of the Chief Secretary and further challengingthe selection of the respondent - Subhash Kumar for the post of Chief Secretaryof the State oiti the foundationthat there

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has been total violationofthe provisionscontainedin the Rules, Regiilationsand instructions in the field. The tiibmial 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 promotionof the applicantand directedto make fresh selectionafter followingthe due procedure as postulated in law within two months with a further stipulationthat the presentarrangementwould remain in vogue during the said period. Shri A.K. Joshi has preferredW.P.(C) No.3457/2011for quashingthe directionby which his promotionhas been amiulledand further to issue a commandfor restoration of his promotion. The State of Uttarakhandhas preferredW.P.(C) No.3476/2011 and W.P.(C) No.3477/2011challengingthe order passed by the tiibunal and SubhashKumar has preferredW.P.(C) No.3485/2011and W.P.(C) No.3486/2011, Be it noted, the stand and stance put forth by the State of Uttarakhand and SubhashKumar are same and their prayer is for quashmentof the order passed by the bibunal in entirety.

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Pi-esentiyto the factual mati-ix. The. applicantbefore the ti-ibunalin OA No.3604/2010called in questionthe legal proprietyof the concurrencegiven by the Secretary,Departmentof Persomiel &Training (DOPT), in response to the letters dated 31.5.2010 and 8.10.2010 of the State of Uttarakhand as regards the

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availability of one vacancy in the apex scale of Indian Administrative Service (IAS) in the Uttarakhandcadre as on 31.5.2010in terms ofthe provisionsof 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 respondentby communicationdated 19.9.2008 and further challengedthe orders dated 12.9.2010and 13.9.2010wherebythe 4^^ respondent, SubhashKumar,had been appointedas the ChiefSecretaryof the Governmentof Uttarakhand. In the said application,the reliefsoughtwas to set aside the afore mentioned two orders dated 12.9.2010and 13.10.2010contained in Annexures P- 1 to P-3 of the original application;to issue appropriateguidelines of general applicationfor posting of officers on the post of Chief Secretary in the State cadres; and to declare that the post of Director General, Uttarakhand AdministrativeAcademy,Nainitalisnot equal in statusand responsibilityto the post of ChiefSecretary,Governmentof Uttarakhand\

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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 applicantwas further aggrieved by the order dated 31.5.2010 whereby Suneel Kumar Muttoo and Subhash

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Kumar had been promotedto the scale of Rs.80,000/-(fixed) of the IAS, andthe creationof 18 posts by the State of Uttarakhandmider the secondprovisoto Rule •4(2) of the IAS (Cadre)Rules, 1954 (for short'the 1954 Rules'). The prayerin the petitionwas to set aside the recommendationsof the ScreeningCommitteeheld on 19.2.2010as far as they relateto the respondentNos. 4, 5and6 as the same has been made in the absence of prior concurrenceof the Governmentof India and non-availabilityof valid posts and further to set aside the order of promotion dated 31.5.2010 passed.infavour of respondentNos.4 and 5 therein; and to invalidatethe order dated 28.5.2010whereby 18 posts have been created by the State ofUttarakhand and to commandthe State ofUttarakhand to fill up the post of ChiefSecretary(a cadre post) onlyfrom those officersin the CS Grade who are deemed to have been appointed against cadre posts on the basis of their respectivemter 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 concurrenceaccordedin respectofthe availabilityof one ex-cadrevacancyin the ChiefSecretaryGrade ofpayin the Uttarakhandcadre ofthe IAS.

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The grievanceof the applicant,in essence,was thaton 19.9.2008,when the concurrenceof the respondent-DOP&Twas given for two availablevacanciesin the grade of ChiefSecretary,only one vacancywas actuallyavailableon that date

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and, therefore,two ex-cadreposts couldnot have been createdunder Rule 9(7) of the IAS (Pay) Rules as proposedby the Governmentof Uttarakhandin its letter dated 3.9.2008 because 17 persons were already working against. State • DeputationReserve fixed at 13. It was the further stand that since the person above the petitioner in the gradation hst was found 'unfit' by the Selection Committee, the petitioneralone could have been selected and the respondent nos.4 and 5 could not have been empanelledin the select list as the vacancies were not available.

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As is discerniblefrom the factual exposition,the cadre strength of IAS officers in Uttarakhandstate was determinedat 94 .under the IAS (Fixation of Cadre Sti^ength) Regulations,1955 vide the Government of India notification dated 4"^ October,2004. The post categorizedunder SeniorDuty Posts (SDP) are commonlyknown as cadre posts and the posts under State DeputationReserve (SDR) are called ex-cadre posts. There are four grades having differentpayscales in SDP. The Chief Secretarygrade is also known as the apex grade in the cadre,the highestgrade havingpay-scaleof Rs.80,000/-(fixed).

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In 2008, the State Governmentunder Rule 9(7) of the 2007 Rules created: two ex-cadreposts under SDR in the Chief Secretarygrade as againsttwo cadre posts alreadyexistingunder SDP. The said cadre posts that existedare the Chief, WP(C) 3457/20// di connectedmqtlers P°S<i 7of60

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Secretaryand DirectorGeneral,Uttarakhand,AdministrativeAcademy,Nainital, On 3'd September,2008, the State Governmentsent a proposalfor concurrenceto the Governmentof India for filling up of two vacancies in the Chief Secretary grade as there were two officers,namely,Shri hidu Kumar Pandeyand Shri N.S. Napalchyal,who were already working in the Chief Secretary grade and two vacancieswere available. At that point of time, 17 officerswere workingunder. SDR against the prescribedlimit of 13. The Ceritral Governmentaccorded its concurrence in respect of two vacancies in the Chief Secretary grade vide communicationdated 19^^ September,2008. Before the meetingof the Screening Committee,Shri h^du Kumar Pandey, the then Chief Secretarytook voluntary retirement on 2"^ December, 2009 and therefore, the number of vacancies increased from two to three in the Chief Secretary grade. The Screening Committeeheld its meeting on 19^'^ February, 2010 and took into account that apart from these three vacancies, one more vacancy would take place on 30th April, 2010 due to retirementof Shri N.S. Napalchyal. Regard being had to the aforesaidcircumstances,the Committeeconsideredall the officersin the zone of considerationand gave its recommendationsfinding Ajay Kumar Joshi, Sunil Kumar Muttoo, Subhash Kumar and Keshav N. Desi Raju as 'fit' ^nd one VijendraPaul to be'unfit'.

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On the basis of the recommendations of the Screening Committee, the State Government promoted the officers, namely, Ajay Kumar Joshi, Stmil Kumar Muttoo and Subhash Kumar in the Chief Secretary grade on 31^^ May, 2010. The fourth likely vacancy that was taken into considerationby the ScreeningCommitteecould not be filled up becausethe officerwho was to retire ' on 30"! April, 2010 was, in fact,'given an extensionof six months,that is, upto 31^^ October, 2010 by the Govermnentof India. After making the promotions,the State of Uttarakhandapprisedthe Goverraxientof India in respectof fillingup of the third vacancyalso which had arisendue to volmitaryretirementof an officer on 2"^'' December,2009 after the concurrencedated 19''^ September, 2008 for two vacancies. A reminder was also sent to the Government of India on 8"^ October, 2010 in the said regard.

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The Government of India, vide letter dated 13th October, 2010, granted concurrencefor the third vacancyas on 31®^ May, 2010 under Rule 3(2)(ii)(iii)of the 2007 Rules in continuation of its earlier concurrence dated 19September, 2008, which were for two vacancies. On 12^^ September, 2010, an officerworking in the Chief Secretary grade, N.S. Napalchyal,the then Chief Secretary, took voluntary retirementand the State GovernmentappointedSubhash Kumar a^

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the new Chief Secretary on 12"i September, 2010 after consideringall officers includingAjay KumarJoshi,who was workingin the ChiefSecretarygrade.

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The tribunal noted that by virtue of Section 72 of the Uttar Pradesh ReorganisationAct, 2000, a separatecadre of Indian AdministrativeServicesfor the newly created State was created. The applicantwas allocated to the new cadre of Uttarakhand. After certainlitigations,the applicantjointedthe State of Uttarakhand on 12.10.2009.

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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 strengthto the Indian AdministrativeService (Fixationof Cadre Strength)Regulations,1955 (for short 'the 1955 Regi,ilations')provided51 posts at item No.l of the schedule, known as SDP under the Governmentof 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.

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The tribmial took note of the fact that at item No.3 of the above schedule, there is a provisionfor SDR, which is 25% of the SDP and it was fixed at No.13 in

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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 vacanciesin the scale of the ChiefSecretary. The Governmentofhidia concurred with the proposalabout the availabilityof two vacanciesin the scale of Rs.26,000 (fixed) [pre-revised]. On 2.12.2009, as set forth, the then Chief Secretary,hidu Kumar Pandey,took voluntaryretirementfrom serviceand N.S. Napalchyalwas appointedin his place. It was contendedthat the ex-cadre post which he was occupying came to an end and SDR came to 16 on that day. The applicant submitteda representationdated 9.12.2009seekingan accuratedeterminationof vacancies in the grade of Chief Secretary since the promotionto the post was vacancy based. He placed rehance on the guidelinesfor promotionframed on 28.3.2000. He stated in the representationthat no ex-cadre post in any gi'ade, includingthe 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,exceeded13. He submitted anotherrepresentationon 8.2.2010challengingthe correctnessof the letter dated 3.9.2008 of the State Goverranent on the foundation that the letter had been sent in greathaste as the matterhad beeiiput up and approvedby the ChiefSecretary on the same day, in.whichfive levels of officersfrom Under Secretaryonwards

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were involvedand such an action / proposalwas in violationof Rule 8(2) of the 1954 Rules.

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As noticed/ the first representationdated 9.12.2009 was rejected by #ie State of Uttarakhand. A meetingof the ScreeningConimitteeheld at New Delhi on 19.2.2010consideredfour vacancies,two cadre posts and two ex-cadreposts, for promotion to the grade of Cliief Secretary. The Committee made the recommendationin respect of four officersfor promotionto the grade of Chief Secretary. Anote was put up on 22.2.2010by the PriiicipalSecretarystatingthat two officers would be promoted initiallybecause DOP&T had permitted two vacanciesand the rest two wouldbe promotedafter obtainingthe concurrenceof the DOP&T. At this stage, the applicant sought interventionof the Centi'al Governmentas regardshis representationdated 8.2.2010and the Governmenfof India soughtcommentsfrom the Governmentof Uttarakhandbut no action,was taken. In the meantime,Subhash Kumar, who was the PrincipalSecretaryof the Department of Persomiel of the State Government, wrote to the Secretary, DOP&T, on 29.3.2010seeking extensionfor the incumbentChief Secretary,N.S. Napalchyal,who was granted extensionfor a further period of six months with effectfrom 30.4.2010. At this stage,the Governmentof India wrote to the State of Uttarakhand on 7.5.210 to examine few aspects and to submit a fresh proposal

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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 Uttarakhandcreated18 posts in the grade of AdditionalChief 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 correspondencesbetweenthe State of Uttarakhandand the Governmentof India were referred to,

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The applicant who was posted as Director General, Uttarakhand Administi-ative Academy, Nanital joined the said post under protest and submitteda representationto the competentauthority. When no responsewas shown,'he preferred the original application. During the pendency of the originalapplication,N.S. Napalchyal,the incumbentChiefSecretary,appliedfor voluntaryretirementfrom service on 12.9.2010and his requestwas acceded to. The fourth respondent,SubhashKumar, was appointedas the ChiefSecretaryon that day. By order dated 13.10.2010, the Govermnent of India gave its concurrenceto the availabilityof one vacancy in the apex scale in Uttarakhand

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cadre as on 31.5.2010in terms of Rule 3(2) (ii) & (iii) of the Indian Administi-ative Service (Pay) Rules, 2007, in additionto the two vacanciesin the said grade to whichconcurrencehad earlierbeen givenby its letter dated 19.9.2008.

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Preliminaryobjections were raised with regard to territorialjurisdiction and limitation but the tribunal, after referring to Sections 20 and 21 of the Administi-ativeTribunals Act, 1985, came to hold that the Principal Bench at Delhi has jurisdictionto entertainthe originalapplicationand further the delay, if any, deserves to be condoned and, accordingly,so ordered. Thereafter,the tribunalproceededto deal with the,meritsof the case.

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The principalcontentionthat was urged before the tribunal on behalf of the applicantwas that the respondentsin complete disregard of the statutory provisions engrafted under the All India Services Act, 1951, the Rules and Regulationsframed thereundererroneouslydeterminedthe vacancies in SDR and on the said basis, two ex-cadre posts could not have been created and resultantlythe Governmentof India couldnot have givenits concurrencefor two vacancies in the apex scale by acceding to the initial proposal of the State Government. It was also urged that while effectingpromotionto the gi'ade of Chief Secretary, the basic requirementstipulatedunder Rule 9(7) of the 2000

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Rules which has to be read in conjunctionwith Rule 8(2) of the 1954 Rules was not kept in view.

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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 secondprovisoto Rule 4 (2) of the 1954 Rules. Placingrelianceon E.P. Rotjappa V. StateofTamilnadu&another,(1974)4SCC 3, it was assertedthat the creation of posts under the second provisoto Rule 4(2) would not add to the cadre posts, but were actuallyto be treatedas ex-cadreposts. 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 conceptof accurate determinationof the vacanciesunder Rule 3(2)(ii) and (iii) totallyredundantbecausethe State Governmentcould create any numberof ex-cadreposts in any grade. Itwas also contendedthatitwouldbe an absolutelyanomalouspropositionthat the posts created under Rule 4(2) of the 1954 Rules would be counted against cadre posts.

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It was also submittedthat it was mandatoryunder the 2007 Rules io seek, prior concurrence of the Central Govermiient for available vacancies for promotionto selectiongrade and above. In this regard, reliancewas placed on the communicationdated 28.3.2007 of the Additional Secretary (DOP&T) to WP(C) 3457/201/ d connectedmatters

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explain the rationale behind the introductionof Rule 3(2)(ii) and (iii) which basicallyprovide for better cadre managementof the service. It was put forth that such a step-wastaken as the.State Governmentswere makingpromotionsin respect of the cadre beyond the number of available vacancies. It was highlighted that there is no provision for ex-post facto determination of vacanciesin Rule 3(2) of the 2007 Rules or any otherRule. Further,the standwas' taken that on 3.9.2008, as only one cadre post was vacant in Uttarakhand,the proposalof,the State,Govermnentfor creationof two ex-cadreposts imder Rule 9(7) of the 2007 Rules couldnot have been acceptedbecauseon that date the SDR was already17 againstthe prescribednumber of 13.

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Itwas the applicant'sgrievancethat thoughhe was more meritoriousthan SubhashKumar and also senior to him in the gradation list of 1977, yet he was placed in a position subordinateto him as the Director General, Uttarakhand Academy,Nairutal. It was argued that the Chief Secretarywas the presidentof the GoverningBody of the said Academywhereasthe DirectorGeneralwas only the member secretary. It was urged that the post being inferioriii stattis to the post of the Chief Secretary,the senior person should have been posted as the •ChiefSecretaryand the juniorshouldhave beenpostedas the DirectorGeneral.

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On behalf of the second respondent, it was set forth that the applicant was mifit to be appointedto the post of the ChiefSecretary. The applicantcould not have any grievanceas he had been appointedto the grade of Chief Secretaryas the post of the Director General, AdministrativeAcademy is equivalentto the post of Chief Secretary. It was put forth that the only eligibilitycriteriawhich existedfor appointmentto the post of Chief Secretarywas 30 years of ser^i^icein the precedinggrade and, therefore,the inter-se seniorityin the batch is fotally inconsequential.The SDR was not relevantat the stage of sendingthe proposal. to the Government of India for concurrenceofvacancy as the SDR is dynamic in nature and keeps on fluctuating due to various reasons such as retirement, ti-ansfer,deputation,etc. At no time, the number of ex-cadreposts exceededthe combinedsti-engthof SDR and Central DeputationReserve (CDR). That apart, on 3.9.2008, two officers were working in the grade of Chief Secretaryand one cadre post of Director General, UttarakhandAdministrativeAcademy and one ex-cadrepost were vacant. After concurrencewas receivedfor two vacancieson 19.9,2008 from the Government of India, Indu Kumar Pandey, who was appointedas Chief Secretary,soughtvoluntaryretirementfrom IAS which was sanctionedon 2.12.2009. N.S. Napalchyal,who was previouslyposted on the excadre post of Additional Chief Secretary, succeeded him as Chief Secretary

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resulting in one more vacancy in the ex-cadre post and, therefore, there was nothingillegalin the actionof the ScreeningCommitteetakingcognizanceof the availabilityof three vacancies as the same is provided under the Promotion Guidelines, 2000.

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With respectto creationof 18 additionalposts for 2 years, pendingcadre review due in 2009, exercisingthe powers under the second proviso to Rule 4(2) of the 1954 Rules, it was urged that the State Governmentwas fully justifiedin creating these posts as the developmentactivities of the State had multiplied considerablyafter the last cadre review in the year 2004 and there was pressmg need for officers to execute these programmes. As per paragraph5.2 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-mentionedcadre, rule were to be counted as temporaryadditionto the cadre posts and they could not be countedagainstSDR which, accordingto the respondent,was utilizedonly to the extent of9 well within the prescribedlimitof 13 on the date ofpromotionto the grade of ChiefSecretary,i.e., on 31.5.2010. Therefore,the respondent-Stateof Uttarakhandwas within its right to promote3 persons from the panel preparefl by the ScreeningCommitteeto the apex grade of ChiefSecretary. As regardsthe third vacancycreateddue to retirementof N.S. Napalchyal,it was reiteratedthat

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there was no need to write to the Government of India for concurrence as the later approvalgiven by the Governmentof India, for all practicalpurposes,did tantamountto deemedapprovalunder Rule 3(2)(ii)&(iii) of the IAS (Pay) Rules, 2007. It was contendedthat as the applicanthad already been promotedto the grade of Chief Secretary,his contentionthat he would have better chances of promotionto the said posthad therebeen only two contendersfor thatinsteadof four, is not tenable because chance of promotionis not a right. Reliance was placed on the decisionsrenderedin The State ofMysore v. G.N. Piirohit&Ors, (1967) SLR 753; RamchandraShankarDeodhar&Ors. v. State of Maharashtra &Ors, (1974)1see 3; MohmmadShujatAli&Ors, v. UOI &Ors., (1975) 3SCC 76; and BakshishSingh v. UOI & Ors., 1985 (Supp.) SCC 116.

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The fifth respondent- Subhash Kumar emphasizingthe words "at that level of pay" used in the Rule 9(7) of the 2007 Rules contendedthat-^twoex-cadre posts could be createdwithoLitthe permissionof the CentralGovernmentas two cadre posts existedat the time of creation.

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The seventh respondent - N.S. Napalchayal, placing reliance on K.A. Nagmani v. Indian Airlines & Ors., (2009) 5 SCC 515, contended that the applicanthad no right to challengethe creationof two ex-cadreposts by order dated 19.9.2008 because he participated in the selection and chose not to If/YQ 3457/2011&connectedmailers P'^'S^

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challengethe procedurebeforethe meetingof the ScreeningCommittee. Even if selectionwas at all to be set aside,the selectionof the applicant would also be set aside. With regard to the applicant'sclaim of violationof paragraph24 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 jointlyseen and the status.ofthe SDR was, therefore,relevant at the time of promotion. Placingrelianceupon Citizensfor Justiceand Peace v. State of Gujarat&Ors., (2009) 11 SC.C 213, itwas assertedthat the appointment to the post of Chief Secretarybeing a sensitivepost, it is the prerogativeof the State Governmentto choose an eligiblecandidateand no one has a right to be posted in a particular post.

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The fundamentalissues that emergedfor considerationbefore the tribunal in the backdropof the 1954 Rules, IAS (Fixationof Cadre Strength)Regulations, 1955, clarificatoryletter dated 13.06.2000of the DOP&T, para 24 of the general guidelinesfor promotionissued by the Centi-al Governmenton 28.3.2000, and the 2007 Rules were whether the State Governmentcouldcreateadditionalposts and further, whether the promotionto the apex grade of Chief Secretaryhad been done in a legallyjustifiedmamier when there was no prior concurrenceby the Central Government.

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24.. The tribunal opined that considerationfor promotionis a legal right and the issue has not to be looked at from the viewpoint that whether the applicant once promoted to the apex gi-ade could have any right to the post of Chief Secretary. The ti'ibunalheld that at the time of selectionfor the post of Chief Secretary,if the rules had been scrupulouslyobserved,the applicantwould have been tlie only person to be promoted as there was a singular vacancy in the grade of ChiefSecretaryon 30.9.2008. It has also been opinedby the tiib.unalthat the creationof two ex-cadreposts by the State Governmentwas in violationof the rules and even if the considerationwas for two vacancies,as approved by the Centi-al Government, Subhash Kumar, who was appointed as thte Chief Secretary,could not have been selectedand only SunilKumar Muttoo,the fourth respondentin OA No.2537/2010,could have made it to the apex 'grade and the scenario would havp been quite different.

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The ti-ibunal repelled the stand that as the applicant has already been promotedto the grade of ChiefSecretary,he couldnot have any grievanceon the foundationthat he has been deprivedof the right to be appointed to the post of Chief Secretaryon the gi-ound that promotionsmade to the apex gi-ade 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

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seek prior concurrenceof the Centi-al Governmenton 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>2007of the DOP&T. It stated that the letter providesin clear terms that it shall be mandatoryupon the State Cadre to seek prior concurrenceof the Central Governmenton the number of available vacanciesin each grade. Thereafter,the tribunalproceededto state as follows:

¶115

"This letter, in essence, captures the illegahty committed by the Respondentsin not seekingprior concurrencefor the third vacancy, only on the ground that it was an obvious vacancy. There is no such exemptionin the aforesaidrule that if in the opinionof the State Govermnentavacancywas 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 contentionraised on behalf of the Respondentsthat by order dated 16.10.2010the Centi-alGovernmentgave its deemed approvalfor creationof posts under Rule 3(2)(iii)of the IAS (Pay) Rules, 2007, because . the deemed permissionunder the said rule is consideredto be given if the proposalof the State Cadre is not concurredin by the Central Government within one month. It is not deemed permission,if granted ex-postfacto. The CentralGovernment has violated its own rules by giving ex postfacto approval to the proposal of the State Govermnent.

¶116

The tribuiial further stated that since prior concurrence is necessary for availablevacanciesfor promotion,it would stand to reasonthat considerationof SDR would be relevant only at the time when the approval for the available ]¥P(C) 3457/2011 cf- connectedmatters •

¶117

vacanciesis given. The tribunalopined that Rule 8(2) of the 1954 Rules and Rule 9(7) of the 2007 Rules have to be read harmoniously.The tribimal thereafter observed as follows:

¶118

"The interpretation that it would mean that, the State DeputationReserve 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 stretchofthe imaginationthis rule can be interpretedto 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 entirelythe choice of the State Cadre to

¶119

-create ex-cadreposts in any of the grades. But put together these cannot exceed the State Deputation Reserve. If it were so, the State DeputationReservewould have been worked out for each of the posts. The only qualificationis thatin the apex scale only that numberof ex-cadreposts can be created,which existin the SeniorDuty Posts,that is, cadre posts. It would be , wrong to interpretit to mean that regardlessof 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 instantcase). When it was clearly mentionedin the letter dated 03.09.2008 of the State Government that the utilisation of SDR was 17, beyond the prescribed 13, the Central Governmentwas in errorin approvingthe availablevacanciesas two."

¶120

The tiibunal accepted the stand of the applicantthat on 03.09.2008,only one vacancy in the cadre post was availableand that alone should have been consideredfor filling up, The tribunalstated that it would be erroneousto hold that there has been no infractionof any rule as all the rules and regulationsand • WP(C) 3457/2011&connectedmatters page 23 of60

¶121

the instructions issued under them have to be read together. A combined reading of the rules and instructions would make it abimdantly Clear that the SDR has to be consideredat the time of givingapproval for the availablevacanciesand not at the time of making promotions;and that prior concurrenceof the Central Governmentwould be necessarybeforethe meeting of the ScreeningCommittee. The argument that the SDR and the CDR have to be jointly consideredwas misconceived. The tribmial opined that a careful reading of the Office Memorandum dated 27.01.2005, cited by the respondents therein, does not supportthe contentionthat for creationof ex-cadreposts, SDR and CDR have to be jointly considered.The OM adverted to, only stipulatesthat the number of personson ex-cadreposts and on centraldeputationshallnot exceedSDR +CRD and, therefore,the number of persons on central deputationwould not exceed the CDR.

¶122

After so stating,the tribxmalreferredto the second proviso of Rule 4(2) of the 1954 Rules whichprovidesthat the State Governmentconcernedmay aidd for a period not exceeding two years and with the approval of the Central. . Governmentfor a further period not exceedingthree years to a State or Joint Cadre, one or most posts carrying duties or responsibilitiesof a like nature to

¶123

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. ^0

¶125

cadre-post. The ti'ibunalreferred to paragraph5.2 of the clarificationissued by the DOP&T and thereafter proceeded to express thus;

¶126

"The posts created by the State Governmentare such posts, which already exist in the cadre like Principal Secretary or Additional Chief Secretary. These posts, as would be clear from the highlightedportion of the clarificationof 23.04.1998 would be, counted in State Deputation Reserve., If posts created had been of the nature carrying duties and responsibilitiesof a like nature to cadre posts, such as, for example. Officer on SpecialDuty, these would be counted as temporaryadditionto cadre posts. In fact the secondproviso to Rule 4(2) ibid only sanctionscreationof 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 teethof the ratio laid down by the HonourableSupreme Court in E Royappa, wherein it has been held in paragraph18 that the second provisoto the Rule 4 (2) of the IAS (Cadre)Rules,1954 does not confer any power on the State Government to alter the strengthand compositionof the cadre. It has been clearly held that the posts which are addedunder the secondproviso, do not increase the strength of the Cadre. In paragraph 81 ibid it has been held that only the Central Government can alter the sti-engthof the cadre in its cadre review. The State Government camiot make any permanent addition to the cadre sti'ength. Moreover, we have already held that the status of State DeputationReserve has to be consideredat the time of grantingof approvalfor availablevacanciesand 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 argumentis neithercorrectnor materialfor consideration in the circumstances of tlus case."

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After so holding, it has beeil further observedby the tribunalthat in the obtainingfactual mati'ix,it was possible on the part of the State Governmentto 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 promotionbecausethe said promotionshad been made in total contraventionof the prescribedrules and further had the promotionbeen made in accordance with the rules, the scenariofor the selectionto the post of ChiefSecretarywould have been different. Beingof this view, it proceededto directas follows;

¶130

"38. On the basis of the above consideration, the impugned orders dated 19.9.2008 and 13.10.2010 and all the consequentialpromotionsmade by the State Goverranentare quashed and set aside, includingthat of the Applicant. The State Govermnent 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."

¶131

For the sake of convenience, we think it apposite to enumerate the conclusions arrived at by the tribunal in seriatim:

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(a) The stand of the State of Uttarakhandthat the vacanciesin the SDR and the CDR are to be jointlycomputedand the status of the SDR is relevant only at the time of effectingpromotionis unacceptable.

¶134

(b) The SDR would be relevant only at the time when the approval for the availablevacanciesis 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.

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(d) As it was clearly mentioned in the letter dated 3.9.2008 of the State Governmentthat the utilizationof SDR was 17 beyond the prescribed number of 13, the Central Government had committed an error in approvingthe availablevacanciesas 2whereason 3.9.2008,only1vacancy in the cadre post was available.

¶137

(e) The second provisoto Rule 4(2) of the 1954 Rules read with paragraph5.2 of the clarificationissued by the DOP&T categoricallyconveys that the State Governmentcannotcreateposts alreadyexistingin the cadre but can

¶138

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only create posts which are "of a like nature to cadre post" and such creationof postswouldnot counttowardsthe posts in the cadre.

¶141

(f)

¶142

If Rule 4(2) of the 1954 Rules and Rule 3 and Rule 9 of the 2007 Rules are conjointlyread, it would clearlyconvey that the State Governmenthas no authorityto alterthe strengthand compositionof the cadre.

¶143

(g)

¶144

The concurrencegiven by the Central Governmentinitiallyon 12.9.2008 was incorrectas concurrencecould have been given only in respect of 1 post.

¶145

(h) The post facto concurrencegiven on 13.10.2010would not validate the promotions as obtaining of prior concurrence under the 2007 Rules is mandatory.

¶146

(i)

¶147

The stand of the State Governmentand other respondentsthat issue of a direction for fresh consideration would be an exercise in futility is unacceptableas the promotionshave been given in contraventionof the prescribedRules and Regulations.

¶148

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 Gujpta,

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learned seiiior 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 respondentno.l in WP(C) Nos.3476/2011, 3477/2011,3485/2011and 3486/2011and Mr.A.S.Chandhiok,learnedASG along with Mr.SanjeevSachdeva,learnedcounselfor the respondent-Unionof India in all the writ petitions. Be itnoted,we have heard all the contestingparties.

¶151

Mr. Mata, learned senior counsel appearingfor Mr. Ajay Kumar Joshi, criticizingthe order of the tribunal,contendedthat the State Governmentcould not have promotedthe respondentswhen the posts were not sanctionedin terms of Rule 3(2)(ii)arid (iii) of the 2007 Rules as the said Rule is mandatoryin nature and the posts in the grade caii only be sanctioned when there is prior concurrenceby the Central Government. It is urged by him that there is a distinctionbetween prior concurrenceand post facto conciirrenceand the post facto concurrence would never cure the defect since as per the postulates enshrined in the Rule, prior concurrenceis mandatory and to that extent, the conclusionarrived at by the ti'ibunalis absolutelycorrectand justifiedand does not requireinterferenceby the Court. The learnedcounselwould furthersubmit that the tribunal has failed to appreciatethe case of the petitioner inasmuchas

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page 29 oj 60

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the stand of the petitionerwas that he was the only candidatewho could have been consideredregardbeinghad to his seniorityand also takingnote of the fact that there was sanctionfor the postby the Centi^alGovernment but the tribunal has failed to appreciatethe same in proper perspectiveand expressedthe view that the total selectionprocess is erroneousand thereby proceededto quash the order of promotionpassed in favour of the petitionerand issued a directionto proceed afresh. To butti-essthe said submission,the learnedsenior counsel has pressed into service the 2007 Rules and drawn inspirationfrom the decisionin AshokKumar'Das &Ors v. UniversityofBurdwan&Ors., (2010) 3 SCC 616.

¶155

It is contendedby Mr. Soli J. Sprabjee,learnedsenior counselfor the State of Uttarakhand,that the issue of gi-ant of approvalis an issue which is between two governments/namely,the State GovermTientand the Union of hidia 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 Governmentand the State Government and when there is a post-facto approval, this should be regarded as a matter pertainingto the adjustinentof the cadre strengthand hence, the tiibunal has totally erred in lancetting the same. His further submission is that the respondent No.l, Ajay Kumar Joshi, the applicant before the tribunal, was

¶156

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promotedto the apex scale, the Chief Secretarygrade and, therefore,he had no concern how the vacancieswere determinedand concurrencewas given. The Screening Committee took cognizance of the vacancies on an additionalpost created temporarilyunder second proviso to Rule 4(2) of the 1954 Rules as a consequenceof whichthe rightof the said applicantwas neverinfringed.

¶159

Mr. Chandhiok,learned AdditionalSolicitorGeneral for Union of India, urged that the controversy,if any, was betweenthe State Governmentand the Central Governmentand when the Central Governmenthas granted post-facto approval,the controversy,if any, shouldhave been allowed to put to rest. It is his further submission that in a matter of cadre adjustment, the incumbents cannothave any say and the ti-ibunalhas fallen into gi-ave error by entertaining the same in exerciseof the power ofjudicialreview.

¶160

Mr.D.ushyantDave, learnedsenior counselappearingfor the petitionerin WP (C) Nos. 3485/2011and 3486/2011,has submittedthatit is the prerogativeof the State Governmentto appoint the eligible person as Chief Secretaryand no incumbenthas a right to claim appointmentor promotionto a particularpost. The learnedsenior counselwould submit that the tribunalhas fallen into grave error by laying unnecessaryemphasis on the "chances of promotion"vis-a-vis the post in question. It is canvassed by him that the tribunal should have IfPfCJ 307/2011 connectedmailers

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acceptedthe stand of the respondentthat once the applicar\tbefore the tribunal had been brought in the gi'ade of Chief Secretary,the controversyis put to rest and it should not have adverted to the facet of claim of the applicant that his considerationfor the post of Chief Secretary has been curtailed by creating furtherposts withoutpriorconcurrenceof the CentralGovernment.

¶162

To appreciatethe controversyin properperspective,it is necessaryto refer to the variousrules,regulationsand guidelinesand dwellupon the controversy.

¶163

Rule 4 of the 1954 Rules deals with sti-engthof cadre. The said rule reads

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as follows;

¶165

"4. Strength of Cadres -

¶166

(1) The sti-ength 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 suchregulationsare made, shallbe as in force immediatelybeforethe commencementoftheserules.

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(2) The Centi-alGovernmentshall, ordinarilyat the interval of every five years, re-examine the strength and compositionof each such cadre in consultationwith the State Government or the State Governments concerned and may make such alterationsthereinas it deems fit:

¶168

Provided that nothine in this sub-rule shall be deemed to affect the power of the CentralGovernmentto alter the strength and compositionof anv cadre at any other time:

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Provided further that State Government concerned mayadd for a period not exceeding two years (and with the approval of the Central Govermnent 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."

¶171

Emphasis supplied]

¶172

Rule 7 deals with posting. It reads as follows: -

¶173

•"1. Posting - All appointments to cadre posts shall be made-

¶174

a. In the case of a State Cadre, by the State Government; and

¶175

b. In the case of a Joint Cadre, by the State Government concerned."

¶176

Rule 8 provides for cadre and ex-cadreposts to be filled by cadre officers.

¶177

It is as follows;

¶178

"8, Cadre and ex-cadre posts to be filled by cadre officers-

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(1) Save as otherwise provided in these rules, every cadre posts shall be filled by a cadre officer.

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(2) A cadre officer shall not hold an ex-cadre post in excess of the riumber 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 ah ex-cadre post in excess of number specified for the concerned State in item 5 (now item 31 of the Schedule to the Indian

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Administrative Service (Fixation of Cadre Sti-ength) 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 fnow item 3) of the said Schedule."

¶184

[Emphasis supplied]

¶185

At this juncture,we may refer to sub-rule(2) of Rule 3 of the 2007 Rules. It

¶186

is as follows:-

¶187

"3. Scale of pay and appointment in these grades.

¶188

(1) xxx xxx xxx

¶189

\ ' (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 • completedphase IV mandatoryMid Career Trainingas prescribed.

¶190

(ii) Appointmentof a member of the Servicein the scales of • Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose,it shall be mandatorvupon the State Cadres or the Joint Cadre Authorities, as the case mp be, to seek prior concurrence of the Central Goverriment on the number of available vacancies in each grade. The Central Government shall accord such concurrence within a period of thirty davs from the date of receipt of such references and if the Central Government does not accord concurrence within a period of said thirtv days,

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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) Amemberof the Serviceshallbe entitledto draw pay in the scales of Selection Grade and above only on appointment to these grades."

¶194

[Underlining by usj

¶195

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 enumeratedherein

¶196

below; -

¶197

"9. Pay of members of the Service appointedto posts and included in Schedule 11.

¶198

(1) No member of the Service shall be appointedto a post other than a post specified in Schedule II, unless the State Government concerned in respect of posts mider its conti'ol or the Central Government in respect of posts under its control, as the case may be, make a declarationthat the said post is equivalent in status and responsibilityto a postspecifiedin the said Schedule.

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(2) XXX XXX XXX

¶200

(3) XXX XXX XXX

¶201

(4) Notwithstandmganything 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 imder its control', may, for sufficient reasons to be recorded in writing, where equation is not possible,appointany memberof the Serviceto any such post withoutmaking a declarationthat the said post is

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equivalent in status and responsibility of a post specified in Schedule II.

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(5) & (6) XXX XXX XXX

¶206

(7) At no time the number of members of the Service appointed to hold posts,otherthan cadre posts referred to in sub-rule CD and sub-rule (4:), which carry pay of Rs.26,000/- per mensem and which are reckoned againstthe State DeputationReserve,shall exceptwith the prior approval of the Central Govermxient,exceed the number of cadre posts at that level of pay in a State cadre or, as the case may be, in a Toint cadre."

¶207

'Emphasis supplied

¶208

On a careful scrutiny of the factual scenario in question and' the' submissionsurged, the core issuesthat emanatefor considerationare.-

¶209

(i) What is the exact role of the State Government and the Centi-al Government in the fixation of cadre strength?

¶210

(ii) ^Whether the post facto concurrencewould cure the defect despite the languageemployedin Rule 3(2)(ii)and (iii) ofthe 2007 Rules?

¶211

(iii) Whether the tribunal is justified in quashing the promotions of all the incumbentson the ground that there has been violationof the Rules and Regulations?

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(iv) Can an eligiblepersonput forth a claimfor beingpostedas ChiefSecretary on the gromid that when the post was going to be filled up, he was the only candidate ehgiblefor consideration?

¶214

First, we shall advert to the issue with regard to the existenceof cadre and ex-cadreposts in the State of Uttarakhandas determinedby the ti-ibunal. As is manifest,placingrelianceon Rule 4(2) of the 1954 Rules read with Rule 8 of the said Rules, the tribunalhas opined that the determinationof the cadre post by the State is unacceptableand further the ex-cadre post had exceeded its limit. While dealingwith the role of the CentralGovernmentin creationof post, theii Lordshipsin E.P. Roxjappa(supra)have ruledthus:

¶215

"17. It was contended that neither the post of Deputy Chairman, Planning Commissionnor 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 Administi-ative Service (Cadre) Rules. The strength and compositionof the Cadre as contemplated by Rule 4 of the Indian Administrative Service (Cadre) Rules is to be determined by the Centi-al Government in consultation with the State Government. The relevantprovisionis sub-rule (2) of Rule 4. It states that the Centi-al 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 Govermnents concerned and may make such alternations as it deems fit. There are two provisos in the sub-rule. The first •

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proviso states that nothing shall be deemed to affect the power of the Central Governmentto alter the strength and composition of the Cadre at any other time. The second provisostatesthat the State Governmentmayadd for a period not exceeding one year and with the approval of Central Government for a fmlher period not exceeding two years, to a State or joint Cadre one or more posts carrying duties and responsibilitiesof 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.

¶219

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. Ifsuch power were coiTferredon the State examination ofthe strengthand compositionat the intervalof every three years by the Central Government in consultationwith the State Govermnent would be nullified. The meaning of the second proviso to Rule 4:(2) is that the State Government mav add for a period mentioned there to the Cadre one or more posts carryingduties and responsibilitiesof 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 Deputv Chairman, PlamiingCommissioiior OfficeronSpecialDuty to the Indian Administrative Service Cadre of Tamil Nadu State is not permissiblebecause that would result in alteringthe strength and composition of the Cadre. The State has no such power within the second proviso to Rule 4(2) ofthe Cadre Rules."

¶220

'Emphasis added

¶221

44, In this context, we may refer with profit to the decisionin K. Prasad & Ors. V. Union ofIndia &Ors., AIR 1988 SC 535 wherein,while dealingwith the

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sti-ength and composition of the cadre under the IFS (Cadre) Rules, 1966, especiallyRule 4 of the said Rules, their Lordshipsreferred to the decisionin E,P. Royappa(supra)and expressedthe view as follows;

¶226

"22. ...The argument is that it is for the Centi-alGovernment to fix the strengthand compositionofthe cadres and that this power can be exercisedby 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 contendedby the direct recruits that the provisorelied 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 sti'ength in between the "three-year reviewcontemplatedby rule 4(2). Shri Kakkar,in this context, referred us to the followingobservationsin Royappa v. State of Tamil Nadu, (1974) 2 SCR 348 at p.379 : (AIR 1974 SC 555 at. p.578);

¶227

"We now tm-n to the first ground of challenge which alleges contraventionof 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 secondprovisoto R.4(2) of the Indian Administrative Service (Cadre) Rules, 1954 •is concerned, we do not think it has any apphcation. 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 compositionof the cadre can be determined only by the Central Government under R.4(l) and the Cental Government alone can review it triemiially or at any other hitermediate time under R.4(2)."

¶228

We do not think that such a narrow interpretation of the proviso is warranted. As we see it, the proviso only outlines

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^5"

¶231

the general principle that, whoever has the power to do a particularthing has also the power to exerciseit from time to time, if need be : (vide, S.14 of the General Clauses Act, 1897). It had to be specificallyput in because of the language of the main part of sub-rule(2) providingfor a tiiennialreviewlestit should be construed as a restriction on the general power otherwise available. We, therefore, agree with the contention of the initial recruits that the Centi-al Government has the power to alter the strengthand compositionof the cadres at any time. We are, however, still of the view that the contentionurged on behalf of the initial recruits cannot be accepted for a differentreason. If the terms of the relevant rules are scrutinised, it will be seen that the stTength and compositionof the cadre has to be determinedby regulations and that these regulations have to be made by the Central Government in consultation with the State Governmeiit. It is a well settled principle that, if a statutory power has to be exercisedin a particular mamier, any exercise of that power has to complywith that procedure. It follows, therefore,that if the iiiitialcompositioncan be only drawnup in consultation with the State Government and by regulations, it will not be permissiblefor the CentralGovernmentto modify or alter the same save in the same manner. In fact also, it has been broughtto our notice,there have been subsequentincreasesin the authorised sti-engthof almostall State cadres and this has been effected by an appropriate amendment to the Regulations.It is not the case of the Governmentthat before the second and third selections were made, either the State Government was consulted or the regulation^ were amended for increasing the sti-ength. Nor is it even their, case that there was any specific order by the Central Governmentchanging the strengthand compositionofany cadre. We are, therefore, of opinionthatit is not possibleto acceptthe contentionof the initial recruits that the mere appointment of an excessnumber of officers should be ti'eated as an automatic expansion of the cadre sti-ength and composition in exercise of the power available under Rule Ml)." [Underliriing is ours]

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Be it noted, in the said case, a contentionwas raised that the Regulations and the Rules were not mandatoryas they do not outlinethe consequencesthat will follow on violationof their requirements. Repellingthe said submission, theirLordshipsproceededto hold as follows:

¶235

''Tt is difficultto accept,in this context,the submissionthat the ppidre 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 StrengthRegulation. So far as the latter is concerned, this Court held, in Kapur v. Union of hidia, (1975) 2 Serv LR 531 (Punj & Har).thatit 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 Goverm-nentto alter the strengthand compositionof the Cadre withoutconsultingthe State Government concerned. " [Emphasissupplied

¶236

We have referredto the aforesaiddecisionin extensoas we find that what has been laid down thereinis that the procedureprescribedunder 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 Centi-al Governmentand similarlythe CentralGoverranentis not empoweredto alterthe

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strengthand compositionof the cadre withoutconsultingthe State Governmer\t concerned.

¶240

In this context we may refer with profitto a passagefrom Harjeet Singh v. Union of India & Ors„ (1980) 3 SCC 205 wherein their Lordships,,while interpretingRule 9 of the IPS (Cadre) Rules, 1954 and IPS (Fixation of Cadre Sti-ength)Regulations,1955,have opinedthus:

¶241

"On the other hand we think that the Fixation of Cadre StrengthRegulationsmade 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 servicerenderedby a non-cadreofficerin a cadre post on the . mere ground of breach of the Fixation of Cadre Strength Regulations,when there has been strictcompliancewith 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 convei-iience and better relationship. Excessive utihsation of 'Deputationor Centr'alReserve'is a matterfor adjustmentand conti-oversv between the Central and the State Governments and is of no concern to anv member of the Service. For . exampleno cadre officerwho is asked to fill a deputationpost 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) ofthe RecruitmentRules stipulatesthat the total number of persons recruited by promotion shall not at any time exceed 25% of the posts shown againstitem Nos. 1 and 2 of the cadre in the schedule to the Fixation of Cadre StrengthRegulations.Now, if at a poii-\t of time this limit is

¶242

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¶244

exceeded, direct recruits may have a just cause for complaint and it may perhaps be held that to the extent of the excess the appointmentsby promotionare invalid and confer no rights ofseniorityover directrecruits.But, as we said, the Fixationof Sti-ength Regulation coiifer 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."

¶245

[Emphasis supplied]

¶246

47, At this stage, we may refer to the decisionin K. Rajendran& Ors. v. State ofTamil Nadu & Ors., AIR 1982 SC 1107. We are absolutelyconsciousthat the said decision was rendered in a different context but their Lordships have delved into the concept of Governmental administration and the necessities of alterationsin the staffingpattern and have opinedthat it is within the exclusive domain of the executive,of course subjectto judicialreview within permissible parameters.-

¶247

The scope of judicial review as far as fixation of cadre strength,is concernedrests on the principlewhetherthere had been proper determination,of cadre strengthas per the rules. On an x-ray of the anatomy of the Rules, t| 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 excadre posts at no point of time exceededthe.combinedsti-engthof the SDR and CDR posts. Pending cadre review in 2009 in exercise of Rule 4(2) of the 1954

¶248

]VP(C) 3457/2011 cf' connected matters

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Rules, 18 additional pdsts 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 Administi-ative Academyand both the posts were in the grade of ChiefSecretary. One ex-cadre post was. vacantand, hence, concurrencewas soughtfor two vacanciesand 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 prescribedlimit of 13, the Central Governmentwas in error in approving the available vacancies as the vacancy position was one.

¶250

In this context, we may refer with profit to the commuiiicationof the competentauthorityof the CentralGoveriimenton 19.9.2008. Itreads as follows:

¶251

"I am directed to refer to your letter Nos.2255/Thirty/-I-2008- • 12(19)/2005 dated 3.9.2008 on the abovementionedsubject and to convey the coi'icurrence of this Department to the availabilityof 2 vacancies in ASTS-II. Rs.26,000/-of IAS in Uttarakhaiidas per the provisionsof Rule 3(2)(ii)&(iii)of the lAS(Pay) Rules, 2007."

¶252

After the said concurrence was given, as the factual matrix reveals, the State Government,by order dated 31.5.2010,promotedthree officersto the Chief Secretarygrade agairistthree vacancies. Because of the said position,the State

¶253

IVP(C) 3457/2011 coimecledmatters

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Government, by letter dated 8.10.2010,wrote to the Central GoveriTmentstating

¶255

thus:

¶256

"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 cognizanceof three obvious vacanciesin the Chief Secretary grade (one againstcadre posts and two againstex-cadreposts) 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 againstthree obviousvacanciesavailablein this gi-ade. 3. Since the meeting of ScreeningCommittee was held in . pursuance of the concurrence given by the Government of India's letter dated 'l9th 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-Ill). The statement showing grade-wisesanctionedstrengthof 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.

¶257

Here, it is also worthwhile to mention that by making the said promotionson 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 Secretarygrade has occurred and presently only three officersare working in

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this grade. For the promotionagainstone availablevacancy,a proposal for the concurrenceof tlie Governmentof India is being sent separately."

¶261

After the concurrencewas sought, the DOP&T of the Central Government

¶262

prepared the following note:

¶263

"2. The Chief, Secretary has drawn reference to this Department'sletter dated 19.9.2008 whereby concurrenceto the availabilityof 2vacanciesin the Apex Scale was conveyed and stated that the meeting of the ScreeningCommittee for fillingup these two vacancieswas held on 19'^''February,2010 and in the same meeting, the Committee also made recommendations for filling up another vacancy i.e. 3'^ vacancy on account of retirementof Shri Indu Kumar Pande on 12""^ December, 2009 for which concurrence of the Central Government was obtained. On the basis of the recommendations of the Screening Committee, the State Governmenthas 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 availabilityof vacancy. The incumbencypositionprovided by the State Government vide letter dated 31.5.2010 is as

¶264

follows:

¶265

Grade	No, of Cadre posts	Utilization of cadre posts	No. of Officers occupying Ex cadre posts under SDR	Officer on inter-cadre deputation	Available vacancies	Vacancies for which confirmation issought
Chief Secretary	2	1			3.	3
ASTS	13	13	~	—	—
STS	19	15	—	—	• —
Selection Grade / Sr,	34	34	9	"

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page 46 of 60

¶268

Scale /
JAG
'Total 68 63 9 — 3

¶269

Rule Position: As per rule 3(2)(ii) of IAS (Pay) Rules, 2007,

¶270

"Appointmentof 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 Inandatory upon the State Cadres or the. Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Centi-al Government on the number of available vacancies in each grade".

¶271

Further, under Rule 3(2)(iii) of lAS(Pay) Rules, "The Centi-al Government shall accord such concurrence within a period of thirty days from the date of receipt of such referencesand if the Central Government does not accord concurrence within a period of said tliirty days, the concurrenceon availabihtyof vacancies shall be deemed to have been accorded. The positionemanatingas referred to this clause shall be placed before the Screening' Committee at the time it meets to consider promotion in these grades".

¶272

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 observedthat the 3 vacanciesin the Apex Scale as on 31.5.2010have actuallybeen there. The no. of ex-cadre posts under SDR quota are also within permissible limit of13 posts.

¶273

If approved, we convey the concurrence to the availability of 3rd vacancy in the Apex-Scale of IAS in Uttarakhand cadre."

¶274

IVP(C) 3457/2011&connectedmatters

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page 47 of 60

¶276

•^3

¶277

Thereafter, approval was granted and on 13:,10.2010, a letter was

¶278

communicated, which is as follows:

¶279

"I am directed to refer to the State Government's letter . no.807/30-l-10-12(19)/2002-TC,dated 31^^ May, 2010 and d.o. no.l470/XXX-l/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 provisionsof Rule 3(2)(ii) & (iii) of the lAS(Pay) Rules, 2007, in addition to existing 2 vacancies in this grade already concurredto by thisDepartmentvide letter dated 19.9.2008."

¶280

On a perusal of. these aspects,it is perceptiblethat 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 fixationof cadre strengthis the exclusiveconcern of the Centi^aland 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 Centi-al and the State Governments. Thus, it is in the domain of the Centi-al and the State Governments. Yet, there has to be application of mind to the stipulationsprescribedunder the Rules and Regulationsand there cannotbe an oversightof any fact. The tribunalhas notreallyconsideredhow it has precisely arrived at the conclusion that the ex-cadre posts were not limited to 13 and there WP(C) 307/2011Aconnectedmalters P"S<i "fS of60

¶281

was only a singularvacancyin the gi-ade of ChiefSecretary. Regardbeinghad to the concept of cadre adjustmentand the inter-playof Rule 4 of the 1954 Rules and Rule 9(7) of the 2007 Rules whereinthe Central Governmentand the State Governmenthave requisite roles, we are of the consideredopinion that there should be a proper determinationof the vacancies in the Chief Secretarygrade that existed on 19.9.2008,the date on which the first concurrencewas given by the Central Government, We are disposed to think that the tribunalhas fallen into error by expressingthe view that the singularvacancyexisted. The proper course is to direct both the Govermnentsto determinethe vacancy keeping in view the 1954 Rules, the cadrefixationmethodand the Regulations.

¶282

The second and third issues can be dealt on a commonbase. The plea of the State Governmentwas that the third vacancy ensued and when the vacancy existed,the grant of concurrencewas a mere formality. The languageemployed in Rule 3(2) clearlylays down that the appointmentof a memberof the servicein the scales of selectiongi-adeand above shallbe subjectto availabilityof vacancies in these grades and for this purpose,it shallbe mandatoryupon the State cadre or the jointcadre authorities,as the case may be, to seek prior concurrenceof the Centi-alGovernmenton the numberofvacanciesin each grade. Thus, merely on the assumptionof existenceof vacancy,the State Governmentcannotfill up the

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post. Prior concurrencehas its significationand legal sanctity. In this regard,we may refer with profitto the decisionin Union ofIndia and Ors. v. Vinod Kumar

¶286

and Ors. (1996) 10 SCC 78 wherein it has been held thus:

¶287

"Section5D(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 accordancewith the rules and orders applicableto officersand employeesof the Centi-al Government drawing corresponding scales of pay. A proviso specifiesthat where the Centi-alBoard is of the opinionthat it is necessaryto make a departurefrom 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 Centi-al Government. Without obtaining such prior approval, employees were recruited,in deviation of the Rules. It was contended that ex-postfacto approval was obtained. Rejecting the contention the Supreme Court held:

¶288

Under the proviso, where the Central Board is of the opinion that it is necessary to make a departurefrom the said rules or orders in respect of any of the matters •, enumerated above it is mandatory that it should obtain prior approvalof the CentralGovernment.Admittedly, prior approvalwas not obtained.On the other hand, ex post facto approvalwas obtainedbut in the teeth of the language of the proviso ex post fact approval is not an approval in the eve of law. Under these circumstances, the Tribmial had rightly held that the approval was not valid in law and the matter was kept at large and .directed the Appellant to issue notificationafresh for recruitment in accordance with rules. We do not find any illegalityin the order."

¶289

[Emphasis added]

¶290

50 oj 60

¶291

]'VP(C) 3457/2011 connectedmailers

¶292

55, In LT.P. Avas Evam Vikas Parishad and another v. Friends Co-op. Housing Society Ltd. and another, AIR 1996 SC 114, the Apex Court deliberatedon tl\e differencebetweenapprovalandpermissionand proceededto stateas follows:

¶293

"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 legislationderhands it, we find no such compellingcircumstancesjustifyingreading any such implicationinto S.29(l) of the Act". Ordiiiarily, 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 subsequentlygranted mayvalidate 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(l)."

¶294

56, In High Court ofJudicaturefor Rajasthan v. P.P. Singh and another, AIR

¶295

2003 SC 1029, a three-Judge Bench of the Apex Court reiterated the principle in LT.P. Avas Evam Vikas Parishad (supra). In the said case, their Lordships

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observedthat the decisionofthe High Court in its interpretation of Rule 15 ofthe Rules of the High Court of Judicaturefor Raiasthan;i952was erroneousas it did notuse the words "prior approval". Inthat context,theirLordshipsstatedthus:

¶299

"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 (PermanentEdition,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 opportunityto .consultation or deliberation the purpose thereof is to enable the Judges to make their respective pomts 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 opportimity to deliberate upon the Agenda in question.

¶300

There is another aspect of the matter which may require consideration. For all intent and purport the report of the two-JudgesCommitteehas been approved by the Full Court. Once approved,it terminatedinto 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-firstrespondents herein did not question the appointments of the appointeesnot the High Court. Thus, there cannot be any doubtwhatsoeverthat for all intentand purport the opinionof the two-JudgesCommitteereceivedapproval at the hands of the Full Court.

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P"S^

¶303

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."

¶304

We have referred to the aforesaid decision solely for the purpose that the postulatefor prior concurrenceor prior approvalor previousapprovalstands on a differentfootingfrom approval,"subjectto approval"or "gi-antof permission".

¶305

57, In Behari Ktinj Sahkari Avas Samiti v. State of Uttar Pradesh and

¶306

Ors. (2008) 12 SCC 306, theirLordshipshave held thus:

¶307

''The question whether the ti'ansfer or sale of an evacuee propertywithoutprior or previousapprovalof the Custodian General is valid and whether post facto approval constih.ites sufficient compliance with the provisions of The Administration of Evacuee Property Act, 1950. Section10(1) enacts that the duty of the custodian is to preserve and maintain the property. Sub-section (2) enacts that only for the purposesenumeratedin 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.TheSupreme Court held on a construction of the relevant provisions:

¶308

"The approval of the CustodianGeneral 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.Tenderprocesswas not adoptedwhichwould have ensured that the best price was available. If the

¶309

WP(C) 3457/2011 c& connectedmatters

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order dated 30-1-1985is a nullity, further action is of no consequence."

¶311

Recently,in Ashok Kumar Das and others (supra), a two-JudgeBench of the Apex Court, while adverting to the expressions 'approval of the State Government'and 'prior approval'has opinedthus;

¶312

"15. The words used in Section 21(xiii) are .not "with the permissionof the State Government"nor "with the prior approvalof 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 v. the Executive Council of the University could not determine the terms and conditions. of service of the non-teachingstaff. Similarly, if the words used were "with the prior approvalof the State Government",the Executive Council of the University could not determine the terms and conditions of service of the non-teachingstaff withoutfirst obtainingthe 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 subsequentlyand in case the State Governmentdid not grant approval subsequently,any action taken on the basis of the decision of the Executive Council of the Universitywouldbe invalidand not otherwise."

¶313

InHira Lai Shanna v. MunicipalCorporationof Delhi, 64 (1996) DLT 527, a DivisionBench of this Court was consideringthe provisionenshrinedunder Section 96 of the Delhi MunicipalCorporationAct, 1957 which laid a postulate l'VP(C) 3457/2011&connectedmatters 54 of60

¶314

that no appointmentto any categoryA post within the meaning of clause (1) of sub-section (8) of Section 90 shall be made except after consultationwith the UnionPublicServiceCommission. In that context,the Bench opinedas follows:

¶315

"When Section96 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 categoryApost shall be made exceptafter consultation with the Commission. There is a clear legislative mandate that no appointmentshall be made in this categoryunless there is prior approval by the Commission.The relaxationhas been made with regard to other categories.The categoryto which the post of respondentno.2 belongs is a categorywhere the Legislaturein clear, explicitand categoricterms directedthat the appointment to the said post cannot be made withoutprior approvalofthe Commission."

¶316

In view of the aforesaid enxmciationof 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 approvalwould not validate the promotionsconferred. However, as we have opined,whether there existed one or two vacancieswhen first concurrencewas given had not been ascertained by the Centi-al Government in proper perspective, The tribunal,as statedhereinbefore,has not appositelyanalyzedthe vacancy positionand has also not taken into considerationthe conceptof cadre •adjustment. Therefore, we are of the considered opiiiion that the Centi-al Governmentand the State Goverranentshould work out the exact number of irPfCJ 3457/20!! connected matters

¶317

existingvacancies giving due regard to the concept of cadre adjustment. Be it noted, the tribunalhas opined that there was only a singularpost in the grade of ChiefSecretarywhen the firstconcurrencewas givenby the CentralGovernment and, hence, A.K. Joshi being the singular candidate could alone have been consideredfor the post of the Chief Secretary. We have already dislodgedthe finding with regard to the determinationof the vacancy. Hence,.,we have directedboth the Govermnentsto carry out the exerciseafresh. There has to be applicationof mind keepingin view the rule positionwhile determinmgthe said vacancy. The said exerciseshouldbe completedwithinaperiodof six weeks. At this juncture,we may note with profitthe tribunal,while quashingthe orders of concurrence,had directedthe existingarrangementto continue. This Court had directedstatus quo to be maintained. In view of the said position,it is directed that after completingthe exercise pertainingto determinationof•the existmg vacancy a review DPC shall be held and the cases of all incumbentsshall 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.

¶318

The fourth issue pertainsto the fillingup of the post of ChiefSecretary. At this jmicture, it is profitable to refer to the Promotion Guidelines, 2000.

¶319

, WP(C) 3457/2011&connectedmatters

¶320

page 56 of60

¶321

Araiexure I to the said Guidelines deals with the principles regarding the promotionof members of the IAS and compositionof DPCs. Para 6 ofthe said Guidelines, which deals with the gradation of Chief Secretary, is as follows: -

¶322

"Para VI: Promotion in the Grade of Chief Secretary.

¶323

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. Appointmentin this grade would be made from amongst the officers thus cleared, at any time duringthe relevantyear and subjectto the provisionsof rule 9(7) of the IAS (Pay) Rules, 1954 (as amended in 2007). The Screening Committee for this purpose shall consist of the ChiefSecretaryconcerned,one officerworkingin this gradein - the cadre and another officer of the cadre serving in Government of India in the same grade."

¶324

Araiexure II provides for general guidelines for promotion, etc. and functioning of screening committees. Para 3 deals with determination of vacanciesand para 24 deals with availabilityof vacancies. Both the paragraphs, beingrelevant, are reproduced below: -

¶325

"Annexure II: General Guidelines for promotion etc, and functioning of Screening Committees.

¶326

3. Determination of vacancies:

¶327

It is essential that the number of vacancies in respect of which a panel is to be preparedshould be estimatedas accuratelyas 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..."

¶328

irPfCJ 3457/2011 c& connectedmatters P^Se :>7 of60

¶329

24. Availability of vacancies:

¶330

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 permissiblequota of State Deputation Reserves indicated in the respective Cadre Schedules. Provisions of rule 9(7) of the IAS (Pay) Rules, 1954 (as amendedin 2007) would also requireto be followedwhile makingpromotionsin die highestgrade of the Service."

¶331

h-i Citizensfor Justice and Peace v. State of Gujaratand others, (2009) 11 see 213, it has been opined that an appointmentof a governmentservantis 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 principlewould apply to the post of ChiefSecretary. One has a right to be consideredfor the Chief Secretary'sgi-ade but on being promotedto the said grade, he cannotput forth a claim that he being fit and seniorshould be appointedto the post of ChiefSecretary. That, in our consideredopinion,is the prerogativeofthe State Government.

¶332

In view of the aforesaid premised reasons, we proceed to record our conclusions and directions in seriatim:

¶333

WP(C) 3457/2011A connectedmailers

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(i) The conclusionof the txibunalthat a singularpost existed in the grade of Chief Secretaryis not correct as the foundation or basis of the finding of the tribunal in this regard is not clear.

¶335

(ii) The cadre adjustmentis withinthe domainof the CentralGovernmentand the State Govermrient but the same has to be done by following the Rules and Regulations in letter and spirit and such adjustmentshould show application of mind.

¶336

(iii) The obtainingof prior concurrencefrom the CentralGovernmentin view of the languageemployedin Rule 3(2) of the 2007 Rules is mandatoryand a postfacto concurrencewouldnot validatethe promotion.

¶337

(iv) As the incumbentsare holdingthe post in the grade of ChiefSecretaryfor almost two years, the status quo existingas on today shall be maintained for a period of three months.

¶338

(v) The State Governmentand the Central Govermnentshall carry out :the exercise of the cadre sti'ength as on today keeping in view the rfule positionwithin a period of six weeks and thereaftei-,a fresh DPC be held for consideration of the candidates to the said grade. It should be borne in mind that the selectionand concurrenceare vacancy based and both the

¶339

irPfCJ 3457/2011 connectedmatters

¶340

authorities should rationally determine the vacancy position while filling up the Chief Secretary's grade after adjusting the cadre.

¶341