Civil Appeal No 3072 of 1980 etc
From the Judgment and order dated 5
101979 of the Allahabad High Court in Civil Misc
Writ No 3587 of 1974
SN Kacker CP Lal MN Krishnamani Dalip Tandon EC Agganvala Vijay Pandit Atul Sharma and Ms Purnima Bhat for the Appellants
Govind Das Anil Dev KK Singhvi PP Rao Kapil Sibbal VA Bobde GL Sanghi A Subba Rao CVS Rao C Ramesh Miss A Subhashini Mrs section Dikshit AS Bhasme AM Khanwilkar RK Mehta VJ Francis NM Popli JR Dass SP Kalra Mrs Rani Chhabra VB Joshi LK Pandey DD Gupta and KK Khurana for the Respondents
PN Mishra for the Intervener
The Judgment of the Court was delivered by 292 INTRODUCTION RANGANATHAN J
1
The controversies arising in this batch of cases are by way of sequel to three earlier decisions of this court in regard to the constitution of the Indian Forest Service viz Kraipak vs Union of India AIR 1970 SC 150 Parvez Qadir vs Union of India  and Union of India vs Chothia 1978 3 SCR 652
A little historical background is therefore necessary to appreciate the problems before us
THE ALL INDIA SERVICES ACT 2
A few months before India gained Independence a decision was taken that one of the primary needs of the federal constitution envisaged for India would be the setting up of All India Services common to the Centre and to the States
The members were to be recruited from the intelligent youth of the country by competitive examinations of high standard
They were to be free from political control contended and having a sense of security
The idea was to build up a bureaucracy consisting of efficient officers of integrity and impartiality who could man important administrative posts and make possible the continued governance of the country unaffected by periodical changes in the political set ups in the Centre and various States consequent on quinquennial elections to the various legislatures in the country
The recruitment to these services and their ultimate disciplinary control was to be with the Union Government but the officers would serve under the immediate control of the State Governments on various State cadres
Initially the All India Services viz the Indian Administrative Service and the Indian Police Service were created to replace the former Indian Civil Service and Indian Police respectively
p The statutory basis for the implementation of the above policy was provided by Chapter I of Part XIV of the Constitution articles 308 to 314 supplemented by the All India Services Act 1951 hereinafter referred to as the Act passed by Parliament as envisaged in article 312 of the Constitution
The Act initially applicable to the two Services above mentioned was extended by Amendment Act 27 of 1963 to cover the constitution of three new All India Services one of which was the Indian Forest Service IFS for short
section 3 of the Act empowers the Government of India to make after consultation with the State Governments rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Service
Such rules are to be laid as soon as possible after they are made and for not less than fourteen days before Parliament
293 THE RULES 3
Pursuant to the amendment of 1963 mutual consultations were held between the Union Government and the various State Governments and the broad pattern I already in existence for the Indian Administrative Service and the Indian Police Service was decided to be adopted for the Indian Forest Service also
Once this decision was taken the statutory rules followed
There were five sets of rules framed between 1966 and 1968 i The IFS Cadre Rules 1966 ii The IFS Recruitment Rules 1966 iii The IFS Probation Rules 1968 iv The IFS Pay Rules 1968 v The IFS Regulation of Seniority Rules 1968 Some of the rules relevant for our present purposes may now be set out
4a Cadre Rules The Cadre Rules came into force on 1st July 1966
Rule 3 provides that there shall be constituted for each State or group of States an Indian Forest Service Cadre
The cadre constituted for a State is called a State Cadre  and a cadre constituted for a group of states a Joint Cadre 
Rule 4 is important and can be extracted 4
Strength of Cadres 1 The strength and composition of each of the cadres constituted under rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Government in this behalf
2 The Central Government shall at the interval of every three years re examine the strength and composition of each such cadre in consultation with the State Government concerned and may make such alterations therein as it deems fit Provided that nothing in this sub rule shall be deemed to affect the power of the Central Government to 294 alter the strength and composition of any cadre at any time Provided further that the State Government concerned may add for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years to a State or Joint Cadre one of
more posts carrying duties or responsibilities of a like nature to cadre posts
 Rule 7 empowers the State Government to make the appointments to the State cadre and one of the concerned  State Governments to a Joint cadre
Under rule 8 every cadre post has to be filled by a cadre officer
Rule 9 envisages temporary appointments of non cadre officers to cadre posts
Under rule 10 cadre posts are not be kept vacant or held in abeyance for a period exceeding six months without approval of the Central Government
Under rule 11 temporary arrangements or leave arrangements could be made enabling a single cadre officer to look after two cadre posts but such arrangements cannot extend beyond 12 months
b Recruitment Rules The Recruitment Rules were also framed simultaneously and came into force on 1st of July 1966
They contemplate the initial recruitment of the officers of certain Services already in existence hereinafter referred to as the State Forest Service or SFS in short
Rule 3 and rule 4 are relevant for our present purposes 
The relevant portions of these rules reads as follows 3
Constitution of the Service The Service shall consist of the following Persons namely a Members of the State Forest Service recruited to the service at its initial constitution in accordance with the provisions of sub rule 1 of rule 4 and b Persons recruited to the service in accordance with the provisions of sub rules 2 to 4 of rule 4
Method of recruitment to the Service 1 As soon as may be after the commencement of 295 these rules the Central Government may Recruit to the Service any person from amongst the members of the State Forest Service adjudged suitable in accordance with such regulations as the Central Government may make in consultation with the State Governments and the Union Public Service Commission UPSC 2 After the recruitment under sub rule 1 subsequent recruitment to the Service shall be by the following methods namely a by a competitive examination aa by selection of persons from amongst the Emergency Commissioned officers and Short Service Commissioned officers of the Armed Forces of the Union who were commissioned after the Ist November 1961 and who are released in the manner specified in sub rule I of rule 7A b by promotion of substantive members of the State Forest Service
Rule 6 makes it clear that all appointments to the service are to be made by the Central Government
No appointment can be made except after recruitment by one of the methods specified in rule 4
The appointments of persons recruited to the service under rule 42a ie by competitive examination can only be made to the junior time scale of pay and the appointments of persons recruited to the service under rule 42b ie by promotion of substantive members of the State Forest Service shall be in the senior time scale of pay However under rule 6A an officer in the junior time scale of pay shall be appointed by the State Government concerned to a post in the senior time scale of pay if having regard to his length of service experience and performance in the junior time scale of pay the State Government is satisfied that he is suitable for appointment to a post in the senior time scale of Pay
 Rule 7 deals with the recruitment by competitive Examination rule 296 7A deals with recruitment by selection of persons from among officers released from the Armed Forces and rule 8 with recruitments by promotion
Rule 9 provides that the recruitment of persons under rule 8 is not to exceed 3313 per cent of the number of senior duty posts borne on the cadre of that State
c Pay Rules The Pay Rules provide for time scales of pay for the members of the service
There are two scales prescribed one a Junior scale the top of which is reached after 18 years of service and the other a senior scale which runs over a period of about 22 years
Under rule 4 the initial pay of a member of the service appointed under rule 41 of the Recruitment Rules has to be fixed in the junior time scale of the service at he stage he would have got if he had been appointed in that scale on the deemed date of appointment in the year of allotment
Sub rule b of rule 41 contemplates appointment of such an officer simultaneously to a post in the senior time scale and prescribes the mode of fixation of his salary in the senior time scale
d Seniority Rules So far as seniority rules are concerned two rules are relevant for our present purposes
One is the definition of senior post  contained in rule 2g which reads thus 2g Senior post  means a post included and specified under item 1 of the Cadre of each State in the Schedule to the Indian Forest Service Fixation of Cadre Strength Regulations
and includes a post included in the number of posts specified in item 2 and 5 of the said cadre when held on senior scale of pay by an officer recruited to the Service in accordance with sub rule  1 of rule 4 or rule 7 of the Recruitment Rules
 Rule 3 describes the mode of appointment and the allotment of a year of allotment to every officer appointed to the service
The seniority of officers is determined primarily by the year of allotment and inter se officers having the same year of allotment by the principles set out in rule 4
THE REGULATIONS 5
It may be mentioned that the rules contemplate regulations 297 being made by the Central Government in consultation with the State Government on various matters
Some of these regulations are also relevant 6a Cadre Strength Regulations The Fixation of Cadre Strength Regulations were framed in exercise of the powers conferred by rule 41 of the Cadre Rules
These regulations were first issued by a notification of the Government of India dated 31101966 and were deemed to have come into force with effect from Ist October 1966
There is only one substantive clause in this regulation which reads thus 2
Strength and Composition of Cadres The posts borne on and the strength and composition of the cadre of the Indian Forest Service in each of the States shall be as specified in the Schedule to these regulations
 The schedule proceeds to set out the strength and composition of the cadres of various States
In these matters before us we are concerned with the position in regard to three States Uttar Pradesh Maharashtra and Orissa
The provisions of the Schedule in so far as these States are concerned are as follows Maharashtra UP Orissa 1
Senior posts under the State Government Chief Conservator of 1 1 1 Forests Deputy Chief Conservator of Forests 2 Addl
Chief Conservator of Forests 1 Conservator of Forests 7 9 4 Conservator of Forests Development Circle 1 Conservator of Forests Working Plan Circle 1 1 298 Conservator of Forests Headquarters 1 Special officer Revenue  Forest Department 1 Deputy Conservators of Forests 35 48 24 Deputy Conservators of Forests Integrated Unit 3 Deputy Conservator of Forests Working Plans 8 Deputy Conservators of Forests Foresters  Training Division 2 Deputy Conservator of Forests Forest Resources Survey Division 1 Forest Utilisation officer 1 1 Working Plan officer 7 4 Forest Extension officer 1 Chief Wild Life Warden 1 Timber Supply officer 1 Silviculturist 1 2 1 Working Plan officers Officer on Special Duty for Forest Labourers Cooperative Society 1 Officer on Special Duty for Forest Labourers Cooperative Society 1 Assistant to Chief Conservator of Forests 1 PA to the Chief Conservator of Forests 1 __ __ __ Total 62 76 37 __ __ __ 2
Senior posts under the Central Government 5 6 3 __ __ __ 67 82 40 __ __ __ 299 3
Posts to be filled by promotion in accordance with rule 8 of the Indian Forest Service Recruitment Rules 1966 22 27 13 4
Posts to be filled by direct recruitment 45 55 27 __ __ __ 67 82 40 __ __ __ 5
Deputation Reserve 15 of 4 above 7 8 4 6
Leave Reserve 11 of 4 above 5 6 3 7
Junior posts 20 of 4 above 9 11 5 8
Training Reserve 5 of 4 above 2 3 1 __ ___ __ 90 110 53 __ ___ __ Direct Recruitment posts 68 83 40 Promotion posts 22 27 13 __ ___ __ Total Authorised Strength 90 110 53 __ ___ __ b Initial Recruitment Regulations The second set of regulations is the Initial Recruitment Regulations framed in pursuance of rule 41 of the Recruitment Rules
These regulations are somewhat important for our present purposes and they have to be referred to in some detail
These also came into force with effect from Ist July 1966
Regulation 3 provides for the constitution of a Special Selection Board SSB for the purpose of making selections to the service
The SSB consists of a number of officers one of whom is the Chief Conservator of Forests CCF of the State Government concerned
Regulations 4 5 and 6 have to be set out in full 4
Conditions of eligibility 1 Every officer of the State Forest Service who on the date of constitution of the Service a is holding a cadre post substantively or holds a lien on such post or b i holds substantively a post in the State Forest Service 300 ii who has completed not less than eight years of continuous service whether officiating or substantive in that Service and iiiwho has completed not less than three years continuous service in an officiating capacity in a cadre post or in any other post declared equivalent thereto by the State Government concerned shall be eligible for selection to the Service in the senior scale
2 Every officer of the State Forest Service who has completed four years of continuous service on the date of constitution of the Service shall be eligible for selection to the Service in the junior scale
Explanation In computing the period of continuous service for the purpose of sub regulation 1b or sub regulation 2 there shall be included any period during which an officer has undertaken a training in a diploma course in the Forest Research Institute and Colleges DehraDun or b such other training as may be approved by the Central Government in consultation with the Commission in any other institution
Preparation of list of suitable officers 1 The Board shall prepare in the order of preference a list of such officers of State Forest Service who satisfy the conditions specified in regulation 4 and who are adjudged by the Board suitable for appointment to posts in the senior and junior scales of the Service
2 The list prepared in accordance with sub regulation 1 shall then be referred to the Commission for advice by the Central Government along with 301 a the records of all officers of State Forest Service included in the list b the records of all other eligible officers of the State Forest Service who are not adjudged suitable for inclusion in the list together with the reasons as recorded by the Board for their non inclusion in the list and c the observations if any of the Ministry of Home Affairs on the recommendations of the Board
3 on receipt of the list along with the other documents received from the Central Government the Commission shall forward its recommendations to that Government
Appointment to the Service The officers recommended by the Commissioner under sub regulation 3 of regulations shall be appointed to the Service by the Central Government subject to availability of vacancies in the State Cadre concern
c The Appointment by Competitive Examination Regulations We may next refer to the appointment by Competitive Examination Regulations 1968
All that is necessary for our present purposes is that under these regulations a candidate to compete at the examination must inter alia have attained the age of 20 and not attained the age of 24 on the Ist day of July of the year in which the examination is held
There is a provision for relaxation of the upper age limit in respect of persons who are directly recruited to the gazetted cadre of the State Forest Service and put in less than 4 years  service including 2 years  training for Diploma course in the Foreign Research Institute and Colleges Dehradun on the Ist July 1966
But persons who have put in more than 4 years  service in the State Forest Service would not be eligible to appear in these examinations firstly because they would have crossed the maximum age limit and secondly because the provision for relaxation does not enuse in their favour
d Appointment by Promotion Regulations Recruitment by promotion under rule 91 of the Recruitment Rules is governed by the Appointment by Promotions Regulations 1966 which came into force with effect from 171966
A selection committee is constituted under regulation 3 to select candidates whose conditions of eligibility for 302 promotion are defined in regulation 4
Briefly speaking the selection committee is to consider the cases of all substantive members of the State Forest Service who on the first day of January of that year have completed not less than eight years of continuous service whether officiating or substantive in a post not lower in rank than that of Assistant Conservator of Forests
This Committee would then prepare a list of eligible members which after approval by the UPSC would be forwarded to the State Government for making appointment to the cadre posts
INITIAL RECRUITMENT 7
Kraipack case Sometime after these rules and regulations were framed the initial recruitment to the service was taken on hand
SSBs including the CCF made selections of officers to the various cadres
The process brought to light a serious defect in the constitution of the SSBs
It has been mentioned earlier that under the Initial Recruitment Regulations a SSB had been constituted for selection L of officers at the time of the initial constitution of the service and that the Chief Conservator of Forests CCF was one of the officers on the Selection Board
A perusal of the Schedule to the Cadre Strength Regulations would show that the CCF was also one of the cadre posts mentioned in the Schedule
At the time of the initial recruitment therefore it was necessary also to recruit an officer who might eventually fill this post
Thus the CCF was not only on the SSB but was also a prospective candidate for consideration in the initial recruitment
This somewhat anamolous position was considered by the Supreme Court in the case of AK Kraipak vs Union of India AIR 1970 SC 150 in its judgment dated 29th April 1969
The Supreme Court held that the initial recruitment to the State Cadre of Jammu  Kashmir was vitiated by the above circumstance and quashed the same
Though the question arose only with regard to one of the States namely Jammu  Kashmir the position was identical in respect of several States in the Indian Union
Hence all the initial recruitments made to the various State cadres had to be quashed either suo moto by the Government or got quashed by proceedings in a court of law
It may be mentioned here that in the States with which we are concerned here the position was as follows
In Orissa a select list of 41 officers was issued in January 1967 which had to be set aside as a result of the decision in Kraipak
In Uttar Pradesh 85 persons were initially recruited to the service and this initial recruitment was held to be bad on 11121979 in Jagat Narain vs Union CMWP 58 of 1968 following the decision in Kraipak
In Maharashtra a selection was 303 made on 261967 of 57 persons but this selection was set aside by the High Court following Kraipak
LEGISLATIVE INTERVENTION 8a Rule 43A The decision in Kraipak having rendered the initial appointment in all the States invalid the defect had to be cured and fresh selections had to be made by way of initial recruitment
Perhaps a second selection could have been made even under general law by way of implementation of the decision but Government wanted to make sure and therefore it introduced rule 43A in the Recruitment Rules
This provision reads as follows 43A Notwithstanding anything contained in this rule where appointments to the Service in pursuance of the recruitment under sub rule 1 have become invalid by reason of any judgment or order of any court the Central Government may make fresh recruitment under that subrule and may give effect to the appointments to the service in pursuance of such fresh recruitment from the same date on which the appointments which have become invalid as aforesaid had been given effect to
 This rule was introduced with effect from 131971
section 31A It appears that certain doubts had arisen in the meanwhile regarding the power of the Government to make rules with retrospective effect
Since such retrospective effect was necessary for various reasons and particularly for implementing the decision of the Third Central Pay Commission it was considered necessary to make a specific statutory provision clarifying the power of the Central Government to make rules if necessary with retrospective effect
Parliament therefore enacted the All India Service Amendment Act 1975
The statement of objects of the Amendment Act shows that section 3 of the Act was amended so as to empower the Central Government to make rules with retrospective effect subject to the safeguard that no rules shall be made retrospectively so as to prejudicially affect the interests of any person who may be governed by such rules
 The Amendment Act also proposed to validate rules which had been made in the past with retrospective effect
It may the convenient here to set out the new sub section  lA introduced in section 3 of the Act the 1975 Amendment Act
This sub section reads as follows 304  1A The power to make rules conferred by this section shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable
 It is also necessary to refer to section 3 of the Amendment Act which was in the following terms 3
Validation No rule made or purporting to have been made with retrospective effect under section 3 of the Principal Act before the commencement of this Act shall be deemed to be invalid or ever to have been invalid merely on the ground that such rule was made with retrospective effect and accordingly every such rule and any action taken or thing done thereunder shall be as valid and effective as if the provisions of section 3 of he Principal Act as amended by this Act were in force at all material times when such rule was made or action or thing was taken or done
Purvez Qadir s Case Exercising the powers conferred by the amendment of the Act and the rules the Central Government constituted fresh SSBs
to consider the initial recruitment to the various State cadres in place of the one that was quashed in Kraipak
This raised the question of the validity of rule 43A introduced with substantial retrospective effect
The seniority of persons recruited to the service as affected by the provision that recruitments to be made pursuant to the new sub rule would be deemed to have taken effect from Ist October 1966
The validity of the rule was therefore challenged by various concerned officers but this challenge was repelled by the Supreme Court in the case of Parvez Qadir vs Union of India  Ors  11
Chothia Case Another challenge was also posed to the initial recruitment made in certain States under rule 41
It appears that the SSBs had considered not all the officers who were eligible under the initial recruitment rules but only such number of them as was considered necessary to fill up the vacancies that were then available in the State cadre
Thus for example in the State of Maharashtra although there were 116 officers eligible for consideration the State is 305 said to have considered only about 95 of them
The others were not it is alleged considered by the SSB
This procedure was challenged by a number of officers
A contention was raised that rule 41 and the regulation thereunder envisaged a consideration by the S 
Of broadly speaking all the officers belonging to the State Forest Service who had put in 8 years of service or 4 years of service as the case may be for recruitment to the service and that the SSB had to arrange the names of all the officers found to be eligible and adjudged suitable for appointment in the order of preference
Thereafter subject to the availability of vacancies these officers had to be recruited to the service
It was also urged that in respect of each one of the officers not placed in the select list the SSB had to record and forward to the UPSC specific reasons for their non inclusion in the list
It was not sufficient for the SSB generally to say that it had considered the other officers and found them unsuitable as initial recruits
This contention was accepted by the Supreme Court in Union of India vs Chothia 1978 3 SCR 652 12
Present Cases In the present matters we have to consider certain questions arising out of the second in the case of UP the second and third set of selections made by the SSBs in place of the first selection set aside by Kraipak
To avoid confusion we may clarify here that what we are concerned with in all the cases is the INITIAL RECRUITMENT under section 41 of the Recruitment Rules but made for the second or third time the first selection having been set aside by Kraipak
The problem arises this way
It has been mentioned that the first selections by way of initial recruitments to the State cadres were made sometime in 1966 and 1967
The Kraipak decision came in 1969
In the meanwhile in many of the States the first selection had been followed up by subsequent recruitments largely made on the basis of competitive examination under rule 42a of the Recruitment Rules and a few also by promotion under rule 42b
As a result of the second and third selections made by the SSBs a number of officers in the respective SFS have been given appointment in the IFS with effect from 1 101966 under rule 43A and have thus been placed in a position of higher seniority vis a vis the recruits under rule 42 all of whom are for convenience hereinafter referred to as direct recruits 
The direct recruits are dissatisfied with this for obvious reasons
The present batches of cases relate to three State cadres Maharashtra Orissa and Uttar Pradesh
Before dealing with the contentions it may perhaps be convenient to give a brief resume of the position in each of these States
306 14
Uttar Pradesh The nine petitioners in the High Court of whom 8 are appellants before this court are direct recruits of 1968 and 1969 confirmed between 1969 and 1972 after probation
In this State the initial recruitment was made in 1966 67 of 85 officers 58 to posts in the senior time scale and 27 to posts in the junior time scale
Subsequently six persons were promoted under rule 42b and nine persons were recruited under rule 42a of the Recruitment Rules
The initial recruitment having been declared bad a fresh SSB was appointed and on its recommendations 104 persons were appointed to the Service 60 to senior time scale posts and 44 to junior time scale posts
Again in 1976 six more persons were added and thus 110 persons have been taken in as and by way of initial recruitment as against 85 persons taken in the first selection
The direct recruits are aggrieved by these selections
They contend a Under the Maharashtra Schedule to the Cadre Regulations there can be initial recruitment only to 28 junior posts
This has been exceeded by the second and third selections b As on 23121974 the total strength of the cadre rose to 104 plus 15 appointed earlier under rule 42 thus making a total of 119 as against an authorised strength of 110 only c The second and third selections can only be made to validate the initial recruitment of 85 which had been invalidated and cannot be made use of to increase the number of initial recruits d The third selection of six officers is in any event bad as the power under rule 43A could have been exercised only once and e It appears that in the subsequent selections certain officers not adjudged suitable at the first selection have been included
This could have been done only if their confidential report CRs subsequent to or other than those considered at the time of the first selection had been considered
This is not
justified as a recruitment under rule 43A has to be made as if it was being made at the time of the initial recruitment ie 1
101966 and subsequent records cannot be taken into account
Their contentions having been rejected by the High Court they are in appeal
307 15
Maharashtra Turning to Maharashtra the position is as follows The first selection was made on 221967 of 57 officers 36 for the senior time scale posts and 21 for the junior time scale posts
This was set aside
On 1371971 at the second selection 116 officers were found to be eligible but only 66 officers were considered suitable for appointment
39 out of 51 eligible officers were found suitable for senior scale out of whom 35 were appointed immediately and four later
27 were found suitable for junior scale out of whom 23 were appointed initially and four later
All these 66 appointments were made wef 1 10 1966
The writ petitioners before the High Court in
CA No 244374 were persons who had joined the SFS in 1962 and had put in 4 yearsof service as on 1 10 1986 and were thus eligible for consideration to junior scale posts
Their grievance was that the Government had not considered the case of all the officers who were eligible for consideration for junior posts viz those in section Nos 52 to 116 on the eligibility list because the Government which had found 23 officers suitable when they reached section No 96 stopped there and did not consider the names of the others at all as they should have done under Chothia
Initially the writ petition was dismissed on 261979 for the failure to implead all persons affected as parties but this Court by its order dated 24101980 in CA 235980 restored the matter for fresh disposal after adding the affected persons as parties
The High Court eventually allowed the writ petition on 781981 holding that all the 116 officers should be considered and that the omnibus reason given for rejecting some is not sufficient compliance with regulation 52b of the Initial Recruitment Regulations
It directed that now the 116 persons should be considered for the 90 posts available in the State cadre in strict compliance with regulation 5
Some of the respondents comprising persons who had been directly recruited under rule 42 between 1968 and 1970 have preferred the appeals to this Court
While they have in principle no objection to a fresh selection their contention is a that the recruitments to the senior time scale posts should not be redone as there is no controversy regarding the selection of 39 out of 5 1 eligible officers b that the number of selections to junior time scale posts from out of the candidates section Nos 52 to 116 should not exceed 23 and c that the selections should be made on the basis of CRs upto 1 10
1966 without reference to subsequently changes made therein or the CRs for subsequent periods
On behalf of the writ petitioners before the High Court respondents here a preliminary objection has been taken
They point out that the appellants had not raised any protest of this type either at the stage of hearing of the original writ petitions or at the stage of their rehearing when they had been added as parties
Neither was any counter affidavit filed nor was 308 there any appearance on their beahlf
In view of this it is contended that their appeal is not maintainable
It is also submitted that the selections now being made are for an initial recruitment as on 111966 a date at which the appellants had not been born into the service and so they do not have any locus standi to complain against any recruitments as on the said date
Without prejudice to the above preliminary objections they also support the judgment of the High Court on merits
Orissa In the case of Orissa writ petitions have been directly filed in this court
There are eight petitioners who had joined the Orissa State Forest Service as on 141962
After two years  training they were appointed as Assistant Conservators of Forests on 141964
By 141966 they had completed 4 years  continuous service in the State Cadre
They were therefore eligible for selection to junior scale posts in the IFS
Two selections were made by way of initial recruitment once in January 1967 when 4 1 officers were selected and then in 1972 when 42 out of 82 eligible officers were selected
The petitioners were not adjudged suitable at either of these selections but they were eventually taken into the IFS under Rule 42b between 1975 and 1977
The petitioners  contention is that their names were not considered at all either at the first selection or at the second selection under an impression that the number of posts in the junior time scale were limited
It is said that the selections were made by considering eligible officers in the order of seniority only to an extent necessary to recruit 41 or 42 persons and the Government did not consider all the 82 eligible officers and select 42 out of them arranged in the order of preference
This it is argued vitiates the selection as held in Chothia
In the counter affidavit these allegations are vehemently denied
It is claimed that the petitioners were all considered at the time of drawing up the earlier select lists
The respondents are a the persons selected and appointed in 1972 who are still in service and b persons who have come in between 1966 and 1975 by way of recruitment under rule 42a
They plead that the writ petition should be dismissed on grounds of laches as the petitioners raised no such protest or objection at any earlier stage and have come to court after a lapse of twelve years
They also deny the allegations in the writ petitions and contend that the petitioners had all been duly considered at the earlier selections but had not been adjudged suitable for recruitment to the service
These in brief are the problems raised in these cases and we may now proceed to deal with them one after the other
309 CAN NUMBER EXCEED INITIAL SELECTIONS 18
The first contention urged on behalf of the direct recruits is that rule 43A authorises the Government to fill in only the number of posts the appointment to which had been declared void by the Court and no more
Thus in UP the initial recruitment which had to be quashed because of Kraipak was of 85 persons
Taking advantage of this situation the Government purported to recruit 104 persons on 23121974 and six more in 1976 thus completing the total strength of 110 as against 85 first filled up
Likewise in Maharashtra the first selection was of 57 persons which was expanded to 66 in 1971
ln Orissa the first selection was of 41 persons but the second selection resulted in the recruitment of 42 persons
T his addition to the number of officers first recruited in the subsequent selections is challenged by the direct recruits principally because the subsequent selections which are deemed to be a remaking of the initial recruitment have been given retrospective effect from 1 101966 and thus these persons rank higher in seniority to the direct recruits who have come in from 1967 onwards
We are unable to accept this contention
The initial recruitment regulations clearly envisage that the SSB should consider the cases of all the officers in the SFS who fulfill the conditions of eligibility and judge their suitability for appointment to posts in the service and prepare a list of such officers in the order of preference
This selection was initially done by a Board the constitution of which was found to be vitiated
The logical consequence of this would be that the process has to be redone by a competent and validly appointed SSB from out of the eligible officers
It is not anybody s case that in the second or third selections the Board has considered persons other than those in the SFS who were eligible as on 1101966
In other words the range of selection was the same as was considered or should have been considered by the initial SSB It is also not anybody s case that the Board has considered the records of any of these officers subsequent to 1101966
It however appears that there had been some changes subsequent to 1
101966 in the CRs of some of the officers pertaining to the period upto 1
101966 consequent on representations made for expunction or modification of adverse remarks
Sri Kackar suggested that such revised CRs should not have been taken with account but we are unable to agree
We do not think that anyone can validly object to this course since the case of an officer who has succeeded in having an adverse remark against him struck off or modified is exactly on the same footing as if such adverse remarks had 310 not been there at all or had been there in the modified form right from the beginning
What has happened therefore is only that from the same set of officers as had been considered by the initial SSB the subsequent Boards have adjudged more officers as suitable for recruitment partly due to inherent differences of approach between one Board and another in the process of adjudication and partly due to the fact that the records of some of the officers for the relevant period had undergone changes which had to be taken into account
One further reason for the increase in the number of officers adjudged suitable which we shall discuss in some detail later is that the initial SSB considered only some out of all the eligible officers and did not extend their scrutiny to all the eligible officers as they should have done as per the decision in Chotia to sum up the decision in Kraipak necessitated a complete review of the first selection
On no logical basis can the subsequent Selection Boards be compelled to restrict their adjudication of suitability to the same list number of persons as the first Board had selected so long as the same list of eligible officers and their records as on 1
101966 were considered
We see therefore no t merit in the first contention urged on behalf of the direct recruits
STRENGTH  COMPOSITION OF THE CADRE 20
The second contention urged on behalf of the direct recruits is more substantial and is perhaps the vital contention on which their case rests
It is pointed out that the Cadre Strength Regulations not merely prescribe the strength of the various cadres but also their composition
One of the principal features of the composition as per the schedules is that the authorised strength prescribed is to consist of a certain number of senior posts and a certain number of junior posts
According to the direct recruits the schedules prescribe the minimum number of senior posts and the maximum number of junior posts
It is pointed out a that all the posts enumerated against items nos
1 and 2 in each of the schedules are specifically described as senior posts b that items nos
3 and 4 set out in each of the schedules pertain to recruitments subsequent to the initial recruitment under rule 42 of the Recruitment Rules and that these items have to be left out of account in considering the initial recruitment under rule 41c that all the posts enumerated against item No 7 are described as junior posts and d that the posts mentioned against items nos
S 6 and 8 depend upon item No 4 and so partake of the same character
Even assuming that all the posts against item nos
5 to 8 are only junior posts the total number of junior posts cannot exceed 13 28 and 23 respectively in the case of Orissa Uttar Pradesh and Maharashtra
On 311 this premise it is contended that the appointments purportedly made by way of initial recruitment in the subsequent selections have exceeded the quotas prescribed by the schedules in regard to senior and junior posts
Thus in UP while the first recruitment of 58 officers to the senior scale and 27 to the junior scale was in order the second recruitment of 44 persons to junior scale posts was not warranted
Likewise in Maharashtra while the Government restricted itself in the first selection to the appointment of 23 persons to the junior scale the High Court has now directed the filling up of all the 90 posts in the cadre by considering the 116 eligible officers overlooking that the maximum number of officers found eligible for consideration to senior scale posts is only 51 and that out of the balance of 65 persons only 23 can be appointed to junior scale posts
The petitioners submit that while they do not wish to attack the validity of the appointment of officers in excess of the respective quotas it is necessary at least to ensure that the officers so appointed do not steal a march over those who have been rightly recruited in terms of rule 42 after the first recruitment in terms of rule 41 had been completed
The Government and the initial recruits seek to meet the above contention in two ways
They contend firstly that the assumption of the direct recruits that the prescription of strength of the service in the schedule will apply to the initial recruitment is wrong and that even if this were correct the further assumption that the schedule separately prescribes limitations on the number of junior and senior posts is wrong
Secondly they submit that even if both the above assumptions are granted the argument overlooks that the rules confer power on the Central Government to alter the strength and composition of the cadres at any time and that therefore any appointments even if made in excees should be treated as an automatic expansion of the cadre strength and would not be irregular or invalid
We may take up the second argument first
If it were correct
it would be a complete answer to the contentions of the direct recruits
The argument is that it is for the Central Government to fix the strength and composition of the cadres and that this power can be exercised by it at any time
The first proviso to rule 42 of the cadre rules it is said places this beyond all doubt
As against this it is contended by the direct recruits that the proviso relied upon is only a proviso to rule 42 and does not extend to rule 41
it is urged that it has application only to the power of the Central Government to make alterations to the cadre strength in between the three year review contemplated by rule 42
Shri Kackar in this context referred us to 312 the following observations in Royappa vs State of Tamil Nadu 19741 2 SCR 348 at p 379 We now turn to the first ground of challenged which alleges contravention of the second proviso to r 42 of the Indian Administrative Service Cadre Rules 1954 and r 9 sub s1 of the Indian Administrative Service Pay Rules 1954
So far as the second proviso to r 42 of the Indian Administrative Service Cadre Rules 1954 is concerned we do not think it has any application
That proviso merely confers limited authority on the State Government to make temporary addition to the cadre for a period not exceeding the limit therein specified
The strength and composition of the cadre can be determined only by the Central Government under r 4 l and the Central Government alone can review it trienially or at any other intermediate time under r 42
We do not think that such a narrow interpretation of the proviso is warranted
As we see it the proviso only outlines the general principle that whoever has the power to do a particular thing has also the power to exercise it from time to time if need be vide section 14 of the 
It had to be specifically put in because of the language of the main part of sub rule 2 providing for a triennial review lest it should be construed as a restriction on the general power otherwise available
We therefore agree with the contention of the initial recruits that the Central Government has the power to alter the strength and composition of the cadres at any time
We are however still of the view that the contention urged on behalf of the initial recruits cannot be accepted for a different reason
If the terms of the relevant rules are scrutinised it will be seen that the strength and composition of the cadre has to be determined by regulations and that these regulations have to be made by the Central Government in consultation with the State Government
It is a well settled principle that if a statutory power has to be exercised in a particular manner any exercise of that power has to comply with that procedure
t follows therefore that if the initial composition can be only drawn up in consultation with the State Government and by regulations it will not be permissible for the Central Government to modify or alter the same save in the same manner
In fact also it has been brought to our notice there have been subsequent increases in the authorised strength of almost all State Cadres and this has been effected by an appropriate amendment to the Regulations
It is not the 313 case of the Government that before the second and third selections were made either the State Government was consulted or the regulations were amended for increasing the strength
Nor is it even their case that there was any specific order by the Central Government changing the strength and composition of any cadre
We are therefore of opinion that it is not possible to accpet the contention of the initial recruits that the mere appointment of an excess number of officers should be treated as an automatic expansion of the cadre strength and composition in exercise of the power available under rule 4 1
On behalf of the Government and the initial recruits it was contended that the Regulations in this respect cannot be considered to be mandatory particularly as they do not outline the consequences that will follow on a violation of their requirements
Reference was made in this context to the decision of this court in Lila Gupta vs Lakshmi Narain  at p 932 Atlas Cycle Industries Ltd vs State of Haryana  at p 1076 and 1084 5 and GS Lamba vs Union of India at p 1032
We do not think the observations cited are in point
The nature and context of the provisions considered in the cited decisions were totally different
In Lila Gupta the court was concerned with the question whether a marriage contracted in violation of the proviso to section 15 of the Hindu Marriage Act should be considered void and the Atlas case the question was whether the non lying of a notification before the Legislature rendered it null and ineffective and in the Lamba case the court in the context of certain facts came to the conclusion that the exercise of a power of relaxation should not be treated as vitiated merely because reasons were not recorded
Here we are concerned with a set of Regulations whose whole purpose is to fix the cadre strength
It is also a provision in regard to an All India Services in regard to the constitution of which both the Central Government and State Governments have a say
It is difficult to accept in this context the submission that the cadre strength could be varied without amending the Regulations and schedule of without consulting the State Government concerned
The former course would leave the strength of the cadre easily alterable fluctuating and indeterminable and thus nullify the entire purpose of the Cadre Strength Regulation
So far as the latter is concerned this Court held in Kapur vs Union of India that it is not open to a State Government to overutilise the deputation reserve in all All India Service without consulting the Central Government
Equally we think it is not open to the Central Government to alter the strength and composition of the Cadre without con 314 sulting the State Government concerned
The second argument of the initial recruits is therefore rejected
We may now turn to the first argument which again consists of two parts
The first is that the restriction on number of officers in the schedule does not apply to the initial recruitment at all
It is argued that the idea and intention of the Initial Recruitment regulations is that all officers of the SFS found eligible for appointment either in the senior time scale or in the junior time scale and adjudged suitable for such appointment to the service by the SSB and UPSC will automatically stand recruited to the service irrespective of the number of such of 
Thus it is argued that even if in any particular State the number of such officers exceeds the total authorised strength of that State Cadre as per the Schedule to the Cadre Regulations there can be no bar to their initial recruitment to the service
In support of this contention it is pointed out that items nos
3 and 4 mentioned in the schedule viz posts to be filled by direct recruitment are references to recruitments under rule 42 of the Recruitment Rules
It is then said that item No S and 8 which are expressed as a percentage of item No 4 can also be considered only as a reference to such subsequent recruitment
It follows it is argued that the total authorised strength which is the aggregate of item nos
3 to 8 can pertain only to the strength of recruitments under rule 42 and not to the initial recruitment
Plausible as this argument appears we are unable to accept this contention
The Cadre Regulations read with the Cadre Rules leave no doubt that the strength and composition referred to or prescribed therein is of the entire cadre of the service in the State concerned and is not restricted to the recruitments made after the initial recruitment
The total authorised strength referred to is the total number of officers who at any point of time can man the posts in the cadre
It could not have been the intention that the cadre should consist of an indefinite number of persons recruited by the SSB from the SFS supplemented by the number of officers referred to as the total authorised strength
This conclusion is reinforced by three important considerations
The first as rightly pointed out by Sri Kackar is that if the intention were that the Schedule was to operate only in respect of recruitments under rule 42 it would have been specifically so mentioned
Not only has this not been done the regulations have been made retrospective with effect from the date of commencement of the Service which would be totally without purpose on the argument addressed by the initial recruits
Such a situation cannot be accepted
The second is that the number of officers referred to against item nos
3 and 4 is the same as the numbers indicated against 1 and 2 which represents posts already in 315 the State cadre and in Central Government and which have to be filled in by way of initial recruitment
Thus for example if in Maharashtra 67 officers in the SFS are found eligible and are recruited to the service against the various cadre posts and if subsequently 67 officers are recruited against item nos
3  4 the total authorised strength will rise to 134
The fact that the total of items 1 and 2 is the same as the total of items 3 and 4 indicates beyond doubt that apart from officers recruited against items 5 to 8 the cadre at any point can only consist of the number prescribed as the authorised strength and not virtually twice that number
The more harmonious way of reading the entries in the schedule in that the maximum strength of the cadre at any point can only be the total authorised strength which will comprise of the senior posts mentioned against items nos
1 and 2 and the adjuncts specified against items nos
5 to 8
Items 3 and 4 are indicated in the schedule only to show that after the initial recruitments are over and recruitments are to be made to senior posts in the cadre under rule 42 the number of promotes should not exceed 3313 of the senior posts in the cadre which is the requirement of rule 9 of the Recruitment Rules
The break up and composition of the cadre referred to against items nos
3 and 4 will only be relevant at the stage when all the initial recruits having retired or ceased to be in service the cadre comprises exclusively of persons recruited under rule 42
The third consideration which reinforces our conclusion is the significant mandate that the initial recruitment under rule 41 shall be subject to the availability of vacancies in the State Cadre concerned
If the number of initial recruits can be indefinite and limitless as urged this expression would be meaningless
The apprehension that the interpretation placed by us would create difficulties where the number of eligible officers of the SFS adjudged suitable exceeds the total strength is really without foundation
In the first place a good deal of discussion preceded the framing of the rules and regulations and one can reasonably assume that the cadre strength has been fixed for each State with a fair idea about the number of SFS officers who may be eligible and are likely to come into the cadrs at the time of initial recruitment
The actual experience in the three States before us also shows that the contingency of such officers exceeding the total authorised strength is quite remote
Secondly even if in any case there should be an excess of such officers no insurmountable problems will be created
The Central Government in consultation with the State Government which would only be too anxious to place its eligible officers in the All India Service can increase the authorised total strength to accommodate them
Even otherwise the surplus officers will be kept in the waiting list and will get into the service as and when vacancies available due to retirement 316 or other vacation of office by the initial recruits arise or as and when the cadre strength is augmented
All that is necessary is that they should all be accommodated before recruitment under rule 42 is undertaken
There is therefore no difficulty in holding that the total authorised strength of the cadre is to be counted by including the initial recruits and that all eligible officers adjudged suitable cannot be recruited to the Service in excess of the total authorised strength
The truly critical and really difficult question that needs consideration in these appeals is not that appointments by way of initial recruitment were made in excess of the total authorised strength but that the Government has failed to keep in mind the restrictions placed on the number of senior and junior posts in each cadre while making appointments
The point made is that in each State cadre the posts indicated against items nos
I and 2 are senior posts
These say the petitioners can be filled up subject to the availability by officers found eligible under regulation 41
Items nos
3 and 4 do not at all figure at the time of initial recruitment
So far as items 5 to 8 are concerned it is submitted items 7 and 8 are clearly junior posts and though there is no indication whether items nos
5 and 6 are to be junior or senior posts the total number of junior posts in the cadre cannot exceed the total number mentioned against items nos
5 to 8
The grievance of the petitioners is that more recruitments have been made against junior posts than is permissible under the respective schedule
The above contention arises in the following way
In UP as has been pointed out earlier the first recruitment of 58 and 27 fell within the prescribed strength
But in the second selection 44 junior posts and again six more officers in a third selection were taken in
This it is said was not justified as the maximum number of junior posts in the cadre was only 28
While it is suggested that strictly speaking the appointment of surplus officers is invalid the petitioners say that they do not want those appointments declared invalid but only pray that they should not be treated as initial recruits and hence should be placed in seniority below the direct recruits
In Maharashtra the setting aside of the initial recruitment is not and cannot be complained against in view of the earlier decision of this Court
The only grievance here is that the High Court while ordering a redo of the initial recruitment by a second selection has directed that the 116 eligible persons should be considered for 90 posts without specifying that officers eligible for senior scale will have to be considered for 67 senior posts and a maximum of only 23 officers could be taken for junior posts
In 317 Orissa 41 officers were recruited in 1967 and 42 in 1972 by way of initial recruitment
It is not known whether the number of officers appointed to junior posts has been restricted to 13 the total of items nos
5 to 8 in the Schedule or not but there is no allegation that this number has been exceeded and so this question does not arise
The answer of the initial recruits to this contention is that it proceeds on a complete misapprehension of the nature of the all India Service and the composition of the cadre
They say that the rules contemplate two stages
The first is a recruitment of an officer to the All India Service whether under rule 41 or 42 in accordance with the regulations and subject to the total strength authorised thereunder
This is done by the Central Government and it is with this that we are concerned here
The second is the appointment of a person recruited to the Service to a particular post in the cadre
This has to be done by the State concerned under rule 7 of the Cadre Rules
At the first stage the post which the person may eventually accept in the service is totally irrelevant
Once a person is recruited whatever may be the post to which he may be assigned he will be an IFS Officer belonging to the cadre
To give an easily understood analogy a person who succeeds in the written and viva voce tests held for recruitment to the Indian Administrative Service becomes a member of the Service once he is recruited having been selected and having come within the scope of the available posts in the service
Thereafter whether he is to be appointed as a Collector or as an officer in the Secretariat or is to occupy one of the innumerable cadre posts allotted to the service and whether he should be given a junior post or senior post will be a concern of the State concerned and will have no bearing on the validity of his initial recruitment to the service
The initial recruits also object to the attempt of the direct recruits to equate senior and junior posts with senior time scale and junior time scale posts mentioned in the Initial Recruitment Regulations
They say that a senior officer can occupy a junior scale post if exigencies of the service so require
This will not cause any prejudice to the officer because he will be carrying his own time scale of pay on any post
So also a very junior officer can be appointed to a senior post for the Pay Rules envisage an officer just recruited to the service being appointed simultaneously to a post on the senior time scale
Attention is also invited to the definition in the Seniority Rules which defines certain posts as senior in the light of the status of the officer occupying the same
It is urged therefore that though the Cadre Regulations describe some posts as senior and some as junior this is 318 only a description of the nature of the posts on the cadre and has no bearing on the nature of the initial recruitment
Hence it is said a reference to the junior and senior posts should not be confounded with the right of an appointee to be placed on a junior or senior time scale post as the case may
We have given careful thought to the various aspects of the issue and it seems to us that the initial recruits are right in contending that the Cadre Regulations do not lay down any water tight classification of junior and senior posts in the manner contended for by the direct recruits
It is true that the Cadre Regulations make a reference to senior and junior posts but this is not intended to be an essential element in the composition of the cadre
For one thing the Cadre Regulations do not indicate in respect of a number of posts whether they are to be considered as junior or senior
This would not have been the position if this classification was intended to be a vital feature of the composition
Secondly the Cadre Regulations contain no definition of the words senior  and junior  posts
There is a definition only in the seniority rules but even that definition declares a post indicated in item No 2 of the schedule as a senior post to be a senior post only when the current incumbent therein at any point of time is an officer on the senior time scale of pay
Nor can we conclude that the posts are divided into senior time scale and junior time scale posts the former of which can be describe as senior and the latter as junior posts
This is because the Pay Rules show that if regard be had to pay scales some of the posts are on scale of pay higher than either of the scales indicated in rule 3 thereof
Again the rules envisage that a officers recruited under rule 41 should be placed on either of the scales depending broadly speaking on the length of their service b direct recruits through competitive examination should be taken on the junior scale and c that recruits through promotion should be placed on the senior scale
In other words it cannot be postulated that entrants to the service will first enter on a junior scale post and work his way upward
Though rule 6A of the Recruitment Rules permits an appointment of an officer on a junior time scale post to a post on the senior time scale only if having regard to his length of service experience and performance in the junior scale of pay the State Government is satisfied that he is suitable for appointment to a post in the senior time scale of pay rule 4 of the Pay Rules envisages an officer recruited under rule 41 of the Recruitment Rules being simultaneously appointed to a post on the senior time scale
This rule indeed takes away the basis of the arguments on behalf of the direct recruits for it will be open to the State Government to appoint even officers recruited on junior time 319 scale to posts on the senior time scale
Equally there appears to be no specific bar to an officer recruited to the senior time scale being appointed to a post described as a junior post in the Schedule to the Cadre Regulations as such an officer will carry his time scale with him although normally such an appointment is not likely to be made
All these rules therefore show that an officer being in the junior or senior time scale or a on a junior post or senior post depend upon various eventualities and it is not possible to pin down any posts as senior or junior or any officer as on one of the two time scales
We are therefore inclined to agree with the initial recruits that the reference to junior and senior posts in the cadre should not be considered to be so a rigid or integral part of the cadre composition as to affect the validity of appointments made in excess of a particular number
However we would like to say that in the view we take of the regulations as discussed below it is unnecessary to express any concluded opinion on the above issue
One thing that is plain on the terms of the regulations is this that once a person is found to be eligible and is adjudged suitable for recruitment under the Initial Recruitment Regulations he has to be taken into the service as part of the initial recruitment either immediately on 1 10
1966 or as and when vacancies arise in the cadre
When the number of officers found eligible for each category is less than the number of available posts in the corresponding category there is no difficulty
But where the number of suitable candidates to either category or in both categories exceeds the number of posts difficulties arise on the stand taken by the direct recruits
In this context we can conceive of four types of situations
To illustrate with reference to a concrete example we may consider a State where on the basis urged by the direct recruits there are 45 senior and 20 junior posts in the cadre
Let us suppose that the SSB s selections reveal one of the following alternative states of affairs i that 25 persons in the SFS are suitable for senior posts and 15 persons for junior posts ii that 25 persons in the SFS are suitable for senior posts and 40 persons for junior posts G iiithat 50 persons in the SFS are suitable for senior posts and 15 for junior posts and iv that 75 persons in the SFS are found suitable for senior post and 40 for junior posts
320 Situation i will create no difficulty
The initial recruitment will be inadequate to fill up the cadre and the remaining posts will have to be filled in by recruits under rule 42
In situation iii also there will be no difficulty if it can be agreed that persons found eligible for senior posts can be given junior posts for the time being
But if this is not conceded five of the officers found suitable for senior posts will be left out even though five of the junior posts are vacant and will have to wait until enough senior posts fall vacant and then compete for them alongwith others who may have become eligible therefor by then
In situation ii above though there are 40 persons found suitable for junior posts twenty of them will have to be left out even though there are 20 senior posts remaining vacant
And in situation iv above 30 
Officers adjudged suitable for senior posts and 20 for junior posts will he left out
The situations thus result a either in vacancies being unfilled though there are available officers adjudged suitable b or in officers adjudged suitable being left out altogether
The first of these positions is contrary to the spirit of the Recruitment
Rules that no cadre posts should remain vacant for long spells particularly when cadre officers are available to occupy them
It is necessary to remember in this context that if the vacancies are in senior posts they can be filed up only by SFS officers with X years  continuous service and ex hypothesi such officers will not be available for at least four more years and if the vacancies are of junior posts they can be filled in only after a competitive examination is held and this will take time
The second of the positions will leave the officers selected for the service and having more than 4 years of experience in the SFS in a very uneviable position
They cannot be appointed according to the petitioners because there are no vacancies of posts for which there have been found suitable
They cannot seek recruitment under rule 42a as regulation 43 of the Appointment by Competitive Examination Regulations prescribes an upper age limit of 24 years which they would have crossed already and permits relaxation of that age limit only to persons directly recruited to the SFS officers who had put in less than four years  service including their training period
They cannot also hope for recruitment under rule 42b until they put in eight years  of service
The result will be that these persons will be in the dilemma of looking on and seeing younger people and people with shorter service being recruited under rule 42
Surely that could not have been the intention of these rules and regulations
Such an interpretation also amounts to an arbitrary and discriminatory treatment of a group of officers incompatible with the spirit of article 14 of the competition
We cannot therefore accept the contention that officers of the SFS who have been adjudged suitable by the SSB should 321 not be taken into the service merely because their number exceeds the number of posts available
True they cannot be appointed immediately but the consequence cannot be that they should be ignored and persons recruited under rule 42 given preference over them
The correct solution in our opinion on a proper construction of the rules is this
Even accepting the position for the sake of argument that the number specified for each category of posts in the Cadre Regulations limits as contended for by the petitioners the number of persons who could have been taken into the service in those posts in the first instance the others are also entitled to be absorbed into the service as and when vacancies occur by reason of Rule 6 of the initial Recruitment Regulations
The filing up of such vacancies will also be part of the initial recruitment contemplated under rule 41 and no recruitment under rule 42 can start before the above process is complete
It is only rational to interpret the rules as laying down that all those officers of the SFS with 8 or 4 years  experience as the case may be who are adjudged suitable for the service should be recruited to the service before any recruitment can at all start under rule 42
Whether all such persons are entitled to the back dating of their appointment to 1
10 1966 or not they are certainly entitled to contend that their appointment should be given precedence over the appointments of recruits under rule 42 of the Recruitment Rules
That being so if there are vacancies against which recruitments could have been made under rule 42 they should have first gone to these left overs among the eligibles
In this view of the matter the plea of the petitioners that they will get precedence over these surplus officers among the eligible cannot at all be accepted
CAN THERE BE RECRUITMENT MORE THAN ONCE 33
The next contention urged by Shri Kackar was that a fresh selection by way of initial recruitment can take place only once and cannot be repeated twice as has been done in the State of Maharashtra
He cited in this connection a decision of the Punjab  Haryana High Court in Union of India vs Harnek Singh LPA 40683 decided on 20983 affirming the decision of the Single Judge in WP 545 75
We think that this argument proceeds on a misapprehension
To recapitulate the facts relating to this cadre there were 116 officers who were eligible for consideration by the Selection Board
The first selection was of 57 persons 36 to senior scale posts and 21 for Junior scale posts
This was set aside because of Kraipak
This necessitated a reconsideration of the cases of the 116 eligible officers by a different 322 SSB of suffering from the defect that vitiated the earlier one
This SSB appears to have committed the mistake of considering only 97 persons out of 116
This was not correct as it was the duty of the Selection Board under Chotia to consider all the 116 officers arrange those adjudged suitable in their order of preference and give reasons for not including in the list the names of those not adjudged suitable
This has therefore necessitated the second selection which the High Court has directed
Apart from the fact that such a fresh selection has to follow as a necessary consequence of the setting aside of the earlier selection by the court it is also specifically warranted by the terms of rule 43A which authorises such fresh recruitment under sub rule  1 where appointments to the service in pursuance of sub rule 1 have become invalid by reason of any judgment or order of any court
 It is not limited to a fresh recruitment becoming necessary on account of Kraipak
The position in this regard in UP is slightly different
Here 5 persons were recruited initially but this became bad due to Kraipak
Subsequently 104 persons were recruited
We have already held that this recruitment cannot be challenged either because it is of a number larger than the initial 85 or because it selects 44 officers eligible only for the junior time scales
Sri Kackar however contends that there was no justification to recruit six more persons in 1976
Here again though ostensibly there have been two selections there has been in substance only one selection in place of the one set aside by reason of Kraipak
It is not in dispute that the Selection Board has considered only such of the officers as were eligible on 1 10
It is also common ground that the selection has been made only on the basis of the C Rs pertaining to that period
We have already pointed out that it is only right that persons should be adjudged on the basis of the correct CRs
pertaining to them
Any expunction or modification in the CR of a period naturally relate back to that period and no legitimate objection can be taken if the correct CRs are taken into account
In our view therefore there was nothing wrong in the selections made by the Selection Board
Though made in two stages the Board was only considering and selecting suitable officers out of those eligible for consideration on 1 10 1966 on the strength of their CRs uptil then and this has to be taken only as the initial recruitment done in two stages but really one
RETROSPECTlVE EFFECT OF RULE 43A 35
Sri Kackar took considerable pains to urge that the persons 323 selected in 1972 and later cannot claim seniority over the petitioners recruited earlier under rule 42
The argument was that even if this be treated as authorised by rule 43A the retrospective effect to this rule has to be limited by reference to section 3lA of the Act
He contends relying on the decision in Inderjit Singh vs Union of India that the Act has been framed in exercise of the powers conferred by Article 312 of the Constitution and that unlike rules framed under Article 309 of the Constitution the rules framed under the Act cannot have greater retrospective effect than is authorised by the Act itself
He therefore urges that rule 43A should not be as interpreted as to prejudicially affect the interests of the petitioners who by reason of their earlier appointments under rule 42 have earned a higher seniority than the respondents who are subsequent recruits under rule 41
We do not think it is necessary to go into all these questions
Granting all the premises of Sri Kackar we think that rule 43A does not offend any of them
The rule only places the fresh recruits in the same position as if they had been recruited in the first instance ie On 1101966 as indeed they should have been and thus involves no retrospective effect beyond the date of commencement of the Act
It is also not correct to suggest that it prejudicially affects the direct recruits in any way
The fresh selectees of 1974 were all in the SFS on 1 101966 at a time when the petitioners were nowhere in the picture
As we have pointed out earlier the petitioners acquire under the rules no right to be in the service until after the initial recruitment is over
The mere fact that due to certain fortuitous circumstances that initial recruitment has had to be set aside and time has been consumed in the process of remaking that selection validly and properly cannot in our view confer a right on the recruits under section 42 so as to justify their complaint that some benefits given to them have been taken away
Under the rules they can rank only after the candidates who get in by way of initial recruitment
In that position there is no change and the petitioners cannot be aggrieved that those in service in the SFS are found suitable for recruitment to the service and taken into the service wef 1 101966
As we have observed earlier those persons even if not entitled to appointment as on 1101966 are entitled to be appointed as and when vacancies arise and must always be given a position of precedence over the recruits under rule 42
In this view of the matter the direct recruits can hardly claim that they are prejudicially affected by the remaking of the initial recruitment
We therefore do not see any force in Sri Kakker s contention
THE POSITION IN ORISSA 36
So far as orissa is concerned the position is very simple
It 324 clearly emerges from our discussion above that all the 82 eligible officers had to be considered for initial recruitment
Though it has been alleged in the counter affidavit that they had been so considered the Government note referred to by counsel dated 261967 at p 47 of the paper book indicates to the contrary
The SSB merely selected 42 officers and made an omnibus observation that the others were found unsuitable
This as explained in Chothia is not proper compliance with the rules and so the selection has to be aside with a direction that it should be redone properly
It has been vehmently contended for the respondents that the writ petition should be dismissed on the ground of laches
It is true that the petitioners have come to court somewhat belatedly
Counsel urged that they had been under a bona fide impression that they had been considered and found ineligible
But this does not appear to be correct
T here is on record at p 44 of the paper book a representation made by one of them on 20467 from which it seems that he was even then aware that his name had not been considered at all because of an interpretation that the junior posts were limited to 19 only
Nevertheless they did not take any steps
The Gujarat Karnataka and Maharashtra judgments on which the petitioners rely had been rendered in 1978 Jan 1981 and August 1981 respectively but even after that the petitioners allowed time to lapse
There has therefore been delay on the part of the petitioners in coming to Court
Nevertheless having regard to the complicated nature of the issues involved we do not think that the petitioners should be put out of court on the ground of laches
The position as it has now emerged is that all 82 eligible officers as on 1 10
1966 should be considered and not merely some of them
Their suitability should be adjudged
If they are not found suitable reasons should be given which the UPSC should be able to consider
If they are found suitable a list of such officers should be drawn up with ranking given to them in the order of preference for the consideration of the UPSC
Since this has not been done the recruitments have to be set aside and the matter remanded with directions that it should be finalised as per the Recruitment Rules and in the light of the above discussion
OTHER CONDITlONS 38
Before concluding we may touch upon certain other contentions which were urged before us i Shri Kackar for instance made a reference to rules 3 and 4 325 of the All India Services Conditions of Service Residuary Matters Rules 1960 the Government of India s decisions thereunder and the decisions of this Court in Shri Amrik Singh and others vs Union of India and others 1980 2 S L 
R 1 10 and R R Verma and Ors
The Union of India  Ors interpreting the same
These rules confer powers on the Central Government to relax or dispense with the requirements of any rule in case they cause undue hardship in any particular case and also to decide questions arising as to the application or interpretation of certain rules applicable to All India Services
Apart from the fact that no relaxation dispensation or interpretation has been made by the Government we see no occasion at all to involve these provisions and we need not go with the question of their interpretation
ii Shri Kackar also made a reference to rule 33 of the Pay Rules inserted in 1980 to highlight the fact that since promotions in the service are under this rule based on merit with due regard to seniority the interests of the direct recruits is vitally affected by the fall in their seniority resulting from the induction of initial recruits by a second or third or even further selection
We have already pointed out that this argument proceeds on a misconception
The direct recruits cannot have any grievance against the remaking of the initial selection because they cannot deny to the eligible officers on the SFS their legitimate dues
No doubt they can complain against the fall in their seniority if these subsequent selections are invalid but if as we have explained above they are the logical consequence of Kraipak and have been validly made they can have no grievance
In the latter event it is actually the persons who ought to have been included in the first selection but were not due to no fault of theirs who have room for legitimate complaint that recruits under section 42 have been allowed to forestall them
iii Sri Kakkar submitted that the view we have taken that recruitment under rule 42 cannot be restored to until initial the recruitment under rule 41 is complete runs contrary to the following Observations of this Court in Parvez Qadir  at p 443
If the interpretation urged by the petitioner s learned Advocate to be accepted then the initial recruitment not having taken place till after the Kraipak s case was decided any subsequent recruitment to the Service under sub rule 2 of rule 4 cannot take place
Such cannot in our view be 326 the purpose of the rules and regulations nor was it so in tended 
 We do not agree The above observations were made in the context of answering an argument that
the officers for initial recruitment have to be considered not as on 1
101966 but as on the date of the second third or subsequent selection that may have to be made consequent on Kraipak
The court pointed out that to uphold such a contention would virtually render the rules and regulations meaningless as then one unsuccessful aspirant after another could hold up the selections by way of initial recruitment indefinitely and thus deprive others of benefits they could have otherwise obtained
This Court did not and did not intend to observe inspite of the language of rule 42 that recruitment under that rule could be made even before recruitment under rule 41 are complete
iv Shri Singhvi in supporting his plea that the appeal in the Maharashtra cases is not maintainable relied on the following observations of the Court in HarjeetSingh vs Union  On the other hand we think that the Fixation of Cadre Strength Regulations made under Rule 4 of the Cadre Rules do not over ride the Recruitment Rule the remaining Cadre Rules and the Seniority Rules so as to render invalid any service rendered by a non cadre officer in a Cadre post on the mere ground of breach of the Fixation of Cadre Strength Regulations when there has been strict compliance with Rule 9 of the Cadre Rules
We think that fixation of Cadre Strength is the exclusive concern of the Central and the State Governments and the Regulations are made for their convenience and better relationship
Excessive utilisation of Deputation or Central Reserve  is a matter for adjustment and controversy between the Central and the State Governments and is of no concern to any member of the Service
For example no can cadre officer who is asked to fill a deputation post can refuse to join the post on the ground that the Deputation Reserve  has already been exceeded
The Regulations are not intended to and do not confer any right on any member of the Service unlike some other Rules which do confer or create rights in the members of the Services
Among other Rules for instance Rule 92 of the Recruitment Rules stipulates that the total number of persons recruited by promotion shall not at 327 any time exceed 25 of the posts shown against item Nos 1 and 2 of the cadre in the schedule to the fixation of Cadre Strength Regulations
Now if at a point of time this limit is exceeded direct recruits may have a just cause for complaint and it may perhaps be held that to the extent of the excess the appointments by promotion are invalid and confer no rights of seniority over direct recruits
But as we said the Fixation of Strength Regulations confer no rights on members of the Service and a mere breach of the Regulations furnishes no cause of action to any member of the service on the ground that his seniority is affected in some round about way
We may add that there is no suggestion that Rule 92 of the Recruitment Rules was contravened
 He urged on the strength of these observations that the Cadre Strength Regulations only provide for internal adjustments at the discretion of the Government that no one can claim a right on the strength of those Regulations
In our opinion the argument places the case of the initial recruits on too high a pedestal to be accepted and we do not think that the cited observations help him sustain such a tall argument
The exception given by way of illustration in the above passage indicates that there can be circumstances in which rights can be created in certain recruits under the Cadre Strength Regulations
If we had agreed with the direct recruits that there had been some invalidity or infirmity attached to the subsequent selections by way of initial recruitment we would not have rejected the appeal on the ground that the Regulations cannot give rise to a cause of action
It is only because we have come to the conclusion on a proper interpretation of the Cadre Strength Regulations and the Recruitment Rules that there is no error in the procedure followed by the Government that we are rejecting the appellants  contention
We would like to make one more thing clear before we conclude
It is not our intention nor can it be the result of our discussion that the appointment of any of the officers recruited under rule 41 or 42 should be considered invalid
All the officers selected will have to be adjusted if necessary by amending the Cadre Regulations
The only result of our findings will be the readjustment of their seniority with necessary and consequential effect on their promotions in the Service
CONCLUSlON 40
In the result we see no merits in the appeals from UP and 328 Maharashtra which consequently stand dismissed subject to what we have observed above
So far as the Orissa writs are concerned they are allowed and the SSB is directed to redo the selections in the light of the principles set out in this judgment
We make no order as to costs


Summary:
 Rule 6 of the Punjab Ayurvedic Department Class I and Class II Rules 1963 interdicts appointment to the service except duly qualified persons
The requisite qualification laid down by Appendix A  to the Rules for Class I post of Director of Ayurved includes 1 a five years  degree course in Ayurvedic system of medicine and 2 Doctor of Science in Ayurvedic Medicine
For the posts of Professor Assistant Director and deputy Director of Ayurved the requisite qualification is a five years regular course in Ayurvedic system of medicine
The appellant had read as a regular student for three years in the first instance and for the remaining two years he was directly under a qualified Professor
He had then obtained a degree from a recognised University
Later he acquired the Doctor of Science Degree in Ayurved
He was appointed as a Professor of Ayurvedic Medicine under the Punjab Government and later as Deputy Director
He was further promoted as Director
His appointment as Director was challenged for lack of requisite qualification in a writ of quo warranto by respondents 2 3 and 4
In the return made to rule he averred that the petitioners respondents his one time students had filed the application on account of ill motive
He was reverted to the post of Deputy Director on October 21 1981 during 364 the pendency of the writ petition which he challenged in a connected writ petition
he superannuated from the post of Deputy Director on October 31 1987
The High Court held that the appellant was not qualified to hold the post of Director since he had not studied in a regular course for five years to obtain the degree though it found that he possessed the second qualification namely Doctor of Science Degree and a degree in Ayurvedic system of medicine duly recognised by the Government of Punjab
Consequently in the connected writ petition the High Court took the view that he was not entitled to challenge reversion to the post of Deputy Director
Allowing the appeals with costs  HELD 11
The writ petitioners have failed to establish that the appellant did not possess the requisite qualification
In fact he had read as a regular student for three years in the first instance and for the remaining two years he was directly under a qualified Professor
After reading for five years he had obtained the degree which has been from a recognised University
368E 12 The appellant had been serving as Professor for several years
As far as the qualification goes there is no difference in the case of a Professor and that of a Director
In giving appointment to the appellant as Professor the Government must have been satisfied that he had the requisite qualification
368B 13 There was no challenge to the appointment of the appellant to the post of Deputy Director
The first item of the qualification is the same for the Director as also the Assistant Director and the Deputy Director
The appellant held a post between the two
The High Court should have looked into this aspect to find out what exactly was the requirement
368D A 14 The High Court should have given due consideration to the background and the history of the matter
Ayurveda is the traditional method of medical attention
In the post medieval India the system had suffered a set back but in the post independence period it has been accepted as a regular course of study and recognised as a system of therapy
369B 368H 15 The appellant has alleged that the writ petition was the out 365 come of malice and ill will
The High Court did not appropriately advert to this aspect
The petitioners respondents were the once upon a time students of the appellant
Ordinarily one would except obligations piety and reverence in their conduct towards the appellant especially in the traditional system of Ayurved culture
Surprisingly that seems to have been totally wanting
369C 2
Since the reversion of the appellant was grounded upon non possession of the requisite qualification the order of the High Court in the connected writ petition cannot be sustained
369F G 3
The appellant shall be treated to have been regularly appointed as Director of Ayurved and to have been retired in that post the order of reversion notwithstanding
He shall be entitled to all the benefits prescribed for the post of Director from the date he came to the post till he retired
369G H Statesman Private Ltd vs HR Deb  Ors   referred to