W.Ps.(C) 6474/2003, 7220/2003 Page 1 of 17 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6474/2003 Date of Reserve: 03.08.2010. Date of Decision: 11.08.2010. UNION OF INDIA ..... Petitioner Through Mr.Atul Nanda, Adv. Versus J.D. NAHARWAL & ORS. .... Respondents Through Mr.G.D.Gupta, Sr.Adv. with Mr.S.K.Sinha, Adv. for R-1. Mr. Naresh Kaushik, Adv. for UPSC. Mr. Yashpal Rangi, Adv. for R-3/State of Haryana. None for R-5 & 6. + W.P.(C) 7220/2003 PRAVEEN KUMAR & ANR. ..... Petitioners Through Mr.L.R.Khatana, Adv. versus J.D. NAHARWAL & ORS. .... Respondents Through Mr.G.D.Gupta, Sr.Adv. with Mr.S.K.Sinha, Adv. for R-1. Mr. Atul Nanda, Adv. for R-2. Mr. Naresh Kaushik, Adv. for R-3/UPSC. Mr. Yashpal Rangi, Adv. for R-4/State of Haryana. None for R-5 & 6. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether the judgment should be reported in the Digest? : MOOL CHAND GARG,J 1. We are concerned in this writ petition with the issue of filling up of the vacancies in the Indian Administrative Service by promotion which is W.Ps.(C) 6474/2003, 7220/2003 Page 2 of 17 to be filled in accordance with the provisions contained in the Indian Administrative Service (fixation of Cadre Strength) Regulations, 1954. The Central Government has also framed the Indian Administrative Service (Recruitment) Rules, 1954 which provides that there are three methods of recruitment to the IAS; i.e.: (a) By a competitive examination; (b) By promotion of a [substantive] member of a State Civil Service; (c) by selection, in special cases from among persons, who hold in a substantive capacity gazetted posts in connection with the affairs of a State and who are not members of a State Civil Service. 2. As per clause (a) of sub rule 1 of Rule 4, the recruitment is by competitive examination. Clause (b) provides for recruitment by promotion of a substantive member of the State Civil Service. Clause (c) stipulates following mode: “By selection, in special cases from among persons, who hold in a substantive capacity gazette posts in connection with the affairs of a State and who are not members of a State Civil Service.” 3. In so far as recruitment by promotion or selection for appointment to State and joint cadre is concerned it is regulated by Rule 8 of 1954 Rules, which reads as under: “8. Recruitment by promotion or selection for appointment to State and Joint Cadre:-(1) The Central Government may, on the recommendations of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the Sate Governments and the Commission, from time to time, make, recruit to the Service persons by promotion from amongst the 23[substantive] members of a State Civil Service. 8(2) The Central Government may, in special circumstances and on the recommendation of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Government and the Commission, from time to time, make, recruit to the Service any person of W.Ps.(C) 6474/2003, 7220/2003 Page 3 of 17 outstanding ability and merit serving in connection with the affairs of the State who is not a member of the State Civil Service of that State 24[but who holds a gazetted post in a substantive capacity]. 8(3)(a) Where a vacancy occurs in a State Cadre which is to be filled under the provision of this rule, the vacancy shall be filled by promotion of a member of the State Civil Service or, as the case may be, by selection of any other officer serving in connection with the affairs of that State. (b) Where a vacancy occurs in a Joint Cadre which is to be filled under the provision of this rule, the vacancy shall, subject to any agreement in this behalf, be filled by promotion of a member of the State Civil Service of any of the States constituting the group or as the case may be, by selection of any other officer serving in connection with the affairs of any such State(s).” 4. Central Government has also framed the Indian Administrative Service (Appointment by Promotion) Regulations, 1995 (herein referred to as „the Promotion Regulations, 1955). Appointment by selection is governed by the Indian Administrative Service (Appointment by selection), Regulations, 1997 (herein referred to as Regulations 1997). 5. In the year 2001 four vacancies were earmarked in the State quota for inclusion in Indian Administrative Service from the State of Haryana two posts were earmarked for officials who were members of State Civil Service whereas the other two were earmarked for Non-State Civil Services in accordance with sub-Clause (c ) Sub-rule 1 of Rule 4 of 1954 Regulations as aforesaid. Sh. J.D.Naharwal, respondent No.1 was a member of the Haryana State Civil Service (Executive Branch) having joined the service in September, 1983 and was an aspirant to be included in Indian Administrative Service. Sh. Jai Paul Singh Dahiya was another aspirant who wanted his inclusion from category of Non-SCS officers. 6. However, on account of the deficiency in supply of information regarding eligible candidates to be considered in the category of Non-SCS officers, UPSC in exercise of the powers available with it as per Regulations W.Ps.(C) 6474/2003, 7220/2003 Page 4 of 17 5(1)(c) of the Regulations of 1997 declared that it was not practicable to hold a meeting of the Selection Committee during the relevant year i.e. in the year 2001 in the circumstances explained in the letter dated 04.02.2002 and accordingly Union of India decided to carry forward those two vacancies in the next year 2002. It may be observed here that Shri J.D.Naharwal who was not even in the zone of consideration in the year 2001 if the vacancies meant for State Civil Service were to be confined only to two made a representation assailing the aforesaid decision to carry forward the vacancies to the next year as it was his stand that those vacancies remaining unfilled with respect to the category of Non-SCS officers were then required to be considered available for SCS officers of the State cadre in the year 2001 itself and if that would have been done the said Shri Naharwal being member of State Civil Services would have been in the zone of consideration if vacancies stood increased to 4. 7. As his representation was not considered, Shri J.D.Naharwal aggrieved from the aforesaid, declaration and decision taken by Union of India, arrayed as the first respondent in both the aforesaid writ petition, and one Jai Paul Singh Dahiya who filed a separate writ petition bearing No 3414/2003 which now stands dismissed in default vide order dated 03.08.2010 assailed the aforesaid declaration before the Central Administrative Tribunal to set aside the aforesaid action of the Union of India and to direct inclusion of these 2 posts as part of the State Civil Services officers cadre for the year 2001 itself and to fill them up by holding a review DPC. Sh. Jai Paul Dahiya on the other hand wanted carrying forward of these vacancies in the quota of Non-SCS officers for the next year. 8. The application filed by Shri Jai Paul Singh Dahiya was registered as OA No. 115/2003 while that of Shri J.D.Naharwal was registered as OA No. 2042/2002 and both these applications were decided by a common order by the Central Administrative Tribunal Principal Bench vide order dated 02.05.2003. W.Ps.(C) 6474/2003, 7220/2003 Page 5 of 17 9. Vide impugned order the Tribunal dismissed the application filed by Sh.Jai Paul Singh Dahiya but allowed the application of Shri J.D.Naharwal the first respondent and gave the following directions: 28. O.A. No.2042/2002 in the case of J.D.Naharwal is allowed and it is directed that:- (a) the decision to fill up the vacancies in the Indian Administrative Service of Haryana Cadre from amongst non- State Civil Service Officers during the year 2001 is quashed; (b) the decision to carry forward two vacancies earmarked for non-State Civil Service officers is also quashed; (c) the vacancies, if any would revert back to the State Civil Service Officers eligible for the year 2001; and (d) a review Departmental Promotion Committee should be held to prepare the revised list of the remaining eligible State Civil Service officers who may be within the zone of consideration. 10. Aggrieved by the aforesaid directions UOI has filed Civil Writ Petition No. 6474/2003 praying for setting aside the order passed by the Tribunal and to permit them to carry forward the aforesaid 2 vacancies to the year 2002. Praveen Kumar, the second writ petitioner has filed CWP No. 7220/2003 without having approached the Central Administrative Tribunal and coming directly to this Court for seeking a similar direction as prayed for by Union of India. According to him, if vacancies are carried forward to the next year, he would come in the zone of consideration for the next year as a member of Haryana State Civil Service, even though he was not in the zone of consideration for the year 2001 and even if the vacancies are considered as part of the quota meant for State Civil Service for the said year. 11. It is the submission of both the petitioners that the directions given by the Tribunal could not be given as they are in the teeth of Regulation 5 of the 1955 Regulations. Submissions were that after the vacancies earmarked for Non-SCS Officers for the year 2001 are not filled up and if they are filled up from amongst those Officers who belong to SCS Cadre it will disturb the ratio/quota maintained between the Non-SCS Officers and SCS officers. It W.Ps.(C) 6474/2003, 7220/2003 Page 6 of 17 is also contended that there is no provision in the Rules for holding year wise DPC. It is also contended of the petitioner that there is also no provision for holding review DPC with reference to the particular year. 12. According to the petitioners the system of carrying forward of vacancies is inbuilt into Regulation 5 of the aforesaid Regulations, vacancies of each year are determined with reference to substantive vacancies of 1st January of the year. It is also submitted that first proviso of Regulation 5(1) provides that no meeting of the Committee shall be held and the selected list for the year in question shall be prepared when there are no substantive vacancies or the Central Government in consultation with the State Government decides that recruitment shall be made during the year to substantive vacancies. This Rule clearly indicates that it is not necessary that determination of vacancies and preparation of the Select List must be done for each of the year. It is further argued that the vacancy which is not filled up in a particular year gets merged with the pool of vacancies to be determined for the subsequent year(s) and there is no concept of wait list and review DPC in the Rules or in the Regulations. Learned counsel further argues that method of recruitment to be adopted for the purpose of filling up particular vacancy or vacancies during particular year is to be determined by the Central Government in consultation with the Commission and the State Government concerned. Where a vacancy occurs in a State Cadre which is to be filled under the provisions of Rule 8, the vacancy shall be filled by promotion of the member of State Civil Service or as the case may be, by selection of any other office serving in connection with the affairs of the States. This is the position contained in Rule 4(2)(a)(b) and Rule 8(3)(a) of the IAS Recruitment Rules, 1955. 13. To support their contentions they also relied upon a judgment of the Hon‟ble Supreme Court in the case of Tamil Nadu Administrative Service Officers Association & Anr. Vs. Union of India & Ors. (2000) 5 SCC 728 where in para 32 of the judgment it has been held: W.Ps.(C) 6474/2003, 7220/2003 Page 7 of 17 “32. We think that this is a matter of policy which will be uniformly applicable after the amendments. Further, vacancies which are not filled up in one year will automatically get carried forward to the next year if they become actual vacancies by then. Therefore, the challenge of the petitioners that this amendment is arbitrary and violative of Article 14 of the Constitution cannot be accepted.” 14. The Tribunal however having considered the matter in detail in the light of the rule position did not find favour with the Union of India who was a party before the Tribunal. The Tribunal has observed: 17. We have already referred to above that the term “year” means the period commencing on the first day of January and ending on the 31st December of the same year. The Regulations of 1955 prescribe that no meeting of the Committee shall be held and no list for the year shall be prepared if substantive vacancies do not exist or the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies. But it is mandatory that the select has to be prepared separately for each year from the date the Committee could not meet as on the 31st December of each year. To this extent, there is little controversy. The Supreme Court in the case of P.M.Bayas Vs. Union of India & Ors. (1993) 3 SCC 319 was considering the Recruitment Rules of 1954 particularly the expression “in special cases from among persons” in Rule 4(1)(c) of the said Rules and the expression “In special circumstances” in Rule 8(2) of the said Rules. The relevant rules were interpreted and it was held:- 9. We may examine the scheme of the Rules and Regulations. Rule 4(1) of the Rules provides four sources of recruitment to the IAS. The competitive examination and by promotion of substantive members of the State Civil Service are the two main sources of recruitment. Rule 4(1)(c) provides recruitment to IAS "by selection, in special cases from among persons, who hold in a substantive capacity gazetted posts in connection with the affairs of a State and who are not members of the State Civil Service". "In special cases from among persons" means the selection as special cases of the persons who have established their outstanding merit and ability while serving the State. Members of the State Civil Service who are not 'outstanding' but are only 'good' and 'very good' are also eligible to be considered for appointment to IAS but under Rule 8(2) of the Rules, it is only an 'outstanding' officer who is eligible. It is the outstanding merit and ability which makes him a 'special case' in terms of Rule 8(2) of the Rules. Rule 8(2) of the Rules read with Regulation 3 of the Regulations lays down the procedure for W.Ps.(C) 6474/2003, 7220/2003 Page 8 of 17 making the special selection provided under Rule 4(1)(c) of the Rules. The Central Government, being the appointing authority to the IAS, has to be finally satisfied about the existence of the "special circumstances" as a condition precedent for making special recruitment. The "special circumstances" are to be spelled-out from Rule 8(2) of the Rules read with Regulation 3 of the Regulations. Rule 8(2) which talks of "outstanding ability and merit" when read with Regulation 3(1) and 3(4A) of the Regulations makes it clear that the "special circumstances" required to be seen are (i) the existence of officers with 12 years of continuous service in a gazetted post under the State Government other than State Civil Service Officers - who are of outstanding merit and ability and (ii) the satisfaction of the State Government that, in public interest, it is necessary to consider such officers for promotion to the IAS. 18. Similarly in the case of Union of India & Ors. Vs. Vipinchandra Hiralal Shah, JT 1996 (9) S.C. 686, the controversy was about the failure of the selection committee to meet during a particular year to prepare the select list for promotion to the Indian Administrative Service. The Supreme Court held that if for any reason the selection committee is not able to meet during a particular year, the committee when it meets next, should while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year. In paragraph 11, the findings returned were:- “11. It must, therefore, held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst State civil Service officers who fulfil the conditions regarding eligibility on the first day of the January of the year in which the Committee meets and fall within the zone of consideration as prescribed in Clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fall within the zone of consideration for selection in that year.” 19. From the aforesaid decisions, it is clear that the clubbing of vacancies per year is not permissible. As a general rule, the promotion to the Indian Administrative Service has to be made from the State Civil Service officers and the persons not belonging to the State Civil Service come as an exception. They can only be taken into service as per their fixed quota but W.Ps.(C) 6474/2003, 7220/2003 Page 9 of 17 subject to their satisfying the necessary norms which we have already referred to above and require no repetition. 20. The Regulations of 1997 explicitly deals with this controversy. At the risk of repetition, we mention that term “year” means the period commencing on the first day of January and ending 31st December of the same year. Rule 4 of the Regulations of 1997 specifically deals with the cases of persons not belonging to the State Civil Service but serving in connection with the affairs of the State. 21. Regulation 5 refers to the representation of a list of suitable officers by the committee. Necessarily, the selection of suitable officers has to be made and meeting held for the year in question but an important aspect of the same is that no meeting of the committee has to be held and no lit of any non- State Civil Service officers is to be prepared if there are no substantive vacancies and the Commission declares that it is not practicable to hold a meeting of the Committee during that year. This declaration of the Union Public Service Commission is a very important act because once such a declaration is issued, no meeting should be held to fill up the vacancies from the non- State Civil Service officers. In the case of J.D.Naharwal, our attention has been drawn towards an order issued by the Union Public Service Commission dated 09.01.2002 which reads as under:- “I am directed to refer to the subject mentioned above and to say that a proposal for convening the selection committee meeting for selection of Non-SCS Officers for appointment to the IAS of Haryana Cadre during the year 2001 was received from the Govt. of Haryana on 26.12.2001. The Govt. of India had determined the number of vacancies available for Non-SCS officers as 2(two). The State Govt. had recommended the names of four officers against the two vacancies. 2. Since the proposal of the State Govt. was incomplete, a letter was issued on 27.12.2001 requesting the State Govt. to furnish the deficient information and records. They were also requested to furnish some more names since a maximum of 10 officers could be considered against two vacancies. The State Govt. vide their Fax message dated 27.12.2001 & 28.12.2001 furnished some of the deficient information and records. However, the clarification furnished by them regarding the eligibility of some of the officers was not complete. The proposal of the State Govt. having been received in the Commission‟s office only a few days before the end of the year, the deficiencies could not be made good by the State Govt. within the stipulated time. As per the W.Ps.(C) 6474/2003, 7220/2003 Page 10 of 17 provisions of the IAS (Appointment by Selection) Regulations, 1997, the Select List for the year 2001 for appointment of Non-SCS officers was to be prepared latest by 31.12.2001. In the circumstances explained above, the meeting of the selection committee for preparation of a Select List of Non-SCS officers (IAS- Haryana Cadre) could not be held during the year 2001. 3. Accordingly, in exercise of the powers conferred by clause (c) of Regulation 5(1) of the IAS(Appointment by Selection) Regulations, 1997, the Commission declare that it was not practicable to hold the meeting of the Selection Committee for selection of Non-SCS officers for appointment to the IAS of Haryana Cadre during the year 2001. In other words, the Union Public Service Commission specifically declared that it was not practicable to hold the meeting of the selection committee for selection of non-state Civil Service officers for appointment to the Indian Administrative Service of Haryana Cadre during the year 2001. 22. Can we say that this declaration by the Union Public Service Commission is meaningless? The answer would be that it is meaningful. The purpose of making such a provision is obvious. Once such a declaration is issued, the right of consideration by the non-State Civil Service officers is lost. The exercise if any is, therefore, in futility. This is for the added reason that the primary right for consideration is that of the State Civil Service officers and consideration of non-State Civil Service officers is an exception. There is no provision to carry forward the said vacancies for the non-State Civil Service officers. It cannot be so carried forward particularly when such a declaration as referred to above had been issued. The clubbing of vacancies otherwise is not permitted. 25. It is unfortunate that a different stand is being taken by the State of Haryana. In fact, the letter of 13.12.2000 written by the Ministry of Personnel, Public Grievances and Pensions addressed to the Chief Secretary, Government of Haryana States otherwise and supports the applicants‟ view which reads:- “I am directed to refer to the communications from the Govt. of India 1st and 2nd cited and the State Government response thereto third cited regarding determining the vacancies for recruitment by promotion to the State IAS cadre during the year 1998, 1999 and 2000 as for posts for each year and to say as follows: W.Ps.(C) 6474/2003, 7220/2003 Page 11 of 17 2. In view of the position explained by the State Government, in slight modification of para 4 of the letter 1st cited, it has been decided that recruitment by promotion form among the State Civil Service officer of Haryana to IAS Haryana Cadre may be considered upto 2 posts during 1998, upto 4 posts during 1999 and upto 4 posts during 2000. 3. In terms of the provisions contained in the selection regulations, the decision in regard to the recruitment from this channel is to be taken during the calendar year itself and there is no provision for carry over of vacancies or preparation of year- wise select lists in the subsequent year. In view of the proposal of the State Government to defer recruitment by selection from Non-SCS during the year, in terms of the provisions contained in