a * IN THE HIGH COURT OF DELHI AT NEW DELHI s % Reserved on : 23'^^ May, 2011 Date of decision : 16^^ August, 2011 + W.P.(C) 3476/2011 STATE OF UTTARAKHAND THROUGH PRINCIPAL SECRETARY AND ANR. Petitioners Through: Mr.SoliJ.Sorabjee,Sr. Advocate with Ms.Rachana Srivastava, Advocate versus AJAYKUMAR AND ORS. Respondents Through: Mr.A. Mata, Sr. Advocate with ^ Mr.ApoorvaTiwari,Advocatefor R-1 Mr.A.S.Chandhiok, ASG with Mr.Sanjeev Sachdeva, Advocate for Union of India. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? ' Yes 3. Whether the judgment should be reported in the Digest? Yes DIFAK MISRA, CT For orders, see WP (C) No. 3457/2011. /V-' CHIEF JUSTICE •He SANJIV KHANNA, J. AUGUST 16,2011 pk Signed By:RAM DATT Signing Date:09.09.2024 16:54 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified ' 0//o IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 23^^^ May, 2011 Date of decision : 16*^^ August, 2011 •+ W.P.(C) 3457/2011 AJAY KUMAR JOSHI Through: ..... Petitioner Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate + versus UNION OF INDIA AND ORS. Respondents Through: Mr.A.S.Chandhiok, ASG with Mr.Sanjeev Sachdeva, Advocate for Union of India. W.P.(C) 3476/2011 STATE OF UTTARAKHAND THROUGH PRINCIPAL ' SECRETARY AND ANR. . Through: Petitionel's Mr.Soli J.Sorabjee, Sr. Advocate with Ms.Rachana Srivastava, Advocate versus AJAY KUMAR AND ORS. Through: ..... Respondents Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate for R-l! Mr.A.S.Chandhiok, ASG witli Mr.Sanjeev Sachdeva^ Advocate for Union of India. i'V}^(C)3457/2011 c?' conneded matters page 1 pf/W + W.P.(C) 3477/2011 STATE OF UTTARAKHAND AND ANR. Petitioners Through: Mr.SoliJ.Sorabjee,Sr. Advocate with Ms.Rachana Srivastava, Advocate versus AJAY KUMARJOSHIAND ORS. Respondents Through; Mr.A. Mata,Sr. Advocatewith , Mr.Apoorva Tiwari, Advocate for R-1. Mr.A-S.Chandhiok, ASG with Mr.SanjeevSachdeva, Advocate for Union of hidia. + : W.P.(C) 3485/2011 SUBHASH KUMAR Through: versus Petitioner Mr.Dushy^nt Dave and Mr.Nidesh Gupta, Sr. Advocates with Mr.Sumit Bansal, Advocate AJAY KUMARJOSHIAND ORS. Respondents Through; Mr.A.Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate for R-1 Mr.A.S.Chandhiok, ASG with Mr.SanjeevSachdeva, Advocate for Union of hidia. + W.P.(C) 3486/2011 SUBHASH KUMAR Through; versus \yi'(C) 3457/20! I connecied matters : Petitioner Mr.Dushyant Dav^ and Mr.Nidesh Gupta, Sr. Advocates with Mr.Sumit Bansal, Advocate page 2 of 60 AJAY KUMARJOSHIAND ORS. Respondents Through: Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate for R-1 Mr.A.S.Chandhiok, ASG with Mr.SanjeevSachdeva, Advocate for • Union of hidia. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whetl-ierreportersof die localpapersbe allowedto see the judgment? Yes 2. To be referredto tlie Reporterornot? Yes 3. Whetliertlie judgmentsholildbe reportedin tlieDigest? Yes DIFAK MISRA, CJ Regard being had to the commonalityof controversy,this batch of writ •petitionswas heardtogetherand is disposedof by asingularorder. Ajay Kumar Joshi,the petitionerinW.P.(C)No.3457/2011/preferredtwo originalapplications before the Central Administrative Tribunal, Principal Bench, New Delhi (for short 'the tiibunal') forming the subject matter of O.A. Nos.2357/2010 and 3604/2010 assailing the action of the State of Uttarakhandin extending the benefitof promotionto the respondentnos. 4to 6in the pay scale of the Chief Secretary and further challengingthe selection of the respondent- Subhash Kumar for the post of Chief Secretaryof the State oiti the foundationthat there WP(C) 3457/2011&connectedmatters . page3of60 has beentotalviolationoftheprovisionscontainedin the Rules,Regiilationsand instructions in the field. The tiibmial accepted the contentions raised by the applicant before it and set aside the benefit of promotion extended to the respondent- SubhashKumar and also quashed the order of promotionof the applicantand directedto make fresh selectionafterfollowingthe due procedure as postulatedin law within two months with a further stipulationthat the presentarrangementwould remainin vogue duringthe said period. Shri A.K. Joshi has preferredW.P.(C) No.3457/2011for quashingthe directionby which his promotionhas beenamiulledand furtherto issueacommandfor restoration of his promotion. The State of Uttarakhandhas preferredW.P.(C)No.3476/2011 and W.P.(C) No.3477/2011challengingthe order passed by the tiibunal and SubhashKumarhas preferredW.P.(C)No.3485/2011and W.P.(C)No.3486/2011, Be it noted, the stand and stance put forth by the State of Uttarakhand and SubhashKumar are same and their prayeris for quashmentofthe order passed by the bibunal in entirety. 2. Pi-esentiyto the factual mati-ix. The. applicantbefore the ti-ibunalin OA No.3604/2010calledin questionthe legalproprietyof the concurrencegivenby the Secretary,Departmentof Persomiel&Training(DOPT), in responseto the letters dated 31.5.2010and 8.10.2010of the State of Uttarakhand as regards the l'yP(C)3457/201/ &connectedmatters ^ P<^'Se4of 60 availability of one vacancy in the apex scale of Indian Administrative Service (IAS) in the Uttarakhandcadre as on31.5.2010in terms ofthe provisionsofRule 3(2)(ii) and (iii) of the IAS (Pay) Rules, 2007 (for short 'the 2007 Rules') in addition to two vacancies in the said grade for which concurrence has already been given by the respondentby communicationdated 19.9.2008 and further challengedthe orders dated12.9.2010and 13.9.2010wherebythe 4^^ respondent, SubhashKumar,hadbeenappointedas the ChiefSecretaryof the Governmentof Uttarakhand.In the said application,the reliefsoughtwas to setaside the afore mentioned two orders dated 12.9.2010and 13.10.2010contained in Annexures P- 1 to P-3 of the original application;to issue appropriateguidelinesof general applicationfor posting of officers on the post of Chief Secretaryin the State cadres; and to declare that the post of Director General, Uttarakhand AdministrativeAcademy,Nainitalisnot equalin statusand responsibilityto the postof ChiefSecretary,Governmentof Uttarakhand\ 3. OA No. 2537/2010 was preferred assailing the action of the Screening Committee which met on 19.2.2010 recommending four officers, namely, Ajay Kumar Joshi, Suneel Kumar Muttoo, Subhash Kumar and Keshavdesi N. Raju as fit for the apex scale of the ChiefSecretary. The applicantwas furtheraggrieved by the order dated 31.5.2010 whereby Suneel Kumar Muttoo and Subhash l'VP(C)3457/20!I &connectedmailers ^ Kumarhad been promotedto the scale of Rs.80,000/-(fixed)ofthe IAS, andthe creationof 18 postsby the Stateof Uttarakhandmiderthe secondprovisoto Rule •4(2) of the IAS (Cadre)Rules,1954 (for short'the1954Rules'). The prayerin the petitionwas to set aside the recommendationsof the ScreeningCommitteeheld on 19.2.2010as far as theyrelateto the respondentNos. 4, 5and6as the samehas been made in the absenceof prior concurrenceof the Governmentof India and non-availabilityof valid posts and further to set aside the order of promotion dated 31.5.2010 passed.infavour of respondentNos.4 and 5 therein; and to invalidatethe order dated 28.5.2010whereby18 posts have been created by the StateofUttarakhand and to commandthe StateofUttarakhand to fill up the post of ChiefSecretary(a cadrepost) onlyfrom thoseofficersinthe CS Gradewho are deemed to have been appointed against cadre posts on the basis of their respectivemter se seniority. Be it noted, a further reliefwas added for setting aside the order dated 19.9.2008 of the Government of India which related to concurrenceaccordedin respectofthe availabilityofone ex-cadrevacancyin the ChiefSecretaryGradeofpayin the UttarakhandcadreoftheIAS. 4. The grievanceof the applicant,in essence,was thaton19.9.2008,whenthe concurrenceof the respondent-DOP&Twas givenfor two availablevacanciesin the gradeof ChiefSecretary,only one vacancywas actuallyavailableon thatdate r IVP(C) 3457/20!I c'i connectedmatters I T and, therefore,two ex-cadrepostscouldnothave beencreatedunderRule 9(7) of the IAS (Pay) Rules as proposedby the Governmentof Uttarakhandin its letter dated 3.9.2008 because 17 persons were already working against. State• DeputationReservefixed at 13. It was the further stand that since the person above the petitioner in the gradation hst was found 'unfit' by the Selection Committee,the petitioneralone could have been selectedand the respondent nos.4 and 5 could not have been empanelledin the selectlist as the vacancies were not available. 5. As is discerniblefrom the factual exposition,the cadre strength of IAS officers in Uttarakhandstate was determinedat 94 .under the IAS (Fixationof Cadre Sti^ength) Regulations,1955 vide the Governmentof India notification dated4"^ October,2004. The postcategorizedunderSeniorDutyPosts (SDP) are commonlyknown as cadre posts and the posts under State DeputationReserve (SDR) are called ex-cadreposts. There are four grades having differentpay- scalesin SDP. The ChiefSecretarygrade is also knownas the apex grade in the cadre,the highestgradehavingpay-scaleof Rs.80,000/-(fixed). 6. In 2008, the State Governmentunder Rule 9(7) of the 2007 Rules created: two ex-cadreposts underSDR in the ChiefSecretarygrade as againsttwo cadre postsalreadyexistingunderSDP. The saidcadrepoststhatexistedare the Chief, WP(C) 3457/20// di connectedmqtlers P°S<i 7of60 Secretaryand DirectorGeneral,Uttarakhand,AdministrativeAcademy,Nainital, On 3'd September,2008,the StateGovernmentsentaproposalfor concurrenceto the Governmentof India for filling up of two vacanciesin the Chief Secretary gradeas therewere two officers,namely,ShrihiduKumarPandeyand ShriN.S. Napalchyal,who were already workingin the Chief Secretarygrade and two vacancieswere available. At that point of time, 17 officerswere workingunder. SDR againstthe prescribedlimit of 13. The CeritralGovernmentaccordedits concurrence in respect of two vacancies in the Chief Secretary grade vide communicationdated19^^ September,2008. Beforethe meetingof the Screening Committee,Shri h^du Kumar Pandey, the then Chief Secretarytook voluntary retirement on 2"^ December, 2009 and therefore, the number of vacancies increased from two to three in the Chief Secretary grade. The Screening Committeeheld its meeting on 19^'^ February,2010 and took into accountthat apart from these three vacancies,one more vacancywould take place on 30th April, 2010 due to retirementof Shri N.S. Napalchyal. Regardbeinghad to the aforesaidcircumstances,the Committeeconsideredall the officersin the zone of considerationand gave its recommendationsfinding Ajay Kumar Joshi, Sunil Kumar Muttoo, Subhash Kumar and Keshav N. Desi Raju as 'fit' ^nd one VijendraPaul to be'unfit'. irPfCJ3457/2011&connectedmatters ^ 7. On the basis of the recommendations of the Screening Committee, the State Government promoted the officers, namely, Ajay Kumar Joshi, Stmil Kumar Muttoo and Subhash Kumar in the Chief Secretary grade on 31^^ May, 2010. The fourth likely vacancy that was taken into considerationby the ScreeningCommitteecouldnotbe filled up becausethe officerwho was to retire ' on 30"! April,2010 was,infact,'givenan extensionof six months,thatis, upto 31^^ October,2010 by the Govermnentof India. After making the promotions,the Stateof Uttarakhandapprisedthe Goverraxientof Indiain respectof fillingup of the thirdvacancyalso whichhad arisendue to volmitaryretirementof an officer on 2"^'' December,2009 after the concurrencedated 19''^ September,2008 for two vacancies. A reminder was also sent to the Government of India on 8"^ October, 2010 in the said regard. 8. The Government of India, vide letter dated 13th October, 2010, granted concurrencefor the third vacancyas on 31®^ May, 2010 under Rule 3(2)(ii)(iii)of the 2007 Rules in continuation of its earlier concurrence dated 19September, 2008, which were for two vacancies. On 12^^September, 2010, an officerworking in the Chief Secretarygrade, N.S. Napalchyal,the then Chief Secretary,took voluntaryretirementand the State GovernmentappointedSubhashKumar a^ l'VP(C)3457/2011 cC' connectedmatters P<^'Se ^ ![p the new Chief Secretaryon 12"i September,2010 after consideringall officers includingAjayKumarJoshi,who was workinginthe ChiefSecretarygrade. 9. The tribunal noted that by virtue of Section 72 of the Uttar Pradesh ReorganisationAct, 2000, aseparatecadre of IndianAdministrativeServicesfor the newly createdState was created. The applicantwas allocatedto the new cadre of Uttarakhand. After certainlitigations,the applicantjointedthe State of Uttarakhand on 12.10.2009. 10. The Union Government, in consultation with the Government of, Uttarakhand, framed the Indian AdministrativeService (Fixation of Cadre Strength) Sixth Amendment Regulations, 2004 which came into force on 4.10.2004. The cadre strengthto the IndianAdministrativeService (Fixationof CadreStrength)Regulations,1955 (for short'the1955 Regi,ilations')provided51 posts at item No.l of the schedule,known as SDP under the Governmentof Uttarakhand, which included the posts of the Chief Secretary and the Director General of Uttarakhand Administrative Academy, Nainital, known as cadre Posts under Rule 2(b) of the 1954 Rules. 11. The tribmial took note of the fact that at item No.3 of the above schedule, thereis aprovisionfor SDR, whichis 25% of the SDP and itwas fixed atNo.13 in \¥P(C)3457/20licC- connectedmatters P'^'S^ the order dated 04.10,2004. The Government of Uttarakhand sought the concurrenceof the Union of India by letter dated 3.9.2008 in respect of the vacanciesin the scaleof the ChiefSecretary. The Governmentofhidia concurred with the proposalaboutthe availabilityof two vacanciesin the scaleof Rs.26,000 (fixed) [pre-revised]. On 2.12.2009,as set forth, the then Chief Secretary,hidu KumarPandey,tookvoluntaryretirementfrom serviceand N.S. Napalchyalwas appointedin his place. It was contendedthat the ex-cadrepost which he was occupyingcame to an end and SDR came to 16 on that day. The applicant submittedarepresentationdated 9.12.2009seekingan accuratedeterminationof vacanciesin the grade of Chief Secretarysince the promotionto the post was vacancybased. He placedrehance on the guidelinesfor promotionframed on 28.3.2000. He stated in the representationthat no ex-cadrepost in any gi'ade, includingthe grade of the ChiefSecretary,could be createdin view of the fact that the SDR, as fixed by the order dated 4.11.2004,exceeded13. He submitted anotherrepresentationon 8.2.2010challengingthe correctnessof the letterdated 3.9.2008of the State Goverranent on the foundation that the letter had been sent in greathasteas the matterhad beeiiputup and approvedby the ChiefSecretary on the same day, in.whichfive levels of officersfrom Under Secretaryonwards IVP(C) 3457/20!I c& connectedmailers were involvedand such an action/ proposalwas in violationofRule 8(2) of the 1954 Rules. 12. As noticed/ the first representationdated 9.12.2009 was rejected by #ie State of Uttarakhand. Ameetingof the ScreeningConimitteeheld at New Delhi on19.2.2010consideredfour vacancies,two cadre posts and two ex-cadreposts, for promotion to the grade of Cliief Secretary. The Committee made the recommendationin respectof four officersfor promotionto the grade of Chief Secretary. Anote was putup on 22.2.2010by the PriiicipalSecretarystatingthat two officers would be promotedinitiallybecause DOP&T had permittedtwo vacanciesand the resttwo wouldbe promotedafterobtainingthe concurrenceof the DOP&T. At this stage, the applicantsought interventionof the Centi'al Governmentas regardshis representationdated8.2.2010and the Governmenfof Indiasoughtcommentsfrom the Governmentof Uttarakhandbut no action,was taken. In the meantime,SubhashKumar,who was the PrincipalSecretaryof the Department of Persomiel of the State Government, wrote to the Secretary, DOP&T, on 29.3.2010seekingextensionfor the incumbentChiefSecretary,N.S. Napalchyal,who was grantedextensionfor afurtherperiodof six monthswith effectfrom 30.4.2010. At this stage,the Governmentof Indiawroteto the Stateof Uttarakhand on 7.5.210 to examine few aspects and to submit a fresh proposal l¥P(C)3457/2011 cC- connectedmailers P"S'^ for confirmation of vacancies in the grade of Chief Secretary for prior concurrence of DOP&T. The Government of Uttarakhand took no notice of this communication and approved the recommendationdated 19.2.2010 of the ScreeningCommittee on 25.5.2010. Three persons, namely, A.K. Joshi, Sunil Kumar Mattoo and Subhash Kumar were promoted to the grade of Chief Secretary.At this stage,the Stateof Uttarakhandcreated18 posts in the gradeof AdditionalChief Secretaryunder the second proviso to Rule 4(2) of the 1954 Rules and the posts were created for two years. Before the tribunal/certain correspondencesbetweenthe State of Uttarakhandand the Governmentof India were referred to, 13. The applicant who was posted as Director General, Uttarakhand Administi-ative Academy, Nanital joined the said post under protest and submitteda representationto the competentauthority. When no responsewas shown,'he preferred the original application. During the pendency of the originalapplication,N.S. Napalchyal,the incumbentChiefSecretary,appliedfor voluntaryretirementfrom service on 12.9.2010and his requestwas acceded to. The fourthrespondent,SubhashKumar,was appointedas theChiefSecretaryon that day. By order dated 13.10.2010, the Govermnent of India gave its concurrenceto the availabilityof one vacancyin the apex scale in Uttarakhand WP(C) 3457/2011&connectedmatters P"Se oj 60 cadre as on 31.5.2010in terms of Rule 3(2) (ii) & (iii) of the Indian Administi-ative Service (Pay) Rules, 2007, in additionto the two vacanciesin the said grade to whichconcurrencehad earlierbeen givenby its letter dated 19.9.2008. 14. Preliminaryobjectionswere raised with regard to territorialjurisdiction and limitationbut the tribunal, after referring to Sections 20 and 21 of the Administi-ativeTribunals Act, 1985, came to hold that the PrincipalBench at Delhihas jurisdictionto entertainthe originalapplicationand furtherthe delay, if any, deserves to be condonedand, accordingly,so ordered. Thereafter,the tribunalproceededto dealwiththe,meritsof the case. 15. The principalcontentionthat was urged before the tribunalon behalf of the applicantwas that the respondentsin complete disregardof the statutory provisions engrafted under the All India Services Act, 1951, the Rules and Regulationsframed thereundererroneouslydeterminedthe vacancies in SDR and on the said basis, two ex-cadre posts could not have been created and resultantlythe Governmentof Indiacouldnothavegivenits concurrencefor two vacancies in the apex scale by acceding to the initial proposal of the State Government. It was also urged that while effectingpromotionto the gi'ade of Chief Secretary,the basic requirementstipulatedunder Rule 9(7) of the 2000 WP(C) 3457/2011&connectedmatters page 14 of60 Rules which has to be read in conjunctionwith Rule 8(2) of the 1954 Rules was not kept in view. 16. Quite apart from the above, it was also contended that,the Govt. of Uttarakhandin creating 18 posts in May, 2010 abused its power under the secondprovisoto Rule 4(2) of the 1954 Rules. Placingrelianceon E.P. Rotjappa V. StateofTamilnadu&another,(1974)4SCC3, itwas assertedthatthe creation of postsunderthe secondprovisoto Rule 4(2) wouldnot add to the cadreposts, butwere actuallyto be treatedas ex-cadreposts. In thisregard,it was submitted that the State Government does not have the unbridled power to create any number of posts under Rule 4(2) of the 1954 Rules, as confermentof power would make the conceptof accuratedeterminationof the vacanciesunder Rule 3(2)(ii) and (iii) totallyredundantbecausethe StateGovernmentcouldcreateany numberof ex-cadrepostsin any grade. Itwas also contendedthatitwouldbe an absolutelyanomalouspropositionthat the posts createdunder Rule 4(2) of the 1954 Rules would be counted against cadre posts. 17. It was also submittedthat it was mandatoryunder the 2007 Rulesio seek, prior concurrence of the Central Govermiient for available vacancies for promotionto selectiongrade and above. In this regard,reliancewas placed on the communicationdated 28.3.2007 of the Additional Secretary (DOP&T) to WP(C) 3457/201/ d connectedmatters explain the rationale behind the introductionof Rule 3(2)(ii) and (iii) which basicallyprovidefor bettercadre managementof the service. It was put forth thatsucha step-wastakenas the.StateGovernmentswere makingpromotionsin respect of the cadre beyond the number of available vacancies. It was highlighted that there is no provision for ex-post facto determination of vacanciesinRule 3(2) of the 2007Rules or any otherRule. Further,the standwas' taken that on 3.9.2008,as only one cadre post was vacantin Uttarakhand,the proposalof,theState,Govermnentfor creationof two ex-cadreposts imder Rule 9(7) ofthe 2007Rulescouldnothavebeenacceptedbecauseon thatdate the SDR was already17 againsttheprescribednumberof 13. 18. Itwas the applicant'sgrievancethatthoughhe was more meritoriousthan SubhashKumar and also senior to him in the gradation list of 1977, yet he was placed in a positionsubordinateto him as the Director General,Uttarakhand Academy,Nairutal. Itwas arguedthat the ChiefSecretarywas the presidentof the GoverningBody of the saidAcademywhereasthe DirectorGeneralwas only the membersecretary. It was urged that the post beinginferioriiistattisto the post of the Chief Secretary,the senior personshould have been posted as the •ChiefSecretaryand the juniorshouldhavebeenpostedas the DirectorGeneral. I'VP(C)3J57/20II&connectedmatters 19. On behalf of the second respondent, it was set forth that the applicant was mifit to be appointedto the post of the ChiefSecretary. The applicantcouldnot have any grievanceas he had been appointedto the grade of ChiefSecretaryas the post of the DirectorGeneral,AdministrativeAcademy is equivalentto the post of ChiefSecretary. It was put forth that the only eligibilitycriteriawhich existedfor appointmentto the post of ChiefSecretarywas 30 years of ser^i^icein the precedinggrade and, therefore,the inter-seseniorityin the batch is fotally inconsequential.The SDR was not relevantat the stage of sendingthe proposal. to the Government of India for concurrenceofvacancy as the SDR is dynamic in nature and keeps on fluctuating due to various reasons such as retirement, ti-ansfer,deputation,etc. At no time, the numberof ex-cadreposts exceededthe combinedsti-engthof SDR and CentralDeputationReserve (CDR). That apart, on 3.9.2008,two officerswere workingin the grade of Chief Secretaryand one cadre post of DirectorGeneral,UttarakhandAdministrativeAcademy and one ex-cadrepostwere vacant. After concurrencewas receivedfor two vacancieson 19.9,2008 from the Government of India, Indu Kumar Pandey, who was appointedas ChiefSecretary,soughtvoluntaryretirementfrom IAS which was sanctionedon 2.12.2009. N.S. Napalchyal,who was previouslyposted on the ex- cadre post of AdditionalChief Secretary, succeeded him as Chief Secretary IVPfCJ 3457/20U connectedmatters P"S<i ^7of 60 resultingin one more vacancy in the ex-cadre post and, therefore,there was nothingillegalin the actionof the ScreeningCommitteetakingcognizanceof the availabilityof three vacancies as the same is provided under the Promotion Guidelines, 2000. 20. With respectto creationof 18 additionalposts for 2years, pendingcadre reviewdue in 2009, exercisingthe powersunder the secondprovisoto Rule 4(2) of the 1954 Rules, it was urged that the State Governmentwas fully justifiedin creatingthese posts as the developmentactivitiesof the State had multiplied considerablyafter the lastcadre reviewin the year 2004 and therewas pressmg need for officers to execute these programmes. As per paragraph5.2 of the clarificationissued by the DOP&T by letter No. 11033/1/98-AIS(II)dated 23.4.1998,the posts which were createdunder the above-mentionedcadre,rule were to be countedas temporaryadditionto the cadrepostsand they couldnot be countedagainstSDR which,accordingto the respondent,was utilizedonly to the extentof9 well within the prescribedlimitof13 on the date ofpromotionto the gradeof ChiefSecretary,i.e.,on 31.5.2010. Therefore,the respondent-Stateof Uttarakhandwas withinits rightto promote3 personsfrom the panelpreparefl by the ScreeningCommitteeto the apex gradeof ChiefSecretary. As regardsthe thirdvacancycreateddue to retirementof N.S. Napalchyal,itwas reiteratedthat IVffC)3457/2011&connectedmailers P"S<^ ) / there was no need to write to the Government of India for concurrence as the later approvalgivenby the Governmentof India,for all practicalpurposes,did tantamountto deemedapprovalunderRule3(2)(ii)&(iii) of the IAS (Pay) Rules, 2007. It was contendedthat as the applicanthad alreadybeen promotedto the grade of Chief Secretary,his contentionthat he would have better chances of promotionto the saidposthad therebeenonlytwo contendersfor thatinsteadof four, is not tenable because chance of promotionis not a right. Reliance was placedon the decisionsrenderedin The StateofMysorev. G.N. Piirohit&Ors, (1967) SLR 753; RamchandraShankarDeodhar&Ors. v. State ofMaharashtra &Ors, (1974)1see 3; MohmmadShujatAli&Ors, v. UOI &Ors.,(1975)3SCC 76; and BakshishSinghv. UOI &Ors.,1985 (Supp.)SCC116. 21. The fifth respondent- SubhashKumar emphasizingthe words "at that levelof pay" used in the Rule 9(7) of the 2007Rules contendedthat-^twoex-cadre postscouldbe createdwithoLitthe permissionof the CentralGovernmentas two cadrepostsexistedat the time ofcreation. 22. The seventh respondent- N.S. Napalchayal,placing reliance on K.A. Nagmani v. Indian Airlines & Ors., (2009) 5 SCC 515, contended that the applicanthad no right to challengethe creationof two ex-cadreposts by order dated 19.9.2008 because he participated in the selection and chose not to If/YQ3457/2011&connectedmailers P'^'S^ challengethe procedurebeforethe meetingof the ScreeningCommittee. Evenif selectionwas at all to be set aside,the selectionof the applicant would also be set aside. With regard to the applicant'sclaim of violationof paragraph24 of the Guidelines of 2000, it was argued that the guidelines were only directory in natureand did not createany legalrightfor their enforcement. That apart,SDR and CDR had to be jointlyseenand the status.ofthe SDR was, therefore,relevant at the time of promotion. PlacingrelianceuponCitizensfor Justiceand Peacev. Stateof Gujarat&Ors., (2009)11 SC.C 213, itwas assertedthatthe appointment to the post of Chief Secretarybeingasensitivepost, it is the prerogativeof the State Governmentto choose an eligiblecandidateand no one has a right to be posted in a particular post. 23. The fundamentalissuesthatemergedfor considerationbeforethe tribunal in the backdropof the 1954Rules,IAS (Fixationof CadreStrength)Regulations, 1955, clarificatoryletter dated 13.06.2000of the DOP&T, para 24 of the general guidelinesfor promotionissued by the Centi-alGovernmenton 28.3.2000,and the 2007 Rules were whether the StateGovernmentcouldcreateadditionalposts and further, whether the promotionto the apex grade of Chief Secretaryhad been done in a legallyjustifiedmamierwhentherewas no priorconcurrenceby the Central Government. irPfCJ 3457/2011&connectedmatters 1 24.. The tribunal opined that considerationfor promotionis a legal right and the issue has not to be looked at from the viewpoint that whether the applicant once promoted to the apex gi-ade could have any right to the post of Chief Secretary. The ti'ibunalheld that at the time of selectionfor the post of Chief Secretary,if the ruleshad beenscrupulouslyobserved,the applicantwouldhave been tlie only person to be promoted as there was a singularvacancy in the gradeof ChiefSecretaryon 30.9.2008. It has alsobeenopinedby the tiib.unalthat the creationof two ex-cadreposts by the State Governmentwas in violationof the rules and even if the considerationwas for two vacancies,as approved by the Centi-al Government, Subhash Kumar, who was appointed as thte Chief Secretary,couldnot havebeenselectedand onlySunilKumarMuttoo,the fourth respondentin OA No.2537/2010,could have made it to the apex'gradeand the scenario would havp been quite different. 25. The ti-ibunal repelled the stand that as the applicanthas already been promotedto the gradeof ChiefSecretary,he couldnothave any grievanceon the foundationthat he has been deprivedof the right to be appointed to the post of ChiefSecretaryon the gi-oundthat promotionsmade to the apex gi-ade were in violation of the 2007 Rules, The tribunal opined that a plain reading of Rule 3(2)(ii)of the 2007 Rules would make it amply clear that the State Cadre has to WP(C) 3457/2011c?' connectedmatters P'^g'^ of60 seek prior concurrenceof the Centi-alGovernmenton the number of available vacancies in each grade and the said Rule is absolutely unambiguous.The tribunal further made observations as to the intent behind the Rule and said that the same is clear from the letter dated 28.03>2007of the DOP&T.It stated that the letterprovidesin clear terms thatit shallbe mandatoryupon the State Cadre to seek prior concurrenceof the CentralGovernmenton the number of available vacanciesin eachgrade. Thereafter,the tribunalproceededto stateas follows: "This letter, in essence, capturesthe illegahtycommittedby the Respondentsin notseekingpriorconcurrencefor the third vacancy,only on the groundthat it was an obviousvacancy. There is no such exemptionin the aforesaidrule that if in the opinionof the StateGovermnentavacancywas obvious,there was no need to seek prior concurrence. The reading of the Rule would also show that there is no provision for ex post facto approval. There is no merit in the contentionraised on behalf of the Respondentsthat by order dated 16.10.2010the Centi-alGovernmentgave its deemedapprovalfor creationof postsunderRule 3(2)(iii)of the IAS (Pay) Rules,2007,because . the deemedpermissionunderthe saidrule is consideredto be givenif the proposalof the StateCadreis not concurredin by the Central Government within one month. It is not deemed permission,if grantedex-postfacto. The CentralGovernment has violated its own rules by giving ex postfacto approval to the proposal of the State Govermnent. 26. The tribuiial further stated that since prior concurrence is necessary for availablevacanciesfor promotion,itwouldstandto reasonthatconsiderationof SDR would be relevant only at the time when the approval for the available ]¥P(C)3457/2011cf- connectedmatters • vacanciesis given.The tribunalopinedthatRule 8(2) of the 1954Rules and Rule 9(7) of the 2007 Rules have to be read harmoniously.The tribimal thereafter observed as follows: "The interpretation that it would mean that, the State DeputationReserve has to be consideredfor each grade is misconceived. The Sub-clause "at that level of pay" is only to signify that it is