Case: Anand Parkash Saksena Vs. Union of India &amp; Others

1. The petitioner is a member of the Indian Administrative Service having been appointed to a junior post therein on April 2, 1952 on the basis of a competitive examination held by the Union Public Service Commission in the year 1951. He completed his probation on October 2, 1953. He was originally allotted to the Madhya Bharat Cadre of the Indian Administrative Service which along with the former Vindhya Pradesh and Madhya Pradesh Cadres, merged in the present Madhya Pradesh Cadre of Indian Administrative Service constituted on November 1, 1956. He was appointed to officiate in a senior post on November 17, 1956. In the gradation list published on January 1, 1966, his number is 70. In this writ petition under Article 32 of the Constitution he claims that (a) he had the right to hold a post in the senior scale of pay from April 2, 1952 up to November 17, 1956 under the relevant rules read in the light of the decision in P. C. Wadhwa v. Union of India, 1964 (4) SCR 598  : (AIR 1964 SC 423  ) and that (b) he is entitled to a higher place in the gradation list. He asks for the issue of appropriate writs declaring his rights and giving him consequential reliefs.2. The Madhya Bharat Cadre of the Indian Administrative Service was constituted on June 1, 1951 under the Indian Administrative Service Extension to States Scheme. The cadre included all senior posts. A number of junior and training posts were provided, to he held by officers recruited to the cadre before they acquired the experience and seniority necessary for holding senior posts. The initial constitution of the cadre was made from (1) the existing incumbents and (2) emergency recruits. The existing incumbents were considered to be the first and primary source of recruitment. They were selected by a Special Recruitment Board and divided in three lists. Officers in List I were considered fit for immediate appointment to the Service. Officers in List II were to continue to hold their present posts, their work was to be watched for 5 years and were to be absorbed in the Service as and when they were found fit. Officers in List III were to hold their present posts or posts of equivalent rank until they retired but they were not to be absorbed in the Service. The posts held by officers in Lists II and III were excluded from the cadre for the period during which they were held by those officers. The cadre was to be maintained on a permanent basis by (a) direct recruitment on the result of the competitive examination and (b) promotion from amongst officers of the State Civil Service. As in the case of the Provincial cadres. 25 per cent of the senior posts were earmarked for promotion of officers of the State Civil Service.3. On June 1, 1951, the number of senior posts in the Madhya Bharat cadre was 25. On selection by the Special Recruitment Board 6 officers were placed in List I and were appointed to the Service from January 1, 1951 officers were placed in List II and 11 officers were placed in List III and they continued to hold their posts under the Extension to States Scheme. The remaining 4 senior posts were held by 4 emergency recruits. On April 2, 1952, there was thus no available vacancy for the petitioner in the senior posts. As a matter of fact, 2 direct recruits senior to the petitioner were in the junior scale of pay.4. In September 1954, the Central Government framed the I. A. S. Cadre Rules, 1954, I. A. S. Recruitment Rules, 1954, I. A. S. Pay Rules, 1954 and I. A. S. Regulation of Seniority Rules, 1954 in exercise of its powers under S. 3 (1) ofthe All India Services Act, 1951. These rules were amended from time to time. Under R. 2 (a) of the Cadre Rules, a cadre officer means a member of the Indian Administrative Service. Under R. 2 (b), a cadre post means a senior cadre post under the State Government. Under R. 3, an I. A. S. cadre is constituted for each State or group of States. Under R. 4, the strength and composition of each cadre is determined by regulations made by the Central Government. Rule 8 provides that "Save as otherwise provided in these rules, every cadre post shall be filled by a cadre officer" Rule 9 (1) provides that"A cadre post in a State may be filled by a person who is not a cadre officer if the State Government is satisfied (a) that the vacancy is not likely to last for more than three months; or (b) that there is no suitable cadre officer available for filling the vacancy."If a person other than a cadre officer is appointed to a cadre post for a period exceeding three months, the fact shall be reported to the Central Government who may, on receipt of the report, direct the State Government to terminate his appointment and if he is likely to fill a cadre post for a period exceeding six months, the Central Government must seek the advice of the Union Public Service Commission and in the light of its advice, give suitable directions to the State Government. It was provided that R. 9 would not affect the existing arrangements made by the Central Government in connection with the Governments of Part B States and the State of Vindhya Pradesh at the time of the initial constitution of the cadre for certain cadre posts to be filled by non-cadre officers.

Reasoning: The decision in P. C. Wadhwas case, 1964 (4) SCR 598   = (AIR 1964 SC 423  ) is distinguishable. There a cadre Officer in the junior scale of pay was promoted to officiate in a post in the senior scale of pay and was thereafter reverted to his substantive post while other cadre officers junior to him continued to officiate in posts in the senior scale of pay. As against cadre officers junior to him, he had the right to hold the post in the senior scale of pay. The reversion while cadre officers junior to him continued in the senior scale amounted to not only reduction in rank but also withholding of promotion. This is all that P. C Wadhwas case, 1964 (4) SCR 598   = (AIR 1964 SC 423  ) decided. The facts in the present case are entirely different. The petitioner was not suitable to fill the vacancies in the senior post and non-cadre officers were appointed to fill the vacancies under Rule 9 of the Cadre Rules. No cadre officer junior to the petitioner was promoted to the cadre post before his promotion on November 17, 1956. Nor was he reverted after his promotion, while officers junior to him continued to hold senior posts. The petitioner was not reduced in rank, nor was his promotion withheld. He had no right to fill a vacancy in the senior posts or to draw salary in the senior scale between April 2, 1952 and November 17,making the regulations, the Central Government is to be guided by the exigencies of the service and the advice of the State Governments and the Union Public Service Commission. These authorities are the best judges of the appropriate regulations to be made in the matter. In the light of their expert knowledge they can adapt for this purpose the existing regulations for other methods of recruitment with suitable modifications or make other appropriate regulations having regard to the exigencies of the service. As a matter of fact, the Special Recruitment Regulations, 1960 framed under R. 4 (3) have adapted for the purposes of special recruitment the regulations for recruitment by competitive examination, promotion and selection with appropriatecontention is devoid of merit.The seniority of direct recruits inter se and promotees inter se is fixed by R. 4. The object of R. 3 (3) (b) is to fix the seniority of the promotees in relation to direct recruits. The promotees obtain promotion after long service in the State Civil Services. From the point of view of the promotee, his seniority should be counted from the date of his joining the State Civil Service. From the point of view of the direct recruit, the seniority of the promotee should be counted from the date of his appointment to the Indian Administrative Service. Rule 3 (3) (b) attempts to strike a just balance between the conflicting claims. It gives the promotee the year of allotment of the juniormost direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. If no direct recruit was officiating continuously in a senior post on an earlier date the seniority of the promotee is determined ad hoc. In our opinion, the rule is not arbitrary or discriminatory and is not violative of Articles 14 and 16 of theis no substance in this contention. Special recruits form a distinctare neither direct recruits nor promotees. Rule 9 of the Recruitment Rules does not treat them as direct recruits. Regulation 3 (3) of the Special Recruits Seniority Regulations properly adopts the formula applicable to promotees for fixing the seniority of special recruits enlisted by promotion, so that in the matter of seniority all officers recruited from the State Civil Service are placed on the same footing. The regulation is not arbitrary nor violative of Articles 14 and 16 of the Constitution.The seniority of the respondents was fixed in accordance with Regulation 3 (3) of the Special Recruitment Seniority Regulations, R. 3 (3) (b) of the Regulation of Seniority Rules and the proviso thereto, and is not open to any challenge.