R.R.S. CHOUHAN AND ORS.

UNION OF INDIA AND ORS.

\ MARCH 28, 1995

[S.C. AGRAWAL AND SUJATA V. MANOHAR, JJ.]

Service Law :

1 Indian Forest Service (Seniority) Rules-Rule 3-Post of Officer on c Special Duty (O.S.D.)-Creation of Carrying Lower Pay Scale and falling in the State Forest Service-Whether Senior post for the purpose of detennination of seniority in the Indian Forest Service-Held: No.-l'eriod of continuous officiation on the post O.S.D. till the appointment to the service-Not to be taken into account for purposes of seniority and for assignment of year

: D of allotment.

By Order dated January 23, 1974 the Government of Madhya Pradesh abolished 27 posts in the senior pay scale of Rs. 700-1250 in the Cadre of the Service and in their place equal number of Temporary posts of Officer On Special Duty in the pay scale of Rs. 680-1000-EB-1150 were

E created in the State Forest Service. It was stated in the order that this arrangement would remain effective for a period of one year or till the time of preparation of select list according to Rules of Indian Forest Service (Appointment by Promotion) Regulation, which ever is earlier. The said order was extended twice each time for a period of one year.

:F The appellants were promoted on the post of Officer on Special Duty in .the pay scale of Rs. 680-1150. While they were officiating as such, the -~ ... names of appellants were included in the select list for the year 1978 prepared by the Selection Committee under the Indian Forest Service -1 (Appointment by Promotion) Regulations 1966. Out of_ the select list 38

_ __G persons were appointed to the seryice for the year 1978. Since the appellants were lower down in merit they could not be appointed. The names of the appellants were not contained in the select list for the years 1979, 1981 & 1984. The names of the appellants were found in the select list of 1985 \ and they were appointed to the service by order dated Sept. 1985 and were allotted the Madhya Pradesh Cadre and were assigned 1981 as the ?r of H allotment for the purpose of seniority in the Service. The appellants moved 1158

/ R.R.S. CHOUHAN v. U.0.L 1159

an application before the Central Administrative Tribunal claiming that A they should have been given 1971 as the year of allotment for the purpose of senioritY, on the ground that they were continuously holding the senior post of Deputy Conservator of Forests, a Cadre post in the services uninterruptedly from 1977 till the date of their appointment to the service.

The said petition was dismissed. Hence these appeals.

ismissing the appeals, this Court

HELD: 1. Under Rule 3(2)(C) of the Seniority Rules a promoted t officer can avail the benefit of the period of continuous officiation in a I senior post for the purpose of seniority only if the following two require c ments are fulfilled at the time of his appointment to the Service:

(i) he had been continuously officiating in a senior posi; and

(ii) his name was in the select list during, the period of such con tinuous offication. [1164-F-G] D

2.1. The post of O.S.D. was not a 'Senior post' as defined in Rule 2(g) of the Indian Forest Service (Regulation of Seniority) Rules 1968, since it was not a post included and specified under item 1 of the Cadre of the State of Madhya Pradesh in the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations, i966. The said post was E also not a post included in the number of posts specified in items 2 and 5 of the said cadre. Moreover, from the order dated January 23, 1974 whereby the post of O.S.D. were created it would appear that the said posts were created in the State Forest Service in the place of posts in the senior pay scale of Rs. 700-1250 of the Service which were kept in abeyance F and the post of O.S.D. had a lower pay scale of Rs. 600-1150. This shows >---- that the post of O.S.D. was not a post equivalent to a cadre post in the >

senior pay scale of the Service but was a post in the State Forest Service r

having a lower pay scale than the post in the senior pay scale in the Service.

[1165-F-G]

2.2. Both the Union Government as well as the State Government G

have taken the stand that the appointment of the appellants as O.S.D. was on a post in the State Forest Service and that it was not a cadre post in the Service and, therefore, none of the requirements of the Indian Forest -Services Cadre Rules 1966, was required to be complied with. The appellants could succeed only if they were able to show that they were appointed H

A on the post f Deputy Conservator of Forests - a post included in the cadre of the Service in accordance with Rules 9 of the Cadre Rules. Since the appointment of the appellants was not on a post in the cadre of the Service, the requirements of Rule 9 were not complied with in making the appointment and for continuing them on the said post during the period 1977-85.

B Therefore, it could not be said that the appellants were continuously officiating in a senior post in the Service prior to their appointment to the Service in 1985. [1168-E-H]

3.1. Even if it be assumed that the appellants were continuously officiating in a senior post in the Service during the period 1977-85 they c could avail the benefit of the said officiation for the purpose of seniority becaus'e after the inclusion of their names in the select list of 1978 the next select list for the year 1979 did not contain their names and their names were also not included in the select lists for the years 1981 and 1984.

[1169-A]

D 3.2 The effect of the non-inclusion of the names of the appellants in the select list for the years 1979, 1981 and 1984 is that one of the requirements of Rule 3(2) (c) of the Seniority Rules which could enable the appellants to avail the benefit of continues officiation had ceased to exist.

The fact that the appellants were officfating in the senior post during the

E period when their names were not in the select list, by itself, would not enable them to obtain the benefit of such officiation for the purpose of seniority. The appellants were therefore, not entitled to count the period of continuous officiation in the post of O.S.D. during the period 1977-85 for the purpose of determination of their seniority and assignment of year allotment. [1169-G~H, 1170-A] F Harjeet Singh etc. v. Union of India & Ors., [1980) 3 SCR 459; Amrik Singh & Ors. v. Union of India & Ors., [1980] 3 SCR 485; Union of India etc.

v. G.N Tiwari & Ors., [19851 Suppl. 3 SCR 744 and Syed Khalid Razvi & Ors. v. Union of India & Ors., [1993] Suppl. 3 SCC 575, distinguished.

G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 68 of 1989 ..

From the Judgment and Order dated 9.8.88 of the Central Administrative Tribunal, Jabalpur Bench, Madhya Pradesh in Case No. 25 of

H 1986.

f l

~ ~.

R.R.S. CHOUHAN v. U.0.1. ['S.C. AGRA WAL, J.) 1161

K. Madhava Reddy, A Raghuvir, K.N. Shukla, N.N. Goswamy, A Gobinda Mukhoty, S.K. Gambhir, Vivek Gambhir, Ms. S. Bagga, Y.P.

Mahajan, C.V. Subba Rao, Anup G. Choudhary, Uma Nath Singh, Sakesh Kumar, S.K. Agnihotri, A Sharan, M.C. Agrawal, M/s. Agrawal & Mishra & Co., S.K. Jain and Devendera Singh for the appearing parties.

The Judgment of the Court was delivered by

S.C. AGRAWAL, J. In this appeal from the judgment dated August 9, 1988 passed by the Central Administrative Tribunal, Jabalpur Bench, Madhya Pradesh [hereinafter referred to as 'the tribunal') the question

that arises for consideration is whether for the purpose of determination C of seniority of the appellants in the Indian Forest Service [hereinafter . referred to as 'the Service'] the period of their officiation on the post of

Officer on Special Duty (O.S.D.) in the State of Madhya Pradesh since 1977 till the date of their appointment to the Service should be taken into account.

Appellants Nos. 1 to 9 were selected for appointment to the post of Assistant Conservator of Forests in the Superior Forest Service of the State of Madhya Pradesh in the year 1964. After completion of their training at

the Indian Forest College, Dehradun they were appointed as Assistant Conservator of Forests in the year 1966. Appellants Nos. 10 to 12 were E selected for such training in 1965 and on completion of their training they were appointed as Assistant C0nservator of Forests in 1967. They were all confirmed on the post of Assistant Conservator of Forests with effect from October 1, 1968. In the year 1966 the Service was constituted under the All India Services Act, 1951. The Service is governed by various rules and regulations, including the Indian Forest Service (Cadre) Rules, 1966 F .>-{hereinafter referred to as 'the Cadre Rules'], the Indian Forest Service

(Recruitment) Rules, 1966 [hereinafter referred to as 'the Recruitment r . Rules'), the Indian Forest Service (Appointment by Promotion) Regulation, 1966 [hereinafter referred to as 'the Appointment by Promotion Regulations') the Indian Forest Service (Regulation of Seniority) Rules, G 1968 [hereinafter referred to as 'the Seniority Rules'], made by the Central Government. The provisions in these Rules and Regulations are substantially the same as those contained in similar rules and regulations governing the Indian Administrative Service and the Indian Police Service.

By order dated January 23, 1974 the Government of Madhya Pradesh H

A abolished 27. posts in the senior pay scale of Rs. 700-1250 in the cadre of the Service and in their place equal number of temporary posts of Officer on Special Duty (O.S.D.) in the pay scale of Rs. 680-1000-EB-1150 were created in the State Forest Service. In the said order it was stated that "this arrangement would remain effective for a period of one year or upto B the time of preparation of select list according to Rule 5 of the I.F.S.

(Appointment by Promotion) Regulations, whichever is earlier". By order dated July 11, 19!5 the said order dated January 23, 1974 was extended for a further period of one year or till the preparation of select list for the ./ promotion to the Service, whichever is earlier, and by another order dated"' C May 25, 1976 it was further extended for a period of one year or till the \ preparation of select list for the promotion to the Service, whichever is earlier. By orders dated February 22, 1977, March 5, 1977, March 21, 1977 and April 22, 1977 the appellants were promoted on the post of O.S.D. in the pay scale of Rs. 680-1150. While they were thus officiating the names D of the appellants were included in the select list for the year 1978 prepared by the Selection Committee under the Appointment by Promotion Regulations in December, 1977. The said select list contained the names of 67 persons out of which 38 persons were appointed to the Service for the year

1978. Since the appellants were lower own in merit in the said select list they could not be appointed to the Service on the basis of the said select E list. The names of the appellants were not .contained in the select list for

 t!ie year 1979 which was prepared on December 19, 1978. The names of some of the appellants were contained in the select list for the year 1980 but the select list of 1981 did not contain the names of any of the appellants.

The names of some of the appellants were included in the select lists for F the years 1982 and 1983 but in the select list for the year 1984 the name of none of the appellants was included. The select list for the year .19~ contained the names of all the appellants and by order dated September ' 24, 1985 the appellants were appointed to the Service and were allotted the Madhya Pradesh Cadre. They have been assigned 1981 as the year of l G allotment for the purpose of seniority in the Service. Their clam is that they should have been assigned 1971 as the year of allotment as they were continuously holding the senior post of Deputy Conservator of Forests - a cadre post in the Service - uninterruptedly from 1977 till the date of their appointment to the Service and V.N. Khare, a direct recruit of 1971 batch, H had started officiating on the senior post in 1977. The appellants filed an

R.R.S.CHOUHANv. U.0.1.[S.C.AGRAWAL, J;] 1163

application (O.A 25/1988) before the Tribunal for the redress of their A grievance. The said petition of the appellants has been dismissed by the Tnbunal by judgment dated August 9, 1988.

-· Since the main question relates to seniority, ;; eference may be made to the relevant provisions contained in the Seniority-Rules. Rule 3 of the Seniority ltules provides for assignment of year of allotment. The relevant B parts othe said Rule are as under:-

"3. Assignment of year of allotment. -

(1) Every officer shall be assigned a year of allotment in accord- C. ance with provisions hereinafter contained in this rule.

(2) The year of allotment of an officer appointed to the Service shall be-

W xxxxxxxxxxxxxxxxxxxxx D

00 xxxxxxxxxxxxxxxxxxxxx

( c) Where an officer is" appointed to the Service by promotion in accordance with rule 8 of the Recruitment Rules, the year of allotment of the junior-most among. the officers recruited E to the Service in accorwmce with rule 7 or if no such officer is available the year of allotment of the junior most among the officers recruited to the Service in accordance with rule 4(1) of these Rules who officiated continuously in a senior

. ' post from a date earlier then the date of commencement of F such officiation by the former:

Provided that seniority of officers who are substantively holding the post of a Conservator of Forests or a higher post on the date of constitution of the Service and are not adjudged suitable by the SpeclaI Selection Board in acc0rdance G with the Indian Forest Service (Initial Recruitment) Regula-, tions, 1966, but who may later on be appointed to the Service under rule 8 of the Recruitment Rules shall be determined ad hoc by the Central Government in consultation with the State Government concerned and the Commission.

Explanation 1. - In respect of an officer appointed to the Service by promotion in accordance with sub-rule (1) of rule 8 of tJi.e Recruitment Rules, the period of his continuous officiation in a senior post shall, for the purpose of determination of his seniority, count only from the date of the inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post, whichever is later." \ x x x x x x x x x x x x x x

Under Rule 3(2)(c) the year of allotment of an officer who has been C appointed to the Service by promotion is determined by giving him the benefit of continuous officiation in a senior post and be is given the same year of allotment as is given to the junior most among officers directly recruited in the Service who officiated continuously in a senior post from, the date earlier than the date of commencement of such officiation of the : promoted officer. Explanation 1 expressly prescribes that the benefit of the D period of continuolis officiation can be availed by a promoted officer only from the date of the inclusion of his name in the select list or from the date of his officiating appointment to such senior post, whichever is later. This means that the two requirements, namely, officiating appointment to the senior post and inclusion of the name in the select list, must be fulfilled E before the benefit of officiation can be availed by a promoted officer for the purpose of seniority. From the said provisions it necessarily follows that both these conditions must be satisfied not only at the stage of commen- _cement of the period of officiation but should continue to be satisfied during the entire period of officiation till appointment is made to the Service. In other words, under Rule 3(2)(c) of the Seniority Rules a F promoted officer can avail the benefit of the period of continuous officiation in a senior post for the purpose of seniority only if the following two requirements are fulfilled at the time of his appointment to the Service:

(i) he had been continuously officiating in a senior post; and

(ii) his name was in the select list during the period of such continuous officiation.

In order that they may be able to claim the benefit of the aforesaid provisions for the ptlrpose of determination of their seniority in the Service H the appellants must first show that they were continuously officiating in a

RR.S. CHOUHAN v. U.O.I. (S.C. AGRA WAL, J.] 1165

senior post from 1977 till their appointment to the Service in 1985. The A expression 'senior post' is defined in Rule 2(g) of the Seniority Rules in the following terms :-

"'Senior post' means

a post included and specified under item 1 of the Cadre of each B State in the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966,

and includes -

a post included in the number of posts specified in items 2 and 5 C of the said cadre, when held on senior scale of pay, by an officer recruited to the Service in accordance with subrule (1) of rule 4 of rule 7 of the Recruitment Rules."

According to the aforesaid definition a senior post is confined to the posts included and specified under item 1 of the Cadre of each State D in the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966 and a post included in the number of posts specified in items 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.

The question is whether the post of O.S.D. on which the appellants were appointed in 1977 is a senior post under Rule 2(g) of the Seniority Rules. The said post is not a post included and specified under item 1 of the Cadre of the State of Madhya Pradesh in the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966. It is also not a post included in the number of posts specified in items 2 and 5 of the

aid cadre. Moreover, from the order dated January 23, 1974 whereby the posts of O.S.D. were created it would appear that the said posts were

~~- created in the State Forest Service in the place of the posts in the senior pay scale Rs. 700-1250 of the Service which were kept in abeyance and the G post of O.S.D. had a lower pay scale of Rs. 600-1150. This shows that the post of O.S.D. was not a post equivalent to a cadre post in the senior pay scale of the Service but was a post in the State Forest Service having a lower pay scale then the post in the senior pay scale in the Service.

Shri M; adhava Reddy, the learned senior counsel appearing for the H

A appellant, has, however, urged that though the appointment of the appellants was made on the posts of O.S.D. but they were actually discharging the duties of Deputy Conservator of Forests during the period 1977-1985 and that the post of Deputy Conservator of' Forests is a senior pay scale post in the cadre of the Service and, therefore, the appellants must be treated to have continuously officiated on a senior post in the Service. We B find it difficult to accept this contention in view of the provisions contained in Rules 8, 9 and 10 of the Cadre Rules which provide as follows:,-

_;:,. - . ·, . .-· ... ,, '

"Rule 8. Cadre posts to be filled by cadre officers.- Save as otherwise provided in these rules every cadre post shall be filled

by a cadre officer. "" \ - Rule 9. Temporary appointment of non-cadre officers to ca~~ posts. - (1) A cadre post in a State may be filled by a person who is not a cadre officer if the State Government or any of its Heads of Department to whom the State Government may delegate its powers of making appointments to cadre posts is satisfied -

(a) that the vacancy is not likely to last for more than three months; or

(b) that there is suitable cadre officer available for filling the vacancy .

. (2) Where .in ~; y State. a person other than a cadre offieer is appointed to a cadre for a period exceeding three months, the State Government shall forthwith report. the fact to the Central Government together with the reasons for making the appointment.

' ' -~

(3) On receipt of a report under sub-rule (2) or otherwise, the '"' Central Government may direct that the State Government shall terminate the appointment of such person and appoint thereto a -.. cadre officer, and where any direction is so issued, the State r Government shall accordingly give effect thereto.

'. ( 4) Where a cadre post is likely to be filled by a person who is not a cadre officer for a period exceeding six months, the Cclilhl Government shall report the full facts to the Union Public Seniice Commission with the reasons for holding that DO auitable offloer

\.:

R.R.S. CHOUHAN v. U.0.1. [S.C. AGRAWAL, J.) .i.167

is available for filling the post and may in the light of the advice A given by the Union P!lblic Service Commission give suitable direction to the State Government concerned.

Rule 10. Report to the Central Government of vacant cadre posts.- Cadre posts shall not be kept vacant or held in abeyance for periods exceeding six months without the approval of the Central B Government. For this purpose the State Government shall mc a report to the Central Government in respect of the following matter, namely:-

(a) the reasons for the proposal;

(b) the period for which the State Government proposes to keep thost vacant or hold it in abeyance;

(c)

(d)

"· the provisions, if any, made for existing incumbent of the post; and

whether it is proposed to make any arrangement for the performance of the duties of the post to be kept vacant or held in abeyance, and if so, the particulars of such arrangements. n

These rules show that while Rule 8 requires that every cadre post shall be filled by a cadre officer, Rule 9 lifts the embargo in certain circumstarlces and permits a ca<Jre post to be filled by a persou..Wbo is not a cadre office~ provided the State Government concerned is satUfied that

. either (i) the vacancy is not likely to last for more than three months, or p __..(ii) there is no suitable eadre officer available for tilling the vacancy, In.

case the appointment is for a period exceeding three months sub-rule {2) of Rule 9 requires that the State Government shall report forthwith to the Central Government the fact of such appointment together with reasons for making such appointment and under subrule (3) of Rule 9 on receipt of such report the Central Government may direct that the State Govemmeat shall terminate the appointaeat cf such person and appoint thereto a cadre officer and where such direction is so issued the State Government is required to give effect thereto. In cases where cadre post is likely to be

filled by a person who is not a cadre officer for a period exceeding six months sub-rule ( 4) of Rule 9 further requires that the Central Govern- H ·

A ment shall report the full facts to the Union Public Service Commission with reasons for holding that no suitable cadre officer is available for filling the post and may in the light of the advice given by the Union Public Service Commission give suitable directions to the State Government concerned. Rule 10 lays down that cadre post shall not be kept vacant or held B in abeyance for periods exceeding six months without the approval of the Central Government and the Stale Government is required to make a report to the Central Government in respect of the matters specified in

clauses (a) to ( d) of the said Rule. f

As regards keeping in abeyance the. posts in the senior pay scale in C the Service under order dated January 23, 1974 the stand of the Union of India is that no report was made by the State Government to the Central Government as required by Rule 10 and the Central Government did not give its approval to keep these posts in abeyance. Since, we are not required to consider the legality of the order of the State Government D dated January 23, 1974, keeping the said posts in abeyance, we do not propose to go into this question.

We will, however, examine whether the provisions of Rule 9 were complied with in so far as the appointment of the appellants on a cadre E post is concerned. In this regard both the Union Government as well as the State Government have taken the stand that the appointment of the appellants of O.S.D. was on a post in the State Forest Service and that it was not a cadre post in the Service and, therefore, none of the requirements of Rule 9 of the Cadre Rules was required to be complied with. The F appellants can succeed only if they are able to show that they were appointed on the post of Deputy Conservator of Forests - a post included in the cadre of the Service - in accordance with Rule 9 of the Cadre Rules.

We, however, find that the appointment of the appellants was not on the post of Deputy Conservator of Forests but was on the post of OSD, a post carrying lower pay scale and falling in the State Forest Service. Since the G appointment of the appllants was not on a post in the cadre of the Service

the requirements of Rule 9 were not complied with in making the appointment and for continuing them on the said post during the period 1977-85.

In our opinion, therefore, it cannot be said that the appellants were continuously officiating in a senior post in the Service prior to their H appointment to the Service in 1985.

R.R.S. CHOUHANv. U.O.I. [S.C.AGRAWAL, J.] 1169

Moreover, even if it be assumed that the appellants were con- A tinuously officiating in a senior post in the Service during the period 1977-85 they cannot avail the benefit of the said officiation for Jie purpose of seniority because after the select list ofl978 which included their names the next select list for the year 1979 did not contain their names and so also their names were not included in the select list for the years 1981 and

1984. The names of some of the appellants were included in the select lists for the years 1980, 1982 and 1983 and names of all the appellants were included in the select list for the year 1985. The submission of Shri Madhava Reddy is that the non-inclusion of the names of the appellants in the select lists for the years subsequent to the year 1978 is of no consequence because the names of the appellants were included in the select list for the year 1978 and since they were officiating on a senior post on the date of such inclusion in 1978 and they continued to officiate till 1985 they are entitled to count the entire period of officiation for the purpose of assignment of year of allotment under Rule 3 (2)( c) of the Seniority Rules.

We do not find any merit in this submission. As indicated earlier Explana- D tion 1 to sub-rule (2)( c) of Rule 3 envisages that an officer who is appointed to the Service by promotion can take the benefit of the period of continuous officiation in a senior post for the purpose of seniority if, on the date of his appointment to the Service, (a) he had been continuously officiating in a senior post, and (b) his name was in the select list. Both E these requirements must co-exist not only at the stage of commencement of the period but also during the entire period for which benefit is claimed.

If either of these conditions ceases to exist at any stage before the appointment to the Service, there will be a break in the continuity of officiation and the benefit of officiation would not be available for the purpose of p seniority. This may occur either due to posting on a post which is not a senior post in the cadre or due to non-inclusion of the name in the select list for the subsequent year. The consequence in either event is the same and the period of officiation cannot be taken into account for the purpose of seniority. Therefore, the effect of the non-inclusion of the names of the appel!ants in the select lists for the year 1979, 1981and1984 is that one of G the requirements of Rule 3(2)( c) of the Seniority rules which could enable appellants to avail the benefit of continuous officiation had ceased to exist.

The fact that the appellants were officiating in the senior post during the period when their names were not in the select list, by itself, would not H

A enable them to obtain the benefit of such officiation for the purpose of seniority. The appellants are, therefore, not settled to count the period of continuous officiation in the post of O.S.D. during the period 1977-85 for the purpose of deterinination of their seniotity and assignment of year of allotment and the Tribunal has rightly denied the benefit of such officiation • B to the appellants.

Shri Madhava Reddy has placed reliance on the decisions of this Court in Harjeet Singh etc. v. Union of India & Ors., (1980) 3 SCR 459; Amrik Singh & Ors. v. Union of India & Ors., [1980) 3 SCR 485, and Union of India etc. v. G.N. Tiwari & Ors., [1985) Suppl. 3 SCR 744. In Harjeet C Singh (supra) this Court was dealing with the rules governing the Indian Police Service and in the context of temporary appointment of non-cadre officers to cadre postl:nthe Indian Police Service this Court has referred to the requirements, of rule 9 of the Indian Police Service (Cadre) Rules, 1954 and has observed that such appointment is sub]ect to the directions D of the Central Government who may terminate such appointment and that the Central Government too is bound to obtain the advice of the Union Public Service CommisSion if appointment is to extend beyond six months.

InAmrik Singh (supra}, which also relates to the Indian Police Service, this Court was again dealing with Rule 9 of the Indian Police Service (adre) Rules, 1954 and has observed :- E

"In the present case, no such report by the State Government to the Central Governmnt was sent, no consultation by the Central Government With thC Commission was done. We are agreed that by-passing the Public Service Commission bespeaks prime facie

improprity, but we are not inclined.to consider this grievance as destrtictive of the officiation of Ahluwalia in the special cospectus of facts present here. For one things, Ahluwalia has nothing to do with the error; for example, no senior of Ahluwalia suffered, thirdly, the Central Government, in exercise of its power to relax the Rules, in good faith and, indeed in equity, did relieve the officer against this violation." [p.498)

In the said decision though this Court has disapproved the violation of the provisions of Rule 9 but in the facts of that case it was held that the officiation could be taken into consideration. In the recent decision in Syed H Khalid Razvi & Ors. v. Union of India & Ors., [1993) Supp 3 SCC 575, ~-

R.R.S.CHOUHANv. U.0.1.[S.C.AGRAWAL, J.) 1171

Court, in the context of rules governing the Indian Police Service, has A observed:

"In other words, where the vacancy/vacancies continue for more than three months, the prior concurrence of the Central Government is mandatory. If it continues for more than six months prior approval of the Union Public Service Commission is also man- B datory. Any appointment in violation thereof is not an appointment in accordance with the law." (p.598)

In G.N. Tiwari (supra) this Court, in the facts of that case, has held ! that there was a deemed approval by the Central Government to the C officiation in the cadre post of the officers belonging to the State Service since the State Government had sent a report to the Central Government and the Central Government had also asked for consolidated proposal of officiation on non-cadre officers on cadre posts. This decision has no application to the present case because no such report was sent by the State Government and the Central Government was not even apprised of the D appointment of the appellants and, therefore, there is no question of deemed approval of the officiation of the appellants on a senior post in the Service by the Central Government. ·

. As pointed out earlier, the appellants were never appointed to cadre E post in the Service and their appointment was on the post of O.S.D. in the State Forest Service. The .cases on which reliance has been placed by Shri Madhava Reddy do not, therefore, lend any support to the case of the appellants.

Another contention that has been urged by Shri Madhava Reddy is p that under Rule 4(2) of the Cadre rules it is incumbent on the part of the Central Government to re-examine the strength and composition of each cadre in consultation with the State Government concerned at the interval of three years. It has been pointed out that after the constitution of the Service in 1966 the cadre review was due in 1969, 1972 and 1975 but no such review was done till 1977 and thereafter it was done in 1981 and no G review was done in 1984. The appellants were included in the select list of 1978 after the review of 1977. The Tribunal has, therefore, rightly pointed out that the appellants cannot be said to be prejudiced because after such review was done in 1977 the names of the appellants were included in the select list of 1977 but in spite of such inclusion they could not be appointed. H

A As regards non-revision of the cadre prior to 1977 the claim of the appellants must be held to be belated and was rightly rejected by the

Tribunal. "\'

For the reasons aforementioned we do not find any merit in these appeal d it is aceordingly dismissed. But in the circumstances the parties B are left tti bear their own costs.

K.S.D.

Appeal dismissed.