GUDUR KISHAN RAO AND ORS.

SUTIRTHA BHATTACHARYA AND ORS.

....

FEBRUARY 23, 1998

[S. SAGHIR AHMAD AND G.B. PATTANAIK, JJ.] B

~-<

Service Law :

Indian Administrative Service (Recruitment) Rules, 1954: Rules 8 and

9. c

All India Services-Ceiling-Supernumerary posts-Adding or Change in ceiling-Effect of-Validity-State Civil Service Officers-Promotion to /AS-Ceiling of 33-113% laid down in R.9(1)-14 supernumerary posts created by issuing notification to accommodate State Civil Service Officers who were D illegally kept out of promotion to the !AS-These posts added to Item 3 of the Schedule to the Cadre Strength Regulations-However, no corresponding increase made against Items 1 and 2-Held: Any Regulation merely increasing the number of posts in Item 3 without corresponding increase of Items 1 and 2 is violative of the ceiling of 33-113% and also the mandate of the Cadre Strength Regulation itself-Hence, the said ceiling cannot be exceeded by E creation of supernumerary posts against Item 3-Therefore, the said notification declared invalid-Consequently, another notification promoting the State Civil Service Officers against the supernumerary posts also declared inva/id-IAS (Cadre) Rules, 1954, R.4(1)-/AS (Fixation of Cadre Strength) Regulations, 1955, Sch. Items 1 to 3.

F Service Rules and Regulations-Interpretation of-Harmonious

I construction-Held: Court would attempt to make a harmonious construction of different sets of rules and regulations to try to save them-But if they cannot be saved in any manner they would struck down-Interpretation of Statutes.

Appointment and Promotion-Notifications created supernumerary posts and promotions of State Civil Service Officers to the /AS-Validity of-Held: > Most of the promotee officers might have superannuated in the meantime- Therefore, promotions already made need not be disturbed-However, officers promoted in excess of ceilling limit allowed to continue and adjusted in H

A subsequent years -But such continuance will not confer on them the benefit of seniority and the year of allotment-Aforesaid directions issued with a view to doing "complete justice between the parties. "--Constitution of India,

1950, Art. 142.

All India Service-Condition-Scheme and History of-Stated and B explained-All India Services Act, 1951-All India Services (Conditions of Service-Residuary Matters) Rules, 1960--Indian Civil Administrative Service Cadre Rules, 1950--Constitution of India, 1950, Art. 312(1).

The appellants were promottee officers of the Indian Administrative C Service (JAS) who were initially appointed as Deputy Collectors in the State

Civil Service. The Government of India, Ministry of Personnel issued a Notification dated 15-12-1993 creating 14 supernumerary posts in the IAS to accommodate the appellants who were illegally kept out of promotion to the IAS for the year 1987. These 14 supernumerary posts were added by amending Item 3 in the Schedule to the Indian Administrative Service (Fixation D of Cadre Streni,, ith) Regulations, 1955. By another Notification dated 16-12- 1993 the Government of India appointed the appellants to the IAS.

The respondents, who were direct recruit IAS officers, challenged the said two Notifications before the Central Administrative Tribunal. The Tribunal quashed the two Notifications on the ground that these contravened E Rule 9 of the Indian Administrative Service (Recruitment) Rules, 1954.

Hence this appeal.

On behalf of the appellants it was contended that the Notification dated 15-12-1993 was a rule made under Section 3(1) of the All India Services Act, 1955 and could not be struck down on the ground that it contravened Rule F 9 of the Recruitment Rules; and that since the Recruitment Rules and the Notifications were made under Section 3(1) of the Act both must be harmonised.

On behalf of the respondents it was contended that Ruic 9(1) of the Recruitment Rules prescribed a ceiling of 33-1/3/% of the number of posts G shown againt Items 1 and 2 of the Schedule to the Regulations and therefore, the Notification dated 15-12-1993 violated Ruic 9(1) since it did not make a corres11onding increase against Items 1 and 2.

Dismissing the appeal, this Court

HELD : 1.

Under Rule 9 of the Indian Administrative Service

G.K. RAO v. S. BHATTACHARYA 1055

(Recruitment Rules), 1954, there is a prohibition that .the number of persons A recruited under Rule 8 in any State and at any time will not exceed 33-1/ 3% of the number of posts shown against Items I and 2 of the Cadre in relation to the State. The Indian Administrative Service (Fixation of Cadre Strength) Rei,'lllations, 1955 framed by the Central Government under Rule 4(1) of the India Administrative service (Cadre) Rules, 1954 categorically B fixed the number of posts borne, the ~1reni,>th and composition of he cadre -< for each of the States and so far as Item 3 dealing with the promotion by

Selection under Ruic 8 of the State Civil Service Officers is concerned it has to be 33-1/3% of Items 1 and 2 of the Schedule to the Regulations. That being so, any Regulation merely increasing the number of posts in Item 3 without any corresponding increase of Items 1 and 2 on the face of it would c be violative of the very mandate of the Regulation and at any rate it would violate Rule 9 of the Recruitment Rules. The Regulation itself having been framed under Rule 4(1) of the Cadre Rules and Rule 8 having provided for a maximum of such promotion, the impugned notification increasing the number of posts only for State Civil Service Officers to be promoted D contravenes Rules 8 and 9 of the Recruitment Rules and the mandate of the

...

Regulation itself. Having considered the provision of the Recruitment Rules, the Cadre Rules and the Cadre strength Regulation the conclusion is that the impugned notification dated 15-12-1993 contravenes Rule 9 of the Recruitment Rules and under the scheme of the All India Services Act, 1951, Rules and Regulations it is not possible to sustain the notification in E question by giving any harmonious construction to the provisions. The Notification dated 16-12-1993 promoing the appellants to the Indian

Admini~1rative Service must also be held invalid. (1065-G-H; 1066-A-D]

Mohinder Singh Gill v. The Chief Election Commissioner, (1978] 2 SCR 272, relied on.

2. It is a cardinal principal of construction that when Rules and Regulations have been framed dealing with different aspects of the conditions of service of the employees the courts would attempt to make a harmonious construction and try to save the provisions and not to strike down the same.

But where it is not possible even with doing some amount of violence to the G language used in the notification to give a harmonious construction, then necessarily the court will have no other option to set aside a notification if the said notification contravenes any provisions of the Act or the Rule or is othenvise constitutionally invalid. (1065-C]

3. Even prior to the independence of the country, in a conference held H

A under the Chairmanship of Sardar Vallabhbhai Patel a decision had been taken to create two All India Services such as Indian Administrative service and Indian Police Service to re11lace the former India Civil Service and Indian Police. It was further decided that the recruitment to these two

sen•ices should be made through the Federal Public Service Commission on B the basis of annual Com11etitive Examination. In the very same meeting a further decision had been taken that a maximum of 25% of the cadre post in the All India Services should be thrown open to the State Civil Service Officers and State police of outstanding merit In 1mnuance of the aforesaid decision the two All India Services were formed and they were 1mt on statutory basis under the Indian Civil Administrative Service Cadre Rules, C 1950. The Parliament then passed the All India Services Act, 1951 under Article 312(1) of the Constitution which empowers the Government of India to make, after conultation \\ith the State Government, mies for the regulation of recruitment and conditions of service of the persons a11poi11ted to an All India Service. In exercise of power under Section 3 of the Act-The D Recruitment Rules, The Cadre Rules, The All India Sen•ices (Conditions of Service-Residuary Matters) Rules, 1960 have been made by the Central Government The Cadre Rules enable the Central Government to determine the strength and composition of the cadre in each State by framing regulation and in exercise of such power the Cadre Strength Regulations, 1955 have E been framed by the Central Government and not only the total authorised

stren1,, oth of the cadre for each State has been indicated but also it indicates the number of posts for different categories of posts within the cadre. Thus, the Act, the Rules and the Regulations are a complete set of provisions dealing with different a~11ects of the service conditions to Indian Administrative Sen-ice and the entire scheme contained in these mies and regulations have F to be borne in mind in answering the que~1ions involved in the present case.

(1063-G-H; 1064-A-D)

4. As a necessary consequence of the quashing of the notification dated 16-12-1993 the appointment of the 14 officers included therein to the Indian Admini~1rative Service with retrospective effect would stand invalidated, G though as a matter of fact the said notification has been given effect to and most of the State Civil Service Officers promoted thereunder with retrospective effect might have superannuated in the meantime. Therefore, with a view to doing complete jm1ice between the parties under Article 142 of the Constitution, the promotions already made need not be disturbed at H this length of time. However, those officers who were promoted in excess of

G.K.RAOv. S. BHATTACHARYA [G.B. PATTANAIK, J.] 1057

the ceiling limit are permitted to continue in the IAS and to be ad.justed in A the subsequent years. But such continuance will not confer on them the right to count their seniority and year of allotment. [1068-B-E)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6525 of 1994 Etc.

From the Judgment and Order dated 26.8.94 of the Central Administrative Tribunal, Hyderabad in O.A. No. 118 of 1994.

V.R. Reddy, Additional Solicitor General, Arvind Bobde, P.P. Rao, Venkat Ramani, P.Anoop, S. Muralidhar, P.S. Narasimba, V.G. Pragasam, Ms. Sashi C Kiran, Anil Katiyar, Rajeev Sharma, Ms, Neelam Sharma, Ajay Sharma, Rupesh Kumar, T.C. Sharma, P. Venkat Reddy and S.U.K. Sagar for the appearing parites.

The Judgment of the Court was delivered by

G.B. PATTANAIK, J. These eight appeals are directed against the order of the Central Administrative Tribunal, Hyderabad Bench dated 26.8.1994, and involve common questions of law. By the impugned order the Tribunal has quashed the two Notifications dated 15.12.1993 and 16.12.1993 of the Government of India, Ministry of Personnel inter alia on the ground that the Notifications in question amending the Indian Administrative Service (Fixation

of Cadre Strength) Regulations (hereinafter referred to as 'Regulation') contravenes Rule 9 of the Indian Administrative Service (Recruitment) Rules, 1954, (hereinafter referred to as the 'Recruitment Rules). TI1e appellants in all

t11ese appeals are t11e promotees to the cadre of Indian Administrative Service who had been recruited by way of direct recruitment to the post of Deputy F

Collectors in t11c State Service. Respondents nos. I to 4 in Civil Appeal No 6525 of 1994 are tlle direct recruits to tlle Indian Administrative Service. These respondents - direct recruit !AS officers had filed QA No. ll8 of 1994, challenging the Notifications of the Government of Indian dated 15.12. 1993 and 16.12. 1993, as already stated. Anot11er direct recruit !AS officer had filed OA No 542 of 1994 and yet another direct recruit !AS officer had filed OA G No. 543 of 1994 and all the three OAs were disposed of together by the Tribunal by order dated 26. 8.1994. Though the dispute essentially centres round t11e year of allotment in the cadre of Indian Administrative Service between the direct recruits and t11e promotees but the said dispute arises because of several earlier orders passed by the Tribunals and the two H

A Notifications were issued by the Union Government in implementation of the }- directions of the Tribunal. It would, therefore, be necessary to set out facts in brief.

The appellants were initially recruited to the post of Deputy Collectors

B in the State of Andhra Pradesh and were appointed by order dated 29. 12.1978 issued by the Government of Andhra Pradesh. On getting posting orders in different places in the State one of them (Umamalleswar Rao) joined his post on the very next day as his posting was at Hyderabad itself. The other appointees joined their respective posts on different dates in January 1979 depending upon the time that was required for them to go and join the post. c The State Government issued G.O. No. 493 dated 8.4.1992, indicating that the services of these officers would count from the date on which the respective higher rank holders in the merit list joined the duty in January 1979. On account of the aforesaid Government Order Umamalleswar Rao's date of joining became 18.1.1979 though factually he had joined the duty on 13.12.1978.

Under the Provisions dealing with promotion to the IAS cadre, an officer belonging to the State Civil Service must complete 8 year of service on lst January of the year in which the Select Committee meets in order to be eligible for being considered for promotion. Umamalleswar Rao who had factually joined as Deputy Collector on 13th December, 1978, but was deemed to have joined the post on 18.1.1979 because of the Government Order dated 8.4.1982 E was not eligible for being considered for promotion in the year 1987 as he could not complete 8 years by l. l.1987. He, therefore, filed an application before the Andhra Pradesh Administrative Tribunal which was registered as

R.P. No. 9173 of 1987 contending therein that his services from the date of his joining on the post of Deputy Collector 13th December, 1978 should be

F counted. Similar applications were also filed by some other officers which were registered as R.P. No. 7311 of 1987 and R.P. No 7194 of 1987. In case \ ofUmamalleswar Rao the Tribunal granted an interim direction that his case be placed before the Select Committee who is to prepare Select List for the year 1987. The Select Committee which met on 15.12.1987 considered the cases of 26 officers for promotion who had completed 8 years of service on G 1.1.1987. The number of vacancies which were anticipated for being filled up by promotion was 13. All the 26 officers who were considered by the Selection

Committee were included in the Select List for the year 1987 as the Select List was to be prepared for twice the number of vacancies. The Selection Committee also gave their respective positions in the Select List. Out of the said Select List 7 were promoted to the IAS earlier to 16.12.1988 and 5 were promoted H w.e.f 16.12.1988. The 13th man in the Select List was not promoted as certain

enquiry against him was pending. TI1e 14th man, one Shri Ram Chandra A Murthy filed an application before the Tribunal, which was registered as OA No 223 of 1989, claiming that he was entitled to be promoted against 13th vacancy. That application was allowed by the Tribunal and special Leave Petition against said judgment by the Union of Indian stood dismissed. He was, therefore, appointed to the Indian Administrntive service w.e.f 16.12.1988 B the date on which the vacancy was available. In the meantime, the State Tribunal heard the Petitions filed before the Tribunal by the promotees and by Order dated 22.3.1988 quashed G.O.M No 493 dated 8.4.11982 and held that the services of the Deputy Collectors has to be reckoned from the date of their appointment and the case of such of the Deputy Collectors who had not been considered for being included in the Select List of !AS of 1987 on C account of non completion of 8 years of service by 1.1.1987 should be reconsidered. In implementation of the aforesaid direction of the Tribunal Government order was issued on 31.5.1990 regularising services of the appellants with effect from the date of their appointment order i.e. 29.12.1978.

TI1e appellants, therefore, made a Representation to the government to review 1987 Select List for the !AS. Since no orders were passed on the representation, D two Petitions were filed before the Tribunal being OA No. 442 of 1988 and OA No 206 of 1991 for a direction to the Authority to constitute a Review Committee for re-drawing up of the Select List for the year 1987. The Tribunal disposed of those matters by Order dated 21.1.1992 directing the Government to constitute a Review Committee and to review t11e case of all those who E became eligible for consideration on completion of 8 years of service by 1st January, 1987 and if, ultimately they are found suitable to promote them to the !AS with effect from the date their juniors were promoted. In accordance with the direction of the Tribunal as aforesaid, the Selection Committee was constituted and on re-consideration of the case of the appellants along with ot11er similarly situated officer, 14 oft11em were included in tlle Revised Select F List, thus the Select List for the year 1987 consisting of 26 officers initially selected and 14 others additionally selected. The Selection committee also thought it appropriate not to disturb t11e members of the original Select List, under such circumstances the State Government t11ought it appropriate to create supernumerary post in the IAS to accommodate 14 officers who were G brought into tlle Select List of 1987 on reconsideration. The State Government sent t11e necessary proposal to the Central Government and at tllat stage some of t11e direct recruited officers of the IAS filed appllcation before t11e Tribunal which was registered as OA No 457 of 1993, contending that the proposal of the State Government for creation of 14 additional supernumerary posts in tlle IAS is without jurisdiction. That application was disposed of with H

A the direction to the State Government to consider and dispose of Representations filed by the direct recruits in accordance with law. 111e Central Government examined the proposal of the State Government and finally issued the Notification dated 15.12.1993, by which Notification the Cadre Strength Regulation was amended for the State of Andlrra Pradesh and 14 supernumerary posts were created. 111e Government of Indian further B issued a Notification on 16.12.1993, appointing the 14 persons of tl1e State

Civil Services to the Indian Administrntive Service who were brought into the Select List of the year 1987 by the Review Selection Committee. A Review Petition appears to have been filed by the State Government at the instance of t11e Central Government before tl1e Tribunal and Contempt petition also C have been filed by tl1e present appellants before tlle Tribunal but all t11ose petitions were disposed of by the Tribunal on a finding tliat tlle directions of tl1e Tribunal have been duly complied witl1 and the earlier order of tlle Tribunal does not contain any error on the face of tl1e order requiring to be reviewed. The direct recruit IAS officers being aggrieved by the Notifications of tlle Government of India 15.12.1993 and 16.12.1993, approached tlle Central D Administrative Tribunal and tl1e said Tribunal by tlle impugned order dated 26 August, 1994, having allowed the same and having quashed the Notifications, tlle present appeals have been preferred.

Mr. Salve tlle learned senior counsel appearing for the appellants contended tl1at tl1e Notification dated 15.12.1993 tllough purports to be an E amendment to the Regulation but the same having been issued in exercise of powers conferred under sub-section (1) of Section 3 of the All Indian Service

Act, 1951 (hereinafter referred to as 'the Act') is essentially a rule and that rule cannot be struck down on the ground that it contravenes Rule 9 of tl1e Recruitment Rules. The learned counsel further contended tlle Recruitment F Rules also having been made in exercise of power under Section 3( 1) of the Act and the Notification dated 15.12.1993 also having been made in exercise of said power, attempts should be made for harmonising botll the rules and at any rate if both tlle rules cannot be allowed to operate on a harmonious construction tllen tlle later rule being made for a specified purpose must prevail. Mr. Salve, tlle learned senior counsel further argued that by Notification G dated 15.12.1993 tl1e cadre strengtl1 of Andlrra Pradesh has been increased by 12 to accommodate tlle State Civil Service Officers who were illegally kept out of consideration while preparing the select list of tlle year 1987 to implement tl1e orders of tlle. Tribunal in their favour and by such increase of cadre strengtll for a limited period there has been no contravention of Rule 9 of tlle H Recruitment Rules, and tl1erefore, tlle impugned judgment of tlle Central

administrative Tribunal is erroneous. Mr. Bobde, the learned senior counsel A

~ appearing for the appellants in some of the civil appeals contended that in service jurisprudence creation of post and recruitment to the post are two different concepts. Under Rule 9 of t11e Recruitment Rules the embargo is against recruitment, and therefore, it prohibits appointment by promotion to

t11e IAS in any State under Rule 8, exceeding 33 1/3 per cent of tlle number of posts shown against items J and 2 of the Regulations. But the Notification B dated 15.12.1993 merely creates 12 posts for periods specified therein by increasing the authorised strengt11 of the cadre and as such it does not contravene Rule 9 of the Recruitment Rules. Mr. Reddy t11e learned Additional Solicitor General, appearing for t11e Union of India contended witll force that special situation having arisen on account of directions given by the Central C Administrative Tribunal and against tlle said directions t11e Union having come to this Court and special leave petition having been rejected, to implement t11e directions of the Tribunal the Union Government had no other lternative tlian to increase t11e cadre strength to accommodate the promotes officers in the IAS and in such special situation the Central Government has exercised powers under Section 3(1) of the Act itself, and therefore, the Notification D issued in exercise of such power could not have been struck down by t11e Tribunal.

Jvfr. P.P. Rao the learned senior counsel appearing for the respondents 1 to 4, who were the direct recruit !AS officers, on tlle other hand submitted E t11at under the scheme of sen, ice rules and regulations determining tlle service conditions of employees in the Indian Administrative Service cadre, it is not possible to read a particular Notification in isolation. According to Mr. Rao, Section 3(1) of t11e Act confers power on the Central Government to make rules regulating the recruitment and conditions of service of persons appointed to the All Indian Service. In exercise of such power t11e Central Government F / has made t11e Recruitment Rules of 1954, which prohibits promotion of the number of persons from State Civil Service to tlle cadre of IAS in excess of 33 1/3 per cent of t11c posts shown in items 1 and 2 of tlle cadre in relation to the State in question. The Central Government has also made, in exercise of power under Section 3(1) of the Act, the Indian Administrative Service G (Cadre) Rules, 1954 (hereinafter referred to as 'the Cadre Rules') and Rule 4

~ of the Cadre Rules empowers the Central Government to determine tlle strength and composition of tlle cadre constituted under Rule 3 for each State or group of States by framing regulation in consultation with tlle State in question. In exercise of the aforesaid power contained in Rule 4(1) of the Cadre Rules tlle Central Government has made regulations and tlle strength and composition H

A of t11e cadre of the Indian Administrative Service of various States have been specified in the Schedule to these regulations. Under the aforesaid scheme when the central Government has issued a Notification dated 15.12.1993 thereby creating additional posts by increasing the cadre strength in item no. 3 of the Schedule for the State of Andhra Pradesh that would be beyond the power of the Government under the Regulation inasmuch as the deternrination B of the number of persons to be recruited indicated in item 3 of the Schedule is dependant upon the number of posts contained in items 1 and 2 of the said schedule i.e. the number of senior post under the State Government and Central deputation reserve at 40 per cent of item 1. In the aforesaid premises, the impugned Notification having directly contravened Rule 9 of Recruitment C Rules the Tribunal was wholly justified in quashing the said Notification. Mr.

Rao also contended tlrnt merely because the source of power exercised by the

Central Government in issuing t11e Notification dated 15.12.1993 have been indicated to be Section 3(1) of the Act and Rule 4 of the Rules it cannot have the status of Act or the Rule as it is merely an amendment to the Cadre Strength Regulation and has rightly been nomenclatured as Indian D Administrative Service (Fixation of Cadre Strength) 12111 Amendment Regulation, 1993. Such Regulation when on the face of it contravenes Rule 9 of the Recruitment Rules, regulation has to be struck down and consequently there is no illegality in the impugned order of the Tribunal. Mr. Rao also contended that the aforesaid Regulation contravenes Section 3(1-A) of the E Act itself as it pr"'judicially affects the interest of all those direct recruits to the Indian Administrative Service on account of the retrospective operation of the Notification, and therefore, the same has rightly been struck down. Mr Rao, lastly urged that under the scheme of the Service Rules and Regulations meant for IAS only 13 persons could have been in the Select List for the year 1987 for being promoted to the IAS but effect of the impugned Notification F dated 15.12.1993 and the consequent Notification dated 16.12.1993 is that the

Select List for the year 1987 for promotion to the IAS consists of 40 persons \. which contravenes the Recruitment Rules, and therefore, the impugned Notifications have rightly been struck down. Mr. Venkat Ramani, the learned senior counsel appearing for some of the respondents, submitted that the G Notification issued by the Central Government must be read as the language of the Notification indicates and not on the basis of the source of power in exercise of which the Notification has been issued and thus construed it is J... an amendment to the Cadre Strengt11 Regulation and if tlrn said Regulation contravenes Rule 9 of the Recruitment Rules the same cannot be allowed to operate and the Tribunal has rightly quashed the same. In support of this H contention the learned counsel placed reliance on the decision of this Court

in the case of Mohinder Singh Gill and Anr. v.

The Chief Election A

~ Commissioner, New Delhi & Ors., [1978] 2 SCR 272.

In view of the rival submissions at the Bar tl1e following questions arise for our consideration:

1) The Notification dated 15.12.1993 whether can be held to be a Rule B though nomenclatured as Regulation amending the Cadre Strength Regulation?

2) Whether it is possible to construe t11e Notification and Rule 9 of the Recruitment rules harmoniously and can the Notification be allowed to operate notwithstanding ilie limitation provided in Rule 9 of C Recruitment Rules for promotion of ilie State cadre officers to ilie Indian Administrative Service?

3) When ilie validity of Rule or Regulation crops up for consideration can the aut110rity framing ilie Rules and Regulations take tl1e shelter that it D was in implementation of certain directions of tl1e Tribunal in favour of some employees and whether such a plea can be sustained even iliough ilie Rules and Regulations framed are found to be beyond the powers of the rule making authority or is oilierwise constitutionally invalid?

4) Even if ilie impugned order of ilie tribunal striking down the E Notifications dated 15.12.1993 and 16.12.1993 can be found fault witl1, what would be ilie appropriate direction which this Court can issue for doing complete justice between the parties in view of special situation which necessitated the issuance of the Notification dated 15.12.1993?

Before we proceed to answer t11e aforesaid questions formulated by us F it would be appropriate to notice the very scheme of the Act, Rules and Regulations determining the conditions of service of the persons appointed to the Indian Administrative Service, Even prior to the independence of the country, in a conference held under the Chairmanship of Sardar Vallabhbhai Patel a decision had been taken to create two All India Services such as Indian Administrative Service and Indian Police Service to replace the former G Indian CivilService and Indian Police. It was further decideP that the recruitment to these two services should be made through the Federal Public Service Commission on the basis of annual Competitive Examination. In the very same meeting a further decision had been taken that maximum of 25% of the cadre post in the All Indian Services should be thrown open to the State Civil H

A Service Officers and State Police Officers of outstanding merit. In pursuance of the aforesaid decision the two All Indian Services were fonned and they were put on statutory basis under the Indian Civil Administrative Service Cadre Rules, 1950. The Parliament then passed the All Indian Services Act, 1951 under Article 312(1) of the Constitution which empowers the Government of Indian to make after consultation with the State Government, rules for the B regulation of recruitment and conditions of service of the persons appointed to an All Indian Service. In exercise of power under Section 3 of the Act - The Recruitment Rules, The Cadre Rules, The All Indian Services (Conditions of Service - Residuary matters) Rules, l 960 (hereinafter referred to as 'the Residuary Rules) have been made by the Central Government. The Cadre C Rules enables the Central Government to detennine the strength and composition of the cadre in each State by framing regulation and in exercise of such power the Cadre Strengt11 Regulation, 1955 have been framed by the Central Government and not only the total authorised strength of the cadre for each State has been indicated but also in indicates the number of post for different categories of posts within the cadre. Thus, the Act, the Rules D and the Regulation are a complete set of provisions dealing with different aspects of the service conditions to the Indian Administrative Service and the entire scheme contained in these rules and regulations have to be borne in mind in answering the questions formulated by us.

E So far as the first question is concemcd, the Notification dated 15.12.1993 on the face of it is an amendment to the Cadre Strengt11 Regulation, 1955 and by the said Notification 14 posts against item no 3 to be filled up by promotion and selection in accordance with Rule 8 of the Recruitment Rules have been increased for the period indicated in the notification. The obvious necessity for increasing the cadre strength so far as item no. 3 of the Schedule of the F Cadre Strength Regulation is to accommodate t11e 14 State Civil Service

Officers who had been excluded from the purview of consideration while drawing up the Select List for t11e year 1987 and in whose favour the Tnbunal has issued certain directions. The Cadre Strength of the Indian Administrative Service for each of the State is fixed by the regulation which regulation is G framed in exercise of power under sub-rule ( 1) of Rule 4 of Cadre Rules. This being the position the notification increasing the number of posts in respect of item no 3 of the.schedule relating to Andllra Pradesh as well as the increase of the total authorised strengt11 of the cadre in Andhra Pradesh is nothing but an amendment to the Regulation in question, and therefore, notwithstanding the level of notification that the same has been issued under H sub-section (1) of Section 3 of the Act read with sub-rule (2) of Rule 4 of the

G.K. RAOv. S. BHATTACHARYA [G.B. PATTANAIK, J.] 1065

Cadre Rules and Rule 3 of the Residuary Rules the same cannot have the A status of an Act of the Rule as contended by Mr. Salve the learned counsel appearing for the appellants. On a plain grammatical meaning of the words used in the notification being given as well as the object for which the notification has been issued if borne in mind t11e only conclusion that can be arrived at is that the said notification is a regulation amending the Cadre B Strength Regulation and called t11e 12th Amendment Regulation, 1993.

So far as the second question posed by us is concerned it is no doubt a cardinal principle of construction t11at when Rules and Regulations have been framed dealing with different aspects of the conditions of service of t11e employees the courts would attempt to make a hannonious construction and C

try to save t11e provisions and not to strike down the san1e. But where it is not possible even with doing some amount of violence to t11e language used in the notification to give a harmonious construction,, t11en necessarily the court will have no other option t11an to set aside a notification if the said notification contravenes any provisions of t11e Act or t11e Rule or is ot11erwise constitutionally invalid. Bearing in mind the aforesaid principle of construction D it appears to us that the impugned amended Regulation cannot be harmoniously construed with Rule 9 of the Recruitment Rules. Under the Recruitment Rules recruitment to the Indian Administrative Service can be made by competitive examination; by selection of persons from among the Emergency Commissioned Officers and Short Service Commissioned Officers E of the Armed Forces of the Union; by promotion of member of a State Civil Service; and by selection, in special cases from among the persons who hold irt a substantive capacity gazetted posts in connection with the affairs of a State and who are not members of a State Civil Service. So far as the promotion of members of a State Civil Service is concerned the procedure is provided in Rule 8 of the Recruitment Rules. Under the said Rule 8 the Central F Government on the recommendation of the State Government concerned and in consultation with the Public Service commission makes recruitment to the service by promotion from amongst the members of the State Civil Service in accordance with Regulation to be framed by the Central Government. Under Rule 9 of the Recruitment Rules, there is a prohibition that the number of G persons recruited under Rule 8 in any State and at any time will not exceed 33 113 per cent of the number of posts shown against items 1 and 2 of tlie Cadre in relation to the State. The Cadre Strength Regulation framed by the Central Government in exercise of power under sub-rule(l) of Rule 4 of the Cadre Rules categorically fixes the number of posts borne and the strength and composition of the cadre for each of the States and so far as item no,3 H

A dealing with the promotion by Selection under Rule 8 of tl1e State Civil Seivice

officers are concerned it has to be 33 1/3 per cent of items 1 and 2 of the Schedule. That being so, any regulation merely increasing the number of post ip item 3 without any corresponding increase of items 1 and 2 on the face of it would be violative of the very mandate of the Regulation and at any rate B it would violate Rule 9 of tlle Recruitment rules. The Regulation itself having been framed in exercise of power under sub-rule ( 1) of Rule 4 of the Cadre Rules and Rule 8 having provided tliat the recruitment by promotion to fue seivice from amongst the members of the State Civil Seivice has to be made in accordance with the Regulation and Rule 9 of the said Recruitment Rules having provided for a maximum of such promotion, the impugned notification C increasing the number of posts only for State Civil Seivice Officer to be promoted contravenes Rules 8 and 9 of the Recruitment Rules as well as contravenes the mandate of the Regulation itself. Having considered the provisions of the Recruitment Rules, the Cadre Rules and the Cadre Strength Regulation we have no hesitation to come to the conclusion that the impugned notification dated 15 December , 1993 contravenes Rule 9 of the Recruitment D Rules and under the scheme of the Act, Rules and Regulations it is not possible to sustain the notification in question by giving any hannonious construction to the provisions. The Tribunal, therefore, was fully justified in striking down the notification dated 15 or December, 1993.

So far as the third question is concerned, the same is in relation to the E arguments advanced by the learned Additional Solicitor General appearing for the Union of India as well as Mr. Salve appearing for the appellants -who are officers of the State Civil Seivice that since those officers were illegally excluded from consideration when Select List of tl1e year 1987 was drawn up, they had approached the Tribunal and Tribunal having issued directions in F their favour tl1e said direction had to be implemented and if on implementation of the same the Government of India has issued the impugned notification, tl1e said notification must be sustained. In other words, the argument proceeds on the ground that the valuable right accrued in favour of the officers of the

State Civil Seivices who were kept out of consideration for promotion when tl1e Select List of the year 1987 was brawn up camiot be taken away by G striking down tl1e impugned notification under which supernumerary posts were created and promotions were given to those State Civil Service Officers from the date their juniors stood promoted. We are unable to persuade ourselves to agree with the submission of the learned counsel as it appears to us in the proceedings before the Central Administrative Tribunal the H grievance of these State Civil service officers was that though they were all

appointed by one notification but they factually joined at different places on A ,,

different dates depending upon the distance of the place in question and therefore inter seniority amongst tl1em cannot be decided on tl1e basis of the factual date of joining. Since some of the officers who occupied lower position in tl1e list were appointed at Hyderabad itself on the date the notification was issued, while otl1ers senior to tl1em having been posted at distant places joined much later, when the question of consideration of promotion to tl1e B _,_

Indian Administrative Service of the year 1987 cropped up and the Select List was drawn up for tliat year by complying the requirement of 8 years service, these senior persons were excluded from consideration. It is to be noticed that in the same proceedings the direct recruit IAS officers were not parties as dispute was inter so between the officers belonging to the State Civil Service c who were appointed on the same date but joined on different dates. The Tribunal granted the relief and directed that tl1ey should be considered for promotion to the Indian Administrative Service in tlle year 1987 and the Review Selection Committee considered tl1eir cases and finally included them in the Select List of the year 1987. In view of the integrated scheme of the Rules and Regulations as discussed earlier and under the provisions in D question since only 13 persons could have been promoted to the Indian Administrative Service from amongst tl1e officers belonging to tl!e State Civil Service during 1987 the Select List could have been prepared for only 26 persons and the Union Government could have promoted only 13 out of tl1em.

The directions of the Tribunal in favour of tl1e officers belonging to the State

Civil Service who were excluded from consideration while drawing up the E original select List for the year 1987 merely conferred a right of reconsideration and could not confer a right of promotion to the Indian Administrative Service which would be contrary to tl1e relevant provisions of tl1e integrated scheme as discussed earlier. On tlle basis of tlle revised Select List of tl!e Year 1987 the Central Government could have promoted only the first 13 of tlle list as the number of posts which could be filled up from amongst tl!e officers F ,,( belonging to the State Civil Service in the year 1987 was only 13. But instead of following the aforesaid method tl1e State Government and Union Government proceeded to recruit by promotion all tl!ose who were included in tlle Select List of tlle year 1987. Such act on tl1e part of tl1e Central Government and tl!e State Government is contrary to the provisions of the integrated scheme of the Rules and Regulations governing the service conditions of the officers G belonging to the Indian Administrative Service and therefore it was wholly

>-- beyond the competence of tlle Central Government to issue tl!e notification dated 15.12.1993 increasing tlle cadre strengtl1 in relation to these promote officers as well as the notification dated 16.12.1993 promoting these officers to the Indian Administrative Service. Necessarily, therefore, tlle said two notifications must be held to be invalid and inoperative and have rightly been H

A struck down by the Tribunal. In view of the aforesaid conclusions anived at we do not find any infirmity with the order of the Central Administrative )- Tribunal striking down the two notifications requiring our interference.

Now coming to the fourth question posed by us, namely, what would be the appropriate direction to do complete justice between the parties we B find that as a necessary consequence of the quashing of the notification dated 16.12.1993 the appointment of the 14 officers included therein to the -1lndian Administrative Se1vice with retrospective effect would stand invalidated, though as a matter of fact the said notification has been given effect to and most of the State Civil Service Officer promoted thereunder with retrospective effect might have superannuated in the meantime. In this view of the matter, C the State Civil Service Officers who have been promoted to the Indian Administrative Service on the basis of the original Select List as well as the review Select List of the 1987, their appointment need not be disturbed at this length of time. But so far as their seniority and year of allotment in IAS is concerned the same has to be re-done in accordance with the Rules and Regulations, so that, the direct recruits Indian Administrative Officers' interest D will not be adversely affected. This can be achieved by treating only the first 13 officers of the Review Select List which contains the names of the total 40 officers in order of merit could be treated to be the officers promoted on the basis of 1987 Select List and their year of allotment may accordingly be determined. So far as the officers from serial no. 14 to 40 are concerned of the said review Select List of the year 1987 while they would be pem1ittcd to E continue in Indian Administrative Service but such continuance will not confer on them the right to count their seniority and year of allotment but their caes will have to be adjusted in the subsequent year depending upon the number of vacancies and the posts available for such promotes, and their year of allotment would be re-detennined accordingly. We would further make

it clear that if any of these State Civil Service Officers who were much junior to the officers who had approached the tribunal on earlier occasion and who had been appointed on promotion to the Indian Administrative Service on the basis of the original Select List of the year 1987 their year of allotment has to be re-detennined in view of their position having been pushed down in the review select List of the year I 987 which contains the names of all the 40 officers. We decline to interfere with the order of the Central Administrative Tribunal but we issue the aforesaid directions for the purpose of redetermination of the seniority and year of allotment of these officers which we think is necessary in the interest of justice. All these appeals are disposed of accordingly. There will be not order as to costs.

V.S.S.

Appeal disposed of.

).,