Full Judgment Text
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CASE NO.:
Writ Petition (civil) 613 of 1994
Writ Petition (civil) 671 of 1994
Writ Petition (civil) 83 of 1998
Writ Petition (civil) 197 of 1998
Special Leave Petition (civil) 7823 of 1996
PETITIONER:
TAMIL NADU ADMINISTRATIVE SERVICE OFFICERS ASSOCIATION & ANR.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 19/04/2000
BENCH:
N.S.Hegde, M.J.Rao
JUDGMENT:
SANTOSH HEGDE, J.
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Leave granted in SLP©No.7823/96. In the above writ
petitions and civil appeal members of the Tamil Nadu and
Haryana State Administrative Services have sought for
directions from this Court to the respondents to encadre all
the State Deputation Reserve posts, Ex-cadre posts and
Temporary posts hitherto manned by the members of the Indian
Administrative Service (for short IAS) for a continuous
period exceeding three years, in the IAS cadre. It is their
complaint that in their respective States large number of
posts which are not included in item 1 of the Schedule to
the IAS (Fixation of Cadre Strength) Regulations, 1955 (for
short Cadre Regulations) are being manned by IAS officers
and these posts have been in existence for decades together
and in spite of the same they are not encadred even though
under the Cadre Regulations it is obligatory for the Central
Government to do periodical cadre review. Consequent to the
failure on the part of the respondents to encadre these
large number of posts the petitioners/appellants are denied
of their legitimate right of being selected to the IAS by
promotion under Rule 8 of the IAS (Recruitment) Rules, 1954
(for short Recruitment Rules). They contend that 33 1/3
per cent of the State IAS cadre is reserved for selection by
promotion of the State service officers and non encadring of
the above posts has denied them of their legitimate share in
the State cadre. During the pendency of these petitions and
appeal, by notification dated December 31, 1997 the Central
Government brought about certain amendments to the IAS
(Appointment by Promotion) Regulations, 1955 (for short
Appointment by Promotion Regulations). The Central
Government in its counter affidavit filed in the above cases
contended that the complaints of the petitioners/appellants
do not survive after the amendment since the respondents by
those amendment have included the State Deputation Reserve
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posts and the Trainee reserve posts as part of the State
cadre strength and petitioners are now entitled to have
their share of 33 1/3 per cent of the enhanced cadre
strength for their appointment to the IAS. However, the
petitioners have rebutted this contention of the Respondent
and have amended their original petitions and/or filed
separate petitions challenging the said amendments. A
perusal of the pleadings in the petitions/appeal filed prior
to the amendment shows that under Rule 9 of the Recruitment
Rules as it stood before the amendment, the number of
persons to be recruited to the IAS from the State Civil
Service was restricted to 33 1/3 per cent of the number of
posts found at items 1 and 2 to the concerned schedule of
the Cadre Strength Regulations. By amending the Recruitment
Rules, the Union has now enhanced the cadre strength of each
State by including the posts allotted to them under items 5
and part of item 6 of the Schedule found in the Cadre
Strength Regulations which are posts classified as State
Deputation Reserve and Trainee reserve. Therefore, it is
clear that since the filing of the original petitions/appeal
the Central Government has increased the strength of the
State cadre of IAS, but the petitioners/appellants pleaded
that this increase in the strength is wholly illusory. They
contend that still large number of posts, which are either
termed as ex-cadre or temporary, are excluded from the cadre
strength and what is increased by the amendment is only a
cosmetic increase. The respondents in opposition contend
that during the exercise of review of the cadre strength
they have taken note of the necessary requirements of each
State and have encadred only such State Deputation Reserve
and the Trainee reserve posts which in their opinion
requires to be encadred. They contend that the State
Governments have in contravention of Rule 4 of the Cadre
Rules at times have been creating certain ex-cadre posts
which in the opinion of the Central Government are
unnecessary and hence such posts cannot be encadred in the
IAS. In regard to the partial relief got by them after the
amendment, the petitioners further contend the same has been
given prospective effect only thereby denying them their
legitimate seniority. They contend that inclusion of these
posts ought to have been made with effect from the date
these posts were created or at least from the date on which
these petitions were filed. In reply to this, Central
Government contends that the petitioners do not have any
legal right to demand the encadrement of these posts which
hitherto were not a part of the cadre strength. This
request of the petitioners amounts to asking the Central
Government to create additional posts which right is not
available to the petitioners. The petitioners have also in
their amended and fresh petitions questioned the
constitutional validity of amended Regulation 5(1) of the
Appointment by Promotion Regulations. The Petitioners
contend that by the said amendment the Union has brought
about unwanted, arbitrary and drastic changes in the
calculations of vacancies available to be filled by the
promotees by excluding the anticipated vacancies and by
confining the selections only to substantive vacancies
available on the first day of January of the said year. The
petitioners contend that the process of selection invariably
takes considerably long time consequent to which timely
selection has become impossible, by excluding the
anticipated vacancies, it is contended there will be further
delay in selecting the petitioners to the IAS which might
deprive many of them their chance to be selected for the
IAS. They also contend that this practice of calculating
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the vacancies on the anticipated basis has been in vouge for
a number of decades and the Central Government has brought
about these amendments without any justification which
limits the opportunities available for the petitioners for
being selected to the IAS. The Union of India has rebutted
this contention. It contends that these amendments were
brought about to streamline the selection process. It is
stated that it has become practically impossible to make
selections to anticipated vacancies for want of necessary
information and some other practical reasons. They deny
that these amendments are arbitrary and unnecessary. From
the above contentions of the parties and taking into account
the subsequent events that have taken place after the filing
of the original petitions/appeal, the following questions
arise for our consideration: 1. Should the temporary and
ex-cadre posts that are in existence in the concerned State
Government service be directed to be encadred in the IAS
cadre strength of the States concerned? 2. Are the
petitioners entitled in law to demand that the encadrement
of posts should be effective from the original date of
creation of the posts or at least from the date of filing of
the respective petitions? 3. Are the amendments brought
about to Regulation 5(1) of the IAS (Appointment by
Promotion) Regulations, 1955 ultra vires and liable to be
struck down? Before we proceed to consider the arguments
advanced in support of their respective contentions in the
above cases it is necessary to note that similar grievances
were made by the State Service Officers of States of Madhya
Pradesh and West Bengal before the Central Administrative
Tribunal, Jabalpur and Calcutta benches. In the case of
K.K. Goswamy vs. Union of India (T.A. No. 81/86)
Jabalpur bench of the Tribunal held that deputation reserve
listed at item 5 of the Schedule under the Cadre Strength
Regulations has to be included for computing the promotion
quota. This judgment was brought up by way of SLP before
this Court and the same was rejected. It is also to be
noted that similar view was taken by the Calcutta bench of
Central Administrative Tribunal. The Chandigarh bench of
Central Administrative Tribunal as per the order dated
December 13,1995, from which the above noted Civil Appeal
No. of 2000 (arising out of S.L.P. © No. 7823 of 1996)
arose, took the view that the temporary/ex cadre posts which
have continued for long number of years, cannot be allowed
to be continued as such, hence it directed the Central and
the State Government to take necessary steps to discharge
their legal and constitutional duties by examining the
question whether such temporary and ex cadre posts which are
in existence for a number of years and are likely to
continue indefinitely should be either abolished or should
form part of the cadre of the State of Haryana. Though the
applicants therein succeeded in getting the above direction,
they have preferred the above civil appeal to the extent the
Tribunal failed to give them the retrospective benefit of
the said order and rejected the challenge to the amendments
referred to herein above. We have heard Shri M.N. Rao and
Shri Parag Tripathi, learned senior counsel for the
petitioners/ appellants and Shri Mukul Rohtagi, learned
Additional Solicitor General for Union of India. The
service conditions of All India Service Officers are
governed by the provisions of the All India Services Act,
1961 and the Rules and Regulations made under the said Act
such as the Cadre Rules, Cadre Regulations, Recruitment
Rules and the Appointment by Promotion Regulations.
Practically, every aspect from the creation of the cadre,
fixation of strength of the cadre, filling up of the
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officers in the cadre, their deputation, selection,
promotion and seniority are all statutorily governed under
the above-cited Rules and Regulations. Under Rule 3 of the
Cadre Rules, an IAS cadre is created for each State or a
group of States in the Indian Union. Rule 4 of the said
Rules provides that the Central Government in consultation
with the State Governments should determine the strength and
composition of the cadres constituted under Rule 3 by
framing the regulations in this behalf. This Rule also
provides for a review of the cadre from time to time which
used to be at an interval of every 3 years and presently
amended to 5 years. The review of the cadre strength
contemplated under this Rule is to be done in consultation
with the State Governments concerned. The proviso to this
Rule empowers the State Government concerned to temporarily
add to its cadre one or more post(s) for a period not
exceeding one year on its own and with approval of the
Central Government for a further period not exceeding two
years. Thus, a conjoint reading of these sub-clauses and
proviso of Rule 4 shows the fixation of the cadre strength
and review thereof is the responsibility of the Central
Government and for any urgent need of temporary nature, the
State Government is empowered to add to this cadre one or
more posts on its own as provided in the proviso to Rule
4(2). Therefore, creation of a cadre and fixation of the
cadre strength are statutorily controlled and the same will
have to be reviewed periodically bearing in mind the
necessity prevailing at the time of review. The components
of the cadre are also fixed statutorily which normally
consist of the six items enumerated in the Schedule to the
Cadre Strength Regulations. The said Regulation also
provides for fixation of number of posts under those 6
items. Under Rule 8(1) of the Recruitment Rules, provision
is made for recruitment to the IAS by the Central Government
by promotion of substantive members of the State Civil
Service. The number of posts so permitted to be filled from
the State service is regulated under Rule 9 of the said
Rules which has fixed a quota of not exceeding 33 1/3% of
the number of posts as are shown against Items 1 and 2 of
the cadre in relation to the State concerned as fixed under
the Cadre Regualtions. (After the amendment of 1997 the
posts enumerated under Items 5 and part of Item 6 are also
to be counted for the purpose of fixing the quota of 33
1/3%). In the background of the above statutory provisions,
we will now consider the first claim of the petitioners for
encadrement of ex-cadre/temporary posts. This argument
proceeds on the basis that as per the Cadre Rules no
temporary or ex cadre posts are permitted to be created by
the State Governments for a period exceeding 3 years (See
Rule 4(2) of the Cadre Rules). The petitioners contend that
the posts identified by them in their petitions being
permanent in nature and some of them having been created
under State enactments requiring their manning by IAS
officers have to be encadred. They further contend that if
they are so encadred they are entitled to be promoted to the
extent of 33 1/3% of the so enhanced posts The Central
Government, per contra, contends that during the triennial
review (as it used to be), they have taken into
consideration the necessity to encadre such ex cadre and
temporary posts in consultation with the State Governments
and after finding out the need to encadre such posts and
wherever it was found necessary, such encadrement was done.
They also contend that by virtue of the amendments of 1997,
the posts earmarked for State deputation reserve and
training reserve have already been included in the cadre
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strength of the respective States and if there is any
further need to encadre any more post, the same will be done
during the course of next periodic review of the cadre
strength of the States. A perusal of the petition
allegations does show that a number of posts outside the IAS
cadre in the States concerned are in existence which are
being manned by IAS Officers. Continuous existence of these
posts over the decades shows that these posts are of
permanent in nature, but the pertinent question for
consideration is whether merely because the State Government
has created some posts and continued them over the years by
posting regular IAS officers, can a court issue a mandamus
to the Central Government to encadre these posts ? If one
looks into the object of creating an all India service, it
is clear that this service was created to select
exceptionally bright and intelligent men/women through all
India examinations and train them to handle the affairs of
the States by manning important posts in the administration
of the State. These persons are not to be posted to any and
every posts in the Government. They are to man only such
posts which have been identified to be so important as to
require the services of these persons. With this view in
mind, the Central Government was entrusted with the
responsibility of identifying such posts and to encadre them
in the IAS cadre. A perusal of the Cadre Rules and
Regulations shows that the Central Government has identified
posts like that of the Collectors, Commissioners, Members of
the Board of Revenue, Secretaries and Deputy Secretaries in
the administrative departments and Heads of important
Departments. It is the attitude of the State Governments of
creating ex-cadre/temporary posts without consulting the
Central Government and contrary to the Cadre Rules which has
created the controversy in hand and has given rise to
heart-burn and disappointment to the State civil servants.
This however does not, in our opinion, confer any right on
the petitioners to seek a mandamus for encadring those ex-
cadre/temporary posts, for any such mandamus would run
counter to the statutory provisions governing the creation
of cadre and fixation of cadre strength. The basis of the
petitioners right to be selected for All India service is
traceable in case of State Civil Service officers to Rule 8
of the Recruitment Rules which says that the Central
Government may recruit to the IAS persons by promotion from
amongst the members of the State civil service. This Rule
itself puts a ceiling on the number of posts that could be
filled in the IAS from such promotions which is limited to
not more than 33 1/3% of the posts enumerated therein. The
prayer of the petitioners for encadrement of the
ex-cadre/temporary posts in reality amounts to asking the
Central Government to create more posts. The question then
arises whether there is any such right in the petitioners to
seek such creation of additional posts. It is a well-
settled principle in service jurisprudence that even when
there is a vacancy, the State is not bound to fill up such
vacancy nor is there any corresponding right vested in an
eligible employee to demand that such post be filled up.
This is because the decision to fill up a vacancy or not
vests with the employer who for good reasons; be it
administrative, economical or policy, decide not to fill up
such post(s). See The State of Haryana v. Subhash Chander
Marwaha & Ors. [(1974) 3 SCC 220].This principle applies
with all the more force in regard to the creation of new
vacancies like by encadrement of new posts; more so when
such encadrement or creation of new posts is statutorily
controlled. We have noticed earlier that the Cadre
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Regulations and the Recruitment Rules require the Central
Government to follow a particular procedure and make
necessary consultations before fixing or re-fixing the cadre
strength. In such a situation, issuance of a mandamus to
increase the cadre strength or to encadre a particular post
merely on the basis of long existence of these posts would
be inappropriate. The petitioners in support of their
contention have placed reliance upon a judgment of this
Court in C.O. Arumugham & Ors. v. State of Tamil Nadu &
Ors. [1991 Supp (2) SCC 199]. In para 5 of the said
judgment this Court held thus : As to the merits of the
matter, it is necessary to state that every civil servant
has a right to have his case considered for promotion
according to his turn and it is a guarantee flowing from
Articles 14 and 16(1) of the Constitution. The
consideration of promotion could be postponed only on
reasonable grounds. In our opinion, that decision does not
help the contention of the petitioners to seek a mandamus to
encadre the ex- cadre/temporary posts as contended in their
petition. The above judgment only lays down that a civil
servant has a right under Articles 14 and 16(1) of the
Constitution to be considered for promotion and such
consideration cannot be postponed on unreasonable grounds.
The petitioners next relied on another judgment of this
Court in P.S. Mahal & Ors. v. Union of India &
Ors.[(1984) 4 SCC 545] wherein in para 21 of the judgment,
this Court laid down that whenever a long term vacancy
arises in a post, whatever may be the reason by which the
vacancy is caused, it would have to be filled up by
promotion by applying the quota rule. Court further said :
But where a vacancy arises on account of the incumbent
going on deputation for a reasonably long period and there
is no reasonable likelihood of the person promoted to fill
such vacancy having to revert, the vacancy would be subject
to the quota rule, . From the above observations of this
Court, the petitioners contend that since the vacancies
pointed out by them in the petition are of permanent nature,
the same will have to be encadred so as to give them an
enhanced quota of promotion. We do not find any such
support to the case of the petitioners from the aforesaid
case. It is to be noted that the facts of the Mahals case
(supra) are entirely different from that of the
petitioners. That was a case where the promotees who were
occupying a direct recrtuiment post for a considerably long
period when sought to be reverted by the application of
quota rule, this Court found such reversions to be to be
inequitable. Such is not the case in the present petitions.
Here the petitioners are not yet promoted much less there is
any threat of reversion. The claim of the petitioners
herein is based on an argument that on the existing facts
the cadre strength of the State IAS cadre requires to be
enhanced which is an argument de hors the quota rule.
Therefore, we are of the opinion that this judgment does not
help the petitioners to seek a mandamus to encadre the
ex-cadre and temporary posts existing in their respective
States. So also the next judgment relied upon by the
petitioners that is the case of O.P. Singla & Anr. v.
Union of India & Ors. [(1984) 4 SCC 450] does not help the
petitioners. However, reliance is placed on paras 9 and 34
of this judgment wherein this Court while considering the
inter se seniority dispute between the direct recruits and
promotees held at para 34 thus : In such a situation
the seniority of direct recruits and promotees appointed
under those Rules must be determined according to the dates
on which direct recruits were appointed to their respective
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posts and the dates from which the promotees have been
officiating continuously either in temporary posts created
in the service or in the substantive vacancies to which they
were appointed in a temporary capacity. We do not think
this case of Singla (supra) also assists the petitioners.
However, we must observe on facts that the above-cited
judgments of Singlas case (supra) give an indication that
if any temporary posts are in existence for a long time then
such posts may have to be treated as permanent posts but
then these observations will have to be taken into
consideration in the background of the statutory rules
applicable to the present case. We have already noticed in
this Case that the Statute applicable mandates the Central
Government to fix the cadre strength in consultation with
the State Governments concerned, duly bearing in mind the
objects of the Act and the Rules and Regulations. The
Central Government in its counter has stated that it has
conducted this exercise during the periodic review and
wherever necessary, temporary and ex-cadre posts created by
the State Governments have been encadred, however few they
may be. They have also specifically contended that each and
every ex-cadre and temporary post created by the State
Government is not necessarily required to be encadred in the
IAS. On behalf of the Union of India, reliance was placed
on the various Rules and Regulations to which reference has
already been made by us. Learned counsel for the Union of
India relied on the following judgment of this Court in the
case of Subash Chander Marwahas case (supra) and Shankarsan
Dash v. Union of India [(1991) 3 SCC 47] to support its
contention that the petitioners do not have a right to seek
encadrement of the posts. We respectfully agree with the
ratio laid down in the above cases. However, we think it
appropriate to notice a passage from the judgment of this
Court in Shankarsan Dashs case (supra) at para 7 which is
as follows : However, it does not mean that the State has
the licence of acting in an arbitrary manner. The decision
not to fill up the vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or any of them
are filled up, the State is bound to respect the comparative
merit of the candidates, as reflected at the recruitment
test and no discrimination can be permitted.
The petitioners next contend that though there is a
statutory obligation on the part of the Central Government
to make a periodical review which it has failed to do so.
By this failure the promotees promotion got inordinately
delayed and they have lost their seniority in the promoted
cadre, therefore, they are entitled to their seniority being
fixed with retrospective effect. For this purpose, they
rely on the judgments of Singlas case (supra) and Syed
Khalid Rizvi & Ors. v. Union of India & Ors. [1993 Supp.
(3) SCC 575]. We have already referred to the earlier two
cases. In the last of the said cases referred to above,
this Court had held : Preparation of the select-list every
year is mandatory. It would subserve the object of the Act
and the rules and afford an equal opportunity to the
promotee officers to reach higher echelons of the service.
The dereliction of the statutory duty must satisfactorily be
accounted for by the State Government concerned and this
Court takes serious note of wanton infraction. Based on the
above observations of this Court, the petitioners contend
that since the periodic review and preparation of
select-list in this case has not been done in time in
accordance with the Rules, the petitioners are entitled for
retrospective seniority once that error is rectified. Here
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we would like to note that the decision of this Court in
Rizvis case (supra) has been explained in the case of
Kasturi Rangan v. Union of India [1981 Scale SP 11]. From
the judgment of Kasturi Rangan (supra), it is clear that
mere delay in preparing the select list as also the cadre
review is not fatal if the concerned respondent had given
sufficient reasons for the same. In the instant case, we
find from the counter affidavit of the Union of India that
they have given sufficient explanation for the delay in
preparing the select list as also cadre review. Therefore,
petitioners cannot claim any relief based solely on the
ground of delay in cadre review or preparation of select
list. The petitioners further contend that similar relief
was granted in the case of applicants who filed original
applications before the Jabalpur and Calcutta Benches of the
Central Administrative Tribunal, and there is no reason why
the petitioners should be denied such benefits. The Union
of India has explained in the counter affidavit that those
are isolated cases where promotions were given on the basis
of the directions issued in the original applications as
well as contempt petitions, and the same should not be
treated as a binding precedent in every other case. We
notice that as per the statutory provisions, the encadring
of posts can be done only on certain fact-situations
existing and further it will have to be done on a review to
be conducted by the Central Government in consultation with
the State Governments and on being satisfied that an
enhancement in the cadre strength or encadring of certain
posts is necessary in the administrative interest of the
States concerned. Until such encadrement takes place,
nobody including the petitioners could stake a claim to
consider their case for promotion to those ex-cadre posts.
Therefore, such right to be considered for promotion, in our
considered view, would arise only from the date of
encadrement which having been done with effect from 1998
only, we do not think that as a matter of right the
petitioners are entitled for retrospective seniority. In
light of the above, we are of the opinion that the
petitioners are not entitled to the twin reliefs sought for
by them i.e. for a writ of mandamus to encadring the
ex-cadre/temporary posts, so also for a writ of mandamus for
the retrospective seniority in regard to the posts already
included in the State IAS cadre strength by virtue of 1997
amendments. This, however, does not mean that there is no
obligation on the part of the Central Government to consider
the requirement of encadring the ex-cadre/temporary posts
which are existing in those States in regard to which the
complaint is made. It is to be noticed that a large number
of posts exclusion of which would make sufficient impact on
the quota fixed under Rule 9 of the Recruitment Rules are in
existence for periods extending even over two decades. We
are also told that many of these posts are statutorily
required to be filled up by the members of the IAS, but for
reasons not known, these posts are not being made permanent.
It is possible that these posts which, on the face of it,
are in contravention of the cadre rules, are created by the
concerned States for reasons other than the administrative
exigencies and it is also possible that the Central
Government which has the primary responsibility of making
the cadre reviews, has not applied its mind to the real
necessity of encadring these posts. Though prima facie we
have accepted the explanation given by the Union of India
still we find such posts are being continued by the States
concerned even till date. We have not found any reason
either in the pleadings or in the arguments addressed on
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behalf of the Union of India why it has not taken any steps
to direct the State Governments concerned to abolish these
posts if not required to be encadred. Therefore, we find it
necessary to direct the Union of India to consider in
consultation with the State Government concerned, as
required in the Cadre Rules, review the necessity of either
to encadring these ex-cadre/temporary posts or not and take
such other necessary steps. In this process the Central
Government shall bear in mind the existence of these posts
for the last so many years and if it is so satisfied and
finds it necessary in the interest of justice to encadre
these posts, it may do so with retrospective date so that
officers promoted consequent to such encadrement would have
the benefit of the seniority from such date, bearing, of
course, in mind the possible conflict that may arise in
fixation of inter se seniority and take appropriate
decisions in this regard so as to avoid any further
disharmony in the service. This leaves us now to consider
the challenge made to the constitutional amendments effected
in Regulation 5(1) of the Appointment by Promotion
Regulations. The petitioners in this regard contend that
under the old provision, the Selection Committee was
required to calculate the anticipated substantive vacancies
for preparation of select list which is now being changed to
vacancies not exceeding the substantive vacancies as on the
first day of January of the year in which the meeting is
held. They contend that by this change in procedure large
number of vacancies which should have been available for
selection of promotees will be left out. They state that
there is always considerable delay in completing the process
of promotion by selection and this delay will be further
extended by virtue of the amendments and consequently the
promotion of the petitioners will get delayed and some of
them may even loose the chance of getting selected to the
IAS. They say that the unamended provisions were in
existence for decades and there was no need for effecting
this amendment. In reply thereto, the respondents contend
that these changes have been brought about to avoid the
delay in making the selections. They say by the existing
Rules, it was extremely difficult to ascertain with
certainty/finality the number of anticipated vacancies since
the State Governments had the power to give extension of
service up to 6 months beyond the date of retirement to a
number of IAS officers. It is also stated that many a time
such anticipated vacancies did not fructify and a State
civil service officer included in the select list could not
be sure of his appointment and this ultimately led to a
plethora of litigation. It is with a view to avoid such
difficulties that preparation of select list is confined to
the vacancies available as on the first day of January of
the year concerned. We have carefully gone through the
pleadings of the petitioners and the respondents in this
regard and we do not find any arbitrariness in this
amendment. We think this is a matter of policy which will
be uniformly applicable after the amendments. Further,
vacancies which are not filled up in one year will
automatically get carried forward to the next year if they
become actual vacancies by them. Therefore, the challenge
of the petitioners that this amendment is arbitrary and
violative of Article 14 of the Constitution, cannot be
accepted. In regard to the next contention that by the
amendment the respondents are given a unilateral and
arbitrary power to hold the Selection Committee proceedings
or not, is also denied by the respondents. They state that
under the amended Rules there is no unfettered or
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uncanalised power and discretion given regarding the
authority to hold Selection Committee meetings. On the
contrary, they plead that there is a clear mandate for
holding the meeting of the Selection Committee every year
but in view of the exceptional exigencies given in the Rule
itself, the Committee could not be constituted and that too
only on the basis of a conscious decision taken by the
respondents. They further contend that the Rules have been
framed with inbuilt safeguards to keep at bay the
eventuality of non-convening the Selection Committee meeting
by default on the part of the State Government etc. They
also contend that under the amended Rules in exceptional
situations alone and for reasons to be recorded in writing,
a meeting of the Selection Committee could be deferred.
In view of the above statement of the Union of India
found both in the explanatory note to the amendments and the
counter affidavit filed in the concerned writ petitions, we
are of the opinion that this challenge of the petitioners
should also fail. We, however, make it clear while
disposing of these petitions that it is open to the
petitioners to file a detailed representation to the Central
Government, giving all the particulars of the post which
they consider are fit to be encadred and special reasons why
they should be encadred with a retrospective date and on
such representation being made, the Central Government will
consider these representations in consultation with the
State Governments concerned, and take appropriate decisions
in this regard, preferably within six months from the
receipt of those representations. The petitions and appeal
are disposed of accordingly. No costs.