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PETITIONER: UNION OF INDIA ETC.

       Vs.

RESPONDENT: G.N. TIWARI, K.L. JAIN & ORS.

DATE OF JUDGMENT19/11/1985

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) MADON, D.P.

CITATION:  1986 AIR  348            1985 SCR  Supl. (3) 744  1986 SCC  (1)  89        1985 SCALE  (2)1081

ACT:      Indian Administrative Service (Regulation of Seniority) Rules, 1954, Rule 3(3) (b) - Year of allotment, reckoning of - Whether  a member of the State Civil Service(Executive) on his temporary appointment by the State Government under rule 9 of  the Indian Administrative Service (Cadre) Rules, 1954, for a  period exceeding  six months, is entitled to have his continuous period  of officiation  in a  senior post for the purposes of  computation of  the  "year  of  allotment"  and fixation  of   seniority  -  Indian  Administrative  Service (Cadre) Rules,  1954, Rule  9, scope  of  -  Clause  (1)  of Section III  of Schedule  II of  the  Indian  Administrative Service (Pay) Rules, 1954.

HEADNOTE:      The respondent,  in CA  5045 of  1985 was a substantive member of  the State  Civil Service (Executive) in the State of Madhya  Pradesh. He was, on November 7, 1975, temporarily appointed by the State Government to the post of a collector which is  a senior  post on  the cadre  under rule  9 of the Indian Administrative  Service (Cadre)  Rule, 1954  and  had been continuously  officiating on such post with effect from November 10,  1975 till  the Central Government accorded its approval on  October 1,  1976 for  his  appointment  in  the Indian Administrative  Service. The  promotion quota of non- cadre officers  to cadre posts which was 50 prior to October 1, 1976 was on that date increased to 56. The respondent was formally appointed  to the  Indian Administrative Service by the Central  Government  on  December  7,  1976.  The  State Government of Madhya Pradesh by its letter dated February 3, 1979 informed  him that  he was assigned 1972 as the year of allotment  by   the  Central   Government.  The  respondent, therefore,  filed  a  petition  under  Article  226  of  the Constitution for  an appropriate writ or direction directing the appellants to assign him, 1971 as the year of allotment, fix his  seniority accordingly  and allow  all consequential reliefs.      The High  Court, held:  (a) that  though there  was  no specific  approval   of  the   Central  Government   to  the appointment of the respondent, such prior approval was not a condition precedent 745

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for valid  appointment to  a cadre under rule 9 of the Cadre Rules and,  therefore, the  continuous  officiation  by  the respondent as the Collector for the period from November 10, 1975 to  September 30,  1976 could  not be  ignored  on  the ground that the appointment was not specifically approved by the Central  Government: (b)  the existence  of a vacancy in the promotion  quota of  cadre officers  was not a condition pre-requisite for  making  an  appointment  of  a  non-cadre officer to  a cadre post under rule 9 of the Cadre Rules and therefore, the  fact that  there was over utilization of the State  Deputation  Reserve  Quota  had  no  bearing  on  the question  of   the  validity   of  the  appointment  of  the respondent on  a cadre  post;  (c)  that  the  condition  of approval by  the Central  Government required by the proviso to clause  (I) of  Section III  of Schedule II of the Indian Administrative Service  (Pay) Rules,  1954 was  only for pay fixation and  it had  nothing to do with the validity of the officiation of  a non-cadre  officer in  a cadre  post under Rule 9  of the  Cadre Rules;  and (d)  that  his  continuous officiation in  a senior post of Collector from November 10, 1975 was  in accordance  with Rule  9 of the Cadre Rules and the same  must enure  for his  benefit to give him seniority under Rule  3(3) (b)  of the Seniority Rules. The High Court thus allowed the petition.      Following the said case reported as K.L. Jain  v. Union of India,  (1984) MPLJ 284, the High Court of Madhya Pradesh in the  connected cases  out  of  which  the  present  Civil Appeals  Nos.   5040-5044  of   1985  arise  held  that  the respondents therein  also be  assigned years  1966, 1967 and 1971 as  their "years  of allotment" respectively under rule 3(3) (b)  of the  Seniority Rules and their placement in the seniority list be accordingly revised.      Allowing the appeals, the Court ^      HELD :  1.1 For  the purposes  of appointment of a non- cadre officer  to a  cadre post  under Rule  9 of the Indian Administrative Service  (Cadre)  Rules,  1954,  neither  the prior approval of the Central Government to such appointment nor the  existence of  a vacancy in the promotion quota is a condition precedent. [754 G]      1.2 It  is plain  upon a  construction of Rule 9 of the Indian Administrative  Service  (Cadre)  Rules,  1954,  that under sub-rule  (1) the  State Government  can direct that a cadre post  may be  filled by  a person  who is  not a cadre officer. If  it is  satisfied that the vacancy is not likely to last  for more  than three  months or  that there  is  no suitable cadre officer available for filling 746 the vacancy. Under sub-rule (2), where in any State a person than a  cadre officer  is appointed  to a  cadre post  for a period exceeding  three  months,  the  State  Government  is required  to  forthwith  report  the  fact  to  the  Central Government  together   with  the   reasons  for  making  the appointment. Under rule 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  Government  shall accordingly give effect thereto. Under sub-rule (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 Central Government is required to report the full facts to the Union Public Service  Commission with the reasons for holding that no suitable  officer is  available for  filling the post and may, in  the light  of the  advice given by the Union Public

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Service Commission,  give suitable  direction to  the  State Government concerned in that behalf. [753 E-H; 754 A-D]      1.3 The  power of the Central Government under sub-rule (3) to  direct termination  of appointment of a person other than a  cadre officer to a cadre post for a period exceeding three months or more cannot be said to be a larger power and carried with  it the  power to  direct  curtailment  of  the period of  officiation of  such person.  The power to direct termination of  the appointment  of a non-cadre officer in a senior post is distinct from the power to direct curtailment of his  period of officiation. In the absence of a provision made in the Cadre Rules empowering the Central Government to direct the  curtailment of  the period  of officiation  of a non-cadre officer  on a cadre post for purposes of reckoning his year  of allotment  under rule  3(3)(b) of the Seniority Rules and since such a power cannot be spelled out from sub- rule (3) of rule 9 of the Cadre Rules which confers power on the Central  Government to direct termination of appointment of a non-cadre officer to a cadre post, the orders passed by the Central  Government fixing  different dates  as the date from  which  the  period  of  officiation  of  each  of  the respondents is  to be  reckoned for  determining the year of allotment under  rule 3(3)(b)  of the  Seniority  Rules  are wholly arbitrary  and capricious. Further the failure of the Central Government to give a direction under sub-rule (3) of rule 9  to terminate  the  appointment  of  the  respondents implies that  their continuous  officiation on  a cadre post had the  tacit approval of the Central Government. [756 G-H; 757 A-D]      2.  In   these  cases,  the  respondents  as  non-cadre officers could  not be  denied  the  benefit  of  continuous officiations in  a senior  post  merely  because  the  State Deputation Reserve Quota was over utilised. [757 D-E] 747      Barjeet Singh v. Union of India & Ors., [1980] 3 S.C.R. 459; and  Amrik Singh  & Ors.  V. Union of India & Ors...... [1980] 3 S.C.R. 485 followed.      2.2 The  respondents who  were appointed to the Service by promotion  in accordance  with sub-rule  1 of  Rule 8 the Recruitment Rules  are entitled  under Explanation 1 to Rule 3(3)(b) of  the Indian Administrative Service (Regulation of Seniority) Rules,  1954 to  have the  entire period of their continuous officiation  in a senior post, for the purpose of determination of  their seniority,  counted from the date of their officiating  appointment to such senior post whichever was later.  They are  also entitled  by reason  of the legal fiction contained in Explanation 2 to have the entire period of their  continuous officiation without a break in a senior post from  the date of their officiating appointment to such senior post  till the  date of  their appointment  into  the service, counted  for purposes  of determining their year of allotment under  rule 3(3)(b)  of the  Indian Administrative Services (Regulation  of Seniority) Rules 1954. It cannot be said that  their officiation  in a  senior post on the cadre for the  periods in  question was merely fortuitous or stop- gap. [756 C-F]      2.3 Where  a person  other  than  a  cadre  officer  is appointed to  the service  by promotion  in accordance  with sub-rule (1) of Rule 8 of the Recruitment Rules, the year of allotment of  the junior most amongst the officers recruited to the  service in  accordance with  rule 7 of the Rules who officiated continuously in a senior post from a date earlier than the  commencement of such officiation by the former, is the determinative  factor in  allocation  of  the  "year  of allotment" under  rule 3(3)(b)  of the Seniority Rules. [755

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G-H; 756 A]      K.L. Jain  v.  Union  of  India,  [1984]  M.P.L.J.  284 affirmed and approved.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 5040- 5044 of 1985.      From the  Judgment and  Order dated  16.12.1983 of  the Madhya Pradesh  High Court  in Misc. Petition Nos. 297, 142, 830, 891 and 1520 of 1982.                             AND                Civil Appeal No. 5045 of 1985. 748      From the  Judgment and  Order  dated  9.9.1983  of  the Madhya Pradesh  High Court  in Misc.  Petition No.  1186  of 1981.      V. C. Mahajan, R.N. Poddar and Mrs. K. Kumarmanglam for the Appellants.      V. Bobde,  C.L.  Sahu  and  Miss  Bina  Gupta  for  the Respondents in C.A. Nos. 5040-5044 of 1985.      K.K. Venugopal,  C.L. Sahu  for the  Respondent in C.A. No. 5045 of 1985.      The Judgment of the Court was delivered by      SEN, J.  After hearing  learned counsel for the parties we had  by our  order dated October 11, 1985 dismissed these appeals. We now proceed to give the reasons therefor.      These appeals  by special  leave directed  against  the judgments and  orders of the Madhya Pradesh High Court dated September 9,  1983 and December 16, 1983 raise a question as to whether  a member  of the State Civil Service (Executive) on his  temporary appointment  by the State Government under r. 9  of the  Indian Administrative  Service. (Cadre) Rules, 1954 for  a period exceeding six months, is entitled to have his continuous period of officiation in a senior post, to be taken into  account in  reckoning the  ’year  of  allotment’ under  r.3  (3)(b)  of  the  Indian  Administrative  Service (Regulation of  Seniority)  Rules,  1954.  That  depends  on whether prior  approval of  the Central  Government  or  the Union Public  Service Commission  to such  appointment under sub-r.(2) of r.9 of the Cadre Rules for the appointment of a non-cadre officer to a cadre post by the State Government is a condition  precedent for  a valid appointment under r.9 of the Cadre  Rules.  Further,  the  question  is  whether  the existence of  a vacancy  in the cadre strength of promotees, i.e. over-utilization  of the State Deputation Reserve Quota is a  relevant factor  to be  taken  into  consideration  in determining the period of continuous officiation in a senior post on  the cadre  till the  Central Government accords its approval to such appointment under r.9 of the Cadre Rules in assigning the  year of  allotment under  r. 3(3)(b)  of  the Seniority Rules.      Facts in  these cases are more or less similar. It will suffice for  our purposes  first to  state the facts in K.L. Jain’s case.  The respondent was a substantive member of the State Civil 749 Service (Executive)  in the  State of Madhya Pradesh. He was on November  7, 1975  temporarily  appointed  by  the  State Government to the post of a collector which is a senior post on the Cadre under r. 9 of the Indian Administrative Service (Cadre) Rules, 1954 and had been continuously officiating on such  post   w.e.f.  November  10,  1975  till  the  Central Government accorded its approval on October 1, 1976, for his

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appointment  in   the  Indian  Administrative  Service.  The promotion quota  of non-cadre officers to cadre posts was 50 prior to  October 1,  1976 but was on that date increased to 56. The  respondent was  formally appointed  to  the  Indian Administrative Service by the Central Government on December 7, 1976.  The State  Government of  Madhya Pradesh by letter dated February  3, 1979  informed the respondent that he was assigned 1972  as the  year  of  allotment  by  the  Central Government.  Feeling   aggrieved,  the  respondent  filed  a petition before  the  High  Court  under  Art.  226  of  the Constitution for  an appropriate  writ, direction  or order, directing that  he should  instead be  assigned 1971  as his year of  allotment under  r. 3(3)(b)  of the Seniority Rules and his seniority should be fixed on that basis, and that on refixation of his seniority, he be allowed the consequential reliefs to which he may be entitled.      The appellant contested the respondent’s claim on three grounds, namely  : (i)  he was  not entitled  to  count  his continuous officiation  in the senior post of Collector from November 10,  1975 as  his appointment  to such  post in the cadre was  not  approved  by  the  Central  Government  till October 1,  1976 i.e.,  for any  period prior  to October 1, 1976; (ii)  there was  no vacancy  in the  cadre strength of promotees for  any period  prior  to  October  1,  1976  and therefore the  appointment of  the respondent to the post of Collector for the period from November 10, 1975 to September 30, 1976  had to  be ignored;  and  (iii)  there  was  over- utilization of  the State  Deputation Reserve  Quota and for this reason  also his  continuous officiation  on the senior post of a Collector could not be taken into account.      G.P. Singh,  CJ speaking for himself and Faizanuddin, J in K.L.  Jain v.  Union of  India, (1984) MPLJ 284 held that though  there  was  no  specific  approval  of  the  Central Government to  the appointment of the respondent, such prior approval  was   not  a   condition  precedent  for  a  valid appointment to  a cadre  under r.9  of the  Cadre Rules  and therefore the  continuous officiation  by the  respondent as the Collector for period from November 10, 1975 to September 30, 1976  could not  be  ignored  on  the  ground  that  the appointment was  not specifically  approved by  the  Central Government. Further,  it was  held that  the existence  of a vacancy 750 in the promotion quota of cadre officers was not a condition pre-requisite for  making  an  appointment  of  a  non-cadre officer to  a cadre  post under  r.9 of  the Cadre Rules and therefore, merely  because there was over-utilization of the State  Deputation  Reserve  Quota  had  no  bearing  on  the question  of   the  validity   of  the  appointment  of  the respondent on  a cadre post. It also held that the condition of approval  by  the  Central  Government  required  by  the proviso to  cl.(1) of  s.III of  Schedule II  of the  Indian Administrative Service  (Pay) Rules,  1954 was  only for any fixation and  it had  nothing to do with the validity of the officiation of  a non-cadre  cadre officer  in a  cadre post under r.9  of the  Cadre Rules. It, accordingly, allowed the writ petition  filed by  the respondent  and held  that  his continuous officiation  in a  senior post  of Collector from November 10,  1975 was  in accordance  with r.9 of the Cadre Rules and  the same  must enure  for his benefit to give him seniority under r.3 (3)(b) of the Seniority Rules.      In the connected case, G.N. Tiwari and 19 other members of the  Madhya Pradesh  cadre of  the Indian  Administrative Service who  had similarly  been deprived  of the benefit of their continuous  officiation on their temporary appointment

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to the  cadre post  of a  Collector by  the State Government under r.9  of the Cadre Rules and had been assigned the year 1967 instead  of 1966, the year 1968 instead of 1967, or the year 1972  instead of 1971 as the year of allotment under r. 3(3)(b) of  the Seniority Rules also moved the High Court by a petition  under Art.  226 of the Constitution based on the same grounds,  and prayed for the grant of similar relief. A Division Bench  consisting of  J.S. Verma  and C.P.  Sen, JJ following the  decision in  K.L.Jain’s case allowed the writ petition filed  by the  aforesaid respondents  and  directed that they be assigned the years 1966, 1967 and 1971 as their years of  allotment respectively  under r.  3(3)(b)  of  the Seniority Rules,  as claimed by them, and their placement in the seniority  list be accordingly revised. It expressed the hope that  the State  Government and  the Central Government would give  them all the consequential reliefs to which they may be  entitled on  re-fixation of their seniority. Against the two  judgments, the  Union of  India has preferred these appeals by special leave.      In support  of the  appeal,  learned  counsel  for  the appellant  advanced   two  contentions,  namely  :  (1)  The respondents were not entitled to have their entire period of continuous officiation  in a  senior post  under r.9  of the Cadre Rules  taken into  account in  assigning the  years of allotment under  r. 3(3)(b)  of the Seniority Rules as their temporary appointment to such senior 751 post in  the cadre  was subject to the prior approval of the Central Government  under sub-r.(2)  of  r.9  of  the  Cadre Rules, and  (2) They as non-cadre officers were not entitled to appointment  to the  cadre post  of a  Collector  because there was  no  actual  vacancy  in  the  cadre  strength  of promotees. It  is  urged  that  the  power  of  the  Central Government under  sub-r.(3) of  r.9 of  the Cadre  Rules  to direct termination  of appointment  of a person other than a cadre officer  appointed for a period exceeding three months is a  larger power and necessarily carries within its ambit, the lessor  power to  direct curtailment  of the  period  of officiation. It  is further  urged that the respondents were not entitled  to the  benefit of continuous officiation in a senior post to be taken into account in reckoning their year of allotment  because there  was no  vacancy  in  the  cadre strength of  promotees. In  fact, there was over-utilization of State  Deputation Reserve Quota. We are afraid, we cannot accept this line of reasoning.      The assignment  of the year of allotment is governed by r.3 of  the Indian  Administrative  Service  (Regulation  of Seniority) Rules,  1954. The  relevant clause  applicable to the respondents  is that contained in r. 3(3)(b) which reads as follows:           "3(3).  The   year  of  allotment  of  an  officer           appointed to the Service after the commencement of           these rules shall be -           (a)          x           x           x           x           (b) Where  the officer is appointed to the Service           by promotion  in accordance  with sub-rule  (1) of           rule 8  of the  Recruitment  Rules,  the  year  of           allotment of  the junior-most  among the  officers           recruited to the Service in accordance with rule 7           of these  rules who  officiated continuously  in a           senior post  from a  date earlier than the date of           commencement of such officiation by the former :           Provided that  the year of allotment of an officer           appointed to  the Service  in accordance with sub-           rule (1)  of rule  8 of  the Recruitment Rules who

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         started officiating  continuously in a senior post           from a  date earlier than the date of which any of           the officer recruited to the Service in accordance           with rule 7 of these Rules so started officiating,           shall  be   determined  ad   hoc  by  the  Central           Government  in   consultation   with   the   State           Government concerned : 752           Explanation 1 - In respect of an officer appointed           to the  Service by  promotion in  accordance  with           sub-rule (1)  of rule  8 of the Recruitment Rules,           the period  of his  continuous  officiation  in  a           senior   post   shall,   for   the   purposes   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           latter :           Explanation 2 - An officer shall be deemed to have           officiated continuously  in a  senior post  from a           certain date  if during  the period from that date           to the  date of  his confirmation  in  the  senior           grade he  continues to  hold without  any break or           reversion a senior post otherwise than as a purely           temporary or local arrangement."      It is  common ground  that the  post of  Collector is a senior post.  It is  not disputed  that the respondents were continuously officiating  in a  senior post for long periods prior to  the  date  of  their  appointment  to  the  Indian Administrative Service.  It is  also not  in dispute that if the  entire   period  of   continuous  officiation   by  the respondents in  the senior  posts of  Collectors were  taken into account,  they would  be  entitled  to  the  year  1966 instead of  1967, the year 1967 instead of 1968 and the year 1971 instead  of 1972  as the ’year of allotment’ to them in accordance with r. 3(3)(b) of the Seniority Rules.      The appointment  of the  respondents to the senior post of Collector  was made  in accordance with r.9 of the Indian Administrative Service  (Cadre) Rules,  1954. It is in these terms:           "9. Temporary appointment of non-cadre officers to           cadre posts -           (1) A  cadre post  in a  State may  be filled by a           person who  is not  a cadre  officer if  the State           Government is satisfied -           (a) that  the vacancy  is not  likely to  last for           more than three months, or           (b)  that  there  is  no  suitable  cadre  officer           available for filling the vacancy. 753           (2) Where in any State a person other than a cadre           officer is  appointed to a cadre post 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  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

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         exceeding six months, the Central Government shall           report the  full facts to the Union Public Service           Commission with  the reasons  for holding  that no           suitable officer is available for filling the post           and may  in the  light of  the advice given by the           Union  Public  Service  Commission  give  suitable           direction to the State Government concerned."      It is  plain upon a construction of r.9 that under sub- r. (1) the State Government can direct that a cadre post may be filled  by a  person who  is not a cadre officer if it is satisfied that  the vacancy  is not  likely to last for more than three months or that there is no suitable cadre officer available  for   filling  the   vacancy.  In   these  cases, admittedly, the  appointments of each of the respondents who was a  person other  than a cadre officer to the senior post of Collector  in the  cadre lasted for nearly a year or more and  therefore   exceeded  the   period  of   three   months contemplated by sub-r.(1). Such an appointment could be made by the State Government on being satisfied that there was no suitable officer  for filling the vacancy. It is not averred in the  returns filed by the State Government or the Central Government in  the High  Court that  this condition  was not satisfied when the respondents were so appointed. Under sub- r.(2), where  in any  State a  person  other  than  a  cadre officer is  appointed to a cadre post for a period exceeding three months,  the State Government is required to forthwith report the  fact to the Central Government together with the reasons for making the appointment. From the documents filed by the  State Government  in the High Court, it appears that such a  report was  made by  the  State  Government  to  the Central Government  on June 26, 1976. The Central Government by letter dated February 19, 1977 asked for a consolidated 754 proposal for  approval of  officiation of non-cadre officers on cadre  posts for the half year ending September 30, 1976. In compliance  therewith,  the  State  Government  sent  the required proposal  on March  29, 1977.  Under sub-r. (3), on receipt of  a  report  under  sub-r.(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 Government  shall accordingly give effect thereto. Under sub-r.(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 Central Government is required to report the full facts to the Union Public Service Commission with the  reasons for  holding that  no suitable  officer is available for  filling the post and may, in the light of the advice given  by the  Union Public  Service Commission, give suitable direction to the State Government concerned in that behalf.      Interpreting the  provisions of  sub-rules (2),(3)  and (4), the High Court in K.L. Jain’s case, rightly observed :           "In the instant case, the Central Government never           directed the  State Government  to  terminate  the           petitioner’s appointment.  It is also not the case           that the  U.P.S.C.  tendered  any  advice  to  the           Central  Government   that  the   appointment   be           terminated. It  is true  that there  is a specific           approval  of   the  Central   Government  to   the           appointment of  the petitioner  but that  is not a           condition precedent  for a valid appointment under           Rule 9  and  the  petitioner’s  officiation  in  a           senior cadre  post from 10th November 1975 to 30th           September 1976  cannot be  ignored on  the  ground

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         that the appointment was not specifically approved           by the  Central Government.  The petitioner’s said           officiation cannot  also be  ignored on the ground           that there  was no  vacancy during  this period in           the promotion quota of the cadre officers." The High  Court held  that prior  approval  of  the  Central Government was  not a condition precedent to the appointment of a  non-cadre officer  to a  cadre post  under r.9  of the Cadre Rules. It further held that the existence of a vacancy in the  promotion quota  was not  a pre-requisite for making such an  appointment. The appointment of the respondent K.L. Jain to  the  Indian  Administrative  Service  made  by  the Central Government  on December  7, 1976  was on a post when there was admittedly a vacancy in the promotion quota 755 of non-cadre  officers, but his temporary appointment by the State Government  to the post of Collector which is a senior post in  the cadre  under r.9  on November  7, 1975 was at a time when  there was no such vacancy in the promotion quota. It appears that the promotion quota of non-cadre officers to cadre posts  was 50 prior to October 1, 1976 and was on that date increased  to 56.  Since the existence of a vacancy was not a condition precedent for making an appointment under r. 9 of  a non-cadre  officer to  a cadre  post, the High Court held that  the respondent’s  officiation from  November  10, 1975 to  September 30, 1976, could not be held to be invalid or ignored.  On the  same reasoning,  it held  that the fact that the  State Government  had over-utilized the Deputation Reserve Quota  during the  aforesaid period,  could have  no bearing on  the question  of validity  of his appointment on the cadre post. It then added :           "It may  be that if the Central Government thought           that the State Deputation Reserve Quota which gave           rise to  a vacancy  of a cadre post, it could have           directed the  State Government  to  terminate  the           petitioner’s appointment  but such  a  course  was           never adopted.  As the  Central Government did not           issue any  direction to  the State  Government  to           terminate  the   petitioner’s   appointment,   the           appointment has  to be  held to be valid and given           effect to."      In that view, the High Court held that the respondent’s continuous officiation  in a  senior post  from November 10, 1975 was  in accordance  with r.9 of the Cadre Rules and the same must  enure for his benefit for reckoning his seniority under r.3(3)(b)  of the  Seniority Rules.  Further, it  held that the  requirement of  approval of the Central Government as contained  in the  proviso to cl. I of s. III of Schedule II of  the Indian  Administrative Service  (Pay) Rules, 1954 cannot be  imported into r.9 of the Cadre Rules or r.3(3)(b) of the Seniority Rules. The view expressed by the High Court in K.L.  Jain’s case was followed with approval in the later case of G.N. Tiwari & Ors. v. Union of India.      Where a  person other than a cadre officer is appointed to the  Service by promotion in accordance with sub-r.(1) of r.8 of  the Recruitment  Rules, the year of allotment of the junior-most amongst the officers recruited to the Service in accordance with r.7 of the Rules who officiated continuously in a  senior post  from a date earlier than the commencement of such  officiation by  the former,  is  the  determinative factor in  allocation of  the ’year  of allotment’  under r. 3(3)(b) of the Seniority Rules. 756 Proviso thereto  enjoins that  the year  of allotment  of an officer appointed  to the  Service in  accordance with  sub-

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r.(1)  of   r.8  of   the  Recruitment   Rules  who  started officiating continuously  in  a  senior  post  from  a  date earlier than the date on which any of the officers recruited to  the   Service  in   accordance  with   r.7  so   started officiating, shall  be determined  and hoc  by  the  Central Government  in   consultation  with   the  State  Government concerned. Explanation  1 to  r.3(3)(b) interdicts  that  in respect of  an officer appointed to the Service by promotion in accordance  with sub-r.(1)  of  r.8  of  the  Recruitment Rules, the  period of his continuous officiating in a senior post shall,  for purposes of determination of his seniority, count only  from the  date of  inclusion of  his name in the Select List, or from the date of his officiating appointment to  such   senior  post,  whichever  is  later.  Explanation provides that  an officer  shall be deemed to have officiate continuously in  a senior post from a certain date if during the period  from the date of the date of his confirmation in the senior  post he  continued to  hold without any break or reversion  the  senior  post  otherwise  than  as  a  purely temporary  or   local  arrangement.   In  these  cases,  the respondents who  were appointed  to the service by promotion in accordance with sub-r.(1) of r.8 of the Recruitment Rules were entitled  under Explanation I to have the entire period of continuous  officiation in a senior post, for the purpose of determination  of their  seniority, counted from the date of inclusion  of their  names in the Select List or from the date of  his officiating  appointment to  such senior  post, whichever was  later. They  were also  entitled by reason of the legal  fiction contained  in Explanation  2 to  have the entire period  of their  continuous  officiation  without  a break in  a senior  post from  the date of their officiating appointment to  such senior  post till  the  date  of  their appointment  into  the  Service,  counted  for  purposes  of determining their  year of allotment under r. 3(3)(b) of the Seniority Rules. It cannot be said that their officiation in a senior  post on  the cadre for the periods in question was merely fortuitous or stop-gap.      We are not impressed with the submission that the power of  the   Central  Government   under  sub-r.(3)  to  direct termination of  appointment of  a person  other than a cadre officer to  a cadre post for a period exceeding three months or more  was a larger power and carried with it the power to direct curtailment  of the  period of  officiation  of  such person. Obviously,  the power  to direct  termination of the appointment of  a non-cadre  officer in  a  senior  post  is distinct from  the power to direct curtailment of his period of officiation. There is no such provision made in the Cadre Rules empowering the Central Government to direct the 757 curtailment of  the period  of officiation  of  a  non-cadre officer on  a cadre  post for purposes of reckoning his year of allotment  under r.3(3)(b) of the Seniority Rules. Such a power cannot  be spelled  out from  sub-r.(3) of  r.9 of the Cadre Rules which confers power on the Central Government to direct termination  of appointment of a non-cadre officer to a cadre  post. In  the absence  of  such  a  provision,  the impugned order  passed by  the Central Government appointing October 1,  1976 as  the  date  from  which  the  period  of officiation is  to be  reckoned for  determining the year of allotment under  r.3(3)(b) of the Seniority Rules was wholly arbitrary and  capricious and  therefore rightly struck down by the  High Court. The failure of the Central Government to give a  direction under  sub-r.(3) of  r.9 to  terminate the appointment of the respondents implies that their continuous officiation on  a cadre  post had  the tacit approval of the

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Central Government,  particularly in  view of  the fact that the Central  Government by  letter dated  February 19,  1977 required the  State  Government  to  submit  a  consolidated proposal for approval of officiation of non-cadre officer on cadre posts  for the  half year  ending September  30, 1976. This was  followed by a report of the State Government dated March 29,  1977.  The  Central  Government  by  order  dated October 1,  1976 accorded  its approval to their appointment in  the  Indian  Administrative  Service.  Furthermore,  the respondents as  non-cadre officers  could not  be denied the benefit of  continuous officiation  in a  senior post merely because  the   State  Deputation   Reserve  Quota  was  over utilised: vide  Harjeet Singh  v. Union  of  India  &  Ors., [1980] 3 S.C.R. 459 and Amrik Singh & Ors. v. Union of India & Ors., [1980] 3 S.C.R. 485.      The result  therefore is that the appeals must fail and are dismissed. There shall be no order as to costs.      We  are   constrained  to  observe  that  although  the judgment of  the High Court in K.L. Jain’s case was rendered as far  back as  September 9,  1983 and  that in the case of G.N. Tiwari  on December  16, 1983, the directions issued by the High Court have not been implemented so far. We hope and trust that  the Central Government will take steps to comply with the directions issued by the High Court forthwith. S.R.                                        Appeals allowed. 758