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PETITIONER: ANIL KUMAR CHOWDHURY

       Vs.

RESPONDENT: STATE OF ASSAM & OTHERS

DATE OF JUDGMENT07/03/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN

CITATION:  1975 AIR 1061            1975 SCR  (3) 878  1975 SCC  (4)   7

ACT: I.A.S.  (Appointment by promotion)  Regulations,  1955--Rule 3(3)(b)--Whether holding posts equivalent to cadre post  but not declared to be so sufficient compliance with rule 3  (3) (b)--Whether  gap  of  one week  breaks  the  continuity  in service.

HEADNOTE: The  petitioner joined Assam Civil Service Class I  in  1949 and was confirmed as such in 1957.  In 1961 he was  included in  the  Select List prepared under the  provisions  of  the I.A.S. (Appointment by Promotion) Regulations, 1955.  He was admittedly  functioning in senior posts equivalent to  cadre posts reserved for I.A.S. personnel right from the year 1960 till he was inducted in I.A.S. cadre except for a weeks  gap in  1966.  The petitioner claims to be placed in the  I.A.S. Gradation List above Serial No. 34 and not at Serial No.  65 on  the  ground that the services rendered  by  him  between 1960-67  should be taken into consideration for  determining his  real  length of service.  Rule 3(3)(b)  of  the  Indian Administrative Service (Regulation of Seniority) Rules, 1954 reads as under:               "Rule 3(3)-The year of allotment of an Officer               appointed    to   the   service   after    the               commencement of these rules shall be :               (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 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 rule 7 of these rules, so started officiating, shall be determined ad hoc by the Central Government in  consultation

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with the State Government concerned. Provided  further that an officer appointed to  the  service after  the  commencement of these rules in  accordance  with sub-rule  (1), of rule 8 of the recruitment rules  shall  he deemed  to  have been officiating continuously in  a  senior post  prior to date of inclusion of his name in the  ’Select List’  prepared in accordance with the requirements  of  the Indian  Administrative  Service (Appointment  by  Promotion) Regulations  framed  under  sub-rule (1) of rule  8  of  the Recruitment  Rules, if the period of such officiation  prior to  that  date  is approved by  the  Central  Government  in consultation with the Commission. Explanation   1.-The  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." The  various posts held by the petitioner during the  period 1960-67  were  cadre posts rankwise.  Those posts  were  not formally  declared equivalent to cadre posts as required  by rule  3(3)  (b).  In effect some of the posts  held  by  the petitioner  during the period in question were  superior  to the cadre posts. HELD  :  Although the petitioner  has  occupied  responsible positions vis-a-vis ,cadre post. the formal requirements  of rule  3(3)  (b) are basic to his claim  for  pre-dating  his entry  into  the  I.A.S. Secondly, the rule  requires  as  a condition 879 precedent  that  officiation must be in  a  particular  post declared  as  cadre post by the State  Government  with  the approval  of the Central Government.  The argument that  the declaration  of the State Government must be  inferred  from the  counter affidavit filed in this Court was negatived  on the  ground that the Governments speak and act formally  and in solemn writing and not informally.  Even if it is assumed that the State Government has made such a declaration in the counter  affidavit no such declaration has been approved  by the Central Government as required. [883 D-E, G-H; 884 D] HELD   FURTHER  :  The  petitioner’s  officiation  was   not continuous  since  there  was a gap of one  week  and  that, therefore, the legal ingredient of continuity in service  is not covered up.  It was observed that this Court hopes  that the State will have compassionate regard to the  substantial fulfilment of the qualifications for pre-dating petitioner’s seniority in the I.A.S. when promotional prospects arise not because  the  petitioner has a right but  because  his  past should not altogether be lost. [884 D-F]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 379 of 1972. Petition Under Article 32 of the Constitution. Sachin  Choudhury,  U. P. Singh, Sukumar Mitter  and  S.  N. Choudhry, for the Petitioner. S. K. Nandy, for respondent No. 1. L.  N.  Sinha,  Solicitor General of India, P.  P.  Rao  and Girish Chandra;   for respondent No. 2. D. N. Mukherjee and G. S. Chatterjee, for respondent Nos. 3, 4, 8, 9, 11, 12, 15, 19, 22, 26, 31 & 32. The Judgment of the Court was delivered by- KRISHNA  IYER,  J.-A  senior civil  servant  of  the  Indian Administrative Service, brought in by promotion and borne on

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the  cadre  of the Assam State (now of the  joint  cadre  of Assam  & Meghalaya), seeks, in this petition under Art.  32, redress  of alleged infraction of his fundamental  right  to equality  under Art. 16, vis a vis certain direct  recruits. We  will proceed to scan the case to see if, on the  merits, this  public  servant  has suffered a big  illegal  blow  by disminishing  his length of service, that being the core  of the  controversy.  For this reason, we are not  disposed  to rebuff the petitioner in limine on the preliminary objection urged by the learned Solicitor General To bar the processual doors  of justice like harsh judicial janitors-if one has  a right to relief-is the reluctant refuge of a Court-and  that at the instance of the State, at the final stage. Stripped  of details and in simple, terms, the  gravamen  of the  petitioner’s grievance is that while he is eligible  to be  placed  above serial number 34 in the  I.A.S.  Gradation List  (Annxure F), he has been illegally  pitch-forked  into serial  number  65.   His real length of  service  has  been lopped off by denial of a considerable period pent in  posts equivalent in status & responsibility to I.A.S. cadre  posts and  in violation of Rule 3(3) of the I.A.S. (Regulation  of Seniority)  Rules,  1954.   We will amplify  this  case  and examine the alleged infraction of his right. 880 The story of the Indian Administrative Service, its genesis, the  sources  of recruitment and kindred matters  have  been delienated  in  some detail in a case where rule 3  (3)  (b) aforesaid  fell for consideration.  That is R. P. Khanna  v. S.,  A.  F. Abbas(1).  We need not go over the  ground  once again  since the necessary rules and regulations  have  been fully set out in that judgment so that we will continue our- selves to the specific provision that needs a close look. The 1954 Cadre Rules defined ‘cadre post’ to meaN any of the posts  specified  in item 1 of the Schedule  to  the  Indian Administrative   Service   (Fixation  of   Cadre   Strength) Regulations.   Another  term which crops up in  the  various rules  is  ’senior  post’  which  means.  according  to  the Regulation  of  Seniority Rules, 1954, a post  included  and specified  under  item 1 of the Cadre of each State  in  the Schedule to    the  Fixation of Cadre Strength  Regulations, 1955.  The question of   seniority as between promotees  and direct  recruits  is covered by r. 3 (3) (b) of  the  Indian Administrative  Service  (Regulation  of  Seniority)  Rules, 1954.  The crucial rule that is decisive may be extracted to facilitate further discussion :               "Rule 3(3)-The year of allotment of an Officer               appointed    to   the   service   after    the               commencement of these rules shall be               (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 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 rule 7 of these               rules,   so  started  officiating   shall   be

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             determined ad hoc by the Central Government in               consultation   with   the   State   Government               concerned.               Provided further that an officer appointed  to               the  service after the commencement  of  these               rules in accordance with sub-rule (1) of  rule               8 of the recruitment rules shall be deemed  to               have been officiating continuously in a senior               post  prior  to the date of inclusion  of  his               name   in  the  ’Select  List’   prepared   in               accordance with the requirements of the Indian               Administrative    Service   (Appointment    by               Promotion)  regulations framed under  sub-rule               (i) of rule 8 of the recruitment Rules, if the               period of such officiation prior to that  date               is  approved  by  the  Central  Government  in               consultation with the Commission. (1) [1972] 3 S.C.R. 548. 881               Explanation 1.-The 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."                                      (emphasis, ours) The four-fold components of the ’year of allotment  formula’ emerging  from  the  cumbrous  rule  are  (a)  the  year  of allotment of the, juniormost among the officers recruited to the service by the direct method; (b) the year from when the claimant  officer ’officiated continuously in a senior  post from  a date earlier than the date of commencement  of  like officiation  by the juniormost direct recruit of  the  year; (c)  the promotee shall be deemed to have  been  officiating continuously in a senior post even prior to his inclusion in the  select  list  ’if the period  of  such  officiation  is approved by the Central Government in consultation with  the (Union  Public  Service)  Commission’; and  (d)  the  deemed continuous  officiation  in  a senior post  shall  have  its genesis  on  that  date from which  ’he  continues  to  hold without arty break or reversion a senior post otherwise than as a purely temporary or local arrangement’.  The  applicant has thus four hurdles to surmount before he can WA his prior officiating  service and ante-date his baptism into the  IAS category. Back to the facts.  The petitioner came into the Assam Civil Service, Class I, in 1949, was confirmed as such in 1957 and since  than spiralled his way up to MI a set of  responsible positions.  By the end of 1961 he was included in the Select List   prepared   under  the  provisions   of   the   I.A.S. (Appointment by Promotion) Regulation. 1955.  Although  this officer  was  admittedly  functioning  in  senior  positions equivalent  to cadre posts reserved for IAS  personnel,  his actual  induction  into this coveted  Indian  Administrative Service  took  place  only  on  February  1,  1967  and  his confirmation  therein,  in  the Senior Scale,  only  a  year later.    The  dispute  centres  round  the  claim  of   the petitioner  to credit for alleged continuous officiation  in his  offices,  equivalent to cadre posts, while  fixing  his date  of birth into this privileged AU India  Service.   His official  horoscope and even post-retirement prospects  will very  much depend on the year of entry into this  close  IAS preserve.

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The  impressive set of posts occupied by the  petitioner  do credit  to his claim.  They begin with June 2, 1960 and  run on without a break upto when he was regularly promoted  into the  IAS except for a week’s gap early in March  1966.   The contra-temps is that while rank-wise these offices are cadre posts  when  the petitioner filled them, no  declaration  as demanded by the relevant rule 3 (3) (b) had been made.  This legal  omission  is  being  pressed  into  service  by   the Solicitor  General to deny what in morality belongs  to  the petitioner. The  bone  of  contention  is that  these  posts  were,  not formally declared equivalent to ’cadre posts’ with the Union Government’s  approval and service therein was  insufficient to back the right set up. 882 Moreover,  there was an interregnum of a week when,  on  his Own showing, he was not officiating in a cadre post.  A miss is  as good as a mile and continuity means continuity.   The short   hiatus   destroys  the  credential   for   seniority accumulated  by long officiation.  We will deal  with  these submissions in opposition in the background of the  relevant law. The  capacities  in which the petitioner  served  Government since  1960  are  catalogued  by  him  and  asserted  to  be ’factually  equivalent  to the post of  Additional  District Magistrate  and  in  fact  superior  to  that  post’.    The Additional  District  Magistrate’s  post  is  a  cadre  post reserved for IAS personnel.  The short issue here is whether legally these various posts were declared cadre posts.  They were not. We   have  no  doubt  that  the  petitioner   has   occupied responsible  positions vis-a-vis cadre posts.  Even so,  the formal requirements of the rule just quoted are basic to his claim  for adding special antecedent merit to  pre-date  his entry  into  the IAS.  We may safely proceed  on  the  facts affirmed  in  the counter-affidavit of the  Union  of  India since no exception can ordinarily be, or has been, taken  to that course.  Paragraph 3.1 of that affidavit states :               "on   a  careful  scrutiny  of  the   relevant               records,   however,  it  is  seen   that   the               petitioner,  Shri  Anil Kumar  Choudhary,  was               actually officiating in the non-cadre post  of               Additional  Deputy Commissioner, United  Mikar               and  North Cachar Hills and held  the  current               charge  of  the post of  Deputy  Commissioner,               United Mikar and North Cachar Hills.  When the               proposal  for  the appointment  of  Shri  Anil               Kumar  Choudhary and the determination of  his               seniority  was sent for the first time by  the               Government of Assam, under their No. AAI/56/64               dated 1st June, 1966, the Government of  Assam               had  indicated that Shri Anil Kumar  Choudhary               was  holding the non-cadre post of  Additional               District  Magistrate, United Mikar  and  North               Cachar  Hills  with effect from  9-12-1964  to               3-3-1966.  A copy of the proposal sent by them               is   given   as   Annexure   S-II   to    this               Supplementary        Counter        Affidavit.               Subsequently,  the Government of Assam  issued               orders  on  19th August 1966  appointing  Shri               Anil    Kumar    Choudhary     retrospectively               appointing  the  petitioner  to  officiate  as               Deputy  Commissioner, United Mikar  and  North               Cachar  Hills,  with  effect  from  the   10th               December, 1964 to the 2nd March, 1966.  A copy

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             of  the said order of the Government of  Assam               is   exhibited  as  Annexure  S-II   to   this               Supplementary Counter Affidavit." The  plain consequence of this denial is disastrous  because the posts he had occupied in the intervening years  anterior to  his appointment as IAS officer are non-cadre  posts  and cannot, therefore, possess the sanctity which officiation in cadre-posts  may  have.  Secondly, the rule requires,  as  a condition precedent, officiation in a particular post 883 declared as cadre post by the State Government plus approval thereof, by the Central Government.  The affidavit on behalf of the Central Government has categorically stated thus :               "From  the 9th March, 1966, till the  date  of               his  appointment  to the service that  is  1st               Feb. 1967, he held non-cadre post of Chairman,               Gauhati  Development  Authority  and   Liaison               Officer,  Industries.  His officiation in  the               cadre   post   was  not   approved   and   his               officiation  in  the  ex cadre  post  was  not               counted  for  the purposes  of  his  seniority               because the ex cadre post of Chairman, Gauhati               Development  Authority  and  Liaison  Officer,               Industries  was not declared equivalent  to  a               Cadre  post by the State  Government.   Hence,               the date of his appointment to the Service was               the  relevant  date for the  fixation  of  his               seniority."                                        (emphasis. ours) We  have already pointed out with reference to the  rule  in question that the declaration of equivalence has to be  made by the State Government.  Counsel for the petitioner rightly argues  that such declaration can be made ex-post facto  and there  is authority of this Court for that proposition  vide R.   P.  Khanna’s  Case,  (supra).   However,  Shri   Sachin Choudhary  is  not able to put his finger  on  any  specific declaration  of  equivalence made by  the  State  Government except  to state that in the counter affidavit by the  State Government  there  is  a statement  admitting  the  post  of Additional  District  Magistrate and those  higher  in  rank claimed  to  have  been occupied by  the  petitioner  to  be factually  correct.   Super-added is  the  State’s  averment which goes in substantiation of the petitioner’s  contention and may well be extracted :               "The  posts mentioned in sub-paras (i) to  (v)               are  equivalent to cadre posts  of  Additional               District   Magistrate  Deputy   Secretary   or               Settlement  Officer.   The post  mentioned  in               sub-para  (vi) is a cadre post and  the  posts               mentioned  in sub-para (vii) were regarded  in               rank, status, and responsibility as above  the               cadre posts of Additional District  Magistrate               and   Deputy  Secretary.   These   posts   are               equivalent   to  the  cadre  post  of   Deputy               Commissioners  or  Heads of  Departments  post               like  Commissioner of Taxes and  Registrar  of               Cooperative Societies of the I.A.S. Cadre." Could  there be a declaration without a formal  notification to  that effect?  We think not.  Governments speak  and  act formally  and  in solemn writing, not  informally.   In  the present  case no formal declaration is found but  the  State Government  is prepared to go to the extent of  helping  the petitioner with the Statement               "Formal  declarations  under  Rule  9  of  the               I.A.S.  (Pay) Rules, 1954, are  not  necessary

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             when  non  cadre officers bold such  ex  cadre               equivalent posts." Shri Sachin Choudhary uses this averment to contend that the State  Government’s  affidavit may be treated  as  a  formal declaration of 884 equivalence  but  the difficulty is that there has  been  an amendment  of the Rules in April 1967 whereby the  power  of the  State  Government to make retroactive  declarations  is deleted.  Moreover, as the Solicitor General points out such declaration  as is found to have been made by the State  has reference to the Pay Rules and not the Seniority Rules  bear upon the present dispute. Another impediment confronting the unfortunate petitioner is that  the  proviso to Rule 3(3)(b) requires not  merely  the State  Government’s  declaration regarding the  posts  being equal  to cadre post but such officiation must be  with  the approval   of  the  Central  Government  ;  none   such   is forthcoming.   And, indeed, the absence of such approval  is the stand of the Central Government.  The Solicitor  General not  content  with  these vital flaws points  out  two  more shortcomings.  In his submission, some of the posts occupied by  the  petitioner  were  purely  temporary  and  this   is testified  by  the  record.  And so such  shortterm  ad  hoc officiation is insufficient.  Moreover, there is a break  in the  officiating service of the petitioner between March  3, 1966  and  March, 9, 1966.  Continuity once  disrupted,  the claim  breaks down.  Service for long years comes to  nought merely  because of a week’s discontinuity.  In law  a  short gap  may prove a costly failure.  The plea that this  little interval  was  bridged  by the Joining  time  taken  by  the official may be good as an explanation for not taking charge immediately,  but  cannot cover up the legal  ingredient  of continuity in service. True, on account of certain formal non-conformance with  the strictness  of the rules, the petitioner loses  the  battle, but we hope the State will have compassionate regard to  the substantial fulfillment of the qualifications for pre-dating his seniority in the IAS the rules predicate.  The long  but unavailing  officiating  experience of  the  petitioner  may judiciously  be  taken  into  account  by  the  State   when ,promotional prospects arise, is not because the  petitioner has  a right but because his past should not  altogether  be lost. The  writ petition is dismissed.  Parties will pay and  bear their costs. P. H. P.                 Petition dismissed 885