25 August 2004
Supreme Court
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M.AMANULLAH KHAN Vs GOVT. OF INDIA .

Bench: ARIJIT PASAYAT,D.M. DHARMADHIKARI
Case number: C.A. No.-007252-007252 / 1999
Diary number: 77779 / 1996
Advocates: R. P. WADHWANI Vs P. PARMESWARAN


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CASE NO.: Appeal (civil)  7252 of 1999

PETITIONER: M. Amanullah Khan                                                

RESPONDENT: Government of India & Ors.                               

DATE OF JUDGMENT: 25/08/2004

BENCH: ARIJIT PASAYAT & D.M. DHARMADHIKARI

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J.

       Challenge in this appeal is to the legality of  judgment rendered  by the Chennai Bench of the Central Administrative Tribunal  (hereinafter referred to as the ’CAT’).  Appellant was applicant in two  original application nos. 1188/1993 and 1368/1993. The present appeal  relates to OA No. 1368/1993.  By the common judgment the original  applications of two applicants i.e. the present appellant and one Mr.  N. Veeramani were disposed of.  In the concerned O.A. claim of the  appellant was as follows:

       Between 6.8.1980 and 14.12.1982 he was holding the post of  Divisional Manager, Coonoor Division, Tamil Nadu Tea Plantation  Corporation, Coonoor. Between 15.12.1982 and 12.6.1986, he was Sub  Divisional Forest Officer in the Social Forestry Division at  Tiruchendur.  From 13.6.1986 to 12.2.1988, he was Divisional Forest  Officer, Social Forestry Division, Tirunelveli.  From 13.2.1988 to  22.7.1990, he was Divisional Forest Officer, Social Forestry Division,  Ramnad.  From 23.7.1990 to 2.6.1991 he was Deputy Conservator of  Forests, Kundha Soil Conservation, Coonoor.  From 3.6.1991 to 17.6.1991  he was District Forest Officer, Dindigul Division, Dindigul. Finally  from 18.6.1991 onwards, he was District Forest Officer, Madurai  Division, Madurai.  He was appointed to the Indian Forest Service (in  short the ’I.F.S’) on 27.3.1992. All the above posts held by him from  6.8.1980 onwards are cadre posts and his long officiation in cadre  posts should be taken as continuous officiation for the purpose of  fixing his seniority in the I.F.S.

       Stand of the first respondent-Union of India before the CAT and  the second respondent- the Government of Tamil Nadu was that the  applicant was not a cadre officer and he was also not a Select List  Officer, and in the absence of a certificate by the second respondent  in terms of Explanation 4 to Rule 3(2)(c) of the Indian Forest Service  (Regulation of Seniority) Rules, 1968 (in short the ’Seniority Rules’),  the officiation is of no consequence and is fortuitous. The first   respondent also took the stand that the applicant being a non-cadre  officer, who had officiated in a cadre post beyond the period of six  months, cannot claim the service for seniority in the absence of  approval from the Central Government and the Union Public Service  Commission (in short the ’UPSC’) in terms of Rule 9 of the Indian  Forest Service (cadre) Rules, 1966 (in short ’Cadre Rules’).                     CAT accepted the stand of the respondents and held that the

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appellant was not entitled to any preference in the year of allotment,  and the services in officiating posts were not to be reckoned for the  purpose of seniority.  Accordingly, the prayer was not accepted.

Learned counsel for the appellant submitted that when the  appellant had officiated for nearly 10 years in higher posts it was  illogical and inequitable to deny him the benefit while fixing  seniority.  It was submitted that relaxation of the rules should have  been done to extend the benefit to the appellant.   

Mr. Amarendra Sharan, learned Additional Solicitor General  submitted that the decision of CAT is in line with the statutory  prescription and no infirmity in the CAT’s view can be noticed.   

The relevant portion of Rule 3 of the Seniority Rules is as  follows:

"3.     Assignment of year allotment- (1) Every officer  shall be assigned a year of allotment in accordance  with provisions hereinafter contained in this rule.

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

(a)     ............

(b)     ............

(c)     Where an officer is appointed to the service by  promotion in accordance with Rule 8 of the  Recruitment Rules, the year of allotment of the  junior-most among the officers recruited to the  Service in accordance with Rule 7 or if no such  officer is available the year of allotment of the  junior most among the officers recruited to the  service in accordance with Rule 4(1) of these Rules  who officiated continuously in a senior post from a  date earlier than the date of commencement of such  officiation by the former."

.............

Explanation 1:- In respect of an officer appointed  to the service by promotion in accordance with sub- section (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 later:

.............

Explanation 2- An officer shall be deemed to have  officiated continuously in a senior post from that  date of his confirmation in the senior grade he  continues to hold without any break or reversion a  senior post otherwise than as purely temporary or  local arrangement.

.............

Explanation 3- An officer shall be deemed to have

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officiated in a senior post during any period in  respect of which the State Government concerned  certify that he would have so officiated but for his  absence or leave on training.  

Explanation 4- An officer appointed to the service  in accordance with sub-rule (1) of Rule 8 of the  Recruitment Rules shall be treated as having  officiated in a senior post during any period of  appointment to a non-cadre post if the State  Government has certified within three months of his  appointment, to the non-cadre post that he would   have so officiated but for his appointment, for a  period not exceeding one year, and with the approval  of the Central Government, for further period not  exceeding two years, to a non-cadre post under a  State Government or the Central Government in a  time-scale identical to the time-scale of a senior  post:

"Senior Posts" as defined in Rule 2(g) is as  follows:

       "2(g) Senior post means a post included and  specified under item 1 of the cadre of each State in  the Schedule to the Indian Forest Service (Fixation  of Cadre Strength) Regulations, 1966 and includes a  post included in the number of posts specified in  items 2 and 5 of the said cadre, when held on senior  scale of pay, by an officer recruited to the service  in accordance with sub-rule (1) of Rule 4 or Rule 7  of the Recruitment Rules".

A perusal of the above rules would indicate that the period of  continuous officiation in senior posts would count only from the date  of inclusion in the Select List or from the date of officiating  appointment to senior post whichever is later.  Rules 8, 9 and 10 of the Cadre Rules read as follows: "8.     Cadre posts to be filled by cadre officers-  Save as otherwise provided in these rules every  cadre post shall be filled by a cadre officer.  

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 or any of its Heads of Department  to whom the State Government may delegate its powers  of making appointments to cadre posts, is satisfied-

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

(b)     that there is no suitable cadre officer  available for filling the vacancy:

x               x               x               x

(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.

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X               x               x               x

(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  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.

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

(a)the reasons for the proposal;

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

(c)the provisions, if any, made for existing  incumbent of the post; and

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

The effect of Rule 9 of the Cadre Rules have been considered by  this Court.  Similar Rules in case of Indian Police Services were also  considered. In Syed Khalid Rizvi and Ors. v. Union of India and Ors.  (1993 Supp. (3) SCC 575), which related to Police Services, it was  observed as follows:

"Due to exigencies of the service, the State  Government has been empowered under Regulation 8 of  Promotion Regulations read with Rule 9 of Cadre  Rules to appoint select-list or non-select officers  to man temporary vacancies in cadre posts. So long  as cadre officer is available, he/she alone is to be  posted to a senior cadre post. In his/her absence  the select-list officer awaiting promotion must be  appointed in the order found in the list. It must be  the rule and deviation must be for exceptional  reasons and circumstances. Where either the cadre  officers or select-list officers are not available,  then only non-select-list officers may be promoted  to temporary vacancies which should not be likely to  last for more than three months and the State

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Government must strictly comply with the conditions  specified in the provisions to Regulation 8 (2) of  Promotion Regulations and Rule 9 of Cadre Rules. In  other words, where the vacancy/vacancies continue  for more than three months, the prior concurrence of  the Central Government is mandatory. If it continues  for more than six months prior approval of the Union  Public Service Commission is also mandatory. Any  appointment in violation thereof is not an  appointment in accordance with the law. These  appointments are mere ad hoc or local arrangement or  fortuitous."

In R.R.S. Chouhan and Ors. v. Union of India and Ors. (1995  Supp(3) SCC 109) the matter was considered and it was noted as follows,  while dealing with Cadre Rules:

"These rules show that while Rule 8 requires  that every cadre post shall be filled by a cadre  officer, Rule 9 lifts the embargo in certain  circumstances and permits a cadre post to be filled  by a person who is not a cadre officer provided the  State Government concerned is satisfied that either  (i) the vacancy is not likely to last for more than  three months, or (ii) there is no suitable cadre  officer available for filling the vacancy. In case  the appointment is for a period exceeding three  months sub-rule (2) of Rule 9 requires that the  State Government shall report forthwith to the  Central Government the fact of such appointment  together with reasons for making such appointment  and under sub-rule (3) of Rule 9 on receipt of such  report the Central Government may direct that the  State Government shall terminate the appointment of  such person and appoint thereto a cadre officer and  where such direction is so issued the State  Government is required to give effect thereto. In  cases where a cadre post is likely to be filled by a  person who is not a cadre officer for a period  exceeding six months sub-rule (4) of Rule 9 further  requires that the Central Government shall report  the full facts to the Union Public Service  Commission with reasons for holding that no suitable  cadre officer is available for filling the post and  may in the light of the advice given by the Union  Public Service Commission give suitable directions  to the State Government concerned. Rule 10 lays down  that cadre post shall not be kept vacant or held in  abeyance for period exceeding six months without the  approval of the Central Government and the State  Government is required to make a report to the  Central Government in respect of the matters  specified in clauses (a) to (d) of the said rule."

In view of what has been stated in Syed Khalid Rizvi’s case  (supra) and  R.R.S. Chouhan’s case (supra), the CAT’s judgment does not  suffer from any infirmity to warrant interference.

The inevitable result is dismissal of the appeal which we direct  with no order as to costs.