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PETITIONER: SRI K. PRASAD & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT10/12/1987

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. MISRA RANGNATH

CITATION:  1988 AIR  535            1988 SCR  (2) 285  1988 SCC  Supl.  269     1987 SCALE  (2)1343

ACT:      Service matter-Seni(Jrity  dispute  raised  by  initial recruits and  direct recruits  of the  Indian Forest Service (I.F.S.) from  the States  of Maharashtra,  Uttar Pradesh  & Orissa.

HEADNOTE: %      Controversies relating to the seniority of the officers in the  Indian Forest  Service (I.F.S.,  for short)  in this batch of  cases from  the States  of Maharashtra, orissa and Uttar Pradesh,  arose as  asequal to three decisions of this Court in  regard to  the constitution  of the  Indian Forest Service, in  Kraipak v.  Union of  India, AIR  1970 SC  150; Parvez Qadir  v. Union  of India, [1972] 2 SCR 432 and Union of India  v. Chothia,  [1978] 3  SCR 652.  The Court  had to consider in  these cases  the questions  arising out  of the selections made  by the  Special Selection Boards (S.S. Bs.) in place  of the  selections set  aside by  the Kraipak case above  mentioned,   and  was   concerned  with  the  initial recruitment under  section 4(1)  of the I.F.S. (Recruitment) Rules, 1966.      The first  selections by way of initial recruitments to the State  cadres were  made sometime  in 1966 and 1967. The Kraipak decision  came in 1969. In the meanwhile, in many of the States, the first selection had been made followed up by subsequent  recruitments   largely  made  on  the  basis  of competitive  examination   under   rule   4(2)(a)   of   the Recruitment Rules  and a  few also,  by promotion under rule 4(2)(b). As  a result  of the  second (and third) selections made by  the S.S.B.,  a number of officers in the respective State Forest  Service (S.F.S.) had been given appointment in the IFS  with effect  from October 1, 1966, under rule 4(3A) and were  placed in a position of higher seniority vis-a-vis the recruits-direct  recruits-under rule  4(2).  The  direct recruits were dissatisfied with this.      In the  case of  Uttar Pradesh,  nine petitioners moved the  High  Court  for  relief,  out  of  whom,  eight-direct recruits of  1968 and  1969 confirmed  between 1969 and 1972 came up  in appeal to this Court. In this State, the initial recruitment was  made in  1966-67 of  85 officers, 58 to the posts in  the senior  time scale  and 27 to the posts in the

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junior time  scale. Subsequently,  six persons were promoted under rule 4(2)(b) and 286 nine persons  were  recruited  under  rule  4(2)(a)  of  the Recruitment  Rules.  the  initial  recruitment  having  been declared bad,  a fresh  S.S.B. was  appointed  and,  on  its recommendations, 104  persons were appointed to the service, 60 to  senior scale  posts and  44 to  junior  scale  posts. Again, in  1976, six  more persons  were added  and thus 110 persons were  taken in  by way  of  initial  recruitment  as against 85  persons taken in the first selection. The direct recruits were  aggrieved by these selections. Their case was rejected by the High Court.      In the  case of  Maharashtra, the  first selection  was made on  2.2.1967 of  57 officers,  36 for  the senior  time scale and  21 for the junior time scale. This was set aside. On July 13, 1971, at the second selection, 116 officers were found eligible  but only  66 were  considered  suitable  for appointment. 39  out of  51  eligible  officers  were  found suitable for  the senior  scale, of  whom, 35 were appointed immediately and  four, later. For junior scale 27 were found suitable, out  of whom 23 were appointed initially and four, later. All  these 66  appointments were  made w.e.f.  t. tO. 1966. Some  persons, who had joined the State Forest Service in 1962 and had put in 4 years’ service as on 1.10.1966, and were thus eligible for consideration for junior scale posts, filed a writ petition in the High Court. Their grievance was that the  government had not considered all the officers who were eligible for the junior posts, as should have been done as laid  down in  the Chothia  case aforementioned. The High Court allowed  the writ  petitions. Some of the respondents, comprising persons,  who had  been directly  recruited under rule 4(2)  between 1968  and 1970,  appealed to  this  Court against the decision of the High Court.      In the  case of  Orissa, eight persons moved this Court by Writ  Petitions. They  had joined the orissa State Forest Service as  on 1.4.1962. After two years’ training, they had been  appointed   Assistant  Conservators   of  Forests   on 1.4.1964. By  1.4.1966,  they  had  four  years’  continuous service in  the State  Cadre. They  had become  eligible for selection to junior scale posts in the l.F.S. Two selections were made  by way  of initial  recruitment, once in January, 1967, when 41 officers were selected, and, then, in 1972, 42 out of  82 eligible  officers were selected. The petitioners were taken  into the  I.F.S. under rule 4(2)(b) between 1975 and 1977.  The petitioners’  contention was that their names were not  considered at all either at the first selection or at the  second selection,  and the  selections were  made by considering eligible officers in the order of seniority only to recruit 41 or 42 persons. The government did not consider all the  82 eligible  officers and  select 34  out  of  them arranged in  the order  of preference, and this vitiated the selection, as 287 held in the Chothia case afore-mentioned.      Dismissing  the   appeals  from  U.P.  and  Maharashtra subject  to   observations  and  allowing  the  Orissa  writ petitions, and directing the Special Selection Board to redo the selections  in the  light of the principles set out, the Court, ^      HELD:  The   initial  recruitment  regulations  clearly envisage that  the Special  Selection Board  should consider the cases  of all  the officers  in the State Forest Service who fulfil  the conditions  of eligibility  and judge  their

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suitability for  appointment to  posts in  the  service  and prepare a  list of such officers in the order of preference. This selection  was done  by a  Board, the  constitution  of which was  found to  be vitiated. The logical consequence of this would be that the process of selection had to be redone by a  validly appointed  S.S.B., before  which the  range of selection  was  the  same  as  was,  or  should  have  been, considered by  the initial S.S.B. i.e. Out of those officers in the  S.F.S. who  were eligible  as on  1.10.66.  However, there had  been some  changes subsequent  to 1.10.66  in the C.R.S. Of some of the officers pertaining to the period upto 1. 10.66,  consequent on  the representations for expunction or modification  of the  adverse remarks,  and nobody  could validly object  to these persons also being considered since the case  of an  officers who has the adverse remark against him struck  off or  modified, is  on the  footing as if such adverse remark had not been there at all, or had been in the modified form  from  the  beginning.  The  decision  in  the Kraipak case  necessitated a  complete review  of the  first selection. The  subsequent selection  Boards  could  not  be compelled   to   restrict   their   adjudication   regarding suitability to the same number of persons as the first Board had selected,  so long as the same list of eligible officers and their  records as on 1.10.1966 were considered. [309D-H; 310C-D]      The first proviso to rule 4(2) of the cadre Rules, only outlines the general principle that whoever has the power to do a  particular thing,  has also  the power  to exercise it from time to time, if needed. The Central Government has the power to alter the strength and composition of the cadres at any time.  However, if  the terms  of the relevant rules are scruitinized,  it   will  be  seen  that  the  strength  and composition  of   the  cadres   have  to  be  determined  by regulations which  have to be made by the Central Government in consultation  with the  State Government.  If the initial composition can  be only  drawn up  in consultation with the State  Government   and  by  Regulations,  it  will  not  be permissible for  the Central  Government to  modify or alter the same  save in  the same  manner. It  is not  possible to accept the contention of 288 the initial  recruits that the mere appointment of an excess number  of  officers  should  be  treated  as  an  automatic expansion of  the cadre strength and composition in exercise of the power available under rule 4(1). [312D-E; 313A-B]      These cases  are concerned  with a  set of  Regulations whose whole purpose is to fix the cadre strength. It is also a provision  in regard  to an All-lndia Service in regard to the constitution  of which  both the  Central Government and the State  Governments have  a say. The cadre strength could not be  varied without amending the Regulations and schedule or without.  lt consulting  the State  Government concerned. [313H;314A]       The  Cadre Regulations,  read with  the  Cadre  Rules, leave no doubt that the strength and composition referred to or prescribed  therein, are  of  the  entire  cadre  of  the service in the State concerned and are not restricted to the recruitments made  after the  initial recruitment. The total authorised strength  referred to  is  the  total  number  of officers, who,  at any  point of  time, can man the posts in the cadre.  It could  not have  been the  intention that the cadre should  consist of  an indefinite  number  of  persons recruited by  the S.S.B. from the S.F.S. supplemented by the number of  officers referred  to  as  the  total  authorised strength. There  is no  difficulty in holding that the total

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strength of  the cadre  is to  be counted  by including  the initial recruits and that all the eligible officers adjudged suitable cannot be recruited to the service in excess of the total authorised strength. [314E-F; 316B]      The critical and difficult question in these appeals is not that  appointments by  way of  initial recruitment  were made in excess of the total authorised strength but that the government has  failed to  keep  in  mind  the  restrictions placed on  the number  of senior  and junior  posts in  each cadre  while  making  appointments.  The  grievance  of  the appellants is  that more recruitments have been made against the junior  posts than  is permissible  under the respective schedule. [316C-E]      The initial  recruits are  right in contending that the Cadre  Regulations   do  not   lay  down   any   water-tight classification of  junior and  senior posts  in  the  manner contended for  by the  direct recruits.  It is true that the Cadre Regulations make a reference to seniors  and  junior posts,  but this  is  not  intended  to  be  an essential element in the composition of the cadre. The Cadre Rules do  not indicate,  in respect  of some  posts, whether they are  to be  considered as  junior or  senior, and  they contain no  definition of  the words  ’senior’ and  ’junior’ posts. It  cannot be  postulated that  the entrants  to  the service will first enter on a junior 289 scale post  and work  their way  upward. All  the rules show that an officer, being in the junior or senior time scale or on a  junior post  or  senior  post,  depends  upon  various eventualities, and  it is not possible to pin down any posts as senior  or junior  or any  officer as  on one  of the two time-scales. The Court agreed with the initial recruits that the reference to junior and senior posts in the cadre should not be  considered to  be so rigid-or integral a part of the cadre  composition   as  to   affect  the  validity  of  the appointments made  m excess of a particular number. [318B-C; 319B-C]      One thing plain on the terms of the Regulations is that once a  person is  found to  be  eligible  and  is  adjudged suitable  for  recruitment  under  the  Initial  Recruitment Regulations, he  has to  be taken  into service as a part of the initial  recruitment either  immediately on 1.10.1966 or as and  when  the  vacancies  arise  in  the  cadre.  It  is necessary to  remember that  if the  vacancies are in senior posts, they can be filled only by S.F.S. Officers with eight years’ continuous  service, and  exhypothesi  such  officers will not  be available  for at least four more years, and if the vacancies  are of  junior posts,  they can  be filled in only after  a competitive  examinations is  held, which will take time.  The Court  cannot  accept  the  contention  that officers of  the S.F.S.,  who have been adjudged suitable by the S.S.B.  should not  be taken  into  the  service  merely because their  number exceeds the number of posts available. True,  they   cannot  be   appointed  immediately   but  the consequence cannot  be  that  they  should  be  ignored  and persons recruited  under rule  4(2)  given  preference  over them. It  is only  rational to interpret the rules as laying down that  all those  officers of  the S.F.S.  with eight or four years’  experience, who  are adjudged  suitable for the service should  be recruited  to the  service  bef  ore  any recruitment can  at all  start under  rule 4(2). Whether all such persons  are entitled  to  the  back  dating  of  their appointment to 1.10.1966 or not, they are certainly entitled to contend that their appointment should be given precedence over the appointments of the recruits under rule 4(2) of the

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Recruitment Rules.  In this  view of the matter, the plea of the petitioners  that they  will  get  precedence  over  the surplus  officers  among  the  eligible  cannot  at  all  be accepted. It  is only  right that persons should be adjudged on the  basis of  the  correct  C.R.S.  Any.  Expunction  or modification in  the C.R.S.  Of a  period naturally  relates back to that period and no legitimate objection can be taken if the  correct C.R.S  are taken  into  account.  There  was nothing wrong in the selections made by the Selection Board. [319D-E; 320D-E; 321C-E]      Rule 4(3A)  only places  the fresh recruits in the same position  as  if  they  had  been  recruited  in  the  first instance, i.e. on 1.10.1966 as indeed 290 they should  have been,  and thus  involves no retrospective effect beyond   the  date of  commencement of the Act. It is also not’correct  to suggest  that it  prejudicially affects the direct recruits in any way. The appellants acquire under the Rules  no right to be in service until after the initial recruitment is  over. Under  the Rules,  they can  rank only after  the   candidates  who   get  in  by  way  of  initial recruitment. The  appellants cannot  be aggrieved that those in service  in the S.F.S. are found suitable for recruitment to the  service and  taken into  service w.e.f.  1. 10.1966. Those persons,  even if not entitled to appointment as on 1. 10.1966, are  entitled to be appointed as and when vacancies arise and must always be given a position of precedence over the recruits under Rule 4(2). The direct recruits can hardly claim that  they are prejudicially affected by the re-making of the initial recruitment. [323D-G]      So far  as Orissa  is concerned,  all the  82  eligible officers had  to be  considered for initial recruitment, but the S.S.B.  merely selected  42 officers and made an omnibus observation that  the others were found unsuitable. This, as explained Chothia’s case is not a proper compliance with the Rules, and  so the  selection has  to be  set aside  with  a direction that it should be re-done properly.[324A-B]      There has  been delay on the part of the petitioners in coming to  this Court, but in view of the complicated nature of the  issues involved,  the petitioners  should not be put out of  the court  on the  ground  of  laches.  All  the  82 eligible officers as on 1.10.66 should be considered and not merely some  of them.  Their suitability should be adjudged. If they  are not  found suitable,  reasons should  be  given which the  U.P.S.C. should  be able to consider. If they are found suitable,  a list  of such officers should be drawn up with ranking  given to  them in  the order of preference for the consideration  of the  U.P.S.C. Since  this has not been done, the  recruitments have  to be set aside and the matter remanded with  the direction  that it should be finalised as per the  Recruitment Rules and in the light of the judgment. [324E-G]      If the  Court had  agreed with the direct recruits that there had  been some invalidity or infirmity attached to the subsequent selections  by way  of initial  recruitment,  the Court would not have rejected the appeals on the ground that the Regulations cannot give rise to a cause of action. There is no  error in  the procedure  followed by  the Government. [327E]      It is not the intention of the Court, nor can it be the result of dis- 291 cussion, that  the appointments  of any  officers  recruited under rule  4(1) or  4(2) should  be considered invalid. All the  officers   selected  will   have  to  be  adjusted,  if

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necessary, by  amending  the  Cadre  Regulations.  The  only result of the Court’s findings would be the re-adjustment of the seniority  with necessary  and consequential  effect  on promotions in the service. [327G]      No merit  in the  appeals from  U.P.  and  Maharashtra, Orissa writ  petitions allowed, S.S.B. directed to re-do the selections in  the light  of the  principles set  out in the judgment.[328A-B]      Kraipak v.  Union of  India, AIR  1970, SC  150; Parvez Qadir v. Union of India, [1975] 2 SCR 432; Union of India v. Chothia, [1978] 3 SCR 652; Jagat Narain v. Union, CMWP 58 of 1968; Lila Gupta v. Lakshmi Narain, [1978] 3 SCR 922 at 932; Atlas Cycle  Industries Ltd.  v. State  of Haryana, [1979] 1 SCR 1070  at 1076, 1084, 1085; G.S. Lamba v. Union of India, AIR 1985  SC 1019 at 1032; Kapur v. Union of India, [1972] 2 SCR 531;  Union of  India v.  Harnek Singh,  L.P.A.  406/83, decided by  the Punjab  & Haryana  High Court  on 20.9.1983; Inderjit Singh v. Union of India, [1975] 2 S.L.R. 839; Amrik Singh and  Ors. v.  Union of  India & Ors., [1980] 2 SLR 110 and R.R. Verma and Ors. v. The Union of India & Ors., [1980] 2 S.L.R. 335, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3072 of 1980 etc.      From the  Judgment and  order dated  5. 10.1979  of the Allahabad High Court in Civil Misc. Writ No. 3587 of 1974.      S.N. Kacker,  C.P. Lal, M.N. Krishnamani, Dalip Tandon, E.C. Agganvala,  Vijay Pandit,  Atul Sharma  and Ms. Purnima Bhat for the Appellants.      Govind Das,  Anil Dev,  K.K. Singhvi,  P.P. Rao,  Kapil Sibbal, V.A. Bobde, G.L Sanghi, A. Subba Rao, C.V.S. Rao, C. Ramesh, Miss  A. Subhashini,  Mrs. S.  Dikshit, A.S. Bhasme, A.M. Khanwilkar,  R.K. Mehta, V.J. Francis, N.M. Popli, J.R. Dass, S.P.  Kalra,  Mrs.  Rani  Chhabra,  V.B.  Joshi,  L.K. Pandey, D.D. Gupta and K.K. Khurana for the Respondents.      P.N. Mishra for the Intervener.      The Judgment of the Court was delivered by 292                           INTRODUCTION      RANGANATHAN, J.  1. The  controversies arising  in this batch of  cases are  by  way  of  sequel  to  three  earlier decisions of this court in regard to the constitution of the Indian Forest  Service viz.  Kraipak v.  Union of India, AIR 1970 S.C.  150; Parvez  Qadir v.  Union of  India, [1975]  2 S.C.R. 432  and Union  of India  v. Chothia, [1978] 3 S.C.R. 652. A little historical background is, therefore, necessary to appreciate the problems before us.                    THE ALL-INDIA SERVICES ACT      2. A  few months  before India  gained Independence,  a decision was  taken that  one of  the primary  needs of  the federal  constitution  envisaged  for  India  would  be  the setting up of All India Services common to the Centre and to the States.  The members  were  to  be  recruited  from  the intelligent youth of the country by competitive examinations of high  standard. They  were  to  be  free  from  political control, contended  and having a sense of security. The idea was to  build  up  a  bureaucracy  consisting  of  efficient officers  of   integrity  and  impartiality  who  could  man important  administrative   posts  and   make  possible  the continued governance of the country unaffected by periodical changes in  the political  set-ups in the Centre and various States consequent  on quinquennial  elections to the various

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legislatures  in  the  country.  The  recruitment  to  these services and  their ultimate  disciplinary control was to be with the  Union Government  but the  officers  would  serve, under the  immediate control  of the  State Governments,  on various State cadres. Initially, the All India Services viz. the Indian  Administrative Service  and  the  Indian  Police Service were  created to  replace the  former  Indian  Civil Service and  Indian Police  respectively.  p  The  statutory basis  for  the  implementation  of  the  above  policy  was provided by  Chapter I  of  Part  XIV  of  the  Constitution (articles 308 to 314) supplemented by the All India Services Act, 1951  (hereinafter referred  to as "the Act") passed by Parliament as  envisaged in article 312 of the Constitution. The Act,  initially applicable  to the  two  Services  above mentioned, was extended by Amendment Act 27 of 1963 to cover the constitution  of three  new All-India  Services  one  of which was the Indian Forest Service (I.F.S. for short). S. 3 of the  Act empowers  the Government of India to make, after consultation with  the  State  Governments,  rules  for  the regulation of  recruitment, and the conditions of service of persons appointed,  to an  All-India Service. Such rules are to be  laid, as soon as possible after they are made and for not less than fourteen days, before Parliament. 293                             THE RULES      3.  Pursuant   to  the   amendment  of   1963,   mutual consultations were held between the Union Government and the various State Governments and the broad pattern I already in existence for  the Indian  Administrative  Service  and  the Indian Police  Service was  decided to  be adopted  for  the Indian Forest  Service also.  Once this  decision was taken, the statutory  rules followed. There were five sets of rules framed between 1966 and 1968:      (i) The IFS (Cadre) Rules, 1966      (ii) The IFS (Recruitment) Rules, 1966      (iii) The IFS (Probation) Rules, 1968      (iv) The IFS (Pay) Rules, 1968      (v) The IFS (Regulation of Seniority) Rules, 1968 Some of  the rules relevant for our present purposes may now be set out.      4(a) Cadre  Rules: The  Cadre Rules  came into force on 1st  July,  1966.  Rule  3  provides  that  there  shall  be constituted for  each State  or group  of States  an  Indian Forest Service  Cadre. The  cadre constituted for a State is called a  ’State Cadre’  and a cadre constituted for a group of states,  a ’Joint  Cadre’. Rule 4 is important and can be extracted:           "4. Strength  of  Cadres:  (1)  The  strength  and           composition of  each  of  the  cadres  constituted           under rule 3 shall be as determined by regulations           made by  the Central  Government  in  consultation           with the State Government in this behalf.           (2) The  Central Government shall, at the interval           of every  three years, re-examine the strength and           composition of  each such  cadre  in  consultation           with the  State Government  concerned and may make           such alterations therein as it deems fit;                Provided that  nothing in this sub-rule shall           be deemed  to affect  the  power  of  the  Central           Government to 294           alter the strength and composition of any cadre at           any time:                Provided further  that the  State  Government           concerned may  add for  a period not exceeding one

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         year,  and   with  the  approval  of  the  Central           Government for  a further period not exceeding two           years, to  a State  or Joint  Cadre one  of.  more           posts carrying  duties or  responsibilities  of  a           like nature to cadre posts." Rule  7   empowers  the   State  Government   to  make   the appointments to  the State  cadre and one of the ’concerned’ State Governments  to a  Joint cadre.  Under rule  8,  every cadre post  has to  be filled  by a  cadre officer.  Rule  9 envisages temporary  appointments of  non-cadre officers  to cadre posts.  Under rule  10, cadre  posts are  not be  kept vacant or held in abeyance for a period exceeding six months without approval  of the  Central Government. Under rule 11, temporary arrangements  or leave  arrangements could be made enabling a  single cadre  officer to  look after  two  cadre posts but such arrangements cannot extend beyond 12 months.      (b) Recruitment  Rules: The Recruitment Rules were also framed simultaneously  and came  into force  on 1st of July, 1966.  They  contemplate  the  initial  recruitment  of  the officers  of   certain   Services   already   in   existence (hereinafter referred  to as  the State  Forest  Service  or S.F.S. in  short). Rule  3 and  rule 4  are relevant for our present purposes .      The relevant portions of these rules reads as follows:           "3. Constitution of the Service:                The Service  shall consist  of the  following                Persons, namely:                (a)  Members  of  the  State  Forest  Service                recruited  to  the  service  at  its  initial                constitution   in    accordance   with    the                provisions of sub-rule (1) of rule 4; and                (b)  Persons  recruited  to  the  service  in                accordance with  the provisions  of sub-rules                (2) to (4) of rule 4.           "4. Method of recruitment to the Service                (1) As  soon as may be after the commencement                of 295                these  rules,   the  Central  Government  may                Recruit  to   the  Service  any  person  from                amongst  the  members  of  the  State  Forest                Service adjudged  suitable in accordance with                such regulations  as the  Central  Government                may  make  in  consultation  with  the  State                Governments  and  the  Union  Public  Service                Commission (U.P.S.C.):                (2)  After  the  recruitment  under  sub-rule                     (1),  subsequent   recruitment  to   the                     Service,  shall   be  by  the  following                     methods, namely:                (a)  by a competitive examination                (aa) by selection of persons from amongst the                     Emergency  Commissioned   officers   and                     Short Service  Commissioned officers  of                     the Armed  Forces of  the Union who were                     commissioned  after  the  Ist  November,                     1961, and who are released in the manner                     specified in sub-rule (I) of rule 7A;                (b)  by promotion  of substantive  members of                     the State Forest Service. Rule 6  makes it  clear that all appointments to the service are to be made by the Central Government. No appointment can be made  except after  recruitment by  one  of  the  methods specified in  rule 4.  The appointments of persons recruited to the  service under  rule  4(2)(a)  (i.e.  by  competitive

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examination) can  only be  made to  the junior time scale of pay and the appointments of persons recruited to the service under  rule  4(2)(b)  (i.e.,  by  promotion  of  substantive members of  the State Forest Service) shall be in the senior time-scale of pay.           "However, under rule 6A,           "an officer  in the junior time scale of pay shall           be appointed  by the State Government concerned to           a post  in the senior time scale of pay if, having           regard to  his length  of service,  experience and           performance in  the junior  time scale of pay, the           State Government  is satisfied that he is suitable           for appointment to a post in the senior time-scale           of Pay." Rule  7   deals  with   the   recruitment   by   competitive Examination, rule 296 7A deals with recruitment by selection of persons from among officers released  from the  Armed Forces  and rule  8  with recruitments  by   promotion.  Rule   9  provides  that  the recruitment of  persons under  rule 8 is not to exceed 331/3 per cent  of the  number of  senior duty  posts borne on the cadre of that State.      (c) Pay Rules: The Pay Rules provide for time scales of pay for  the members  of the  service. There  are two scales prescribed, one  a Junior scale, the top of which is reached after 18 years of service and the other a senior scale which runs over  a period  of about  22 years.  Under rule  4, the initial pay  of a member of the service appointed under rule 4(1) of  the Recruitment Rules has to be fixed in the junior time-scale of  the service  at he stage he would have got if he had  been appointed  in that  scale on the deemed date of appointment in  the year  of allotment. Sub-rule (b) of rule 4(1)   contemplates   appointment   of   such   an   officer simultaneously to  a post  in  the  senior  time  scale  and prescribes the  mode of fixation of his salary in the senior time scale.      (d) Seniority  Rules: So  far as  seniority  rules  are concerned, two  rules are relevant for our present purposes. One is  the definition  of ’senior  post’ contained  in rule 2(g), which reads thus:           "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  item 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." Rule 3  describes the  mode of appointment and the allotment of a  year of  allotment to  every officer  appointed to the service. The  seniority of  officers is determined primarily by the  year of  allotment and, inter-se officers having the same year of allotment, by the principles set out in rule 4.                          THE REGULATIONS      5. It  may be  mentioned  that  the  rules  contemplate regulations 297 being made  by the  Central Government  in consultation with the State  Government on  various  matters.  Some  of  these regulations are also relevant:      6(a) Cadre  Strength Regulations: The Fixation of Cadre

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    Strength Regulations  were framed  in exercise  of  the      powers conferred by rule 4(1) of the Cadre Rules. These      regulations were  first issued by a notification of the      Government of India dated 31.10.1966 and were deemed to      have come  into force  with effect  from  Ist  October,      1966. There  is only  one substantive  clause  in  this      regulation, which reads thus:           "2.  Strength and Composition of Cadres                The posts  borne on,  and  the  strength  and                composition  of  the  cadre  of,  the  Indian                Forest Service  in each  of the States, shall                be as  specified in  the  Schedule  to  these                regulations." The  schedule   proceeds  to   set  out   the  strength  and composition of  the  cadres  of  various  States.  In  these matters before  us we  are concerned  with the  position  in regard to  three States,:  Uttar  Pradesh,  Maharashtra  and Orissa. The  provisions of  the Schedule  in so far as these States are concerned are as follows:                                    Maharashtra  U.P. Orissa 1.   Senior posts under the      State Government      Chief Conservator of                1        1      1      Forests      Deputy Chief Conservator      of Forests                          -        2      -      Addl. Chief Conservator      of Forests                          1        -      -      Conservator of Forests              7        9      4      Conservator of Forests      (Development Circle)                -        -      1      Conservator of Forests,      Working Plan Circle                 1        1      - 298      Conservator of Forests,      Headquarters                        1        -      -      Special officer, Revenue &      Forest Department                   1        -      -      Deputy Conservators of Forests     35       48     24      Deputy Conservators of Forests,      Integrated Unit                     3        -      -      Deputy Conservator of Forests,      Working Plans                       8        -      -      Deputy Conservators of Forests,      Foresters’ Training Division        -        2      -      Deputy Conservator of Forests,      Forest Resources Survey Division    -        1      -      Forest Utilisation officer          1        -      1      Working Plan officer                -        7      4      Forest Extension officer            -        1      -      Chief Wild Life Warden              -        1      -      Timber Supply officer               -        1      -      Silviculturist                      1        2      1      Working Plan officers      Officer on Special Duty for      Forest Labourers Cooperative      Society                             1        -      -      Officer on Special Duty for      Forest Labourers Cooperative      Society                             1        -      -      Assistant to Chief Conservator      of Forests                          1        -      -      P.A. to the Chief Conservator      of Forests                          -        -      1                                         __       __     __

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                       Total:          62       76     37                                         __       __     __ 2.   Senior posts under the Central      Government                          5        6      3                                         __       __     __                                         67       82     40                                         __       __     __ 299 3.   Posts to be filled by promotion      in accordance with rule 8 of      the Indian Forest Service      (Recruitment) Rules 1966           22       27     13 4.   Posts to be filled by direct      recruitment                        45       55     27                                         __       __     __                                         67       82     40                                         __       __     __ 5.   Deputation Reserve 15% of      4 above                             7        8      4 6.   Leave Reserve 11% of      4 above                             5        6      3 7.   Junior posts 20% of      4 above                             9       11      5 8.   Training Reserve 5% of      4 above                             2        3      1                                         __      ___     __                                         90      110     53                                         __      ___     __      Direct Recruitment posts           68       83     40      Promotion posts                     22       27     13                                         __      ___     __      Total Authorised Strength          90      110     53                                         __      ___     __      (b) Initial  Recruitment Regulations: The second set of regulations is the Initial Recruitment Regulations framed in pursuance of  rule 4(1)  of  the  Recruitment  Rules.  These regulations are  somewhat important for our present purposes and they  have to  be referred to in some detail. These also came into  force with effect from Ist July, 1966. Regulation 3 provides for the constitution of a Special Selection Board (S.S.B.)  for  the  purpose  of  making  selections  to  the service. The S.S.B. consists of a number of officers, one of whom is  the Chief  Conservator of  Forests (C.C.F.)  of the State Government,  concerned. Regulations 4. 5 and 6 have to be set out in full:           "4.  Conditions of  eligibility-(1) Every  officer                of the  State Forest Service who, on the date                of constitution of the Service-                (a)  is holding a cadre post substantively or                     holds a lien on such post, or                (b)  (i)  holds substantively  a post  in the                          State Forest Service, 300                     (ii) who  has completed  not  less  than                          eight years  of continuous  service                          (whether       officiating       or                          substantive) in that Service, and                     (iii)who has  completed  not  less  than                          three years  continuous service  in                          an officiating  capacity in a cadre                          post or  in any other post declared                          equivalent  thereto  by  the  State                          Government  concerned,   shall   be                          eligible  for   selection  to   the                          Service in the senior scale.

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              (2)  Every  officer   of  the   State  Forest                     Service who  has completed four years of                     continuous  service   on  the   date  of                     constitution of  the  Service  shall  be                     eligible for selection to the Service in                     the junior scale.                          Explanation:   In   computing   the                          period of  continuous  service  for                          the   purpose   of   sub-regulation                          (1)(b) or  sub-regulation (2) there                          shall be included any period during                          which an officer has undertaken:                          (a)  training in  a diploma  course                               in   the    Forest    Research                               Institute    and     Colleges,                               DehraDun; or                          (b)  such other  training as may be                               approved   by    the   Central                               Government   in   consultation                               with  the  Commission  in  any                               other institution.           Preparation of list of suitable officers:           (1)  The Board  shall prepare,  in  the  order  of                preference, a  list of such officers of State                Forest Service  who  satisfy  the  conditions                specified  in   regulation  4   and  who  are                adjudged   by    the   Board   suitable   for                appointment to posts in the senior and junior                scales of the Service.           (2)  The list  prepared in  accordance  with  sub-                regulation (1)  shall then be referred to the                Commission  for   advice,  by   the   Central                Government along with: 301                (a)  the records  of all  officers  of  State                     Forest Service included in the list;                (b)  the   records  of   all  other  eligible                     officers of the State Forest Service who                     are not  adjudged suitable for inclusion                     in the  list, together  with the reasons                     as recorded  by the Board for their non-                     inclusion in the list; and                (c)  the  observations,   if  any,   of   the                     Ministry  of   Home   Affairs   on   the                     recommendations of the Board.           (3)  on receipt  of the list, along with the other                documents   received    from   the    Central                Government, the  Commission shall forward its                recommendations to that Government.      6. Appointment  to the Service-The officers recommended by the  Commissioner under sub-regulation (3) of regulations shall be appointed to the Service by the Central Government, subject to  availability of  vacancies in  the  State  Cadre concern.      (c)  The   Appointment   by   Competitive   Examination Regulations:  We  may  next  refer  to  the  appointment  by Competitive  Examination  Regulations,  1968.  All  that  is necessary for  our present  purposes is  that,  under  these regulations, a  candidate, to  compete at  the  examination, must, inter  alia have  attained  the  age  of  20  and  not attained the age of 24 on the Ist day of July of the year in which the  examination is  held. There  is a  provision  for relaxation of  the upper age limit in respect of persons who are directly  recruited to  the gazetted  cadre of the State Forest Service  and  put  in  less  than  4  years’  service

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(including 2  years’ training  for  Diploma  course  in  the Foreign Research Institute and Colleges, Dehradun on the Ist July, 1966.  But persons  who have put in more than 4 years’ service in the State Forest Service would not be eligible to appear in these examinations firstly because they would have crossed the  maximum age  limit  and  secondly  because  the provision for relaxation does not enuse in their favour.      (d) Appointment  by Promotion  Regulations: Recruitment by promotion  under rule  9(1) of  the Recruitment  Rules is governed by the Appointment by Promotions Regulations, 1966, which came into force with effect from 1.7.1966. A selection committee  is  constituted  under  regulation  3  to  select candidates whose conditions of eligibility for 302 promotion are defined in regulation 4. Briefly speaking, the selection  committee   is  to  consider  the  cases  of  all substantive members  of the State Forest Service, who on the first day  of January  of that year, have completed not less than eight  years of continuous service (whether officiating or substantive)  in a  post not  lower in  rank than that of Assistant Conservator  of Forests. This Committee would then prepare a  list of eligible members which, after approval by the U.P.S.C., would be forwarded to the State Government for making appointment to the cadre posts.                        INITIAL RECRUITMENT      7.  Kraipack  case:  Sometime  after  these  rules  and regulations were  framed  the  initial  recruitment  to  the service was  taken on  hand. S.S.Bs.,  including the C.C.F., made selections  of officers  to  the  various  cadres.  The process  brought   to  light   a  serious   defect  in   the constitution of  the S.S.Bs.  It has  been mentioned earlier that, under  the Initial  Recruitment Regulations,  a S.S.B. had been  constituted for  selection L)  of officers  at the time of the initial constitution of the service and that the Chief  Conservator  of  Forests  (C.C.F.)  was  one  of  the officers on  the Selection  Board. A perusal of the Schedule to the Cadre Strength Regulations would show that the C.C.F. was also  one of  the cadre posts mentioned in the Schedule. At the  time of  the initial  recruitment, therefore, it was necessary also  to recruit  an officer  who might eventually fill this  post. Thus, the C.C.F. was not only on the S.S.B. but was  also a  prospective candidate  for consideration in the initial  recruitment. This  somewhat anamolous  position was considered  by the  Supreme Court  in the  case of  A.K. Kraipak v. Union of India, AIR 1970 S.C. 150 in its judgment dated 29th  April, 1969.  The Supreme  Court held  that  the initial recruitment  to the  State Cadre  of Jammu & Kashmir was vitiated by the above circumstance and quashed the same. Though the  question arose  only with  regard to  one of the States, namely,  Jammu & Kashmir, the position was identical in respect  of several States in the Indian Union. Hence all the initial  recruitments made  to the  various State cadres had to  be quashed  either suo moto by the Government or got quashed by  proceedings  in  a  court  of  law.  It  may  be mentioned here  that,  in  the  States  with  which  we  are concerned here,  the position  was as  follows. In Orissa, a select list of 41 officers was issued in January 1967, which had to  be set aside as a result of the decision in Kraipak. In Uttar Pradesh, 85 persons were initially recruited to the service and  this initial recruitment was held to be bad, on 11.12.1979, in  Jagat Narain  v.  Union,  CMWP  58  of  1968 following  the   decision  in  Kraipak.  In  Maharashtra,  a selection was 303 made on  2.6.1967 of  57 persons  but this selection was set

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aside by the High Court following Kraipak.                     LEGISLATIVE INTERVENTION      8.(a)  Rule   4(3A)-The  decision   in  Kraipak  having rendered the  initial appointment in all the States invalid, the defect  had to  be cured  and fresh selections had to be made  by  way  of  initial  recruitment.  Perhaps  a  second selection could have been made even under general law by way of implementation  of the  decision but Government wanted to make sure  and, therefore,  it introduced  rule 4(3A) in the Recruitment Rules. This provision reads as follows:           "4(3A)-Notwithstanding anything  contained in this           rule  where   appointments  to   the  Service   in           pursuance of  the recruitment  under sub-rule  (1)           have become  invalid by  reason of any judgment or           order of  any court,  the Central  Government  may           make fresh  recruitment under that subrule and may           give effect  to the appointments to the service in           pursuance of  such fresh recruitment from the same           date on  which the  appointments which have become           invalid as aforesaid had been given effect to." This rule was introduced with effect from 1.3.1971.      9. S.  3(1A)-It appears  that certain doubts had arisen in the  meanwhile regarding  the power  of the Government to make   rules   with   retrospective   effect.   Since   such retrospective effect  was necessary  for various reasons and particularly for  implementing the  decision  of  the  Third Central Pay  Commission, it was considered necessary to make a specific  statutory provision  clarifying the power of the Central  Government   to  make  rules,  if  necessary,  with retrospective effect. Parliament, therefore, enacted the All India  Service  (Amendment)  Act,  1975.  The  statement  of objects of the Amendment Act shows that section 3 of the Act was amended "so as to empower the Central Government to make rules with  retrospective effect  subject to  the  safeguard that no  rules  shall  be  made  retrospectively  so  as  to prejudicially affect the interests of any person, who may be governed by  such rules." The Amendment Act also proposed to validate  rules  which  had  been  made  in  the  past  with retrospective effect.  It may the convenient here to set out the new sub-section ( lA) introduced in section 3 of the Act the 1975 Amendment Act. This sub-section reads as follows: 304           " 1A-The  power to  make rules  conferred by  this           section  shall   include   the   power   to   give           retrospective effect  from a date not earlier than           the date of commencement of this Act, to the rules           or any  of them  but no retrospective effect shall           be given to any rule so as to prejudicially affect           the interests  of any person to whom such rule may           be applicable." It is  also necessary to refer to section 3 of the Amendment Act, which was in the following terms.           "3. Validation-No rule made, or purporting to have           been  made,   with  retrospective   effect,  under           section  3   of  the   Principal  Act  before  the           commencement of  this Act  shall be  deemed to  be           invalid or ever to have been invalid merely on the           ground that  such rule was made with retrospective           effect and  accordingly every  such rule  and  any           action taken  or thing done thereunder shall be as           valid  and  effective  as  if  the  provisions  of           section 3  of he Principal Act, as amended by this           Act, were in force at all material times when such           rule was  made or  action or  thing was  taken  or           done.

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    10. Purvez Qadir’s Case-Exercising the powers conferred by the  amendment of  the Act  and the  rules,  the  Central Government constituted fresh S.S.Bs. to consider the initial recruitment to  the various State cadres in place of the one that was quashed in Kraipak. This raised the question of the validity  of   rule  4(3A),   introduced  with   substantial retrospective effect.  The seniority of persons recruited to the service  as affected  by the provision that recruitments to be  made pursuant  to the new sub-rule would be deemed to have taken  effect from  Ist October,  1966. The validity of the rule  was, therefore,  challenged by  various  concerned officers but  this challenge  was repelled  by  the  Supreme Court in  the case of Parvez Qadir v. Union of India & Ors., [1975] 2 S.C.R. 432.      11. Chothia  Case-Another challenge  was also  posed to the initial  recruitment made  in certain  States under rule 4(1). It appears that the S.S.Bs. had considered not all the officers who  were eligible  under the  initial  recruitment rules but  only  such  number  of  them  as  was  considered necessary to  fill up the vacancies that were then available in the  State cadre.  Thus, for  example, in  the  State  of Maharashtra, although  there were  116 officers eligible for consideration, the State is 305 said to  have considered  only about  95 of them. The others were not,  it is  alleged, considered  by  the  S.S.B.  This procedure  was   challenged  by  a  number  of  officers.  A contention was  raised that  rule 4(1)  and  the  regulation thereunder envisaged  a consideration  by the  S .  S . . Of (broadly speaking)  all the  officers belonging to the State Forest Service  who had put in 8 years of service or 4 years of service  (as the  case may  be) for  recruitment  to  the service and  that the S.S.B. had to arrange the names of all the officers  found to be eligible and adjudged suitable for appointment in  the order of preference. Thereafter, subject to the  availability of  vacancies, these officers had to be recruited to  the service. It was also urged that in respect of each  one of  the officers not placed in the select list, the SSB  had to  record and forward to the U.P.S.C. specific reasons for  their non-inclusion  in the  list. It  was  not sufficient for  the S.S.B.  generally to  say  that  it  had considered the  other officers  and found them unsuitable as initial  recruits.  This  contention  was  accepted  by  the Supreme Court in Union of India v. Chothia., [1978] 3 S.C.R. 652.      12. Present  Cases-In the  present matters,  we have to consider certain questions arising out of the second (in the case of  U.P., the  second and third) set of selections made by the  SSBs in  place of  the first  selection set aside by Kraipak. To  avoid confusion,  we may clarify here that what we are  concerned with  in all  the  cases  is  the  INITIAL RECRUITMENT under  s. 4(1) of the Recruitment Rules but made for the  second or  third time,  the first  selection having been set  aside by  Kraipak. The problem arises this way. It has been  mentioned that  the first  selections  by  way  of initial recruitments  to the State cadres were made sometime in 1966  and 1967. The Kraipak decision came in 1969. In the meanwhile in many of the States the first selection had been followed up  by subsequent  recruitments largely made on the basis of  competitive examination  under rule 4(2)(a) of the Recruitment Rules  and a  few also  by promotion  under rule 4(2)(b). As  a result  of the  second (and third) selections made by  the SSBs,  a number  of officers  in the respective S.F.S. have been given appointment in the I.F.S. with effect from 1.  10.1966 under  rule 4(3A) and have thus been placed

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in a  position of  higher seniority  vis-a-vis the  recruits under  rule   4(2)  (all   of  whom  are,  for  convenience, hereinafter referred  to as  ’direct recruits’).  The direct recruits are dissatisfied with this for obvious reasons.      13. The  present batches of cases relate to three State cadres,  Maharashtra,   Orissa  and  Uttar  Pradesh.  Before dealing with  the contentions,  it may perhaps be convenient to give  a brief  resume of  the position  in each  of these States. 306      14. Uttar  Pradesh-The nine  petitioners  in  the  High Court (of  whom 8  are appellants  before  this  court)  are direct recruits  of 1968 and 1969 confirmed between 1969 and 1972 after probation. In this State, the initial recruitment was made  in 1966-67  of 85  officers, 58  to posts  in  the senior time  scale and 27 to posts in the junior time scale. Subsequently, six  persons were  promoted under rule 4(2)(b) and nine  persons were  recruited under  rule 4(2)(a) of the Recruitment  Rules.  The  initial  recruitment  having  been declared  bad,  a  fresh  SSB  was  appointed  and,  on  its recommendations 104  persons were  appointed to the Service, 60 to  senior time  scale posts  and 44 to junior time scale posts. Again  in 1976,  six more persons were added and thus 110 persons  have been  taken in  as and  by way  of initial recruitment  as  against  85  persons  taken  in  the  first selection.  The  direct  recruits  are  aggrieved  by  these selections. They contend:      (a)  Under   the  Maharashtra  Schedule  to  the  Cadre           Regulations, there can be initial recruitment only           to 28  junior posts. This has been exceeded by the           second and third selections;      (b)  As on  23.12.1974, the total strength of the cadre           rose to  104 plus 15, appointed earlier under rule           4(2), thus  making a  total of  119 as  against an           authorised strength of 110 only;       (c)  The second  and third selections can only be made           to validate  the initial  recruitment of  85 which           had been  invalidated and cannot be made use of to           increase the number of initial recruits;       (d)  The third  selection of  six officers  is, in any           event, bad  as the  power under  rule 4(3A)  could           have been exercised only once; and       (e)  It appears  that  in  the  subsequent  selections           certain officers  not  adjudged  suitable  at  the           first selection  have been  included.  This  could           have been  done only  if their confidential report           (CRs)  subsequent   to,  or   other  than,   those           considered at  the time of the first selection had           been considered.  This  is  not.  justified  as  a           recruitment under  rule 4(3A) has to be made as if           it was  being made  at the  time  of  the  initial           recruitment i.e. 1. 10.1966 and subsequent records           cannot be taken into account. Their contentions  having been  rejected by  the High Court, they are in appeal. 307      15. Maharashtra-Turning to Maharashtra, the position is as follows:  The first  selection was made on 2.2.1967 of 57 officers, 36  for the senior time scale posts and 21 for the junior time  scale posts.  This was set aside. On 13.7.1971, at the  second selection,  116 officers  were  found  to  be eligible but  only 66  officers were considered suitable for appointment. 39  out of  51  eligible  officers  were  found suitable for  senior scale  out of  whom 35  were  appointed immediately and  four later.  27  were  found  suitable  for

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junior scale  out of  whom 23  were appointed  initially and four later.  All these  66 appointments  were made w.e.f. 1. 10. 1966.  The writ  petitioners before  the High Court (in. Spl. CA  No. 2443/74) were persons who had joined the SFS in 1962 and had put in 4 years.of service as on 1. 10. 1986 and were thus  eligible for consideration to junior scale posts. Their grievance  was that  the Government had not considered the  case   of  all  the  officers  who  were  eligible  for consideration for  junior posts (viz. those in S. Nos. 52 to 116 on  the eligibility  list) because the Government, which had found  23 officers  suitable when they reached S. No. 96 stopped there  and did  not consider the names of the others at all  as they  should have  done under Chothia. Initially, the writ  petition was dismissed on 2.6.1979 for the failure to implead all persons affected as parties but this Court by its order  dated 24.10.1980  (in CA  2359/80)  restored  the matter for  fresh disposal after adding the affected persons as parties.  The High  Court  eventually  allowed  the  writ petition on  7.8.1981 holding  that  all  the  116  officers should be  considered and  that the omnibus reason given for rejecting some  is not sufficient compliance with regulation 5(2)(b) of  the Initial Recruitment Regulations. It directed that now  the 116  persons should  be considered  for the 90 posts available in the State cadre in strict compliance with regulation 5.  Some of  the respondents,  comprising persons who had been directly recruited under rule 4(2) between 1968 and 1970,  have preferred  the appeals  to this Court. While they have  in principle  no objection  to a fresh selection, their contention  is (a) that the recruitments to the senior time scale  posts should  not  be  redone  as  there  is  no controversy regarding  the  selection  of  39  out  of  5  1 eligible officers;  (b) that  the number  of  selections  to junior time  scale posts  from out of the candidates S. Nos. 52 to  116 should not exceed 23; and (c) that the selections should be  made on the basis of CRs upto 1. 10. 1966 without reference to  subsequently changes  made therein  or the CRs for subsequent  periods. On  behalf of  the writ petitioners before the  High Court  (respondents  here),  a  preliminary objection has been taken. They point out that the appellants had not  raised any protest of this type either at the stage of hearing of the original writ petitions or at the stage of their rehearing  (when they  had  been  added  as  parties). Neither was any counter affidavit filed nor was 308 there any appearance on their beahlf. In view of this, it is contended that  their appeal is not maintainable. It is also submitted that  the selections  now being  made are  for  an initial recruitment  as on  1.1().1966, a  date at which the appellants had not been "born" into the service, and so they do not  have  any  locus  standi  to  complain  against  any recruitments as  on the  said date. Without prejudice to the above preliminary objections, they also support the judgment of the High Court on merits.      16. Orissa-In  the case  of Orissa, writ petitions have been  directly   filed  in   this  court.  There  are  eight petitioners who  had joined  the Orissa State Forest Service as  on  1.4.1962.  After  two  years’  training,  they  were appointed as  Assistant Conservators of Forests on 1.4.1964. By 1.4.1966  they had  completed 4 years’ continuous service in the  State Cadre.  They  were,  therefore,  eligible  for selection to  junior scale  posts in the IFS. Two selections were made  by way  of initial  recruitment, once  in January 1967 when  4 1 officers were selected and, then in 1972 when 42  out   of  82   eligible  officers   were  selected.  The petitioners were  not adjudged  suitable at  either of these

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selections but they were eventually taken into the IFS under Rule  4(2)(b)   between  1975  and  1977.  The  petitioners’ contention is  that their  names were  not considered at all either at  the first  selection or  at the  second selection under an  impression that  the number of posts in the junior time scale were limited. It is said that the selections were made by  considering  eligible  officers  in  the  order  of seniority only  to an  extent necessary  to recruit 41 or 42 persons and  the Government  did not  consider  all  the  82 eligible officers  and select 42 out of them arranged in the order  of  preference.  This,  it  is  argued  vitiates  the selection as  held in  Chothia. In  the  counter  affidavit, these allegations  are vehemently denied. It is claimed that the petitioners  were all  considered at the time of drawing up the  earlier select  lists. The  respondents, are (a) the persons selected  and appointed  in 1972  who are  still  in service and  (b) persons  who have  come in between 1966 and 1975 by  way of  recruitment under  rule 4(2)(a). They plead that the  writ petition  should be  dismissed on  grounds of laches  as   the  petitioners  raised  no  such  protest  or objection at  any earlier stage and have come to court after a lapse  of twelve  years. They also deny the allegations in the writ  petitions and contend that the petitioners had all been duly  considered at  the earlier selections but had not been adjudged suitable for recruitment to the service.      17. These,  in brief,  are the problems raised in these cases and we may now proceed to deal with them one after the other. 309               CAN NUMBER EXCEED INITIAL SELECTIONS?      18. The  first contention urged on behalf of the direct recruits is  that rule  4(3A) authorises  the Government  to fill in  only the  number of  posts the appointment to which had been  declared void  by the  Court and no more. Thus, in U.P., the  initial  recruitment  which  had  to  be  quashed because of  Kraipak was  of 85  persons. Taking advantage of this situation,  the Government  purported  to  recruit  104 persons on  23.12.1974 and six more in 1976, thus completing the total  strength of  110 as  against 85  first filled up. Likewise, in  Maharashtra the  first  selection  was  of  57 persons which  was expanded  to 66  in 1971.  ln Orissa, the first selection  was of  41 persons but the second selection resulted in the recruitment of 42 persons. T his addition to the number  of officers  first recruited  in the  subsequent selections is  challenged by the direct recruits principally because the  subsequent selections, which are deemed to be a remaking  of   the  initial  recruitment,  have  been  given retrospective effect  from 1. 10.1966 and thus these persons rank higher  in seniority  to the  direct recruits  who have come in from 1967 onwards.      19. We  are  unable  to  accept  this  contention.  The initial recruitment  regulations clearly  envisage that  the S.S.B. should  consider the cases of all the officers in the S.F.S. who  fulfill the  conditions of eligibility and judge their suitability  for appointment  to posts  in the service and prepare  a  list  of  such  officers  in  the  order  of preference. This  selection was  initially done  by a Board, the constitution  of which  was found  to be  vitiated.  The logical consequence of this would be that the process has to be redone  by a  competent and validly appointed S.S.B. from out of the eligible officers. It is not anybody’s case that, in the  second or third selections, the Board has considered persons other  than those in the SFS who were eligible as on 1.10.1966. In  other words,  the range  of selection was the same as was considered or should have been considered by the

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initial S.S.B.  It is also not anybody’s case that the Board has  considered   the  records  of  any  of  these  officers subsequent to 1.10.1966. It, however, appears that there had been some  changes, subsequent  to 1. 10.1966, in the CRs of some of  the officers  pertaining  to  the  period  upto  1. 10.1966, consequent  on representations  made for expunction or modification  of adverse  remarks. Sri  Kackar  suggested that such  revised CRs  should  not  have  been  taken  with account but  we are  unable to  agree. We  do not think that anyone can  validly object  to this course since the case of an officer  who has  succeeded in  having an  adverse remark against him  struck off  or modified  is exactly on the same footing as if such adverse remarks had 310 not been there at all or had been there in the modified form right from  the beginning.  What has  happened therefore  is only that,  from the  same  set  of  officers  as  had  been considered by the initial S.S.B., the subsequent Boards have adjudged more  officers as  suitable for recruitment, partly due to  inherent differences  of approach  between one Board and another in the process of adjudication and partly due to the fact  that the  records of  some of the officers for the relevant period  had undergone changes which had to be taken into account.  One further  reason for  the increase  in the number of officers adjudged suitable (which we shall discuss in some  detail later) is that the initial S.S.B. considered only some  out of  all the  eligible officers  and  did  not extend their  scrutiny to  all the eligible officers as they should have  done as  per the  decision in Chotia to sum up, the decision  in Kraipak  necessitated a  complete review of the first  selection. On no logical basis can the subsequent Selection Boards be compelled to restrict their adjudication of suitability  to the  same list  number of  persons as the first Board  had selected,  so long  as  the  same  list  of eligible officers  and their  records as  on 1. 10.1966 were considered. We  see, therefore,  no t)  merit in  the  first contention urged on behalf of the direct recruits.                STRENGTH & COMPOSITION OF THE CADRE      20. The second contention urged on behalf of the direct recruits is  more  substantial  and  is  perhaps  the  vital contention on which their case rests. It is pointed out that the Cadre  Strength Regulations  not  merely  prescribe  the strength of  the various  cadres but also their composition. One of  the principal features of the composition as per the schedules is  that the  authorised strength prescribed is to consist of  a certain  number of  senior posts and a certain number of  junior posts.  According to  the direct recruits, the schedules  prescribe the  minimum number of senior posts and the  maximum number  of junior posts. It is pointed out: (a) that all the posts enumerated against-items nos. 1 and 2 in each  of the  schedules  are  specifically  described  as senior posts; (b) that items nos. 3 and 4 set out in each of the schedules  pertain to  recruitments (subsequent  to  the initial recruitment)  under rule  4(2)  of  the  Recruitment Rules and that these items have to be left out of account in considering the initial recruitment under rule 4(1);(c) that all the posts enumerated against item no. 7 are described as junior posts; and (d) that the posts mentioned against items nos. S,  6, and  8 depend  upon item no. 4 and so partake of the same character. Even assuming that all the posts against item nos.  5 to 8 are only junior posts, the total number of junior posts cannot exceed 13, 28 and 23 respectively in the case of Orissa, Uttar Pradesh and Maharashtra. On 311 this  premise,   it  is   contended  that  the  appointments

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purportedly made  by  way  of  initial  recruitment  in  the subsequent selections have exceeded the quotas prescribed by the schedules  in regard to senior and junior posts. Thus in U.P., while  the first  recruitment of  58 officers  to  the senior scale  and 27  to the  junior scale was in order, the second recruitment  of 44  persons to junior scale posts was not warranted. Likewise, in Maharashtra while the Government restricted itself  in the first selection to the appointment of 23  persons to  the junior  scale, the High Court has now directed the  filling up of all the 90 posts in the cadre by considering the  116 eligible officers, overlooking that the maximum number  of officers found eligible for consideration to senior scale posts is only 51 and that out of the balance of 65  persons only  23 can  be appointed  to  junior  scale posts. The  petitioners submit  that, while they do not wish to attack  the validity  of the  appointment of  officers in excess of the respective quotas, it is necessary at least to ensure that  the officers  so appointed do not steal a march over those  who have been rightly recruited in terms of rule 4(2) after  the first  recruitment in terms of rule 4(1) had been completed.      21. The  Government and  the initial  recruits seek  to meet  the  above  contention  in  two  ways.  They  contend, firstly, that the assumption of the direct recruits that the prescription of strength of the service in the schedule will apply to  the initial recruitment is wrong and that, even if this were  correct, the further assumption that the schedule separately prescribes  limitations on  the number  of junior and senior  posts is wrong. Secondly, they submit that, even if both  the above  assumptions are  granted,  the  argument overlooks  that  the  rules  confer  power  on  the  Central Government to  alter the  strength and  composition  of  the cadres at  any time  and that,  therefore, any appointments, even if  made in  excees, should  be treated as an automatic expansion of  the cadre  strength and would not be irregular or invalid.      22. We  may take  up the  second argument  first. If it were  correct.   it  would  be  a  complete  answer  to  the contentions of  the direct recruits. The argument is that it is for  the Central  Government  to  fix  the  strength  and composition of  the  cadres  and  that  this  power  can  be exercised by  it at any time. The first proviso to rule 4(2) of the  cadre rules,  it is  said, places  this  beyond  all doubt. As  against this,  it  is  contended  by  the  direct recruits that  the proviso  relied upon is only a proviso to rule 4(2) and does not extend to rule 4(1). it is urged that it  has  application  only  to  the  power  of  the  Central Government to  make alterations  to the  cadre  strength  in between the  three-year review  contemplated by  rule  4(2). Shri Kackar, in this context, referred us to 312 the following  observations in  Royappa v.  State  of  Tamil Nadu, [19741 2 SCR 348 at p. 379:           "We now  turn to  the first  ground of  challenged           which alleges  contravention of the second proviso           to r.  4(2) of  the Indian  Administrative Service           (Cadre) Rules,  1954 and  r. 9,  sub s.(1)  of the           Indian Administrative  Service (Pay)  Rules, 1954.           So far  as the  second proviso  to r.  4(2) of the           Indian Administrative  Service (Cadre) Rules, 1954           is  concerned,   we  do   not  think  it  has  any           application. That  proviso merely  confers limited           authority  on   the  State   Government  to   make           temporary addition  to the  cadre for a period not           exceeding  the   limit  therein   specified.   The

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         strength and  composition  of  the  cadre  can  be           determined only by the Central Government under r.           4( l)  and the Central Government alone can review           it trienially  or at  any other  intermediate time           under r. 4(2)."      23. We  do not  think that such a narrow interpretation of the  proviso is warranted. As we see it, the proviso only outlines the  general principle  that, whoever has the power to do  a particular  thing has also the power to exercise it from time  to time,  if need be: (vide, s. 14 of the General Clauses Act, 1897). It had to be specifically put in because of the  language of  the main part of sub-rule (2) providing for a  triennial review  lest it  should be  construed as  a restriction on  the general  power otherwise  available. We, therefore, agree with the contention of the initial recruits that the  Central Government  has the  power  to  alter  the strength and  composition of the cadres at any time. We are, however, still  of the  view that  the contention  urged  on behalf of  the initial  recruits cannot  be accepted  for  a different reason.  If the  terms of  the relevant  rules are scrutinised,  it   will  be   seen  that  the  strength  and composition of the cadre has to be determined by regulations and that  these regulations  have to  be made by the Central Government in  consultation with the State Government. It is a well  settled principle  that, if a statutory power has to be exercised  in a  particular manner,  any exercise of that power  has  to  comply  with  that  procedure.  [t  follows, therefore, that if the initial composition can be only drawn up  in   consultation  with  the  State  Government  and  by regulations, it  will not  be permissible  for  the  Central Government to  modify or  alter the  same save  in the  same manner. In  fact also,  it has  been brought  to our notice, there have  been  subsequent  increases  in  the  authorised strength of  almost all  State  Cadres  and  this  has  been effected by  an appropriate amendment to the Regulations. It is not the 313 case of  the Government  that before  the second  and  third selections  were  made,  either  the  State  Government  was consulted or the regulations were amended for increasing the strength. Nor  is it  even their  case that  there  was  any specific  order  by  the  Central  Government  changing  the strength and composition of any cadre. We are, therefore, of opinion that  it is not possible to accpet the contention of the initial  recruits that the mere appointment of an excess number  of  officers  should  be  treated  as  an  automatic expansion of  the cadre strength and composition in exercise of the power available under rule 4( 1).      24.  On  behalf  of  the  Government  and  the  initial recruits, it  was contended  that the  Regulations, in  this respect, cannot  be considered to be mandatory, particularly as they  do not outline the consequences that will follow on a violation  of their  requirements. Reference  was made, in this context, to the decision of this court in Lila Gupta v. Lakshmi Narain,  [1978] 3  SCR 922  at p.  932; Atlas  Cycle Industries Ltd. v. State of Haryana, [1979] 1 SCR 1070 at p. 1076 and  1084-5 and  G.S. Lamba v. Union of India, AIR 1985 S.C. 1019 at p. 1032. We do not think the observations cited are in  point. The  nature and  context  of  the  provisions considered in the cited decisions were totally different. In Lila Gupta,  the  court  was  concerned  with  the  question whether a marriage contracted in violation of the proviso to s. 15  of the  Hindu Marriage Act should be considered void; and the  Atlas case,  the question was whether the non-lying of a  notification before  the Legislature  rendered it null

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and ineffective;  and in  the Lamba  case the  court, in the context of  certain facts,  came to  the conclusion that the exercise of  a power  of relaxation should not be treated as vitiated merely  because reasons  were not recorded. Here we are concerned  with a set of Regulations whose whole purpose is to  fix the  cadre strength.  It is  also a  provision in regard  to   an  All-India   Services  in   regard  to   the constitution of  which both the Central Government and State Governments have  a say.  It is difficult to accept, in this context, the  submission that  the cadre  strength could  be varied without  amending the  Regulations  and  schedule  of without  consulting  the  State  Government  concerned.  The former course  would leave  the strength of the cadre easily alterable, fluctuating  and indeterminable  and thus nullify the entire  purpose of the Cadre Strength Regulation. So far as the  latter is  concerned, this  Court held,  in Kapur v. Union of India, [1975] 2 S.L.R. 531 that it is not open to a State Government  to overutilise  the deputation  reserve in all  All-India   Service  without   consulting  the  Central Government. Equally, we think, it is not open to the Central Government to  alter the  strength and  composition  of  the Cadre without con- 314 sulting the  State Government concerned. The second argument of the initial recruits is, therefore, rejected.      25. We  may now turn to the first argument which, again consists of  two parts. The first is that the restriction on number of  officers in  the schedule  does not  apply to the initial recruitment  at all.  It is argued that the idea and intention of the Initial Recruitment regulations is that all officers of the SFS found eligible for appointment either in the senior  time scale  or in  the  junior  time  scale  and adjudged suitable for such appointment to the service by the S.S.B. and  U.P.S.C. will  automatically stand  recruited to the service irrespective of the number of such of . Thus, it is argued  that even if, in any particular State, the number of such  officers exceeds  the total  authorised strength of that  State   Cadre  as   per  the  Schedule  to  the  Cadre Regulations,  there   can  be   no  bar   to  their  initial recruitment to  the service.  In support of this contention, it is  pointed out  that items nos. 3 and 4 mentioned in the schedule, viz.,  posts to  be filled  by direct recruitment, are references  to  recruitments  under  rule  4(2)  of  the Recruitment Rules.  It is  then said  that item  no. S and 8 which are  expressed as  a percentage of item no. 4 can also be  considered  only  as  a  reference  to  such  subsequent recruitment. It  follows,  it  is  argued,  that  the  total authorised strength which is the aggregate of item nos. 3 to 8 can  pertain only  to the  strength of  recruitments under rule 4(2)  and not  to the initial recruitment. Plausible as this  argument   appears,  we  are  unable  to  accept  this contention. The  Cadre Regulations read with the Cadre Rules leave no  doubt that  the strength  and composition referred to, or  prescribed, therein  is of  the entire  cadre of the service in  the State concerned and is not restricted to the recruitments made  after the  initial recruitment. The total authorised strength  referred to  is  the  total  number  of officers who, at any point of time, can man the posts in the cadre. It  could not  have been the intention that the cadre should consist  of an indefinite number of persons recruited by the  SSB from  the SFS  supplemented  by  the  number  of officers referred  to as the total authorised strength. This conclusion is  reinforced by three important considerations. The first,  as rightly pointed out by Sri Kackar, is that if the intention  were that the Schedule was to operate only in

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respect of  recruitments under rule 4(2), it would have been specifically so  mentioned. Not only has this not been done; the regulations  have been  made retrospective  with  effect from the  date of commencement of the Service which would be totally without  purpose on  the argument  addressed by  the initial recruits.  Such a  situation cannot be accepted. The second is  that the  number of  officers referred to against item nos.  3 and  4 is  the same  as the  numbers  indicated against 1 and 2 which represents posts already in 315 the State  cadre and in Central Government and which have to be filled  in by  way  of  initial  recruitment.  Thus,  for example, if in Maharashtra, 67 officers in the SFS are found eligible and  are  recruited  to  the  service  against  the various cadre  posts and  if subsequently  67  officers  are recruited against  item nos.  3 &  4, the  total  authorised strength will  rise to 134. The fact that the total of items 1 and  2 is the same as the total of items 3 and 4 indicates beyond doubt  that, apart  from officers  recruited  against items 5  to 8,  the cadre, at any point, can only consist of the number  prescribed as  the authorised  strength and  not virtually twice  that number.  The more  harmonious  way  of reading the  entries in  the schedule  in that  the  maximum strength of  the cadre  at any  point can  only be the total authorised strength  which will comprise of the senior posts mentioned against  items nos.  1  and  2  and  the  adjuncts specified against  items nos.  5 to  8. Items  3 and  4  are indicated in  the schedule  only  to  show  that  after  the initial recruitments  are over  and recruitments  are to  be made to  senior posts  in the  cadre under  rule  4(2),  the number of  promotes should  not exceed  331/3% of the senior posts in  the cadre,  which is  the requirement of rule 9 of the Recruitment  Rules. The  break-up and composition of the cadre, referred  to against items nos. 3 and 4, will only be relevant at  the stage when, all the initial recruits having retired or  ceased to  be in  service, the  cadre  comprises exclusively of  persons recruited under rule 4(2). The third consideration  which   reinforces  our   conclusion  is  the significant mandate  that the initial recruitment under rule 4(1) shall  be "subject  to the availability of vacancies in the  State  Cadre  concerned".  If  the  number  of  initial recruits can  be indefinite  and limitless  as  urged,  this expression would  be meaningless.  The apprehension that the interpretation placed  by us would create difficulties where the number of eligible officers of the SFS adjudged suitable exceeds the  total strength is really without foundation. In the first  place, a  good deal  of discussion  preceded  the framing of  the rules and regulations and one can reasonably assume that the cadre strength has been fixed for each State with a fair idea about the number of SFS officers who may be eligible and  are likely  to come into the cadrs at the time of initial  recruitment. The  actual experience in the three States before  us also  shows that  the contingency  of such officers exceeding  the total  authorised strength  is quite remote. Secondly,  even if  in any  case there  should be an excess of  such officers, no insurmountable problems will be created. The  Central Government,  in consultation  with the State Government  (which would  only be too anxious to place its eligible officers in the All-India Service) can increase the authorised  total strength  to  accommodate  them.  Even otherwise, the  surplus officers will be kept in the waiting list and  will get  into the  service as  and when vacancies available due to retirement 316 or other vacation of office by the initial recruits arise or

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as and  when the  cadre strength  is augmented.  All that is necessary is  that they  should all  be accommodated  before recruitment  under   rule  4(2)  is  undertaken.  There  is, therefore,  no   difficulty  in   holding  that   the  total authorised strength  of  the  cadre  is  to  be  counted  by including  the   initial  recruits  and  that  all  eligible officers  adjudged  suitable  cannot  be  recruited  to  the Service in excess of the total authorised strength.      26. The  truly critical, and really difficult, question that needs  consideration  in  these  appeals  is  not  that appointments by  way of  initial recruitment  were  made  in excess  of  the  total  authorised  strength  but  that  the Government has  failed to  keep  in  mind  the  restrictions placed on  the number  of senior  and junior  posts in  each cadre while  making appointments. The point made is that, in each State  cadre, the  posts indicated against items nos. I and 2  are senior  posts. These, say the petitioners, can be filled up  subject to  the availability  by  officers  found eligible under regulation 4(1). Items nos. 3 and 4 do not at all figure  at the  time of  initial recruitment.  So far as items 5  to 8  are concerned, it is submitted, items 7 and 8 are clearly  junior posts and, though there is no indication whether items nos. 5 and 6 are to be junior or senior posts, the total  number of junior posts in the cadre cannot exceed the total  number mentioned  against items  nos. 5 to 8. The grievance of  the petitioners is that more recruitments have been made against junior posts than is permissible under the respective schedule.      27. The  above contention  arises in the following way. In  U.P.   as  has  been  pointed  out  earlier,  the  first recruitment  of   58  and  27  fell  within  the  prescribed strength. But,  in the second selection, 44 junior posts and again six  more officers in a third selection were taken in. This it  is said, was not justified as the maximum number of junior posts in the cadre was only 28. While it is suggested that, strictly speaking, the appointment of surplus officers is invalid,  the petitioners say that they do not want those appointments declared invalid but only pray that they should not be  treated as  initial recruits  and  hence  should  be placed  in   seniority  below   the  direct   recruits.   In Maharashtra, the setting aside of the initial recruitment is not, and  cannot be,  complained  against  in  view  of  the earlier decision  of this  Court. The only grievance here is that the  High Court,  while ordering  a redo of the initial recruitment, by  a second  selection, has directed that, the 116 eligible  persons should  be considered  for  90  posts, without specifying  that officers  eligible for senior scale will have to be considered for 67 senior posts and a maximum of only 23 officers could be taken for junior posts. In 317 Orissa, 41 officers were recruited in 1967 and 42 in 1972 by way of  initial recruitment.  It is  not known  whether  the number of  officers  appointed  to  junior  posts  has  been restricted to  13 (the  total of  items nos.  5 to  8 in the Schedule) or not but there is no allegation that this number has been exceeded and so this question does not arise.      28.  The   answer  of  the  initial  recruits  to  this contention is that it proceeds on a complete misapprehension of the  nature of  the all-India Service and the composition of the  cadre. They  say  that  the  rules  contemplate  two stages. The first is a recruitment of an officer to the All- India  Service,   whether  under   rule  4(1)  or  4(2),  in accordance with  the regulations  and subject  to the  total strength authorised  thereunder. This is done by the Central Government and  it is  with this that we are concerned here.

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The second  is the  appointment of a person recruited to the Service to  a particular  post in  the cadre. This has to be done by the State concerned under rule 7 of the Cadre Rules. At the first stage, the post which the person may eventually accept in  the service  is totally irrelevant. Once a person is recruited,  whatever may  be the  post to which he may be assigned, he  will be  an I.F.S.  Officer belonging  to  the cadre. To  give an  easily understood  analogy, a person who succeeds in  the  written  and  viva  voce  tests  held  for recruitment to  the Indian  Administrative Service becomes a member of  the Service  once he  is  recruited  having  been selected and  having come  within the scope of the available posts in  the service.  Thereafter,  whether  he  is  to  be appointed as a Collector or as an officer in the Secretariat or is  to occupy one of the innumerable cadre posts allotted to the  service and whether he should be given a junior post or senior  post will be a concern of the State concerned and will  have  no  bearing  on  the  validity  of  his  initial recruitment to the service.      29. The  initial recruits also object to the attempt of the direct  recruits to  equate senior and junior posts with senior time  scale and  junior time scale posts mentioned in the Initial  Recruitment Regulations. They say that a senior officer can  occupy a junior scale post if exigencies of the service so require. This will not cause any prejudice to the officer because  he will  be carrying  his own time scale of pay on  any post.  So also,  a very  junior officer  can  be appointed to  a senior  post, for  the Pay Rules envisage an officer  just  recruited  to  the  service  being  appointed simultaneously to a post on the senior time scale. Attention is also  invited to  the definition  in the  Seniority Rules which defines  certain posts  as senior  in the light of the status of  the officer  occupying the  same.  It  is  urged, therefore, that  though the  Cadre Regulations describe some posts as senior and some as junior, this is 318 only a  description of  the nature of the posts on the cadre and has no bearing on the nature of the initial recruitment. Hence, it  is said,  a reference  to the  junior and  senior posts  should  not  be  confounded  with  the  right  of  an appointee to  be placed  on a  junior or  senior time  scale post, as the case may.      30. We  have  given  careful  thought  to  the  various aspects of  the issue  and it  seems to  us that the initial recruits are  right in contending that the Cadre Regulations do not lay down any water-tight classification of junior and senior posts  in the  manner contended  for  by  the  direct recruits. It  is true  that the  Cadre  Regulations  make  a reference to  senior  and  junior  posts  but  this  is  not intended to  be an  essential element  in the composition of the cadre.  For one  thing, the  Cadre  Regulations  do  not indicate, in  respect of a number of posts, whether they are to be  considered as  junior or  senior. This would not have been the  position if this classification was intended to be a vital  feature of  the composition.  Secondly,  the  Cadre Regulations contain  no definition of the words ’senior’ and ’junior’ posts.  There is a definition only in the seniority rules but  even that definition declares a post indicated in item no.  2 of  the schedule as a senior post to be a senior post only when the current incumbent therein at any point of time is  an officer on the senior time scale of pay. Nor can we conclude  that the  posts are  divided into  senior  time scale and  junior time  scale posts, the former of which can be describe  as senior, and the latter as junior posts. This is because  the Pay  Rules show that if regard be had to pay

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scales, some  of the  posts are  on scale of pay higher than either of  the scales indicated in rule 3 thereof. Again the rules envisage  that (a)  officers recruited under rule 4(1) should be  placed on either of the scales depending, broadly speaking,  on  the  length  of  their  service;  (b)  direct recruits through  competitive examination should be taken on the junior  scale; and  (c) that  recruits through promotion should be  placed on  the senior  scale. In  other words, it cannot be postulated that entrants to the service will first enter on a junior scale post and work his way upward. Though rule 6A  of the  Recruitment Rules permits an appointment of an officer  on a  junior time  scale post  to a  post on the senior time  scale only  if "having  regard to his length of service, experience  and performance  in the junior scale of pay, the  State Government  is satisfied that he is suitable for appointment  to a post in the senior time scale of pay", rule 4 of the Pay Rules envisages an officer recruited under rule 4(1)  of the  Recruitment  Rules  being  simultaneously appointed to  a post  on the  senior time  scale. This  rule indeed takes  away the  basis of  the arguments on behalf of the direct  recruits for  it  will  be  open  to  the  State Government to appoint even officers recruited on junior time 319 scale to  posts on  the senior  time scale.  Equally,  there appears to be no specific bar to an officer recruited to the senior time  scale being  appointed to a post described as a junior post in the Schedule to the Cadre Regulations as such an officer  will carry  his time  scale with  him, although, normally, such  an appointment is not likely to be made. All these rules  therefore show  that an  officer being  in  the junior or  senior time scale or a on a junior post or senior post  depend  upon  various  eventualities  and  it  is  not possible to  pin down  any posts  as senior or junior or any officer as on one of the two time-scales. We are, therefore, inclined  to  agree  with  the  initial  recruits  that  the reference to junior and senior posts in the cadre should not be considered to be so a rigid or integral part of the cadre composition as  to affect  the validity of appointments made in excess of a particular number.      31. However,  we would like to say that, in the view we take  of   the  regulations   as  discussed   below,  it  is unnecessary to  express any  concluded opinion  on the above issue.  One  thing  that  is  plain  on  the  terms  of  the regulations is  this: that,  once a  person is  found to  be eligible and  is adjudged suitable for recruitment under the Initial Recruitment Regulations, he has to be taken into the service  as   part  of   the  initial   recruitment   either immediately on 1. 10. 1966 or as and when vacancies arise in the cadre.  When the  number of  officers found eligible for each category  is less than the number of available posts in the corresponding  category, there  is  no  difficulty.  But where the  number of  suitable candidates to either category or  in   both  categories   exceeds  the  number  of  posts, difficulties  arise   on  the  stand  taken  by  the  direct recruits. In  this context, we can conceive of four types of situations. To  illustrate  with  reference  to  a  concrete example, we  may consider  a State where, on the basis urged by the  direct recruits,  there are  45 senior and 20 junior posts in the cadre. Let us suppose that the SSB’s selections reveal one of the following alternative states of affairs:      (i)  that 25 persons in the SFS are suitable for senior           posts and 15 persons for junior posts;      (ii) that 25 persons in the SFS are suitable for senior           posts and 40 persons for junior posts; G      (iii)that 50 persons in the SFS are suitable for senior

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         posts and 15 for junior posts; and      (iv) that 75  persons in the SFS are found suitable for           senior post and 40 for junior posts. 320      Situation (i)  will create  no difficulty.  The initial recruitment will  be inadequate to fill up the cadre and the remaining posts  will have to be filled in by recruits under rule 4(2).  In  situation  (iii)  also,  there  will  be  no difficulty if  it can  be agreed that persons found eligible for senior  posts can  be given  junior posts  for the  time being. But  if this  is not  conceded, five  of the officers found suitable for senior posts will be left out even though five of  the junior  posts are  vacant and will have to wait until enough  senior posts  fall vacant and then compete for them alongwith  others who may have become eligible therefor by then.  In situation  (ii)  above,  though  there  are  40 persons found suitable for junior posts, twenty of them will have to  be left  out even  though there are 20 senior posts remaining  vacant.  And,  in  situation  (iv)  above,  30  . Officers adjudged  suitable for  senior  posts  and  20  for junior posts  will he  left out.  The situations thus result (a) either  in vacancies  being unfilled  though  there  are available officers  adjudged suitable  (b)  or  in  officers adjudged suitable  being left  out altogether.  The first of these  positions   is  contrary   to  the   spirit  of   the Recruitment. Rules  that no cadre posts should remain vacant for  long   spells  particularly  when  cadre  officers  are available to  occupy them.  It is  necessary to  remember in this context  that if the vacancies are in senior posts they can  be  filed  up  only  by  SFS  officers  with  X  years’ continuous service and, ex hypothesi, such officers will not be available  for at  least four  more  years,  and  if  the vacancies are  of junior  posts, they  can be filled in only after a  competitive examination  is held and this will take time. The  second of  the positions  will leave the officers selected for  the service  and having  more than  4 years of experience in  the SFS  in a  very uneviable  position. They cannot be  appointed according  to the  petitioners, because there are  no vacancies  of posts  for which there have been found suitable.  They cannot  seek  recruitment  under  rule 4(2)(a),  as   regulation  4(3)   of  the   Appointment   by Competitive Examination  Regulations prescribes an upper age limit of  24 years which they would have crossed already and permits  relaxation  of  that  age  limit  only  to  persons directly recruited  to the  SFS officers who had put in less than four  years’ service  including their  training period. They cannot  also hope  for recruitment  under rule  4(2)(b) until they  put in  eight years’ of service. The result will be that  these persons  will be in the dilemma of looking on and seeing  younger people  and people  with shorter service being recruited under rule 4(2). Surely that could not, have been the  intention of  these rules and regulations. Such an interpretation   also    amounts   to   an   arbitrary   and discriminatory treatment of a group of officers incompatible with the spirit of article 14 of the competition. We cannot, therefore, accept  the contention  that officers  of the SFS who have been adjudged suitable by the SSB should 321 not be  taken into  the service  merely because their number exceeds the  number of posts available. True, they cannot be appointed immediately  but the  consequence cannot  be  that they should be ignored and persons recruited under rule 4(2) given preference over them.      32. The  correct solution,  in our opinion, on a proper construction of  the rules,  is  this.  Even  accepting  the

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position,  for   the  sake  of  argument,  that  the  number specified  for   each  category   of  posts   in  the  Cadre Regulations limits, as contended for by the petitioners, the number of persons who could have been taken into the service in those  posts in  the first  instance, the others are also entitled to  be  absorbed  into  the  service  as  and  when vacancies  occur,  by  reason  of  Rule  6  of  the  initial Recruitment Regulations.  The filing  up of  such  vacancies will also  be part  of the  initial recruitment contemplated under rule 4(1) and no recruitment under rule 4(2) can start before the above process is complete. It is only rational to interpret the  rules as  laying down that all those officers of the  SFS with  8 or  4 years’ experience, as the case may be, who  are adjudged  suitable for  the service  should  be recruited to  the service  before any recruitment can at all start under rule 4(2). Whether all such persons are entitled to the  back-dating of  their appointment  to 1. 10. 1966 or not, they  are certainly  entitled  to  contend  that  their appointment should be given precedence over the appointments of recruits  under rule  4(2) of the Recruitment Rules. That being so,  if there are vacancies against which recruitments could have  been made under rule 4(2) they should have first gone to  these left-overs  among the eligibles. In this view of the matter the plea of the petitioners that they will get precedence over  these surplus  officers among  the eligible cannot at all be accepted.             CAN THERE BE RECRUITMENT MORE THAN ONCE?      33. The next contention urged by Shri Kackar was that a fresh selection by way of initial recruitment can take place only once  and cannot  be repeated twice as has been done in the State  of Maharashtra.  He cited,  in this connection, a decision of  the Punjab  & Haryana  High Court  in Union  of India v.  Harnek Singh,  L.P.A. 406/83  decided  on  20.9.83 affirming the decision of the Single Judge in W.P 545 75. We think that  this argument  proceeds on a misapprehension. To recapitulate the  facts relating  to this  cadre, there were 116 officers  who were  eligible for  consideration  by  the Selection Board.  The first  selection was of 57 persons (36 to senior  scale posts  and 21 for Junior scale posts). This was set  aside  because  of  Kraipak.  This  necessitated  a reconsideration of the cases of the 116 eligible officers by a different 322 SSB of  suffering from  the defect that vitiated the earlier one. This  S.S.B. appears  to have  committed the mistake of considering only  97  persons  out  of  116.  This  was  not correct, as  it was  the duty  of the Selection Board, under Chotia, to  consider all  the 116  officers,  arrange  those adjudged suitable  in their  order of  preference  and  give reasons for not including in the list the names of those not adjudged suitable.  This has,  therefore,  necessitated  the second selection  which the  High Court  has directed. Apart from the fact that such a fresh selection has to follow as a necessary consequence  of the  setting aside  of the earlier selection by the court, it is also specifically warranted by the  terms   of  rule  4(3A)  which  authorises  such  fresh recruitment under  sub-rule ( 1) ’.where appointments to the service in  pursuance of sub-rule (1) have become invalid by reason of  any judgment  or order  of any court. " It is not limited to a fresh recruitment becoming necessary on account of Kraipak.      34. The  position in  this regard  in U.P.  is slightly different. Here  5 persons were recruited initially but this became bad  due to  Kraipak. Subsequently,  104 persons were recruited. We have already held that this recruitment cannot

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be challenged  either because  it is of a number larger than the initial  85 or  because it  selects 44 officers eligible only for  the  junior  time  scales.  Sri  Kackar,  however, contends that there was no justification to recruit six more persons in  1976. Here  again, though  ostensibly there have been two  selections, there  has been  in substance only one selection in  place of  the  one  set  aside  by  reason  of Kraipak. It  is not  in dispute that the Selection Board has considered only  such of the officers as were eligible on 1. 10. 1966.  It is  also common  ground that the selection has been made only on the basis of the C. Rs. pertaining to that period. We  have already  pointed out  that it is only right that persons  should be adjudged on the basis of the correct C.Rs. pertaining  to them. Any expunction or modification in the CR  of a period naturally relate back to that period and no legitimate  objection can be taken if the correct CRs are taken into  account.  In  our  view,  therefore,  there  was nothing wrong in the selections made by the Selection Board. Though made  in two  stages, the  Board was only considering and selecting  suitable officers  out of  those eligible for consideration on  1- 10-  1966 on  the strength of their CRs uptil then  and this  has to  be taken  only as  the initial recruitment, done in two stages but really one.                RETROSPECTlVE EFFECT OF RULE 4(3A)      35. Sri Kackar took considerable pains to urge that the persons 323 selected in  1972 and  later cannot claim seniority over the petitioners recruited  earlier under rule 4(2). The argument was that,  even if  this be  treated as  authorised by  rule 4(3A), the  retrospective effect  to this  rule  has  to  be limited by  reference to  s. 3(lA)  of the Act. He contends, relying on the decision in Inderjit Singh v. Union of India, [1975] 2 S.L.R. 839 that the Act has been framed in exercise of the  powers conferred  by Article 312 of the Constitution and that,  unlike rules  framed under  Article  309  of  the Constitution, the  rules framed  under the  Act cannot  have greater retrospective  effect than  is authorised by the Act itself. He  therefore urges that rule 4(3A) should not be as interpreted as  to "prejudicially  affect the  interests" of the petitioners who, by reason of their earlier appointments under rule  4(2) have  earned a  higher seniority  than  the respondents who  are subsequent recruits under rule 4(1). We do not think it is necessary to go into all these questions. Granting all  the premises of Sri Kackar, we think that rule 4(3A) does  not offend any of them. The rule only places the fresh recruits  in the  same position  as if  they had  been recruited in  the first instance i.e. On 1.10.1966 as indeed they should  have been  and thus  involves no  retrospective effect beyond  the date  of commencement  of the  Act. It is also not  correct to  suggest that  it prejudicially affects the direct  recruits in any way. The fresh selectees of 1974 were all  in the  SFS on  1. 10.1966,  at a  time  when  the petitioners were  nowhere in the picture. As we have pointed out earlier the petitioners acquire under the rules no right to be  in the service until after the initial recruitment is over.  The   mere  fact  that,  due  to  certain  fortuitous circumstances, that  initial recruitment  has had  to be set aside and  time has been consumed in the process of remaking that selection  validly and  properly, cannot,  in our view, confer a  right on  the recruits  under s.  4(2)  so  as  to justify their  complaint that  some benefits  given to  them have been  taken away.  Under the  rules, they can rank only after  the   candidates  who   get  in  by  way  of  initial recruitment. In  that position  there is  no change  and the

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petitioners cannot be aggrieved that those in service in the SFS are  found suitable  for recruitment  to the service and taken into  the  service  w.e.f.  1.  10.1966.  As  we  have observed earlier,  those persons,  even if  not entitled  to appointment as on 1.10.1966, are entitled to be appointed as and when vacancies arise and must always be given a position of precedence  over the  recruits under  rule 4(2).  In this view of the matter the direct recruits can hardly claim that they are  prejudicially affected  by  the  remaking  of  the initial recruitment.  We, therefore, do not see any force in Sri Kakker’s contention.                      THE POSITION IN ORISSA      36. So far as orissa is concerned, the position is very simple. It 324 clearly emerges  from our  discussion above  that all the 82 eligible  officers   had  to   be  considered   for  initial recruitment. Though  it has  been alleged  in  the  counter- affidavit that  they had  been so considered, the Government note referred  to by counsel dated 2.6.1967 (at p. 47 of the paper-book) indicates  to the  contrary. The  S.S.B.  merely selected 42  officers and  made an  omnibus observation that the others  were found  unsuitable. This,  as  explained  in Chothia, is  not proper compliance with the rules and so the selection has to be aside with a direction that it should be redone properly.      37. It has been vehmently contended for the respondents that the  writ petition should be dismissed on the ground of laches. It  is true  that the petitioners have come to court somewhat belatedly. Counsel urged that they had been under a bona fide impression that they had been considered and found ineligible. But  this does  not appear to be correct. T here is on  record (at  p. 44 of the paper book) a representation made by  one of  them on 20.4.67 from which it seems that he was even then aware that his name had not been considered at all because  of an interpretation that the junior posts were limited to  19 only.  Nevertheless, they  did not  take  any steps. The  Gujarat, Karnataka  and Maharashtra judgments on which the  petitioners rely  had been rendered in 1978, Jan. 1981 and  August 1981  respectively but  even after that the petitioners allowed  time to lapse. There has therefore been delay on  the part  of the  petitioners in  coming to Court. Nevertheless, having regard to the complicated nature of the issues involved, we do not think that the petitioners should be put out of court on the ground of laches. The position as it has now emerged is that all 82 eligible officers as on 1. 10. 1966  should be  considered and not merely some of them. Their suitability  should be adjudged. If they are not found suitable, reasons  should be given which the U.P.S.C. should be able  to consider.  If they  are found suitable a list of such officers  should be drawn up with ranking given to them in the  order of  preference for  the consideration  of  the U.P.S.C. Since  this has not been done the recruitments have to be set aside and the matter remanded with directions that it should  be finalised  as per the Recruitment Rules and in the light of the above discussion.                         OTHER CONDITlONS      38. Before  concluding, we may touch upon certain other contentions which were urged before us:      (i) Shri  Kackar, for  instance, made  a  reference  to rules 3 and 4 325 of the  All India  Services (Conditions of Service-Residuary Matters) Rules,  1960, the  Government of  India’s decisions thereunder and  the decisions  of this  Court in  Shri Amrik

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Singh and others v. Union of India and others, [1980] 2 S .L . R.  1 10 and R. R. Verma and Ors. v . The Union of India & Ors., [1980] 2 S.L.R. 335 interpreting the same. These rules confer powers on the Central Government to relax or dispense with the  requirements of  any rule in case they cause undue hardship in any particular case and also to decide questions arising as  to the  application or interpretation of certain rules applicable  to All-India Services. Apart from the fact that no  relaxation, dispensation or interpretation has been made by the Government, we see no occasion at all to involve these provisions  and we  need not  go with  the question of their interpretation.      (ii) Shri  Kackar also made a reference to rule 3(3) of the Pay  Rules inserted  in 1980  to highlight the fact that since promotions  in the  service are under this rule, based on "merit  with due  regard to  seniority", the interests of the direct recruits is vitally affected by the fall in their seniority resulting  from the  induction of initial recruits by a  second or  third or  even further  selection. We  have already  pointed  out  that  this  argument  proceeds  on  a misconception. The direct recruits cannot have any grievance against the  remaking of  the initial selection because they cannot deny  to the  eligible officers  on the  S.F.S. their legitimate dues.  No doubt,  they can  complain against  the fall in  their seniority  if these subsequent selections are invalid but,  if, as  we have  explained above, they are the logical consequence  of Kraipak  and have been validly made, they can  have no  grievance. In  the latter  event,  it  is actually the  persons who ought to have been included in the first selection but were not, due to no fault of theirs, who have room  for legitimate  complaint that  recruits under s. 4(2) have been allowed to forestall them.      (iii) Sri  Kakkar submitted that the view we have taken that recruitment under rule 4(2) cannot be restored to until initial the  recruitment under  rule 4(1)  is complete  runs contrary to  the following  Observations of  this  Court  in Parvez Qadir, [1975] 2 SCR 432 at p. 443.           "If the  interpretation urged  by the petitioner’s           learned Advocate  to be accepted, then the initial           recruitment not  having taken place till after the           Kraipak’s  case   was   decided   any   subsequent           recruitment to  the Service  under sub-rule (2) of           rule 4  cannot take  place. Such  cannot,  in  our           view, be 326           the purpose  of the rules and regulations, nor was           it so in tended . "       We  do not  agree The  above observations were made in the context  of answering an argument that. the officers for initial recruitment  have to  be considered  not  as  on  1. 10.1966 but  as on  the date  of  the  (second,    third  or subsequent) selection that may have to be made consequent on Kraipak. The  court pointed  out  that,  to  uphold  such  a contention would  virtually render the rules and regulations meaningless  as,   then,  one  unsuccessful  aspirant  after another could  hold up  the selections  by  way  of  initial recruitment indefinitely and thus deprive others of benefits they could  have otherwise obtained. This Court did not, and did not  intend to, observe, inspite of the language of rule 4(2), that  recruitment under  that rule  could be made even before recruitment under rule 4(1) are complete.      (iv) Shri  Singhvi in  supporting  his  plea  that  the appeal in  the Maharashtra  cases is not maintainable relied on the  following observations  of the Court in HarjeetSingh v. Union, [1980] 3 S.C.R. 459:

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         "On the  other hand  we think that the Fixation of           Cadre Strength  Regulations made  under Rule  4 of           the Cadre  Rules do  not over-ride the Recruitment           Rule, the  remaining Cadre Rules and the Seniority           Rules so as to render invalid any service rendered           by a non-cadre officer in a Cadre post on the mere           ground of breach of the Fixation of Cadre Strength           Regulations, when there has been strict compliance           with Rule  9 of  the Cadre  Rules. We  think  that           fixation  of   Cadre  Strength  is  the  exclusive           concern of  the Central  and the State Governments           and the Regulations are made for their convenience           and better  relationship. Excessive utilisation of           ’Deputation or  Central Reserve’  is a  matter for           adjustment and controversy between the Central and           the State  Governments and is of no concern to any           member of  the Service.  For example  no can cadre           officer who is asked to fill a deputation post can           refuse to  join the  post on  the ground  that the           ’Deputation Reserve’  has already  been  exceeded.           The Regulations  are not  intended to  and do  not           confer any  right on  any member  of the  Service,           unlike some  other Rules which do confer or create           rights in the members of the Services. Among other           Rules, for  instance Rule  9(2) of the Recruitment           Rules stipulates  that the total number of persons           recruited by promotion shall not at 327           any time  exceed 25%  of the  posts shown  against           item Nos.  1 and 2 of the cadre in the schedule to           the fixation  of Cadre  Strength Regulations. Now,           if at  a point  of time  this limit  is  exceeded,           direct  recruits   may  have   a  just  cause  for           complaint and  it may  perhaps be held that to the           extent of the excess the appointments by promotion           are invalid and confer no rights of seniority over           direct recruits.  But, as we said, the Fixation of           Strength Regulations  confer no  rights on members           of  the   Service  and   a  mere   breach-of   the           Regulations furnishes  no cause  of action  to any           member of  the service  on  the  ground  that  his           seniority is  affected in some round about way. We           may add that there is no suggestion that Rule 9(2)           of the Recruitment Rules was contravened."      He urged,  on the  strength of these observations, that the Cadre  Strength Regulations  only provide  for  internal adjustments at  the discretion of the Government that no one can claim  a right  on the strength of those Regulations. In our opinion  the argument  places the  case of  the  initial recruits on too high a pedestal to be accepted and we do not think that  the cited  observations help  him sustain such a tall argument.  The exception,  given by way of illustration in  the   above  passage,   indicates  that   there  can  be circumstances in  which rights  can be  created  in  certain recruits under  the Cadre  Strength Regulations.  If we  had agreed with  the direct  recruits that  there had  been some invalidity  or   infirmity  attached   to   the   subsequent selections by  way of initial recruitment, we would not have rejected the  appeal on  the  ground  that  the  Regulations cannot give rise to a cause of action. It is only because we have come  to the  conclusion, on a proper interpretation of the Cadre  Strength Regulations  and the  Recruitment Rules, that there  is no  error in  the procedure  followed by  the Government that we are rejecting the appellants’ contention.      39. We  would like  to make one more thing clear before

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we conclude.  It is  not our  intention, nor  can it  be the result of our discussion, that the appointment of any of the officers  recruited  under  rule  4(1)  or  4(2)  should  be considered invalid.  All the  officers selected will have to be  adjusted,   if  necessary,   by   amending   the   Cadre Regulations. The  only result  of our  findings will  be the readjustment  of   their  seniority   with   necessary   and consequential effect on their promotions in the Service.                            CONCLUSlON      40. In the result, we see no merits in the appeals from U.P. and 328 Maharashtra which,  consequently, stand dismissed subject to what we  have observed above. So far as the Orissa writs are concerned, they  are allowed  and the  S.S.B. is directed to redo the  selections in  the light of the principles set out in this judgment. We make no order as to costs. S.L. 329