http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

CASE NO.: Writ Petition (civil) 613  of  1994 Writ Petition (civil)   671      of  1994 Writ Petition (civil)   83       of  1998 Writ Petition (civil)   197      of  1998 Special Leave Petition (civil)  7823     of  1996

PETITIONER: TAMIL NADU ADMINISTRATIVE SERVICE OFFICERS ASSOCIATION & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       19/04/2000

BENCH: N.S.Hegde, M.J.Rao

JUDGMENT:

SANTOSH HEGDE, J. L.....I.........T.......T.......T.......T.......T.......T..J

     Leave  granted  in SLP©No.7823/96.  In the above writ petitions  and  civil appeal members of the Tamil  Nadu  and Haryana  State  Administrative  Services  have  sought  for directions from this Court to the respondents to encadre all the  State  Deputation  Reserve posts,  Ex-cadre  posts  and Temporary posts hitherto manned by the members of the Indian Administrative  Service  (for short IAS) for a  continuous period exceeding three years, in the IAS cadre.  It is their complaint  that  in their respective States large number  of posts  which  are not included in item 1 of the Schedule  to the  IAS (Fixation of Cadre Strength) Regulations, 1955 (for short  Cadre Regulations) are being manned by IAS officers and  these posts have been in existence for decades together and  in spite of the same they are not encadred even  though under the Cadre Regulations it is obligatory for the Central Government to do periodical cadre review.  Consequent to the failure  on  the  part of the respondents to  encadre  these large  number of posts the petitioners/appellants are denied of  their  legitimate right of being selected to the IAS  by promotion  under Rule 8 of the IAS (Recruitment) Rules, 1954 (for  short Recruitment Rules).  They contend that 33  1/3 per cent of the State IAS cadre is reserved for selection by promotion of the State service officers and non encadring of the above posts has denied them of their legitimate share in the State cadre.  During the pendency of these petitions and appeal,  by notification dated December 31, 1997 the Central Government  brought  about  certain amendments  to  the  IAS (Appointment  by  Promotion)  Regulations, 1955  (for  short Appointment   by   Promotion   Regulations).   The   Central Government in its counter affidavit filed in the above cases contended  that the complaints of the petitioners/appellants do  not survive after the amendment since the respondents by those  amendment have included the State Deputation  Reserve

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

posts  and  the Trainee reserve posts as part of  the  State cadre  strength  and  petitioners are now entitled  to  have their  share  of  33  1/3 per cent  of  the  enhanced  cadre strength  for  their appointment to the IAS.   However,  the petitioners  have rebutted this contention of the Respondent and  have  amended  their original  petitions  and/or  filed separate  petitions  challenging  the  said  amendments.   A perusal of the pleadings in the petitions/appeal filed prior to  the amendment shows that under Rule 9 of the Recruitment Rules  as  it  stood  before the amendment,  the  number  of persons  to  be  recruited to the IAS from the  State  Civil Service  was restricted to 33 1/3 per cent of the number  of posts  found  at items 1 and 2 to the concerned schedule  of the Cadre Strength Regulations.  By amending the Recruitment Rules, the Union has now enhanced the cadre strength of each State  by including the posts allotted to them under items 5 and  part  of  item  6 of the Schedule found  in  the  Cadre Strength  Regulations  which are posts classified  as  State Deputation  Reserve  and Trainee reserve.  Therefore, it  is clear that since the filing of the original petitions/appeal the  Central  Government has increased the strength  of  the State  cadre of IAS, but the petitioners/appellants  pleaded that this increase in the strength is wholly illusory.  They contend  that still large number of posts, which are  either termed as ex-cadre or temporary, are excluded from the cadre strength  and  what is increased by the amendment is only  a cosmetic  increase.   The respondents in opposition  contend that  during  the exercise of review of the  cadre  strength they  have taken note of the necessary requirements of  each State  and have encadred only such State Deputation  Reserve and  the  Trainee  reserve  posts  which  in  their  opinion requires  to  be  encadred.   They contend  that  the  State Governments  have  in contravention of Rule 4 of  the  Cadre Rules  at  times have been creating certain  ex-cadre  posts which  in  the  opinion  of   the  Central  Government   are unnecessary  and hence such posts cannot be encadred in  the IAS.   In regard to the partial relief got by them after the amendment, the petitioners further contend the same has been given  prospective  effect only thereby denying  them  their legitimate  seniority.  They contend that inclusion of these posts  ought  to  have been made with effect from  the  date these  posts were created or at least from the date on which these  petitions  were  filed.  In reply  to  this,  Central Government  contends  that the petitioners do not  have  any legal  right to demand the encadrement of these posts  which hitherto  were  not  a  part of the  cadre  strength.   This request  of  the petitioners amounts to asking  the  Central Government  to  create additional posts which right  is  not available  to the petitioners.  The petitioners have also in their   amended   and  fresh    petitions   questioned   the constitutional  validity  of amended Regulation 5(1) of  the Appointment  by  Promotion   Regulations.   The  Petitioners contend  that  by the said amendment the Union  has  brought about  unwanted,  arbitrary  and   drastic  changes  in  the calculations  of  vacancies  available to be filled  by  the promotees  by  excluding  the anticipated vacancies  and  by confining  the  selections  only  to  substantive  vacancies available on the first day of January of the said year.  The petitioners contend that the process of selection invariably takes  considerably  long  time consequent to  which  timely selection   has   become  impossible,   by   excluding   the anticipated vacancies, it is contended there will be further delay  in  selecting the petitioners to the IAS which  might deprive  many  of them their chance to be selected  for  the IAS.   They  also contend that this practice of  calculating

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

the vacancies on the anticipated basis has been in vouge for a  number of decades and the Central Government has  brought about  these  amendments  without  any  justification  which limits  the opportunities available for the petitioners  for being  selected to the IAS.  The Union of India has rebutted this  contention.   It contends that these  amendments  were brought  about  to streamline the selection process.  It  is stated  that  it has become practically impossible  to  make selections  to  anticipated vacancies for want of  necessary information  and  some other practical reasons.   They  deny that  these amendments are arbitrary and unnecessary.   From the above contentions of the parties and taking into account the subsequent events that have taken place after the filing of  the  original petitions/appeal, the following  questions arise  for our consideration:  1.  Should the temporary  and ex-cadre  posts that are in existence in the concerned State Government  service  be directed to be encadred in  the  IAS cadre  strength  of  the  States  concerned?   2.   Are  the petitioners  entitled in law to demand that the  encadrement of  posts  should  be effective from the  original  date  of creation of the posts or at least from the date of filing of the  respective  petitions?  3.  Are the amendments  brought about  to  Regulation  5(1)  of   the  IAS  (Appointment  by Promotion)  Regulations,  1955 ultra vires and liable to  be struck  down?   Before we proceed to consider the  arguments advanced  in support of their respective contentions in  the above  cases it is necessary to note that similar grievances were  made by the State Service Officers of States of Madhya Pradesh  and  West Bengal before the Central  Administrative Tribunal,  Jabalpur  and Calcutta benches.  In the  case  of K.K.   Goswamy  vs.   Union  of  India  (T.A.   No.   81/86) Jabalpur  bench of the Tribunal held that deputation reserve listed  at  item 5 of the Schedule under the Cadre  Strength Regulations  has to be included for computing the  promotion quota.   This  judgment was brought up by way of SLP  before this  Court  and  the same was rejected.  It is also  to  be noted  that similar view was taken by the Calcutta bench  of Central  Administrative  Tribunal.  The Chandigarh bench  of Central  Administrative  Tribunal  as per  the  order  dated December  13,1995,  from which the above noted Civil  Appeal No.   of 2000 (arising out of S.L.P.  Â© No.  7823 of 1996) arose, took the view that the temporary/ex cadre posts which have  continued for long number of years, cannot be  allowed to  be continued as such, hence it directed the Central  and the  State  Government to take necessary steps to  discharge their  legal  and  constitutional duties  by  examining  the question whether such temporary and ex cadre posts which are in  existence  for  a  number of years  and  are  likely  to continue  indefinitely should be either abolished or  should form  part of the cadre of the State of Haryana.  Though the applicants therein succeeded in getting the above direction, they have preferred the above civil appeal to the extent the Tribunal  failed  to give them the retrospective benefit  of the  said order and rejected the challenge to the amendments referred  to herein above.  We have heard Shri M.N.  Rao and Shri   Parag  Tripathi,  learned   senior  counsel  for  the petitioners/  appellants  and  Shri Mukul  Rohtagi,  learned Additional  Solicitor  General  for  Union  of  India.   The service  conditions  of  All   India  Service  Officers  are governed  by  the provisions of the All India Services  Act, 1961  and the Rules and Regulations made under the said  Act such  as  the  Cadre Rules, Cadre  Regulations,  Recruitment Rules   and  the  Appointment   by  Promotion   Regulations. Practically,  every  aspect from the creation of the  cadre, fixation  of  strength  of  the cadre,  filling  up  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

officers   in  the  cadre,   their  deputation,   selection, promotion  and seniority are all statutorily governed  under the  above-cited Rules and Regulations.  Under Rule 3 of the Cadre  Rules,  an IAS cadre is created for each State  or  a group  of  States in the Indian Union.  Rule 4 of  the  said Rules  provides that the Central Government in  consultation with the State Governments should determine the strength and composition  of  the  cadres  constituted under  Rule  3  by framing  the  regulations  in this behalf.  This  Rule  also provides  for a review of the cadre from time to time  which used  to  be at an interval of every 3 years  and  presently amended  to  5  years.   The review of  the  cadre  strength contemplated  under this Rule is to be done in  consultation with  the State Governments concerned.  The proviso to  this Rule  empowers the State Government concerned to temporarily add  to  its  cadre  one or more post(s) for  a  period  not exceeding  one  year  on its own and with  approval  of  the Central  Government  for a further period not exceeding  two years.   Thus,  a conjoint reading of these sub-clauses  and proviso  of Rule 4 shows the fixation of the cadre  strength and  review  thereof  is the responsibility of  the  Central Government  and for any urgent need of temporary nature, the State  Government  is empowered to add to this cadre one  or more  posts  on its own as provided in the proviso  to  Rule 4(2).   Therefore,  creation of a cadre and fixation of  the cadre  strength are statutorily controlled and the same will have  to  be  reviewed  periodically  bearing  in  mind  the necessity  prevailing at the time of review.  The components of  the  cadre  are also fixed  statutorily  which  normally consist  of the six items enumerated in the Schedule to  the Cadre  Strength  Regulations.   The   said  Regulation  also provides  for  fixation  of number of posts  under  those  6 items.   Under Rule 8(1) of the Recruitment Rules, provision is made for recruitment to the IAS by the Central Government by  promotion  of  substantive members of  the  State  Civil Service.  The number of posts so permitted to be filled from the  State  service  is regulated under Rule 9 of  the  said Rules  which  has fixed a quota of not exceeding 33 1/3%  of the  number  of posts as are shown against Items 1 and 2  of the  cadre in relation to the State concerned as fixed under the  Cadre  Regualtions.  (After the amendment of  1997  the posts  enumerated under Items 5 and part of Item 6 are  also to  be  counted  for the purpose of fixing the quota  of  33 1/3%).  In the background of the above statutory provisions, we  will now consider the first claim of the petitioners for encadrement  of  ex-cadre/temporary  posts.   This  argument proceeds  on  the  basis  that as per  the  Cadre  Rules  no temporary  or ex cadre posts are permitted to be created  by the  State  Governments for a period exceeding 3 years  (See Rule 4(2) of the Cadre Rules).  The petitioners contend that the  posts  identified  by  them in  their  petitions  being permanent  in  nature and some of them having  been  created under  State  enactments  requiring  their  manning  by  IAS officers  have to be encadred.  They further contend that if they are so encadred they are entitled to be promoted to the extent  of  33  1/3% of the so enhanced  posts  The  Central Government,  per contra, contends that during the  triennial review   (as   it  used  to   be),  they  have  taken   into consideration  the  necessity to encadre such ex  cadre  and temporary  posts in consultation with the State  Governments and  after  finding out the need to encadre such  posts  and wherever  it was found necessary, such encadrement was done. They  also contend that by virtue of the amendments of 1997, the  posts  earmarked  for   State  deputation  reserve  and training  reserve  have already been included in  the  cadre

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

strength  of  the  respective  States and if  there  is  any further need to encadre any more post, the same will be done during  the  course  of next periodic review  of  the  cadre strength   of  the  States.   A  perusal  of  the   petition allegations does show that a number of posts outside the IAS cadre  in  the States concerned are in existence  which  are being manned by IAS Officers.  Continuous existence of these posts  over  the  decades  shows that  these  posts  are  of permanent   in  nature,  but   the  pertinent  question  for consideration is whether merely because the State Government has  created some posts and continued them over the years by posting  regular IAS officers, can a court issue a  mandamus to  the Central Government to encadre these posts ?  If  one looks  into the object of creating an all India service,  it is   clear  that  this  service   was  created   to   select exceptionally  bright and intelligent men/women through  all India  examinations and train them to handle the affairs  of the  States by manning important posts in the administration of the State.  These persons are not to be posted to any and every  posts  in the Government.  They are to man only  such posts  which  have been identified to be so important as  to require  the  services of these persons.  With this view  in mind,   the  Central  Government   was  entrusted  with  the responsibility of identifying such posts and to encadre them in  the  IAS  cadre.   A  perusal of  the  Cadre  Rules  and Regulations shows that the Central Government has identified posts like that of the Collectors, Commissioners, Members of the  Board of Revenue, Secretaries and Deputy Secretaries in the  administrative  departments  and   Heads  of  important Departments.  It is the attitude of the State Governments of creating  ex-cadre/temporary  posts without  consulting  the Central Government and contrary to the Cadre Rules which has created  the  controversy  in  hand and has  given  rise  to heart-burn  and disappointment to the State civil  servants. This  however does not, in our opinion, confer any right  on the  petitioners to seek a mandamus for encadring those  ex- cadre/temporary  posts,  for  any such  mandamus  would  run counter  to the statutory provisions governing the  creation of  cadre and fixation of cadre strength.  The basis of  the petitioners  right to be selected for All India service  is traceable  in case of State Civil Service officers to Rule 8 of  the  Recruitment  Rules  which  says  that  the  Central Government  may recruit to the IAS persons by promotion from amongst  the members of the State civil service.  This  Rule itself  puts a ceiling on the number of posts that could  be filled  in the IAS from such promotions which is limited  to not  more than 33 1/3% of the posts enumerated therein.  The prayer   of   the  petitioners   for  encadrement   of   the ex-cadre/temporary  posts  in reality amounts to asking  the Central  Government to create more posts.  The question then arises whether there is any such right in the petitioners to seek  such  creation  of additional posts.  It  is  a  well- settled  principle  in service jurisprudence that even  when there  is a vacancy, the State is not bound to fill up  such vacancy  nor  is there any corresponding right vested in  an eligible  employee  to demand that such post be  filled  up. This  is  because the decision to fill up a vacancy  or  not vests  with  the  employer  who for  good  reasons;   be  it administrative,  economical or policy, decide not to fill up such  post(s).  See The State of Haryana v.  Subhash Chander Marwaha  &  Ors.  [(1974) 3 SCC 220].This principle  applies with  all  the more force in regard to the creation  of  new vacancies  like  by encadrement of new posts;  more so  when such  encadrement  or creation of new posts  is  statutorily controlled.    We  have  noticed   earlier  that  the  Cadre

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

Regulations  and  the Recruitment Rules require the  Central Government  to  follow  a   particular  procedure  and  make necessary consultations before fixing or re-fixing the cadre strength.   In  such a situation, issuance of a mandamus  to increase  the cadre strength or to encadre a particular post merely  on the basis of long existence of these posts  would be  inappropriate.   The  petitioners in  support  of  their contention  have  placed  reliance upon a judgment  of  this Court  in C.O.  Arumugham & Ors.  v.  State of Tamil Nadu  & Ors.   [1991  Supp  (2)  SCC 199].  In para 5  of  the  said judgment  this  Court held thus :  As to the merits of  the matter,  it  is necessary to state that every civil  servant has  a  right  to  have his case  considered  for  promotion according  to  his turn and it is a guarantee  flowing  from Articles   14   and   16(1)  of   the   Constitution.    The consideration  of  promotion  could  be  postponed  only  on reasonable  grounds. In our opinion, that decision does not help the contention of the petitioners to seek a mandamus to encadre  the ex- cadre/temporary posts as contended in their petition.   The  above judgment only lays down that a  civil servant  has  a  right under Articles 14 and  16(1)  of  the Constitution  to  be  considered   for  promotion  and  such consideration  cannot be postponed on unreasonable  grounds. The  petitioners  next  relied on another judgment  of  this Court  in  P.S.   Mahal  &  Ors.    v.   Union  of  India  & Ors.[(1984)  4 SCC 545] wherein in para 21 of the  judgment, this  Court  laid  down that whenever a  long  term  vacancy arises  in  a post, whatever may be the reason by which  the vacancy  is  caused,  it  would  have to  be  filled  up  by promotion  by applying the quota rule.  Court further said :   But  where a vacancy arises on account of the  incumbent going  on deputation for a reasonably long period and  there is  no reasonable likelihood of the person promoted to  fill such  vacancy having to revert, the vacancy would be subject to  the quota rule, .  From the above observations of this Court,  the  petitioners  contend that since  the  vacancies pointed out by them in the petition are of permanent nature, the  same  will  have to be encadred so as to give  them  an enhanced  quota  of  promotion.   We do not  find  any  such support  to  the case of the petitioners from the  aforesaid case.   It is to be noted that the facts of the Mahals case (supra)   are   entirely   different   from  that   of   the petitioners.   That was a case where the promotees who were occupying  a direct recrtuiment post for a considerably long period  when  sought  to be reverted by the  application  of quota  rule,  this Court found such reversions to be  to  be inequitable.  Such is not the case in the present petitions. Here the petitioners are not yet promoted much less there is any  threat  of  reversion.  The claim  of  the  petitioners herein  is  based on an argument that on the existing  facts the  cadre  strength of the State IAS cadre requires  to  be enhanced  which  is  an  argument de hors  the  quota  rule. Therefore, we are of the opinion that this judgment does not help  the  petitioners  to seek a mandamus  to  encadre  the ex-cadre  and  temporary posts existing in their  respective States.   So  also  the  next judgment relied  upon  by  the petitioners  that  is  the case of O.P.  Singla &  Anr.   v. Union  of India & Ors.  [(1984) 4 SCC 450] does not help the petitioners.   However, reliance is placed on paras 9 and 34 of  this  judgment wherein this Court while considering  the inter  se seniority dispute between the direct recruits  and promotees  held at para 34 thus :  In such a situation the  seniority  of direct recruits and  promotees  appointed under  those Rules must be determined according to the dates on  which direct recruits were appointed to their respective

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

posts  and  the  dates from which the  promotees  have  been officiating  continuously either in temporary posts  created in the service or in the substantive vacancies to which they were  appointed  in a temporary capacity. We do  not  think this  case  of Singla (supra) also assists the  petitioners. However,  we  must  observe on facts  that  the  above-cited judgments  of Singlas case (supra) give an indication  that if any temporary posts are in existence for a long time then such  posts  may have to be treated as permanent  posts  but then  these  observations  will  have   to  be  taken   into consideration  in  the  background of  the  statutory  rules applicable  to the present case.  We have already noticed in this  Case that the Statute applicable mandates the  Central Government  to  fix the cadre strength in consultation  with the  State  Governments concerned, duly bearing in mind  the objects  of  the  Act and the Rules  and  Regulations.   The Central  Government  in its counter has stated that  it  has conducted  this  exercise  during the  periodic  review  and wherever  necessary, temporary and ex-cadre posts created by the  State Governments have been encadred, however few  they may be.  They have also specifically contended that each and every  ex-cadre  and  temporary post created  by  the  State Government is not necessarily required to be encadred in the IAS.   On behalf of the Union of India, reliance was  placed on  the various Rules and Regulations to which reference has already  been made by us.  Learned counsel for the Union  of India  relied on the following judgment of this Court in the case of Subash Chander Marwahas case (supra) and Shankarsan Dash  v.   Union of India [(1991) 3 SCC 47] to  support  its contention  that the petitioners do not have a right to seek encadrement  of  the posts.  We respectfully agree with  the ratio  laid  down in the above cases.  However, we think  it appropriate  to  notice a passage from the judgment of  this Court  in Shankarsan Dashs case (supra) at para 7 which  is as  follows :  However, it does not mean that the State has the  licence of acting in an arbitrary manner.  The decision not  to fill up the vacancies has to be taken bona fide  for appropriate  reasons.   And if the vacancies or any of  them are filled up, the State is bound to respect the comparative merit  of  the candidates, as reflected at  the  recruitment test and no discrimination can be permitted.

     The  petitioners  next contend that though there is  a statutory  obligation on the part of the Central  Government to  make  a periodical review which it has failed to do  so. By  this  failure the promotees promotion got  inordinately delayed  and they have lost their seniority in the  promoted cadre, therefore, they are entitled to their seniority being fixed  with  retrospective effect.  For this  purpose,  they rely  on  the  judgments of Singlas case (supra)  and  Syed Khalid  Rizvi & Ors.  v.  Union of India & Ors.  [1993 Supp. (3)  SCC 575].  We have already referred to the earlier  two cases.   In  the last of the said cases referred  to  above, this Court had held :  Preparation of the select-list every year  is mandatory.  It would subserve the object of the Act and  the  rules  and  afford an  equal  opportunity  to  the promotee  officers to reach higher echelons of the  service. The dereliction of the statutory duty must satisfactorily be accounted  for  by the State Government concerned  and  this Court takes serious note of wanton infraction. Based on the above  observations  of this Court, the petitioners  contend that   since   the  periodic   review  and  preparation   of select-list  in  this  case  has not been done  in  time  in accordance  with the Rules, the petitioners are entitled for retrospective  seniority once that error is rectified.  Here

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

we  would  like to note that the decision of this  Court  in Rizvis  case  (supra)  has been explained in  the  case  of Kasturi  Rangan v.  Union of India [1981 Scale SP 11].  From the  judgment  of Kasturi Rangan (supra), it is  clear  that mere  delay  in preparing the select list as also the  cadre review  is  not fatal if the concerned respondent had  given sufficient  reasons  for the same.  In the instant case,  we find  from the counter affidavit of the Union of India  that they  have  given  sufficient explanation for the  delay  in preparing  the select list as also cadre review.  Therefore, petitioners  cannot  claim  any relief based solely  on  the ground  of  delay in cadre review or preparation  of  select list.   The petitioners further contend that similar  relief was  granted  in the case of applicants who  filed  original applications before the Jabalpur and Calcutta Benches of the Central  Administrative Tribunal, and there is no reason why the  petitioners should be denied such benefits.  The  Union of  India has explained in the counter affidavit that  those are  isolated cases where promotions were given on the basis of  the  directions issued in the original  applications  as well  as  contempt  petitions, and the same  should  not  be treated  as  a  binding precedent in every other  case.   We notice  that as per the statutory provisions, the  encadring of  posts  can  be  done  only  on  certain  fact-situations existing  and further it will have to be done on a review to be  conducted by the Central Government in consultation with the  State  Governments  and  on  being  satisfied  that  an enhancement  in  the cadre strength or encadring of  certain posts  is  necessary in the administrative interest  of  the States  concerned.   Until  such  encadrement  takes  place, nobody  including  the  petitioners could stake a  claim  to consider  their case for promotion to those ex-cadre  posts. Therefore, such right to be considered for promotion, in our considered  view,  would  arise  only   from  the  date   of encadrement  which  having been done with effect  from  1998 only,  we  do  not  think  that as a  matter  of  right  the petitioners  are  entitled for retrospective seniority.   In light  of  the  above,  we  are  of  the  opinion  that  the petitioners  are not entitled to the twin reliefs sought for by  them  i.e.   for  a writ of mandamus  to  encadring  the ex-cadre/temporary posts, so also for a writ of mandamus for the  retrospective seniority in regard to the posts  already included  in the State IAS cadre strength by virtue of  1997 amendments.   This, however, does not mean that there is  no obligation on the part of the Central Government to consider the  requirement  of encadring the ex-cadre/temporary  posts which  are  existing in those States in regard to which  the complaint  is made.  It is to be noticed that a large number of  posts exclusion of which would make sufficient impact on the quota fixed under Rule 9 of the Recruitment Rules are in existence  for periods extending even over two decades.   We are  also  told  that many of these  posts  are  statutorily required  to be filled up by the members of the IAS, but for reasons not known, these posts are not being made permanent. It  is  possible that these posts which, on the face of  it, are  in contravention of the cadre rules, are created by the concerned  States for reasons other than the  administrative exigencies  and  it  is  also   possible  that  the  Central Government  which  has the primary responsibility of  making the  cadre  reviews,  has not applied its mind to  the  real necessity  of encadring these posts.  Though prima facie  we have  accepted  the explanation given by the Union of  India still  we find such posts are being continued by the  States concerned  even  till  date.  We have not found  any  reason either  in  the pleadings or in the arguments  addressed  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

behalf  of the Union of India why it has not taken any steps to  direct the State Governments concerned to abolish  these posts if not required to be encadred.  Therefore, we find it necessary  to  direct  the  Union of India  to  consider  in consultation  with  the  State   Government  concerned,   as required  in the Cadre Rules, review the necessity of either to  encadring these ex-cadre/temporary posts or not and take such  other  necessary steps.  In this process  the  Central Government  shall bear in mind the existence of these  posts for  the  last so many years and if it is so  satisfied  and finds  it  necessary in the interest of justice  to  encadre these  posts,  it may do so with retrospective date so  that officers  promoted consequent to such encadrement would have the  benefit  of the seniority from such date,  bearing,  of course,  in  mind  the possible conflict that may  arise  in fixation   of  inter  se   seniority  and  take  appropriate decisions  in  this  regard  so  as  to  avoid  any  further disharmony  in the service.  This leaves us now to  consider the challenge made to the constitutional amendments effected in   Regulation  5(1)  of   the  Appointment  by   Promotion Regulations.   The  petitioners in this regard contend  that under  the  old  provision,   the  Selection  Committee  was required  to calculate the anticipated substantive vacancies for preparation of select list which is now being changed to vacancies  not exceeding the substantive vacancies as on the first  day  of January of the year in which the  meeting  is held.   They contend that by this change in procedure  large number  of  vacancies which should have been  available  for selection  of  promotees will be left out.  They state  that there is always considerable delay in completing the process of  promotion  by selection and this delay will  be  further extended  by  virtue of the amendments and consequently  the promotion  of  the petitioners will get delayed and some  of them  may  even loose the chance of getting selected to  the IAS.   They  say  that  the  unamended  provisions  were  in existence  for  decades and there was no need for  effecting this  amendment.  In reply thereto, the respondents  contend that  these  changes  have been brought about to  avoid  the delay  in  making the selections.  They say by the  existing Rules,   it  was  extremely   difficult  to  ascertain  with certainty/finality the number of anticipated vacancies since the  State  Governments had the power to give  extension  of service  up  to 6 months beyond the date of retirement to  a number  of IAS officers.  It is also stated that many a time such  anticipated  vacancies  did not fructify and  a  State civil  service officer included in the select list could not be  sure  of  his appointment and this ultimately led  to  a plethora  of  litigation.  It is with a view to  avoid  such difficulties  that preparation of select list is confined to the  vacancies  available as on the first day of January  of the  year  concerned.   We have carefully gone  through  the pleadings  of  the petitioners and the respondents  in  this regard  and  we  do  not  find  any  arbitrariness  in  this amendment.   We think this is a matter of policy which  will be  uniformly  applicable  after the  amendments.   Further, vacancies  which  are  not  filled  up  in  one  year   will automatically  get carried forward to the next year if  they become  actual vacancies by them.  Therefore, the  challenge of  the  petitioners  that this amendment is  arbitrary  and violative  of  Article  14 of the  Constitution,  cannot  be accepted.   In  regard  to the next contention that  by  the amendment  the  respondents  are   given  a  unilateral  and arbitrary  power to hold the Selection Committee proceedings or  not, is also denied by the respondents.  They state that under   the  amended  Rules  there   is  no  unfettered   or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

uncanalised  power  and  discretion   given  regarding   the authority  to  hold  Selection Committee meetings.   On  the contrary,  they  plead  that there is a  clear  mandate  for holding  the  meeting of the Selection Committee every  year but  in view of the exceptional exigencies given in the Rule itself,  the Committee could not be constituted and that too only  on  the  basis of a conscious decision  taken  by  the respondents.   They further contend that the Rules have been framed   with  inbuilt  safeguards  to   keep  at  bay   the eventuality of non-convening the Selection Committee meeting by  default  on the part of the State Government etc.   They also  contend  that under the amended Rules  in  exceptional situations  alone and for reasons to be recorded in writing, a meeting of the Selection Committee could be deferred.

     In  view of the above statement of the Union of  India found both in the explanatory note to the amendments and the counter  affidavit filed in the concerned writ petitions, we are  of  the opinion that this challenge of the  petitioners should  also  fail.   We,  however,   make  it  clear  while disposing  of  these  petitions  that  it  is  open  to  the petitioners to file a detailed representation to the Central Government,  giving  all the particulars of the  post  which they consider are fit to be encadred and special reasons why they  should  be encadred with a retrospective date  and  on such  representation being made, the Central Government will consider  these  representations  in consultation  with  the State  Governments concerned, and take appropriate decisions in  this  regard,  preferably  within six  months  from  the receipt  of those representations.  The petitions and appeal are disposed of accordingly.  No costs.