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Judgement of CAT on IAS Promotion for Non SCS

Central Administrative Tribunal

Principal Bench

New Delhi

OA No.3605/2010

MA No.2785/2010

MA No.2198/2011

Reserved on    :           06.02.2012

Pronounced on            :           07.03.2012

Hon’ble Mr. Justice V. K. Bali, Chairman

Hon’ble Dr. Ramesh Chandra Panda, Member (A)

1.         Dr. Ashok Kumar Sharma

s/o Shri Yagya Dutt Sharma

            R/o 19/Block 4, Type-IV

            Government Colony, Kedarpuram

            Post Office Ajabpur, Dehradun. Uttarakhand

            Presently working on Deputation with

            Government of Uttrakhand

            Dehradun.

2.         Shri Jaipal Singh

            S/o Shri Ramli

            R/o 56/2, Golden Green Park, Bareilly

            Presently working as

            Deputy Transport Commissioner (Zone)

            Bareilly.                                                                                   Applicants

(By Advocates : Mr. Neeraj Jain, Senior Advocate witt Mr. Sourabh Aggarwal)

Versus

1.         Union of India

            Through the Secretary

            Department of Personnel and Training

            Ministry of Personnel, Public Grievances and Pension

            Government of India

            New Delhi.

2.         The Secretary

            Union Public Service Commission

            Dholpur House

            Shahjahan Road

            New Delhi.

3.         The Principal Secretary

            State of Uttar Pradesh

            Appointment Department

            Government of Uttar Pradesh

            Civil Secretariat

            Lucknow. UP

4.         Narendra Kumar Chaudhary

            S/o Shri Atma Ram chowdhri

            R/o 4/105, Vishal Khand

            Gomti Nagar, Lucknow

            Presently posted as Vice Chairman

            Ghaziabad Development Authority

            Ghaziabad.

5.         Dalip Kumar Gupta

            S/o Shri I. S. Gupta

            R/o B-22, Sector-B, Aliganj, Lucknow

            Presently posted as Special Secretary

            Food & Civil Supply Department

            Government of UP

            Lucknow.

6.         Ajay Agarwal

            S/o Shri M. B. L. Agarwal

            R/o B-1/10, Sector-A, Aliganj,

            Presently posted as Special Secretary

            Finance Department

            Government of UP

            Lucknow.

7.         Raj Narain Singh

            S/o Shri Mahadev Singh

            R/o 29, Raj Bhawan Colony

            Presently posted as Special Secretary

            Rural Development Department

            Government of UP

            Lucknow.

8.         Vimal Kishore Gupta

            S/o Shri Ambika Prasad Gupta

            R/o 2/2 Vipul Khand, Gomti Nagar

            Presently posted as Special Secretary

            Home Department

            Government of UP

            Lucknow.

9.         Gyan Singh

            S/o Shri Sunder Singh

            R/o A-14/C L.D.A. Colony, Kanpur Road

            Presently posted as Special Secretary

            Home Department

            Government of UP

            Lucknow.

10.       Atul Kumar

            S/o Shri S. P. Gupta

            R/o B-1/15 Sector-A, Aliganj

            Presently posted as Special Secretary

            Basic Education Department

            Government of UP

            Lucknow.

11.       Akhilesh Kumar Baranwal

            S/o Shri Daya Ram

            R/o B-24, Butler Palace Colony

            Presently posted as Special Secretary

            Medical Education Department

            Government of UP

            Lucknow.

12.       Prabhat Kumar Mishra

            S/o Mritunjai Mishra

            Presently posted as Special Secretary

            Dairy Development Department

            Government of UP

            Lucknow. UP                                                  Respondents

(By Advocates: Mr. R. N. Singh for Respondent - DOPT with Mr. Devesh Singh for UPSC.

Mr. Nikhil Majithia for Respondent - UP Government.

Mr. G. D. Gupta, Senior Advocate with Mr. Piyush Sharma for Respondent No.12

Mr. Sandeep Singh for Pvt. Respondent No.4 to 11.)

O R D E R:

Dr. Ramesh Chandra Panda, Member (A) :

            Dr. Ashok Kumar Sharma and another, applicants herein, have assailed the Government of Uttar Pradesh recommendation dated 27.03.2010 (Annexure-A1 Colly), 22.05.2010, 08.09.2010 and Central Government order thereon dated 10.09.2010 (page 46)  whereby the Non State Civil Services (NSCS) officers have been denied their rightful induction in the IAS due to cadre review and restructuring. It is the case of the applicants that there were certain directions contained in the judgment of the Lucknow Bench dated 06.09.2010, on the basis of which the Central Government granting an erroneous approval on 10.09.2010 diverted 11 vacancies earmarked for the Non State Civil Services (NSCS) Officers to the State Civil Services (SCS) officers. The applicants have, therefore, approached this Tribunal with following relief(s):-

a.         Quash and set aside the letter dated 27.03.2010 issued by the Principal Secretary, Government of UP to the DOPT, Government of India to the extent it propose to utilize all the vacancies available for the year 2004 to 2010 to be filled up from the SCS Officers.

b.         Quash and set aside the order contained in the letter dated 10.09.2010 of DOPT, Government of India to the extent it has re-determined the promotion quota vacancies of IAS as 29 in place of 18 for the Select List year 2004, as a result of which the 11 vacancies determined by the Government of India vide notification dated 01.02.2006 for recruitment by selection for the Non SCS Officers and the process of selection had also proceeded in terms of Regulation 5 of the Selection Regulation, have now been diverted to be filled up from the State Civil Service Officers.

c.         Declare and direct that the 11 vacancies in the IAS (UP Cadre), which had been earlier notified/earmarked to be filled by selection of the Non SCS Officers vide Notification dated 01.02.2006 and in respect of which interview has already been held on 21-23.12.2006, be filled from the Non SCS Officers (selectees).

d.         Pass any other or further order(s) as this Hon’ble Court may deem fit and proper.

2.         At the admission stage, as the applicants had approached the Tribunal seeking interim relief, we passed an order on 29.10.2010, directing  that appointment/promotion on eleven posts which have been diverted to State Civil Cadre shall be subject to final outcome of present Original Application.

3.         Brief facts of the case would manifest that as a result of bifurcation of the State of Uttar Pradesh and creation of the State of Uttaranchal in terms of the State Reorganisation Act, two Notifications were issued on 21-10-2000. The first was issued under Section 3(1) of the All India Services Act, 1951 read with Sections 72(2) and (3) of the Reorganisation Act and Rule 4(2) of the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 (the Cadre Rules in short). Thus, the Central Government constituted for the State of Uttaranchal an Indian Administrative Service Cadre with effect from 1-11-2000. On 21-10-2000 another Notification was issued fixing the cadre strength of the State of Uttar Pradesh thereby determining the number of senior posts in the State of Uttar Pradesh as 253.  The next cadre review for the State of Uttar Pradesh fell due on 30-4-2003. To that effect a Letter dated 23-1-2003 was written by the Additional Secretary in the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India to the Chief Secretary, Government of Uttar Pradesh followed with several reminders dated 5-3-2003, 3-9-2003, 17-9-2003 and 8-12-2003 but unfortunately the Government of Uttar Pradesh did not respond and further reminder was sent by the Government of India stating therein that four requests were made for the cadre review of the IAS cadre of Uttar Pradesh but no response was received from the Government of Uttar Pradesh. In the said letter the Government of India wanted a suitable direction from the officials concerned so that they could furnish the cadre review proposal by 28-2-2004. Unfortunately, there was no response and thereafter subsequent reminders were also sent by the Government of India on 14-6-2004/17-6-2004 and 8-10-2004. Ultimately, a proposal was received from the Government of Uttar Pradesh only in the month of January 2005 and immediately a preliminary meeting was fixed on 21-2-2005. Thereafter, a cadre review meeting was held under the chairmanship of the Cabinet Secretary on 20-4-2005 and the minutes duly signed by the Chief Secretary, Government of Uttar Pradesh were received on 27-6-2005. After approval was given to the said minutes, Notification was issued on 25-8-2005 refixing the cadre strength in the State of Uttar Pradesh. Challenging the said notification, some of the SCS officers approached this Tribunal by filing two OAs [OA No. 1097 of 2006 and OA No. 1137 of 2006] praying for quashing of the said notification and also prayed for setting aside the Order dated 1-2-2006 whereby vacancies were increased as a result of the said cadre review adding to the then existing vacancies for the year 2006. In those OAs the principal contention raised by the SCS officers was that the last cadre review of the IAS in Uttar Pradesh cadre was conducted in 1998 and the next cadre review was therefore due in April 2003. As such, it was contended that the cadre review which was conducted in August 2005 should have been given effect to from April 2003 so that the SCS officers could be considered for promotion against the promotion quota. The stand of the State of Uttar Pradesh before the Tribunal was that with the issuance of Notification issued by the Department of Personnel and Training on 21-10-2000 bifurcating the cadre of undivided Uttar Pradesh to IAS, Uttar Pradesh and IAS, Uttaranchal upon the Uttar Pradesh Reorganisation Act, cadre review has already taken place and as such the next review was due in 2005 only. The stand of the Government of India and the UPSC before the Tribunal and before the High Court was that the cadre review was due in 2003. However, the Tribunal after hearing the parties upheld the contention of the State of Uttar Pradesh and held that the cadre review carried out in 2005 cannot be given retrospective effect. The Tribunal dismissed OA No. 1097 of 2006 and partially allowed OA No. 1137 of 2006, inter alia, directing the respondents to convene the meeting of DPC Selection Committee to fill up the posts which were not filled up in the years 2001, 2002 and 2004 and to consider all eligible SCS officers in the zone of consideration including the officers who were put in the select list of those years but could not be appointed in the absence of integrity certificate. However, the aggrieved parties challenged the said order of the Tribunal and filed a writ petition before the Hon'ble High Court on 18-12-2006 contending therein that the cadre review of the IAS of Uttar Pradesh cadre was due in 2003 and was delayed by the State of Uttar Pradesh as a result of which some of the SCS officers were deprived of their promotion to the IAS. Their specific stand in the writ petition was that if the increased vacancies were available in 2004 as a result of the cadre review in 2003, they could have been promoted to IAS. However, before the High Court the stand of the Central Government was that the cadre review of the IAS of Uttar Pradesh cadre was due in 2003 but unfortunately it was held in 2005 when the State of Uttar Pradesh had sent its proposal. Such review was made effective from 25-8-2005 when the revised cadre strength of the IAS cadre of Uttar Pradesh was notified in the Official Gazette in terms of the statutory provisions. Their further stand was that the cadre review undertaken in 2005 cannot be given retrospective effect. In the mean time, Uttar Pradesh Government took the stand that they have no objection to any direction for exercise of cadre review to be undertaken with reference to the vacancy position as on 1-1-2004. The High Court set aside the judgment of the Tribunal dated 15-12-2006 and the Notifications dated 1-2-2006 and 25-8-2005. The State and Central Governments were directed that the cadre review exercise should be undertaken as if it was taking place on 30-4-2003 with reference to the vacancy position as on 1-1-2004.

4.         Challenging the judgment and order dated 14-11-2008 delivered by the Delhi High Court on the writ petition filed by Hemraj Singh Chauhan and Ramnawal Singh, the Union of India and the Secretary, Union Public Service Commission appealed impugning the said judgment in the Honourable Supreme Court in Union of India versus Hemraj Singh Chauhan [2010-4-SCC-290] where the respondents were members of the State Civil Service (SCS) of the State of Uttar Pradesh and according to them they completed eight years of service on 23-7-1985 and 4-6-1986 respectively. The contention of the respondents was that in terms of Regulation 5(3) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, a member of the SCS, who has attained the age of 54 years on the 1st day of January of the year in which the Committee meets, shall be considered by the Committee, provided he was eligible for such consideration on the 1st day of the year or of any of the years immediately preceding the year in which such meeting is held, but could not be considered as no meeting of the Committee was held during such preceding year (s). The main controversy in this case before the Hon’ble Apex Court was whether re-examination of the strength and composition of cadre in the State of Uttar Pradesh had taken place in accordance with the mandate of Rule 4 sub-rule (2). Hon’ble Supreme Court noted that the authorities who under a statutory mandate would be competent to re-examine the strength and composition of cadre are the Central Government and the Government of U.P. It was also noted that the word "ordinarily" in Rule 4(2) has come by way of amendment with effect from 1-3-1995 and along with the said amendment has also come the amendment of 5 years, previously it was 3 years. After hearing the parties with the modification/direction, the Hon’ble Apex Court disposed of the appeals filed by the Union of India with the following orders and directions:

35.       The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State.

36.       It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.

37.       In Govt. Branch Press v. D.B. Belliappa(1979) 1 SCC 477 : 1979 SCC (L&S) 39 a three-Judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomised under Articles 14 and 16 is "fairness founded on reason" (see SCC p. 486, para 24).

38.       It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion have been defeated by the acts of the Government and if not of the Central Government, certainly the unreasonable inaction on the part of the Government of State of Uttar Pradesh stood in the way of the respondents' chances of promotion from being fairly considered when it is due for such consideration and delay has made them ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy.

42.       Concurring with the aforesaid interpretative exercise, we hold that the statutory duty which is cast on the State Government and the Central Government to undertake the cadre review exercise every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely lethargy, inaction, an absence of a sense of responsibility cannot fall within the category of just exceptions.

43.       In the facts of this case neither the appellants nor the State of Uttar Pradesh has justified its action of not undertaking the exercise within the statutory time-frame on any acceptable ground. Therefore, the delayed exercise cannot be justified within the meaning of "ordinarily" in the facts of this case. In the facts of the case, therefore, the Court holds that there was failure on the part of the authorities in carrying out the timely exercise of cadre review.                                    .                                 

46.       In Syed Khalid Rizvfi the Court was considering Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 which also contained the word "ordinarily". In that context the word "ordinarily" has been construed as: (Syed Khalid Rizvfi, SCC p. 586, para 9)

            "9. ... since preparation of the select list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand." The same logic applies in the case of cadre review exercise also.

47.       Therefore, this Court accepts the arguments of the learned counsel for the appellants that Rule 4(2) cannot be construed to have any retrospective operation and it will operate prospectively. But in the facts and circumstances of the case, the Court can, especially having regard to its power under Article 142 of the Constitution, give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees.

48.       The Court is satisfied that in this case, for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event, this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively.

5.         The Cadre Review of the UP Indian Administrative Service was held in the year 1998. As per the extant guidelines, quinquennial cadre review should take place.  Accordingly, the next cadre review of UP, IAS cadre was due on 2003.  But the same got delayed and the cadre review took place only in 2006.  In the cadre review done in 2006, the total cadre strength was fixed at 537. The 33 1/3% of the Senior IAS posts was earmarked for the State Civil Service (SCS) and Non State Civil Service (NSCS) officers.  Thus, the promotion and selection quota taken together was fixed at 163, out of which 24 posts were for NSCS and 139 posts were for SCS.  Balance posts were to be filled up by direct recruitment.  While determining the vacancies, it was found that 11 vacant posts were available for the NSCS.  The UP Government drew up the eligibility criteria for NSCS officers who were to be considered for the selection for induction to IAS.  Accordingly, UPSC conducted the Selection Committee and prepared a penal.  At that point of time, since there was a Writ Petition pending in the High Court at Lucknow, the recommendation of the Selection Panel was put in the sealed cover and handed over to the Hon’ble High Court at Lucknow.  In the meantime, the decision taken in the Courts and Tribunals culminated in directing the Union of India and the Government of UP  to antedate the cadre review to 2003.   While antedating the cadre review, the respondents  Government of UP did not allocate any post for the NSCS, as a result of which all the 11 posts earlier earmarked for the NSCS were diverted to the SCS categories.  Being aggrieved, the applicants have come to the Tribunal claiming that 11 posts which were earlier earmarked for NSCS in the year 2006, should be considered for NSCS even in the cadre review and cadre restructuring being done in 2003.

6.         Shri Neeraj Jain, learned Senior Advocate assisted by Shri Saurav Agrawal, learned counsel appearing for the applicants submits that this case has a long history of litigations between the parties in Tribunal, Hon’ble High Courts and Hon’ble Supreme Court. (1)  The State Government has taken the stand to give no positions to the NSCS officers, despite the earlier decision of the State Government and the Central Government to grant 11 vacancies to the NSCS in the year 2006.  It is contended that State Government taking advantage of an order in a case between the two sets of SCS officers and against the Government is now being used by the SCS Officers as well as the State Government to deprive the NSCS officers of the identified vacancies for which process of selection had already been completed by Selection Committee.  (2)  Pursuant to the cadre review done on 25.8.2005 and the vacancies determined for the year 2005 and 2006, out of total number of posts of 163 meant for promotion and selection, the State Government bi-furcated the same into 24 posts for NSCS and 139 posts for SCS. As 13 NSCS and 105 SCS officers were working at the time both State and Central Governments approved the cadre review. Thus the available vacant posts were allocated; (i) 11 posts for NSCS officers for the year 2006 and (ii) 19 vacant posts for 2005 and 14 for 2006 to the SCS officers.  (3) Our attention was drawn to 7 vacancies earmarked for NSCS officers for the year 2005 as the State Government could not take timely steps to fill up those 7 vacancies for NSCS officer in 2004. It is contended by the learned Senior Counsel for the applicant that belated cadre review getting the same related back to the earlier orders has deprived the officers from the NSCS category to get selected to IAS. There is a deliberate attempt by the Government of UP and the officers belonging to the SCS categories to get all the vacancies meant for NSCS category officers to SCS. This approach of the UP Government and the officers of SCS is rather arbitrary and illegal. The same deserves to be quashed.     He also submits that while re-determining the cadre for the UP, what should be the number of posts for SCS and NSCS has been clearly demarked. Once, the UP Government and the Government of India in compliance of the Supreme Court decision antedating the entire cadre review, the redetermination of the cadre will be exactly as it was before. Therefore, any manipulation in redetermination of the cadre by diverting the vacant posts to SCS category from the NSCS category would not be permissible. He also submits that the Government of India has objected that said diversion of 11 posts vide their letter dated 1.06.2010 and even have gone to the extant of demanding that such 11 vacant posts meant for the NSCS officers should be kept in abeyance. By taking the advantage of certain years which was between the two sets of SCS Officers before the Hon’ble High Court of Lucknow, the UP Government has no right to divert 11 vacant posts meant for NSCS. In the background of the above position and in compliance of the directions of the Hon’ble Supreme Court, it is pleaded and urged that the impugned proposal of the UP Government and the orders of the DOPT diverting 11 posts of NSCS officers to that of SCS officers should be termed illegal and quashed.

7.         Learned Senior Advocate Shri G. D. Gupta assisted by Shri Piyush Sharma, learned counsel appearing on behalf of the 12th respondent would highlight the background of the case to submit that the Union of India as well as the NSCS Officers filed the Special Leave Petition before the Supreme Court (Civil Appeal) which was disposed of with the direction that the Delhi High Court direction should be complied with by making the cadre review as effective on 30th April, 2003 with vacancy position as on 1st January, 2004. The Civil Appeal filed by NSCS Officers was dismissed being not maintainable. Thus, insofar as the directions given by the High Court of Delhi in WP (C) No.19103-04 of 2006 which have been given in favour of NSCS Officers are not tenable now and the NSCS Officers cannot claim for compliance of the said directions. Insofar as the direction given by this Tribunal in OA No.1137 of 2008 is concerned, the State of UP had earlier filed WP (C) No.129 of 2007 which was subsequently withdrawn on 11.07.2007. The Union of India has, however, filed a Civil Writ Petition No.1106 of 2008 in which a challenge has been made to the direction given by this Tribunal for giving 7 vacancies of the year 2004 to SCS Officers. The Hon’ble High Court of Delhi in its decision dated 5th February, 2009 in WP (C) No.1106 of 2008 held, after relying upon the decision of the Hon’ble Supreme Court in the case of P. M. Byas versus Union of India & Others  (1993 (3) SCC 319) that there was no material to indicate that there were officers of outstanding merits belonging to NSCS category. Thus, it has been held categorically by the High Court that insofar as the NSCS Offices were concerned, no officers of outstanding merit and ability were available.  He further submits that in compliance of the judgment of the Hon’ble Supreme Court of India dated 23.03.2010, the State of UP wrote a letter dated 27.03.2010 to the DOPT, Government of India. The said letter contains the proposal of the State Government for determination of vacancies for promotion quota in the years 2004-2010. In the said proposal submitted by the State Government it is stated that due to huge back log in the promotion quota on account of delay in making promotion of State Civil Service Officers to the UP Cadre and all eligible officers of 1976 of State Civil Services yet to be promoted. Therefore, it was decided by the State Government that all the vacancies for the years 2004 to 2010 should be filled up by the State Civil Service Officers. The Government of India vide its letter dated 01.06.2010 has agreed with the proposal of the State Government. However, in view of the interim order passed by the Lucknow Bench of Allahabad High Court, it is suggested by the DOPT that 11 vacancies shall be kept in abeyance and they have agreed to give the entire vacancies as proposed by the State Government from the year 2004 to 2010. The DOPT has raised the question that due to antedating of the cadre review the number of vacancies for the select list year 2006 were reduced to 4 from 25, therefore, how to deal with the said 11 vacancies of NSCS category against which selection have already been held and the minutes are kept in sealed cover on the direction of High Court of Lucknow Bench. The High Court at Lucknow has decided all the Writ Petitions vide its order dated 6th September, 2010 and held as under;(a) the question of equivalent of post is to be done strictly in accordance with the proposition laid down in Sub Inspector Roop Lal & Ors. Therefore, the High Court has set aside the equivalent of post dated 17.12.06 issued by the Government of UP. (b) It has been further held by the High Court that determinations of cadre strength vide Notification dated 01.06.2010 is not under challenge. (c) It has further rejected the contentions of the applicant, that they are entitled to the vacancies and they stand selected in view of Non declaration of results, more particularly when this challenge to the order passed by Delhi High Court failed before the Apex Court. (d) It has further held that the result for the selection has not been declared nor the same can now be given effect to. It is, therefore, submitted that equivalency is still pending as no notification till date is issued. Shri Gupta would submit that in as much as in the said order the High Court categorically held that the Notification dated 01.06.10 had not been challenged. Therefore, the determination of the vacancies has not been challenged. In view of the aforesaid orders passed by the High Court of Delhi at New Delhi and the judgment and order of the Allahabad High Court, Lucknow Bench, it is clear that the applicants were not eligible in the year 2004. It is further clear that no officer of outstanding ability and merit was available in the year 2004. As per the Allahabad High Court order dated 06.09.2010 the selection process which was initiated pursuant to the Notification dated 06.01.2006 and 01.02.2006 stood scrapped in view of the judgment and order passed by the Hon’ble Supreme Court of India. In this view of the matter it is submitted that the present OA is liable to be dismissed.

8.         Shri Sandeep Singh, learned counsel for Private Respondents No.4 to 11 would argue that the recruitment to IAS through selection is an extraordinary mode of appointment which is distinguishable from the promotion mode of recruitment. It is an extraordinary mode as it is dependent on existence of special circumstances. The determination of vacancies for selection is made according to Rule 3 of Selection Regulations 1997 read with Rule 4 (1) and Rule 8 (2) of Recruitment Rules, 1954. It is further contended that relating back of vacancies for selection to any previous year is impermissible in law. There is no legal provision in any Rules or Regulations pertaining to appointments to IAS, which can provide for relating back the vacancies of selection to any previous year or for relating back a selection to any previous year, which was partially held, but remained incomplete, as the selection to IAS is held only against the vacancies, which are determined for selection for the current year commencing from first day of January of the year. If the selection is either not held or it remains incomplete or inconclusive or it is abandoned, the said unfilled vacancies earmarked for selection for that year cannot be either carried forward or taken backward to any other year and these unfilled vacancies of selection fall back to promotion quota vacancies of that year, which are filled up by way of promotion of eligible SCS Offices. When a selection is held, a zone of consideration is prepared. Only the persons having an extraordinary merit and ability, who are working in NSCS having experience of 8 years in substantive capacity, are taken into consideration. The zone of consideration for 11 vacancies notified in 2006 was prepared on the evaluation of ACRs of the NSCS Officers from the year 2000-2001 to 2004-05, but if these vacancies would have been notified in 2004, the zone of consideration would have been prepared on the basis of the ACRs of the officers from the years 1998-99 to 2002-03. Thus the zone of consideration prepared for selection, which was partially held in December, 2006 cannot be taken to be relevant, as it is, for the year 2004, as the zone of consideration if prepared for 2004 would have been altogether different and some officers would have been excluded from the zone and some new officers would have been added. Similarly the NSCS Officers not below the age of 54 years as on 1.1.2006 were included in the zone of consideration, which was prepared for selection partially held in 2006. If a selection were to be held in 2004, then certain officers, who would have attained the age of 54 years as on 1.1.2004, would have been excluded from the zone of consideration. In view of these typical problems likely to arise, the OA was pressed for dismissal.

9.         The controversy was that some SCS Officers wanted the cadre review to be with effect from 2003 so that their case gets considered as otherwise they would have become over aged. The challenge to the vacancy determination proposal dated 06.01.2006 and approval dated 01.02.2006. Though these two letters were quashed but were consequential to the Cadre review of 2005. It was in that background that the Delhi High Court had made the following observations:-

22.       Since the determination of the vacancies for being filled up by promotion took place only on 1.02.2006 and by that admittedly both the petitioners had crossed the age of 54 years, they obviously could not be considered for promotion to the IAS

            It must be noted that before the High Court some of the NSCS Officers were interveners and the Delhi High Court while directing antedating of the cadre review also directed antedating of the vacancies for the NSCS and SCS were to be determined. Sufficient protection was granted to the NSCS Officers as it was noted that even the vacancies available to those officers should be antedated to 01.04.2004. This is the direct inference from the following observation of the High Court:-

46.       As far as the present case is concerned, there should be no difficulty in undertaking cadre review exercise as indicated hereinabove. The exercise that preceded the issuance of the impugned notification dated 01.02.2006, including determining the vacancies available to those whom the interveners represent, should be undertaken as if it was taking place on 30.04.2003 and with reference to the date of 01.01.2004.

10.       At this stage, we may refer to the Rules and Regulations referred to by the parties. As per Rule 4 of the IAS (Recruitment) Rules, 1954, recruitment to IAS normally to be by the prescribed methods, viz. (a) by a competitive examination; (b) by promotion of substantive member of a State Civil Service, and (c) by selection, in special cases from amongst persons who hold in a substantive capacity gazetted posts in connection with the affairs of a State and who are not members of 9 State Civil Service. Corresponding to these 3 methods of recruitment, three separate Regulations have been framed in exercise of power under sub-rule 1 of Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954 and in consultation with the State Government and the Union Public Service Commission. Before we advert to the respective and relevant regulations, we may refer to the Rule 8 and 9 of the IAS (Recruitment) Rules which envisages thus:-

"8. Recruitment by promotion or selection for appointment to State and Joint Cadre.-(1) The Central Government may, on the recommendations of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Governments and the Commission, from time to time, make, recruit to the Service persons by promotion from amongst the substantive members of a State Civil Service."

            (2)        The Central Government may, in special circumstances and on the recommendation of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Governments and the Commission, from time to time, make recruit to the Service any person of outstanding ability and merit serving in connection with the affairs of the State who is not a member of the State Civil Service of that State [but who holds a gazetted post in a substantive capacity].

             (3)       (a)        Where a vacancy occurs in a State Cadre which is to be filled under the provision of this rule, the vacancy shall be filled by promotion of a member of the State Civil Service or, as the case may be, by selection of any other officer serving in connection with the affairs of that State.

Under Rule 9, the number of persons to be recruited under Rule 8 has been specified.

            9.         Number of persons to be recruited under Rule8 - (1) The number of persons recruited under Rule 8 in any State or group of States shall not, at any time, exceed 33-1/3 per cent of the number of senior posts under the State Government, Central deputation reserve, State deputation reserve and the training reserve in relation to the State or to the group of States, in the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955:

            Provided that the number of persons recruited under Sub-rule (2) of Rule 8 shall not at any time exceed fifteen per cent of the number of persons recruited under Rule 8.

The Regulations which are relevant in this case are (a) the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 and (b) the Indian Administrative Service (Appointment by Selection) Regulations, 1956. These two regulations have been framed under Rule 8 of the IAS (Recruitment) Rules. Another regulation relevant in this connection is the Indian Administrative Service (Cadre) Rules, 1954. Under Rule 4 of the said Cadre Rules, the strength and composition of the cadres constituted under Rule 3 shall be determined by regulations made by the Central Government in consultation with the State Government.

11.       We may refer to the set of litigation in the matters under consideration. In OA No.362 of 2008 filed before the Lucknow Bench of the Tribunal against the Government of UP, Order dated 01.02.2006 regarding excess determination of vacancies for selection; the Tribunal dismissed the OA on 24.11.2006 with certain directions. The State Government issued Notification regarding equivalence of NSCS posts with the post of Deputy Collector. Challenging the Tribunal order Writ Petition No.1718 (S/S) of 2006 came to be filed in the matters of Mahesh Chand versus State of UP and Others before High Court of Lucknow in which an interim direction was passed  stating selection may go on, but the result shall not be declare. From the list of candidates considered for selection, interviews were held on 24/24.12.2006 but the proceedings for selection could not proceed as the Notification dated 01.02.2006 regarding vacancies of selection was quashed. It is noted that the applicants participated in the said interview.

12.       The method of recruitment to IAS has been provided in the Rules and the sources are three. As already indicated within Selection is a source and method of recruitment. Rules and Regulation envisages the same. That being so, how can the UP Government for many years allot not even one post for the NSCS officer and divert all eleven posts estimated to be vacant for NSCC Officers to SCS Officers. This approach of the UP Government accepted by UPSC and the Government of India is neither convincing nor acceptable. They have played with words to justify their decision to divert all 11 NSCS vacancies to SCS. The Counsel for the UP Government took the stand that up to 15% meant for the promotion quota would mean nil (zero). This argument does not convince us. A collective and harmonious reading of the Rules and Regulations would manifest contrary position. The intention of the rule makers is to ensure that through selection some extra ordinary NSCS Officers are inducted to IAS. The proverbial saying something is better than nothingis applicable in the present case. We cannot believe that the UP State Government does not have NSCS Officers with extra ordinary ability. It is the responsibility of UP Government. While dealing with even 7 vacancies of NSCS Officer, the Hon’ble High Court of Delhi held in WP(C) No.1106/2008 that there was no material on record to find out the list of such candidates.

13.       Admittedly, the official respondents have taken some steps in compliance of the directions of the Hon’ble Supreme Court. The Government of India issued a cadre review on 17.05.2010. The said notification inter alia provided that it would come into force w.e.f. 30.04.2003. Thus antedating ordered by the Hon’ble Supreme Court has been fully complied with. The entire cadre structure and the number of posts available for promotion and selectionhave been identical to the one earlier notified. The promotion and selection worked together has been stated to be 163 in the said notification. It is seen that the NSCS Officers and the State Government of UP have been interpreting the judgment of Hon’ble Supreme Court in a manner by which the antedating of the vacancies in case of NSCS Officers could not be taken up. There is no such observation by the Hon’ble Supreme Court in its judgment that NSCS Officersvacancies need to be diverted to the SCS category. Further the argument given by the respondents that there is no provision in law for relating back or carry forward the vacancies for selection to a previous year for the NSCS vacancies, we would refer to the judgment of Hon’ble Supreme Court which has already decided the matter by invoking the powers under Article 142 of the Constitution of India stating therein the judgment dated 23.03.2010 that the entire strength and composition of the cadre would relate back to 2003. In case of the strength of the cadre NSCS Officers would come within ambit of the composition of the cadre along with direct recruits and promotees. Further, the vacancies for the NSCS officers are also part of the strength of the cadre. Thus, we are of the considered opinion that as the cadre review is to be related back to the year 2003, all the associated matter like determination of vacancies, selection/promotion etc. would automatically relate back. It is not for the Tribunal to work out the nitty gritty of the same but it would be duties of the official respondents that such vacant posts for both SCS and NSCS need to be filled up through staggered process with effect from 2002 onwards so that either of the source recruitment to IAS does not get vitiated by administrative action.

14.       By not discharging the mandated statutory duties/functions by the Government of UP, we note that such inaction is rather unfortunate. The wrong gets compounded when the UPSC and DOP&T show their no reaction to the same. It is apt to note that Supreme Court while considering the issue of antedating the UP Cadre review in Hemraj Singh Chauhans case (supra) has ordered to antedate the cadre review to 2003. The said judgment does not exclude any category or source of recruitment. In view of the above analysis, we are of the considered view that diverting of all 11 vacancies of NSCS to SCS is arbitrary and illegal. The Government of UP letter dated 27.03.2010 addressed to the DOP&T to utilize all vacancies meant for NSCS Officers for the year 2004 to 2010 to be filled up from the SCS Officers and the orders issued by DOP&T dated 10.09.2010 to the extent it has re-determined the promotion quota as 29 in place of 18 by diverting 11 vacancies meant for selection from NSCS by Government of UP are liable to be quashed and set aside. We order accordingly.

15.       Resultantly, the Original Application succeeds and we direct the official respondents in following terms:-

            1.         The Government of UP and Government of India-DOP&T and UPSC would maintain already re-determined vacancies in the cadre review/restructuring for the IAS, UP cadre as already upheld by the Hon’ble Supreme Court and relate the same back appropriate notification where out of 163 posts, 139 post are for SCS and 24 posts are for NSCS.

            2.         Pursuant to the said notification of determination of IAS vacancies for SCS and NSCS, the number of posts which have been already earmarked for the NSCS and SCS need to be filled up in accordance with law.

            3.         The equivalency notification for the NSCS, if not issued or not valid compared to the Deputy Collectors in the SCS, the same should be worked out and issued as per law by the UP Government.

            4.         The antedating of cadre review as has been already held by Hon’ble Supreme Court in Hemraj Singh Chauhans case (supra), the exercise for filling up the vacancies in a staggered manner for both NSCS and SCS Officers should be undertaken expeditiously.

            5.         The exercise, as ordained above, shall be completed within a time frame of six months from the date of receipt of certified copy of this order.

16.       In terms of our above directions, the Original Application is allowed, leaving the parties to bear their respective costs.

 

(Dr. Ramesh Chandra Panda)                                                 (V. K. Bali)

            Member (A)                                                                Chairman