State of Uttarakhand Through Principal Secretary and Anr v. Ajay Kumar and Ors

SANJIV KHANNA, J. AUGUST 16,2011 pk Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. ' 0//o IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 23^^^ May, 2011 Date of decision : 16*^^ August, 2011 •+ W.P.(C) 3457/2011 AJAY KUMAR JOSHI Through: ..... Petitioner Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate + versus UNION OF INDIA AND ORS. Respondents Through: Mr.A.S.Chandhiok, ASG with Mr.Sanjeev Sachdeva, Advocate for Union of India. W.P.(C) 3476/2011 STATE OF UTTARAKHAND THROUGH PRINCIPAL ' SECRETARY AND ANR. . Through: Petitionel's Mr.Soli J.Sorabjee, Sr. Advocate with Ms.Rachana Srivastava, Advocate versus AJAY KUMAR AND ORS. Through: ..... Respondents Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate for R-l! Mr.A.S.Chandhiok, ASG witli Mr.Sanjeev Sachdeva^ Advocate for Union of India. i'V}^(C)3457/2011 c?' conneded matters page 1 pf/W + W.P.(C) 3477/2011 STATE OF UTTARAKHAND AND ANR. Petitioners Through: Mr.SoliJ.Sorabjee,Sr. Advocate with Ms.Rachana Srivastava, Advocate versus AJAY KUMARJOSHIAND ORS. Respondents Through; Mr.A. Mata,Sr. Advocatewith , Mr.Apoorva Tiwari, Advocate for R-1. Mr.A-S.Chandhiok, ASG with Mr.SanjeevSachdeva, Advocate for Union of hidia. + : W.P.(C) 3485/2011 SUBHASH KUMAR Through: versus Petitioner Mr.Dushy^nt Dave and Mr.Nidesh Gupta, Sr. Advocates with Mr.Sumit Bansal, Advocate AJAY KUMARJOSHIAND ORS. Respondents Through; Mr.A.Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate for R-1 Mr.A.S.Chandhiok, ASG with Mr.SanjeevSachdeva, Advocate for Union of hidia. + W.P.(C) 3486/2011 SUBHASH KUMAR Through; versus \yi'(C) 3457/20! I connecied matters : Petitioner Mr.Dushyant Dav^ and Mr.Nidesh Gupta, Sr. Advocates with Mr.Sumit Bansal, Advocate AJAY KUMARJOSHIAND ORS. Respondents Through: Mr.A. Mata, Sr. Advocate with Mr.Apoorva Tiwari, Advocate for R-1 Mr.A.S.Chandhiok, ASG with Mr.SanjeevSachdeva, Advocate for • Union of hidia. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

¶1Whetl-ierreportersof die localpapersbe allowedto see the judgment? Yes

¶2To be referredto tlie Reporterornot? Yes

¶3Whetliertlie judgmentsholildbe reportedin tlieDigest? Yes DIFAK MISRA, CJ Regard being had to the commonalityof controversy,this batch of writ •petitionswas heardtogetherand is disposedof by asingularorder. Ajay Kumar Joshi,the petitionerinW.P.(C)No.3457/2011/preferredtwo originalapplications before the Central Administrative Tribunal, Principal Bench, New Delhi (for short 'the tiibunal') forming the subject matter of O.A. Nos.2357/2010 and 3604/2010 assailing the action of the State of Uttarakhandin extending the benefitof promotionto the respondentnos. 4to 6in the pay scale of the Chief Secretary and further challengingthe selection of the respondent-Subhash Kumar for the post of Chief Secretaryof the State oiti the foundationthat there WP(C) 3457/2011&connectedmatters . page3of60 has beentotalviolationoftheprovisionscontainedin the Rules,Regiilationsand instructions in the field. The tiibmial accepted the contentions raised by the applicant before it and set aside the benefit of promotion extended to the respondent-SubhashKumar and also quashed the order of promotionof the applicantand directedto make fresh selectionafterfollowingthe due procedure as postulatedin law within two months with a further stipulationthat the presentarrangementwould remainin vogue duringthe said period. Shri A.K. Joshi has preferredW.P.(C) No.3457/2011for quashingthe directionby which his promotionhas beenamiulledand furtherto issueacommandfor restoration of his promotion. The State of Uttarakhandhas preferredW.P.(C)No.3476/2011 and W.P.(C) No.3477/2011challengingthe order passed by the tiibunal and SubhashKumarhas preferredW.P.(C)No.3485/2011and W.P.(C)No.3486/2011, Be it noted, the stand and stance put forth by the State of Uttarakhand and SubhashKumar are same and their prayeris for quashmentofthe order passed by the bibunal in entirety.

¶2Pi-esentiyto the factual mati-ix. The. applicantbefore the ti-ibunalin OA No.3604/2010calledin questionthe legalproprietyof the concurrencegivenby the Secretary,Departmentof Persomiel&Training(DOPT), in responseto the letters dated 31.5.2010and 8.10.2010of the State of Uttarakhand as regards the l'yP(C)3457/201/ &connectedmatters ^ P<^'Se4of 60 availability of one vacancy in the apex scale of Indian Administrative Service

(IAS) in the Uttarakhandcadre as on31.5.2010in terms ofthe provisionsofRule 3(2)(ii) and (iii) of the IAS (Pay) Rules, 2007 (for short 'the 2007 Rules') in addition to two vacancies in the said grade for which concurrence has already been given by the respondentby communicationdated 19.9.2008 and further challengedthe orders dated12.9.2010and 13.9.2010wherebythe 4^^ respondent, SubhashKumar,hadbeenappointedas the ChiefSecretaryof the Governmentof Uttarakhand.In the said application,the reliefsoughtwas to setaside the afore mentioned two orders dated 12.9.2010and 13.10.2010contained in Annexures P-1 to P-3 of the original application;to issue appropriateguidelinesof general applicationfor posting of officers on the post of Chief Secretaryin the State cadres; and to declare that the post of Director General, Uttarakhand AdministrativeAcademy,Nainitalisnot equalin statusand responsibilityto the postof ChiefSecretary,Governmentof Uttarakhand\

¶3OA No. 2537/2010 was preferred assailing the action of the Screening Committee which met on 19.2.2010 recommending four officers, namely, Ajay Kumar Joshi, Suneel Kumar Muttoo, Subhash Kumar and Keshavdesi N. Raju as fit for the apex scale of the ChiefSecretary. The applicantwas furtheraggrieved by the order dated 31.5.2010 whereby Suneel Kumar Muttoo and Subhash l'VP(C)3457/20!I &connectedmailers ^ Kumarhad been promotedto the scale of Rs.80,000/-(fixed)ofthe IAS, andthe creationof 18 postsby the Stateof Uttarakhandmiderthe secondprovisoto Rule •4(2) of the IAS (Cadre)Rules,1954 (for short'the1954Rules'). The prayerin the petitionwas to set aside the recommendationsof the ScreeningCommitteeheld on 19.2.2010as far as theyrelateto the respondentNos. 4, 5and6as the samehas been made in the absenceof prior concurrenceof the Governmentof India and non-availabilityof valid posts and further to set aside the order of promotion dated 31.5.2010 passed.infavour of respondentNos.4 and 5 therein; and to invalidatethe order dated 28.5.2010whereby18 posts have been created by the StateofUttarakhand and to commandthe StateofUttarakhand to fill up the post of ChiefSecretary(a cadrepost) onlyfrom thoseofficersinthe CS Gradewho are deemed to have been appointed against cadre posts on the basis of their respectivemter se seniority. Be it noted, a further reliefwas added for setting aside the order dated 19.9.2008 of the Government of India which related to concurrenceaccordedin respectofthe availabilityofone ex-cadrevacancyin the ChiefSecretaryGradeofpayin the UttarakhandcadreoftheIAS.

¶4The grievanceof the applicant,in essence,was thaton19.9.2008,whenthe concurrenceof the respondent-DOP&Twas givenfor two availablevacanciesin the gradeof ChiefSecretary,only one vacancywas actuallyavailableon thatdate r IVP(C) 3457/20!I c'i connectedmatters I T and, therefore,two ex-cadrepostscouldnothave beencreatedunderRule 9(7) of the IAS (Pay) Rules as proposedby the Governmentof Uttarakhandin its letter dated 3.9.2008 because 17 persons were already working against. State• DeputationReservefixed at 13. It was the further stand that since the person above the petitioner in the gradation hst was found 'unfit' by the Selection Committee,the petitioneralone could have been selectedand the respondent nos.4 and 5 could not have been empanelledin the selectlist as the vacancies were not available.

¶5As is discerniblefrom the factual exposition,the cadre strength of IAS officers in Uttarakhandstate was determinedat 94 .under the IAS (Fixationof Cadre Sti^ength) Regulations,1955 vide the Governmentof India notification dated4"^ October,2004. The postcategorizedunderSeniorDutyPosts (SDP) are commonlyknown as cadre posts and the posts under State DeputationReserve

(SDR) are called ex-cadreposts. There are four grades having differentpay-scalesin SDP. The ChiefSecretarygrade is also knownas the apex grade in the cadre,the highestgradehavingpay-scaleof Rs.80,000/-(fixed).

¶6In 2008, the State Governmentunder Rule 9(7) of the 2007 Rules created: two ex-cadreposts underSDR in the ChiefSecretarygrade as againsttwo cadre postsalreadyexistingunderSDP. The saidcadrepoststhatexistedare the Chief, WP(C) 3457/20// di connectedmqtlers P°S<i 7of60 Secretaryand DirectorGeneral,Uttarakhand,AdministrativeAcademy,Nainital, On 3'd September,2008,the StateGovernmentsentaproposalfor concurrenceto the Governmentof India for filling up of two vacanciesin the Chief Secretary gradeas therewere two officers,namely,ShrihiduKumarPandeyand ShriN.S. Napalchyal,who were already workingin the Chief Secretarygrade and two vacancieswere available. At that point of time, 17 officerswere workingunder. SDR againstthe prescribedlimit of 13. The CeritralGovernmentaccordedits concurrence in respect of two vacancies in the Chief Secretary grade vide communicationdated19^^ September,2008. Beforethe meetingof the Screening Committee,Shri h^du Kumar Pandey, the then Chief Secretarytook voluntary retirement on 2"^ December, 2009 and therefore, the number of vacancies increased from two to three in the Chief Secretary grade. The Screening Committeeheld its meeting on 19^'^ February,2010 and took into accountthat apart from these three vacancies,one more vacancywould take place on 30th April, 2010 due to retirementof Shri N.S. Napalchyal. Regardbeinghad to the aforesaidcircumstances,the Committeeconsideredall the officersin the zone of considerationand gave its recommendationsfinding Ajay Kumar Joshi, Sunil Kumar Muttoo, Subhash Kumar and Keshav N. Desi Raju as 'fit' ^nd one VijendraPaul to be'unfit'. irPfCJ3457/2011&connectedmatters ^

¶7On the basis of the recommendations of the Screening Committee, the State Government promoted the officers, namely, Ajay Kumar Joshi, Stmil Kumar Muttoo and Subhash Kumar in the Chief Secretary grade on 31^^ May, 2010. The fourth likely vacancy that was taken into considerationby the ScreeningCommitteecouldnotbe filled up becausethe officerwho was to retire ' on 30"! April,2010 was,infact,'givenan extensionof six months,thatis, upto 31^^ October,2010 by the Govermnentof India. After making the promotions,the Stateof Uttarakhandapprisedthe Goverraxientof Indiain respectof fillingup of the thirdvacancyalso whichhad arisendue to volmitaryretirementof an officer on 2"^'' December,2009 after the concurrencedated 19''^ September,2008 for two vacancies. A reminder was also sent to the Government of India on 8"^ October, 2010 in the said regard.

¶8The Government of India, vide letter dated 13th October, 2010, granted concurrencefor the third vacancyas on 31®^ May, 2010 under Rule 3(2)(ii)(iii)of the 2007 Rules in continuation of its earlier concurrence dated 19September, 2008, which were for two vacancies. On 12^^September, 2010, an officerworking in the Chief Secretarygrade, N.S. Napalchyal,the then Chief Secretary,took voluntaryretirementand the State GovernmentappointedSubhashKumar a^ l'VP(C)3457/2011 cC' connectedmatters P<^'Se ^ ![p the new Chief Secretaryon 12"i September,2010 after consideringall officers includingAjayKumarJoshi,who was workinginthe ChiefSecretarygrade.

¶9The tribunal noted that by virtue of Section 72 of the Uttar Pradesh ReorganisationAct, 2000, aseparatecadre of IndianAdministrativeServicesfor the newly createdState was created. The applicantwas allocatedto the new cadre of Uttarakhand. After certainlitigations,the applicantjointedthe State of Uttarakhand on 12.10.2009.

¶10The Union Government, in consultation with the Government of, Uttarakhand, framed the Indian AdministrativeService (Fixation of Cadre Strength) Sixth Amendment Regulations, 2004 which came into force on

4.10.2004. The cadre strengthto the IndianAdministrativeService (Fixationof CadreStrength)Regulations,1955 (for short'the1955 Regi,ilations')provided51 posts at item No.l of the schedule,known as SDP under the Governmentof Uttarakhand, which included the posts of the Chief Secretary and the Director General of Uttarakhand Administrative Academy, Nainital, known as cadre Posts under Rule 2(b) of the 1954 Rules.

¶11The tribmial took note of the fact that at item No.3 of the above schedule, thereis aprovisionfor SDR, whichis 25% of the SDP and itwas fixed atNo.13 in \¥P(C)3457/20licC-connectedmatters P'^'S^ the order dated 04.10,2004. The Government of Uttarakhand sought the concurrenceof the Union of India by letter dated 3.9.2008 in respect of the vacanciesin the scaleof the ChiefSecretary. The Governmentofhidia concurred with the proposalaboutthe availabilityof two vacanciesin the scaleof Rs.26,000 (fixed) [pre-revised]. On 2.12.2009,as set forth, the then Chief Secretary,hidu KumarPandey,tookvoluntaryretirementfrom serviceand N.S. Napalchyalwas appointedin his place. It was contendedthat the ex-cadrepost which he was occupyingcame to an end and SDR came to 16 on that day. The applicant submittedarepresentationdated 9.12.2009seekingan accuratedeterminationof vacanciesin the grade of Chief Secretarysince the promotionto the post was vacancybased. He placedrehance on the guidelinesfor promotionframed on

28.3.2000. He stated in the representationthat no ex-cadrepost in any gi'ade, includingthe grade of the ChiefSecretary,could be createdin view of the fact that the SDR, as fixed by the order dated 4.11.2004,exceeded13. He submitted anotherrepresentationon 8.2.2010challengingthe correctnessof the letterdated

3.9.2008of the State Goverranent on the foundation that the letter had been sent in greathasteas the matterhad beeiiputup and approvedby the ChiefSecretary on the same day, in.whichfive levels of officersfrom Under Secretaryonwards IVP(C) 3457/20!I c& connectedmailers were involvedand such an action/ proposalwas in violationofRule 8(2) of the 1954 Rules.

¶12As noticed/ the first representationdated 9.12.2009 was rejected by #ie State of Uttarakhand. Ameetingof the ScreeningConimitteeheld at New Delhi on19.2.2010consideredfour vacancies,two cadre posts and two ex-cadreposts, for promotion to the grade of Cliief Secretary. The Committee made the recommendationin respectof four officersfor promotionto the grade of Chief Secretary. Anote was putup on 22.2.2010by the PriiicipalSecretarystatingthat two officers would be promotedinitiallybecause DOP&T had permittedtwo vacanciesand the resttwo wouldbe promotedafterobtainingthe concurrenceof the DOP&T. At this stage, the applicantsought interventionof the Centi'al Governmentas regardshis representationdated8.2.2010and the Governmenfof Indiasoughtcommentsfrom the Governmentof Uttarakhandbut no action,was taken. In the meantime,SubhashKumar,who was the PrincipalSecretaryof the Department of Persomiel of the State Government, wrote to the Secretary, DOP&T, on 29.3.2010seekingextensionfor the incumbentChiefSecretary,N.S. Napalchyal,who was grantedextensionfor afurtherperiodof six monthswith effectfrom 30.4.2010. At this stage,the Governmentof Indiawroteto the Stateof Uttarakhand on 7.5.210 to examine few aspects and to submit a fresh proposal l¥P(C)3457/2011 cC-connectedmailers P"S'^ for confirmation of vacancies in the grade of Chief Secretary for prior concurrence of DOP&T. The Government of Uttarakhand took no notice of this communication and approved the recommendationdated 19.2.2010 of the ScreeningCommittee on 25.5.2010. Three persons, namely, A.K. Joshi, Sunil Kumar Mattoo and Subhash Kumar were promoted to the grade of Chief Secretary.At this stage,the Stateof Uttarakhandcreated18 posts in the gradeof AdditionalChief Secretaryunder the second proviso to Rule 4(2) of the 1954 Rules and the posts were created for two years. Before the tribunal/certain correspondencesbetweenthe State of Uttarakhandand the Governmentof India were referred to,

¶13The applicant who was posted as Director General, Uttarakhand Administi-ative Academy, Nanital joined the said post under protest and submitteda representationto the competentauthority. When no responsewas shown,'he preferred the original application. During the pendency of the originalapplication,N.S. Napalchyal,the incumbentChiefSecretary,appliedfor voluntaryretirementfrom service on 12.9.2010and his requestwas acceded to. The fourthrespondent,SubhashKumar,was appointedas theChiefSecretaryon that day. By order dated 13.10.2010, the Govermnent of India gave its concurrenceto the availabilityof one vacancyin the apex scale in Uttarakhand WP(C) 3457/2011&connectedmatters P"Se oj 60 cadre as on 31.5.2010in terms of Rule 3(2) (ii) & (iii) of the Indian Administi-ative Service (Pay) Rules, 2007, in additionto the two vacanciesin the said grade to whichconcurrencehad earlierbeen givenby its letter dated 19.9.2008.

¶14Preliminaryobjectionswere raised with regard to territorialjurisdiction and limitationbut the tribunal, after referring to Sections 20 and 21 of the Administi-ativeTribunals Act, 1985, came to hold that the PrincipalBench at Delhihas jurisdictionto entertainthe originalapplicationand furtherthe delay, if any, deserves to be condonedand, accordingly,so ordered. Thereafter,the tribunalproceededto dealwiththe,meritsof the case.

¶15The principalcontentionthat was urged before the tribunalon behalf of the applicantwas that the respondentsin complete disregardof the statutory provisions engrafted under the All India Services Act, 1951, the Rules and Regulationsframed thereundererroneouslydeterminedthe vacancies in SDR and on the said basis, two ex-cadre posts could not have been created and resultantlythe Governmentof Indiacouldnothavegivenits concurrencefor two vacancies in the apex scale by acceding to the initial proposal of the State Government. It was also urged that while effectingpromotionto the gi'ade of Chief Secretary,the basic requirementstipulatedunder Rule 9(7) of the 2000 WP(C) 3457/2011&connectedmatters page 14 of60 Rules which has to be read in conjunctionwith Rule 8(2) of the 1954 Rules was not kept in view.

¶16Quite apart from the above, it was also contended that,the Govt. of Uttarakhandin creating 18 posts in May, 2010 abused its power under the secondprovisoto Rule 4(2) of the 1954 Rules. Placingrelianceon E.P. Rotjappa V. StateofTamilnadu&another,(1974)4SCC3, itwas assertedthatthe creation of postsunderthe secondprovisoto Rule 4(2) wouldnot add to the cadreposts, butwere actuallyto be treatedas ex-cadreposts. In thisregard,it was submitted that the State Government does not have the unbridled power to create any number of posts under Rule 4(2) of the 1954 Rules, as confermentof power would make the conceptof accuratedeterminationof the vacanciesunder Rule 3(2)(ii) and (iii) totallyredundantbecausethe StateGovernmentcouldcreateany numberof ex-cadrepostsin any grade. Itwas also contendedthatitwouldbe an absolutelyanomalouspropositionthat the posts createdunder Rule 4(2) of the 1954 Rules would be counted against cadre posts.

¶17It was also submittedthat it was mandatoryunder the 2007 Rulesio seek, prior concurrence of the Central Govermiient for available vacancies for promotionto selectiongrade and above. In this regard,reliancewas placed on the communicationdated 28.3.2007 of the Additional Secretary (DOP&T) to WP(C) 3457/201/ d connectedmatters explain the rationale behind the introductionof Rule 3(2)(ii) and (iii) which basicallyprovidefor bettercadre managementof the service. It was put forth thatsucha step-wastakenas the.StateGovernmentswere makingpromotionsin respect of the cadre beyond the number of available vacancies. It was highlighted that there is no provision for ex-post facto determination of vacanciesinRule 3(2) of the 2007Rules or any otherRule. Further,the standwas' taken that on 3.9.2008,as only one cadre post was vacantin Uttarakhand,the proposalof,theState,Govermnentfor creationof two ex-cadreposts imder Rule 9(7) ofthe 2007Rulescouldnothavebeenacceptedbecauseon thatdate the SDR was already17 againsttheprescribednumberof 13.

¶18Itwas the applicant'sgrievancethatthoughhe was more meritoriousthan SubhashKumar and also senior to him in the gradation list of 1977, yet he was placed in a positionsubordinateto him as the Director General,Uttarakhand Academy,Nairutal. Itwas arguedthat the ChiefSecretarywas the presidentof the GoverningBody of the saidAcademywhereasthe DirectorGeneralwas only the membersecretary. It was urged that the post beinginferioriiistattisto the post of the Chief Secretary,the senior personshould have been posted as the •ChiefSecretaryand the juniorshouldhavebeenpostedas the DirectorGeneral. I'VP(C)3J57/20II&connectedmatters

¶19On behalf of the second respondent, it was set forth that the applicant was mifit to be appointedto the post of the ChiefSecretary. The applicantcouldnot have any grievanceas he had been appointedto the grade of ChiefSecretaryas the post of the DirectorGeneral,AdministrativeAcademy is equivalentto the post of ChiefSecretary. It was put forth that the only eligibilitycriteriawhich existedfor appointmentto the post of ChiefSecretarywas 30 years of ser^i^icein the precedinggrade and, therefore,the inter-seseniorityin the batch is fotally inconsequential.The SDR was not relevantat the stage of sendingthe proposal. to the Government of India for concurrenceofvacancy as the SDR is dynamic in nature and keeps on fluctuating due to various reasons such as retirement, ti-ansfer,deputation,etc. At no time, the numberof ex-cadreposts exceededthe combinedsti-engthof SDR and CentralDeputationReserve (CDR). That apart, on 3.9.2008,two officerswere workingin the grade of Chief Secretaryand one cadre post of DirectorGeneral,UttarakhandAdministrativeAcademy and one ex-cadrepostwere vacant. After concurrencewas receivedfor two vacancieson

19.9,2008 from the Government of India, Indu Kumar Pandey, who was appointedas ChiefSecretary,soughtvoluntaryretirementfrom IAS which was sanctionedon 2.12.2009. N.S. Napalchyal,who was previouslyposted on the ex-cadre post of AdditionalChief Secretary, succeeded him as Chief Secretary IVPfCJ 3457/20U connectedmatters P"S<i ^7of 60 resultingin one more vacancy in the ex-cadre post and, therefore,there was nothingillegalin the actionof the ScreeningCommitteetakingcognizanceof the availabilityof three vacancies as the same is provided under the Promotion Guidelines, 2000.

¶20With respectto creationof 18 additionalposts for 2years, pendingcadre reviewdue in 2009, exercisingthe powersunder the secondprovisoto Rule 4(2) of the 1954 Rules, it was urged that the State Governmentwas fully justifiedin creatingthese posts as the developmentactivitiesof the State had multiplied considerablyafter the lastcadre reviewin the year 2004 and therewas pressmg need for officers to execute these programmes. As per paragraph5.2 of the clarificationissued by the DOP&T by letter No. 11033/1/98-AIS(II)dated

23.4.1998,the posts which were createdunder the above-mentionedcadre,rule were to be countedas temporaryadditionto the cadrepostsand they couldnot be countedagainstSDR which,accordingto the respondent,was utilizedonly to the extentof9 well within the prescribedlimitof13 on the date ofpromotionto the gradeof ChiefSecretary,i.e.,on 31.5.2010. Therefore,the respondent-Stateof Uttarakhandwas withinits rightto promote3 personsfrom the panelpreparefl by the ScreeningCommitteeto the apex gradeof ChiefSecretary. As regardsthe thirdvacancycreateddue to retirementof N.S. Napalchyal,itwas reiteratedthat IVffC)3457/2011&connectedmailers P"S<^ ) / there was no need to write to the Government of India for concurrence as the later approvalgivenby the Governmentof India,for all practicalpurposes,did tantamountto deemedapprovalunderRule3(2)(ii)&(iii) of the IAS (Pay) Rules, 2007. It was contendedthat as the applicanthad alreadybeen promotedto the grade of Chief Secretary,his contentionthat he would have better chances of promotionto the saidposthad therebeenonlytwo contendersfor thatinsteadof four, is not tenable because chance of promotionis not a right. Reliance was placedon the decisionsrenderedin The StateofMysorev. G.N. Piirohit&Ors,

(1967) SLR 753; RamchandraShankarDeodhar&Ors. v. State ofMaharashtra &Ors, (1974)1see 3; MohmmadShujatAli&Ors, v. UOI &Ors.,(1975)3SCC 76; and BakshishSinghv. UOI &Ors.,1985 (Supp.)SCC116.

¶21The fifth respondent-SubhashKumar emphasizingthe words "at that levelof pay" used in the Rule 9(7) of the 2007Rules contendedthat-^twoex-cadre postscouldbe createdwithoLitthe permissionof the CentralGovernmentas two cadrepostsexistedat the time ofcreation.

¶22The seventh respondent-N.S. Napalchayal,placing reliance on K.A. Nagmani v. Indian Airlines & Ors., (2009) 5 SCC 515, contended that the applicanthad no right to challengethe creationof two ex-cadreposts by order dated 19.9.2008 because he participated in the selection and chose not to If/YQ3457/2011&connectedmailers P'^'S^ challengethe procedurebeforethe meetingof the ScreeningCommittee. Evenif selectionwas at all to be set aside,the selectionof the applicant would also be set aside. With regard to the applicant'sclaim of violationof paragraph24 of the Guidelines of 2000, it was argued that the guidelines were only directory in natureand did not createany legalrightfor their enforcement. That apart,SDR and CDR had to be jointlyseenand the status.ofthe SDR was, therefore,relevant at the time of promotion. PlacingrelianceuponCitizensfor Justiceand Peacev. Stateof Gujarat&Ors., (2009)11 SC.C 213, itwas assertedthatthe appointment to the post of Chief Secretarybeingasensitivepost, it is the prerogativeof the State Governmentto choose an eligiblecandidateand no one has a right to be posted in a particular post.

¶23The fundamentalissuesthatemergedfor considerationbeforethe tribunal in the backdropof the 1954Rules,IAS (Fixationof CadreStrength)Regulations, 1955, clarificatoryletter dated 13.06.2000of the DOP&T, para 24 of the general guidelinesfor promotionissued by the Centi-alGovernmenton 28.3.2000,and the 2007 Rules were whether the StateGovernmentcouldcreateadditionalposts and further, whether the promotionto the apex grade of Chief Secretaryhad been done in a legallyjustifiedmamierwhentherewas no priorconcurrenceby the Central Government. irPfCJ 3457/2011&connectedmatters

24.. The tribunal opined that considerationfor promotionis a legal right and the issue has not to be looked at from the viewpoint that whether the applicant once promoted to the apex gi-ade could have any right to the post of Chief Secretary. The ti'ibunalheld that at the time of selectionfor the post of Chief Secretary,if the ruleshad beenscrupulouslyobserved,the applicantwouldhave been tlie only person to be promoted as there was a singularvacancy in the gradeof ChiefSecretaryon 30.9.2008. It has alsobeenopinedby the tiib.unalthat the creationof two ex-cadreposts by the State Governmentwas in violationof the rules and even if the considerationwas for two vacancies,as approved by the Centi-al Government, Subhash Kumar, who was appointed as thte Chief Secretary,couldnot havebeenselectedand onlySunilKumarMuttoo,the fourth respondentin OA No.2537/2010,could have made it to the apex'gradeand the scenario would havp been quite different.

¶25The ti-ibunal repelled the stand that as the applicanthas already been promotedto the gradeof ChiefSecretary,he couldnothave any grievanceon the foundationthat he has been deprivedof the right to be appointed to the post of ChiefSecretaryon the gi-oundthat promotionsmade to the apex gi-ade were in violation of the 2007 Rules, The tribunal opined that a plain reading of Rule 3(2)(ii)of the 2007 Rules would make it amply clear that the State Cadre has to WP(C) 3457/2011c?' connectedmatters P'^g'^ of60 seek prior concurrenceof the Centi-alGovernmenton the number of available vacancies in each grade and the said Rule is absolutely unambiguous.The tribunal further made observations as to the intent behind the Rule and said that the same is clear from the letter dated 28.03>2007of the DOP&T.It stated that the letterprovidesin clear terms thatit shallbe mandatoryupon the State Cadre to seek prior concurrenceof the CentralGovernmenton the number of available vacanciesin eachgrade. Thereafter,the tribunalproceededto stateas follows: "This letter, in essence, capturesthe illegahtycommittedby the Respondentsin notseekingpriorconcurrencefor the third vacancy,only on the groundthat it was an obviousvacancy. There is no such exemptionin the aforesaidrule that if in the opinionof the StateGovermnentavacancywas obvious,there was no need to seek prior concurrence. The reading of the Rule would also show that there is no provision for ex post facto approval. There is no merit in the contentionraised on behalf of the Respondentsthat by order dated 16.10.2010the Centi-alGovernmentgave its deemedapprovalfor creationof postsunderRule 3(2)(iii)of the IAS (Pay) Rules,2007,because . the deemedpermissionunderthe saidrule is consideredto be givenif the proposalof the StateCadreis not concurredin by the Central Government within one month. It is not deemed permission,if grantedex-postfacto. The CentralGovernment has violated its own rules by giving ex postfacto approval to the proposal of the State Govermnent.

¶26The tribuiial further stated that since prior concurrence is necessary for availablevacanciesfor promotion,itwouldstandto reasonthatconsiderationof SDR would be relevant only at the time when the approval for the available ]¥P(C)3457/2011cf-connectedmatters • vacanciesis given.The tribunalopinedthatRule 8(2) of the 1954Rules and Rule 9(7) of the 2007 Rules have to be read harmoniously.The tribimal thereafter observed as follows: "The interpretation that it would mean that, the State DeputationReserve has to be consideredfor each grade is misconceived. The Sub-clause "at that level of pay" is only to signify that it is referring to earlier sub-clause"other than cadre posts which carry pay of Rs.26,000.. Nothing more than this has to be read in this Rule. By no stretchofthe imaginationthis rule can be interpretedto mean-, that the status of the State Deputation Reserve has to be seen for each grade. Indubitably,ithas to be seenfor all the cadre posts together. It is entirelythe choice of the State Cadre to -createex-cadreposts in any of the grades. But put together these cannot exceed the State Deputation Reserve. If it were so, the StateDeputationReservewouldhavebeenworkedout for each of the posts. The onlyqualificationis thatinthe apex scaleonlythatnumberof ex-cadrepostscanbe created,which existin theSeniorDuty Posts,thatis, cadreposts. Itwouldbe , wrong to interpretit to meanthatregardlessof the utilization of SDR, as many ex-cadre posts can be created in the apex grade as there are cadre posts (two posts in the instantcase). When it was clearlymentionedin the letter dated 03.09.2008 of the State Government that the utilisation of SDR was 17, beyond the prescribed13, the Central Governmentwas in errorinapprovingthe availablevacanciesas two."

¶27The tiibunalacceptedthe stand of the applicantthat on 03.09.2008,only one vacancy in the cadre post was availableand that alone should have been consideredfor fillingup, The tribunalstatedthat it would be erroneousto hold that there has been no infractionof any rule as all the rules and regulationsand WP(C) 3457/2011&connectedmatters • page 23 of60 the instructions issued under them have to be read together. A combined reading of the rules and instructions would make it abimdantly Clear that the SDR has to be consideredat the time of givingapproval for the availablevacanciesand not at the time of making promotions;and that prior concurrenceof the Central Governmentwould be necessarybeforethe meeting of the ScreeningCommittee. The argumentthat the SDR and the CDR have to be jointly consideredwas misconceived. The tribmial opined that a careful reading of the Office Memorandum dated 27.01.2005, cited by the respondents therein, does not supportthe contentionthatfor creationof ex-cadreposts,SDR and CDR have to be jointlyconsidered.The OM advertedto, only stipulatesthat the number of personson ex-cadrepostsandon centraldeputationshallnot exceedSDR +CRD and, therefore,the number of persons on centraldeputationwould not exceed the CDR.

¶28After so stating,the tribxmalreferredto the secondprovisoof Rule 4(2) of the 1954Ruleswhichprovidesthatthe StateGovernmentconcernedmay aidd for a period not exceeding two years and with the approval of the Central. . Governmentfor a further period not exceedingthree years to a State or Joint Cadre, one or most posts carrying duties or responsibilitiesof a like nature to !VP(C)3457/2011c?- connectedmatters . ^0 cadre-post. The ti'ibunalreferredto paragraph5.2 of the clarificationissuedby the DOP&Tand thereafter proceeded to express thus; "The posts created by the State Governmentare such posts, which already exist in the cadre like Principal Secretary or Additional Chief Secretary. These posts, as would be clear from the highlightedportionof the clarificationof 23.04.1998 would be, counted in State Deputation Reserve., If posts created had been of the nature carrying duties and responsibilitiesof a like nature to cadre posts, such as, for example.Officeron SpecialDuty, these would be countedas temporaryadditionto cadreposts. In fact the secondproviso to Rule 4(2) ibid only sanctionscreationof such posts,which are "of a like nature to cadre posts" and not the creation of posts already existing in the cadre. Therefore, temporary creation of the posts of PrincipalSecretary and Additional Secretaryunder second proviso to Rule 4(2) ibid would not count in the cadre posts. Moreover,this stand is in the teeth-of the ratio laid down by the HonourableSupreme Court in E Royappa,whereinit has been held in paragraph18 that the secondprovisoto the Rule 4 (2) of the IAS (Cadre)Rules,1954 does not confer any power on the State Government to alter the strengthand compositionof the cadre. It has been clearly held that the postswhichare addedunder the secondproviso, do not increasethe strength of the Cadre. In paragraph 81 ibid it has been held that only the Central Government can alter the sti-engthof the cadre in its cadre review. The State Government camiot make any permanent addition to the cadre sti'ength. Moreover, we have already held that the status ofStateDeputationReservehas to be consideredat the time ofgrantingof approvalfor availablevacanciesand not at the time of promotion. The argument advanced was that at the time of promotion the utilisation of State Deputation Reserve was 9 because of the creation of 17 additional posts. The argumentis neithercorrectnor materialfor consideration in the circumstances of tlus case." WPlQ 3457/2011&conneciedmailers P"S<^

¶29After so holding,it has beeil further observedby the tribunalthat in the obtainingfactualmati'ix,it was possibleon the part of the State Governmentto go back to the Central Governmentand seek fresh prior concurrenceas the promotionswere made only -in May, 2010. It repelled the argument that in praesenti,it would be an exercise in futility to ask the State Governmentto reconsider the issue as all concerned have been 'extended the benefit of promotionbecausethe said promotionshad beenmade in totalcontraventionof the prescribedrules and further had the promotionbeen made in accordance with the rules,the scenariofor the selectionto the post of ChiefSecretarywould havebeendifferent. Beingof thisview,itproceededto directas follows; "38. On the basis of the above consideration, the impugned orders dated

19.9.2008 and

13.10.2010 and all the consequentialpromotionsmade by the State Goverranentare quashed and set aside, includingthat of the Applicant. The State Govermnent is directed to make fresh selections after following due procedureas per the law within two months from the receipt of a certifiedcopy of this order as per the existing position of the existing posts and SDR et cetera. However, the present arrangement may continue in the interest of administration for two months till fresh selection is made."

¶30For the sake of convenience, we think it apposite to enumerate the conclusions arrived at by the tribunal in seriatim: WP(C) 3457/2011ft connectedmatters

(a) The stand of the State of Uttarakhandthat the vacanciesin the SDR and the CDR are to be jointlycomputedand the status of the SDR is relevant onlyatthe time of effectingpromotionis unacceptable.

(b) The SDR would be relevantonly at the time when the approvalfor the availablevacanciesis given,and underRule 8(2) of the 1954Rules,acadre officer is not entitled to hold an ex-cadre post in excess of the State Deputation Reserve.

(c) The ex-cadrepostsin the apex gradeshallnot exceedthe numberof cadre posts at that leveL

(d) As it was clearly mentioned in the letter dated 3.9.2008 of the State Governmentthat the utilizationof SDR was 17 beyond the prescribed number of 13, the Central Government had committed an error in approvingthe availablevacanciesas 2whereason 3.9.2008,only1vacancy in the cadre post was available.

(e) The secondprovisoto Rule 4(2) of the 1954Rulesread withparagraph5.2 of the clarificationissued by the DOP&T categoricallyconveys that the StateGovernmentcannotcreateposts alreadyexistingin thecadrebut can i'VP(C)3457/2011cC' connectedmatters P"S'^27 of 60 only create posts which are "of a like nature to cadre post" and such creationof postswouldnotcounttowardsthe postsinthe cadre.

(f) If Rule 4(2) of the 1954 Rules and Rule 3and Rule 9of the 2007 Rules are conjointlyread, it would clearlyconveythatthe StateGovernmenthas no authorityto alterthe strengthand compositionof the cadre.

(g) The concurrencegiven by the CentralGovernmentinitiallyon 12.9.2008 was incorrectas concurrencecould have been given only in respect of 1 post.

(h) The post facto concurrencegiven on 13.10.2010would not validate the promotions as obtaining of prior concurrenceunder the 2007 Rules is mandatory.

(i) The stand of the State Governmentand other respondentsthat issue of a direction for fresh consideration would be an exercise in futility is unacceptableas the promotionshave been given in contraventionof the prescribedRules and Regulations.

¶31We have heard Mr,Soli J. Sorabjee, learned senior counsel along;with Ms.Rachana Srivastava, learned counsel for the petitioner in WP(C) Nos,3476/2011 and 3477/2011, Mr.Dushyant Dave and Mr.Nidesh Gujpta, I'FPfC)3457/2011 c?- connectedmailers learned seiiior counsel along with Mr.Sumit Bansal, learned counsel for the petitioner in WP(C) Nos.3485/2011and 3486/2011, Mr.Mata, learned senior counsel along with Mr.Apoorv Tiwari, learned counsel for the petitionerin WP(C) No.3457/2011and for the respondentno.l in WP(C) Nos.3476/2011, 3477/2011,3485/2011and 3486/2011and Mr.A.S.Chandhiok,learnedASG along with Mr.SanjeevSachdeva,learnedcounselfor the respondent-Unionof Indiain all the writpetitions. Be itnoted,we haveheardall the contestingparties.

¶32Mr. Mata, learned senior counsel appearingfor Mr. Ajay Kumar Joshi, criticizingthe order of the tribunal,contendedthat the StateGovernmentcould nothave promotedthe respondentswhenthe postswerenot sanctionedin terms of Rule 3(2)(ii)arid (iii) of the 2007 Rules as the saidRule is mandatoryin nature and the posts in the grade caii only be sanctioned when there is prior concurrenceby the Central Government. It is urged by him that there is a distinctionbetweenprior concurrenceand post facto conciirrenceand the post facto concurrence would never cure the defect since as per the postulates enshrinedin the Rule, prior concurrenceis mandatoryand to that extent, the conclusionarrivedat by the ti'ibunalis absolutelycorrectand justifiedand does not requireinterferenceby the Court. The learnedcounselwouldfurthersubmit that the tribunal has failed to appreciatethe case of the petitioner inasmuchas WP(C) 3457/2011&connectedmatters page 29 oj 60 the stand of the petitionerwas that he was the only candidatewho could have beenconsideredregardbeinghad to his seniorityand also takingnote of the fact that there was sanctionfor the postby the Centi^alGovernment but the tribunal has failed to appreciatethe same in properperspectiveand expressedthe view that the total selectionprocessis erroneousand therebyproceededto quash the order of promotionpassedin favour of the petitionerand issueda directionto proceedafresh. To butti-essthe said submission,the learnedseniorcounselhas pressedinto servicethe 2007 Rules and drawninspirationfrom the decisionin AshokKumar'Das &Ors v. UniversityofBurdwan&Ors., (2010)3SCC 616.

¶33It is contendedby Mr. Soli J. Sprabjee,learnedseniorcounselfor the State of Uttarakhand,that the issue of gi-antof approvalis an issue which is between two governments/namely,the State GovermTientand the Union of hidia and does not confer any cause of action on a member of the service. The learned senior counsel submitted that the fixation of cadre strength is within the exclusive domain of the Central Governmentand the State Governmentand when there is a post-facto approval, this should be regarded as a matter pertainingto the adjustinentof the cadre strengthand hence, the tiibunalhas totally erred in lancetting the same. His further submission is that the respondentNo.l, Ajay Kumar Joshi, the applicant before the tribunal, was ]'VP(C)3457/2011&connectedmatters P"Ss30 of 60 promotedto the apex scale, the ChiefSecretarygrade and, therefore,he had no concernhow the vacancieswere determinedand concurrencewas given. The ScreeningCommitteetook cognizanceof the vacancies on an additionalpost created temporarilyunder second proviso to Rule 4(2) of the 1954 Rules as a consequenceof whichthe rightof the saidapplicantwas neverinfringed.

¶34Mr. Chandhiok,learnedAdditionalSolicitorGeneralfor Union of India, urged that the controversy,if any, was betweenthe State Governmentand the CentralGovernmentand when the CentralGovernmenthas grantedpost-facto approval,the controversy,if any, shouldhave been allowedto put to rest. It is his further submissionthat in a matter of cadre adjustment,the incumbents cannothave any say and the ti-ibunalhas falleninto gi-aveerrorby entertaining the same in exerciseof the power ofjudicialreview.

¶35Mr.D.ushyantDave, learnedseniorcounselappearingfor the petitionerin WP (C) Nos. 3485/2011and 3486/2011,has submittedthatit is the prerogativeof the State Governmentto appointthe eligiblepersonas Chief Secretaryand no incumbenthas a right to claim appointmentor promotionto a particularpost. The learnedseniorcounselwould submitthat the tribunalhas falleninto grave error by laying unnecessaryemphasison the "chancesof promotion"vis-a-vis the post in question. It is canvassedby him that the tribunal should have IfPfCJ307/2011 connectedmailers acceptedthe stand of the respondentthat once the applicar\tbeforethe tribunal had been brought in the gi'ade of ChiefSecretary,the controversyis put to rest and it should not have adverted to the facet of claim of the applicant that his considerationfor the post of Chief Secretary has been curtailed by creating furtherpostswithoutpriorconcurrenceof the CentralGovernment.

¶36To appreciatethe controversyin properperspective,itis necessaryto refer to thevariousrules,regulationsand guidelinesand dwelluponthe controversy.

¶37Rule 4 of the 1954 Rules dealswithsti-engthof cadre. The said rule reads as follows; -"4. Strength of Cadres -

(1) The sti-ength and compositionof each of the cadres constituted under Rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Governments in this behalf and until suchregulationsare made,shallbe as in force immediatelybeforethecommencementoftheserules.

(2) The Centi-alGovernmentshall,ordinarilyatthe interval of every five years, re-examine the strength and compositionof each such cadreinconsultationwith the State Government or the State Governments concerned and may makesuchalterationsthereinas it deemsfit: Provided that nothine in this sub-rule shall be deemed to affectthe power of the CentralGovernmentto alter the strength and compositionof anv cadre at any other time: ir/YQ 3457/201! &connectedmailers • Provided further that State Government concerned may-add for a period not exceeding two years (and with the approval of the Central Govermnent for a further period not exceeding three years) to a State or joint. Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts." Emphasis supplied]

¶38Rule 7 deals with posting. It reads as follows: - •"1. Posting - All appointments to cadre posts shall be made-a. In the case of a State Cadre, by the State Government; and b. In the case of a Joint Cadre, by the State Government concerned."

¶39Rule 8 provides for cadre and ex-cadreposts to be filled by cadre officers. It is as follows; -"8, Cadre and ex-cadre posts to be filled by cadre officers-

(1) Save as otherwise provided in these rules, every cadre posts shall be filled by a cadre officer.

(2) A cadre officer shall not hold an ex-cadre post in excess of the riumber specified for the concerned State under Item 5 (now item 3) of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955.

(3) The State Government may, with the prior approval of the Central Government, appointed a cadre officer to hold ah ex-cadre post in excess of number specified for the concerned State in item 5 (now item 31 of the Schedule to the Indian \¥P(C) 3457/20!I d connected mailers page 33 of60 Administrative Service (Fixation of Cadre Sti-ength) Regulations,1955 and, for so long as the approval of the Central Government remains in force, the said ex-cadre post shall be deemed to be addition to the number specified in item 5 fnow item 3) of the said Schedule." [Emphasis supplied]

¶40At this juncture,we may referto sub-rule(2) of Rule3of the 2007Rules. It is as follows:- "3. Scale of pay and appointment in these grades.

(1) xxx xxx xxx \ ' (2)(i) Appointment to the Selection Grade and to posts carrying pay above this grade in the Indian Administrative Service shall be made by selection on merit, as per criteria that may be prescribed by the Central Government with due regard to seniority. Provided that a member of the Service shall be appointed to the Super Time Scale only after he has• completedphase IV mandatoryMid CareerTrainingas prescribed.

(ii) Appointmentof a memberof the Serviceinthe scalesof • Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose,it shallbemandatorvupon theStateCadresor the Joint Cadre Authorities, as the case mp be, to seek prior concurrenceof the Central Goverrimenton the number of available vacancies in each grade. The Central Government shall accord such concurrence within a period of thirty davs from the date of receipt of such references and if the Central Government does not accord concurrence within a period of said thirtv days, WP(C) 3457/2011&connectedmailers P"S'^ the concurrence on availability of vacancies shall be deemed to have been accorded. The position emanating as referred to this clause shall be placed before the ScreeningCommitteeat the time it meets to consider promotion in these grades.

(iv) Amemberof the Serviceshallbe entitledto drawpay in the scales of Selection Grade and above only on appointment to thesegrades." [Underlining by usj 41; The relevant part of Rule 9, which deals with pay of members of the service appointed to posts not included in Schedule II, is enumeratedherein below; - "9. Pay of membersof the Serviceappointedto posts and included in Schedule 11.

(1) No member of the Serviceshallbe appointedto a post other than a post specified in Schedule II, unless the State Government concerned in respect of posts mider its conti'ol or the Central Government in respect of posts under its control, as the case may be, make a declarationthat the said post is equivalent in status and responsibilityto a postspecifiedinthe saidSchedule.

(2) XXX XXX XXX

(3) XXX XXX XXX

(4) Notwithstandmganything contained in this rule, the State Government concerned in respect of any posts under its control, or the Central Government in respect of any posts imder its control', may, for sufficient reasons to be recorded in writing, where equation is not possible,appointany memberof the Serviceto any such post withoutmakinga declarationthat the said post is I'VPfC) 3457/2011&connectedmatters ^1 equivalent in status and responsibility of a post specified in Schedule II.

(5) & (6) XXX XXX XXX

(7) At no time the number of members of the Service appointed to hold posts,otherthan cadre posts referred to in sub-rule CD and sub-rule (4:), which carry pay of Rs.26,000/- per mensem and which are reckoned againstthe State DeputationReserve,shall exceptwith the prior approval of the Central Govermxient,exceed the number of cadre posts at that level of pay in a State cadre or, as the case may be, in a Toint cadre." 'Emphasis supplied

¶42On a careful scrutiny of the factual scenario in question and' the' submissionsurged, the coreissuesthat emanatefor considerationare.-

(i) What is the exact role of the State Government and the Centi-al Government in the fixation of cadre strength?

(ii) ^Whether the post facto concurrencewould cure the defect despite the languageemployedin Rule 3(2)(ii)and (iii) ofthe 2007Rules?

(iii) Whether the tribunal is justifiedin quashing the promotions of all the incumbentson the ground that there has been violationof the Rules and Regulations? I'VP(C) 3457/20U cC-connected matters

(iv) Can aneligiblepersonputforthaclaimfor beingpostedas ChiefSecretary on the gromid that when the post was going to be filled up, he was the only candidate ehgiblefor consideration?

¶43First,we shall advert to the issue with regard to the existenceof cadre and ex-cadreposts in the State of Uttarakhandas determinedby the ti-ibunal. As is manifest,placingrelianceon Rule 4(2) of the 1954 Rules read with Rule 8of the said Rules, the tribunalhas opined that the determinationof the cadre post by the State is unacceptableand further the ex-cadrepost had exceededits limit. While dealingwith the role of the CentralGovernmentin creationof post, theii LordshipsinE.P. Roxjappa(supra)haveruledthus: [ "17. It was contended that neither the post of Deputy Chairman, Planning Commissionnor the post of Officer on SpecialDuty was a Cadre post withinthe meaningof Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954. The Additional Solicitor-General as well as the Advocate-General of the State did not contend that either of the posts was a Cadre post within the meaning of the Indian Administi-ative Service (Cadre) Rules. The strength and compositionof the Cadre as contemplated by Rule 4 of the Indian Administrative Service (Cadre) Rules is to be determined by the Centi-al Government in consultation with the State Government. The relevantprovisionis sub-rule(2) of Rule 4. It states that the Centi-al 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 or the State Govermnents concerned and may make such alternations as it deems fit. There are two provisos in the sub-rule. The first • WP(C) 3457/2011Aconnectedmatters P"Se 37 of60 proviso states that nothing shall be deemed to affect the power of the Central Governmentto alter the strength and composition of the Cadre at any other time. The second provisostatesthat theStateGovernmentmayadd for a period not exceeding one year and with the approval of Central Government for a fmlher period not exceeding two years, to a State or joint Cadre one or more posts carrying duties and responsibilitiesof a like nature of Cadre posts. It therefore, follows that the strength and composition of the Cadre shall be determined by regulations made by the Central Government in consultation with the State Government. The State Government alone cannot alter the strength and composition of the Cadre.

¶18The aforementioned second proviso to Rule 4(2) of the Cadre Rules does not confer any power on the State Government to .alter the strength and composition of the Cadre. Ifsuch power were coiTferredon the Stateexamination ofthe strengthand compositionat the intervalof every three years by the Central Governmentin consultationwith the State Govermnent would be nullified. The meaning of the second proviso to Rule 4:(2) is that the State Government mav add for a period mentioned there to the Cadre one or more posts carryingduties and responsibilitiesof the like nature of a Cadre post. The posts so added do not become Cadre posts. These temporary posts do not increase the strength of the Cadre. The addition of the post of Deputv Chairman, PlamiingCommissioiiorOfficeronSpecialDutyto theIndian Administrative Service Cadre of Tamil Nadu State is not permissiblebecausethat wouldresultin alteringthe strength and composition of the Cadre. The State has no such power within the second proviso to Rule 4(2) ofthe Cadre Rules." 'Emphasis added 44, In this context,we may refer with profit to the decisionin K. Prasad & Ors. V. Union ofIndia &Ors., AIR 1988 SC 535 wherein,while dealingwith the l'VP(C)3457/2011&connectedmailers page38 of60 sti-ength and composition of the cadre under the IFS (Cadre) Rules, 1966, especiallyRule 4 of the said Rules, their Lordshipsreferredto the decisionin E,P. Royappa(supra)and expressedtheview as follows; "22. ...The argument is that it is for the Centi-alGovernment to fix the strengthand compositionofthe cadresand that this power can be exercisedby it at any time. The firstprovisoto rule 4(2) of the Cadre Rules, it is said, places this beyond all doubt. As againstthis, it is contendedby the direct recruits that the provisoreliedupon is only a provisoto rule 4(2) and does not extendto rule 4(1). It is urged that it has application only to the power of the Central Government to make ; alterations to the cadre sti'ength in between the "three-year reviewcontemplatedbyrule 4(2). ShriKakkar,in this context, referred us to the followingobservationsin Royappa v. State ofTamilNadu, (1974)2 SCR 348 at p.379 : (AIR1974SC 555 at. p.578); "We now tm-n to the first ground of challenge which allegescontraventionof the secondprovisoto R.4(2) of the Indian Administrative Service (Cadre) Rules, 1954 and R.9, sub-r. (1) of the Indian Administrative Service

(Pay) Rules,1954. So far as the secondprovisoto R.4(2) of the Indian Administrative Service (Cadre) Rules, 1954 •is concerned, we do not think it has any apphcation. 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 strengthand compositionof the cadre can be determined only by the Central Government under R.4(l) and the Cental Government alone can review it triemiially or at any other hitermediate time under R.4(2)."

¶23We do not think that such a narrow interpretation of the provisois warranted. As we see it, the provisoonly outlines WP(C) 3-^57/2011 connectedmatters ^5" the general principle that, whoever has the power to do a particularthinghas also the powerto exerciseit from time to time, if need be : (vide, S.14 of the General Clauses Act, 1897). It had to be specificallyput in becauseof the language of the mainpart of sub-rule(2) providingfor a tiiennialreviewlestit should be construed as a restriction on the general power otherwise available. We, therefore, agree with the contention of the initial recruits that the Centi-al Government has the power to alter the strengthand compositionof the cadres at any time. We are, however, still of the view that the contentionurged on behalf of the initial recruits cannot be acceptedfor a differentreason. If the terms of the relevant rules are scrutinised, it will be seen that the stTength and compositionof the cadre has to be determinedby regulations and that these regulations have to be made by the Central Government in consultation with the State Governmeiit. It is a well settled principlethat, if a statutory power has to be exercisedin a particularmamier, any exerciseof that power has to complywith thatprocedure. It follows,therefore,that ifthe iiiitialcompositioncanbe only drawnup in consultation with the State Government and by regulations, it will not be permissiblefor the CentralGovernmentto modifyor alter the same save in the same manner. In fact also, it has been broughtto ournotice,therehavebeensubsequentincreasesin the authorisedsti-engthof almostall State cadres and this has been effected by an appropriate amendment to the Regulations.It is not the case of the Governmentthat before the second and third selections were made, either the State Government was consulted or the regulation^ were amended for increasing the sti-ength. Nor is it even their, case that there was any specific order by the CentralGovernmentchanging the strengthand compositionofany cadre. We are, therefore, of opinionthatit is notpossibleto acceptthe contentionof the initial recruits that the mere appointment of an excessnumber of officers should be ti'eated as an automatic expansion of the cadre sti-ength and composition in exercise of the power available under Rule Ml)." [Underliriing is ours] IVP(C)3457/2011&connecledmatters P'^S^ Be it noted, in the said case, a contentionwas raised that the Regulations and the Rules were not mandatoryas they do not outlinethe consequencesthat will follow on violationof their requirements. Repellingthe said submission, theirLordshipsproceededto hold as follows: ''Ttis difficultto accept,in this context,the submissionthatthe ppidre strength could be varied without amending the Regulations and schedule or 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 StrengthRegulation. So far as the latter is concerned, this Courtheld, in Kapur v. Union of hidia, (1975) 2 Serv LR 531 (Punj & Har).thatit is open to a. State Governmentto overutilise the deputation reserve in an All India Service without consulting the Central Government. Equally, we think, it is not open to the Central Goverm-nentto alter the strengthand compositionof the Cadrewithoutconsultingthe State Government concerned. " [Emphasissupplied

¶45We have referredto the aforesaiddecisionin extensoas we find thatwhat has been laid down thereinis that the procedureprescribedunder the Rules are to be followed. It is not open to the State Government to overutilize the deputation reserve in All India Service without consulting the Centi-al Governmentand similarlythe CentralGoverranentis notempoweredto alterthe l'VP(C)3457/2011&connectedmailers P"S<i strengthand compositionofthe cadrewithoutconsultingthe State Governmer\t concerned.

¶46In this context we mayreferwith profitto a passagefrom Harjeet Singhv. Union of India & Ors" (1980) 3 SCC 205 wherein their Lordships,,while interpretingRule 9 of the IPS (Cadre) Rules, 1954 and IPS (Fixationof Cadre Sti-ength)Regulations,1955,have opinedthus: "On the other hand we think that the Fixation of Cadre StrengthRegulationsmade 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 servicerenderedby a non-cadreofficerin a cadre post on the . mere ground of breach of the Fixation of Cadre Strength Regulations,when there has beenstrictcompliancewith 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 convei-iience and better relationship. Excessive utihsation of 'Deputationor Centr'alReserve'is a matterfor adjustmentand conti-oversv between the Central and the State Governments and is of no concern to anv member of the Service. For . exampleno cadreofficerwho is askedtofill a deputationpost 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 rightsin the membersof the Services.AmongotherRules,for instance.Rule 9(2) ofthe RecruitmentRules stipulatesthat the total number of persons recruited by promotion shall not at any time exceed 25% of the posts shownagainstitem Nos. 1 and 2 of the cadre in the schedule to the Fixation of Cadre StrengthRegulations.Now, if at a poii-\t of time this limit is IVF(C)3457/2011&connecledmailers 42 of60 exceeded, direct recruits may have a just cause for complaint and it may perhaps be held that to the extent of the excessthe appointmentsby promotionare invalid and confer no rights ofseniorityover directrecruits.But, as we said, the Fixationof Sti-ength Regulation coiifer no rights on members of the Service and a mere breach of the Regulation furnishes no cause of action to any member of the service on the ground that, his seniority is affected in some round about way." [Emphasis supplied] 47, Atthis stage,we may refer to the decisionin K. Rajendran& Ors. v. State ofTamilNadu &Ors., AIR 1982 SC 1107. We are absolutelyconsciousthat the said decision was rendered in a different context but their Lordships have delved into the concept of Governmental administration and the necessities of alterationsin the staffingpattern and have opinedthat it is within the exclusive domain of the executive,of course subjectto judicialreview within permissible parameters.-

¶48The scope of judicial review as far as fixation of cadre strength,is concernedrests on the principlewhethertherehad beenproperdetermination,of cadre strengthas per the rules. On an x-ray of the anatomy of the Rules,t| is vivid that the determination of the strength of the cadre has to be done by both the Governments in consultation. The stand of the State is .that the number of ex-cadre posts at no pointof time exceededthe.combinedsti-engthof the SDR and CDR posts. Pendingcadre review in 2009 in exercise of Rule 4(2) of the 1954 ]VP(C) 3457/2011 cf' connected matters Rules,18 additional pdsts for two years were created. It was also the stand that two posts existed on 3.9.2008 as two officers were working, one as the Chief Secretary and the other as Director General, Uttarakhand Administi-ative Academyand boththe postswere in the grade of ChiefSecretary. One ex-cadre postwas.vacantand, hence,concurrencewas soughtfor two vacanciesand after, concurrence,two posts resulted. The tribunalhas opined that when the State Government had communicated that the utilization of SDR was 17 beyond the prescribedlimit of 13, the Central Governmentwas in error in approvingthe available vacancies as the vacancy position was one.

¶49In this context, we may refer with profit to the commuiiicationof the competentauthorityof the CentralGoveriimenton 19.9.2008. Itreadsas follows: "I am directed to refer to your letter Nos.2255/Thirty/-I-2008- • 12(19)/2005 dated 3.9.2008 on the abovementionedsubject and to convey the coi'icurrenceof this Department to the availabilityof 2 vacanciesin ASTS-II. Rs.26,000/-of IAS in Uttarakhaiidas per the provisionsof Rule 3(2)(ii)&(iii)of the lAS(Pay) Rules, 2007."

¶50After the said concurrence was given, as the factual matrix reveals, the StateGovernment,by order dated31.5.2010,promotedthree officersto the Chief Secretarygrade agairistthree vacancies. Because of the said position,the State IVP(C) 3457/2011 coimecledmatters Government, by letter dated 8.10.2010,wrote to the Central GoveriTmentstating thus: "2. Pursuant to concurrence given by the Government of India, a meeting of Screening Committee could be held on the 19th February, 2010. In the meeting due to retirement of the Chief Secretary Mr. Indu Kumar Pande on 2nd December, 2009, one more vacancy in Chief Secretary grade, had occurred. Therefore, the Screening Committee took the cognizanceof three obviousvacanciesin the Chief Secretary grade(oneagainstcadrepostsand two againstex-cadreposts) and furnished its recommendations accordingly. Taking into consider the recommendations made by the Screening Committee, the State Government vide order dated 31st May, 2010 promoted three officers to the Chief Secretary grade againstthreeobviousvacanciesavailableinthis gi-ade.

¶3Since the meeting of ScreeningCommittee was held in . pursuance of the concurrencegiven by the Governmentof India's letter dated 'l9th September, 2008 and the State Government had issued promotion orders accordingly, therefore, the Government of India has also been apprised of the aforesaid facts vide State Governments letter No.807, dated 31st May, 2010, a copy of which is being enclosed herewith. By this letter, the Government of India's approval to the actions taken by the State Government in this matter was also sought (Enclosure-Ill). The statement showing grade-wisesanctionedstrengthof SDP and SDR and officers in position against the sanctioned strength as on 31st May, 2010 is also enclosed with this letter of 31st May, 2010.

¶4Here, it is also worthwhile to mention that by making the said promotionson 31stMay, 2010 all the four posts in the, Chief Secretary grade were filled up. Thereafter, due to : retirement of the then Chief Secretary Shri N.S. Napalchyal on 12th September,2010, one vacancy in Chief Secretarygrade has occurred and presently only three officersare working in WP(C) 3457/201! &connectedmatters P<^S<i this grade. For the promotionagainstone availablevacancy,a proposalfor the concurrenceof tlie Governmentof India is being sent separately."

¶51After the concurrencewas sought, the DOP&T of the Central Government prepared the following note: "2. The Chief, Secretary has drawn reference to this Department'sletter dated 19.9.2008whereby concurrenceto the availabilityof 2vacanciesinthe ApexScalewas conveyed and stated that the meeting of the ScreeningCommitteefor fillingup these two vacancieswas held on 19'^''February,2010 and in the same meeting, the Committee also made recommendations for filling up another vacancy i.e. 3'^ vacancyon accountof retirementof Shri Indu Kumar Pande on 12""^ December,2009 for which concurrence of the Central Government was obtained. On the basis of the recommendations of the Screening Committee, the State Governmenthas ordered the promotion of three IAS officers on 31.5.2010. At the same-time the State Government had requested this Department to convey concurrence to the availabilityof vacancy. The incumbencypositionprovided by the State Governmentvide letter dated 31.5.2010 is as follows: Grade No, of Cadre posts Utilization of cadre posts No. of Officers occupying Ex cadre posts under SDR Officer on inter-cadre deputation Available vacancies Vacancies for which confirmation is sought Chief Secretary

¶3ASTS ~ — — STS — — • — Selection Grade / Sr, " IVPfCJ 3457/2011S connectedmatters Scale / JAG 'Total —

¶3Rule Position: As per rule 3(2)(ii) of IAS (Pay) Rules, 2007, "Appointmentof a member of the Service in the scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be Inandatory upon the State Cadres or the. Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Centi-al Government on the number of available vacancies in each grade". Further, under Rule 3(2)(iii) of lAS(Pay) Rules, "The Centi-al Government shall accord such concurrence within a period of thirty days from the date of receiptof such referencesand if the Central Government does not accord concurrence within a period of said tliirty days, the concurrenceon availabihtyof vacancies shall be deemed to have been accorded. The positionemanatingas referred to this clause shall be placed before the Screening' Committee at the time it meets to consider promotion in these grades".

¶4It may be stated that the said letter of the State Government for concurrence of one vacancy in the Apex Scale as on 31.5.2010 doesn't appear to have been received in the Section. However, on the basis of incumbency position given by the StateGovernment,it is observedthat the 3 vacanciesin the Apex Scale as on 31.5.2010have actuallybeen there. The no. of ex-cadre posts under SDR quota are also within permissible limit of13 posts.

¶5If approved, we convey the concurrence to the availability of 3rd vacancy in the Apex-Scale of IAS in Uttarakhand cadre." IVP(C) 3457/2011&connectedmatters •^3

¶52Thereafter, approval was granted and on 13:,10.2010, a letter was communicated, which is as follows: "I am directed to refer to the State Government's letter . no.807/30-l-10-12(19)/2002-TC,dated 31^^ May, 2010 and d.o. no.l470/XXX-l/12(19)2005/TC-I, dated

08.10.2010 on the above mentioned subject and to convey the concurrence of this Department to the availability of one vacancy in Apex Scale of IAS in Uttarakhand cadre as on 31.5.2010 in terms of the provisionsof Rule 3(2)(ii) & (iii) of the lAS(Pay) Rules, 2007, in addition to existing 2 vacancies in this grade already concurredto by thisDepartmentvide letter dated 19.9.2008."

¶53On a perusalof. these aspects,it is perceptiblethat whetherthere existed two vacancies on 3,9,2008 or not is not clear. True it is, it has been laid down in HarjeetSingh (supra)that the fixationof cadre strengthis the exclusiveconcern of the Centi^aland the State Governments and the Regulations are made for their convenience and better relationship and the excessive utilization of 'Deputation or Central Reserve' is a matter of adjustment and controversy between the Centi-al and the State Governments. Thus, it is in the domain of the Centi-al and the State Governments. Yet, there has to be application of mind to the stipulationsprescribedunder the Rules and Regulationsand there cannotbe an oversightof any fact. The tribunalhas notreallyconsideredhow it has precisely arrived at the conclusion that the ex-cadre posts were not limited to 13 and there WP(C) 307/2011Aconnectedmalters P"S<i "fS of60 was onlyasingularvacancyin the gi-adeof ChiefSecretary.Regardbeinghad to the conceptof cadre adjustmentand the inter-playof Rule 4 of the 1954 Rules and Rule 9(7) of the 2007 Rules whereinthe CentralGovernmentand the State Governmenthave requisiteroles, we are of the consideredopinion that there shouldbe a proper determinationof the vacanciesin the Chief Secretarygrade that existed on 19.9.2008,the date on which the first concurrencewas given by the CentralGovernment, We are disposedto think that the tribunalhas fallen into errorby expressingthe view that the singularvacancyexisted. The proper course is to directboth the Govermnentsto determinethe vacancykeepingin view the 1954Rules,thecadrefixationmethodand theRegulations.

¶54The secondand third issues can be dealton a commonbase. The plea of the State Governmentwas thatthe third vacancyensuedand when the vacancy existed,the grantof concurrencewas amere formality. The languageemployed in Rule 3(2) clearlylays downthatthe appointmentof amemberof the servicein the scalesof selectiongi-adeand aboveshallbe subjectto availabilityof vacancies in these gradesand for this purpose,it shallbe mandatoryuponthe State cadre or the jointcadreauthorities,as the case may be, to seekpriorconcurrenceof the Centi-alGovernmenton the numberofvacanciesin each grade. Thus, merelyon the assumptionof existenceof vacancy,the State Governmentcannotfill up the I'FPfCJ 3457/2011&connectedmatlers ^5 post. Priorconcurrencehas its significationand legalsanctity. Inthis regard,we may referwith profitto the decisionin Union ofIndiaand Ors. v. VinodKumar and Ors. (1996)10 SCC78 wherein it has been held thus: "Section5D(7)(a) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 specifies that the method of recruitment and other conditions of service of Addl. Central Provident Fund Commissioner and other officers and employees of the Central Board shall be such as may be specifiedby the CentralBoard in accordancewith the rules and ordersapplicableto officersandemployeesof theCenti-al Government drawing corresponding scales of pay. A proviso specifiesthatwhere the Centi-alBoardis of the opinionthatit is necessaryto make a departurefrom the saidrules or orders in respect of any of the matters specified in the main, provision,it shall obtain the prior approval of the Centi-al Government. Without obtaining such prior approval, employeeswere recruited,in deviationof the Rules. It was contended that ex-postfacto approval was obtained. Rejecting the contention the Supreme Court held: Under the proviso, where the Central Board is of the opinionthat it is necessaryto make a departurefrom the said rules or orders in respect of any of the matters •, enumerated above it is mandatory that it should obtain prior approvalof the CentralGovernment.Admittedly, priorapprovalwas not obtained.On the otherhand, ex postfacto approvalwas obtainedbut in the teeth of the language of the proviso ex post fact approval is not an approval in the eve of law. Under these circumstances, the Tribmial had rightly held that the approval was not valid in law and the matter was kept at large and .directed the Appellant to issue notificationafresh for recruitment in accordance with rules. We do not find any illegalityin the order." [Emphasis added] ]'VP(C)3457/2011 connectedmailers 50 oj 60 55, In LT.P. Avas Evam Vikas Parishad and another v. Friends Co-op. Housing SocietyLtd. and another,AIR 1996 SC 114, the Apex Court deliberatedon tl\e differencebetweenapprovalandpermissionand proceededto stateasfollows: "5, This Court in Life Insurance Corpn. Of India v. • Escorts Ltd., (1986) 1 SCC 264 ; (AIR 1986 SC 1370). considered the distinction between "special permission" and "general permission", "previous approval" or "prior approval" in paragraph 63 held that "we are ' conscious that the word "prior" or "previous" may be implied if the contextualsituation or .the object and design of the legislationderhands it, we find no such compellingcircumstancesjustifyingreading any such implicationinto S.29(l) of the Act". Ordiiiarily,the difference between approval and permission is that in the first case the action holds good until it is disapproved while in the other case it does not become effective until permission is obtained. But permission subsequentlygranted mayvalidate the previous act. As to the word "approval" in S.33(2)(b) of the Industrial Disputes Act, it was stated in Lord Krishna Textiles Mills Ltd. V. Workmen, (1961) 1 Lab LJ 211 at 215-16 : (AIR 1961 SC 860 at p.863) that the management need not obtain the previous consent before taking any action. The requirement that the management must obtain approval was distinguished from the requirement that it must obtain permission,of which mention is made in S.33(l)." 56, In High Court ofJudicaturefor Rajasthan v. P.P. Singh and another, AIR 2003 SC 1029, a three-Judge Bench of the Apex Court reiterated the principle in LT.P. Avas Evam Vikas Parishad (supra). In the said case, their Lordships WPfC) 3457/2011 &\:onnected matters P<^g<^ observedthat the decisionofthe High Court in its interpretation ofRule 15 ofthe Rules of the High Courtof Judicaturefor Raiasthan;i952was erroneousas it did notuse the words"priorapproval". Inthatcontext,theirLordshipsstatedthus: "36. Furthermore, the terminology 'consultation' used in R.15 having regard to purport and object thereof must be given its ordinary meaning. In Words and Phrases(PermanentEdition,1960,Volume 9, page 3) to 'consult' is defined as 'to discuss something together, to deliberate.' CorpusJuris Secundum(Volume16A,,Ed. 1956, page 1242) also says that the word 'consult' is frequently defined as meaning 'to discuss something together,or to deliberate.' By givingan opportunityto .consultation or deliberation the purpose thereof is to enable the Judges to make their respective pomts of view known to the others and discuss and examine the relative merits of their view. It is neither in doubt nor in dispute that the Judges presentin the meeting of the Full Court were supplied with all the requisite documents and had full opportimity to deliberate upon the Agenda in question.

¶37There is another aspect of the matter which may require consideration. For all intent and purport the reportof the two-JudgesCommitteehas beenapproved by the Full Court. Once approved,it terminatedinto a decision of the Full Court itself. In the instant case even the Governor has acted upon the recommendations of . the High Court. The writ petitioners-firstrespondents herein did not question the appointments of the appointeesnot the High Court. Thus, there cannotbe any doubtwhatsoeverthatfor all intentand purport the opinionof the two-JudgesCommitteereceivedapproval at the hands of the Full Court. IVPCCJ 3457/2011c& connectedmatters P"S^

¶38The High Court, in our opinion, further committed a manifest error in arriving in its conclusion in so far as' it failed to take into consideration that R.15 does not postulate the prior approval of the Full Court in relation to any action which may be initiated by the Chief Justice." We have referred to the aforesaid decision solely for the purpose that the postulatefor priorconcurrenceor priorapprovalor previousapprovalstandson adifferentfootingfrom approval,"subjectto approval"or "gi-antof permission". 57, In Behari Ktinj Sahkari Avas Samiti v. State of Uttar Pradesh and Ors. (2008)12 SCC 306,theirLordshipshaveheld thus: ''The question whether the ti'ansfer or sale of an evacuee propertywithoutprioror previousapprovalof the Custodian General is valid and whether post facto approval constih.ites sufficient compliance with the provisions of The Administration of Evacuee Property Act, 1950. Section10(1)enacts that the duty of the custodian is to preserve and maintain the property. Sub-section(2) enacts thatonlyfor the purposesenumeratedinSub-section(1) there could be transfer or sale of the property and no such action could be taken without the previous approval of the Custodian General.TheSupreme Court held on a construction of the relevant provisions: "The approvalof the CustodianGeneralis to be taken first. This is clear from the expression "previous approval", before the order is passed. Post-facto approval is not sufficient. This procedure was not followed.Tenderprocesswas not adoptedwhichwould have ensured that the best price was available. If the WP(C) 3457/2011c& connectedmatters order dated 30-1-1985is a nullity, further action is of no consequence."

¶58Recently,inAshok KumarDas and others (supra),a two-JudgeBench of the Apex Court, while adverting to the expressions 'approval of the State Government'and 'prior approval'has opinedthus; "15. The words used in Section 21(xiii) are .not "with the permissionof the State Government"nor "with the prior approvalof the State Government",but "withthe approvalof the State Government". If the words used were "with the permissionof the State Government", then without the permission of the State Government v. the Executive Council of the University could not determine the terms and conditions. of service of the non-teachingstaff. Similarly,if the words used were "withthe prior approvalof the State Government",the Executive Council of the University could not determine the terms and conditions of service of the non-teachingstaff withoutfirst obtainingthe approval of the State Government. But since the words used are "with the approval of the State Government", the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequentlyand in case the State Governmentdid not grant approvalsubsequently,any action taken on the basis of the decision of the Executive Council of the Universitywouldbeinvalidand nototherwise."

¶59InHira Lai Shanna v. MunicipalCorporationofDelhi,64 (1996) DLT 527, a DivisionBench of this Court was consideringthe provisionenshrinedunder Section96 of the Delhi MunicipalCorporationAct, 1957 which laid a postulate l'VP(C)3457/2011&connectedmatters 54 of60 that no appointmentto any categoryApostwithinthe meaningof clause (1) of sub-section(8) of Section 90 shall be made except after consultationwith the UnionPublicServiceCommission.In that context,the Benchopinedasfollows: "When Section96 is closely examined, the intention of the legislature becomes crystal clear. The legislators in their wisdom have incorporated the words "That no appointment in the categoryApostshallbe made exceptafter consultation with the Commission. There is a clear legislative mandate that no appointmentshallbe made in this categoryunlessthere is prior approvalby the Commission.The relaxationhas been made with regard to other categories.The categoryto which the post of respondentno.2 belongs is a categorywhere the Legislaturein clear, explicitand categoricterms directedthat the appointment to the said post cannot be made withoutprior approvalofthe Commission."

¶60In view of the aforesaidenxmciationof law, there can be no scintillaof doubt that prior concurrence is a categorical imperative. It is absolutely mandatory, In view of the language employed in the Rules, the post facto approvalwould not validatethe promotionsconferred. However,as we have opined,whetherthere existedone or two vacancieswhen firstconcurrencewas given had not been ascertained by the Centi-al Government in proper perspective,The tribunal,as statedhereinbefore,has notappositelyanalyzedthe vacancypositionand has also not taken into considerationthe conceptof cadre •adjustment. Therefore, we are of the considered opiiiion that the Centi-al Governmentand the State Goverranentshould work out the exact number of irPfCJ 3457/20!! connected matters existingvacanciesgiving due regard to the conceptof cadre adjustment. Be it noted,the tribunalhas opinedthattherewas only a singularpostinthe grade of ChiefSecretarywhenthe firstconcurrencewas givenby the CentralGovernment and, hence, A.K. Joshi being the singular candidate could alone have been consideredfor the post of the ChiefSecretary. We have alreadydislodgedthe finding with regard to the determinationof the vacancy. Hence,.,we have directedboth the Govermnentsto carryoutthe exerciseafresh. There has to be applicationof mindkeepingin view the rulepositionwhiledeterminmgthe said vacancy. The saidexerciseshouldbe completedwithinaperiodof sixweeks. At this juncture,we may note withprofitthe tribunal,while quashingthe ordersof concurrence,had directedthe existingarrangementto continue. This Courthad directedstatusquo to be maintained. In view of the said position,it is directed that after completingthe exercise pertainingto determinationof•the existmg vacancy a review DPC shall be held and the cases of all incumbentsshall be considered after following the due procedure after obtaining of concurrence withina period of six weeks. Till the said exerciseis carriedout, the order of status quo shall remain in force.

¶61The fourthissuepertainsto the fillingup of the postof ChiefSecretary. At this jmicture, it is profitable to refer to the Promotion Guidelines, 2000. , WP(C) 3457/2011&connectedmatters page 56 of60 Araiexure I to the said Guidelines deals with the principles regarding the promotionof members of the IAS and compositionof DPCs. Para 6 ofthe said Guidelines, which deals with the gradation of Chief Secretary, is as follows: - "Para VI: Promotion in the Grade of Chief Secretary. The zone of consideration for promotion in this grade would consist of all the members of the service who have completed 30 years of service. Appointmentin this grade would be made from amongst the officers thus cleared, at any time duringthe relevantyear and subjectto the provisionsof rule 9(7) of the IAS (Pay) Rules, 1954 (as amendedin 2007). The Screening Committee for this purpose shall consist of the ChiefSecretaryconcerned,one officerworkingin this gradein - the cadre and another officer of the cadre serving in Government of India in the same grade."

¶62Araiexure II provides for general guidelines for promotion, etc. and functioning of screening committees. Para 3 deals with determinationof vacanciesand para 24 deals with availabilityof vacancies. Boththe paragraphs, beingrelevant, are reproduced below:- "Annexure II: General Guidelines for promotion etc, and functioning of Screening Committees.

¶3Determination of vacancies: It is essential that the number of vacancies in respect of which a panelis to be preparedshouldbe estimatedas accuratelyas possible, For this purpose, the vacancies to be taken into account should be the clear vacancies arising in a grade due to death, retirement, resignation,promotions and deputation..." irPfCJ3457/2011c& connectedmatters P^Se :>7of60

¶24Availability of vacancies: Whenever promotions are vacancy based, while computing the available vacancies for filling up the same by promoting officers placed in the panel, care should be taken to ensure that the total ex-cadre posts created in various grades for the purpose do not exceed in sum the permissiblequota of State Deputation Reserves indicated in the respective Cadre Schedules. Provisions of rule 9(7) of the IAS (Pay) Rules, 1954 (as amendedin 2007) would also requireto be followedwhile makingpromotionsindie highestgradeof theService."

¶63h-i CitizensforJusticeand Peace v. State of Gujaratand others, (2009) 11 see 213, ithas been opinedthatan appointmentof a governmentservantis the prerogative of the particular Government especially when it is a sensitive appointmentof the Director General of Police. And under the doctrine of "judicial review", the court should not extend its hands to upset such an appointment,more particularly,in the factual panoramawhich is perceptible today. The said principlewouldapplyto the post of ChiefSecretary. One has a right to be consideredfor the ChiefSecretary'sgi-adebut on beingpromotedto the said grade,he cannotputforthaclaimthathe beingfit and seniorshouldbe appointedto the post of ChiefSecretary. That,in our consideredopinion,is the prerogativeoftheStateGovernment.

¶64In view of the aforesaid premised reasons, we proceed to record our conclusions and directions in seriatim: WP(C) 3457/2011A connectedmailers

(i) The conclusionof the txibunalthat a singularpost existedin the grade of Chief Secretaryis not correct as the foundation or basis of the finding of the tribunal in this regard is not clear.

(ii) The cadreadjustmentis withinthe domainof the CentralGovernmentand the State Govermrient but the same has to be done by following the Rules and Regulationsin letter and spirit and such adjustmentshould show application of mind.

(iii) The obtainingof priorconcurrencefrom the CentralGovernmentin view of the languageemployedinRule 3(2) of the 2007Rules is mandatoryand a postfacto concurrencewouldnotvalidatethepromotion.

(iv) As the incumbentsare holdingthe postin the grade of ChiefSecretaryfor almosttwo years, the status quo existingas on today shallbe maintained for a period of three months.

(v) The State Governmentand the Central Govermnentshall carry out:the exercise of the cadre sti'ength as on today keeping in view the rfule positionwithina period of six weeks and thereaftei-,a fresh DPC be held for consideration of the candidates to the said grade. It should be borne in mind that the selectionand concurrenceare vacancybased and both the irPfCJ 3457/2011 connectedmatters authorities should rationally determine the vacancy position while filling up the Chief Secretary's grade after adjusting the cadre.

¶65Consequently, the order of the tribunal is modified and the writ petitions are disposed of with the above directions. The parties shall bear their respective costs. AUGUST 16,2011 pk/dk WP(C) 3457/2011& connected matters CHIEF JUSTICE

SANJIV KHANNA, J. page 60 of60

a * IN THE HIGH COURT OF DELHI AT NEW DELHI s % Reserved on : 23'^^ May, 2011 Date of decision : 16^^ August, 2011 + W.P.(C) 3476/2011 STATE OF UTTARAKHAND THROUGH PRINCIPAL SECRETARY AND ANR. Petitioners Through: Mr.SoliJ.Sorabjee,Sr. Advocate with Ms.Rachana Srivastava, Advocate versus AJAYKUMAR AND ORS. Respondents Through: Mr.A. Mata, Sr. Advocate with ^ Mr.ApoorvaTiwari,Advocatefor R-1 Mr.A.S.Chandhiok, ASG with Mr.Sanjeev Sachdeva, Advocate for Union of India. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? ' Yes 3. Whether the judgment should be reported in the Digest? Yes DIFAK MISRA, CT For orders, see WP (C) No. 3457/2011. /V-' CHIEF JUSTICE •He