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2000(3) Supreme 493
SUPREME COURT OF INDIA
(Under Article 32 of the Constitution of India)
M. Jagannadha Rao & N. Santosh Hegde, JJ.
Tamil Nadu Administrative Service Officers Association & Anr. etc. -Petitioners
versus
Union of India & Ors. -Respondents
Writ Petition (C) No. 613 of 1994
With
W.P. (C) Nos. 671/94, 83/98, 197/98 & C.A. No. 2733/2000 @ SLP (C) No. 7823/96
Decided on 19-4-2000
Counsel for the Parties :
For the Appearing Parties : Mukul Rohatgi, Additional Solicitor General, Parag P. Tripathi, M.N. Rao, P.P. Malhotra, Sr. Advocates, C.D. Mulherkar, Ms. Kamini Jaiswal, Arvind Singh, K.C. Pandey, Hemant Sharma, S.W.A. Qadri, Rajiv Nanda, P. Parmeswaran, Mrs. Anil Katiyar, Raj Kumar Gupta, H.V.P. Sharma, A.N. Bardiyar, A. Mariarputham, Ms. Aruna Mathur, Anurag D. Mathur, Praveen Swarup, Sanjay Hegde, Vikrant Yadav, Advocates.
Held : A perusal of the petition allegations does show that a number of posts outside the IAS cadre in the States concerned are in existence which are being manned by IAS Officers. Continuous existence of these posts over the decades shows that these posts are of permanent in nature, but the pertinent question for consideration is whether merely because the State Government has created some posts and continued them over the years by posting regular IAS officers, can a court issue a mandamus to the Central Government to encadre these posts? If one looks into the object of creating an all India service, it is clear that this service was created to select exceptionally bright and intelligent men/women through all India examinations and train them to handle the affairs of the States by manning important posts in the administration of the State. These persons are not to be posted to any and every posts in the Government. They are to man only such posts which have been identified to be so important as to require the services of these persons. With this view in mind, the Central Government was entrusted with the responsibility of identifying such posts and to encadre them in the IAS cadre. A perusal of the Cadre Rules and Regulations shows that the Central Government has identified posts like that of the Collectors, Commissioners, Members of the Board of Revenue, Secretaries and Deputy Secretaries in the administrative departments and Head of important Departments. It is the attitude of the State Governments of creating ex-cadre/temporary posts without consulting the Central Government and contrary to the Cadre Rules which has created the controversy in hand and has given rise to heart-burn and disappointment to the State civil servants. This however does not, in our opinion, confer any right on the petitioners to seek a mandamus for encadring those ex-cadre/temporary posts, for any such mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength. The basis of the petitioners right to be selected for All India service is traceable in case of State Civil Service officers to Rule 8 of the Recruitment Rules which says that the Central Government may recruit to the IAS persons by promotion from amongst the members of the State Civil Service. This Rule itself puts a ceiling on the number of posts that could be filled in the IAS from such promotion which is limited to not more than 33.1/3 of the posts enumerated therein. The prayer of the petitioners for encadrement of the ex-cadre/temporary posts in reality amounts to asking the Central Government to create more posts. The question then arises whether there is any such right in the petitioners to seek such creation of additional posts. It is a well-settled principle in service jurisprudence that even when there is a vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons; be it administrative, economical or policy, decide not to fill up such post(s). (Paras 16 & 17)
The Cadre Regulations and the Recruitment Rules require the Central Government to follow a particular procedure and make necessary consultations before fixing or re-fixing the cadre strength. In such a situation, issuance of a mandamus to increase the cadre strength or to encadre a particular post merely on the basis of long existence of these posts would be inappropriate. (Para 17)
The Statute applicable mandates the Central Government to fix the cadre strength in consultation with the State Governments concerned, duly bearing in mind the objects of the Act and the Rules and Regulations. The Central Government in its counter has stated that it has conducted this exercise during the periodic review and whenever necessary, temporary and ex-cadre posts created by the State Governments have been encadred, however few they may be. They have also specifically contended that each and every ex-cadre and temporary post created by the State Government is not necessarily required to be encadred in the IAS. Mere delay in preparing the select list as also the cadre review is not fatal if the concerned respondent had given sufficient reasons for the same. In the instant case, we find from the counter affidavit of the Union of India that they have given sufficient explanation for the delay in preparing the select list as also cadre review. Therefore, petitioners cannot claim any relief based solely on the ground of delay in cadre review or preparation of select list. (Paras 21 & 25)
As per the statutory provisions, the encadring of posts can be done only on certain fact-situations existing and further it will have to be done on a review to be conducted by the Central Government in consultation with the State Governments and on being satisfied that an enhancement in the cadre strength or encadring of certain posts is necessary in the administrative interest of the States concerned. Until such encadrement takes place, nobody including the petitioners could stake a claim to consider their case for promotion to those ex-cadre posts. Therefore, such right to be considered for promotion, in our considered view, would arise only from the date of encadrement which having been done with effect from 1998 only, we do not think that as a matter of right the petitioners are entitled for retrospective seniority. In light of the above, we are of the opinion that the petitioners are not entitled to the twin reliefs sought for by them i.e. for a writ of mandamus to encadring the ex-cadre/temporary posts, so also for a writ of mandamus for the retrospective seniority in regard to the posts already included in the State IAS cadre strength by virtue of 1997 amendments. (Paras 26 & 27)
This, however, does not mean that there is no obligation on the part of the Central Government to consider the requirement of encadring the ex-cadre/temporary posts which are existing in those States in regard to which the complaint is made. It is to be noticed that a large number of posts exclusion of which would make sufficient impact on the quota fixed under Rule 9 of the Recruitment Rules are in existence for periods extending even over two decades. We are also told that many of these posts are statutorily required to be filled up by the members of the IAS, but for reasons not known, these posts are not being made permanent. It is possible that these posts which, on the face of it, are in contravention of the cadre rules, are created by the concerned States for reasons other than the administrative exigencies and it is also possible that the Central Government which has the primary responsibility of making the cadre reviews, has not applied its mind to the real necessity of encadring these posts. Though prima facie we have accepted the explanation given by the Union of India still we find such posts are being continued by the States concerned even till date. We have not found any reason either in the pleadings or in the arguments addressed on behalf of the Union of India why it has not taken any steps to direct the State Governments concerned to abolish these posts if not required to be encadred. Therefore, we find it necessary to direct the Union of India to consider in consultation with the State Government concerned, as required in the Cadre Rules, review the necessity of either to encadring these ex-cadre/temporary posts or nor and take such other necessary steps. In this process the Central Government shall bear in mind the existence of these posts for the last so many years and if it is so satisfied and finds it necessary in the interest of justice to encadre these posts, it may do so with retrospective date so that officers promoted consequent to such encadrement would have the benefit of the seniority from such date, bearing, of course, in mind the possible conflict that may arise in fixation of inter se seniority and take appropriate decisions in this regard so as to avoid any further disharmony in the service. (Paras 28 & 29)
(ii) IAS (Appointment by Promotion) Regulations, 1955-Regulation 5(1)-Amendment to-Constitutional validity-Old provision selection committee was required to calculate anticipated substantive vacancies and amended regulation calculating vacancies not exceeding substantive vacancies as on first day of January of year in which meeting held-Allegation that amendment brought about unwanted, arbitrary changes in calculation of vacancies available to be filled by promotees-Held, it is a matter of policy which will be uniformly applicable after amendment-Amendment not arbitrary or violative of Article 14 of Constitution. (Paras 28 to 32)
JUDGMENT
Santosh Hegde, J.-Leave granted in SLP (C) No. 7823/96.
2. In the above writ petitions and civil appeal members of the Tamil Nadu and Haryana State Administrative Services have sought for directions from this Court to the respondents to encadre all the State Deputation Reserve posts, Ex-cadre posts and Temporary posts hitherto manned by the members of the Indian Administrative Service (for short IAS ) for a continuous period exceeding three years, in the IAS cadre. It is their complaint that in their respective States large number of posts which are not included in item 1 of the Schedule to the IAS (Fixation of Cadre Strength) Regulations, 1955 (for short Cadre Regulations ) are being manned by IAS officers and these posts have been in existence for decades together and in spite of the same they are not encadred even though under the Cadre Regulations it is obligatory for the Central Government to do periodical cadre review. Consequent to the failure on the part of the respondents to encadre these large number of posts the petitioners/appellants are denied of their legitimate right of being selected to the IAS by promotion under Rule 8 of the IAS (Recruitment) Rules, 1954 (for short Recruitment Rules ). They contend that 33 1/3 per cent of the State IAS cadre is reserved for selection by promotion of the State service officers and non encadring of the above posts has denied them of their legitimate share in the State cadre. During the pendency of these petitions and appeal, by notification dated December 31, 1997 the Central Government brought about certain amendments to the IAS (Appointment by Promotion) Regulations, 1955 (for short Appointment by Promotion Regulations). The Central Government in its counter affidavit filed in the above cases contended that the complaints of the petitioners/appellants do not survive after the amendment since the respondents by those amendment have included the State Deputation Reserve posts and the Trainee reserve posts as part of the State cadre strength and petitioners are now entitled to have their share of 33 1/3 per cent of the enhanced cadre strength for their appointment to the IAS.
3. However, the petitioners have rebutted this contention of the Respondent and have amended their original petitions and/or filed separate petitions challenging the said amendments.
4. A perusal of the pleadings in the petitions/appeal filed prior to the amendment shows that under Rule 9 of the Recruitment Rules as it stood before the amendment, the number of persons to be recruited to the IAS from the State Civil Service was restricted to 33 1/3 per cent of the number of posts found at items 1 and 2 to the concerned schedule of the Cadre Strength Regulations. By amending the Recruitment Rules, the Union has now enhanced the cadre strength of each State by including the posts allotted to them under items 5 and part of item 6 of the Schedule found in the Cadre Strength Regulations which are posts classified as State Deputation Reserve and Trainee Reserve. Therefore, it is clear that since the filing of the original petitions/appeal the Central Government has increased the strength of the State cadre of IAS, but the petitioners/appellants pleaded that this increase in the strength is wholly illusory. They contend that still large number of posts, which are either termed as ex-cadre or temporary, are excluded from the cadre strength and what is increased by the amendment is only a cosmetic increase.
5. The respondents in opposition contend that during the exercise of review of the cadre strength they have taken note of the necessary requirements of each State and have encadred only such State Deputation Reserve and the Trainee reserve posts which in their opinion requires to be encadred. They contend that the State Governments have in contravention of Rule 4 of the Cadre Rules at times have been creating certain ex-cadre posts which in the opinion of the Central Government are unnecessary and henc
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