JUDMENT

SHINGHAL, J.:— These appeals by certificate are directed against the judgment of the Delhi High Court dated September 25, 1969, allowing Civil Writ Petn. No. 405 of 1968 and connected Petitions Nos. 478 to 487 of 1968. The High Court has quashed the orders of the Central Government notified in GSR 42 to 49, published in Gazette of India, Extraordinary, dated January 13, 1968, as well as the scheme for the formation of a joint cadre of the Indian Administrative Service, hereinafter referred to as the service, for the Union Territories, and has held that the formation of the Delhi-Himachal Cadre of the service was also ultra vires the Constitution. As we shall show, the decision has turned on a short point of law, and it will be enough to refer to those facts which bear on it.

2. A new cadre of the service was constituted for the Union Territories of Delhi and Himachal Pradesh, and recruitment to that cadre was made directly, without complying with the requirement of Rule 4 (1) of the Indian Administrative Service (Recruitment) Rules, 1954, hereinafter referred to as the Recruitment Rules, which prescribed the normal method of recruitment to the service. The Rules were amended on December 21, 1967, by providing for a Joint Cadre in relation to the union Territories and the North East Frontier Agency, and the Central Government formulated the aforesaid scheme to extend the Delhi-Himachal Pradesh Cadre to all Union Territories by absorbing the officers of that cadre and by appointing to it officers of the Indian Frontier Administrative Service and all other Union Territories at its initial constitution. The Joint Cadre for all the Union Territories was brought into existence from January 1, 1968, by GSR 42 under rule 3 (1) of the Indian Administrative Service (Cadre) Rules, 1954, hereinafter referred to as the Cadre Rules, published (along with certain consequential changes in the other rules of the service) in Gazette of India, Extraordinary, dated January 13, 1968. The petitioners in the High Court challenged the creation of the new Joint Cadre for all the Union Territories, and the appointment of some of the respondents thereto. It was urged in the High Court that the constitution of the new Joint Cadre was illegal as it was contrary to the provisions of Article 312 of the Constitution and the All India Services Act. 1951. as it was not common to the Union and the State inasmuch as a Union Territory was not a State, and the recruitment of the respondents concerned to the Joint Cadre was contrary to the provisions of section 3 of the All India Services Act, 1951, and the Cadre Rules.

3. The High Court examined the question whether the Union Territories were States, and reached the conclusion that this was not so. It therefore held that rule 4 (5) of the Recruitment Rules was ultra vires the Constitution and the All India Services Act, for the Cadre in question could not be said to be common to the Union and the States. The High Court also observed that as the Central Government was itself the State Government for purposes of a Union Territory, the Central Government could not consult itself within the meaning of Section 3 of the All India Services Act and the Recruitment and the Cadre Rules. It therefore quashed the orders and the scheme mentioned above.

4. It appears, however, that it was not brought to the notice of the High Court that, in so far as the service was concerned, it was not necessary for Parliament to make a law providing for its creation as a service common to the Union and the States, under clause (1) of Article 312 of the Constitution, because clause (2) of that article expressly provided as follows:-

"312. (2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article."

The Service did not therefore have to be created under the provisions of clause (1) of Article 312 o