CHAPTER - IV

VARIABLES AND SAMPLED CASE

LAWS RELATING TO INDIAN
ADMINISTRATIVE SERVICES.
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CHAPTER - IV

CASE LAW RELATING TO INDIAN

ADMINISTRATIVE SERVICES

4.01 Overview

The fourth chapter is set apart for making a detailed discussion on

different variables relating to the All India Administrative Services and the

sampled Case Laws for discussing on various issues relating to these

services to draw appropriate conclusions. Part-A deals with Variables and

Part-B deals with Case Laws. Linder Part-A variables, data was discussed

under ten sections. Section two relates to the Corpus-Juris of All India

Services in India. Section three is on the variable of appointments. The

fourth section is on regulation of cadre. Fifth is on seniority and sixth section

relates to the period of probation. The seventh section relates to the pay of

All India Service Officers. The eight section is on performance appraisal.

Ninth section relates to the variable of conduct. The last section in Part -A

“Variables", relates to critical comments based on observations made on

different variables discussed in the aforesaid sections.

Part-B relates to the sample Case Laws wherein as many as 36 Case

Laws are reviewed and conclusions drawn.

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PART-A

4.02 THE CORPUS-JURIS OF ALL INDIA SERVICES IN INDIA

“To enquire into the best form of government in the abstract, as it is

called, is not a chimerical, but a highly practical employment of scientific

intellect; and to introduce into any country the best institutions, which, in the

existing state of the country, are capable of, in any tolerable degree, is one

of the most rational objects, to which practical effort can address itself.43”

According to Christopher Foster, who was the oxford academic and

political special advisor to many labour Ministries in U.K., Government

should be politically successful, stable between administrations and retain

public support. Its functions should be performed economically, efficiently

and effectively. Politicians and officials should be competent and well

trained, formally or through experience and example. He maintains that,

should a country need to establish a representative democracy it ought to

consider what the pillars of representative democracy are. According to

him, the first and fundamental requirement is one of accountability and that

accountability will not work unless it is clear throughout Government and

the Public Sector who is responsible for precisely what and that

responsibilities cannot be discharged meaningfully by any part of

Government that is over loaded. According to him, satisfactory

accountability pre supposes effective devolution. He also emphasizes that

43 Mill (1910) 181-82 Burke said much the same; Burke (1845) iii.82
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one needs to know what discretion, or 'supremacy\ every part of

Government has and in what circumstances, and by whom, it may be over

ruled. He also regards legitimacy as one more straightforward requirement

of representative democracy. By legitimacy he means one should be in a

position to know who was responsible for each significant decision so that it

might be revealed if Parliamentary accountability required it. The next pillar

of democracy, according to him, is legality of the decisions made by any

part of the Government. He maintains that Civil Servants should be present

at all decisions by the Ministers and must have the freedom to warn the

latter if in danger of being unlawful. Foster recounts further requirements of

representative democracy, which concern ministerial and official behavior.

He describes absence of corruption as the most important factor in this

regard, that the official and minister should not be corrupt. He defines

corruption as a decision taken with personal or party financial advantage.

The next related requirement is that every policy proposal should be in the

public interest, not in terms of electoral, personal or political advantage.

The other requirements concerning official behavior, according to Foster,

are consistency, fairness in decision-making, consensus seeking of all

those who might be affected by a policy. The other three requirements as

enumerated by him are solidarity, not lying and finally, objectivity and

openness. By solidarity he refers to collective responsibility of the Cabinet,

which according to him should not be diluted. He maintains that a

Government may need all these requirements and still not be effectively

accountable unless, as far as possible in a democracy untruth should not

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be told besides having objectivity and openness. He bitterly criticizes the

Blair Government and adds that the approach of the Government in not

lying and making arguments with objectivity and openness is utterly at odds

with the notion that Government statements and papers should be spun, or

have little more content than is needed to gain a good, and avoid a bad,

story in the media.44

At this juncture, it would be appropriate to recall what the champion

of the Indian Administrative Service had to say in his letter of 30th April

1949, to Jawaharlal Nehru about the necessity to accord constitutional

status to the IAS and IPS vis-a-vis leaving the matters to be regulated by

Central or Provincial legislature. According to Sardar Patel, “the chances of

interference with the service and seriously prejudicing their efficiency on

account of the interaction of central and provincial politics were closer”. In

other words, he wanted the constitution of India to regulate the recruitment

and conditions of service of the All India Services. According to him there

were possible dangers to the Unity of India if there was no All India Service.

In his words “The union will go, you will not have a united India if you have

not a good all-India Service which has the independence to speak out its

mind, which has a sense of security. If you do not adopt this course, then

do not follow the present constitution”45

44 Christopher Foster - British Government in Crisis, HART Publishing 2005- PP 294-298.

45 Dr. P C. Alexander-Civil Service in the next Millennium-Government Central Press, Mumbai- PP6-
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Sardar Patel told the Constituent Assembly on October 10, 1949 “ I

advise you to allow the services to open their mouth freely. If you were a

Premier (in the States) it would be your duty to allow your Secretary, or

Chief Secretary, or other services working under you, to express their

opinion without fear or favour. But I see a tendency today that in several

provinces, the services are set upon and told: No, you are servicemen; you

must carry out our orders. The Union will go - you will not have a united

India.... if you have not a good all-India service which has the

independence to speak out its mind, which has a sense of security that you

stand by your word and, where their rights and privileges are secure... This

Constitution is meant to be worked by a ring of service, which will keep the

country intact”.

“Today, my Secretary can write a note opposed to my views. I have given

that freedom, to all my Secretaries. I have told them ‘If you do not give your

honest opinion for fear that it will displease your Minister, please then you

had better go.”46

The afore noted quotations from Christopher Foster and Sardar

Vallabhbhai Patel tend to bring out the role of Civil Servants and the

governing relationship between the Civil Servants and the Ministers in a

normative and prescriptive manner. They elucidate what the basic

ingredients of any law prescribing the role of Civil Servants vis-a-vis the

politicians ought to be. In the following paras the variables of the research

* CAD; Vol X; page 51.

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problem comprising of various elements of the law governing the conditions

of service including recruitment to the all-India services have been studied

in two parts. In the first part the body of law governing the all-India services

has been briefly touched upon and the second part studies the soft areas in

the Rules and Regulations that affect the independence and efficiency of

the services. A study of the various Rules and the Regulations made by the

Government of India, in the perspective of the afore noted citations would

reveal whether these Rules and Regulations conform to the ideals set by

James Mill, Edmond Burke, Christopher Foster, Harold J. Laski, Sardar

Vallabh Bhai Patel and Dr. B.R. Ambedkar for the Civil Services, and also

whether they emulate the best practices obtaining in the U.K., Canada, New

Zealand and Australia whose Civil Services have been modeled on

Westminster style.

4.03.01 The Constitutional Services Categories

There are three categories of the services under the Constitution.

A) Services under the Union

B) Services under the State

C) The All India Services (the IAS, the IPS & the IFS)

4.03.02 The Legislation

Article 309 of the Constitution of India lays down that Acts of the

appropriate Legislature may regulate the recruitment, and conditions of

service of persons appointed, to public services and posts in connection

with the affairs of the Union or of any State.

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the IAS., the IPS., and the IFS. Also, the appropriate legislature in case of

all-India services is necessarily the Parliament.

4.03.04 The All India Services Act of 1951.

There is difference between Article 309 and Article 312 of the

Constitution. The former lays down that the Union of India and the States of

the Union shall regulate the recruitment and conditions of service of

persons appointed to services under the Union or the State, as the case

may be, it also empowers the Government to make rules for the same

purpose pending enactment by the appropriate Legislature to that effect.

But Article 312 provides for regulation of recruitment and conditions of

service of persons appointed to All India Services i.e., I.A.S., I.P.S., and

I.F.S., only by the Parliament. It does not empower the Union of India to

make rules regulating the recruitment and conditions of service of All India

Service Officers. As a consequence the Government of India was

compelled to deal with many of these matters by means of

non-statutory executive orders. This situation was neither satisfactory nor

quite justifiable. The Government thought it necessary that Parliament

should provide the requisite statutory authority to enable the Government of

India to carry.

On the day-to-day management of the All India Services, which

comprised of the I.A.S., and the I.P.S., only before the commencement of

Act 61 of 1951.
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In the statement of objects and reasons of the All India Services Act

1951 it was mentioned, inter-alia, that “the present Bill seeks to fill a

constitutional lacuna without proceeding to incorporate any detailed

provisions. This course is necessitated, among other things, by the

shortness of time available to Parliament this year. After the necessary

transitional period is passed through, it will be possible to incorporate the

major provisions in an Act of Parliament. The present Bill provides that

recruitment and conditions of service of officers of the two All India Services

shall be regulated by rules to be made by the Central Government in

consultation with the Governments of the participating States. The Bill,

however, provides that all the rules so made shall be laid before Parliament

and shall be subject to such modifications as Parliament may make”.

The Parliament of India has enacted the All India Services Act of

1951 (61 of 1951). The Act contains a mere four sections and instead of

making provisions for recruitment and conditions of service of All India

Service Officers, it empowers the Central Government to make rules for the

regulation of recruitment and conditions of service of persons appointed to

an All India Service. It provides for consultation of the Central Government

with the Government of the States concerned before such rules are made

and it also makes it compulsory for the Central Government to notify such

rules in the official Gazette. Before the commencement of this Act there

were only two All India Services namely the I.A.S., and the I.P.S.,
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The Act also provides for retrospectivity of the rules made by the

Union of India from a date not earlier than the date of commencement of

this Act, which is 29th October 1951. The delegated Legislation in this

regard, i.e., the rules made by the Government of India or any regulation

made in pursuance of any such rule, is required to be placed before each

House of the Parliament while it is in session for a total period of 30 days

which may be comprised in one session or in two or more successive

sessions, and if before expiry of the session both Houses agree in making

any modification in such rule or regulation the rule or regulation there under

shall have effect only in such modified form. And if both houses agree that

such rule or regulation should not be made then such rule or regulation

shall be of no effect. However, any such modification or annulment shall be

without prejudice to the validity of anything previously done under that rule

or regulation.

Finally, the Act provides for continuance of existing rules that were in

force immediately before the commencement of this Act and applicable to

an All India Service and it says that such rules shall be deemed to be rules

made under this Act.

Although a period of 58 years has expired since promulgation of the

All India Services Act of 1951 which is a mere enabling Act, there has been

no Legislation made by the Parliament with regard to the recruitment and

conditions of service of persons appointed to the All India Services. The

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bulk of the Corpus-Juris, as a consequence, is to be found in the shape of

the various Rules and Regulations made by the Union of India in

consultation with the States, promulgated from time to time. In other words,

the entire body of law governing the All India Services is “in the class of

subordinate legislation” deriving the power to make such rules from the All

India Services Act of 1951. In other words, the Parliament of India has had

little time to spare for this very important area of Legislation. Eventually, the

rules are made by the Union of India i.e., the executive branch of the State

rather than the Legislative wing of the State can be traced into Rules /

Regulations framed for the purpose. For e.g., the IAS (Appointment by

Promotion) Regulations have undergone several amendments. For a

couple of years the cut off date for computation of vacancies was 1st April.

Later on, it was changed to 1st January. Then again, 1st of April was

restored and finally, since the amendment of 1998, it continues to be 1st of

January. The rationale behind alternating between the two dates is not

brought out and the whims and caprices and bias and prejudices of the

executive wing of the State and, in the result the premier service of India is

governed by a class of law made by their own colleagues and since there is

no input from Parliament the areas that need the Legislation most, i.e., the

relation between the administration and the ministers, for instance, do not

figure anywhere in this bulk of service law. Thus, while the civil services in

Britain, without any constitutional status have become the third element in

the British constitution, where as, the AIS in India, despite enjoying a

constitutional status, dangle like a sixth finger. Eventually, the field of

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executive action in India becomes monopoly of the politician who also tends

to influence the decisions originating not only in his own territory but also in

the territory of civil servants, thereby, threatening the very foundations of

democracy and at one point of time in history (1975) taking the country to a

state of near autocracy, despite an elaborately written, republican,

democratic constitution.

Following is the list of Rules and Regulations made by the Government of

India in relation to the All India Services.

Category I:

(1) Rules and Regulations common to three All India Services: -

1. The All India Services (Leave) Rules, 1955

2. The All India Services (Special Disability Leave) Regulations, 1957

3. The All India Services (Study Leave) Regulations, 1960

4. The All India Services (Medical Attendance) Rules, 1954.

5. The All India Services (Provident Fund) Rules, 1955.

6. The All India Services (Compensatory Allowances) Rules, 1954.

7. The All India Services (Traveling Allowances) Rules, 1954.

8. The All India Services (Conduct) Rules, 1968

9. The All India Services (Discipline and Appeal) Rules, 1969.

10. The All India Services (Death-cum-Retirement Benefits) Rules, 1958

11. The All India Services (Conditions of Service-Residuary Matter)

Rules, 1960.

12. The All India Services (Performance Appraisal Report) Rules, 2007.
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13. The All India Services (Joint Cadre) Rules, 1972.

14. The All India Services (Dearness Allowance) Rules, 1972.

15. The All India Services (Leave Travel Concession) Rules, 1975.

16. The All India Services (House Rent Allowance) Rules, 1977.

17. The All India Services (House Building AdvanceO Rules, 1978.

18. The All India Services (Group Insurance) Rules, 1981

Category II:

(2) Rules and Regulations applicable to one particular All India

Service:

1. The Indian Administrative Service (Cadre) Rules, 1954.

2. The Indian Administrative Service (Fixation of Cadre Strength)

Regulation, 1955.

3. The Indian Administrative Service (Recruitment) Rules, 1954.

4. The Indian Administrative Service (Appointment by Competitive

Examination) Regulation 1955.

5. The Indian Administrative Service (Appointment by Promotion)

Regulations, 1955.

6. The Indian Administrative Service (Probation) Rules, 1954.

7. The Indian Administrative Service (Appointment by Selection) Rules

1997.

8. The Indian Administrative Service (Probationer Final exam) Regulations,

1955.

9. The Indian Administrative Service (Pay) Rules, 2007.

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10. The Indian Administrative Service (Regulation of Seniority) Rules, 1987.

11. Equivalent Rules and Regulations of IPS to those n SI.No.1 to 6 and

SI.No. 8 to 10 with necessary changes, if any, in the year of coming into

force, such as, Indian Police Service (Cadre) Rules, 1954 etc.,

12. Equivalent Rules and Regulations of IFS to those in SI.No. 1 to 6 and

SI.No 8 to 10 such as, Indian Forest Service (Cadre) Rules, 1966 etc.,

It may be mentioned here that SI.No, 4,5 and 7 of category II above

have been framed as per the provisions of SI.No.3 above. Similarly,

SI.No.2 and 3 of Category I have been framed as per the provisions of

SI.No.1 thereof.

Besides this, there is one more important rule entitled The All India

Services (Conditions of Service Residuary Matters) Rules, 1960. These

rules of 1960 serve an important purpose. If we do not find any rule or

regulation mentioned in the two categories above applicable to a particular

situation then these rules of 1960 are invoked. They empower the

Government of India to make necessary Rules and Regulations in

consultation with State Governments. In the absence of any rule or

regulation applicable to a particular situation concerning the All India

Service Officers serving in connection with the affairs of the Union, the rules

applicable to Group A officers of the Government of India shall be

applicable and in case of an IAS Officer serving in connection with the

affairs of a State Government the rules applicable to the State Civil

Services (Group A) shall be made applicable to the All India Services.

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4.04 APPOINTMENTS

In exercise of the powers conferred by the All India Services Act

1951, the Government of India has framed the following recruitment rules

for appointment to the IAS, the IPS and the IFS.

1. IAS (Recruitment) Rules 1954

2. IPS (Recruitment) Rules 1954

3. IFS (Recruitment) Rules 1966

Besides, in exercise of the powers conferred by the above three rules

the Government of India have enacted another set of Regulations for

appointment to the IAS, the IPS and the IFS by different modes. Different

modes of appointment to IAS are as follows:-

1) Direct Recruitment

2) By promotion from the State Civil Service

3) By selection from outside the State Civil Service

The appointment to IPS and IFS is made by 1) direct recruitment and by

promotion only.

The direct recruitment to IAS, IPS & IFS is governed by the following three

Regulations respectively; -

1) IAS (Appointment by Competitive Examination) Regulations, 1955

2) IPS (Appointment by Competitive Examination) Regulations, 1955

3) IFS (Appointment by Competitive Examination) Regulations, 1966

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4.04.01 A: Direct recruitment to IAS, IPS &IFS:

Before a person is appointed to the afore noted three services by

direct recruitment through competitive examination, he is required to satisfy

the following six conditions.

1) He must be an Indian National

2) He must be having only one spouse living at the time of appointment

3) He must not be below 21 years of age and above 30 years of age

on the First day of August for IAS and IPS and the first day of July for

IFS in the Year in which the examination is supposed to be held.

However, there is an age relaxation of five years in case of SC/ST

Officers and of three years in Case of OBCs in the upper limit.

4) Educational Qualification; For IAS and IPS the candidate must hold a

Degree of any University or its equivalent as laid down in the

notification. In case of IFS, the candidate must hold a Bachelors

Degree with at least one of the subjects, namely, Botany, Chemistry,

Forestry, Geology, Mathematics, Physics, Statistics and Zoology, or a

Bachelor’s degree in Agriculture, or in Engineering of any University.

5) Medical Fitness

6) Character and Antecedents

7) Non-indulgence in mal-practices. Mai practices include applying

pressure, submitting fabricated documents, making incorrect

statements, copying in examinations, using un fair means in

examination, misbehaving in examination hall, etc.,

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No. of Attempts:

After first January 1990 the number of attempts for all general

category candidates appearing for this competitive examination is limited to

four. However, for S.C. and S.T. candidates, Government has set no limit

on number of attempts and for O.B.C. such number is seven.

The Competitive Examination:47

The examination is held in three parts. 1) Preliminary examination, 2)

Main Examination and 3) Interview. The examination is conducted by the

UPSC which is in the nature of a combined examination not only for IAS

and IPS but also for Group A and Group B posts under Central services,

but for IFS a separate examination is conducted by the UPSC. The

syllabus of the examination, manner of Conducting examination, fixing

minimum eligibility, fixing procedure for selection, etc., are finalized by the

Central Government in consultation with the UPSC. The UPSC prepares

merit list, which is recommendatory in nature, and the same is finally

approved by the Central Government after which the Central Government

issues necessary appointment orders.48

4.04.02 B) By Promotion:

The appointment by promotion from the State Civil Services is

governed by two sets of rules; 1) IAS (Recruitment) Rules 1954 and IAS

(Appointment by Promotions) Regulations 1955. After the vacancies have

47 Rule 4, IAS (Recruitment) Rules 1954

48 Rule 6, IAS (Recruitment) Rules 1954 and Rule 8, IAS (Appointment by Competitive Examination) Regulations 1955.
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been determined in terms of the IAS (Fixation of Cadre Strength)

Regulations 1955, a quota for direct recruitment and by promotion and

selection is fixed in the following manner:

1. 66 2/3 % of the vacancies by direct recruitment

2. 33 1/3% of the vacancies by promotion and selection

a. 85 % of 33 1/3% are earmarked for promotion of candidate

from State Civil Service.

b 15% of the 33 1/3% are earmarked for recruitment by selection

from Gazetted Officers serving under the State Government.49

I. List of suitable Officers:

First of all, a list of suitable officers borne on the State Civil Service

cadre is prepared in the order of seniority and fitness taking candidates who

have not crossed the age of 54 years and whose record is otherwise clean.

If, however, a member of the State Civil Service whose name appears in

the select list in force immediately before the date of the meeting shall be

considered for inclusion in the fresh list even if he has, in the meanwhile,

attained the age of 54 years. Also if a member of the State Civil Service

who has attained the age of 54 years on the date of 1st January of the year

in which the Committee shall meet shall be considered if he was eligible for

consideration on the 1st day of April of the years or of any of the years

immediately preceding the year in which such meeting is held but could not

Rule 9 IAS (recruitment) Rules, 1954

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be considered as no meeting was held during such preceding year or years.

In order to select candidates from this list a select committee is constituted.

II. Select Committee:

Under Regulation 3 there shall be constituted for a State Cadre or a

Joint Cadre specified in column 2 of the Schedule a Committee consisting

of the Chairman of the Commission or where the Chairman is unable to

attend, any other member of the Commission representing it and other

members specified in the corresponding entry of column 3 of the said

Schedule. According the column 3 of the Schedule the other members of

the Committee than the Chairman, Union Public Service Commission are

as follows, for the state of Andhra Pradesh:

i. Chief Secretary to the Government of Andhra Pradesh.

ii. Commissioner of Land Revenue any other Commissioner to be

nominated by the State Government..

iii. Principal Secretary to Government or Secretary to the Government of

Andhra Pradesh in the Revenue Departments to be nominated by the

State Government.

iv. Any other Commissioner or any other Secretary to the Government in

the Supertime scale of pay of the service or above to be nominated

by the State Government.

v. Two nominee of the Government of India not below the rank of a

Joint Secretary.
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The Chairman or the member of the Commission shall preside at all

meetings of the Committee, at which he is present,

(1)The absence of a member, other than the Chairman or member of

the Commission, shall not invalidate the proceedings of the

Committee if more than half the members of the Committee had

attended its meetings.

III. Estimate of vacancies:

The number of vacancies for promotion, existing as on 1st January or

any year, are only considered for promotion in that year. The anticipated

forthcoming vacancies of the year, in which selection I made, are not

counted for the purpose. Thus, it is very clear that only the vacancies that

have occurred prior to 1st January of the year are filled up in the current

year by holding Committee meeting for such promotion.

IV. The Reserve:

Appointment by promotion Regulations has been amended from time

to time. Previously there used to be a reserve of 20% of the estimated

vacancies or two vacancies whichever is higher. But consequent on the

amendment of these Regulations the provision for maintaining a reserve

has been deleted w.e.f. 1.1.1998.

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V. Presumption of a list of suitable officers:

Each Committee shall ordinarily meet at intervals not exceeding one year

and prepare a list of such members of the State Civil Service, as are held

by the members to be suitable for promotion to the service.

VI. Zone of Consideration:

The Committee shall consider for inclusion in the said list the cases of

members of the State Civil Service in the order of a seniority in that service

of a number which is equal to three times the number of estimated

vacancies and if the total number of the officers eligible is less than three

times the maximum permissible size of the select list, in such a case the

Committee shall consider all the eligible officers.

VII. Minimum qualifying service:

A minimum of not less than eight years of continuous service (whether

officiating or substantive) in the post of Deputy Collector or in any other post

or posts declared equivalent thereto by the State Government.

Provided that in respect of any released Emergency Commissioned

or short Service Commissioned Officers appointed to the State Civil

Service, eight years of continuous service as required under the preceding

proviso shall be counted from the deemed date of their appointment to that

service, subject to the conditions that such officers shall be eligible for

consideration if they have completed no less than four years of actual

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continuous service, on the first day of the April of the year in which the

committee meets, in the post of Deputy Collector or in any other post or

posts declared equivalent thereto by the State Government.

VIII. lntegrity Certificate:

On the basis of the recommendations of the Committee on the

prevention of corruption, it has been decided that the following integrity

certificate should be recorded by the Chief Secretary to the State

Government who is the sponsoring authority in respect of all eligible officers

whose cases are placed before the Selection Committee for consideration:

“The State Government certify the integrity of Shriwith reference

to the entries in his annual confidential reports”

The Committee should also consider the question of suitability of the

officers with reference to their integrity and should specially record in their

proceeding that they were satisfied from the remarks in the confidential

reports that there was nothing against their integrity.

IX. Classification of selected officers:

The Selection Committee shall classify the Eligible officers as ‘Out­

standing, ‘Very Good’, ‘Good’ or ‘Unfit’ as the case may be, on an overall

relative assessment of their Service records.

This list is prepared by including the required number of names, first

from amongst the officers finally classified as ‘Out-standing’ then from

among those similarly classified as ‘Very Good’ and there after from
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amongst those similarly classified as “Good” and the order of names inter

se within each category shall be in the order of their seniority in the State

Civil Service:

Provided that the name of any officer so included in the list, shall be

treated as provisional if the State Government withholds the integrity

certificate in respect of such officer or any proceedings are contemplated or

pending against him or anything adverse against him has come to the

notice of the State Government.

The list so prepared shall be reviewed and revised every year. This

list remains valid until the proceedings of the new selection committee for a

succeeding year, or approved by the Union Public Service Commission. In

other words, the list is valid only for one year or till such time a new

selection committee finalizes its proceedings. The review and revision can

also take place earlier than one year. These select lists are used for

making substantive appointments to the cadre posts as well as

appointments to IAS.,

Rule: 6 - Consultation with the Commission:

The State Government shall then forward this list prepared in

accordance with Regulation 5 to the Commission along with:

i. The records of all members of the State Civil Service included in the

list;
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ii. Record of all members of the State Civil Service who are proposed to

be superseded by the recommendations made in the list;

iii. The observations of the State Government on the recommendations

of the Committee.

The State Government shall also forward a copy of the list referred to

in Regulation 6 to the Central Government and the Central Government

shall send their observations on the recommendations of the Committee to

the Commission.

After the Commission accords approval to the list, the Government of

India issues appointment order and allots them to the Cadre of the State

concerned and also fixes their seniority in accordance with Regulation of

1987.

Power not to appoint in certain cases:

If in the opinion of the Central Government, it is necessary or

expedient so to do in public interest it may not appoint an officer included in

the select list to I.A.S. This decision shall be made in consultation with the

Union Public Service Commission.

Appointment by Promotion in IPS and IFS:-

The same rules as noted above apply to appointment by promotion to

Indian Police Service and Indian Forest Service as well. The only difference

is that the feeder category in case of IPS consists of the State Police

Officers and other categories declared equivalent by the GOI and in the
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case of IFS the State Forest Service Officers and any service in such

Central Civil Posts, Class I and II connected with Forestry, as may be

approved by the Central Government for the purpose of these rules. As

already stated above, there is no appointment by selection to IPS and IFS.

4.04.03 Critical comments:

In the foregoing paras, an attempt has been made to recapitulate the

service law of the All India Services relating to appointments. The possibility

of any intervention by the external forces is unlikely in case of direct

recruitment. However, in case of promotion there is a possibility, in a lesser

degree, to manipulate the system. This can be achieved by;

1) Not convening the Select Committee for a couple of years in a

row.

2) Initiate disciplinary enquiries against the feeder category officers

on fictitious grounds and later on dropping the charges after the

Select Committee Meeting is over.

In this way the officers from the feeder category, whom the political

executive does not like can be prevented from getting into IAS and in case

of appointment by selection to IAS scope for handpicking the officers is

quite large. Since there are no rules or Regulations and no fool proof

mechanism to identify the officers with special merits across a vide range of

services comprising of non SCS, it has been seen that there has been

larger element of arbitrariness and in many cases officers close to the

political executive or the bigwigs of the bureaucracy of the State have found
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entry into IAS in the absence of any objective Para meters to decide what

their special merit is. There is no explanation as to how the Select List for

non SCS is prepared and how those officers are zeroed in on.

Hence, there is need for a fool proof and comprehensive legislation to

cover the loopholes.

4.05 REGULATION OF CADRES

4.05.01 State Cadre

The services namely, the IAS, the IPS and the IFS have a unique

feature - though they are called All India Services, after their selection, they

are allotted to a particular State or Union Territory which is called a State

Cadre. This allotment and their future mobility to other cadre and posts are

regulated by certain rules namely;

1) The IAS (Cadre) Rules 1954,

2) The IPS (Cadre) Rules 1954 and

3) The IFS (Cadre) Rules 1966

Under these rules, three Regulations, namely; the IAS (Fixation of

Cadre Strength) Regulations, 1955, the IPS (Fixation of Cadre Strength)

Regulations 1955 and the IFS (Fixation of Cadre Strength) Regulations

1966. These apart, All India Services (Joint Cadre) Rules 1972 also govern

the allocation of AIS officers to Joint Cadres.

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4.05.02 Constitution of Cadre:50

According to Cadre Rules, there shall be constituted for each State or

a group of States an Indian Administrative Service Cadre that shall be

referred to as a State Cadre. At present there are 24 Cadres for each of

the three All India Services, of which, three are joint cadres and remaining

21 are State Cadres.

4.05.03 Strength of the Cadre:51

The strength and composition of each of the cadres is determined by

the Regulations made by the Central Government, which shall re-examine

the strength and composition at the interval of every three years, in

consultation with the State Government concerned. The State Government

may add for a period not exceeding one year one or more posts carrying

duties or responsibilities of a like nature to Cadre posts. The appendix

attached to the IAS (Cadre Strength) Regulations gives a picture of the total

strength of the Cadre in a particular State.

In the first place senior duty posts are worked for a particular State

Cadre depending upon the size of the State, the population of the State and

the departments working in the State. The following are added to the senior

duty posts;

1) Central deputation reserve 40%

2) State deputation reserve 25%

* Rule 3 of IAS (Cadre) Rules 1954

5i Rule 4 of IAS (Cadre) Rules 1954
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3) Training Reserve 3!4%

4) Leave Reserve and Junior Posts 16!4%

In case of IFS the Central Deputation Reserve is 20%. Thus, if senior

duty posts are 100 in a particular State, the CTR the SDR the TR and LR&J

posts shall be 40, 25, 4 and 17 respectively which takes the total cadre

strength to 185. The strength of each cadre is reviewed every 5 years for

making addition/deletion if any. This is called Cadre Review.

4.05.04 APPOINTMENT OF OFFICERS TO VARIOUS CADRES

First of all, the vacancies in each Cadre are divided among general,

OBC and SC/ST and then vacancies for each Category are divided

between insiders and outsiders on the basis of 30 point roaster (those who

have opted for their home State are called insiders) and those who are to

be allotted other than the Home State are called outsiders). The first

vacancy goes to outsider; the second to insider and thus the cycle is

repeated. 1 /3rd of vacancies of every year are reserved for insiders and the

rest 2/3rd go to the outsiders. In this regard, there is a detailed procedure to

be followed like preparing a list of insiders in the order of the merit and

arrangement of cadres/ joint cadres in alphabetical order and divided into

four groups.

4.05.05 Change of Cadre:

According to Rule5 (2) of the IAS (Cadre) Rules 1954 the Central

government has been empowered to transfer a Cadre Officer from one

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Cadre to another with the concurrence of the State Governments

concerned. In this rule there being no definite guideline the Government of

India have evolved the following two Para meters.

1) By marriage

2) Due to extreme hard-ship

3) Special considerations for officers belonging to the north -east

cadres

In case of marriage it is ensured that the Cadre of One Officer

accepts his or her spouse and where both states refused than the couple

are allotted to a third cadre. In case of a Lady officer borne on the northeast

cadre she would be mandatory accommodate in the Cadre of her spouse, if

she so opts. Marriage to an Officer serving in a Central Service/State

Service/ Public Sector etc., shall not entitle the Cadre Officer for a change.

The cases of extreme hardship include threat to life, severe health

problems but they are permitted in the rarest of the rare cases. In case of

threat to life, the perception is assessed by the Government of India and in

case of genuineness the Officer is sent on a three year deputation on a

State of his choice and after three years the situation is reviewed for the

and if the threat persists the Officer is permanently transferred to that State.

4.05.06 Deputation:
A Cadre Officer may be deputed for service under 1) the Central

Government, 2) another State Government, 3) a Company/ Association/

Body of individuals wholly or substantially controlled by the Government,

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Central or State, 4) an International organization/an autonomous body not

controlled by the government/a private body. This can be done by the

Central Government in consultation with the State Government concerned

and also with the consent of the Officer concerned.

4.06 SENIORITY:

After a person has been appointed to IAS either by way of direct

recruitment or promotion or selection he needs to be given a year of

allotment which constitutes his seniority. This procedure is regulated by the

IAS (Regulation of Seniority) Rules 1987, the IPS (Regulation of Seniority)

1998 and the IFS (Regulation of Seniority) 1997.

4.06.01 Seniority of direct recruits:52

The year of allotment of a direct recruit officer shall be the year

following the year in which the competitive examination was held. If an

officer joins probationary training a year later then he shall be assigned that

subsequent year as the year of allotment.

4.06.02 Seniority of Promoted Officers53:

The year of allotment of a promoted officer shall be determined with

reference to the year for which the meeting of the Select Committee was

held and also with reference to the length of continuous service rendered by

him in the feeder category up to the 31st day of December immediately

before the year of Select Committee meeting. For the service rendered by

^2 Rule 3(3)(i) Regulation of Seniority Rules, 1987

53 Rule 3(3)(ii) Regulation of Seniority Rules, 1987.
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him up to 21 years, he shall be given a weight of one year for every

completed three years of service subject to a minimum of four years and

beyond the period of 21 years a weightage of one year for every completed

two years shall be given subject to a maximum of three years provided that

he shall not be assigned a year of allotment earlier than the year of

allotment assigned to an officer senior to him in that Select List or appointed

to the service on the basis of an earlier select list.

4.06.03 Seniority in case of Appointment by Selection54:

The same rules as in case of Appointment by Selection shall apply.

4.06.04 Inter-se Seniority55:

Inter-se seniority of the officers who were assigned the same year of

allotment;

I (i) Direct Recruits - in the order of the merit

I (ii) Promoted Officers - in the order of their dates of appointment

to the Service.

I (iii) Selection - in the order in which their names are arranged by

the Commission for the purpose of appointment to Service by

Selection.

54 Rule 3(3) (iii) Regulation of Seniority Rules, 1987.

55 Rule 4 the IAS (Regulation of Seniority) Rules 1987
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4.06.05 Gradation List56:

There shall be prepared every year for each State Cadre and Joint

Cadre a gradation list consisting of the names of all officers borne on the

cadre arranged in order of seniority.

4.06.06 Inter Cadre Transfer:

The seniority of a Direct Recruit Officer or a Promoted Officer or an

Officer appointed by Selection will be decided by the year of allotment given

to him in home cadre and it will not change in spite of his transfer to another

State. However, a direct recruit, a promoted officer and an officer appointed

by selection shall rank inter-se with their respective categories in the State

to which they are transferred.

4.07 PROBATION

The scheme of public service in Government Sector envisages a

certain period of probation during which his suitability to the post is

assessed and if his performance is found satisfactory he gets status of a

confirmed employee. The governing rules in this regard are; the IAS

(Probation) Rules, 1954 the IPS (Probation) Rules, 1954 and the IFS

(Probation) Rules, 1969.

56 Rule 5 the IAS (Regulation of Seniority) Rules 1987

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4.07.01 Probation of Direct Recruit Officers:

a) Normal period of probation is two years

b) It can be extended for a period of one year if Central

Government so thinks fit. Moreover, in case of disciplinary

proceedings, suspension and investigation of criminal charges

against the officer, the probation can be extended for such

period as may be decided by the Central Government

assessing circumstances of the case. It can also be reduced

by the Central Government in exceptional circumstances of

any case after consulting the Union Public Service

Commission.

c) On satisfactory completion of probation, confirmation of the

probationer is done to the service by the Screening Committee.

However, probationers of all the three services undergo prescribed

trainings in Lai Bahadur Sastri National Academy of Administration followed

by other institutional trainings in the Cadre State, besides, they need to

undergo the District Training and pass such examinations, tests, exercises

etc., as the concerned Institute or State Government may direct from time

to time. Their probation is declared only after they have undergone these

trainings and passed the prescribed tests.

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4.07.02 Probation of the officers appointed by promotion and

selection:

The above said officers, who are appointed directly to senior time

scale by promotion (for all three services) and by selection (for IAS only),

are supposed to undergo probation for a period of one year. The period

can be extended or reduced in the circumstances as mentioned earlier in

case of probation period of direct recruits. Moreover, induction training

(nearly of two months), not involving any examination, is a must for such

officers, who are below 52 years of age at the time of entering into service,

for successful completion of probation.

4.08 PAY OF ALL INDIA SERVICES OFFICERS

4.08.01 Categorization of Pay Scales

The provisions relating to pay scales of All India Service Officers find

place in the Indian Administrative Service (Pay) Rules, 2007, the Indian

Police Service(Pay) Rules, 1954 and the Indian Forest Service(Pay) Rules,

1968.

As of now, the pay scales of IAS Officers are categorized into Junior

Scale, Senior Scale, Junior Administrative Grade, Selection Grade, Super­

time Scale and above Supertime Scale. They start with a basic emolument

of Rs.8000/-, Rs. 10,650/-, Rs.12,750/„Rs.15,100/-, and Rs.18,400/-

respectively. The same classification holds good in case of IPS with a

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difference that the Super-time scale is divided into two i.e., DIG and IG and

above Super-time Scale is also divided into two, i.e., Addl. D.G., and D.G.

They carry the following initial basic respectively; Rs.8000/- Rs. 10000/-,

Rs. 12000/- Rs. 14300/- Rs.16400/- Rs.18400/- Rs.22400/- and Rs.24050/-.

The IFS Officers carry identical pay scales on par with the IPS officers. It

may be noticed that the Pay Scales of IAS are higher than those of IPS and

IFS except the Junior Scale, which is common to all the three.

4.08.02 Fixation of Pay of new entrants to Service:

a) Pay fixation to direct recruits: A direct recruit, if he was not in

government service shall get the pay fixed at the minimum of the

Junior Scale. But if he was in service he shall draw the pay of the

permanent post, which he has held before joining the IAS, if it is more

than the minimum of the Junior Scale and it shall be fixed at the

same stage in the Junior Scale as admissible to him.

b) Pay fixation of Promotees: The promoted officers are appointed to

the All India Service directly in the Time Scale called the Senior Scale

(Rs.10, 000-325-15,850). But at the time of promotion, their basic pay

in the feeder posts are sometimes higher than the upper limit of the

above said scale, i.e., Rs. 15850/- and in such cases, their pay scale

is fixed in higher scales, though substantively they remain in the

service in the above said Senior Scale.

c) Pay fixation of Officers appointed by Selection: For such fixation of

pay scale of officers appointed by selection to IAS, the provisions

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governing pay fixation of promoted officers as discussed before shall

mutatis mutandis apply.

4.08.03 In-service Promotion - Fixation of Pay:

The pay of an officer in the Junior Scale shall, on appointment to a

post in the Senior Time Scale, be fixed at the stage next above the pay

notionally arrived at by increasing his pay in lower scale by one increment

at the stage at which such pay accrued or the minimum of the higher scale,

whichever is higher.

This procedure is followed in all the subsequent promotions say from

Senior Scale to Junior Administrative Grade and so on.

4.09 PERFORMANCE APPRAISAL REPORT:

4.09.01 Confidential Roles:

Earlier, the system of maintaining Annual Confidential Rolls (ACR)

was prevalent for assessing the career of the All India Service Officers at

the time of effecting their confirmation, promotion, deputation, etc. This

system of ACR was governed by the All India Services (Confidential Rolls)

Rules, 1972. But the same has now been replaced with a novel and

objective career assessment device in the form of Performance Appraisal

Report (PAR) by notification dated 14th March 2007 of the All India Services

(Performance Appraisal) Rules, 2007.

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Earlier, the ACR system was purely confidential and the Officer was

only supposed to know if there was adverse remark in his ACR. But at

present, the full appraisal of the Officer by the various levels of authorities is

disclosed to him with an opportunity to represent against any thing adverse

for the appraisal. Another important feature is quantitative gradation of

performance by awarding scores on each one of the key performance

indicators.

4.09.02 Features of Performance Appraisal Report57:

1) it is written for each financial year

2) if PAR for a financial year is not recorded by 31st of December, no

remarks may be recorded thereafter and the Officer may be

assessed on the basis of the overall record and self assessment

for the year if he has submitted his self-assessment on time.

3) Relinquishment of Charge: A PAR is also written when either the

Reporting Officer or the Officer reported upon relinquishes charge

of the post. When more than one Report is written during a

financial year, each report shall indicate the period to which it

pertains.

4) Only one report for a particular period during the financial year and

there shall be a single reporting, reviewing and accepting authority

at each level of assessment which shall be specified in the

57 Rule 5 of All India Services (Performance Appraisal) Rules, 2007.

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channel for writing performance appraisal reports which shall be

specified in the channel.

5) If more than one person of the same superior level supervises the

performance of the officer, the Government shall identify the

person to report or review well in advance of the relevant

assessment year.

6) If the Reporting Authority has not seen the performance then the

next immediate authority that has seen it for three months shall

write the report. If the reviewing authority has also not seen, but

the accepting authority has seen it for three months then he shall

write the report.

7) If neither the reporting nor the reviewing nor the accepting

authority has seen the performance for at least three months then

none of them shall write the PAR and entry, accordingly shall be

made in the self assessment report.

8) No authority shall write a PAR after he demits office.

4.09.03 Review of the Performance Appraisal Report58:

a) The reviewing authority shall record his remarks on the

performance appraisal report, within the specified time frame.

b) Where the reviewing authority has not seen, and the accepting

authority has seen the performance of an officer for at least

^ Rule 6 of the All India Services (Performance Appraisal) Rules, 2007.

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three months during the period for which the performance

appraisal report is written, the accepting authority shall review

the performance appraisal report.

c) It shall not be competent for the reviewing authority, or the

accepting authority, to review or accept any such Performance

appraisal report unless it has seen the performance of an

officer for at least three months during the period for which the

report has been written, and it is every such case any entry to

that effect shall be made in the performance appraisal report.

d) It shall not be competent for the reviewing authority or the

accepting authority to review any such performance appraisal

report, where the authority reviewing the performance appraisal

report is a Government servant after one month of his

retirement from service, and in other cases, after one month of

the date on which he demits office.

4.09,04 Acceptance of Performance Appraisal Report59:

The accepting authority shall within the time frame record his remarks

on the PAR and may accept it with such modifications as he may consider

necessary and countersign the report. If he has not seen the performance

of the officer for more than three months, then, he need not write any thing

on the report and where he himself writes or reviews the PAR it shall not be

necessary to review or accept any such report.

59 Rule 7 of the All India Services (Performance Appraisal) Rules, 2007

 148

4.09.05 Communication of the Performance Appraisal Report to the

Central Government and the State Government:60

A certified true copy of the PAR shall be sent to the State

Government and if the officer is on deputation to Government of India or to

any other State, then to the GOI and the concerned State Government also.

4.09.06 Disclosure of Performance Appraisal Report to the officer

reported upon and procedure for representation to the Referral

Board5:

a) The full annual performance appraisal report, including the overall

grade and assessment of integrity, shall be disclosed to the officer

reported upon after finalization by the accepting authority to enable

the officer reported upon to represent his case.

b) The officer reported upon may have the option to give his comments

on the performance appraisal report in writing to the accepting

authority within fifteen days of the receipt of the Performance

Appraisal Report. Rule 9

4.09.07 Representation of the Officer reported upon to Referral Board:

i) In case of the officer reported upon chooses to represent against the

final assessment conveyed to him according to this procedure, he

may represent his case through the accepting authority for a decision

60 . Rule 8 of the All India Services (Performance Appraisal) Rules, 2007

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by the Referral Board constituted for this purpose within one month,

provided that such representation shall be confined to errors of facts.

ii) The representation of the officer reported upon along with the views

of the reporting authority, the reviewing authority and the accepting

authority shall be forwarded to the Referral Board on the request of

the officer reported upon within a period of fifteen days of receipt of

communication.

iii) The Referral Board shall consider the representation of the officer

reported upon in the light of the comments of the reporting authority,

the reviewing authority and the accepting authority and confirm or

modify the performance appraisal report, including the overall grade

and the decision of the Referral Board shall be confined only to errors

of facts and the decision of the Referral Board shall be final.

iv) In case any entry or assessment is upgraded or downgraded by the

Referral Board, reasons for the same shall be recorded in the

performance appraisal report.

The entire performance appraisal report, including the overall grade,

shall thereafter be communicated to the officer reported upon which

shall conclude the process of assessment and no further

representation of any kind shall be entertained thereafter. (Rule 8

(viii) and (ix)

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4.09.08 Memorial against assessment to President of India:

Nothing in these rules shall be deemed to preclude an officer from

making a memorial to the President of India on the Performance Appraisal

Report, as provided under rule 25 of the All India Services (Discipline and

Appeal) Rules, 1969.

4.09.09 Critical Comments:

Hitherto, the performance appraisal reports have had great

confidentiality about them. Unless there was some thing adverse in it the

contents of the comments of the reporting officer, reviewing authority and

the accepting authority would not be informed to the officer reported upon.

An opportunity was given to make representation against the adverse

remarks if any, but if the officer was graded as satisfactory, average etc., it

was not deemed to be an adverse entry. There has been great confusion

about the confidential reports. The officer reported upon was supposed to

write his own self-assessment report, which was to be the basis for the

reporting officer. Some times, if the officers wanted to harass they would

not write the report itself or they would grade the officer as satisfactory.

Justification was required to be given only of an adverse entry but not for

any remarks categorizing the officer as average or satisfactory.

Now, there has been a great shift in the procedure from

confidentiality to openness. Now the rules of 2007 have made it obligatory

to disclose the full performance appraisal by the reporting authority, the

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reviewing authority and the accepting authority. The system was supposed

to come into practice from 1st April 2007. It is yet to become fully

operational. Now a time frame has also been set for the officer reported

upon to submit his self appraisal before a certain date and for the reporting,

reviewing and accepting authorities to complete their report writing before a

particular time frame. As per the new system the blank PARs are to be

supplied to the officers by 1st of April and the self appraisal shall be written

by 30th April and the reporting authority shall complete his job by 30th May

and the reviewing authority by 30th June, the accepting authority by 31st July

and the report shall be disclosed to the officer by 15th August and if no

representation from the officer reported upon then transmission of the PAR

to DOPT by 31st August. A similar time frame has been prescribed in case

where there are adverse comments.

The rules of 2007 are a step forward towards achieving transparency

but it remains to be seen as to how the element of subjectivity could be

totally ruled out from the process.

4.10 CONDUCT

All India Service Officers are governed by separate conduct rules,

namely, the All India Services (Conduct) Rules 19681. The officers are

supposed to observe certain norms of conduct (dos) and they are also

supposed to refrain from certain acts (don’ts). The list of dos is as follows:-

a) An officer shall maintain absolute integrity and devotion to duty.

He, who habitually fails to perform a task assigned to him within

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the time set for the purpose and with the quality of performance

expected of them, shall be deemed to be lacking in devotion to

duty.

b) He shall do nothing, which is unbecoming of member of his

service.

c) He shall take necessary steps to ensue integrity of, and devotion

to duty by, all Government servants for the time being under his

control and authority.

d) Every member of the service shall in the discharge of his duties

act in a courteous manner and shall not resort to dilatory tactics in

his dealings with the public or otherwise.

e) He should act in his best judgment in performance of official duty

or in exercise of powers conferred on him, except when he is

acting under the instruction of his official superior. No officer can

evade his responsibilities by seeking instructions from or approval

of, a superior officer or authority when such instructions are not

necessary under the scheme of distribution of powers and

responsibilities.

f) The direction of the official superior shall ordinarily be in writing.

Where the issue of oral direction becomes unavoidable, the official

superior shall confirm it in writing immediately after.

g) An officer, who has received oral direction from his official

superior, shall seek confirmation of the same in writing, as early as

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possible and in such case, it shall be the duty of the official

superior to confirm the direction in writing.

h) A member of service shall, as soon as he becomes aware of the

fact of acceptances of a member of his family of an employment

with any private undertaking or non-governmental organization,

report to the Government the fact of such acceptance and also

whether he has or has had any official dealings with that

undertaking or non-governmental organization.

i) He shall, if any member of his family is engaged in a trade or

business, or owns or manages an Insurance agency or

Commission agency report the fact to the Government.

j) He shall so manage his private affairs as to avoid habitual

indebtedness or insolvency. If any legal proceeding is instituted

against him for recovery of any debt or for adjudging him as an

insolvent, he shall forthwith report the full facts of such

proceedings to the Government.

k) He shall intimate the Government in respect of each transaction,

whose value exceeds rupees fifteen thousand within a month of

the completion of such transaction.

l) If he MOS is called upon to furnish complete statement of movable

and immovable property his statement shall include, details of the

means by which, or the source from which, such property was

acquired. Competent authority has power to ask member of the

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Service to furnish details of movable and immovable property at

any time.

m) A member of the Service in his personal capacity or otherwise

shall observe strictly, the existing policies regarding age of

marriage, preservation of the environment, wild life, cultural

heritage.

n) Strictly abide by any law relating to intoxicating drinks or drugs in

force in any area in which he may happen to be for the time being.

o) Not to be under the influence of any intoxicating drink or drug

during the course of his duty and shall also take due care that the

performance of his duties at any time is not affected in any way by

the influence of such drink or drug.

p) Not to consume any intoxicating drink or drug in a public place.

q) Not to appear in a public place in a state of intoxication

r) Not to use such drinks or drugs to excess.

List of don’ts:

a) All India Service officers shall not indulge in sexual harassment of

workingwomen in work place and take possible steps to ensure that

people working under his control keep away from such act in the work

place as per provisions of All India Service (Prevention of Sexual

Harassment) Regulation, 1998. The definition of sexual harassment

is given in part 9 of Chapter XV.

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b) As per Government of India instructions dated 03.05.1968 and

15.01.1958, officer involved in proselytizing (religious conversion)

activities are liable for disciplinary actions.

c) No officer shall employ to work any child below the age of 14 years.

d) A member of service shall do nothing unbecoming of a member of

service.

e) A member shall not adopt dilatory tactics in his dealings with the

public.

f) A member shall not act otherwise than in his own best judgment to be

true and correct except when he is acting under the directions of his

official superior.

g) No member of the service shall use his position or influence directly

or indirectly to secure employment for any member of his family with

any private undertaking or non-governmental organization.

h) He shall not permit, except with the previous sanction of the

Government, a member of his family to accept employment with any

private undertaking or non-governmental organization having official

dealings with the government.

i) He shall not deal with any matter relating to, or award any contract in

favour of a private undertaking or non-governmental organization if

any member of his family is employed therein and he shall report the

matter to his official superior.

j) No member of the service shall be a member of, or be otherwise

associated with, any political party or any organization which takes

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part in politics, nor shall he take part in, or subscribe in aid of, or

assist in any other manner, any political movement or political activity.

k) No member of the service shall canvass or otherwise interfere with,

or use his influence in connection with, or take part in, an election to

any legislature or local authority and where he is qualified to vote in

any such election he shall give no indication of the matter in which he

proposes to vote or has voted. He shall not display on his person,

vehicle or residence any electoral symbol and if he does so it shall

amount using his influence in connection with an election.

l) He shall not to do so in connection with matters relating to politics,

propagation of a religion or faith or a political ideology.

m) He shall not, in any radio broadcast or communication over any public

media or in any document published anonymously/pseudonymous or

in his own name or in the name of any other person or in any

communication to the press or in any public utterance, makes any

statement of fact or opinion.

i) Which has the effect of an adverse criticism of any current

or recent policy or action of the Central Government or a
State Government;

or

ii) Which is capable of embarrassing the relations between the

Central Government and any State Government; or

iii) Which is capable of embarrassing the relations between the

Central Government and the Government of any foreign

State.
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n) He shall not, except with the previous sanction of the government to

give evidence in connection with an enquiry conducted by any

person, Committee or other Authority. And if he has been permitted,

he shall not criticize the policy or any action of the Central or State

Government.

o) He shall not communicate directly or indirectly any official documents

or part thereof or information to any government servant or any other

person to whom he is not authorized to communicate.

p) He shall not, except with the previous sanction of the Government,

ask for or accept contributions to or otherwise associate himself with

the raising of, any fund or other collections in cash or in kind in

pursuance of any object whatsoever. Raising of funds for Armed

forces Flag Day is an exception.

q) He shall not accept any gift without the sanction of the Government if

the value of the gift exceeds rupees one thousand.

r) He shall not receive, except with the provisions sanction of the

Government, any complimentary any valedictory address or accept

any testimonial in his honor.

s) Exception: A farewell entertainment of a substantially private and

informal character held in honor of a member of the service or any

other Government Servant on the occasion of his retirement or

transfer or of any person who has recently quit service of

Government; or
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t) The acceptance of simple and inexpensive entertainments arranged

by public bodies or institutions.

u) He shall not, except with the previous sanction of the Government—

i) Engage directly or indirectly in any trade or business, or

ii) Negotiate for, or undertake any other employment, or

iii) Hold an elective office, in any body, whether incorporated or

not.

iv) Canvas in support of any business of insurance agency,

commission agency, etc., owned or managed by any

member of his family, or

v) Take part, except in the discharge of his official duties, in

the registration, promotion or management of any bank or

other company registered or required to be registered under

the Companies Act, 1956.

4.11 Critical Comments

A perusal of the foregoing variables under study would reveal that

although the Civil Services in India i.e., the All India Services enjoy a

constitutional status yet there is nothing constitutional about it except the

status.

A.G. Noorani,61 while commenting on the British and the Indian Civil

Service, in his book review of Christopher Foster’s ‘British Government in

crisis’ says, “the contrast is most glaring in the treatment of the civil service.

61 A.G Noorani- A system in decline - Frontline, dated. 24th Sept -1* Oct 2005 - PP 2.
 159

It enjoys a certain status in the Constitution. ‘By convention, though not in

law, the civil servant became the third element in the British Constitution’.

In India, the status of civil service is recognized in the Constitution itself.

Yet, politicians have merrily driven a coach and four through it”.

It is evident from the study of the variables that the entire body of law

governing the recruitment and conditions of service of All India services has

taken birth in the corridors of the Central Secretariat in Delhi in the hands of

the senior bureaucrats in consultation with the senior bureaucrats of the

Constituent States of the Union of India, much against the mandate of the

Constitution of India laid down in Article-312 thereof. On a comparison of

the service law of All India Services with the service law relating to the

appointment of a peon and the service law governing the recruitment and

conditions of service of a clerk at the entry point in government service, one

hardly finds any difference except a few cosmetic changes here and there.

Ever since the enactment of the Constitution there have been great

socio-political and socio-economic changes taking the country from the path

of left of the center to the extreme right. The country has witnessed the re­

organization of the States in 1956, wherein the S.R.C. emphasized the

need for an All-India Service62, introduction of the Panchayati Raj system in

1959 in the context of which, need to re-orient the administrative machinery

to meet the needs of newly introduced Panchayati Raj system was

61 S.R. Maheshwari - Indian Administration - An Historical Account-Jawahar Publishers, New Delhi-1994 pp 278-281
 160

emphasized followed by V.T. Krishnamachary’s report63 on Indian and State

Administrative Service and problems of District Administration which came

out in 1962 emphasizing the need for expansion of IAS cadre to meet social

and economical developments; re-structuring the syllabus at Training

Academy; importance of Panchayati Raj in the Training syllabus. In the

year 1964 a committee was appointed on prevention of corruption called

Santanam committee64. While discussing the budget in 1962, the Loksabha

expressed the indignation at the growing menace of corruption in the Public

Services forcing Lai Bahadur Sastri, the then Home Minister, to appoint a

committee under the Chairmanship of K. Santanam to go into the causes of

corruption, to study the existing organization and to set up measures to

correct the situation. The setting up of Administrative Reforms Commission

in 1970 65 to examine the machinery of Government of India and its

procedure of work; Personnel Administration; State Administration; Central

State relationships and problems of redress of citizen’s grievances followed

it. The Constitution of all these Committees was prompted by changes in

the social-political and Administrative environment of the Country and each

Committee underlined the importance of making changes to the

Administrative set up following the changes the country has been

witnessing. Finally in 1976 the Committee on Recruitment policy and

Selection 66method (Kothari Committee) of All-India Services was set up

which prescribed a single examination for entry into higher civil service by

45 ibid page 301-303

64 ibid 99312-318
65 ibid 319-332
“ibid 369-372
 161

dividing the examination into two parts namely a qualifying preliminary

examination and the main examination and method of evaluation etc.

Obviously there was tremendous demand for the All India Services. In the

year 1983 the Committee on Center-State Relations67 (Sarkaria

Commission) was set up and the Commission, among other things

examined the role of the All India Services and recommended their

continuance in the interest of better Central State relations viewing them as

a unifying force for the country. However, in the year 1971 the enquiry

committee on Central State relations set up by Government of Tamilnadu

also called the Rajmannar report was not much sympathetic to the All India

Services. It insisted on evolution of the constitutional provision for the

creation of new All India Services, and suggested that the recruitment to All

India Services should be either by the transfer of members of the existing

Gazetted services under the control of the States or by direct recruitment or

by a combination of both the methods confining the recruitment to each

State holding a separate examination under the supervision of the Union

Public Service Commission if deemed necessary.

However, the Sarkaria Commission regarded federalism as basically

a functional arrangement for cooperative action rather than a static

institutional concept and it regarded the All India Services as a symbol of

the federalist character of the State.

67
ibid 373-379
 162

Again in the year 1989, the Committee on civil service examination68

was constituted which analyzed the socio-economic background of recently

recruited civil servants and recommended new subjects for inclusion and it

also emphasized need for development of the National Academy of

Administration as a professional institution. All these Committees were set

up in response to socio-economic changes taking place in the country but

the need to define the governing relationship between the Ministers and

Civil Servants has hardly ever been recognized. As long as the country

continued under a single party rule the state of affairs of the higher Civil

Services never came to surface but with the proclamation of emergency

and subsequent setting up of the Shah Commission has brought to light the

weaknesses that the higher Civil Services had developed over a long period

of time and diagnostic studies were instituted to trace the history of the

disease and to say whether it was curable. The growth of the Regional

parties has also brought about a significant change in the perceived

relations between the Politics and Administration.

One important factor, i.e., what would possibly happen if the higher

Civil Servants and the ruling political party in a particular State should join

hands needs to be examined. The impact of this kind of a league between

the politicians and higher Civil Servants on the processes of democracy has

hardly ever been attempted to be measured. The inherent danger to the

democracy on one side, and strain on the higher Civil Service to shake off

ibid 380-385
 163

its neutrality has also not been gauged. In Chapter-1, it has been pointed

out how the All India Service officers have been aligning themselves with

the political bosses regime after regime. It has also been pointed out that

the tendency on the part of the All India Services officers as men of this

political party or that has been slowly and steadily growing menacingly

eating into the vitals of the democracy.

It is quite visible that immediately after a regime change in a

particular State the set of IAS / IPS officers occupying focal positions are

relegated to unimportant positions and their replacement by a new set of

officers hand picked by the new regime spells death of neutrality of the

services. While people in the first world are quick to react to signs of

degeneration in the administrative machinery the people in our country take

ages to do the same. One common factor that has escaped the attention of

a series of Committees and Commissions set up since 1951 including

Appleby’s report of 1952, is the direct correlation between the strength of

democracy and neutrality and professionalism of the higher Civil Service.

According to Seervai,69 Part IV of the Constitution provides for

various safeguards in order to secure an efficient, incorrupt and a non­

political Civil Service. He maintains that, “If the Constitution made no

attempt to demarcate the respective spheres of the Civil Servants and

Ministers, their functions and duties, it was assumed that the British model

which we have adopted gave sufficient guidance as to the relation between

69 H.M. Seervai-Constitutional Law of India- Fourth Edition 2002- Volume-3-Universal book traders, New Delhi- pp3055-3056
 164

a permanent non-political Civil Service and the Ministers in charge of the

various departments of the State. This assumption was unfortunate,

because before the Constitution was enacted, the far ranging vision of

Sardar Vallabhbhai Patel saw the danger to the unity of India from a servile

Civil Service (see Para 27.116 below). However, the draft Constitution had

reached a stage on 10th October 1949 where it was impossible to devise a

new scheme for the selection, appointment, transfer, promotion and other

matters affecting the members of the Civil Service. Besides, the wholesale

abuse of power which came to a head during the Emergency, was not

envisaged by the leading members of the Constituent Assembly, who

believed that with freedom and independence would come the opportunity,

which had long been denied to them, to serve the people. Believing, as I do,

that the happiness of the people depends on a competent, well paid,

efficient and an incorrupt Civil Service devoted to the public good - a

Service detached from Party and attached only to the State. I have thought

it necessary to consider the relevant parts of the Shah Commission Report

at this place.

Shah Commission was 70one of the most important Commissions

among the Commissions and Committees set up in the post emergency era

with a brief to look into the excesses and abuse of power during the

emergency, was struck by the fact that no effective action had been taken

on six enquiry commission reports that had gone before the Shah

Commission, notwithstanding their near unanimity on the unhealthy factors

70
ibid 3506
 165

governing the relationship between the Ministers and Civil Servants. This

inaction led him to conclude that what happened during the emergency was

merely a tragic culmination of the particular trend that had been identified

and condemned by the Commissions of the past. The Shah Commission

Reports have been accepted by the Union Government but the impression

has gained ground that these valuable reports will share the fate of the

earlier reports notwithstanding Justice Shah's grim warning that if the evil,

which has been condemned by the earlier Commissions and his own, is not

eradicated all that happened during the Emergency might happen again”.

According to Seervai, “the evils pointed out by six enquiry

commissions before Shah Commission could have escaped Justice Shah’s

attention that if successive Governments took no effective remedial action,

there must be deep rooted causes for such culpable inaction. However, his

warning that the democratic heritage of our children would be in peril if the

Government did not take effective remedial action makes it imperative that

the question which he did not ask should be asked and answered, and the

cause for Governments culpable inaction should be openly stated so that

public debate and discussion may lead to appropriate remedial action”.

According to Seervai, “it is reasonable to conclude that if Government

has done nothing to remove that evil which commissions of enquiry had

condemned, the Government was unwilling to pay the price, which such

removal required. He maintains that the underlying cause for Government’s

inaction and allowing the evil to continue, notwithstanding that it lead the
 166

country to a near dictatorship for 19 months, are many fold, and they cannot

be removed by the simple experience of adopting droit administratif.

Brown and Garner71 justly observed that the ‘standard of behaviour of

an administration depends in the last resort upon the quality and traditions

of the public officials who compose it rather than upon such sanctions as

may be exercised through a system of judicial control”.

Shah Commission was not the end of the matter. In the year 2000

the NDA Government, set up a National Commission to Review the working

of the Constitution. The Commission in its report 72submitted in the year

2002 has made an observation about the quality of the Indian

Administrative Service branding it as a colonial legacy and the Civil

Servants as Statusquoists having a vested interest in perpetuating their

dominant advantageous position along with the privileges flowing from it.

Second, being bureaucrats rather than intellectual leaders, they lack the

vision and imagination to devise new and innovative policies, preferring to

tread the beaten track, follow precedents and to continue familiar

programmes. It recommended the creation of new services and curtailment

of undue safeguards. It also recommended lateral entry into the IAS from

the specialists. It also condemned the basic premise of the IAS i.e., the

concept of the 'generalist administrator’.

71 ibid 3057-3058
72 Report of the National commission to review the working of the Constitution - Vol-1 2002 - Universal Law Publishing company - PP
124-125
 167

It would be evident from the above citations that the degeneration in

the Civil Service continues to stay, rather becomes deeper by the day for

the simple reason that no Government has ever taken the call to take

corrective action in spite of recommendations from commission after

commission. It appears the Institution of Commissions would become a

permanent feature of our democracy without any willingness on the part of

any Government of the day to take corrective action. Thus, we conclude

that absence of comprehensive legislation on All India Services is giving

rise to growth of committed bureaucracy and the decaying standards of

performance are making way for a slow and steady negation of democracy.

Accordingly, the hypothesis is confirmed. Also the hypothesis that

changes in the political environment, specifically with the emergence of

regional parties the conflict between political executive and bureaucracy

representing All India Services has become all the more conspicuous and

regular, is also confirmed.

Thus, we find that the Rules and Regulations framed by the

Government of India for the All India Services are so rudimentary in nature

that they neither embody the ideals set forth by great political scientists and

the framers of the Indian Constitution nor do they emulate the best

practices followed in countries like U.K., Canada, New Zealand and

Australia.

*****
 168

PART- B

In this Part it has been tried to gather the Case Laws on the subject.

It may be noticed that bulk of the case law revolves around the Rules and

Regulations relating to All India Services - Appointment by (Promotion)

Regulations, Appointment by (Selection) Regulations, Fixation of Cadre

Strength, Fixation of Seniority Rules and Conduct Rules, and also All India

Services (Conditions of Service-Residuary Matters) Rules 1960 and

(Confidential Rules) 1970. Thus, the growth of Service Law in the domain of

All India Services, in the category of judge made law revolves around the

All India Services Appointment by promotion Regulations and Appointment

by Selection Regulations. It also points out friction between direct recruits

and those appointed by promotion from State Civil Service or non-Civil

Service. It also includes challenge to the All-India Services Act of 1951. A

study of the case law discussed in the following paras would reveal that the

All India Services, since promulgation of the All India Services Act, have

been given a crude and humiliating treatment driving them wide off the

target of providing excellent services in the country and that the courts also

have taken such a long time to resolve the disputes that frustration was

bound to characterize the services.

 169

1. Challenge to All-India Services Act:

The Constitutional validity of the All India Services (Discipline and

Appeal) Rules 1955 was challenged in D.S. Grewal73. The Supreme Court

observed that the Rules were framed under the power given to the Central

Government under the Act, and if the Act was held to be valid, the Central

Government would have the power to frame Rules under the Act. Referring

to the contention that the expression “Parliament may by law provide"

appearing in Art. 312 that the Parliament should have framed the rules for

All India Services and the power to frame the Rules cannot be delegated by

the Parliament to the Central Government. The Supreme Court relying on

by the earlier decisions in Re.Delhi Law Act 74and in Rajanarain Singh 75

observed that it is well settled that it is competent for the legislature to

delegate to other authorities the power to frame rules to carry out the

purpose of the law made by it. The delegation is permissible to the extent

of authorizing the executive authority to modify the law made but not in any

essential feature. The delegation of legislative functions can be made to

the Executive authority within certain limits. Section 3 of the All India

Services Act lays down that the Central Government, may, after

consultation with the Government of the State concerned, make rules for

regulating the recruitment and condition of service of persons appointed to

an All India Service. The Supreme Court examined the scope of Art.312 in

73 1959 Supp. (1) SCR 792 = AIR 1959 SC 512

14 AIR 1951 SC 332 : 1951 SCR 747
75 AIR 1954 SC 569 : 1955 (1) 290
 170

the context and held that it is not the intention of the Constitution makers

under Art. 312 that the numerous and varied provisions that have to be

made in order to regulate the recruitment and conditions of service of All

India Services should be enacted as a statute law and nothing should be

delegated to the executive authority. The Court concluded that Art.312

couldn’t be interpreted to exclude the delegation of power to frame rules for

regulating the recruitment and conditions of service of All India Services.

There is no mandate in Art. 312 prohibiting Parliament from delegating

authority to the Central Government to frame rules for the recruitment and

the conditions of service of All India Services.

It may be noted that, as observed by the Hon’ble Supreme Court, “it

is well settled that it is competent for the Legislature to delegate to other

authorities the power to frame rules to carryout the purpose of the law made

by it”. But in this case, the Parliament had not made any law at all so as to

leave to other authorities the matter of framing rules to carryout the purpose

of the law made by it. The Hon’ble Supreme Court also mentioned that

there is no mandate in Art. 312 prohibiting the Parliament from delegating

authority to the Central Government to frame rules for the Recruitment and

the Conditions of Service of All India Services. But the Supreme Court

has conveniently over looked the fact that this question of delegation

of power to frame Rules would arise only after an Act has been made

by the Parliament This judgment defies logic. It has become the corner

stone for the growth of Service Jurisprudence pertaining to All India

 171

Services in the form of Rules and Regulation framed by the Government of

India rather than by the Parliament. As a result, the Parliament has

conveniently forgotten its responsibility to legislate on the subject. The

Supreme Court has given a wider interpretation to say that there is no

mandate in Art. 312 prohibiting Parliament from delegating authority to

frame rules but the mandate to legislate as contained in Art. 312 has been

ignored. It has proved to be detrimental to the nature and character of the

Services as proved by history. The various Commissions and Committees

including the Shah Commission Report and recently the Committee to

review the working of the Constitution that submitted its report in 2002 bear

ample evidence to this effect. In the following Paras, various case laws

covering various conflicts with in the domain of All India Services have been

briefly discussed. They relate to intra service conflicts and conflicts

between the Service and the Government. But the majority of the case law

concerns cases arising act of appointment by promotion to A.I.S. from the

State Services.

2. Supercession of a senior by Juniors- Recording of reasons

essential:

IAS / IPS - Appointment by promotion Regulations 1955 - Officiation

in cadre posts consequent of inclusion in the select list for promotion to IAS

/ IPS - Subsequent deletion from select list and reversion to substantive

posts - Appointment of juniors to select list on over all assessments of

Confidential Reports - Reasons for supercession must be recorded. -

 172

Failure to record reasons vitiates the select list - Notice not required to a

senior if by-passed by a junior.

In Union of India vs. Mohanlal Kapoor, the respondents76 in two

Civil Appeals officiated in the cadre posts from 1962 to 1968 when suddenly

their names were dropped from the select list prepared in 1968 and they

were reverted to their substantive posts by the State Government on the so

called ground that their names did not find place in the fresh select list,

names of their juniors found place in the fresh select list. The respondents

had challenged in the Allahabad High Court successfully, whereby the

Allahabad High Court quashed the fresh select list from 1968 for IAS and

IPS. The Union of India and the State of Uttar Pradesh preferred Civil

appeals to the Supreme Court. The point for consideration was whether the

State Government had the power under Rule-9 (2) of the Cadre Rules to

terminate the appointment of respondents and whether any notice was

required to be given to a senior on grounds of natural justice if his name

was superseded by a junior.

Held, the State Government had the power to terminate the

appointment of a non cadre officer to a cadre posts in terms of Rule-9 (3)

but non-inclusion of the respondents in the fresh select list of 1968 should

not have been the solitary ground for termination of their appointment to a

cadre post.

76
1974 SCC (L&S) 5, dated 26.09.1973
 173

. But it was also held that while the scheme of appointment to IAS from

the State Civil / Police Service was based on merit and suitability, seniority

also carried great weight. The State Government was directed to prepare a

fresh list considering the seniority and merit. With regard to requirement of

notice to fulfill the demands of natural justice the Supreme Court declined to

extend the scope of natural justice beyond the reasonable limits and held

that no such notice was required. The civil appeals were accordingly

dismissed. The list was quashed on ground of non-compliance of the

mandatory obligation on part of the committee to record reasons if it

proposed supercession of a senior member of the State Civil Service.

3. Amendment to Regulation 5 of IAS (Appointment by Promotion)

Regulations 1955 - Supercession of a senior in Select List -

Recording of reasons not necessary:77

All-India Services Act, 61 of 1951 Section 3 - Indian Administrative

Service (Recruitment Rules) 1954 Rules- 4 and 8 of Indian Administrative

Services (Appointment by Promotion) Regulations 1955 Regulation- 5 as

amended by Notification dated 03.01.1977 - Inclusion of Junior member in

preference to senior member in select list - Recording of reasons not

necessary.

In R.S. Dass, Vs. Union of India and others, R.S. Dass, Mrs. K.

Goel and Baldev Kapoor members of the Punjab State Civil Service were

not included in the Select list for 1978 while their juniors were included.
77 AIR 1987 -SC 593, Dt: 11.12.1986
 174

They challenged before the High Court but the writ petitions were

dismissed. Another select list for 1979 was prepared and the name of R.S.

Dass was not included. He challenged it but the High Court again

dismissed the same.

Later on, during the pendency of the S.L.P. in the Supreme Court

another group of officers challenged the validity of select list of 1983 on

almost similar grounds.

By an amendment to R-5 of IAS (Appointment by promotion)

Regulation carried out in 1977 the requirement to record reasons for

bypassing a senior officer was dispensed with. This amendment was also

challenged as violative of Article 14.

It was held that the decision in Kapoor’s case had created difficulties

in preparing the select list in as much as, seniority had come to assume

greater importance than contemplated by the Regulations. In a conference

of Chief Secretaries held in 1976 it was recommended to amend

Regulation-5 and to categorize into four categories namely; “ Outstanding”,

“Very Good”, “Good” and “Unfit". Based on the said recommendations

Regulation -5 was amended and the requirement of recording reasons for

superseding a senior officer was dispensed with. The challenge in this

case was also to the validity of the amendment of Regulation-5 saying it

was violative of Article-14 of the Constitution of India. The Court held that

ever since the amendment to the said Regulation seniority had a role to
 175

play only if the officers fell in to the same category of outstanding, very

good etc. for example if in a select list there are five officers categorized as

outstanding then their names shall be arranged in the order of their

seniority.

Similarly in the case of officers categorized as very good and good,

seniority became category specific. In this case a junior may find place in

the category of outstanding and his senior may fall in to the category of very

good and that there would be nothing illegal about it. Thus, this case

stands in contrast with Mohan Lai Kapoor’s case in as much as role of

seniority was relegated to a secondary status. The S.L.Ps, the writ petitions

and the civil appeals were accordingly dismissed and the amendment to

Regulation-5 carried out in 1977 was up held.

This case is another landmark in the history of the All India Services

whereby the principle of merit was introduced in the matter of selection from

the State Civil Service, seniority would play a role only when merit of a

group of persons was the same.

4. Whether officiation in senior post should count for deciding the

year of allotment or only officiation in a senior cadre post should

count:

IPS (Appointment by Promotion) Regulations inclusion in the select

list in 1979 and appointment vide select list in 1982 - Officiates as

Additional Superintendent of Police from 1977 and non cadre S.P. from
 176

August, 1982 till his selection to IPS from the select list of 1982. Difference

of opinion between the judicial member and the administrative member of

Central Administrative Tribunal, Hyderabad bench, matter referred to the

Vice Chairman under Section 26 of the Administrative Tribunals Act 1985.

Held officiation in Additional Superintendent of Police’s post may be

deemed to be officiation in a senior post. A senior post need not

necessarily be a senior cadre post. But the crucial date for deciding the

year of allotment was fixed at 28.12.1982, which was the date of

appointment to IPS. Matter remitted to the State Government to decide the

year of allotment as per rules.

In C. Ramachandra Reddy vs. Union of India, which was decided

by Central Administrative Tribunal, Hyderabad bench78, the applicant was a

direct recruit Deputy Superintendent of Police of 1966 batch. He officiated

as Additional S.P. from 1977 onwards and he was eligible for inclusion in

the select list prepared for the year 1979 but there being 10 vacancies he

could not be appointed to IPS as he was placed at senior number 12 of the

select list. He was appointed to a cadre post of Superintendent of Police

from August 1982 and the select list was prepared in 1982 and finally he

was appointed to IPS from 28th December 1982. The applicant raised two

issues:

78 O.A. No:214/1988, Dt:28.8.1991

 177

i. Because there was no select list between 1979 and 1982 he should

be deemed to have been appointed to IPS from a deemed select list

for 1980 on the ground that had there been any select committee

meeting immediately after 1979, he would have been appointed to

IPS from 1980 itself.

ii. That since he had been officiating as Additional Superintendent of

Police from 1977 onwards his year of allotment should have been

fixed as 1975.

There was a difference of opinion between the judicial member and

the administrative member. While the judicial member considered officiation

in the rank of Addl. S.P. as officiation in a senior post he thought the year of

allotment should be 1977 and he passed a Decree accordingly, the

administrative member took a view that officiation in a senior post is not

equal to officiation in a senior cadre post and that since he was officiating in

a senior cadre post from August 1982 only and he was appointed to IPS on

28.12.1982, he thought 28.12.1982 should be taken as cut off date for

regularization of year of allotment. The Vice Chairman, while agreeing with

the judicial member with regard to officiation in a senior post he agrees with

the administrative member on the point that the applicant cannot be

considered to have been appointed on a notional basis in a deemed select

list of 1980 and that the cut off date for year of allotment should be

28.12.1982 only. The Vice Chairman did not deem it necessary to fix the

year of allotment in the Court itself, therefore, he referred the matter to the
 178

Government and the U.P.S.C. to decide the year of allotment keeping the

observation with regard to the officiation in the senior post in mind.

5. Whether year-wise Select List should be prepared distinctly when

the Committee meets after a couple of years or all the vacancies can

be bunched together:

In Ajay Patel vs. Union of India, the matter came up before Central

Administrative Tribunal, Bangalore bench79, the applicants in this case were

appointed to Karnataka Administrative Service Group-A in the year 1976

and the non-official respondents were appointed to the same service in the

year of 1977. A select list was prepared in the year 1988, which was

subjected to litigation, and it was not finalized and a select committee met

on 15.02.1990 at Bangalore and it prepared a select list for 1987-88, 1988-

89 and 1989-90 by bunching the vacancies together. In the meanwhile an

amendment to IAS (Appointment by Promotion) Regulation took place in

1989 whereby the cut off date was changed from 1st April to 1st January i.e.,

from financial year to calendar year.

In the said select committee applicants no. 1 to 10 were not selected

and the non-official respondents who were junior to the applicants were

selected to IAS. The points for consideration in this case were:

i. Whether a select committee that meets after a couple of years is

bound to prepare select list for each year separately considering the

vacancies estimated for each year distinctly.

79
OA NO: 211-219 of 1990
 179

ii. What is the effect of amendment to the Regulations on preparation of

select list?

iii. Whether improper consideration of A.C.Rs and grading the applicants

as satisfactory for all those years for which their A.C.Rs were missing

was justified.

With regard to point No. 1 above the court held that the select

committee is not bound to prepare distinct select lists for each year when it

is sitting after a couple of years taking the estimate of vacancies for each

year separately. The question involved was interpretation of Rule 5-2 (1),

(2) and (3).

The Court held that the select list that was prepared in 1988 was

valid until it was reviewed and revised. The expression review or revision

was interpreted to be preparation of a fresh select list after the next meeting

of the select committee. The court also pointed out that the Rules do not

provide for preparation of separate select list for each year on a notional

basis. The bench declined to rely upon the judgments of Supreme Court in

Rangaiah’s case as well as in Ganeswara Rao’s case on the ground that

the Supreme Court’s decision in those cases can be taken to be binding

only if similar provisions or wordings exist in the Regulations and not

otherwise. In other words, the CAT, Bangalore bench declined the relief

saying that after the amendment to the Regulations it was not binding on

the select committee to prepare year-wise lists.

 180

In Rangaiah’s case the Supreme Court had given a direction to

prepare a select list every year. Even in that case an amendment to

Regulations had taken place and the Supreme Court had ordered that for

the vacancies arising prior to the amendments should be governed by the

old rules and vacancies arising subsequent to the amendment should be

governed by the amended Regulations. The bench refused to rely on the

rulings of the Supreme Court on the ground that the Regulations stood in a

different form and that those judgments of Supreme Court applied to the

Regulations when they had stood in a different form. The original

applications were dismissed. With regard to the plea of the applicants’ that

some of the A.C.Rs that were missing were arbitrarily graded as

satisfactory, the bench gave a finding of fact saying it did not find any

irregularity in the gradation given to the applicants for the missing A.C.Rs.

6. Whether Tribunal can order appointment of the applicant to IAS:80

In Government of Andhra Pradesh vs. M. Prasada Rao, the Tribunal

had ordered appointment of the applicant to the IAS from a certain date.

The Government of Andhra Pradesh challenged this order in Supreme

Court.

The Supreme Court observed in this case as follows:

“We see no ground to interfere with the order of the Tribunal on the

merits of the case. We are, however, of the view that the Tribunal was not

justified in issuing a direction that the respondent be appointed to the Indian

80 SC of India-Civil Appeal No; 1945/93, Dt: 19.4 1993
 181

Administrative Service from a specified date. The only direction, which

could have been given in the facts and circumstances of this case, was to

consider the respondent for such appointment. We, therefore, modify the

order of the Tribunal to the extent that the respondent’s case for bringing

his name on the select list and for appointment to the Indian Administrative

Service be considered by the State of Andhra Pradesh, the Union of India

and the Union Public Service Commission in accordance with law, keeping

in view the observations made by the Tribunal in the impugned judgment.

We further direct that Annual Confidential Report, which has been

expunged by the State of Andhra Pradesh, shall not be taken into

consideration while considering the case of the appellant for the said

appointment. The appeal is allowed to the above extent and judgment of

the Tribunal is modified. No costs.”

Thus, the Supreme Court has held that the Tribunal cannot order

appointment to IAS but it can direct to consider the case for appointment.

7. Whether officiating service in a cadre post should count for

deciding the year of allotment - Conflicting versions of Union of India

and Govt, of A.P.

In K. Balakondaiah vs. Union of India and four others81, the

applicant was included in the select list on 31.01.1984 and was appointed

to IPS w.e.f. 17.10.1984. The main ground for challenging the impugned

order was that the applicant had been officiating from 06.03.1984 and as

81 CAT Hyderabad bench -O.A No: 919/92, Dt: 29 6.1993

 182

per rules 3(3) (b) of IPS (Regulation of Seniority) Rules, 1954, prior to

amendment in 1987, the applicant is entitled for the year of allotment 1979.

The Tribunal held as follows:

“In the counter filed for R-1 it has been stated that the applicant

officiated in Ex-cadre senior post and hence the same is not taken into

consideration. Hence this officiating service is not taken into consideration

for the purpose of year of allotment. However, in the memo issued by the

General Administration of Andhra Pradesh State Government No:

2272/SCC/92-3, dated 26.06.1993, it has been mentioned that the applicant

was posted against Cadre post from 06.03.1984.

Similar OA No: 823/92 has been filed by similarly situated applicants

and in the order passed by this Tribunal in this OA after discussing the

issues raised, the operative portion reads as under:

"In the result the impugned order dated 18.06.1992 is set aside and

the original order whereby the year 1979 was assigned to these

applicants as year of allotment dated 11.08.1985 is restored.

If any of the juniors of the applicants were promoted basing on DPC

meetings held subsequent to 19.06.1992, the date of the impugned

order, R-1 had to constitute Review DPC for consideration about

promotion of the applicants. If such review DPC has to be

constituted, the same has to be done within six months from date of

receipt of this order.” Thus, officiating in a cadre post was considered

to be relevant in deciding the year of allotment.

 183

8. AIS (Regulation of Seniority) Rules 1954 - Fixation of Inter-se

seniority of SCS officer and non-SCS officer - Consideration of length

of service.

In Union of India vs. G.K. Sangameswar and other32, whether a

non State Civil Service Officer recruited to the service by selection can

claim seniority over the State Civil Service Officer whose length of service

in the SCS is more than the length of continuous service of the non-SCS

officer.

The proviso to Rule 3 (3) (c) prescribes that an officer who is

appointed to the service by selection in accordance with sub-rule (2) of Rule

8 shall not be assigned an year earlier than the year of allotment of an

officer appointed in accordance with sub-rule (1) of Rule 8 of the

Recruitment Rules whose length of service in the State Civil service is more

than the length of continuous service of the former in connection with the

affairs of the State.

The use of the word “appointed” indicates that the State Civil Service

Officer must have been appointed to the Service at the time when the non

State Civil Service Officer is appointed to the Service.

This would exclude a State Civil Service Officer who is appointed to

the Service after the appointment of the non-State Civil Service Officer to

the Service, but would include a State Civil Service officer who is appointed

82 SC of India J T.1993 (4) S.C .264, Dt: 13 .7,1993

 184

to the service in the same year in which the non-State Civil Service officer is

appointed or is appointed in an earlier year. The intent of the proviso is to

make the inter-se seniority of a State Civil Service officer and a non-State

Civil Service officer who have been appointed to the service dependent on

their respective length of Service. A non-State Civil Service officer cannot

claim seniority over the State Civil Service officer whose length of service in

the State Civil Service is more than the length of continuous service of the

non-State Civil Service Officer. We find nothing unjust or unreasonable in

this provision whereby the seniority of two officers (one belonging to the

State Civil Service and the other a non-State Civil Service officer) who have

been found suitable for appointment to the service is so fixed that a non-

State Civil Service officer does not become senior to a State Civil Service

officer does whose length of service in the State Civil Service is more than

the length of continuous service in connection with the affairs of the State of

the non-State Civil Service officer.

9. IPS (Appointment by promotion) Regulation, 1955 - R-5 -

Preparation of Select list every year is mandatory:

Kasturirangan vs. Union of India is a landmark case in the domain

of All India Services83. In this case, very important issues were raised as

follows:

i) Whether there is a conflict between decision in Mohanlal Kapoor and

Syed Khalid Razvi.

ii) Whether failure to prepare select list every year is acceptable.

83 Supreme Court oflndia- C.A.No: 3891-3894/93, Dt: 28.7.1993.

 185

iii) Whether the period of officiation prior to inclusion of name in select

list can be taken into consideration for assignment of year of

allotment.

iv) Application filed before the Tribunal after five years of the date on

which cause of action arose.

Preparation of select list every year is mandatory and non­

preparation of annual select list shall be deemed to be dereliction of

statutory duty, which must be satisfactorily accounted for by the State

Government, and lapses must be satisfactorily explained.

In this case the two appellants had asked for fixation of seniority from

the date of officiation in a cadre post on the ground that the select

committee had failed to meet for two years and had it met two years before

they would have got the seniority from the date of officiation in the cadre

posts.

With regard to point 1 above the Apex Court held that “ It is therefore,

clear that the failure to prepare the select list annually was not accepted as

a ground to invalidate the select list for that reason alone in Rizvi. It is in

this manner that the word ‘ mandatory’ used in Para 34 has to be

understood.

The contention in the present case of learned counsel for the

appellants being substantially the same which was rejected in Para 35 of

 186

the decision in Rizvi, there is nothing in that decision to lend support to the

appellants contention based on this ground in the present case.

With regard to point 2 and 3 above, the contention of learned counsel

for the appellants is that in the case of a promotee exclusion of the period of

his continuous officiation prior to the date of inclusion of his name in the

select list is discriminatory.

We find no merit in this contention. The promotees to the IPS

constitute a class distinct from the direct recruits to that service. The claim

for inclusion of the period of their officiation prior to inclusion of their name

in the select list in all situations does not appear to be reasonable in as

much as that may amount to conferring on them the benefit of membership

of service in the IPS from a date prior to their selection for entry into the

service.

With regard to point 4, it was held that the Tribunal was right in taking

into account the latches of the appellants in as much as they approached

the Tribunal after about five years of the date on which the cause of action

arose as a result of the appellants being given the year of allotment. In

disputes relating to seniority, in a service, the lapse of several years

changes the scenario due to the events happening in the intervening period

and, therefore, the aggrieved person must invoke the remedy promptly

within a reasonable period. The appeals were dismissed.

 187

10. IAS (Appointment by Selection) amendment of Regulation 3 (1) (ii)

of IAS (Appointment by Selection) Regulations 1956 w.e.f. 30.03.1989

not valid - amendment struck down:

In P. Shyam Bhat vs. Union of India*4 amendment to IAS (Appointment by

Selection) Regulation 3(i) (ii) was challenged. The following points arose

for consideration:

i) Regulation-2 making class -II officers of non-State Civil Service

also eligible along with Class - I officers for appointment by

selection to the IAS whether valid?

ii) Whether raising the experience from 8 years’ to 12 years’

continuous service thereby denying right of those completing 8

years continuous service to be considered for selection under IAS

Selection regulation, which prevailed for 33 years, was valid?

The Apex court held as follows:

The IAS Recruitment Rules envisage selection for appointment to

Indian Administrative Service, from non-State Civil Service officers who

held posts comparable in importance and responsibility to that of the posts

of Deputy Collectors and above in State Civil Service, that is, from non-

State Civil Service Class-I officers and not from non-State Civil Service

officers who held posts of Assistant Regional Transport Officers or Senior

Inspector of Motor Vehicles in Transport Department of a State, which were

far inferior to that of the posts of Deputy Collectors in State Civil Service,

84 SC of India - 1995 SC (L&S) 15, Dt. 29.9.1994

 188

such as, posts of Tehsildars or Deputy Tehsildars. Therefore, the Central

Government, which had made Regulation-2 of the IAS Second Amendment

Regulations to make eligible for selection and appointment to the Indian

Administrative Service from non-State Civil Service Class II officers, has

done so clearly exceeding the parameters or authority conferred upon it in

the matter by Rule 8 (2) of the IAS Recruitment Rules, itself. The

circumstance and factual reality in itself is sufficient to expose and demolish

the myth that non-State Civil Service Class-ll officers were brought into the

pool of non State Civil Service officers by the IAS Second Amendment

Regulation by classifying them as officers belonging to common class along

with non-State Civil Service Class-1 officers, for achieving the object of the

IAS Recruitment Rules -the object of selecting the officers of outstanding

ability and merit for appointment to Indian Administrative Service.

Even otherwise, when in the service set-up of non-State Civil Service,

non-State Civil Service Class-ll officers are unequal when compared with

non-State Civil Service Class-1 officers, in important matters such as nature

of posts held by them, duties and responsibilities to be discharged by them

in such posts, scales of pay carried by such posts, it is difficult to

comprehend how they can be put in a common class for judging their

comparative ability and merit in their respective job performances in the

context of their suitability for appointment to the Indian Administrative

Service. What has been done by the IAS Second Amendment Regulations

is the same as pooling together a Senior Collector in State Civil Service and
 189

a Deputy Tehsildar in State Civil Service and makes them common class

State Civil Service officers and asks the State Government to recommend

the cases of either of them for appointment to Indian Administrative Service.

Hence, the classification of officers brought about by Regulation-2 of the

IAS Second Amendment Regulations, is ex facie arbitrary, unreasonable

and discriminatory and violates Articles 14 and 16 of the Constitution.

Again Rule 6 of the IAS Recruitment Rules, when by making it clear that

initial appointments to be made to Indian Administrative Service from both

officers of State Civil Service and non-State Civil Service on senior time-

scale of pay and not junior time-scale of pay on which persons directly

recruited for that service would be appointed, demonstrates unequivocally

that Class-I officers, in State Civil Service already in senior scales of pay or

in closer scales of pay and not Class-ll officers in State Civil Service and in

non-State Civil Service, drawing salaries falling below junior scales of pay,

classification done under Regulation-2 of the IAS Second Amendment

Regulations to provide eligibility to non-State Civil Service Class-ll officers

cannot but be arbitrary and unreasonable, as would attract the inhibition of

Articles 14 and 16.

Further, there is no reason as to why the period of 8 years’

continuous service of non-State Civil Service Class-I officers which made

them eligible for selection to the Indian Administrative Service under the

IAS Selection Regulations should have been increased to 12 years of their

 190

continuous service by Regulation 2 of the IAS Second Amendment

Regulations.

Since such increase in number of years of continuous service of non-

State Civil Service Class I officers to whom it may concern make them

eligible for selection to the Indian Administrative Service deprived them of

the right to be considered for selection under the IAS Selection Regulations

which held the field for over 33 years, with no palpable reason, Regulation 2

of the IAS Second Amendment Regulations which brought about such

deprivation has to be regarded as unjust, arbitrary, unreasonable and that

which arbitrarily affected the legitimate and normal expectations of non-

State Civil Service Class I officers and that was inhibited by Article 14 of the

Constitution.

11. IAS (Appointment by promotion) Regulations 1955 -Inclusion of

junior in the Select list - Appointment of junior to IAS - Exclusion of

senior supercession through the Selection process in the statutory

rules not bad:

In Bhaidyanath Sinha Roy vs. Union of India,65 the applicant was

appointed to West Bengal Civil Service to 1967 batch. He was included in

the select list for 1991 but was not appointed to IAS because, the integrity

certificate / vigilance clearance certificate was with held by the State

Government because of an anonymous complaint petition filed against him

leveling several allegations. In the meanwhile, his junior Sri Majumdhar

" CAT, Calcutta bench O.A No:93 of 1992, Dt:25 11 1994

 191

who was also in the select list of 1991 was appointed to IAS superseding

the applicant. Later on, the applicant was included in the select list for

1992 and consequent on release of vigilance clearance certificate by the

State Government acquitting him of the allegations contained in the

anonymous petition he was appointed to IAS.

He challenged the appointment of his junior and claimed that he

should be appointed from the panel of 1991. The point for consideration

was, if any procedural requirement prevented him from getting into IAS

whether he had a right to be appointed retrospectively. The DOPT in their

reply informed him that his junior was appointed on the basis of a better

relative gradation and he was not appointed because of the integrity

certificate having not been issued by the State Government but a vacancy

had been reserved for him in case he was cleared in the inquiry during the

currency of the select list of 1991.

The grievance of the petitioner was that,

i) That the gradation done by the Selection Committee was in error

because the forms issued by the State Government contained

only four grades i.e. ‘very good’, ‘good’, ‘average’ & ‘poor’ and

ii) With holding of integrity certificate was arbitrary and illegal

because even a preliminary inquiry had not been completed nor

any charge sheet had been issued to him.

In reply to point no. 1, the court held that the gradation is done not as

per the State Government proforma but in accordance with Rule 5 (4) of
 192

IAS (Appointment by Promotion) Regulations, which envisages

classification of the officers as 'Outstanding’, ‘Very good’, ‘Good’ or ‘Unfit’.

In reply to point no. 2, it was admitted that the complaint was frivolous

and anonymous and later on, the State Government, after getting clearance

from the Vigilance Commissioner issued the integrity certificate and

recommended to the Government of India and Union Public Service

Commission to appoint the applicant against the 1991 select list and to

keep the meeting of 1992 select list in abeyance till the applicant was

appointed to IAS.

The Select Committee for 1992 met on 19.03.1992 and by that time

the process of appointment of the applicant against the 1991 select list

could not be completed.

So, therefore, in accordance with proviso to Para 7(4) of IAS

(Promotion) Regulations appointment from a previous select list should not

be made after the meeting of the fresh committee to draw a fresh list. The

applicant had committed a blunder of not impleading the UPSC as a party

although it was pointed out to him that the latter was a necessary party. It

was held that Respondent-3 who was junior to the applicant has duly

superseded him through a selection process under the statutory rules.

In the result the OA was dismissed, on the grounds that:

i) He had not impleaded the UPSC as a party

 193

ii) His supercession by his junior was through a selection process

under statutory rules and hence, was not liable to be set aside.

12. Delay condonation rejected. Government must evolve simple

procedures to file appeals within the time frame:

In Government of India and other vs. D. Koteswara Rao and

others 86a question arose. Whether delay of 278 days in filing special leave

petition by the Union of India, which was the result of its own procedures

was condonable. The Apex Court held that:

“The Government must evolve simple procedures in all cases where

they must reach a decision whether to file SLP against any order of the

Tribunal / High Court. If the Governments have evolved lengthy circuitous

procedures then delay cannot be condoned11.

13. How to fix year of allotment when an officer is omitted from the

Select List on account of adverse entries in the C.R. and subsequent

appointment to IPS from an anterior date consequent on expunction of

adverse remarks and fixation of inter-se seniority consequent on such

appointment:

In O.S. Singh and another vs. Union of India and another87 the

question how far the year of allotment of an officer of the SPS can be

determined in accordance with Rule 3 (3) (b) of the Seniority Rules. Even

in case of erroneous exclusion and later rectification of the mistake arose?

86 Supreme Court of India CC No: 3169/95, Dt: 14 7.1995.

87 Supreme Court oflndia - 1995(6) scale, dated 12.10.1995
 194

Appellant who was a Deputy Superintendent of Police in the State

Police Service on substantive basis and having completed more than 8

years of service by the year 1974 could have been placed in the Select List

but for the adverse entries in his C.R. The adverse entries having been

expunged he had approached the High Court for a direction to the

appropriate authorities for re-consideration of his case. The State

Government on reconsideration recommended for his appointment to the

Indian Police Service from an anterior date. Finally, the Government of

India in consultation with the Union Pubic Service Commission appointed

the appellant to the Indian police service with effect from 31-3-1976 -

Appellant consequently was shown as senior to one Ashwini Kumar - On

challenge by Ashwini Kumar, Tribunal held that the appellant having started

continuous officiation in the senior post on 30-03-1978, his year of allotment

must be determined by finding out who was the junior most officer recruited

to the service in accordance with Rule 7 who officiated continuously in a

senior post from a date earlier than the appellant and having found that

Ashwini Kumar was the junior most officer amongst the direct recruits,

declared the year of allotment of the appellant as 1973, which was the year

of allotment of Ashwini Kumar—Whether the year of allotment of an officer

of the State Police Service has to be determined in accordance with

Rule 3 (3) (b) of the Seniority Rules notwithstanding the fact that this case

had been ignored from consideration erroneously and later on the mistake

was rectified and he was appointed to the Indian Police Service with effect
 195

from an anterior date on which date he would have otherwise been entitled

to be appointed - allowing the appeals, the Court held as follows:

A. For the purpose of seniority, a promotee officer is treated at par with

a directly recruited officer who had been officiating in a senior post.

This appears to be so for the reason that under Rule 6 of the

Recruitment Rules the initial appointment of a person appointed by

way of direct recruitment is in the junior time scale while the initial

appointment of a person appointed to the Service by way of

promotion from the State Police Service is in the senior time scale

(Para 7).

B. The governing factor for assignment of year of allotment under

Rule 3 (3) (b) is the continuous officiation in a senior post by a directly

recruited officer as well as the promotee officer (Para 7).

C. The expression “Officiated continuously in a senior post” in Rule

3(3)(b) of the seniority Rules must be construed to mean holding a

senior post on officiating basis prior to substantive appointment on

such senior post. Since a person cannot be treated as officiating on

a post after he has been substantively appointed on that post, the

said expression cannot be construed as referring to the period of

officiation subsequent to the date of substantive appointment

(Para 8).

D. For ascertaining the period of continuous officiation on a senior post,

which is required to be taken into consideration for the purpose of

assigning the year of allotment to a promotee officer, Rule 3 (3) (b)

 196

has to be read with Explanation! Wherein it has been prescribed that

in respect of an officer appointed to the Service by promotion for the

purpose of determination of his seniority the period of his continuous

officiation in a senior post shall count only from the date of the

inclusion of his name in the Select List, or from the date of his

officiating appointment to such senior post whichever is later. Thus

two conditions are required to be fulfilled: (i) inclusion of the name in

the Select list prepared for the purpose of promotion under the

Recruitment Rules and Promotion Regulations: and (ii) Continuous

officiation on a senior post. Explanation Postulates that both these

conditions must co-exist for a promotee officer to take the benefit of

continuous officiation in a senior post from the date prior to the date

of his substantive appointment. (Para 8).

E. If Rule 3(3)(b) is read as to effectuate the intention of the rule making

authority then the considerations referred to therein which apply in

the matter of assignment of year of allotment in cases where an

officer has officiated prior to the date of his substantive appointment,

must necessarily apply for the purpose of assigning the year of

allotment of an officer who has been substantively appointed without

being required to officiate. In such a case his year of allotment will

have to be determined with reference to the year of allotment of

junior-most among the officers directly recruited to the service who

officiated continuously in a senior post from a date earlier than the

date of substantive appointment of the promotee officer. For that

 197

purpose the expression “such officiation” in the context of the

promotee officer in Rule 3 (3) (b) will have to be construed as

meaning “substantive appointment”. In cases where the promotee

did not officiate in a senior post before his substantive appointment to

the service. (Para 12).

F. The said construction would also govern a case, like the present one,

where an officer has been wrongly denied promotion to the service

and the said wrong is rectified later by the competent authority by

appointing the officer who was denied promotion with effect from the

date on which he should have been so appointed by way of

promotion. Once the error in the matter of his promotion is rectified

and he has been given substantive appointment from an anterior date

on which he should have been promoted the year of allotment has to

be assigned to him having regard to the date from which his

substantive appointment becomes operative even though he did not

officiate in a senior post prior to the said date of substantive

appointment. The year of allotment cannot be depressed on the

basis that he had started officiating on a senior post from a date later

than the date with effect from which he has been substantively

appointed to the Service. (Para 12).

G. The same result follows even if one proceeds on the basis that there

is a casus omissus in Rule 3 (3) (b) in the matter of assignment of

year of allotment for an officer appointed by promotion who has not

officiated prior to his substantive appointment to the service and the

 198

said omission cannot be filled by the Court by judicial interpretation,

this could only mean that the seniority Rules are silent in the matter of

assignment of year of allotment of such a promotee officer. In that

event the competent authority can assign the year of allotment to

such an officer in exercise of its administrative discretion. The order

passed by the Central Government assigning the year of allotment to

the appellant has to be treated as passed by the Central Government

in exercise of its administrative discretion. The only question that

would arise in respect of such an order is whether in the exercise of

its administrative discretion the Central Government has acted

arbitrarily. Having regard to the facts and circumstances of the case,

it is not possible to take the view that in the matter of assignment of

year of allotment of the appellant the Central Government has acted

arbitrarily. The Central Government appears to have followed the

Scheme underlying Rule 3(3)(b) and has assigned the year of

allotment on the basis of the date on which the substantive

appointment of the appellant became operative keeping in view the

year of allotment of the junior-most directly recruited officer who

officiated continuously in a senior post from a date earlier than the

date of such substantive appointment of the appellant (Para 13).

 199

14. IPS *- Year of Allotment junior getting earlier year of allotment -

Same year of allotment on par with junior ordered:

In K. Balakondaiah vs. Union of India and two others, 88the

applicant was appointed to IPS on 17.10.1984 and his junior Sri K. Rushya

Rao was also appointed to IPS on the same date. But the year of allotment

that was given to Sri K. Rushya Rao was 1977 whereas the applicant was

given 1979 as year of allotment. The applicant prayed for allotment of

1977 for fixation of seniority and also to be shown as senior to

Sri K. Rushya Rao in the list.

The CAT bench of Hyderabad taking note of the Supreme Court

judgment reported in 1995 (2) SCALE 436 (RRS Chauhan and ors. V/s

UOI), that if a junior is assigned earlier year of allotment then the senior is

also entitled to be allotted the same year and shown senior even if the

senior has not worked in senior scale post or worked in the senior scale

post of IPS later than his junior before his elevation to IPS cadre. The OA

was allowed with a direction to allot the same year to the applicant on par

with Sri K. Rushya Rao and to promote him as Inspector General from the

date of promotion of Sri K. Rushya Rao and if he is found fit for promotion

he shall be deemed to have been promoted to that grade from the date

Sri K. Rushya Rao had been promoted to the post of Inspector General.

The applicant was also entitled to fixation of pay on par with his junior. It

88 O.A. No: 143 of 1996, dated 15.02.1996

 200

was also ordered to pay the arrears of pay consequent on such notional

promotion.

15. IAS (Appointment by promotion) Regulations 1955 - Zone of

consideration Regulation 5 (2) & (3) - Application of mind by D.P.C:

In Ramanand Prasad Singh and others vs. Union of India and

others,69 the Patna bench of the Central Administrative Tribunal had set

aside the entire selection made at the meeting of the selection committee

on 30.03.1994 on the ground that only three times the number of

anticipated vacancies for the year plus 20% could have been considered as

within the zone of consideration and that the consideration of other officers

under Regulation - 5 (3) was contrary to said Regulations. Another ground

of setting aside of the proceedings was that one person participated in the

selection committee as a member though his brother was within the zone of

consideration although the brother had not been selected. The Tribunal

had held that there was no application of mind by the Select Committee in

considering 264 names in one day. It was also observed by the Tribunal

that consideration of names of persons (who had crossed the age of 54

years) in terms of Regulation -5 (3) was contrary to the Appointment by

Promotion Regulations.

The Supreme Court held as follows:

In the present case, the number of anticipated vacancies for which

selection was held, were 43. As per Regulation 5 (2) the zone of

89 Supreme Court of India - (19%) 4 Case No: 64, dated 27.03.1996

 201

consideration was fixed at 153 (i.e. 43 vacancies plus 20% x 3). In addition

to this, officers (a) whose names were on the earlier Selection List in force

(one such officer) (first proviso to Regulation 5 (3) and (b) officers who

though above the age of 54 were eligible under the second proviso to

Regulation 5 (3) because there were no selections in the years 1991-92

and 1992-93 (110 such officers) were included. The total number of

officers, therefore, considered by the Selection Committee was 153+1+110,

that is to say, 264 officers.

According to the Tribunal, the zone of consideration should have

been confined to only 153 officers. This interpretation is in the teeth of the

express provisions of Regulation 5 (2). While Regulation 5 (2) provides that

the number of officers required to be considered are three times the number

of anticipated vacancies plus 20%, the proviso to Regulation 5 (2) lays

down that in computing the number of officers who should be in the field of

consideration under Regulation 5 (2), the number of officers referred to in

sub-regulation (3) shall be excluded. In other words, in the present case,

153 officers who are to be included in the zone of consideration will be after

excluding officers who qualify under Regulation 5 (3). Therefore, 153

officers who are to be considered are other than those falling under sub­

regulation (3).

Sub-regulation (3) of Regulation 5 which confers a right to be

considered on certain State Civil Servants who may have attained the age

of 54 also does not qualify this right to be considered by adding that such a
 202

person shall be considered only if he is within the zone of consideration

under Regulation 5 (2).

Clearly, therefore, the persons who are required to be considered for

selection under Regulation 5 (3) are in addition to the persons who are

required to be considered under Regulation 5 (2). In fact, this is how these

recruitment Regulations have been interpreted over a number of years.

The Union Public Service Commission which issues instructions regarding

the manner in which list of officers is to be prepared for consideration by the

Selection Committee and the documents and information which are

required to be submitted to the Union Public Service Commission for

selection of such officers clearly sets this out in clause 3 (d) of the

Instructions.

“3(d) Officers who are over 54 years as on 1-4-1993 are ordinarily not

considered. However, (i) if their names appear in the previous Select List

or (ii) if no Selection Committee meeting was held in the previous year(s)

when he was eligible, then his case will be considered by the current

Selection Committee meeting. For this purpose his name should figure in

the proper place in the Eligibility List and his case will be considered only if

his name falls within the required zone of consideration calculated

according to vacancies. However, the names of such officers will not be

counted in the normal zone and they will be taken as extra to the required

number of 3 times the size of the Select List.

 203

The zone of selection, therefore, under the Regulations consists of

three parts: (1) officers who fall within Regulation 5 (2) after excluding all

officers falling under (2) and (3); (2) officers above the age of 54 who are

“carried forward” from the earlier Selection List in force and (3) officers

above the age of 54 who have been deprived of their chance of being

considered due to non-holding of meetings of the Selection Committee. All

these are to be considered by the Selection Committee. The Tribunal was,

therefore, not right in holding that only persons covered by Regulation 5 (2)

without any exclusion are eligible for being considered by the Selection

Committee.

The second ground of challenge to the selection is that one S.N.

Dubey should not have been a member of the Selection Committee

because his brother was one of the 264 candidates being considered for

selection. The Selection Committee has in fact, not selected the brother.

We fail to see how the selection of all other candidates is vitiated in any

manner by this factor.

The last contention relates to non-application of mind by the

Selection Committee to the task before it because it is contended that the

Committee considered 264 candidates in one day in order to prepare a list

of 51 candidates. The State of Bihar and the Union Public Service

Commission in their affidavits/written statements have clearly set out that

the confidential service records of all the candidates in the zone of

 204

consideration are scrutinized long prior to the holding of the Selection

Committee’s meeting. The Committee applies its mind to the service

records and makes it own assessment of the service records of the

candidates marking them as outstanding, very good, good and so on. The

Selection Committee does not necessarily adopt the same grading, which is

given by the Reporting/ Reviewing Officer in respect of each of the

candidates. In fact the Selection Committee makes an overall relative

assessment of the confidential report dossiers of the officers in the zone of

consideration. It thus does not evaluate the confidential report dossier of an

individual in isolation. It is after this comparative assessment that the best

candidates are put in the Select List. In view of the affidavit so filed, there is

no merit in the contention that the Selection Committee did not apply its

mind while preparing the list of 51 officers. The Tribunal, therefore, was not

right in setting aside the selection made by the Selection Committee at its

meeting of 30-3-1994.

The appeals are, therefore, allowed. The judgment and order of the

Tribunal is set aside and the Select List prepared by the Selection

Committee at its meeting held on 30-3-1994 is upheld as a valid Select List

prepared in accordance with the Indian Administrative Service

(Appointment by Promotion) Regulations, 1955 and in accordance with law.

 205

16. IPS - Appointment of juniors to the post of IGP - Proceedings of

screening Committee quashed due to Commission of irregularities:

In S.S. Darbari vs. Union of India and others,90 the applicant was

an IPS officer of 1967 batch. When he came up for consideration for

promotion to the post of Inspector General, he was superseded by four of

his junior’s one belonging to 1968 batch and three belonging to 1969 batch.

He challenged his supercession and he could establish malafides and

prejudices against him by the reporting officers who had written his A.C.Rs

and one reviewing officer. He also established that A.C.Rs of his juniors

contained superior grading written by the same persons who had under­

rated his performance on account of malice. The Tribunal also observed

that the Departmental Promotional Committee was convened ahead of the

schedule only to enable a person to participate in the said committee who

would have retired had it been convened on time.

And this appeared to have been done to enable the said officer to

cause damage to the applicant. The point for consideration was whether

the Court could interfere with the proceedings of the D.P.C. and whether

malice and malafides were established and if so what were the grounds for

setting aside the proceedings of the D.P.C.

90 Central Administrative Tribunal, Jaipur - O. A. No: 656 of 1993, dated 04.03.1996

 206

The Tribunal relied upon the judgment of the Supreme Court in the

case of Dalpat Abasaheb Solunke vs. B.S. Mahajan, AIR 1990 SC 434,

wherein it has been laid down by Hon’ble the Supreme Court at page 438

that: -

“It is needless to emphasize that it is not the function of the Court to

hear appeals over the decisions of the Selection Committee and to

scrutinize the relative merits of the candidates. Whether a candidate is fit

for a particular post or not has to be decided by the duly constituted

Selection Committee, which has the expertise on the subject. The Court

has no such expertise. The decision of the Selection Committee can be

interfered with only on limited grounds, such as illegality or patent material

irregularity in the constitution of the Committee or its procedure vitiating the

selection, or proved malafides affecting the selection etc. (emphasis

supplied)

The Tribunal quashed the proceedings of the Screening Committee

dated 17.06.1993 and ordered to convene a fresh D.P.C. and it also held

the promotions given on the basis of that proceedings to be irregular and

illegal. It also directed not to take in to account the Confidential Reports of

some of officers, which were apparently doctored so as to place them

above the applicant with malafides. The Tribunal found that the

proceedings of the Screening Committee suffered the following flaws:

i. Illegality and patent material irregularity in the constitution of the

Committee
 207

ii. Irregularity in the procedure of the Committee vitiating the selection

and also

iii. Proved malafides affecting the selection.

17. Validity of select list till a fresh select list is prepared. Rule -5

Appointments by Promotion Regulations and Rule -7 (4):

Nepal Singh Tanwar vs. Union of India91 is another landmark case

in the history of All India Services. It relates to the Haryana Cadre. Nepal

Singh Tanwar is one of the eight officers selected by the DPC for the year

1991-92. He was placed at SI.No. 8. The list was prepared for six

anticipated vacancies and two reserves. The first six vacancies were filled

up with first six persons in the list and the seventh person was appointed to

IAS on 16.02.1992 against the vacancy which fell a little later than twelve

months from the date of original select list and the appellant was appointed

on 12.08.1992 against yet another vacancy which became available by

then. It was contended that the appellant could not have been appointed

as by then the list was exhausted. According to Regulation 5 (1) each

committee shall ‘ordinarily’ meet at intervals not exceeding one year and

prepare a list of eligible members of the State Civil Service considered to be

suitable for promotion to IAS. The Tribunal placed reliance on Khalid

Rizvi’s case wherein, it was decided that meeting of the Select Committee

is mandatory at an interval of one year and the Tribunal placed an

interpretation of judgment of the Apex Court saying after expiry of one year

Supreme Court of India, 1998 (1) Scale (SP) dated 9.12.1996.

 208

the list exhausts and as such appointment of the appellant on a date

posterior to the deemed expiry date of the select list was held to be bad,

and accordingly, quashed his appointment to IAS.

The Supreme Court held that the presumption raised by the Tribunal

while relying upon Khalid Rizvi’s case was not correct. It was clarified that

the meaning and purport of the judgment in that case was not to treat the

select list as exhausted immediately after a period of one year from its

preparation. The Court said that the select list once prepared shall be valid

until its review and revision by another Select Committee which should

‘ordinarily’ meet at an interval of one year but if it fails to meet at an interval

of one year the list prepared shall not be deemed to have been exhausted

after expiry of one year provided the State Government explains the delay

to the satisfaction of the Court.

In this case the delay in convening the next Select Committee

meeting was sufficiently explained by the State Government to the

satisfaction of the Court and hence it was held that the Select List where

from the appellant had been appointed to IAS was not exhausted merely

because a period of one year had lapsed. His appointed was held to be

valid from 12.08.1992 i.e. the date of his original appointment.

This is one of the landmark judgments with regard to the scope of

Rule 5 (1), (2), (4) (6) and Rule 7 (4) of Appointment by Promotion

Regulations and it is an important link in the chain of judgments delivered

 209

by the Supreme Court starting with Khalid Rizvi, Kasturi Rangan etc. This

judgment has added enough clarity to the scope of Regulation-5 on the

question of period of validity of the select list.

18. Suspension of IAS officer before Superannuation - Eligibility of

pension not subsistence allowance - Rules 3,5,5(b) of the All India

Services (Discipline & Appeal) Rules 1965 - All India Services (Death

cum Retirement Benefit) Rules 1959 - Rules 6 and 16 - All India

Services (Leave) Rules 1955:

C. Ramachandran vs. Government of Tamilnadu92 is another

case of political vendetta carried out against an IAS officer by a particular

political party in Tamilnadu. The applicant in this case was appointed to

IAS in the year 1960 and he was due to retire on Superannuation on

31.05.1996. But he was placed under suspension on 29.05.1996 and his

suspension was continued beyond the date of Superannuation on certain

alleged charges of misconduct and certain alleged irregularities.

The factual position is in the General Elections of 1996, which also

included Elections to the State Legislature simultaneously, by a vast

majority Karunanidhi’s Government unseated Ms. Jayalalitha’s

Government. The new regime assumed office in the 3rd week of May 1996.

It appears that the applicant in this case was identified to be one of the

close aides of Ms. Jayalalitha’s. The new regime placed him under

suspension on a date just three days anterior to the date of his retirement

92 Central Administrative Tribunal, Madras- O.A. No: 799 of 1996, dated 03,04.1997
 210

notwithstanding the fact that he was one of the senior most IAS officers of

Tamilnadu cadre. The appellant challenged his suspension and he also the

challenged the presumption of the Government that he would be continued

to be under suspension even after the date of his Superannuation, and till

the enquiry into the charges was completed.

The Tribunal quashed the suspension beyond 31.05.1996 and

declared that from the date of Superannuation he shall be eligible for all

terminal benefits and any suspension, which stretches beyond the date of

superannuation, would amount to stretching the period of service, which

was not permitted by law. It was argued on behalf of the respondents that

F.R. 56 (ff) and Regulation 351-A of Civil Service Regulations were

applicable to All India Service officers, which permit retention in service of a

suspended employee even after attaining the age of superannuation until

an inquiry into the charge was concluded and a final order was passed

thereon by the competent authority. The Tribunal held that an All India

Service officer shall be governed only by the rules made under the Act of

1951 and that Rule 56 (ff) of Fundamental Rule or 351-A of Civil Service

Regulation cannot be deemed to be rules made under the Act of 1951 and

hence they are not applicable to All India Service officers. The Central

Administrative Tribunal held that the suspended employee on reaching the

age of superannuation should be deemed to have retired and that he is

eligible for provisional pension and not for subsistence allowance beyond

the date of superannuation.

 211

19. IFS - Appointment by Promotion - Fixation of year of allotment -

Consideration of period of officiation in the cadre posts for fixation of

seniority and year of allotment - Period of officiation from the date of

inclusion in the Select List to be considered for fixing seniority:

In C. Jayaram vs. Union of India,93 the applicant was appointed to

State Forest Service on 03.02.1983 and was promoted to the senior scale

post of Deputy Conservator of Forest on 24.11.1988. He was holding

equivalent post of the IFS and continued to hold such post till his

appointment to IFS. He was eligible for consideration to be placed in the

select list on 01.01.1990 but the committee constituted for making selection

met on 18.12.1990 and selected the applicant and later on he was

appointed on 11.06.1991. The grievance of the applicant was, because of

the delay in constituting the Select Committee and because of the delay in

finalizing the proceedings of the Select Committee he was given belated

appointment to IFS in the meanwhile certain direct recruit IFS officers

became senior to him who would have been junior to him if he had been

appointed immediately on becoming eligible to be appointed to IFS. He

prayed the Court to direct the respondents to consider the period of

officiation in the senior scale for fixation of his seniority in IFS.

93 Central Administrative Tribunal, Bangalore- OA No: 1934 of 95, dated 05.11.1997

 212

The Court held that there were valid reasons for delay in constituting

the Select Committee and finalizing the proceedings there of which led to

belated appointment of the applicant to IFS and hence his request to

consider the period of officiation in the senior scale could not be maintained

but counsel for the applicant made a request that the period of officiation in

the senior scale post at least from the date of inclusion in the Select list

might be considered for the purposes of fixing his seniority in the IFS. The

Court granted this request as reasonable and directed that the period of

officiation in the senior scale should be considered for fixing his seniority in

IFS and it was directed to examine whether any juniors or direct recruits

were promoted to the senior scale from the date of his inclusion in the

select list. The Court observed that there was no material on record to

show whether any direct recruits were promoted after the date of the select

list and before the appointment of the applicant to IFS and as such it could

not be said whether the year of allotment as fixed needed any change.

However, it was open to the applicant to make a representation for altering

the year of allotment in case any direct recruit had been promoted to senior

post after the date of select list and before the date of his appointment to

IFS. The Court further directed that if such representation was given the

respondent shall pass appropriate orders taking into account the officiating

service of the applicant from the date of select list, if he had been holding a

cadre post.
 213

20. Malpractices in the examination of IFS 1992 - Section 173 (3) and

(8) of the Code of Criminal Procedure 1973:

UPSC vs. S.Papaiah 94and others is a singular case pertaining to

malpractices in the examination of IFS held in 1992. In this case, a criminal

prosecution was launched against the accused.

The respondent faced an allegation that he applied for Union Public

Service Examination for the Indian Forest Service and Urdu Hall,

Himayatnagar was allotted as Centre. The UPSC received a complaint that

the respondent was sitting in a house in Gandhinagar and wrote the answer

sheets in collusion with the Supervisor of the said center. There upon a

complaint was lodged by the UPSC with the CBI when Mr. Vijay Rama Rao

was the Director.

The investigating officer in the rank of an S.P. completed the

investigation and filed a closure report under Section 173 (3) of C.R.P.C.

before the Vth Metropolitan Magistrate. The Court returned the closure

report with a direction to mark a copy of it to the UPSC. The investigation

officer, after a couple of months resubmitted the closure report and again

the Court returned the same with a direction to serve it on the UPSC who

was the defacto complainant. Thereafter the investigation officer filed a

closure report along with an acknowledgement of UPSC saying it was

served on the latter. The Court accepted the closure report and closed the

M Supreme Court of India, Dated 11.09.97, Criminal appeals No: 837 of 1997,
 214

case. There upon the UPSC took serious objection and filed a Criminal

Miscellaneous Petition with a request to reopen the case and to order

further investigation into about six lapses pointed out by the UPSC. The

CMA was dismissed with an observation that the order passed by the

Magistrate was a judicial order and could not be revoked and reopened by

the same Magistrate irrespective of whether the judgment was right or

wrong and it was advised to file a revision before the Chief Metropolitan

Magistrate or the Metropolitan Sessions Judge as the case may be. The

UPSC filed a revision before the 1st Additional MSJ who dismissed the

Revision Petition on the ground that sufficient opportunity had been

afforded to the UPSC and they did not avail it.

The matter was taken to the Supreme Court by way of a Criminal

Appeal and the Apex Court struck down the orders of both the Vth MM and

the 1st MSJ passing strictures against both of them. The Apex Court held

that the Vth MM had enough jurisdiction under Section 173 (8) of the CRPC

to order fresh investigation and it also found that the Revision Petition was

dismissed on baseless grounds ignoring the fact that the closure report had

been filed behind the back of the UPSC without practically affording an

opportunity to them to raise any objections. It directed the CBI to

investigate the whole matter afresh and to appoint a fresh investigating

officer.
 215

This is the case in which, an attempt to enter into IFS by resorting to

malpractices was foiled by the UPSC who un-relentlessly pursued the

matter in the appropriate legal fora and in spite of adverse orders at the

lower courts they took the matter to the Supreme Court to set right the

wrong.

21. IPS (Appointment by Promotion) Regulations 1955- Wait listed

candidates in the select list - Appointment against the vacancies

arising on cadre review after expiry of the period of one year and

before constituting a new Select Committee - Vacancies arising on

triennial review of cadre strength - Subsequent to expiry of the period

of one year from the date of preparation of select list - whether such

vacancies could be used to appoint wait listed candidates.

In V.R.K. Mohan Rao vs. Union of India 95a very interesting

question arose as to whether vacancies arising subsequent to expiry of the

period of one year from the date of preparation of select list but before

constituting a new Select Committee could be used to appoint wait listed

candidates in the select list?

On 22.02.1996 a Select Committee meeting took place for

appointment by promotion to IPS to fill up three anticipated vacancies. A

select list comprising of five officers was prepared and approved taking into

account three estimated vacancies and two reserves. The first three

55 Central Administrative Tribunal, Hyderabad - O.A. No: 558 of 97, February, 1998
 216

candidates were appointed to IPS against the estimated vacancies as and

when they arose and a fortuities vacancy arose on 28.02.1996 due to

sudden demise of a promotee IPS officer namely Sri Y.S.N. Sharma. The

fourth candidate in the waiting list namely Sri K. Laxman Mohan was

appointed to the IPS against the fortuities vacancy on 01.01.1997. The

applicant was kept in the waiting list at SI.No.5 and was not appointed to

IPS on the ground that no vacancy had arisen over a period of 12 months

from the date of preparation of select list. The next select list for 1996-97

could not be prepared due to various reasons. The triennial review of the

IPS cadre strength of Andhra Pradesh was done on 20th January 1997 and

the cadre strength was revised by a notification-dated 25.03.1997 by virtue

of this cadre review three more vacancies accrued to the promotion quota

of IPS.

The point for consideration was whether the applicant could be

appointed to IPS against the vacancies arising out of cadre review which

took place beyond the period of 12 months from the date of preparation of

the select list in which the applicant was shown as wait listed candidate at

SI.No.5.

The contention of the respondents was that enhancement in the

promotion quota on account of cadre review cannot be treated as

unforeseen or fortuitous vacancies and that only those vacancies that arise

on account of death or resignation can be treated as unforeseen / fortuitous

vacancies and hence the applicant had no right to demand promotion to

 217

IPS against those vacancies and that the vacancies arising after a period of

12 months came within the ambit of consideration of the next selection

committee whenever held. It was contended by the applicant that the

Select list prepared on 22.02.1996 was still valid under Regulation 7 (1) of

IPS (Appointment by Promotion) Regulations as also Regulation 7 (4) of the

same Regulations since no fresh list was drawn.

Relying on the judgment in Nepal Singh Tanwar vs. Union of India

the Central Administrative Tribunal ordered that the applicant be appointed

to IPS and that the list prepared on 22.02.1996 would not lapse until a fresh

Selection Committee was constituted.

22. Filing of criminal case in addition to Departmental proceedings

under All India Services (Discipline & Appeal) Rules 1969 - Criminal

case and disciplinary proceedings each one to be dealt on its own

merits FIR and Departmental Inquiry are not parallel proceedings:

N. Hari Bhaskar IAS vs. Union of India and others96, is another

case of political revenge against the IAS officer in the rank of Chief

Secretary. The applicant served as Chief Secretary to Government of

Tamil Nadu during the period 1994 to 1996 in the regime of Ms. Jayalalitha.

In May 1996, when the DMK Government came to power the applicant was

kept under suspension for having allegedly committed certain acts of

misconduct during his tenure as Chief Secretary. It seems that action

96 Central Administrative Tribunal, Chennai, O.A.No: 887 of 1998, dated 04.01.1999

 218

under criminal law had also been taken against the applicant and a criminal

case was registered against the applicant in Crime No: 8/AC/96/HQ dated

27.08.1996. The applicant has been shown as accused No. 2. The

substance of the allegation in the said complaint seems to be that the

applicant along with four others gave favored treatment to M/s Meena

Advertisers represented by V. Krishnamoorthy through a waiver of Rupees

two crores allegedly due from them. It was the contention of the applicant

that charge numbers 5 and 6 of the Charge Memo issued to him on

17.07.1996 and contents of the FIR were one and the same and emanate

from the very same incidents. He had requested the enquiry authority to

defer the enquiry till the Criminal Proceedings were finalized. But in the

meanwhile evidence on charges 1 to 4 had been led. The point for

consideration was whether Criminal Proceedings and Departmental

Proceedings could go on simultaneously particularly if charges shown in the

charge memo and in the FIR are one and the same and also arise from the

same incidents.

Relying on the judgment of the Supreme Court in Kusheswar

Dubey vs. M/s Bharat Coking coal Limited and other (AIR 1988

Supreme Court Cases 2118) wherein it was held that there is no bar or

prohibition against initiating criminal proceedings and disciplinary

proceedings simultaneously.
 219

The Central Administrative Tribunal, Chennai bench dismissed the

application. The other judgments of Supreme Court relied upon by the

Central Administrative Tribunal were:

i. State of Rajasthan vs. B.K. Meena and others, 1996 (6) SCC 416.

ii. Depot Manager, A.P.S.R.T.C. vs. Mohd. Yousuf Miya, 1997 (2)

SCC 699

iii. Govind Das vs. State of Bihar and others, 1997 (11) SCC 361

iv. Kusheswar Dubey vs. M/s Bharat Coking Coal Ltd. AIR 1988 SC

2118

v. G.K. Murugan vs. Union of India, 1990 (6) SLR 380.

vi. Sufal Kumar Naskar vs. Union of India, 1991 (1) SLR 658

vii. K. Ramulu vs. The Secretary to Govt. Dept, of Posts 1992(4) SLR

165.

23. Arisal of fortuitous vacancies consideration of wait listed

candidates - Regulation 5 IPS (Appointment by Promotion) Regulation

1955:

Point for consideration:

In case of M. Satyanarayana Rao vs. Union of India 97and others,

the point for consideration was whether wait listed candidates considered

against arisal of fortuitous vacancies. The Central Administrative Tribunal,

Hyderabad bench, in O.A. No: 456 of 96 having directed the respondents to

consider him for appointment to IPS - Judgment of Tribunal having become

” High Court of A.P. W.P. No: 6171/1999, Dt: 13.4 1999

 220

final but still not implemented, whether a direction could be issued to the

respondents to implement the judgment.

The Court directed respondents 1 and 4 i.e. the Secretary, Ministry of

Home Affairs, Government of India and Chief Secretary of the State of

Andhra Pradesh, to give effect to the orders of the Tribunal in O.A. 456 of

96 within a period of two months.

24. Arisal of fortuitous vacancies consideration of wait listed

candidates in the Revised Select List - Whether zone of consideration

could be enlarged - Regulation- 5 IPS (Appointment by Promotion)

Regulation 1955:

M. Satayanarayana RacP8 of Andhra Pradesh fought a series of

legal battles to get into IPS from the State Police Service. In the process,

some landmark judgments were delivered.

The applicant in the O.A. was appointed as D.S.P. category-ll during

November 1979. His case is relevant to V.R.K. Mohan Rao’s case with a

slight difference. He was considered for the Select List for 1995-96 in the

DPC held on 20.02.1996 but was not enlisted. The applicant then

approached the CAT in O.A. 451 of 1996 decided on 16.08.1996 the said

O.A. was dismissed on technical grounds but certain observations were

made in Para 35 thereof in his favour. Fearing that the respondents might

not take note of the observations in the said Para because the O.A. was

98 Central Administrative Tribunal, O.A.No; 860/1999, Dated 06.08.1999

 221

dismissed, he approached the Supreme Court in S.L.P. No: 2141 of 97 and

the Apex Court observed that the dismissal of the O.A. would not stand in

the way of the authorities in giving due consideration. Still there was no

progress in the matter and the applicant filed this O.A. He also relied on the

order in O.A. 558 of 97 (V.R.K. Mohan Rao vs. Union of India) decided on

26.02.1998. A review select committee was constituted on 05.02.1998 to

consider inclusion of his name in the Select List for 1995-1996 and a

review select list was prepared on 26.02.1996. The review select committee

decided to re convene the meeting on 29.12.1998. The said committee

was convened for preparation of a revised select list for the year 1995-96

by enlarging its size from 5 to 6 and the zone of consideration from 15 to

18. The Revised Select List was met on 29.12.1998 to redraw the select list

for the year 1995-96 and it recommended to include name of the applicant

at SI.No: 6 in the Revised Select List for the year 1995-96 and the said list

was approved by UPSC 22.03.1999 but he was not appointed to IPS on the

ground that the name of the applicant, according to them, was included at

SI.No: 6 only to enable him to have another chance after crossing the age

of 54 years and the respondents submitted that by inclusion of his name in

the Revised Select List the applicant did not acquire any vested right for

appointment to IPS.

It was held that vacancies that arose due to cadre review after expiry

of 12 months period from the date of the original select list must be taken

into account for appointment of the listed officers either from the original list
 222

or from the revised list. The Court observed that since no fresh list for the

years subsequent to panel year 1995-96 had been prepared the only valid

select list available as on date was the revised select list for 1995-96 in

which the applicant stood at SI.No: 6 and relying on Nepal Singh Tanwar

vs. Union of India’s case, the Court directed appointment of the applicant to

IPS from the revised select list for 1995-96 taking the cadre review

vacancies into consideration, one of which was filled up by appointment of

the 2nd wait listed candidate i.e. V.R.K. Mohan Rao. Since V.R.K. Mohan

Rao was appointed against the cadre review vacancies which had arisen

after a period of 12 months from the date of preparation of the original

select list nothing prevented the respondents from appointing the applicant

against the same cadre review vacancies as he was the only person

available in the review select list for the year 1995-96 for the appointment to

IPS. The O.A. was allowed.

25. Arisal of fortuitous vacancies consideration of wait listed

candidates - Extension of zone of consideration:

Against the orders of Central Administrative Tribunal, Hyderabad

bench in O.A. No: 860 noted above, the Government of A.P. filed a Writ

Petition "challenging the order of the CAT on the ground that respondent

No: 1 was included in the Revised Select List prepared on 28.12.1998 only

to make sure that he earned another chance for being considered for

appointment to IPS and that the said inclusion was made basing on the

observations of the Tribunal that injustice had been done to him in grading
w High Court of A.P. W.P.No: 19637 and 22268 of 1999, dated 08.11.1999
 223

as merely ‘Good’ and that he earned no right to be appointed to IPS basing

on his inclusion in the Revised Select List. It was further argued that there

was no scope for relaxation of Recruitment Rules or Appointment by

Promotion Regulations. It was further argued that, a wait-listed candidate

had no right to claim a vacancy on account of cadre review arising after

expiry of a period of 12 months from the date of preparation of the Select

List.

The High Court found that the Government had ample power to relax

any Rule duly invoking the provisions of the All India Services (Conditions

of Service - Residuary Matters) Rules 1960. The Court observed that the

original select list was prepared for three anticipated vacancies with five

officers on the list. In the meanwhile a fortuitous vacancy arose due to the

death of Sri Y.S.N. Sharma, which was utilized, for appointment of

Sri K. Laxman Mohan who was at SI.No: 4. The Court observed that

Sri Y.R.K. Mohan Rao who was at SI.No: 5 were also appointed to IPS

perhaps consuming one of the three vacancies that arose due to cadre

review. While the High Court agreed with the contention of the Writ

Petitioners that cadre review vacancies that arose subsequent to a period

of 12 months from the date of preparation of select list of 1995-96 it also

observed that there could not be any difference between the case of

Sri V.R.K. Mohan Rao and that of Sri M. Satyanarayana the Respondent

No: 1 in the Writ Petition. The Court relied on judgment of the Supreme

Court in R.R. Varma vs. Union of India (AIR 1980 SC 11461). Finally the
 224

Writ Petition was dismissed. Thereafter, Sri M. Satyanarayana was

appointed to IPS. Pursuant to the orders of the CAT on the principle that

arisal of fortuitous vacancy on account of death of Sri Y.S.N. Sharma

should have necessitated a review select committee meeting which would

have enlarged the zone of consideration and the applicant in O.A. who was

at SI.No: 6 would have automatically become a wait-listed candidate and he

would have also been eligible to be appointed to IPS on par with Sri V.R.K.

Mohan Rao. The inclusion of the application in the O.A. in the review select

list prepared on 29.12.1998 entitled him to be appointed to IPS.

26. IPS appointment by promotion Regulations 5 & 2 - size of selected

list Vis a Vis anticipated vacancies:

In V.C. Perumal vs. Union of India and others'00, the point for

consideration before the Court was what could be size of Select List with

reference to anticipated vacancies. A Select Committee met and approved

the list on 23.11.1976 for the panel year 1977 taking in to account the

vacancies anticipated for the period Nov. 1976 to Nov. 1977. There were

four existing vacancies and five anticipated vacancies and a Select List of

ten persons was approved. As per the rule position obtaining then the

Select List should be equal to 10% of the total posts available. The total

posts available to State Police for State of Tamil Nadu were eighty (80) at

least a minimum of eight names were required on Select List.

Supreme Court of India. 1999(1) scale, dated 20.01.1999.

 225

The applicant was appointed as a direct recruit Deputy

Superintendent of Police in the year 1965. He was not included in the

Select List in the 1976-77 but he was included for the first time, in the select

list prepared for 1978. Point for consideration was whether size of the list

should be double the number of vacancies anticipated.

The contention of the appellant that size of the select list prepared in

1977 should have been sixteen (16) i.e. twice as large as the number of

estimated vacancies was not accepted and the Apex Court found that the

list prepared for five vacancies with ten person in the list was in order and

the contention of the appellant that had the size been enlarged to sixteen

(16) he would have been considered for appointment to IPS in 1977 itself

was not accepted. The Civil Appeal was accordingly dismissed.

27. Completion of 8 years of service as Deputy Collector under Rule

5(2) of IAS (Appointment by Promotion) Regulation 1955 - Period

spent in Lai Bahadur Sastri National Academy of Administration was

counted as part of 8 years of qualifying service as Deputy Collector:

In K. Devanand vs. Union of India and five others'01, a very

interesting question arose i.e., whether to count the period spent as IAS

trainee in Mussoorie Academy could be counted as part of qualifying

service in the Cadre of Deputy Collector? Sri K. Devanand was appointed

to IAS in the batch of 1987 and was allotted to Punjab cadre. At the same

101 Central Administrative Tribunal, O.A.No: 744 /1998, dated 06.03.2000

 226

time he was also selected as Probationary Deputy Collector in the Group -I

services in the State of Andhra Pradesh in the year1987. He belongs to

Andhra Pradesh and he preferred to join IAS. He under went one year

training in Mussoorie. Later on, he changed his mind and decided to join

GroUp-l service as Deputy Collector foregoing his position in the IAS in

Punjab cadre. Since he had not joined in the Group-I service for a period of

two years because of his training in the Academy his appointment to Group-

I services was cancelled. He submitted a representation on 17.06.1988 to

permit him to join as Deputy Collector. His application was favorably

considered and the Government issued G.O.Ms.No: 604 permitting him to

join as a Probationary Deputy Collector. After completion of his training in

Mussoorie as IAS probationer the applicant joined as Probation Deputy

Collector on 01.09.1989. Thereafter he was trained for about 12 weeks and

appointed as Deputy Collector. Although the prescribed training for

Probationary Deputy Collector was for a period of 72 weeks.

A Select Committee met on 29.03.1997 to prepare a Select List for

appointment to IAS from the State Civil Service. But his name was not

considered on the ground that he had not completed 8 years of service as

Deputy Collector in terms of Rule 5 (2) of IAS (Appointment by Promotion)

Regulation 1955. Aggrieved by his exclusion he filed O.A. No: 1955 of 97

on the file of the A.P. Administrative Tribunal which was disposed off on

13.02.1998. Accordingly, his case was reviewed and his services were

regularized in the category of Deputy Collector w.e.f. 07.09.1987 on par

 227

with his batch mates (Deputy Collectors) and he was placed at the bottom

of the list. This regularization of service was, however on a notional basis.

The point for consideration in this case was whether the applicant had

completed 8 years of service for consideration of his name for inclusion in

the select list of 1996-97. He also contended that the period of training

undergone in Mussoorie as IAS probationer was considered to be sufficient

for his working as the Deputy Collector and as a result the prescribed

training schedule of 72 weeks to work as Deputy Collector had been

reduced to 12 weeks in his case. Therefore, the period spent in Lai

Bahadur Sastri Academy should also be counted in computing the period of

8 years because the said training was recognized as equal to the training

prescribed for Deputy Collectors.

It was ordered that while computing the 8 years of service the period

spent on training as IAS probationer should also be included and

accordingly the shortfall in the qualifying service would be made up. On

that basis it was ordered to review the case of the applicant for purposes of

inclusion in the Select list, which was prepared on 29.03.1997. It was also

ordered to constitute a review select committee for the purpose.

However, the Government of A.P. did not implement this judgment

and Sri K. Devanand did not file any appeal against non-implementation of

the orders of Central Administrative Tribunal, Hyderabad bench. He was

later appointed to IAS in the Select Committee that met in 2001 by then he

had completed 8 years of actual service in Deputy Collectors Cadre.

 228

28. IPS - date of birth alteration - Subsequent to amendment of All

India Services (Death cum Retirement) Rules 1971:

In case of Union of India vs. C. Ramaswamy and others™2, the

question involved was that of alteration of date of birth of a direct recruit IPS

officer. After amendment of the said rules by notification dated 7th July

1988, the respondent was a direct recruit IPS officer of 1968 batch. His

date of birth was recorded as 17th June 1939. This date was based on the

SSLC Certificate and also in his application for Civil Services examination

of the year 1967. Nearly 14 years after joining service he submitted a

representation to the Government of Andhra Pradesh for changing his date

of birth to 15th June 1941. This application was supported by a Horoscope

prepared in Tamil and extracts from the record of birth from Sub-Registrar’s

office. This request was declined. He further requested to forward his case

to Government of India but it was also rejected. Later on, it was forwarded

to Government of India on his request and the Government of India also

rejected the representation. Thereafter, he filed a suit in the Court of

District Munsiff, Sholinghur impleading the Director of School Education

Madras and the Dist. Educational Officer, Vellore and his eldest Sister

Kamala as defendants. The Court decreed the suit and directed the

Director of School Education to change the date of birth in the SSLC

booklet from 17.06.1939 to 15.06.1941. His SSCL Certificate was duly

corrected. Again he approached the Government of India for altering his

102 Supreme Court of India, Civil Appeal No: 12087 of 1996 Dt.09.04.1997
 229

date of birth. But it was rejected. He made another representation on 4th

January 1994 to consider his case because, earlier, the Government of

India had not considered the documentary evidence and he cited examples

of two other officers in whose case the Government of India had altered the

date of birth. This was also rejected. There upon he filed O.A.No: 383 of

1994 in CAT, Hyderabad. The Tribunal directed the Government to

consider his case and in case it was found the date of birth had to be

altered the necessary correction be made in his Service Register.

Aggrieved by the said direction the Union of India filed this appeal.

The contention that All India Services (Death cum Retirement) Rules

1971 were applicable to the respondent and that the amended rule dated

07.07.1978 was not applicable to him was rejected by the Supreme Court

on the ground that when the respondent made application for the first time it

was dated 4th September, 1982 and by that time Rule 16-A as inserted by

Notification dated 7th July 1978 was in existence. Therefore, this Rule was

applicable to him. The Supreme Court held that the Tribunal had come to

erroneous conclusion by placing reliance on the repealed Rule 16- A as

incorporated in 1971 and came to the conclusion that Sub-Rules (4) of Rule

16-A required a specific determination of date of birth after giving

opportunity to the officer concerned. Finding of the Tribunal that the new

Rule 16- A of 1978 was not applicable to the facts of this case was also

erroneous. The appeal was allowed on the ground that a repealed rule

couldn’t be invoked after a new rule has replaced it. It also held that the
 230

Principle of estoppels would apply and the authorities concerned would be

justified in declining to alter the date of birth. The Court further ordered

that the O.A. filed by him would stand dismissed and the date of birth of 17th

June 1939 recorded in his Service Rules would remain unaltered.

29. IPS - Duty of the State Government to prepare the select list

annually - Failure to prepare select list - Not holding the Select

Committee Meeting - Violation of Regulations 5 (1) of the IPS

(Appointment by Promotion) Regulations and Proviso to Rule 5(3)

involving the question of considering the cases of persons who have

crossed the age of 54 years:

In Pooma Prakash vs. Government of Andhra Pradesh and

others103, the question was whether a Select List should be prepared for

each distinct year or if the Select Committee has met after a couple of years

whether all the vacancies could be bunch together to decide the zone of

consideration.

This is a bunch of original application filed before the CAT,

Hyderabad bench questioning the action of the respondents i.e. the

Government of Andhra Pradesh, The Government of India and the Union

Public Service Commission in having prepared a select list for three years

bunching together all the vacancies and enlarging the zone of consideration

to 56. Actually, 4,6 and 3 vacancies had arisen during the three years from

1996 onwards and the zone of consideration should be 39 i.e. in the ratio of

103 Central Administrative Tribunal, O.A. No: 1971 of 1999,dated 08.02.2001

 231

1:3 of the number of vacancies but another 17 persons who had crossed

the age of 54 years were included in the Select List enlarging the zone of

consideration to 56. It was argued by the applicants that non-preparation of

year-wise Select List and not confining the zone of consideration to the

number of respective vacancies vitiated the select committee proceedings

and that inclusion of the over aged persons who had crossed 54 years was

bad and hence vitiated the Select List.

The Court considered the judgments of the Apex Court in Syed

Khalid Rizvi, Kasturi Rangan, Nepal Singh Tanwar and came to a

conclusion that failure to prepare a year wise list would be valid provided

the Government of the State and the Union and the Union Public Service

Commission explained the reasons therefor satisfactorily but in the instant

case the reasons put forth by the Government of A.P., Government of India

and the Union Public Service Commission were not found satisfactory. On

the question of inclusion of over aged persons the Court found that it was in

accordance with 2nd Proviso to Regulation 5(3) of the IPS (Appointment by

Promotion) Regulations and hence valid but in view of the Select

Committee proceeding itself having been quashed and a direction having

been issued to prepare year-wise Select List confining the zone of

consideration to the number of vacancies in the respective years and to

consider the cases of those persons who had crossed the age of 54 years

as on 1st January of the year in which the Select Committee met. With
 232

these directions the O.A. was allowed and the impugned Select List was

quashed.

30. IPS - Appointment by promotion Regulations 1955 - UPSC failing

to meet every year but only meeting in the 3rd year and selecting

candidates for promotion clubbing together all the vacancies arising

in the 3 years without making a selection list year-wise illegal- IPS

(Appointment by Promotion) Regulation 1955 - Rule 5 (2), (3), (4) and

explanations thereto - Impact of judgment in Khalid Rizvi, Kasturi

Rangan , Nepal Singh Tanwar, T.N. Administrative Service Officers’

Association vs. Union of India and Union of India vs. Vipin Chandra

Shah on the facts of this case:

In UPSC vs. T. Yoganand and others104, filed before the High Court of

Andhra Pradesh, the same question of preparing Select List for several

years at one time bunching together all the vacancies and including the

persons who have crossed the age of 54 years was challenged.

In this case the Select Committee for preparation of a list of officers to

be appointed to IPS could not meet for three years and at the end of 3rd

year a Select Committee met and bunched together all the vacancies that

had arisen between the three years and a single list was prepared as a

result, the zone of consideration was too large and a number of Promotee

Deputy Superintendent of Police were taking precedence over the direct

recruit Probationary DSPs. The direct recruit DSPs challenged the

IM High Court of A.P., 2001 (6) ALD; 555 DB, dated 05.10.2001
 233

aforesaid action in the CAT bench of Hyderabad and the Tribunal had

quashed the proceedings of the Select Committee and directed them to

prepare a select list year wise confining the zone of consideration in the

ratio prescribed depending upon the vacancies arising during each year.

The Union Public Service Commission challenged this in this Writ Petition.

The Court held that the rule position as interpreted by the Apex Court

in the judgments in Mohan Lai Kapoor, Khalid Rizvi, Kasturi Rangan, Tamil

Nadu Administrative Service Officers’ Association, Vipin Chandar Heeralal

Shah and Nepal Singh Tanwar was very clear in the sense it was

mandatory to prepare a year -wise select list but failure to prepare the

select list was not fatal to the proceedings provided delay in preparing year

wise select list was explained to the satisfaction of the Court. In the instant

case the Court came to a conclusion, basing on the facts of this case, that

failure to meet for three years had not been sufficiently explained to the

satisfaction of either the Tribunal or the High Court and hence, it dismissed

the Writ Petition and upheld the order of the Central Administrative Tribunal

whereby proceedings of the Select Committee were quashed and it was

ordered to constitute a fresh Select Committee and to draw Select List

separately for each year.

 234

31. IFS case - Year of allotment of promotion of State Forest Service

officers by promotion in excess of 33g%:

N. Rama Krishna Rao vs. Central Administrative Tribunal and

four others,105 this is a case of far reaching consequences, which still

remain undecided. In this case OA No: 780 of 98 and 1360 of 98 were filed

by direct recruit IFS officers seeking the relief of restoring their date of

appointment to IFS and challenging the revising of the date of appointment

from 6.1.1981 to 19.12.1983 and not to promote the State Forest Service

Officers to IFS in excess of 33 1/3%of the senior posts. Another O.A. No:

798 of 2000- Promotee officers to restore their original date of appointment

to the IFS i.e. 19.12.1983 and the year of allotment 1976 with all

consequential benefits. The first set of O.A. was disposed off with a

direction to the official respondents to consider the representations

submitted by the petitioners and to pass suitable orders as per the rules.

This was challenged in W.P. No: 20480. Writ Petition No: 5584 of 2001

directed against the disposal of the second batch of O.As noted above. Sri

N. Rama Krishna Rao of W.P. No: 20480 of 1999 was appointed as ACF in

the A.P. State Forest Service on 18.04.1967. He was appointed to IFS

w.e.f. 06.01.1981. He was promoted to super time scale on 19.07.1988. In

the meanwhile there was a tussle going on between direct recruit ACFs and

Promotee ACFs for fixation of their inter-se seniority. The Court had

delivered judgment in favour of the direct recruit ACFs from State Forest

10i High Court of A.P., W.P.No: 20480 of 1990, dated 10.04.2001

 235

Service and accordingly the seniority of all the officers in the Department

was revised. The same herein also affected the Writ Petitioner and his

seniority was revised from 6.1.1981 to 19.12.1983. Challenging the same

he and another Krishna Bhoopal Rao had filed O.As, which were disposed

off with a cursory direction to the respondents to consider their applications.

The orders revising their seniority was contained in a Government of India’s

Notification dated 15.05.1988 which was issued in compliance with certain

orders passed by the Central Administrative Tribunal in O.A. Nos 48 of 96

etc. The contention of the two Writ Petitioners herein is that the above

orders were passed without issuing the notices to them and the persons

who filed the O.A.Nos 48 of 96 were junior to them in the State Forest

Service except one and that they were not impleaded as parties to the said

O.As. As a result of the said order the date of appointment to IFS was

changed from 19.12.1983 to 25.09.1984 and the year of allotment was

changed from 1976 to 1981.

Petitioners in W.P. 2573 are direct recruit officers of IFS. They also

were seeking quashing of the Government of India’s Notification dated

15.05.1998 but for a different purpose.

This case is another landmark case in the history of All India Services

in Andhra Pradesh and is pari-materia with the leading case of Guduru

Kishan Rao and others. By virtue of these two judgments seniority of

hundreds of IFS and IAS officers was affected and drawal of panels

consequent on the judgments of various courts resulted in further injustice

 236

to many of the officers and also led to multiplicity of litigation which is still

going on as on the date of this dissertation.

There were certain disputes in regard to the fixation of inter-se

seniority amongst various groups of officers borne on the State Forest

Service Cadre and ultimately a final seniority list of ASCFs was published.

Certain SSF officers who have gained seniority approached the CAT for

reconsideration of the selections made to the IFS from the State Cadre

officers between 1976 and 1991. Subsequently the official respondents

constituted a review selection committee and several of the State Cadre

officers were appointed to IFS which appeared to be in excess of 33 1/3% of

the senior duty posts challenging this W.P. No: 25730 of 1999 was filed the

question that ultimately arose before the Tribunal was with regard to the

inter-se seniority:

i. Among the promotee state cadre officers themselves on one hand

and

ii. And the inter-se seniority between the promotee IFS officers and the

direct recruit IFS officers on the other hand.

According to the Petitioner in W.P. 24080 of 1999 the applicants in

O.A. Nos; 48 136,158,159,170,203 and 223 of 1996 and 218 of 1998

basing on whose judgment the entire seniority list was revised were junior

to them except one Sri A. Prasad and in that event there was no necessity

for changing the year of allotment and date of appointment and the order of

the CAT could not have been passed without notice to them.
 237

The Court observed that some of the promotees and direct recruits

had filed implead petitions and the batch of Writ Petitions pending before

the Court. The High Court remanded the case back to the Tribunal to be

disposed off afresh and by impleading Writ Petitioners here in as necessary

parties and also those who are seeking to implead themselves in the Writ

Petitions. This case is still pending before the Central Administrative

Tribunal, Hyderabad bench.

32. All India Services (Discipline & appeal) Rules 1969 - Request to

quash charge memo - Dismissed:

In R.P. Meena IPS vs. Union of India and three others106, the

applicant had approached the Central Administrative Tribunal to quash the

Charge Memo issued against him by the authorities.

Charges against Sri R.P. Meena, IPS for his alleged misconduct in

having obtained a Confidential Document of the State Government by unfair

means and enclosing a copy of the document in his counter in SLP filed by

the State Government. The said SLP was dismissed because of the

document filed by Sri R.P. Meena allegedly violating the Conduct Rules.

The following charge was framed against him.

"That Sri R.P. Meena, IPS, formerly Commissioner of Police,

Visakhapatnam, and now working as Deputy Inspector General,

A.P.S.P. Battalions, Kakinada has secured a copy of the intelligence

106 Central Administrative Tribunal, Hyderabad, and O.A.No: 92 of 2000, dated 10.04.2001
 238

report which is an official document from an unofficial source by

adopting improper and clandestine means which amounts to theft of

official document and filed a copy of the same as a part of evidence

in support of his offence before the Supreme Court in the S.L.P.

. No: 10162/97."

It was argued on behalf of the applicant that the allegation in the

charge, even if found true, would not constitute misconduct for the reason

that the conduct of a party in a litigation cannot be subject to the jurisdiction

to the disciplinary rules and that it was for the Court concerned to have

taken objection if it found his conduct as objectionable and that there was

lack of bonafides on the part of the State Government in having initiated the

disciplinary action.

The court dismissed the application on the ground that there was no

substance in the argument. The Court also passed strictures against the

applicant but made it clear that any of opinions expressed in the orders

should not influence the mind of the authorities holding the enquiry.

33. IPS - Appointment to the post of DGP ignoring placement in the

merit list of IPS - Held valid:

/n Manas Kumar Chakravarthi vs. Union of India and six

others107, the applicability of the guidelines framed by the Supreme Court

107 Central Administrative Tribunal, Calcutta, O.A.No: 673 of 2001, dated 19 10.2001
 239

of India in the case of Vinit Narayan 108vs. Union of India were insisted upon

in the matter of appointment to the post of DG & IGP.

The applicant Sri Manas Kumar Chakravarthi and respondent No: 6

Sri Dinesh Chandra Vajpai were IPS officers of 1966 batch and in the merit

list the name of the applicant was at SI. No: 2 and that of the respondent No:

6 was at SI.No: 6.

There were four posts of Director General of Police in the State of

West Bengal namely; a) D.G. and IGP, b) DG and Commandant General

(Home Guards) c) Director (Training) and d) Director (Intelligence). While

the applicant was working as DG and C.G. (Home Guards) a vacancy of

D.G. and IGP arose. The Home Secretary considered a panel of certain

officers and recommended the name of respondent No: 6 to the Chief

Minister who appointed him as DG and IGP. Aggrieved by this order the

applicant challenged it on the following grounds.

i. That the Supreme Court had laid down certain conditions in Govt, of

Karnataka vs. C. Dinakar’s case (1997) (5) SCC 161) which, inter

alia, prescribed that a person who is in the grade and scale of DGP

can alone be appointed as DG and IGP and not others.

ii. That the respondent No: 6 by virtue of his office as DG & IGP would

in a position to issue commands to the applicant, which might be

embarrassing.

108 AIR 1988 SC 889

 240

iii. That the appointment of respondent No: 6 was pursuant to a game

plan whereby two officers senior to him were asked to go on

voluntary retirement.

iv. That there was no credible mechanism in selecting the DG & IGP as

was mandated by the Supreme Court in the case of Vinith Narayan

vs. Union of India AIR 1998 SC 889) hence his appointment as DG &

IGP was illegal.

The rival contention was that the respondent No: 6 would not become

the boss of the applicant by virtue of being DG & IGP and that Dinakar’s

case was not applicable to the facts of West Bengal in as much as there

were no rules / orders / guidelines framed by the Government of West

Bengal and in the absence of which Central Government guidelines were

followed and that the allegation that there no credible mechanism was

denied.

The Court found that there was no rule / order / guideline to the effect

that only DGPs holding post on substantive basis were eligible to be

considered for the post of DG & IGP and it also found that even in Dinakar’s

case this contention was not supported. It also found that Dinakar’s case

was decided on the basis of the admitted facts of the case and no principles

or law were laid down by the Apex Court on the question of eligibility of the

officers to be considered for the post of DG & IGP. It also found that the

procedure laid down by the Government of India was duly followed by

empanelling Respondent No: 6 for the post of DG & IGP. It also held that
 241

not evolving a credible mechanism did not vitiate selection of Respondent

No: 6. Finally the O.A. was dismissed.

34. IAS (Appointment by Selection) Regulations 1956 - IAS

(Appointment by Promotion) Regulations 1955 - If a select Committee

did not meet for 3 years and in the meanwhile the applicant crossed

the age limit no obligation to hold notional select committee for the

years for which no Committees were constituted:

In Parameswar Prasad vs. Union of India and others109, the Select

Committee did not meet for three years to consider the cases of non-SCS

officers for appointment to IAS. In the meanwhile, the applicant had crossed

the age of 54 and he pleaded for constitution of notional committees for the

years for which no committees were constituted. This argument did not find

favour in all the Courts in the hierarchy up to the Apex Court.

The appellant joined Bihar Statistical Service in a class-ll grade on

22.08.1968 was posted to Class- I grade in July 1992 and again in July

1994 he was given the senior selection grade. His name was

recommended on 15.11.1994 for Appointment by Selection to the IAS by

his parent Department. No meeting of a Screening Committee for short

listing of candidates took place for the years 1994-95, 1995-96. On

12.12.1996 his name was again recommended but the State Scrutiny

Committee did not favourably consider the claim since he was above 54

109 Supreme Court of India, 2001 (7) Scale, dated 30.10.2001

 242

years as on 01.04.1996. He filed O.A. No: 213 of 97 and later on the O.A.

was dismissed, he filed Writ Petition in the High Court of Patna but the High

Court also declined to interfere. The matter came up before the Supreme

Court. Point for consideration was if no Selection Committee meeting took

place for three years and at the end of 3rd year if the appellant had crossed

the age of 54 years whether he had a right on par with the SCS officers to

be considered for appointment by selection in spite of crossing 54 years.

The Tribunal had held that there is statutory obligation to have an

Annual Selection for Appointment by Promotion of SCS officers but no such

statutory obligation was cast under the Regulations for such annual

consideration in respect of Appointment by Selection method. The

appellant tried to rely upon the proviso to Regulation 5 (3) of the IAS

(Appointment by Promotion) Regulations. The Supreme Court held that

there is separate set of rules for IAS (Appointment by Selection) Regulation

of 1956 and those Regulations do not provide for either holding a select

committee meeting every year or for consideration of those candidates who

have crossed the age of 54 years if no selection committee meeting had

taken place when they were well within the age limit of 54 years. The

appeal was dismissed.

 243

35. IPS (Appointment by Promotion) Regulations 1955 - Non­

consideration of meritorious candidates - Quashing of select list:

In P. Hari Kumar and M. Kantha Rao vs. Union of India and six

others11°, action of the Select Committee in having scrutinized the Service

Record of the preceding five years only rather than the entire service record

and mechanically selecting the candidates as per seniority was questioned.

The points for consideration in this case were, whether action of the

Selection Committee in confining its scrutiny to the preceding five years

service was sufficient or was it required to consider the entire service

record. Whether action of the Selection Committee in down grading the

‘outstanding’ grading to ‘very good’ was justified. The allegation that the

Selection Committee mechanically selected the candidates according to

their seniority only was not justified. Whether it was obligatory on the part

of select committee to grade such of those people who are officiating in

higher posts, one step higher. Whether the reliance placed on a defective

select list vitiated the selection process.

The Court found that the down grading of the grade of the applicant

from ‘outstanding’ to ‘very good’ and not doing so in case of another person

who stood on par with the applicant was arbitrary and illegal and the

notification issued appointing the respondents to IPS excluding the

applicant was set aside.

1,0 Central Administrative Tribunal, Hyderabad, O.A.No: 1004 of 2002, dated 21.02.2003
 244

The second important contention that the seniority list of DSPs which

constituted the basis for deciding inter-se seniority was itself defective as

admitted by the Government of Andhra Pradesh before the Supreme Court

and that selections made on the basis of the said seniority list were bad did

not find favour with the bench. The bench observed that while the

impugned seniority list might be a disputed one but there was no dispute

with regard to the inter-se seniority of the applicants and the respondents

who all belong to the same batch of direct recruit DSPs of 1987. The Court

further observed that the Supreme Court had not stayed operation of the

said seniority list so the State Government was entitled to draw the list of

the eligible candidates as per their seniority in the said list.

Both the O.As. were allowed and the notification dated 02.08.2002 of

the Ministry of Home Affairs, Government of India number 1-14011/1/2002-

IPS-I was set aside holding it to be arbitrary and j unsustainable and that

the exclusion of the applicants was arbitrary and violative of articles 14 and

16 of the Constitution and the respondents were directed to consider the

cases of both the applicants while convening a fresh Select committee

meeting. With regard to the question whether officers officiating in a higher

post should be given a grade one step higher it was pointed out that the

Supreme Court had modified the said order of the full bench of CAT,

Hyderabad and hence, it was found not necessary to keep them in higher

grade if they officiated in a higher position.

 245

IAS Appointment by Promotion - Cadre Strength - Change in the

prescribed ceiling affected by adding supernumery posts - invalid:

36. In Gudur Krishna Rao and others vs. Suthirtha Bhattacharya and

others,111 which is a landmark case in the domain of All India Services.

This is perhaps one of the most important cases of a legal tussle

between direct recruit IAS officers and officers promoted from the

State Civil Services in the State of Andhra Pradesh. This case revolves

around IAS (Recruitment) Rules 1954 and IAS (Fixation of Cadre

Strength) Rules 1955. It also involved the principle of harmonious

construction while deciding the constitutional validity of amendment

to the schedule to Cadre strength Regulation whereby the ceiling of 33

1/3 percent earmarked for the State Civil Service Officers was

temporarily exceeded to accommodate 14 more officers into the select

list of 1987. This accommodation was necessitated basing on orders

of various courts. The direct recruit officers challenged the two

notifications amending the cadre strength Regulations to

accommodate the 14 officers in a particular select list. The Central

Administrative Tribunal, Hyderabad bench had quashed the said

notifications forcing the appellants in this case to file appeals before

the Supreme Court. The brief facts of this case are as follows:

The appellants were initially recruited to the post of Deputy Collectors

in the State of Andhra Pradesh and were appointed by order-dated

111 Civil Appeal Nos: 6525-6531 of 1994 and 750 of! 995 before the Supreme Court of India.
 246

29.12.1978 issued by the Government of Andhra Pradesh. On getting

posting orders in different places in the State, one of them (Umamalleswar

Rao) joined his post on the very next day as his posting was at Hyderabad

itself. The other appointees joined their respective posts on different dates

in January 1979 depending upon the time that was required for them to go

and join the post. The State Government issued GO No: 493 dated

8.4.1992, indicating that the services of these officers would count from the

date on which the respective higher rank-holders in the merit list joined the

duty in January 1979. On account of the aforesaid Government Order

Umamalleswar Rao’s date of joining became 18.1.1979 though factually he

had joined the duty on 13.12.1978. Under the provisions dealing with

promotion to the IAS cadre, an officer belonging to the State Civil Service

must complete 8 years of service on 1st January of the year in which the

Select Committee meets in order to be eligible for being considered for

promotion. Umamalleswar Rao who had factually joined as Deputy

Collector on 13.12.1978, but was deemed to have joined the post on

18.1.1979 because of the Government Order dated 8.4.1982 was not

eligible for being considered for promotion in the year 1987, as he could not

complete 8 years by 1.1.1987. He therefore, filed an application before the

Andhra Pradesh Administrative Tribunal, which was registered as RP No:

9173 of 1987 contending therein that his services from the date of his

joining on the post of Deputy Collector, i.e. 13.12.1978 should be counted.

Similar applications were also filed by some other officers which were

registered as RP No: 7311 of 1987 and RP no: 7194 of 1987. In case of

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Umamalleswar Rao the Tribunal granted an interim direction that his case

be placed before the Select Committee who is to prepare a Select List for

the year 1987. The Select committee, which met on 15.12.1987,

considered the cases of 26 officers for promotion who had completed 8

years of service on 1.1.1987. The number of vacancies, which were

anticipated for being filled up by promotion, was 13. All the 26 officers who

were considered by the Selection Committee were included in the Select

List for the year 1987 as the Select List was to be prepared for twice the

number of vacancies. The Selection Committee also gave their respective

positions in the Select List. Out of the said Select List 7 were promoted to

the IAS earlier to 16.12.1988 and 5 were promoted w.e.f. 16.12.1988, the

13th man in the Select List was not promoted as certain enquiry was

pending against him. The 14th man, one Shri Ram Chandra Murthy filed an

application before the Tribunal, which was registered as OA No: 223 of

1989, claiming that was entitled to be promoted against the 13th vacancy.

The Tribunal allowed that application and special leave petition against the

said judgment by the Union of India stood dismissed. He was, therefore,

appointed to the Indian Administrative Service w.e.f. 16.12.1998 the date on

which the vacancy was available. In the meantime, the State Tribunal

heard the petitions filed before the Tribunal by the promotees and by order

dated 22.3.1988-quashed G.O.Ms.No. No: 493 dated 8.4.1982 and held

that the services of the Deputy Collectors has to be reckoned from the date

of their appointment and the case of such of the Deputy who had not been

considered for being included in the Select List of IAS of 1987 on account of
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non-completion of 8 years of service by 1.1.1987 should be reconsidered.

In implementation of the aforesaid direction of the Tribunal Government

Order was issued on 31.5.1990 regularizing services of the appellants with

effect from the date of their appointment order i.e. 29.12.1978. The

appellants, therefore, made a representation to the Government to review

1987 Select List for the IAS. Since no orders were passed on the

representations, two petitions were filed before the Tribunal being OA No:

442 of 1988 and OA No: 206 of 1991 for a direction to the authority to

constitute a review committee for redrawing up of the Select List for the

year 1987. The Tribunal disposed of those matters by order dated

21.01.1992 directing the Government to constitute a review committee and

to review the case of all those who became eligible for consideration on

completion of 8 years of service by 1.1.1987 and if, ultimately they are

found suitable to promote them to the IAS with effect from the date their

juniors were promoted. In accordance with the direction of the Tribunal, as

aforesaid, the Selection Committee was constituted and on reconsideration

of the case of the appellants along with other similarly situated officers, 14

of them were included in the revised Select List, thus the Select List for the

year 1987 consisting of 26 officers initially selected and 14 others

additionally selected. The Selection Committee also thought it appropriate

not to disturb the members of the original Select List. Under such

circumstances the State Government thought it appropriate to create

supernumerary posts in the IAS to accommodate 14 officers who were

brought into the Select List of 1987 on reconsideration. The State

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Government sent the necessary proposal to the Central Government and at

that stage some of the directly recruited officers of the IAS filed application

before the Tribunal which was registered as OA No: 457 of 1993,

contending that the proposal of the State Government for creation of 14

additional supernumerary posts in the IAS is without jurisdiction That

application was disposed of with the direction to the State Government to

consider and dispose of representations filed by the direct recruits in

accordance with law. The Central Government examined the proposal of

the State Government and finally issued the notification-dated 15.12.1993,

by which notification the Cadre strength Regulation was amended for the

State of Andhra Pradesh and 14 supernumerary posts were created. The

Government of India further issued a notification on 16.12.1993, appointing

the 14 persons of the State Civil Services to the Indian Administrative

Service who were brought into the Select List have been filed by the State

Government at the instance of the Central Government before the Tribunal

and contempt petitions also have been filed by the present appellants

before the Tribunal but all those petitions were disposed of by the Tribunal

on a finding that the directions of the Tribunal have been duly complied with

and the earlier order of the Tribunal does not contain any error on the face

of the order requiring to be reviewed. The direct recruit IAS officers being

aggrieved by the notification of the Government of India dated 15.12.1993

and 16.12.1993, approached the Central Administrative Tribunal and the

said Tribunal by the impugned order dated 26.8.1994, having allowed the
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same and having quashed the notifications the present appeals were

preferred.

The Supreme Court dismissed the Appeal on the following grounds:

1. That the notification increasing the number of posts in respect of item

3 of the schedule relating to Andhra Pradesh was considered to be a

mere amendment to the regulation and it could not be given the

status of the act or the rule. Hence, the said notifications were bad in

law.

2. That where it was not possible to make a harmonious construction to

try to save the provisions the court would have not option but strike

down the same. It was held that the impugned amendment of

regulation could not be harmoniously construed with Rule 9 of the

Recruitment Rules.

3. The addition of 14 officers to the Select List and retention of the 13

officers who were originally appointed to IAS thereby increasing the

cadre strength fixed for Andhra Pradesh was held to be bad on the

ground that the Select List should not have exceeded the prescribed

limit and that only 13 officers should have been appointed from the

list of 40 as it amounted to amending the regulation beyond the

scope of the rules.

4. The Supreme Court, finally, gave an equitable direction to do

complete justice between the parties. It directed that the persons

irregularly appointed need not be remove from service but their

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seniority and year of allotment should be re-done so that interests of

the direct recruit IAS officers would not be adversely affected. To

clarify the matters for the Supreme Court gave the following

directions:

“This can be achieved by treating only the first 13 officers of the Review

Select List which contains the names of the total 40 officers in order of merit

could be treated to be the officers promoted on the basis of 1987 Select List

and their year of allotment may accordingly be determined. So far as the

officers from Serial Nos. 14 to 40 are concerned of the said Review Select

List of the year 1987 while they would be permitted to continue in the Indian

Administrative Service but such continuance will not confer on them the

right to count their seniority and year of allotment but their cases will have

to be adjusted in the subsequent year depending upon the number of

vacancies and the posts available for such promotees and their year of

allotment would be re-determined accordingly. We would further make it

clear that if any of these State Civil Service officers who were much junior

to the officers who had approached the Tribunal on earlier occasion and

who had been appointed on promotion to the Indian Administrative Service

on the basis of the original Select List of the year 1987 their year of

allotment has to be re-determined in view of their position having been

pushed down in the Review Select List of the year 1987 which contains the

names of all the 40 officers. We decline to interfere with the order of the

Central Administrative Tribunal but we issue the aforesaid directions for the
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purpose of re-determination of the seniority and year of allotment of these

officers, which we think is necessary in the interest of justice. All these

appeals are disposed of accordingly. There will be no order as to costs.”

The Government of India, the Union Public Service Commission and

the Government of Andhra Pradesh implemented this order in the following

manner:

1. The appointment to IAS of all the officers of a State Civil Service

starting from the panel year 1987 to 1996-97 were rescinded. In the

process, not only the 14 officers who were found to have been

irregularly appointed to IAS from the Select List of 1987 were

terminated from IAS but also the officers who were appointed

subsequent to 1987 panel year coming down to 1996-97 panel year

totaling about 100 in number were terminated from IAS and

subsequently re-appointed to IAS giving them different years of

allotment lower than 1987. This was done in a review select

committee meeting held on 28th 29th and 30th of December 1998.

2. Two officers from 1996-97 panel were not only terminated from IAS

but were not re-appointed saying there was no vacancy. Although 33

vacancies had arisen due to cadre review but they were arbitrarily

. not taken into consideration saying they had arisen subsequent to the

cut off date.

3. Majority of the affected officers filed O.As before the Central

Administrative Tribunal, Hyderabad bench and the bench allowed the

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O.As of the two officers from 1996-97 panel but covered the cases of

all the affected officers right from 1987 onwards. The judgment was

delivered on 09.06.2000.112

4. The Government of India and the Union Public Service Commission

filed appeals before the High Court of Andhra Pradesh but the

appeals were dismissed on 06.09.2002. 113

5. Instead of implementing the orders of High Court of Andhra Pradesh,

the Government of India and the U.P.S.C., approached the Supreme

Court after expiry of the appeal time to permit them to file review

before the High Court of A.P. The Supreme Court permitted them to

file review as prayed for. 114 The U.P.S.C., and the Government of

India did not file any review before the High Court of Andhra Pradesh.

6. After the time allowed to file review had expired the Government of

India and the U.P.S.C., have filed a bunch of clarification petitions115

before the Supreme Court in the year 2004 which is still pending.

It may be noticed that the litigation that had started in 1993 is still

going on in 2009 also and in the meanwhile many of the IAS (SCS) officers

have retired without the matter having been resolved before their

superannuation. It is also not known how long it will take. Similarly, the

case of N. Rama Krishna Rao of IFS, after having been remanded by High

112 O.A.No: 1915 of 1999 before CAT, Hyderabad bench.

1,3 W.P. Nos: 19323 of2000 before the High Court of Andhra Pradesh.
114 W.P. No: 24087 of2000 before the High Court of Andhra Pradesh.
1,5 Union of India vs. Mohammed Ali Rafath- Civil Appeal No: 6525 & batch of 2004
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Court of Andhra Pradesh is still pending before the Central Administrative

Tribunal, Hyderabad bench though a period of 10 years has already lapsed.

The afore noted cases confirm the following two hypotheses:

1. Source of Recruitment to All India Service: Source of recruitment to

All India Services, direct / promotion has a direct relation to the

conflict within the cadre.

2. The judicial decisions often take an unduly long time to resolve the

disputes and are often diluted due to its non-implementation within a

time frame and thus defeat the interests of the aggrieved persons.

CONCLUSION ON THE REVIEW OF SAMPLED CASE LAWS:

It goes to prove that as far as service related disputes are concerned

the All India Service officers enjoy no better a place than any other category

of services under the Union or the States. It also suggests that as far as

IAS and IFS are concerned 15 years time is not too long a span of time to

resolve service related disputes. Thus, the hypothesis number 7 ‘the

judicial decisions often take an unduly long time to resolve the disputes and

are often diluted due to its non-implementation within a time frame and thus

defeat the interests of the aggrieved persons’ is proved.

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