K.S. Yadav and Another vs State of Haryana and Others

Amarjeet Chaudhary, J.—The recruitment to the Indian Administrative Service which is the backbone of the administrative machinery of the

country, is made by different methods viz. by a competitive examination, by selection of substantive member of a State Civil Service and by

selection, in special cases from among persons, who hold in a substantive capacity gazetted posts in connection with the affairs of a State and who

are not members of a State Civil Service. The Petitioners in their endeavour to hold the Indian Administrative Service (IAS for short), post have

instituted this writ petition clamouring for issuance of a direction to the official Respondents to send their names of the Selection Committee after

quashing the State Government''s decision transferring the non-State Civil Service posts to the State Civil Service.

A brief narration of facts to the extent necessary to get hang of the issue is that Petitioner No. 1 is a confirmed Deputy Excise and Taxation

Commissioner, with effect from 1st-September, 1977 and presently holding the post of Additional Excise and Taxation Commissioner. He is an

ex-Serviceman having served the Indian Army from 30th July, 1963 to 10th January, 1968, i.e. during the period of emergency and after release

from the Army initially joined as Excise and Taxation Officer on 20th June, 1972. Subsequently, on being given the benefit of military service

rendered by him, he stood confirmed as Joint Excise and Taxation Commissioner with effect from 18th March, 1983. Petitioner No. 2 is a direct

recruit and on being appointed initially as the District Food and Supplies Controller and having been promoted on various promotional posts is

presently holding the post of the Additional Director Food and Supplies Both the Petitioners claim to have unblemished outstanding/excellent

service record. They also claim to have been holding the highest posts to which a non-State Civil Service Officer can be appointed.

In exercise, of powers conferred under Rule 8(2) of the Indian. Administrative Service (Recruitment) Rules, 1954 (hereinafter to be referred as

the 1954 Rules), the State of Haryana decided to fill up two posts of IAS by considering the cases of eligible non-State Civil Service Officers

having excellent service career. The State Government issued a circular No. 15/3/89-S(1) dated 22nd June, 1989, copy of which is Annexure P-

1, calling upon all the Financial Commissioner and the Administrative Secretaries of the State of Haryana, to recommend two names of non-

Haryana Civil Service officers including officers of Technical Service by 24th July, 1989, who fulfilled'' the following conditions:

(i) Outstanding merit and ability;

(ii) Who had worked for at least 12 years in the State Government on gazetted posts and should be holding a substantive post; and

(iii) should be less than 54 years of age. The date stipulated for fulfillment of the aforesaid conditions was 1st January, 1989. In pursuance of

circular, (Annexure P-1 the names of the Petitioners were recommended, along with other eligible officers, by their respective departments, after

getting approval of the Minister Incharge which further got approval of the Chief Minister of Haryana. But before the names of the recommended

officers could be forwarded for consideration by the Selection Committee, the new Chief Minister was enthroned and he too, after due

deliberations, approved the names of the officers so recommended, including the Petitioners.

The Petitioners allegations are that the State Government after abruptly reviewing its decision, Annexure P-1, decided not to consider the names

of the Petitioners and other non-State Civil Service Officers. It is this action of the State Government which has been subjected to judicial scrutiny

in the instant petition, on grounds, viz. the State Government is exercising its powers in an arbitrary manner to accommodate the officers of its liking

and is not giving due representation to the non-State Civil Service Officers; the State Government is failing to invoke the provisions of Rule 8(2) of

the 1954 Rules which has resulted in discriminatory treatment to the non-State Civil Service Officers.

Shri Vinod Sharma, counsel for the Petitioners while raising ancillary argument to demonstrate discrimination, urged that once the State

Government having decided to provide, of course, a realistic opportunity to move upward to the non-State Civil Service Officers and their names

having been duly recommended on being found to be the possibly-best-incumbents duly green flagged by two Chief Ministers, could not

subsequently retract its decision and this action of the Government is arbitrary and cannot, therefore, be sustained.

Since a good deal of the argument centres round the selection of State Civil Service and non-State Civil Service Officers to I.A.S., it would be

pertinent to extract here the material portions of various Rules and Regulations to know as to how and from what source, such selection is made.

Rule 4 of the 1954 Rules deals with the methods of recruitment to the I.A.S. It reads thus:

Method of recruitment to the Service--(1) Recruitment to the Service after the commencement of these Rules, shall be by the following

methods, namely:

(a) by a competitive examination;

(aa) by selection of persons from among the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces

of the Union, who were commissioned on or after the 1st November, 1962 but before the 10th January, 1968 or who had joined any pre-

commission training before the later date, but who were commissioned on or after that date;

(b) by promotion of substantive member of a State Civil Service;

(c) by selection, in special cases from among persons, who hold in a substantive capacity gazetted posts in connection with the affairs of a State

and who are not members of a State Civil Service.

(2) Subject to the provisions of these rules, the method or methods of recruitment to be adopted for the purpose of filling any particular vacancy or

vacancies in the Service as may be required to be filled during any particular period or recruitment, and the number of persons to be recruited by

each method, shall be determined on each occasion by the Central Government in consultation with the Commission:

Provided that where any such vacancy or vacancies relate to an State Cadre or a Joint Cadre, the State Government shall also be consulated.

Rule 8 of the 1954 Rules, depicts the criterion to be adopted for promotion or selection to the I.A.S. This rule is reproduced:

Recruitment by promotion or selection for appointment to the State and Joint Cadre--(1) The Central Government may, on the

recommendations of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the

Central Government may, after consultation with the State Governments and the Commission, from time to time, make, recruit to the Service

persons by promotion from among the substantive members of a State Civil Service.

(2) The Central Government may, in special circumstances and on the recommendation of the State Government concerned and in consultation

with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Governments and

the Commission, from time make, recruit to the Service any person of outstanding ability and merit serving in connection with the affairs of the

State who is not a member of the State Civil Service of that State, but who holds a gazetted post in a substantive capacity.

(3)(a) Where a vacancy occurs in a State Cadre which is to be filled under the provision of this rule, the vacancy shall be filled by promotion of a

member of the State Civil Service or, as the case may be, by selection of any other officer serving in connection with the affairs of that State.

(3)(b)

The Central Government, in exercise of powers conferred under Sub-rule (2) of Rule 8 of the 1954 Rules, framed the Indian Administrative

Service (Appointment by Selection) Regulations, 1956 (hereinafter to be referred as the 1956 Regulations) and Regulation 3 thereof, which

envisages the eligibility, mode of selection and appointment to the I.A.S. was amended,--vide notification, dated 30th March, 1989. Regulation 3,

as amended, by Second Amendment Regulations, 1989, reads as under:

Eligibility, mode of selection and appointment to the Service--(1) In accordance with the provision contained in Sub-rule (2) of Rule 8 of the

Recruitment Rules, the State Government may, from time to time, consider the cases of persons not belonging to the State Civil Service but serving

in connection with affairs of the State in the case of Joint Cadre who--

(i) are of outstanding merit and ability; and

(ii) have completed not less than 12 years of continuous service in a gazetted post under the State Government or in the case of Joint Cadre, under

any one of the State Governments constituting the Joint Cadre, holding that post in a substantive capacity and purpose the names of officers

suitable for appointment to the Service:

Provided that the State Government shall not ordinarily consider the cases of persons who have attained the age of 52 years. (The conditions

regarding length of service and age referred to in the sub-regulation shall be determined with reference to the 1st day of January of the year in

which the cases of the persons are considered.)

Provided further that the number of officers proposed or the consideration of the Selection Committee under Sub-regulation (2) shall not exceed

five times the number of vacancies to be filled in during the following years.

Before embarking on any discussion on the main legal issue, which is of course of a deep import, we might mention that we have also noticed a

feeble grievance of the Petitioners that according to 1954, Rules, number of persons recommended under Rule 8 are not to exceed 33-1/3 per

cent of the post in the cadre and that the persons recruited under Sub-rule (2) of Rule 8 of the aforesaid Rules are not to exceed 15 per cent of the

total number of posts. According to the Petitioners'' counsel, the intention of the Rules ibid is that representation to the persons appointed under

Rule 8(1) and (2) is to be given so as to make the ratio of 33-1/3 per cent. On these premises, it was urged that the State Government has given

discriminatory treatment to the non-State Civil Service Officers by not invoking the provisions of Rule 8(2) of the Rules ibid. On the contrary, the

State of Haryana and the added Respondent No. 3--R.P. Singh, took a strong stand that as an adequate number of eligible State t Civil Service

Officers were available, there was hardly any necessity to fill up any post from the officers of the non-State Civil Service Officers. This decision

owing to the aforesaid situation does not in any manner infringe then-Tight. Shri Jawahar Lai Gupta, counsel for the added Respondent focussed

our attention to various provisions, which we have already reproduced above, and submitted that it is only the Central Government which has

power to fix the source of persons and number of posts to be filled up.

Having given the matter our careful consideration, to begin with, it would be worthwhile to notice that under Sub-section (J) of Section 3 of the

All-India Services Act, 1951 the Central Government framed the 1954 Rules, after consultation with the Governments of the States. In pursuance

of Sub-rule (2) of Rule 8 of the 1954 Rules, the Central Government in consultation with the State Governments and the Union Public Service

Commission, framed the Indian Administrative Service (Appointment by Selection) Regulations, 1956. A close look on the provisions of Rule 8 of

the 1954 Rules, would show that for the members of the State Civil Service, the appointment to I.A.S. is a promotional avenue whereas for the

non-State Civil Service officers, it is only in special circumstances that the Central Government may recruit to the I.A.S. any non-State Civil

Service officer of outstanding ability and merit serving in connection with affairs of the State and holding a gazetted post in a substantive capacity.

The words under-lined above are important to clinch the matter and impel us to reach a conclusion that if owing to situational demand and

exegencies of the administration the State Government decided to offer the services of the State Civil Service officers to the I.A.S. in strict

compliance of the rules, there is no reason to hold the action of the State Government in not recommending the non-State Civil Service officers

was in any way discriminatory. Therefore, we find no hole in the aforesaid action of the State Government.

Further-more, the names of the Petitioners as recommended by their respective departments in pursuance of the decision dated 22nd June,

1989, Annexure P-1, were only considered, and they were not recommended to the Central Government. Otherwise also, the provisions of Rule

8(2) of the 1954 Rules are simply directory and not mandatory. It is not incumbent on the Central Government to make recruitment to I.A.S. of

the persons who are not the members of the State Civil Service. Therefore also, the Petitioners have no legitimate grievance.

Under Sub-rule (2) of Rule 4 of the 1954 Rules which deals with the method of recruitment to I.A.S., it is envisaged that the method or

methods of recruitment to be adopted for the purpose of filling any particular vacancy or vacancies in the Service as may be required to be filled

during any particular period of recruitment, and the number of persons to be recruited by each method, shall be determined on each occasion by

the Central Government in consultation with the Commission. It is, however, provided thereunder that where any such vacancy or vacancies relate

to a State Cadre or a Joint Cadre the State Government concerned shall also be consulted. Rule 4 of 1954 Rules nowhere empowers the State

Government to fill up the vacancy of I.A.S. The proviso simply envisages that where any vacancy relating to a State Cadre or Joint Cadre is to be

filled up, the State Government is to be consulted. The upshot of the above discussion is that it is only the Central Government which has to fix the

source and number of persons to be selected to the I.A.S.

As per Rule 9 of the 1954 Rules, the number of persons recruited under Rule 8 in any State or group of States shall not, at any time, exceed

33-1/3 per cent of the number of posts shown against items 1 and 2 of the cadre in relation to that State or to the group of States, in the Schedule

to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. But there is no provision in Rule 8 of the 1954 Rules, that the

representation has necessarily to be given to the non-State Civil Service Officers to the extent of 50 per cent as urged by the Petitioner'' counsel. It

will be worthy of mention that the Petitioners were under mistaken belief that it is only the State Government which has power under the

Regulations to fix the source and number of posts to be selected to I.A.S. The Regulations are to be read in context of the Rules and not

independently. Regulations are not intended to and do not confer any right on any member of the non-State Civil Service unlike some other rules

which do confer or create rights in them and mere breach of Regulations, if any, furnishes no cause of action to any non-State Civil Service

Officers on the ground that they are holding the highest posts on which one non-State Civil Service Officer could reach or that they cannot be

promoted to any higher post having achieved the maximum and there will be stagnation in their service career. The principal object of the selection

system as enumerated in the Regulations is to find out the best-possible incumbents. The Regulations are subordinate to Rules.

On perusal of the petition, we have also noticed an allegation that by mis-interpreting Rule 8(2) of the 1954 Rules, the State Government is

accommodating the persons of its liking who are not of outstanding merit and ability as one of the conditions envisaged under the Rules. Whatever

truth there may be in this allegation but it is explicit on the record that the recommendations of the persons to be selected to I.A.S. by the State

Government were strictly made in accordance with the Rules and do not licence any deviation to favour the individual officers.

In view of the aforesaid observations and discussion, we find no merit and the petition is hereby dismissed. The parties Shall bear their own

costs.