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Judgment
Pradeep Kant, J.—This is a bunch of writ petitions, which arise out of common facts and raise common question of law for being determined and, as such, are being decided by a common order.
At the outset it would be appropriate to mention that in view of quashing of the proposal of the State Government dated 6.1.06, by which eleven vacancies were proposed to be filled in by selection from amongst Non State Civil Service Officers (Non-SCS officers) by Delhi High Court vide order dated 14.11.08 alongwith quashing of the notification dated 1.2.06 by means of which the aforesaid eleven vacancies were notified to be filled in by selection from amongst Non-SCS officers and the said Judgment having been upheld by the Supreme Court, the plea of the petitioner of Writ Petition No. 1718 (SB) of 2006, Mahesh Chand and that of Sri Upendra Misra appearing for the State Government is that all these petitions have become infructuous and merely for academic interest, no findings are required to be given on other issues, which are involved in the writ petition, as no selection now can take place nor can be proceeded with, when the notification determining the vacancies aforesaid itself has been quashed.
The plea of Ashok Kumar Sharma, petitioner of Writ Petition No. 598 (SB) of 2009 is that the Judgment and order passed by the Central Administrative Tribunal, which is under challenge in the said writ petition, deserves to be fully quashed and that in writ petition of Mahesh Chand, only one of the directions against the three issued by the Central Administrative Tribunal is under challenge and, therefore, remaining two directions would adversely affect the interest of Non-SCS officers.
For considering the aforesaid pleas, the brief narration of the facts necessary for the present controversy are, that U.P. IAS cadre review notification was issued by the Government of India on 25.8.05, which increased the strength of U.P. IAS cadre from 467 to 537. Thus, 70 senior duty posts were increased in U.P. IAS cadre. Out of these 70 increased senior duty posts, 21 posts were earmarked to be filled in by promotion/selection from State Civil Service Officers/Non-SCS officers. Thus, the number of posts to be filled by promotion and selection increased from 142 to 163.
Consequent to the cadre review aforesaid, the Government of Uttar Pradesh on 6.1.06 sent a proposal to the Government of India for determining year-wise vacancies to be filled in, by promotion and selection for the year 2005, 2006 as under:
Year 2005 : 19 vacancies for State Civil Service Officers
Year 2006 : 14 vacancies for State Civil Service Officers
Year 2006 : 11 vacancies for Non-SCS Officers.
Mahesh Chand, the petitioner of Writ Petition No. 1718 (SB) of 2006, filed an Original Application No. 362 of 2006 before the Lucknow Bench of Central Administrative Tribunal on 12.7.06, challenging the notification dated 1.2.06. The Original Application claimed the following reliefs:
8.1 Quash and set-aside the impugned decision of the respondent No. 1 dated 1st February 1006 to the extent, it determines 11 vacancies during the current year i.e. 2006, for appointment by selection from amongst Non State Civil Service Officers of State of U.P. to the I.A.S. (U.P. Cadre) without appraisal and consideration of special circumstances and fulfilment of the conditions precedent in terms of Regulation 4 of the I.A.S. (Appointment by Selection) Regulations, 1997 and 4(i)(c) and Rule 8(2) of I.A.S. (Recruitment) Rules, 1954 and;
8.2 Direct the respondents to add the vacancies so determined under Regulation 3 of the I.A.S. (Appointment by Selection) with the 14 vacancies determined for SCS officers in the year 2006 for promotion from amongst substantive members of State Civil Service for promotion to I.A.S. (UP Cadre) and also to consider the case of the applicants against the said vacancies for promotion to I.A.S. (UP Cadre) and;
8.3 Pass any other or further order/orders as this Hon''ble Tribunal may deem fit and proper in the light of the facts and circumstances of the case.
The Lucknow Bench of Central Administrative Tribunal on 24.11.06 decided the Original Application and issued the following directions:
i) Before proceeding further with the process of promotion/selection, the respondents should declare through a circular which are the posts identified equivalent to Deputy Collector
ii) The process of promotion/selection should go on as per rules without any carry forward from the previous years or to the following year.
iii) If any post amongst the eleven earmarked for Non-SCS officers remain unfilled, the same should be transferred to the share of PCS officers and promotion should be made from among the eligible officers who are already listed from the zone of consideration.
The aforesaid directions were issued, keeping in mind that the State Government has not determined the equivalence of the posts to that of the Deputy Collector, while considering for selection and that if any posts from amongst the eleven earmarked for Non-SCS officers remain unfilled, the same has to be transferred to the share of PCS officers.
On 1.12.06, the Government of Uttar Pradesh issued an office memorandum stating therein that all the posts in the scale of Rs. 8000-13500 are equivalent to the post of Deputy Collector. This office memorandum was not addressed to any person.
Mahesh Chand in the present writ petition filed on 15.12.06, challenged the direction (iii) of the Tribunal issued in its order dated 24.11.06 and the notification dated 1.02.06, so far it related to determination of vacancies for Non-SCS officers under Selection Regulations, 1997 and also prayed for the relief of writ or mandamus for adding 11 vacancies with 14 vacancies determined for ''SCS Officers'' for the year 2006 for their promotion to ''I.A.S.'', U.P. Cadre and also to consider the petitioner against the aforesaid vacancies for his promotion.
A Division Bench of this Court on 18.12.06 passed an interim order allowing the selection process to go on but the final results were directed not to be declared. Intervention applications were filed by Non-SCS officers.
Two more writ petitions namely, Writ Petition No. 1805 (SB) of 2008 by Surya Prakash and the other Writ Petition No. 1710 (SB) of 2008 by the U.P. Civil Service Association, were also filed. Surya Prakash who has filed Writ Petition No. 1805 (SB) of 2008 had also approached the Central Administrative Tribunal, Lucknow Bench, by filing Original Application No. 284 of 2007, challenging the office memorandum dated 1.12.06 on the ground that the pay scales cannot be the sole criteria for determining the equivalence of posts.
The Central Administrative Tribunal, Lucknow Bench on 16.10.08 dismissed the said Original Application of Surya Prakash and upheld the validity of the office memorandum dated 1.12.06. The aforesaid order has been challenged by means of the present Writ Petition No. 1805 (SB) of 2008. This writ petition was filed in December, 2008.
In the meantime, as aforesaid, Writ Petition No. 1710 (SB) of 2008 was filed by U.P. Civil Service Association also, mainly claiming the same reliefs.
On the representation of U.P. Civil Service Association, the State Government on 23.9.08 constituted a Committee under the Chairmanship of Chief Secretary having four other Principal Secretaries for determining afresh the criteria for equivalence of posts for the purpose of selection of Non-SCS officers to IAS under Selection Regulations, 1997.
A Division Bench of this Court on 23.1.09 passed an order in the aforesaid writ petition filed by U.P. Civil Service Association, giving directions to the State Government to undertake an exercise for laying down the criteria for equivalence of posts irrespective of Tribunal''s order and to bring it on record by filing supplementary affidavit.
On 26.2.09, after hearing the parties'' counsel and considering the law laid down by the apex court in Sub-Inspector Rooplal and Anr. v. Lt. Governor through Chief Secretary, Delhi and Ors. (2001) 1 SCC 644 and Tribunal''s order dated 16.10.08, a Division Bench of this Court stayed the operation of the office memorandum dated 1.12.06. This order was passed in Writ Petition No. 1805 (SB) of 2008.
In the meantime, it appears that one Hem Raj Singh Chauhan and few other State Civil Service Officers filed an Original Application bearing number 1097 of 2006, sometimes in May, 2006 before the Principal Bench of Central Administrative Tribunal, Delhi, challenging the same notification dated 1.2.06, saying that 21 vacancies increased upon cadre review should not be determined in the year 2006 for promotion of SCS officers and selection of Non-SCS officers as the cadre review was due in the year 2003 and that these 21 vacancies should be made available in the year 2004.
Another Original Application bearing number 1137 of 2006 was also filed in the year 2006 by Hem Raj Singh Chauhan before the Principal Bench of Central Administrative Tribunal, Delhi, challenging the notification dated 1.2.06, saying that the vacancies of the previous year including seven unfilled vacancies of the year 2004, should not be carried forward and clubbed with the actual substantive vacancies of the year 2005 and also for holding review DPC for these seven unfilled vacancies in the year 2004.
The aforesaid two Original Applications were decided by the Central Administrative Tribunal at Delhi on 15.12.06, wherein the Central Administrative Tribunal dismissed the Original Application with respect to challenge to the cadre review and disposed of the other Original Application, with a direction to hold review DPC for the unfilled vacancies of the previous years for the promotion of SCS officers.
Hem Raj Singh Chauhan and others filed a Writ Petition bearing number 19103-04 of 2006 and the Union of India also filed a Writ Petition bearing number 1106 of 2008 in the High Court of Delhi against the Judgment and order of the Principal Bench of Central Administrative Tribunal, Delhi, passed in Original Application No. 1137 of 2006, regarding review DPC for unfilled vacancies.
The Delhi High Court vide its order dated 14.11.08 quashed the Judgment of the Principal Bench of Central Administrative Tribunal, Delhi, relating to cadre review. The impugned notification dated 1.2.06 (the then vacancy determination order on the basis of which the then selection process was undertaken) as well as the letter dated 6.1.06 (the proposal of the State Government for the determination of vacancies for promotion of SCS and selection of Non-SCS officers for the year 2005 and 2006) and the notification dated 25.8.05 (cadre review notification) were set aside. The High Court issued a direction to complete the process of cadre review with reference to the due date i.e. 30.4.03 with the vacancy position as on 1.1.04.
The Delhi High Court while passing the aforesaid order, took note of the pending writ petitions at Allahabad High Court, Lucknow Bench, namely, the present petitions and, therefore, did not express any opinion on the issue involved in the present petitions with respect to 15% of 33.33% of the entire cadre strength under Rule 8 being offered to the Non-SCS officers i.e. whether Rule 8(2), Rule 9(1) and proviso of the Rules 1954 read with Regulation 3, Regulation 5 of the Regulations, 1997 would mean selection of Non-SCS officers to be decided by taking into account 15% of 33.33% posts of the entire cadre strength under Rule 8 or it would mean 15% of the total officers recruited under Rule 8(2).
The Delhi High Court, however, dismissed the Writ Petition No. 1106 of 2008, vide order dated 5.2.09 directing the petitioner to fill up the unfilled vacancies of previous years by holding review DPC. In compliance of the Delhi High Court''s order dated 5.2.09, a review DPC regarding unfilled vacancies of previous years has been held and promotions of eligible officers have been made in October, 2009.
Against the order dated 14.11.08 passed by Delhi High Court, two sets of Special Leave Petitions were filed before the Supreme Court, namely, SLP (C) No. 6758-6759/2009 by Union of India and Union Public Commission and SLP (C) No. 7686-7687/2009 by some of the Non-SCS officers, who were intervenors, before the Delhi High Court.
The apex court in the aforesaid Special Leave Petitions made the following observations/directions on 23.3.2010:
(In Civil Appeal No. 2653-54 of 2010 arising out of SLP (c) No. 7686-7687 filed by Non-SCS officers)
As the appellants cannot approach the High Court by treating it as a Court of first instance, their SLP before this Court is also incompetent and not maintainable.
The principles laid down in the case of Chandra Kumar (supra) virtually embody a rule of law and in view of Article 141 of the Constitution the same is binding on the High Court. The High Court fell into an error by allowing the appellants to approach it in clear violation of the Constitution Bench Judgment of this Court in Chandra Kumar (supra). For the reasons aforesaid the appeals are dismissed as not maintainable. No costs.
(In Civil Appeal No. 2651-52 of 2010 arising out of SLP (c) No. 6758-6759/2009 filed by Union of India)
Therefore, this Court accepts the arguments of the learned Counsel for the appellants that Rule 4(2) cannot be construed to have any retrospective operation and it will operate prospectively. But in the facts and circumstances of the case, the Court can, especially having regard to its power under Article 142 of the Constitution, give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees. The Court is satisfied that in this case for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively.
With the aforesaid modification/direction, the appeals filed by the Union of India are disposed of. There shall be no order as to costs.
The Government of India thereafter vide notification dated 1.6.2010 redetermined the vacancies in the promotion quota of U.P. IAS cadre and as per the said notification there were only four vacancies in SCS quota in year 2006 and no vacancy has been earmarked for Non-SCS officers in the year 2006. This has been done after the State Government had issued the notification dated 17.5.2010, redetermining the cadre strength as per the orders passed by the Delhi High Court, wherein incidentally the total strength has again been found as 537 and the posts to be filled by promotion under Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954, not exceeding 33.3% of item 1, 2, 3, 4 given therein have again been fixed as 163.
It has been urged by the counsel appearing for Ashok Kumar Sharma that the aforesaid writ petition challenges all the three directions issued by the Central Administrative Tribunal, Lucknow Bench and that if any direction continue to operate, it will adversely affect the interest of Non-SCS officers and, therefore, all the directions be quashed.
A further plea has been taken that the Delhi High Court has expressly not given its opinion with respect to one of the issues involved in the present writ petitions at Lucknow and, therefore, simply because the notification dated 1.2.06 determining the vacancies issued by the Central Government and the proposal dated 6.1.06 sent by the State Government have been quashed, it does not mean that eleven vacancies can be taken away from the strength of Non-SCS officers or they can be excluded while considering the Non-SCS officers for promotion.
Reliance has also been placed upon a communication of the Central Government, which says that eleven vacancies of the year 2004 are kept in abeyance as it will be difficult in case the Lucknow Bench of the Allahabad High Court decides for giving those vacancies to the Non-SCS officers, if all the vacancies arising on account of cadre review are earmarked for SCS officers. This communication is dated 1.6.2010
It cannot be disputed that for holding selection under the Selection Regulations, 1997, prior determination of vacancies and also equivalence of the posts have to be made. In the absence of such declaration of equivalence and determination of vacancies, no selection is possible.
The determination aforesaid made by the Central Government by issuing notification dated 1.2.06 on the proposal of the State Government dated 6.1.06, became the subject matter of challenge both before the Central Administrative Tribunal, Lucknow Bencch as well as the Principal Bench of Central Administrative Tribunal at Delhi, though on different grounds.
Delhi High Court considering the plea of the petitioners felt satisfied that cadre review has not been done in the manner prescribed and for the year when the cadre review should have been made. The Court not only quashed the notification determining the vacancies dated 1.2.06 issued by the Central Government but also the proposal sent by the State Government on 6.1.06. A further direction was issued to make cadre review as directed therein in a particular year and then determine the vacancies accordingly, which were available in the year 2004.
It may be a co-incidence or otherwise that on cadre review again being done as per the directions of the Delhi High Court, the same cadre strength has been found to be the correct determination but this time it appears that no vacancies have been found to be available to the Non-SCS officers.
Determination of cadre strength or determination of vacancies vide notification dated 1.6.2010 is not under challenge in any of the present writ petitions.
Ashok Kumar Sharma and others, who are pleading for Non-SCS officers, mainly urged that exclusion of the aforesaid eleven vacancies which have been kept in abeyance by the Central Government, is per se illegal and that those vacancies must go to Non-SCS officers.
In support of the aforesaid plea, it has also been urged that this Court needs to decide the question "whether Rule 8(2) of Rule 9(1) and proviso of the Rules 1954 read with Regulation 3, Regulation-5 of Regulations, 1997 would mean selection of Non-SCS officers to be decided by taking into account 15% of 33.33% posts of the entire cadre strength under Rule 8 or it would means 15% of the total Officers recruited under Rule 8(2)", a issue which has been left open by Delhi High Court.
In contrast, counsel for Mahesh Chand and the State Government submitted that once the very notification of determination of vacancies dated 1.2.06 alongwith proposal sent by the State Government have been quashed, it cannot be presumed that those vacancies are still available to Non-SCS officers, as there is no determination of vacancies at all for selection and if on fresh determination of vacancies done by the Central Government on the proposal of the State Government, any person (Non-SCS officer) feels aggrieved, the remedy lies in challenging the same and not to pursue the present petitions, which have become infructuous.
We are also of the view that only because the Delhi High Court did not express any opinion on one of the issues, namely, "whether Rule 8(2) of Rule 9(1) and proviso of the Rules 1954 read with Regulation-3, Regulation-5 of Regulations, 1997 would mean selection of Non-SCS officers to be decided by taking into account 15% of 33.33% posts of the entire cadre strength under Rule 8 or it would means 15% of the total Officers recruited under Rule 8(2)" which was engaging attention of this Court at Lucknow, it would not necessarily mean that even if no relief can be granted in the present proceedings, the said issue must be decided.
The Court is not supposed to decide an issue only for academic reason but it is only when an action is taken, such a plea can be raised and of course, by a person who feels aggrieved by such determination. There is no challenge to the determination of vacancies made.
Once the notification regarding determination of vacancies has been quashed, there remains nothing for the Court to decide in the present proceedings, with respect to validity of such a selection, which has not attained finality, in as much as the result of the selection has not been declared nor the same could now be given effect to.
Merely because certain Non-SCS officers feel that they stand selected in the final select list without even declaration of result, they cannot claim any right, treating them to have been selected, particularly when this challenge to the order passed by the Delhi High Court failed before the apex court.
So far the determination of equivalence of posts is concerned, a plea which has been raised in the writ petitions of Surya Prakash and U.P. Civil Services Association, we are informed by the learned Counsel for the State that the process of redetermination of equivalence is on and the equivalence has actually been redetermined but in view of the interim orders passed by this Court, final effect has not been given.
Submission is that equivalence of posts has been done strictly in accordance with the proposition laid down in the case of Sub-Inspector Rooplal and Anr. (supra).
We thus, do not find any reason to restrain the State Government from determining the equivalence of the posts to that of the post of Deputy Collector, in terms of the Rules.
If any person feels aggrieved by such determination of vacancies and/or by the equivalence of posts, he will be at liberty to challenge the same, in the appropriate forum.
Even otherwise, when a fresh selection is to be made, the State Government could very well issue a fresh notification regarding equivalence of posts and we do not find any ground for looking into the validity of such determination, even if it suffers from any illegality, as the same would not persuade us to uphold the selection process, which is incomplete till date and which now cannot be finalised, for the aforesaid reason of quashing of notification of determination of vacancies, and the freshly determined equivalence of posts will not have any bearing upon the present selection.
In the writ petition of Ashok Kumar Sharma, the main grievance is that all three directions issued by the Central Administrative Tribunal, Lucknow Bench should be quashed.
In fact, the said Judgment has lost its efficacy and does not require any adjudication by us in the present petitions, as the selection, for which the present directions were issued, itself cannot be given effect to.
We thus, are of the considered opinion that the present writ petitions have lost their efficacy and importance and rather, they have become infructuous, which do not require any further orders to be passed.
We, however, make it clear that we have declined to enter into any of the pleas, which have not been decided by the Dehi High Court, for the reason that the present selection cannot be finalised for the aforesaid reason of quashing of the notification of determination of vacancies and the proposal sent by the State Government for the said determination and also in view of the fact that equivalence of the posts is being redetermined or has been redetermined.
The question, "whether Rule 8(2) of Rule 9(1) and proviso of the Rules 1954 read with Regulation 3, Regulation 5 of Regulations, 1997 would mean selection of Non-SCS officers to be decided by taking into account 15% of 33.33% posts of the entire cadre strength under Rule 8 or it would means 15% of the total Officers recruited under Rule 8(2)"'' and how it is to be interpreted and whether the re-determination of vacancies made by the Central Government on the proposal of the State Government has rightly been made or not, and whether equivalence of posts has been correctly determined, are such issues which can be agitated by the aggrieved persons, afresh, if they feel aggrieved by any such decision or notification issued by the State Government or the Central Government, as the case may be.
Any observation made, finding recorded or directive issued by the Central Administrative Tribunal, Lucknow Bench, in this regard, would not be binding nor shall affect the claim of any person aggrieved, to which he may be otherwise entitled under law.
All the petitions have, therefore, become infructuous and are hereby dismissed as such.