GUDUR KISHAN RAO AND ORS.versusSUTIRTHA BHATTACHARYA AND ORS.

                                    GUDUR KISHAN RAO AND ORS.                                 A
                                                     v.
       '\
                                SUTIRTHA BHATTACHARYA AND ORS.

....                                       FEBRUARY 23, 1998

                           [S. SAGHIR AHMAD AND G.B. PATTANAIK, JJ.]                          B
       ~-<


                      Service Law :

                      Indian Administrative Service (Recruitment) Rules, 1954: Rules 8 and
                 9.                                                                           c
                       All India Services-Ceiling-Supernumerary posts-Adding or Change
                 in ceiling-Effect of-Validity-State Civil Service Officers-Promotion to
                 /AS-Ceiling of 33-113% laid down in R.9(1)-14 supernumerary posts created
                 by issuing notification to accommodate State Civil Service Officers who were
                 illegally kept out of promotion to the !AS-These posts added to Item 3 of D
                 the Schedule to the Cadre Strength Regulations-However, no corresponding
                 increase made against Items 1 and 2-Held: Any Regulation merely increasing
                 the number ofposts in Item 3 without corresponding increase ofItems 1 and
                 2 is violative of the ceiling of 33-113% and also the mandate of the Cadre
                 Strength Regulation itself-Hence, the said ceiling cannot be exceeded by
                                                                                                E
                 creation of supernumerary posts against Item 3-Therefore, the said
                 notification declared invalid-Consequently, another notification promoting
                 the State Civil Service Officers against the supernumerary posts also declared
                 inva/id-IAS (Cadre) Rules, 1954, R.4(1)-/AS (Fixation of Cadre Strength)
                 Regulations, 1955, Sch. Items 1 to 3.
                                                                                               F
                       Service Rules and Regulations-Interpretation of-Harmonious
            I    construction-Held: Court would attempt to make a harmonious construction
                 of different sets of rules and regulations to try to save them-But if they
                 cannot be saved in any manner they would struck down-Interpretation of
                 Statutes.
                                                                                              G
                      Appointment and Promotion-Notifications created supernumerary posts
                 and promotions ofState Civil Service Officers to the /AS-Validity of-Held:
             >   Most of the promotee officers might have superannuated in the meantime-
                 Therefore, promotions already made need not be disturbed-However, officers
                 promoted in excess of ceilling limit allowed to continue and adjusted in     H
                                                    1053
    1054                  SUPREME COURT REPORTS                   [1998] l S.C.R.

A subsequent years -But such continuance will not confer on them the benefit
    of seniority and the year of allotment-Aforesaid directions issued with a
                                                                                     f
    view to doing "complete justice between the parties. "--Constitution ofIndia,
    1950, Art. 142.

          All India Service-Condition-Scheme and History of-Stated and
B   explained-All India Services Act, 1951-All India Services (Conditions of
    Service-Residuary Matters) Rules, 1960--Indian Civil Administrative Service
    Cadre Rules, 1950--Constitution of India, 1950, Art. 312(1).

           The appellants were promottee officers of the Indian Administrative
C Service (JAS) who were initially appointed as Deputy Collectors in the State
    Civil Service. The Government of India, Ministry of Personnel issued a
    Notification dated 15-12-1993 creating 14 supernumerary posts in the IAS
    to accommodate the appellants who were illegally kept out of promotion to
    the IAS for the year 1987. These 14 supernumerary posts were added by
    amending Item 3 in the Schedule to the Indian Administrative Service (Fixation
D   of Cadre Streni,,ith) Regulations, 1955. By another Notification dated 16-12-
    1993 the Government of India appointed the appellants to the IAS.

          The respondents, who were direct recruit IAS officers, challenged the
    said two Notifications before the Central Administrative Tribunal. The
    Tribunal quashed the two Notifications on the ground that these contravened
E   Rule 9 of the Indian Administrative Service (Recruitment) Rules, 1954.
    Hence this appeal.

          On behalf of the appellants it was contended that the Notification dated
    15-12-1993 was a rule made under Section 3(1) of the All India Services Act,
    1955 and could not be struck down on the ground that it contravened Rule
F   9 of the Recruitment Rules; and that since the Recruitment Rules and the
    Notifications were made under Section 3(1) of the Act both must be
    harmonised.

          On behalf of the respondents it was contended that Ruic 9(1) of the
    Recruitment Rules prescribed a ceiling of 33-1/3/% of the number of posts
G   shown again~t Items 1 and 2 of the Schedule to the Regulations and therefore,
    the Notification dated 15-12-1993 violated Ruic 9(1) since it did not make
    a corres11onding increase against Items 1 and 2.

           Dismissing the appeal, this Court

H          HELD : 1.   Under Rule 9 of the Indian Administrative Service
      -~



                                G.K. RAO v. S. BHATTACHARYA                        1055
           (Recruitment Rules), 1954, there is a prohibition that .the number of persons   A
           recruited under Rule 8 in any State and at any time will not exceed 33-1/
           3% of the number of posts shown against Items I and 2 of the Cadre in
           relation to the State. The Indian Administrative Service (Fixation of Cadre
           Strength) Rei,'lllations, 1955 framed by the Central Government under Rule
           4(1) of the India Administrative service (Cadre) Rules, 1954 categorically
           fixed the number of posts borne, the ~1reni,>th and composition of ~he cadre
                                                                                           B
      -<
           for each of the States and so far as Item 3 dealing with the promotion by
           Selection under Ruic 8 of the State Civil Service Officers is concerned it
           has to be 33-1/3% of Items 1 and 2 of the Schedule to the Regulations. That
           being so, any Regulation merely increasing the number of posts in Item 3
           without any corresponding increase of Items 1 and 2 on the face of it would     c
           be violative of the very mandate of the Regulation and at any rate it would
           violate Rule 9 of the Recruitment Rules. The Regulation itself having been
           framed under Rule 4(1) of the Cadre Rules and Rule 8 having provided for
           a maximum of such promotion, the impugned notification increasing the
           number of posts only for State Civil Service Officers to be promoted
           contravenes Rules 8 and 9 of the Recruitment Rules and the mandate of the       D
...        Regulation itself. Having considered the provision of the Recruitment Rules,
           the Cadre Rules and the Cadre strength Regulation the conclusion is that
           the impugned notification dated 15-12-1993 contravenes Rule 9 of the
           Recruitment Rules and under the scheme of the All India Services Act,
           1951, Rules and Regulations it is not possible to sustain the notification in   E
           question by giving any harmonious construction to the provisions. The
           Notification dated 16-12-1993 promo~ing the appellants to the Indian
           Admini~1rative Service must also be held invalid. (1065-G-H; 1066-A-D]

               Mohinder Singh Gill v. The Chief Election Commissioner, (1978] 2
           SCR 272, relied on.                                                             F
      I
                 2. It is a cardinal principal of construction that when Rules and
           Regulations have been framed dealing with different aspects of the conditions
           of service of the employees the courts would attempt to make a harmonious
           construction and try to save the provisions and not to strike down the same.
           But where it is not possible even with doing some amount of violence to the G
           language used in the notification to give a harmonious construction, then
           necessarily the court will have no other option to set aside a notification if
           the said notification contravenes any provisions of the Act or the Rule or is
           othenvise constitutionally invalid. (1065-C]
                3. Even prior to the independence of the country, in a conference held H
    1056                   SUPREME COURT REPORTS                      [1998] 1 S.C.R.

A   under the Chairmanship of Sardar Vallabhbhai Patel a decision had been
    taken to create two All India Services such as Indian Administrative service
    and Indian Police Service to re11lace the former India Civil Service and
    Indian Police. It was further decided that the recruitment to these two
    sen•ices should be made through the Federal Public Service Commission on
B   the basis of annual Com11etitive Examination. In the very same meeting a
    further decision had been taken that a maximum of 25% of the cadre post
    in the All India Services should be thrown open to the State Civil Service
    Officers and State police of outstanding merit In 1mnuance of the aforesaid
    decision the two All India Services were formed and they were 1mt on
    statutory basis under the Indian Civil Administrative Service Cadre Rules,
C   1950. The Parliament then passed the All India Services Act, 1951 under
    Article 312(1) of the Constitution which empowers the Government of India
    to make, after con~ultation \\ith the State Government, mies for the regulation
    of recruitment and conditions of service of the persons a11poi11ted to an All
    India Service. In exercise of power under Section 3 of the Act-The
D   Recruitment Rules, The Cadre Rules, The All India Sen•ices (Conditions of
    Service-Residuary Matters) Rules, 1960 have been made by the Central
    Government The Cadre Rules enable the Central Government to determine
    the strength and composition of the cadre in each State by framing regulation
     and in exercise of such power the Cadre Strength Regulations, 1955 have
E    been framed by the Central Government and not only the total authorised
     stren1,,oth of the cadre for each State has been indicated but also it indicates
    the number of posts for different categories of posts within the cadre. Thus,
     the Act, the Rules and the Regulations are a complete set of provisions
     dealing with different a~11ects of the service conditions to Indian Administrative
     Sen-ice and the entire scheme contained in these mies and regulations have
F    to be borne in mind in answering the que~1ions involved in the present case.
                                                                 (1063-G-H; 1064-A-D)     \
           4. As a necessary consequence of the quashing of the notification
    dated 16-12-1993 the appointment of the 14 officers included therein to the
    Indian Admini~1rative Service with retrospective effect would stand invalidated,
G   though as a matter of fact the said notification has been given effect to and
    most of the State Civil Service Officers promoted thereunder with
    retrospective effect might have superannuated in the meantime. Therefore,
    with a view to doing complete jm1ice between the parties under Article 142
    of the Constitution, the promotions already made need not be disturbed at
H   this length of time. However, those officers who were promoted in excess of
              G.K.RAOv. S. BHATTACHARYA [G.B. PATTANAIK, J.]                    1057

    the ceiling limit are permitted to continue in the IAS and to be ad.justed in        A
    the subsequent years. But such continuance will not confer on them the
    right to count their seniority and year of allotment. [1068-B-E)


         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6525 of
    1994 Etc.                                                                            B
         From the Judgment and Order dated 26.8.94 of the Central Administrative
    Tribunal, Hyderabad in O.A. No. 118 of 1994.

           V.R. Reddy, Additional Solicitor General, Arvind Bobde, P.P. Rao, Venkat
    Ramani, P.Anoop, S. Muralidhar, P.S. Narasimba, V.G. Pragasam, Ms. Sashi             C
    Kiran, Anil Katiyar, Rajeev Sharma, Ms, Neelam Sharma, Ajay Sharma, Rupesh
    Kumar, T.C. Sharma, P. Venkat Reddy and S.U.K. Sagar for the appearing
    parites.

          The Judgment of the Court was delivered by
                                                                                         D
           G.B. PATTANAIK, J. These eight appeals are directed against the order
    of the Central Administrative Tribunal, Hyderabad Bench dated 26.8.1994, and
    involve common questions of law. By the impugned order the Tribunal has
    quashed the two Notifications dated 15.12.1993 and 16.12.1993 of the
    Government of India, Ministry of Personnel inter alia on the ground that the
    Notifications in question amending the Indian Administrative Service (Fixation       E
    of Cadre Strength) Regulations (hereinafter referred to as 'Regulation')
    contravenes Rule 9 of the Indian Administrative Service (Recruitment) Rules,
    1954, (hereinafter referred to as the 'Recruitment Rules). TI1e appellants in all
    t11ese appeals are t11e promotees to the cadre of Indian Administrative Service
    who had been recruited by way of direct recruitment to the post of Deputy            F
I   Collectors in t11c State Service. Respondents nos. I to 4 in Civil Appeal No
    6525 of 1994 are tlle direct recruits to tlle Indian Administrative Service. These
    respondents - direct recruit !AS officers had filed QA No. ll8 of 1994,
    challenging the Notifications of the Government of Indian dated 15.12. 1993
    and 16.12. 1993, as already stated. Anot11er direct recruit !AS officer had filed
    OA No 542 of 1994 and yet another direct recruit !AS officer had filed OA            G
    No. 543 of 1994 and all the three OAs were disposed of together by the
    Tribunal by order dated 26. 8.1994. Though the dispute essentially centres
    round t11e year of allotment in the cadre of Indian Administrative Service
    between the direct recruits and t11e promotees but the said dispute arises
    because of several earlier orders passed by the Tribunals and the two                H
    1058                  SUPREME COURT REPORTS                    [1998] l S.C.R.

A   Notifications were issued by the Union Government in implementation of the
                                                                                         }-
    directions of the Tribunal. It would, therefore, be necessary to set out facts
    in brief.

          The appellants were initially recruited to the post of Deputy Collectors
  in the State of Andhra Pradesh and were appointed by order dated 29. 12.1978
B 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.
c The State Government issued G.O. 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
D belonging to the State Civil Service must complete 8 year of service on lst
  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 13th December, 1978, but was deemed to have
  joined the post on 18.1.1979 because of the Government Order dated 8.4.1982
E was not eligible for being considered for promotion in the year 1987 as he
   could not complete 8 years by l. l.1987. He, therefore, filed an application
  before the Andhra Pradesh Administrative Tribunal which was registered as
   R.P. No. 9173 of 1987 contending therein that his services from the date of
   his joining on the post of Deputy Collector 13th December, 1978 should be
   counted. Similar applications were also filed by some other officers which
F were registered as R.P. No. 7311 of 1987 and R.P. No 7194 of 1987. In case
                                                                                     \
   ofUmamalleswar Rao the Tribunal granted an interim direction that his case
   be placed before the Select Committee who is to prepare 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
G 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
H w.e.f 16.12.1988. The 13th man in the Select List was not promoted as certain
              G.K. RAO v. S. BHATTACHARYA [G.B. PATTANAIK, J.]                1059

     enquiry against him was pending. TI1e 14th man, one Shri Ram Chandra A
     Murthy filed an application before the Tribunal, which was registered as OA
     No 223 of 1989, claiming that he was entitled to be promoted against 13th
     vacancy. That application was allowed by the Tribunal and special Leave
     Petition against said judgment by the Union of Indian stood dismissed. He
     was, therefore, appointed to the Indian Administrntive service w.e.f 16.12.1988 B
     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.M No 493 dated 8.4.11982 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 Collectors who had not
     been considered for being included in the Select List of !AS of 1987 on C
     account of 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 regularising services of the
     appellants with effect from the date of their appointment order i.e. 29.12.1978.
     TI1e appellants, therefore, made a Representation to the government to review
     1987 Select List for the !AS. Since no orders were passed on the representation, D
    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 re-drawing up of the Select List for the year 1987. The Tribunal
    disposed of those matters by Order dated 21.1.1992 directing the Government
    to constitute a Review Committee and to review t11e case of all those who E
    became eligible for consideration on completion of 8 years of service by 1st
    January, 1987 and if, ultimately they are found suitable to promote them to
    the !AS 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 re-consideration of the case of the appellants along with
I   ot11er similarly situated officer, 14 oft11em were included in tlle Revised Select F
    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 t11e members of the original Select List,
    under such circumstances the State Government t11ought it appropriate to
    create supernumerary post in the IAS to accommodate 14 officers who were G
    brought into tlle Select List of 1987 on reconsideration. The State Government
    sent t11e necessary proposal to the Central Government and at tllat stage
    some of t11e direct recruited officers of the IAS filed appllcation before t11e
    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 tlle IAS is without jurisdiction. That application was disposed of with H
    1060                   SUPREME COURT REPORTS                    [I 998] l S.C.R.

A the direction to the State Government to consider and dispose of
  Representations filed by the direct recruits in accordance with law. 111e
  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 Andlrra Pradesh and
   14 supernumerary posts were created. 111e Government of Indian further
B issued a Notification on 16.12.1993, appointing the 14 persons of tl1e State
  Civil Services to the Indian Administrntive Service who were brought into the
   Select List of the year 1987 by the Review Selection Committee. A Review
  Petition appears to have been filed by the State Government at the instance
  of t11e Central Government before tl1e Tribunal and Contempt petition also
C have been filed by tl1e present appellants before tlle Tribunal but all t11ose
  petitions were disposed of by the Tribunal on a finding tliat tlle directions
   of tl1e Tribunal have been duly complied witl1 and the earlier order of tlle
   Tribunal does not contain any error on the face of tl1e order requiring to be
   reviewed. The direct recruit IAS officers being aggrieved by the Notifications
   of tlle Government of India 15.12.1993 and 16.12.1993, approached tlle Central
D Administrative Tribunal and tl1e said Tribunal by tlle impugned order dated
   26 August, 1994, having allowed the same and having quashed the
   Notifications, tlle present appeals have been preferred.

        Mr. Salve tlle learned senior counsel appearing for the appellants
  contended tl1at tl1e Notification dated 15.12.1993 tllough purports to be an
E amendment to the Regulation but the same having been issued in exercise of
  powers conferred under sub-section (1) of Section 3 of the All Indian Service
  Act, 1951 (hereinafter referred to as 'the Act') is essentially a rule and that
  rule cannot be struck down on the ground that it contravenes Rule 9 of tl1e
  Recruitment Rules. The learned counsel further contended tlle Recruitment
F Rules also having been made in exercise of power under Section 3( 1) of the
                                                                                        \
  Act and the Notification dated 15.12.1993 also having been made in exercise
  of said power, attempts should be made for harmonising botll the rules and
  at any rate if both tlle rules cannot be allowed to operate on a harmonious
  construction tllen tlle later rule being made for a specified purpose must
  prevail. Mr. Salve, tlle learned senior counsel further argued that by Notification
G dated 15.12.1993 tl1e cadre strengtl1 of Andlrra Pradesh has been increased
  by 12 to accommodate tlle State Civil Service Officers who were illegally kept
  out of consideration while preparing the select list of tlle year 1987 to implement
  tl1e orders of tlle. Tribunal in their favour and by such increase of cadre
  strengtll for a limited period there has been no contravention of Rule 9 of tlle
H Recruitment Rules, and tl1erefore, tlle impugned judgment of tlle Central
                 G.K. RAO v. S. BHATTACHARYA [G.B. PATTANAIK, J.]                  !061
         administrative Tribunal is erroneous. Mr. Bobde, the learned senior counsel       A
~       appearing for the appellants in some of the civil appeals contended that in
         service jurisprudence creation of post and recruitment to the post are two
        different concepts. Under Rule 9 of t11e Recruitment Rules the embargo is
        against recruitment, and therefore, it prohibits appointment by promotion to
        t11e IAS in any State under Rule 8, exceeding 33 1/3 per cent of tlle number
        of posts shown against items J and 2 of the Regulations. But the Notification      B
        dated 15.12.1993 merely creates 12 posts for periods specified therein by
        increasing the authorised strengt11 of the cadre and as such it does not
        contravene Rule 9 of the Recruitment Rules. Mr. Reddy t11e learned Additional
        Solicitor General, appearing for t11e Union of India contended witll force that
        special situation having arisen on account of directions given by the Central      C
        Administrative Tribunal and against tlle said directions t11e Union having
        come to this Court and special leave petition having been rejected, to implement
        t11e directions of the Tribunal the Union Government had no other ~lternative
        tlian to increase t11e cadre strength to accommodate the promotes officers in
        the IAS and in such special situation the Central Government has exercised
        powers under Section 3(1) of the Act itself, and therefore, the Notification       D
        issued in exercise of such power could not have been struck down by t11e
        Tribunal.

             Jvfr. P.P. Rao the learned senior counsel appearing for the respondents
        1 to 4, who were the direct recruit !AS officers, on tlle other hand submitted     E
        t11at under the scheme of sen,ice rules and regulations determining tlle service
        conditions of employees in the Indian Administrative Service cadre, it is not
        possible to read a particular Notification in isolation. According to Mr. Rao,
        Section 3(1) of t11e Act confers power on the Central Government to make
        rules regulating the recruitment and conditions of service of persons appointed
        to the All Indian Service. In exercise of such power t11e Central Government F
    /   has made t11e Recruitment Rules of 1954, which prohibits promotion of the
        number of persons from State Civil Service to tlle cadre of IAS in excess of
        33 1/3 per cent of t11c posts shown in items 1 and 2 of tlle cadre in relation
        to the State in question. The Central Government has also made, in exercise
        of power under Section 3(1) of the Act, the Indian Administrative Service G
        (Cadre) Rules, 1954 (hereinafter referred to as 'the Cadre Rules') and Rule 4
    ~   of the Cadre Rules empowers the Central Government to determine tlle strength
        and composition of tlle cadre constituted under Rule 3·for each State or group
        of States by framing regulation in consultation with tlle State in question. In
        exercise of the aforesaid power contained in Rule 4(1) of the Cadre Rules tlle
        Central Government has made regulations and tlle strength and composition H
    1062                  SUPREME COURT REPORTS                    [1998] 1 S.C.R.

A of t11e cadre of the Indian Administrative Service of various States have been
  specified in the Schedule to these regulations. Under the aforesaid scheme
  when the central Government has issued a Notification dated 15.12.1993
  thereby creating additional posts by increasing the cadre strength in item no.
  3 of the Schedule for the State of Andhra Pradesh that would be beyond the
  power of the Government under the Regulation inasmuch as the deternrination
B of the number of persons to be recruited indicated in item 3 of the Schedule
  is dependant upon the number of posts contained in items 1 and 2 of the said
  schedule i.e. the number of senior post under the State Government and
  Central deputation reserve at 40 per cent of item 1. In the aforesaid premises,
  the impugned Notification having directly contravened Rule 9 of Recruitment
C Rules the Tribunal was wholly justified in quashing the said Notification. Mr.
  Rao also contended tlrnt merely because the source of power exercised by the
  Central Government in issuing t11e Notification dated 15.12.1993 have been
  indicated to be Section 3(1) of the Act and Rule 4 of the Rules it cannot have
  the status of Act or the Rule as it is merely an amendment to the Cadre
  Strength Regulation and has rightly been nomenclatured as Indian
D Administrative Service (Fixation of Cadre Strength) 12111 Amendment
  Regulation, 1993. Such Regulation when on the face of it contravenes Rule
  9 of the Recruitment Rules, regulation has to be struck down and consequently
  there is no illegality in the impugned order of the Tribunal. Mr. Rao also
  contended that the aforesaid Regulation contravenes Section 3(1-A) of the
E Act itself as it pr"'judicially affects the interest of all those direct recruits to
  the Indian Administrative Service on account of the retrospective operation
  of the Notification, and therefore, the same has rightly been struck down. Mr
  Rao, lastly urged that under the scheme of the Service Rules and Regulations
  meant for IAS only 13 persons could have been in the Select List for the year
   1987 for being promoted to the IAS but effect of the impugned Notification
F dated 15.12.1993 and the consequent Notification dated 16.12.1993 is that the
  Select List for the year 1987 for promotion to the IAS consists of 40 persons \.
  which contravenes the Recruitment Rules, and therefore, the impugned
  Notifications have rightly been struck down. Mr. Venkat Ramani, the learned
   senior counsel appearing for some of the respondents, submitted that the
G Notification issued by the Central Government must be read as the language
   of the Notification indicates and not on the basis of the source of power in
   exercise of which the Notification has been issued and thus construed it is J...
   an amendment to the Cadre Strengt11 Regulation and if tlrn said Regulation
   contravenes Rule 9 of the Recruitment Rules the same cannot be allowed to
   operate and the Tribunal has rightly quashed the same. In support of this
H contention the learned counsel placed reliance on the decision of this Court
             G.K. RAO v. S. BHATTACHARYA (G.B. PATTANAIK, J.j.               1063
    in the case of Mohinder Singh Gill and Anr. v.           The Chief Election     A
~   Commissioner, New Delhi & Ors., [1978] 2 SCR 272.

            In view of the rival submissions at the Bar tl1e following questions
            arise for our consideration:

            1) The Notification dated 15.12.1993 whether can be held to be a Rule B
            though nomenclatured as Regulation amending the Cadre Strength
            Regulation?

            2) Whether it is possible to construe t11e Notification and Rule 9 of
            the Recruitment rules harmoniously and can the Notification be allowed
            to operate notwithstanding ilie limitation provided in Rule 9 of C
            Recruitment Rules for promotion of ilie State cadre officers to ilie
            Indian Administrative Service?

          3) When ilie validity of Rule or Regulation crops up for consideration
    can the aut110rity framing ilie Rules and Regulations take tl1e shelter that it D
    was in implementation of certain directions of tl1e Tribunal in favour of some
    employees and whether such a plea can be sustained even iliough ilie Rules
    and Regulations framed are found to be beyond the powers of the rule making
    authority or is oilierwise constitutionally invalid?

          4) Even if ilie impugned order of ilie tribunal striking down the E
    Notifications dated 15.12.1993 and 16.12.1993 can be found fault witl1, what
    would be ilie appropriate direction which this Court can issue for doing
    complete justice between the parties in view of special situation which
    necessitated the issuance of the Notification dated 15.12.1993?

          Before we proceed to answer t11e aforesaid questions formulated by us F
    it would be appropriate to notice the very scheme of the Act, Rules and
    Regulations determining the conditions of service of the persons appointed
    to the Indian Administrative Service, Even prior to the independence of the
    country, in a conference held under the Chairmanship of Sardar Vallabhbhai
    Patel a decision had been taken to create two All India Services such as
    Indian Administrative Service and Indian Police Service to replace the former G
    Indian Civil·Service and Indian Police. It was further decideP that the recruitment
    to these two services should be made through the Federal Public Service
    Commission on the basis of annual Competitive Examination. In the very same
    meeting a further decision had been taken that maximum of 25% of the cadre
    post in the All Indian Services should be thrown open to the State Civil H
    1064                  SUPREME COURT REPORTS                    [1998] l S.C.R.

A Service Officers and State Police Officers of outstanding merit. In pursuance
  of the aforesaid decision the two All Indian Services were fonned and they
  were put on statutory basis under the Indian Civil Administrative Service
  Cadre Rules, 1950. The Parliament then passed the All Indian Services Act,
  1951 under Article 312(1) of the Constitution which empowers the Government
  of Indian to make after consultation with the State Government, rules for the
B regulation of recruitment and conditions of service of the persons appointed
  to an All Indian Service. In exercise of power under Section 3 of the Act -
  The Recruitment Rules, The Cadre Rules, The All Indian Services (Conditions
  of Service - Residuary matters) Rules, l 960 (hereinafter referred to as 'the
  Residuary Rules) have been made by the Central Government. The Cadre
C Rules enables the Central Government to detennine the strength and
  composition of the cadre in each State by framing regulation and in exercise
  of such power the Cadre Strengt11 Regulation, 1955 have been framed by the
  Central Government and not only the total authorised strength of the cadre
  for each State has been indicated but also in indicates the number of post
  for different categories of posts within the cadre. Thus, the Act, the Rules
D and the Regulation are a complete set of provisions dealing with different
  aspects of the service conditions to the Indian Administrative Service and the
  entire scheme contained in these rules and regulations have to be borne in
   mind in answering the questions formulated by us.

E       So far as the first question is concemcd, the Notification dated 15.12.1993
  on the face of it is an amendment to the Cadre Strengt11 Regulation, 1955 and
  by the said Notification 14 posts against item no 3 to be filled up by promotion
  and selection in accordance with Rule 8 of the Recruitment Rules have been
  increased for the period indicated in the notification. The obvious necessity
  for increasing the cadre strength so far as item no. 3 of the Schedule of the
F Cadre Strength Regulation is to accommodate t11e 14 State Civil Service
  Officers who had been excluded from the purview of consideration while              \.
  drawing up the Select List for t11e year 1987 and in whose favour the Tnbunal
  has issued certain directions. The Cadre Strength of the Indian Administrative
  Service for each of the State is fixed by the regulation which regulation is
G framed in exercise of power under sub-rule (1) of Rule 4 of Cadre Rules. This
  being the position the notification increasing the number of posts in respect
  of item no 3 of the.schedule relating to Andllra Pradesh as well as the increase
  of the total authorised strengt11 of the cadre in Andhra Pradesh is nothing
  but an amendment to the Regulation in question, and therefore,
  notwithstanding the level of notification that the same has been issued under
H sub-section (1) of Section 3 of the Act read with sub-rule (2) of Rule 4 of the
         G.K. RAOv. S. BHATTACHARYA [G.B. PATTANAIK, J.]                   1065

Cadre Rules and Rule 3 of the Residuary Rules the same cannot have the              A
status of an Act of the Rule as contended by Mr. Salve the learned counsel
appearing for the appellants. On a plain grammatical meaning of the words
used in the notification being given as well as the object for which the
notification has been issued if borne in mind t11e only conclusion that can be
arrived at is that the said notification is a regulation amending the Cadre         B
Strength Regulation and called t11e 12th Amendment Regulation, 1993.

       So far as the second question posed by us is concerned it is no doubt
a cardinal principle of construction t11at when Rules and Regulations have
been framed dealing with different aspects of the conditions of service of t11e
employees the courts would attempt to make a hannonious construction and            C
try to save t11e provisions and not to strike down the san1e. But where it is
not possible even with doing some amount of violence to t11e language used
in the notification to give a harmonious construction,, t11en necessarily the
court will have no other option t11an to set aside a notification if the said
notification contravenes any provisions of t11e Act or t11e Rule or is ot11erwise
constitutionally invalid. Bearing in mind the aforesaid principle of construction   D
it appears to us that the impugned amended Regulation cannot be
harmoniously construed with Rule 9 of the Recruitment Rules. Under the
Recruitment Rules recruitment to the Indian Administrative Service can be
made by competitive examination; by selection of persons from among the
Emergency Commissioned Officers and Short Service Commissioned Officers             E
of the Armed Forces of the Union; by promotion of member of a State Civil
Service; and by selection, in special cases from among the persons who hold
irt a substantive capacity gazetted posts in connection with the affairs of a
State and who are not members of a State Civil Service. So far as the promotion
of members of a State Civil Service is concerned the procedure is provided
in Rule 8 of the Recruitment Rules. Under the said Rule 8 the Central               F
Government on the recommendation of the State Government concerned and
in consultation with the Public Service commission makes recruitment to the
service by promotion from amongst the members of the State Civil Service in
accordance with Regulation to be framed by the Central Government. Under
Rule 9 of the Recruitment Rules, there is a prohibition that the number of          G
persons recruited under Rule 8 in any State and at any time will not exceed
33 113 per cent of the number of posts shown against items 1 and 2 of tlie
Cadre in relation to the State. The Cadre Strength Regulation framed by the
Central Government in exercise of power under sub-rule(l) of Rule 4 of the
Cadre Rules categorically fixes the number of posts borne and the strength
and composition of the cadre for each of the States and so far as item no,3         H
    1066                   SUPREME COURT REPORTS                    [1998] l S.C.R.

A dealing with the promotion by Selection under Rule 8 of tl1e State Civil Seivice     }-
    officers are concerned it has to be 33 1/3 per cent of items 1 and 2 of the
    Schedule. That being so, any regulation merely increasing the number of post
    ip item 3 without any corresponding increase of items 1 and 2 on the face of
    it would be violative of the very mandate of the Regulation and at any rate
B   it would violate Rule 9 of tlle Recruitment rules. The Regulation itself having
    been framed in exercise of power under sub-rule ( 1) of Rule 4 of the Cadre
    Rules and Rule 8 having provided tliat the recruitment by promotion to fue
    seivice from amongst the members of the State Civil Seivice has to be made
    in accordance with the Regulation and Rule 9 of the said Recruitment Rules
    having provided for a maximum of such promotion, the impugned notification
C   increasing the number of posts only for State Civil Seivice Officer to be
    promoted contravenes Rules 8 and 9 of the Recruitment Rules as well as
    contravenes the mandate of the Regulation itself. Having considered the
    provisions of the Recruitment Rules, the Cadre Rules and the Cadre Strength
    Regulation we have no hesitation to come to the conclusion that the impugned
    notification dated 15 December , 1993 contravenes Rule 9 of the Recruitment
D   Rules and under the scheme of the Act, Rules and Regulations it is not
    possible to sustain the notification in question by giving any hannonious
    construction to the provisions. The Tribunal, therefore, was fully justified in
    striking down the notification dated 15 or December, 1993.

           So far as the third question is concerned, the same is in relation to the
E arguments advanced by the learned Additional Solicitor General appearing for
    the Union of India as well as Mr. Salve appearing for the appellants -who are
    officers of the State Civil Seivice that since those officers were illegally
    excluded from consideration when Select List of tl1e year 1987 was drawn up,
    they had approached the Tribunal and Tribunal having issued directions in
F   their favour tl1e said direction had to be implemented and if on implementation
    of the same the Government of India has issued the impugned notification,
    tl1e said notification must be sustained. In other words, the argument proceeds
    on the ground that the valuable right accrued in favour of the officers of the
    State Civil Seivices who were kept out of consideration for promotion when
    tl1e Select List of the year 1987 was brawn up camiot be taken away by
G   striking down tl1e impugned notification under which supernumerary posts
    were created and promotions were given to those State Civil Service Officers
    from the date their juniors stood promoted. We are unable to persuade
    ourselves to agree with the submission of the learned counsel as it appears
    to us in the proceedings before the Central Administrative Tribunal the
H   grievance of these State Civil service officers was that though they were all
                 G.K. RAO v. S. BHATTACHARYA [G.B. PATTANAIK, J.]                  1067

,,     appointed by one notification but they factually joined at different places on
       different dates depending upon the distance of the place in question and
                                                                                            A
       therefore inter seniority amongst tl1em cannot be decided on tl1e basis of the
       factual date of joining. Since some of the officers who occupied lower position
       in tl1e list were appointed at Hyderabad itself on the date the notification was
       issued, while otl1ers senior to tl1em having been posted at distant places
 _,_   joined much later, when the question of consideration of promotion to tl1e           B
       Indian Administrative Service of the year 1987 cropped up and the Select List
       was drawn up for tliat year by complying the requirement of 8 years service,
       these senior persons were excluded from consideration. It is to be noticed that
       in the same proceedings the direct recruit IAS officers were not parties as
       dispute was inter so between the officers belonging to the State Civil Service
       who were appointed on the same date but joined on different dates. The               c
       Tribunal granted the relief and directed that tl1ey should be considered for
       promotion to the Indian Administrative Service in tlle year 1987 and the
       Review Selection Committee considered tl1eir cases and finally included them
       in the Select List of the year 1987. In view of the integrated scheme of the
       Rules and Regulations as discussed earlier and under the provisions in
       question since only 13 persons could have been promoted to the Indian                D
       Administrative Service from amongst tl1e officers belonging to tl!e State Civil
       Service during 1987 the Select List could have been prepared for only 26
       persons and the Union Government could have promoted only 13 out of tl1em.
       The directions of the Tribunal in favour of tl1e officers belonging to the State
       Civil Service who were excluded from consideration while drawing up the
       original select List for the year 1987 merely conferred a right of reconsideration   E
       and could not confer a right of promotion to the Indian Administrative Service
       which would be contrary to tl1e relevant provisions of tl1e integrated scheme
       as discussed earlier. On tlle basis of tlle revised Select List of tl!e Year 1987
       the Central Government could have promoted only the first 13 of tlle list as
       the number of posts which could be filled up from amongst tl!e officers
       belonging to the State Civil Service in the year 1987 was only 13. But instead       F
,,(
       of following the aforesaid method tl1e State Government and Union Government
       proceeded to recruit by promotion all tl!ose who were included in tlle Select
       List of tlle year 1987. Such act on tl1e part of tl1e Central Government and tl!e
       State Government is contrary to the provisions of the integrated scheme of
       the Rules and Regulations governing the service conditions of the officers
       belonging to the Indian Administrative Service and therefore it was wholly
                                                                                            G
>--
       beyond the competence of tlle Central Government to issue tl!e notification
       dated 15.12.1993 increasing tlle cadre strengtl1 in relation to these promote
       officers as well as the notification dated 16.12.1993 promoting these officers
       to the Indian Administrative Service. Necessarily, therefore, tlle said two
       notifications must be held to be invalid and inoperative and have rightly been       H
    1068                   SUPREME COURT REPORTS                    [1998] l S.C.R.

A struck down by the Tribunal. In view of the aforesaid conclusions anived at
    we do not find any infirmity with the order of the Central Administrative            )-
    Tribunal striking down the two notifications requiring our interference.

         Now coming to the fourth question posed by us, namely, what would
  be the appropriate direction to do complete justice between the parties we
B find that as a necessary consequence of the quashing of the notification
  dated 16.12.1993 the appointment of the 14 officers included therein to the          -1-

  lndian Administrative Se1vice with retrospective effect would stand invalidated,
  though as a matter of fact the said notification has been given effect to and
  most of the State Civil Service Officer promoted thereunder with retrospective
  effect might have superannuated in the meantime. In this view of the matter,
C the State Civil Service Officers who have been promoted to the Indian
  Administrative Service on the basis of the original Select List as well as the
  review Select List of the 1987, their appointment need not be disturbed at this
  length of time. But so far as their seniority and year of allotment in IAS is
  concerned the same has to be re-done in accordance with the Rules and
  Regulations, so that, the direct recruits Indian Administrative Officers' interest
D will not be adversely affected. 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 no. 14 to 40 are concerned of
  the said review Select List of the year 1987 while they would be pem1ittcd to
E continue in Indian Administrative Service but such continuance will not
  confer on them the right to count their seniority and year of allotment but
  their ca~es will have to be adjusted in the subsequent year depending upon
  the number of vacancies and the posts available for such promotes, and their
  year of allotment would be re-detennined accordingly. We would further make
  it clear that if any of these State Civil Service Officers who were much junior
F 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-detennined in view of their position having been pushed down in the
  review select List of the year I 987 which contains the names of all the 40
  officers. We decline to interfere with the order of the Central Administrative
G Tribunal but we issue the aforesaid directions for the 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 not order as to costs.

    V.S.S.                                                    Appeal disposed of.
H