UNION OF INDIA ETC.versusG.N. TIWARI, K.L JAIN & ORS.

    744


                           UNION OF INDIA ETC.
A                                   V•
                      G.N. TllWU, K.L. JAIN &ORS.

                            NOVEMBER 19, 1985

                      [A.P. SEN AND D.P. MADON, JJ.]
B

          Indian Administrative Service (Regulation of Seniority)
    Rules, 1954, Rule 3(3) (b) - Year of allotment, reckoning of -
    Whether a member of the State Civil Service (Executive) on his
    temporary appointment by the State Governn;ent under rule 9 of the
    Indian Administrative Service (Cadre) Rules, 1954, for a period
c   exceeding six months, is entitled to have his continuous period
    of officiation in a senior post for the purposes of computation
    of the "year of allotment" and fixation of seniority - Indian
    Administrative Service (Cadre) Rules, 1954, Rule 9, scope of -
    Clause (1) of Section III of Schedule II of the Indian
    Administrative Service (Pay) Rules, 1954.
D        The respondent, in CA 5045 of 1985 was a substantive member
    of the State Civil Service (Executive) in the State of Madhya
    Pradesh. He was, on November 7, 1975, temporarily appointed by
    the State Government to the post of a collector which is a senior
    post on the cadre under rule 9 of the Indian Administrative
    Service (Cadre) Rules, 1954 and had been continuously officiating
E   on such post with effect from November 10, 1975 till the Central
    Govermnent accorded its approval on October 1, 1976 for his
    appointment in the Indian Administrative Service. The promotion
    quota of non-c:adre officers to cadre posts which was 50 prior to
    October 1 1 1976 was on that date increased to 56. The respondent
    was foxmally appointed to the Indian Administrative Service by
F   the Central Govermnent on December 7, 1976. The State Govermnent
    of Madhya Pradesh by its letter dated February 3, 1979 informed
    him that be was assigned 1972 as the yesr of allotment by the
    Central Government. The respondent, therefore, filed a petition
    under Article 226 of the Constitution for an appropriate writ or
    direction directing the appellants to assign him, 1971 as the
G   year of allotment, fix his seniority accordingly and allow all
    consequential reliefs.

          The High Court, held: (a) that though there was no specific
    approval of the Central Govermnent to the appointment of the
    respondent, such pd.or approval was not a condition precedent
H
                      U•O.I. v. G.N. TIWARI                    745


for valid appointment to a cadre under rule 9 of the Cad.re Bulea
and, therefore, the continuous officiation by the respondent as       A
the Collector for the period from November 10, 1975 to September
30, 197 6 could not be ignored on the ground that the appointment
was not specifically approved by the Central Government: (b) the
existence of a vacancy in the promotion quota of cadre officers
was not a condition pre-requisite for making an appointment of a
non-cadre officer to a cadre post under rule 9 of the Cadre l!ulea    B
and therefore, the fact that there was over utilization of the
State Deputation Reserve Quota had no bearing on the queation of
the valid! ty of the appointment of the respondent on a cadre
post; (c) that the condition of approval by the Central
Government required by the proviso to clause (I) of Section Ill
of Schedule 11 of the Indian Administrative Service (Pay) ·l!ulea,    c
1954 was only for pay fixation and it had nothing to do with the
validity of the officiation of a non-cadr" officer in a cadre
post under l!ule 9 of the Cadre l!ulea; and (d) that his continuous
officiation in a senior post of Collector from November 10, 1975
was in accordance with l!ule 9 of the Cadre l!ulea and the same
must enure for his benefit to give him seniority under Rule 3(3)      D
 (b) of the Seniority l!ulea. The High Cpurt thus allowed the
petition.                           ·

      Following the said case reported as K.L. Jain v. um- of
IDdia, (1984) MPLJ 284, the High Court of Madhya Pradeah in the
connected cases out of which the present Civil Appeals Nos. 5040-     E
5044 of 1985 arise held that the reapondents therein alao be
assigned years 1966, 1967 and 1971 as their "years of allotment"
reapectively under rule 3(3) (b) of the Seniority l!ulea 8Dd their
placement in the seniority list be accordingly revised.

      Allowing the appeal.a, the Court
                                                                      F
      llEUl : 1.1 For the purposes of appointment of a non-cadre
officer to a cadre post under Rule 9 of the Indian Administrative
Service (Cadre) l!ules, 1954, neither the prior approval of the
Central Government to such appointment nor the existence of a
vacancy in the promotion quota is a condition precedent. [754 G]
                                                                      G
      1.2 It is plain upon a construction of l!ule 9 of the Indian
Administrative Service (Cadre) Rules, 1954, that under sub-rule
(1) the State Government can direct that a cadre post may be
filled by a person who is not a cadre officer. If it is satisfied
that the vacancy is not likely to last for more than three months
or that there is no suitable cadre officer available for filling
                                                                      H
     746               SUPREME COURT REPORTS     [1985] SUPP. 3 s.c.R.


     the vacancy. Under sub-rule (2), where in any State a person than
A    a cadre officer is appointed to a cadre post for a period exceed-
     ing three months, the State Government is required to forthwith
     report the fact to the Central Government together with the
     reasons for making the appointment. Under rule 3, on receipt of a
     report under sub-rule (2) or otherwise, the Central Government
     may direct that the State Govermnent shall terminate the appoint-
B    ment of such person and appoint thereto a cadre officer, and
     where any direction is so issued, the State Government shall
     accordingly give effect thereto. Under sub-rule (4), where a
     cadre post is likely to be filled by a person who is not a cadre
     officer for a period exceeding six montha, the Central Government
     is required to report the full facts to the Union Public Service
     Canmission with the reasons for holding that no suitable officer
c    is available for filling the post and may, in the light of the
     advice given by the Union Public Service Commission, give suit-
     able direction to the State Government concerned in that behalf·
     [753 E-ti; 754 A-ll]

        1.3 The power of the Central Govermnent under sub-rule ( 3)
  to direct termination of appointment of a person other than a
D
  cadre officer to a cadre post for £.period exceeding three months
  or more cannot be said to be a larger power and carried with it
  the power to direct curtailment of the period of officiation of
  such person. The power to direct termination of the appointment
  of a non-cadre officer in a senior post is distinct from the
  power to direct curtailment of his period of officiation. ln the
E
  absence of a provision made in the Cadre Rules empowering the
  Central Government to direct the curtailment of the period of
  officiation of a non-cadre officer on a cadre post for purposes
  of reckoning his year of allotment under rule 3(3)(b) of the
  Seniority Rulea and since such a power cannot be spelled out from
  sub-rule (3) of rule 9 of the Cadre Rules which confers power on
F
  the Central Government to direct termination of appointment of
  a non-cadre officer to a cadre post, the orders passed by the
  Central Government fixing different dates as the date from which
  the period of officiation of each of the respondents is to be
  reckoned for determining the year of allotment under rule 3(3)(b)      -.
G
  of the Seniority Rulea ere wholly arbitrary and capricious.
  Further the failure of the Central Government to give a direction
  under sub-rule (3) of rule 9 to terminate the appointment of the
  respondents implies that their continuous officiation on a cadre
  post had the tacit approval of the Central Government. [756 G-i!;
  757 A-ll]
II
           2. ln these cases, the respondents as non-cadre officers
     could not be denied the benefit of continuous officiations in a
     senior poet merely because the State Deputation Reserve Quota wu
     over utilised. [757 D-E]
                      u.o.r. V• G.N. TlliARI                  747


     Barjeet Sillgb v. Union of India & Ors., (1980] 3 s.c.R.
459; and Amrik Sillgb & Ors. v. Union of IDd1a & Ors •• [1980] 3     A
s.c.R. 485 followed.
       2.2 The respondents who were appointed to the Service by
 promotion in accordance with sub-rule 1 of Rule 6 the Recruitment
 Rules are entitled under Explanation 1 to Rule 3(3)(b) of the
·Indian Administrative Service (Regulation of Seniority) Rules,      B
 1954 to have the entire period of their continuous officiation in
 a senior post, for the purpose of determination of their
 seniority, counted from the date of their officiating appointment
 to such senior post whichever was later. They are also entitled
 by reason of the legal fiction contained in Explanation 2 to have
 the entire period of their continuous officiation without a break   c
 in a senior post from the date of their officiating appointment
 to such senior post till the date of their appointment into the
 service, counted for purposes of determining their year of allot-
 ment under rule 3(3)(b) of the Indian Administrative Services
 (Regulation of Seniority) Rules 1954. It cannot be said that
 their officiation in a senior post on the cadre for the periods     D
 in question was merely fortuitous or stop-gap. [756 C-F]

      Z.3 Where a person other than a cadre officer is appointed
to the service by promotion in accordance with sub-rule (1) of
Rule 8 of the Recruitment ·Rules, the year of allotment of the
junior lllOSt S1D0ngst the officers recruited to the service in      E
accordance with rule 7 of the Rules who officiated continuously
in a senior post from a date earlier than the commencement of
such officiation by the former, is tile determinative factor in
allocation of the "year of allotment" under rule 3(3)(b) of the
Seniority .Rules. [755 G-:li; 756 A]

      l..L. Jain v. Union of lDdia, [1984] M.P.L.J. 284 affirmed     F
and approved.

      CIVIL APPELLATE JURISDICTION    Civil Appeals Nos. 5040-5044
of 1985.

      From the Judgment and Order dated 16.12.1983 of the Madhya     G
Pradesh High Court in Misc. Petition Nos. 297, 142, 830, 891 and
1520 of 1982,
                                AND

                 . Civil Appeal No. 5045 of 1985.
                                                                     H
    748               SUPREME COURT REPORTS        [1985] SUPP. 3 s.c.R.


A         From the Judgment and Order dated 9. 9.1983 of the Madhya
    Pradesh High Court in Misc. Petition No. 1186 of 1981.

         V. c. Mahajan, R.N. Poddar and Mrs. K.       Kumarmanglam for
    the Appellants.

B         V. Bobde, C.L. Sahu and Miss Bina Gupta for the Respondents
    in C.A.Nos. 5040-5044 of 1985.

          K.K. Venugopal,. C.L. Sahu for the Respondent in C.A. No.
    5045 of 1985.

          The Jud~ent of the Court was delivered by
c
          Sl!N, J. After hearing learned counsel for the partiea we
    had by our order dated October 11, 1985 dismissed these appeals.
    We now proceed to give the reasons therefor.

           These appeals by special leave directed against the
    judgments and orders of the Madhya Pradesh High Court dated
o   September 9, 1983 and December 16, 1983 raise a question as to
    whether a member of the State Civil Service (Executive) on his
    temporary appointment by the State Government under r. 9 of the
    Indian Administrative Service. (Cadre) Rules, 1954 for a period
    exceeding six months, is entitled to have his continuous period
    of officiation in a senior post, to be taken into account in
E   reckoning_ the 'year of allotment' under r.3 (3)(b) of the Indian
    Administrative Service (Regulation of Senlority) Rules, 1954.
    That depends on whether prior approval of the Central Government
    or the Union Public Service Commission to such appointment under
    sub-r. (2) of r. 9 of the Cadre Rules for the appointment of a
    non-cadre officer to a cadre post by the State Government is a
F   condition precedent for a valid appointment under r.9 of the
    Cadre Rules. Further, the question is whether the existence of a
    vacancy in the cadre strength of promotees, i.e. over-utilization
    of the State Deputation Reserve Quota is a relevant factor to be
    taken into .consideration in determining the period of continuous
    officiation in a senior post on the cadre till the Central
G   Government accords its approval to such appointment under r.9 of
    the· Cadre Rules in assigning the year of allotment under
    r. 3(3)(b) of the Seniority Rules.

          Facts in these cases are more or less similar. It will
    suffice for our purposes first to state the facts in K.L. Jain's
H   case. The respondent was a substantive member of the State Civil
                      u.o.r. v. G.N. TIWARI [SEN, J,]                749


    Service (Executive) in the State of Madhya Pradesh. He was on           A
    November 7, 1975 temporarily appointed by the State Government
    to the post of a collector which is a senior post on the Cadre
    under r. 9 of the Indian Administrative Service (Cadre) Rules,
    1954 and had been continuously officiating on such post w.e.f,
    November 10, 1975 till the Central Government accorded its
    approval on October l, 1976, for his appointment in the Indian          B
    Administrative Service. The promotion quota of non-cadre officers
    to cadre posts was 50 prior to October l, 1976 but was on that
    date increased to 56. The respondent was formally appointed to
    the Indian Administrative Service by the Central Government on



'   December 7, 1976. The State Government of Madhya Pradesh by
    letter dated February 3, 1979 informed the respondent that he was
    assigned 1972 as the year of allotment by the Central Government.
    Feeling aggrieved, the respondent filed a petition before the
    High Court under Art. 226 of the Constitution for an appropriate
    writ, direction or order, directing that he should instead be
                                                                            C




    assigned 1971 as his year of allotment under r. 3(3)(b) of the
    Seniority Rules and his seniority should be fixed on that basis,        D
    and that on refixation of his seniority, he be allowed the
    consequential reliefs to which he may be entitled.

          The appellant contested the respondent's claim on three
    grounds, namely : (i) he was not entitled to count his continuous
    officiation in the senior post of Collector from November 10,           E
    1975 as his appointment to such post ·in the cadre was not
    approved by the Central Govet"Illllent till October l, 1976 i.e., for
    any period prior to October l, 1976; (ii) there was no vacancy in
    the cadre strength of promotees for any period prior to October
    l, 1976 and therefore the appointment of the respondent to the
    post of Collector for the period from November 10, 1975 to
    September 30, 1976 had to be ignored; and (iii) there was over-         F
    utilization of the State Deputation Reserve Q.lota and for this
    reason also his continuous officiation on the senior post of a
    Collector could not be taken into account.

          G,P, Singh, CJ speaking. for himself and Faizanuddin, J in
    LL. Jain v. Union of Iudia, (1984) MPW 284 held that though             G
    there was no specific approval of the Central Government to the
    appointment of the respondent, such prior approval was not a
    condition precedent for a valid appointment to a cadre under r.9
    of the Cadre Rules and therefore the continuous officiation by
    the respondent as the Collector for period from November 10, 1975
    to September 30, 1976 could not be ignored on the ground that the
    appointment was not specifically approved by the Central                H
    Government. Further, it was held that the existence of a vacancy
    750               SUPREJ'JE COURT REPOR1S   [1985] SUPP. 3 s.c.R.


A
    in the promotion quota of cadre officers was not a condition
    pre-requisite for making an appointment of a non-cadre officer to
    a cadre post under r.9 of the Cadre Rules and therefore, merely
    because there was over-utilization of the State Deputation
    Reserve Quota had no bearing on the question of the validity of
    the appointment of the respondent on a cadre ppst. It also held
B   that the condition of approval by the Central Government required
    by the proviso to cl.(l) of s. III of Schedule II of the Indian
    Administrative Service (Pay) Rules, 1954 was only for pay
    fixation and it had nothing to do with the validity of the
    officiation of a non-cadre officer in a cadre post under r.9 of



                                                                        '
    the Cadre Rules. It, accordingly, allowed the writ petition filed
    by the respondent and held that his continuous officiation in a
c   senior post of Collector from November 10, 1975 was in accordance
    with r.9 of the Cadre Rules and the same must enure for his
    benefit to give him seniority under r.3 (3)(b) of the Seniority
    Rules.

          In the connected case, G.N. Tiwari and 19 other members of
    the Madhya Pradesh cadre of the Indian Administrative Service who
D   had similarly been deprived of the benefit of their continuous
    officiation on their temporary appointment to the cadre post of a
    Collector by the State Government under r.9 of the Cadre Rules
    and had been assigned the year 1967 instead of 1966, the year
    1968 instead of 1967, or the year 1972 instead of 1971 as the
    year of allotment under r. 3(3)(b) of the Seniority Rules also
    moved the High Court by a petition under Art. 226 of the Consti-
    tution based on the same grounds, and prayed for the grant of
    similar relief. A Division Bench consisting of J.S. Verma and
    C.P. Sen, JJ following. the decision in K.L.Jain's case allowed
    the writ petition filed by the aforesaid respondents and directed
    that they be assigned the years 1966, 1967 and 1971 as their
F   years of allotment respectively under r. 3(3)(b) of the Seniority
    Rules, as claimed by them, and their placement in the seniority
    list be accordingly revised. It expressed the hope that the State
    Government and the Central Government would give them all the
    consequential reliefs to which they may be entitled on re-fixa-
    tion of their seniority. Against the two judgments, the Union of
G   India has preferred these appeals by special leave.

          In support of the appeal, learned counsel for the appellant
    advanced two contentions, namely : (1) The respondents were not
    entitled to have their entire period of continuous officiation in
    a senior post under r.9 of the Cadre Rules taken into account in
                                                                        '
H   assigning the years of allotment under r. 3(3)(b) of the
    Seniority Rules as their temporary appointment to such senior
                      U.O.I. v. G.N. TIWARI [SEN, J.]          . 751


post in the cadre was subject to the prior ~pproval of the             A
Central Government under sub-r. (2) of r. 9 of the Cadre Rules,
and (2) They as non-cadre officers were not entitled to
appointment to the cadre post of a Collector because there was no
  actual vacancy in the cadre strength of promotees. It is urge,i
  that the power of the Central Government under sub-r.(3) of r.9
· of the Cadre Rules. to direct tennination of appointment of a        B
  person other than a cadre officer appointed for a period exceed-
  ing three months is a larger power and necessarily carries within
  its ambit, the lessor power to direct curtailnient of the period
  of officiation. It is further urged that the respondents were not
  entitled to the benefit of continuous officiation in a senior
  post to be taken into account in reckoning their yeat of allot-      c
  ment because there was no vacancy in the cadre strength of
  promotees. In fact, there was over-utilization of State Deputa-
  tion Reserve Quota. We are afraid, we cannot accept this line of
 reasoning.

       The assignment of the year of allotment is governed by r.3      D
 of the Indian Administrative Service (l<egulation of Seniority)
 Rules, 1954. The relevant clause applicable to the respondents is
 that contained in r. 3(3)(b) which reads as follows:

              "3(3). The year of allotment of an officer appointed
              to the Service after the conmencement of these rules     E
              shall be -

              (a) x                  x                  x          x

              (b) Where the officer is appointed to the Service by
              promotion in accordance with sub-rule (1) of rule 8 of
                                                                       F
              the Recruitment Rules, the year of allotment of the
              junior-most among the officers recruited to the
              Service in accordance with rule 7 of these rules who
              officiated continuously in a senior post from a date
              earlier than the date of coD111encem.ent of such
              officiation by the fonner :
                                                                           G
              Provided that the year of allotment of an offi.cer
              appointed to the Service in accordance with sub-rule
              (1) of rule 8 of the Recruitment Rules who started
              officiating continuously in a senior post from a date
              earlier than the date of which any of the officer
              recruited to the Service in accordance with rule 7 of
                                                                           H
              these Rules so started officiating, shall be deter-
              mined ad hoc by the Central Government in consult-
              ation with the State Government concerned :
    752               SUPREME COURT REPORTS           [1985] SUPP. 3 s.c.R.


A                 .                           .
              Explanation 1 - In respect of an officer appointed to
              the Service by promotion in accordance with sub-rule
              (1) of rule 8 of the Recruitment Rules, the period of
              his continuous officiation in a senior post shall, for
              the purposes of determination of his seniority, count
              only from the date of the inclusion of his name in the
B             Select List, or from the date of his officiating
              appointment to such senior post, whichever is latter :

              Explanation 2 - An officer shall be deemed to have
              officiated continuously in a senior post from a
              certain date if during the period from that date to
              the date of his confirmation in the senior grade he
c             continues to hold without any break or reversion a
              senior post otherwise than as a purely temporary or
              local arrangement."

         It is common ground that the post of Collector is a senior
    post. It is not disputed that the respondents were continuously
    officiating in a senior post for long periods prior to the date
D   of their appointment to the Indian Administrative Service. It is
    also not in dispute that if the entire period of continuous
    officiation by the respondents in the senior posts of Collectors
    were taken into account, they would be entitled to the year 1966
    instead of 1967, the year 1967 instead of 1968 and the year 1971
    instead of 1972 as the 'year of allotment' to them in accordance
E   with r. 3(3)(b) of the Seniority Rules.

         The appointment of the respondents to the senior post of
    Collector was made in accordance with r.9 of the Indian
    Administrative Service (Cadre) Rules, 1954. It is in these terms:
F              "9. TeqJOrm:y   appointirpnt       of non-cadre officers to
               cadre posts -

              (1) A cadre post in a State may be filled by a person
              who is not a cadre officer if the State Government is
              satisfied -
G
               (a) that the vacancy is not likely to last for more
               than three months , or

               (b) that there is no suitable cadre officer available
               for filling the vacancy.
H
                 U.o.I. v. G.N. TIWAR! [SEN, J.]              753


           (2) Where in any State a person other than a cadre·       A
          officer is appointed to a cadre post for a period
          exceeding three months, the State Government shall
          forthwith report the fact to the . Central Government
          ·together with the reasons for making the appointment.

           (3) On receipt of a report under sub-rule (2) or          B
           otherwise, the Central Government may direct that the
           State Government shall terminate the appointment of
           such person and appoint thereto a cadre officer, and
           where any direction is so issued, the State Government
           shall ~ccordingly give effect thereto.
                                                                     c
           (4) Where a cadre post is likely to be filled by a
           person who is not a cadre officer for a period
           exceeding six months, the Central Government shall
           report the full facts to the Union Public Service
           Commission with the reasons for holding that no
           suitable officer is available for filling the post        D
           and may in the light of the advice given by the Union
           Public Service Commission give suitable direction to
           the .State Government concerned."

     It is plain upon a conatruction of r.9 that under sub-x-. (1)
the State Government can direct that a cadre post may be filled      E
by a person who is not a cadre officer if it is satisfied· that
the vacancy is not likely to last for more than. three months or
that there is no suitable cadre officer available for filling the
vacancy. In these cases, admittedly, the appointments of each of
the respondents who was a person other than a cadre 'officer to
the senior post of Collector in th11 cadre lasted· ·for nearly a
year or more and therefore exceeded the period of three months       F
contemplated by sub-r.(l). Such an appointment could be made by
the State Government on being satisfied that there was no suit-
able officer for filling the vacancy. It is not averred in the
returns filed by the State Government or the Central Government
in the High Court that this condition was not satisfied when the
respondents were so appointed. Under sub-r.(2), where in any         G
State a person other than a cadre officer is appointed to a cadre
post for a period exceeding three months,. the State Government is
required to forthwith report the fact to the Central Government
together with the reasons for making the appointment. From the
documents filed by the State Government in the High Court, it
appears that such a report was made by the State Govei:nment to
the Central Government on June 26, 1976. The Central Government      H
by letter dated February 19, 1977 asked for ·a consolidated
     754              SUFRfil,E COURT l\EPORTS    [1985] SUPP. 3 s.c.R.


     proposal for approval of officiation of non-cadre officers on
A
     cadre posts for the half year ending September 30, 1976. In com-
     pliance therewith, the State Goverrur.ent sent the required
     proposal on harcl1 29, 1977. Under sut-r. (3), on receipt of a
     report under sub-r.(2) or otherwise, the Central Government may
     direct that the St,te Government shall terminate the appointment
     of such person and appoint thereto a cadre officer, and where any
il
     direction is so issued, the State Government shall accordingly
     give effect thereto. Under sub-r.(4), where a cadre post is
     likely to be filled by a person who is not a cadre officer for a
     period exceeding six months, the Central Government is required
     to report the full facts to the Union Public Service Coimnission
     with the reasons for holding that no suitable officer is avail-
     able for filli11i; the post and may, in the lii;ht of the advice
c    given by the Union Public Service COllJlLission, give suitable
     direction to the State Government concerned in that behalf.

          lnterpreti11i; the provisions of sub-rules (2), (3) and (4),
     the High Court in K.L. Jain's case, rightly observed :

                "In the instant case,     the Central Governn.ent never
u
                directed the State Government to terminate the
                petitioner's appointment. It is also not the case that
                the L.P.s.c. tendered any advice to the Central
                Government that the appointment be terruinated. It is
                true that there is a specific approval of the Central
E
                Government to the appointment of the petitioner but
                that is not a condition precedent for a valid appoint-
                ment under Rule 9 and the petitioner's officiation in
                a senior cadre post from 10th ~ovember 1975 to 30th
                September 1976 cannot be ignol"ed on the ground that
                the appointment was not specifically approved by the
 F              Central Government. The petitioner's said officiation
                cannot also be ignored on the ground that there was
                no vacancy during this period in the   promotion quota
                of the cadre officers."

     The High Court held that prior approval of the Central Government
 G   was not a condition precedent to the apppointment of a   non-cadre
     officer to a cadre post under r.9 of the Cadre Rules. It further
     held that the existence of a vacancy in the promotion quota was
     not a pre-requisite for making such an appointllient. 1he appoint-
     ment of the respondent K.L. Jain to the Indian Administrative
     Servl.ce made by the Central Government on December 7, 1976 was on
 H   a post when there was admittedly a vacancy in the proEotion quota
                   U.O.I. v. G.N. TIWARI [SE•, J.]                    755


of non-cadre officers, but his temporary appointment by the State            A
Government to the post of Collector which is a senior post in the
cadre under r.9 on Noverr..ber 7, 1975 was at a time when there was
no such vacancy in the promotion quota. It appears that the
promotion quota of non-cadre officers to cadre posts was 50 prior
to October 1, 1976 and was on that date iricreased to 56. Since
                                                                             B
the existence of a vacancy was not a condition precedent for
making an appointment under r. 9 of a no:i.-cadre officer to a
cadre post, the High Court held that the respondent's officiation
from November 10, 1975 to S.eptember 3C, 1976, could not be held
to be invalid or ignored. On the same reasoning, it held that
the fact that the State Government had over-utilized the
Deputation Reserve Quota during the aforesaid period, could have
                                                                             c
no bearing on the question of validity of his appointment on the
cadre post. It then added :

           "It may be that if the Central Goverllllient thought that
           the State Deputation Reserve <;uota which gave rise to
                                                                             D
           a vacancy of a cadre post, it could have directed           the
           State    Goverllllient   to   teminate       the   petitioner's
           appointment but such a course was never adopted. As
           the Central Government did not issue any direction to
           the State Government to ternii.nate the petitioner's
           appointment, the appointment has to be held to be
                                                                             E
           valid and given effect to."

     In that view, the High Court held           that   the   respondent's
continuous officiation in a senior post from November 10, 1975
was in accordance with r.9 of the Cadre Rules and the same must
enure for his benefit for reckoning his seniority under r.3(3)(b)
of the Seniority Rules. Further, it held that the requirement of             F
approval of the Central Government as contained in the proviso to
cl. I of s. Ill of Schedule II of the Indian Administrative
Service (Pay) Rules, 1954 cannot be imported into r.9 of the
Cadre Rules or r.3(3)(b) of the Seniority Rules. The view
expressed by the High Court in K.L. Jain's case was followed with
approval in the later case of G.N. Tiwari & Ors. v. Union of                 G
India.

     Where a person other than a cadre officer is appointed to
the Service by promotion in accordance with sub-r.(l) of r.8 of
the Recruitment Rules, the year of allotment of the junior-most
amongst the officers recruited to the Service in accordance with
r. 7 of the Rules who officiated continuously in a senior post               H
from a date earlier than the coILI!lencement of such officiation by
the former, is the determinative factor in allocation of the
'year of allotment' under      r. 3(3)(b)   of    the    Seniority Rules.
      756                SL'PREME COURT REPORTS         [1~85)   SLrP. 3 s.c.R.


         Proviso thereto enjoins that the year of allotment of an officer
 A       appointed to the Service in accordance with sub-r.(l) of·r.8 of
         the Recruitment Rules who started officiatint continuously in a
         senior post £ran. a date earlier thB.n the date on which any of the
         officers recruited to the Service in accordance. with r.7. so
         started officiating,· shall be determined ad hoc by the Central
       · Government in con5ultation with the StateGove-rnment concerned.
 B Explanation. 1 ·to r.3(3)(b) interdicts ·that in respect of an .
         officer appointed to the Service by pron:.otion. in accordance with
         su!H:.(l) of r.& of the Recruitment Rules, the period of his
         continuous officiating in· a senior post shall, for purposes of
        .~etermination of his. seniority, count only from the date of
         inclusion of his nan:.e in the Select.List,_ or from the date of his
         officiating appointment to ~uch senior post, whichever is.later.
 C       Explanation provides that an officer shall ·be deemed to have
         officiate_ continuously in a senior post from a certain date if·
         during· the period from the date of the date of his-confirmation·
         in ·the senior post he .continued to hold· without any break or
         reversion the senior post otherwise than as a purely temporary or
         locil arrangement. In . these cases 1 · the respo'ndents who were
         app0inted to the service by promotion in accordance · with
 D       sub-r.(l) of r.8 of the Recruitment Rules were entitled under
         Explanation I to hB.ve the entire period of continuous officiation
         in a · sellior post, for the purpose of determination of their
         seniority, counted from the date of inclusion of their names in
         the Select List or. from the date of his off iciatin;; appointment
         to such senior post, whichever was later. They were also entitled
 l::     by reason of the legal. fiction contained in Explanation 2 to have
     .. the entire period of their continuous officiation without a break
         in a senior post ·from the date of their officiating appointment
         to such senior post till the d<ite of their appoint~ent into the
         Service, counted for p~rposes of determining their year of
         allotment under r. 3(3)(b) of the Seniority Rules. It cannot be
'F ' · said that their officiation in a senior post on the cadre for the
        'periods in 'question was merely fortuitous or stop-gap.
            ~~                                      .              '



           We are not impressed with '     the submission that the power of
      the ·central Government under sub-r.(3) to direct termination .of
      appointment of a person other than a cadre officer , to a cadre
 G    post for a period exceeding three months or more was a larger
      power and carried.with it.the power to direct curtai~nt of the
      period of , officiation· of .. such. person. Obviously, the power to
      direct terinination of the appointment of a non-cadre officer.in a
      senior post is distinct from'the power to direct curtai~nt•of
      his period of officiation. There is no such provision made in the
 H    Cadre Rules empowering the Central Government to · direct th•
                 u.o.I. v. G.N. TIWARI [SEN, J.)               757


curtailment of the period of ·officiation of a non-cadre officer       A
on a cadre post for purposes of reckoning his year of allotment
under r.3(3)(b) of the Seniority Rules. Such a power cannot be
spelled out from sub-r.(3) of r.9 of the Cadre Rules which
confers power on the Central Government to direct termination of
appointment of a non-cadre officer to a cadre post. In the
absence of such a provision, the impugned order passed by the          B
Central Government appointing October 1, 1976 as the date from
which the period of officiation is to be reckoned for determining
the year of allotment under r.3(3)(b) of the Seniority Rules was
wholly arbitrary and. capricious and therefore rightly struck down
by the High Court. The failure of the Central Government to give
a direction under sub-r.(3) of r.9 to terminate the appointment        ·c
of the respondents implies that their continuous officiation on a
cadre post had the tacit approval of the Central Government,
particularly in view of the fact that the Central Government by
letter dated February 19, 1977 required the State Government to
suhnit a consolidated proposal for approval of officiation of
non-cadre officer on cadre posts for the half year ending
September 30, 1976. 'Ihis was followed by a report of the State         D
Government dated March 29, 1977. The Central Government by order
dated October l, 1976 accorded its approval to their appointment
in the Indian Administrative Service. Furthermore, the respon-
dents as non-cadre officers could not be denied the benefit of
continuous officiation in a senior post merely because .the State
Deputation Reserve Quota was over utilised: vide Barjeet S:l.ngh v.        E
Union of India & Ors., [1980) 3 s.c.R. 459 and Amrilr. Singh & Ors.
v. Union of India &Ors., [1980) 3 s.c.R. 485.

     The result therefore is that the appeals must fail and are
dismissed. There shall be no order as to costs.
                                                                           F
     We are constrained to observe that although the judgment of
the High Court in K.L. Jain's case was rendered as far back as
September 9, 1983 and that in the case of G.l!I. 'Iiwari on December
16, 1983, the directions issued by the High Court have not been
imple11£nted so far. We hope and trust that the Central Government
will take steps to comply with the directions issued by the High            G
Court forthwith.




S.R.                                               Appeals allowed.