M. AMANULLAH KHANversusGOVERNMENT OF INDIA AND ORS.

                      M. AMANULLAH KHAN                                  A
                                  V.

               GOVERNMENT OF INDIA AND ORS.

                          AUGUST 25, 2004
                                                                         B
      [ARIJIT PASAYAT AND D.M. DHARMADHIKARI, JJ.]

    Indian Forest Service (Regulation of Seniority) Rules. 1966/Indian
Forest Service (Cadre) Rules, 1966 :

      rr. 3(2)(c) and 2(g)lr.9-0fficer in State Forest Department- C
Appointed to IFS-Claim for seniority from date of continuous officiation
on cadre posts-Held, in absence of prior concurrence of Central
Government and prior approval of Union Public Service Commission.,
temporary appointment to cadre posts is a mere ad hoc or local arrangement
or fortuitous.                                                             D
      The appellant, an officer in the Forest Department of the State
Government, was appointed to the Indian Forest Service on 27.3.1992.
He filed an original application before the Central Administrative
Tribunal contending that from 6.8.1980 onwards he officiated on cadre E
posts and, therefore, his long officiation would be taken as continuous
officiation for the purpose of fixing his seniority in the I.F.S. The stand
of the Union oflndia and the State Government was that the applicant
was neither a cadre officer nor a Select List Officer and in absence of
a certificate by the State Government in terms of Explanation 4 to Rule p
3(2)(c) of the Indian Forest Service (Regulation of Seniority) Rules,
I 966 the officiation was fortuitous and of no consequence. It was
further contended for the Union of India that the applicant being a
non-cadre officer, who had officiated on a cadre post beyond the period
of 6 months could not claim the servke for seniority in absence of G
approval from the Central Government and the Union Public Service
Commission in terms of Rule 9 of the Indian Forest Service (Cadre)
Rules. 1966. The Tribunal dismissed the application. Aggrieved, the
applicant filed the present appeal.
                                                                         H
                                  797
    798                 SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

A         Dismissing the appeal, the Court

        HELD: In view of Rule 3 read with Rule 2(g) of the Indian Forest
  Service (Regulation of Seniority) Rules, 1966, the period of continuos
  officiation in senior posts would count only from the date of inclusion
B in the Select List or from the date of officiating appointment to senior
  post whichever is later. Where temporary appointment to the vacancy/
  vacancies in cadre posts continue for more than three months, the prior
  concurrence of the Central Government is mandatory. If it continues
  for more than six months prior approval of the Union Public Service
C Commission is also mandatory. Any appointment in violation thereof
  is not an appointment in accordance with the law but a mere ad hoc
  or local arrangement or fortuitous. In view of the decisions in Syed
  Khalid Rizvi 's* case and R.R.S. Chauhan 's** case, the judgment of the
  Central Administrative Trib:mal does not suffer from any infirmity to
  warrant interfence. [802-A; 804-B-C; 805-C)
D
         *Syed Khalid Rizvi and Ors. v. Union ofIndia and Ors., [1993] Supp.
    3 SCC 575 and uR.R.S. Chauhan and Ors. v. Union of India and Ors.,
    [1995] Supp. 3 SCC 109, relied on.

E        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7252 of
    1999.

        From the Judgment and Order dated 7.3 .1996 of the Central
    Administrative Tribunal, Madras Bench in O.A. No. 1368/93.

F        Amarendra Sharan, Additional Solicitor General, R.P. Bhatt, R.P.
    Wadhwani, Pumima Bhatt Kak, P. Parmeswaran, R. Ayyam Perumal,
    Subramonium Prasad and R. Nedumaran for the appearing parties.

          The Judgment of the Court was delviered by
G
          ARIJIT PASAYAT, J.: Challenge in this appeal is to the legality
    of judgment rendered by the Chennai Bench of the Central Administrative
    Tribunal (hereinafter referred to as the 'CAT'). Appellant was applicant
    in two original application nos. 1188/1993 and 1368/1993. The present
H
            M.A. KHAN v. GOVT. OF INDIA [PASAYAT, J.]                   799

appeal relates to OA No. 1368/1993. By the common judgment the original A
applications of two applicants i.e. the present appellant and one Mr. N.
Veeramani were disposed of. In the concerned O.A. claim of the appellant
was as follows:

       Between 6.8.1980 and 14.12.1982 he was holding the post of B
Divisional Manager, Coonoor Division, Tamil Nadu Tea Plantation
Corporation, Coonoor. Between 15.12.1982 and 12.6.1986, he was Sub
Divisional Forest Officer in the Social Forestry Division at Tiruchendur.
From 13.6.1986 to 12.2.1988, he was Divisional Forest Officer, Social
Forestry Division, Tirunelveli. From 13.2.1988 to 22.7.1990, he was
Divisional Forest Officer, Social Forestry Division, Ramnad. From 23. 7.1990 C
to 2.6.1991 he was Deputy Conservator of Forests, Kundha Soil
Conservation, Coonoor. From 3.6.1991to17.6.1991 he was District Forest
Officer, Dindigul Division, Dindigul. Finally from 18.6.1991 onwards, he
was District Forest Officer, Madurai Division, Madurai. He was appointed
to the Indian Forest Service (in short the 'l.F.S') on 27.3.1992. All the D
above posts held by·him from 6.8.1980 onwards are cadre posts and his
long officiation in cadre posts should be taken as continuous officiation
for the purpose of fixing his seniority in the 1.F.S.

        Stand of the first respondent-Union of India before the CAT and E
the second respondent- the Government of Tamil Nadu was that the
applicant was not a cadre officer and he was also not a Select List Officer,
and in the absence of a certificate by the second respondent in terms of
Explanation 4 to Rule 3(2)(c) of the Indian Forest Service (Regulation of
Seniority) Rules, 1968 (in short the 'Seniority Rules'), the officiation is of F
no consequence and is fortuitous. The first respondent also took the stand
that the applicant being a non-cadre officer, who had officiated in a cadre
post beyond the period of six months, cannot claim the service for seniority
in the absence of approval from the Central Government and the Union
Public Service Commission (in short the 'UPSC') in terms of Rule 9 of
the Indian Forest Service (cadre) Rules, 1966 (in short 'Cadre Rules'). G

      CAT accepted the stand of the respondents and held that the appellant
was not entitled to any preference in the year of allotment, and the services
in officiating posts were not to be reckoned for the purpose of seniority.
Accordingly, the prayer was not accepted.                                     H
    800                  SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A         Learned counsel for the appellant submitted that when the appellant
    had officiated for nearly 10 years in higher posts it was illogical and
    inequitable to deny him the benefit while fixing seniority. It was submitted
    that relaxation of the rules should have been done to extend the benefit
    to the appellant.
B
          Mr. Amarendra Sharan, learned Additional Solicitor General submitted
    that the decision of CAT is in line with the statutory prescription and no
    infirmity in the CAT's view can be noticed.

          The relevant portion of Rule 3 of the Seniority Rules is as follows:
c
             "3. Assignment of year allotment- (1) Every officer shall be
             assigned a year of allotment in accordance with provisions
             hereinafter contained in this rule.

D            (2) the year of allotment of an officer appointed to the service
             shall be-

             (a)

E            (b)

             (c) Where an officer is appointed to the service by promotion
             in accordance with Rule 8 of the Recruitment Rules, the year of
             allotment of the junior-most among the officers recruited to the
             Service in accordance with Rule 7 or if no such officer is available
F            the year of allotment of the junior most among the officers
             recruited to the service in accordance with Rule 4(1) of these
             Rules who officiated continuously in a senior post from a date
             earlier than the date of commencement of such officiation by the
             former."
G


             Explanation 1:- In reopect of an officer appointed to the service
             by promotion in accordance with sub-section (I) of Rule 8 of the
H            Recruitment Rules, the period of his continuous officiation in a
   M.A. KHAN v. GOVT. OF INDIA (PASAYAT, J.]                    801

senior post shall, for the purposes of determination of his seniority, A
count only from the date of the inclusion of his name in the Select
List, or from the date of his officiating appointment to such senior
post, whichever is later:


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




Explanation 3- An officer shall be deemed to have officiated in
a senior post during any period in respect of which the State D
Government concerned certify that he would have so officiated
but for his absence or leave on training.

Explanation 4- An officer appointed to the service in accordance
with sub-rule (I) of Rule 8 of the Recruitment Rules shall be E
treated as having officiated in a senior post during any period of
appointment to a non-cadre post if the State Government has
certified within three months of his appointment, to the non-cadre
post that he would have so officiated but for his appointment, for
a period not exceeding one year, and with the approval of the F
Central Government, for further period not exceeding two years,
to a ncin-cadre post under a State Government or the Central
Government in a time-scale identical to the time-scale of a senior
post:

"Senior Posts" as defined in Rule 2(g) is as follows:                 G

     "2(g) Senior post means a post included and specified under
item 1 of the cadre of each State in the Schedule to the Indian
Forest Service (Fixation of Cadre Strength) Regulations, 1966 and
includes a post included in the number of po_sts specified in items H
    802                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A           2 and 5 of the said cadre, when held on senior scale of pay, by
            an officer recruited to the service in accordance with sub-rule(!)
            of Rule 4 or Rule 7 of the Recruitment Rules".

    A perusal of the above rules would indicate that the period of continuous
B officiation in senior posts would count only from the date of inclusion in
    the Select List or from the date of officiating appointment to senior post
    whichever is later. Rules 8, 9 and I 0 of the Cadre Rules read as follows:

             "8. Cadre posts to be filled by cadre officers- Save as otherwise
             provided in these rules every cadre post shall be filled by a cadre
c            officer.

             9. Temporary appointment 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 ifthe State Government or any of its Heads
D            of Department to whom the State Government may delegate its
             powers of making appointments to cadre posts, is satisfied-

             (a) that the vacancy is not likely to last for more than three
             months; or
E
             (b) that there is no suitable cadre officer available for filling the
             vacancy:

             x           x              x              x

F            (2) Where in any State a person other than a cadre 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.

G            x           x              x              x

             (3) On receipt of a report under sub-rule (2) or otherwise, the
             Central Government may direct that the State Government shall
             terminate the appointment of such person and appoint thereto a
H            cadre officer, and where any direction is so issued, the State
            M.A. KHANv. GOVT. OF INDIA [PASAYAT, J.]                    803

        Government shall accordingly give effect thereto.                      A
        (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 B
        is available for filling the post and may in the light of the advice
        given by the Union Public Service Commission give suitable
        direction to the State Government concerned.

        I 0. Report to the Central Government of vacant cadre posts-
        Cadre posts shall not be kept vacant or held in abeyance for C
        periods exceeding six months without the approval of the Centr.al
        Government. For this purpose, the State Government shall make
        a report to the Central Government in respect of the following
        matters, namely:
                                                                               D
        (a) the reasons for the proposal;

        (b) the period for\vhich the State Government proposes to keep
        the post vacant or hold it in abeyance;
                                                                               E
        (c) the provisions, if any, made for existing incumben< of the post;
        and

        (d) whether it is proposed to make any arrangements for the
        performance of the duties of the post to be kept vacant or held        F
        in abeyance, and if so, the particulars of such arrangements".

     The effect of Rule 9 of the Cadre Rules have been considered by this
Court. Similar Rules in case of Indian Police Services were also considered.
In Syed Khalid Rizvi and Ors. v. Union of India and Ors., [1993] Supp.
3 sec 575, which related to Police Services, it was observed as follows: G

              "Due to exigencies of the service, the State Government has
        been empowered under Regulation 8 of Promotion Regulations
        read with Rule 9 of Cadre Rules to appoint select-list or non-select
        officers to man temporary vacancies in cadre posts. So long as H
    804                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A           cadre officer is available, he/she alone is to be posted to a senior
            cadre post. In his/her absence the select-list offic"er awaiting
            promotion must be appointed in the order found in the list. It must
            be the rule and deviation must be for exceptional reasons and
            circumstances. Where either the cadre officers or select-list
B           officers are not available, then only non-select-list officers may
            be promoted to temporary vacancies which should not be likely
            to last for more than three months and the State Government must
            strictly comply with the conditions specified in the provisions to
            Regulation 8(2) of Promotion Regulations and Rule 9 of Cadre
            Rules. In other words, where the vacancy/vacancies continue for
c           more than three months, the prior concurrence of the Central
            Government is mandatory. If it continues for more than six
            months prior approval of the Union Public Service Commission
            is also mandatory. Any appointment in violation thereof is not an
            appointment in accordance with the law. These appointments are
D           mere ad hoc or local arrangement or fortuitous."

         In R.R.S Chouhar. and Ors. v. Union of India and Ors., [I 995] Supp
    3 SCC I 09 the matter was considered and it was noted as follows, while
    dealing with Cadre Rules:
E
                  "These rules show that while Rule 8 requires that every cadre
            post shall be filled by a cadre officer, Rule 9 lifts the embargo
            in certain circumstances and permits a cadre post to be filled by
            a person who is not a cadre officer provided the State Government
            concerned is satisfied that either (i) the vacancy is not likely to
F           last for more than three months, or (ii) there is no suitable cadre
            officer available for filling the vacancy. In case the appointment
            is for a period exceeding three months sub-rule (2) of Rule 9
            requires that the State Government shall report forthwith to the
            Central Government the fact of such appointment together with
G           reasons for making such appointment and under sub-rule (3) of
            Rule 9 on receipt of such report the Central Government may
            direct that the State Government shall terminate.; the appointment
            of such person and appoint thereto a cadre officer and where such
            directio11 is so issued the State Government is required to give
H           effect thereto. In cases where a cadre post is likely to be filled by
            M.A. KHAN v. GOVT. OF INDIA [PASAYAT, J.]                  805

        a person who is not a cadre officer for a period exceeding six A
        months sub-rule (4) of Rule 9 further requires that the Central
        Government shall report the full facts to the Union Public Service
        Commission with reasons for holding that no suitable cadre
        officer is available for filling the post and may in the light of the
        advice given by the Union Public Service Commission give B
        suitable directions to the State Government concerned. Rule JO
        lays down that cadre post shall not be kept vacant or held in
        abeyance for period exceeding six months without the approval
        of the Central Government and the State Government is required
        to make a report to the Central Government in respect of the
        matters specified in clauses (a) to (d) of the said rule."            C

     In view of what has been stated in Syed Khalid Rizvi's case (supra)
and R.R.S. Chauhan 's case (supra), the CAT's judgment does not suffer
from any infirmity to warrant interference.
                                                                             D
     The inevitable result is dismissal of the appeal which we direct with
no order as to costs.

R.P.                                                    Appeal dismissed.