M. Amanullah Khan Vs.
Government of India & Ors  Insc 485 (25 August 2004)
Arijit Pasayat & D.M.
Dharmadhikari 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 appeal relates to OA No. 1368/1993. By the
common judgment the original 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 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 to 2.6.1991 he was Deputy Conservator of
Forests, Kundha Soil Conservation, Coonoor. From 3.6.1991 to 17.6.1991 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 'I.F.S') on 27.3.1992. All
the 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 I.F.S.
Stand of the first respondent-Union of India before the CAT and 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 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').
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.
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
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:
"3. Assignment of year allotment- (1) Every officer shall be assigned a
year of allotment in accordance with provisions hereinafter contained in this
(2) the year of allotment of an officer appointed to the service shall be-
(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 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." .............
Explanation 1:- In respect of an officer appointed to the service by
promotion in accordance with sub- section (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 Select List, or from the date of his officiating
appointment to such senior post, whichever is later:
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 arrangement.
Explanation 3- An officer shall be deemed to have officiated in a senior
post during any period in respect of which the State Government concerned
certify that he would have so officiated but for his absence or leave on
Explanation 4- An officer appointed to the service in accordance with
sub-rule (1) of Rule 8 of the Recruitment Rules shall be 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
Central Government, for further period not exceeding two years, to a non-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:
"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 posts specified in items 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 (1)
of Rule 4 or Rule 7 of the Recruitment Rules".
A perusal of the above rules would indicate that the period of continuous
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 10 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 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 if the
State Government or any of its Heads 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 (b)
that there is no suitable cadre officer available for filling the vacancy:
x x x x (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.
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 cadre officer, and where any
direction is so issued, the State Government shall accordingly give effect
(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 and may in
the light of the advice given by the Union Public Service Commission give
suitable direction to the State Government concerned.
10. Report to the Central Government of vacant cadre posts- Cadre posts
shall not be kept vacant or held in abeyance for periods exceeding six months
without the approval of the Central Government. For this purpose, the State
Government shall make a report to the Central Government in respect of the
following matters, namely:
(a)the reasons for the proposal;
(b)the period for which the State Government proposes to keep the post
vacant or hold it in abeyance;
(c)the provisions, if any, made for existing incumbent 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 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) SCC 575), which related to Police Services, it was observed
"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 cadre officer is available, he/she alone is to be
posted to a senior cadre post. In his/her absence the select-list officer
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 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 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 mere ad hoc or local
arrangement or fortuitous." In R.R.S. Chouhan and Ors. v. Union of India
and Ors. (1995 Supp(3) SCC 109) the matter was considered and it was noted as
follows, while dealing with Cadre Rules:
"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 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 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
direction is so issued the State Government is required to give effect thereto.
In cases where a cadre post is likely to be filled by a person who is not a
cadre officer for a period exceeding six 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 suitable directions to the
State Government concerned. Rule 10 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." In view of what has been stated in Syed Khalid
Rizvi's case (supra) and R.R.S. Chouhan's case (supra), the CAT's judgment does
not suffer from any infirmity to warrant interference.
The inevitable result is dismissal of the appeal which we direct with no
order as to costs.