G. B. Pattanaik, J. - (1.) 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 of Cadre Strength) Regulations (hereinafter referred to as 'Regulations') contravenes Rule 9 of the Indian Administrative Service (Recruitment) Rules, 1954, (hereinafter referred to as the 'Recruitment Rules'). The appellants in all these appeals are the promotees to the cadre of Indian Administrative Service who had been recruited by way of direct recruitment to the post of Deputy Collectors in the State Service. Respondents Nos. 1 to 4 in Civil Appeal No. 6525 of 1994 are the direct recruits to the Indian Administrative Service. These respondents-direct recruit IAS officers had filed OA No. 118 of 1994, challenging the Notifications of the Government of India dated 15-12-1993 and 16-12-1993, as already stated. Another direct recruit IAS officer had filed OA No. 542 of 1994 and yet another direct recruit IAS officer had filed OA 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 the year of allotment in the cadre of Indian Administrative Service between the direct recruits and the promotees but the said dispute arises because of several earlier orders passed by the Tribunals and the two 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.
(2.) 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 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. 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 belonging to the State Civil Service must complete 8 years of service on 1st 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 was not eligible for being considered for promotion in the year 1987 as he could not complete 8 years by 1-1-1987. 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 offices which were registered as RP No. 7311 of 1987 and R. P. No. 7194 of 1987. In case of Umamalleswar 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 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 w.e.f. 16-12-1988. The 13th man in the Select List was not promoted as certain enquiry against him was pending. The 14th man, one Shri Ram Chandra 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 India stood dismissed. He was, therefore, appointed to the Indian Administrative Service w.e.f. 16-12-1988 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 8-4-1982 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 IAS of 1987 on 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. The appellants, therefore, made a Representation to the government to review 1987 Select List for the IAS. Since no orders were passed on the representations, two Petitions were filed before theTribunal 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 the case of all those who 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 IAS 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 reconsideration of the case of the appellants along with other similarly situated officers, 14 of them were included in the Revised Select 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 the members of the original Select List. Under such circumstances the State Government thought it appropriate to create supernumeracy post in the IAS to accommodate 14 officers who were brought into the Select List of 1987 on reconsideration. The State Government sent the necessary proposal to the Central Government and at that stage some of the direct recruited officers of the IAS filed application before the 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 the IAS is without jurisdiction. That application was disposed of with the direction to the State Government to consider and dispose of Representations filed by the direct recruits in accordance with law. The 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 Andhra Pradesh and 14 supernumerary posts were created. The Government of India further issued a Notification on 16-12-1993, appointing the 14 persons of the State Civil Services to the Indian Administrative 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 the Central Government before the Tribunal and Contempt Petition also have been filed by the present appellants before the Tribunal but all those petitions were disposed of by the Tribunal on a finding that the directions of the Tribunal have been duly complied with and the earlier order of the Tribunal does not contain any error on the face of the order requiring to be reviewed. The direct recruit IAS officers being aggrieved by the Notifications of the Government of India dated 15-12-1993 and 16-12-1993, approached the Central Administrative Tribunal and the said Tribunal by the impugned order dated 26th August, 1994, having allowed the same and having quashed the Notifications, the present appeals have been preferred.
(3.) Mr. Salve the learned senior counsel appearing for the appellants contended that the Notification dated 15-12-1993 though purports to be an amendment to the Regulation but the same having been issued in exercise of powers conferred under sub-section (1) of S. 3 of the All India Services 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 the Recruitment Rules. The learned counsel further contended the Recruitment 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 both the rules and at any rate if both the rules cannot be allowed to operate on a harmonious construction then the later rule being made for a specified purpose must prevail. Mr. Salve, the learned senior counsel further argued that by Notification dated 15-12-1993 the cadre strength of Andhra Pradesh has been increased by 12 to accommodate the State Civil Service Officers who were illegally kept out of consideration while preparing the select list of the year 1987 to implement the orders of the Tribunal in their favour and by such increase of cadre strength for a limited period there has been no contravention of R. 9 of the Recruitment Rules, and therefore, the impugned judgment of the Central Administrative Tribunal is erroneous. Mr. Bobde, the learned senior counsel 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 R. 9 of the Recruitment Rules the embargo is against recruitment, and therefore, it prohibits appointment by promotion to the IAS in any State under R. 8, exceeding 33 1/3 per cent of the number of posts shown against iterms 1 and 2 of the Regulations. But the Notification dated 15-12-1993 merely creates 12 posts for periods specified therein by increasing the authorised strength of the cadre and as such it does not contravene R. 9 of the Recruitment Rules. Mr. Reddy the learned Additional Solicitor General, appearing for the Union of India contended with force that special situation having arisen on account of directions given by the Central Administrative Tribunal and against the said directions the Union having come to this Court and special leave petition having been rejected, to implement the directions of the Tribunal the Union Government had no other alternative than to increase the cadre strength to accommodate the promotee officers in the IAS and in such special situation the Central Government has exercised powers under S. 3(1) of the Act itself, and therefore, the Notification issued in exercise of such power could not have been struck down by the Tribunal.;