D.S. Tewatia, J. - (1.) WHETHER Clause (iii) of regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as the 'Administrative Regulations') is mandatory or directory in character and whether all the members of the Union Public Service Commission (hereinafter referred to as the, 'Commission') in a meeting have to consider and approve the Select List, in terms of regulation 7, prepared by the Selection Committee in terms of regulation 5 of the Administrative Regulations are the significant questions that are projected for determination in this writ petition at the instance of the three Petitioners who, at the relevant time, were substantive members of the Haryana Civil Service (Executive), as were Respondents 5 to 8.
(2.) THE Petitioners' claim, which is not in dispute, is that they were senior to Respondents 5 to 8 in the Service. It is alleged that in accordance with the provisions of the Administrative Regulations, which would be presently noticed, the Selection Committee) while formulating the list under regulation 5 for the year 1977 classified the Petitioners as 'very good'. The Commission approved the list in regard to the Petitioners and their names were put on the Select List in preference to the names of Respondents 5 to 8 whose claim for inclusion in the Select List in comparison to the Petitioners was not found preferable.. Since the Select List so finalised remains in force till it is reviewed or revised and has to be reviewed and revised every year, the list prepared in the year 1977 came under review of the Selection Committee which met on December 11, 1978. The said Committee considered the claims of the Petitioners, as also Respondents 5 to 8, alongwith other eligible candidates. This Committee selected Respondents 5 to 8 in preference to the Petitioners, though between the time that the previous year's ;Select List was finalised by the Commission and the meeting of the Selection Committee which took up review of the Select List for the year 1978 on December 11, 1978, the Petitioners earned 'very good' reports for the year 1977 -78 and their performance had not deteriorated in any manner whatsoever, while Respondents 5 to 8 had not improved their previous position in any extraordinary manner as to warrant their preference over the Petitioners for inclusion in the impugned Select List prepared by the Selection Committee. The State Government in its comments contained in the letter dated 1st August, 1979 that it had forwarded to the Commission, in terms of Clause (iv) of regulation 6, observed that there were no valid grounds for the Selection Committee for superseding the Petitioners and urged the Commission not to approve the action of the said Committee. Despite the said comments of the State Government, it is lastly urged, the Select List prepared by the Selection Committee was considered and approved on behalf of the Commission only by two members thereof, out of whom one was a member of the Selection Committee itself, with the result that virtually only one member of the Commission did what, under regulation 7, the entire Commission as a body was required to do. Before attempting to consider the contentions advanced from both sides, it is necessary to take note of what led to the framing of the Administrative Regulations and also for facility of reference, to take notice of the relevant provisions of the Administrative Regulations. The members of the Provincial Service are eligible for appointment to the Indian Administrative Service (hereinafter referred to as 'Service'), recruitment to which is governed by the rules called Indian Administrative Service (Recruitment) Rules, 1954 (hereinafter referred to as the Rules). Rule 4 inter alia provides that recruitment to 'Service' shall be made by "Promotion of substantive members of a State Civil Service". Rule 8 provides that the Central Government may, on the recommendation of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Government and the Commission from time to time make, recruit to the 'Service' persons by promotion from amongst the substantive members of a State Service.
(3.) IN pursuance to the provisions of Rule 8, Regulations called the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were promulgated. Regulation 2 (1) (c) defines the 'Commission' to be the "Union Public Service Commission'. Relevant provisions of regulation 3, which deals with the constitution of the Committee is in the following terms: 3. (1) There shall be constituted for a State cadre or a Joint cadre specified in column 2 of Schedule, a Committee consisting of the Chairman of the Commission or where the Chairman is unable to attend, any other members of the Commission representing it and other members specified in the corresponding entry of column 3 of the said Schedule: Provided that - - (i) no member of the Committee other than the Chairman or the member of the Commission shall be a person who is not a member of the Service; (ii) the Central Government may after consultation with the State Government concerned, amend the schedule. (2) The Chairman or the member of the Commission shall preside at all meetings of the Committee at which he is present. (3) The absence of a member, other than the Chairman or member of the Commission, shall not invalidate the proceedings of the Committee if more than half the members of the Committee had attended its meetings. * * * * * * Regulation 5, which deals with the preparation of the list of suitable officers has been subject to frequent amendments and since the unamended provisions have a bearing upon the contention advanced on behalf of the Petitioners and the Respondents, so the relevant portion thereof both before amendment and after amendment shall require notice. Before the amendment, regulation 5 was in the following terms: (5) (1) Each Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months, commencing from the date of preparation of the list, in the posts available for them under Rule 9 of the Recruitment Rules, or 10 per cent of the Senior posts shown against items 1 and 2 of the cadre schedule of each State or group of States, whichever is greater. (2) The Committee shall consider, for inclusion in the said list, the cases of members of State Civil Service in order of seniority in the State Civil Service upto a number not less than five times the number referred to in sub -regulation (1): Provided that, in computing the number for inclusion in the field of consideration, the number of officers referred to in sub -regulation (3) shall be excluded: Provided further that a Committee shall not consider the case of a member of the State Civil Service unless, on the first day of the January of the year in which it meets, he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in a post of Deputy Collector or any other post or posts declared equivalent thereto by the Government. (3) The Committee shall not ordinarily consider the cases of the members of the State Civil Service who have attained the age of 52 years on the first day of January of the year in which it meets. Provided that a member of the State Civil Service whose name appears in the select list in force immediately before the date of the meeting of the Committee shall be considered for inclusion in the fresh list, to be prepared by the Committee even if he has in the meanwhile attained the age of 52 years. (4) The Selection for inclusion in such list shall be based on merit and suitability in all respects: Provided that where the merits of two or more officers are found to be equal, seniority shall be taken into account.;