# PARVEZ QADIR v. UNION OF INDIA & ORS

- **Citation:** [1975] 2 S.C.R. 432
- **Court:** Supreme Court of India
- **Decided:** 1975
- **Bench:** P.JA:i.~'I·D :t.\'1 R!!O:>'(, P.N. Biiaowati An'O P. K. G03Wami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/parvez-qadir-v-union-of-india-ors-6322
- **Pages:** 17

## Headnote

All rnJia s~nlc!1 .4ct, 1951-rniian PortJI Service (Cadre) Ruru 1966--Tndian
1'3m 1 Sv,ict (R 1~uit-n!nl) R·~ltr 1965-R ·~It 4(1>-Conru/t~tlon with U.P.S.C.
w'••th•r ultra •lrlr-'::on/iitntial roll!-Whtthtr could be coriJidued for adjudglf1$
1uiia~Uity of a ca'liid:Jtt for a hlghu poJt- Rwler and Ttl/Illations lnttrchangtabic
worth.
By in::orp,ratiog s. Z.A in th' A\1 India. S:rvicC~ A~. 1961 the Iaiia~ Forc' t
Service was constituted as an All lndta S!rvtce. Th' G:>vernm ~ot of Iod~a m1do
the Indian Fore~t Service (Cadre) Rules, 1966 and th' Indtan F.orc>t S:rvtco (f!.e•
cruitment) Rules, 1966. By Rule 3 ot th' Cadre Rules the Ind1an Forest S!mco
was constituted for each State and was referred to as tho State cadre. After. th'
comme~ment of the Recruitment Rules the Central Government was e:~jotnei
IIDder Rule 4{1) of tho Recruitment Rules to re:ruit to th' service any p!rson fr?rn
among1t the members of State Forest S:cv.ice adjudged suitable In ac~ordan.:e wllb
auch reaulatlons as the Central Government m1y m:11te in coo1ultntion with. tho
State GovctDment and the Union Public Service Commission. The Indian Forest
Service (F'~Aation or Cadre Strensth) Regulatiotn, 1966 came into Co reo with. effect
from Octobec I, 1966 and the Indian Por4't Service {Initial Recruitm~o t) R~sula.
tions, 1966 came Into ron:o on July I, 1966. ReJul.tuon 4 or tho Initial R~r~ it·
ment Regulations deals with conditions or elisibiluy for ro;rultm3nt to tho scrvtc&
while resilhtion S deals with preplration or li:>U of •uit.ablo om:eu. In accordance
with ttnr~ rul!\ ani re1~htb~• th~ initial ClDitituti:ln or l b: s~rvico a nd recruit.
ment thereto was made in July 1967 but this w.u im"D::diately ch~Jie:tg~. la A.
X. Kralpak & Ort. ttt. v. Union of India Qlld Ors. this Court muck dowa ttlo ooti•
ficatioo and the selo=;tions mlde w:re set asid~
In a p:titioa \IDdcr artidc 32 or th' Co:ntitutio:~ th3 p:titiO:I!C QU3lUO:I:i tht
delesatioo under rule 4(1) 10 m1lcc rellJlatio:H which th: A:t d iJ o :>t auth')r\s3 •
He contended (I) th!lt the initial ro:ruitm~t must b3 ml:ic only Cram :~m>:t&1t those
memben who ue in State Fortlt Service on th' d.1tc wh:u the aclectioa w;u ~~etually
mado and Dot on tho ~to or initial colUtltution of the cadre; (2) tb.tt ev"o if tho
ael~>;tiooa were to be mldo from emoo~ tho p:noos who w:ro m:m!>:rs of tho
State Por~ Service as on tb' d>;te of tho initial re;:ruitnpnt caaiU;ntM roUs or those
peroons which have to be conSidered sboul:1 b' tho so wtlich hm vo bo.u wrlttea up
to the time_wben selection.• were 1.'1 ra:t m1~; (3) thl t th' adjudsm:lllt or suitability
oo the b~• o! conOdentt&l entms and o~bec rccoci is ~trbitracy and coasequeotly
re&Uiatioa S """ invalid.
A
B
c
D
E
F
01 b:!nlJ of th: State It w11 C):lte:t:l~ th'lt th3 rulo1 alii re1u1at1oo.s ahniJ
bt red at integrated rules reilr.iio& re:ruitmP: uli~r s. 3 0 ~ till A. :t.
'
Dilmlilioa the petition.
HeLD:. There iJ no juuiR~uo11 lor the ap;>ll::...tlo:t ot artlclc1 1-4 aa;l 16 or
tb: C>:asWUIWQ to tho f•~t.s aoi cit.;.~:aua~:3J or tlllt CliO.
(4 n BJ
G
. (l) Th: ~1teotiun h u~~·nb:• &'I! m lit b, r:)l;to1.
R 11lo 4(1) of th' Re·
c:r~ttro:1t ll•!ks Cl11~t b, red w •. tln:lt talo 3(1) blt m l <t bl r~d tOJ>th!r anl tilt
J>:>U311 w':u W;t6. ell"tblo to r=:r~l~ ,,, w:ro t!tll' " 'I) 0'1 tin d Lte o r tt'll C)'lltl·
IU\10''1 or II'.', tcrvt:.. Wlr6r n>:u'>>rl o! ell) S:ue P..t~Olt Suvi; ) lllJ w'n c:n f->r•nl-1
to thHnl.unl or ell&•b:loty lot O'Ji h r:ph!in 4.
R·ll' ~ ( Z) or til) Rl::llitrn::tt
Rulo~ !urtb:t ml1: It cldlr IIlli art or t'u r J; · ait<nl11 u'll ,.. u ':l-ral, (I) sub1,~ u :lt
tCJrllllllunt t., tlu Ssrvl~ h&1 t'> !>~b" a d,rrs:n: rn•t'nl w'\1·'1 wu p -~ 1 -cib;.i
u~J.>r cJ•·ne. (~), (u) ani {b) of th\t &;,!,~ale. (HJ D·I!J
•
· •
H
. Ttu,renn WI'/ O lt:>'>ll' I, .H~S wu tl'B'l &l tin d ~~~ f..t: th> Ia I tiii c>ll 11.
UIL.>l o, J.lu hi,.t fl..tr~tt S:N1;• n t~&t b';&'Jlt u11': ralt 3(4) ot II\) R':r.a it-
A
B
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P.UV!Z QA.DII y. VNION (Jaganmohan Rtddy

## Text

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432
PARVEZ QADIR
v.
UNION OF INDIA & ORS.
OctDber 16, 1974
[P.JA:i.~'I·D :t.\'1 R!!O:>'(, P.N. BIIAOWATI AN'O P. K. G03WAMI, JJ.}
All rnJia s~nlc!1 .4ct, 1951-rniian PortJI Service (Cadre) Ruru 1966--Tndian
1'3m 1 Sv,ict (R 1~uit-n!nl) R·~ltr 1965-R ·~It 4(1>-Conru/t~tlon with U.P.S.C.
w'••th•r ultra •lrlr-'::on/iitntial roll!-Whtthtr could be coriJidued for adjudglf1$
1uiia~Uity of a ca'liid:Jtt for a hlghu poJt- Rwler and Ttl/Illations lnttrchangtabic
worth.
By in::orp,ratiog s. Z.A in th' A\1 India. S:rvicC~ A~. 1961 the Iaiia~ Forc' t
Service was constituted as an All lndta S!rvtce. Th' G:>vernm ~ot of Iod~a m1do
the Indian Fore~t Service (Cadre) Rules, 1966 and th' Indtan F.orc>t S:rvtco (f!.e•
cruitment) Rules, 1966. By Rule 3 ot th' Cadre Rules the Ind1an Forest S!mco
was constituted for each State and was referred to as tho State cadre. After. th'
comme~ment of the Recruitment Rules the Central Government was e:~jotnei
IIDder Rule 4{1) of tho Recruitment Rules to re:ruit to th' service any p!rson fr?rn
among1t the members of State Forest S:cv.ice adjudged suitable In ac~ordan.:e wllb
auch reaulatlons as the Central Government m1y m:11te in coo1ultntion with. tho
State GovctDment and the Union Public Service Commission. The Indian Forest
Service (F'~Aation or Cadre Strensth) Regulatiotn, 1966 came into Co reo with. effect
from Octobec I, 1966 and the Indian Por4't Service {Initial Recruitm~o t) R~sula.
tions, 1966 came Into ron:o on July I, 1966. ReJul.tuon 4 or tho Initial R~r~ it·
ment Regulations deals with conditions or elisibiluy for ro;rultm3nt to tho scrvtc&
while resilhtion S deals with preplration or li:>U of •uit.ablo om:eu. In accordance
with ttnr~ rul!\ ani re1~htb~• th~ initial ClDitituti:ln or l b: s~rvico a nd recruit.
ment thereto was made in July 1967 but this w.u im"D::diately ch~Jie:tg~. la A.
X. Kralpak & Ort. ttt. v. Union of India Qlld Ors. this Court muck dowa ttlo ooti•
ficatioo and the selo=;tions mlde w:re set asid~
In a p:titioa \IDdcr artidc 32 or th' Co:ntitutio:~ th3 p:titiO:I!C QU3lUO:I:i tht
delesatioo under rule 4(1) 10 m1lcc rellJlatio:H which th: A:t d iJ o :>t auth')r\s3 •
He contended (I) th!lt the initial ro:ruitm~t must b3 ml:ic only Cram :~m>:t&1t those
memben who ue in State Fortlt Service on th' d.1tc wh:u the aclectioa w;u ~~etually
mado and Dot on tho ~to or initial colUtltution of the cadre; (2) tb.tt ev"o if tho
ael~>;tiooa were to be mldo from emoo~ tho p:noos who w:ro m:m!>:rs of tho
State Por~ Service as on tb' d>;te of tho initial re;:ruitnpnt caaiU;ntM roUs or those
peroons which have to be conSidered sboul:1 b' tho so wtlich hm vo bo.u wrlttea up
to the time_wben selection.• were 1.'1 ra:t m1~; (3) thl t th' adjudsm:lllt or suitability
oo the b~• o! conOdentt&l entms and o~bec rccoci is ~trbitracy and coasequeotly
re&Uiatioa S """ invalid.
A
B
c
D
E
F
01 b:!nlJ of th: State It w11 C):lte:t:l~ th'lt th3 rulo1 alii re1u1at1oo.s ahniJ
bt red at integrated rules reilr.iio& re:ruitmP: uli~r s. 3 0 ~ till A. :t.
'
Dilmlilioa the petition.
HeLD:. There iJ no juuiR~uo11 lor the ap;>ll::...tlo:t ot artlclc1 1-4 aa;l 16 or
tb: C>:asWUIWQ to tho f•~t.s aoi cit.;.~:aua~:3J or tlllt CliO.
(4 n BJ
G
. (l) Th: ~1teotiun h u~~·nb:• &'I! m lit b, r:)l;to1.
R 11lo 4(1) of th' Re·
c:r~ttro:1t ll•!ks Cl11~t b, red w •. tln:lt talo 3(1) blt m l <t bl r~d tOJ>th!r anl tilt
J>:>U311 w':u W;t6. ell"tblo to r=:r~l~ ,,, w:ro t!tll' " 'I) 0'1 tin d Lte o r tt'll C)'lltl·
IU\10''1 or II'.', tcrvt:.. Wlr6r n>:u'>>rl o! ell) S:ue P..t~Olt Suvi; ) lllJ w'n c:n f->r•nl-1
to thHnl.unl or ell&•b:loty lot O'Ji h r:ph!in 4.
R·ll' ~ ( Z) or til) Rl::llitrn::tt
Rulo~ !urtb:t ml1: It cldlr IIlli art or t'u r J; · ait<nl11 u'll ,.. u ':l-ral, (I) sub1,~ u :lt
tCJrllllllunt t., tlu Ssrvl~ h&1 t'> !>~b" a d,rrs:n: rn•t'nl w'\1·'1 wu p -~ 1 -cib;.i
u~J.>r cJ•·ne. (~), (u) ani {b) of th\t &;,!,~ale. (HJ D·I!J
•
· •
H
. Ttu,renn WI'/ O lt:>'>ll' I, .H~S wu tl'B'l &l tin d ~~~ f..t: th> Ia I tiii c>ll 11.
UIL.>l o, J.lu hi,.t fl..tr~tt S:N1;• n t~&t b';&'Jlt u11': ralt 3(4) ot II\) R':r.a it-
A
B
c
D
P.UV!Z QA.DII y. VNION (Jaganmohan Rtddy, /.)
.j33
ment Rules recruitment was to be made at tho Initial coMtitution of the service.
Under r~ulation 6 of the initial recruitment Regulations the appointments have to
be made in the State cadres and sinoo the strength or tho cadre in each State
was only fixed by the Fixation of cadre Strength Regulation~ which came into force·
with effect from October 1, 1966, the initial constitution of the Indian Forest Service
was as from October 1, 1966. In other words the persons who were to be appointed
under regulations 6 of the Initial Recruitment Regulations were from those officers
of the State Forest Service who, on the date of the cOnstitution ot tho Service namely,
October 1, 1966 were eligible for being selected. [442·C·D]
If instead of considering·the Persons eligible as on tho date of the constitution
of the Service on October 1.1966, Persons who on the date of their selection wer•
in the State Forest Service alone have to be considered, then, there may be many
people who, though not in ~ervice on the date of the constitution of service, will
become eligible for being considered •. The object of the initial recruitment to the
Indian Forest Service from amongst those persons in se:vico who on tho date of the
conwtution of the service were members of the State Forest Service was to give
advantage of a higher sevice to the members of the State Forest Service not only
in respect of status but in respect of pay, pension, retirement, age and other servict
benefits which were not available to those under the conditions of service appli·
table to the State Forest Service. (442 G·H; 443.B]
It could not be the purpose of the rules and regulationt that initial recruitment
not having taken place till after Kraipak's cast was decided any subsequent recruitment to the service under sub-rule (2) of rule 4 could not take place. [443 F]
(2) There could be no justification to holJ that suitability of a person has to
be adjudged by reference to the confidentials writtcon up after the initial constitution
of the Service on October 1. 1966. If persons who we1'C to be considertd for initial
recruitment were those who belonged to the service on the date or initial recruitment then the confidentials to be considered were onlY those pertaining to a period
of prior to that date, U this were not so there would be discriminati.on because
while the suitability of those in service on the date of initial recruitment had to be
considered as on the date of the actual selection, the suitability of those who were
E . dead or retired could not be considered by reference to the con6dentials of tbt lator
.
period, [444 D; B·CJ
G
Th~ selection of persons to be appointed to the service as on the date of the
initial constitution of the Service would be from amongst those who were then
members of the State Forest Service notwithstanding tho fact that due to litiaation
that selection was long delayed. [ 444 H)
·
. . (3)" The adjudg:n:nt of suit'\bility of offi::ers for selection had to be made
according to some norms. In order to achieve this end various methods can be
adopted. It is not for thb Court to lay down which of the m'tbods had to be
adopttd for adjudging suitability as long as th' normt ·which h1d been adopted
were correlated and relevant to the adjudgment of suitability of th' offi~rs to bs
.recruited to the Service. Past p~ormaoce of an offi::er beina one of the criteria for
making selection the only way to adjudge their ~uitability wls by Pmnal of coni·
dcntial records. [445 D; F; 446AT
Often enough, the entries in confidential re;:jrds are th:m~elv~~ an in,ignia of
· the capacity and capability oft he maker as a supJrior o:Ji:er a> w~\1 a, a c:>mn:ntary
on the quality of the officer against whom that c'>nfidrotial remark is being made.
Jt is not correct to say that the method of selectio:l based on p1~t p~rrormaoce as
disclosed by the. confidential re;;;ords was not the pro;>:r m'tho:l Cor adjudgins suitability of the officer concerned.
[ 446 D; E]
R.L. Butailv. Union of India & Drs. [1911] 2S.C.R. SS, referred to.
1i
The criteria laid down in the rules and regulations on the question of suitability
provide sufficient indication as to the norms applicable for adjudgina suitability,
namely, the past performance of the officer as could be aleaned from the confidential
aDd other records if they exist in respect of that officer. [4n DJ
St!PltEMI! caiJRr ·REPORTS
{1975]2.s.c.R.
'rhough the regulations may not be called rule~ and they are purported. to ~
made unaet rule 4(1) of the Recruitment Rules, in effect they were made under tho
power· conferred by s. 3 of the Act which uses the words 'regulations' and 'rules'
as interehartgeable words. "Rules" have been defined in s. 3(51) of the General
Clauses Act to include 're$ulations'. Both the rules and regulations were made
by the same authority namely, the Central Government. They have also been placed
before the Parliapient under sub-section (2) of s. 3 of the Act thus fulfilling the condi·
tions for the enforcement prescribed therein. [441 E-F]
.
The State of Uttar Pradesh-and Ors. v. Babu Ram Upadhya, [19611 2 S.C. R.
679 and Kai1ash Nath and Anr. v. State of U, P., A. I. R. 1957 S. C. 190 referred
to.
No question of delegation in rule 4 arises nor can the regulation be said to have
been made in erces~ of the powers conferred by s. 3 of the Act. The provision for
consultation with the Public Service Q>mtnission contained in rule 4(1) of the
Recruitment Rules is not beyond the power of the rule making authority in as much
as that provision complies with the constitutional requirement for consultation
with the Public Service Commission. [441 H & G)
Arguments for the Petitioner :
The adjudgment of suitability made solely on tho basis of confidential reports
in the circumstances of this case had failed.to afford equality of opportunity. The
sole basis of adjudging suitability had been the confidential reports which had not
been communicated to the officers concerned at the appropriate time as contemplated by the rules and, therefore, were irregular. defective and failed to afford opportunity to improve. The confidential reports are mere expressions and do not telate
to particular incidents but ad judgment of suitability based on mere expressions could
not be said to be the objective material. The rules did not lay down any criteria for
adjudging the suitability. A proper selection. presupposes that the criteria of
selection were known before hand and were unifonn. The absence of any such'
criteria renders rule 4 and regulation S arbitrary and violative of article 14 of the
Constitution. Rules refer to the date of the constitution of service, namely, 1st July,
1966 for a limited purpose. The purpose of the rule cannot be extended. If the
recruitment to the service must be clearly on the
basi~ of adjudging of the
. suitability for appointment as on the date of selection, then the qualifications
and disqualifications must be as on that date. Whenever the selections were held, ·
there was no reason to exclude the period between lst July, 1966 and the date
of actual selection for considering the merit of the candidate.
Arguments for the Respondent :
A
B
c
D
E
lhe expression 'rule' includes 'regulation' made under an Act by virtue of
F
s. 3(51) of the General Oauses Act Rules and regulations from one set of integrated rules re~arding recruitment under s. 3 of the Act. There was no que.~tion of
delegation in rule 4. Unda regulation 4 the eligibility is "as on the date of the
constilution of the service." Under rule 4(1) of the
Recruitment Rules the
recruitment at the initial cc•nstitution had to be made as soon as possible after lst
July, 1966 when the recruitment regulations came into force. Appointments to State
cadres had to be made with effect frOm 1st October, 1966 when tbe fixation of cadre
strensth regulations were made. The adjudgment of suitability on the basis of
service record is not only a perfectly good test for the adjudameflt of suitability for
G
appointments in a service but is a perfectly good test for adjud~nt of suitability
of State officers for recruitment to Indian Forest Service at its tnitial constitution.
For initial recuitment of the Indian Forest Service from among State Forest Servi~
Ofticers who have put in a number of years of service in the State Forest Service
to make them eligible for recruitment at the initial constitution of the Indian Forest
Service under regulation 4, service recot<L~ <>f these officers regarding the work: which
they have already done throughout t~ vears would be the only correct method
of test for adjudging the suitability for recruitment to the Indian Forest Service at
its initial constitution. Past performance is an established procedure for recruitR ·
mes:~t. Under regulation 4 the initial recruitment is to be made from the oftioers
or tho exiStina State Forest Service. Even if there was DO guide-line n:prdina
IUitability laid dOWD iA ~on
it foUows that the suitability Olf officers would
A
B
PAlt.VU QAOm v. UNION (Jaganmohon Rtddy, !.)
~35
have to be adjudged by tbelt past performance which could be found only from
their aen'icc record. Regulation S(2)(a) and (b) clearly indicate that the service
record5 would form tho basis of suitability of the existing oftl:er5 of the State Forest
Scrvico for rea:Wtmeat to Indian Fore5t Service at iLS initial constitution. Tbe
procedure adopted by the Special Selection Board Wlder regulation S was to select
ofllcus on merit only as reflected in tho overall assessment of the service records or
tbo Stato Forest Officers.
·
ORIGINAL JURISD:CTION : Writ Petition No. 629 of 1970.
Petition Under Article 32 of the Constitution of India.
B. R. L. Iyanger and R. L. Kohli for tho petitioner.
Niren De, Attorney General of India, G. L: Sanglai and R. N.
Sachthey, fo·r respondent No. 1
C
Niren De. Attontty General of India, R. N. Sachtl1ey and Sumitta
D
E
F
G
Chukravartj, for respoDd~nt No. 2.
E.C. Aggc.rwa!a and AvinasiJ Kl.rk!lanis, for respondent No. 19
Tara Chand Sharma and Uma Datta for the Intervener.
The Judgment of the Court was delivered by
JAGANMOBAN Rsoov. J.-This petition is tho second round in the
challenge of the initial recruitment to tho Indian Forest Service from
amongst tho gazetted officers of the Forest Service of each State.
By section 2 ot the All India Services Act LXI of 1961-hereinafter
called 'tho Act'; tho Indian Administrative Service and the Indian
Police Service, which were constituted before the Act, were recognised.
as All-India Ser~ces. Sut>sequently by the All India Services (Amendment) Act, 1963, enacted, on September. 6, 1963, section 2-A was
a<1ded providing for constitution of three other All India Services of
which the Indian Forest Service was one. Section 3 of the Act dealt
with the resulation of recruitment aud condition& of service. It provicfed:
"(l) The Central Government may, after consultation
with tho. Governments of the States concerned including the
State of Jammu and Kashmir, mako rules for tho regulation of
recruitment, and the conditions cf service of person& appointed,
to an All-India Servico.
(2) All rules made under. this section shall be laid for not
less than fourteen days before Parliament as soon as possible
after they arc made, and shall be subject to such modifications,
whether by way of repeal or amendment, as Parliament may
make on a motion made during the session in which they arc
'0 laid."
Section 4 of the Act dealt with continuance of existing rules which
prior to the Act were applicable to an All-India Sctvice and those
rulea ~o i1oemo4 to bo rules made under the Act.
H
In ordor to constitute and bring into being tho All-India Forest
Service the ~tral Government issued a notification dated Jul}' 1.
13-l.SS Sup Cl/15
, I
' '
'.
•·
r 'I
!
,j
.!
.38
SUPRl!MI! COURT REPORTS
[1975] 2 s.c.J..
966 under section 2-A of the Aet and i!f!mcdiately th~roafter in IIllerA
~so of tho powors conferred by sulr~ectiOn· (1) of l.l:.tt1on 3 of tho Act
m.do oortain Rules, namely the I~?Jhan ~dest ~iVl~ <;d~c) IRnd~s,
1966-heroinaftor referred to as t c
li'(l
~ C$ · a
c
1an
p rest s~rvico (Recruitment) Rules, 196Q,-,-heremaftor. referred to ~
.. fhc Re~uitmont Rul.:s". By rule 3 of the Cadre- Rul,es the Indian
Forest Service Cadre was constituted for each State or group of States
and the cadro so coD$titutcd was to b~ referred as a "State Cadre".
B
or as tho case may a "Joint Cadre". Tho strength and composition
or'oach of tho cadro; wa$ dealt with by rule 4 of tbe 'Cadre Rules under
whic'l the $trongth and composition of each of the cadres constituted
under rule 3 was to be determined by regulations made ~y the Central
Government in consultation with the State Government tn that behalf.
Sub-rule (2) of rule 4 of the Cadre Rules furth~ provided that ~
Central Government shall at. the interval of every three years, re.
C
examine the strength and 'composition of each such cadre in conaultation with the State Government concerned and may make such
alterations tl'erein as it deems fit. There are also two provisos to the
nlc by and under which the Central Ggvornment had the power
to altor the strength and composition of any cadre at any other time
and similarly the State Governmcsnt was .also .e.mpo.wered to ajd for
&. period not exceed ina one year, and with the approval of the Central
D
Government for a. further period not exceeding Jwo years, to a State
or Joint Cadro OllC or more posts carrying duties or responsibilities
of a like nature to cadre posts. Rule S provided for the allocation
or members. to various cadres by the Central Government in consulta·
tion with the State Go,-ernment concerned. It also empowered ~
Central Government, with the concurrence of the State Government
concerned, to transfer a cadre offioor from one cadre to another
E
cadre. In exercise of the powers conferred by sulrrule (1) of rule
4 . of the . Cadre Rules, the Central ·Government, in · consultation
With the State Government, framed the Indian Forest Service
(FrxntJOn o~ ~re Strength) Regulations, 1966, fudng the strettgth
and compost lion of the cadres of the Indian Forest Service in each
or tht Slates. as specified in the Schedule annexed thereto, with
effect from October I, 1966. It also made
in exercise of the
F
powers conferred by sub-rulo {1) or rule 4 of the Recruitment
~~· .after ~ultati?n .with the
State
Governments
and
t..., .Uruon ~btic Service Commission, the Indian For:est Service
(htltial RccrUJtment) Regulations 1966 which came into force with
~t from Jwy 1. 1966.
'
•
h may bo mentioned thnt under sulrrulc {l) of rule 4 of the Recruit·
.,.. Rule~ tho Central Gove-rnment was enjoined,. as aoon as may
bo after the tommeoccmont of the Rules to m:ruit to the Service any
G
!:'.;bf;ri~~~t tho ~embers of tJle Stato .Forest Service adjudged
innrt may mabTon~ .Wl.tjl. ~nch rejllllationa- as the Contra) Go~rn·
Commi!~ioo Jro!IC:,~uJtatt~ln with the Sta~e .Governsncot• and tJ:te
~
(!. . ,
at ·no member holdtog a J>Oil rcrcned to 111
H
·
t lo(J· 1· • 04 d~U,Ue. ~) Qf nUc. 2 -a.nd so recrvited $hall at tho
~f) efT~
\:le aJlo~~ tO aqy . .S~~tO C~te otllet than. the
on
tttrttory.
Sub-rule
(2)
of
rulo
4
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PAR.VEZ QADIR v. UNION (/OCQ111110hall Reddy, / .)
437
of the Recruitment Rules deals with the subsequent recruitment and
prescribes the 9i~erent methods of recruitment under clause (a), (aa)
;~nd ~b) of the said sub-rule. We are not concernc;.d with sub-rule (2)
or w1th other sub-rules. of rule 4 and consequently these may be ignored.
Rule. 5 of the Recru1tme~t Rules deals with disqualifications for
appom~ment, such as for mstance-(J) a person who is not a citizen
of In~Ja or ~oes not · b~Iong to such categories of persons as may,
from time to time, be not1fied in that behalf by the Central Government;
(~).a perso~ wh.o has more t~an o~e wife living or who having a spouse
llvmg marnes m any case m which such marriage is void by reason
of it~ taking place during the life-time of such spouse; (3) or a
marned. wo~~n; (4) or a wo.man who is married to any person who
has a Wife !JVJng,-were cons1dercd to be not eligible for appointment
to the service, subject however to the power of the Central Government
to cxemp! t~em from the operation of either sub-rule (2) or sub-rule
(4) when 1t 1s sat1sfied that there are special grounds for doing so.
Under regulation 2 of the Indian Forest Service (lniti~l Recruitment)
Regulations, I 966-hereinafter called "the Initial Recrui~ment Regu~a
tions'', the Central Government was empowered to constitute~ ~pec1al
Selection Board consisting of the Chairman of the Commisston o.r
his nominee, certain officers of the State specified in sub-clauses (1)
to (iv) of clause (a), for selection to the State Cadres, and cert~1n
officers mentioned in sub-clauses (i) to (iv) of clause (b) r~r selecti~ll
to the Cadre of Union Territories. Regulation 4 of the lmtJal Re7ruit·
ment Regulations deals with conditions of eligibility, r~gulatJOn.th5
the preparation of list of suitable officers and regulatiOn 6 WJ.
appointment to the Service. These Regulations are given below:-
"4. Conditions of eligibility.-(!) Eve.rY ~fficer of •he S~at~
Forest Service who on the date of constJtUtJOn of the Service.-
'
(a) is holding a cadre post substantively or holds a lien on
such post, or
(b) (i) holds substantively a past in the State Forest Service,
(ii) who has ~completed not less tl~a~ eight years of
continuous service (whether offic1at1ng or substantive) in that Service,-and
(iii) who has completed not l~ss. than thr~e ~ears continuous service in an officiating capacitY 1n ~ cadre
post or in any other post declared
equ1valent
thereto by the State Government ~o~cerned, sh.all
be eligible for selection to the Serv1ce m the semor
scale.
(2) Every officer of the State Forest Service . who has
H
completed four years of continuous. ~ervice on th~ date of
constitution of the Service shall be eligible for selectiOn to the
Service in the junior scale.
Explanation :-In computing the period
of continuo.us
service for the purpose of sub-regulation (l)(b) or sub-regulation
438
SUPREMB COURT REPOllTS
[197S] 2 s.c.R •.
(2), there shall be included any period during which an oftic:er
has undertak:en:-
(a) training in a diploma course in the Forest Rece&n:h
Institute and Colleges, Debra Dun; or
·
(b) such other training as may be approwd by the Central
Government in consultation with tho Commission in
any other institution.
5. Preparation of list of suitable officera:-
(1) The Board shall prepare in the order of preference, a list
of such officers of State Forest Service who satisfY the con·
ditions specified in regulation 4 and who are adjudged by the
Board suitable for appointment to posts in the senior and junior
scales of the Service.
(2) The list prepared in accordance with sub-regulation
(1) shall then be referred to the Commission for advice, by the
Central Government along with:-
(a) the records of aU officers of State Forest Service included
in the list;
(b) the records of aU other eligible officers of the State
Forest Service who arc not adjudged suitable for
inclusion in the list, together with the reasons as
recorded by the Board for their non-inclusion in the
list; aod
(c) the observations, ifany, of the Ministry of Home Affairs
on the recommendations of the Board.
(3) On receipt of the list, along with the other documents
received from the Central Government, the Commission shall
forward its recommendations to that Government.
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6. Appointment to the Service:-The Officers recommended
by the Commission under sub-regulation (3) of regulationS shall
be appointed to the Service by the Central Government, subject
;-
to availability of vacancies, in the State Cadre ~oncerned."
From a perusal of sub-rule ~1) of rule 4 of the Recruitment Rules
it is obvious that the Indian Forest Service bad to be constituted as soon
as may be after 1uly 1, 1966, which was the date of commencement
of the Rules, and that the persons to be recruited to the Service were
to be from amongst the members of t~e State Forests Service wbo on
the date of constitution of the Service were adjudged to be suitable
G
for apJX>intment. Though the Recruitment Rules were notified on
September 1, 1966, they were deemed to have come into force with
effect from July l, 1966, and the Fixation of Cadre Strength Regula.
tiona though made on December 27, 1966 were deomCd to have come
into effoct from October 1, 1966.
Selections were, therefore,
made in accordance with rule 4 of the Recruitment Rules read with
regulations 3, 4, S, & 6 of the Initial Recruitment Replations,
H
1966, for the number ofposta fixed under the Fixation ofc.dre Strength
R.cautatioDs for . eldl of tho Statq.
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PARVEZ QADIR v. UNION (!aganmohan Reddy, 1.)
439
In accordance with the aforesaid rules and regulations the initial
constitution of the Service and recruitment thereto was made by
a notification of the Government of India, Ministry of' Home Aft'airs,
dated July 29,1967. This was immediately challenged by one Kraipalc
and others who were from the cadres
of Divisional
Forest
Officers and Assistant Conservators of Forests of Jammu and
Kashmir, on the ground that the selections notified were violative
of Arts. 14 and ',16 of the
Constitution, and on the further
ground that the selections in question were vitiated as being opposed
to the principles of natural justice. They also challenged the vires
of section 3 of the All-India Services Act, rule 4 of the Recruitment
Rules framed under that Act and regulation 5 of the Initial Recruitment Regulations framed under rule 4(1) of the Recruitment Rules.
This Court in A. K. Kraipak & Others etc. v. Unionoflndiaand others(l)
struck down that notification on the ground that the principles of
natural justice were not complied with in that one of the aspirants
for recruitment to the Service, namely, Naqishbund, the Acting Chief
Conservator of Forests, was also a member of the Selection Board.
Though he (Naqishbund) did not sit in the Selection Board at the
time his name was considered, he participated in the deliberations
when the names of his rivals were considered. It was also admitted
that he had participated in the Board's deliberations while preparing
the Jist of selected candidates in order of preference. This Jist together,
with the ,records were forwarded to the Ministry of Home Affairs,
which in turn forwarded them with its observations to the Union
Public Service Commission as required by the regulations. In. these
circumstances all the selections were set aside and not merely the
selection of the three Conservators of Forest who were excluded.
It was contended in that case that section 3 of the Act, rule 4
of the Recruitment Rules and
regulation 5 of the
Initial
Recruitment Regulations are void as those provisions conferred unguided, uncontrolled and uncanalised power on the concerned dele·
gates. In so far as the vires of section 3 of the Act was concerned,
it was contended that the question was no longer res integr" in view
of the decision in D. S. Gc.rewal v. Tlrt State of Punjab & .dnl'.(l) This
Court, however, thought it unnecessary to go into the question a~ it
was striking down the notification for violating principles of natural
juc;tioe. As a result of this decision regulation 3(l)(a)~iv) was amended
on September 6, 1969 in respect of the composition of the Selection
Board~ and by another notification of the· same date after subrule (3}, sub-rule (3A) was added to ruh.: 4 of the Recruitment Rules.
Sub-rule (3A) reads as follows :
"(3Al Notwithstanding anything contained in sub·rule (2)
when the appointment of any person to the Service in pursuance
of the recruitment under sub-rule (1) is declared invalid by any
judgment or order of any Court, the Central Government ma}'
make fresh recruitment under that sub-rule to fill up such·appoint.
ment and may give· effect to the appointment so filled up from the
same date on which the appointment whkh is declared invalid
as aforesaia h!ls been given effect to." ·
(1) [1970}1 S.C.R. 457.
(2) [1959] Supp. (1) S.C.R. 792.
440
SUPREME COURT REPORTS
[1975}2 s.c.a.
Though in this petition the vires of the provisions which were
challenged in Kraipak'j c:m(l) have been challenged agam the learned
Advocate for the petitio~er did not contest the vires of s. 3 of the
Act. ~e. how~ver, questto~ed the delegation in rule 4(1) to make
regulattons whtch the Act dtd not authorise. That apart the selection
and tb~ notification . appointi~g the gazetted officers of Jammu and
Kashmtr Forest Servtce to Indtan Forest Service has been challenged
on the following grounds~
(1) The rules of recruitment do not lay down any criteria for
adjudging -:uitability which has been made !<Olely on the basis of the
confidential reports and as such has failed to afford equality of
opportun!t). Even apart from this objection it is. contended that the
confidenttal reports were irregular and defecttve, and as they
were not communtcated to the concerned persons till August 1967,
faile~ to afford the .opportunity which was intend~d to be give~\ by
the ctrculars, which tS, that the officers whose 'blemiShes' were potnted
out should have an opportunity to impro\e. In any .case, the con·
fidential reports are based on impressions, and suitabilit) based on
such impressions cannnot be said to be an objective material.
(?.) The opportunity afforded on August 10, 1967 for making
representations aga.tnst adverse entries gave room for favouritism,
as some. adverse entries of persons who were to be selected were
expun$ed. The selections were, therefore, not fair, impattial and
objocttve.
(3) A J:iropor selection pre-supposes that the criteria of selection
are knowtl before hand and are uniform. but when these aro not
known nor made evident the selection is bound to be arbitrary.
(4' Tho averment that adjudging suitability was on the basis of
the record on or before the date of the constitution of the Service,
i.e. on or before Jul} l, 1966, cannot be pressed . into service
inasmuch aa the date for the constitution ·of the Service, namely, Jul!·
1, 1966, waa only chosen for the limited purpose of determining inter
st seniority of the selected officers and their relative position in the
Indian Forest Service. The recruitment to the Service must, therefore,
clearly be on the basis of adjudging the suitabilit} for appointment as
on the date of the selection. The qualifications and disqualifications
must be as on that date, such as for instance the disqualifications under
rule 5. What bas to bo considered for selection is that the offieer
concerned is available as on the date when he or she is selected. It
was not the intention of the rules and regulations that merely because
some Forest Officers were alive or in service on the date of the first
oonstitution of the Service the) should be selected on a date when
such persons are not in senice or not even alive or have lost their
citizenship or have disqualified themselves by marFying several wives
etc.
The !earned Attorney General on the other hand submits that the
first selection to the Indian Forest Service amongst the gaLetted officers
of the State Forest Service must be in accordance with the rules and
regulations made under section 3 of the Act and the~ have been
(I) (1970] 1 S.C.R. 457.
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PARVEZ QADA!t. V, UNION (/aganmohan Reddy, /.)
H 1
compl~ed with in making the impusned recruitment. Under the
Recruitment Rules and the Initial Recruitment Regulations the Central
Government has to recruit to the Indian Forest Service, as soon a&
may be after the conunencement of the Rules, namel} Jul} 1, 1966,
fr~m amon~st the members of. the State Forest Service persons
adJud¥ed ~u1table .. The procedure for making the aforesaid recruitment .1s hud down m the aforesaid rules and regulations. The Board
constituted under regulation 3 has to prepare a list in order of preference
from am?~gst the n:tem~rs of the Stat~ Forest Service who satisfy
the cond1hons specified tn regulations 4 and who are adjudged
by the Board to be suitable for appointment to the posts in the senior
and junio~ scales of the Service. After thi~ list is prepared and sent
to the Umon Public Service Commission along with the observations
of the M.inistr} of Home Affairs, the Central Government, subject
~o the availabilit} of vacancies in tht: State cadres a~ provided
1n the Cadre Rules, is empowered to make appointments to the Indian
Forest Service . .•
· fhe constitution of the Selection Board, as we have seen already,
is provided under regulation 3 of the Initial Recruitment Regutatio·D&
and the conditions of eligibilit) for appointment to the Service are
provided in regulation 4. The Attorney General submits that the
rules and regulations ·should be read as integrated rules regardina
recruitment unaer section 3 of the Act.
.
It is true that though ·the regulations may not be cPlled ·rules and
they are purported to be made under rule 4(1) of the Recruitmenli
Rules. in effect the) are made under the power conferred b} section
3 of the· Act which uses the words "regulations" and "rules" as interchangeable words. The marginal note to section 3 of the Act itSelf
&a}s ·"Regulation of recruitment and . conditions ·of $etvice"
but in the bod) of the Act what the Central Go\ernment is empowerM
is to make rules for the regulation. of recruitment. 'As a matter of fact
"rules" have been defined in section 3(51) oftheGeneral Clauses- Act
to include •'regulations". Both the rules and regulations were ma · e
by the same authority, namt-ly, the Centi:al Government, they have
also been placed before the Parliament under sub-section {2} of section·
3 of the Act thus fulfilling the conditiors for the enforcement prescribed therein. See The State of Uttar Pradesh and Others v . .Babu
Ram Upadhy4.(1) and Kuilash Nath and another. v. State of U.P.(2)
The provision for consultation with the Public Service Commission
contained in rule 4(1) of the Recruitment Rules is, in our view,
not beyond the power of the rule-making authority inasmuch as tha~
provision complies with the constitutional requirement for consultation with the Public Service Commission: [See clauses (2), (3)(a) and
(3)(b) of Art. 320 ·of the Constitution of India.] An} provision m&de
which conforms with the constitutional requirements is, therefore,
not ultra vires; In these circumstances, there is validity in the s\l'bmission of the learned Attorney General that no question of arty
delegation in rule 4 arises nor can the regulation be said to have·been
made in .e~ss of O( the powers conferred by section 3 of the Act ...
(1) (1961) 2 S.C.R. 679.
(2) A.J.R .. (19~7) S.C. 790
442
SUPREME COURT REPORTS
. [1975] 2 S.C.Jt.
A perusal of the Act and the Rules will show that the oonstitution
of the Indian Forest Service according to the Cadre Rules has to be
made for each State or group of States and the s.trength of such
cadre. bas to be determined by regulations me4e by · th~ . Central
Government Mter consultation with the respecth·e State Governments.
The Indian Forest Service has been constituted by a J;l'oti.fication under
section 2-A of the Acf with effect from Oqtober 1, 1966;. ~hough as we
have· bad occasion to point out the Recruitment Rules,· the Initial
Recruitment Regulations aqd the Cadre Rules· wer.e enforced as from
July 1, .1966. This is because the Fixation of Cadre Stren~tb Regulations came into force with effect from Octo·ber '1; 1966.
1be
reason why October 1, 1966, is taken as the date for the i~itial coD!:titution of the Indian Forest Service is that because under rule 3(a) of
the Recruitment Rules, recruitmt>nt was to be made at 'the initiai
constitution of the Service. Under regulation 6 of the Initial Recruitment Regulations the appointments have to be made in the State
Cadre and since the strength of the Cadre in ench State was only
fixed by the Fixation of Cadre Strength Regulations, which came into
force with effect from October 1. 1966, the initial constitution of the
Indian Forest Service was as from October 1. 1966. In other
words. the persons who are to be appointed under regulation 6·
of the Initial Recruitment Regulations are .from those officers of the
State Forest Service who on the date of the constitution of the Service.
namely, October 1, 1966, are eligible for being selected. A person
eligible to be appointed to the senior scare of Service from amongst
the members of the State Forest Service must be (a) one who is holding
a cadre post substantively or holds a lien on &uch post, or (b)
(i) who holds substantively a post in the State Forest Service, (ii) who
has completed not less than eight years con,tinuous service.(whether
officiating or substantive) in that Service, and (iii) w~o has completed
· not less than three years continuous service in an officiating capacity
in a cadre post or in any other post declared equivalent thereto by
the State Government concerned. Clause (2) of regulation 4 deals
with the eligibility for selection to the Service· in the jwiior scale.
Jf the contention of the petitioner that the confidential .reports
. and other 'records penai.ning to the officers eligible for selection for
initial recruitment have to be considered as on the date of act1lal
selection. or that persons who are in service only on that date have
to be considered for selection, were right then the rules and regulations
become meaningless. On the petitioner's contention ·instead of con·
•iderina the persons eligible as on the date of the constitution of the
Service on Qctober 1, 1966, in respect of when the initial rtcnlitment
baa to bo made, persons who on the date of their selection were in the
State Forest Service alone have to be consiC1ered. If this method is
followed, then there may he many people ·who though not in service
on the da~ of the constitution of the Service will become eligible ror
, ·: being considered. · These may bo ' persons who are subsequently
.' ·appointed, but if according to the cadre strength which is to be fixed
every three years under the Cadre Rules and Cadre Strength FixatiOl.
Regulations, .the recruitment will be made not in respect of the cadr.,.
strength fixed as on the date of the constitution of the Service tl\r
.
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PARVEZ QADIR v. UNION (Jagamnohalz Reddy, J.)
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in respect of the cadre strength fixed at the time when due to unforeseen ~ircumstances (such as injunctions and court proceedings etc.)
selecttons take place several years later. The object of tb~ initial
~ecruitment. to the Indian Forest Service from amongst those persom
m the ServJce who on the date of the constitution of the Service are
members of the State. Forest Service is to give advantage of a higher
servic~ to the members of the State Forest Service of each State not
only in respect of status, but in respect of pay, pension, retirement
age, death-cum-retirement benefit and other service benefits which
are ·not available to them under the conditions of service applicable
to ~he State Forest Service. It this were not so, then an unsuccessful aspirant can bold up a selection by ventilating his grievances in a Court and obtaining a stay of the implementation of
selections made· and thereby deprive others for no fault of theirs,
if those benefits which they could have otherwise obtaii'ed.