# SRI K. PRASAD & ORS v. UNION OF INDIA & ORS

- **Citation:** [1988] 2 S.C.R. 285
- **Court:** Supreme Court of India
- **Decided:** 1987-12-10
- **Case number:** Civil Misc. Writ No. 3587 of 1974
- **Bench:** Ranganath Misra, S. Ranganathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-k-prasad-ors-v-union-of-india-ors-9821
- **Pages:** 44

## Headnote

B
Service matter-Seniority dispute raised by initial recruits and
direct recruits of the Indian Forest Service (I.F.S.) from the States of
Maharashtra, Uttar Pradesh & Orissa.
Controversies relating to the seniority of the officers in the Indian
C
Forest Service (l.F.S., for short) in this batch of cases from the States or
Maharashtra, Orissa and Uttar Pradesh, arose as asequal to three decisions of this Court in regard to the constitution of the Indian Forest
Service,. in Kraipak v. Union of India, AIR 1970 SC 150; Parvez Qadir
v. Union of India, 119721 2 SCR 432 and Union of India v. Chothia,
[ 1978] 3 SCR 652. The Court had to consider in these cases the quesD
tions arising out of the selections made by the Special Selection Boards
(S.S. Bs.) in place of the selections set aside by the Kraipak case abovementioned, and was concerned with the initial recruitment under sec•
tion 4(1) of the I.F .S. (Recruitment) Rules, 1966.
The first selections by way of initial recruitments to the State
E
cadres were made some-time in 1966 and 1967. The Kraipak decision
>
came in 1969: In the meanwhile, in many of the States, the first selection had been made followed up by subsequent recruitments largely
•
made on the basis of competitive examination under rule 4(2)(a) of the
Recruitment Rules and a few also, by promotion under rule 4(2)(b). As
a result of the second (and third) selections made by the S.S.B., a F
number of officers in the respective State Forest Service (S.F.S.) had
been given appointment in the IFS with effect from October 1, 1966,
under rule 4(3A) and were placed in a position of higher seniority
vis-a-vis the recruits-direct recruits-under rule 4(2). The direct recruits
~
were dissatisfied with this.
Iu the case of Uttar Pradesh, nine petitioners moved the High
Court for relief, out of whom, eight-direct recruits of 1968 and 1969
confirmed between 1969 and 1972 came up in appeal to this Court. In
this State, the initial recruitment was made in 1966-67 of 85 officers, 58
G
to the posts in the senior time scale and 27 to the posts in the junior time
scale. Sl)bsequently, six persons were promoted under rule 4(2)(b) and H
285
286
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
A nine persons were recruited under rule 4(2)(a) of the Recruitment
Rules. the initial recruitment having been declared bad, a fresh S.S.B.
was appointed and, on its recommendations, 104 persons were appointed to the service, 60 to senior scale posts and 44 to junior scale posts.
Again, in 1976, six more persons were added and thus no persons were
taken in by way of initial recruitment as against 85 persons taken in the
B
first selection. The direct recruits were aggrieved by these selections.
c
Their case was rejected by the High Court.
In the case of Maharashtra, the first selection was made on
2.2.1967 of 57 officers-36 for the senior time scale and 21 for the
junior time scale. This was set aside. On July 13, 1971, at the second
selection, 116 officers were found eligible but only 66 were considered
suitable for appointment. 39 out of 51 eligible officers were found suitable for the senior scale, of whom, 35 were appointed immediately and
four, later. For junior scale 27 were found suitable, out of whom 23
were appointed initially and four, later. All these 66 appointments were
made w.e.f. t.10.1966. Some persons, who had joined the State Forest
D Service in 1962 and had put in 4 years' service as on 1.10.1966, and
were thus eligible for consideration for junior scale posts, filed a writ
petition in the High Court. Their grievance was that the government
had not considered all the officers who were eligible for the junior posts,
as should have been done as laid down in the Chothia case aforementioned. The High Court allowed the writ petitions. Some of the
E
respondents, comprising persons, who had been directly recruited
under rule 4(2) between 1968 and 1970, appealed to this Court against
the decision of the High Court.
-<
In the case of Orissa, eight pe

## Text

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SRI K. PRASAD & ORS.
A
v.
UNION OF INDIA & ORS.
DECEMBER 10, 1987
[RANGANATH MISRA AND S. RANGANATHAN, JJ.]
B
Service matter-Seniority dispute raised by initial recruits and
direct recruits of the Indian Forest Service (I.F.S.) from the States of
Maharashtra, Uttar Pradesh & Orissa.
Controversies relating to the seniority of the officers in the Indian
C
Forest Service (l.F.S., for short) in this batch of cases from the States or
Maharashtra, Orissa and Uttar Pradesh, arose as asequal to three decisions of this Court in regard to the constitution of the Indian Forest
Service,. in Kraipak v. Union of India, AIR 1970 SC 150; Parvez Qadir
v. Union of India, 119721 2 SCR 432 and Union of India v. Chothia,
[ 1978] 3 SCR 652. The Court had to consider in these cases the quesD
tions arising out of the selections made by the Special Selection Boards
(S.S. Bs.) in place of the selections set aside by the Kraipak case abovementioned, and was concerned with the initial recruitment under sec•
tion 4(1) of the I.F .S. (Recruitment) Rules, 1966.
The first selections by way of initial recruitments to the State
E
cadres were made some-time in 1966 and 1967. The Kraipak decision
>
came in 1969: In the meanwhile, in many of the States, the first selection had been made followed up by subsequent recruitments largely
•
made on the basis of competitive examination under rule 4(2)(a) of the
Recruitment Rules and a few also, by promotion under rule 4(2)(b). As
a result of the second (and third) selections made by the S.S.B., a F
number of officers in the respective State Forest Service (S.F.S.) had
been given appointment in the IFS with effect from October 1, 1966,
under rule 4(3A) and were placed in a position of higher seniority
vis-a-vis the recruits-direct recruits-under rule 4(2). The direct recruits
~
were dissatisfied with this.
Iu the case of Uttar Pradesh, nine petitioners moved the High
Court for relief, out of whom, eight-direct recruits of 1968 and 1969
confirmed between 1969 and 1972 came up in appeal to this Court. In
this State, the initial recruitment was made in 1966-67 of 85 officers, 58
G
to the posts in the senior time scale and 27 to the posts in the junior time
scale. Sl)bsequently, six persons were promoted under rule 4(2)(b) and H
285
286
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
A nine persons were recruited under rule 4(2)(a) of the Recruitment
Rules. the initial recruitment having been declared bad, a fresh S.S.B.
was appointed and, on its recommendations, 104 persons were appointed to the service, 60 to senior scale posts and 44 to junior scale posts.
Again, in 1976, six more persons were added and thus no persons were
taken in by way of initial recruitment as against 85 persons taken in the
B
first selection. The direct recruits were aggrieved by these selections.
c
Their case was rejected by the High Court.
In the case of Maharashtra, the first selection was made on
2.2.1967 of 57 officers-36 for the senior time scale and 21 for the
junior time scale. This was set aside. On July 13, 1971, at the second
selection, 116 officers were found eligible but only 66 were considered
suitable for appointment. 39 out of 51 eligible officers were found suitable for the senior scale, of whom, 35 were appointed immediately and
four, later. For junior scale 27 were found suitable, out of whom 23
were appointed initially and four, later. All these 66 appointments were
made w.e.f. t.10.1966. Some persons, who had joined the State Forest
D Service in 1962 and had put in 4 years' service as on 1.10.1966, and
were thus eligible for consideration for junior scale posts, filed a writ
petition in the High Court. Their grievance was that the government
had not considered all the officers who were eligible for the junior posts,
as should have been done as laid down in the Chothia case aforementioned. The High Court allowed the writ petitions. Some of the
E
respondents, comprising persons, who had been directly recruited
under rule 4(2) between 1968 and 1970, appealed to this Court against
the decision of the High Court.
-<
In the case of Orissa, eight persons moved this Court by Writ
Petitions. They had joined the Orissa State Forest Service as on
F
1.4.1962. After two years' training, they had been appointed Assistant
Conservators of Forests on 1.4.1964. By 1.4.1966, they had four years'
continuous service in the State Cadre. They had become eligible for
selection to junior scale posts in the I.F.S. Two selections were made by
way of initial recruitment, once in January, 1967, when 41 officers were
selected, and, then, in 1972, 42 out of 82 eligible officers were selected.
G
The petitioners were taken into the I.F.S. under rule 4(2)(b) between
1975 and 1977. The petitioners' contention was that their names were
not considered at all either at the first selection or at the second selection, and.the selections were made by considering eligible officers in the
order of seniority only to recuit 41 or 42 persons. The government did
not consider all the 82 eligible officers and select 34 out of them
H arranged in the order of preference, and this vitiated the selection, as
K. PRASAD v. U.0.1.
287
--\
held in the Chothia case ?fore-mentioned.
A
..,.
Dismissing the appeals from U.P. and Maharashtra subject to
observations and allowing the Orissa writ petitions, and directing the
Special Selection Board to redo the selections in the light of the principies set out, the Court,
B
"""'
HELD: The initial recruitment regulations clearly envisage that
the Special Selection Board should consider the cases of all the officers
'~
in the State Forest Service who fuliII the conditions of eligibility and
~
judge their suitability for appointment to posts in the service and pre·
pare a list of such officers in the order of preference. This selection was
done by a Board, the constitution of which was found to be vitiated. The c
.I.._
logical consequence of this would be that the process of selection had to
be redone by a validly appointed S.S.B., before which the range of
·>--.
selection was the same as was, or should have been, considered by the
initial S.S.B. i.e. out of those officers in the S.F.S. who were eligible as
on 1.10.66. However, there had been some changes subsequent to
1.10.66 in the C.R.S. of some of the officers pertaining to the period
D
upto 1.10.66, consequent on the representations for expunction or
modification of the adverse remarks, and nobody could validly object to
these persons also being considered since the case of an officer who has
)-
the adverse remark against him struck off or modified, is on the footing
as if such adverse remark had not been there at all, or had been in the
modified form from the beginning. The decision in the Kraipak case
E
necessitated a complete review of the first selection. The subsequent
-~
selection Boards could not be compelled to restrict their adjudication
regarding suitability to the same number of persons as the first Board
t
had selected, so long as the same list of eligible officers and their
records as on 1.10.1966 were considered. [309D·H; 310C·DI
F
The first proviso to rule 4(2) of the cadre Rules, only outlines the
general principle that whoever has the power to do a particular thing,
has also the power to exercise it from time to time, if needed. The
Central Government has the power to alter the strength and composi·
,.
tion of the cadres at any time. However, if the terms of the relevant
rules are scruitinized, it will be seen that the strength and composition
G
\-
of the cadres have to be determined by regulations which have to be
made by the Central Government in consultation with the State
Government. If the initial composition can be only drawn up in consul·
tation with the State Government and by Regulations, it will not be
permissible for the Central Government to modify or alter the same
save in the same manner. It is not possible to accept the contention of
H
288
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A the initial recruits that the mere appointment of an excess number of
officers should be treated as an automatic expansion of the cadre
strength and composition in exercise of the power available under
rule 4(1). [3120-E; 313A-B]
These cases are concerned with a set of Regulations whose whole
B purpose is to fix the cadre strength. It is also a provision in regard to an
All-India Service in regard to the constitution of which both the Central
Government and the State Governments have a say. The cadre strength
could not be varied without amending the Regulations and schedule or
without consultir.g the State Government concerned. [313H; 314A]
C
The Cadre Regulations, read with the Cadre Rules, leave no
doubt that the strength and composition referred to or prescribed
therein, are of the entire cadre of the service in the State concerned and
are not restricted to the recruitments made after the initial recruitment.
The total authorised strength referred to is the total number of officers,
who, at any point of time, can man the posts in the cadre. It could not
D have been the intention that the cadre should consist of an indefinite
number of persons recruited by the S.S.B. from the S.F.S. supplemented by the number of officers referred to as the total authorised
strength. There is no difficulty in holding that the total strength of the
cadre is to be counted by including the initial recruits and that all the
eligible officers adjudged suitable cannot be recruited to the service in
E excess of the total authorised strength. [314E-F; 3168]
The critical and difficult question in these appeals is not that
appointments by way of initial recruitment were made in excess of the
total authorised strength but that the government has failed to keep in
mind the restrictions placed on the number of senior and junior posts in
F
each cadre while making appointments. The grievance of the appellants
Is that more recruitments have been made against the junior posts than
is permissible under the respective schedule. [316C-EJ
The initial recruits are right in contending that the Cadre Regulations do not lay down any water-tight classification of junior and senior
G posts in the manner contended for by the direct recruits. It is true that
the Cadre Regulations make a reference to senior and junior posts, but
this is not intended to be an essential element in the composition of the
cadre. The Cadre Rules do not indicate, in respect of some posts,
whether they are to be considered as junior or senior, and they contain
no definition of the words 'senior' and 'junior' posts. It cannot be
H postulated that the entrants to the service wiU first enter on a junior
i
l
41
I,
K. PRASAD v. U.0.1.
289
"""'
scale post and work their way upward. All the rules show that an
A
officer, being in the junior or senior time scale or on a junior post or
-r
senior post, depends upon various eventualities, and it is not possible to
pin down any posts as senior or junior or any officer as on one of the two
time-scales. The Court agreed with the initial recruits that the reference
to junior and senior posts in the cadre should not be considered to be so
rigid or integral a part of the cadre composition as to affect the validity
B
,
of the appointments made in excess of a particular nwnber. [318B-C; 319B-C]
One thing plain on the terms of the Regulations is that once a
-j
person is found to be eligible and is adjudged suitable for recruitment
under the Initial Recruitment Regulations, he has t~ be taken into
service as a part of the initial recruitment either immediately on c
'
1.10.1966 or as and when the vacancies arise in the cadre. It is neces•
,....
sary to remember that if the vacancies are in senior posts, they can be
filled only by S.F.S. officers with eight years' continuous service, and
,_,
exhypothesi such officers will not be available for at least four more
years, and if the vacancies are of junior posts, they can be filled in only
after a competitive exmination is held, which will take time. The Court D
cannot accept the contention that officers of the S.F.S., who have been
adjudged suitable by the S.S.B. should not be taken into the service
merely because_.their number exceeds the number of posts available.
True, they cannot be appointed immediately but the consequence can·
}
not be that they should be ignored and persons recruited under rule 4(2)
given preference over them. It is only rational to interpret the rules as
E
laying down that all those officers of the S.F.S. with eight or four years'
'i"'-
experience, who are adjudged suitable for the service should be
'
recruited to the service before any recruitment can at all start under rule
-+
4(2). Whether all such persons are entitled to the back-dating of their
appointment to 1.10.1966 or not, they are certainly entitled to contend
that their appointment should be given precedence over the appoint· F
-t
ments of the recruits under rule 4(2) of the Recruitment Rules. In this
•
view of the matter, the plea of the petitioners that they will get
precedence over the surplus officers among the eligible cannot at all
be accepted. It is only right that persons should be adjudged on the
..
basis of the correct C.R.s. Any. Expunction or modification in the C.R .
'
~;.
of a period naturally relates back to that period and no legitimate
G
~
objection can be taken if the correct C.R.s are taken into account,
There was nothing wrong in the selections made by the Selection
Board. [319D-E; 3200-E; 321C·EI
··'
•
Rule 4(3A) only places the fresh recruits in the same position as if
they had been recruited in the first instance, i.e. on 1.10.1966 as indeed
H
290
SUPREME COURT REPORTS
(1988] 2 S.C.R.
A they should have been, and thus involves no retrospective effect beyond
·tbe date of commencement of the Act. It Is also not 'correct to suggest
that it prejudicially affects the direct recruits in any way. The appel·
lants acquire under the Rules no right to be in service until after the
initial recruitment is over. Under the Rules, they can rank only after
B
c
the candidates who get in by way of initial recruitment. The appellants
cannot be aggrieved that those in service in the S.F.S. are found
suitable for recruitment to the service and taken into service w.e.f.
1.10.1966. Those persons, even if not entitled to appointment as
on 1.10.1966, are entitled to be appointed as and when vacancies
arise and must always be given a position of precedence over the
recruits under Rule 4(2). The direct recruits can hardly claim that
they are prejudicially affected by the re-making of the initial recruitment. l323D·G]
So far as Orissa is concerned, all the 82 eligible officers had to be
considered for initial recruitment, bot the S.S.B. merely selected 42
officers and made an omnibus observation that the others were found
D
unsuitable. This, as explained Chothia' s case is not a proper compliance
with the Rules, and so the selection has to be set aside with a direction
that it should be re-done properly. l324A·BI
There has been delay on the part of the petitioners in coming to
this Court, but in view of the complicated nature of the issues involved,
E
the petitioners should not be put out of the court on the ground of
Iaches. All the 82 eligible officers as on 1.10.66 should be considered
and not merely some of them. Their suitability should be adjudged. If
they are not found suitable, reasons should be given which the U.P.S.C.
should be able to consider. If they are found suitable, a list of such
officers should be drawn up with ranking given to them in the order of
F
preference for the consideration of the U.P.S.C. Since this has not been
done, the recruitments have to be set aside and the matter remanded
with the direction that it should be finalised as per the Recruitment
Rules and in the light ofthejudgment. l324E·GI
If the Court had agreed with the direct recruits that there had
G
been some invalidity or infirmity attached to the subsequent selections
by way of initial recruitment, the Court would not have rejected the
appeals on the ground that the Regulations cannot give rise to a cause
of action. There is no error in the procedure followed by the Government. [327E]
H
It is not the intention of the Court, nor can it be the result of disi
t
K. PRASAD v. U.0.1.
291
cussion, that the appointments of any officers recruited under rule 4(1)
or 4(2) should be considered invalid. All the officers selected will have to
be adjusted, if necessary, by amending the Cadre Regulations. The
only result of.the Court's findings would be the re-adjustment of the
seniority with necessary and consequential effect ou promotions in the
service. [327G]
No merit in the appeals from U .P. and Maharashtra, Orissa writ
petitions allowed, S.S.B. directed to re-do the selections in the light of
the principles set out in thejudgment. [328A-B]
Kraipak v. Union of India, AIR 1970, SC 150; Parvez Qadir v.
A
B
Union of India, (1975) 2 SCR 432; Union of India v. Chothia, [1978) 3 C
SCR 652; Jagat Narain v. Union, CMWP 58 of 1968; Lila Gupta v.
Lakshmi Narain, (1978) 3 SCR 922 at 932; Atlas Cycle Industries Lui.
v. State of Haryana, [1979) 1 SCR 1070 at 1076, 1084, 1085; G.S.
Lamba v. Union of India, AIR 1985 SC 1019 at 1032; Kapur v. Union
of India, [1972) 2 SCR 531; Union of India v. Harnek Singh, L.P.A.
406/83, decided by the Punjab & Haryana High Court on 20.9.1983;
D
Inderjit Singh v. Union of India, [1975] 2 S.L.R. 839; Amrik Singh and
Ors. v. Union of India & Ors., [1980] 2 SLR 110 and R.R. Venna and
Ors. v. The Union of India & Ors., [1980) 2 S.L.R. 335, referred to.
CIVIL APPELLATE JURISDICTION·. Civil Appeal No. 3072
~~~-
E
From the Judgment and Order dated 5.10.1979 of the Allahabad
High Court in Civil Misc. Writ No. 3587 of 1974.
S.N. Kacker, C.P. Lal, M.N. Krishnamani, Dalip Tandon, E.C.
Aggarwala, Vi jay Pandit, Atul Sharma and Ms. Purnima Bhat for the
F
Appellants.
Govind Das, Anil Dev, K.K. Singhvi, P.P. Rao, Kapil Sibbal,
V.A. Bobde, G.L. Sanghi, A. Sobba Rao, C.V.S. Rao, C. Ramesh,
-).
Miss A. Subhashini, Mrs. S. Dikshit, A.S. Bhasme, A.M. Khanwilkar,
R.K. Mehta, V.J. Francis, N.M. Popli, J.R. Dass, S.P. Kalra, Mrs.
G
\,--
Rani Chhabra, V.B. Joshi, L.K. Pandey, D.D. Gupta and K.K.
Khurana for the Respondents.
P.N. Mishra for the Intervener.
The J udgment of the Court was delivered by
H
A
B
292
SUPREME COURT REPORTS
(1988] 2 S.C.R.
INTRODUCTION
RANGANATHAN, J. 1. The controversies arising in this batch
of cases are by way of sequel to three earlier decisions of this court in
regard to the constitution of the Indian Forest Service viz. Kraipak v.
Union of India, AIR 1970 S.C. 150; Parvez Qadir v. Union of India,
(1975] 2 S.C.R. 432 and Union of India v. Chothia, (1978] 3 S.C.R.
652. A little historical background is, therefore. necessary to appreciate the problems before us.
THE ALL·INDIA SERVICES ACT
2. A few months before India gained Independence, a decision
C was taken that one of the primary needs of the federal constitution
envisaged for India would be the setting up of All India Services common to the Centre and to the States. The members were to be
recruited from the intelligent youth of the country by competitive examinations of high standard. They were to be free from political control,
D contended and having a sense of security. The idea was to build up a
bureaucracy consisting of efficient officers of integrity and impartiality
who could man important administrative posts and make possible the
continued governance of the country unaffected by periodical changes
in the political set-ups in the Centre and various States consequent on
quinquennial elections to the various legislatures in the country. The
E recrui.tment to these services and thefr. ultimate disciplinary control
was to be with the Union Government but the officers would serve,
under the immediate control of the State Governments, on various
State cadres. Initially, the All India Services viz. the Indian
Administrative Service and the Indian Police Service were created to
replace the former Indian Civil Service and Indian Police respectively.
F The statutory basis for the implementation of the above policy was
provided by Chapter I of Part XIV of the Constitution (articles 308 to
314) supplemented by the All India Services Act, 1951 (hereinafter
referred to as "the Act") passed by Parliament as envisaged in article
312 . of the Constitution. The Act, initially applicable to the two
Services above mentioned, was extended by Amendment Act 27 of
196310 cover the constitution of three new All-India Services one of
G which was the Indian Forest Service (I.F.S. ',for short). S. 3 of the Act
empowers the Government of India to make, after consultation with
the State Governments, rules for the regulation of recruitment, and
the conditions of service of persC)ns appointed, to an All-India Service.
Such rules are to be laid, as soon as possible after they are made and
H for not less than fourteen days, before Parliament.
I
)
.J,
'
K. PRASAD v. U.0.I. (RANGANATHAN, J.]
293
THE RULES
A
·..,.,.
3. Pursuant to the amendment of 1963, mutual consultations
were held between the Union Government and the various State
Governments and the broad pattern I already in existence for the
Indian Administrative Service and the Indian Police Service was
decided to be adopted for the Indian Forest Service also. Once this
B
-~
decision was taken, the statutory rules followed. There were five sets
of rules framed between 1966 and 1968:
(i) The IFS (Cadre) Rules, 1966
(ii) The IFS (Recruitment) Rules, 1966
(iii) The IFS (Probation) Rules, 1968
(iv) The IFS (Pay) Rules, 1968
(v) The IFS (Regulation of Seniority) Rules, 1968
Some of the rules relevant for our present purposes may now be set
out.
c
D
,}-
4(a) Cadre Rules: The Cadre Rules came into force on lst July,
1966. Rule 3 provides that there shall be constituted for each State or
E
group of States an Indian Forest Service Cadre. The cadre constituted
..
for a State is called a 'State Cadre' and a cadre constituted for a group
of states, a 'Joint Cadre'. Rule 4 is important and can be extracted:
•
"4. Strength of Cadres: ( 1) The strength and composition
of each of the cadres constituted under rule 3 shall be as
F
determined by regulations made by the Central Government in consultation with the State Government in this
behalf.
(2) The Central Government shall, at the interval of every
three years, re-examine the strength and composition of G
each such cadre in consultation with the State Government
concerned and may make such alterations therein as it
deems fit;
Provided that nothing in this sub-rule shall be
deemed to affect the power of the Central Government to
H
A
B
294
SUPREME COURT REPORTS
[1988] 2 S.C.R.
alter the strength and composition of any cadre at any time:
Provided further that the State Government con-
'<"<
cerned may add for a period not exceeding one year, and
with the approval of the Central .Covernment for a further
period not exceeding two years, to a State or Joint Cadre
one or more posts carrying duties or responsibilities of a
like nature to cadre posts."
Rule 7 empowers the State Government to make the appointments to
the State cadre and one of the 'concerned' State Governments to a
Joint cadre. Under rule 8, every cadre post has to be filled by a cadre
C
officer. Rule 9 envisages temporary appointments of non-cadre officers to cadre posts. Under rule 10, cadre posts are not be kept vacant
or held in abeyance for a period exceeding six months without
approval of the Central Government. Under rule 11, temporary
arrangements or leave arrangements could be made enablin~ a single
cadre officer to look after two cadre posts but such arrangements cannot
D extend beyond 12 months.
(b) Recruitment Rules: The Recruitment Rules were also
framed simultaneously and came into force on Ist of July, 1966. They
contemplate the initial recruitment of the officers of certain Services
already in existence (hereinafter referred to as the State Forest Service
E
or S.F.S. in short). Rule 3 and rule 4 are relevant for our present
purposes.
F
-G
H
The relevant portions of these rules reads as follows:
"3. Constitution of the Service:
The Service shall consist of the following Persons,
namely:
(a) Members of the State Forest Service recruited to
the service at its initial constitution in accordance
with the provisions of sub-rule (I) of rule 4; and
(b) Persons recruited to the service in accordance with
the provisions of sub-rules (2) to (4) of rule 4.
"4. Method of recruitmentto the Service
( 1) As soon as may be after the commencement of
K. PRASAD v. U.0.1. (RANGANATIIAN, J.]
295
these rules, the Central Government may r"cruit
to the Service any person from amongst the members of the State Forest Service adjudged suitable
in accordance with such regulations as the Cenral
Government may make in consultation with the
State Governments and the Union Public Service
Commission (U.P.S.C.):
A
B
-j._
(2) After the recruitment under sub-rule (1), subsequent recruitment to the Service, shall be by the
following methods, namely:
-
(a) by a competitive examination
( aa) by selection of persons from amongst the Emergency Commissioned Officers and Short Service
Commissioned Officers of the Armed Forces of
c
the Union who were commissioned after the Ist
November, 1961, and who are released in the
D
manner specified in sub-rule(!) of rule 7 A;
(b) by promotion of substantive members of the State
Forest Service.
Rule 6 makes it clear that all appointments to the service are to be
made by the Central Government. No appointment can be made except after recruitment by one of the methods specified in rule 4. The
> appointments of persons recruited to the service under rule 4(2)(a)
(i.e. by competitive examination) can only be made to the junior timescale of pay and the appointments of persons recruited to the service
under rule 4(2)(b) (i.e., by promotion of substantive members of the
State Forest Service) shall be in the senior time-scale of pay.
"However, under rule 6A,
"an officer in the junior time scale of pay shall be appoinE
F
ted by the State Government concerned to a post in the
senior time scale of pay if, having regard to his length of G
service, experience and performance in the junior time
scale of pay, the State Government is satisfied that he is
suitable for appointment to a post in the senior time-scale
of Pay."
Rule 7 deals with the recruitment by competitive Examination, rule
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SUPREME COURT REPORTS
[1988] 2 S.C.R.
A 7 A deals with recruitment by selection of persons from among officers
released from the Armed Forces and rule 8 with recruitments by promotion. Rule 9 provides that the recruitment of persons under rule 8 is
not to exceed 33 1/3 per cent of the number of senior duty posts borne
on the cadre of that State.
B
c
( c) Pay Rules: The Pay Rules provide for time scales of pay for
the members of the service. There are two scales prescribed, one a
Junior scale, the top of which is reached after 18 years of service and
the other a senior scale which runs over a.period of about n years.
Under rule 4, the initial pay of a member of the service appointed
under rule 4(1) of the Recruitment Rules has to be fixed in the junior
time-scale of the service at he stage he would have got if he had been
appointed in that scale on the deemed date of appointment in the year
of allotment. Sub-rule (b) of rule 4(1) contemplates appointment of
such an officer simultaneously to a post in the senior time scale and
prescribes the mode of fixation of his salary in the senior time scale.
D
( d) Seniority Rules: So far as seniority rules are concerned, two
E
F
rules are relevant for our present purposes. One is the definition of
'senior post' contained in rule 2(g), which reads thus:
"2(g) 'Senior post' meansa 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
item 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."
Rule 3 describes the mode of appointment and the allotment of a year
G
of allotment to every officer appointed to the service. The seniority of
~'
officers is determined primarily by the year of allotment and, inter-se
officers having the same year of allotment, by the principles set out in
---f
rule4.
THE REGULATIONS
H
5. It may be mentioned that the rules contemplate regulations
,,,
> t
K. PRASAD v. U.O.I. (RANGANATilAN, J.]
297
being made by the Central Government in consultation with the State
Government on various matters. Some of these regulations are also
relevant:
6(a) Cadre Strength Regulations: The Fixation of Cadre Strength Regulations were framed in exercise of the powers conferA
red by rule 4(1) of the Cadre Rules. These regulations were first
B
issued by a notification of the Government of India dated
31.10.1966 and were deemed to have come into force with effect
from Ist October, 1966. 7;here is only one substantive clause in
this regulation, which reads thus:
"2. Strength and Composition of Cadres
The posts borne on, and the strength and composition
of the cadre of, the Indian Forest Service in each of the
States, shall be as specified in the Schedule to these
regulations."
The schedule proceeds to set out the strength and composition of the
cadres of various Stat.es. In these matters before us we arc concerned
with the position in regard to three States,: Uttar Pradesh, Maharashtra and Orissa. The provisions of the Schedule in so far as these
States are concerned are as follows:
Maharashtra
U.P.
Orissa
c
D
E
).
1. Senior posts under the
State Government
Chief Conservator of Forests
Deputy Chief Conservator of
Forests
Add!. Chief Conservator of
Forests
Conservator of Forests
Conservator of Forests
(Development Circle)
Conservator of Forests,
Working Plan Circle
1
1
7
1
1
1
F
2
9
4
G
1
1
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SUPREME COURT REPORTS
[ !988] 2 S.C.R.
Conservator of Forests,
)....
A
Headquarters
1
Special Officer, Revenue &
r~
Forest Department
1
Deputy Conservators of Forests
35
48
24
B
Deputy Conservators of Forests,
Integrated Unit
3
Deputy Conservator of Forests,
Working Plans
8
...;_Deputy Conservators of Forests,
c
Foresters' Training Division
2
Deputy Conservator of Forests,
~
Forest Resources Survey Division
1
Forest Utilisation Officer
1
I
.
"(
D
Working Plan Officer
7
4
Forest Extension Officer
1
Chief Wild Life Warden
I
Timber Supply Officer
E
Silviculturist
1
2
1
i
Working Plan Officers
,
Officer on Special Duty for Forest
<
Labourers Cooperative Society
1
Officer on Special Duty for Forest
,..,.._ -
F
Labourers Cooperative Society
1
.,.....
Assistant to Chief Conservator of
Forests
I
P.A. to the Chief Conservator of
Forests
I
G
,_
Total:
62
76
37
2. Senior posts under the
-i
Central Government
5
6
3
H
67
82
40
K. PRASAD v. U.0.1. [RANGANATHAN, J.)
299
3. Posts to be filled by promotion
in accordance with rule 8 of the
Indian Forest Service
(Recruitment) Rules 1966
4. Posts to be filled by direct
recruitment
5. Deputation Reserve
15% of
4 above
6. Leave Reserve
11% of 4 above
7. Junior posts
20% of 4 above
8. Training Reserve
5% of 4 above
Direct Recruitment posts
Promotion posts
Total Authorised Strength
22
45
67
7
5
9
2
90
68
22
90
27
55
82
8
6
11
3
110
83
27
110
13
27
40
4
3
5
1
53
40
13
53
(b) Initial Recruitment Regulations: The second set of regulations is the Initial Recruitment Regulations framed in pursuance of
rule 4(1) of the Recruitment Rules. These regulations are somewhat
important for our present purposes and they have to be referred to in
some detail. These also came into force with effect from Ist July, 1966.
Regulation 3 provides for the constitution of a Special Selection Board
(S.S.B.) for the purpose of making selections to the service. The
S.S.B. consists of a number of officers, one of whom is the Chief
Conservator of Forests (C.C.F.) of the State Government, concerned.
Regulations 4, 5 and 6 have to be set out in full:
"4. Conditions of eligibility-{ 1) Every officer of the State
Forest Service who, on the date of constitution of the
Service-
(a) is holding a cadre post substantively or holds a lien
on such post, or
(b)
(i) holds substantively a post in the State Forest
Service,
A
B
c
D
E
F
G
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300
A
B
c
D
E
G
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SUPREME COURT REPORTS
[ 1988) 2 S.C.R.
(ii) who has completed not less than eight years
of continuous service (whether officiating or
substantive) in that Service, and
(iii) who 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, shall be eligible for selection to
the Service in the senior scale.
(2) Every officer of the State Forest Service who
has completed four years of continuous service
on the date of constitution of the Service shall be
eligible for selection to the Service in tl)e junior
scale.
Explanation: In computing the period of continuous service for the purpose of sub-regulation (l)(b) or sub-regulation (2) there shall
be included any period during which an officer
has undertaken:
(a) training in a diploma course in the Forest
Research Institute and Colleges, Dehra
Dun; or
(b) such other training as may be approved by
the Central Government in consultation
with the Commission in any other institution.
Preparation of list of suitable Officers:
(1) The Board shall prepare, in the order of preference, a
list of such officers of State Forest Service who satisfy
the conditions 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 Goverrunent along with:
'
i-..
>.
K. PRASAD v. U.O.I. IRANGANATHAN, J.l
301
(a) the records of all officers of State Forest Service
included in the list;
A
(b) the records of all other eligible officers of the State
Forest Service who are not adjudged suitable for
inclusion in the list, together with the reasons as
recorded by the Board for their non-inclusion in
B
the list; .and
(c) the observations, if any, 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.
6. Appointment to the Service-The officers recommended by
c
the Commissioner under sub-regulation (3) of regulation-5 shall be
D
appointed to the Service by the Central Government, subject to
availability of vacancies, in the State Cadre concerned.
( c) The Appointment by Competitive Examination Regulations:
We may next refer to the appointment by Competitive Examination
Regulations, 1968. All that is necessary for our present purposes is
E
that, under these regulations, a candidate, to compete at the examination, must, inter alia have attained the age of 20 and not attained the
age of 24 on the Ist day of July of the year in which the examination is
held. There is a provision for relaxation of the upper age limit in
respect of persons who are directly recruited to the gazetted cadre of
the State Forest Service and put in less than 4 years' service (including
F
2 years' training for Diploma course in the Foreign Research Institute
and Colleges, Dehradun) on the Ist July, 1966. But persons who have
put in more than 4 years' service in the State Forest Service would not
be eligible to appear in these examinations firstly because they would
have crossed the maximum age limit and secondly because the provision for relaxation does not enuse in their favour.
G
~
( d) Appointment by Promotion Regulations: Recruitment by
•
promotion under rule 9( 1) of the Recruitment Rules is governed by the
Appointment by Promotions.Regulations, 1966, which came into force
with effect from L7.1966. A selection committee is constituted under
regulation 3 to select candidates whose conditions of eligibility for
H
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SUPREME COURT REPORTS
[1988) 2 S.C.R.
promotion are defined in regulation 4. Briefly speaking, the selection
committee is to consider the cases of all substantive members of the
State Forest Service, who on the first day of January of that year, have
completed not less than eight years of continuous service (whether
officiating or substantive) in a post not lower in rank than that of
Assistant Conservator of Forests. This Committee would then prepare
a list of eligible members which, after approval by the U.P.S.C.,
would be forwarded to the State Government for making appointment
to the cadre posts.
INITIAL RECRUITMENT
7. Kraipack case: Sometime after these rules and regulations
were framed the initial recruitment to the service was taken on hand.
S.S.Bs., including the C.C.F., made selections of officers to the various cadres. The process brought to light a serious defect in the constitution of the S.S.Bs. It has been mentioned earlier that, under the Initial
Recruitment Regulations, a S.S.B. had been constituted for selection
D of officers at the time of the initial constitution of the service and that
the Chief Conservator of Forests (C.C.F.) was one of the officers on
the Selection Board. A perusal of the Schedule to the Cadre Strength
Regulations would show that the C.C.F. was also one of the cadre
posts mentioned in the Schedule. At the time of the initial recruitE
ment, therefore, it was necessary also to recruit an officer who might
eventually fill this post. Thus, the C.C.F. was not only on the S.S.B.
but was also a prospective candidate for consideration in the intitial
recruitment. This somewhat anamolous position was considered by
the Supreme Court in the case of A.K. Kraipak v. Union of India, AIR
1970 S.C. 150 in its judgment dated 29th April, 1969. The Supreme
Court held that the initial recruitment to the State Cadre of Jammu &
F
Kashmir was vitiated by the above circumstance and quashed the
same. Though the question arose only with regard to one of the States,
namely, Jammu & Kashmir, the position was identical in respect of
several States in the Indian Union. Hence all the initial recruitments
made to the various State cadres had to be quashed either suo moto by
the Government or got quashed by proceedings in a court of law. It
G may be mentioned here that, in the States with which we are concerned here, the position was as follows. In Orissa, a select list of 41
officers was issued in January 1967, which had to be set aside as a
result of the decision in Kraipak. In Uttar Pradesh, 85 persons were
initially recruited to the service and this initial recruitment was held to
be bad, on 11.12.1979, in Jagat Narain v. Union, CMWP 58 of 1968
H following the decision in Kraipak. In Maharashtra, a selection was
K. PRASAD v. U.0.1. [RANGANATHAN, J.]
303
made on 2.6.1967 of 57 persons but this selection was set aside by the
A
High Court following Kraipak .
••
LEGISLATIVE INTERVENTION
8.(a) Rule 4(3A)-The decision in Kraipak having rendered the
B
initial appointment in all the States invalid, the defect had to be cured
and fresh· ·selections had to be made by way of initial recruitment.
Perhaps a second selection could have been made even under general
law by way of implementation of the decision but Government wanted
-~
to make sure and, therefore, it introduced rule 4(3A) in the Recruitmen! Rules.