PREM KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The formation of a goint Cadre exclusively for the Union Territories in the Indian Administrative Service (hereinafter referred to as 'the IAS') by the Union of India (Respondent No. 1) and the appointment of respondents 2 to 37 to it have been challenged as unconstitutional and illegal in this batch of writ petitions. It is necessary to know, therefore, the Constitutional and legal provsions under which the Cadre was formed and the appointments to it were made.

(2.) As decided in 1946 by the Conference of the Premiers' of the Provinces and the Central Home Minister, the Indian Administrative Service (and the Indian Police Serice) were constituted as All India Services common to the States and Union. For the creation of other All India Services common to the Union and the States, the consent of the states was similarly required by Article 312 (1) in the form of a resolution of the Counsil of States supported by not less than 2/3rd of the members present and voting in the same way that the consent of the Premiers of the Provinces was necessary for the creation of the Indian Administrative Service before the commencement of the Constitution. Article 312(2) declared that the IAS, though created prior to the Constitution, was to be deemed to be a service common to the Union and the States created by Parliament under Article 312(1). The All India Services Act, 1951 (hereinafter called 'the Act of 1951') being by its preamble and "Act to regulate the recruitment and conditions of service of persons appointed to the All India Services common to the Union and the States" was, therefore, enacted by Parliament in exercise of the authority given to it by Article 312(1) and not under Chapter I of Part XI of the Constitution read with Item 97 of the Union list of the VII Schedule of the Constitution. Section 3 of the Act of 1951 empowers the Central Government "after consultation with the Governments of the State concerned" to mae rules for the regulation and recruitment and condtions of service of persons appointed to the All India Service. The Indian Administrative Service Cadre Rules, 1954 (hereinafter called 'the Cadre Rules') and the Indian Admini strative Service (Recruitment) Rules, 1954 (hereinafter called 'the Recruitment Rules') are made thereunder. The I AS was divided under these Rules into several Cadres, each Cadre for a Part A or Part B State as they were listed in the I Schedule of the Constitution at its commencement. There could not be any Cadre for such Part C States as were the successors of the preconstitution Chief Commissioners Provinces in as much as these States were governed by the President. Part C States were "States" only in the territorial sense as a part of the territory of India was comprised in them. But they were not States in the sense of being legal entities as they had no internally soverign Executive or Legislature created by the Constitution. The Constitution (VII Amendment) Act, 1956 more clearly brought out the distinction between Part A and Part B States on the one hand and Part C States on the other by substituting "States" simliciter in place of Part A and Part B States and "Union Territories" in place of Part C State. Like the Part C States the Union Territories also did not have a Cadre of the Indian Administrative Service for themselves. The Adaptation of Laws Order, 1956 made by the President under Article 372-A of the Constitution to bring the various statutes into accord with the amended Constitution substituted the existing clause (b) in section 3(58) of the General Clauses Act to indicate that as respects any period after the commencement of the Constitution (VII Amendment) Act, 1956 the word "States" used in Statutes would include Union Territories. This new definition of State was inserted in Rule 2 of the Cadre Rules and the Recruitment Rules. Acting upon this definition, clause (5) was inserted in 1959 to the Recruitment Rule 4 to enable the Central Government to form a new Cadre for the Union Territories of Delhi and Himachal Pradesh and to make recruitment to the said Joint Cadre directly, that is to say without making recuirtment to the Indian Administrative Service under Rule 4 (1) of the Recruitment Rules and then allocating the Officers of the Service to the State Cadres under Rule 5 of the Cadre Rules at its initial constitution by such method as the Central Government may prescribe after consultation with the Union Public Service Commission (but not with the State Government in as much as the Union Territories were not States) on 21-12-1967, sub-rule (5) of Rule 4 of the Recruitment Rules was further amended by the substitution of the Joint Cadre for all the Union Territories and the North East Frontier Agency in place of the Joint Cadre of the Delhi and Himachal Pradesh and the Central Government formulated a scheme (annexure I to the Writ petition) to extend the Delhi-Himachal Pradesh Cadre to include all Union Territories by absorbing into it the existing officers of the Delhi-Himachal Pradesh Cadre and by appointing to it Officers of the Indian Frontier Administrative Service and all other Union Territories at its initial Constitution. This joint cadre for all Union Territories was brought into effect from 1-1-1968 by GSR42 made under Rule 3 (1) of the Cadre Rules and consequential amendments were made in the relevant Indian Administrative Service Rules by GSR 43 to BSR 49, all being published in the Gazettee of India dated 13-1-1968 at page 41 of the paper-book. Respondents 2 to 37 are the Officers selected from the Indian Frontier Administrative Service for appointment to these new Joint Cadre for Union Territories at its initial constitution.

(3.) The peititioners have challenged the creation of the new Joint Cadre for all Union Territories and appointment of respondents 2 to 37 to it on several ground, but the learned counsel for the petitioners ShriR.K.Garg, mainly stressed only the following contentions: