1. The applicant has filed this O.A. for issuing a direction to the respondents to issue him posting orders forthwith in a cadre post and declare the action of the respondents in not giving the applicant posting orders as violative of Articles 14, 16 and 21 of the Constitution of India and contrary to Rules 6 and 7 of All India Administrative Service (Cadre) Rules, 1954, and also contrary to the judgment of the Hon'ble Supreme Court reported in 1988(7) SLR 697. The applicant has also prayed for a further direction upon the respondents to consider his claim for permanent/long term deputation in inter-cadre transfer to Karnataka State as per the provisions of Indian Administrative Service (Cadre) Rules, 1954, and pass any other order as deemed fit and proper.
2. The brief facts of the case are that the applicant is an IAS Officer of Andhra Pradesh cadre of 1979 batch and belongs to SC Community. It has been stated by the applicant that at the initial stage of his career, he was posted to cadre posts but from 1986 onwards, he has been posted to ex-cadre posts continuously and the applicant was shifted very frequently from one post to another and each time the applicant was shifted, he was asked to wait for duty by the respondents before giving him another posting.
3. The applicant has submitted in the O. A. that in the year 1985, due to a criminal case, he was in police custody for more than 48 hours and as such, the applicant was kept under suspension. The said suspension order was challenged before the High Court of Andhra Pradesh, which case subsequently stood transferred to C.A.T., and it was disposed of vide order dated 28.11.1986, restoring the applicant back to duty.
4. The applicant has reiterated in the O.A. that right from 1986 onwards, he has been posted in ex-cadre posts continuously. The applicant was promoted to Junior Administrative Grade in July, 1988, and to the Selection Grade from 1.1.1993. It is also the submission of the applicant that he was continuously posted in ex-cadre posts for a long time and kept under compulsory wait before each posting and often the applicant was posted to such posts which has a limited currency.
5. The applicant, due to the discriminatory attitude of the respondents 2 and 3, requested them to consider his case for deputation to Central Government under the Central Senior Officers Staff Pattern Scheme or under any other Scheme, inter-state deputation or to transfer him to another State cadre of his choice and also for considering his case for posting him in autonomous Corporation/Government of India Undertakings.
Since the request of the applicant was not considered by the respondents, he filed O.A. No. 332/1993 before this Tribunal, which O.A. was disposed of vide the order dated 23.9.1994, with the following directions: (a) Quashing of impugned order dated 6.2.1993 does not arise in view of what is stated in Para 6 above. As this prayer has become infructuous, the O.A. is dismissed in so far as the said relief is concerned.
(b) Respondent No. 2 is directed to consider the case of the applicant sympathetically as he belongs to SC Community, in accordance with the instructions in regard to posting of IAS Officers in various cadre posts in the State. Respondent No. 2 has to keep in mind the various instructions when the applicant's postings are made in the State Cadre, especially the O.Ms. dated 24.6.1985 and 21.8.1989. Respondent No. 2 has to follow the rules of such postings in the case of the applicant as is done in the cases of similarly situated persons in the IAS Cadre.
(c) Respondents are directed to consider the case of the applicant in regard to his transfer to other State cadre of his choice, or to send him on deputation to Central Government for posting him in any autonomous Corporation/ Government of India Undertaking, as is done in the case of other persons in the cadre of IAS of A.P. cadre, as per extant rules and instructions in regard to such deputations/postings." 6. The applicant has submitted that as he belongs to reserved community, he was subjected to harassment. It is his further submission that persons belonging to reserved category in the IAS Cadre, are being meted out harassment in the hands of unreserved category of IAS Officers. The applicant submits that the Government has issued O.Ms.
dated 24.6.1985 and 21.8.1989. Para 2 of the O.M. dated 24.6.1985, reproduced at Para 7 of the order dated 23.9.1994 in O.A. No. 332/1993, reads as under : It has, however, been pointed out to this Department that the Scheduled Caste and Scheduled Tribe Officers after appointment are subjected to harassment and discrimination on grounds of their social origin. It has been pointed out that SC/ ST Officers are sometimes transferred to far-off places and also placed at insignificant positions. It has also been stated that these officers are not accepted at their places by the concerned superior officers in some cases." 7. The applicant has further submitted that the State Government has filed a review petition seeking review of the order dated 23.9.1994 in O.A. No.332/1993 and the review petition was dismissed. Since the case of the applicant was not considered in spite of the directions of this Tribunal, the applicant filed C.P. No. 30/95 and C.P. No. 45/95. This Tribunal disposed of the contempt petitions vide order dated 11.4.1996 by observing that the applicant was posted as Additional Secretary to Government, Finance & Planning Department and the said post is counted against one of the 28 cadre posts of Addl/Joint/ Deputy Secretaries to Government borne on the IAS Cadre of Andhra Pradesh.
8. The applicant submits that due to strained relations with his wife, she filed a case against the applicant under Section 498-AIPC, numbered as S.C. No. 139/1995 on the file of the 1st Additional Metropolitan Sessions Judge, Hyderabad. The Magistrate found the applicant guilty of the offences under Section 498-A and convicted and sentenced him to undergo imprisonment for a period of six months with a fine of Rs. 1000/- and in default of the same, to undergo simple imprisonment for a period of 2 weeks. The said order was passed on 4.7.1997. Aggrieved by the conviction, the applicant filed Criminal Appeal No. 672/1997, which was allowed by the High Court of Andhra Pradesh vide order dated 27.4.2001, acquitting the applicant from the charges u/s 498-A IPC. It is, therefore, the submission of the applicant in the O.A. that in view of the acquittal orders, he ought to have been given posting orders.
9. Respondent No. 3 issued show-cause notice dated 28.2.2000, stating therein that the Government is proposing to impose the penalty of dismissal from service under Rule 14(1) of All India Service (D&A) Rules, 1969 and asked the applicant to submit his explanation to the show-cause notice. The applicant, in his explanation, categorically brought to the notice of the respondent that the sentence and conviction imposed by the Sessions Court was set aside by the High Court of Andhra Pradesh vide its order dated 27.4.2001. On his acquittal, the applicant made a representation dated 27.4.2001 to the Government of Andhra Pradesh, wherein he requested respondent No. 2 to drop all further proceedings in pursuance of the memo issued on 28.2.2000. Respondent No. 2 thereafter, vide memo dated 26.12.2002, dropped further action against the applicant.
10. Since the respondents, in spite of repeated requests from the applicant, did not consider him for a suitable posting, the applicant filed O.A. No.794 of 2001 before this Tribunal, seeking for a direction to set aside the show cause notice dated 28.2.2000 and also to issue him posting orders in the cadre post of IAS, in the regular line, as he was under compulsory wait for a long period. This Tribunal vide order dated 10.7.2001, disposed of the O.A. with the following order : The application made by the applicant dated 15.5.2001, which is receiving attention of respondent No. 1, is directed to be disposed of within a period of 45 days from the date of receipt of a copy of this order.
The applicant is advised to made a representation to the respondent-authorities, seeking posting orders, which should be considered as per rules, by the respondent-authorities." 11. Pursuant to the order dated 10.7.2001 of this Tribunal, the applicant made a representation on 23.7.2001, requesting respondent No.2 to drop further disciplinary proceedings and to issue suitable posting orders in the regular line in a cadre post. The applicant further submits that he made several representations and in the representation dated 15.10.2001, the applicant had stated that the show cause notice issued to him on 28.2.2000 has become non-est since the High Court has exonerated him of the charges under Section 498-A of IPC in Criminal Appeal No. 672/1997. In spite of the orders of this Tribunal and his various representations, the applicant was still not given the posting orders, He, therefore, filed Contempt Petition No.36/2002 in O.A. No. 794/2001. The said contempt petition was closed vide the order dated 13.6.2002 with the following observations: The ld. Counsel for the respondents submitted before us a copy of memo No. 201/ Spl. A/2000-5, dated 12.6.2002 through which the special Counsel for the State of Andhra Pradesh, Mr. V. V. Anil Kumar has been instructed that the representation of the applicant dated 18.5.2001 and 1.8.2001 be examined by the Government. The applicant has been informed that his request for giving him suitable posting will be considered at the appropriate time, in compliance with the Tribunal's directions dated 10.7.2001 and 23.7.2001 in O.A. No. 794/2001. The Id. Counsel for the applicant has sent a legal notice on 5.3.2002, requesting for implementation of the directions of the Tribunal. In letter dated 26.3.2002, a reply has been given to the said Counsel that the orders of the Tribunal have been implemented by considering the representation of Shri A.P. Rao and that a reply was also sent to Member of Service in memo dated 24.9.2001 with reference to his representation.
In the circumstances, we find no wilful disobedience or default on the part of the respondents. A copy of the memo dated 12.6.2002 which has been produced by Mr. V.V. Anil Kumar, Special Counsel for State of A.P. is taken on record. A copy of the said memo be served on the applicant as well. C.P. is closed accordingly." 12. The applicant submits that Para 8 of the memo No. 201/Spl.A/2000-5 dated 12.6.2002, reads as follows : The representations of Shri A.P. Rao, IAS, dated 18.5.2001 and 1.8.2001 have been examined by the Government, keeping in view the above directions of CAT, Hyderabad Bench. The State Government considered that the conviction and show cause notice are not the reasons for not giving posting to Shri. A.P. Rao, IAS. Since the member of service is being paid the salary every month for the waiting period w.e.f. 1.2.2000 onwards i.e. the date from which he is on compulsory wait for posting, he is not put to any financial loss. It is the prerogative of the Government to give a posting or not to give him a posting, depending on the circumstances of the case and the administrative reasons. In Government Memo No. 201/Spl.
A/ 2000-3 dated 24.9.2001, Shri A.P. Rao was informed that his request for giving him a suitable posting in a regular line will be considered at the appropriate time, in compliance with this Tribunal's directions dated 10.7.2001 and 23.7.2001 in O.A. No. 794/2001." It is, therefore, evident from the above memorandum that posting of an officer is the prerogative of the Government. It is the submission of the applicant that without considering his anxiety and mental agony, he has not been given posting orders since 3 years and 3 months although salary has been paid to him.
13. The applicant submits in the O.A. that respondent No. 3 is constantly giving reply that the case of the applicant will be considered at the "appropriate time". It is the contention of the applicant in this regard that in spite of compulsory wait for a period of 3 years and 3 months, the "appropriate time" has not arrived for giving posting orders to the applicant. What is the "appropriate time" has not been defined either in the All India Officers Service Rules or Service Jurisprudence. The applicant has also submitted that keeping an IAS Officer idle for such a long duration and simply paying him his salary, is a criminal waste of public exchequer. No provision of law/instructions/guidelines have been mentioned by respondent No. 3 in the order dated 22.4.2003 as to from which source the respondents are drawing the power of withholding posting to an IAS Officer for the last 3 years and 3 months. This unchecked and uncontrolled exercise of power is not allowed in a country where there is a rule of law.
14. The applicant has relied upon a decision of the Hon'ble Supreme Court in the case of P.K. Chinnaswamy v. Govt. of Tamilnadu, 1989(1) SLWR 177 (SC), where the Apex Court has considered the issue of not giving appropriate posting to a public servant. The Apex Court held that public services are to be treated properly and public servants be given appropriate posting and be assigned normal official work. To keep an officer against a post but providing him no work and yet pay him out of the consolidated fund of the State is not proper and just.
15. The applicant thus submits that the action of the respondents in not giving him posting and paying him his salary without allotting work is contrary to the judgment of the Hon'ble Supreme Court. He states that the respondents have not informed him under what provision of law, he is being denied posting. There is no provision under All India Services (AIS) Act and the Rules to keep an officer without posting and waste public funds by paying salary without providing any duty to him.
16. It is the case of the applicant that for the reasons best known to the respondents, the State Govt. is denying posting orders to the applicant as a matter of punishment, without following the principles of natural justice, equity and fair play, which is contrary to the All India Services (Discipline & Appeal) Rules, 1969. The State Government has no power to wither, add or alter the All India Service Rules and only the Govt. of India is empowered to add or amend the service conditions of All India Service Officers. The applicant has submitted that there is no provision for compulsory wait either under AIS Act or IAS (Pay) Rules, 1951. Para 3 of the circular memo dated 1.1.1997 of the Govt. of Andhra Pradesh itself states that during the periods of waiting for posting orders as "compulsory wait", there is huge burden on State funds, besides the employees are paid full salary without any work during that period. Para 5 of the said circular contemplates re-posting of officers promptly. The applicant has, therefore, submitted that in spite of the said instructions issued by the Government of Andhra Pradesh, the Government of Andhra Pradesh itself is violating the instructions, thereby causing loss to the State exchequer by giving full salary to them without giving them any work.
17. The applicant has submitted at Para 8 of the rejoinder filed by him that he was put under illegal suspension and compulsory wait for almost 11 years out of the past 18 years beginning right from February, 1985 and for the remaining 7 years of service, the applicant has submitted that he was never given single posting in a cadre post which is worth mentioning. In fact, it was because of the case filed by his wife against the applicant for which he was put under suspension. The applicant submits that not being given a single posting in a cadre post worth mentioning, clearly speaks volumes about the high-handed, arbitrary and revengeful attitude of the respondents.
18. The applicant submits that the total number of cadre posts in Andhra Pradesh is fixed as per Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. However, the respondents are keeping the cadre posts vacant or keeping them under in charge arrangement which is contrary to Rules 8 and 9 of Indian Administrative Service (Cadre) Rules, 1954. Rule 9 of the Rules contemplates that the cadre post in the State shall not be filled up with a non-cadre officer, except in the following cases : (a) If there is no suitable cadre officer available for filling of vacancy.
Provided when a suitable cadre officer becomes available, the person who is a non-cadre officer shall be replaced by the cadre officer.
Provided further if it is proposed to continue a person who is non-cadre officer beyond 3 months, the State Government shall obtain the prior approval of the Central Government for such continuation.
(b) If the vacancy is not likely to continue for a period of 3 months, provided if the vacancy exceeds a period of 3 months, the State Government shall obtain prior approval of the Central Government for continuing the person who is a cadre officer beyond a period of 3 months." A plain reading of Rule 9 of the Cadre Rules contemplates that a non-cadre officer cannot be continued in a cadre post for a period exceeding 3 months.
19. The applicant has, at page 16 of the O.A. given an extract of the decision of the Hon'ble Supreme Court in the case of Vineet Narain v.UOI, AIR 1998 SC 889, which is as follows : In view of the problem in the States being even more acute, an elaborately discussed in the report of the National Police Commission (1979), there is urgent need for the State Governments also to set up credible mechanism for selection of the Police Chief in the States. The Central Government must pursue the matters with the State Governments and ensure that a similar mechanism, as indicated above, is set up in each State for the selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police, but also all Police Officers of the rank of Superintendent of Police and above. It is shocking to hear, a matter of common knowledge, that in some States the tenure of a Superintendent of Police is on an average only a few months and transfers are made for whimsical reasons. Apart from demoralising of the Police force, it has also the adverse effect of politicising the personnel. It is, therefore, essential that prompt measures are taken by the Central Government within the ambit of their constitutional powers in the federation to impress upon the State Governments that such a practice is alien to the envisaged Constitutional machinery. The situation described in the National Police Commissioner's Report (1979), was alarming and that it has become much worse now. The desperation of the Union Home Minister in his letters to the State Governments, pleaded before us at the hearing, reveal a distressing situation which must be cured if the rule of law is to prevail. No action within the constitutional scheme found necessary to remedy the situation is too stringent in these circumstances." It is submitted by the applicant that the above judgment equally applies to other All India Services and especially to IAS Officers.
20. In the counter-reply filed by the Union of India, it has been submitted that the prayer of the applicant for permanent/long term deputation or inter-cadre transfer to Karnataka State has no nexus with the grounds taken by him. Applicant's main grievance in this application is that he has not been given posting orders for a period of 3 years and 3 months and while his juniors have been given promotion, he has been denied promotion to the next higher cadre. The applicant has prayed for a direction to the respondents to issue posting orders to him in a cadre post. It is also submitted in the reply filed by the UOI that the second prayer of the applicant is for a direction upon the respondents to consider his claim for permanent/long term deputation or inter-cadre transfer to Karnataka State, as per the provisions of IAS (Cadre) Rules, 1954.
21. It has been submitted in the reply that the second prayer of the applicant for deputation/transfer to Karnataka State is not maintainable for having no nexus with the grievances and hence be deleted/removed/rejected. The alleged grievances of the applicant do not confer any right on the applicant to seek deputation/transfer.
22. It has further been submitted by UOI that in terms of Rule 5 of the IAS (Cadre) Rules, 1954, every cadre officer is allocated to a State Cadre. A cadre officer has to serve the State Government to which he is allocated except for a brief spell for which he is allowed inter-cadre deputation by the Central Government with the concurrence of the concerned State Governments or when on Central deputation.
23. According to the extant policy guidelines, inter-cadre transfers will continue to be permitted for members of the All India Services only on ground of marriage to another member of an All India Service provided that the officer being transferred does not get allocated to his/her home State in the process.
24. Further, in the counter-reply filed by UOI, received from the Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi, it has been mentioned that the applicant was willing to go no long-term interstate deputation to Karnataka for a period of 3 to 5 years. The applicant, therefore, requested consideration for long term inter-state deputation to Karnataka. His request was examined in the office of the first respondent and it was found not possible to accede to his request. The decision was accordingly communicated to the Govt. of Andhra Pradesh, which in turn vide the letter dated 16.4.2003, communicated the decision to the applicant.
25. It is the submission of UOI that a member of All India Service has no legal right enforceable by the Court of law to seek transfer/deputation to a cadre.
26. In Special Leave to Appeal (C) No. 10869/2001, Dinesh Kumar Upadhyaya v. UOI and Ors., it has been held by the Hon'ble Supreme Court that -"it is well settled that a Government employee, may be the highest officer, has no right to be posted at a place of his choice. It is for the department to transfer an employee and post him at an appropriate place in accordance with rules or the set guidelines." It is thus clear that a selected candidate has a right to be considered for appointment to the IAS but he has no such right to be allocated to a cadre of his choice or to his home State. Allotment of cadre is an incidence of service. A member of an All India Service bears liability to serve in any part of India.
27. In the case of Mallikarjuna Rao and Ors. v. State of Andhra Pradesh, 1990(2) SCC 707, it has been held by the Hon'ble Supreme Court as under : 10.....It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. Imagine the executive advising the judiciary in respect of its power of judicial review under the Constitution. We are bound to react scowlingly to any such advice." 28. It has been stated in the reply that the High Courts or the Administrative Tribunals cannot issue a mandate to State Governments to legislate under Article 309 of the Constitution of India. The Courts cannot unsurp the functions assigned to the executives under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner.
29. In the reply filed by the Govt. of Andhra Pradesh, it has been stated that the applicant had come to an adverse notice of the Government on several counts, not because of his position as an officer belonging to S.C. Community but because of his personal conduct and attitude in all such counts. The respondents submit that the grievance of the applicant all through commencing from the O. A. has been that he has been discriminated in the past and was denied posting in a cadre post.
30. The respondents state that the applicant has submitted that he desires to work in a post in the regular line such as District Collector etc., of which he has had no opportunity so far and now being posted in Planning Division, he will not get such an opportunity. It is the submission of the Govt. of Andhra Pradesh that while the expectation of the applicant may be legitimate, it is not for them to enter into the question as to where the posting should be given to an officer which is a matter entirely within the administrative powers of the Govt. to consider the desire of the applicant whenever feasible.
31. It is further submitted in the reply that the conviction and show-cause notice are not the reasons for not giving posting to the applicant. Since the applicant is being paid salary every month for the waiting period, he is not put to any financial hardship. It is also submitted that there are many charges pending, besides several complaints and petitioners, both connected with his official and private affairs. Keeping all the circumstances in view, the Government has decided to consider his posting at an appropriate time.
32. In regard to the applicant's request to consider recommending his name for inter-cadre deputation to Karnataka, the State of Andhra Pradesh had conveyed its no objection but the concerned State Government did not accept the applicant.
33. With regard to the contention of the applicant that the Government is denying posting orders to him as a matter of punishment without following the principles of natural justice, equity and fair play, which is contrary to the AIS (Discipline and Appeal) Rules, 1968, the respondents submit that it is just an allegation and not based on any substantial evidence.
34. Before concluding his arguments, the ld. Counsel for the applicant has cited before us a recent decision of the Punjab & Haryana High Court in C.W.P. No. 8145 CAT of 2003 decided on 1.12.2003 in the case of State of Haryana v. Anil Kumar, IAS and Ors. The facts of the case before us are almost the same as in the case before the Punjab & Haryana High Court. In that case, their Lordships have held that : We are of the considered opinion that it is incumbent on the State of Haryana to consider the claim of respondent No. 1 against a cadre post. Non-consideration of the case of respondent No. 1 would be violative of Rules 8 and 9 of the cadre rules. The Central Administrative Tribunal has rightly relied on the ratio of law laid down by the Supreme Court in the case of Union of India and Ors. v. S.L. Abbas, JT 1993(3) SC 678=1993(2) SLR 497 (SC) to come to the conclusion that the posting of respondent No. 1 as Principal Director being violative of statutory service rules, was liable to be quashed." 7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it....." Within the aforesaid narrow confines, the Central Administrative Tribunal has correctly held that the orders passed by the State of Haryana are contrary to the rule and that respondent No. 1 is entitled to be considered for posting against the cadre post." Their Lordships have also mentioned in the above judgment that CAT correctly held that orders passed by the State of Haryana are contrary to the rules and that respondent No. 1 is entitled to be considered for posting against the cadre post.
It has been further stated by their Lordships in the above decision that CAT has correctly interpreted the provisions of Rules 8 and 9 of the Cadre Rules. Rules 6, 8 and 9 of the Cadre Rules have been reproduced as under in the above decision, for ready reference: (1) A cadre officer may, with concurrence of the State Government or the State Governments concerned and the Central Government, be deputed for service under the Central Government or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or by another State Government.
Provided that in case of any disagreement, the matter shall be decided by the Central Government and the State Government or State Governments concerned shall give effect to the decision of the Central Government.
(i) a company, association or body of individual, whether incorporated or not, which is wholly or substantially owned or controlled by a State Government, a Municipal Corporation or a Local Body, by the State Government, or a private body, by the Central Government in consultation with the State Government on whose cadre he is borne : Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in item (ii), except with his consent; Provided further that no cadre officer shall be deputed under Sub-rule (1) or Sub-rule (2) to a post (other than a post under the Central Government or under a company, association or body of individuals owned or controlled by the Central Govt.) carrying a prescribed pay which is less than, or pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for his deputation.
(1) Save as otherwise provided in the rules, every cadre post shall be filled by a cadre officer.
(2) A cadre officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under item 5 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955.
Rule 9. Temporary appointment of non-cadre officers to the cadre posts.
A cadre post in a State shall not be filled by a person who is not a cadre officer except in the following cases, namely : (a) If there is not suitable cadre officer available for filling the vacancy; Provided that when a suitable officer becomes available, the person who is not a cadre officer, shall be replaced by the cadre officer.
Provided further that if it is proposed to continue the person who is not a cadre officer beyond a period of three months, the State Government shall obtain the prior approval of the Central Government for such continuance; (b) If the vacancy is not likely to last for more than three months, the State Government shall obtain the prior approval of the Central Government for continuing the person who is not a cadre officer; beyond the period of three months." A perusal of the aforesaid rules would clearly show that Rule 6 deals with deputation of cadre officers. Under Rule 6(2) (i), Cadre Officer can be deputed for service in Company, Association or body of individuals, provided the Company, Association or body of individual is controlled by the State Government. Therefore, the State Government would be entitled to post a Cadre Officer as Principal Director, HIRMI. However, while exercising the discretion under Rule 6(2), the provisions of Rule 8 and Rule 9 cannot be totally ignored. It is to be noticed that Rule 8 is worded in mandatory terms and provides that every cadre post shall be filled by a Cadre Officer. Therefore, in normal circumstances, a Cadre Officer would be entitled to be posted on a cadre post. Rule 8(2) only lays out an outer limit on the exercise of the power of the State to post the Officers on ex-cadre posts. It provides that the State Government cannot post cadre officers on ex-cadre posts. It provides that the State Government cannot post cadre officers on ex-cadre posts in excess of number specified for the concerned State under Item 5 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. It is not a mandate of the State to post cadre Officer on ex-cadre posts equal to the numbers specified under Item 5 of the Schedule. It only provides the maximum number of cadre officers that can be posted against ex-cadre posts.
After considering all facts of the case, their Lordships of the Punjab & Haryana High Court did not find any merit in the writ petition filed by the State of Haryana and the same was dismissed.
35. We have considered all facts of the case, the documents placed before us and the arguments put forth by the ld. Counsel for the applicant and the ld. Counsel for the respondents.
36. From the facts of the case it is seen that the applicant, in the year 1985, due to a criminal case, was put under police custody for more than 48 hours. The applicant was thereafter placed under suspension and the suspension order was challenged by him in the High Court of Andhra Pradesh, which case was subsequently transferred to CAT and it was disposed of vide order dated 28.11.1986, restoring the applicant back to duty. It is also a fact on record, which has not been disputed by the respondents, that right from 1986 onwards, the applicant has been posted continuously in ex-cadre posts and often the applicant was posted to such posts which has a limited currency and also before each posting, he was kept under compulsory wait. Due to the discriminatory attitude of the respondents, the applicant requested them to consider his case for deputation to Central Government under the Central Senior Officers Staff Pattern Scheme" or under any other Scheme, inter-state deputation or to transfer him to another State cadre of his choice and also for considering his case for posting him in autonomous Corporation/Government of India Undertakings. However, his request was not considered favourably by the Central Government since the above postings are done at the level of the Central Government.
37. With regard to certain complaints and vigilance charges pending against the applicant, we, after going through the same, find that they are on frivolous nature such as 'not punching time in and time out' while working as Additional Secretary to Government, Planning Department, misuse of official letter head and other irregularities, wilful absence from duty without sanction of leave, etc., and the same should not and cannot be a ground for denying a cadre posting to the applicant. If the complaints and vigilance charges against the applicant are found to be serious in nature, the respondent-authorities are fully empowered to take disciplinary action against the applicant which can go even to the extent of suspending the applicant from service, after holding an inquiry upon appointing an Inquiry Officer.
Since that does not appear to be the case in respect to the applicant, let the frivolous inquiries and complaints pending against the applicant be decided by the respondents in due course.
38. Meanwhile, we are of the view that the applicant is entitled for a cadre posting, which has been denied to the applicant all through his service. Besides, we find strength in the applicant's contention that keeping him idle for such a long period and paying him the salary, is a criminal waste of public exchequer. Although giving a posting to an officer is the prerogative of the Government, yet without considering the anxiety and mental agony of the applicant, the Government has not given him a posting for over three years for the present.
39. The ld. Counsel for the respondents had mentioned that as per the direction of this Tribunal dated 6.5.2003 in O.A. 492 of 2003, wherein directions were given to the respondents to issue suitable posting to the applicant, the respondents had given the applicant the posting of State Editor Dist. Gazetteers which, however the applicant has not joined as it was not a cadre posting and this post has been recommended for abolition by the staff review committee headed by Shri J.M.Girglani, IAS (Retd.). Subsequently, the implementation committee headed by Shri S.K. Arora, IAS, Principal Secretary Finance, has also recommended for the abolition of the post of State Editor, Dist.
Gazetteers, along with 10 other posts, in the meeting held on 14.9.2001.
40. He also find strength in the argument of the applicant that by not giving him a cadre posting, for which the applicant is entitled, the Government has caused him untold harassment, humiliation in society and mental agony. The applicant has described his plight and sufferings at page 7 of his rejoinder, in the following words : I did not get selected for the IAS only with a view to sit idle at home and receive the salary. I have got a right to be posted in a cadre post and also have a right to live with dignity and honour. It is not the question of financial hardship but the question of stigma in the society and in the friends circle and the insult and humiliation which I am subjected to among the family members and relatives." 41. While following the verdict of the Punjab & Haryana High Court in a similar case of Shri Anil Kumar, an IAS Officer, (C.W.P. No. 8145 CAT of 2003), we hold that it is incumbent on the State of Andhra Pradesh to consider the claim of the applicant for a cadre posting, as non-consideration of the same would be violative of Rules 8 and 9 of the cadre rules.
42. The ld. Counsel for the respondents, during the hearing, has stated before us that as promised by the respondents, the applicant shall be given a proper posting at an "appropriate time" However, when is that "appropriate time", could not be defined by the ld. Counsel for the respondents. The applicant has already waited for more than three years for the "appropriate time" to come and for the Government to give him a suitable cadre posting, but it appears that the "appropriate time" has not come so far in the case of the applicant.
43. Although who should be transferred where is a matter for the appropriate authority to decide and unless the order of posting is vitiated by mala fide or has been made in violation of statutory provisions, this Tribunal cannot interfere with the same.
44. In the end, even at the cost of repetition, we would like to mention certain important points in this case which need to be looked into be the respondent-authorities.
(i) Interim orders were passed by this Tribunal on 6.5.2003, directing the respondents to post the applicant in a cadre post, but the applicant was not given any posting for more than a year. On 6.6.2004, the applicant was posted as State Editor, District Gazetteers Department in an ex-cadre post, which has been recommended for abolition by the Staff Review Committee and Implementation Committee about 2 years back.
(ii) When the applicant represented to the Chief Secretary i.e.
respondent No. 2, for issue of suitable posting orders in a cadre post on 15.6.2004, a GO was issued by respondent No. 3 on 23.6.2004, equating the post of State Editor to that of a cadre post under Rule 9 of IAS (Pay) Rules, which is in violation of the service rules, as an ex-cadre post cannot be converted or equated to a cadre post without the prior approval from the Govt. of India u/r 8 of the All India Service Rules.
(iii) From the facts it is quite evident that the applicant was subjected to a lot of suffering, hardship, insult and humiliation by continuously posting him in ex-cadre posts for the past 20 years, right from 1985, and his career has suffered due to the action of the State Government, for no fault of his own.
(iv) Respondent Nos. 2 and 3 never bothered to rectify the situation and do justice to the applicant, in spite of the applicant making several representations, and the said respondents have deliberately flouted the orders passed by this Tribunal, thereby committing contempt of Court. The respondents, instead of doing justice to the applicant by posting him in a cadre post, as directed by this Tribunal, have transferred the applicant from the Planning Department, without issuing him any posting orders, in the last week of January, 2000 and the applicant was asked to get relieved from that post by 31.1.2000. Thereafter, the applicant has been put under unprecedented compulsory wait for more than four and half years, right from 1.2.2000 and was again posted in an ex-cadre post, which was recommended for abolition, in spite of the specific directions issued by this Tribunal.
(v) The respondents have initiated enquiries into very small, petty and trivial matters against the applicant in the year 1993 and these have been kept pending for more than a decade and the applicant has been denied postings in the regular line, leading to future denial of promotions as Secretary and Principal Secretary. Had the respondents desired, the above mentioned enquiries could have been completed within one or two years.
(vi) If anything is proved against the applicant, the respondents can always initiate necessary action against him, at an appropriate time. But there is no justification in keeping the applicant under unprecedented compulsory wait for more than four and half years and again post him in an ex-cadre post, which was recommended for abolition, especially after subjecting the applicant to a lot of discrimination, mental agony, suffering and hardship for more than 20 years.
45. However, within the narrow parameters, as mentioned in Para 43 above, and also looking to the very minor and trivial matters of vigilance cases initiated and still pending against the applicant, so long as he continue in service, any order issued by the State Government of Andhra Pradesh, posting the applicant to a non-cadre post, is contrary to the rules and, therefore, we hold that the applicant is entitled for a posting in a regular cadre post.
46. The respondent-authorities are accordingly directed to post the applicant against a regular cadre post. This should be done within a period of six weeks from this date i.e. the date of pronouncement of this judgment. Further, we also direct respondent No. 1 to consider the case of the applicant for Central deputation/ Inter-State deputation during this year, as the applicant has already been subjected to enough suffering and hardship for the past 20 years by respondents 2 and 3 represented by the State Govt.
47. The O.A. is allowed with the above directions. In the result, C.P.No. 93/2003 also stands disposed of. '