T.C. Raghavan, J.
1. By Ex. P-2 dated 10th July 1968 the State Government, the first respondent, promoted and appointed the fourth respondent as Conservator of Forests on Rs. 1000-1300 in the newly Created Working Plan and Research Circle provisionally pending selection of a suitable officer by the Departmental Promotion Committee. The fourth respondent was a Deputy Conservator of Forests. The petitioner, another Deputy Conservator of Forests who is senior to the fourth respondent and who has also been selected for IFS, impugns the said order in this writ petition. The second respondent is the Union of India and the third respondent the Chief Conservator of Forests.
2. Before the formation of IFS in 1966, the petitioner, three others and the fourth respondent were all in the State Forest Service as Deputy Conservators of Forests. On the formation of IFS, a selection was made for IFS, wherein the petitioner and the three others were selected and the fourth respondent was not selected. The fourth respondent was also dismissed from service once by the State Government, but, the dismissal wasaltered Into removal from service. Subsequently, since this Court opined that the punishment inflicted on him was too severe, the Government reconsidered the matter and modified the punishment into one of reduction in rank by two places. The petitioner alleges that the State Government has no power to create another post of Conservator of Forests ex-cadre; and that even it the State has such power, the fourth respondent should not have been posted to the same, but the petitioner 'should have been posted, since his lien in the State Service has not been cut by approving his probation in IFS.
3. At the time of the formation of IFS. there were five posts of Conservators of Forests in Kerala; and the number was reduced to four. Three of these posts were made cadre posts under the Indian Forest Service (Fixation of Cadre Strength) Regulations of 1966 leaving the fourth one alone with the incumbent thereof. The stand of the State Government is that they have power to appoint Conservators of Forests outside the cadre strength of three for IFS. Their claim is that the fourth place existing at the time of the formation of IFS and the present post created bv them are ex-cadre posts and State Service personnel may be promoted to those posts.
4. Under the All India Services Act of 1951, the Indian Forest Service (Cadre) Rules of 1966 were promulgated by the Central Government. Under Rule 3 the IFS cadre was established for the State of Kerala; and taking power under Rule 4 the strength and composition of the cadre were also fixed under the Indian Forest Service (Fixation of Cadre Strength) Regulations of 1966 as below;
Chief Conservator of Forests. 1Conservators of Forests. 3Deputy Conservators of Forests. 15
The other posts we are not concerned with,
5. The first question to be considered Is whether the State Government can create a post of Conservator of Forests ex-cadre. The power to constitute all India services like IFS is drawn from Article 312 of the Constitution, which states that if, the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do. Parliament may by law provide for the creation of one or more all-India services, etc. IAS and IPS were already all-India services in 1947; and in 1951 the All-India Services Act was passed providing that, with effect from such date as the Central Government may by notification appoint, there shall be constituted the following all-India services:
The Indian Service of Engineers; The Indian Forest Service; and The Indian Medical and Health Service.
6. By virtue of this Act the Indian Forest Service (Cadre) Rules of 1966 were promulgated and also the Indian Forest Service (Fixation of Cadre Strength) Regulations of 1966. Under the latter Regulations the strength of the IFS cadre for Kerala was fixed in the Schedule annexed to the Regulations at 19 senior posts under the State Government as already indicated and two senior posts under the Central Government. At that time there were five Conservators of Forests in Kerala, of which three were made cadre posts, one was abolished and the fourth, which was already manned by a State Service Officer, was also retained. Now, the Government have passed Ex. P-2 creating a fifth post of Conservator of Forests and appointed the fourth respondent to that post claiming that the fourth respondent is the seniormost Deputy Conservator of Forests in the State Service.
7. The strength of the cadre of IFS Is to be fixed under Sub-rule (1) of rule 4 of the Cadre Rules by the Central Government in consultation with the State Government; and Sub-rule (2) of the same rule provides that the Central Government shall, at the interval of every three years, re-examine the strength and composition of each such cadre in consultation with the State Government and may make such alterations therein as they deem fit. The first proviso to Sub-rule (2) lays down that the Central Government's power to alter the strength and composition of any cadre at any other time is not affected. The second proviso then says that the State Government may add for a period of not exceeding one year and with the approval of the Central Government for a further period not exceeding two years to the cadre one or more posts carrying duties and responsibilities of a like nature. Rule 8 lays down that every cadre post shall be filled by a cadre officer; and rule 9 provides for temporary appointment of non-cadre officers to cadre posts. Sub-rule (1) of rule 9 provides that the State Government may fill a cadre post by a non-cadre officer, if the vacancy is not likely to last for more than three months or if there is no suitable cadre officer available. Sub-rules (2). (3) and (4) provide the procedure the State Government and the Central Government have to follow in such cases.
8. The question whether the State Government has power to create non-cadre posts in IFS similar to the cadre posts has not been considered so far by the Central Government nor have they Issued any instructions on the matter.Such a question appears to have arisen in the case of IAS/IPS, the two all-India services which were in existence in 1947. At pages 16-17 of the All-India Services Manual corrected upto 1st May 1967 appear the instructions of the Government of India on this matter. Instruction 1.2 at p. 17 states that at the time of the constitution of IAS/IPS in 1947, it was decided to include the following categories of posts in the IAS cadre:
(a) All superior posts in the administrative departments of and above the rank of District Officers, i.e. Collectors, Commissioners, Members, Board of Revenue, Secretaries, Deputy Secretaries, etc. (We are not concerned with the rest). Therefore, it is clear that in the case of IAS and IPS, all superior posts of and above the rank of District Officers were included in the all-India cadre. I do not think that in the case of IFS the intention could have been different, namely, not to bring into the all-India cadre all superior posts. What was done in the schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations when it stated that the senior posts under the State Government like Chief Conservator of Forests, Conservators of Forests, Deputy Conservators of Forests (fixing the number at 19) to be cadre posts must also be the same. The intention appears to be clear (this is clear from Article 312 of the Constitution as well) that the constitution of the all-India services was in the national interest and for bringing about a more efficient service. If the contention of the State is accepted, it is quite likely that there will be parallel services of the State cadre and the all-India cadre having the same functions. This does not appear to be the intention of the legislature, nor the intention of Article 312 of the Constitution.
9. It is urged by the Government Pleader that the fact that at the time of the constitution of IFS there were four Conservators of Forests in Kerala of which three alone were included in the cadre shows that the fourth place of Conservator and more of them if created later must be ex-cadre. In other words, the argument is that all the posts of Conservators of Forests were not intended to be included in the all-India cadre. This argument may, at the first blush, appear to have some force, but on closer scrutiny, it will appear to have no force. At the time of the formation of the all-India service, there were five posts of Conservators of Forests and four of them were manned. The fifth was abolished: and it was only to provide for the fourth incumbent who was already there and who was not selected to IFS that the fourth place was retained, though the strength of the cadre of Conservators of Forestsin IFS was fixed at three. After the then-incumbent in the fourth post retires, the question will probably have to be taken up by the Central Government under their powers to review the position once in three years or earlier and the question will then have to be decided whether a fourth place is necessary or not. This is thus no reason for holding that the State can create more posts of Conservators ex-cadre.
10. The next argument Is that even it the State had the power to create such a post of Conservator ex-cadre, the posting of the fourth respondent to the new post should not have been done. Ex. P-2 says that a temporary non-cadre post of Conservator of Forests on Rs. 1000-1300 for the newly created Working Plan and Research Circle is created. The order states further that the fourth respondent, who is the seniormost Deputy Conservator of Forests among the State Forest Service Officers, is provisionally promoted as Conservator of Forests pending selection of a suitable officer by the Departmental Promotion Committee 'in case the Government decide to fill up the post by a non-IFS Officer.' The next sentence in Ex. P-2 may also be noted, which, according to me, shows the purpose of Ex. P-2:
'Government have decided that the two posts of Conservators of Forests will be reserved to be filled up by State Service personnel'.
This shows that the State Government's attempt is to see whether the Government can create a service parallel to that of IFS: and if Ex. P-2 is upheld, the position will be that there will hereafter be three IFS Conservators of Forests and two non-IFS Conservators. The argument of the counsel of the petitioner is that the petitioner's lien in the State Service has not yet been severed though he has completed his probation successfully. The State Government has recommended his confirmation in IFS, but his confirmation has not yet been made by the Central Government. Under rule 8 of Part II of the Kerala State and Subordinate Service Rules of 1958, absence of a member of a service from duty whether on leave, on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn, inter alia, for promotion from a lower to a higher category in such service. Therefore, as long as the petitioner is not confirmed in IFS, his claim to promotion has to be considered before another person like the fourth respondent, who is junior to him, is considered. Ex. P-2 has not considered the claim of the petitioner. It is stated thatthe fourth respondent is the seniormost in the State Forest Service, which cannot be correct in view of the fact that the petitioner is not yet confirmed in IFS.
11. The petitioner's counsel further points out that if Ex. P-2 is allowed to stand, the petitioner will be prejudiced in another manner. Under rules 8 and 9 of the Indian Forest Service (Recruitment) Rules of 1966, a third of the number of senior duty posts borne on the cedre has to be filled up by promotion from the State Forest Service. The petitioner's counsel points out that if the fourth respondent is appointed Conservator of Forests before the petitioner is appointed and if he gets his chance to be promoted under the promotion quota to IFS, the fourth respondent might claim seniority over the petitioner. The possibility cannot also be ruled out.
12. It is urged by Mr. G, Viswanatha Iyer, the counsel of the fourth respondent, as well as the Government Pleader that if the petitioner was appointed to the newly created post the moment his confirmation in IFS is approved, he may have to leave the post and that may seriously affect the work in the new post. It is also argued that the creation of the present post is only temporary and the posting of an officer of the State Service to a temporary post does not give him any claim prejudicial to the claim of the petitioner. Firstly, Ex. P-2 does not Indicate for what period the temporary post Is created or is likely to continue. Secondly, it does not indicate that the reason for not appointing the petitioner to the new post is the one suggested by Mr. Viswanatha Iyer and the Government Pleader. Ex. P-2 proceeds on the ground that the post created is ex-cadre and only those who are members of the State Service can be posted there. This, as I have already indicated, is not justified. The fourth respondent does not appear to have any special qualification better than or superior to that of the petitioner. It may even be that he is inferior.
13. For the above reasons, the State Government should not have created an ex-cadre post like this and should not have also appointed the fourth respondent to the post without considering the claims of the petitioner. The writ petition is allowed and Ex. P-2 is quashed. However, I pass no order regarding costs.