PREM KUMAR v. UNION OF INDIA — 1969 DIGILAW 172 (DEL)

Deshpande, J. ( 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 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. 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. ( 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: (1) The formation of the new Joint Cadre exclusively for the Union Territories and the appointment of respondents 2 to 37 to it was bad for the following reasons: (A) as being contrary to Article 312 of the Constitution and the Act of 1951 as it was not "common to the Union and the States", a Union Territory not being a "state"; (B) as the Union Territories were not States Sub-Rule (5) of Rule 4 of the Recruitment Rules could not have been made after consultation with the Government ernments of the States concerned as required by section 3 of the Act of 1951 and was, therefore, ultra vires; (C) recruitment of respondents 2 to 37 to the Joint Union Territories Cadre was contrary to section 3 of the Act of 1951 and Rule 5 of the Cadre Rules requiring the appointment to be made first to the IAS after which Officers are allocated to various cadres. (2) The petitioners having been recruited to the Indian Administrative Service and later allocated to the Delhi Himachal Pradesh Cadre had the necessary locus standi to challenge the formation of the Union Territories Cadre and the appointment of responndents 2 to 37 to it. The writ petitions were defended by the union of India, but not by respondents 2 to 37, The above objections were answered by the learned counsel for respondent No. 1, Dr. L. M. Singhvi, as follow: (1) (a) Under Article 312 only the Service as a whole, but not each Cadre of it was to be common to the Union and the States. L. M. Singhvi, as follow: (1) (a) Under Article 312 only the Service as a whole, but not each Cadre of it was to be common to the Union and the States. Alternatively, the Union Territories Cadre is common to the Union and the States either because the conditions of recruitment and service of the Officers appointed to the Union Territories Cadre are the same as those governing other members of theService allocated to other State Cadre; or because the Union Territories are States; (B) The requirement of section 3 of the Act of 1951 for consultation with the State Government is directory and no mandatory; (C) Sub-rule (5) of Rule 4 of the Recruitment Rules authorises the Central Government to recruit persons directly to the Union Territories Cadre at its initial constitution while the subsequent recruitment is to be made to the Service after which Officers may be allocated to this Cadre. (2) The petitioners have no locus standi to challenge the formation of Union Territories Cadre which is only an extension of the Delhi Himachal Pradesh Cadre, in which the petitioners have served for a long time after being allocated to it. The petitioners cannot challenge the appointments of respondents 2 to 37 as the petitioners are in no way affected by these appointments. (1) (a) The first question is whether the Union Territories Cadre was an "all India Service" common to the Union and the "states" within the meaning of Article 312 (1) of the Constitution. A "service" has two elements. It is a body of persons, and it performs certain functions. Both these elements of the Service have to be "common to the Union and the States". The body of Officers forming the Service must have a mobility. For, most of the time they serve a "state". But for some time they also serve the Union. The Officers of the Union Territories Cadre, would serve either in the Union Territories or in the Central Secretariat. If both times they are in the Central Government, then they do not have mobility of moving from a State to the Central Government, and vice versa. Further the Officers of the Union Territories Cadre will not be actually working and discharging functions by rotation under the State and the Central Government, but will be working all the time under the Central Government. Further the Officers of the Union Territories Cadre will not be actually working and discharging functions by rotation under the State and the Central Government, but will be working all the time under the Central Government. The Union Territories Cadre, therefore, is not a Service which can be said to be common to the Union and the States either in respect of its personnel or in respect of work done by it. ( 4 ) DR. Singhvi urged, however, that it is the Service as a whole, which alone has to be common to the States and the Union, each Cadre of such Service need not be so common. The answer to this argument is that the Service consits only of Cadres. Without Cadres it would have no existence. If the requirement of commonness were to be dispensed with in respect of each Cadre of the Service, then a common Service would cease to exist as recognised in the observation of the Supreme Court in Debeshch- andra Dass v. Union of India (1) in paragraph (10) of the judgement that the Cadres of the Indian Administrative Service are to be found in the States only. There is no Cadre in the Government of India. Rule 6 of the Cadres Rules provides for the deputation of Officers of State Cadres for service under the Central Government or in the State Government. If a Cadre is not to be common to the Union and the States, then the Union would not get any officers from the deputation reserves from the State Cadres and the superior posts under it would remain unmanned. The States would have with them a surplus of officers as the strength of the Cadre of each State including a number of deputation reserves officers, who are surplus to the needs of the States, but are appointed to man the Central Government posts. Mobility of the officers of one Cadre to another State Cadre is only provid- ed for by Rule 6 for some exceptional cases. But, as a rule members of one State Cadre are not deputed to another State Cadre. ( 5 ) THE makers of the Constitution who used the words "common to the Unions and the States" in Article 312 were aware of the preexisting IAS and also its predecessor the Indian Civil Service. But, as a rule members of one State Cadre are not deputed to another State Cadre. ( 5 ) THE makers of the Constitution who used the words "common to the Unions and the States" in Article 312 were aware of the preexisting IAS and also its predecessor the Indian Civil Service. In both of them the commonness consisted in the fact that Officers of State Cadres use to go on deputation to the Central Government. They may, thus, be presumed to have the same commonness in mind in using the above words while enacting Article 312. Further Article 312 (2) shows that Article 312 (1) essentially continued the same system of commonness as obtained in the preexisting IAS. This is why the Indian Administrative Service was deemed to have been created under Article 312 (1 ). This accords with the established rule of construction of statutes that "legislature does not intend to make substantial alteration in the law beyond what it explicitly declares either in express terms or by clear implication" (Maxwell on interpretation of Statutes, 10th Edition p. 81 ). This statement of law was approved by the Privy Council in Murugian v. Jainudeen, (2) after referring to similar observations of Lord Goddard in National Assistance Board v. Wilkinson, (3) and by the Supreme Court in M. K. Ranganathan v. Government of Madras. ( 6 ) IT is true that the conditions of service of the Officers of the Union Territories Cadre would be same as those of the Officers of the State Cadres of the IAS. But the initial recruitment to the Union Territories Cadre was under Rule 4 (5) of the Recruitment Rules by a method different from the ususl methods of recruitment to the Indian Administrative Service under Rule 4 (1) of Recruitment Rules. Further appointments were made directly to the Union Territories Cadre while under Recruitment and Cadre Rules appointments are always made to the Indian Administrative Service first and Officers of the Service are later allocated to different State Cadres. The mere similarity of conditions of service cannot make the Union Territories Cadre "common to the Union and the States", when, in fact, such a Cadre can never serve in any State at all. ( 7 ) THE next question, therefore, is whether the Union Territories are "state" for the purpose of Article 312 (1 ). The mere similarity of conditions of service cannot make the Union Territories Cadre "common to the Union and the States", when, in fact, such a Cadre can never serve in any State at all. ( 7 ) THE next question, therefore, is whether the Union Territories are "state" for the purpose of Article 312 (1 ). Article 312 is a part of Chapter XIV of the Constitution, which is significantly entitled services under the Union and the States". Part XIV does not create an All India Service. The reason seems to be that the consent of the States for the creation of All India Services given in 1946 related only to the Indian Administrative Service and the Indian Police Service. Therefore, Article 312 (1) states that more all India Services could becreated only after specific consent of the States for them is obtained by way of a resolution of the Council of States. The All India Services REFERRED TO in Article 312 are, thus, obviously different from the Services of the Union and those of the States dealt with in Article 309. The difference is that while Services of the Union and the States are unitary services serving the Governments of the Union and the States exclusively, an All India Service as its name shows is a truly Federal service common to both the Union and the States The key to the meaning of the word "state" used in Part XIV including Articles 309 and 312 (1) is provided by the interpretation clause in Article 308. Before the Constitution (VII Amendment) Act, 1956 Article 308 was as follows: "in this part. unless the context otherwise requires the expression "state" means a State specified in Part A or Part B of the ISchedule". THIS definition, thus, made it clear that the word "slate" in Part XIV was not to include part C States. Union Territories are the successors of the Part C States. It follows, therefore, that they are also expressly excluded from the definition of "state" in Part XIV. There is nothing particular in the context of Article 313 which would require the word "stale" therein to include a Union Territory. ( 8 ) THE Federal scheme in the Government of India Act. 1935 and the Constitution is clear. The internal sovereignty is divided only between two units, viz. the Union and the States. There is nothing particular in the context of Article 313 which would require the word "stale" therein to include a Union Territory. ( 8 ) THE Federal scheme in the Government of India Act. 1935 and the Constitution is clear. The internal sovereignty is divided only between two units, viz. the Union and the States. The Chief Commissioner s provinces followed by the Part C States which in turn were followed by the Union Territories were not federal units. They did not shall in the internal sovereignty, as they did not have internally sovereign Executives and Legislatures. Just as prior to the Constitution (VII Amendment) Act, 1956, a Part C State was always distinguished from Part A and Part B State which had internally sovereign Executives and Legislatures. Union Territories have been distinguished from States throughout the Constitution begining with Article 1 (3) thereof. Under Part IV of the Government of India Act, 1935 and Part VIII including Article 239 of the Constitution, the Chief Commissioners Provinces were administered by the Governor General and the Part C Stales and the Union Territories were administered by the President. ( 9 ) HOW is it then that the Central Government was advised to amend the definition of the word "state" in the Recruitment and Cadre Rules to include Union Territories and actually formed the Delhi Himachal Pradesh cadre and then the Union Territories Cadre acting on the said amended definition? The answer lies in the definition of the word state" in section 3 (58) (b) of the General Clauses Act as adapted by the Adaptation of laws Order, 1956, which runs as follows: " state as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956 shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory. " RELIANCE on this definition has led to a widespread confusion of thought and must, therefore, be clarified at once. Article 367 (1) of the Constitution applies to the interpretation of the Constitution the provision of the General Clauses Act as adapted under Article 372 (2) of the Constitution. In view of Article 372 (2) (a) such an adaptation had to be made within three years from the commencement of the Constitution. Article 367 (1) of the Constitution applies to the interpretation of the Constitution the provision of the General Clauses Act as adapted under Article 372 (2) of the Constitution. In view of Article 372 (2) (a) such an adaptation had to be made within three years from the commencement of the Constitution. The definition of a "state" in section 3 (58) of the General Clauses Act as adapted by the Adaptation of laws Order, 1950 issued under Article 372 (2) of the Constitution was as follows: state shall mean a Part A Slate, a Part B State or a Part C State". TILL the expiry of three years from the commencement of the Constitution, this definition of "state" was not changed in any way. It, therefore remained the final definition of a "state" for the interpretation of the Constitution. The Constitution (VII Amendment Act, 1956 inserted Article 372-A in the Constitution authorising the President to adopt and modify laws including the General Clauses Act to bring them into accord with the provisions of the Constitution as amended by the Constitution (VII Amendment) Act, 1956. Such adaptation had to be made before the First Day of "november, 1957. The adaptation of laws Order 1956 was issued under Article 372-A. The definition of the word "state" in the General Clauses Act. section 3 (58) as adapted by this Adaptation of Laws Order 1956 became as follows: "state"- " (a) as respects any period before the commencement of the constitution (Seventh Amendment) Act, 1956, shall mean a part A State, A part B State or a Part C State; and (b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory. "article 367 (1), however, was not amended by the Constitution (VII Amendment) Act, 1956 to say that adaptations made in the general Clauses Act otherwise than those made under Article 372 (2) would be applicable to the interpretation of the Constitution. This abstention seems to be deliberate. For the change in the definition of "state" in 1956 was made only to enable, if the subject or context so requires, the Union Territories being treated as States for the purpose of a particular Act if this was appropriate and suitable in the circumstances. This abstention seems to be deliberate. For the change in the definition of "state" in 1956 was made only to enable, if the subject or context so requires, the Union Territories being treated as States for the purpose of a particular Act if this was appropriate and suitable in the circumstances. But the distinction between part A and Part B States on the one hand, and Part C States on the other hand was continued between the States and the Union territories after the commencement of the Constitution (VII amendment) Act, 1956. This is why the. definition of "state" introduced by the Adaptation of Laws Order, 1956 issued under article 372-A of the Constitution was not made applicable to the interpretation of the Constitution. ( 10 ) IN two Division Bench decisions of this Court, viz. . Management of Advance Insurance Company v. Gainda Mal (5) and H. L. Rodhey v. Delhi Administration, (6) speaking for both the Division benches I had occasion to point out that the adaptations made in the General Clauses Act under Article 372 (2) alone apply to the interpretation of the Constitution in view of Article 367 (1), but the adaptations made later under Article 372-A were not so Appliable. Unfortunately, however, this distinction is not always kept in mind as is shown by the observations in Basu- commentary on the Constitution of India 5th Edition, Vol. I, p. 87. Shri h. M. Seervai in constitutional Law of India p. 121 foot-note 8, takes notice of the fact that the adaptations made under Article 372-A was not applicable to the interpretation of the Constitution in view of Article 367 (1), but seems to think that this is a technical difficulty and that it would have to be overcome by construction for reasons to be given in the projected Chapter XXXI of his book. The learned commentator says that the substituted definition given in section 3 (58) of the General Clauses Act would be applicable to Article 3 of the Constitution. In Article 3 alone as distinguished from the rest of the Constitution, the word "state" has been used in the sense of an area or a territory while elsewhere in the constitution it is used more in the sense of legal entity than an area. In Article 3 alone as distinguished from the rest of the Constitution, the word "state" has been used in the sense of an area or a territory while elsewhere in the constitution it is used more in the sense of legal entity than an area. Originally, Union Territories were not REFERRED TO in Article 3 because any law regarding them could be made by parliament under Item No. 97 of the Union List of the Seventh schedule read with Article 246 (4) of the Constitution. Therefore, authority to make law only tegarding the States was given to Parliament by Article 3. However, in view of the observations of the Supreme Court in the Berubari Opinion (7) the Constitution (Eighteenth Amendment) Act, 1966 added axplanation I to article 3 to include a Union Territory in the word "state" to allow the Parliamentto legislate regarding the area of a Union Territory in the same way as the area of a State. Even in the said Amendment it was made clear that "state" does not include a Union territory for the purpose of consultation with the Legislature of a state. The reason is that the Union Territories do not have an internally sovereign legislature at all. The subject and the context of Part XI of Chapter I of the Constitution which deals with the Legislative powers of the Union and the State Legislatures, would, therefore always have rejected the indentification of a union Territory with a State. In T. M. Kanian v. Income Tax officer, pondichery, (8) the definition of "state" was held inapplicable to the interpretation of Article 246 for the same reason. Even then the learned Attorney General does not seem to have brought the distinction between the adaptation made under Article 372 and those made under Article 372-A to the notice of their Lordships of the Supreme Court in Ram Kishore v. Union of India (9) in view of the observations of the Supreme Court in Berubari opinion, (7) and those of the Calcutta High Court in Ram Kishore v. Union of India (9) later upheld by the Supreme Court in AIR 1966 SC 644 , the Constitution (Eighteenth Amendment) Act, 1966 amended Article 3 of the Constitution in deference to the observation of the Supreme Court. With utmost respect, however, these observations of the Supreme Court were restricted to Article 3. With utmost respect, however, these observations of the Supreme Court were restricted to Article 3. They were never intended to apply to the meaning of the word "state" in Part XIV, Chapter 1 of the Constitution particularly because Article 308 expressly excluded the Part C States and, therefore, the Union Territories from the expression "state" used therein. ( 11 ) A limited degree of personality for the purpose of suits, contracts, etc. had to be attached to Part C States, to avoid practical inconvenience, by the Supreme Court in Satya Dev v. Padam dev (10) partially reviewed in Satya Dev v. Padam Dev (10), and in State of Madhya Pradesh v. Maula Baksh, (11), The Parliament, however, made it clear by enacting section 55 of the Government of Union Territories Act, 1963 that all contracts in connection with the administration of a Union Territory are contracts made in the exercise of the executive power of the Union and that all suits and proceedings in connection with the administration of a Union Territory shall be instituted by or against the Government of India. This was done "for the removal of doubts" meaning thereby that the legal position even before was that Union Territories did not have a legal personality and that the legal entity acting for them was the Union of India. I, therefore, find that union Territories are not "states" for the purpose of Article 312 (1) of the Constitution and the preamble to the Act of 1951. (B) The only legal provision authorising the creation of the delhi Himachal Pradesh Cadre and the Union Territories Cadre is sub-rule (5) of Rule 4 of the Recruitment Rules. This itself was made on the assumption that the definition of "state" could validly be amended to include Union Territories. The discussion above has already shown that for the purposes of Chapter i of Part XIV of the Constitution, Union Territories are not states. The amendment of the definition "state" in the Recruitment rules and the Cadre Rules was, therefore, ultra vires the Act of 1951 and the Constitution. For the same reason the making of sub-rule (5) of Rule 4 of the Recruitment Rules was ultra vires, inasmuch as it purported to authorise the Central Government to create a Union Territories Cadre, which by its very nature cannot be "common to the Union and the States". For the same reason the making of sub-rule (5) of Rule 4 of the Recruitment Rules was ultra vires, inasmuch as it purported to authorise the Central Government to create a Union Territories Cadre, which by its very nature cannot be "common to the Union and the States". Further these amendments had to be made after consultation with the government of the States concerned according to section 3 of the act of 1951 and the preamble of the Recruitment and the Cadre rules. For the purposes of the Union Territory the State Government is Central Government itself. The Central Government could not consult itself. Therefore, no consultation with the State government concerned could take place in the making of sub- rule (5) of Rule 5. It is ultra vires the Act of 1951 and the Rules made thereunder for that reason also. (c) Section 3 of the Act of 1951 authorised the making of Rules for Regulation of recruitment to an All India Service and not directly to a Cadre of such Service. Rule 5 of the Rules contemplates allocation of Officers to State Cadre after they are initially recruited to the Service and become members of the service. These provisions seem to be contravened by the direct appointment of respondents 2 to 37 to the Union territories cadre and by their being not recruited first to the IAS. (2) The petitioners were originally recruited to the IAS in accordance with the Act of 1951 and the Rules framed thereunder. They were later allocated to the Delhi, Himachal Pradesh Cadre of the Service and they find themselves in the Union Territories cadre, which is not formed by the Central Government by extending the Delhi Himachal Pradesh Cadre. For the reasons given above, I have held that Union Territories Cadre cannot be created as it is not common to the States and the Union . For the same reason, the Delhi and Himachal Pradesh Cadre could not also be created as Delhi and Himachal Pradesh are also Union Territories and not States. The petitioners are not, however, in any way, responsible for the creation of the Delhi Himachal Pradesh Cadre or the Union Territories Cadre. They were placed in these cadres by an external authority, viz. , the Central Government. The petitioners are not, however, in any way, responsible for the creation of the Delhi Himachal Pradesh Cadre or the Union Territories Cadre. They were placed in these cadres by an external authority, viz. , the Central Government. No blame, therefore, could be attached to them for now finding themselvesin Cadres which have been held to be constituted contrary to Article 312 (1) of the Constitution and to the Act of 1951 and the Rules made thereunder. Their locus standi to seek the relief in the nature of mandamus quashing the action of the Central Government in creating the Union Territories Cadre (and incidentally the Delhi, Himachal Pradesh Cadre) has therefore, to be considered independently of the illegality attached to these Cadres. The result of the English case law relating to the locus standi of a person seeking a writ of mandamus has been recently considered by Dr. S. N Thio in an Article in 1966 public Law, PP 133-147. His conclusion briefly is that the legal right which an applicant for mandamus must possess need not necessarily be a right the disregard of which would constitute a legal wrong within the categories of private law, (e. g. , a right enforceable by a suit for damages ). It is sufficient if the applicant has a special interest to challenge the illegality as distinguished from the general interest that some members of the public may have in doing so. The petitioner in this case are members of the IAS. They have a special interest to move this court that the Central Government is prevented from dealing with the service in a manner contrary to Article 312 (1), the Act of 1951 and the Rules made thereunder. Mandamus will issue for the enforcement of a Public duty. For the same reason a mandamus with the State Governments. In Chandra Mohan s case and in prem Nath v. State of Rajasthan, (12) their Lordships of the Supreme court quashed the appointments of District Judges as being contrary to the Constitution at the instance of the petitioners who were members of the judicial service interested in disputing the appointments of persons to the same service contrary to the Constitution. The petitioners also, therefore, must be held to be interrsted in disputing the appointments of other persons to their service contrary to the Constitution and law. The petitioners also, therefore, must be held to be interrsted in disputing the appointments of other persons to their service contrary to the Constitution and law. They have, thus, a special interest much higher than that of an ordinary member of the public in seeking the relief from this court for quashing the action of the Central Government. It also appears to me that even an ordinary member of the public or a person with lesser interest than what the petitioners have would be able to apply for the issue of direction in the nature of quo warran to against respondents 2 to 37 inasmuch as they are occupying public offices as a result of their appointments which they have no right to occupy contrary to the constitution and law. The fact that the petitioners happen to be landed in an illegally formed Cadre of the IAS does not estop them by any acquiescence in the illegal action of the Government. The doctrine of acquiescence which applies to certain cases of election to a legal Authority or a public utility Corporation cannot possibly be extended to the cases of appointments to Offices under the Government created by law and subject to specific qualifications and conditions. The petitioners can, therefore, challenge the formation of the Union Territories Cadre including the appointments of respondents 2 to 37 to it and they are not estopped by any acquiescence. ( 12 ) THIS writ petition along with the connected writ petitions Nos. 478 to 487 of 1968 are, therefore, allowed with costs. The orders of the Central Government notified in GSR 42 to 49 published in the extraordinary Gazette of India dated 13th January, 1968 and the scheme for the formation of the Joint IAS Cadre for the Union Territories at annexure 1 of the writ petition are both quashed. The formation of the Delhi Himachal Pradesh cadre of the IAS is also held to be ultra vires. This order shall not, however, be enforceable for a period of two months during which respondent No. 1 may make the necessary reorganisation of the IAS. The formation of the Delhi Himachal Pradesh cadre of the IAS is also held to be ultra vires. This order shall not, however, be enforceable for a period of two months during which respondent No. 1 may make the necessary reorganisation of the IAS. For instance, the petitioners may be placed into an appropriate State Cadre or Cadres and the number of the officers going to the Central Government from different State cadres may be increased, so that they may man not only the higher posts of the Central Secretariat, but also the higher posts in the Union Territories. Alternatively, the Central Government may obtain a stay order from the appellate Court. ( 13 ) CERTIFICATE under Article 132 (1) of the Constitution is granted separately.