Bhuwaneshwar Prasad v. State Of Bihar — 1975 DIGILAW 165 (PAT)

Judgment K.B.N.SINGH, J. 1. The petitioner, a senior officer of the Indian Administrative Service, in this writ application prays for quashing two orders of the Government of India, (i) assigning 1961 as the year of allomost of the petitioner on his promotion to the Indian Administrative Service, and (ii) rejecting his representation against the former. The petitioner has also prayed for issuance of a writ in the nature of mandamus commanding the Union of India (Respondent No. 2) to assign 1958 as the year of allotment of petitioner in the Service The impugned orders have been communicated to the petitioner by the State Government by letters dated the 1st September, 1969, and the 28th March. 1974, respectively, copies of which have been filed as Annexures 1 and 2. 2. On the 30th April, 1944, the petitioner was appointed in the Executive Branch of the Bihar Civil Service. In November, 1956, he was promoted as an Additional District Magistrate. In 1957 the petitioner was posted as the Managing Director of the newly created Bihar State Co-operative Marketing Union (hereinafter referred to as the Marketing Union), which be held till the 14th November, 1964. It was during this period that his name was included in the Select List of the Indian Administrative Service, prepared according to the Indian Adramistrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as the "Promotion Regulations") which was duly approved by the Union Public Service Commission on the 31st December, 1963. The State Government in the Appointment Department by a letter dated the 10th October, 1964 (Annexure 3), requested the Co-operative Department, where the petitioner was working, to take note of this fact arid allow the petitioner to draw pay in the senior scale of the Indian Administrative Service. Accordingly, the post of Managing Director of the Marketing Union was upgraded by the Co-operative Department vide letter No. 2078 dated the 3rd November, 1965, addressed to the Accountant General, Bihar (Annexure 4), and the petitioner was allowed to draw his salary in the grade pay of Rs. Accordingly, the post of Managing Director of the Marketing Union was upgraded by the Co-operative Department vide letter No. 2078 dated the 3rd November, 1965, addressed to the Accountant General, Bihar (Annexure 4), and the petitioner was allowed to draw his salary in the grade pay of Rs. 900-1800/-, with effect from the 31st December, 1963 The petitioner has averred that the post of Managing Director, Marketing Union, held by the petitioner was a post of great responsibility and equivalent in status and responsibility to a cadre post of the Indian Administrative Service, and after the petitioner was held by I. A. S. Officers and was declared to be equal in rank and responsibility to a cadre post so long it was held by officers of the Indian Administrative Service and was a senior post within the meaning of the term, under Rule 2 (g) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 (hereinafter referred to as the "Seniority Rules"). On the 14th November, 1964, the petitioner was appointed as Director, Project Lands and Rehabilitation, Chhota Nagpur Division, which post was created on the 11th December. 1961 (as per Annexure 7), temporarily for five years, and thereafter extended for another three years (as per Annexure 8) and was a senior post. This post was proposed to be filled up by a Member of the Indian Administrative Service cadre, carrying pay in the senior scale of pay of the I. A. S., besides a special pay of Rs. 150/- per month, in view of the importance of the work to be discharged by the incumbent. Since its creation the post has been held by senior I. A. S. Officers and was declared to be equivalent to a senior post under Rule 2 (g) of the Seniority Rules On the 18th April, 1966, the petitioner was appointed as Director, Grampanchayats, borne on the cadre of the Indian Administrative Service and while he held this post, on the 25th March, 1967, he was appointed to the Indian Administrative Service (Annexure 11). The petitioner was allotted 1961 as the year of allotment by the Union of India and placed below Shree J. N. Lingdoh (a Direct recruit of 1961), and above Shree Anwarul Hoda (a direct recruit of 1962). The petitioner was allotted 1961 as the year of allotment by the Union of India and placed below Shree J. N. Lingdoh (a Direct recruit of 1961), and above Shree Anwarul Hoda (a direct recruit of 1962). The grievance of the petitioner is that the State Government did not represent full facts to the Union of India and the Union of India also did not ascertain full facts and erroneously fixed the year of allotment of the petitioner as 1961. Being dissatisfied with the incorrect fixation of seniority, based on misrepresentation of facts and rules, the petitioner filed a representation on the 14th. April, 1970, for re-fixation of his seniority and the year of allotment as 1958, on the basis of his continuous officiation in "senior posts", since the 31st December, 1963, after his name was included in the Select List, although the petitioner was actually holding a senior post with effect from the date he was appointed Managing Director of the Marketing Union in 1957 and on that basis he was entitled to 1953 as the year of his allotment. A copy of his representation has been filed as Annexure 12. Having received no reply for about three years, on the 5th December, 1973, the petitioner, by another representation reiterated his earlier prayer. The State Government supported the representation of the petitioner as per letter dated the 22nd December, 1972, addressed to the Government of India, that the posts of Managing Director, Marketing Union, and the Director, Proejct Lands and Rehabilitation, were equivalent to cadre posts of the Indian Administrative Service under Rule 2 (g) of the Seniority Rules, as it existed before its amendment. A copy of the said letter has been filed as Annexure 13, which is in Hindi, and its official English version has been filed as Annexure 14. The petitioners representation, however, was rejected by the Government of India (vide Annexure 2). 3. The petitioners case is that as he was appointed in the Indian Administrative Service on the 25th March, 1967 his case will be governed by the original and unamended Seniority Rules, as they stood before the 17th April, 1967, under which the State Government had power to declare any post as equivalent to a senior post under Rule 2 (g). The petitioners case is that as he was appointed in the Indian Administrative Service on the 25th March, 1967 his case will be governed by the original and unamended Seniority Rules, as they stood before the 17th April, 1967, under which the State Government had power to declare any post as equivalent to a senior post under Rule 2 (g). The State Government also in its letter to the Government of India (Annexure 14) stated that the posts of the Managing Director, Marketing Union, and the Director, Project Lands and Rehabilitation, held by the petitioner were senior posts within the meaning of the Seniority Rules and the petitioner was entitled to get benefit of continuous officiation on those two posts. The posts of the Managing Director, Marketing Union, and Director. Project Lands and Rehabilitation, were always equivalent in status and responsibility to a senior post and were continuously held by officers belonging to the Indian Administrative Service in the senior scale, after the petitioner in the first post, and earlier to the petitioner in the second post. It has been submitted that the Government of India should have taken at decision keeping in view that the posts held by the petitioner were equivalent to cadre pasts The petitioners case further is that the aforesiad recommendations were made by the State Government on consideration of the merits and service records of the petitioner and two of his senior colleagues, Shree Baldeb Prasad Sarkar (Respondent No. 26) and Shree S.K. Verma (Respondent No. 27), whose names appeared above that of the petitioner in the Select List. It is stated in Annexure. If that the record of service and performance of Shree S. K. Verma were of much inferior grade compared to those of the petitioner. It is also stated that Shree Baldeb Prasad Sarkar was on deputation to the Ministry of External Affairs and there was no chance of Fas returning to the Indian Administrative Service Cadre of the State of Bihar. The State Government, therefore, recommended that as the petitioner has been continuously holding posts which were equivalent to the posts held by Indian Administrative Service Officers in the Senior Grade, he should not Be made junior only because of the fact that the names of Shree Baldeb Prasad Sarkar and" Shri S. K.Verma (Respondents Nos. The State Government, therefore, recommended that as the petitioner has been continuously holding posts which were equivalent to the posts held by Indian Administrative Service Officers in the Senior Grade, he should not Be made junior only because of the fact that the names of Shree Baldeb Prasad Sarkar and" Shri S. K.Verma (Respondents Nos. 26 and 27) stood above the name of the petitioner in the Select List, and his claim for allotment of an earlier year of allotment should not be overlooked. There should be no hesitation in declaring the aforesaid two posts held by the petitioner as senior posts even though it might amount to conferring seniority to the petitioner above Shree Sarkar and Shree Verma. The petitioners case further is that he is due to superannuate with effect from the 18th December, 1977, and as a result of the impugned orders, the petitioners civil rights to promotion, etc., have been seriously prejudiced. The officers of 1958 seniority, which the petitioner claims, have got full" Secretaryship of a Department more than two rears. ago and also got selection grade in the Service, much earlier to the petitioner. 4. A counter affidavit has been filed on behalf of the State and the Union of Indian and also By Respondent No. 27. Shree S.K. Verma, refuting the petitioners clainr. 5. In course of the hearing of this case, it appeared that Shree Balden Prasad Sarkar (Respondent No. 26) had also filed a writ application, in Civil Writ Jurisidiction Case No. 1218 of 1972, challenging his year of allotment. As the grievance of the present petitioner was that as he was junior in the Select List to Shree B. P. Sarkar, that might have been taken as a circumstance in not allotting the petitioner any year earlier than Shree Sarkar, who is senior, if was considered advisable to dispose of this case after the hearing of the case of Shree Sarkar, which has been finally heard on the 30th July, 1975. 6. The contention of Mr. 6. The contention of Mr. R. C. Sinha, learned Counsel appearing for the petitioner, is that under clause (b) of sub-rule (3) of Rule 3 of the Seniority Rules, read with the definition of the senior post under Rule 2 (g), as it existed during the relevant period, the continuous officiation of an officer in a post declared under Rule 2 (g) as a senior post, counts towards seniority prior to the inclusion of the name of the officer in the Select list, if approved by the Government of India, in consultation with the Union Public Service Commission. Bui, after the inclusion of the name of the officer in the Select List, such an approval is not necessary. In accordance with the above rules, the petitioner was entitled to have his seniority fixed on the basis of the continuous officiation in senior posts since 1957, as Managing Director, Marketing Union, and Director, Project Lands and Rehabilitation, and the Union Government, in consultation with the Union Public Service Commission, should have allowed seniority to the petitioner, keeping in view his continuous officiation in senior posts since 1957. In any event, the petitioner should have been given benefit of the continuous officiation from the date of inclusion of his name in the Select List on the 31st December, 1963. 7. It will not be necessary to refer to the history of the Indian Administrative Service or the various rules and regulations made under the All India Services Act, 1951, in this regard. They have already been subject matter of several decisions of the Supreme Court and elaborately dealt with in the case of R. P. Khanna v. S. A. F. Abbas ( AIR 1972 SC 2350 ) = (1972 Lab IC 1031). 8. The Indian Administrative Service (Recruitment) Rules, 1954, framed under sub-section (1) of Section 3 of the All India Services Act, 1951, provides for recruitment to the Service by competitive examination and by promotion from the State Civil Services, besides other methods with which we are not concerned in the instant case. Rule 7 provides for recruitment by competitive examination and Rule 8 provides for recruitment by promotion, etc. Rule 7 provides for recruitment by competitive examination and Rule 8 provides for recruitment by promotion, etc. The Indian Administrative Service (Appointment by Promotion) Regulations, 1955, provide for preparation of a Select List every year for the officers found fit for promotion and under regulation 9 of the said Regulations, appointment has to be made to the Service from the Select List. The India Administrative Service (Cadre) Rules, 1954, provide for constitution of cadres in a State or a group of States to be called the State Cadre or a Joint Cadre Cadre post has been defined under regulation 2 (b) of the Promotion Regulations to mean any of the posts specified as such in the Regulations to be made under sub-rule (1) of Rule 4, of the Cadre Rules. The Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955, have been made under sub-rule (1) of Rule 4 of Cadre Rules. Regulation 2 of this Regulation lays down that the posts borne on and the strength and composition of the cadres of the Indian Administrative Service of the various States, shall be as specified in the Schedule to that Regulation. The Schedule also gives the number and details of the "senior posts" under the State Government or the Central Government in relation to a State. The expression senior post has been defined, under Rule 2 (g) of the Seniority Rules, to mean a post included and specified under item No. 1 of the Cadre of each State in the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 and includes "any post declared equivalent thereto by the State Government concerned" before its amendment on the 17th April, 1967. In this back-ground, the relevant portion of Rule 3 (3) (b) of the Seniority Rules, on which reliance has been placed, may usefully be reproduced, as it existed prior to its amendment on the 17th April, 1967: "(3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be (a) xx xx (b) Where the officer is appointed to the Service by promotion in accordance with sub-rule (1) of Rule S of the Recruitment Rules, the year of allotment of the junior most among the officers recruited to the Service in accordance with Rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former, xx xx Provided further that an officer appointed to the Service after the commencement of these rules in accordance with sub-rule (1) of Rule 8 of the Recrmitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Administrative Service (Appointment by Promotion) Regulations, framed under sub-rule (1) of Rule 8 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission. XXXXXXXX XXXXXXXXX XXXXXXXXX" 9. Rule 3 (3) (a), which as not been quoted, lays down that the year of allotment of a direct recruit by competitive examination is the year following the year in which the examination is held. I have also omitted first proviso and quoted only the second proviso to the said rule, which is relevant for our purpose. From the aforesaid quoted rule, it is apparent that fhe year of allotment of a promotee is fixed according to the formula evolved in clause (b) of sub-rule (3) of Rule 3. Under this clause, the year of allotment of the junior most direct recruit, who officiated continuously in a senior post from the date earlier than the commencement of such officiation by a promoted officer has to be assigned to the latter. The first proviso provides for situation which is not covered by clause (b) and with which we are not concerned and need not be dealt with. The first proviso provides for situation which is not covered by clause (b) and with which we are not concerned and need not be dealt with. The second proviso, which stands repealed with effect from the 17th April, 1967, cuts down the period of officiation either under clause (b) or under the first proviso to that period only which has been approved by the Central Government, in consultation with the Commission. It is well established that a promotee could claim advantage of his continuous officiation in a senior post for the period prior to inclusion of his name in the Select List, if such officiation is approved by the Central Government in consultation with the Commission, in view of the limitation put by the second proviso, vide D. R. Nim v. Union of India ( AIR 1967 SC 1301 ) and reiterated in the case of R. P. Khanna v. S. A. F. Abbas (1972 Lab IC 1031 (SC)) (supra). 10. Judged in the light of the aforesaid provisions the submission of Mr. Sinha as to the claim of seniority of the petitioner may broadly be divided into two partsthe first being prior to the inclusion of the petitioners name in the Select List, and the second being after the inclusion of his name in the Select List on the 31st December, 1968 Mr.Sinhas contention is that the post of Managing Director, Marketing Union, held by the petitioner from 1957 till the 30th December, 1963, against a post equivalent to a senior post in view of Rule 2 (g) and the petitioner was entitled to have the advantage of the second proviso to clause (b) of sub-rule (3) of Rule 3 of the Seniority Rules. 11. Even if the officiation of the petitioner as Managing Director, Marketing Union, was against a senior post, which I shall show hereinafter that it was not, in absence of the approval of the Central Government, in consultation with the Union Public Service Commission, that period cannot be taken into account for the purpose of determining the year of allotment of the petitioner. Such an approval is a must. The appointment of the petitioner having been made prior to the amendment, the second proviso to the aforesaid rule was applicable to the case of the petitioner. Such an approval is a must. The appointment of the petitioner having been made prior to the amendment, the second proviso to the aforesaid rule was applicable to the case of the petitioner. The petitioner, therefore, is not entitled to count the period prior to the inclusion of his name in the Select List. 12. Coming to the second period, that is to say, from the 31st December, 1963, to the 17th April, 1966, after the inclusion of the petitioners name in the Select List, it appears that the petitioner continued on the post of Managing Director, Marketing Union, till the 14th November, 1964, and from the 15th November, 1964, till the 17th April, 1966, he held the post of Director, Project Lands and Rehabilitation, till he was appointed to a cadre post as Director, Gram Panchayats, on the 18th April, 1966. Mr. Sinha has submitted that the post of Managing Director, Marketing Union, was a post of great responsibility and equivalent in status and responsibility to a senior post in the Indian Administrative Service. It was so when occupied by the petitioner as also by his successors in office, and the petitioner was entitled to count this period for the purpose of determining his seniority in the Service. In support of his submission that the post was equivalent to a senior post, Mr. Sinha has relied upon a letter of the Deputy Secretary to the Government of Bihar in the Co-operative Department, addressed to the Accountant General, Bihar (through the Finance Department), dated the 3rd November, 1965 (Annexure 4). In this letter it is stated that the Appointment Department in its letter No. 12278 dated the 10th August, 1964, had allowed the petitioner pay in the senior scale of the Indian Administrative Service (Rs. 900-1800/-), with effect from the 31st December, 1963, after his name was included in the Select List, and the post of Managing Director, Marketing Union, during the aforesaid period may be treated to have been upgraded to a senior post in the scale of Rs. 900-1800/-. annexure 4 is not to be considered in isolation, but has to be considered along with the letter of the State Government in the Appointment Department dated the 10th October, 1964 (Annexure 3). 900-1800/-. annexure 4 is not to be considered in isolation, but has to be considered along with the letter of the State Government in the Appointment Department dated the 10th October, 1964 (Annexure 3). This letter bears the same number, as assigned to the letter of the Deputy Secretary to the State Government in the Appointment Department in Annexure 4, but it is dated the 10th October, 1964, while the date mentioned in Annexure 4 is the 10th August, 1964. However it is Annexure 3 which has been relied as basis in the writ for issuance of Annexure 4, and allowing the petitioner to draw pay in the senior scale of the Indian Administrative Service with effect from the 31st December, 1963, on inclusion of his name in the Select List. The drawing of the aforesaid pay has been subject to the following condition: "This, however, will not be treated as officiation in an I. A. S. Cadre post or in an equivalent post, and will not, therefore, count towards his seniority in the I. A S., if and when Shri Prasad is promoted to the I. A. S." It is thus apparent that the petitioners argument that the post was equivalent to a senior post in view of Annexure 4 is without substance. Where the Government allows pay in the senior scale of the Indian Administrative Service and upgrades the post also with a rider, that the drawing of senior scale of pay in the upgraded scale will not count as officiation in a senior post, when substantively appointed to the Service, such officiation cannot be taken into account as officiation in a senior post for the purpose of determining the seniority of the officer on promotion to the Service, even after the inclusion of his name in the Select List. The other two Government letters (Annexures 5 and 6) relied upon by Mr. Sinha to show that the ex-cadre post of Managing Director, Marketing Union, has been declared to be equivalent in status and responsibility to that of a senior post, are also not of any assistance to the petitioner. The other two Government letters (Annexures 5 and 6) relied upon by Mr. Sinha to show that the ex-cadre post of Managing Director, Marketing Union, has been declared to be equivalent in status and responsibility to that of a senior post, are also not of any assistance to the petitioner. Annexure 5 is a letter dated the 24th January, 1968, in which it is stated that the post of Managing Director, Marketing Union, was declared to be equivalent in status and responsibility to a cadre post of Deputy Secretary to Government, as specified in Schedule III-B of the Indian Administrative Service (Pay) Rules, 1954, for the period the post was held by Shree R. C. Arora, I. A. S. To the same effect is the other Government letter (Annexure 6), dated the 21st February, 1969, in relation to Dr. J. C. Kundra, I. A. S., so long he held the post of the Managing Director, Marketing Union. Mr. Sinha laid stress on the fact that the petitioner was the first incumbent of the post and all his successors were Indian Administrative Service Officers and the post of Managing Director, Marketing Union, was a post of great responsibility and equivalent in status and responsibility to a cadre post of the Indian Administrative Service and it was always so. These two letters are for periods subsequent to the period the petitioner held that post, and no inference in petitioners favour is possible on that basis The State, in its counter-affidavit, has denied that the post of Managing Director, Marketing Union, was declared equivalent to a senior post by the State Government when held by the petitioner. It is, therefore manifest that the petitioner also cannot count his officiation in the post of Managing Director Marketing Union, after the inclusion of his name in the Select List, as officiation in a senior post. 13. The petitioners claim to seniority on the basis of officiation in a senior post of Director, Project Lands and Rehabilitation, with effect from the 15th November, 1964, up to the 17th April, 1966, now remains to be considered. Mr. 13. The petitioners claim to seniority on the basis of officiation in a senior post of Director, Project Lands and Rehabilitation, with effect from the 15th November, 1964, up to the 17th April, 1966, now remains to be considered. Mr. Sinha has submitted that on the 12th December, 1961, the Government created a temporary post of Director, Project Lands and Rehabilitation for the Chhotanagpur Division, for a period of five years (vide Annexure 7), in view of the fact that a large number of industries were going to be set up in Chhota Nagpur Division in public and private sectors during the Third Five Year Plan period. Due to the great responsibility attaching to the post of Director, the letter sanctioning the post also laid down that it "will be filled up by a member of the Indian Administrative Service Cadre, will carry pay in the senior scale of I. A. S., besides a special pay of Rs. 150/- per month." This post was extended for a further period of three years with effect from the 1st March, 1966, by Government order dated the 14th April 1966 (Annexure 8). The statement enclosed to the said order also showed that the pay of the post of Director was in the senior scale of Indian Administrative Service with a special pay of Rs. 150/- per month.. By Notification dated the 30th September, 1964 (Annexure 9), the petitioner was appointed to the post of Director and he held this post from the 15th November, 1964, to the 17th April, 1.966, till he was appointed to the cadre post of Director of Gram Panchayats on the 18th April, 1966. Mr. Sinha has also relied upon the fact that since its creation this post was held by Senior Indian Administrative Service Officers, namely, Sarvshree P. P. Nayyar, A. Hakim, and R. P.Sinha, till the petitioner was appointed to this post on the 18th April, 1966. Mr. Sinha has also relied upon the fact that since its creation this post was held by Senior Indian Administrative Service Officers, namely, Sarvshree P. P. Nayyar, A. Hakim, and R. P.Sinha, till the petitioner was appointed to this post on the 18th April, 1966. The State Government had to declare this post, when its first incumbent, Shree P. P. Nayyar held this non-cadre post, to be an equivalent post, to enable him to draw his pay in the senior scale, in view of Rule 9 (1) of the Pay Rules, as no officer of the Indian Administrative Service can be appointed to a post other than the post specified in the Third Schedule to the Pay Rules, unless the State Government makes a declaration that the post is equivalent in status and responsiblity to a post specified in the Third Schedule to the Rules. It was urged that such a declaration must be presumed to have been made as the post was held in succession by the Indian Administrative Service Officers. Learned Counsel, on behalf of the petitioner, has also relied upon another letter dated the 22nd December, 1972 (Annexure 14), from the Deputy Secretary to Government of Bihar in the Department of Personnel, addressed to the Secretary to the Government of India in the Department of Personnel, on the representation of the petitioner, recommending his case for assigning him an earlier year of allotment than 1981, which substantially supports the contention of the petitioner that the post of Director, Project Lands and Rehabilitation, was created in the senior scale of the Indian Administrative Service. It is also stated therein that before the petitioner Shree P. P. Nayyar, Shree A.Hakim and Shree R. P. Sinha, all belonging to the Indian Administrate Service Cadre, had been posted to it, and during the period while the post was held by the I. A. S. Officers or the petitioner, there was no change in the status and responsibility of the post and that the State Government had made no objection to the declaration of the post of Director, Project Lands and Rehabilitation, as equivalent to a Senior post for the period that it was held by the petitioner. 14. 14. The State, in its counter affidavit (paragraph 7) has denied the petitioners claim that the post of Director, Project Lands and Rehabilitation, can be said to be equivalent to a senior post, as there was no such declaration. It is difficult to appreciate this assertion on behalf of the State, in view of what is stated in Annexure 14. In this letter, it is stated as follows: "This post had been created in the senior scale of the I. A. S. and before Shri Prasad, Sarvshri P. P. Nayyar, A. Hakim and R. P.Sinha, all belonging to the I. A. S. cadre, had been posted to it. During their period and also during the period when this was held by the officers who preceded them, there had been no change in the status and responsibility of this post......State Government see no objection to declaration of post of Director, Project Land and Rehabilitation, Chotanagpur Division, as a senior post for the period it had been held by Shri Prasad." (Paragraph 3). In view of the Government orders contained in Annexures 7 and 8, it is manifest that the post of Director, Project Lands and Rehabilitation was meant to be a senior post as it was to be manned by an Indian Administrative Service Officer in the senior scale of pay since its inception. Where Government creates a new post in the senior scale of pay of the Indian Administrative Service to be manned exclusively by the officers of the Indian Administrative Service, then the order creating such a post amounted to declaring the post itself as equivalent to a senior post by the State Government within the meaning of R. 2 (g) of the Seniority Rules since creation of the post itself There was no particular form in which a post could be declared as a "seniar post" under the unamended Rule 2 (g). No separate declaration of the post being equivalent to a senior post was necessary, when the post was held by a non-cadre officer. The post being not a cadre post, a declaration may be necessary when held by a cadre officer, to enable him to draw his salary in the senior scale of the Indian Administrative Service, in view of Rule 9 (1) of the Pay Rules. The declaration under Rule 9 (1) of the Pay Rules is different from the declaration under Rule. The declaration under Rule 9 (1) of the Pay Rules is different from the declaration under Rule. 2(g) of the Seniority Rules, and this finds support from the stand taken by the Government of India in Paragraph 8 of its counter affidavit, in reply to Paragraph 10 of the writ application, the relevant portion of which may be quoted: "8. That with regard to the contentions made by the petitioner in Paragraph 10 of the writ petition, it is submitted that (i) it is necessary to make a declaration equating the ex-cadre post with the post in the senior time scale, when a member of the Service is appointed to hold the ex-cadre post, in accordance with the provisions contained in sub-rule (1) of Rule 9 of the Pay Rules, which lays down as under: xx xx xx Such a declaration is, however, not necessary when the post is held by a State Civil Service Officer Besides, this declaration is distinct from the declaration under clause (g) of Rule 2 of the Seniority Rules.........." In my considered opinion, therefore, the creation of the post of Director, Project Lands and Rehabilitation, (Per Annexure 7), amounted to declaration of the post as equivalent to a senior post. There was no embargo on the State Government in creating an ex cadre post as equivalent to a senior post since its inception, under the unamended Rule 2 (g) of the Seniority Rules The creation itself may amount to a declaration under Rule 2 (g). There was no embargo on the State Government in creating an ex cadre post as equivalent to a senior post since its inception, under the unamended Rule 2 (g) of the Seniority Rules The creation itself may amount to a declaration under Rule 2 (g). The petitioner is, therefore, entitled to count the period of his continuous officiation from the 15th November, 1964, to the 17th April, 1966, as Director, Project Lands and Rehabilitation as Officiation in a Senior post Such officiation did not require any approval of the Central Government, as is apparent from the following observations of his Lordship, Untwalia, J. (as he then was) in the Special Bench Case of S. A. F. Abbas v. Stale ( AIR 1970 Pat 397 ) = (1970 Lab IC 1518):- "It is to be remembered that the period of efficiation in a senior post by a promoted officer after the inclusion of his name in the Select List but before he is appointed to the Serivice under Regulation 9 of the Appointment by Promotion Regulations, did not require the approval of the Central Government Even after the deletion of the second proviso, in clause (b) of sub-rule (3) of Rule 3 of the Seniority Rules, an explanation has been added which runs as follows: "Explanation 1 In respect of an officer appointed to the Service by promotion in accordance with sub-rule (1) of Rule 8 of the Recruitment Rules, the period of his continuans offisciation in a senior post shall, for the purposes of determination of his seniority, count only from the date of the inclusion of his name in the select List, or from the date of his officiating appointment to such senior post whichever is later:" Even if the aforesaid explanation was to appply, the same result will follow and the petitioner would be entitled to count the period of his continuous officiation in a senior post from the date of his officiating appointment in such senior post, after the inclusion of his name in the select List on his appointment in the Indian Administrative Service. 15 The learned Standing Counsel appearing on behalf of the Union has submitted that this writ application should be dismissed, as the alternative remedy by way of an appeal to the President has not been aviled. 15 The learned Standing Counsel appearing on behalf of the Union has submitted that this writ application should be dismissed, as the alternative remedy by way of an appeal to the President has not been aviled. He has also submitted that there has been undue delay of about 3 years in moving this Court from the date of the impugned order conveyed to the petitioner per Annexture 1. This argument, apart from heing on the face of it self-contradictory, is without substance. The petitioners representation was rejected and communicated to him in State Governments letter dated the 28th March, 1974, and he filed this writ application on the 3rd April, 1974, and, therefore, there is no question of any delay. The remedy by way of memorial to the President is in substance an appeal to the Government of India, which has rejected the representation of the petitioner. It is, therefore, manifest that the memorial to the President is not such a remedy as would non-suit the petitioner in the Court. 16. It may be mentioned that no seprate argument has been advanced on behalf of Respondent No. 27, Shree S. K. Verma. Mr. Sheo Kumar Singh has adopted the same argument as advanced by the State for Sri Verma. 17. In the result, this application is allowed and the impugned orders contained in Annexures 1 and 2 are quashed. The Government of India is directed to reconsider the question of assigning the year of allotment to the petitioner, in the light of the observations made above. There will be no order as to costs. UDAY SINHA, J. 18 I agree.