ORDER (Per GADa Raghuram, J.) Heard the learned Advocate General, instructed by the learned Government Pleader for the General Administration for the State; Sri P.Ashok Gaud, the learned Assistant Solicitor General for the Union; Sri J .Sudheer, the learned counsel for Sri S.S.P.Yadav; and Sri P.Venugopal the learned counsel instructed by Sri H.Srinivas the learned counsel for Sri R.R. Girish Kumar, in the several writ petitions. 2. Three (3) Directors General of Police of the Andhra Pradesh IPS GADre, competing to head the Police force in the State, in the post of Director General of Police, Head of Police Force [DGP(HoPF)], has led to these writ petitions arising out of a common order of the learned Central Administrative Tribunal, Hyderabad Bench (for short 'the Tribunal'), dated 28-01-2010 in O.ANos. 944 and 999 of 2009. 3. The State has filed W.P.Nos. 2257 and 2880 of 2010 aggrieved by the order of the Tribunal in O.A. Nos. 944 and 999 of 2009; Sri R.R. Girish Kumar, IPS, the 3rd respondent in O.ANo. 944 of 2009 filed W.P.No. 2337 of 2010 against the order of the Tribunal in the O.A; Sri S.S.P. Yadav, IPS, the applicant in O.ANo. 944 of 2009, instituted W.P.No. 5225 of 2010 against the order of the Tribunal as regards some of the conclusions recorded by the Tribunal and Sri S.S.P. Yadav, the 3rd respondent in O.ANo. 999 of 2009 has filed W.P.No. 5238 of 2010 against the order in the O.A., insofar as the Tribunal held that the applicant therein (Sri A.K. Mohanty, IPS) was appointed on a regular basis as DGP (HoPF) and declared his entitlement to the Apex Scale of Rs. 80,000-00 (fixed) and to incidental benefits. 4. Sri S.5.P. Yadav, Sri AK. Mohanly and Sri R.R Girish Kumar are senior officers of the Indian Police Service borne on the Andhra Pradesh GADre. Sri S.S.P. Yadav belongs to 1972 batch and Sri AK. Mohanty to the 1975 batch, while Sri R.R Girish Kumar is of the 1976 batch. 5. The lis presented to the Tribunal: (A) Sri Yadav filed OA No.944/09 challenging the orders in G.O.Rt. No. 4657 GAD dt. 25.09.2009; G.O.Rt. No.4850 GAD dt. 07.10.2009, and a memo No. 901/SC.C/A1/2009-2, dt 13.10.2009 and sought a direction to the State to restore his position as Head of Police Force (HoPF) in the apex scale with consequential and incidental benefits. The lis presented to the Tribunal: (A) Sri Yadav filed OA No.944/09 challenging the orders in G.O.Rt. No. 4657 GAD dt. 25.09.2009; G.O.Rt. No.4850 GAD dt. 07.10.2009, and a memo No. 901/SC.C/A1/2009-2, dt 13.10.2009 and sought a direction to the State to restore his position as Head of Police Force (HoPF) in the apex scale with consequential and incidental benefits. (5) OA No. 999/09 was filed by Sri Mohanty calling in question G.O.Rt.No. 2441 GAD dt. 21.05.2009 as being in violation of the directions of the Supreme Court in Prakash Singh and others v. Union of India and others (1) 2007 (1) ALT (Crl.) 30 (SC) = 2006 (8) SCJ 577 = (2006) 8 SCC 1 = 2007 (2) ALT 2.3 (DN SC) and seeking a direction to the State to appoint him as DGP (HoPF) in the apex scale for the period prescribed by the Supreme Court and for incidental reliefs. (1) The admitted position (vide Para 9 of the counter of the State Government in OA No. 944/09) is that till 1996 there was only one sanctioned GADre post in the DGP grade and from 1997 there were two sanctioned GADre posts. It is also the admitted position that while the permitted utilization of officers in the DGP grade vide Rule 11 (7) of the IPS (Pay) Rules, 2007 (the 2007 Pay Rules) is two (2) till 1996 and four(4) thereafter; since 1990 and up-to-date the number of officers in position in the DGP grade has always been and continues to be in excess of the utilization authorized under Rule 11(7). This position is admitted vide the table set out in Para 9 of the State Government's counter in OA No. 944/09. (2) Earlier the Indian Police Service (Pay Rules) 1954 were in force and operation till the issue of the IPS (Pay) Rules 2007 (published and came into force from 21.02.2008). The 2007 Pay Rules were further amended by the IPS (Pay) Amendment Rules 2008, [2008 Amendments] notified on 22.09.2008 whereby in Rule-3(1) of the 2007 Pay Rules a new scale is introduced above the "HAG+" scale termed as the "Apex Scale". The provision pertaining to the apex scale vide Rule-3 as amended by the 2008 Amendments reads: "Rs. The 2007 Pay Rules were further amended by the IPS (Pay) Amendment Rules 2008, [2008 Amendments] notified on 22.09.2008 whereby in Rule-3(1) of the 2007 Pay Rules a new scale is introduced above the "HAG+" scale termed as the "Apex Scale". The provision pertaining to the apex scale vide Rule-3 as amended by the 2008 Amendments reads: "Rs. 80,000 (Fixed) + Grade Pay Nil (by upgradation of existing post of Director General of Police as Head of Police Force in the State GADre); With effect from the date of issue of Notification of the Indian Police Service (Pay) Amendment Rules, 2008)" Note 2 to this Rule enjoins: "The post of Director General of Police in the Apex scale shall be filled by selection from amongst the Officers holding the post of Director General of Police in the State in the GADre in the HAG+ Scale of Rs. 75,500 - (annual increment @ 3%) - Rs. 80,000." (3) In G.O.Rt. No. 759 GAD dated 7.11.2005 four officers of the 1972 batch including Sri Yadav ''''ere promoted to the rank of DGP in the scale of Rs. 24,050-26,000. In anticipation of the retirement w.e.f. 31.10.2007 of Sri M.A.Basith as Director General and Inspector General of Police, by the order in G.O.Rt. No. 6648 GAD dt. 30.10.2007 Sri Yadav was designated for posting as Director General and Inspector General of Police and took charge of this position on 31.10.2007. By G.O.Ms. No. 683 GAD dt. 3.11.2008 [consequent on the creation (by upgradation of one of the two sanctioned GADre posts of DGP) of a post in the DGP (HoPF) scale-vide the 2008 Amendments issued w.e.f. 27.09.2008)], the State upgraded the existing GADre post of Director General and Inspector General of Police, Andhra Pradesh and designated the same as DGP (HoPF) in the apex scale of Rs. 80,000 (Fixed), w.e.f. the date of issue of the Government of India notification i.e., 27.09.2008; and declared that the incumbent who holds this post is entitled to draw the apex scale of Rs. 80,000 (Fixed), as long as he holds the said post. On account of the order in G.O.Ms. No. 683, Sri Yadav who was one of the officers in the DGP grade (and was posted on transfer as Director General and Inspector General of Police by G.O.Rt. No.6648 dt 30.10.2007) was allowed the apex scale of Rs. 80,000 (Fixed), as long as he holds the said post. On account of the order in G.O.Ms. No. 683, Sri Yadav who was one of the officers in the DGP grade (and was posted on transfer as Director General and Inspector General of Police by G.O.Rt. No.6648 dt 30.10.2007) was allowed the apex scale of Rs. 80,000 (Fixed), as an incumbent DGP (HoPF) and w.e.f. 27.09.2008. The State Government by a consequent memo dated 5.11.2008 informed the PAO, Hyderabad that Sri Yadav is holding the post of DGP (HoPF) is entitled to draw the apex scale of 80,000 (fixed) w.e.f. the date of issuance of the Government of India notification of the 2008 Amendments i.e., 27.09.2008. (4) Sri Mohanty and two other officers of the 1975 batch were promoted to the above super-time scale of IPS in the rank of DGP in the scale of pay of Rs. 24,050 - 26,000, in G.O.Ms. No. 593 GAD dated 10.08.2007. (5) During the general elections (held simultaneously to the Lok Sabha and the State Legislative Assembly) in 2009, pursuant to the directive of the Election Commission of India (vide letter dated 18.03.2009), the State in G.O.Rt.No. 1365 GAD, dated 19.03.2009 transferred Sri Yadav from the post of DGP and directed that he hand over charge of the post to the Addl. DGP (Welfare) and report to the G.A.D. Pursuant to further direction from the Election Commission of India (vide letter dt 22.3.2009) the State in G.O.Rt. No. 1401 GAD dated 22.03.2009 appointed Sri Mohanty (then serving as the Chairman, AP Road Safety Authority) as the DGP (HoPF). (6) After conclusion of the elections, the State by G.O.Rt. No. 2441 GAD, 21.05.2009 transferred Sri Mohanty from the post of DGP and directed him to report to the GAD for further posting; and posted Sri Yadav (who was awaiting posting after being relieved from the post of DGP by the earlier order in G.O.Rt.No. 1365) as the D.G.P. (7) In G.O.Rt. No. 3657 GAD, dated 23.07.2009 the State ordered the posting of Sri Mohanty (more than 2 months after he was relieved from the post of DGP vide G.O.Rt.No. 2441) as Chairman of the AP Road Safety Authority. No. 3657 GAD, dated 23.07.2009 the State ordered the posting of Sri Mohanty (more than 2 months after he was relieved from the post of DGP vide G.O.Rt.No. 2441) as Chairman of the AP Road Safety Authority. (8) Sri Girish Kumar, [while substantively holding the post of Additional Director General of Police - serving as Director General (Vigilance & Enforcement) and exofficio Principal Secretary to the Government, GAD (Vigilance & Enforcement)] was transferred and posted as Director General, Anti Corruption Bureau vide G.O.Rt. No. 6649 GAD dated 30.10.2007 and assumed charge of the post on 01.11.2007. The post of Director General, ACB, is one of the two sanctioned GADre posts in the DGP Grade. (9) It would appear that there was a persistent demand from the 1976 batch IPS Officers for grant of DGP rank on an assertion that they had completed more than three deGADes of service. This demand was under the consideration of the State for some time, but the request was not acceded to as there were already four officers incumbent in the DGP rank. Nevertheless, a selection committee was constituted to consider the suitability of two officers of the 1976 Batch - Sri Girish Kumar and Sri Balvinder Singh, for appointment to the DGP rank. The selection committee met on 24.09.2009 and found these officers 'fit' for promotion (to the DGP rank). However, as there were already four DGP rank officers serving in the State, the selection committee suggested to defer promotion of these officers. On further examination of the matter, the State considered the recommendations of the selection committee and decided to promote Sri Girish Kumar as Director General of Police and consequently by G.O.Rt. No. 4667, GAD, dated 25.09.2009, Sri Girish Kumar was promoted to the rank of DGP in the HAG+ scale of Rs. 75,500 80,000 and posted as Director General, ACB (retained in the same post he was earlier working in his substantive position as Additional Director General of Police), vide Para 7 of the State's counter in OA No. 944/09. 10) Through G.O.Rt. No.4733 GAD dated 1.10.2009, the State (in view of note-2 u/Rule 3 of the 2007 Pay Rules and the mandate therein that the post of DGP (HoPF) be filled by selection from amongst officers holding the post of DGP in the State GADre in the HAG+ scale of Rs. 10) Through G.O.Rt. No.4733 GAD dated 1.10.2009, the State (in view of note-2 u/Rule 3 of the 2007 Pay Rules and the mandate therein that the post of DGP (HoPF) be filled by selection from amongst officers holding the post of DGP in the State GADre in the HAG+ scale of Rs. 75,500 - 80,000/-), constituted a committee (with the Chief Secretary as Chairman and two senior most Special Chief Secretaries as members), to prepare a panel of officers for appointment to the post of DGP (HoPF) from amongst existing officers in the rank of DGP in the HAG+scale. (11) In para-8 of its counter (in OA No.999/09) the State has asserted that the selection committee considered the officers working in the rank of DGP and prepared a panel of three names. On consideration of the recommendation of the selection committee, the Government selected and posted on transfer Sri Girish Kumar as DGP (HoPF) vide G.O.Rt. No. 4850, GAD, dated 7.10.2009. (12) Sri Yadav filed OA No.944/09 in October 2009 challenging the order in G.O.Rt. No. 4657 GAD dated 25.09.2009 (promoting and appointing Sri Girish Kumar as DGP in HAG+ scale); G.O.Rt. No. 4850 GAD, dt. 7.10.2009 [posting after selection; Sri Girish Kumar as DGP (HoPF) and on transfer placing the services of Sri Yadav at the disposal of the Transport, Roads & Buildings Department for appointment as VC&MD, APSRTC, Hyderabad in lieu of the incumbent Sri Dinesh Reddy]; and the consequent memo dated 13.10.2009 intimating the PAO, Hyderabad that on appointment as VC&MD, APSRTC on foreign service (vide G.O.Rt.4850), Sri Yadav would be governed by the enclosed terms and conditions viz., a pay in the above super-time scale of IPS in the rank of DCP - HAC+ scale of Rs. 75,500 - 80,000. (13) In November 2009 Sri Mohanty filed OA No.999/09 challenging G.O.Rt. No. 2441 GAD, dt 21.05.2009 whereby he was transferred from the post of DGP and Sri Yadav (who was earlier transferred out from the post of DGP vide G.O.Rt. No.1365 pursuant to the directives of Election Commission of India and was awaiting posting), was posted as DGP. 7. Core contentions. challenges and responses in OA Nos. 944 and 999 of 2009: OA No. 944/09: (A) The applicant (Sri Yadav) a 1972 batch IPS Officer of the AP GADre, was promoted to the rank of DGP on 7.11.2005. No.1365 pursuant to the directives of Election Commission of India and was awaiting posting), was posted as DGP. 7. Core contentions. challenges and responses in OA Nos. 944 and 999 of 2009: OA No. 944/09: (A) The applicant (Sri Yadav) a 1972 batch IPS Officer of the AP GADre, was promoted to the rank of DGP on 7.11.2005. He was 'selected' as DGP, AP and posted as such in a vacancy occasioned on the superannuation of Sri M.A Basith, in G.O.Rt. No. 6648 GAD dt 30.10.2007 and assumed charge of the post of DGP on 31.10.2007. Consequent on the 2008 amendments to the 2007 Pay Rules, he was placed in the apex scale of Rs. 80,000 (fixed) vide G.O.Ms. No. 683 dated 3.11.2008. (B) Sri Girish Kumar was illegally promoted to the rank of DGP vide G.O.Rt. No. 4667 GAD, dt 25.9.2009 though there were already four officers in the rank of DGP grade in position including Sri Yadav, contrary to the mandate of Rule 4(2) of the IPS GADre Rules 1954 (GADre Rules) r/w Rule 11 (7) of the 2007 Pay Rules. The illegality of Sri Girish Kumar's promotion to the rank of DCP is manifest since he was appointed as the 5th officer in DGP rank without the prior permission of the Government of India, in transgression of Rule 11(7) of the 2007 Pay Rules. (C) Earlier a screening committee met on 24.09.2009 to consider the fitness of Sri Girish Kumar and another officer (Sri Balvinder Singh) of the 1976 AP IPS Batch for promotion to the rank of DGP. This committee recorded in its proceedings that as there was no prior permission from the Government of India for creating a 5th post of DGP, Sri Girish Kumar cannot be considered for promotion as DGP and that his posting as DGP must be deferred till a vacancy arises to accommodate him within the permissible number of posts. However (on the very next day), the State issued G.O.Rt. No. 4667 (dated 25.09.2009) illegally promoting Sri Girish Kumar as DGP. By the order in G.O.Rt. No. 4850, GAD dated 7.10.2009 Sri Girish Kumar replaced the applicant as DGP (HoPF). However (on the very next day), the State issued G.O.Rt. No. 4667 (dated 25.09.2009) illegally promoting Sri Girish Kumar as DGP. By the order in G.O.Rt. No. 4850, GAD dated 7.10.2009 Sri Girish Kumar replaced the applicant as DGP (HoPF). (D) As Sri Cirish Kumar's promotion as DGP is illegal his subsequent appointment as DGP (HoPF) is equally illegal; Sri Girish Kumar was promoted as DCP illegally and without an available vacancy only to accommodate him for appointment as DGP (HoPF); the appointment of Sri Cirish Kumar and the consequent reversion of the applicant from the post of DGP (HoPF) is invalid as it is bereft of reasons, without notice and opportunity to the applicant and amounts to reduction in rank and status, violative of Articles 14, 16 and 311 of the Constitution. His reversion from the apex scale [DCP (HoPF)] is punitive and stigmatic and his consequent posting as VC&MO, APSRTc, not a post equated to DGP (HoPF) is unsustainable; the consequent memo dated 13.10.2009 granting him the lower, HAG+ scale of Rs. 75,500 - 80,000/- from the (fixed) apex scale of Rs. 80,000, amounts to reduction in rank. 8. OA No. 999/09: (A) The applicant (Sri Mohanty) a 1975 Batch IPS Officer of the AP GADre was promoted as DGP in August 2007. After the State removed Sri Yadav from the post of DGP (on the directive of the Election Commission of India vide G.O.Rt. No.1365 GAD, 19.03.2009), pursuant to selection by the Election Commission of India (from out of a panel of names of DGP rank officers) he was appointed as DCP (HoPF) vide G.O.Rt. No. 1401 GAD dated 22.03.2009 and assumed charge as such on 23.03.2009. (B) Soon after conclusion of election process and swearing in of the Chief Minister on 20.05.2009 (and even before the formation of the Council of Ministers), the applicant was arbitrarily removed from the post of DGP vide G.O.Rt. No. 2441 GAD dated 21.5.2009, ignoring his outstanding performance and track record and in transgression of the directions of the Supreme Court in Prakash Singh (1 supra), even before the applicant had completed 60 days in office and without any valid reasons. (C) Sri Yadav who was found unsuitable by the Election Commission of India was reappointed as DGP in his place. (C) Sri Yadav who was found unsuitable by the Election Commission of India was reappointed as DGP in his place. (D) The applicant's removal from the apex scale post of DGP (HoPF), irrationally without any reason, without affording an opportunity and his subsequent posting as Chairman, AP Road Safety Authority in the rank of DGP in the HAG+ scale of Rs. 75,500 - 80,000, constitutes a reduction in rank - a major penalty, in violation of the provisions of Art.311 of the Constitution. (E) Response of the State Government:- (i) Allegations of extraneous and ulterior motives in the impugned State conduct, denied. (ii) Upgradation of one of the two sanctioned GADre posts in the rank of DCP as DCP (HoPF) in the (fixed) scale on' 80,000/-and the obligation of the State to conform to the mandate of Note-2 appended to Rule-3 of the 2007 Pay Rules as amended in 2008 (whereby the post of DCP (HoPF) must be filled by selection from amongst officers holding the post of DCP in the State in the GADre of HAC+ scale of Rs. 75,700 - 80,000), admitted and conceded. (iii) Sri Yadav's contention that Sri Girish Kumar was unlawfully appointed as the 5th officer to the DGP rank without an available vacancy and without the permission of the Government of India is termed as an irrational stand since Sri Yadav was himself promoted as DCP in 2005, when there were already four officers serving in the rank of DCP and though Sri Yadav was second in seniority among the Additional DCPs. (iv) Sri Yadav was never selected for appointment but was merely transferred and posted as DC&IG of Police w.e.f. 31.10.2007, as one of the officers in the rank of DGP. There was no selection preceding such posting by G.O.Rt.No. 6648 GAO, 30.10.2007. Sri Yadav who was thus posted as DCP was officiating as DCP (HoPF) when this upgraded post was created in the apex scale w.e.f. 27.9.2008 and was allowed to draw emoluments in the apex scale vide the orders in C.O.Ms.No. 683 GAD dated 3.11.2008. Sri Yadav was never selected (as required by the 2007 Pay Rules, as amended in 2008), for appointment to the apex scale post of DCP (HoPF). Sri Yadav was never selected (as required by the 2007 Pay Rules, as amended in 2008), for appointment to the apex scale post of DCP (HoPF). After he was removed from the post of DCP on the directive of the Election Commission, as directed by the Election Commission of India Sri Mohanty was appointed as DCP in G.O.Rt.No. 1401 GAD dated 22.3.2009. Sri Mohanty was also never subjected to the process of selection by the State, for appointment as DCP (HoPF). On conclusion of the election process Sri Yadav who was awaiting posting was reposted as DCP by G.O.Rt.No. 2441 GAD dated 21.5.2009, transferring out Sri Mohanty, who was eventually posted as Chairman, AP Road Safety Authority. (v) Sri Cirish Kumar (who was promoted to the DCP rank in G.O.Rt.No. 2667 GAD 25.09.2009) was considered along with other officers in the rank of DCP by a selection committee constituted in G.O.Rt.No. 4733 GAD dt 1.10.2009 and appointed as DCP (HoPF) vide G.O.Rt. No. 4850 GAD dt 7.10.2009. Consequently Sri Yadav who was officiating as DCP (HoPF) was transferred out of this position and later posted as VC&MO, APSRTC. (vi) Sri Cirish Kumar was found 'fit' for promotion to the DCP rank by the selection committee on 24.09.2009 but his promotion was deferred as the selection committee opined that there was no vacancy available (as four DCP rank officers were already in place), is admitted. On further examination of the matter and in view of the available power under the second proviso to Rule-4 of the cadre Rules 1954 the State considered the recommendations of the selection committee and decided to promote one of the 1976 batch officers Sri Girish Kumar to the rank of DGP and issued orders in G.O.Rt. No.4667 GAD dt 25.09.2009, retaining him in the post of Director General, ACB (one of the two cadre posts), a post he was already occupying but in his substantive rank of Additional Director General (Para 7 of State's counter in OA No.944/09). (vii) After the post of DGP (HoPF) was created (by the 2008 amendments to the 2007 Pay Rules), the State addressed the Government of India to furnish guidelines regarding the procedure for selection for appointment to the post. The Government of India has not issued any guidelines. (vii) After the post of DGP (HoPF) was created (by the 2008 amendments to the 2007 Pay Rules), the State addressed the Government of India to furnish guidelines regarding the procedure for selection for appointment to the post. The Government of India has not issued any guidelines. Therefore the Slate Government constituted a selection committee (in G.O.Rt.No. 4733 GAD dated 1.10.2009) to prepare a panel of officers for posting as DGP (HoPF). (viii) The power of the State to add for a period not exceeding one year (and with the approval of the Central Government for a further period not exceeding two years), one or more posts carrying duties or responsibilities of like nature to the cadre posts, is not diminuted or circumscribed by the provisions of Rule-11(7) of the 2007 Pay Rules. The primary objective of these rules is to protect the pay and allowances of cadre officers. The promotion of Sri Girish Kumar as the 5th officer, in the rank of DGP is thus not in violation of law. (ix) As neither Sri Yadav nor Sri Mohanty were ever appointed as DGP (HoPF) after a due process or selection (as mandated by note-2 under Rule-3 of the 2007 Pay Rules), the transfer of these officers [while officiating in the post of DGP (HoPF)] to posts equated to posts of the rank of DGP is neither punitive nor violative of Articles 14, 16 and 311 of the Constitution. Such transfer neither amounts to reduction in rank nor is stigmatic. The selection of officers to hold the post of DGP (HoPF) [which is a sensitive and critical post] is a matter within the discretion of the State, which is best suited to make the decision, considering the over all qualities of the several officers within the legitimate zone of consideration. Neither the transfer of Sri Yadav or Sri Mohanty from the officiating position of DGP (HoPF) nor their subsequent postings to posts declared equivalent to DGP rank while extending them emoluments in the HAG+ scale of Rs. 75,500 - 80,000, constitutes a reduction in rank nor visits them with civil consequences, requiring an opportunity or hearing. (F) Response of the Central Government: Reg. OA No.944/09: (1) Appointment to the post of DGP (HoPF) from amongst existing DGPs is not a promotion and therefore removal of an officer from the apex scale of Rs. 75,500 - 80,000, constitutes a reduction in rank nor visits them with civil consequences, requiring an opportunity or hearing. (F) Response of the Central Government: Reg. OA No.944/09: (1) Appointment to the post of DGP (HoPF) from amongst existing DGPs is not a promotion and therefore removal of an officer from the apex scale of Rs. 80,000 (fixed) to the post of DGP in HAG+ scale of Rs. 75,500 80,000, cannot be considered reduction in rank; (2) Though the State did not obtain prior permission for creation of a 5th post in the DGP grade (while promoting Sri Girish Kumar vide G.O.Rt. No.4667 GAD dt 25.09.2009), the State later sought ex post facto sanction of the Central Government for creation of 5th post. The Central Government on the request of the State Government conveyed its approval for creation of a 5th post in the grade of DGP w.e.f. 25.09.2009 vide its letter dated 10.10.2009; Rs.eg. OA No.999/09: (3) Towards execution of the directions of the Supreme Court in Prakash Singh (1 supra) the Ministry of Home Affairs has filed an interlocutory application seeking clarification/modification of the directions given by the Apex Court. The Supreme Court has constituted a committee under the Chairmanship of Sri Justice K.T. Thomas (retired) on 16.05.2008 to examine the various issues pertaining to the Prakash Singh case; (4) As per Government of India's notification dated 24.03.2009 two posts at the level of DGP were approved as cadre posts for the State IPS cadre. As per the provisions of Rule- 11(7) of the 2007 Pay Rules, the State may create two ex-cadre posts in addition to the two sanctioned cadre posts. Thus in all State can operate only 4 posts at the DGP level. (G) Sri Girish Kumar had also filed a counter in the two OAs broadly reiterating the responses of the State. (H) Developments after institution of OAs:- (i) Sri Yadav filed OA No. 944/09 in October 2009 while Sri Mohanty filed OA No. 999/09 in November 2009. On 12.11.2009 the Hon'ble Chief Minister of the State addressed the Hon'ble Minister for Home, Government of India. (H) Developments after institution of OAs:- (i) Sri Yadav filed OA No. 944/09 in October 2009 while Sri Mohanty filed OA No. 999/09 in November 2009. On 12.11.2009 the Hon'ble Chief Minister of the State addressed the Hon'ble Minister for Home, Government of India. This letter has been produced for our perusal and reads: "Dear Sri Chidambaram garu, Kindly recall the discussions I had with you during your recent visit to Sardar Vallabhbhai Patel National Police academy, Hyderabad on 5th November 2009 with regard to appointment of Sri R.R.Girish Kumar, IPS as new DGP of AP. After I assumed the office of Chief Minister of AP I transferred out Sri S.S.P. Yadav, IPS from the post of Director General of Police, Andhra Pradesh on administrative grounds and posted Sri R.R.Girish Kumar, IPS in his place. Sri SSP. Yadav, IPS in turn has filed an OA No. 944/2009 in Cat, Hyderabad on 28.10.2009 challenging the promotion of Sri R.R.Girish Kumar, IPS from Addl. DGP to DGP and subsequent posting as DGP (Head of Police Force) with a plea to reinstate him as DGP (Head of Police Force). The State Government and Central Government (Secretary, Ministry of Home Affairs) have been cited as 1st and 2nd respondents. Since the promotion and posting of the new DGP, Sri R.R.Girish Kumar, IPS, is one of the first and major administrative decisions of the Government, it will be very embarrassing for the new Government in case the Tribunal for any reason reverses the Government's decision. On the directions of the State Government, Advocate General, Andhra Pradesh appeared on behalf of the State Government on 03-11-2009. The CAT directed the State Government to produce all connected records with the OA and posted the matter to 30th November 2009. In this backdrop, I shall be grateful if you could kindly consider initiating the following measures to safeguard the image and reputation of the Government. 1. Issue suitable instructions to the officials of Union Home Minister to increase the cadre strength of DG rank from the existing 2 + 2 (2 cadre and 2 non-cadre) to 3 + 3 (3 cadre and 3 non-cadre) soon to avoid legal hassles in the promotion of Sri R.R.Girish Kumar, IPS to the DC's rank. They may also be directed to file appropriate counter on behalf of MHA, Govt. of India. 2. They may also be directed to file appropriate counter on behalf of MHA, Govt. of India. 2. Direct the Additional Solicitor General to take up the matter personally and appear before CAT and defend the case on behalf of the Central Government. May I request you to kindly look into the issue on priority basis and do the needful at the earliest keeping in view the urgency and sensitivity of the issue. With regards, Yours sincerely, (K.ROSAIAH)" (ii) On 05.12.2009 the Chief Secretary to the State Government addressed the Secretary, Ministry of Home Affairs, Government of India. After referring to the letter dated 12.11.2009 addressed by the Hon'ble Chief Minister to the Hon'ble Minister for Home, Government of India regarding increase in the cadre strength of DG rank from the existing 2+2 (2 cadre and 2 non-cadre) to 3+3 (3 cadre and 3 non-cadre), the Chief Secretary's letter states: " ... In this context it may be stated that the State Government while sending proposals for cadre Review, during the year 2008, have requested for encadrement of the post of the Director General, Vigilance and Enforcement and Ex-Official Prl. Secretary to Government, General Administration Department explaining the need for the same in a detailed manner. However, the said proposal was not agreed to by the GOI stating that except in Uttar Pradesh and Madhya Pradesh, in no other State there are more than TWO cadre posts in DGP rank. Had the proposals of the State Government been accepted by the GOI, the State Government would have the advantage of THREE cadre posts in the rank of DGP and consequential ex-cadre posts of equal number in the State. As the GOI are aware, the Andhra Pradesh State is facing new challenges in maintaining the Law and Order in the light of the increasing terrorist activities and increase in crimes involving cadres of various political parties. Of late, regional divisive forces are inciting violence among the people adding to the situation already existing owing to communal elements. Besides, the State is experiencing serious problems due to the extremists' activities with particular reference to the activities in the AOB corridor which requires continuous coordination with the Governments of border States viz., Orissa, Chattisgarh, Maharashtra and Madhya Pradesh, to effectively curb their activities. Besides, the State is experiencing serious problems due to the extremists' activities with particular reference to the activities in the AOB corridor which requires continuous coordination with the Governments of border States viz., Orissa, Chattisgarh, Maharashtra and Madhya Pradesh, to effectively curb their activities. The requirement of an officer in the rank of DGP for tackling these issues, all of which are highly sensitive, and provide a positive leadership to the huge police force in the State, is very much felt in the changed circumstances. These issues have been highlighted by the State Government on several occasions earlier in various forums like DGPs' conference, conference of Home Ministers of the States convened by the Union Home Minister, etc. At present, the Andhra Pradesh State has Four (4) officers in the grade of Director General of Police viz., Sri S.S.P. Yadav, IPS 9RR:1972), VC&MD, APSRTC; Sri K.R.Nandan, IPS (RR:1975), Chairman, A.P. State Level Police Recruitment Board; Sri A.K.Mohanty, IPS (RR:1975), Chairman, A.P. State Road Safety Authority and Sri P.Gautam Kumar, IPS (RR:1975), Pri. Secretary to Government, Home Department. In view of the circumstances prevailing in the State, the Government felt the need for preparation of panel of officers in the DGP Grade in the HAG+ Sale for consideration for appointment as DGP (HoPS) in the Apex Scale as and when need arises owing to administrative exigencies. The Selection Committee prepared a panel of suitable officers for consideration and appointment as DGP (HoPF). The Government taking into consideration the requirement, the service profiles of all the officers in the panel have found Sri R.R. Girish Kumar, IPS (RR:1976) more suitable and appointed him as DGP (HOPF). It is, therefore, requested that the COT may consider for according sanction for Ex-Post Facto creating of one cadre post of DGP in the HAG+ Scale w.e.f 25.9.2009 in the circumstances stated in the letter referred to in para 1 above and aforesaid paras at the earliest." (iii) In response, by letter dated 10.12.2009, the Central Government conveyed its approval for creation of an ex-cadre post of DGP in the following terms: "I am directed to refer to the State Government's letter No. 951/SC.C/A1/ 2009-7 dated 5th December, 2009 on the subject cited above and to convey the ex-post-facto sanction of the Central Government to the creation of one ex-cadre post w.e.f. 25.09.2009, under Rule 11 (7) of IPS (Pay) Rules, 2001. " (I) The learned Tribunal framed common issues covering the competing contentions, challenges and responses in both the OAs and rendered its decision by a common order dated 28.01.2010. The several issues framed were answered as under: Decision of the Tribunal and the Reasons: (i) The post of DGP (HoPF) is a promotional post. (ii) The Government is empowered to transfer a person holding the post of DGP (HoPF) on a regular basis to any other cadre or an ex-cadre post in the DGP Grade without affecting his legal and constitutional rights. (iii) G.O.Rt. No. 4667 dt 25.09.2009 promoting Sri Girish Kumar (R-3 in OA No.949/09) to the DGP grade is unconstitutional and is quashed. Consequently, G.O.Rt. No. 4850 dt 7.10.2009 transferring and posting Sri Girish Kumar as DGP (HoPF) in the apex scale is unsustainable and is quashed. (iv) Sri Yadav is deemed to have been holding the post of DGP (HoPF) during two spells - between 31.10.2007 and 19.3.2009 and 21.5.2009 and 7.10.2009 on a regular and not an officiating basis. (v) Sri Mohanty is deemed to have held the post of DGP (HoPF) on a regular basis between 19.3.2009 and 21.5.2009. However since he held this post only during the election period and was not continued in that position after the elections, he cannot claim benefits qua the directions of the Supreme Court (in Prakash Singh) regarding the selection and tenure of DGP. (vi) The transfer and posting of Sri Yadav as VC&MO, APSRTC and 2] of Sri Mohanty as Chairman, AP Road Safety Authority in the scale of,{ 75,500 - 80,000/- [after a regular tenure as DGP (HoPF)] constitutes reversion to a lower scale. These officers are entitled to pay protection in the apex scale even after their transfers. (vii) Sri Girish Kumar is eligible to be appointed to the DGP (HAG+) scale only from 10.12.2009, the date on which the 5th post in the DGP grade was approved by the Government of India. These officers are entitled to pay protection in the apex scale even after their transfers. (vii) Sri Girish Kumar is eligible to be appointed to the DGP (HAG+) scale only from 10.12.2009, the date on which the 5th post in the DGP grade was approved by the Government of India. (viii) The State is directed to constitute a selection committee to select a panel of three names for appointment as DGP (HoPF) in the apex scale, in accordance with the Rules duly considering the cases of all officers in the DGP grade, consistent with the observations in Paras 12.1 and 13.4 (of the Tribunal's order), taking into account their length of service, record and range of experience and submit the same to the Chief Minister for selecting a person most suitable for the post. The selection committee shall also consider Sri Yadav and Sri Mohanty for such selection. (ix) The selection to the post of DCP (HoPF) shall be completed within two weeks from the date of receipt of the order. Till then the State may continue Sri Girish Kumar as DGP (HoPF), only as an ad hoc appointment but in the HAG+ scale and not in the apex scale [of 80,000 (fixed)]. 9. The conclusions recorded by the Tribunal on issues (i); (iv); (v) and (vi) are based on intermeshing reasoning. For its conclusion that the post of DGP (HoPF) is a promotional post, the Tribunal held that this post was created by upgradation of one of the existing posts of DCP; that note-2 appended to Rule 3 of the 2007 Pay Rules stipulates that the post of DCP (HoPF) in the apex scale shall be filled by selection from amongst officers holding the post of DCP in the said cadre in the HAC+ scale of Rs.75,00080,000; that the post of DCP in the HAC+ scale and that of DCP (HoPF) in the apex scale of Rs. 80,000 (fixed) are not in the same scale as the earlier is a 'running scale' while the later is a 'fixed scale'; that an officer just promoted to a post carrying the HAC+ scale cannot reach the maximum of Rs. 80,000 (fixed) are not in the same scale as the earlier is a 'running scale' while the later is a 'fixed scale'; that an officer just promoted to a post carrying the HAC+ scale cannot reach the maximum of Rs. 80,000 of that scale unless he completes two years of service; the State in its counter affidavit (O.A.No. 999 of 2009) admitted that the apex scale provides remuneration considering the additional responsibilities and duties attached to the post (of DCP (HoPF)}; and that it is a selection post unlike a selection grade post, involving higher responsibility and higher pay. As a corollary to its finding that the post of DCP (HoPF) is a promotional post, the Tribunal held that any transfer in the normal course from the apex scale to the HAC+ scale without pay protection would amount to reversion or reduction in scale or grade. 10. On issues (iv) and (v), the Tribunal held that Sri Yadav must be deemed to have held the post of DCP (HoPF) during the two spells (between 31-10-2007 and 19-03-2009 and 21-05-2009 and 07-10-2009), on a regular basis; and that Sri Mohanty must be deemed to have held the DCP (HoPF) post on a regular basis as well, between 19-03-2009 and 21-05-2009. Consequently, on issue No.(vi) the Tribunal held that the transfer and posting of Sri Yadav as VC & MD, APSRTC and Sri Mohanty as Chairman, AP Road Safety Authority in the scale of Rs. 75,000 - 80,000 (after these officers served on a regular basis as DCP (HoPF)} constitutes reversion to a lower scale and that they are therefore entitled to pay protection in the apex scale even after their transfers. 11. 75,000 - 80,000 (after these officers served on a regular basis as DCP (HoPF)} constitutes reversion to a lower scale and that they are therefore entitled to pay protection in the apex scale even after their transfers. 11. In coming to the conclusion that Sri Yadav and Sri Mohanty held the post of DGP (HoPF) on a regular basis, the Tribunal observed that: (i) the State never specified in any order that Sri Yadav was only officiating in the post of DGP (HoPF) or that his appointment as such was an interim measure; (ii) even after creation of the post of DGP (HoPF) in the apex scale, and note-2 under Rule 3 thereof enjoining appointment to this post be by selection, no selection committee was constituted; (iii) when Sri Yadav was transferred out of the post of DGP (HoPF) on the directions of the Election Commission, he was kept on 'compulsory wait' till conclusion of the election process and thereafter re-appointed as DGP (HoPF); and (iv) in the case of Sri Mohanty as well, his order of appointment as DGP (HoPF) (during the period of elections) did not specify that the appointment is temporary or a stopgap arrangement. It was an unconditional and absolute appointment. Therefore, Sri Mohanty must be considered as having been appointed as DGP (HoPF) against a regular vacancy (occasioned by the transfer of Sri Yadav on the directions of the Election Commission). However since Sri Mohanty's appointment as DGP (HoPF) was on the directions of the Election Commission whose jurisdiction enures only during the process of elections and cannot constitute a permanent eclipse of the powers and authority of the State to select and appoint a person as DGP. (HoPF), Sri Mohanty is not entitled to claim a tenure of two years qua the decision in Prakash Singh (1 supra), observed the Tribunal. 12. In view of the reasons recorded on issues (i) and (iv) to (vi), the Tribunal held that the Government may transfer a person holding the post of DGP (HoPF) on regular basis to any other cadre or ex-cadre post in the DGP grade, without affecting his legal and constitutional rights, meaning thereby that pay protection must be ensured. 13. On issue Nos (iii) and (vii) the Tribunal held that the order in G.O.Rt. 13. On issue Nos (iii) and (vii) the Tribunal held that the order in G.O.Rt. No.4667 GAD dated 25-09-2009 promoting Sri Girish Kumar to the DGP grade is unconstitutional and consequently the subsequent order in G.O.Rt.No. 4850 dated 07 -10-2009 transferring and posting Sri Girish Kumar as DGP (HoPF) in the apex scale is also unsustainable and is quashed. However, Sri Girish Kumar is eligible for appointment to the post of DGP in the HAG+ scale from 10-11-2009 when the fifth post in the DGP grade was approved by the Government of India. 14. The reasons recorded by the Tribunal for this conclusion are: (i) when Sri Girish Kumar was considered for the post of DGP, there were already four individuals holding the post in the rank of DGP - Sri Yadav, Sri Mohanty, Sri Nandan and Sri Gautam Kumar; Rule 3 (2) of the 2007 Pay Rules enjoins that appointment of a member of the service in the scales of selection grade and above shall be subject to availability of vacancies in these grades; for this purpose it shall be necessary for the State cadre authorities to seek prior concurrence of the Central Government on the number of available vacancies in each grade and no such concurrence was obtained; (ii) there was no vacancy in the DGP HAG+ scale as on 25-09-2009 to accommodate Sri Girish Kumar; (iii) the promotion of Sri Girish Kumar to the post of DGP (HoPF) is therefore in violation of Rule 3 (2) (ii) of the Pay Rules and Article 312 of the Constitution; (iv) promotion of Sri Girish Kumar by the presumptive creation of an ex-cadre post beyond permissible limits can be resorted to under the second proviso to Rule 4 (2) of the cadre Rules only after an objective assessment of the requirement, duties and responsibilities of the post. No such assessment was made; (v) the amplitude of Rule 4 (2) of the cadre Rules is circumscribed by Rule 11 (7) of the Pay Rules in respect of posts in the scale of Rs. 75,000 - 80,000; Rule 11 (7) of the Pay Rules prohibits occupation by members of the service of posts other than the cadre posts referred to in Rule 4 (1) and (2) of the 2007 Pay Rules (carrying the pay scale of Rs. 75,000 - 80,000; Rule 11 (7) of the Pay Rules prohibits occupation by members of the service of posts other than the cadre posts referred to in Rule 4 (1) and (2) of the 2007 Pay Rules (carrying the pay scale of Rs. 75,000 - 80,000) in excess of the number of cadre posts at that level in such cadre, except with the prior approval of the Central Government; and no prior approval of the Central Government preceded the appointment of Sri Girish Kumar to the post of DGP. The Tribunal observed that the State decided to first promote Sri Girish Kumar to the cadre post of DGP in order to shortly thereafter promote him to the post of DGP (HoPF), though there was no available vacancy in the DGP cadre and though this position was specifically pointed out by the Departmental Promotion Committee. The State under the guise of exercising power under the second proviso to Rule 4 (2) of the cadre Rules, illegally promoted Sri Girish Kumar to the post of DGP on 25-09-2009. Ex-post facto approval by the Central Government pendente lite (vide letter dated 10-12-2009) does not cure or efface the illegality of Sri Girish Kumar's appointment as DGP; and neither the recidivist illegal practice of the State (of creating more ex-cadre posts than permitted by the rules) nor the fact that Sri Yadav was equally a beneficiary of such unholy practice, detract from the illegality in the appointment of Sri Girish Kumar as DGP by the order in G.O.Rt. No. 4667 GAD dated 25-09-2009. The Tribunal ruled that since Sri Girish Kumar's appointment as DGP by the order dated 25-09-2009 is illegal and inito void, his transfer to the post of DGP (HoPF) in the apex scale vide G.O.Rt.No. 4850 GAD dated 07-10-2009 is also unsustainable. However since the Government of India sanctioned a fifth post in the DGP grade vide its letter dated 10-12-2009, Sri Girish Kumar must be considered eligible to hold the post of DGP in the HAG+ scale on and from 10-12-2009. 15. However since the Government of India sanctioned a fifth post in the DGP grade vide its letter dated 10-12-2009, Sri Girish Kumar must be considered eligible to hold the post of DGP in the HAG+ scale on and from 10-12-2009. 15. As a consequence of the reasons recorded on issues (i) to (vii) above, the Tribunal directed the State to constitute a selection committee to select a panel of three names for appointment to the post of DGP (HoPF), in accordance with rules, duly considering all officers in the DGP grade including Sri Yadav and Sri Mohanty, taking into account their service, record and range of experience and to submit the same to the Chief Minister for selecting a suitable person for the post of DGP (HoPF). The Tribunal observed that since the post of DGP (HoPF) is a promotional post, the persons who are considered for the post should have sufficient length of service, very good records and range of experience to select a person for heading the Police force as directed by the Supreme Court in Prakash Singh (1 supra). The Tribunal also observed that Sri Girish Kumar, who had less than fifteen (15) days of service as DGP when he was promoted in the apex scale to the post of DGP (HoPF) cannot be considered to satisfy this requirement. The Tribunal, on a perusal of the record found that neither Sri Yadav nor Sri Mohanty were considered on 01-10-2009 when the selection committee met to select a panel of persons for appointment to the post of DGP (HoPF) for eventual consideration by the Chief Minister. The Tribunal also observed that Sri Mohanty was issued a charge memo on 18-07-2009 on a frivolous charge which was dropped eventually on 09-11-2009. This devise was a stratagem to deny his consideration for appointment to the post of DGP (HoPF), observed the Tribunal. The Tribunal further observed that there was no basis for the noting that Sri Yadav was found wanting in providing positive leadership to the police force and that in any case he should also have been considered for appointment as DGP (HoPF). 16. The Tribunal further observed that there was no basis for the noting that Sri Yadav was found wanting in providing positive leadership to the police force and that in any case he should also have been considered for appointment as DGP (HoPF). 16. Having regard to the criticality and importance of the post of DGP (HoPF), the Tribunal in conclusion directed that the process of de novo selection to the post of DGP (HoPF) should be completed within two weeks from the date of receipt of its order and that till then Sri Girish Kumar may be continued as DGP (HoPF) but only on ad hoc basis and in the HAG+ scale and not in the apex scale. 17. In view of the rival pleadings and contentions urged before the Tribunal and reiterated here, and the observations and findings recorded by the Tribunal on the several issues adverted to above, the following issues arise for determination by this court: 18. ISSUES: (1) Whether the post of DGP (HoPF) is a distinct post involving distinct functions and responsibilities, higher to the post of DGP-HAG+ scale in terms of functions and responsibilities; whether appointment thereto must follow a process of selection; (2) Whether Sri Yadav and Sri Mohanty were appointed to the post of DGP (HoPF) in accordance with the ordained procedure/process for such appointment for reckoning their incumbency in the said post as regular or even otherwise could be treated as regularly appointed to the said post; (3) If Sri Yadav and/or Sri Mohanty were appointed on regular basis to the post of DGP (HoPF), whether their subsequent transfer to a post in the DGP grade with the scale of pay and perquisites relevant to that grade is impermissible as constituting a reversion/reduction in rank; (4) Whether the order of the State Government in G.O.Rt. No. 4667 GAD dated 25.09.2009 promoting Sri Girish Kumar to the DGP grade is invalid for violation of the 2nd proviso to Rule 4(2) of the cadre Rules as conditioned by Rule 11 (7) of the 2007 Pay Rules and if so such illegality stood cured by the Ex-Post Facto sanction of the Central Government to the creation of one ex-cadre post w.e.f. 25.09.2009, under Rule 11(7) of the IPS (Pay) Rules 2007, conveyed by the letter dated 10.12.2009; and whether the subsequent order in G.O.Rt. No. 4850 GAD dated 07.10.2009 posting Sri Girish Kumar as DGP (HoPF), is sustainable; and (5) Whether observations by the Tribunal with regard to the relevant considerations that should inform the selection for appointment to the post of DGP (HoPF), or with regard to the rationality of the State's order in G.O.Rt. No. 4850 GAD dated 07.10.2009 preferring Sri Girish Kumar over Sri Yadav for selection and appointment as DGP (HoPF) and other cognate observations, warrant interference. 19. ANALYSIS:- Issues (1) and (2): Issues (1) and (2) could be conveniently considered together. In supersession of the IPS (Pay) Rules 1954 the Government of India in GSR 108(E) dated 21.02.2008 promulgated the 2007 Pay Rules. Rule 3(1) sets out the scales of pay admissible to members of the service and the dates with effect from which the said scale shall be deemed to have come into force as: “A. Junior Scale - Rs. 8000-275-13500 (with effect from the 1st day of January 1996). B. Senior Scale (i) Time Scale - Rs. 10000-325-15200 (with effect from the 1st day of January 1996); (ii) Junior Administrative Grade Rs. 12000-375-16500 (non-functional) 221 (with effect from the 1st day of January, 1996); (iii) Selection Grade – Rs. 14300-40018300 (with effect from the ot day of January, 1996); C. Super Time Scale - (i) Deputy Inspector General of Police – Rs. 16100450-20000 (with effect from 1st day of January, 1996); (ii) Inspector General of Police Rs. 18400-500-22400 (with effect from the 1st day of January, 1996) D. Above Super Time Scale (i) Additional Director General of Police – Rs. 22400-525-24500 (with effect from 1st day of January, 1996) (ii) Director General of Police – Rs.24050650-26000 (with effect from 1st day of January, 1996). " 20. Schedule IIA of these Rules enumerates posts carrying pay above the senior scale and for the State of Andhra Pradesh specifies the posts of Director General & Inspector General of Police and Director General of Police, Anti Corruption Bureau as the two senior posts in the scale of Rs. 24050-650-26000/-. 21. The Central Government in GSR 692(E) dated 27.09.2008 issued amendments to the 2007 Pay Rules. 24050-650-26000/-. 21. The Central Government in GSR 692(E) dated 27.09.2008 issued amendments to the 2007 Pay Rules. Rule 3(1) of the 2007 Pay Rules is substituted and reads: "(1) Pay-Bands and Grade Pays: The pay bands and grade pays admissible to a member of the Service and the dates w.e.f which the said pay bands and grade pays shall be deemed to have come into force, shall be as follows:- A. Junior Scale - Pay-Band -3: Rs.15600-39100 plus Grade Pay Rs. 5400; B. Senior Scale - (i) Senior Time Scale- Pay-Band-3: Rs. 15600-39100 plus Grade Pay Rs. 6600; (ii) Junior Administrative Grade Pay-Band -3: Rs. 15600-39100 plus Grade Pay Rs. 7600; (iv) Selection Grade: Pay-Band -4: Rs. 37400-6700 plus Grade Pay Rs. 6700; C. Super Time Scale - (i) Deputy Inspector General of Police Pay-Band -4: Rs. 37400-67000 plus Grade Pay Rs. 8900; (ii) Inspector General of Police- Pay-Band -4; Rs. 37400-67000 plus Grade Pay Rs. 10000; D. Above Super Time Scale- (I) Additional Director General of Police - Pay-Band -4: Rs. 37400-67000 plus Grade Pay Rs. 12000; (ii) HAG+ ; Rs. 75500 (annual increment @ 3%)-80000; Grade Pay: nil; (iii) Apex Scale: Rs. 80000 9fixed), Grade Pay: nil (by upgradation of one existing post of Director General of Police as head of police force in the each State cadre); (with effect from the date of issue of notification of the Indian Police Service (Pay) Amendment Rules 2008); Note 1: Appointment of a member of the Service to the Senior Time Scale and above shall be regulated as per the provisions in the Guidelines regarding promotion to various grades in the Indian Police Service. Provided that a member of the Service shall be eligible for appointment to the Senior Time Scale on his completion of four years of service, subject to the provisions of sub-rule 2 of Rule 6A of the Indian Police Service (Recruitment) Rules, 18954, to the Junior Administrative Grade on completion of nine years of service, to the Selection Grade on completion of thirteen years of service, to the Deputy Inspector General Super Time Scale on completion of fourteen years of service and to the Inspector General Super Time Scale on completion of eighteen years of service. Provided further that a member of the service shall be appointed to the Junior Administrative' Grade only after he has completed phase III mandatory Mid Career Training as specified by the Central Government. Note 2: The post of Director General of Police in the apex scale shall be filled by selection from amongst the officers holding the post of Director General of Police in the State cadre in the HAG+ scale of Rs. 75500-(annual increment @ 3%)- 80000." 22. Rule 1 of the 2008 Amendments amends Schedule IIA of the 2007 Pay Rules, specifying that one of the existing posts of Director General of Police in the State shall be placed in the Apex Scale of Rs. 80,000 (fixed) and designated as the Head of Police Force in the State. 23. Provisions of Rule 3(2) of the 2007 Pay Rules are also relevant and are extracted: "(2)(i) Appointment to the Selection Grade and to posts carrying pay above this grade in the Service shall be made by selection on merit, as per the criteria that may be prescribed by the Central Government, with due regard to seniority. (ii) Appointment of a member of the Service in the scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be mandatory upon the State cadres or the Joint cadre Authorities, as the case may be, to seek prior concurrence of the Central Government on the number of available vacancies in each grade. (iii) The Central Government shall accord such concurrence within a period of thirty days from the date of receipt of such references and if the Central Government does not accord concurrence within a period of said thirty days, the concurrence on availability of vacancies shall be deemed to have been accorded. The position emanating as referred to in this clause shall be placed before the Screening Committee at the time it meets to consider promotion in these grades. (iv) A member of the Service shall be entitled to draw pay in the scales of Selection Grade and above only on appointment to these grades. " 24. From the conspectus of the rules and regulations and amendments adverted to above it is clear: (A) For Andhra Pradesh, one of the two posts of DGP in the HAG+ scale of Rs. 75,500- Rs. " 24. From the conspectus of the rules and regulations and amendments adverted to above it is clear: (A) For Andhra Pradesh, one of the two posts of DGP in the HAG+ scale of Rs. 75,500- Rs. 80,000 is upgraded as Head of Police Force (HoPF) with effect from the date of issue of the notification of the 2008 amendments to the 2007 Pay Rules (i.e. 27.09.2008) and is designated as a third (iii) category post (in the above super-time scale posts enumerated in category-D in the table under Rule 3(1) of the 2007 Pay Rules). It is designated as an apex scale post with a fixed pay of, Rs. 80,000/and without an appended grade pay. It is now a distinct post. (B) The upgraded post of DGP (HoPF) is mandated (shall) to be filled by selection from amongst officers holding the post of DGP in the State cadre in the HAG+ scale of Rs. 75,50080,000 (Note-2 under Rule 3(1) of the 2007 Pay Rules). (C) Rule 3(2)(i) of the 2007 Pay Rules enjoins appointment to the selection grade and to posts carrying pay above this grade in the service to be by selection on merit, as per criteria that may be prescribed by the Central Government, with due regard to seniority. An analysis of Clauses (ii) to (iv) of Rule 3(2) shows that the State is mandated to follow the specified procedure for appointment of a member of the service to the selection grade scale and above. The sequence of procedure is: (i) Vacancies should be available and the State cadre Authority must seek prior sanction of the Central Government as to the number of available vacancies in each grade. If the Central Government fails to accord such concurrence within a period of 30 days from the date of receipt of a reference from the State cadre authority, the concurrence on the availability of vacancies shall be deemed to have been accorded and the resultant position must be placed before the screening committee at the time it meets to consider promotion to these grades; (ii) A member of the service shall be entitled to draw a pay in the scales of selection grade and above only on appointment to these grades. (D) Prior to 27.09.2008 (the date w.e.f which the 2008 amendments were issued), all posts 'of the DGP rank in the State, (whether cadre or ex-cadre) were equal in rank, status and responsibilities and normatively possessed a generic functional parity as well, apart from having an identical and running scale of pay. Such parity is recognized by the provisions of the 2008 amendments as well. Note-2 to Rule 3(1) stipulates that the post of DGP (HoPF) in the apex scale shall be filled by selection from amongst officers holding the post of DGP in the cadre in the HAG+ Scale of Rs. 75,500 - 80,000. On and after 27.09.2008 the post of DGP (HoPF) was created as a distinct post (Schedule IIA of the 2007 Pay Rules) on upgradation of one of the two cadre posts of DGP grade in the State. What was upgraded is the posts of DGP; there was no upgradation of the current incumbent of the post of DGP along with the post, to the status of DGP (HoPF). The relevant rules do not enjoin that an incumbent of the post of DGP (appointed as such prior to creation of the upgraded and distinct post of DGP(HoPF) is deemed to have been appointed to the post or is entitled to continue therein. (E) The entitlement to draw pay in the apex scale (selection grade and above) is conditional upon appointment after due fulfillment of these mandatory prescriptions of the rules and regulations issued by the Government of India in exercise of its power under the All India Service Act, 1951 - a law enacted by the Parliament in exercise of the legislative power qua Article 312 and the legislative field enumerated in Entry-70 of List-I of the Seventh Schedule of the Constitution of India. (F) Sri Yadav (promoted and appointed as DGP vide G.O.Rt. No.7593 GAD dt. 7.11.2005) while serving as Director General (ACB) was transferred and posted as Director General and Inspector General of Police on the superannuation of Sri M.A. Basith, the incumbent of this office (vide G.O.Rt. No.6648 GAD dt. 30.10.2007). This was a mere posting on transfer from one post of DGP to another without any process of selection involved. This was also prior to the creation of the post of DGP (HoPF). No.6648 GAD dt. 30.10.2007). This was a mere posting on transfer from one post of DGP to another without any process of selection involved. This was also prior to the creation of the post of DGP (HoPF). On the creation of the post of DGP (HoPF) by upgradation of one of the posts of DGP, the State Government issued a consequent and formal order in G.O.Ms.No. 683 GAD dt 3.11.2008 upgrading the existing post of DG&IG of Police for placement in the apex scale of Rs. 80,000 (fixed) designated as DGP(HoPF), w.e.f. 27.09.2008. In the same order it is mentioned in para-2 that the incumbent is entitled to draw the apex scale of Rs. 80,000 (fixed) during his currency in the said post. (An executive fiat without a legal basis and without a demur). (G) After 27.09.2008 [date of creation of the upgraded post of DGP(HoPF)], there was no selection held for appointment to the post of DGP (HoPF), before the appointment of Sri Girish Kumar. We have noticed that Note-2 to Rule 3(1) of the 2007 Pay Rules enjoins that the post of DGP(HoPF) shall be filled by selection, by considering officers holding the post of DGP in the HAG+ Scale of Rs. 75,500 - Rs. 80,000/-. For a regular, legitimate appointment to the post of DGP(HoPF), on and from 27.09.2008 therefore, there must be a process of selection. This is the inexorable mandate of Note-2 under Rule 3(1) of the 2007 Pay Rules, and a non-derogable obligation qua Clauses (ii) to (iv) of Rule 3(2) of the 2007 Pay Rules. (H) During 19.03.2009 to 21.05.2009, Sri Yadav was kept out of his incumbency of the post of DGP (HoPF), pursuant to the direction of the Election Commission of India. He reassumed the said position pursuant to the orders in G.O.Rt. No. 2441 GAD dt 21.5.2009. Neither the procedure mandated by Rule-3(2) of the 2007 Pay Rules nor a process of selection (duly considering officers holding the post of DGP in the HAG+ Scale of Rs. 75,500 – Rs. 80,000/- mandated by Note-2 to Rule 3(1) of these Rules) was followed prior to the orders in G.O.Rt.No. 2441 GAD dated 21.05.2009, reposting Sri Yadav as DGP(HoPF). (I) Sri Yadav was thus never appointed by following the due process mandated by law to the post of DGP(HoPF). He was never selected for appointment to this post. 75,500 – Rs. 80,000/- mandated by Note-2 to Rule 3(1) of these Rules) was followed prior to the orders in G.O.Rt.No. 2441 GAD dated 21.05.2009, reposting Sri Yadav as DGP(HoPF). (I) Sri Yadav was thus never appointed by following the due process mandated by law to the post of DGP(HoPF). He was never selected for appointment to this post. The mere fact that the State issued orders in G.O.Ms.No. 683 GAD dt 3.11.2008, entitling the incumbent of the post of DGP(HoPF) to the Apex scale of Rs. 80,000 (fixed), during the incumbency, does not legitimize Sri Yadav' s de facto incumbency of the post of DGP(HoPF) nor elevates it to a de jure entitlement and to the status of a regular, duly appointed incumbent of the post of DGP(HoPF). (J) Sri Mohanty (promoted as DGP vide G.O.Ms. No. 593 GAD dated 10.08.2007) was appointed as DGP (HoPF) vide orders in G.O.Rt. No. 1401 GAD dt 22.3.2009, pursuant to the directives of the Election Commission of India. Earlier a vacancy in this post had arisen on the transfer of Sri Yadav from this post vide G.O.Rt.No. 1365 GAD dt 19.03.2009, also pursuant to the directive of the Election Commission of India. The appointment of Sri Mohanty as DGP(HoPF) was consequent on the direction of the Election Commission of India, during the period of elections when the Commission had over all oversight and control over elections related administrative processes in the State, pursuant to the powers of superintendence, direction and control of the election process qua Art.324 of the Constitution. Sri Mohanty cannot therefore be considered as having been selected and appointed as DGP(HoPF) in accordance with the mandated procedure under the provisions of Note-2 under Rule 3(1) or Rule 3(2) of the 2007 Pay Rules. With the cessation of the oversight functions of the Election Commission of India over the relevant administrative affairs of the State on conclusion of the election process, the power (of the Election Commission of India) which authorized the appointment of Sri Mohanty to the post of DGP(HoPF) came to an end. While it was open for the State to have constituted a selection committee after following the procedure mandated by Rule 3(2) and as enjoined by Note-2 under Rule 3(1) of the 2007 Pay Rules and to have continued Sri Mohanty as DGP(HoPF) consequent on such a duly conducted process of selection, no such process ensued. While it was open for the State to have constituted a selection committee after following the procedure mandated by Rule 3(2) and as enjoined by Note-2 under Rule 3(1) of the 2007 Pay Rules and to have continued Sri Mohanty as DGP(HoPF) consequent on such a duly conducted process of selection, no such process ensued. The State rightly treated Sri Mohanty as a substantive holder only of the post of DGP in the HAG+ Scale of Rs. 75,500 Rs. 80,000/- and transferred him from the post of DGP(HoPF) in G.O.Rt. No. 2441 GAD dt 21.5.2009, by which order Sri Yadav (another officer substantively holding the post of DGP in the HAG+ Scale of Rs. 75,500 Rs. 80,000/-) was posted as DGP(HoPF). Later in G.O.Rt.No. 3657 GAD dated 23.7.2009 Sri Mohanty (who was awaiting posting) was posted as Chairman, AP Road Safety Authority. Sri Mohanty cannot in the circumstances be considered as appointed on a regular basis after due compliance of the mandated procedure [Note-2 to Rule 3(1) and Rule 3(2) of the 2007 Pay Rules], to the post of DGP (HoPF). (K) When the statutory rules mandate a process of selection and appointment tv a public post governed by the provisions of the Constitution and when the zone of consideration is also specified in the statutory rules, the injunctions of Articles 14 and 16 and fundamental principles of public law which ordain Government to act in accordance with the Constitution and the laws mandate that an appointment to a public office, made in violation of the ordained procedure and without considering claims of all eligible persons is invalid and shall not be considered an appointment. The fact that the executive Government did not ever care to characterize the appointment of Sri Yadav or Sri Mohanty to the post of DGP (HoPF) as either temporary/ stop-gap/ provisional/ ad-hoc or officiating cannot confer on these officers the status of regular appointment to the post of DGP (HoPF). To acknowledge such a position would be to enable executive subversion or repeal of statutory rules by mere executive fiat or practice. What is of further criticality in this case is that the statutory rules in question are issued by the Central Government in exercise of powers conferred by See. 3(1) of the All India Services Act, 1951, a federal legislation made within the Union's exclusive legislative field and authority. What is of further criticality in this case is that the statutory rules in question are issued by the Central Government in exercise of powers conferred by See. 3(1) of the All India Services Act, 1951, a federal legislation made within the Union's exclusive legislative field and authority. The State has neither the legislative nor a complementary executive power, authority or jurisdiction to over-ride or act in derogation or transgression of the provisions of the 2007 Pay Rules. When State conduct transgresses a non-derogable legal architecture, invalidity of the unlawful conduct is the inexorable consequence. 25. We answer Issues 1 and 2, on the analysis above and hold that the post of DCP(HoPF) is a distinct post in the Indian Police Service in the State, involving distinct and higher functions and responsibilities with a distinct pay scale and higher to the post of DGP in the HAG+ Scale of Rs. 75,500Rs. 80,000/-; Sri Yadav and Sri Mohanty were never appointed to the post of DGP(HoPF) in accordance with the relevant rules; and cannot therefore be considered as regularly appointed thereto. Issue (3): 26. To buttress his contention that transferring Sri Yadav from the post of DGP (HoPF) to the post of VC&MD, APSRTC, a non-equivalent post with resultant loss of pay, on irrelevant grounds and factors not germane to the exercise of the power, is impermissible and constitutes malice in law, Mr. Sudheer places reliance on the following decisions: State of A.P. and others v. Goperdhanlal Pitti (2) (2003) 4 SCC 739 = 2003 (6) ALT 19 .1 (DN SC); Punjab State Electricity Board Ltd P. Zora Singh and others (3) (2005) 6 SCC 776 = 2005 (6) SCJ 197 = 2005 (6) ALT 47.2 (DN SC); Union of India through Government of Pondicherry and another v. V. Ramakrishnan and others (4) (2005) 8 SCC 394 = 2006 (1) ALT 14.4 (DN SC) = 2005 (8) SCJ 18; R.S. Garg v. State of U.P and others (5) (2006) 6 SCC 430 ; Tejshree Ghag and others v. Prakash Parnshurmn Patil and others (6) (2007) 6 SCC 220 ; Somesh Tiwari P. Union of India and others (7) (2009) 2 SCC 592 . 27. 27. The generic conspectus of the above decisions is that malice in law (as distinct from malice in fact) connotes an act done without lawful excuse; for an unauthorized purpose; wrongfully and willfully without reasonable or probable cause; but not necessarily from in-feeling or spite. Tejashree Ghag (6 supra) while reiterating the established principle that an executive decision vitiated by legal malice is unsustainable, has applied this principle to the facts of that case and laid down that an order of transfer that adversely affects the status of an employee, his rank, duties, responsibilities or pay, would be violative of his conditions of service and therefore invalid; and that parity of pay cannot be the sole index of an order of a transfer being benign and a normal incident of service. Somesh Tiwari (7 supra) also illustrates application of the principle of legal malice. It states that where an order of transfer is based on an irrational ground such as an allegation made in an anonymous complaint, the transfer is vitiated. 28. The above decisions have no application to the concrete facts of the cases before us. Sri Yadav did not hold the post of DGP(HoPF) on a regular and substantive basis, not having been appointed thereto after 27.09.2008 (the date of creation of this post by upgradation) after a process of selection as enjoined by the statutory rules. He was earlier posted to the post of DGP and continued therein even after upgradation of this post. He was therefore not a lawful incumbent of the post of DGP(HoPF). Though Sri Mohanty was selected (by the Election Commission of India) he cannot be considered as appointed as DGP(HoPF) by a process of selection, within the meaning of said expression under the 2007 Pay Rules or as enjoined by the judgment in Prakash Singh (1 supra). In fact the first incumbent of the post of DGP(HoPF) (having been appointed thereto by a process of selection though not in accordance with the mandate of Prakash Singh (1 supra) was Sri Girish Kumar. Whether the appointment of Sri Girish Kumar to the post of DGP (HoPF) is allegedly invalid since his appointment to the post of DGP in HAG+ scale is invalid, is another matter which we consider as part of our analysis in issue-4. 29. Whether the appointment of Sri Girish Kumar to the post of DGP (HoPF) is allegedly invalid since his appointment to the post of DGP in HAG+ scale is invalid, is another matter which we consider as part of our analysis in issue-4. 29. Suffice to hold that the post of DGP (HoPF) was not filled up or an appointment made thereto in accordance with law and the relevant rules, either by the incumbency of Sri Yadav or Sri Mohanty. These officers have merely discharged functions attached to the post of DCP (HoPF). 30. There is a slight distinction even on this aspect, as regards the tenure of Sri Mohanty in the post of DGP (HoPF). Since he was appointed to function as DGP (HoPF) under the directive of the Election Commission of India during the overarching authority of that constitutional body during the election process (qua the provisions of Art.324 of the Constitution), the tenure of Sri Mohanty as DGP (HoPF) is in our considered view, regular and legitimate but of a limited tenure having regard to the dominant authority of the Election Commission of India which must prevail over the normal architecture of All India Services Rules as well, during the period of elections; but not thereafter, since Rule 7 of the cadre Rules enjoins that all appointments to cadre posts shall be made by the State Government, in the case of a State cadre. 31. We have reasoned supra that neither the tenure of Sri Yadav nor of Sri Mohanty (beyond the election process) in the post of DGP (HoPF) could be considered a regular appointment to the post of DGP (HoPF). We have also concluded that these officers must be considered as always to have held substantively only the post of DCP in HAC+ scale. The State Government, on our analysis of the law and its application to the grossly irregular process adopted by it, must be considered as having kept the post of DGP (HoPF) unfilled on a regular basis, notwithstanding the incumbency of Sri Yadav thereto, after 27.09.2009 or on his restoration to the post on 21.5.2009 by transferring Sri Mohanty from that post. As the State on a fundamental misconception of the applicable legal domain treated the post of DGP (HoPF) on par with the post of DGP in HAG+ scale, for the purposes of administering appointments and postings thereto, it went about cavalierly shuffling officers without bestowing any thought on the transformation brought about by the 2008 Amendments to the 2007 Pay Rules. The Judgment in Prakash Singh (1 supra) was also transgressed in the matter of appointing officers to the post of Director General & Inspector General of Police, even earlier to creation of the post of DGP (HoPF). Sri Yadav was a beneficiary of such irregular administrative process by the State and he cannot be heard to cavil about a similar process that eased him out from the post of DGP (HoPF) to which he was never appointed in accordance with law. Sri Yadav was always substantively an officer holding the post of DGP in the HAG+ scale. Sri Mohanty was holding the post of DGP (HoPF) legitimately only during the period of elections and on account of the overarching authority of the Election Commission of India. After the authority of Election Commission ceased, on the conclusion of the election process, he reverts to his substantive status of DGP in the HAG+ scale. He was transferred to a post declared equivalent thereto. 32. As we have concluded on Issue Nos 1 and 2 that Sri Yadav and Sri Mohanty were not appointed on a regular basis to the post of DGP (HoPF) and must be considered as substantively holding the rank of DGP in the HAG+ Scale of Rs. 75,500 - Rs. 80,000, the transfer (of Sri Yadav and Sri Mohanty vide G.O.Rt. Nos. 6649 and 2441 GAD dated 30.10.2007 and 21.05.2009, respectively), from the post of DGP (HoPF) cannot therefore constitute a reversion or reduction in rank. It is not in dispute that on transfer to a post declared equivalent to the post of DGP in HAG+ Scale of Rs. 75,500 - Rs.80,000, the pay of Sri Yadav and Sri Mohanty was protected in the HAG+ Scale of Rs. 75,500 – Rs. 80,000/-; in the post substantively held by them. As a result of this analysis, G.O.Rt. No. 2441, GAD dated 21.5.2009 [transferring Sri Mohanty from the post of DGP (HoPF)]; and G.O.Rt. 75,500 - Rs.80,000, the pay of Sri Yadav and Sri Mohanty was protected in the HAG+ Scale of Rs. 75,500 – Rs. 80,000/-; in the post substantively held by them. As a result of this analysis, G.O.Rt. No. 2441, GAD dated 21.5.2009 [transferring Sri Mohanty from the post of DGP (HoPF)]; and G.O.Rt. No. 4850 GAD, dated 7.10.2009 [to the extent of transferring Sri Yadav from the post of DGP (HoPF)] are valid. 33. Issue (3) is accordingly answered. Issue (4): 34. While the substantive challenge by Sri Yadav is to his transfer from the post of DGP(HoPF) and the appointment of Sri Girish Kumar to the said post by G.O.Rt No. 4850 GAD dated 7.10.2009, the substratum of the challenge to such appointment of Sri Girish Kumar is by challenge to his appointment to the feeder category post of DGP in the HAG+ scale, vide G.O.Rt. No. 4667 GAD dated 25.9.2009. We have carefully perused the records and the 'Note file' pertaining to the orders issued in G.O. Rt.Nos. 4667 and 4850 dated 25.9.2009 and 7.10.2009, respectively. The following sequence of notings and the decisions taken, are revealed: 35. Sri Yadav, the DGP addressed letter dt 30.1.2009 to the Chief Secretary enclosing a letter received from Sri Gautam Kumar regarding aberrations in implementing the IPS cadre Rules. In his letter dt 16.1.2009 Sri Gautam Kumar (a DGP level officer) stated that as per Rule 9(7) of the IPS (Pay) Rules 1954 and in view of the decision of the Supreme Court in Union of India v. R.S. Chopra and others (8) 2002-Supreme-6-381 = 2002 (6) ALT 29.2 (DN SC), no ex-cadre posts in the rank of Director General could be created by the State in excess of the number of cadre posts, without obtaining prior approval of the Central Government, that any action to the contrary would render the accretion non-existent in the eye law. Through a memo dated 26.2.2009, the Chief Secretary addressed the DGP to forward proposals for obtaining concurrence of the Central Government under Rule 3(2)(ii) of the 2007 Pay Rules, for promoting officers of the 1976 batch to the rank of DGP, immediately. 36. Through a memo dated 26.2.2009, the Chief Secretary addressed the DGP to forward proposals for obtaining concurrence of the Central Government under Rule 3(2)(ii) of the 2007 Pay Rules, for promoting officers of the 1976 batch to the rank of DGP, immediately. 36. Meanwhile, the Hon'ble Minister for Home addressed a note dated 3.2.2009 to the Hon'ble Chief Minister intimating that there are only two officers of the 1976 batch (Sri Girish Kumar and Sri Balwinder Singh) who were appointed as Additional Directors General of Police on 30.7.2002 and 29.7.2002 respectively; both have more than 31 years of service; are eligible for promotion to the post of DGP, have a good track record and deserve promotion; they were not promoted since the State could have only four officers in the rank of DGP (two cadre and two non-cadre); that earlier the State had promoted three officers of the 1975 batch to the rank of DGP in August 2007 though there were already three officers of DGP rank in position; that in Tamil Nadu which has a similar cadre strength in the rank of DGP, three officers of Additional DGP rank were promoted and in Uttar Pradesh there are 8 officers functioning in this rank as against an availability of 6; and to meet the aspirations of these deserving officers of the 1976 batch they be promoted to the post of DGP immediately. This proposal was reiterated in a letter dated 27.02.2009 as well, recommending consideration for promotion of officers of the 1976 and 1977 batch of IPS. 37. On the basis of the letter dated 3.2.2009 of the Hon'ble Minister for Home and the approval (OK) of the Hon'ble Chief Minister dated 4.2.2009 to the proposal, the administration generated the process to effect promotions. The Chief Secretary noted on 12.2.2009 that contrary to the factual position stated in the Home Minister's letter, no excess promotions were made in Tamil Nadu, Karnataka and Maharashtra; that Rule 3(2)(ii) and (iii) and Rule 11(7) of the 2007 Pay Rules do not permit promotion; that there are no available vacancies at the DGP level; that the Government of India may refuse permission; and that in December 2008 the Cabinet Secretary undertook a review of the IPS cadre of the State, but no increase in the DGP level vacancies was sanctioned. 38. 38. However, on 18.2.2009 the Hon'ble Chief Minister ordered that necessary action be taken immediately for promoting officers of the 1976 batch to the rank of DGP. Thereafter a memo was addressed to the DGP to forward proposals for obtaining concurrence of the Central Government under Rule 3(2)(ii) of the 2007 Pay Rules for enabling promotion to the 1976 batch officers. Despite this directive of the Hon'ble Chief Minister, the note file clearly records the impermissibility and illegality in ordering promotions in excess of the permissible limits qua Rule 11(7) and without obtaining prior concurrence under Rule 3(2)(ii), of the 2007 Pay Rules. The Principal Secretary (Poll) recorded an opinion on 18.8.2009 that in view of the rules position; pending court litigation relating to cadre and ex-cadre posts; and the objections raised by the CAG, it is not desirable to promote the 1976 batch officers to the DGP grade. The Chief Secretary concurred with this view. However on 27.8.2009 the Hon'ble Chief Minister reiterated his earlier direction to convene the DPC for giving promotion. Eventually the screening committee was constituted and met on 24.09.2009. 39. In G.O.Rt. No. 4476 GAD dated 11.9.2009 (in supersession of the screening committee constituted in G.O.No. 5773 dt 8.10.2004), a screening committee was constituted for considering officers for promotion to the above super-time scale of the IPS in the grade of DGP/Addl. DGP and/ or equivalent posts in the HAG+ Scale/HAG Scale. The screening committee for considering officers of 1976 batch for empanelment was scheduled to meet on 24.09.2009. 40. DGP and/ or equivalent posts in the HAG+ Scale/HAG Scale. The screening committee for considering officers of 1976 batch for empanelment was scheduled to meet on 24.09.2009. 40. The screening committee perused the administration note which had pointed out: (a) the requirement of the State cadre authority to seek prior concurrence of the Central Government on the number of available vacancies in each cadre; (b) that the MHA, GOI, in the letter dated 29.05.2008 addressed to all State Governments had pointed out the provision of Rule 3(2)(ii) of the 2007 Pay Rules and had directed that henceforth no promotion to selection grade and above in the IPS be made without the concurrence of the Central Government on the number of vacancies available in each cadre; (c) that in view of Rule 11(7) of the 2007 Pay Rules Andhra Pradesh can operate only two ex-cadre posts (there being only 2 sanctioned cadre posts) and that four officers are already in the DGP rank in the State and one more officer Sri M.V.Krishna Rao of the same rank is on Central deputation; and (d) that the Comptroller and Auditor General of India (CAG) in the report for the year ended 31.03.2008 (Civil) had objected to the irregular creation of an ex-cadre post in the IAS/ IPS/ IFS in the State, far in excess of the cadre strength and that this had resulted in additional expenditure on the exchequer for the year 2002-03 to 2007-08 (Para 4.5.2 of the CAG report). 41. The screening committee met on 24.09.2009 and took note of the position regarding the non-availability of vacancies and legitimacy of making promotions to the DGP rank of the 1976 batch IPS Officers in view of the provisions of Rules 3(2)(ii) and 11(7) of the 2007 Pay Rules; that no prior concurrence on available vacancies or for promoting the 1976 batch officers to the DGP grade or approval for creation of additional posts beyond the permissible limit was obtained from the Central Government and that the CAG had objected to irregular creation of excess ex-cadre posts resulting in additional and unauthorized expenditure. Nevertheless (perhaps in view of the directives of the Hon'ble Chief Minister), the screening committee evaluated the record of Sri Girish Kumar and Sri Balwinder Singh; recorded an opinion that these officers are 'fit' for inclusion in the panel for promotion to the DGP rank, in that order; but recommended that in view of the position under the Rules and the fact situation, promotion of these officers be deferred till a clear vacancy arises. 42. The views and recommendations of the screening committee which met on 24.09.2009 were recorded in the note file and brought to the notice of the Hon'ble Chief Minister. However, the Hon'ble Chief Minister ordered on 25.09.2009 that in view of the 2nd proviso to Rule 4(2) of the IPS cadre Rules 1954, Sri Girish Kumar be promoted to the DGP rank and retained in the same post and that necessary orders be issued urgently. Thereupon G.O.Rt. No. 4667 GAD dated 25.09.2009 was issued promoting Sri Girish Kumar as DGP in the HAG+scale. 43. Though no guidelines from the Government of India were received regarding appointment by the process of selection to the post of DGP (HoPF), the State issued G.O.Rt.No. 4733 GAD dated 01.10.2009 constituting a committee (comprising the Chief Secretary to the Government; the Special Chief Secretary to the Government, Environment, Forests, Science & Technology Department; and the Special Chief Secretary to the Government, Sugar Technology Mission as members) for preparing a panel of officers for appointment to the post of DGP (HoPF). 44. On 1.10.2009 the [General Administration (SCD)] Department was directed to intimate whether any disciplinary or criminal proceedings are pending or contemplated or any expression of displeasure is recorded against any of the specified officers [5 officers in the DGP rank including Sri Yadav, the incumbent DGP (HoPF)]. It was noted that except Sri Mohanty (against whom disciplinary proceedings were initiated in G.O.Rt. No. 3559 GAD dt. 18.07.2009, in which he had submitted his written statement of defense which was under examination), the others (4 officers) are free from the vigilance angle. 45. The selection committee constituted in G.O.Rt. No. 4733 GAD dated 1.10.2009 was scheduled to meet on the same day. No. 3559 GAD dt. 18.07.2009, in which he had submitted his written statement of defense which was under examination), the others (4 officers) are free from the vigilance angle. 45. The selection committee constituted in G.O.Rt. No. 4733 GAD dated 1.10.2009 was scheduled to meet on the same day. The administration note prepared for the guidance of the selection committee clearly recorded that while Rule 11(7) of the 2007 Pay Rules permits only 4 officers in the DGP rank for the State, there were 5 officers including Sri Yadav, the incumbent DGP (HoPF), in position. This note also records that under the 2nd proviso Rule 4(2) of the cadre Rules, the State Government may add, for a period not exceeding two years, one or more posts carrying duties and responsibilities of a like nature to cadre posts; that Sri Girish Kumar was promoted to the rank of DGP invoking this provision and had assumed charge on 25.09.2009; that the Central Government was addressed to communicate guidelines regarding the process of selection for appointment to the post of DGP (HoPF) but no response is received; however in view of the administrative exigency the State may constitute a selection committee for selection of DGP (HoPF) from amongst existing officers holding posts in the rank of DGP in the HAG+ scale. The cases of Sarvasri K.R.Nandan, A.K.Mohanty, Gautam Kumar and Girish Kumar were placed before the selection committee for appointment to the post of DGP (HoPF), as and when vacancy arises. The fact of pending disciplinary proceedings against Sri Mohanty vide G.O.Rt. No.3559 dt. 18.07.2009, was also put on record. 46. The minutes (of the selection committee which met on 01.10.2009) record that Sarvasri Gautam Kumar, Girish Kumar and Nandan were empanelled on being found' fit' (while Sri Mohanty was not found 'fit' on account of pending charges), for consideration for appointment as DGP (HoPF). 47. On 07.10.2009 the Hon'ble Chief Minister having perused the proceedings ot the selection committee, selected Sri Girish Kumar for appointment as DGP (HoPF) (keeping in view the overall performance and capability) in place of Sri Yadav who was minuted as having been found wanting in providing positive leadership to the Police Force in the State. Sri Yadav was scheduled for posting as VC&MD, APSRTC. Sri Yadav was scheduled for posting as VC&MD, APSRTC. Consequently G.O.Rt.No. 4850 GAD dated 7.10.2009 was issued transferring Sri Girish Kumar from the post of Director General, ACB and on selection posting him as DGP(HoPF), while transferring Sri Yadav out of this position. The oral arguments: 48. Mr. J. Sudheer, the learned Counsel for Sri Yadav urged that the very appointment/promotion of Sri Girish Kumar as DGP (HAG+ scale) vide G.O.Rt No. 4657 GAD dated 25.09.2009 is illegal and in violation of Rules 3(2)(ii) and 11(7) of the 2007 Pay Rules; that Sri Girish Kumar was promoted to the rank of DGP post-haste despite the screening committee on 24.09.2009 declining to recommend promotion on account of non-compliance with Rule 3(2)(ii) and not obtaining prior approval of the Central Government for creating an excess non-cadre post, mandated under Rule 11(7), of the 2007 Pay Rules; that this hasty decision was taken by the State in colourable exercise of its executive power solely with a view to pitchfork Sri Girish Kumar to the post of DGP (HoPF) in short time; that since the very appointment of Sri Girish Kumar to the DGP rank is unsustainable, his further appointment as DGP (HoPF) is a fortiori illegal. Mr. Sudheer would further contend that the ex-post facto sanction by the Central Government to the creation of one ex-cadre post w.e.f 25.09.2009, in purported exercise of powers u/Rule 11(7) of the 2007 Pay Rules (conveyed to the State Government by the letter dt. 10.12.2009) is an illegal and vagrant exercise of power, authority and discretion by the Central Government. It is contended that since Rule 11(7) specifically mandates obtaining of prior approval, the patently illegal conduct of the State in promoting Sri Girish Kumar without such approval, on 25.09.2009, could not be legitimized by the subterfuge of granting ex-post facto sanction. The power of the Central Government to grant approval is a condition precedent to a State action of creating a post in excess of the permissible limits. This is a power coupled with responsibility and must be exercised after due diligence as to whether there is an administrative justification for the creation of such post. The Central Government acted irresponsibly in granting ex-post facto sanction. This is a power coupled with responsibility and must be exercised after due diligence as to whether there is an administrative justification for the creation of such post. The Central Government acted irresponsibly in granting ex-post facto sanction. In any event the promotion of Sri Girish Kumar as DGP in HAG+ scale, on 25.09.2009 is invalid as the State Government did not address the Central Government for prior concurrence as mandated by Rule 3(2)(ii) of the 2007 Pay Rules and in defiance of the direction and admonition by the MHA, GOI, vide its letter dated 29.05.2008 directing that no promotion to the selection grade and above in the IPS should henceforth be made without its prior concurrence on the number of vacancies available. Mr. Sudheer would also contend that the ex-post facto sanction constitutes an arbitrary and irrational conduct and was actuated not by sound principles of public administration but on irrelevant considerations, with a view to extricate the State Government from an embarrassment. The learned counsel in this respect referred to the letter of the Hon'ble Chief Minister dated 12.11.2009 addressed to the Hon'ble Union Minister for Home. Mr. Sudheer urged that the letter dated 05.12.2009 addressed by the Chief Secretary to the Ministry of Home Affairs is also stricken with the vice of irrationality regarding the claim therein, for the need for another officer in the DGP - HAG+ scale. The Chief Secretary had projected the State's requirement for an additional post in this rank, on account of new challenges faced in maintaining law and order; increase terrorist activities; increase in crimes involving cadres of various political parties; and regional divisive forces instigating violence among people and the State experiencing serious problems on account of Maoists' activities requiring continuous coordination with Governments of border States. However, Mr. Sudheer urged, neither before nor since the appointment of Sri Girish Kumar to the DGP HAG+ scale, to the post of DGP (HoPF) nor on the promotions granted to Additional Directors General of Police as DCPs, whether within or beyond the permissible limits, was any post created to deal with any of the areas of concern mentioned in the Chief Secretary's letter dated 5.12.2009. According to Mr. According to Mr. Sudheer, the following are the postings of the DCP HAG+ scale officers: Sarvasri Nandan: Chairman, AP State Police Housing Corporation Mohanty: Chairman, AP State Road Safety Authority Gautam Kumar: DCP, APSP Btn, and thereafter principal Secretary (Home). Girish Kumar: irector General, ACB while substantively holding the post of Add!. Director General, continued after appointment to the rank of DGP; and Yadav: VC&MD, APSRTC after being transferred out of the post DGP (HoPF). 49. Even the sanctioned cadre post of Director General, ACB (in the rank of DGP in the HAG+ scale), was usually filled by posting officers in the rank of Additional Director General and there is gross mismanagement of the IPS cadre by the State Executive, is the substratum of the contentions on behalf of Sri Yadav. 50. In support of the contention that the ex-post facto sanction by the Central Government vide letter dated 10.12.2009 is illegal and unsustainable, Mr. Sudheer has relied on the following decisions: Commissioner of Income Tax, Bihar and Orissa v. Maharaja Pratapsingh Bahadur of Gidhaur [ AIR 1961 SC 1026 ]; Tejpal Singh v. State of U.P. and another [ (1986) 3 SCC 604 ]; T.R.Kapur and others v. State of Haryana and others [1986 (Supp) SCC 584]; State of Andhra Pradesh and another v. Dr. Mohanjit Singh and another [1988 (Supp) SCC 862]; Dr. Dattatraya Mahadev Nadkanzi v. Municipal Corporation of Greater Bombay [ (1992) 2 SCC 547 ]; Director of Education and others v. Cajadhar Prnsad Venna [ (1995) 1 SCC 465 ]; Union of India and others v. Vinod Kumar and others [ (1996) 10 SCC 78 ]; Pulin Das @ Panna Koch v. State of Assam [ (2008) 5 SCC 89 ]; Behari Kunj Sahkari Avas Samiti v. State of Uttar Pradesh and others [ (2008) 12 SCC 306 ]; A. Chowgule and Company Ltd v. Goa Foundation and others [ (2008) 12 SCC 646 . 51. The learned Advocate General relied on and reiterated for our consideration the decisions cited before the Tribunal to support the submission that the ex-post-facto sanction by the Central Government and w.e.f. 25.09.2009 validates the appointment of Sri Girish Kumar to the post of DGP in HAG+ scale even if his initial appointment was invalid for want of prior approval of the Central Government. 52. On behalf of the State, the. 52. On behalf of the State, the. learned Advocate General submitted that Rule 11(7) of the 2007 Pay Rules has no application as the pay rules pertain to the conditions of pay of members of the service but do not encompass regulation of the cadre; that the cadre Rules are special rules while the 2007 Pay Rules are general rules; that qua the 2nd proviso to Rule 4(2) of the cadre Rules the State has power and authority to create the post of DGP in HAG+ scale. It is further contended that due to the dynamics and complexity of administrative exigencies the State must be accommodated the power, authority and jurisdiction to create posts and to make promotions. As the State acts in public interest, its power to create posts and its discretion to make administrative choices regarding the posting of officers cannot be denied. It is further contended that stagnation in the service at the senior level in the IPS is a critical concern that must be addressed by the State. These considerations led to the decision to promote and appoint Sri Girish Kumar to the rank of DGP in the HAG+ scale; to promote him after a due process of selection as DGP (HoPF); and to transfer Sri Yadav from the post of DGP (HoPF) for eventual posting as VC&MO, APSRTC. The State is the best judge, exclusively authorized and specially equipped to evaluate the experience, competence, skills and the track record of its officers and its decision to post senior officers of the IPS in any particular post, is properly and eminently within the State's legitimate domain. The only requirement is that an officer must be posted, if to an ex-cadre post, after declaration of its equivalence with a cadre post of an appropriate rank. For effective governance and to meet the evolving and complex challenges of contemporaneous societal needs and choices, such power must be conceded to the Government, is the distillate of the learned Advocate General's submission. Questions arising in issue No.4: 53. For effective governance and to meet the evolving and complex challenges of contemporaneous societal needs and choices, such power must be conceded to the Government, is the distillate of the learned Advocate General's submission. Questions arising in issue No.4: 53. The questions that require our consideration are (a) whether Rule 11(7) of the 2007 Pay Rules circumscribes or contours the amplitude of the power of the State under the second proviso to Rule 4(2) of the cadre Rules; (b) whether the appointment of Sri Girish Kumar to the post of DGP in the HAG+ scale by the order issued in G.O.Rt No. 4667 GAD dated 25.09.2009 is unsustainable for want of previous approval of the Central Government as mandated by Rule 11(7) of the 2007 Pay Rules; (c) if the prior concurrence requirement is not derogable, whether is satisfied by the ex-post facto sanction granted by the Central Government; and (d) if the ex-post facto sanction technically cures the defect of the State's noncompliance with the provisions of Rule 11(7) of the 2007 Pay Rules, whether the grant of such ex-post facto sanction is otherwise invalid being vitiated by non-application of mind, negligent exercise or malice in law. Question (a): Relevant provisions of the cadre Rules: 54. Rule 4 deals with the Strength of cadres. Sub-rule (1) specifies that the strength and composition of each of the cadres constituted under Rule 3 shall be determined by the regulations made by the Central Government in consultation with the State Government in this behalf and until such regulations are made, shall be as in force immediately before the commencement of these Rules. Sub-rule (2) mandates a quinquennial review (now five years, earlier a triennial review), to examine the strength and composition of each cadre in consultation with the State Government concerned and empowers the Central Government to make such alterations therein as deemed fit. The first proviso to Rule 4 (2) enables the Central Government to alter the strength and composition of any cadre at any other time. The second proviso is relevant and reads: Provided further that State Government concerned may add for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years, to a State or Joint cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts. 55. The second proviso is relevant and reads: Provided further that State Government concerned may add for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years, to a State or Joint cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts. 55. The Government of India in the MHA Letter dated 12-04-1965 clarified the scope of the second proviso. Such a provision regarding addition of ex-cadre posts for short periods existed neither in the ICS/IPS Rules nor in the Indian Civil Administrative cadre Rules, 1950 or the Indian Police cadre Rules, 1950. The original draft of the present IAS or IPS cadre Rules did not contain such a proviso either. In the Chief Secretaries' Conference held in 1954 to consider the drafts of various All India Services Rules and Regulations, the need for such a provision was urged by the Government of West Bengal. The MHA letter dated 12-04-1965, after tracing the enacting history of this provision states that the proviso was made to meet the sudden and immediate need for extra posts carrying duties or responsibilities analogous to cadre posts, subject to the condition that such posts will be held by cadre officers only. In actual practice occasions for resorting to this provision will be rare and ordinarily the need for such extra cadre posts is for a period exceeding one year. If the need for such extra cadre post is for a period exceeding one year, generally the need would be considered a permanent one, unless the State is certain that it would not need such posts beyond a particular fixed period not exceeding three years in all. Therefore, steps should be taken for inclusion of such posts in the permanent cadre on the expiry of one year. Relevant provisions of the 2007 Pay Rules: 56. Rule 11 bears the marginal heading "Pay of members of the Service appointed to posts not included in Schedule-II: Schedule-II of the Rules sets out the designation of posts sanctioned within the permitted cadre for each State and Union Territory, as the case may be, and the corresponding pay/scale of pay. Rule 11 thus regulates appointment of members of the service to posts other than the sanctioned cadre posts. Rule 11 thus regulates appointment of members of the service to posts other than the sanctioned cadre posts. Sub-rule (7) of Rule 11 reads: (7) At no point of time the number of members of the Service appointed to hold posts, other than cadre posts referred to in sub-rule (1) and sub-rule (4), which carry the scale of pay of Rs. 24050-650-26000 per mens em and which are reckoned against the State Deputation Reserve, shall except with the prior approval of the Central Government exceed the number of cadre posts at that level of pay in a State cadre or in a joint cadre as the case may be. 57. The Tribunal in its judgment (under appeal) held that Rule 11 (7) of the 2007 Pay Rules restricts the amplitude of the power of the State Government to add one or more posts carrying duties or responsibilities of a like nature to cadre posts (for a period of one year on its own and with the approval of the Central Government for a further period of two years), insofar as posts carrying the scale of pay of Rs. 24050-650-26000 (now Rs. 75,500 - annual increment at 3% - Rs. 80,000/-, or what is specified as the HAG+ scale). 58. The contention in this behalf by the State, urged by the learned Advocate General and echoed by the learned counsel for Sri Girish Kumar, is rather creative. It is contended that the cadre Rules are a complete code of regulation pertaining to the management of the IPS cadre and that notwithstanding the clear trajectory of any provision in the pay rules to the contrary, the operation of the pay rules must be confined to pay and allowances of the members of this service and cannot be interpreted as altering the contours of any provision of the cadre Rules. 59. The above contention runs counter to and is wholly at variance with the administrative construction of the relevant rules. As revealed from the note file (already adverted to earlier in this judgment), at all levels in the hierarchy of administration, the consistent and invariable position has been that 'prior approval' of the Central Government qua Rule 11 (7) of the 2007 Pay Rules is non-derogable and a condition precedent for adding an ex-cadre post carrying the scale of pay of Rs. 75,000 to Rs. 80,000/-, beyond the limits specified in this provision. 75,000 to Rs. 80,000/-, beyond the limits specified in this provision. The administration therefore clearly understood the provisions of Rule 11 (7) as imposing a limit to the plenitude of the State's power under the second proviso to Rule 4 (2) of the cadre Rules. The letter of the Hon'ble the Chief Minister dated 12.11.2009 addressed to the Hon'ble Union Home Minister and the letter dated 05-12-2009 addressed by the' Chief Secretary of the State to the MHA proceed on the assumption that the State is disentitled to add an ex-cadre post, exercising the powers under second proviso to Rule 4 (2) of the cadre Rules, in excess of the limits and conditions prescribed in Rule 11 (7) of 2007 Pay Rules, without the 'prior approval' of the Central Government. 60. We are satisfied that the submission (of the State) that the provisions of the cadre Rules and the 2007 Pay Rules have insular and non-overlapping trajectories, is a contention that is addressed in extremis and not since the Government had understood the provisions of these two sets of rules as mutually exclusive. Be that as it may. 61. Established principles of statutory interpretation ordain; and we derive guidance from principles long settled that (a) the Long Title of an Act is a part of the Act and is admissible as an aid to its construction - vide R v. Secretary of State for Foreign and 'Commonwealth Affairs (9) (1994) 1 All.ER 457; (b) the Long title taken along with the preamble of an Act, if there is one, is a good guide regarding the object, scope or purpose of the Act - vide Aswinikumar Chose v. Arabinda Bose (10) AIR 1952 SC 369 ; Kedar Nath Bajoria v. State of Bengal (11) AIR 1953 SC 404 , In re, Kerala Education Bill (12) AIR 1958 SC 956 ; and (c) while the Long Title of an Act is a useful aid to discern the object, scope or purpose of the provisions in case of ambiguity of the enacting provisions, it is ineffective to control the clear meaning of the provisions-vide R. v. Bates and Russell (13) (1952) 2 All.ER 842; Ward v. Holman (14) (1964) 2 All.ER 729 and Manoharlal v. State of Punjab (15) AIR 1961 SC 418 . 62. 62. In R. v. Bates and Russel (13 supra), Donovan, J stated the principle thus: The long title is a legitimate aid to the construction -. When Parliament proclaims what the purpose of an Act is, it would be wrong to leave that out of account when construing the Act in particular, when construing some doubtful or ambiguous expression. In many cases the long title may supply the key to the meaning. The principle, as I understand it, is that where something is doubtful or ambiguous the long title may be looked to resolve the doubt or ambiguity, but in the absence of doubt or ambiguity, the passage under construction must be taken to mean what it says, so that if its meaning be clear. that meaning is not to be narrowed or restricted by reference to the long title, (emphasis added) 63. On the basis of the precedential guidance derived from the authorities referred to above, it is clear that since the trajectory and direction of Rule 11 (7) of the 2007 Pay Rules is clear, and it is clear we are in no manner of doubt; and applies to circumscribe and limit the power of the State under the second proviso to Rule 4 (2) of the cadre Rules, effect must be given to the provisions of Rule 11 (7) of the 2007 Pay Rules, without cribbing about jejune distinctions based on the Long Title of the 2007 Pay Rules or the marginal heading of Rule 11 thereof. 64. The State would do well to reflect that the cadre Rules and the 2007 Pay Rules as well, are made by the Central Government in exercise of Rule making power under Section 3 (1) of All India Services Act, 1951. Article 256 of the Constitution enjoins that the executive power of every State shall be so exercised as to ensure compliance with the laws made by the Parliament. The State would do equally well to recognize that all powers conferred on the State, such as they are under the provisions of the All India Services Rules are a grant under the Union legislation and the Rules made thereunder. The States' powers are delegated and not sui generis. But for such grant, the State would have no domain, power or authority to deal with members of All India Services. The States' powers are delegated and not sui generis. But for such grant, the State would have no domain, power or authority to deal with members of All India Services. When a State executive acts under a power authorized through laws made by another and appropriate Legislature, in this case the Union, it must exercise such power and tailor its executive practices to conform ungrudgingly to the limits set upon its exercise, by the Rules framed under that dominant legislation. Such is modus vivendi of working of a Federal constitutional architecture, specifically delineated in Art.256. 65. Another substrate of the contention on behalf of the State and Sri Yadav on this aspect (considered as question-a) is that while the cadre Rules are special rules relating to cadre management, the 2007 Pay Rules are confined to regulate the pay of the members of the service and cannot be construed, despite their clear language as controlling or restricting the plenitude of powers conferred under the provisions of the cadre Rules. This contention in our considered view is equally without merit. The applicable principle with regard to statutory interpretation is that a power to make a law with respect to topics committed to Parliament or State Legislatures carries with it the power to repeal a law on those topics and subject to any constitutional restriction the general rule is that the power of a legislative body to repeal a law is coextensive with its power to enact such a law - vide A.G. for Ontario v. A.G. for the Dominion (16) (1896) AC 348; Ramakrishna v. Janapad Sabha (17) AIR 1962 SC 1073 . This principle is a fortiori applicable to subordinate legislation. Since the Central Government may make Rules for regulating the All India Services qua the powers u/Sec. 3(1) of the All India Services Act, 1951 such power includes the power to make Rules periodically. The posterior rules may contain provisions which derogate either wholly or pro tanto, may either amplify, condition, restrict or even repeal provisions of a prior rule. While there is a presumption against repeal by implication - Municipal Council, Palai v. T.J. Joseph (18) AIR 1963 SC 1561 , there is another principle which conditions this generic principle. The posterior rules may contain provisions which derogate either wholly or pro tanto, may either amplify, condition, restrict or even repeal provisions of a prior rule. While there is a presumption against repeal by implication - Municipal Council, Palai v. T.J. Joseph (18) AIR 1963 SC 1561 , there is another principle which conditions this generic principle. Gaudron, J observed in Saraswati v. the Queen (19) (1991) 172 CLR 1 : It is a basic rule of construction that in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong ground to support that implication, for there is a general presumption that the legislature intends that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. (emphasis supplied) 66, The contention that the cadre Rules constitute special rules in contradiction to the pay rules which are general, is also misplaced. As explained by Mudholkar, J in Municipal Council, Palai (18 supra), a general statute applies to all persons or localities within its jurisdiction and scope as distinguished from a special one which in its operation is confined to a particular locality and; therefore, where it is doubtful whether the special statute was intended to be repealed by the general statute, the court should try to give effect to both the enactments as far as possible. This principle is reiterated in R.S. Raghunath v. State of Karnataka (20) AIR 1992 SC 81 . This principle is also subject to a caveat. Where the intention to supersede the special law is clearly evinced, the later general law will prevail over the prior particular law, for the principle that a prior special law is not presumed to be repealed is only a principle of construction and there is no rule of law which prevents repeal of a special law by a .later general statute - see Oalmia Oadri Cement Co. Ltd., v. CZT (21) AIR 1968 SC 816 ; Umaid Mills v. State of Rajasthan (22) AIR 1963 SC 953 . Ltd., v. CZT (21) AIR 1968 SC 816 ; Umaid Mills v. State of Rajasthan (22) AIR 1963 SC 953 . A general law may abrogate a prior special law either by express repeal or enacting provisions which are inconsistent with it - Ajaykumar Banerjee v. Union of India (23) (1982) 3 SCC 126; S.Prakash v. K.N.Kurian (24) (1999) 5 SCC 624 . 67. The 2nd proviso to Rule 4(1) of the cadre Rules carves out an exception to the provisions of sub-rules (1) and (2) and confers power on the State concerned to add for the period specified therein, one or more posts, carrying duties and responsibilities of a like nature to cadre posts. There is no restriction in these rules, except as contained in the 2nd proviso, on the power of the State to add ex-cadre posts, with reference to any grade or scale of pay. Rule 11(7) of the 2007 Pay Rules [corresponding to Rule 9(7) of the IPS (Pay) Rules, 1954] enjoins a clear prohibition on the power to appoint members of the service, to hold ex-cadre posts in excess of the number of cadre posts carrying the scale of pay Rs. 75,500 - Rs. 80,000. This prohibition is eclipsed only on grant of prior approval by the Central Government. While this provision is contained in a rule regulating the pay of members of the service appointed to non-cadre posts, the operation of the provisions is clear and unambiguous. It is intended clearly to restrict the scope of the power of the State under the 2nd proviso to Rule 4(2)of the cadre Rules in so far as appointment of members of the service to ex-cadre posts carrying the scale of pay of Rs. 75,500 - Rs. 80,000/- is concerned. There is no other construction which is permissible or even remotely plausible. There is also no ambiguity textual, contextual or syntactic in the language of Rule 11(7). There are also many overlapping areas in the two sets of Rules. Rule 11(7)(1) of the 2007 Pay Rules enjoins that no member of the service shall be appointed to an ex-cadre unless the Government concerned makes a declaration that the said post is equivalent to a cadre post. This provision lends emphasis and non-derogability to a similar provision in the 2nd proviso to Rule 4(2) of the cadre. Rules. Rule 11(7)(1) of the 2007 Pay Rules enjoins that no member of the service shall be appointed to an ex-cadre unless the Government concerned makes a declaration that the said post is equivalent to a cadre post. This provision lends emphasis and non-derogability to a similar provision in the 2nd proviso to Rule 4(2) of the cadre. Rules. We are satisfied that the two sets of Rules, the cadre Rules and the 2007 Pay Rules operate in tandem and not to the exclusion of the other. 68. In R.S. Chopra (8 supra), interpreting the provisions of Rule-9(7) of the IPS (Pay) Rules 1954 [which are in pari materia the provisions of Rule 11(7) of the 2007 Pay Rules] the Supreme Court held that since the respondent-Chopra was appointed as a DGP in violation of the provisions of Rule 9(7), he was appointed to a post which did not exist in the eye of law and can not claim the pay scale in the post of DGP. The judgment to the contrary of the Tribunal, Banglore Bench, was reversed and the appeal of the Union allowed. This judgment buttresses the unambiguous statutory position that the provisions of Rule 11(7) of the 2007 Pay Rules operate to restrict and condition the power of the State under the 2nd proviso to Rule 4(2) of the cadre Rules to add ex-cadre posts, in so far as appointment of members of the service to posts in the scale of Rs. 75,500 - Rs. 80,000/-, is concerned. 69. Fidelity to the rule of law principle enjoins that the State Government must act within the limits of the powers available under the 2nd proviso to Rule 4(2) of the cadre Rules as contoured by the provisions of Rule 11(7) of the 2007 Pay Rules. The argument based on special and general rules is tautological and misconceived and is accordingly rejected. 70. On the aforesaid analysis, the contention that the provisions of the 2007 Pay Rules, in particular Rule 11 (7) thereof do not limit the power of the State under the second proviso to Rule 4 (2) of the cadre Rules, is a contention that is fundamentally misconceived and is rejected. Question (b): 71. 70. On the aforesaid analysis, the contention that the provisions of the 2007 Pay Rules, in particular Rule 11 (7) thereof do not limit the power of the State under the second proviso to Rule 4 (2) of the cadre Rules, is a contention that is fundamentally misconceived and is rejected. Question (b): 71. On the admitted factual scenario, Sri Girish Kumar was appointed to the post of DGP HAG+scale vide G.O.Rt.No. 4667 General Administration (SCC) Department dated 25-09-2009, in excess of the limits specified in Rule 11 (7) of the 2007 Pay Rules and without prior approval of the Central Government and in violation of the provisions of Rule 3 (2) of these Rules as well, without obtaining the prior concurrence of the Central Government on the available vacancies in the DGP grade. The appointment of Sri Girish Kumar is therefore unsustainable for transgression of the provisions of the 2007 Pay Rules. Questions (c) & (d): 72. The precedents cited in this area fall in two categories. The first category comprises decisions that hold that violation of a statutory directive to obtain prior permission or approval, results in invalidity of the decision. The following precedents illustrate this aspect of the matter. 73. In Commissioner of In come Tax, Bihar and Orissa v. Maharaja Pratapsingh Bahadur of Gidhaur (25) AIR 1961 SC 1026 the notice issued by the Income Tax Officer (for assessing the escaped income), u/Sec. 34 of the Indian Income Tax Act [as amended by the Income Tax and Business Profits Tax (Amendment) Act 1948, with retrospective effect from 30.03.1948] without prior approval of the Commissioner as mandated by the provision, was declared invalid. 74. In T.R. Kapur and others v. State of Hayana and others (26) (1986) (Supp) SCC 584 the issue was whether an alteration by the State of a rule regarding conditions of service made under proviso to Art. 309 of the Constitution, prior to the appointed day i.e., 01.11.1966 specified in the Punjab State Reorganisation Act 1966 (1966 Act), to the disadvantage of the Government servant without prior approval of the Central Government was unsustainable being ultra vires the provision of Sec.82(6) of the 1966 Act. The proviso to See.82(6) of the 1966 Act enjoins that the conditions of service applicable immediately before the appointed date to the case of any person referred to in sub-sec.(1) or sub-see. The proviso to See.82(6) of the 1966 Act enjoins that the conditions of service applicable immediately before the appointed date to the case of any person referred to in sub-sec.(1) or sub-see. (2) shall not be varied to his disadvantage except with the previous approval of the Central Government. The State Government did not obtain the prior approval of the Central Government for the proposed amendment of Rule 6(6) of the Punjab Service of Engineers, Class-I, PWD (Irrigation Branch) Rules 1964, incorporating the requirement of a degree in engineering for promotion as Executive Engineer. The higher qualification was prescribed by the Punjab Service Engineers, Class-I PWD (Irrigation Branch), Haryana, (Second Amendment) Rules, 1984, w.e.f.10.07.1964. The Supreme Court held that the impugned notification issued by the State Government purporting to amend Rule 6(6) of the Class-I Rules w.e.f.10.07.1964 which renders members of the Class II service who are diploma holders like the petitioners, ineligible for promotion to the post of Executive Engineers in Class-I service by making a degree in Engineering essential for such promotion, although they satisfied the condition of 8 years experience in that class of service, must be struck down as ultra vires the power of the State Government, being contrary to See. 82(6) of the 1966 Act. 75. In Director of Education and others v. Gajadhar Prasad Verma (27) (1995) 1 SCC 465 Section 9 of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act 1971 enjoined that no institution shall create a new post of teacher or other employee without the previous approval of the Director or such officer as may be empowered in that behalf by the Director. By a resolution dated 28.12.1986 the Managing Committee of the school appointed the respondent-Verma as a clerk without prior approval as mandated by Sec.9. The question was whether the school could claim reimbursement of the salary of Mr. Verma from the Government. The Supreme Court ruled that since no prior approval was obtained, the Government is not obliged to reimburse the salary. 76. In Dr. Dattatraya Mahadev Nadkarni v. Municipal Corporation of Greater Bombay (28) (1992) 2 SCC 547 a Medical Assistant in the Municipal Corporation of Greater Bombay was dismissed from service on proved misconduct. Verma from the Government. The Supreme Court ruled that since no prior approval was obtained, the Government is not obliged to reimburse the salary. 76. In Dr. Dattatraya Mahadev Nadkarni v. Municipal Corporation of Greater Bombay (28) (1992) 2 SCC 547 a Medical Assistant in the Municipal Corporation of Greater Bombay was dismissed from service on proved misconduct. Sec. 83(2)(a) of the Bombay Municipal Corporation Act 1888 required the Commissioner (who imposed the order of penalty) to obtain the previous approval of the Standing Committee for dismissal of an officer who gets monthly emoluments above Rs. 400/-. This provision applied to Dr. Nadkarni. He filed a suit for reinstatement into service with full back wages and claimed a specified sum towards arrears of salary up to the date of suit and other attendant benefits till reinstatement. On contest the suit was dismissed as also the appeal filed before the High Court. The Supreme Court reversed and held that as the order of dismissal was imposed by the Municipal Commissioner without obtaining previous approval of the Standing Committee, the order of dismissal was unsustainable as the Commissioner by himself had no authority to pass the order of dismissal. 77. See. 20-A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) enjoins that notwithstanding anything contained in the Code of Criminal Procedure no information about the commission of an offence under TADA shall be recorded without the prior approval of the District Superintendent of Police; and See. 20-A(2) enacts that no court shall take cognizance of any offence under TADA without the previous sanction of the authorities prescribed therein. The Supreme Court held in Pulin Das @ Panna Koch v. State of Assam (29) 2008 (3) ALT (Crl.) 228 (SC) = 2008 (6) SCJ 1001 = (2008) 5 SCC 89 hat in the light of the stringent provisions of the Act it was the bounden duty of the prosecution to have examined the highest Police Officer in the District - the Superintendent of Police on the relevant material and that the designated court erred in accepting the prosecution case based on a mere reference to ULFA by PWs 5 and 6. There was no reference in the testimony of the PWs5 and 6 nor the remaining 7 Police Officers including the Dy. Superintendent of Police about the banned organization ULFA and the alleged unlawful activities of the accused. There was no reference in the testimony of the PWs5 and 6 nor the remaining 7 Police Officers including the Dy. Superintendent of Police about the banned organization ULFA and the alleged unlawful activities of the accused. The appeals of the accused against their conviction under the provisions of TADA were allowed and the conviction, sentence and fine recorded, set aside. 78. The line of precedents cited supra complement the established principle of law: that when a statute provides the method of exercise of a power, the power should be exercised in the manner enjoined by the State - vide Nazir Ahmad v. King Emperor (30) AIR 1936 PC 253; Ballabhdas Aganuala v. J.C. Chakravarthy (31) AIR 1960 SC 576 ; and Gujarat Electricity Board v. Girdharilal (32) AIR 1969 SC 267 . 79. The second category of precedents consider the issue whether ex- post-facto sanction, approval or ratification of a decision taken in violation of a statutory requirement of prior/previous approval or clearance, cures the defect and legitimizes the initially unauthorized decision. The following decisions are on this aspect: 80. In Tejpal Singh v. State of U.P. and another (33) (1986) 3 SCC 604 an Additional District and Sessions Judge of U.P. was compulsorily retired by an order of the Governor. Earlier, the State Government had moved the High Court for the compulsory retirement of the officer. On 8.7.1968 the Administrative Judge agreed with the proposal of the State Government that the officer should be retired after giving him three months notice. Thereupon the Governor passed the order of compulsory retirement on 24.08.1968. Three days thereafter on 27.08.1968.the Administrative Committee of the High Court gave its approval to the recommendation of the Administrative Judge earlier communicated to the State Government and on 30.08.1968 the Registry of the High Court transmitted the order of retirement to the officer, which was served on him on 03.09.1968. The High Court (of Allahabad) had framed Rules u/Art.235 of the Constitution governing the manner in which the administrative work of the High Court should be carried out, known as the Rules of High Court, 1952. Under these Rules, in substance the power of the High Court u/Art. 235 of the Constitution, to make a recommendation to the Government to retire a subordinate judicial officer prematurely, should be exercised by the Administrative Committee of the High Court. 81. Under these Rules, in substance the power of the High Court u/Art. 235 of the Constitution, to make a recommendation to the Government to retire a subordinate judicial officer prematurely, should be exercised by the Administrative Committee of the High Court. 81. Reversing the judgment of the Allahabad High Court the Supreme Court held that the compulsory retirement order passed by the Governor on the basis of the recommendations of the Administrative Judge is unsustainable. The Apex Court found that the power to order compulsory retirement in respect of a District Judge or a subordinate judicial officer vests with the Administrative Committee of the court under the Rules. The Administrative Committee came to know of the order of compulsory retirement (already passed by the Governor) only after it has been passed on the basis of the opinion expressed previously by the Administrative Judge. The Apex Court held: (13) ... The Administrative Committee may not have dissented from the order of the Governor or the opinion expressed by the Administrative Judge earlier. But it is not known what the Administrative Committee would have done if the matter had come up before it before the Governor had passed the order of premature retirement. In any event the deviation in this case is not a mere irregularity which can be cured by the ex post facto approval given by the Administrative Committee to the action of the Governor after the order of premature retirement had been passed. The error committed in this case amounts to an incurable defect amounting to an illegality. We may add that while it may be open to the Government to bring to the notice of the High Court all materials having a bearing on the conduct of a District fudge or a subordinate judicial officer, which may be in its possession, the Government cannot take the initiative to retire prematurely a District fudge or a subordinate judicial officer. Such initiative should rest with the High Court. (emphasis supplied) (14) UNDER the circumstances, it has to be held that the impugned order of premature retirement passed by the Governor without having before him the recommendation, of the Administrative Committee or of the Full Court is void and ineffective. 82. In State of Andhra Pradesh and others v. Dr. Mohanjit Singh and others (34) (1988) (Supp) SCC 562 validity of the selection of Dr. 82. In State of Andhra Pradesh and others v. Dr. Mohanjit Singh and others (34) (1988) (Supp) SCC 562 validity of the selection of Dr. Mohanjit Singh as the Principal of N.M. College, Jogipet by a selection committee without a representative of the Director of Higher Education participating in such committee (as mandated by a Government Order constituting the selection committee) was declared invalid notwithstanding the ratification of the selection by the District Education Officer, later. The court held: The Government order being clear as to the constitution of the committee to function as the selection body, in the absence of the representative of the Director of Higher Education, it cannot be said that there was a proper selection committee constituted on the date when respondent 1 was selected. Ratification by the District Education officer at a later point of time cannot validate the proceedings of the selection committee as there was no quorum and in its absence, the committee was not entitled to transact business. The Government order makes it clear that the selection committee is intended to function as a body. In case all the members were present at the selection there would have been scope for exchange of views when the candidates appeared and the selection would have been in terms of the scheme. Once a decision is taken and the absentee member is called upon to ratify the conclusion already reached, it becomes a very different tupe of activity. We are, therefore, not prepared to accept the decision of the Administrative Tribunal on principle that the subsequent ratification constituted valid selection. (emphasis supplied) 83, Sec.5-D(7)(a) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 specifies that the method of recruitment and other conditions of service of Addl. Central Provident Fund Commissioner and other officers and employees of the Central Board shall be such as may be specified by the Central Board in accordance with the rules and orders applicable to officers and employees of the Central Government drawing corresponding scales of pay. A proviso specifies that where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters specified in the main provision, it shall obtain the prior approval of the Central Government. Without obtaining such prior approval, employees were recruited, in deviation of the Rules. Without obtaining such prior approval, employees were recruited, in deviation of the Rules. It was contended that ex-post facto approval was obtained. Rejecting the contention the Supreme Court in Union of India and others v. Vinod Kumar and others (35) (1996) 10 SC 78 held: Under the proviso, where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters enumerated above it is mandatory that it should obtain prior approval of the Central Government. Admittedly, prior approval was not obtained. On the other hand, ex post facto approval was obtained but in the teeth of the language of the proviso ex post fact approval is not an approval in the eye of law. Under these circumstances, the Tribunal had rightly held that the approval was not valid in law and the matter was kept at large and directed the appellant to issue notification afresh for recruitment in accordance with rules. We do not find any illegality in the order. (emphasis supplied) 84. In Behari Kunj Sahkari Avas Samiti v. State of Uttar Pradesh and others (36) 2009 (1) SCJ 913 = (2008) 12 SCC 306 the question whether the transfer or sale of an evacuee property without prior or previous approval of the Custodian General is valid and whether post facto approval constitutes sufficient compliance with the provisions of The Administration of Evacuee Property Act, 1950. Section 10(1) enacts that the duty of the custodian is to preserve and maintain the property. Sub-section (2) enacts that only for the purposes enumerated in sub-sec.(1) there could be transfer or sale of the property and no such action could be taken without the previous approval of the Custodian General. The Supreme Court held on a construction of the relevant provisions: The approval of the Custodian General is to be taken first. This is clear from the expression "previous approval", before the order is passed. Post-facto approval is not sufficient. This procedure was not followed. Tender process was not adopted which would have ensured that the best price was available. If the order dated 30-1-1985 is a nullity, further action is of no consequence. (emphasis supplied) 85. This is clear from the expression "previous approval", before the order is passed. Post-facto approval is not sufficient. This procedure was not followed. Tender process was not adopted which would have ensured that the best price was available. If the order dated 30-1-1985 is a nullity, further action is of no consequence. (emphasis supplied) 85. In A. Chowgule and Company Ltd. v. Goa Foundation and others (37) 2009 (2) SCJ 417 = (2008) 12 SCC 646 a memorandum of lease was executed between the Governor of Goa and the appellant, dated 1.11.1989 whereunder 12 Ha, was leased to the appellant for the purpose of ancillary work connected to mining and the appellant was authorized to construct the necessary civil structures. The appellant on 7.2.1990 entered into a contract with a Japanese corporation for export of the processed iron ore. Necessary clearance at the State level was obtained. At that stage respondents filed writ petition in public interest for invalidating the memo of lease inter alia on the ground that prior approval of the Central Government for use of forest land for non-forest purposes was not obtained as required under the provisions of Sec. 2(ii) of the Forest (Conservation) Act, 1980 (the 1980 Act). During pendency of the writ petition the State Government addressed the MOEF on 7.5.1992 for clearance u/Sec.2(ii) of the 1980 Act. On 25.5.1993 the MOEF conveyed its in-principle approval for diversion of 4.44 Ha, of forest land subject to conditions. The final decision (of the MOEF) permitting the diversion was conveyed to the appellant on 7.11.1997. The writ petition was allowed by the Goa Bench of the Bombay High Court on 21.07.2000 quashing the lease agreement dated 1.11.1989. The court held that the lease was contrary to law as it permitted diversion of forest land for non-forest purposes without prior permission of the Government of India. On appeal by the appellant-Company the Supreme Court confirmed the decision of the Bombay High Court (Goa Bench) and observed: A bare perusal of the aforesaid provisions would show that prior approval is required for the diversion of any forest land and its use for some other purpose. On appeal by the appellant-Company the Supreme Court confirmed the decision of the Bombay High Court (Goa Bench) and observed: A bare perusal of the aforesaid provisions would show that prior approval is required for the diversion of any forest land and its use for some other purpose. This is further fortified by a look at Rule 4 which provides that every State Government or other authority seeking prior approval under Section 2 of the Act shall submit a proposal to the Central Government in the prescribed form and Rule 6 stipulates that the proposals would be examined by a committee appointed under Rule 2-A within the parameters and guidelines postulated in Rule 5. There is nothing on record to suggest that this procedure had been adopted. Admittedly, also the approval for 4.44 ha had been obtained long after the lease deed had been executed on 1-11-1989 and there is no suggestion that even for this limited area the procedure envisaged under Rules 4, 5 and 6 had been followed. We are, therefore, of the opinion, even assuming that some approval was granted with respect to 4.44 ha of land in the year 1997, it would not amount to prior approval in terms of the Act and the Rules aforequoted. (emphasis supplied) The appeal was dismissed. The learned Advocate General preferred in response, the following precedents: 86. Jayaraj Singh and another v. Jaswant Singh and others (38) (1970) 2 SC 386 considered the issue whether a second power of attorney properly authenticated as required by Sec.33 of the Indian Registration Act could validate a sale and registration of a document under a first power of attorney which was defective for want of such authentication. The Supreme Court held that the second power of attorney was a valid document duly authorized to execute the document as well as to present it for registration and it ratified the former inconclusive act under a defective power of attorney; the earlier transaction of sale and registration stood ratified and the ratification relates back to the time when the first document was made and cured the illegality in the presentation for registration which had taken place. Reliance for this principle was placed by Hidyathullah CJ, inter alia on the observations of Lord MacNaughton in Keighley, Maxsted and Co. Reliance for this principle was placed by Hidyathullah CJ, inter alia on the observations of Lord MacNaughton in Keighley, Maxsted and Co. v. Durant (1901 AC 241), quoting the following observations of Tindal, CJ in Wilson v. Tumman (1843-6 M&C 242): "That an act done, for another, by a person though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him, is the known and well-established rule of law. In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or on a contract, to the same effect as by, and with all the consequences which follow from, the same act done by this previous authority. And so by a wholesome and convenient fiction, a person ratifying the act of another, who, without authority, has made a contract openly and avowedly on his behalf, is deemed to be, though in fact he was not, party to the contract." 87. The Supreme Court Monitoring Committee v. Mussorie, Dehradun Development Authority and others (39) (1997) 11 SCC 605 is not a decision which enunciates any principle which provides guidance on the issue before us. Admittedly, constructions were raised within the forest area in violation of the provisions of the Forest (Conservation) Act 1980 without obtaining clearance from the Central Government as required u/Sec. 2(ii) thereof. The contesting parties were agreed that prior permission of the Central Government was unavoidable and mandatory. In the circumstances the Supreme Court issued directions to the State of U.P. and the MDDA to enlist cases in which they gave permission for use of any forest land for non-forest purposes without seeking prior approval of the Central Government and forward those cases to the Union for seeking ex post facto approval, which is to be considered in accordance with the rules framed under the 1980 Act. While examining the grant of ex post facto approval the Central Government was directed to enquire whether permissions were granted on extraneous considerations or on account of bona fide error. If the Central Government concludes that the decision was extraneous, the officers/ persons responsible must be identified for action for offences under the provisions of law and all applications pending with the State Government/MDDA seeking permission to use forest land for non-forest purposes shall be processing u/See. If the Central Government concludes that the decision was extraneous, the officers/ persons responsible must be identified for action for offences under the provisions of law and all applications pending with the State Government/MDDA seeking permission to use forest land for non-forest purposes shall be processing u/See. 2(ii) of the 1980 Act r/w relevant Rules, directed the Supreme Court. 88. The issue whether permission granted by the State or the MDDA without the prior approval of the Central Government and in violation of provisions of See. 2(ii) of 1980 Act, could be ratified, was neither argued nor decided in this judgment. This principle and in relation to the same enactment viz., The Forest (Conservation) Act, 1980, was directly in issue and decided in A. Chowgule and Company (37 supra). 89. In Punjab University v. V.N. Tripathi and another (40) (2001) 8 SCC 179 the Supreme Court held that though under the provisions of See.21 of the Punjab University Act 1947 the Registrar of the University is authorized to represent the University in all legal proceedings he had no right to initiate legal proceedings including by way of filing an appeal against the decision of the trial court, but since his action of having filed an appeal was later ratified by the competent authority - the Senate, by its resolution dated 29.09.1991, the ratification relates back and cures the defect in the authority of the Registrar in filing the appeal. 90. Maharashtra State Mining Corporation v. Sunil (41) 2006 (5) SCJ 273 = (2006) 5 SC 96 = 2006 (5) ALT 30 .1 (ON SC) reiterates the principle that an invalid act could be ratified by the competent authority. The respondent was dismissed by the Managing Director of the appellant-Corporation, a power not available to the Managing Director having regard to the pay of the respondent. Subsequently the Board of Directors resolved to ratify the action taken by the Managing Director against the respondent-employee and further empowered the Managing Director to take decisions in respect of officers and staff in the grade of pay the maximum of which did not exceed Rs. 4,700/- pm. The respondent at the relevant time was drawing pay of Rs. 1800/- pm. 4,700/- pm. The respondent at the relevant time was drawing pay of Rs. 1800/- pm. The High Court allowed the writ petition of the respondent holding that the Managing Director was not competent to terminate his service and the order of dismissal was invalid and this could not rectified by a subsequent resolution of the Board of Directors. Reversing the decision of the High Court, the Supreme Court held that the ratification and empowerment of the Managing Director removed the initial defect and validated the order of dismissal of the respondent passed by the Managing Director. Analyses on questions (c) and (d): 91. A simplistic analysis as to whether the initial defect in the State action appointing Sri Girish Kumar as DGP in the HAG+ scale (vide GO Rt No. 4667 GAD dt. 25.09.2009) without prior concurrence of the Central Government stands cured or validated by the ex post facto sanction by the Central Government (for the creation of an ex-cadre post in the rank of DGP in the HAG+ scale and w.e.f. 25.09.2009) is neither a jurisprudentially appropriate methodology of judicial review in the circumstances nor does it contribute to nurturing the Rule of Law. An executive Government in a constitutional democracy is required at least to act in conformity with non-derogable statutory commands. This principle is a fortiori applicable since the executive Government in question is of the State which is required to confirm to and act in accordance with the Laws passed and the rules and regulations framed by the Union in exercise of its exclusive legislative field enumerated in List-I of the Seventh Schedule. 92. All public power and more so in a constitutional democracy, it is axiomatic, is a trust. The executive (whether the political or the professional bureaucracy) is in this sense a public fiduciary that must act in accordance with the principles and rules not only in their ritualistic context but in furtherance of the substantive purposes of the legislation and the rules. The preoccupation with the ritual without regard to the substantive principles which substrate the regulation of power under the laws, signals a myopic; attitude to governance that would derail the civilisational index of our Republic. 93. The initial appointment of Sri Girish Kumar to the post of DGP in the HAG+ scale on 25.09.2009 is patently invalid. The preoccupation with the ritual without regard to the substantive principles which substrate the regulation of power under the laws, signals a myopic; attitude to governance that would derail the civilisational index of our Republic. 93. The initial appointment of Sri Girish Kumar to the post of DGP in the HAG+ scale on 25.09.2009 is patently invalid. There was no prior approval of the Central Government, contrary to the specific injunction of Rule 11 (7) of the 2007 Pay Rules. Since Sri Yadav challenged the appointment of Sri Girish Kumar (OA No.944/09), the State woke up to the reality of the clear limitation upon its power under the second proviso to Rule 4(2) of the Cadre Rules and the Hon'ble Chief Minister addressed the Hon'ble Union Home Minister on 12.11.2009 requesting to initiate measures to extricate the State from the 'embarrassment' of having the first and major administrative decision of the 'new Government' [of appointing of Sri Girish Kumar as the DGP (HoPF)] invalidated by the Tribunal and to safeguard the image and reputation of the Government. This was followed by a letter dated 5.12.2009 of the Chief Secretary to the MHA setting out certain administrative exigencies required to be handled by an officer in the rank of DGP (adverted to earlier in this judgment). 94. Neither before the appointment of Sri Girish Kumar as DGP on 25.09.2009, his appointment as DGP (HoPF) on 7.10.2009 nor thereafter was any officer in the rank of DGP posted to any position involving responsibility in any of the areas for which an additional cadre post in the rank of DCP in HAG+ scale was claimed in the Chief Secretary's letter dated 5.12.2009. Neither in the letter of the Hon'ble Chief Minister dated 12.11.2009 nor in the Chief Secretary's letter dated 5.12.2008 is any reason vouchsafed spelling out the emergency or the administrative exigency requiring the urgent appointment of another officer (of the 1976 IPS batch) to the post of DGP in HAG+ scale; an urgency of a magnitude that cannot await the prior approval mandate of the rules. No justification was spelt out either to the MHA nor furnished to this court, explaining why the State could not await the mandated statutory process of prior approval of the Central Government u/Rule 11 (7) of the 2007 Pay Rules. 95. No justification was spelt out either to the MHA nor furnished to this court, explaining why the State could not await the mandated statutory process of prior approval of the Central Government u/Rule 11 (7) of the 2007 Pay Rules. 95. The note file pertaining to the appointment of Sri Girish Kumar to the rank of DGP reveals clear and unambiguous notings by the administration and recognition of these notings by the members of the screening committee (which met on 24.9.2009); that the recidivist, illegal conduct of the State in the management of All India Services Cadres (in the IAS, IPS and IFS as well) was adversely commented by the CAC in its report for the period 2002-03 to 2007-08; and that the MHA had already admonished the State vide its letter dated 29.5.2008 not to make any promotions (hereafter) to the selection grade and above in the IPS without its concurrence on the number of vacancies available in each cadre, as mandated by Rule 3(2)(ii) of the 2007 Pay Rules. The nature of the administrative emergency in the State that occasioned the further violation of the rules and of the Central Government directive and in persisting with the clearly illegal process of appointment of Sri Girish Kumar to the rank of DGP in HAG+ scale on 25.09.2009, ought to have been explained by the State while seeking ex post facto sanction. This was not done. 96. Whatever the undisclosed compulsions of the State for pursuing such illegal process, the Central Government was required to demand from the State the reasons for repeated violation of Rules 3(2)(ii) and 11(7) of the 2007 Pay Rules (for two decades -1990-2010 - vide para-9 of States' counter) and despite its earlier admonition in the letter of the MHA dated 29.05.2008. The Union did not bother to command any explanation from the State. 97. The All India Services Act and the Rules and Regulations framed thereunder including the Cadre Rules and Regulations, the Pay Rules, the Recruitment Rules and the like are part of a complex system of statutory checks and balances which substrate the federal aspect of our constitutional architecture. The Union did not bother to command any explanation from the State. 97. The All India Services Act and the Rules and Regulations framed thereunder including the Cadre Rules and Regulations, the Pay Rules, the Recruitment Rules and the like are part of a complex system of statutory checks and balances which substrate the federal aspect of our constitutional architecture. The structure of All India Services is intended not merely to provide to the Union and the States efficient, highly trained and experienced administrators at senior levels of the bureaucracy but is also intended presumptively to provide an administrative apparatus, to act as a storehouse of information and action on potentially centrifugal, secessionist, divisive or subversive activities or policies within the vast and diverse domains of our Nation, that may imperil the unity and integrity of the Republic and its territories. The All India Services matrix is thus an essential component of our federal constitutional arrangement. The functional efficacy of this critical service is easily eroded when career opportunities within this service are dependent not on statutory principles which govern career opportunities, fairly and rationally administered but are dependent on a policy of patronage or uncanalised discretion; whim not reason. 98. In E.P. Royappa v. State of Tamil Nadu (42) (1974) 4 SCC 3 Bhagwati, J in a concurring opinion explained the principle underlying the mandate of Rule 9(1) of the IAS Pay Rules 1954 (which is in pari materia Rule 11 of the 2007 Pay Rules). Identifying the purpose of the mandate of this provision which enjoins that no member of the service should be appointed to a post other than a cadre post unless the State Government concerned, in respect of posts under its control, makes a declaration that the said post is equivalent in status and responsibility to a cadre post), observed that: So far as cadre posts are concerned, their hierarchy would be known, but a non-cadre post created by the Government would be stranger in the hierarchy, and that is why sub-r. (1) requires that before appointing a member of the Indian Administrative Service to such non-cadre post. The Government must declare which is the cadre to which such non-cadre post is equivalent in status and responsibility so that the member of the Indian Administrative Service who is appointed to such non-cadre post would know what is the status and responsibility of his post in terms of cadre posts and whether he is placed in a superior or equal post or he is brought down to an inferior post. If it is the latter, he would be entitled to protect his rights be pleading violation on Art. 311 or Arts. 14 and 16 of the Constitution, whichever may be applicable. That would provide him effective insulation against unjust or unequal or unlawful treatment at the hands of the Government. The object of this provision clearly is to ensure that the public services are, in the discharge of their duties, not exposed to the demoralising and depraving effects of personal or political nepotism or victimisation or the vagaries of the political machine. The determination of equivalence is, therefore, made a condition precedent before a member of the Indian Administrative Service can be appointed to a non-cadre post under sub-r. (1). It is mandatory requirement which must be obeyed. The Government must apply its mind to the nature and responsibilities of the functions and duties attached to the non-cadre post and determine the equivalence. There the pay attached to the non-cadre post is not material. As pointed out by the Government of India in a decision given by it in MHA letter No. 32/52/56-AIS (II) dated 10/07/1956 the basic criterion for the determination of equivalence is "the nature and responsibilities of duties attached to the post and not the pay attached to the post". (emphasis added) 99. The prior concurrence of the Central Government requirement in Rule 11(7) of the 2007 Pay Rules is intended to ensure that excess ex-cadre posts at the highest level of the service (HAG+ scale) are created with a sense of responsibility with due regard to functional necessity and after an objective and rational assessment as to the equivalence of the non-cadre post in status and responsibility, with a cadre post. While this requirement is a necessitus to the creation of any ex-cadre post, qua the mandate of the 2nd proviso to Rule 4(2) of the Cadre Rules as well, Rule 11(7) of the 2007 Pay Rules is incorporated to ensure the Union Government's prior verification of the State's assessment as to the need for creation of an ex-cadre post (in excess of the permissible limits under the said provision), by duly considering how the existing cadre and permissible ex-cadre posts are being utilized and their regular incumbents deployed; the rationality of the State's claim for an additional ex-cadre post; whether the declaration of equivalence of the status and responsibility of the post has been fairly and legitimately made by the State; and to ensure that excess ex-cadre posts at the highest level are not being created by the State casually or with a view to deploy senior officers already appointed and substantively to sanctioned cadre posts, in ex-cadre posts by assigning them sinecure functions or to avoid senior officers in focal and cadre posts since senior officers are found to be non-pliant, non-genuflecting or non-accommodating of illegal or irrational political commands. The avoidance of politicization of the professional bureaucracy belonging to All India Services and at the highest level of these services, in our considered view is the basis of the provisions of Rule 11(7) and to that end is prior over-sight in the Central Government provided. We therefore hold that this provision is mandatory and non-derogable. 100. It requires to be noticed that the State is already accommodated a buffer in this area. The 2nd proviso to Rule 4(2) of the Cadre Rules (subject to the limitations specified therein) enables the State to create ex-cadre post(s) without requirement of prior approval of the Central Government and without a limit on the number of posts that may be created. This enabling power is preserved by the provisions of Rule 11 (7) of the 2007 Pay Rules (in respect of posts in the pay scale of Rs. 75,500 - 80,000/-), only to the extent of the number of posts equivalent to the number of cadre posts sanctioned for the State. Prior approval is mandated only in the event the State desires to create ex-cadre post(s), in excess of this limit. The State cannot in the circumstances plead inflexibility of the relevant regulation or that the requirement smothers the State's administrative flexibility. Prior approval is mandated only in the event the State desires to create ex-cadre post(s), in excess of this limit. The State cannot in the circumstances plead inflexibility of the relevant regulation or that the requirement smothers the State's administrative flexibility. In any event, the obligation to act within the contours of the operative legal order is the inexorable duty of a government chartered to function in accordance with the Law. 101. The power of prior approval or concurrence conferred on the Central Government and the corollary obligation of the States' to obtain such prior concurrence or approval is a regulation intended neither to whet the whim and caprice of a federal public office incumbent nor to provide a mechanism for the Central Government to periodically exercise power, without reason, occasion or a legitimizing principle for such exercise. 102. Rule 3(2)(ii) and (iii) of the 2007 Pay Rules mandate the State cadre authority to seek prior concurrence of the Central Government on the number of available vacancies in each grade, in the scales of selection grade and above; and enjoin the Central Government to accord such concurrence within the period of 30 days from the date of receipt of such reference and provides that if the Central Government does not accord concurrence within the said period, the concurrence on the availability of vacancies shall be deemed to have been accorded and the position emanating must be placed before the screening committee at the time it meets to consider promotion in these grades. In our considered opinion this provision is intended to ensure that the appointment of members of the service to selection grade and above scales is made by the State, strictly in accordance with the I statutory principles governing such appointments (promotions), only if vacancies are available in a specified grade; to enable prior information to the Central Government to effectuate its over-sight as to the regularity of cadre management by the State and to ensure fiscal prudence as well. The requirement of conformity to the mandate of Rule 3 cannot therefore be considered an empty ritual bereft of normative principles, either by the State or the Central Government. 103. Rule 11(7) of the 2007 Pay Rules prohibits appointment of members of the service to other than cadre posts which carry the specified scale of pay (now Rs. The requirement of conformity to the mandate of Rule 3 cannot therefore be considered an empty ritual bereft of normative principles, either by the State or the Central Government. 103. Rule 11(7) of the 2007 Pay Rules prohibits appointment of members of the service to other than cadre posts which carry the specified scale of pay (now Rs. 75,700 - 80,000), in excess of the cadre posts at that level of pay in the State cadre, except with the prior approval of the Central Government. This provision in our considered view is intended to avoid irrational proliferation or addition to the number of ex-cadre posts without an objective prior satisfaction by the Central Government as to the need for creation of ex-cadre posts in excess of the number of sanctioned cadre posts in the scale of pay of Rs. 75,500 - 80,000. This provision ensures that promotion to higher echelons of the service i.e., the rank of DGP in HAG+ scale, is not indiscriminately made by the State and the excessive number of officers orbiting in the DGP rank are not employed in all and sundry posts or to perform sinecure functions. The prior approval of the Central Government mandated by Rule 11(7) provides a check on the exercise by the State. The limit of ex-cadre posts at this level is equivalent to the number of sanctioned cadre posts. Any appointment in excess of that number warrants prior approval of the Central Government. Before applying for prior approval the State must record a clear justification for the addition of ex-cadre posts in excess of the permitted limits, duly indicating the requirement of the post, the purposes for which it is sought to be created and the functions to be performed by the officer appointed thereto and a statement disclosing how other officers of this rank are deployed. When the State or the Central Government, oblivious to such normative bases of Rule 11(7) present a claim for creation of an excess ex-cadre post or accord a prior approval or an ex post facto sanction (as in this case), it would be a case of power and discretion exercised as a ritual, devoid of substance. When the State or the Central Government, oblivious to such normative bases of Rule 11(7) present a claim for creation of an excess ex-cadre post or accord a prior approval or an ex post facto sanction (as in this case), it would be a case of power and discretion exercised as a ritual, devoid of substance. We are compelled to record that extricating the State from an embarrassment consciously and knowingly generated by itself, is no part of the legitimate function of the Central Government either under our Constitutional schemata or within the text and context of the All India Service Act, the Cadre Rules or the 2007 Pay Rules. 104. From the conspectus and the principles discernable from the decisions Tejpal Singh, Dr. Mohanjit Singh, Behari Kunj Sahkari Avas Samiti and Chowgule (33, 34, 36, 37 supra), the Central Government in this case is seen to have been presented with a fait accompli by the State in the appointment of Sri Girish Kumar as DGP in HAG+ scale on 25.09.2009 and thereafter as DGP (HoPF) on 7.10.2009. The Hon'ble Chief Minister's letter dated 12.11.2009 pleaded for extrication from the embarrassment consequent on a possible curial invalidation of this illegality. This was reiterated in the Chief Secretary's letter dated 5.12.2009 which added a few administrative imperatives to the list of justifications for creation of an additional cadre post. The Government of India communicated its ex post facto sanction for creation of an ex-cadre post of DGP in HAG+ scale w.e.f. 25.9.2009 without any query as to the justification for creation of the post or for the State resorting to repeated violations of the mandatory requirement of Rule 11(7). The Central Government failed to even query the State why Rule 3(2)(ii) of the 2007 Pay Rules was transgressed despite the MHA's earlier admonition dated 29.05.2008. 105. In our considered view the ex post facto sanction constitutes an irrational exercise of a critical Central Government's function under Rule 3(2) and 11(7) of the 2007 Pay Rules. This decision is vitiated by non-application of mind to the substrating principles and the relevant factors which condition the exercise of power of the State under the 2nd proviso to Rule 4(2) of the Cadre Rules read with the limits upon the State's power enjoined by the aforementioned provisions of the 2007 Pay Rules; and constitutes an abdication of its control and oversight obligations. The ex post facto sanction conveyed in the Government of India's letter dated 10.12.2009 is therefore arbitrary, irrational and void, in so far as the ex post facto sanction component is concerned. 106. We are persuaded to infer, concurring with the learned Tribunal on this aspect that the only discernable justification for the State for creating an additional ex-cadre post in the rank of DGP in HAG+ scale on 25.09.2009 is the claim of the 1976 batch officers for promotion to the DGP rank claiming stagnation, a claim recommended by the Hon'ble State Home Minister and which commended acceptance by the Hon'ble Chief Minister, on successive occasions. Where the rules do not permit promotion on the ground of stagnation, the claim itself was unjustified and the State acted in derogation of the Rules and not in effectuation thereof when it acceded to such unjustified claims. 107. We also see no stagnation. A member of the service joins the service in the junior scale, then goes to the senior scale, having 3 pay bands (the senior time scale, the junior administrative grade and the selection grade); then progresses to the super-time scale having two pay bands (DIG and IG pay bands); and thereafter goes on to the above super-time scale, now having three pay bands - the Addl. DG of Police, the HAG+ scale and ultimately the apex scale in DGP(HoPF), if successful in selection to the apex scale. De hors the apex scale and the HAG+ scale there are at present seven promotional avenues in a span of slightly above three decades of service. The officers of 1976 batch had progressed from the junior scale to the first stage above super-time scale post of Addl. DGP. As Sri Girish Kumar was continued in the cadre post of DGP (ACB) both in the substantive capacity of Addl. DGP and even after 25.09.2009, the State has failed to establish any administrative exigency which was the basis for the State's claim as asserted in the Chief Secretary's letter dated 5.12.2009 to the Central Government. We are unable to discern any stagnation in the facts and circumstances adverted to above. 108. We are gravely concerned that even the report of the CAG (the principal auditor of the Nation, exercising his constitutional authority and highlighting the recurrent acts of fiscal indiscipline) has gone unheeded by the State. We are unable to discern any stagnation in the facts and circumstances adverted to above. 108. We are gravely concerned that even the report of the CAG (the principal auditor of the Nation, exercising his constitutional authority and highlighting the recurrent acts of fiscal indiscipline) has gone unheeded by the State. When the highest echelons of the bureaucracy prioritise career gratification over the rule of law and the political executive collaborates in a symbiosis of profligacy, the legislative check becomes imperative. We hope and trust that the Legislature would bestow attention to this aspect of its constitutional function, an essential integer of Parliamentary democracy. 109. The exercise of all administrative power vested in a public authority must be structured within a system of controls, informed by relevance and reason relevance in relation to the object which it seeks to serve and reason with respect to the manner in which it attempts to do so. Where the exercise of administrative power effects individual rights, liberties or aspirations, in a constitutional democracy there could be no greater assurance protecting the valid exercise of administrative power than the subjection of such power to the twin tests of relevance and reason. The issuance of GO Rt No. 4667 GAD dated 25.09.2009 and the ex post facto sanction granted by the Central Government conveyed through its letter dated 10.12.2009 for creation of an excess ex-cadre post in the rank of DGP in HAG+ scale, in our carefully considered view fail the twin tests of relevance and reason. 110. The Central Government's approval (conveyed through its letter dated 10-12-2009) was in response to the request for an additional 'cadre' post in the DGP HAG+ Scale for the State, asserted in the letter of the State Chief Secretary, dated 05-12-2009 and for the reasons and administrative requirements stated therein to support the claim for an additional post. However, the Central Government conveyed approval for creation of an 'excadre' post only. Hence it is legitimate to infer that in the assessment of the Union, the need pleaded by the State was found to be of a limited duration, not justifying a cadre review (regular or proponed) and creation of an additional cadre post of that rank. However, the Central Government conveyed approval for creation of an 'excadre' post only. Hence it is legitimate to infer that in the assessment of the Union, the need pleaded by the State was found to be of a limited duration, not justifying a cadre review (regular or proponed) and creation of an additional cadre post of that rank. We have in our analyses earlier herein, found no legitimate bases or urgency for the promotion of Sri Girish Kumar on 25-09-2009 and no legality in the retrospective approval granted for this action, by the Central Government. We have declared the retrospective aspect of the approval invalid. We are however satisfied that the invalid and the valid aspects of the approval (dated 10-12-2009) are severable. We therefore hold, concurring with the Tribunal (but for the distinct reasons recorded by us) that the creation by the State of an additional ex-cadre post of DGP in the HAG+ Scale is valid and proper but with effect from 10-12-2009. Since Sri Girish Kumar was already found 'fit' for promotion as DGP in the HAG+ Scale (qua the screening committee minutes dated 24-09-2009), though his appointment to this rank in the service with effect from 25-09-2009 is unsustainable, we concur with the conclusion of the Tribunal that his promotion as DGP in the HAG+ Scale is valid on and from 10-12-2009, the date w.e.f. which another ex-cadre post was duly added. 111. In summation we hold on Issue No.4 that the decision of the Central Government according ex post facto sanction to the creation of one ex-cadre post w.e.f. 25.09.2009 under Rule 11(7) of the 2007 Pay Rules (in response to the Chief Secretary's letter dated 5.12.2009), is unsustainable to the extent that sanction was granted w.e.f. 25.09.2009. The sanction of an ex-cadre post in the HAG+ scale under the 2007 pay Rules is however valid and operative proprio vigore prospectively i.e., on and from 25.09.2009 (sic. 10-12-2009). As a consequence, the appointment of Sri Girish Kumar to the post of DGP in HAG+ scale vide G.O.Rt.No. 4667 GAD dated 25.09.2009 and consequently his appointment to the post of DGP(HoPF) under G.O.Rt.No. 4850 GAD dated 07.10.2009 cannot be sustained. His appointment to the DGP in the HAG+ scale is valid on and from 10.12.2009. The issue is answered accordingly. Issue (5): 112. The State Government (the petitioner in W.P.Nos. His appointment to the DGP in the HAG+ scale is valid on and from 10.12.2009. The issue is answered accordingly. Issue (5): 112. The State Government (the petitioner in W.P.Nos. 2257 and 2880 of 2010) is aggrieved by certain, observations recorded; declarations and directions issued, by the Tribunal. The Tribunal has observed: (A) 12.1 ... We are also of the view that since the post of DGP(HoPF)is a promotional post, the persons who are considered for the post should have "sufficient length of service, very good record and range of experience for heading the police force" as directed by the Hon'ble Supreme Court in Prakash Singh's case. Respondent No.3 who had less than 15 days of service in the grade of DGP when he was promoted to the Apex Scale, cannot be considered to satisfy this requirement. We are therefore of the view, that the State Government should immediately convene a meeting of the selection committee and consider all the officers in the grade of DGP(H A G+) Scale and recommend a panel of three names on the basis of their length of service, record and range of experience for heading the police force and submit the same to the Chief Minister. The Chief Minister will have the discretion to appoint one of them found most suitable for the post of DGP(HoPF). (B) 13.3 as regards the applicant in OA 944/2009 he was appointed as DGP(HoPF) not once but twice. The State Government in the reply affidavit has stated that he was transferred since he was found "wanting" to providing positive leadership to the police force in the State. Shri P.P. Rao learned senior counsel agued that the appellant was not found suitable to hold the post of DGP(HoPF) during the elections by an impartial and constitutional authority like the Election Commission and its assessment was accepted by the State Government. After the elections were over the State Government gave him one more opportunity to come up to the expected scale by reappointing him as DGP(HoPF). Thereafter the Chief Minister died in an accident and the successor Chief Minister after observing the applicant's work and conduct found him wanting in providing positive leadership to the police force and decided to transfer him and post another officer after selection from a panel of three officers recommended by a duly constituted selection committee. Thereafter the Chief Minister died in an accident and the successor Chief Minister after observing the applicant's work and conduct found him wanting in providing positive leadership to the police force and decided to transfer him and post another officer after selection from a panel of three officers recommended by a duly constituted selection committee. The learned counsel contended that having been found twice unsuitable to continue in this post there was no question of the applicant being considered once against for the same post by the selection committee. 13.4 We had the benefit, as stated earlier, of going through the files relating to the appointment of Respondent No.3, first as DGP in the HAG+ Scale and subsequently as DGP (HoPF). We do not find any material anywhere that the Government was unhappy with the performance of the applicant (in OA 944/2009) as DGP (HoPF) and therefore wanted to transfer him. The entire exercise started with a note received by the CM on 4.2.2009 from the Home Minister recommending promotion of the officers of till 1976 batch to the DGP (HAG + Scale). Both the former Chief Minister and the present Chief Minister were inclined to consider their request. There is nothing adverse on record against the applicant. No charge memo has been issued nor any explanation called for. No shortcoming on his part was communicated to him in writing. Therefore, we do not subscribe to the view that the applicant does not deserve to be considered for selection. His claim for consideration cannot be brushed aside without any legal basis. Admittedly, the selection committee was constituted for the first time on 1st October 2009 to select a suitable person for the said post of DGP (HoPF). Even on that date there was nothing adverse on record against the applicant. Only on 7.1 0.2009, when the decision was taken to post R-3 as DGP (HoFF), the Hon. Chief Minister has minuted that the applicant was found wanting in providing positive leadership to the police force. The basis for coming to this conclusion is not known. Though the first respondent might have been unhappy with the performance of the applicant, since there was nothing against him on record, he should have been considered for selection along with the other officers since he is the senior most officer of the service. The basis for coming to this conclusion is not known. Though the first respondent might have been unhappy with the performance of the applicant, since there was nothing against him on record, he should have been considered for selection along with the other officers since he is the senior most officer of the service. The State Government's affidavit in para 13 talks of their "obligation to keep the morale of the police force in leading the uniformed service" and the State Government's efforts "to protect the interest of the members of the service within the rules prescribed, to the extent possible". We fail to understand how the morale of the police force will be maintained if senior officers are kept out of selection and a relatively junior officer is catapulted to the post of head of police force. The Tribunal had declared: (a) that the post of DGP (HoPF) is a promotional post; and (b) The transfer and posting of Sri Yadav and Sri Mohanty (applicants in O.A.Nos. 944 and 999 of 2010, respectively) as VC & MO, APSRTC and as Chairman, Andhra Pradesh Road Safety Authority, in the scale of Rs. 75,500 - 80,000/- amounts to reversion to a lower scale and these officers are entitled to pay protection i.e., in the apex scale even after their transfer, as they had held the post of DGP (HoPF) on a regular basis. The Tribunal Direction: 113. The State shall constitute a selection committee to select a panel of three names for appointment as DGP (HoPF) in the apex scale, in accordance with the rules, duly considering the candidature of all officers in the DGP in HAG + Scale in accordance with the observations in paragraph Nos. 12.1 and 13.4 of its order. 114. The learned Advocate General would contend relying on the judgment in Royappa (42 supra) that the Tribunal erred in observing that: "Respondent No.3 who has less than 15 days of service in the cadre of DGP when he was promoted to the Apex Scale cannot be considered to satisfy the requirement", by reliance on the judgment of the Supreme Court in Prakash Singh (1 supra). Sri Girish Kumar is also aggrieved by this observation. 115. In our considered view the grievance of the State adopted by Sri Girish Kumar as well, is legitimate. Sri Girish Kumar is also aggrieved by this observation. 115. In our considered view the grievance of the State adopted by Sri Girish Kumar as well, is legitimate. The Tribunal has correctly (in our view) held that the continuation of Sri Girish Kumar as DGP in HAG+ Scale is valid since a 5th post in this rank stood created by the approval by the Central Government. Though the Central Government had accorded ex post facto sanction for this post w.e.f. 25.09.2009, in our analysis in issue-(4) we have held that such approval w.e.f. a date anterior to the date of issue of the order (i.e., 10.12.2009), is unsustainable and the approval is valid only prospectively. 116. The Tribunal's comment that Sri Girish Kumar, on account of his short (regular) tenure in the rank of DGP in HAG+ scale (15 days) does not satisfy the requirements of "sufficient length of service, very good record, and range of experience for heading the police force" in view of the decision in Prakash Singh (1 supra) is however, in our considered view erroneous. Note-2 under Rule 3(1) of the 2007 Pay rules enjoins that the post of DGP in the apex scale be filled by selection from amongst officers holding the post of Director General of Police in the State cadre in the HAG+ Scale. As Sri Girish Kumar is a substantive holder of the post of DGP in the HAG+ Scale (on and from 10.12.2009), he is as qualified as any other officer in the rank of DCP in HAG+ Scale and entitled to be considered for selection for appointment. This is the mandate of the relevant provisions of the 2007 Pay Rules. 117. The observations in Royappa (42 supra), made in the context of selection and appointment to the post of Chief Secretary are a fortiori applicable to the process of selection and appointment to the post of DGP(HoPF) as well. In a concurring judgment in Royappa, Bhagwati, J observed: 87. Now, two important considerations must weigh with us in determining our approach to these questions. First, the post of Chief Secretary is highly sensitive post. It is a post of great confidence - a lynch pin in the administration and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister. First, the post of Chief Secretary is highly sensitive post. It is a post of great confidence - a lynch pin in the administration and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister. The Chief Minister as the head of the Government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures of the Government. If, therefore, for any valid reason the Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may legitimately, in the larger interests of administration, shift the Chief Secretary to another post, provided of course that does not involve violation of any of his legal or constitutional rights. There can be no question in such a case as to who is right and who is wrong. The displacement of the Chief Secretary from his post in such a case would not be arbitrary and it would not attract the inhibition of Articles 14 and 16. It may, however, be pointed out that such an action would not, we think, ordinarily be taken except for the most compelling reasons, because, if resorted to without proper justification, it would tend to affect the political neutrality of the public service and lead to demoralisation and frustration amongst the public servants. 118. Prakash Singh (1 supra) is a judgment pronounced in a writ petition filed in the public interest, essentially and primarily to ensure that police is made accountable to the laws of the land and the people. The Supreme Court referred to the terms of reference of the National Police Commission (appointed on 15.11.1977) and some of its recommendations contained in its several reports spread over the period - February 1979 to May 1981. The court also referred to the report dated 31.05.2002 of the National Human Rights Commission and the observations therein on the aspect of police reforms; the earlier letter of the Union Home Minister dated 03.08.1977; and the 154th report of the Law Commission which recommended separation of investigation and law and order functions of the police force. The court noticed with distress the inaction of State Governments in ushering reforms in the structure and functions of the police forces. The court noticed with distress the inaction of State Governments in ushering reforms in the structure and functions of the police forces. The scourge of frequent transfers and postings on political considerations have demoralized the police force, noted the Supreme Court, referring to its judgment in Vineet Narain and others v. Union of India and another (43) (1998) 1 SCC 226 . Accordingly the Supreme Court issued directions to the Central Government, State Governments and Union territories mandating compliance till appropriate legislation is framed. (emphasis added) 119. On the process of selection and tenure of the DGP (the judgment was rendered prior to the creation of the post of DGP (HoPF) by the 2008 amendments to the 2007 Pay Rules), the Apex Court directed: (2) The Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties. 120. The direction that the DGP shall be selected by the State from amongst three senior-most officers of the Department empanelled for promotion to that rank by the UPSC on the basis of their length of service, very good record and range of experience for heading the police force, does not in our considered view ordain that experience only in the feeder post to the post of DGP ought to be considered. The post of DGP, in Prakash Singh (1 supra) is now the post of DGP (HoPF). The statutory rules enjoin that the cases of all officers serving as DGP in the HAG+ Scale must be considered. The post of DGP, in Prakash Singh (1 supra) is now the post of DGP (HoPF). The statutory rules enjoin that the cases of all officers serving as DGP in the HAG+ Scale must be considered. Members of the service appointed to the rank of DGP in the HAG+ Scale are invariably the senior most officers in the service, excluding those who are superseded, if any and for valid reasons. The statutory rules mandate a process of selection and the appointment is to a post that must head the police force in the State. The full range of experience of an officer, the qualities of head and heart; of leadership; ability to manage the human assets that constitute the force; integrity; a comprehension of the socio-cultural-economic profile of the people; neutrality; professionalism; a capacity to act decisively and with clinical precision; fidelity to and comprehension of the appropriate role of the police under a federal and democratic constitutional order; and many such and other qualities revealed during the long career require to be considered, while appointing an officer to this critical and sensitive position at the highest level of the police bureaucracy. Different qualities and particular skills may be required in different periods, in the dynamics of public administration. Just as in the life of a Nation there are times of peace and of conflict, in the case of State as well there are placid times as there are times of turbulence and tumult. The etiology of disequilibrium in a society may differ and on occasions, calling for special qualities and skills. Governance is a dynamic phenomenon. This too often calls for not merely ability but aptitude. In the nature of things the Government must be accommodated the power and discretion of rational choice in the selection of officers within the zone of consideration for appointment to the post of DGP (HoPF). The decision in Prakash Singh does not derogate from and in fact fortifies the availability of legitimate and rational but adequate Governmental discretion in this area. Prakash Singh directions are in our considered view intended to be both a prophylactic and a curative to the necrosis of politicization, demoralization and regress from professional neutrality of the police; and to the attainment of that object are its directions addressed. The Prakash. Prakash Singh directions are in our considered view intended to be both a prophylactic and a curative to the necrosis of politicization, demoralization and regress from professional neutrality of the police; and to the attainment of that object are its directions addressed. The Prakash. Singh directive that the empanelment shall be by the UPSC is intended to infuse neutrality, expertise and professionalism into the process of selection. As there is no subsequent legislative or statutory intervention or modification, the directions in Prakash Singh on the process and the selection authority are operative and bind the executive. 121. On the aforesaid analysis, the selection committee may consider the entire service, experience and record of an officer and ought not to be restricted to consider the record of service in the post of DCP in the HAC+ Scale alone. Since the 2007 Pay Rules are 'law', in view of their statutory descent under the provisions of the All India Services Act, 1951, we are of the view that the directions in Prakash Singh that the DCP should be selected from amongst three senior-most officers of the department stands altered by Note-2 under Rule 3 of the 2007 Pay Rules, which enjoins that the post of DCP (HoPF) shall be filled by selection from amongst officers serving in the post of DCP in the State cadre in HAC+ Scale (emphasis). Since all officers holding the post of DCP in the HAC+ Scale are qualified to be considered and ought to be considered, the process of selection cannot be cabined by an assumption that seniority in the rank of DCP in the HAC+ scale indicates greater suitability for appointment to the post of DCP (HoPF). 122. The State is also aggrieved by the observation of the Tribunal that there was no material to substantiate its stand nor was there a justification for its "unhappiness" with the performance of Sri Yadav as DCP (HoPF). 123. The Tribunal or this Court exercising jurisdiction under the provisions of the Administrative Tribunals Act, 1985 or under Article 226 of the Constitution, as the case may be, it is an established principle, are not authorized an appellate scrutiny over administrative decisions rationally taken. The jurisdiction is in the nature of judicial review, concerned essentially with the decision making process than the actual decision. The jurisdiction is in the nature of judicial review, concerned essentially with the decision making process than the actual decision. As we have observed earlier, the suitability of an officer for the post of DCP (HoPF), sensitive and critical as the post is (as observed in Royappa) and having regard to the ultimate political accountability of the political executive - Chief Minister (in a Parliamentary form of democracy), wide latitude must be accommodated for Government's choices in this area. If all officers within the legitimate zone of consideration are considered for empanelment (and as directed in Prakash Singh empanelment is by the UPSC), the Government's (the Chief Minister's) discretion to select one among the empanelled officers for appointment as DGP (HoPF), the judicial branch ought normally to defer to. The expression 'suitability' is a pregnant and plurisignative expression even when rationally employed. There are many nuances of experience, personality, attitudes and skills that substrate the several shades of suitability and since the principles of administrative law operative in this area do not enjoin a requirement to record reasons while selecting an officer to the post of DGP (HoPF) (neither Royappa nor Prakash Singh (42 & 1 supra) enjoin such requirement), the assessment of the Government recorded by employing expressions such as 'suitable', 'unsuitable' or 'wanting in providing effective leadership to the police force in the State' must receive due deference from the judicial branch. This is the essence of Constitutional statesmanship; of the fine balancing act between the permissible contours of judicial over-sight of administrative discretion and the separation of powers, two fundamental values delineated by our constitutional architecture. We also note that the observations are recorded by the Tribunal in the context of its finding that Sri Yadav and Sri Mohanty were regularly appointed to the post of DCP (HoPF) though the tenure of Sri Mohanty in the said post was held to be regular only during the election process and qua the authority of the Election Commission of India. In our analyses on issue (4) we have rejected this conclusion of the Tribunal and have held that Sri Yadav was never appointed to the post of DGP (HoPF) in accordance with the rules and the law in force. 124. In our analyses on issue (4) we have rejected this conclusion of the Tribunal and have held that Sri Yadav was never appointed to the post of DGP (HoPF) in accordance with the rules and the law in force. 124. On the aforesaid analysis, the observations of the Tribunal regarding the irrationality of the decision by the State in not favourably considering Sri Yadav for appointment to the post of DGP (HoPF), are unsustainable and so declared. 125. Our conclusions as to grievances of the State regarding declarations by the Tribunal:- (a) We concur with the ruling of the Tribunal that the post of DGP (HoPF) is a promotional post. Note-II under Rule 3 (i) of the 2007 Pay Rules enjoins that officers in the State cadre holding posts of DGP rank in the HAG + Scale, shall be considered by the process of selection for appointment to the post of DGP (HoPF). The decision of the Supreme Court in Prakash Singh (1 supra) also enjoins that the post of DGP [then, now re-designated on upgradation as DGP (HoPF)] shall be filled by a process of selection by empanelment by the Union Public Service Commission. These directions in Prakash Singh are still operative as these have not been altered by any subsequent legislation or Statutory rules. The Supreme Court had also not passed any order keeping its directives in Prakash Singh in abeyance. Neither the 2007 Pay Rules nor the 2008 amendments thereto delineate the process of section for appointment to the post of DGP (HoPF). Note-2 under Rule 3 (1) of the 2007 Pay Rules enjoins that the appointment shall be by the process of 'selection'; the process of selection is not indicated. The record discloses that despite repeated requests by the State, the Central Government has not indicated the process nor has communicated guidelines for conducting selection for appointment of DGP (HoPF). The record also reveals that the Central Government had issued guidelines for appointment to the post of Principal Chief Conservator of Forests (HoFS), a post in the apex scale as well. The Central Government did not issue guidelines as are inconsistent with or at variance to the directions in Prakash Singh (1 supra) which ordain that the process of selection to the post of DCP [now DCP (HoPF)] should be through empanelment of officers by the Union Public Service Commission. The Central Government did not issue guidelines as are inconsistent with or at variance to the directions in Prakash Singh (1 supra) which ordain that the process of selection to the post of DCP [now DCP (HoPF)] should be through empanelment of officers by the Union Public Service Commission. The post of DCP (HoP F) is a fixed (apex) scale post as distinct from a running scale attached to the post of DCP in the HAC+ Scale. It is well settled as pointed out in several cases including in Royappa (42 supra) that the scale of pay is not an exclusive index to identify a parity of rank. The post of DCP (HoPF) being the apex post in the police bureaucracy in the State and required to be filled up by a process of selection duly considering officers holding the rank of DCP HAC+ Scale, it is a higher and a promotional post. (b) The Tribunal had held that Sri Yadav and Sri Mohanty were regularly appointed to the post of DCP (HoPF). In our analysis on issue No.2 we concluded that Sarvasri Yadav and Mohanty were never appointed to the post of DCP (HoPF), in accordance with the relevant rules and cannot therefore be considered as regularly appointed thereto. In this view of the matter, the declaration of the Tribunal that transferring and posting Sarvasri Yadav and Mohanty as VC & MD, Andhra Pradesh State Road Transport Corporation and as Chairman, Andhra Pradesh Road Safety Authority in the (running) scale of pay of Rs. 75,500 80,000/- amounts to reversion to a lower scale and that these officers are entitled to pay protection i.e., the apex scale even after their transfers, is unsustainable. It is so declared. Our conclusions regarding the directions by the Tribunal: 126. In the course of our analysis (on issue No.4) and on perusal of the relevant note file pertaining to the process of selection by the Selection Committee constituted in C.O.Rt.No.4733 CAD dated 01-10-2009, we have noticed that the selection committee was presented with the service record of four officers - Sarvasri Nandan, Mohanty, Goutam Kumar and Girish Kumar. The record of Sri Yadav does not appear to have been considered and in respect of Sri Mohanty the fact of a pending disciplinary proceeding vide G.O.Rt. No.3559 GAD dated 18-07-2009 was placed on record. The record of Sri Yadav does not appear to have been considered and in respect of Sri Mohanty the fact of a pending disciplinary proceeding vide G.O.Rt. No.3559 GAD dated 18-07-2009 was placed on record. The minutes of the selection committee dated 01-10-2009 record that Sarvasri Goutam Kumar, Girish Kumar and Nandan were empanelled on being found fit while Sri Mohanty was not found fit on account of pending charges. On 07-10-2009 the Hon'ble the Chief Minister selected Sri Girish Kumar for appointment as DGP (HoPF) and recorded that Sri Yadav was "found wanting in providing positive leadership to the Police Force in the State". 127. In a subsequent development, the Government dropped further action against Sri Mohanty in the disciplinary case, on 09-11-2009. The charge against Sri Mohanty which led to the disciplinary proceedings was an allegation that he failed to take prior permission for his visit to Delhi in March, 2008. Factually it would appear that the Government had approved the tour of Sri Mohanty in connection with official work. There is thus substantive basis for inferring that the departmental proceeding was initiated against Sri Mohanty on a trumped up charge without any basis. In any event, the Government dropped further proceedings on 09-11-2009. 128. Prior to the appointment of Sri Girish Kumar to the post of DGP (HoPF) videG.O.Rt.No.4850GAD dated 07-10-2009 (after a process of selection by a selection committee constituted in G.O.Rt.No. 4730 GAD dated 01-10-2009), neither the appointment of Sri Yadav nor of Sri Mohanty was pursuant to a process of selection. In fact prior to the 2008 amendments to the 2007 Pay Rules, all posts of DGP rank in the State were in the HAG+ Scale, were treated as equivalent and the appointment of Director General and Inspector General of Police was as a mere posting from one post of DGP to another. This practice and methodology continued even after the amendment of the rules, till the appointment of Sri Girish Kumar. 129. This practice and methodology continued even after the amendment of the rules, till the appointment of Sri Girish Kumar. 129. In the facts and circumstances above and in view of the statutory dynamics read in the context of the operative and mandatory directions of the Supreme Court in Prakash Singh (1 supra), which have not been altered, modified or substituted by Legislation or Statutory Rules; in view of the invalidity of the appointment of Sri Girisih Kumar to the post of DGP (HoPF) vide our conclusion on issue No.4 (concurring with the finding of the Tribunal on this aspect), the process of selection to the post of DGP (HoPF), must be held afresh. As the decision in Prakash Singh is operational and binding and in the light of the mandate of Note-2 under Rule 3 (1) of the 2007 Pay Rules, the Union Public Service Commission must conduct the selection and empanel three officers from amongst officers holding the post of DGP in the HAG+ Scale, for consideration by the State Government, for appointment as DGP(HoPF). 130. We accordingly direct the Cadre Authority in the State Government [in conformity with the mandate of Rule 3(2)(ii) of the 2007 Pay Rules], to intimate the act of and seek the prior concurrence of the Central Government on the available vacancy in the DGP (HoPF) apex scale post and upon receipt of concurrence or on completion of the period of 30 days (from the date of receipt of the State Government's reference by the Central Government) forward the record of officers in the rank of DGP - HAG+ Scale to the Union Public Service Commission (UPSC), for empanelment of three (3) officers for appointment to the post of DGP (HoPF), as directed in Prakash Singh (1 supra). On receipt of the panel from the Union Public Service Commission, the State Government shall consider for appointment as DGP (HoPF), an officer from amongst the empanelled officers and shall issue an order of appointment. On receipt of the panel from the Union Public Service Commission, the State Government shall consider for appointment as DGP (HoPF), an officer from amongst the empanelled officers and shall issue an order of appointment. The 5th (but ex cadre) post in the rank of DGP in HAG+ Scale having now been sanctioned vide concurrence of the Government of India conveyed by the letter dated 12-10-2009, Sri Girish Kumar; as disciplinary proceedings have been dropped, Sri Mohanty; and the other officers holding the rank of DGP in the HAG+ Scale Le., Sarvasri Yadav, Nandan and Goutam Kumar are eligible to be considered and the record of these officers must be forwarded to the Union Public Service Commission by the State for empanelment for its eventual consideration for appointment to the post of DGP (HoPF). 131. We also declare that in view of the directions in Prakash Singh (1 supra) and in the absence of any contrary legislation or Statutory rule issued subsequent thereto, the empanelment must be by the Union Public Service Commission. The State is disentitled to constitute a selection committee for empanelment of officers for appointment as DGP (HoPF). The only authority of the State Government is to make a final choice from amongst the officers empanelled by the Union Public Service Commission and to thereafter issue the order of appointment to the post of DGP (HoPF). 132. We place on record our appreciation for the valuable assistance extended by the learned Advocate General for the State and the learned counsel for the respective parties. We also commend Sri. Santhanam, the Learned Member of the Central Administrative Tribunal, Hyderabad Bench for the precise, well reasoned and syllogistically structured opinion recorded in the order under review before us in these cases. 133. We have not recorded any opinion or observations on the relative merits/suitability of the officers for appointment to the post of DGP (HoPF). Such an exercise is not within our province in this lis; and is more appropriately the domain of the appropriate selection authority and the appointing authority the State Government. 134. We are left with a feeling of disquiet however; we have observed that the State Government customarily posts officers appointed to ex-cadre posts to cadre posts and officers appointed to vacancies within the sanctioned cadre strength(senior officers), to ex-cadre posts; too frequently and for long durations as well. 134. We are left with a feeling of disquiet however; we have observed that the State Government customarily posts officers appointed to ex-cadre posts to cadre posts and officers appointed to vacancies within the sanctioned cadre strength(senior officers), to ex-cadre posts; too frequently and for long durations as well. Either the preceding process of selection and promotion is casual, ritualistic or unmindful of the functional requirements of the higher posts for which the selection/promotion is being considered; or is there a more sinister pathology? We wonder! But we pass on. 135. In view of our analyses and conclusions on the several issues and the questions formulated supra, W.P.Nos. 2257 and 2880 of 2010 by the State and W.P. No. 2337 of 2010 filed by Sri Girish Kumar are partly allowed as indicated in the judgment and W.P.Nos. 5225 and 5238 of 2010 filed by Sri Yadav are dismissed. No costs however.