T.S. Doabia, J.A writ of mandamus stands issued. The official respondents to the writ petition have been directed to constitute and convene a special Selection Board and consider the cases of the writ petitioners Members of the State Service for inclusion in the Indian Forest Service. It is this direction given by a learned Single Judge of this Court which is being assailed by the State of Jammu and Kashmir by preferring this Letters Patent Appeal under clause 12 of the Letters Patent.

2. The facts in brief are as under :

The All India Services Act 1951 came to be amended in the year 1963. All India Forest Service came to be constituted. In order to give effect to the provisions of the amended Act for making appointment to the service, the Central Government promulgated five sets of Rules. These rules are as under :

1. Indian Forest Service Cadre Rules, 1966;

2. Indian Forest Service Recruitment Rules, 1966;

3. Indian Forest Service Probation Rules, 1968;

4. Indian Forest Service Pay Rules, 1968; and

5. Indian Forest Service Regulation of Seniority Rules, 1968.

3. As the service came to be constituted for the first time, initial recruitment to the cadre of Indian Forest Service was to be made. This was to be done in terms of Rule 3 of Indian Foreign Service (Recruitment) Rules of 1966 (hereinafter referred to as the Recruitment Rules of 1966). The method of recruitment to the Service constituted under Rule 3 is given in Rules 4, 5 and 6 of the Recruitment Rules of 1966. A special Selection Board came to be constituted for determining the eligibility and preparation of list of officers suitable for being recommended for their ultimate appointment in the service. This was to be done under Indian Forest Service (Initial Recruitment Rules) of 1966. A special Selection Board was to be constituted. Rule 3 makes a provision in this regard. The criteria for eligibility which a person was supposed to possess for appointment to the service was laid down in Rule 4. The list of suitable candidates was to be prepared under Rule 5. Appointments were to be made to the service in terms of Rule 6.

4. After the aforementioned Rules were promulgated, special Selection Board came to be constituted. Twentyfive officers from the State of Jammu and Kashmir who were the members of the Jammu and Kashmir Forest Service were recommended for appointment to the Indian Foreign Service. Later on, the Government of India issued a notification by which a list of persons who were to be appointed to the service was notified. This happened on 29th July 1967. It so happened that in the notification so issued, one Sh. G. NaqishBunns name also figured. His name was at serial No. 1. This selection was challenged. The Supreme Court of India in the case reported as A.K. Kraipak v. Union of India, AIR 1970 SC 150 , set aside the selection made by the Selection Board. The reason given was that a person who was himself a candidate was also a member of the Selection Board. The selection was held to be thus vitiated. As the judgment of the Supreme Court was required to be implemented and steps were to be taken with a view to make fresh appointment, the Indian Forest Service Recruitment Rules 1966 came to be amended. Rule 4(3) A came to be inserted. For facility of reference, this rule is noticed. This reads as under :

"4(3A). Notwithstanding anything contained in this rule where appointments to the Service in pursuance of the recruitment under subrule (1) have become invalid by reason of any judgment or order of any court, the Central Government may make fresh recruitment under that subrule and may give effect to the appointment to the service in pursuance of such fresh recruitment from the same date on which the appointments which have become invalid as aforesaid had been given effect to."

5. As the Central Government also formed an opinion that it may not be possible to give retrospective effect by subordinate legislation i.e., by Rules it formed an opinion that the Act should also be amended. A consequential amendment came to be incorporated. The All India Services Amendment Act, 1978 came to be passed. Section 1(A) was added. This reads as under :

"IA. The power to make rules conferred by this Section shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable."

6. To keep a track of the chronological events, it be mentioned that the Amendment made in the Act came to be challenged in the Supreme Court of India. The challenge was repelled in the case of Parvez Qadir v. Union of India, AIR 1975 SC 446 . Once the position became clear, a Special Selection Board proceeded to finalise the selection. A list of 74 eligible officers from the Jammu and Kashmir Forest Service came to be secrutinised by the Special Selection Board. This Board was to consider as to who should be appointed to the Indian Forest Service cadre. 36 Officers of the Jammu and Kashmir Foreign Service were recommended. The respondent writ petitioners figured at Sr. No. 69, 70, 73 and 74 in the list. They were accordingly not appointed. The officers who came to be appointed to the Indian Foreign Service were notified in the notification issued on 25th Aug 1970. This is Annexure F with the writ petition.

7. The further fact is that the respondent writ petitioners who were not selected submitted representations to the then Chief Conservator of Forests with a request that the representations be forwarded to the appropriate authority.

8. The further fact is that another legal issue was raised in another case. A decision came to be given by the Supreme Court of India. This is reported as K. Prasad v. Union of India, AIR 1988 SC 535 . Rules dealing with the service were interpreted. It was held that Selection could not be restricted to the officers as eligible as on 1st Oct. 1966. An opinion was also expressed that the Selection Board should have considered all eligible officers, An omnibus observation that an officer is not found suitable; was held to be not the correct approach on the part of the Selection Board.

The Supreme Court while expressing this opinion, took note of what was said by the Court earlier in the case reported as Union of India v. Chotia, AIR 1978 SC 1214 . Another important aspect of the matter which is relevant for the present appeal is that the question of delay and laches was raised but relief was not declined on this ground. It was held that the factor of delay should not stand in the way of eligible persons from getting relief. To repeat, an argument was raised before the Supreme Court in K. Prasads case that the writ petition should be dismissed on the ground of delay and laches. The Supreme Court of India did observe that the writ petitioners had come to the court belatedly but the explanation given by the writ petitioners that they were under a bona fide belief that their names are going to be considered in accordance with the law and that one of them filed a representation to the concerned authorities, was taken to be enough to negative the plea of the respondents that the writ petition should be dismissed on the ground of laches. The fact that the nature of the issue involved was complicated, was also taken note of. Thus, the delay was condoned because :

i. One of the aggrieved persons had made representation before the authorities. This was so done on 20th April 1967.

ii. That having regard to the complicated nature of the issues involved, it was held that it would not be apt to throw out the writ petitioners on the ground of laches. The argument that as the Gujarat, Karnataka and Bombay High Courts had expressed an opinion in the years 1978 and 1981 notwithstanding this that the writ petitioners had not approached the court with due speed and diligence and that delay should be considered (condoned) to decline relief, was ignored.

9. Ultimately, the relief granted was that all 82 eligible officers should be reconsidered. It was observed that if they are not found suitable then reasons should be given. These reasons given by the State Selection Board were required to be considered by the Union Public Service Commission. The Union Public Service Commission had to give due consideration and decide the matter afresh. It is basically on the basis of the decision referred to above, the writ petitioners laid a claim that their cases have not (now) be considered in accordance with the Rules and the Law laid down by the Supreme Court of India. It is again on the basis of the above judgment, the requisite relief has been granted to the respondentwrit petitioners. As to whether the case of the respondentwrit petitioners falls within the parameters of the law laid down in K. Prasads case (supra), is again being examined in this appeal preferred by the State. In this regard, following facts be noticed :

(i) The respondentwrit petitioners preferred representations to the Chief Conservator of Forests for being forwarded to the Forest Minister with a request that the grievance of the petitioners regarding their noninclusion in the Indian Foreign Service be redressed. The representation was submitted by respondent writ petitioner, SIH Qazmi;

(ii) That the copy of the representation was placed on the record with a rejoinder. This is said have been filed on 29th Nov. 1973.

(iii) That the writ petition came to be filed before the Srinagar Bench of this Court. It was registered as SWP No. 881/1988.

(iv) That the petition was transferred to Jammu wing of this Court and came to be registered as SWP No. 267 of 1992.

10. The Union of India filed its counter affidavit. It was submitted that the special selection Board held its meeting on 25th, 26th and 27th May 1987 and considered the eligibility of the writ petitioners for appointment to the Indian Forest Service. They were not found eligible. This view was formed after examining the service records.

11. The learned counsel appearing for the appellant State has argued that :

(i) The writ petitions suffered from delay and laches and it should be dismissed on that score.

(ii) The provisions of Administrative Tribunal Act 1985 are attracted and, therefore, the High Court has no jurisdiction to entertain the writ petition.

(iii) The writ petition was not maintainable on account of nonjoinder of the parties.

(iv) On merits it is urged that Rules and Regulations were fully complied with.

12. After having heard learned counsel for the parties, we are of the opinion that no exception can be taken to the view expressed by the learned Single Judge.

13. It be seen that in terms of the law laid down in K. Prasads case (supra), the selection Board was supposed to give reasons for not finding the respondentwrit petitioners fit for appointment to the service. These reasons were supposed to be communicated to the Union Public Service Commission.

14. It be seen that the records of the case were was not produced before the learned Single Judge of this Court. A finding was thus recorded. The finding recorded was that the decision of the State Selection Board was not in terms with the decision given by the Supreme Court of India. It was precisely on this reason, relief, was granted to the writ petitioners. During the course of hearings of this appeal, respondent Union of India was directed to produce the record. An order (was) passed by this court on 27th of Feb., 1998. The records have been produced. A perusal of the recommendation made by the selection board indicates that the reasons as were required to be given were not given. All that has been said is that the Board considered that the records of the officers were not such as to justify their entry in the select list. These recommendations were made on 27th of May 1987. If above be the position then there is no justification to interfere with the finding recorded by the learned Single Judge. If this be the position, then the case of the respondentwrit petitioners is fully covered by the ratio of decision in K. Prasads case. The grounds on which the selection was held to be vitiated by the Supreme Court exist in the present case, and, therefore, the learned Single Judge was right in giving the direction to which an unsuccessful challenge has been made in this appeal.

15. The objection as to delay be considered. The Supreme Court in K. Prasad has dealt with the question of delay and laches. K. Prasads case was filed directly in the Supreme Court in the year 1984. This was decided in the year 1988. While dealing with the question of delay the Supreme Court of India in Para 37 observed.

"It has been vehemently contended for the Respondents that the writ petition should be dismissed on the ground of laches. It is true that the petitioners have come to court somewhat belatedly. Counsel urged that they had been considered and found ineligible. But this does not appear to be correct. There is on record (at page 44 of the paper book) a representation made by one of them on 20.4.67 from which it seems that he was even then aware that his name had not been considered at all because of an interpretation that the junior posts were limited to 19 only. Nevertheless they did not take any steps. The Gujarat, Karnataka and Maharashtra Judgments on which the petitioners rely, had been rendered in 1978, January, 1981 and August 1981 respectively but even after that the petitioners allowed time to lapse. There has, therefore, been delay on the part of the petitioners in coming to court. Nevertheless, having regard to the complicated nature of the issues involved, we do not think that the petitioners should be put out of court on the ground of laches. The position, as it has new emerged, is that all 82 eligible officers as on 1.10.1966 should be considered and not merely some of them. Their suitability should be adjudged. If they are not found suitable, reasons should be given which the UPSC should be able to consider. If they are found suitable a list of such officers should be drawn up with ranking given to them in the order of preference for the consideration of the UPSC. Since this has not been done, the recruitments have to be set aside and the matter remanded with directions, that it should be finalised as per the Recruitment Rules and in the light of the above discussion."

16. There is no rebuttal to the averments with regard to the filing of the representation. This clearly means that representation was in fact filed. As such, petition cannot be rejected on the ground of delay and laches. Even otherwise, the discretion exercised by learned Single Judge in concluding that there was no delay on the facts of the circumstances of the case is not such a view which is required to be interfered in this case in this intracourt appeal.

17. The question as to whether all the necessary parties have been arrayed as respondents or not be examined. This aspect of the matter has been again dealt with in K. Prsads case. In para 39 of the judgment, this objection was considered. It was held that it is not necessary to array selected candidates as respondents. Appointment of these officers i.e. officers selected under Rule 4(1) or Rule 4(2) was not declared invalid. All the officers selected were to be adjusted and, if necessary, the Supreme Court of India observed that only result of the finding which has been recorded by the court was that it would lead to readjustment of these officers and consequential effect of promotion of service be given. What was said in para 31 is relevant and is being noticed:

"One thing that is plain on the terms of the Regulations is this; that, once a person is found to be eligible and is adjudged suitable for recruitment under the initial Recruitment Regulations, he has to be taken into the service as part of the initial recruitment either immediately on 1.10.1966 or as and when vacancies arise in the cadre."

18. The Supreme Court further observed :

"We cannot, therefore, accept the contention that officers of the SFS who have been adjudged suitable by the SSB should not be taken into the service merely because their number exceeds the number of posts available. True, they cannot be appointed immediately but the consequence cannot be that they should be ignored and persons recruited under Rule 4(2) given preference over them."

In para32 it was said :

"The filing up of such vacancies will also be part of the initial recruitment contemplated under Rule 4(1) and no recruitment under Rule 4(2) can start before the above process is complete. It is only rational to interpret the rules as laying down that all these officers of the SFS with 8 or 4 years experience, as the case may be, who are adjudged suitable for the service should be recruited to the service before any recruitment can at all start under Rule 4(2). Whether all such persons are entitled to the backdating of their appointment to 1.10.1966 or not, they are certainly entitled to contend that their appointment should be given precedence over the appointment of recruits under Rule 4(2) of the Recruitment Rules."

With regard to claim of seniority it was held :

"As we have pointed out earlier the petitioners acquire under the Rule no right to be in the service until after the initial recruitment is over but the mere fact that due to certain fortuitous circumstances, that initial recruitment has had to be set aside and time has been consumed in the process of remaking of that selection validly and properly, cannot, in our view, confer a right on the recruits under Rules 4(2) so as to justify their complaint that some benefits given to them have been taken away. Under the rules, they can rank only after the candidates who get in by way of initial recruitment. In that position there is no change and the petitioners cannot be aggrieved that those in service in the SFS are found suitable for recruitment to the service and taken into the service with effect from 1.10.1966. As we have observed earlier, those persons, even if not entitled to appointment as on 1.10.1966, are entitled to be appointed as and when vacancies arise and must always be given a position of precedence over the recruits under Rule 4(2). In this view of the matter the direct recruits can hardly claim that they are prejudicially affected by the remaking of the initial recruitment. We, therefore, do not see any force in Sri Kakkars contention."

19. In view of the above, this plea of the appellant State that on account of nonjoinder of the parties the writ petition deserves to be dismissed cannot be accepted.

20. The question as to whether remedy provided under Administrative Tribunal Act 1985 would debar the writ petitioners to approach this court be examined. Without going into the question as to whether this Act is applicable to State of J&K or not, it is enough to point out that bar created under the Act applies after a person becomes member of the service connected with the affairs of the Union of India. Writ petitioners have not been inducted into service. They have not become members of All India Service i.e. a service dealing with affairs with Union of India. The writ petitioners need not to approach Administrative Tribunal under the aforementioned Act.

21. We are accordingly of the view;

(i) That the case of the petitioners was not considered as per law laid down in K. Prasad case (supra).

(ii) That the delay would not come in the matter of granting relief to the writ petitioners. What was said by the Supreme Court in case K. Prasad in overruling objection regarding they would apply to the fact of this case also.

(iii) Nonimpleading of those persons who were recommended for appointment does not effect the maintainability of the petition. This precise objection was dealt with by the Supreme Court of India itself and reasons which was given by the Supreme Court of India would apply to the facts of this case also.

(iv) The provision of Administrative Tribunal Act are not attracted to the facts of this case. Writ petitioners having not become member of service connected with the affairs of Union of India need to seek remedies under the above.

22. This appeal is found to be without merit. This is dismissed. Appellant State would take steps with a view to comply with directions given by this Court and make fresh recommendations within a period of six weeks from today.