TMI Blog1992 (11) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... rintendents of Police, continued to occupy the said posts till they were included in the select list (Respondent No. 3 in 1977, Respondents Nos. 4 to 9 in 1978) and were latter appointed and confirmed in the Indian Police Service w.e.f. various dates between July 29, 1978 to December 6, 1980. 3. When the inter-se seniority list was prepared and published on April 24, 1977 showing the respondents as juniors to the appellants, they represented to the Govt. of India that since they had continuously officiated on the cadre posts without break from the respective dates of promotion, their entire continuous officiating period should be counted towards seniority in Indian Police Service. They requested to redetermine their seniority giving them years of allotment from the respective dates of continuous officiation dating back to 1968, 1969 and 1970 to respondents Nos. 3, 4, 5, 6 and 7 to 9 respectively. The State Govt. rejected their claim in 1980. Preceding thereto some of their senior promotees filed writ petition Nos. 4490-4499/80 and 5128-29/80 in this Court questioning the validity of Rule 3 (3)(b) and 2(g) of I.P.S. (Regulation of Seniority Rules, 1954) for short 'Seniority R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India filed C.A.No. 1383/87. The Central Govt., however, considered afresh and fixed seniority again on April 24, 1987 showing them as juniors to the appellants, which was impugned in O.A. No. 676/87 and was allowed. Civil Appeal No. 823/89 arises against it. Union of India filed C.A.No. 1801/89. Following that order in the main judgment dated December 12, 1988 in O.A. No. 583 of 1986, the C.A.T. at Allahabad practically reiterated the same view and directed the Central Govt. in all other cases to prepare the seniority list afresh whether they officiated either in the cadre posts or ex-cadre posts. Thus all the appeals are before us by special leave. 4. The admitted facts are that the promotees held their substantive posts as Deputy Superintendents of Police of the U.P. Police Service. They were not included in the select list. Though the State Govt. initially appointed them as Superintendents of Police, obviously for a period of 3 months, they continued to officiate in cadre posts uninterruptedly. Though the direct recruits contended that the posting of the promotees to the cadre posts was the result of the manipulation at the behest of the State level officers, assumi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Service in accordance with the provisions of these rules are members of the service. Rule 4(1) postulates that recruitment to the service, after the commencement of these rules, shall be by the following methods, namely, (a) by competitive examination; the details are not relevant and (b) by promotion of substantive members of a State Police Service. Sub-rules 2, 3 and 4 are not relevant, hence omitted. Rule 5 prescribes the disqualification for appointment which is not material for the purpose of this case, hence omitted. Rule 6(1) posits that 'all appointments to the service', after the commencement of these rules 'shall be made by the Central Govt.' and 'no such appointment should be made except after recruitment by one of the methods specified in Rule 4'. Rest of the sub-rules are not necessary hence omitted. Rule 7 provides recruitment by competitive examination, the material details thereof are not germane. Rule 9 which is material for the purpose of this case provides thus:- Recruitment by promotion : 9(1) 'The Central Govt. may', on the recommendation of the State Govt. concerned and 'in consultation with the U.P.S.C, 'recruit to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le officers. Under Rule 5(1) each committee may 'ordinarily meet at intervals not exceeding one year' and prepare a list of such members of the State Police Service, as are found 'to be suitable for promotion to the Service'. The number of members of the State Police Service to be included in the list shall be calculated as the number of substantive vacancies anticipated in the course of the period of 12 months, commencing from the date of preparation of the list, in the posts available for them under Rule 9 of the Recruitment Rules plus twenty per cent of such number or two whichever is greater (emphasis supplied). Under Sub-rule (2) of Rule 5 the Committee shall consider for inclusion in the said list, the cases of members of the State Police Service in the order of seniority in that service of such number which is equal to three times the number referred to in sub regulation (1). The provisos are not relevant, hence omitted. The member of the State Police Service eligible for inclusion must possess the following qualifications i.e. (i) he is a substantive member in the State Police Service, (ii) he has completed not less than 8 years of continuous service w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be made by the Central Govt. on the recommendation of the State Govt. in the order in which the names of members of the State Police Service appear in the Select List (emphasis supplied) for the time being in force. The provisos thereto are not necessary and hence omitted. In Union of India v. Mohan Lal Capoor and Ors. the Select List Officers I.P.S. and I.A.S. continued in the select list from the year 1961-62 and also continued to officiate on the cadre posts from an anterior period. They were dropped from the select list of the year 1968 and were reverted to their substantive posts which was questioned in the High Court and was allowed. On appeal, this Court held that under Regulation 5(3) of the Promotion Regulations the Selection Committee has an unrestricted choice of selection of the best available talent from amongst the eligible candidates determined by reference to merit and suitability. Seniority would be considered only where merit and ability are nearly equal. The process of selection may involve supersession, which may mean supersession by a junior or even exclusion from the selection. There is no vested right to promotion or to remain in the seniority list . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded from the list on the comparative assessment of merit, ability and suitability based on the anticipated or expected availability of the vacancies within quota etc. The junior may supersede the senior and may be ranked top. 10. Every person recruited to the service either by direct recruitment or by promotion under Promotion Regulation shall be appointed on probation under Rule 3(1) of the I.P.S. (Probation) Rules 1954 for short 'Probation Rules' for a period of two years unless the Central Govt. grants exemption. Under Sub-rule 2 thereof, the probation may be extended for a period of one year and in no case would it exceed three years. During the period of probation, he/she must undergo the prescribed course of training and pass the tests. At the end of the probation period, on its satisfactory completion, the Central Govt. should confirm the probationer into the service. 11. Rule 8 of Promotion Regulations provides that temporary appointments from the select list to the posts borne on the State Cadre or the Joint Cadre of a group of States, as the case may be, shall be made by the State Govt. in accordance with Rule 9 of the Cadre Rules. In making such appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r undue weightage either to the select list or nonselect list promotee officers. The fine distinction, made out by the counsel for promotees of senior post or cadre post is superfluous. Take for instance even where a cadre officer or select list officer was available for posting, yet if the vacancy does not last more than three months, instead of disturbing the cadre or select list officer, a nearby non-select list officer may be posted to officiate in the cadre post, even may be in excess of the quota prescribed in the promotion Regulation and recruitment Rules, as the existence of a post within quota is not relevant. Such appointment is, therefore, on adhoc basis or by local arrangement. In its guise the State Govt. has no power to make any substantive appointment of the promotees to the cadre posts. The appointment under Regulation 9 and Regulation 8 are, therefore, distinct and different. Under Regulation 9 read with Rule 9 of recruitment rules the Central Govt. is empowered to appoint promotee officer to the substantive vacancies strictly in conformity with the select list. The appointment has reference to the quota and existence of substantive vacancy within the quota are nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Govt. together with the reasons therefor. (2) Where in any state a person other than a cadre officer is appointed to a cadre post for a period exceeding three months, the State Govt. shall forthwith report the fact to the Central Govt. together with the reasons for making the appointment. Provided that a non-select list officer or a select list officer who is not next in order in the select list, shall be appointed to a cadre post only with the prior concurrence of the Central Govt. (3) On receipt of the report under Sub-rule (2) or otherwise , the Central Govt. may direct that the State Govt. shall terminate the appointment of such person and appoint thereto a cadre officer, and where any direction was so issued, the State Govt. shall accordingly give effect thereto. Under Sub-rule (4) where a cadre post is likely to be filled by a person who is not a cadre officer for a period exceeding six months, the Central Govt. shall report the full facts to the U.P.S.C. with the reasons for holding that no suitable cadre officer is available for filling the post and may in the light of the advice given by the U.P.S.C. give suitable direction to the State Govt. concerned. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llotment of an officer appointed to the Service after the seniority rules came into force, shall be as follows:- (i) the year of allotment of a direct recruit officer shall be the year following the year in which competitive examination was held; (proviso omitted) (ii) officer appointed to the Indian Police Service by promotion in accordance with Rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 7 of these Rules (direct recruit) who officiated continuously in a senior post from a date earlier than the date of the commencement of such officiation by the former. Provided that the year of allotment of an officer appointed to the Service in accordance with Rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with Rule 7 of those Rules, so started officiating shall be determined adhoc by the Central Govt. in consultation with the State Govt. concerned. (Now these rules were amended in 1987 and 1988). Explanation 1 posits that in respect of an officer appointed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or continuous officiation without break whichever is latter. The entire preceding officiating period earlier than his being brought on the select list should be treated to be fortuitous. By operation of Exp. 2 he counts his continuous officiation in the senior post towards his seniority from the date of his appointment provided he holds the senior post without any break or reversion otherwise than as a purely temporary or local arrangement. 17. In D.R. Nim, I.P.S. v. Union of India , the appellant was officiating as Superintendent of Police from June, 1947, namely, from the date earlier than the date of any officer recruited by competitive examination. After the Seniority Rules came into force, he was appointed to the Indian Police Service by promotion in 1955. His name was included in the Select List in 1956. The Central Govt. passed an order that the officer promoted earlier to the rules came into force should be allowed the benefit of their continuous officiation only with effect from May, 1951. It was challenged in a writ petition and requested to fix his seniority from June, 1947 counting seniority upto May, 1951, contending that the fixation of the date i.e. May, 1951 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niority rules. The respondent filed the writ petition in the High Court contending that since he was included in the select list of the year 1952-54 as approved by the U.P.S.C, the year of allotment should be 1948 which was the year of allotment of a junior most direct recruit and the choice of February 10, 1956 was discriminatory between him and the other officers. This was found favour with the High Court which allowed the writ petition. On appeal, this Court by a bench of three Judges allowed the appeal and held that the object of the second proviso to Rule 3(3)(b) was to cut down the period of officiation which could be taken into consideration under Rule 3(3)(b). The lists of 1951, 1952 and 1954 were not select lists for the purpose of substantive appointment but only for the purpose of officiation. Therefore, 'fit for trial' list could not be deemed to be select list. The officiation was not continuous officiation of the officers in the select list. Only from February 15, 1957, the date on which he was brought on the select list could be deemed to be in the select list. The Central Govt. and U.P.S.C. must approve the officiating period. While considering the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition was dismissed. In R.P. Khanna and Ors. v. S.A.F. Abbas and Ors. etc. , the appellants were direct recruits and the respondents were promotees. The direct recruits were appointed to the IAS in the year 1949-50. The promotees were initially promoted to the IAS in the year 1955-56. In fixing their inter se seniority in terms of seniority rules, the Govt. of India allotted 1948 to the promotees as the year of allotment and placed them below the junior most among the direct recruits of the year 1948. On the representation of the direct recruits that the State Govt. had no power to create cadre post retrospectively and the year of allotment to the promotee was wrong, in September 20, 1967, the Central Govt. tentatively revised the year of allotment and allotted 1950 to some and 1952 to others as year of allotment. That was challenged in the High Court by the promotees and succeeded. On appeal, a 3 Judge Bench of this Court held that as per Rule 3(3)(b) of IAS. Regulation of Seniority Rules, 1954, the year of allotment of an officer who was appointed to the service by promotion shall be the year of allotment of the junior most among the officer who entered the service by direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recruit Sri Ahluwalia was promoted as Superintendent of Police. In 1965 the select list was prepared and he was appointed in October 1965 as Superintendent of Police and he continued to officiate till January, 1971 and he was appointed substantively on January 30, 1971 as Superintendent of Police and was confirmed. He was given 1965 as the year of allotment on the ground that one Mr. Sahney another promotee officer who was senior to him in the select list was posted to an ex-cadre post, Mr. Ahluwalia contended that he is entitled to 1961 as the year of allotment. The High Court accepted the contention and allowed the writ petition. While dismissing the appeal this Court held that the effect of Rule 9 of the Indian Police Service (Cadre) Rules, 1954 is that, when the cadre post was vacant and no cadre officer was available, a non-cadre officer may fill the vacancy for a period beyond three months if the State Govt. reports to the Central Govt. the reasons therefor and if it was not ordered to be terminated, the Central Govt may permit a non-cadre officer to fill a cadre post for a period exceeding six months provided that it reports the full facts to the U.P.S.C. and acts responsibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdicts that in respect of an officer appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules, the period of his continuous officiating in a senior post shall, for purposes of determination of his seniority, count only from the date of his inclusion in the select list or from the date of his officiating appointment to such senior post, whichever is later. The second explanation provided that an officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from the date of his appointment till the date of his confirmation in the senior post he continued to hold without any break or reversion from the senior post otherwise than as a purely temporary or local arrangement. In that case since no one was effected by the continuous officiation by the non-cadre officer, this Court drew fiction of the deemed approval by the Central Govt. For from helping the promotees the ratio does assist the appellants. 21. Thus it is settled law that a promotee Officer appointed temporarily under Regulation 8 of Promotion Regulation and Rule 9 of cadre Rules to a cadre post does not gets his/her continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. service in strict conformity with Rule 9 of Recruitment Rules and Regulation 9 of Promotion Regulations in the order of merit and in no case the quota of 33-1/3 per cent to the promotees should be exceeded. The year of allotment under Rule 3 of Seniority Rules to every officer of the I.P.S. is mandatory. In order to get into the select list, the promotee officer has to fulfil the conditions of the rules of recruitment and Promotion Regulations i.e. he must be brought into the select list satisfying the conditions specified therein and the Seniority Rules. As per Recruitment Rules, merit, ability and suitability are the criteria and seniority will be considered only where merit and suitability are approximately equal. Integrity, ability and record of service would furnish the ground to assess the merit of the promotee officer to assign the ranking inter-se in the list and appointment by Central Govt. should be in the order as approved by the UPSC and recommended by the State Govt. Bringing the name on the list does not confer any right to automatic appointment. The appointment should be made to a substantive vacancy within the quota in the order in the select list unless the pred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers are not available, then only non-select list officers may be promoted to temporary vacancies which should not be likely to last for more than three months and the State Govt. must strictly comply with the conditions specified in the provisos to Regulation 8(2) of Promotion Regulations and Rule 9 of cadre rules. In other words, where the vacancy/vacancies continue for more than three months, the prior concurrence of the Central Government is mandatory. If it continues for more than six months prior approval of the Union Public Service Commission is also mandatory. Any appointment in violation thereof is not an appointment in accordance with the law. These appointments are mere adhoc or local arrangement or fortuitous. 26. The question at once arises whether persons appointed under Regulation 8 of promotion Regulation read with Rule 9 of cadre rules would be entitled to count the entire officiating period in the cadre post and if so from what period and to what extent. In Direct Recruit Class II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors. , the Constitution Bench held in proposition 'A' that once any one is appointed to a post accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd rules they did not form a class with the direct recruits and unequals cannot be treated as equals. Recruitment to the service is from more than two sources, primarily from direct recruitment and promotion. Unless the promotee officer is appointed to the service in accordance with the rules, he does not become a member of the service. On appointment under Rule 9 of the Recruitment rules to a substantive vacancy from the select list by the Central Govt. the promotee officer becomes a member of the service. But whereas appointment under Regulation 8 of promotion regulation is in disregard of the rules to cope up with the administrative expediency, be it to a temporary or substantive vacancy, an appointee under Regulation 8 read with Rule 9 of cadre rules is an unequal to a direct recruit or one under Regulation 9 of Promotion Regulation read with Rule 9 of Recruitment Rules. So unequals cannot be treated as equals offending Article 14 and 16(1) of the Constitution. Mere production of inequality by operation of the rule is not sufficient to treat an appointee under Regulation 8 of Promotion Regulation at par with one under Direct Recruitment or one under Rule 9 of Recruitment Rule a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y became senior to the direct recruits who were recruited later on and that their continuous officiation should be counted towards their seniority. This Court, while repelling the contention, held that appointment to the post in accordance with the rules is a pre-condition and the conditions of rules of recruitment cannot be relaxed and that the promotees get their seniority only from the date of the regular promotion in accordance with the rules and within quota. The entire officiating period was held to be fortuitous. It must, therefore, be held that recruitment by promotion in accordance with the Regulation and Rules are conditions of Recruitment and are mandatory and should be complied with. 30. The next question is whether the seniority is a condition of service or a part of rules of recruitment? In State of M.P. and Ors. v. Shardul Singh, this Court held that conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment (emphasis Supplied) to his retirement and even beyond, in matters like pensions etc. In I.N. Subba Reddy v. Andhra University and Ors. , the same view was reiterated. In Mohd. Shujat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible. Take an illustration that the Promotion Regulations envisage maintaining integrity and good record by Dy. S.P. of State Police Service as eligibility condition for inclusion in the select list for recruitment by promotion to Indian Police Service. Inclusion and approval of the name in the select list by the U.P.S.C, after considering the objections if any by the Central Govt. is also a condition precedent. Suppose if 'B', is far junior to 'A' in State Services and 'B' was found more meritorious and suitable and was put in a select list of 1980 and accordingly 'B' was appointed to the Indian Police Service after following the procedure. 'A' was thereby superseded by 'B'. Two years later 'A' was found fit and suitable in 1984 and was accordingly appointed according to rules. Can 'A' thereafter say that 'B' being far junior to him in State Service, 'A' should become senior to 'B' in the Indian Police Service. The answer is obviously no because 'B' had stolen a march over 'A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. , The facts therein were that for the Indian Economics and Statistics Service there are two modes of recruitment, namely, direct recruitment and promotion from feeder source. The petitioners therein were promotees from Grade IV service and for well over 15 to 20 years there was no direct recruitment. The promotees continued in the promoted posts, though on adhoc basis, without reversion. When the later direct recruits claimed seniority over them, this Court in Contempt proceedings to relieve the iniquitous results, held that since the recruitment rules given power to the Central Govt. to relax the condition of service, the rule must be deemed to have been relaxed and promotees deemed to have been appointed to the post in accordance with the rules. 33. Rule 3 of the Residuary Rules provides the power to relax rules and regulations in certain cases - Where the Central Govt. is satisfied that the operation of - (i) any rule made or deemed to have been made under the Act, or (ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case , it may, by order, dispens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committee shall prepare the seniority list every year and be reviewed and revised from time to time taking into account the expected or anticipated vacancies during the year plus 20 per cent or two vacancies whichever is more. It is already held that wide distinction exists between appointment by direct recruitment and one under Regulation 9 of Promotion regulation and Rule 9 of Recruitment Rules on the one hand and under Regulation 8 thereof read with Rule 9 of cadre rules on the other hand. Their consequences are also distinct and operate in different areas. Prior approval of the Union Public Service Commission and prior concurrence of the Central Govt. are mandatory for continuance of temporary appointment under Regulation 8 beyond six months and three months respectively together with prompt report sent by the State Govt. supported by reasons therefore. In their absence it is not a valid appointment in the eye of law. Unless an officer is brought on the select list and appointed to a senior cadre post and continuously officiated thereon he does not acquire right to assignment of the year of allotment Eligibility age for consideration was only upto 52 years and presently 54 year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otion to the Indian Police Service and as a fact to any All India Service and determination of inter se seniority bear vital effect at the higher echelons of super time scale of pay and the above. The State Govt. and the Central Govt. should strictly comply with the provisions in making recruitment by promotion from the State Service to the All India Services. If laxity has been given legitimacy and deemed relaxation is extended it would not only upset smooth working of the rules but also undo the prescribed ratio between promotees officers and direct recruits. It would also produce adverse effect at the All India level. Moreover, the concept of All India Services introduced to effectuate the national integration by drawing persons from different regions by direct recruitment into concerned States cadres would be defeated by manipulation National integration would be disturbed and frustrated. Smooth implementation of the rules would be deflected and distortions in service would gain legitimacy and acceptability. While the Central Govt. remain statutory appointing authority the State Govt. gets into saddle and would become de facto appointing authority, the junior most and unqualifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otional promotion and monetary benefits, as this Court did not stay the operation of the Tribunal's order. Arrears paid should not be recovered from them and promotions already made to some of the promotees and now continuing in the respective offices may not also be recalled since they have been working for some time past. However, the continuing officers should not be entitled to any future promotions on the basis of the directions of the Tribunal, superseding the claims of the direct recruits until they became eligible in their turn as per this judgment. The Registry is directed to return the seniority lists produced by the State Govt,, which would give notice to the promotees who were included in the notional list of their inter se placement of the respective years 1971, 1975, 1976, 1979 and 1980 directing them to submit within a specified time their objections, if any, and the State Govt. would send the list, the objections if made all relevant record to the U.P.S.C. marking copies thereof to the Central Govt. The Central Govt. would submit their comments to the U.P.S.C. which would consider them any may accept or modify the list as per the record and would communicate to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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