TMI Blog1972 (2) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... Court at Patna quashing the order of the Government of India dated 20 September, 1967, and directing that the respondents must continue to hold rank as assigned to them in 1958. The appellants and the respondents are now members of the Indian Administrative Service. For the sake of brevity the appellants can be described as direct recruits and the respondents as promotees. The direct recruits were appointed to the Indian Administrative Service in the years 1949 and 1950 as a result of competitive examination held for recruitment of candidates to that Service. The promotees were initially recruited to the executive branch of the Bihar State Civil Service and were subsequently in the years 1955 and 1956 promoted to the Indian Administrative Service. The controversy in the present appeals is as to the seniority between the direct recruits and the promotees under the Indian Administrative Service (Regulation of Seniority) Rules, 1954. The Government of India on 3 September, 1958 allotted to the promotees the year 1948 and placed them below the junior most amongst the direct recruits of the 1948 allotment. The direct recruits thereafter made representation against the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruit of 1952 batch started officiating continuously in senior posts earlier than the relevant dates of S/Shri Ramanand Sinha, Anwar Karim, R. C. Sinha, S. K. Ghosh, and M. Alam. These officers may be allotted to the year 1952 and may be placed below Shri K. I K. Srivastava (RR-1952) and above Shri R. B. Lal (SCS7SR-1952) . The promotees impeached the Government of India Memorandum dated 20 September, 1967 principally on the ground that the Government of India-was wrong in holding that it was not competent to the State of Bihar to make a retrospective declaration of a post as equivalent to a cadre post. The promotees succeeded in the High Court. The High Court quashed the order dated 20 September, 1967 and directed that the promotees would continue to hold the year of allotment assigned to them in the year 1958. The Indian Administrative Service (Regulation of Seniority) Rules, 1954 formed the bone of contention between the direct recruits and the promotees. In order to appreciate the rival contentions reference may be made to the origin of the Indian Administrative Service and the relevant rules and regulations in that behalf. The origin of the Indian Administrative Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The first item relates to senior posts under the State Government which are 103 in number and item 2 relates to senior posits under the Central Government which are 41 in number. Of these 144 posts 36 are to be filled by promotion and selection in accordance with rule 8 of the Recruitment Rules, 1954. The other 108 posts are to be filled by direct recruitment. Items 5, 6, 7 and 8 in the Bihar Cadre Strength relate, to other posts with which the present appeals are not concerned. Of the total authorized strength of 211 cadre posts in the State of Bihar 175 are direct recruitment posts and 36 are promotion posts. The Regulation of Seniority Rules, 1954 defines senior post meaning a post included and specified under item 1 of the cadre of each State in the Schedule to the Fixation of Cadre Strength Regulations, 1955. The 1954 Recruitment Rules speak of recruitment to the Service inter alia (a) by a competitive examination, and (b) by promotion. The other two modes of recruitment by selection from emergency commissioned officers and from persons who hold any substantive capacity gazetted post and who are not members of the State Civil Service are not relevant for the purpose of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present appeals. The, scheme of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 is that every officer shall be assigned a year of allotment in accordance with the provisions contained therein. The present appeals raise the question of the year of allotment of the promotees who were promoted to the Service, after the commencement of the Rules, in the years 1955 and 1956. Therefore, rule 3(3)(b) applies to the case of the promotees vis-avis the direct recruits. The Indian Police Service, (Regulation of Seniority) Rules, 1954 is the counter-part of the Indian Administrative Service (Regulation of Seniority) Rules, 1954. Rule 3(3)(b) of the Indian Police, Service(Regulation of Seniority) Rules is in identical language with rule3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules. Rule 3(3)(b,) of the Indian Police Service (Regulation of Seniority) Rules came up for consideration before this Court in two cases. These are the decisions in D. R. Nim, I.P.S. v. Union of India [1967] 2 S.C.R. 325 and State of Orissa Anr. v. B. K. Mohapatra [1970] 1 S.C.R. 255. Rule 3 (3) (b) which is in common language the Rules of both the Services a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospective declaration with regard to making posts equivalent to senior posts. Counsel on behalf, of direct recruits contended that the letter dated 9 April, 1958, from the Chief Secretary to the Government of Bihar to the Secretary to the Government of India, Ministry of Home Affairs, could not amount to a declaration of posts as equivalent to senior, posts and further that there could not be any retrospective declaration of making posts equivalent to senior posts. Council on behalf of the Union of contended that the declaration contemplated with regard to senior post must be a formal and it was not, open to the State to, make, a retroactive declaration because the rule contemplated approval of such officiation in consultation with the Commission. other words, it was said that the State, would first have to make. a declaration with regard to making posts equivalent to senior posts and. thereafter approval of such to officiation would be given by the State Government in consultation with the public service Commission. Criticism was made- by counsel for the direct recruits that there was no proper Select List and Rao's letter dated 9 July, 1958 and the reply thereto dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a senior post earlier than the date of such officiation by the promotees. On these materials it appears that the ad hoc list was prepared with the approval of the Union Public Service Commission on 28 December, 1954 and the Select List was finally approved by the, Union Public Service Commission on 26 December, 1955. The select list was the list prepared for appointment of the promotees by promotion to the Indian Administrative Service. Rule 3(3)(b) of the Regulation of Seniority Rules, 1954 speaks of approval by the Central Government, in consultation with the Union Public Service Commission of the period of officiation prior to the date of the inclusion of the names of the promotees in the select list. This approval as contemplated in rule 3(3)(b) is a specific approval and is directed to the particular matter mentioned therein as to whether there is approval of the period of officiation prior to the inclusion of the names in the select list. On the materials in the present appeals we are unable to hold that the Central Government gave any approval in consultation with the Union Public, Service Commission within the meaning of rule 3(3) (b) so as to enable the promotees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is in the fitness of things that the period of such officiation is not lost to him. The necessary check is supplied by approval by the Central Government in consultation with the Commission. There will be two sources charged with the responsibility of approval of the period of officiation prior to inclusion of, the name in the select list. A retrospective declaration that a post is equivalent to a senior post really amounts to declaration of an existing fact. It is that the Personwho has officiated continuously for a long time is allowed the benefit of a senior Post prior to the appointment by promotion of such officer to the Cadre of the Indian Administrative Service. Ordinarily, under Cadre Rules a non-cadre officer cannot hold a cadre post excepting for short time of three months and if`it is for a longer period not without approval by the Central Government. Therefore there is no occasion for declaration by the State Government of a non-cadre post as equitant to a cadre post. The question of declaration arises only for the purpose of giving the promotee the benefit of the period of officiation prior to promotion. The use of the word 'deemed' in rule 3 (3)(b) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of his seniority, count only from the date of the inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post whichever is later. The declaration of a post to be equivalent to a senior post and the approval of the Government of India in consultation with the Commission for allowing a promotee the benefit of the period of continuous officiation prior to the inclusion of his name in the Select List are all obsolete now. One of the reasons for the changes may be that a prospective declaration might give rise to show of preference or favour to some chosen persons who might not turn out to be suitable person to fill that post. Again, the disadvantage of prospective declaration may be that the Government might be saddled with the problem of a declaration in anticipation and later finding out the absence of necessity of such a post or even of not finding a suitable person for occupying such a post. The soundness of a retrospective declaration rests on the consideration that not only will the promotee by that time have been tried and tested in that post but also his promotion would indicate the benefit of the period of continuous offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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