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PETITIONER: D.R. NIM, I. P. S.

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 05/01/1967

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. RAO, K. SUBBA (CJ) SHAH, J.C. RAMASWAMI, V. VAIDYIALINGAM, C.A.

CITATION:  1967 AIR 1301            1967 SCR  (2) 325  CITATOR INFO :  F          1969 SC1249  (26)  RF         1971 SC1814  (6,11,17)  R          1972 SC2350  (14)  R          1975 SC 538  (27)  F          1983 SC 130  (52)  R          1986 SC 638  (19)  RF         1992 SC1363  (11)

ACT:         Civil Service--Indian Police Service (Regulation  of Seniority)   Rules,   1954,  r.  3--Officer   appointed   by promotion--Seniority, how determined.

HEADNOTE:       Under r. 3 of the Indian Police Service (Regulation of Seniority)  Rules,  1954, issued under s. 3(1)  of  the  All India  Services  Act,  1951,  he  mode  of  determining  the seniority  of  officers of the Indian Police Service  is  as follows  :  The officers are divided into categories  :  (1) those  in the Service at the commencement of the Rules,  and (2) those appointed to the Service after the commencement of the  Rules.   The second category is divided into  two  sub- categories  :  (a)  officers  appointed as  a  result  of  a competitive  examination,  and  (b)  officers  appointed  by promotion in accordance with r. 9 of the Recruitment  Rules. The  year  of allotment of an office  which  determines  his seniority,  is  determined according to r. 3(3)(a)  or  (b). But  if  an officer started officiating  continuously  in  a senior  post from a date earlier than the date on which  any of the officers was recruited to the Service by competition, the  year  of allotment had to be determined ad hoc  by  the Central  Government,  under proviso (1) to r.  3(3)(b),  and under  proviso (2) to r. 3(3)(b) the period  of  officiation before  the date of inclusion of the name of an  officer  in the Select List prepared in accordance with the requirements of  the  Indian Police Service  (Appointment  by  Promotion) Regulations.  would  be  counted, only if  such  period  was approved by the Central Government in consultation with  the Public Service Commission.

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The  appellant was officiating as Superintendent of  Police from June 1947, that is from a date earlier than the date of any  officer recruited by competition, and was appointed  to the  Indian  Police Service by promotion in 1955  after  the commencement of the Seniority Rules.  His name was  included in the Select List in 1956.  The Government passed an  order on  25th August 1955, that officers promoted to  the  Indian Police  Service  should  be allowed  the  benefit  of  their continuous officiation with effect only from 19th May  1951. The appellant challenged the order by a petition under  Art. 226, because the period of his officiation from June 1947 to May  1951  has excluded for the purpose of fixation  of  his seniority.  The High Court dismissed the petition. In appeal to this Court, HELD:     The impugned order dated 25th August, 1955  should be  quashed and the Central Government directed to  fix  the year  of allotment and seniority of the appellant  according to law. The date 19th May 1951, was an artificial and arbitrary date having nothing to, do with the application of the first  and the  second provisos to r. 3(3).  It has some relevance  for the  Indian  Administrative Service, but why  it  should  be applied  to  the Indian Police Service  was  not  adequately explained.   Under the two provisos, the Central  Government had  to  determine  ad  hoc  the  year  of  allotment  after approving  or  not approving the period  of  officiation  in consultation with the Public ’Service Commission taking into consideration all the relevant facts.  The Central 326 Government  cannot  pick out a date and say  that  a  period prior to that date would not be deemed to be approved by the Central Government within the second proviso. [331 B, E-G] (2)  In view of the facts that he was officiating for  eight years,  that  he  had never been reverted and  that  he  was appointed to the post when vacancies fell,. it could not  be held  that  the appellant’s continuous  officiation  a  mere temporary  or  local  or stop-gap  arrangement,  within  the meaning of Explanation 1 to r. 3 (3) (b). [3 32 G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 371 of 1965- Appeal  by special leave from the judgment and  order  dated December  8, 1961 of the Punjab High Court Circuit Bench  at Delhi in Civil Writ No, 507-D of 1961. B.   R.  L.  Iyengar, B. Dutta, O. C.  Mathur  and  Ravinder Narain, for the   appellant. N.   S.  Bindra, R. Ganapathy Iyer and R. S.  Sachthey,  for the respondent. Basudev  Prasad, K. Rajendra Chaudhuri and  K.R.  Chaudhuri, for the intervener. The Judgment of the Court was delivered by Sikri,  J. This appeal by special leave is directed  against the  judgment of the Circuit Bench of the Punjab High  Court at  Delhi, dismissing in limine the petition under art.  226 of the Constitution filed by the appellant, D. R. Nim.   The appellant  had  impugned  in this petition  an  order  dated August  25,  1955,  passed  by  the  Government  of   India, (Ministry  of Home Affairs)-hereinafter referred to  as  the impugned  order-as being contrary to law and art. 14 of  the Constitution. The relevant facts for the determination of the validity  of

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the  impugned  order  are  as  follows:  The  appellant  was appointed  to  the  U.P. Police Service as  a  result  of  a competitive examination held in 1938.  In course of time  he was  appointed  officiating Superintendent  of  Police  with effect  from June 25, 1947.  He continued to officiate  till he  was appointed to the Indian Police Service  against  the promotion quota of the Indian Police Service Cadre of  Uttar Pradesh  with effect from October 22, 1955.  By the time  he was appointed to the Indian Police Service various Rules and Regulations  governing  the Indian Police Service  had  been issued  by the Central Government in exercise of the  powers conferred  by sub-s. (1) of s. 3 of the All  India  Services Act  (LXI of 1951).  We are concerned particularly with  the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter  referred  to  as  the  Seniority  Rules.    The seniority of the appellant has to be determined under  these Seniority  Rules.   The  first thing to be  done  under  the Seniority Rules is to determine the year of allotment of the appellant.  The                             327 appellant  claims  that a wrong year of allotment  has  been given  to  him  by the application of  the  impugned  order, which,  according  to him, is a void order.  Rule  3,  which deals with the assignment of the year of allotment reads  as follows:                "3.  Assignment  of  Year  of  Allotment.-(1)               Every  officer  shall be assigned  a  year  of               allotment  in accordance with  the  provisions               hereinafter contained in this rule.                (2)  The  year of allotment of an officer  in               service  at  the commencement of  these  rules               shall be the same as has been assigned to  him               or  may  be  assigned to him  by  the  Central               Government  in accordance with the orders  and               instructions  in force immediately before  the               commencement of these rules:                Provided that where the year of allotment  of               an officer appointed in accordance with rule 9               of   the  Recruitment  Rules  has   not   been               determined prior to the commencement of  these               Rules,   his  year  of  allotment   shall   be               determined in accordance with the provision in               clause  (b) of sub-rule (3) of this  rule  and               for this purpose, such officer shall be deemed               to  have officiated in a senior post  only  if               and  for the period for which he was  approved               for such officiation by the Central Government               in consultation with the Commission.                (3)  The  year  of allotment  of  an  officer               appointed    to   the   Service   after    the               commencement of these rules, shall be                (a)  where  the officer is appointed  to  the               Service  on  the  results  of  a   competitive               examination,  the year following the  year  in               which such examination was held;                (b)  where  the officer is appointed  to  the               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  those  Rules  who               officiated continuously in a senior post  from               a  date earlier than the date of  commencement               of such officiation by the former:                Provided  that the year of appointment of  an

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             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 ad hoc by the Central Government in               consultation   with   the   State   Government               concerned                Provided further that an officer appointed to               the  Service after the commencement  of  these               Rules in accor- 328                dance  with rule 9 of the  Recruitment  Rules               shall    be   deemed   to   have    officiated               continuously  in  a senior post prior  to  the               date  of  the  inclusion of his  name  in  the               Select  List prepared in accordance  with  the               requirements  of  the  Indian  Police  Service               (Appointment by Promotion) Regulations  framed               under rule 9 of the Recruitment Rules, if  the               period of such officiation prior to that  date               is  approved  by  the  Central  Government  in               consultation with the Commission.                Explanation 1.-An officer shall be deemed  to               have officiated continuously in a senior  post               from a certain date if during the period  from               that  date to the date of his confirmation  in               the senior grade he continues to hold  without               any   break  or  reversion  as   senior   post               otherwise than as a purely temporary or  local               arrangement.                Explanation 2.-An officer shall be treated as               having officiated in a senior post during  any               period   in   respect  of  which   the   State               Government  concerned certifies that he  would               have  so  officiated but for  his  absence  on               leave  or appointment to any special  post  of               any other exceptional circumstance." Sub-rule  (1) clearly makes Rule 3 the Controlling Rule  for the  purposes of assignment of the year of  allotment.   The Rule  then  divides  officers into two  categories:  (1)  an officer in the Indian Police Service at the commencement  of the Rules, and (2) an officer appointed to the Indian Police Service  after  the  commencement  of  the  Rules.   We  are concerned  with  the second category as  the  appellant  was appointed to the Indian Police Service in 1955.  The  second category  is  again  divided into  two  sub-categories:  (a) officer   appointed  to  the  service  as  a  result  of   a competitive  examination, and (b) officer appointed  to  the service  by  promotion  in accordance with  Rule  9  of  the Recruitment  Rules.  As the appellant was appointed  to  the Service by promotion, we are concerned with the second  sub- category.   The formula adopted works out as  follows  first find out the year of allotment of the junior-most among  the officers  recruited  to  the  service  by  competition,  who officiated continuously in a senior post from a date earlier than  the  date  of  commencement  of  officiation  of   the appellant.  We may again mention that the appellant  started officiating  as Superintendent of Police on June  25,  1947. But,  according  to  the first  proviso,  if  the  appellant started  officiating  continuously in a senior post  from  a date  earlier  than  the date of any  officer  recruited  by competition his allotment had to be determined ad hoc by the

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Central  Government.  According to the facts of  this  case, the first proviso applies and not the test provided in  rule 3(3) (b) of the Seniority Rules.  The second proviso  limits the   operation  of  the  first  proviso  by  dividing   the officiating period into two classes: first, a period                             329 before  the  date of inclusion of an officer in  the  Select List  and, secondly, the period after that date.  The  first period can only be counted if such period is approved by the Central Government in consultation with the Commission.  The appellant’s  name was included in the Select List  of  1956. Therefore, in the case of the appellant, the period prior to 1956  had  to  be  approved by  the  Central  Government  in consultation with the Commission. We  may  here notice Explanation 1 to Rule  3,  because  the government  of India also say that the appellant  officiated continuously  as a temporary or local arrangement.  We  will deal  with  this  aspect later, but for the  time  being  we assume  that there is no force in the Government of  India’s contention  and the Explanation does not apply to the  facts of  the present case.  Therefore, according to the Rule  the Central  Government  had  to determine ad hoc  the  year  of allotment  after  approving or not approving the  period  of officiation of the appellant before 1956.  The Government of India say that they determined this by issuing the  impugned order, the relevant part of which reads as follows:                "The  Government  of India have  now  decided               with  the concurrence of the  Commission  that               the  State  Civil Service  Officers  who  were               officiating prior to 19th May, 1951, but  have               been  appointed to the  Indian  Administrative               Service  after that date should, for  purposes               of  fixation  of  seniority,  be  allowed  the               benefit  of  their continuous  officiation  in               senior  posts with effect from the  19th  May,               1951.   The same decision will also  apply  in               the case of State Police Officers promoted  to               the Indian Police Service after the 19th  May,               1951." The  result  of this decision, as far as  the  appellant  is concerned,   is   that   the  period   of   officiation   as Superintendent of Police from June 25, 1947 to May 19, 1951, is  excluded for the purpose of fixation of seniority.   Why the  date  May  19, 1951, was chosen  is  explained  by  the Government of India in the following terms in paras 8 and  9 of the affidavit dated May 15, 1966:                "8. While recruitment to the Service  through               these diverse unconventional sources was being               made over the years, the question of  fixation               of   seniority  and  year  of  allotment   was               subseqently  considered and instructions  were               issued  vide  Shri  R. C.  Dutt’s  letter  No.               1/18/51-AIS dated 22nd June, 1951  prescribing               the detailed procedure as to how the seniority               and the year of allotment of each officer  and               for  each  category of recruitment  should  be               fixed.   The said letter finds mention in  the               appeal  paper book at pages 45-49.  It can  be                             said  that  with the issue of this  le tter  the               position regarding principles for the fixation               of seniority and year of allotment of officers               that had been recruited to 330                the  Services  prior to this  date  had  been

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             finalised and stabilised.                9.At  this stage, it was noticed  that  there               still were some State Police Service  Officers               who   had   not  qualified  at   the   various               recruitments made for the Service in  previous               years  and continued to hold senior  posts  on               account  of  paucity  of  officers.   It   was               further realised that if, for determination of               seniority and year of allotment, the principle               of  date of continuous officiation is  applied               in   such  case  such  State  Police   Service               Officers  who  had been  rejected  on  earlier               occasions  would on eventual  absorption  into               the  Service  through  the  regular  promotion               quota become entitled to higher seniority  and               year  of  allotment than those  who  had  been               selected in preference to them at the time  of               the   promotions   made   and   the    Special               Recruitment held in earlier years.  This would               have been a very anomalous position for  those               selected  on  such occasions  who  would  have               found themselves junior to those who had  been               rejected  at the time of such  selection.   In               consultation  with States and with  the  Union               Public Service Commission, it was,  therefore,               decided  that  in  the case  of  State  Police               Service  Officers  appointed  to  the  Service               after 19th May, 1951, their officiation  prior               to  this date would not count for purposes  of               seniority  and  year of allotment.   In  other               words, all such officiation prior to this date               would be regarded as fortuitous.  It was  also               felt that since 19th May, 1951 was the date on               which  the Gradation List for all the  earlier               persons  recruited  to the  Service  had  been               finalised  and  issued in  a  somewhat  stable               stage,  this  may  be  a  crucial  date,   and               officiation  prior to which could be  regarded               as fortuitous.  It may be mentioned that  this               date   refers  to  the  finalisation  of   the               Gradation  List for the I.A.S. but  since  the               same principles were extended to the I.P.S. as               well,  it  was decided to retain this  as  the               crucial date.  It may be reiterated that  this               decision was taken after consultation with the               State Governments and the U.P.S.C. I would say               that there is no arbitrariness in this  matter               and  that this was done after  consulting  all               concerned and after evolving a sound principle               which  would be consistent with the view  that               those who had been selected for recruitment on               earlier  occasions should not, by  application               of a principle, become junior to those who  on               such occasions had been rejected.  I may  also               mention that the said date had been  uniformly               applied to all officers in this category." It  would be noticed that the date, May 19, 1951,  to  begin with had nothing to do with the finlisation of the Gradation List  of  the Indian Police Service because it  was  a  date which had                             331 reference to the finalisation of the Gradation List for  the I.A.S.  Further  this  date  does  not  seem  to  have  much relevance to the question of avoiding the anomalous position mentioned  in  para 9 of the  affidavit,  reproduced  above.

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This  date was apparently chosen for the I.A.S.  because  on this  date  the Gradation List for in  the  earlier  persons recruited to the Service had been finalised and issued in  a somewhat stable stage.  But why should this date be  applied to  the  Indian  Police  Service  has  not  been  adequately explained.   Mr. B. R. L. Iyengar, the learned  counsel  for the  appellant,  strongly urges that selection  of  May  19, 1951, as a crucial date for classifying people is  arbitrary and  irrational.   We agree with him in  this  respect.   It further appears from the affidavit of Mr. D. K, Guha, Deputy Secretary  to  the  Government of India,  Ministry  of  Home Affairs,  dated  December 9, 1966, that "the  Government  of India  have  recently  decided  in  consultation  with   the Ministry of Law that the Ministry of Home Affairs letter No. 2/32/51-AIS,  dated  the  25th August,  1955,  will  not  be applicable to those SCS/ SPS officers, who were a pointed to IAS/IPS prior to the promulgation of IAS/IPS (Regulation  of Seniority)  Rules,  1954, and the date of the issue  of  the above  letter if their earlier continuous  officiation’  was approved  by the Ministry of Home Affairs and  Union  Public Service Commission." It further,appears that "in the case of Shri C. S. Prasad also, an IPS officer of Bihar, a  decision has  been  taken  to give the  benefit  of  full  continuous officiation  in  senior  posts and to  revise  his  year  of allotment accordingly." But, it is stated that "as Shri  Nim was  appointed to IPS on the 22nd October, 1955, i.e.  after the  promulgation  of IPS (Regulation of  Seniority)  Rules, 1954,  and  after the issue of letter dated  25-8-1955,  his case  does  not fall even under this  category."  The  above statement  of the case of the Government further shows  that the date, May 19, 1951 was an artificial and arbitrary  date having  nothing to do with the application of the first  and the  second  provisos to Rule 3(3).  It appears to  us  that under  the  second  proviso  to  Rule  3(3)  the  period  of officiation of a particular officer has to be considered and approved  or  disapproved  by  the  Central  Government   in consultation   with  the  Commission  considering  all   the relevant  facts.  The Central Government cannot pick  out  a date  from a hat and that is what it seems to have done  in this case-and say that a period prior to that date would not be  deemed to be approved by the Central  Government  within the second proviso. Mr.  Iyengar  had  contended  before us  that  on  a  proper construction of the rules, the entire period of  officiation in a senior post has to be counted towards the seniority  of the  appellant.  We have already discussed this point  above and,  in our opinion, there is no force in this  contention. As  we have said, the Central Government must  consider  the question  of approval of the officiation period and come  to an ad hoc decision after considering 332 all  the  relevant circumstances in  consultation  with  the State Government concerned and fix the year of allotment. The next point Mr. Iyengar raised was that the letter  dated August  25,  1955, was without any legal authority  and  was contrary  to  rules.  It seems to us that the fixing  of  an artificial  date,  like May 19, 1951, as the date  prior  to which  period  of  officiation would not  be  deemed  to  be approved by the Central Government is contrary to Rule 3. The  last  point  which  Mr. Iyengar  raised  was  that  the appellant  for  no valid reason has been  treated  unequally among his equals.  It is not necessary to decide this  point because the appeal has to be accepted on the ground that the selection   of  May  19,  1951,  as  a  ,crucial  date   for classifying people is arbitrary and contrary to Rule 3.

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We had earlier left open the point raised by the  Government of ,India that the appellant’s continuous officiation was  a temporary or local arrangement within Explanation 1 to  Rule 3. This is sought to be sustained by the following statement in the affidavit dated March 15, 1966:                "When  vacancies could not be filled up  even               by  this  method, recruitment  from  the  open               market  was  resorted to.  All  officers  thus               recruited   to  the  Service  were   initially               appointed  in the Junior Scale of  the  I.P.S.               The  result  was that there were  some  senior               posts  that  had to be filled and  some  State Polic e  Service  Officers who  had  not  been               selected  to  the Service through any  of  the               above recruitment methods were, in view of the               existing  paucity  of  officers,  allowed   to               officiate  on  senior  posts  as  a   stop-gap               arrangement.  I say that all such State Police               Service  Officers  who  were  officiating   on               senior posts due to shortage of officers  were               primarily  those who had been  considered  for               absorption into the I.P.S. under the Promotion               Quota  or under the Emergency Recruitment  but               had not been found fit for such absorption." This  statement is denied by the appellant.  We  agree  with him  that such a stop-gap arrangement cannot last for  eight years  :and  it has not been shown that  the  appellant  was appointed   temporarily   in  place  of  some   persons   as subsequently  he has never been reverted.  Further the  fact that he was appointed to the post at the time when vacancies fell negatives that it was merely a temporary arrangement. In the result we accept the appeal, quash the impugned order dated August 25, 1955, and direct the Central Government  to fix the year of allotment and seniority of the appellant  in accordance ,with this judgment and the law.  The  respondent will pay costs of the appellant in this appeal. Appeal allowed. V.P.S. 333