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PETITIONER: D. RADHAKRISHNAN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       02/09/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the order or the Central  Administrative Tribunal,  Madras Bench  made on January 23,  1995 in  OA No.3/92.  The admitted  position is that the  appellant was appointed to Tamil Nadu State Police Services by  direct recruitment  on October  7, 1979. He was transferred and  posted  as  D.C.P.,  Law  &  Order,  Madras (South) which is a cadre post, w.e.f. July 27, 1980 and ever since he  had been  continuously officiating  in  the  cadre post. He  was included  in the  select list,  for the  first time, on  October 26,  1979 approved by the UPSC on December 12, 1979. The same list was continued for the year 1980. But in the  select list  for the  year 1981, he was not included for want  of requisite  vacancy allotable  the State  cadre. Consequently, he  came to  be included again on December 16, 1982 in  the select  list approved  by the UPSC on March 28, 1983.  When  his  seniority  was  determined  the  order  of allotment indicated  that 1978  was fixed  as  his  year  of allotment. He  questioned the   correctness  thereof on  two grounds, namely,  his non-inclusion in the list for the year 1981 was  bad in  law; he  also contended  that since he was continuously officiating  from 1975 and was included in list for the  first time  in the  year 1979  is year of allotment should be  1975. Both  the contentions were negatived by the Tribunal. The  question for  consideration,  therefore,  is: whether the  Tribunal is  right in its conclusion? Rule 3(3) of the  IPS (Appointment by Promotion) Seniority Rules reads as under:      "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) ... ... ... ...      (3) The  year af  allotment  of  an      officer appointed  to  the  service      after  the  commencement  of  these

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    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 these Rules who           officiated continuously  in  a           senior post from  date earlier           than the  date of 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 cadre 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      State Government concerned.      Explanation l  - In  respect of  an      officer appointed to the service by      promotion in  accordance with  sub-      rule  (1)   of  rule   9   of   the      Recruitment Rules,  the  period  of      his   continuous   officiation   in      senior post  shall, for the purpose      of determination  of his seniority;      count  only   from  the   date   of      inclusion of his name in the select      list,  or  from  the  date  of  his      officiating  appointment   to  such      senior post whichever is later."      This rule  was considered  by Bench  of three Judges of this Court  in Syed Khalid Rizvi & Ors. vs. Union of India & Ors.  [(1993)   Supp.  3   SCC  575].   After  an  elaborate consideration, in  paragraph 21  of the  judgment this court had held as under:      "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    get    his/her    continuous      officiation   towards    seniority.      Seniority  would  be  counted  only      form the  date on  which he/she was      brought into the select-list by the      selection committee  in  accordance      with Recruitment  Rules,  Promotion      Regulations and Seniority Rules and      was approved by the UPSC, appointed

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    under Rule  9  of Recruitment Rules      and  Regulation   9  of   Promotion      Regulations  and  has  continuously      officiated without  break Seniority      would be  entitled form the date of      select-list      or      continuous      officiating which  ever  is  later.      He/she is  entitled to  appointment      by  the   Central   Government   to      substantive      vacancy      under      Regulation    9     of    Promotion      Regulations  form  that  date.  The      Central  Government  and  the  UPSC      should      approve       temporary      appointment by  an order in writing      and also  of such  officiating.  In      that  event   seniority  would   be      counted only  from the date, either      of his/her inclusion in the select-      list   or    form   the   date   of      officiating  appointment   to   the      cadre post  whichever is  later. By      operation of  Explanation 1 to Rule      3(3)(b) of the Seniority Rules, his      seniority will be counted only from      either or  the later  dates and the      necessary effect is that the entire      previous  period   of   officiating      should be  rendered fortuitous  and      the   appointment    as   ad    hoc      appointment     or     by     local      arrangement."      This was  again reconsidered  by another  Bench of  two Judges of  this Court  in R.R.S. Chouhan & Ors. vs. Union of India &  Ors. [(1995)  Supp. 3  SCS 109].  This Court in the latter judgment  has held  that in  the matter  of  year  of allotment, the  basis should  be the date of inclusion or of continuous officiation,  whichever is   later.  It was  held that where  an officer  continuously  officiating as Officer on Special  Duty, was promoted to the IFS after his name was included in  the select  list for the IFS in different years except in  the year  immediately preceding  the year  of his promotion, assuming  that the post of OSD was a senior post, benefit of  such officiation was held to be not available in assignment of  year of allotment to him since he was include in the  select list  in the  later year  by operation of the Explanation II to Rule 3(3) of the Rule.      Thus, we  hold that  the appellant  was entitled to his year of  allotment only  from the  date when  he  was  later included in  the select  list in the year 1982. Accordingly, 1978 as  his year  of allotment  was immediately  below  the direct recruits in the cadre.      The appeal is accordingly dismissed. No costs.