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CASE NO.: Appeal (civil)  1776 of 2008

PETITIONER: Subodh Kumar Jaiswal and Ors

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 05/03/2008

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.     1776      OF 2008 (Arising out of S.L.P. (C) No.12364/2006) W I T H CIVIL APPEAL NO.     1777      OF 2008 (Arising out of S.L.P.(C) No.1178/2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in these appeals is to the order passed by a  Division Bench of the Bombay High Court allowing the writ  petitions filed by Gulabrao Dharmu Pol, respondent No.4 in  appeal relating to SLP ( C ) No.12364/2006 and Mr. Suresh A.  Kakkar, respondent No.4 in appeal relating to SLP (C)  No.1178/2007.   

3.      A brief reference to the factual position would suffice.   The position as obtaining in the appeal relating to S.L.P.(C)  No.12364/2006 is noted as the factual scenario is common to  both the appeals.                    On 18.4.1979, respondent No.4 was appointed as trainee  Deputy Superintendent of Police by the Government of  Maharashtra subject to completion of training, practical  training and passing of tests in certain subjects.  According to  the appellants, only if these conditions are fulfilled, he was to  be appointed on regular basis to a cadre post in the cadre of  Dy.SP/ACP.  In other words, it is stated that on completion of  the probation satisfactorily, respondent No.4 was appointed to  the cadre post and started officiating as Dy.SP/ACP on regular  basis w.e.f. 3.8.1981 in terms of the Home Department,  Government of Maharashtra Order dated 1.2.1982.  The  appellants were directly recruited to the Indian Police Service  (in short ’IPS’) and allocated to the State of Maharashtra with  the allotment year as 1985.  By order dated 13.4.1989,  respondent No.4 was confirmed as DSP w.e.f. 31.12.1987.  According to the appellants, there was no challenge to the  delay, if any, in his confirmation.  On 3.8.1989, in terms of the  third proviso to Regulation 5(2) of the applicable Regulations,  i.e. Indian Police Service (Appointment by Promotion)  Regulations, 1955 (in short ’Regulation’) he became eligible for  consideration for promotion to the IPS on completion of eight  years of continuous service in the post of DSP in the State  cadre. On 26.2.1990, the Selection Committee met and  considered the candidates who were  substantive Dy.SPs who

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were eligible as on 1.1.1990 including respondent No.4. On  8.3.1991, respondent No.4 was promoted to IPS along with  seven others, including Shri S.A. Khopde.  They all became  juniors to the appellants who were appointed at least six years  earlier. Respondent No.4 did not press his claim for  consideration for promotion in the year 1988 itself.  On  9.2.1993, he and other promotees of his batch were confirmed  in the IPS w.e.f. 8.3.1992.  They were given 1987 as the year of  allotment in the IPS. On 27.7.1994, a representation was  made by respondent No.4 to treat 1984 as the year of  allotment by treating him as having been appointed in the year  1988 iteself.  Subsequently, another representation was made  in January, 1995. O.A.No.807/1996 was filed before the  Central Administrative Tribunal, Mumbai Bench (in short, the  Tribunal) praying for appropriate year of allotment in the IPS  on the ground that though he was eligible, he was not  considered for the vacancies of 1988.  The Union of India and  the Union Public Service Commission (in short, ’UPSC’)  resisted the claim of respondent No.4.  The Tribunal dismissed  the O.A. inter-alia holding that the O.A. was barred by time  and suffered from delay and laches as the respondent No.4   made a representation for the first time on 27.7.1994, much  after his alleged claim for the year of allotment being 1988.  It  was held that if his claims were to be allowed, it would  unsettle the settled position for about eight years.  The review  petition filed by respondent No.4 was also dismissed.  A writ  petition was filed by respondent No.4 challenging the  judgments of the Tribunal.  The same was allowed by  condoning the delay in approaching the Tribunal and it was  directed that the official respondents were to redetermine his  year of allotment as 1987 (which was later corrected to be  1988).  It was also held that if respondent No.4 was eligible for  being considered for the vacancies in 1988, his seniority shall  be determined treating him as entitled to be promoted in the  year 1988 and his year of allotment should be determined  accordingly.  A contempt petition (C.P.No.10/2006) was filed  by respondent No.4 and the Union of India implemented the  judgment of the High Court without preparing any seniority  list for the year 1988 by changing his year of allotment from  1987 to 1984 and placing him above the appellants who were  direct recruits of the year 1985.  This was done under threat of  contempt.  The High Court disposed of the contempt petition  as not pressed since the judgment had been complied with.   As the appellants were not parties before the High Court, after  obtaining permission to file S.L.P., the Special Leave Petitions  were filed.

4.      Mr. P.P. Rao, learned senior counsel for the appellants,  primarily challenged the judgment of the High Court on the  ground that the appellants who would be directly affected by  the order of the High Court were not parties before the High  Court.  In any event, there was not even an application for  condonation of delay in moving the Tribunal. A stale claim  purportedly relating to 1988 was raised for the first time in  1994.  The High Court could not have directed that the official  respondents were to determine the seniority of respondent  No.4 treating his year of allotment as 1988 and he was entitled  to be promoted in the vacancies occurring in the year 1988.  It  was further submitted that had the appellants been impleaded  as parties, they could have pointed out the fallacy in the claim  of respondent No.4 and as to how he was not entitled to be  considered for promotion.  Learned counsel for respondent  No.4, however, submitted that no direct relief was claimed  against the appellants and, therefore, there was no need to  implead them as parties.  Additionally, it is submitted that

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when respondent No.4 noticed that his claim has been  bypassed without any legitimate reason, he made the  representation.  From the stand of the Union of India, it  appears that the proper course was to prepare three separate  lists, which is the normal procedure, for the years in question   if for any year the selection was not held.  But that apparently  was not done in view of the High Court’s direction.  The writ  petition before the High Court related to both eligibility and  promotion.   

5.      As has been pointed out by learned counsel for the  appellants, there are two channels for appointment to the IPS,  one is by promotion from the service candidates and the other  is by direct recruitment.  The direction of the High Court is  some-what confusing.  The same reads as follows:

"13.    Under the aforesaid facts and  circumstances, especially in the light of the  above two Supreme Court Judgments, in  Union of India and Others V/s. Vipinchandra  Hiralal Shah \026 (1997) Supreme Court Cases (L  & S) 41, and Devendra Narayan Singh and  Others V/s. State of Bihar and Others \026 AIR  1997 SC 595, we set aside both the aforesaid  orders of Central Administrative Tribunal and  we hold that in the case of the petitioner, the  year of allotment would be 1987 and he is  eligible for being considered for promotion in  the vacancies occurring in the year 1988.  Our  view that in the case of the petitioner, the year  of allotment would be 1987 is reiterated by the  Government of India’s communication to the  Petitioner dated 26th May, 1994.  In the light of  the above, the Respondents shall determined  the Petitioner’s seniority treating his year of  allotment as 1987 and that the Petitioner was  entitled to be promoted in the vacancies  occurring in the year 1988 itself.  Rule is  accordingly made absolute with costs."

Subsequently, para 13 was corrected to read as follows:

       "Now the corrected Paragraph 13 in our  aforesaid judgment and order will read as  under:

"Under the aforesaid facts and  circumstances, especially in the light  of the above two supreme Judgments,  in Union of India and Others V/s.  Vipinchandra Hiralal Shah \026 (1997)  Supreme Court Cases (L&S) 41, and  Devendra Narayan Singh and Others  V/s. State of Bihar and Others \026 AIR  1997 SC 595, we set aside both the  aforesaid orders of Central  Administrative Tribunal and we hold  that in the case of the petitioner, he is  eligible for being considered for  promotion in the vacancies occurring  in the year 1988.  In the light of the  above, the Respondents shall  determine the Petitioners seniority  treating the Petitioners as entitled to  be promoted in the vacancies

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occurring in the year 1988 itself and  his year of allotment/seniority should  be determined accordingly.  Rule is  accordingly made absolute with costs." 6.      Somewhat inconsistent directions were given; first was to  consider the year of allotment to be 1987 and consider  respondent No.4’s case.  Subsequent part was the conclusion  that respondent No.4 was entitled to promotion.  It is pointed  out by learned counsel for the Union of India and the State of  Maharashtra that if all eligible persons are to be impleaded,  that would be impossible because it is not known how many  persons all over the country would be affected.  We find that  nobody else has moved this Court.  Therefore, that question  may not strictly arise for consideration in the present case.   Additionally, as rightly contended by learned counsel for the  appellants, there was practically no explanation for the belated  approach to the Tribunal, and the normal procedure of  preparing year-wise seniority list was given a go bye because  of High Court ’s direction.              7.      Be that as it may, in our view, the judgment of the High  Court is clearly inconsistent and is set aside.  We direct the  Central Government to draw up year-wise lists for the  concerned years, determine the eligibility of respondent No.4  and take a decision in that regard within a period of two  months from today.  Needless to say that the Central  Government, while undertaking the exercise, shall not be  influenced by any observations made by the High Court or by  us in the present judgment.  It shall be open to the parties, if  any or all of them affected by the decision, to avail such  remedies as are available in law.  We express no opinion in  that regard.          8.      By order dated 17.9.2007, a Bench of this Court passed  the following order:

       "Government would be entitled to fill in the  vacancies subject to the result of the special  leave petition."

9.      If any action has been taken pursuant to the said order,  it shall continue to be operative until fresh decision is taken  by the Central Government.  It needs no reiteration that by  giving this protection, we have not expressed any opinion on  the merits of the case. 10.     The appeals are accordingly disposed of without any  order as to costs.