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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: DR. M.G. DIGHE AND ORS.

DATE OF JUDGMENT27/08/1991

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. KANIA, M.H.

CITATION:  1991 SCR  (3) 776        1991 SCC  (4) 551  JT 1991 (3)   547        1991 SCALE  (2)446

ACT:     Service Law: Indian Administrative Service  (Appointment by  promotion) Regulations, 1955-Regulations 5(1),  (2)  and (3)--Interpretation of--Promotion of members of State  Civil Service-Preparation    of    Select   List    of    suitable officers--Selection Committee meeting on two dates--12-month period  under Regulation 5(1) to be counted from the  second date when the Committee finalised the list as per Regulation 5(1)  read with Regulation 5(2)--For purposes of  Regulation 5(3), the date when the Committee first met to be reckoned.

HEADNOTE:     The  first respondent and five other members  of  Madhya Pradesh  State Civil Service challenged before  the  Central Administrative Tribunal the selection of 14 officers of  the State Civil Service for promotion to the Indian  Administra- tive  Service  as illegal on the ground that the  State  had wrongly calculated the anticipated number of vacancies as  7 by counting the period of 12 months under Regulation 5(1) of the Indian Administrative Service (Appointment by promotion) Regulations,  1955,  from December 1, 1988 to  November  30, 1989, instead of from March 16, 1989 to March 15, 1990,  and if the latter period was considered as the proper period for the purposes of the said Regulation, the vacancies would  he 11  and  the  select list of 22 officers would  have  to  he prepared, for which 66 officers would have to be considered, and  the  zone  of consideration would extend  to  the  84th officer  in the seniority list, since 18 of the 66  officers were ineligible under Regulation 5(3).     On behalf of the State Government it was contended  that since  the meeting was first held on December 19,  1988  the period of 12 months under the Regulation 5(1) would have  to he  calculated  from December 1, 1988 to November  30,  1989 according to the previous practice of the Government,  which was that since the Committee met in the second fortnight  of December,  the  period  was to be calculated  from  the  1st December, 1988.     The  Tribunal held that neither the practice adopted  by the State Government, nor the interpretation placed by it on Regulation  S(1) was proper, and that the span of 12  months would begin from March 16, 777

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1989  and end on March 15, 1990 and directed that  a  Select List  of  22 officers should be prepared  since  during  the later  period, the estimated vacancies were 11, and  that  a Review Committee should be constituted to consider the cases of the applicants. Dismissing the appeal preferred by the Union of India,  this Court,     HELD:  1.1  The wording of the Regulation  5(1)  of  the Indian  Administrative  Service (Appointment  by  promotion) Regulations,  1955, is very clear. It says "commencing  from the date of preparation of the list". [779F]     1.2  In the present case, admittedly the list which  was prepared by the Selection Committee on December 19, 1988 was not according to Regulation 5(1) read with Regulation  5(2). Since  the  Selection  Committee had, on the  basis  of  its estimate of seven vacancies on December 19, 1988  considered the  cases of only 30 officers when it was required to  con- sider  the  cases of 42 officers, the Union  Public  Service Commission  had  returned its recommendation and  asked  the Selection  Committee to consider the cases of 12 more  offi- cers.  Hence,  the preparation of the Select  List  was  not complete in December, 1988 and the Committee was required to convene  a  fresh meeting on March 16, 1989, on  which  date alone  it  can be said to have prepared the select  list  as required  by  Regulation  5(1). Since the  select  list,  as required by- Regulation 5(1) was for the first time prepared on  March 16, 1989, the period of 12 month under  Regulation 5(1) had to be counted from that date. [779G-H, 780A-B]     1.3 During the period of 12 months from 16th March, 1989 tc  15th March, 1990, the estimated vacancies were  11  and, therefore, select list of 22 officers has to be prepared  by considering  the cases in all of 66 officers  and  extending the zone to the 84th officer in the seniority list according to  the  order  of seniority (18 officers out  of  66  being ineligible). [780C-D]     2. The provision of Regulation 5(3) speaks of the  first day of January of the year "in which", the Selection Commit- tee  "meets"  unlike the language of Regulation  5(1)  which speaks of "the date of the preparation of the list". In  the present case, the Committee first met of December 19,  1988. Therefore,  for the purpose of Regulation 5(3), it  is  that date  which is relevant and if that is so, it is only  those members of the State Civil Service who had attained the  age of  54  years on January 1, 1988 who  would  be  ineligible. [781C-D] 778     3. In the circumstances, for the purposes of the  Review Selection Committee to be convened,  the zone of  considera- tion  will be as if the meeting was held on March 16,  1989. The actual number of vacancies which will have to be consid- ered is 11. [781E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3383  of 199 1.     From  the Judgment and Order dated9.11.1990 of the  Cen- tral  Administrative Tribunal, Jabalpur in O.A. No.  129  of 1989.     Altar Ahmed, Additional Solicitor General, Hemant Sharma and C.V.S. Rao for the Appellant.     B.S.  Banthia, Piyush Mathur, G. Prakash,  T.C.  Sharma, S.K. Agnihotri and S.K. Gambhir for the Respondents. The Judgment of the Court was delivered by

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   SAWANT,  J. What falls for consideration in this  appeal is the interpretation of clauses (1), (2) and ,(3) of  Regu- lation  5 of the Indian Administrative Service  (Appointment by Promotion) Regulations,. 1955 (hereinafter referred to as the ’Regulations’). The first respondent and five others who were members of the Madhya Pradesh State Civil’ Service  had approached  the Central Administrative Tribunal  (’Tribunal’ for brevity) with a grievance that the selection of officers to the Indian Administrative Service (’IAS’) on the basis of recommendation made by the Selection Committee in its  meet- ing  held  on December 19, 1988 and on March  16,  1989  was illegal.     2.  In its meeting on December 19, 1988,  the  Selection Committee  had  estimated 7 vacancies in the IAS  cadre  and was,  therefore,  required to prepare a select  list  of  14 members of the State Civil Service for promotion to the IAS, under  Regulation 5(1) of the Regulations.  While  preparing the list, the committee had to consider for inclusion in the said  list the cases of members of the State  Civil  Service (in  the order of there seniority) equal to three times  the number  of  officers  to be placed on the  list.  Hence  the Committee  had  to consider the cases of 42 members  of  the Service.  The Committee, however, considered the cases  only of 30 officers, graded them and submitted its recommendation to  the  Union  Public Service  Commission.  The  Commission directed the Committee to meet again and grade the remaining 12  officers also. Accordingly, the Committee met  again  on March 779 16,  1989  to  complete the select list as  directed.  As  a result of this selection, appointment orders of 14  officers who  were  included  in  the  select  list  were  issued  on 29th/30th March 1989. This was challenged by the  applicants before  the  Tribunal  by pointing out that  the  State  had wrongly calculated the number of vacancies as 7 by  Counting the period of 12 months under Regulation 5(1), from December 1, 1988 to November 30, 1989 instead of from 16th March 1989 to 15th March. 1990. If the latter period was considered  as the  proper period for the purposes of the said  Regulation, the vacancies would be 11 and the select list of 22 officers would  have  to be prepared. That will extend  the  zone  of consideration  in  all to 66 officers. Since 1.8 of  the  66 officers  were  ineligible, the zone of  consideration  will extend to the 84th officer in the seniority list. On  behalf of  the  State Government, it was contended that  since  the meeting was first held on 19th December. 1988 the period  of 12  months under the said Regulation will have to be  calcu- lated  from December 1, 1988 to November 30, 1989  according to the previous practice of the State Government, ,which was that  since the Committee meets in the second  fortnight  of December,  the  period  was to be calculated  from  the  1st December  of  that .year. We agree with  the  Tribunal  that neither the practice adopted by the State Government nor the interpretation  placed by it on Regulation 5(1)  is  proper. The relevant portion of Regulation 5(1) reads as follows: "5.   Preparation   of  a  list  of   suitable   officers.-- (1)   ..... ....  The number of members of the  State  Civil Service  included in the list shall not be more  than  twice ,.he  number  of substantive vacancies  anticipated  in  the course  of the period of twelve months, commencing from  the date of preparation of the list. in the posts available  for them ............... (Emphasis supplied )     We  are not concerned with the rest of the provision  of

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the  said  regulation for the purposes of  this  point.  The wording of the regulation is very clear. It says "commencing from  the  date  of the preparation of the  list".  In  the. present case, admittedly the list which was prepared by  the Selection  Committee  on 19.12. 1988 was  not  according  to Regulation  5(1) read with Regulation 5(2). Regulation  5(2) requires that the cases of members of the State Civil  Serv- ice  which are required to be considered for preparation  of the  select list have to be in number equal to  three  times the  number of officers to be placed on the select list.  As pointed  out  earlier, the Selection Committee  had  on  the basis  of its estimate of vacancies on 19th  December,  1988 considered the 780 cases  of only 30 officers when it was required to  consider the  cases  of 42 officers. It is for this reason  that  the Union Public Service Commission had returned its recommenda- tion and asked the Selection Committee to consider the cases of  12 more officers. Hence the preparation ’ of the  select list was not complete in December 1988 and the Commit- tee  was  required to convene a fresh meeting on  March  16, 1989  on which date alone it ican be said to  have  prepared the select list as required under Regualtion 5(1). Since the select  list,  as required by Regulation 5(1), was  for  the first  time  prepared on March 16, 1989, the  period  of  12 months  under  Regulation 5(1) had to be counted  from  that date.  The Tribunal had, therefore, rightly held,  that  the span of 12 months would begin from March 16, 1989 and end on March 15, 1990.     There is further no dispute that during the period of 12 months from 16th March, 1989 to 15th March, 1990, the  esti- mated  vacancies  were  11 and,  therefore,  the  Tribunal’s direction to prepare a select list of 22 officers by consid- ering  the cases in all of 66 officers and,  therefore,  ex- tending  the zone to the 84th officer in the,seniority  list according  to the order of seniority (18 officers out of  66 being ineligible), is both proper and valid.     3. A contention was then advanced before us on behalf of the appellant that the select list lapses when a meeting  of the  Selection Committee to prepare a fresh select  list  is held.  Hence no appointment could be made from  the  earlier select list on and after the date of the meeting of the next Selection Committee. There is nothing on record as to wheth- er any Selection Committee met after March 16, 1989.1n fact, the Tribunal’s direction to constitute a Review Committee to consider the cases of the applicants before it and any other officers  who  were in the consideration zone, has  not  yet been implemented and the Selection Committee has yet to meet to  prepare the list of members of the State  Civil  Service eligible  to  be placed in the select list as on  March  16, 1989.  There is, therefore, no question of the lapse of  the list which is yet to be prepared. A meeting of the Selection Committee  to  prepare the list for future years  cannot  be held unless the meeting as directed by the Tribunal is first held and the select list finalised.     4.  The last contention was that under Regulation  5(3), there  is a bar on the Selection Committee taking into  con- sideration  the  cases  of the members of  the  State  Civil Service  who have attained the age of 54 years on the  first day  of January of the year in which it meets. The  argument was  that  some of the officers had attained the age  of  54 years 781 on 1st January, 1989 and, therefore, would be ineligible for consideration to be placed in the select list. According  to

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us,  this contention is inconsistent with the provisions  of Regulation 5(3) of the Regulations. Regulation 5(3) reads as follows:               "5(3)  The  Committee shall not  consider  the               cases of the members of the State Civil  Serv-               ice  who have attained the age of 54 years  on               the first day of January of the year in  which               it meets:"               (Emphasis ours) The provision of Regulation 5(3) is clear. It speaks of  the first  day of January of the year "in which", the  Selection Committee "’meets". It is unlike the language of  Regulation 5(1) which, as pointed. out earlier, speaks of "the date  of the preparation of the list". In the present case, admitted- ly  the Committee first met on 19th December,  1988.  There- fore,  for the purpose of ’Regulation5(3), it iv  that  date which  is relevant and if that is so, it is only those  mem- bers  of the State Civil Service who will be ineligible  who had  attained the age of 54 years on 1st January, 1988.  The Tribunal has also clarified this while giving the  direction for a Review Selection Committee.     We  make  it clear that for the purposes of  the  Review Selection Committee to be convened as directed by the Tribu- nal the zone of consideration will be as if the meeting  was held on March 16, 1989. The actual number of vacancies which will have to be considered has already been indicated in our judgment.     5.  In the circumstances of the case, the  appeal  fails and is dismissed. In view of the fact that these proceedings have  been pending for some time we direct that  the  Review Departmental  Promotion  Corn’  mittee/Selection   Committee should  meet and prepare the select list within  two  months from the day of the receipt of the writ of this Court. In the circumstances of the case, there will be no order  as to costs. N.P.V.                                         Appeal   dis- missed. 782