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PETITIONER: AMRIK SINGH AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT11/04/1980

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. REDDY, O. CHINNAPPA (J)

CITATION:  1980 AIR 1447            1980 SCR  (3) 485  1980 SCC  (3) 393  CITATOR INFO :  F          1986 SC 348  (15)  RF         1988 SC 535  (38)

ACT:      Seniority, claim  for-Indian Police  Service  Officers- Counting officiating  service in  a Cadre  post of  a junior officer in  the Select List while his senior in the list was officiating in  another ex-cadre  post for  the purposes  of fixing    year    of    allotment-Whether    illegal-Whether continuation of a non-cadre officer in a cadre post beyond 3 months by  the State  Government without  a  report  to  the Central Government  and the Central Government non reporting after  six  months  to  U.P.S.C.  is  illegal-Indian  Police Service  Rules   Regulation  of  Seniority  Rules  1954  r/w Regulation 7-9  of Indian  Police  Service  (Appointment  by Promotion) Regulations  1955 Indian  Police Service  (Cadre) Rules  1954-All   India  Services   (Conditions  of  Service Residuary matters) Rules, 1960.

HEADNOTE:      One Sri  Ahluwalia,  4th  respondent  herein  became  a Deputy Superintendent  of Police  in Himachal Pradesh (which was then a Union Territory) by the end of 1956. In 1962, the Central Government  constituted a  common police service for the Union Territory of Delhi and Himachal Pradesh called the Delhi and  Himachal Pradesh  Police Service,  and later,  in 1964, respondent  No. 4  was absorbed into that service on a regular basis.  The usual  avenue of  promotion for a Deputy Superintendent of  Police is  the post  of Superintendent of Police, but Superintendents of Police are borne on the cadre of the  Indian Police Service and the exercise which results in the inclusion in the Indian Police Service is governed by the  Indian   Police  Service   (Appointment  by  Promotion) Regulations. 1955 framed under section 3(4) of the All India Services Act,  1951. The  first step  is to prepare a select list from among eligible officers of the State concerned, in the present case the Union Territories of Delhi and Himachal Pradesh. Sometimes,  it happens  that although the post of a Superintendent of  Police is  a cadre  post, if no hands are readily available  for being  posted from the I.P.S., Deputy Superintendent of  Police from  the Select  List is promoted provisionally  subject   to  certain  formalities.  The  4th

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respondent (Ahluwalia)  was brought  into the Select List in 1965 and later appointed Superintendent of Police in October 1965 and  he worked as Superintendent of Police in one place or the  other, until  December 25,  1967, when  he  went  on Earned Leave  from 26-12-67  to 25-3-68 and, even thereafter i.e. from 26-3-68 onwards, he continued as Superintendent of Police right down to January 1971, when on January 30, 1971, he was  appointed to  the I.P.S.  and confirmed as such. The year of  allotment was  fixed as  1965. For ascertaining the period of allotment under rule 3(3) (b) of the Regulation of Seniority Rules. 1954, the period of his officiating service in the cadre post from 1-8-68 to 12-10-69 was not taken into account under  Regulations 7  to  9  of  the  Indian  Police Service (Appointment  by Promotion)  Regulations,  1955,  in view of  the fact  that one Mr. Sahney who was senior to him in the  Select List  happened to  be posted  in an  ex-cadre post. The  4th respondent  who had  a case  that the law and justice of  his  case  entitled  him  to  1961  as  year  of allotment, challenged  the order  of the  Central Government allotting him the 486 year  1965.  The  High  Court  considered  the  matter  with reference  to  the  relevant  rules  and  allowed  the  writ petitions with  a direction  to the  Union of India to refix his seniority  after assigning  him the year of allotment as 1961. The  Central Government  reconsidered the  matter even earlier, and,  by its  order dated  27-7-1979,  refixed  the seniority of  the 4th  respondent by  assigning 1961  as his year  of   allotment.  Aggrieved  by  this  development  the appellants have come up in appeal.      Dismissing the appeal by special leave, the Court ^      HELD  :  1.  The  Officer  Sri  Ahluwalia  was  rightly assigned 1961 as the year of allotment. There was continuous officiation by him in a cadre post right down to 1971. There was no fault on his part. There was no illegality. There was no outwitting at the instance of Ahluwalia, of the claims of any other candidate. [494H, 495A]      2. The real line of distinction between a State and the Union of  India might  well be blurred a little when it is a Union Territory.  Moreover, there  is the  circumstance that the entire  Service was  in the  melting pot for a few years because the  All India  Services were  being  switched  from Himachal Pradesh  and Delhi  into all the Union Territories. Even more; since uncertainty prevailed while the question of a part of Punjab being tacked on to Himachal Pradesh came to engage the Administration. Amidst these fluctuating factors, the solecism  committed by  the Union  Territory of Himachal Pradesh in  not having  reported to  the Central  Government about continuing  Ahluwalia, beyond  3 months,  in  a  cadre post, was a venial sin for which the candidate was free from blame. [495C-E]      3.  The   argument,  based   on  Sahney,  a  senior  to Ahluwalia,  being   in  a   ex-cadre  post   and  therefore, Ahluwalia’s service  during that  period not  being regular, also cannot  be exaggerated  out of proportion. Technically, the C.B.I.  posts are  ex-cadre posts,  but it  is a Central Government Department  and nothing  is suggested  that there was something  suspicious in Sahney being kept in the C.B.I. to  facilitate   Ahluwalia’s  continuance   in  Cadre  post. Everything in  this case  is straightforward and, therefore, if there  was any  administrative lapse, Ahluwalia could not be victimized.  Indeed, an unwitting hardship inflicted on a member of  the  Service  under  such  circumstances  can  be relieved by  exercise of  the  residuary  power  of  Central

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Government  under   Rule  3   of  the   All  India  Services (Conditions of Service Residuary Matters) Rules, 1960. After full and second consideration, the Central Government passed Annexure ’Y’  dated 1-12-78  whereby Ahluwalia was given the benefit of  1961 as the year of the allotment. The period of officiation of Ahluwalia between 1-8-1968 and 19-10-1969 was approved by  the Central  Government after consultation with the U.P.S.C.  This retrospectively  cured the infirmity that existed in  Ahluwalia’s officiation,  beyond 3  months or  6 months, in  a  cadre  post  without  consultation  with  the U.P.S.C.  The  contravention  of  Regulation  8  was,  thus, relieved against. [495E-H, 497F-G]      4. In  substance the  exercise prescribed  by Rule 9 of the India  Police Service  (Cadre) Rules, 1954 is that, when the cadre  post is vacant and no Cadre Officer is available, a non-cadre officer may fill the vacancy for a period beyond three months  if the State Government reports to the Central Government the  reasons therefor and it is not ordered to be terminated. The Central 487 Government may  permit a  non-cadre officer  to fill a Cadre post for  a period  exceeding six months provided it reports the full  facts to  the U.P.S.C. and acts responsibly in the light of  the advice of the Commission. In the present case, no such  report by  the  State  Government  to  the  Central Government  was   sent,  no   consultation  by  the  Central Government with  the  Commission  was  done.  Bypassing  the Public Service  Commission bespeaks prima facie impropriety, but it is not destructive of the officiation of Ahluwalia in the special conspectus of facts present here. For one thing, Ahluwalia has  nothing to do with the error; for another, no senior  of   Ahluwalia  suffered,   thirdly,   the   Central Government, in  exercise of its power to relax the Rules, in good faith  and, indeed  in equity,  did relieve the officer against this violation. [498A-E]      5. Under  Rule 3(iii)(b)  of the  Indian Police Service Regulation of  Seniority Rules,  1954 continuous officiation is the  decisive factor.  Assuming that  what is  needed  is regular officiation  and not  physical  officiation,  it  is perfectly open  for the  Central  Government  to  relax  any irregularity by  relaxing any particular rule or regulation. That power  under All  India Services (Conditions of Service Residuary Matters)  Rules 1960,  to relax  is not  arbitrary because the  Rule contains  guidelines. Government  must  be satisfied, not  subjectively but  objectively, that any rule or regulation  affecting the  conditions  of  service  of  a member of  the All India Services causes undue hardship then the iniquitous  consequence thereof  may be relieved against by relaxation  of the  concerned Rule  or Regulation;  There must be  undue hardship  and, further  the  relaxation  must promote the  dealing with  the case "in a just and equitable manner". These  are perfectly  sensible guidelines.  What is more, there  is implicit  in the  Rule, the  compliance with natural justice  so that  nobody may  be adversely  affected even by  administrative action  without a  hearing. There is nothing  unreasonable,  capricious  or  deprivatory  of  the rights of  anyone in  this residuary  power  vested  in  the Central Government. Indeed, the present case is an excellent illustration of  the proper  exercise of the power. [498E-H, 499A]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2112 of

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1979.      Appeal by  special Leave  from the  Judgment and  Order dated 23-3-1979  of the Himachal Pradesh High Court in Civil Writ Petition No. 398 of 1976.      R. K. Garg, and B. P. Singh for the Appellants.      V. M.  Tarkunde and P. P. Juneja for the Respondent No. 4.      M. M. Abdul Khader and Miss A. Subhashini for the Union of India.      Mukul Mudgal for the Respondent No. 13.      The Judgment of the Court was delivered by,      KRISHNA  IYER,   J.-Competitive  claims  to  seniority, dependent on  the year  of allotment  in the  Indian  Police Service, fall  for consideration  in this  appeal by special leave. We  have expedited  the hearing  of  the  case  since keeping officers in an unsettled state may be a factor which impairs their efficiency. 488      One Shri  Ahluwalia, a  senior  member  of  the  Indian Police Service, sought to quash the decision of the Union of India dated  26-6-1976, whereby  his year  of allotment  was fixed as  1965. According  to his  case, the correct year of allotment should  have been  1961. If his plea were granted, the present  appellants would  be  affected  by  being  made junior to  him. The  rival contentions  revolve round  a few facts, which  we will  set out, and a few rules framed under the All  India Services  Act, 1951,  which we will construe. First  a  rush  through  the  relevant  calendar  of  dates. Concerned, as  we are,  with the  year of  allotment of Shri Ahluwalia (respondent No. 4), let us focus on the chronology of events  with special  reference to him. If his claim were untenable, the appeal must be allowed and vice-versa.      The  4th   respondent  (Ahluwalia)   became  a   Deputy Superintendent of Police in Himachal Pradesh (which was then a Union  Territory) by the end of 1956. In 1962, the Central Government constituted a common police service for the Union Territory of Delhi and Himachal Pradesh called the Delhi and Himachal  Pradesh   Police  Service;  and  later,  in  1964, respondent No. 4 was absorbed into that service on a regular basis.  The   usual  avenue   of  promotion   for  a  Deputy Superintendent of  Police is  the post  of Superintendent of Police, but Superintendents of Police are borne on the cadre of the  Indian Police Service and the exercise which results in the inclusion in the Indian Police Service is governed by the  Indian   Police  Service   (Appointment  by  Promotion) Regulations, 1955  framed under  Sec. 3(4)  of the All India Services Act,  1951. The  first step  is to prepare a Select List from among eligible officers of the State concerned, in the  present  case,  the  Union  Territories  of  Delhi  and Himachal Pradesh.  Sometimes, it  happens that  although the post of  a Superintendent  of Police  is a cadre post, if no hands are readily available for being posted from the I.P.S. Deputy Superintendent  of Police  from the  Select  List  is promoted provisionally  subject to certain formalities which we will  presently consider.  The 4th respondent (Ahluwalia) was brought into the Select List in 1965 and later appointed Superintendent of  Police in  October, 1965 and he worked as Superintendent of  Police  in  one  place  or  other,  until December,  1967,  and,  even  thereafter,  he  continued  as Superintendent of  Police right down to January 1971 when on January 30,  1971,  he  was  appointed  to  the  I.P.S.  and confirmed as  such. The  year of allotment was fixed as 1965 but the  4th respondent  had a case that the law and justice of the case entitled him to 1961 as year of allotment. So he challenged the Order of the Central Government allotting him

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the year  1965. The  High Court  considered the  matter with reference to  the relevant  rules and came to the conclusion that there was merit in the 4th respondent’s conten- 489 tion. (He  was the  petitioner before  the High  Court). The learned Judges wound up thus:      "It  is,   therefore,  evident   that  the   period  of officiation of  the petitioner during 1-8-1968 to 12-10-1969 could not  be considered  to be  invalid or irregular on any such ground.      We, therefore,  conclude that  the Government  of India wrongly decided  that  the  officiation  of  the  petitioner between the  period 1-1-1968  and 12-1-1971  or  during  the period 1-8-1968  to 12-10-69  could not  be considered valid officiation. Rather he was continuously holding a cadre post throughout this  period, and the benefit regarding seniority will have  to be  given for  the entire period. The decision being wrong and invalid under the very Rules and Regulations applied by  the Government,  was subsequently  set right  by them under Annexure-Y.      The upshort  of all  that we  have stated above is that the petitioner  shall be given the benefit of his continuous officiation against  a senior post of the entire period from 11-11-1965 to  the date  of his  appointment in  the  Indian Police Service  his year  of allotment  shall be  determined under Rule  3(3)(b) of  the Seniority  Rules keeping in view that he  started his continuous officiation from 11-11-1965. In consequence, Annexure-N is quashed to the extent the said Annexure held  a  view  contrary  to  our  decision.  It  is declared that  the petitioner continued and should be deemed to have  continued to officiate on a senior duty post of the Indian Police  Service with effect from 11-11-65 without any break up  to his  confirmation in the Indian Police Service. The petitioner’s  seniority shall  be determined accordingly and all consequential benefits of seniority shall be granted to him by the respondents Nos. 1 and 2. The respondent No. 1 shall  determine   the  seniority   of  the   Petitioner  in accordance with  our observations  made above  within  three months".      The Central  Government reconsidered  the  matter  even earlier, and,  by its  Order dated  27-7-1979,  refixed  the seniority of  the 4th  respondent by  assigning 1961  as his year  of  allotment.  Aggrieved  by  this  development,  the appellants  have  come  to  this  court  and  contested  the reasoning and conclusion of the High Court.      A few more facts about the career of the 4th respondent and the  developments in  the Indian  Police service  may be narrated  before   we  set   out  and   consider  Rules  and Regulations and their implications. 490 The  4th   respondent  Ahluwalia,  as  stated  earlier,  was Superintendent of  Police from  1965 to  1967, followed by a short period  of earned  leave, which ended on 25-3-68. From March 26,  1968 he  again  continued  as  Superintendent  of Police. Meanwhile,  an  event  beyond  the  control  of  the parties took  place which has a bearing on the ultimate view we take,  although only indirectly. On November 1, 1966, the reorganization of the Punjab State took place which resulted in some  areas of  Punjab being  transferred  to  the  Union Territory  of   Himachal  Pradesh.   Consequently,   certain officers, including  one Shri  P.C.  Sahney  and  Shri  K.S. Dhaliwal, were brought over from Punjab to Himachal Pradesh. Admittedly, both  these officers,  Sahney and Dhaliwal, were senior to  Ahluwalia, but  a key  circumstance which, in the submission of  the appellants  is decisive  in their  favour

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deserves mention.  It is  this  Shri  Sahney,  a  senior  of Ahluwalia, was holding an Ex-cadre post of Superintendent of Police, C.B.I. under the Ministry of Home Affairs between 7- 12-1964 and  6-10-1969. The  Joint Select  List of the Union Territories of  Delhi and  Himachal Pradesh  Police Service, prepared on  29-4-1967, included  the  names  of  Ahluwalia, Sahney and  Dhaliwal, the last two being above Ahluwalia. On January 1, 1968, the Central Government created single cadre for all  the Union  Territories in India and, as a follow-up action, prepared  a common  Select List for the IPS Cadre on 13-1-1971. Ahluwalia  was in  the Select  List of  the Union Territories Cadre  so  prepared.  The  story  of  the  Cadre continued in  the sense  that on  25-1-1971,  when  Himachal Pradesh  acquired  full-fledged  State-hood,  Ahluwalia  was allocated, alongwith  others, to  that State.  The  Himachal Pradesh State came to have its own Cadre of I.P.S. Officers, in which Ahluwalia became a Member. Thereafter, the question was mooted  before Government  as to what should be the year of allotment for the 4th respondent (Ahluwalia).      Two factors  having relevancy  to the  determination of the issue  before us,  were highlighted  by Shri  R.K. Garg, appearing for  the appellant. He stated that so long as Shri Sahney was  holding an  ex-cadre  post  and  was  senior  to Ahluwalia, the  officiation of  the latter was not legal and regular and  therefore had  to be ignored for the purpose of continuity of  officiating service.  This break was material in fixing the year of allotment. Secondly, he urged that the continuation of a non-cadre officer in a Cadre post beyond 3 months required the State concerned to report to the Central Government this  fact and  the Central  Government in return had to  consult and  go by  the opinion  of the Union Public Service Commission.  In  the  present  case,  Ahluwalia  had continued in  the Cadre  post of  Superintendent of  Police, without 491 this  necessary  exercise  by  the  State  and  the  Central Government and  without the  approval of  the  Union  Public Service Commission.  Thus, the  two reasons, briefly, stated above, were  lethal to  the claims  of Ahluwalia  and he was bound to  be pushed to the year 1965 and could not claim the earlier year  of allotment  of 1961  awarded to  him by  the Central Government and the High Court. If the contention put forward by  Shri Garg  were sound,  the conclusion  would be inevitable and  the appeal must inescapably be allowed. Thus we are  thrown back  to an examination of the relevant rules in their  application to  the facts present in this case. Of course, before launching on that essay, we must also mention that the  Central Government has a residuary power, in cases of equity  and justice, to exempt an officer from the rigour of any rule or regulation.      The Rules  may now  be reproduced  before scanning  the submissions of either side. It may be treated as common case that not  only was  Sahney (now retired) senior to Ahluwalia but he  was holding  an ex-cadre post during the period 1-8- 1968 to  12-10-1969. If this period were to be excluded from Ahluwalia’s officiation  he must  fail. It  is  also  beyond dispute that there was no consultation with the U.P.S.C. for the period  of officiation beyond 6 months of Shri Ahluwalia in a  cadre post.  The Union  of India  had, on  one  stage, agreed tentatively  with Ahluwalia’s  case but  changed  its mind and  came to  the conclusion  that there was a break in service between  1-8-1968 and  12-10-1969 for Ahluwalia and, therefore, the  benefit of  officiation during  that  period could not  be given  in fixing  the year  of allotment under Rule 3(3)(b)  of the  Regulation of  seniority Rules,  1954.

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Again Government  veered round to the view that 1961 was the correct year of allotment.      Now the Statutory Provisions:           "7. Select List           (1)  The  Commission   shall  consider   the  list                prepared by the committee alongwith the other                documents received  from the State Government                and,   unless   it   considers   any   change                necessary, approve the list.           (2)  ...........................................           (3)  The  list   as  finally   approved   by   the                Commission shall  form the Select List of the                members of the State Police Service." 492 Under this  Rule a  Select List was prepared where Ahluwalia was appointed  against a  Cadre post with effect from 11-11- 1965. Regulation 8 may also be read:           "8. Appointments to Cadre post from Select List           Appointments  of   members  of  the  State  Police      Service from  the Select  List to  posts borne  on  the      State Cadre on the joint Cadre of a group of States, as      the case  may be,  shall be made in accordance with the      provisions of rule 9 of the Cadre Rules. In making such      appointments, the  State Government  shall  follow  the      order in which the names of such officers appear in the      Select List.      .................................................      ................................................. From this,  it is  clear, Rule  9 of  the  Cadre  Rules  has governing force and so we must excerpt Rule 9 also:      "9.  Temporary appointment  of  non-cadre  officers  to           cadre posts      (1)  A cadre  post in a state may be filled by a person           who is not a cadre officer if the State Government           is satisfied.           (a)  that the  vacancy is  not likely  to last for                more than three months, or           (b)  that  there  is  no  suitable  cadre  officer                available for filling the vacancy.      (2)  where in  any state,  a person  other than a cadre           officer is  appointed to a cadre post for a period           exceeding three  months the State government shall           forthwith  report   the  fact   to   the   Central           Government together  with the  reasons for  making           the appointment.      (3)  On receipt of a report under sub-rule (2) or other           wise, the  Central Government  may direct that the           State Government  shall terminate  the appointment           of such person and appoint thereto a cadre officer           and where  and direction  is so  issued, the state           Government shall accordingly give effect thereto.      (4)  Where a  cadre post  is likely  to be  filled by a           person who  is not  a cadre  officer for  a PERIOD           exceeding 493           six months,  the Central  Government shall  report           the  full   facts  to  the  Union  Public  Service           Commission with  the REASONS  for holding  that no           suitable officer is available for filling the post           and may  in the  light of  the advice given by the           Union  Public  Service  Commission  give  suitable           directions to the State Government concerned." The critical  rule  regarding  the  assignment  of  year  of allotment is Rule 3, which we may now reproduce;      "3.  Assignment of year of allotment:

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    (1)  Every  officer   shall  be   assigned  a  year  of           allotment  in   accordance  with   the  provisions           hereinafter contained in this rule.      (2)  .........................................      (3)  The year  of allotment  of an officer appointed to           the service after the commencement of these rules,           shall be:           (a)  .........................................           (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 Juniormost  among the  officers recruited                to the  service in  accordance with Rule 7 of                these Rules  who officiated continuously in a                senior post from a date earlier than the date                of commencement  of such  officiation by  the                former;                ........................................                ........................................           Explanation :1. 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 a senior post shall, for      the purpose  of determination  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.           Provided that  where the  name of  a State  Police      Service Officer  was included  in the  Select  List  in      force immediately  before the reorganisation of a State      and is also in- 494      cluded in  the first Select List prepared subsequent to      the date  of such  reorganisation,  the  name  of  such      officer shall  be deemed  to have  been continuously in      the Select  List with effect from the date of inclusion      in the first mentioned Select List.                ......................................                ......................................           Explanation 4: An officer appointed to the Service      in accordance  with sub-rule  (i)  of  rule  9  of  the      Recruitment Rules shall be treated as having officiated      in a  senior post during any period of appointment to a      non-cadre post  if the  State Government  has certified      within three months of his appointment to the non-cadre      post that  he would  have so  officiated  but  for  his      appointment, for  a period not exceeding one year, and,      with the  approval of  the Central  Government,  for  a      further period  not exceeding two years, to a non-cadre      post under a State Government or the Central Government      in a time-scale identical to the time-scale in a senior      post.                ......................................                ...................................... There is  one more  Rule which  can play  a heroic role in a crisis between  equity and  legalism. That  is, contained in Rule 3  of the  All India  Services (Conditions  of Service- Residuary Matters) Rules 1960:                "3. Power  to relax  rules and regulations in           certain cases:-                Where the  Central  Government  is  satisfied           that the operation of:-           (i)  any rule  made or  deemed to  have been  made                under the All India Services Act, 1951 (61 of                1951), or

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         (ii) any regulation  made  under  any  such  rule,                regulating  the   conditions  of  service  of                persons appointed  to an  All  India  Service                causes undue hardship in any particular case,                it may,  by order, dispense with or relax the                requirements of  that rule  or regulation, as                the case  may be,  to such extent and subject                to such  exceptions  and  conditions  as  may                consider necessary  for dealing with the case                in a just and equitable manner." 495      In the perspective of the Act and Rules, we may proceed to analyse  the submissions  and assess  their worth. We are not disposed  to launch  on a  prolix investigation or delve into minute  details  because  we  are  impressed  with  the justice of  the conclusion reached by the High Court and the Central Government  in giving  to Ahluwalia 1961 as the year of his  allotment. It  is indubitable that, as a fact, there was continuous officiation by him in a cadre post right down to 1971.  There was  no fault  on his  part.  There  was  no illegality so  far as we can gather. There was no outwitting at the  instance of  Ahluwalia, of  the claims  of any other candidate. The two technical infirmities powerfully pressed, with characteristic vigour, by Shri R. K. Garg do not in the least   detract    from   the   effective   officiation   as Superintendent of Police by Shri Ahluwalia.      Let us  assume for  a moment  that the State Government had not  reported to  the Central  Government and  that  the consultation with  the Union  Public Service  Commission had not been  made by  the Central  Government. Let  us  further assume that, in a strict view, that was needed. Even so, the Union Territories  of Himachal Pradesh and Delhi should have formally told the Home Ministry about the officiation beyond three months  by Ahluwalia  in a  cadre post.  This was  not done. The  real line  of distinction between a State and the Union of  India might  well be blurred a little when it is a Union Territory.  Moreover, there  is the  circumstance that the entire  Service was  in the  melting pot for a few years because the  All India  Services were  being  switched  from Himachal Pradesh  and Delhi  into all the Union Territories. Even more; since uncertainty prevailed while the question of a part of Punjab being tacked on to Himachal Pradesh came to engage the Administration. Amidst these fluctuating factors, the solecism  committed by  the Union  territory of Himachal Pradesh in  not having  reported to  the Central  Government about continuing  Ahluwalia, beyond  3 months,  in  a  cadre post, was a venial sin for which the candidate was free from blame. Secondly,  the argument, based on Sahney, a senior to Ahluwalia,  being   in  a   ex-cadre  post   and  therefore, Ahluwalia’s service  during that  period not  being regular, also cannot  be exaggerated  out of proportion. Technically, the C.B.I.  posts are  ex-cadre posts,  but it  is a Central Government Department  and nothing  is suggested  that there was something  suspicious in Sahney being kept in the C.B.I. to facilitate  Ahluwalia’s  continuance  in  a  Cadre  post. Everything in  this case is straight-forward and, therefore, if there  was any  administrative lapse, Ahluwalia could not be victimized.  Indeed, an unwitting handship inflicted on a member of  the  Service  under  such  circumstances  can  be relieved against  by exercise  of  the  residuary  power  of Central Government under Rule 3 496 extracted above. They passed the Order (Annexure X) which we reproduce :      "Annexure-’X’

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    No. 24/16/71-Pers. II (IPS)      Government of India/Bharat Sarkar      Ministry of Home Affairs/Grih Mantralaya                          MEMORANDUM           S/Shri P.  C. Sahney,  K. S.  Dhaliwal and  V.  K.      Ahluwalia were  appointed the  Indian Police Service by      Promotion  from   the  State  Police  Service  on  30th      January, 1971  and allocated  to the  Himachal  Pradesh      Cadre of Service.           2. Prior to their appointment to the Indian Police      Service, these  officers  were  holding  the  following      posts.      ......              ......              ......      ......              ......              ......           In   accordance   with   Regulation   8   of   IPS      (Appointment by Promotion) Regulations, 1955 the Select      List officers  are to be appointed to the Cadre Post in      the order  in which  their names  appear in  the Select      List. As  such in  cases where  a  senior  select  list      officer was  not holding  a cadre post, the officiation      in a  cadre post of a junior officer in the Select List      was not  approved by the Central Government because the      appointment of  Junior Select  List officer  to a cadre      post was violative of the provisions of Regulation 8 of      the Promotion Regulations.      ......              ......              ......      ......              ......              ......           Accordingly, it  was decided that the rules may be      relaxed to  count the period of officiation against ex-      cadre posts  so as  to  give  benefit  of  the  service      rendered by  the junior  officers in the cadre post for      the purpose  of seniority.  Applying the  ratio of  the      case of  U. T.  Cadre, the Government of India has come      to the  conclusion that  the appointment  of Shri P. C.      Sahney in  the C.  B. I. on deputation basis from 7-12-      1964 to 6-10-1969 was made by the Central Government in      public interest since Shri Sahney belonged to the U. T.      Cadre which  was managed  by the Central Government. It      can, therefore,  be said that the question of misuse of      provisions of 497      rules and  regulations by  the State Government in this      case does  not arise. The certificates that but for his      appointment to ex-cadre post in the C.B.I., Shri Sahney      would have  continued against  a cadre  post, was to be      issued by  the Ministry  of Home Affairs and the fault,      if any,  lies with  the Central Government and not with      any  State   Government.  It   has,   therefore,   been      tentatively decided  to count the ex-cadre officiations      of Shri  P. C.  Sahney from  7-12-1964 to 6-10-1969 for      the  purpose   of  seniority   in  relaxation   of  the      provisions of  the  I.P.S.  (Regulation  of  Seniority)      Rules, 1954.      .....               .......             ......      ......              ......              ......           In view of the counting of ex-cadre officiation of      Shri P.  C. Sahney for the period 7-12-64 to 6-10-1969,      the Cadre  officiation of  S/Shri K. S. Dhaliwal and V.      K. Ahluwalia  prior to 13-10-1969 will not be violative      of  the   provisions  of   regulation   8   of   I.P.S.      (Appointment by  Promotional Regulations, 1955). It is,      therefore,  prepared   to  count   the   entire   cadre      officiation  of   S/Shri  K.  S.  Dhaliwal  and  V.  K.      Ahluwalia  for   the  purpose   of   their   seniority.      Accordingly, the  crucial date  in respect of S/Shri K.

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    S. Dhaliwal  and V. K. Ahluwalia shall be 28-3-1965 and      11-11-1965 respectively.      ......              ......              ......      .....               .......             ......      .....               ......              ......                                             d/- A. Jayaraman                  Under Secretary to the Government of India.           After full  and second  consideration, the Central      Government passed Annexure ’Y’ dated 1-12-1978, whereby      Ahluwalia was  given the benefit of 1961 as the year of      the allotment.  The period  of officiation of Ahluwalia      between 1-8-1968  and 19-10-1969  was approved  by  the      Central Government after consultation with the U.P.S.C.      This retrospectively  cured the  infirmity that existed      in  Ahluwalia’s  officiation,  beyond  3  months  or  6      months, in  a cadre  post without consultation with the      U.P.S.C. The  contravention of  Regulation 8 was, thus,      relieved against. 498      Regulation 7,  earlier reproduced, has reference to the Select List,  received from the State, being approved by the Commission. Ahluwalia was in this list and by virtue of that inclusion in  the Select  List, was  posted against  a Cadre post with  effect from  11-11-1965. Regulation  8 authorises such appointment of the members of the State Police Service. However, Rule  9 of  the Indian Police Service (Cadre) Rules 1954  has   a  crucial   impact  in   regard  to   temporary appointments of  non-cadre officers  to Cadre posts. We have earlier extracted  the Rule,  but in substance, the exercise prescribed by  the Rule  is that,  when the  Cadre  post  is vacant and  no  Cadre  Officer  is  available.  A  non-cadre officer may  fill the  vacancy for  a  period  beyond  three months if  the  State  Government  reports  to  the  Central Government the  reasons therefor and it is not ordered to be terminated. The  Central Government  may permit  a non-Cadre Officer to  fill a  Cadre post  for a  period exceeding  six months provided  it reports  the full  facts to the U.P.S.C. and acts  responsibly in  the light  of the  advice  of  the Commission. In the present case, no such report by the State Government  to   the  Central   Government  was   sent,   no consultation by  the Central  Government with the Commission was done.  We are  agreed that by-passing the Public Service Commission bespeaks  prima facie impropriety, but we are not inclined to  consider this  grievance as  destructive of the officiation of  Ahluwalia in the special conspectus of facts present here.  For one  thing, Ahluwalia  has nothing  to do with  the   error;  for  another,  no  senior  of  Ahluwalia suffered, thirdly,  the Central  Government, in  exercise of its power  to relax  the Rules, in good faith and, indeed in equity, did relieve the officer against this violation. That power  to  relax  exists  is  admitted,  although  a  feeble challenge to its vires was made in passing. When we consider the year  of allotment what looms large is Rule 3 (iii) (b). Continuous officiation is the decisive factor. Assuming that what is  needed is  regular  officiation  and  not  physical officiation, it is perfectly open for the Central Government to relax any irregularity by relaxing any particular rule or regulation. We  have earlier  indicated the  scope  of  this power and  reproduced the  Rule itself.  It is not arbitrary because the  Rule contains  guidelines. Government  must  be satisfied, not  subjectively but  objectively, that any rule or regulation  affecting the  conditions  of  service  of  a member of  the All India Service causes undue hardship, then the inequitous  consequence thereof  may be relieved against by relaxation  of the  concerned Rule  of Regulation;  There

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must be  undue hardship  and, further  the  relaxation  must promote the  dealing with  the case "in a just and equitable manner". These  are perfectly  sensible guidelines.  What is more, there  is implicit  in the  Rule, the  compliance with natural justice so that nobody may be 499 adversely affected  even by  administrative  action  without hearing.  We   are  unable  to  see  anything  unreasonable, capricious or  deprivatory of  the rights  of anyone in this residuary power  vested in  the Central  Government. Indeed, the present  case is an excellent illustration of the proper exercise of  the power. We are therefore, satisfied that the Central Government  was right in invoking its power to relax and regularize  the spell of officiation, which was impugned as irregular  or illegal. The consequence inevitably follows that the  officer Ahluwalia was rightly assigned 1961 as the year of allotment.      The appeal fails and is dismissed. S.R.                                        Appeal dismissed 500