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PETITIONER: ARUN RANJAN MUKHERJEE

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT29/04/1971

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN SIKRI, S.M. (CJ) MITTER, G.K. VAIDYIALINGAM, C.A. DUA, I.D.

CITATION:  1971 AIR 1814            1971 SCR  574  1972 SCC  (3) 146

ACT: Indian Police Service (Regulation of Seniority) Rules  1954, r. 3(3)(b)--Fixation of year of allotment-Officer  recruited directly to Indian Police in 1945 is not direct recruit  for purpose  of  main part of r. 3(3) (b)--First proviso  to  r. 3(3)(b) does not relate only to ’joint cadre’-Court must not interfere with discretion of Central Government to fix  year of allotment on ad hoc basis under first proviso.

HEADNOTE: The  appellant  joined  the Indian Army  as  a  Commissioned Officer   in  1942.   He  became  a  Major  in  1945.    The appellant’s  services were lent to the State of West  Bengal and  accordingly  on 10-1-1949 the appellant was  posted  as Commandant   of  the  Special  Police  Battalion,   a   post corresponding to a senior post in the Indian Police  Service The  appellant with his consent, was appointed to  the  West Bengal  State Police Service on 1-7-1953.  On 8th  September 1954  the Indian Police Service (Recruitment)  Rules,  1954, Indian  Police  Service (Cadre) Rules, 1954 and  the  Indian Police  Service  (Regulation of Seniority) Rules  1954  were framed  by  the Government of India under s. 3  of  the  All India Services Act 61 of 1951.  On 6th June 1955 the  Indian Police  Service (Appointment by Promotion) Regulations  1955 were  also issued under which 25% of the senior  posts  were allotted  to the Indian Police Service cadre in each  State. The appointment of the appellant was outside this quota.  On 31st  July 1958 the appellant was appointed on probation  in the  State  Cadre of West Bengal.  In December 1959  he  was substantively  appointed  to  a senior post  in  the  Indian Police  Service and confirmed thereon with effect from  21st July  1958.  In December 1958 the Ministry of  Home  Affairs conveyed  to the Government of West Bengal its  decision  to fix  the  pay of the appellant in the senior  scale  of  the Indian  Police Service nationally from 10-1-1949,  the  date from  which  he  held an Indian Police  Service  Cadre  post continuously.   On  19th  January  1960  the  Indian  Police Service  (Seniority  of Special Recruits)  Regulations  1960 were  framed pursuant to r. 5-A of the Seniority Rules.   On

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11-10-1960 the Government of India in consultation with  the Union  Public  Service Commission decided to  allot  to  the appellant  the  year  1948.   The  year  of  allotment   was subsequently   changed  to  1947  on  the  basis  that   the officiation  of the appellant as well as that of the  junior most direct recruit, in a senior scale did not start be-fore 19th  May  1951. The appellant filed a writ  petition  under Art. 226 of the Constitution. The Single Judge, allowing his petition,  held  that  the date  from  which  the  appellant continuously  officiated was 10-1-1949 and that  accordingly the year 1943 allotted to D the Junior most direct  recruit, should also be allotted to the appellant.  The learned Judge also held that the first and second provisos to r. 3(3)  (b) of the Seniority Rules were not applicable to the appellant. The  Division Bench in appeal agreed with the Single  Judge, that the date of continuous officiation of the appellant was 10-1-1949.   But the High Court thought that the  year  1947 allotted  to the appellant on the basis of  his  officiation from 19th May 1951 could not be sustained because the latter date  had been held by this Court to be irrelevant in  Nim’s case.  Non-the-less the year of allotment 1948 575 ;assigned to the appellant in the order of 11th October 1960 was  sustained because it was on an ad hoc  basis.   Against the High Court’s order the appellant appealed to this Court by  certificate.  His contentions were: (i) that  under  the main  clause of r. 3(3) (b) of the Seniority Rules the  year 1943  should  be allotted to him as the said year  had  been allotted to D the junior most direct recruit; (ii) that  the first  proviso  to  r. 3(3)(b) did not apply to  him  as  it applied  only to those in the joint cadre; (iii)  that  this Court  should  deduct  the  ’P’  factor  from  the  date  of officiation which as held by the High Court was 10th January 1949  and  allot  to  him  the year  1943  as  the  year  of allotment.  Dismissing the appeal, HELD:     (i)  D was an Indian Police Officer  recruited  in 1945.  He became a member of the Indian Police Service under sub-r.   (1)   of  r.  3  of  the  Indian   Police   Service (Recruitment)  Rules  1954 on the date when the  said  Rules came into force in 1954, and was not an officer recruited to the  service  in accordance with r. 7 of those  Rules.   The year of allotment assigned to D was not therefore  available to the appellant under the main part of r. 3(3) (b). (ii) The  first  proviso  to r. 3  nowhere  refers  or  even remotely  indicates  "that  it is  only  applicable  to  the persons  in  the  joint  cadre.  In  fact  r.  2(1)  of  the Seniority  Rules  and  the words ’State  cadre’  and  ’joint cadre’   have   been defined  as   having   the   meaning respectively  assigned to them in the Indian Police  Service (Cadre)  Rules,  1954.  By reference to r. 7  of  the  Cadre ’Rules  it is apparent that what is to be determined is  the authority  which is to appoint, to the  respective  cadres i.e.  in the case of State Cadre it is the State  Government and  in the case of Joint Cadre it is the  State  Government concerned.   The  first  proviso  does  not  refer  to   any appointment  to any cadre; it only deals with Regulation  of Seniority and the reference to State Government concerned is for the purpose of fixing the date of officiation ad hoc in consultation  with the Central Government.  When  there  are several  State Governments the consultation by  the  Central Government  must  necessarily be with the  State  Government concerned in relation to the officer who is appointed to the cadre  of that State.  Whether the first proviso applies  or the  second  proviso applies, it is the  Central  Government that  has to determine ad hoc, the year of  allotment  after

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approving the period of officiation in consultation with the Public Service Commission. (iii)     In  view of the judgment in Nim’s case  the  order assigning 1947 as the year of allotment to the appellant  on the  basis of an arbitrary date of officiation  namely  19th May, 1951 was bad and had been quite properly struck down by the  High  Court.  The High Court however had no  power  ’to direct  the year 1948 to be fixed as the year  of  allotment for  the determination of the seniority of the appellant  on the  basis that was fixed on an ad hoc basis in  an  earlier occasion by the Government of India.  Once the Government of India  had on a memorial presented by the Appellant  decided finally  in supersession of its previous decision  that  his year  of allotment was 1947, the previous decision fixed  on ad  hoc  basis  could  not  be  revived.   It  was  for  the Government  of India in consultation with the Commission  to determine ad hoc the year of allotment to be assigned to the appellant  in  relation  to  the  date  of  his   continuous officiation.   This  Court  would  not  trespass  upon   the jurisdiction of the Government of India to determine ad  hoc in  consultation with the Commission, on a consideration  of the   relevant  materials,  the  date  of  the   appellant’s continuous officiation and assign him an year of allotment. D.   R. Nim v. Union of India, [1967] 2 S.C.R. 325, applied. 576

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1943  of 1969. Appeal  from the judgment and order dated December 22,  1967 of the Calcutta High Court in Appeal from Original Order No. 551 of 1966. The appellant appeared in person. Jagdish  Swarup, Solicitor-General, Ram Panjwani and  S.  P. Nayar, for respondent No. 1. M.   C.  Chagla,  D.  N. Mukherjee,  G.  S.  Chatterjee  for Sukumar Basu, for respondent No. 2. The Judgment of the Court was delivered by P.   Jaganmohan Reddy, This Appeal is by certificate against the judgment of a Division Bench of the Calcutta High  Court dismissing  the application by the Appellant  under  Article 226  of the Constitution of India.  The Appellant who is  an Indian Police Service Officer holding a senior post in  that service made an application to fix his year of allotment  in the  service which the Government of India ultimately  fixed as 1947.  With this fixation the Appellant is aggrieved. The brief facts which may be necessary for consideration  of the matters in issue are that the Appellant was Commissioned as an Officer of the Indian Army on the 12th April 1942.  He was  promoted to the rank of a Major on or about  1st  April ’45.  On 10-1-1949 the State of West Bengal feeling the need of  a Bengali Officer to serve in the Special  Armed  Police requested  the Army for the services of the Appellant  which the  Ministry of Defence agreed to lend.  The Appellant  was relieved  from  the Army and posted as a Commandant  of  the Special  Armed  Police Battalion on  10-1-1949,  which  post corresponded to a senior post in the Indian Police  Service. There is no dispute that his services were lent and that  he took  charge on the 10th January ’49 or that the post  of  a Commandant in the Special Armed Battalion was in the  senior scale of Indian Police Service. While  serving in this capacity the Government  expressed  a desire  to  absorb him and on the  Appellant’s  showing  his

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willingness to be so absorbed, he was appointed to the  West Bengal  State  Police  Service  on  1-7-1953.   On  the  8th September  1954,  the Indian  Police  Service  (Recruitment) Rules,  1954, Indian Police Service (Cadre) Rules, 1954  and Indian Police Service (Regulation of Seniority) Rules,  1954 were framed by the Government of India under sub-section (1) of Section 3 of all India Services Act LXI of 577 1951  (hereinafter  called "the  Recruitment  Rules".   "the Cadre  Rules" and "the Seniority Rules"  respectively).   On 6th  June  1955 the Indian Police  Service  (Appointment  by Promotion) Regulation 1955, were also issued under which 25% of  the  senior  posts were allotted to  the  Indian  Police Service  Cadre in each State.  It is also not disputed  that the appointment of the Appellant was outside the 25%  quota. On 31st July 1958, the Appellant was appointed on  probation in  the State Cadre of West Bengal.  On 8th/  17th  December 1959 he was substantively appointed to a senior post in  the Indian Police Service and confirmed thereon with effect from 21st July 1958.  On the 19th December 1958, the Ministry  of Home  Affairs,  New  Delhi,  by  its  letter  to  the  Chief Secretary  to  the Government of West  Bengal  conveyed  its decision to fix the pay of the Appellant in the senior scale of  the Indian Police Service nationally from 10-1-1949  the date from which he held an Indian Police Service Cadre  post continuously. Inasmuch as no order of allotment was given to the Appellant and the seniority was not fixed at the time of his confirma- tion,  the  Appellant  made  a  representation  on  the  3rd November 1958 for fixation of his seniority and granting  of 1943  as the year 01 allotment in the Indian Police  Service Cadre, under Rules and Regulations of the service.  To  this he  received a reply on 31st March 1959 from  the  Assistant Secretary to the Government of West Bengal informing that it is  not  possible for him to accede to the  request  of  the Appellant  contained in his representation.  Thereafter  the Appellant  seems  to have taken up the matter again  by  his letter  of  30-4-1959 and 22-8-1959 but there was  no  reply thereto.   On  19th January 1960 the Indian  Police  Service (Seniority of Special Recruits) Regulations 1960 were framed pursuant to Rule 5-A of the seniority Rules.  On  11-10-1960 the  Government  of  India  on  a  reconsideration  and   in consultation with the Service Commission finally decided  to allot  to the Appellant the year 1948 enclosing a letter  of the first Respondent dated 14-1-1963.  Thereafter a memorial was presented to the President of India on 2-12-1960  asking for  1943  as the year of allotment to which  the  Appellant received  a reply on 12-2-1963.  In this letter dated  12-2- 1963  the Assistant Secretary to the second  Respondent  the State  of  West Bengal informed him of the decision  of  the Government of India as under               "The Government of India have decided that the               seniority  of  Shri  A.  R.  Mukherji  may  be               revised taking into account his officiation in               senior  cadre post from 19th May 1951.   Since               direct  recruits borne on the I. P.  S.  cadre               post   of  the  West  Bengal  did  not   start               officiating in a senior scale before this date               (19-5-1951),  Shri  Mukherji’s  case  will  be               decided ad hoc under Reg. 3 of the I. P. S.               37-1 S.C. India/-I               578               (Seniority  of Special  Recruits)  Regulations               read  with the first proviso to Rule 3(3)  (b)               1954.   As the ’P’ Factor in the  West  Bengal

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             was  4  years 19 days, Shri  Mukherji  may  be               allotted,  in modification of this  Ministry’s               letter......... to the year 1947". Being aggrieved by the assignment of the allotment year 1947 the  Appellant  by  his  letter dated 1st  July  63  made  a representation to which he received a reply on 7th  November 1963  enclosing a copy of letter dated 11th October  ’63  of the  1st Respondent the Union of India, informing  him  that his  representation  was  rejected.  Thereupon  he  filed  a Petition under Article 226 in the High Court of Calcutta. A Single Judge held that under the main Rule 3(3) (b) of the seniority   Rules   the  date  from  which   the   Appellant continuously officiated is 10-1-1949 and accordingly  having regard to the fact that Shri P. Dhar who was the junior most direct recruit, the year of allotment given to him viz. 1943 also should be allotted to the Appellant.  The learned Judge also held that neither the 1st proviso nor 2nd proviso to r. 3(3) (b) is applicable to the Appellant.  While the Division Bench  in appeal agreed with the Single Judge that the  date of  continuous officiation of the Appellant was 10-1-49,  it held  that in the circumstances the year of allotment  which was required to be determined by the Government of India had to  be decided on an ad hoc basis.  But since the date  19th May 1951 fixed as the date of officiation was struck down by this  Court as arbitrary in D. R. Nim v. Union of  India(1), the  High Court thought that the year 1947 allotted  to  the Appellant on the basis of his officiating from 19th May 1951 could  not be sustained, nonetheless the year  of  allotment 1948 assigned to the Appellant in the order of 11th  October 1960  was sustained because it was on an ad-hoc  basis.   It was however observed by the Bench that in respect of  inter- se  seniority as they are not in a position to  say  whether the  order  of 11th October ’60 in so far as  it  fixes  the seniority  of  officers complies with  the  requirements  of Regulation  of 1960, interest of justice required that  they should  strike  down that portion of the order and  ask  the Government  of India to make a new decision in the light  of the  principles  they  have indicated.  In  the  result  the Appeal  was  allowed and it was declared that  the  year  of allotment  1948 was correctly assigned to the Appellant  and accordingly the Government of India was directed to fix  the seniority  of  the  special  recruits  in  accordance   with Regulation   4   of  the  Seniority  of   Special   Recruits Regulations 1960. The  short question in this Appeal which has been argued  at some length by the Appellant personally is to ascertain  the Rule (1) [1967] 2 S.C. R. 325. 579 which  is applicable in determining what year  of  allotment should be assigned to him.  A brief history of the All India Police  Services would facilitate an understanding  of  this question. There  was prior to 1946 a Secretary of State Service  known as  the  Indian  Police  (IP).  When  India  was  to  attain Independence an agreement was arrived at between the British Government  and the Central Government with the  concurrence of a number of Provincial Governments to constitute  another service  on the 21st October ’46 known as the Indian  Police Service (IPS).  Recruitment to this latter service began  on and   after  the  15th  August  ’47  when   India   attained Independence  and  subsequently  on  23-1-1950,  three  days before  India was declared a Republic on 26th  January  ’50, the  Governor  General in consultation with  the  Provincial Governments promulgated rules for framing a Cadre for Police

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Officers  known as the Indian Police Service  (Cadre)  Rules 1950  which came into force on that date.   After  26-1-1950 Article  312 governed the AR India Services.   Under  clause (1)  of the said Article Parliament was empowered by law  to constitute an All India Service common to the Union and  the States  and  to regulate the recruitment and  conditions  of service.   It also provided that the services  known  before the  commencement  of  the Constitution  the  Indian  Police Service and Indian Administrative Service shall be deemed to be  services  created  by  Parliament  under  that  Article. Pursuant  to these powers Parliament passed an Act known  as the  All India Services Act 61 of 1951 which recognised  the existence  of  the two All India Services  mentioned  above. Section 3 of that Act empowered the Central Government after consultation  with  the State Government concerned  to  make Rules  and  Regulation  for recruitment  and  conditions  of service  for  appointment to All India Service.   Section  4 further provided that all Rules in force immediately  before the  commencement  of the Act were deemed to be  Rules  made under  that  Act.  The Central Government by virtue  of  the powers  vested  in  it  under  Section  3  of  the  Act  had promulgated 3 sets of Rules to which a reference has already been made namely the Recruitment Rules, the Cadre Rules  and the  Seniority  Rules.  On May 14, 1956  the  Indian  Police Service  (Special  Recruitment) Regulations 1957  were  made under  Rule 9(5) of the Recruitment Rules.  On 19th  January 1960  the  Indian  Police  Service  (Seniority  of   Special Recruits) Regulations 1960 were made pursuant to C.A of  the Seniority   Rules.    These  Regulations   deal   with   the determination  of  seniority  of  recruits  appointed  under Special  Recruitment  Regulations-, Regulation  3  of  which provides  that officers appointed to Service  in  accordance with that Regulation shall be assigned a Yea" of,  allotment in accordance with r. 3(3) (b) of the Seniority  Regulations 1954. ; 580 Under  sub-rule (1) of Rule 3 of the Recruitment  Rules  the Indian  police  Service  is  constituted  of  the  following persons namely :               (a)   Members of the Indian Police;               (b)   Members recruited to the service  before               the commencement of the Rules; and               (c)   Persons  recruited  to  the  service  in               accordance with the provisions of these rules.               Service has been defined as meaning the Indian               Police  Service which as we have  noticed  was               constituted  even  earlier than  these  rules.               After   the   commencement   of   the   Rules,               recruitment to the service is to be made under               Rule 4 by 2 methods               (a)   by competitive examination, and               (b)   by promotion of substantive members of a               State Police Service. Rule  6  further provides that all appointments  to  service after  the  commencement of the Rules shall be made  by  the Central  Government and no such arrangements shall  be  made except by one of the methods specified in Rule 4. It is with respect  to  the second method of recruitment  by  promotion that  we  are concerned in this case as  the  Appellant  was appointed to the service under Rule 9. Sub-rule (5) of  that rule  which was introduced with effect from 14th May ’56  by Notification  dated  the 9th May ’57  empowers  the  Central Government to promote substantive members of a State  Police Service   in  excess  of  the  normal  promotion  quota   in accordance  with such regulation as the  Central  Government

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may  in  consultation  with the  State  Government  and  the Commission  make  from  time to time.  In  exercise  of  the powers  under this Rule the Special  recruitment  Regulation 1957  was  made, which by Regulation 4  applied  the  Indian Police  Service (Appointment by Promotion)  Regulation  1955 (hereinafter   called   the   "Appointment   by    Promotion Regulation".). Regulation 4 of the Appointment by  promotion Regulation  was  substituted  by another  Regulation  4  the effect of which is that the Committee in consultation  with the  Commission  must consider the cases of members  of  the State  Police  Service  who on 31st December  ’56  may  have completed  not  less  than six  years  of  service  (whether officiating   or   substantive)   in  a   post   of   Deputy Superintendent   of  Police.   While  under   the   original Regulation 4 of the Appointment by Promotion Regulation, the Committee has to meet at intervals ordinarily not  exceeding one year and consider a case of all the substantive  members of  the Police Service who had on 1st January of  that  year completed  eight  years  ’of’ service in a  post  of  Deputy Superintendent  of Police.  In Regulation 5,  sub-Regulation (4) and in sub-Regulation 581 (5)the  words "Review or revision" were deleted.   Similarly sub-Regulation  (3)  &  (4)  of  Regulation  7  as  well  as Regulations  8, 9 and 10 were omitted.  The effect of  these amendments  is  that for the Special Recruits there  was  no provision  for the preparation of a select list referred  to in  Regulation  7(3) and (4).  In the case  of  the  special recruits a list prepared by the Committee is sent  alongwith other documents from the State Government to the  Commission and unless the Commission considers any change necessary  it merely has to approve the list.  It is then for the  Central Government to appoint the persons approved in the list.  The Appellant is admittedly a special recruit within the meaning of the provisions referred to above and his contention  that unlike the cases of those who are to be appointed within the 25 % quota his name need not be included in the select  list to be appointed whenever there is a vacancy from out of that list.   All that is necessary in his case is that  once  the Commission  approves  the  list  of  persons  selected   the Government of India can straightaway appoint him and that is what  he says has been done in his case.  While this may  be so  in  our  view no significance can be  attached  to  this difference in the method of recruitment.  In  so far as the question before us is concerned  what  we have  to  see  is  whether the main rule  3(3)  (b)  of  the seniority Rules applies or whether his case comes within any of  the provisions thereto for the purposes of  ascertaining which is the year of allotment which can be assigned to him. It  may  be  mentioned that subrule (1) of  Rule  3  of  the Seniority   Rules  makes  it  incumbent  upon  the   Central Government to assign a year of allotment to every officer in accordance with the provisions of that Rule.  The assignment of  the  year of allotment to an officer  appointed  to  the service  after the commencement of the Rules is governed  by the  Seniority Rules which are applicable to the  Appellant. The relevant rule 3(3) (b) is as follows :               "3(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  junior  most  among   the

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             Officers   recruited   to   the   service   in accor dance  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".               582               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 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  accordance  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  or               any other exceptional circumstance. The above rule has been construed by this Court in D. R. Nim v.  Union of India(1), in respect of the second category  to which  it was applicable namely an officer appointed to  the Indian  Police Service after the commencement of the  Rules. One  of us (Mylord, the Chief Justice) after  analysing  the Rule, set out the result of the analysis of the provision at page 328 as under               "The formula adopted works out as follows :-               (1)   Finding out the year of allotment of the               juniormost among the officers recruited to the               service   by   competition    who   officiated               continuously in a senior post from               (1)   [1967] 2 S.C.R. 325.                                    583               a  date earlier than the date of  commencement               of officiation of the Appellant. 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

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             be determined ad hoc by the Central Government               The second proviso limits the operation of the               first  proviso  by  dividing  the  officiating               period  into  two  classes;  first,  a  period               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   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   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". In  that  case also the Government of India  had  taken  the stand  that  it had determined the date of  commencement  of officiation   of  the  Appellant  as  19th  May  ’51   after consultation  with  the  Commission and on  that  basis  the period of officiation as Superintendent of Police from  25th June  ’47  to May 19, 1951 was excluded for the  purpose  of fixation of seniority.  At page 330 it was pointed out  that the  date May 19, 1951 to begin with had nothing to do  with the  finalisation  of  the gradation list of the  I.  P.  S. because   it  was  a  date  which  had  reference   to   the finalisation   of   the  Gradation  list   of   the   Indian Administrative Services.  In so far as the applicability  of that date as the crucial date for classification of officers in  the  Police  Service is concerned, it  was  held  to  be arbitrary and contrary to Rule 3. In this view the  impugned order fixing the year of allotment was quashed.  It was fur- ther  pointed out that the contention of the  Government  of India  that  the Appellant’s continuous  officiation  was  a temporary or local arrangement within Explanation 1 to  Rule 3, cannot as a stop gap arrangement last for eight years nor has it been shown that the Appellant was appointed in  place of  someone  as  subsequently he has  never  been  reverted. Further  the fact that he was appointed to the post  at  the time when vacancies occurred negatives that it was merely  a temporary arrangement. In view of this Judgment we find it unnecessary to cover the same  ground  again  in dealing with the  arguments  of  the Appellant  because in the case before us also 19th  May  ’51 was  treated  as  the  date prior to  which  the  period  of officiation  would  not  be deemed to  be  approved  by  the Central Government and which was held to be bad by the  High Court. 584 It  is clear from the facts stated, that the  Appellant  had been holding a senior post in the West Bengal Police Service no doubt, on deputation but continuously from 10-1-1949  and was only appointed to that service in 1953 a year before the promulgation  of the Recruitment Rules.  He was however  not appointed to the Indian Police Service till after the  Rules had come into force in 1954. The question will therefore be how is his year of  allotment to  be determined?  The Appellant claims that the main  rule 3(3) (b) without it being read with any of the two  provisos is applicable to him and on that basis he contends that  the year of allotment to be assigned to him is the same as  that of  Shri P. Dhar who is the junior-most among  the  officers directly recruited to the service in accordance with Rule 7.

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The  Respondents however repel this contention and say  that Shri  Dhar was not directly appointed under Rule, 7  of  the Rules  because  he  was recruited in 1945  even  before  the Indian Police Service was constituted.  If as the  Appellant states  Shri  Dhar  was an Indian  Police  Officer,  whether recruited   directly  or  promoted  under  the  Rules   then existing,  he became a member of the Indian  Police  Service under sub-rule (1) of Rule 3 on the date when the Rules came into  force in 1954 and is not an officer recruited  to  the service  in  accordance with ’Rule 7 of those  rules’.   The year  of  allotment  assigned  to  Shri  P.  Dhar  will  not therefore be available to the Appellant under r. 3(3)(b). The  Respondents however contend that the first proviso  ap- plies, as such the Central Government has to fix the year of allotment  and seniority of the applicant on ad  hoc  basis. The Appellant on the other hand argues strenuously that  the first proviso does not apply to    him    because   it    is applicable  only  to  persons  in  the  joint  cadre.   This contention   is  suggested  by  a  curious  process       of reasoning namely   that   because  under   that   rule   the officiating date has to  be determined ad hoc by the Central Government   in  consultation  with  the  State   Government concerned and as "the State Government concerned" is defined as  being  in relation to a joint cadre that  proviso  deals only  with officers in the joint cadre and  the  officiating date  to be fixed ad hoc is in relation to persons who  come into  the  joint  cadre  from States  other  than  the  nine erstwhile  British Indian Provinces like  Hyderabad,  Mysore etc.  In our view the first proviso to rule 3 nowhere refers or even remotely indicates that it is only applicable to the persons  in the joint cadre.  In fact, in rule 2(i)  of  the Seniority  Rules  and word "State cadre" and  ’joint  cadre’ have  been  defined  as  having  the  meaning   respectively assigned to them in the Indian Police Service (Cadre)  Rules 1954.   By  reference  to rule 7 of the Cadre  rules  it  is apparent  that  what is to be determined  is  the  authority which  is to appoint, to the respective cadres i.e.  in  the case of State Cadre it is the  585  State  Government and in the case of Joint Cadre it is  the State  Government  concerned.  The first  proviso  does  not refer  to any appointment to any cadre, it only  deals  with Regulation  of  Seniority and the reference  to  the  ’State Government concerned’ is for the purposes of fixing the date of  officiation  ad  hoc in consultation  with  the  Central Government.   When there are several State  Governments  the consultation  by the Central Government must necessarily  be with  the  State  Government concerned in  relation  to  the officer  who  is  appointed  to the  cadre  of  that  State. Whether  the  first proviso applies or  the  second  proviso applies,  under  both of them it is the  Central  Government that  has to determine ad hoc, the year of  allotment  after approving the period of officiation in consultation with the Public Service Commission. In  view of the Judgment in Nim’s case, the order  assigning 1947 as the year of allotment to the Appellant on the  basis of an arbitrary date of officiation namely 19th May ’51,  is bad  and  has been quite properly struck down  by  the  High Court.   The High Court however had no power to  direct  the year  1948  to be fixed as the year of  allotment  for  the determination of the seniority of the Appellant on the basis that was fixed on an ad hoc basis in an earlier occasion  by the Government of India.  Once the Government of India  has on a memorial presented by the Appellant decided finally  in supercession  of  its  previous decision that  the  year  of

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allotment to be assigned to the Appellant in relation to the date of his continuous officiation. The Appellant also contends that the date of his  continuous officiation  is that which has been held by both the  Single Judge  as  well as the Division Bench of the High  Court  of Calcutta i.e. the 10th January 49.  While on the other  hand the  learned  Solicitor  General  as  well  as  Mr.   Chagla appearing  on  behalf  of  West  Bengal  contend  that   the officiation  cannot commence till after he was appointed  to the West Bengal service which was only on the 1st July  ’53, till  then he was an Officer in the Army with a lien to  the post of a Major and cannot therefore be said to be appointed to that service from the 10th January ’49.  The  Appellant’s answer  is that the Government of India had in  relation  to his  pay determined 10-1-1949 as the date from which  he  is said  to  be  officiating  and  in  any  case  the  date  of continuous  officiation is not from the date of  appointment but  from  the date on which a person occupies  a  post  and officiates  continuously without a break.  It is  true  that both  the Courts have held that the date of the  Appellant’s officiation in the service is and in arriving at this 586               conclusion  they  seem  to have  relied  on  a               letter to the Government of India dated 19-12-               1958 in which it has been stated as follows:               "The Government of India have decided that the               pay  of Shri Mukherjee should be fixed in  the               senior scale of the I.P.S. nationally from 10-               1-1949  the date from which he held an  Indian               Police Service post continuously".               The   Division  Bench  however  rejected   the               contention  of  the Respondents that  July  1,               1953  should be the datum date, the date  from               which  the Appellant’s continuous  officiation               commenced. it observed :               "   Now,  there can be no  question  that  the               Petitioner had been officiating in the post of               a Commandant from January 10, 1949 and that he               had  continuously  held that post  right  upto               July 1, 1953.  There is nothing in clause (b),               which  shows  that  while  officiating  in   a               ’senior post’ the officer concerned must be an               officer  belonging substantively to the  State               Police Service in question and could not be an               officer on deputation from some other service.               There can be little doubt that the  particular               clause  we have before us viz., clause (b)  of               rule 3(3) in term is wide enough to cover even               the period between January 10, 1949 to July 1,               1953". In view of this finding the Petitioner strenuously contends. that as he has already suffered a great deal and has come to the end of his resources this Court should, having regard to the  position  taken up by the Government of  India  in  its letter  referred to earlier namely 10th January ’49  as  the date from which he held. the post in the West Bengal  Police Service continuously, which according to both the Courts was also  the  date of continuous officiation  and  also  having regard  to the ’P’ factor which for the State of Bengal  has been  fixed by the Government of India as, 4 years 19  days, this  Court  could  determine  the  year  of  allotment,  by deducting  the ’P’ factor from the date of  officiation  and assign  to  the  appellant  the year 1943  as  the  year  of allotment.   He also contends that in the case of  Nim,  the Government  of  India  after the  decision  of  this  Court,

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determined  the year of allotment and assigned to  him  this very  date 1943.  Whatever force these contentions may  have we  do not propose to trespass upon the jurisdiction of  the Government of India to determine ad hoc in consultation with the   Commission,  on  a  consideration  of   the   relevant materials,   the   date  of   the   Appellant’s   continuous officiation and assign to him a year of allotment. 587 We  would therefore direct that the Government of  India  in consultation with the Public Service Commission do determine and  allot  ad hoc the year of allotment  according  to  law within two to three months, as in our view after Nim’s  case the  position having already been clarified, it  should  not take much time to determine the seniority. of the Appellant. The  Appeal  is accordingly allowed with costs  against  the Union of India. G. C.                               Appeal allowed. 588