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PETITIONER: D. RADHAKRISHNAN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       02/09/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the order of the Central  Administrative Tribunal,  Madras Bench  made on January 23,  1995 in  OA No.3/92.  The admitted  position is that the  appellant was appointed to Tamil Nadu State Police Services by  direct recruitment  on October  7, l979. He was transferred and  posted  as  D.C.P.,  Law  &  Order,  Madras (South) which is a cadre post, w.e.f. July 27, 1980 and ever since he  had been  continuously officiating  in  the  cadre post. he  was included  in the  select list,  for the  first time, on  October 26,  1979 approved by the UPSC on December 12, 1979  The same list was continued for the year 1980. But in the  select list  for the  year l981, he was not included for want  of requisite vacancy allotable to the State cadre. Consequently, he  came to  be included again on December 16, 1982 in  the select  list approved  by the UPSC on March 28, 1983. When  his  seniority  was  determined,  the  order  of allotment indicate  that 1978  was  fixed  as  his  year  of allotment. He  questioned the  correctness  thereof  on  two grounds, namely,  his non-inclusion in the list for the year 1981 was  bad in  law; he  also contended  that since he was continuously officiating  from 1975  and was included in the select list for the first time in the year 1979, his year of allotment  should   be  1975.   Both  the  contentions  were negatived by  the Tribunal.  The question for consideration, therefore,  is:   whether  the  Tribunal  is  right  in  its conclusion? Rule  3(3) of the IPS (Appointment by Promotion) Seniority Rules reads as under:      "3.   Assignment    of   year    of      Allotment.      (1) Every officer shall be assigned      a year  of allotment  in accordance      with  the   provisions  hereinafter      contained in this rule.      (2) ... ... ... ...

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    (3) The  year of  allotment  of  an      officer appointed  to  the  service      after  the  commencement  of  these      rules shall be           (a)  where  the   officer   is                appointed to  the service                on  the   results  of   a                competitive   examination                the  year  following  the                year   in    which   such                examination was held;           (b)  where  the   officer   is                appointed to  the service                by      promotion      in                accordance with rule 9 of                the  Recruitment   Rules,                the year  of allotment of                the junior-most among the                officers recruited to the                service   in   accordance                with  rule   7  of  these                Rules   who    officiated                continuously in  a senior                post from  a date earlier                than    the    date    of                commencement   of    such                officiation    by     the                former.      Provided that the year of allotment      of  an  officer  appointed  to  the      Service in  accordance with  Rule 9      of  the   Recruitment   Rules   who      started officiating continuously in      a senior  post from a cadre earlier      than the  date On  which any of the      officers recruited  to the service,      in accordance  with rule 7 of those      Rules, so started officiating shall      be determined ad hoc by the Central      Government in consultation with the      State Government concerned.      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 purposes      of determination  of his seniority;      count only  from the  date  of  the      inclusion of his name in the select      pist,  or  from  the  date  of  his      officiating  appointment   to  such      senior post whichever is later.      This rule  was considered by a Bench of there judges of this Court  in syed khalid Rizvi & Ors. vs. Union of India & Ors.  [(1993)   Supp.  3   SCC   575].After   an   elaborate consideration in  paragraph 21 of the judgment his court had held as under:      "Thus it  is  settled  law  that  a      promotee     officer      appointed      temproarily under  Regulation 8  of      promotion Regulations and Rule 9 of      cadre Rules  to a  cadre post  does      not  get   his  /   her  continuous

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