24 October 1996
Supreme Court
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DEVENDRA NARAYAN SINGH Vs STATE OF BIHAR

Bench: K. RAMASWAMY,G.B. PATTANAIK
Case number: C.A. No.-013236-013236 / 1996
Diary number: 18977 / 1995
Advocates: ABHAY CHANDRAKANT MAHIMKAR Vs


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PETITIONER: DEVENDRA NARAYAN SINGH AND OTHERS

       Vs.

RESPONDENT: THE STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT:       24/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                Hon’ble Mr.Justice G.B.Pattanaik      P.P.Rao, Sr.  ADV.,  Vijay  Kumar,  J.P.Parihar,  Abhay Chandrakant Mahimka. Advs, with him for the appellants.      B.B.Singh, Adv. for the Respondents.                       J U D G M E N T      The following Judgement of the Court was delivered:      PATTANAIK, J.      Leave granted.      This appeal  by special  leave is  directed against the order     dated  5th   September,  1995   of   the   Central Administrative Tribunal,  Patna Bench,  Patna in O.A. No. 12 of 1993.  The appellants who had been recruited to the Bihar State Police  Service in  the year 1969 were promoted to the Indian Police  Service in  the year  1987 in accordance with the provisions  of the  Indian Police  Service (Promotion by Recuritment) Regulations,  1955 (hereinafter  referred to as the ’Promotion  Regulations’). On  being  appointed  to  the cadre of  IPS they  were assigned  the year  of allotment as 1981 by  the Central  Government. They  challenged the  said order and  claimed that  their year  of allotment  should be 1979 before  the Tribunal.  The  Tribunal  by  the  impugned judgement rejected  their claim  and  having  dismissed  the O.A., the present appeal has been preferred.      The case  of the  appellants in  nutshell is  that they having been  appointed to  the Bihar State Police Service on 1.9.1969 were  eligible for  being considered to be included in the  Select List  prepared  under  Regulation  5  of  the Promotion  Regulations   since  1977.   But  the   Committee constituted under  Regulation 3 of the Promotion Regulations did not  prepare any  Select List  for the years 1977, 1978, 1979 and  1980. It  is only  in 1981  a Select  List  of  18 officers was  prepared to  fill-up 7  vacancies ignoring one anticipated vacancy during the year. The further case of the appellants was  that in  the triennial  review conducted for determining the  strength of  the cadre in the year 1981 the number of  senior  posts  in  the  said  cadre  of  IPS  was increased to 137 from 123. But the Section Committee, though met on  14.10.1981, did  not take  the increase in the cadre strength as  a result  of which the appellants suffered to a great extent.  A Writ  Petition was  filed in the Patna High

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Court which  was registered  as CWJC  No. 5372  of 1983. The High Court  by order  dated 30th  July,  1984  came  to  the conclusion that  the Selection  Committee had  committed  an error by  not taking  into account  the number  of vacancies existing as  well as  number of  vacancies  likely  to  fall vacant  during   the  year   and  accordingly  directed  the Selection Committee  to prepare  a fresh Select List for the year 1983.  The State  Government challenged  the  aforesaid order of  the High  Court by filing a Special Leave Petition in the  Apex Court  which was  ultimately dismissed with the observation that  the Selection  Committee should  prepare a fresh list  for the  year  1983  with  respect  to  all  the vacancies including  the vacancies  that occurred on account of triennial  review by  the authorities.  Pursuant  to  the aforesaid  direction   of  the   Apex  Court  the  Selection Committee met  on 19.9.1985 and prepared a Select List of 24 officers including  the  appellants  for  promotion  to  the Indian Police  Service and  the appellants  were  ultimately appointed to the cadre of IPS on different dates in the year 1987. The  earliest appointment  being of  appellant no.1 on 27.7.1987. The  Ministry of  Home Affairs  thereafter issued order dated  4.5.1992 assigning  the appellants  the year of allotment as  1981. The  appellants then challenged the same order of  the Union  Government claiming  that the  year  of allotment should  be 1979 on the ground that the Select List though was  factually prepared  in the  year 1985 but in the eye of  law it  relates to  the  year  1983  and  the  Union Government has  not  taken  that  into  consideration  while assigning year  of allotment. The Union Government contested the application before the Tribunal alleging therein that no doubt the  Supreme Court  had directed to draw a Select List for the year 1983 and the same was drawn on 9.9.1985 but the appellants having  been appointed  in the year 1987 pursuant to their  name being included in the select List prepared on 19.9.1985, their  year of  allotment has  been rightly fixed under Rule  3(iii) of  the Indian Police Service (Regulation of Seniority)  Rules, 1954  hereinafter referred  to as  the ’Seniority  Rules’  and  therefore  there  is  no  error  in determining the  year of  allotment of  the appellants.  The Tribunal   by the  impugned judgment  came to the conclusion that the  year of allotment of an officer has to be assigned in accordance  with the  Seniority Rules,  more particularly Rule 3(3)(b)  of the  said Rules.  The Tribunal also came to the conclusion  that the  question of  assignment of year of allotment only  arises after  appointment of  the  concerned officer to  the cadre either through competitive examination or by  promotion from  the State  Police Service  under Rule 9(1) of  the Recruitment  Rules. That  being  the  position, taking  into   account  the   date  of  appointment  of  the appellants to  the Indian  Police Service Cadre and the date from which  the concerned  officer was  actually included in the  Select   List  as   well  as  the  date  of  continuous officiation of  the appellants in a senior post, the year of allotment as  determined by  the Government  is correct. The Tribunal was  of the  view that  the appellants being in the Select List  since 1986 and having been appointed in 1987 to the Indian  Police  Service  Cadre.  they  cannot  make  any grievance of their year Of allotment being fixed in the year 1979.      Mr. P.P.  Rao, the learned senior counsel appearing for the appellants  contended that  the  Tribunal  committed  an error in  not considering  that the Select List in which the appellants were included was in fact the Select List for the year 1983  and for  the purpose  of determining  the year of allotment in  the eye  of law  it must  be deemed  that  the

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appellants were  in the  Select List  of the  year 1983. Mr. Singh, the  learned counsel  for the  State of  Bihar on the other hand  submitted that pursuant to the directions of the Patna High  Court as  well  as  the  apex  Court  the  State Government did consider the case of the appellants for being included in  the Select  List and  in fact  got their  names included  in  the  Select  List  but  Union  Public  Service Commission did  not approve  the same earlier as a result of which the  appellants could  be appointed  only in  the year 1987 and  as such for the selection made by the Union Public Service  Commission   as  well   as  Union  Government,  the appellants cannot  claim an  earlier year  of allotment. The stand of the counsel appearing for the Union of India on the other hand  was, an officer gets included in the Select List only when  the  Select  List  prepared  by  the  appropriate authority gets  the approval  of the  Union  Public  Service Commission. That  being the  position and the Select List in question having  been approved  only in  the year  1986, the Union Government rightly determined the year of allotment of the appellants.      In view  of rival  submissions at  the bar the question that  arises   for  consideration   is  whether   the  Union Government and  the Central  Administrative   Tribunal  were justified in coming to the conclusion that it is the date of factual inclusion  of the appellants name in the Select List and their  appointments to  the Indian  Police Service Cadre which   would    government   the    year   of    allotment, notwithstanding the  fact that  earlier the Patna High Court and this  Court had  given directions  that the  appropriate authorities have  committed error  in not preparing the list for the  year 1983  and the  question of  inclusion  of  the appellants name  in the  Select List  for the  year 1983  be reconsidered by  the State Government.      Having given  our anxious consideration to the relevant Provisions, Rules  and the  Regulations for  appointment and for determination  of the  year of allotment and the earlier directions of  the Patna   High  Court as  well as  of  this Court, we  find sufficient  force in  the contentions of Mr. P.P.  Rao,   the  learned   senior  counsel   appearing  for appellants and  we come  to the  conclusion that  the  Union Government has committed error in treating the appellants to have been  included in  the Select  List only  from the year 1986 which  is the  factual year  of their  inclusion in the list and  thereby determining the year of allotment. We also come to  the conclusion that the Tribunal committed error in ignoring the fact of the earlier direction of this Court and the legal  fiction  by  which  it  must  be  held  that  the appellants were  included in  the Select  List of  the  year 1983. It  is not  disputed that the Patna High Court as well as this Court had issued directions to consider the question of inclusion  of appellants  name in the Select List for the year  1983   and  pursuant  to  such  directions  the  State Government having  re-considered  the  matter  included  the names of  the appellants in the Select List. Though the list in question  was made  in the  year  1985  pursuant  to  the direction of this Court and was approved by the Union Public Service Commission  in 1986 but in the eye of law it must be deemed to  be a list for the year 1983. When the appropriate authorities committed error in not preparing the Select List for  the  year  1983  and  the  appellants  being  aggrieved assailed the  same and  ultimately this  Court  directed  to reconsider the matter, thereafter, the appropriate authority reconsidered the  matter and included the appellants name in the Select  List for  the year  1986, in  the eye of law the said Select  List can  be held to be the Select List for the

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year 1983.  Consequently the  year of allotment of those who were included  in the  said list has to be determined on the basis that  they were  in the  Select List  of the year 1983 though factually  the list was prepared in the year 1985 and was approved  by the  Union  Public  Service  Commission  in February, 1986.  The Union  Government,  therefore,  in  our considered opinion  committed serious  error in  determining the year  of allotment  of the  appellants on the basis that they were  in the  Select List from the date of approval  of the  list  by  the  Union  Public  Service  Commission  i.e. February 1986. The impugned order of the Tribunal as well as the order  of the  Union Government  determining the year of allotment of  the appellants  are hereby  set aside  and the Union Government  is directed  to re-determine  the year  of allotment of  the appellants  on the  premise that they were included in  the Select List of 1983. Further the appellants are entitled  for consequential benefits and the same may be given to them. This may be done within three months from the date of receipt of this order. The appeal is accordingly allowed but  in the  circumstances without  any order  as to costs.