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PETITIONER: NAVNEET RAJAN WASAN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       12/03/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) JEEVAN REDDY, B.P. (J)

CITATION:  1996 SCC  (7) 630        JT 1996 (3)   159  1996 SCALE  (2)699

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      Leave  granted.  Heard  the  learned  counsel  for  the parties.      These two  appeals have  been heard  together  as  they arise out  of a  common judgment  rendered  by  the  Central Administrative Tribunal,  Hyderabad (‘Tribunal’  for  short) disposing of  two original  applications (O.A.  Nos. 823  of 1992 and  919 of 1992). Facts relevant for disposal of these appeals are as under:      Shri N.R. Wasan, the appellant herein, was appointed to the Indian Police Service (IPS) on September 20, 1980 on the basis of Civil Service Examination, 1979 and was allotted to the Andhra  Pradesh Cadre.  Inspite of  his completion  of 4 years of  service on  September 19, 1984, he was however not promoted to  the senior  scale on the ground that he had not passed the language test. Aggrieved by his delayed promotion he filed  an application  before the  Tribunal vide O.A. No. 414  of  1987  seeking  redressal  of  his  grievances.  His application was  allowed by  the Tribunal by its order dated January 13, 1988 with a direction to the Government of India to consider  him  for  promotion  to  the  senior  scale  on completion of 4 years of service in the junior scale subject to the conditions prescribed in the Rules, without insisting on passing  of the  language test. Assailing the above order of the  Tribunal the State of Andhra Pradesh filed a special leave petition in this Court which was dismissed on February 18, 1991.  Thereafter the  Government of  India  decided  to implement  the   direction  of   the  Tribunal  but  as  its implementation was  to affect  the seniority of nine promote officers including  the respondents  No. 4,  5 and 6 herein, (R4, R5  and R6 for short), in that, their year of allotment was to  be changed from 1979 to 1980 they were asked to show cause against  the proposed  revision of the Gradation List. After considering  the representations  submitted  by  those

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officers the  Government of India issued, in accordance with Rule  4   of  the   Indian  Police  Service  (Regulation  of Seniority) Rules, 1954, an Order on June 18, 1992 whereby it allowed senior  time scale to the appellant with effect from September 20,  1984 and  amended the  Gradation List  of IPS officer of  Andhra Pradesh  so as  to place  him above those three respondents.      Assailing the  above Order  R4 and  R5  filed  a  joint application (O.A.  No. 823  of 1992) and R6 filed a separate application (O.A.  No. 919  of 1992) before the Tribunal. In their applications  they  averred  that  all  of  them  were included in  the Select  List of 1983 prepared in accordance with the  Indian Police  Service (Appointment  by Promotion) Regulation, 1955  and that  after such  inclusion they  were promoted to  officiate in senior time scales of IPS Officers with effect  from February  23, 1984,  February 29, 1984 and March 6,  1984 respectively  till  they  were  appointed  in substantive vacancies  in the  post of  IPS Officers  in the month of October, 1984. Resultantly, they contended, in view of Rule  3 (3)  (b) of the Indian Police Service (Regulation of Seniority)  Rules, 1954,  (as it  stood at  the  relevant time) their  seniority was  to be reckoned with reference to the dates from which they officiated in the senior posts and not the  dates of their actual absorption in the substantive vacancies of  IPS Officers.  When so reckoned, their year of allotment would  be 1979  as originally  assigned, and hence the   Gradation    List   did   not   warrant   modification notwithstanding the  appellant’s appointment  in the  senior post with effect from September 20, 1984.      In contesting  the applications the appellant submitted that under  Rule 9  of the  Indian  Police  Service  (Cadre) Rules, 1954  a cadre  post in  a State  may be  filled by  a person who  is  not  a  cadre  officer  only  if  the  State Government or its delegatee is satisfied that the vacancy is not likely  to last for more than three months or that there is no  suitable cadre  officer  available  for  filling  the vacancy.  According   to   the   appellant   the   concerned authorities could  not have  obtained satisfaction  that  no suitable cadre officer was available for filling the vacancy as he  (the appellant) was available and that it was not the case of  the authorities  that  he  was  not  suitable.  The appellant’s next  contention was  that even  if the  initial officiating promotion  of the  above three  respondents  was assumed to  be legal  and valid  its  continuance  beyond  a period of  three months was illegal due to non compliance of sub-rule (2) thereof, which requires the State Government to report  such   extension  to  the  Central  Government.  The appellant also  denied knowledge  of the  three respondents’ claim that  their promotional officiation was in cadre post. The stand of the Union of India, the respondent No.1 (R1) in the applications,  however, on this point was specific as it asserted that  in fixing  the  inter  se  seniority  by  the impugned  order   dated  June   18,  1992,   the  dates   of appointments of  the three  respondents in  the  substantive vacancies  in   the  IPS   posts  were   only   taken   into consideration as  their officiation  after inclusion  in the Select List, was not in cadre posts.      By the  impugned  judgment  the  Tribunal  allowed  the applications of  the three  respondents and  set  aside  the Order dated  June 18,  1992 issued  by R1.  In so doing, the Tribunal placed  strong reliance  on Rule  3 (3)  (b) of the Indian Police  Service (Regulation of Seniority) Rules, 1954 (as it  stood at  the relevant time), which provides for the mode of  assignment of  year of  allotment, and recorded the following findings:

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    "It has  to be  noted that prior to      amendment  in   1987  the  year  of      actual appointment  of  promote  to      the  IPS   was  not   relevant  for      determining the  year of allotment,      if such  promote police officer was      in continuous  officiation prior to      date of  appointment  to  IPS.  The      impugned order  discloses that  the      date of  actual appointment  of the      applicant to the IPS was taken into      consideration for  determining  the      year   of    allotment    of    the      applicants, even  though they  were      in continuous officiation of senior      posts prior  to their  appointments      to IPS.           But in  the counter  filed R-1      it was  stated that  the  dates  of      appointment of  the applicants were      taken into  consideration as  their      officiation was  not in  the  cadre      posts. The  assumption on  the part      of  R   1   that   the   applicants      officiated in Ex cadre senior posts      is not  correct in view of the memo      dated 26.6.1993 of the Secretary to      Andhra Pradesh  State Government in      General   Administration.    Hence,      there is  no need  to consider  for      disposal of these OAS as to whether      the date  of the  inclusion in  the      select list  or the date from which      the  promote   in  officiation   in      senior Ex-cadre  post whichever  is      later   cannot    be   taken    for      determining the  year of  allotment      prior to  amendment  of  Rule-3  in      1987.           It  is   thus   evident   that      29.2.1984 and  20.3.1984 the  dates      from  which  these  two  applicants      respectively officiated  in  senior      posts continuously till the date of      their appointments have to be taken      into  consideration  for  assigning      the year  of allotment  and on that      basis 1979  was originally assigned      and  hence   it  does  not  warrant      modification even  though R  4, Sri      Wasan was in continuous officiation      of senior post from 20.9.1984."                      (emphasis supplied) In impugning  the above  finding, the appellant, who himself argued his  case, submitted  that the  contention he  raised before the  Tribunal relying  on Rule 9 of the Indian Police Service (Cadre)  Rules, 1954 which, according to him, was of crucial relevance  for determining  the issues involved, was not at  all considered  by  it.  Besides,  he  asserted,  no satisfactory or  reliable material  was placed  on behalf of the three  respondents so  as to  entitle  the  Tribunal  to conclude -  as it  did -  that after inclusion in the Select List they officiated in cadre posts.      So far  as the  first grievance  of  the  appellant  is concerned it  must be  said that  it  is  well  founded  and

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genuine. On  perusal of the counter affidavits that he filed before the Tribunal we find that his contest to the claim of the three  applicants-respondents was  principally based  on Rule 9  of the  Indian Police Service (Cadre) Rule, 1954. In spite thereof,  surprisingly however,  the Tribunal  did not even advert to the contentions raised by the appellant, much less meet the same.      As regards  the other  contention of the appellant that those three  respondents did  not officiate  in cadre  posts after  inclusion  in  the  Select  List  -  which  was  also supported by  the respondent  No.1 -  it  has  already  been noticed (in  the earlier  quoted passage)  that the Tribunal negatived the same relying solely upon a memo dated June 26, 1993 issued  by the  Andhra Pradesh  State Government. As on perusal of  the records  we did  not find  any such memo, we enquired of  the learned  counsel for  the three applicants- respondents  about   its  issuance/existence.   The  learned counsel handed  over a  copy thereof to us and on perusal of the same,  we were  surprised to  find that  it was  only  a communication addressed  to the special counsel who appeared for the  State of  Andhra Pradesh  before the  Tribunal.  In other words,  it was  not a formal order which was issued by the State  of Andhra  Pradesh and  filed before the Tribunal supported by  a proper  affidavit, but  was only the written instructions given  by a  client  to  his  lawyer.  We  are, therefore, constrained  to say  that the Tribunal was not at all justified in entertaining the same, far less, basing its decision thereupon.  This apart, the communication, for what it is  worth, does  not support  the conclusion drawn by the Tribunal that  the three concerned respondents officiated in "senior ‘cadre’  post" for it only says that they officiated in ‘senior post’.      For the  foregoing discussion  we must  hold  that  the Tribunal did  not approach  the questions  raised before  it from a proper perspective nor did it take into consideration the plea raised by the appellant; and, on the contrary based its finding  on a  document which was not legally admissible nor properly brought on record. We, therefore, set aside the impugned orders  and remand the applications to the Tribunal for proper  disposal in accordance with law and in the light of the  observations made  hereinbefore. Since, we are told, the  three   concerned  respondents  are  on  the  verge  of retirement  we  request  the  Tribunal  to  dispose  of  the applications as  expeditiously as possible. There will be no order as to costs.