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PETITIONER: R.   P. KHANNA & ORS.

       Vs.

RESPONDENT: S.A.F. ABBAS & ORS.  ETC.

DATE OF JUDGMENT22/02/1972

BENCH: RAY, A.N. BENCH: RAY, A.N. SIKRI, S.M. (CJ) BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 2350            1972 SCR  (3) 548  1972 SCC  (1) 784  CITATOR INFO :  R          1975 SC1061  (11)  R          1977 SC 451  (8)  R          1979 SC1676  (2)  D          1991 SC1406  (24)

ACT: Indian  Administrative  Service  (Regulation  of  Seniority) Rules    1954,   Rule   3(3)(b)--Year   of   allotment    of promotee--Officiation  in senior post prior to inclusion  of promotee’s   name   in  Select  List  can  be   taken   into consideration only after approval by Central Government  and Union Public Service Commission---Post held by promotee  may be declared equivalent to senior post retrospectively.

HEADNOTE: Rule   3(3)(b)   of  the  Indian   Administrative,   Service (Regulation of Seniority) Rules 1954 laid  down in its  main part  that  the  year of allotment of  an  officer  who  was appointed to the service by promotion ’shall be the year  of allotment of the junior-most among the officers who  entered the   service   by   direct   recruitment   who   officiated continuously  in a senior post from a date earlier than  the date of commencement of such officiation by the former.  The second  proviso to the rule laid down that a promotee  shall be  deemed to have officiated continuously in a senior  post prior  to  the date of inclusion of his name in  the  Select List  prepared  in accordance with the requirements  of  the Indian  Administrative  Service (Appointment  by  Promotion) Regulations, if the period of such officiation prior to that date was approved by the Central Government in  consultation with  the Union Public Service Commission..  The  appellants became  members of the Indian Administrative Service in  the years 1949 and 1950 by direct recruitment.  The  respondents were  initially  recruited to the executive  branch  of  the Bihar State Civil Service and were subsequently in the years 1955 and 1956 promoted to the Indian Administrative Service. The Government of India on 3 September 1958 allotted to  the respondents  the year 1948 and placed them below the  junior most  amongst the direct recruits of the 1948  allotment  in purported  compliance  with  Rule  3(3)(b)  aforesaid.   The appellants  thereupon  made a representation  to  the  Union

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Government  as  a result of which the  Union  Government  by order  dated 20 September 1967 revised the seniority of  the promotees  and  allotted to some of the promotees  the  year 1950 and to others the year 1952.  In making this order  the Government  of India agreed with the Ministry of Law in  its view  that rule 2(g) of the Seniority Rules did  not  permit retrospective  declaration  of  a post as  equivalent  to  a senior  post within the meaning of Rule 3(3)(b) as had  been done by the State Government in the case of the respondents. The  respondents  challenged the  Union  Government’s  order dated  20  September  1967 in the High  Court.   That  Court quashed the said order and directed that the promotees would continue  to hold the year of allotment assigned to them  in the  year  1958.   In appeal to this  Court  by  the  direct recruits the questions that fell for consideration were  (i) whether  the  period of officiation in a senior  post  by  a promotees  prior to the inclusion of his name in the  Select List could be taken into consideration without the  approval of  the  Central  Government and the  Union  Public  Service Commission  as required by Rule 3 (3) (b); (ii) whether  the State Government was authorized to retrospectively declare a post as equivalent to a ’senior post’; (iii) 549 whether  in the circumstances of the, ease the order of  the High Court restoring the year 1948 as the year of  allotment for the respondents was right. HELD  :  (i)  The  Select List  for  the  promotion  of  the respondents was finally approved by the Union Public Service Commission  on  26  December 1955.  Rule 3 (3)  (b)  of  the Regulation  of Seniority Rules, 1954 speaks of  approval  by the Central Government in consultation with the Union Public Service Commission of the period of the officiation prior to the date of the inclusion of the, names of the promotees  in the  select list.  This approval as contemplated in  rule  3 (3)  (b)  is  a specific approval and  is  directed  to  the particular  matter mentioned therein as to whether there  is approval of the period of officiation prior to the inclusion of  the names in the select list.  On the materials  in  the present  appeals  it  could not be  held  that  the  Central Government gave any approval in- consultation with the Union Public Service Commission within the meaning of rule 3 (3  ) (b)  so as to enable the promotees to have the,  benefit  of the period of officiation prior to the date of the inclusion of their names in the select list. [556H-557C] D.R.  Nim, I.P.S. v. Union of India, [1967] 2 S.C.R.  325 and  State  of Orissa & Anr. v. B. K.  Mohapatra,  [1970]  1 S.C.R. 266,applied. (ii)The contention on behalf of the direct recruits that it is not open to the State to make a retrospective declaration with  regard to posts being made equivalent to senior  posts was,  however, unacceptable. (Reasons discussed.) The  State Government   has   power  to  make  such   a   retrospective declaration.   The  order of the Union Government  dated  20 September 1967 which directed the years of allotment on  the basis that there could not be any retrospective  declaration of equivalent post could not be sustained. [557C-559H] (iii)The  High Court directed that the  promotees  must continue  to  hold ’ranks as assigned to them  in  the  year 1958.   This order of the High Court must be set  aside  for the reason that the year of allotment must now be determined by  the approval of the Central Government  in  consultation with the Union Public Service Commission. [560A]

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JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  565  and 1470 to 1474 of 1970. Appeals  from the judgment and order dated November 7,  1969 of  the  Patna High Court in Civil Writ  Jurisdiction  Cases Nos. 853, 854 and 877 to 880 of 1968. Basudeo Prasad, R. B. Datar and S. N. Prasad, for the appel- lants (in all the appeals). Lal  Narain Sinha, Advocate-General for the State of  Bihar, C.  K.  Daphtary and U. P. Singh, for respondent No.  4  (in C.A. No. 565 of 1970), respondent No. 2 (in C.A. No. 1473 of 1970)  and respondent No. 3 (in C.As. Nos. 1470 to 1472  and 1474 of 1970). M.C.  Chagla, Gobind Das and S. P. Nayar, for  respondent No.  3 (in C.As. Nos. 565 and 1473 of 1970)  and  respondent No. 2 (in C.As. Nos. 1470 to 1472 and 1474, 1970). 550 C.K.  Daphtary,  S.  C. Agarwal, R. K.  Garg  and  V.  J. Francis, for respondent No. 1 (in C.A. No. 1470 of 1970). S.C.   Agarwal,  R.  K.  Garg  and  V.   J.-Francis   for respondents  Nos.  1  and 2 (in C.A. No. 565  of  1970)  and respondent No. 1 (in C.As. Nos. 1471 to 1474 of 1970). The Judgment of the Court  was delivered by Ray,  L-These six appeals are by certificate from the  judg- ment  dated  7  November, 1969 of the High  Court  at  Patna quashing  the  order  of the Government of  India  dated  20 September,  1967,  and directing that the  respondents  must continue to hold rank as assigned to them in 1958. The  appellants and the respondents are now members  of  the Indian Administrative Service.  For the sake of brevity  the appellants  can  be  described as direct  recruits  and  the respondents   as  promotees.   The  direct   recruits   were appointed to the Indian Administrative Service in the  years 1949  and 1950 as a result of competitive  examination  held for   recruitment  of  candidates  to  that  Service.    The promotees  were initially recruited to the executive  branch of  the Bihar State Civil Service and were  subsequently  in the   years   1955   and  1956  promoted   to   the   Indian Administrative Service. The  controversy  in  the  present  appeals  is  as  to  the seniority  between  the direct recruits  and  the  promotees under  the  Indian  Administrative  Service  (Regulation  of Seniority) Rules, 1954. The Government of India on 3 September, 1958 allotted to the promotees  the  year 1948 and placed them below  the  junior most amongst the direct recruits of the 1948 allotment. The  direct recruits thereafter made representation  against the decision of the Government of India.  Eventually, on  13 January,   1965   the   State  of   Bihar   forwarded   the. representation  of the direct recruits to the Government  of India  against the decision made by the Government of  India in  the  year 1958.  On 4 January. 1966  the  Government  of India took a tentative decision to allow the  representation of  the  direct  recruits on the ground  that  the  previous decision was on wrong facts and on wrong interpretation. On  14  April, 1967 the State of Bihar  represented  to  the Government  of  India to reject the  representation  of  the direct recruits on the ground that the facts alleged by  the direct  recruits  were  wrong.  On 20  September,  1967  the Government  of India however allowed the  representation  of the  direct  recruits  and  revised  the  seniority  of  the promotees  and  allotted to some of the promotees  the  year 1950 and to some of the promotees the year 551 1952  as mentioned in the letter of the Government of  India

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dated 20 September, 1967 set out hereunder:-               "The   matter   was   further   examined    in               consultation  with the Ministry of, Law,,  who               have reiterated their earlier advice and  said               that rule 2 (g) of the Indian  Administrative               Service (Regulation of Seniority) Rules,  1954               does  not permit retroactive declaration of  a               post equivalent to a senior post of the I.A.S.               The  declaration made by the State  Government               in the present case cannot have  retrospective               operation.     It   will   have    prospective               operation.   The  Government  of  India   have               therefore  decided to revise the seniority  of               the  officers concerned.  It will appear  from               the attached statement that the relevant dates               for the purposes of fixation of Seniority will               be 26 December, 1955 in the case of Shri S. C.               Mishra,  S. A. F. Abbas, R. S. Mandal,  S.  K.               Sinha and S. K. Chakravarty; 1 February,  1956               in  the case of Shri S. Sahay and 17  October,               1956  in  the case of S/Shri  Ramanand  Sinha,               Anwar  Karim, R. C. Sinha, S. K. Ghosh and  M.               Alam.  As Shri M. K. Mukherjee the  seniormost               regular   recruit   of  1950   batch   started               officiating continuously in senior posts  with               effect  from 2 May, 1955 a date  earlier  than               the relevant dates of S/Shri S.     C. Mishra,               S. A. F. Abbas, R. S. Mandal, S. K. Sinha, S. K.               Chakravarty,  N. P. Sinha and S. Sahay,  these               ,officers may be re-allotted to the year  1950               and  may  be placed before Shri S.  D.  Prasad               (RR-1950) and above Shri P. S. Appu (RR-1951).               Shri  N.  Nagamani,  the  seniormost   regular               recruit  of  1952  batch  started  officiating               continuously in senior posts earlier than  the               relevant dates of S/Shri Ramanand Sinha, Anwar               Karim, R. C. Sinha, S. K. Ghosh, and M.  Alam.               These  officers  may be allotted to  the  year               1952  and  may be placed below Shri  K.  I  K.               Srivastava (RR-1952) and above Shri R. B.  Lal               (SCS7SR-1952)". The  promotees impeached the Government of India  Memorandum dated 20 September, 1967 principally on the ground that  the Government  of  India-was wrong in holding that it  was  not competent  to  the State of Bihar to  make  a  retrospective declaration  of a post as equivalent to a cadre  post.   The promotees  succeeded  in  the High Court.   The  High  Court quashed the order dated 20 September, 1967 and directed that the  promotees would continue to hold the year of  allotment assigned to them in the year 1958. The Indian Administrative Service (Regulation of  Seniority) Rules, 1954 formed the bone of contention between the direct 552 recruits  and  the promotees.  In order  to  appreciate  the rival contentions reference may be made to the origin of the Indian  Administrative  Service and the relevant  rules  and regulations in that behalf. The  origin  of the Indian Administrative Service is  to  be found in the Memorandum of Agreement dated 21 October,  1946 between  the Government of India and the Government  of  the then  Provinces.  The Indian Administrative Service came  to be  constituted  under  the Agreement with  effect  from  21 October,  1946.   Recruitment to the  Indian  Administrative Service  was to be by direct recruitment or by promotion  of members  of  a Provincial Civil Service.  The  Indian  Civil

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Administrative  Cadre Rules, 1950 specified in the  Schedule thereto for each Province the strength of the cadre and  the number  and character of the posts.  In 1951  the  All-India Services Act came into existence.  The All-India Service was defined  to  mean the Indian Administrative Service  or  the Service  known  as the, Indian Police,  Service.   Later  on section  2(a)  was introduced into the 1951 Act  to  include certain other. specified Services as All India Services. Section  3  of the All-India Services  Act,  1951  conferred power on the Central Government after consultation with  the Governments  of the States concerned to make rules  for  the regulation  of recruitment and the conditions of service  of persons  appointed  to All-India Service.  That is  how  the Indian Administrative Service (Cadre) Rules, 1954 came  into existence  repealing the Indian Civil  Administrative  Cadre Rules,  1950.   So  did the  Indian  Administrative  Service (Recruitment)  Rules,  1954 and  the  Indian  Administrative Service  (Regulation of Seniority) Rules, 1954.   Two  other Regulations  which  are  material for the  purposes  of  the present  appeals  are  the  Indian  Administrative   Service (Appointment by Promotion) Regulations, 1955 and the  Indian Administrative   Service   (Fixation  of   Cadre   Strength) Regulations, 1955.  The Promotion Regulations, 1955 were  in exercise of the rule making power under rule 8 of the Indian Administrative  Service  (Recruitment)  Rules,  1954.    The Fixation  of Cadre Strength Regulations, 1955 were  made  in exercise  of the rule making power conferred on the  Central Government  by rule 4 of the Indian  Administrative  Service (Cadre)  Rules.  The 1954 Cadre Rules defined cadre post  to mean any of the posts specified in item I of the Schedule to the   Indian  Administrative  Service  (Fixation  of   Cadre Strength) Regulations.  The Cadre Strength Regulations, 1955 set  out  the strength and the composition of the  cadre  in relation  to the different States including Bihar.  For  the State of Bihar there are 8 items.  The first item relates to senior  posts  under the State Government which are  103  in number and item 2 relates to senior posits under the Central Government  which are 41 in number.  Of these 144  posts  36 are  to be filled by promotion and selection  in  accordance with 553 rule 8 of the Recruitment Rules, 1954.  The other 108  posts are to be filled by direct recruitment.  Items 5, 6, 7 and 8 in  the  Bihar Cadre Strength relate, to  other  posts  with which  the present appeals are not concerned.  Of the  total authorized strength of 211 cadre posts in the State of Bihar 175 are direct recruitment posts and 36 are promotion posts. The Regulation of Seniority Rules, 1954 defines senior  post meaning  a post included and specified under item 1  of  the cadre of each State in the Schedule to the Fixation of Cadre Strength  Regulations,  1955.  The  1954  Recruitment  Rules speak  of  recruitment to the Service inter alia  (a)  by  a competitive  examination, and (b) by promotion.   The  other two  modes  of  recruitment  by  selection  from   emergency commissioned   officers  and  from  persons  who  hold   any substantive  capacity gazetted post and who are not  members of the State Civil Service are not relevant for the  purpose of  the present appeals.  Rule 7 of the  Recruitment  Rules, 1954  relates to recruitment by competitive examination  and rule  8  relates to recruitment by promotion  or  selection. The Promotion Regulations, 1955 prescribed the conditions of eligibility for promotion. In the background of these Rules and Regulations it  follows that  members of a State Civil Service are promoted  to  the Indian  Administrative Service.  The present appeals  relate

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to promotees after the abovementioned Rules and  Regulations came into existence. The  question  of seniority of  promotees  vis-a-vis  direct recruits   is  covered  by  rule  3(3)(b)  of   the   Indian Administrative Service (Regulation of Seniority) Rules, 1954 which is set out hereunder:-               "   The  year  of  allotment  of  an   officer               appointed    to   the   Service   after    the               commencement of these rules, shall be :-               (b)where  the officer is appointed, to  the               Service  by promotion in accordance with  sub-               rule  (1) of rule 8 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 officiating by the former :               Provided  that  the year of  allotment  of  an               officer appointed to the Service in accordance               with   sub-rule,   (1)  of  rule  8   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               554               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 sub-rule (1) of  rule               8 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 Administrative               Service (Appointment by Promotion) Regulations               framed  under  sub-rule (1) of rule 8  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". There  are  two  explanations  which need  not  be  set  out because.  they  are  not relevant for the  purposes  of  the present appeals. The, scheme of the Indian Administrative Service (Regulation of  Seniority)  Rules, 1954 is that every officer  shall  be assigned  a  year  of  allotment  in  accordance  with   the provisions contained therein.  The present appeals raise the question of the year of allotment of the promotees who  were promoted  to  the  Service, after the  commencement  of  the Rules, in the years 1955 and 1956.  Therefore, rule  3(3)(b) applies  to  the case of the promotees vis-avis  the  direct recruits. The Indian Police Service, (Regulation of Seniority)  Rules, 1954  is  the  counter-part  of  the  Indian  Administrative Service (Regulation of Seniority) Rules, 1954.  Rule 3(3)(b) of  the  Indian Police,  Service(Regulation  of   Seniority) Rules  is  in  identical language with  rule3(3)(b)  of  the Indian  Administrative  Service  (Regulation  of  Seniority) Rules.    Rule  3(3)(b,)  of  the  Indian   Police   Service (Regulation  of Seniority) Rules came up  for  consideration

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before this Court in two cases.  These are the decisions  in D. R. Nim, I.P.S. v. Union of India(1) and State of Orissa & Anr.  v.  B. K. Mohapatra (2).  Rule 3 (3) (b) which  is  in common  language the Rules of both the Services and the  two provisos lay down the mode of regulation of seniority of the promotees vis-a-vis the direct recruits.  Promotees will  be given the year of allotment of the junior-most among  direct recruits who officiated in a senior post from a date earlier than  the  date  of commencement of such  officiation  by  a promotee.  The first proviso regulates the seniority between direct  recruits and promotees who started officiating  con- tinuously in a senior post from a date earlier than the date on  which  the  direct recruits so  started  officiating  by prescribing  the mode of regulation of seniority by  ad  hoc determination by the Central Government in consultation with the State Government. (1) [1967] 2 S.C.R. 325. (2) [1970] 1 S.C.R. 255. 555 The  effect of the second. proviso was stated by this  Court in  Nim’s  (1) caw to be this : "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 Union  Public  Service Commission". The  rulings of this Court hold that a promotee  can  obtain the  advantage of officiation continuously in a senior  post prior  to the inclusion of the name in, the Select  List  if the  period of such officiation is approved by  the  Central Government  in consultation with the Union.  Public  Service Commission.  The officiation in a senior post is one of  the indispensable   ingredients  in  the  application  of   rule 3(3)(b).   A  senior post-as defined in  the  Regulation  of Seniority  Rules means a post included and  specified  under item  1  of  the cadre of the State  or  any  post  declared equivalent  thereto by the State Government  concerned.   It may  be  stated  here that the definition  of.  senior  post underwent  change  in  the year  1967  by  notification  No. 27/47/64-AIS(III)-A  dated  17  April,  1967  and  the   new definition  of  senior post came into effect  on  22  April, 1967.  The present appeals are governed by the definition of senior post prior to the year 1967.  The important words  in the  relevant  definition of the senior post are  ’any  post declared equivalent thereto by the State Government’. The memorandum dated 20 September, 1967 was impeached by the promotees on the, ground that the State Government could not make a retrospective declaration with regard to making posts equivalent  to senior posts.  Counsel on behalf,  of  direct recruits contended that the letter dated 9 April, 1958, from the  Chief  Secretary  to the Government  of  Bihar  to  the Secretary  to  the  Government of India,  Ministry  of  Home Affairs,could  not  amount  to a  declaration  of  posts  as equivalent to senior, posts and further that there could not be any retrospective declaration of making posts  equivalent to senior posts.  Council  on  behalf  of the Union of  contended  that   the declaration contemplated with regard to senior post must  be a  formal  and  it was not, open to the State  to,  make,  a retroactive   declaration  because  the  rule   contemplated approval  of  such  officiation  in  consultation  with  the Commission.  other words, it was said that the State,  would first  have  to make. a declaration with  regard  to  making

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posts equivalent  to senior posts and. thereafter  approval of  such    to  officiation  would be  given  by  the  State Government   in   consultation  with  the   public   service Commission. Criticism was made- by counsel for the direct recruits that there  was  no proper Select List and Rao’s letter  dated  9 July, 1958 and (1) [1970]2 S.C.R 325. 556 the  reply  thereto dated 3 September, 1958  by  the  Deputy Secretary  to the Government of India were contended not  to amount to approval by the Central,Government in consultation with  the Union Public Service Commission of the  period  of officiation  prior to the date of inclusion of the names  of promotees  in the Select List.  There was an ad hoc list  in the  year  1954 and the ad hoc list is referred  to  in  the Chief  Secretary’s letter with the letter ’A’.   The  select list was prepared in the year 1955 and is referred to in the Chief Secretary’s letter with the letter "B’.  In the  Chief Secretary’s letter the date of officiation of the  promotees was  proposed  by the State Government to  be  28  December, 1954.   The date of officiation in the senior scale  by  the promotees as agreed to by the Government of India was  shown in  that letter as some time in the month of  October,  1955 with regard to three promotees and in the month of December, 1955 with regard to the fourth promotee.  With regard to the other  three  promotees  no date was shown  as  having  been agreed to by the Government of India.  The State  Government proposed  with  regard to some of the  promotees  that  they should  be allowed the benefit of officiation from the  time of  the inclusion of their names, in the ad hoc list in  the year 1954.  The Deputy Secretary to the Government of  India by   letter   dated   3   September,   1958   accepted   the recommendation  of the State Government with regard  to  the promotees and allotted to them the year 1948 and placed  the promotees  below  Shri B. S. Srivastava who was  the  junior most  among  direct recruits- who  had  started  officiating continuously  in  a senior post earlier  than  28  December, 1954.   The impeached circular dated 20 September, 1967  did not allow retrospective declaration of equivalent posts  and therefore  the  year of allotment was no longer  1948.   The High   Court   held  that  there  could   be   retrospective declaration and thus in effect restored 1948 as the year  of allotment. The  Government of India by the letter dated  20  September, 1967 which is impeached by the promotees changed the year of allotment of the promotees from 1948 to 1950 with regard  to the  first three promotees and to the year 1951 with  regard to the fourth promotee and the year 1952 with regard to  the other  two  promotees and placed these promotees  below  the direct  recruits  of those batches who  started  officiating continuously in a senior post earlier than the date of  such officiation by the promotees. On  these  materials  it appears that the ad  hoc  list  was prepared  with  the  approval of the  Union  Public  Service Commission  on  28 December, 1954 and the  Select  List  was finally approved by the, Union Public Service Commission  on 26  December, 1955.  The select list was the  list  prepared for appointment of the promotees by promotion to the  Indian Administrative  Service.  Rule 3(3)(b) of the Regulation  of Seniority Rules, 1954 speaks of approval by 557 the  Central  Government,  in consultation  with  the  Union Public Service Commission of the period of officiation prior to  the date of the inclusion of the names of the  promotees

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in  the select list.  This approval as contemplated in  rule 3(3)(b)  is  a  specific approval and  is  directed  to  the particular  matter mentioned therein as to whether there  is approval of the period of officiation prior to the inclusion of  the names in the select list.  On the materials  in  the present  appeals  we  are unable to hold  that  the  Central Government gave any approval in consultation with the  Union Public,  Service Commission within the meaning of rule  3(3) (b) so as to enable the promotees the benefit of the  period of  officiation prior to the date of the inclusion of  their names in the select list. The  contention on behalf of the direct recruits that it  is not  open to the State to make a  retrospective  declaration with  regard to posts being made equivalent to senior  posts is  unacceptable.  From the point of view of workability  of the rule as well as the circumstances and the conditions  of service  it  may  not always be  practicable  to  make  such prospective declaration.  It is only when the Government has found  that  it is necessary or desirable  to  declare  such posts equivalent to senior posts that the Government will do so. That will be usually possible after the Government  will have considered several factors, namely, finance,  structure of the service, the personnel fit for undertaking the  post. Normally,  the  promotees obtain promotion  from  the  State Civil  Service after long service.  That is why rule  3  (3) (b)  of  the Regulation of Seniority Rules  is  designed  to arrive  at a fair adjustment of the competing claims of  the direct recruits and the promotees.  To hold that a  promotee could not get the benefit of officiation unless the post was declared  as  equivalent to a senior cadre post  before  the promotee was appointed to officiate might defeat the  policy of   the,  Government.   A  promotee  may   be   officiating continuously for a long period and his name may be  included in  the  select list after some time.  Again  a  person  who officiates continuously for long time may thereafter be  not included in the select list.  Such a person might deprive  a person who would otherwise be found suitable for appointment by  promotion after similar officiation in a  similar  post. It  is  only  when the State Government  finds  that  it  is desirable  to declare the post equivalent to a  senior  post inter  alia by reason of the efficiency of the person  which has  entitled  him  to  promotion  that  the   consequential necessity  arises  for  giving  him  that  senior  post   by requisite  declaration  of a senior post.   A  retrospective declaration  therefore is in the scheme of things  practical as well as reasonable. The  basic  idea of declaration of post as equivalent  to  a senior  post is that it is treated as a post of  equal  rank and  responsibility.  Rule 3(3)(b) is designed to  strike  a balance. between conflicting 558 claims.   When  a  promotee with the background  of  a  long continuous  officiation gets promotion it is in the  fitness of things that the period of such officiation is not lost to him.   The  necessary check is supplied by approval  by  the Central  Government  in consultation  with  the  Commission. There will be two sources charged with the responsibility of approval of the period of officiation prior to inclusion of, the name in the select list. A  retrospective declaration that a post is equivalent to  a senior  post  really amounts to declaration of  an  existing fact.  It is that the Personwho has officiated  continuously for  a  long time is allowed the benefit of  a  senior  Post prior to the appointment by promotion of such officer to the Cadre  of  the Indian Administrative  Service.   Ordinarily,

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under  Cadre Rules a non-cadre officer cannot hold  a  cadre post  excepting for short time of three months and if‘it  is for  a  longer period not without approval  by  the  Central Government.  Therefore there is no occasion for  declaration by the State Government of a non-cadre post as equivant to a cadre post.  The question of declaration arises only for the purpose of giving the promotee the benefit of the period  of officiation  prior  to  promotion.   The  use  of  the  word ’deemed’  in  rule 3 (3)(b) of the Regulation  of  Seniority Rules indicates that the Government has the power to make  a retrospective declaration because it is only after promotion that there is any occasion to consider whether the period of offication  prior to promotion will be counted for  purposes of seniority. The  harmonious  construction of the definition  of  ’senior post’  occurring  in the 1954 Cadre Rules  along  with  rule 3(3)(b)  of  the  Regulation  of  Seniority  Rules  is  that promotee  will  by a legal fiction obtain advantage  of  the period of officiation first by the declaration and second by the approval of the Central Government  in consultation with the  Union  Public  Service  Commission.   It  is  not   the declaration  but  the approval which  introduces  the  legal fiction. There  is  an apprehension  that  retrospective  declaration might  cause-mischief  in the sense that it would  enable  a promotee  to obtain seniority as against a  direct  recruit. The  apprehension  is  unmerited  because  promotees  obtain promotion  after long service and that is why, the  year  of allotment of promotee is below the junior most among  direct recruits who continuously officiated in a senior post from a date   earlier  than  the  date  of  commencement  of   such officiation by the promotee.  Again, there may be a salutary reason to defend a retrospective declaration because a pros- pective  declaration  by  the State Government  may  not  be acceptable to the Central Government by not giving  approval of the period of officiation prior to the date of  inclusion of  the names in the, select list.  There is no  time  limit fixed with regard to approval by the 559 Central Government.  Therefore, a retrospective declaration, will  be  under  the  check  of  approval  by  the   Central Government  and  such approval will always act as  a  safety valve.,  against  any  abuse or  mischief  of  retrospective declaration. It  is  important to notice that the definition  of  ’Senior post’ has undergone change in the year 1967.  The  amendment of  the  definition has brushed away the  necessity  of  any declaration  by  the  Government  of  a  post  being   made. equivalent  to senior cadre, post. also deleted  the  second proviso  to  rule 3(3) (b) of the  Regulation  of  Seniority Rules.  In place of the second proviso a new explanation has been  added.   The explanation states that in respect  of  a promotee  the period of 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 List, or from the date of his officiating appointment  to  such senior post whichever is  later.   The declaration of a post to be equivalent to a senior post  and the approval of the Government of India in consultation with the  Commission for allowing a promotee the benefit  of  the period  of continuous officiation prior to the inclusion  of his  name in the Select List are all obsolete now.   One  of the  reasons  for  the changes may  be  that  a  prospective declaration might give rise to show of preference or  favour to some chosen persons who might not turn out to be suitable

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person  to  fill  that post.   Again,  the  disadvantage  of prospective declaration may be that the Government might  be saddled  with the problem of a declaration  in  anticipation and  later  finding out the absence of necessity of  such  a post or even of not finding a suitable person for  occupying such  a post.  The soundness of a retrospective  declaration rests  on the consideration that not only will the  promotee by  that  time have been tried and tested in that  post  but also his promotion would indicate the benefit of the  period of  continuous officiation which earned promotion  for  him. To  deny  a retrospective declaration would in the  case  of promotion  of persons from State Civil Service deprive  them of   the   opportunity  of  enjoyment  of  the   period   of officiation. For these reasons, we uphold the judgment of the High  Court that  the memorandum dated 20 September, 1967  which  stated that the State Government could not retrospectively  declare a post to be equivalent to a senior post was bad.  The State Government   has   power  to  make  such   a   retrospective declaration.  The order dated 20 September, 1967 which  also directed  the  years of allotment on the  basis  that  there could  not  be any retrospective declaration  of  equivalent post cannot be sustained. The  High Court however further directed that the  promotees must continue to hold ranks as assigned to them in the  year 1958 560 This  order  of the High Court is to be set aside,  for  the reason  that  the  year of allotment will  now  have  to  be determined  by  the approval of the  Central  Government  in consultation with the Union Public Service Commission. The appeals are therefore dismissed in so far as they relate to quashing of the order of the Central Government dated  20 September, 1967.  The appeals are allowed setting aside  the order of the High Court that the promotees would continue to hold  ranks  as assigned to them in the year 1958.   In  the facts  and circumstances of the case, parties will  pay  and bear their own costs. G.C.                         Appeals allowed. 561