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PETITIONER: RAMCHANDRA DAYARAM GAWANDE

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       10/05/1996

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

CITATION:  JT 1996 (6)   361        1996 SCALE  (5)293

ACT:

HEADNOTE:

JUDGMENT:                  THE 10TH DAY OF MAY, 1996 Present: Hon’ble Mr.Justice K.Ramaswamy Hon’ble Mr.Justice G.B.Pattanaik K.Madhava Reddy, Sr.Adv. A.M.Khanwilkar, Adv. with him for the Appellant V.N. Ganpule, Sr.Adv. R.N. Keshwani and D.M. Nargolkar, Advs. with him for the Respondents.                          O R D E R The following Order of the Court was delivered: Ramchandra Dayaram Gawande V. Union of India & Ors.                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The appellant  appointed to a substantive post in State Police Service was promoted as a Superintendent of Police in senior time  scale on May 11, 1976. He was brought on select list for  the year  1977. He  was given seniority in the All India Police  Service from  promotee quota  w.e.f. April 30, 1978. Since  he was  brought on  the select list on the said date under Rule 3(3)(b) of the IPS (Regulation of Seniority) Rules, 1954  (for short, the ’Rules;), the appellant claimed the year  of allotment,  i.e., 1972 under IPS (Regulation of Seniority) Rules,  1954, which was rejected’ by the Tribunal in the impugned order dated August 18, 1995 in OA No.557/90.      Notice was  issued confining to the question as to what would be the consequence of failure to convene a meeting for selection of  the candidates  and preparation  of the annual seniority list.      It is  stated in  the  counter  af  affidavit  that  on November  23,   1976  in   a  meeting,  Selection  Committee considered the  claims of  a total number of 30 State Police Officers and  ultimately found  9 officers  to be brought on the select  list. Notification  was issued by the Government

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of India  on June  17, 1977  to appoint  8 officers from the select list  of 1976  under Rule  5(1) of  the  IPS  (Cadre) Rules, 1954. By notification dated August 27, 1977, the list of officers  for the  selection was  to be considered but it could not  be considered  on account  of the  strike in  the State and  the meeting  was postponed. Ultimately, a meeting came to  be held  on February  15, 1978  and the  names of 5 persons were listed in the select list of whom the appellant was 5th  in the  order of  merit. The  appellant came  to be given the  seniority from  April 30,  1978 when  the vacancy from promotee quota has arisen.      Shri K.  Madhava Reddy,  learned senior counsel for the appellant, contended  that in  view of  the decision of this Court in  Syed Khalid Rizvi & Ors. vs. Union of India & Ors. [1993 Supp.(3)  SCC 576], it is mandatory on the part of the State to  prepare every  year  the  select  list  of  Deputy Superintendent of  Police to  fill up  vacancies which  have arisen in  the year to tile quota and to promote them to the IPS cadre under Rule 9 of the IPS (Appointment by Promotion) Rules, 1954  which was held to be mandatory. It is incumbent upon the  State Government  to conduct  a meeting and select the officers  and allot  the year of allotment to fulfil the legitimate  expectation   of  the   right  to  consider  for promotion. Though explanation has been sought to be given by the Government  for failure  to hold the meeting, it must be considered that  the appellant  had  lost  the  chances  for promotion and  the year of allotment since the appellant has been continuously  officiating from  the year 1976 and that, therefore, the  year of  allotment of  1973 is  not valid in law. We find no force in the contention.      The  effect  of  the  inter-play  of  IPS  (Recruitment Rules), 1954,  IPS (Cadre)  Rules, 1954, IPS (Appointment by Promotion)  Regulations,   1954  and   IPS.  (Regulation  of Seniority) Rules, 1954 was considered thread-bare in Rizvi’s case by a Bench of 3 Judges to which one of us (K.Ramaswamy, J.) was  a member.  Recruitment to the Indian Police Service is from  two sources,  namely,  direct  recruitment  and  by promotion from  the members  of State Police Service holding substantive posts. No employee has a right to  promotion but has right to be considered for promotion according to Rules. Chances of promotion are not conditions of service but every incumbent of  a  substantive  post  in  lower  cadre  has  a legitimate expectation  for promotion  and to  be considered for promotion  in accordance  with  the  Rules.  Unless  the officer of  a State  Police Service is-brought on the select list and  appointed to a cadre post in accordance with rules , he  does not  acquire right  to assignment  of the year of allotment.   Eligibility   for   consideration   have   been prescribed  in   IPS  (Recruitment   by  Promotion)   Rules. Candidate that  fulfills the  qualifications requires  to be considered for  appointment  by  promotion  as  per  Rule  9 thereof. preparation  of the  select list in accordance with the Appointment  by Promotion Regulations is a pre-condition which requires  to be prepared every year. It was held to be a mandatory  duty. It  subserves the object of the Rules and afford an  equal opportunity  to promotee  officers to reach higher echelons of the service. It would inculcate dedicated service assiduously  discharging the  duties with integrity, honesty,  exhibiting   ability,  straight  forwardness  with missionary zeal  of self-confidence.  The failure to prepare the list  and accord  chances  of  promotion  would  inhibit efficacy  in   service  -   and  generate   dishonesty   and manipulation. Preparation  of annual list and appointment to service gives,  apart  from  equal  opportunity  to  augment efficacy in  service, provides equal chances of promotion to

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the officers  of State  Police Service  to  provide  harmony among  direct   recruits  and   promotees  and   make   them accountable to  proper implementation  of law and order. The regulations require  preparation of select list annually and revision of the list and review thereof from time to time as adumbrated in  the regulations.  It was,  therefore, held in Rizvi’s case  that preparation of the select list every year is mandatory.  The State  Government is  enjoined to account for dereliction  of the statutory duty satisfactorily to the Court.      Regulation  3   of  IPS   (Appointment  by   Promotion) Regulations enjoins  the State  Government to  constitute  a committee consisting  of all the officers enumerated therein to select  the promotees. Under Regulation 5(1), a committee may ordinarily  meet at  intervals not  exceeding  one  year prepare a list of the members of the State Police Service as are found  to be suitable for promotion to the Indian Police Service. The  manner and  methodology of the preparation has been enumerated in the Regulations, the details of which are not material  for the  purpose of  this case.  Regulation  6 mandates the  State Government to forward the select list to the UPSC  for approval along with the records and remarks of the  members   and  also  send  their  observations  on  the recommendations of  the committee  to the UPSC. Regulation 7 requires UPSC  to consider  the service  record  and  it  is empowered to  change the  order of  the merit. As seen under the Appointment by promotion Regulations, the list should be prepared in  the order  of merit  as envisaged  therein. The UPSC, while  considering the order of merit, is empowered to revise the  order and  recommend to  the Government of India for  appointment,   after  obtaining  the  comments  on  the proposed changes from the State Government and consideration thereof. The  modified seniority  lists recommended  by  the UPSC shall  become final  list. The  Union  of  India  shall appoint the  promotee officers  in the order of merit to the vacancies arisen  for their  quota from the list approved by the UPSC. Under Rule 9 of the Recruitment Rules, the Central Government shall  make the appointment in the order in which the names  of the members of the Police, Service appeared in the select list, The select list requires to be changed from time to time by review and revision and that, therefore, the candidate put  in the  select  list  does  not  acquire  any substantive right  to appointment until approval of the list by the  UPSC and  appointment by the Central Government. The inclusion of  a person’s  name in  the select  list  in  any order, therefore,  does not  give that person a vested right to have  his name  in  the  select  list  continued  in  the succeeding years.  The object of preparing select list every year and  revision and review from time to time itself would indicate that  the inclusion of the name in the select lists creates only  inchoit  until  he  gets  his  appointment  in accordance with the rules.      In para  8 of the judgment in Rizvi’s ,case, this Court pointed out  that the  select committee  should consider the eligibility and  suitability of  the members  of  the  State Police  Service   on  the   basis  of   merit,  ability  and suitability. Seniority  will be  considered only where merit and suitability  are approximately  equal and  it should  be prepared the  list of such suitable officers in the order of merit in  each category such as outstanding, very good, good etc. and would send the select list to the State Government. The State  Government with  its comments  should forward the same to  the UPSC for approval. It would, thus, be seen that mere giving  promotion to a State Police Officer and posting him to  a cadre  post does  not cloth him with a right to be

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appointed  with  effect  from  the  year  in  which  he  was temporarily promoted  and posted to cadre post. Inclusion in the selection  list and  appointment in  accordance with the rules are  conditions precedent. An officer including in the merit list  and continuously  officiated in  the cadre post, gets  his  seniority  when  the  vacancies  have  arisen  in proportion to  the percentage  prescribed  to  the  promotee officers from  the date  he was  put in  the select list and appointed in  accordance  with  the  rules  or  continuously officiated in  the cadre  post after  putting in  the select list without  break. The  year of  allotment shall  be  next below the  junior-most direct recruit selected by the direct recruitment continuously  officiated in  a  cadre  post.  In Paragraph 15,  this Court considered the seniority rules and held as under:      "Rule  3(1)   of  Seniority   Rules      adumberated  that   every   officer      shall  be   assigned  the  year  of      allotment   in    accordance   with      Seniority Rules.  Rule 3(3),  which      is relevant  to this case, declares      that the  year of  allotment of  an      officer appointed  to  the  Service      after the seniority rules came into      an officer appointed to the Service      after  the  seniority.  rules  came      into force,  shall be  as  follows:      the year  of allotment  of a direct      recruit officer  shall be  the year      following..the   year    in   which      competitive examination  was  held;      (proviso  omitted)   (ii)   officer      appointed  to   the  Indian  Police      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    (direct    recruit)    who      officiated continuously in a senior      post from  a date  earlier than the      date of  the 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  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."      Similarly, the  Promotion Rules  and Recruitment  Rules were considered in paragraph 16 and stated the law as under:      "It could,  thus, be  seen that  an      officer  appointed  to  the  Indian      Police Service  by  promotion  from      State  Services   to  the   Central      Services in  accordance with Rule 9      of the  Recruitment Rules read with

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    Promotion Regulation 9, his year of      allotment is  that of  the  junior-      most  among   the  direct   recruit      officers       who       officiated      continuously in a senior  post from      a date earlier than-the date of the      commencement of such officiation by      the    former.    The    continuous      officiation   of    the    promotee      officers appointed  under Rule 9 of      the Recruitment  Rules earlier that      the date  on which  direct  recruit      officers started officiation should      be  determined   and  hoc   by  the      Central Government. By operation of      Explanation   1   the   period   of      continuous   officiation   of   the      promotee officer in the senior post      for the  purpose of determining his      seniority should  count  only  from      the date  of his  inclusion in  the      select-list or from the date of his      continuous  officiation   in   such      senior post  whichever is later. As      a consequence,  though the promotee      officer  continues   to   officiate      earlier to  his being  brought into      the  select-list,   he   gets   his      seniority on his appointment to the      senior post  from the date on which      he was  brought  into  select-list,      only from  the date of appointment,      or continuous   officiation without      break whichever is later."      It  would,  therefore,  be  clear  that  the  Committee prepare the  select list  in the  order of merit and forward the same  to the  Stage Government.  It is  the duty  of the State Government  to send the said list with its comments to the UPSC  who in turn finalises the select list and prepares the list  in the  order of  merit. In  case, it  revises the order  of   merit  as  per  law  it  forms  the  final  list Appointment of  the promotee  officer to  the Indian  Police Service by the Central Government are mandatory requirements to claim seniority in the Indian Police Service and the year of allotment.  The Government  have properly  explained  the circumstances in  which the  Committee  could  not  meet  to consider  the   claims  for  selection  of  the  candidates. Preparation of  the list  in the  order of merit approved by UPSC and  appointment to  the post  in accordance  with  the rules was follow thereafter.      In this case, it is not in dispute that a Committee was constituted and  was to  hold the  meeting in  December  but since the  strike of  the  State  Government  employees  was continuing,  the  meeting  was  cancelled.  Ultimately,  the Committee met  in February, 1978 and selected the candidates who are  found to  be eligible  and put  then in  the select list. It  is explained in the counter affidavit filed by the respondents that direct recruits of the year 1976 were given the year  of allotment  of 1977  and  that,  therefore,  the appellant  cannot  get  any  day  earlier  than  the  direct recruits of  the year  1973. The  placement  of  the  direct recruits also  has been  mentioned in  the counter affidavit Under these  circumstances, the  year of  allotment  of  the appellant of  1973 is  not vitiated  by  any  error  of  law warranting interference:

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    The appeals are accordingly dismissed. No costs.