REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITON

CIVIL APPEAL NOs.                    OF  2008 (Arising out of SLP (C) Nos.20365-20367 of 2005)

Union of India …Appellant

Versus

K.H. Srinivasan  & Ors. …Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  in  this  appeal  is  to  the  order  of  a  Division

Bench of the Karnataka High Court allowing the writ petitions

by directing as follows:

“This takes us to the kind of relief that we may grant in these writ petitions, having regard to the  subsequent  developments  brought  to  our notice.  It is seen that if the selection committee were to conduct separate  selection process by drawing up separate list to fill up one vacancy that  occurred  in the year  1998,  the appellant alone  could  have  been  selected  to  I.P.S. inasmuch  as  the  other  two  candidates  who could  have  come  under  zone  of  consideration were admittedly found to be 'unfit'. Of the three selected  candidates,  Sri  S.S.  Annegowda, Petitioner  in  Writ  Petition  No.  14842  of  2001 died during the pendency of  the writ  petition. Since,  the  two  others  including  Sri S.S.Annegowda  who  would  have  come  under zone of consideration with regard to the vacancy that occurred during the year 1998 are found to be unfit, they would be unfit for consideration even with regard to the two vacancies that arose in  the  year  1999.  In  that  view  of  the  matter, there is no need to disturb the appointment of the two writ petitioners to the I.P.S. viz.,  K.H. Srinivasan (Petitioner in W.P.No.14837 of 2001) and, H.N.Siddanna (Petitioner in W.P.No.14843 of 2001.

In the result, we dispose of these writ petition, and, in substitution of  the impugned order  of the Tribunal, we direct the official respondents to appoint the applicant B. Jkamalanabhan to the IPS against the vacancy that occurred in the year 1998 with effect from 18.01.2000, the date of the Notification impugned before the Tribunal with all  consequential  benefits,  pecuniary  and otherwise, flowing therefrom.  In the facts and circumstances of the case, the parties shall bear their respective costs.”

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3. Before the High Court it was urged by the respondents as

follows:

“The  fourth  respondent,  namely,  Sri  B. Kamalanabhan in Writ  petition No.  14837 of 2001 is the applicant in O.A. No. 655 of 2000 (hereinafter  referred  to  as  the  ‘applicant’  for the sake of convenience).   The applicant was initially  appointed  as  Deputy Superintendent of Police, a Group A Junior Scale Post in the Karnataka  State  Police  Service  (hereinafter referred to as ‘KSPS’)  in the year 1982.  The applicant was promoted as superintendent of police,  a  Group  A  Senior  Scale  Post  in  the KSPS in the year 1991.  We were told that the applicant retired from service on attaining the age of  superannuation on 31st May,  2003  at the age of 58 years.”

4. According to learned counsel for the appellant the effect

of the amendment to the Regulations in 1997 and scope and

ambit of Regulation 5 has not been kept in view by the High

Court. The Regulations are Indian Police Service (Appointment

by Promotion) Regulations, 1955 (in short the ‘Regulation’).   

5. Learned counsel for the respondents on the other hand

supported the judgment of the High Court.

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6. It  appears  that  the  High  Court  placed  reliance  on the

decision of this Court in Syed Khalid Rizvi & Ors. v. Union of

India & Ors. [1993 Suppl. (3) SC 575] and  Union of India &

Ors. v. Vipinchandra Hiralal Shah [1996(6) SCC 721].  Stand

of the appellant-Union of India with the relevant Regulations

have  been  amended with effect  from 1997  by Indian Police

Service (Appointment by Promotion) Amendment Regulations,

1997 (in short ‘Amendment Regulations’). The High Court did

not consider the effect of the amendment, more particularly,

the  proviso (c)  to Regulation.  Same in its  entirety including

proviso (c) reads as follows:

“5. Preparation of a list of suitable officers:

(1) Each Committee shall  ordinarily meet at intervals not exceeding one year and prepare a list  of  such  members  of  the  State  Police Service, as are held by them to be suitable for promotion  to  the  service.  The  number  of members  of  the  State  Police  Service  to  be included in the list shall be determined by the Central  Government in consultation with the State  Government,  and  shall  not  exceed  the

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number  of  substantive  vacancies  as  on  the first day of January of the year in which the meeting is held, in the posts available for them under  Rule  9  of  the  recruitment  rules.  The date  and  venue  of  the  meeting  of  the Committee  to  make  the  Selection  shall  be determined by the Commission:

Provided  that  no  meeting  of  the  Committee shall  be  held,  and  no  list  of  the  year  in question shall be prepared when,

(a)  there  are  no substantive  vacancies  as on the first day of January of the year in the posts available  for the members of the State Police Service under rule 9 of the recruitment rules; or

(b)  the  Central  Government  in  consultation with  the  State  Government  decides  that  no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under rule 9 of the recruitment rules; or

(c) the  Commission,  on  its  own  or  on  a proposal  made  in  either    the  Central Government  or  the  State  Government,  after considering  the  facts  and  circumstances  of each case, decides that it is not practicable to hold a meeting of the Committee to make the selection to prepare a select list.

Explanation:  In  the  case  of  joint  cadres,  a separate  list  shall  be  prepared  in  respect  of each State Police Service.”

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7. The  stand  of  the  appellant  in  a  nutshell  is  that  Syed

Khalid’s case (supra) will not have any application after 1996.

The un-amended Regulation 5 with the 3rd proviso makes the

position clear that the decision in  Syed Khalid’s case (supra)

and  Vipinchandra  Hiralal  Shah’s case  (supra)  had  no

application after the amendment in 1997.

8. The Rule prior to 1997 amendment reads as follows:

“5. Preparation of a list of suitable officers -

(2)  The  Committee  shall  consider  for inclusion in the said list, the cases of members of  the  State  Civil  Services  in  the  order  of  a seniority  in  that service  of  a  number  which is equal to three times the number referred to in sub-regulation (1):

Provided  that  such  restriction  shall  not apply  in  respect  of  a  State  where  the  total number  of  eligible  officers  is  less  than  three times  the  maximum  permissible  size  of  the Select  List  and in  such a  case  the  Committee shall consider all the eligible officers:

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Provided  further  that  in  computing  the numbers  for  inclusion  in  the  field  of consideration, the number of officers referred to in sub--regulation (3) shall be excluded:

Provided also that the Committee shall not consider the case of a member of the State Civil service unless on the first day of January of the year in which it meets  he is substantive in  the State  Civil  Service  and has completed  not  less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.

Provided also that in terms of any released Emergency  Commissioned  or  short  Service Commissioned  Officers  appointed  to  the  estate Civil Service, eight years of continuous service as required  under  the  preceding  proviso  shall  be counted  from  the  deemed  date  of  their appointment  to  that  service,  subject  to  the condition that such officers shall  be eligible  for consideration  if  they  have  completed  not  less than four years of actual continuous service, on the first day of the January of the year in which the  committee  meets,  in  the  post  of  Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.

Explanation  -  The  powers  of  the  State Government under the third proviso to this sub- regulation  shall  be  exercised  in  relation  to  the members  of  the  State  Civil  Service  of  a constituent  State,  by  the  Government  of  that State.”

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9. The  pre  and  post  amendment  Regulation  5  are

conceptually different.

10. Since the High Court has not considered the effect of the

amendment in 1997 and the applicability of the ratio in Syed

Khalid’s case  (supra)  and  Vipinchandra  Hiralal  Shah’s case

(supra)  thereafter,  it  would  be  appropriate  to  set  aside  the

impugned judgment of the High Court and remit the matter to

it to consider the matter afresh in the light of the amended

Regulations.

11. The appeals are allowed to the aforesaid extent.

…….……..…………… …………J.

(Dr. ARIJIT PASAYAT)

…………………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: September 19, 2008

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