Baidyanath Jena v. Union of India

Delay condoned.

Leave granted.

These appeals are from a judgment of a Full Bench of the Central Administrative Tribunal dated 29.9.1988 delivered T.A. No.90 of 1987 along with O.A No.146 of 1986. By a subsequent amendment in these appeals, the consequential judgment of the Central Administrative Tribunal dated 6.8.1993 in T.A. No. 90 of 1987 along with O.A. No. 146 of 1986, giving effect to the said Full Bench judgment of the Tribunal and also decoding another issue raised in O.A.No.140 of 1986, has also bean allowed to be challenged. The appeals are filed by the State of Orissa the Union of India as also senior officers of the Orissa State Police Service who were on the Select List, of 1983 for promotion to the Indian Police Service and who have been thereafter promoted to the Indian Police Service. The original application before the central Administrative Tribunal who are now respondents before us were senior officers in the Orrissa State Police Service whose names were included in the Select List of 1962 for promotion to the Indian Police Service; but whose names did not find a place in the Select List of 1983 for promotion to the Indian Police Service.

The promotion from the Orissa State Police Service to the Indian Police Service is governed by the Indian Police Service (Appointment by Promotion) Regulation of 1955 as amended from time to time. Under Regulation 3 of the Indian Police Service (Appointment by Promotion) Regulation of 1955, a Committee is required to be set up as provided therein for preparation of a list of suitable officers for promotion to the Indian Police Service. The preparation of such a list by the Committee is governed by Regulation 5. The relevant provisions of Regulation 5 for our present purposes are 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 included in the list

shall not be more than twice the number of

substantive vacancies anticipated in the

course of the period of twelve months,

commencing from the date of preparation of

the list, in the posts available for them

under rule 9 of the Recruitment Rules, or

5 per cent of the senior posts shown

against items 1 and 2 of the cadre

schedule of each State or group of States,

whichever is greater.

(2) The Committee shall consider for

inclusion in the said list, the cases of

member of the State Police Service in the

order of seniority in that service of a

number which is equal to three times the

number referred to the sub-times the

number referred to in sub-regulation (1) :

Provided that ………..

Provided further that in

computing the number for inclusion in the

field of consideration, the number of

officers referred to in sub-regulation (3)

shall be excluded :

Provided also ………….

(2A) ………………….

(3) The Committee shall not consider the

cases of the Members of the State Police

Service who have attained the age of 54

years on the first day of January of the

year in which it meets :

Provided that a member of the e State

Police Service whose name appears in the

Select List in force immediately before

the date of the meeting of the Committee

shall be considered for inclusion in the

fresh list, to be prepared by the

Committee, even if he has in the meanwhile

attained the age of 54 years.

Provided further …………

(4) …………………….

(5) …………………….

(6) The list so prepared shall be reviewed

and revised every year.

(7) Select List (1) The Commission shall

form the Select List of the members of the

State Police Service.

(2) …………………….

(3) The list as finally approved by the

Commission shall form the Select List of

the members of the State Police Service.

(4) The Select List shall ordinarily be in

force until its review and revision,

effected under sub-regulation (6) of

regulation 5, is approved under

sub-regulation (1) or, as the case may

be, finally approved under sub-regulation

(2).

Provided that …………"

Regulation 5(1), therefore requires the Committee to meet once a year to prepare a Select List. The number of State Police Service members to be included in the Select List depends upon the number of substantive vacancies anticipated in the course of the coming 12 months. The total number on the list is required to be twice the number of such vacancies, Where no vacancies are anticipated in the coming years, the rule requires that the number equivalent to 5 per cent of senior posts shown against item 1 and 2 of the cadre schedule of the concerned State should be considered as the number of vacancies for calculating the number to be included in the Select List. Under sub-regulation (2), for the purpose of inclusion in the Select List the Committee shall consider in the order of seniority three times the number required in the Select List under sub-regulation (1) of Regulation 5.

Accordingly a Select Lilt of 1982 was prepared on the basis of anticipated vacancies in the forthcoming; year. The names of the original applicants before the Central Administrative Tribunal were Included in the Select List of 1982. The applicants were, however, not appointed during the next year 1983. In December 1983, the Committee met and prepared on 27.12.1983 a Select List of 1983. For the forthcoming year there were no anticipated vacancies. Therefore, under sub-regulation (1) of Regulation 5, the Committee considered 5 per cant of the senior posts shown against items 1 and 2 of the cadre schedule for the State of Orissa to decode the number of anticipated vacancies. The number came to three "vacancies". On that basis, the Committee under sub-regulation (2) considered the names of the members of the Orissa State Police Service "In the order of seniority for inclusion in the Select List prepared in 1983. The original applicants did not find a place in the Select List of 1983.

According to the original applicants every person who was on the previous Select List of 1962 is entitles to be considered for inclusion in the Select List for the next year i.e. Select List of 1983. The applicant rely upon the proviso to Sub-ragulation (3) of Regulation 5 in support of their contention. To examine this contention it necessary to look at the scheme of Regulation 5. Regulation 5(1) prescribes the method by which the number of persons on the Select List will be determined. Under sub-regulation (2) for putting the names of persons on the Select List the Committee is required to consider, in the order of seniority, three times the number referred to in sub-regulation (1). the second proviso to sub-regulation (2), however, provides that in considering the names in the field of consideration the officers who are referred to in sub-regulation (3) shall be excluded. Sub-regulation (3), therefore, is meant to exclude certain people who may otherwise, be in the zone of consideration, Sub-regulation (3) provides that those who have attained the age of 54 years on the 1^st day of January of the year in which the Committee meets, shall not be within the zone of consideration. The proviso to sub-regulation (3), however, makes an exception. It provides that if a person who has so attained the age of 54 years was in the previous Select List, his name shall be considered. The Tribunal has interpreted this proviso to mean that every person whose name was in the previous Select List shall be included in the subsequent Select List. This interpretation is not borne out by the scheme of sub-regulation (3) read with subregulation (2). The proviso to sub-regulation (3) is an exception to the Rule in sub-regulation (3) that those who have attained the age of 64 years shall not be included in the Select List. The only exception is in the case of those persons whose names were in the previous Select List and who have attained, in the meanwhile, the age of 64 years. All these persons are required to be considered. The proviso to sub-regulation (3), therefore, covers only those persons who have attained the age of 64 years and whose names were In the previous Select List.

Similar, Regulations for promotion to the Indian Administrative Service were considered in Ramnand Prasad Singh and Anr. etc.v. Union of India and Ors. etc. ([1996)] 4SCC 64). Regulation 6 of the I.A.S. Promotion Rules which is similar to Regulation 6 in the present case, was interpreted for the purpose of deciding who were within the zone of consideration under Regulation 5. This Court said that zone of selection under Regulation 5 consists of three parts, (i) Officers who fall within Regulation 5(2) after excluding all those officers falling under Regulation 3, (ii) Officers who have attained the age of 54 years who are carried forward from the earlier selection list in force, (iii) Officers above the age of 54 who have been deprived of their chance of being considered due to non-holding of meeting of the Selection Committee [second proviso to sub-regulation (3)]. Hence sub-regulation (3) does not provide for considering all those persons who were in the previous Select List for selection to the Select List for the subsequent years. The list has to be prepared in accordance with Regulation 5(2). The only exception is in respect of those in the previous Select List who have attained the age of 54 years.

The original applicants contend that under Regulation 7 of the Indian Police Service (Appointment by Promotion) Regulations, sub-regulation (4) of Regulation 7 provides that the Select List shall ordinarily be in force until its review and revision effected under sub-regulation (60 of Regulation 5. Regulation 5(6) also states that the list has to be reviewed and revised every year. They submit that the residue of the previous list must, therefore, form a part of the new list because Regulations 7(4) and 5(6) talk about review and revision of the Select List. However, Regulation 5 of which sub-regulation (60 forms a part, quite clearly lays down the manner in which the list has to be annually reviewed and revised. A new list has to be prepared every year and the list so prepared Is a reviewed/revised list for that year. From these sub-regulations one cannot spell out that the members on the old list will continue to form a part of the new Select List when the provisions of Regulation 5 are expressly to the contrary. A similar agreement was rejected by this Court in the case of Union of India v. Mohan Lal Capoor & Ors. ([1974] 1 SCR 797, 803). It said that although the new Select List was called a review/revision of the previous list, It was to be prepared on the basis of fresh assessment. Inclusion in the Select List for one year was not an entitlement to inclusion in the next List. The direction given by the Full Bench of the Tribunal, therefore, that the applicants who were in the Select List of 1982 are required to bo considered for the Select List of 1983, cannot be sustained. The consequential directions given by the Tribunal In the impugned judgment of 6.8.1993 also have to be set aside.

The next question that we have to consider pertains to an individual respondent one Raiguru who had filed O.A. No.146 of 1986 before the Central Administrative Tribunal. He contended that his officiating service in the Indian Police Service should count for seniority in the Indian Police Service. Raiguru who was a senior officer in the Orissa State Police Service and was in the Select List for 1982 was given an officiating promotion to the Indian Police Service under on order of 18.6.1982 and he started officiating in the Indian Police Service with effect from 23.6.1982. Despite being on the Select List of 1982 Raiguru, however, could not be promoted regularly to the Indian Police Service with effect from 23.6.1982. Despite being on the Select List of 1982 Raiguru, however, could not be promoted regularly to the Indian Police Service before the Select List of 1983 was finalised. His name was not included in the Select List for 1983, Thereafter by an office order dated 22.7.1983 Raiguru was again allowed to officiate against a post of Additional S.P. in the Inidan Police Service cadre for a period not exceeding three months under Rule 9 of the I.P.S. Cadre for a period not exceeding three months under Rule 9 of the I.P.S. (cadre Rules), 1954 was again granted on 5.7.1985.

Thereafter by a notification of 10.1.1986 a number of officers belonging to the Orisaa Police Service including Raiguru were allowed to officiate in Orissa Police Service Senior Class I on ad hoc basis for a period of one year or till the recommendations of the Orissa Public Service Commission was received, whichever was earlier. The appellant was granted a post in the Orissa Police Service Senior Class I as Additional Superintendent of Police, Balasour. However, by an office order dated 16.5.1987 he was again allowed to officiate against a post of Additional S.P. in the I.P.S. Cadre for a period not exceeding three months under Rule 9 of the I.P.S. (Cadre ) Rules, 1954, By a notification dated 30.4.1988, Raiguru who was described there as Orissa Police Service Class I Additional Superintendent of Police, Bolangir, was transferred and his service were placed at the disposal of Commerce and Transport (Transport) Department for his posting as Chief Vigilance Officer under the Orissa Transport Company Limited, Berhampur. These orders show some postings in the I.P.S. Cadre under Rule 9 and at least two postings in the Orissa Police Service (OPS) Cadre or elsewhere during the period 23.4.1982 to 30.4.1988.

Under an order of the Central Administrative Tribunal dated 19.3.1990 in O.A.No. 97 of 1989 filed by Raiguru, (who seems to have a penchant for filing OAS) the Tribunal has given a deemed date of 1^st of February, 1989 as the date of regular promotion of Raiguru to the I.P.S. Cadre. This date has not been challenged. Raiguru has claimed that his officiating service in the I.P.S. Cadre from 23.6.1982 should count for seniority in the I.P.S. Cadre which relief has been granted to him.

To examine the question of seniority it must firstly, be borne in mind that during the period 23.6.1982 untill 1.2.1989, the deemed date of promotion to the I.P.S. Cadre, Raigur's appointment to the I.P.S. Cadre was only temporary and in an officiating capacity under Rule 9 of the I.P.S. Cadre Rules. Rule 9 of the Indian Police Service (Cadre) Rules, 1954 provides as follows :-

"Temporary appointments of non-cadre

officers to cadre posts, (1) A cadre post

in a State may be filled by a person who

is not a cadre officer if the State

Government "or any of its Heads of

Department to whom the State Government

may delegate its powers of making

appointments to cadre posts", is satisfied

–

(a) that the vacancy is not likely to last

for more than three months or

(b) that there is no suitable cadre

officer available for filling the vacancy;

Provided where a cadre post is

filled by a non-Select List officer, or a

Select List officer who is not next in

order in the Select List, under this

sub-rule, the State Government shall

forthwith report the fact to the Central

Government together with the reasons for

making the appointment."

Therefore, office orders of 22.7.1983, 5.7.1985 and 16.5.1987 are all office order of temporary appointment to a cadre post in the I.P.S. and the same is the position with regard to the first order of 18/23.6.1982.

The seniority in the Indian Police Service (I.P.S.) is governed by Indian Police Service (Regulation of Seniority) Rules, 1954 (hereinafter referred to as the Seniority Rules). Under Rule 3(1) every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in the said Rule. Sub-rule (3) of Rule 3 is as follows :-

Sub-ru1e(3) of Rule 3: The year of

allotment officer an officer appointed to

the Service after the commencement of

these rules shall be –

(a) where the officer is

appointed to the Service on the results of

a competitive examination the year

following the year in which such

examination was held;

(b) where the officer is

appointed to the 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 who officiated continuously

in the senior post from a data earlier

than the date of 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 cadre 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.