1998 Supreme(SC) 1005

1998(7) Supreme 393
Supreme Court of India
(From CAT, Cuttack)
Mrs. Sujata V. Manohar and G.B. Pattanaik, JJ.
Baidyanath Jena & Anr. etc. -Appellants
versus
Union of India & Ors. -Respondents
Civil Appeal Nos. 4318-19 of 1990
With
C.A. Nos. 4320/1990, 7970-71/1995 and C.A. No. 4894/1998 (@ SLP (C) No. 15753 of 1998 C.C. No. 2706/1989)
Decided on 18-9-1998
Counsel for the Parties :
For the Appearing Parties : (P.N. Misra) Sr. Advocate (NP), Jayant Das, Sr. Advocate, J.R. Das, K.N. Tripathy, R.K. Mehta, Ms. Meera Chhibber, (Hemant Sharma) Advocate for P. Parmeswaran, Ajit Pudussery, (N.R. Choudhary) Advocate (NP), Somnath Mukherjee, and A.K. Panda, Advocates.

Important Point
Inclusion in the select list for one year was not an entitlement to inclusion in the next list for promotion from Orissa State Police Service to Indian Police Service under proviso to Regulation 5(3) of Indian Police Service (Appointment by Promotion) Regulation of 1955.

Headnote:Indian Police Service (Appoint­ment by Promotion) Regulation of 1955-Proviso to Regulation 5(3)-Promotion from the Orissa State Police Service to the Indian Police Service-Preparation of select a list by a Committee under Regulation 5-Select list of 1982 prepared-Full Bench of CAT held that inclusion in the select list of 1982 is required to be considered for the select list of 1983-Whether sustainable in law? (No).

       Held : 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 sub-regulation (2). The proviso to sub-regulation (3) is an exception to the Rule in sub-regulation that those who have attained the age of 54 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 54 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 54 years and whose names were in the previous Select List. (Para 7)

       Consequently held : 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 be 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. (Para 9)

       (ii) Indian Police Service (Regu­lation of Seniority) Rules, 1954-Rule 3(3)-Officiating service in the Indian Police Service of an indivi­dual respondent Raiguru-Conten­tion that his officiating service in Indian police should be counted for seni­ority in the Indian Police Service- Whether sustainable? (No).

       Held : Officiation in a senior post in the IPS Cadre will count for seniority provided such officiation is continuous and the post is not held as a purely temporary or local arrangement. From the available material, it is difficult to see how Raiguru could be said to have held the post in the IPS Cadre continuously till his deemed regular appointment on 1-2-1989. Even if we assume that in the inter­regnum between the different office orders he continued to hold the same post, this cannot be considered as regular officiation in the absence of any order. Moreover, the notifications of 10-1-1986 and 30.4.1988 show that pursuant to those notifications he was given postings in the Orissa Police Service Senior Class I post and later he was also given a posting as Chief Vigilance Officer in the Orissa Transport Company. Therefore, it cannot be said that till 1st of February, 1989 which has been accepted by all sides as the deemed date of regular promotion to the IPS Cadre of Raiguru, he was continuously officiating in a senior post in the IPS Cadre otherwise than as a purely temporary or local arrangement. (Para 16)

       Further held : In the present case it is necessary to establish (1) the period of continuous officiation in the senior post by Raiguru; and (2) the period of continuous officiation, if any, after his inclu­sion in the Select List for each of the relevant years. Such selection and officia­tion must coincide and should be continuous to form a basis for granting seniority. When the first order of 18.6.1982 was issued under Rule 9 Raiguru was on the Select List of 1982. However, when the next order of 22.7.1983 was issued under Rule 9 Raiguru was not in the Select List for that period. There are two subsequent orders of 1985 and 1987 for his continuous officiation. It is not shown whether during this entire period the name of Raiguru was on the Select List. Then in 1986 he was clearly not officiating in a senior post but he was posted in the Orissa Police Service Senior Class I Service and the same is the case with the order of 30th of April, 1988. In the order of 30th of April, 1988, Raiguru is described as holding the post in Orissa Police Service Senior Class I. (Para 22)

       Consequently held : In the light of these facts it is not possible to hold that prior to his deemed date of promotion on 1.2.1989 he was continuously offici­ating in a senior post in the IPS Cadre or that such officiation was at a time when his name was on the Select List because unless such officiation is during the period when the name of the officer is on the Select List it will not count for seniority under Explanation 1 to Rule 3(3)(b). This not being the case here, the respondent-Raiguru cannot be given the benefit of the so called continuous officiation for his seniority. (Para 23)

       Held finally : In the premises respondent-Raiguru is not entitled to claim sen­iority from 23.6.1982 or for any part of the period prior to 1.2.1989. (Para 25)