Judgement

SIKRI, J.: This is an appeal by certificate granted by the High Court of Orissa under Article 133 (1) (c) of the Constitution from the judgment and order of the High Court in Writ Petition O. J. C. No. 156 of 1965 filed by B. K. Mohapatra, I. P. S., hereinafter referred to as the petitioner, against the State of Orissa and the Union of India. In this petition the petitioner had prayed for a writ of mandamus directing the respondents to fix the petitioner s seniority and year of allotment as 1948 instead of the year 1951 fixed by the Government of India. The High Court quashed the order of the Union Government, dated July 22, 1958, and directed the Central Government to fix the year of allotment and seniority of the petitioner in accordance with its judgment and the law.

2. In order to appreciate the points raised before us it is necessary to set out the facts somewhat in detail. The petitioner was appointed as Deputy Superintendent of Police in the State of Orissa on January 1, 1947. On January 1, 1950, he was confirmed as D. S. P. In the meantime an agreement had been arrived at between the Central Government and some State Governments, including Orissa, regarding the constitution of an Indian Police Service. This agreement is printed as annexure to the Indian Police Cadre Rules, 1950. This agreement provided for various matters such as the strength, including both the number and character of posts of the Indian Police Service, the method of recruitment to the Service, framing of rules regarding conditions of service, the penalties which could be imposed, etc. We are concerned, in particular, with para 2 (e) and para 7 which are as under:

"2 (e) The rules regulating the promotion of Provincial Police Service Officers to the Indian Police Service shall be framed by the Provincial Government concerned in consultation with the Federal Public Service Commission shall provide that no Provincial Police Service Officer shall be appointed to hold a superior post included in the Schedule for a period of more than one year unless the Federal Public Service Commission have certified that the officer is in every way fit to hold a superior post in the Indian Police Service.

7. In order to ensure that the conditions of service applicable to officers of the Indian Police Service are as uniform as possible, rules regulating pay and other conditions of services will be framed by the Central Government to such extent as may be considered necessary. Provincial Governments will, however, be consulted before the rules are framed, and before they are amended in any manner. In respect of matters not covered by the said rules, an officer of the Indian Police Service will be governed by such rules as may be framed by the Government under which he is for the time being serving and, if no such rules are framed, by the rules applicable to the Central Service/Provincial Police Service Class I, as the case may be."

3. The All India Services Act, 1951, came into force on October 29, 1951. Section 3 enabled the Central Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an All India Service which was defined to include, among others, the Indian Police Service. Section 4 provided:

"All rules in force immediately before the commencement of this Act and applicable to an All India Service shall continue to be in force and shall be deemed to be rules made under this Act."

4. On April 30, 1951, the State Government wrote to the Secretary, Union Punjab Service Commission, that they proposed to hold a meeting of the committee (to be constituted in accordance with R. 2 of the Draft Rules) sometime in June 1951 with a view to prepare a select list of officers suitable for promotion to the Indian Police Service. The Commission was asked to depute one of its members to preside over the said meeting in accordance with Rule 3 of the Draft Rules. On September 6, 1951, the Union Public Service Commission approved