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SUPREME COURT OF INDIA
G.B.Pattanaik : S.C.Agrawal
O.S.Singh
Versus
Union Of India
Case No. : .
Date of Decision : 10/12/95
Advocates Appeared: Gautam Romesh : Gupta Manjula : Kirti Vishwa : Parameswaran P. : Parmeshwaran P. : Rao A.Subba : Reddy V.R. : Swarup Pramod
Employment and Service - Against the judgment - Appointment to the service – Condo nation of delay - Tribunal on an analysis of the provisions of the Seniority Rules, more particularly Rule 3(3)(b) thereof came to the conclusion that having started continuous in the senior post his year of allotment must be determined by finding out who was officer recruited to the service in accordance with Rule 7 who officiated continuously in a senior post from a date earlier than - He having found that was officer amongst the direct recruits who had officiated continuously in a senior post earlier to 30/3/1978, the year of allotment must be determined according to the year of allotment - And as such, the tribunal held that it must be 1973. Consequently, the tribunal held to be senior – Held, Said construction would also govern a case, like the present one, where an officer has been wrongly denied promotion to the Service and the said wrong is rectified later by the competent authority by appointing the officer who was denied promotion with effect from the date on which he should have been so appointed by way of promotion. Such an officer may have officiated in a senior post prior to the passing of the order of substantive appointment but he may not have officiated in a senior post prior to the date from which he has been substantively appointed. Once the error in the matter of his promotion is rectified and he has been given substantive appointment from an anterior date on which he should have been promoted the year of allotment has to be assigned to him having regard to the date from which his substantive appointment becomes operative even though he did not officiate in a senior post prior to the said date of substantive appointment. His year of allotment cannot be depressed on the basis that he had started officiating on a senior post from a date later than the date with effect from which he has been substantively appointed to the Service – Court arrive at the same result if we proceed on the basis that there is a casus Rule 3 matter of assignment of year of allotment for an officer appointed by promotion who has not officiated prior to his substantive appointment to the Service and the said omission cannot be filled by the court by judicial interpretation - This would only mean that the Seniority Rules are silent in the matter of assignment of year of allotment of such a officer -In that event the competent authority can assign the year of allotment to such an officer in exercise of its administrative discretion - Order dated passed by central government assigning the year of allotment to has to be treated as passed by the central government in exercise of its administrative discretion - Only question that would arise in respect of such an order is whether in the exercise of its administrative discretion the central government has acted arbitrarily - Having regard to facts and circumstances of the case, it is not possible to take view that in the matter of assignment of year of allotment of central government acted arbitrarily – Appeal allowed
Judgment
G.B. PATTANAIK, J.
(1) DELAY condoned.
(2) LEAVE granted.
(3) THESE two applications are directed against the judgment dated 24/5/1993 of the central Administrative tribunal in OA No. 479 of 1986, one at the instance of Union of India and the other at the instance of an employee Shri O.S. Singh. Perennial dispute of determining inter se seniority between a direct recruit and a promotee in the Indian Police Service and the ticklish issue of year of allotment has cropped up again in these two applications. The appellant, Shri O.S. Singh had joined as Deputy Superintendent of Police on 26/11/1965 after being selected by the State public service commission. The recruitment to the Indian Police Service is made under INDIAN POLICE SERVICE (Recruitment) Rules, 1954, (hereinafter referred to as "the Recruitment Rules"). Under Rule 4 thereof, recruitment is made both by competitive examination as well as by promotion of substantive member of a State Police Service. Under sub-rule (2 of Rule 6 of the Recruitment Rules, the initial appointment of person recruited to the Service under clause (a) of sub-rule (1 of Rule 4, shall be in the junior time scale of pay and under sub-rule (3 of Rule 6 the initial appointment of person recruited to Service under clause (b) of sub-rule (1 of Rule 4 shall be in the senior time scale of pay. Thus an officer of the State Police Service on being promoted is recruited in the senior time scale of pay of the Indian Police Service. Rule 9 of the Recruitment Rules provides that the central government may on the recommendation of the State government concerned and in consultation with the Commission, recruit to the Service persons by promotion from amongst the substantive member of a State Police Service in accordance with such regulation as the central government after consultation with the State government and the Commission from time to time make. In pursuance of sub-rule (1 of Rule 9 of the Recruitment Rules, the Regulation has been framed for appointment by promotion to the Indian Police Service called the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as "the Promotion Regulation"). Under the IIIrd Proviso to sub-regulation (2 of Regulation 5 of the Promotion Regulations, a member of the State Police Service is entitled to be considered for being included in the Select List if he is continuing in the State Police Service on a substantive basis and has completed not less than 8 years of continuous service in the post of Deputy Superintendent of Police or any other post or posts declared equivalent thereto by the State government by the 1st day of January of the year in which the Committee meets for preparation of the Select List. The Select List which is approved by the Commission forms the Select List of the members of the State Police Service under sub-regulation (3 of Regulation 7 of the Promotion Regulations. In accordance with Regulation 9 of the said Promotion Regulations appointment to the Indian Police Service is made by the central government on the recommendation of the State government in the year in which the names of the members of the State Police Service appeared in the Select List. for the time being in force. The name of Shri 0.S. Singh had not been included in the Select List prepared during 1974 to 1976, as some adverse remarks were there against him in the CR though one of his juniors in the State Police Service Shri Kali Charan was included in the Select List on 12/7/1974. On a representation being filed for expunction of the adverse remarks by the appellant Shri 0.S. Singh, the government expunged the same on 1/1/1976. Said Shri Singh was allowed to officiate agait a senior post in Indian Police Service with effect from 30/8/1978 after he was brought on to the Select List in the year 1977. As his case had been overlooked for being brought on to the Select List during 1974- 1976 on the basis of c
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