CIVIL APPELLATE JURISDICTION : Civil Appeal No. 371 of 1965Appeal by special leave from the judgment and order dated December 8, 1961 of the Punjab High Court Circuit Bench at Delhi in Civil Writ No, 507-D of 1961. B. R. L. Iyengar, B. Dutta, O. C. Mathur and Ravinder Narain, for the appellant. N. S. Bindra, R. Ganapathy Iyer and R. S. Sachthey, for the respondent. Basudev Prasad, K. Rajendra Chaudhuri and K.R. Chaudhuri, for the intervener. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the Circuit Bench of the Punjab High Court at Delhi, dismissing in limine the petition under art. 226 of the Constitution filed by the appellant, D. R. Nim. The appellant had impugned in this petition an order dated August 25, 1955, passed by the Government of India, (Ministry of Home Affairs)-hereinafter referred to as the impugned order-as being contrary to law and art. 14 of the Constitution. The relevant facts for the determination of the validity of the impugned order are as follows: The appellant was appointed to the U.P. Police Service as a result of a competitive examination held in 1938. In course of time he was appointed officiating Superintendent of Police with effect from June 25, 1947. He continued to officiate till he was appointed to the Indian Police Service against the promotion quota of the Indian Police Service Cadre of Uttar Pradesh with effect from October 22, 1955. By the time he was appointed to the Indian Police Service various Rules and Regulations governing the Indian Police Service had been issued by the Central Government in exercise of the powers conferred by sub-s. (1) of s. 3 of the All India Services Act (LXI of 1951). We are concerned particularly with the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter referred to as the Seniority Rules. The seniority of the appellant has to be determined under these Seniority Rules. The first thing to be done under the Seniority Rules is to determine the year of allotment of the appellant. The appellant claims that a wrong year of allotment has been given to him by the application of the impugned order, which, according to him, is a void order. Rule 3, which deals with the assignment of the year of allotment reads as follows:
"3. Assignment of Year of Allotment.-(1)
Every officer shall be assigned a year of
allotment in accordance with the provisions
hereinafter contained in this rule.
(2) The year of allotment of an officer in
service at the commencement of these rules
shall be the same as has been assigned to him
or may be assigned to him by the Central
Government in accordance with the orders and
instructions in force immediately before the
commencement of these rules:
Provided that where the year of allotment of
an officer appointed in accordance with rule 9
of the Recruitment Rules has not been
determined prior to the commencement of these
Rules, his year of allotment shall be
determined in accordance with the provision in
clause (b) of sub-rule (3) of this rule and
for this purpose, such officer shall be deemed
to have officiated in a senior post only if
and for the period for which he was approved
for such officiation by the Central Government
in consultation with the Commission.
(3) The year of allotment of 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 those Rules who
officiated continuously in a senior post from
a date earlier than the date of commencement
of such officiation by the former:
Provided that the year of appointment 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 date 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
Provided further that an officer appointed to
the Service after the commencement of these
Rules in accor-
dance with rule 9 of the Recruitment Rules
shall be deemed to have officiated
continuously in a senior post prior to the
date of the inclusion of his name in the
Select List prepared in accordance with the
requirements of the Indian Police Service
(Appointment by Promotion) Regulations framed
under rule 9 of the Recruitment Rules, if the
period of such officiation prior to that date
is approved by the Central Government in
consultation with the Commission.
Explanation 1.-An officer shall be deemed to
have officiated continuously in a senior post
from a certain date if during the period from
that date to the date of his confirmation in
the senior grade he continues to hold without
any break or reversion as senior post
otherwise than as a purely temporary or local
arrangement.
Explanation 2.-An officer shall be treated as
having officiated in a senior post during any
period in respect of which the State
Government concerned certifies that he would
have so officiated but for his absence on
leave or appointment to any special post of
any other exceptional circumstance." Sub-rule (1) clearly makes Rule 3 the Controlling Rule for the purposes of assignment of the year of allotment. The Rule then divides officers into two categories: (1) an officer in the Indian Police Service at the commencement of the Rules, and (2) an officer appointed to the Indian Police Service after the commencement of the Rules. We are concerned with the second category as the appellant was appointed to the Indian Police Service in 1955. The second category is again divided into two sub-categories: (a) officer appointed to the service as a result of a competitive examination, and (b) officer appointed to the service by promotion in accordance with Rule 9 of the Recruitment Rules. As the appellant was appointed to the Service by promotion, we are concerned with the second subcategory. The formula adopted works out as follows first find out the year of allotment of the junior-most among the officers recruited to the service by competition, who officiated continuously in a senior post from a date earlier than the date of commencement of officiation of the appellant. We may again mention that the appellant started officiating as Superintendent of Police on June 25, 1947. But, according to the first proviso, if the appellant started officiating continuously in a senior post from a date earlier than the date of any officer recruited by competition his allotment had to be determined ad hoc by the Central Government. According to the facts of this case, the first proviso applies and not the test provided in rule 3(3) (b) of the Seniority Rules. The second proviso limits the operation of the first proviso by dividing the officiating period into two classes: first, a period before the date of inclusion of an officer in the Select List and, secondly, the period after that date. The first period can only be counted if such period is approved by the Central Government in consultation with the Commission. The appellant’s name was included in the Select List of 1956. Therefore, in the case of the appellant, the period prior to 1956 had to be approved by the Central Government in consultation with the Commission. We may here notice Explanation 1 to Rule 3, because the government of India also say that the appellant officiated continuously as a temporary or local arrangement. We will deal with this aspect later, but for the time being we assume that there is no force in the Government of India’s contention and the Explanation does not apply to the facts of the present case. Therefore, according to the Rule the Central Government had to determine ad hoc the year of allotment after approving or not approving the period of officiation of the appellant before 1956. The Government of India say that they determined this by issuing the impugned order, the relevant part of which reads as follows:
"The Government of India have now decided
with the concurrence of the Commission that
the State Civil Service Officers who were
officiating prior to 19th May, 1951, but have
been appointed to the Indian Administrative
Service after that date should, for purposes
of fixation of seniority, be allowed the
benefit of their continuous officiation in
senior posts with effect from the 19th May,
1951. The same decision will also apply in
the case of State Police Officers promoted to
the Indian Police Service after the 19th May,
1951." The result of this decision, as far as the appellant is concerned, is that the period of officiation as Superintendent of Police from June 25, 1947 to May 19, 1951, is excluded for the purpose of fixation of seniority. Why the date May 19, 1951, was chosen is explained by the Government of India in the following terms in paras 8 and 9 of the affidavit dated May 15, 1966:
"8. While recruitment to the Service through
these diverse unconventional sources was being
made over the years, the question of fixation
of seniority and year of allotment was
subseqently considered and instructions were
issued vide Shri R. C. Dutt’s letter No.
1/18/51-AIS dated 22nd June, 1951 prescribing
the detailed procedure as to how the seniority
and the year of allotment of each officer and
for each category of recruitment should be
fixed. The said letter finds mention in the
appeal paper book at pages 45-49. It can be
said that with the issue of this le tter the
position regarding principles for the fixation
of seniority and year of allotment of officers
that had been recruited to
the Services prior to this date had been
finalised and stabilised.
9.At this stage, it was noticed that there
still were some State Police Service Officers
who had not qualified at the various
recruitments made for the Service in previous
years and continued to hold senior posts on
account of paucity of officers. It was
further realised that if, for determination of
seniority and year of allotment, the principle
of date of continuous officiation is applied
in such case such State Police Service
Officers who had been rejected on earlier
occasions would on eventual absorption into
the Service through the regular promotion
quota become entitled to higher seniority and
year of allotment than those who had been
selected in preference to them at the time of
the promotions made and the Special
Recruitment held in earlier years. This would
have been a very anomalous position for those
selected on such occasions who would have
found themselves junior to those who had been
rejected at the time of such selection. In
consultation with States and with the Union
Public Service Commission, it was, therefore,
decided that in the case of State Police
Service Officers appointed to the Service
after 19th May, 1951, their officiation prior
to this date would not count for purposes of
seniority and year of allotment. In other
words, all such officiation prior to this date
would be regarded as fortuitous. It was also
felt that since 19th May, 1951 was the date on
which the Gradation List for all the earlier
persons recruited to the Service had been
finalised and issued in a somewhat stable
stage, this may be a crucial date, and
officiation prior to which could be regarded
as fortuitous. It may be mentioned that this
date refers to the finalisation of the
Gradation List for the I.A.S. but since the
same principles were extended to the I.P.S. as
well, it was decided to retain this as the
crucial date. It may be reiterated that this
decision was taken after consultation with the
State Governments and the U.P.S.C. I would say
that there is no arbitrariness in this matter
and that this was done after consulting all
concerned and after evolving a sound principle
which would be consistent with the view that
those who had been selected for recruitment on
earlier occasions should not, by application
of a principle, become junior to those who on
such occasions had been rejected. I may also
mention that the said date had been uniformly
applied to all officers in this category." It would be noticed that the date, May 19, 1951, to begin with had nothing to do with the finlisation of the Gradation List of the Indian Police Service because it was a date which had reference to the finalisation of the Gradation List for the I.A.S. Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the affidavit, reproduced above. This date was apparently chosen for the I.A.S. because on this date the Gradation List for in the earlier persons recruited to the Service had been finalised and issued in a somewhat stable stage. But why should this date be applied to the Indian Police Service has not been adequately explained. Mr. B. R. L. Iyengar, the learned counsel for the appellant, strongly urges that selection of May 19, 1951, as a crucial date for classifying people is arbitrary and irrational. We agree with him in this respect. It further appears from the affidavit of Mr. D. K, Guha, Deputy Secretary to the Government of India, Ministry of Home Affairs, dated December 9, 1966, that "the Government of India have recently decided in consultation with the Ministry of Law that the Ministry of Home Affairs letter No. 2/32/51-AIS, dated the 25th August, 1955, will not be applicable to those SCS/ SPS officers, who were a pointed to IAS/IPS prior to the promulgation of IAS/IPS (Regulation of Seniority) Rules, 1954, and the date of the issue of the above letter if their earlier continuous officiation’ was approved by the Ministry of Home Affairs and Union Public Service Commission." It further,appears that "in the case of Shri C. S. Prasad also, an IPS officer of Bihar, a decision has been taken to give the benefit of full continuous officiation in senior posts and to revise his year of allotment accordingly." But, it is stated that "as Shri Nim was appointed to IPS on the 22nd October, 1955, i.e. after the promulgation of IPS (Regulation of Seniority) Rules, 1954, and after the issue of letter dated 25-8-1955, his case does not fall even under this category." The above statement of the case of the Government further shows that the date, May 19, 1951 was an artificial and arbitrary date having nothing to do with the application of the first and the second provisos to Rule 3(3). It appears to us that under the second proviso to Rule 3(3) the period of officiation of a particular officer has to be considered and approved or disapproved by the Central Government in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a hat and that is what it seems to have done in this case-and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso. Mr. Iyengar had contended before us that on a proper construction of the rules, the entire period of officiation in a senior post has to be counted towards the seniority of the appellant. We have already discussed this point above and, in our opinion, there is no force in this contention. As we have said, the Central Government must consider the question of approval of the officiation period and come to an ad hoc decision after considering all the relevant circumstances in consultation with the State Government concerned and fix the year of allotment. The next point Mr. Iyengar raised was that the letter dated August 25, 1955, was without any legal authority and was contrary to rules. It seems to us that the fixing of an artificial date, like May 19, 1951, as the date prior to which period of officiation would not be deemed to be approved by the Central Government is contrary to Rule 3. The last point which Mr. Iyengar raised was that the appellant for no valid reason has been treated unequally among his equals. It is not necessary to decide this point because the appeal has to be accepted on the ground that the selection of May 19, 1951, as a ,crucial date for classifying people is arbitrary and contrary to Rule 3. We had earlier left open the point raised by the Government of ,India that the appellant’s continuous officiation was a temporary or local arrangement within Explanation 1 to Rule 3. This is sought to be sustained by the following statement in the affidavit dated March 15, 1966:
"When vacancies could not be filled up even
by this method, recruitment from the open
market was resorted to. All officers thus
recruited to the Service were initially
appointed in the Junior Scale of the I.P.S.
The result was that there were some senior
posts that had to be filled and some State Polic e Service Officers who had not been
selected to the Service through any of the
above recruitment methods were, in view of the
existing paucity of officers, allowed to
officiate on senior posts as a stop-gap
arrangement. I say that all such State Police
Service Officers who were officiating on
senior posts due to shortage of officers were
primarily those who had been considered for
absorption into the I.P.S. under the Promotion
Quota or under the Emergency Recruitment but
had not been found fit for such absorption." This statement is denied by the appellant. We agree with him that such a stop-gap arrangement cannot last for eight years :and it has not been shown that the appellant was appointed temporarily in place of some persons as subsequently he has never been reverted. Further the fact that he was appointed to the post at the time when vacancies fell negatives that it was merely a temporary arrangement. In the result we accept the appeal, quash the impugned order dated August 25, 1955, and direct the Central Government to fix the year of allotment and seniority of the appellant in accordance ,with this judgment and the law. The respondent will pay costs of the appellant in this appeal. Appeal allowed. V.P.S.