AMRIK SINGH & Ors. v. UNION OF INDIA & Ors.

infirmity

In substance the exercise prescribed by Rule 9 of the India Police Ser vice (Cadre) Rules, 1954 is that, when the: cadre post is vacant and no Cadre Officer is available, a non-cadre officer may fill the vacancy for a period beyond three months if the State Government reports to the Central Govern ment the re0sons therefor and it is not !ordered to be termi1nated. The C.entral + • • J.. AMRIK HNGH V. UNION 487 j Gove1nment may permit a non-cadre officer to fill a Cadre post for a, p~riod. A exceeding six months provided it reports the full facts to the U.P.S.C. and acts responsibly in the light of the advicer of the Commission. In the present case, no such report by the State Governn1ent to the Cenrtal Government was sent, no consultation by the Central Government with the Commission was done. Bypassing the Public Service Commission bespeaks prima facie impropriety, but it is not destructive of the officiatiori of AhluwaUa in the special conspectus. of facts present here. For one thing, Ahluwalia has nothing to do with the error; for another, no senior of Ahluwalia suffered, thirdly, the Centrnl Gov ernment, in exercise of its power to relax the Rules, in good faith and, indeed in equity, did relieve the officer against this violatio_n. [498A-EJ B

Under Rule 3 (iii) (b) of the Indian Police Service Regulation of Senio· rity Rules, 1954 continuous officiation is the decisive factor. Assuming what i<i needed is regular officiation and not physical officiation, it i'3 perfectly C open for the Central Governn1ent to relax any irre, gularity by relaxing any particular rule or regulation. That power under All Jndia Services (Condi- tions of Service Residuary Matters) Rules 1960, to relax is not arbitrary because the Rule contains guidelines. Government 1nust be satisfied, not sub .. jectively but objectively, that any rule or regulation affecting the conditions of service of a member of the All India Services causes undue hardship,. the iniquitous consequence thereof may be reli~ved against by relaxation of ih~ D concerned Rule or Regulation; There must be undue hardship and, furth.:-r the relaxation must promote the dealing with the case "in a! just and ·equitable manner". These are perfectly sensible guidelines. What tlicrc is more, implicit in the Rule, the compliance with natural justice so that nobody may be adversely affected even by administrative action \Vitbout a hearing. Thefe is nothing unreasonable, capricious or deprivatory of the rights of anyone in Indeed, the presefit this residuary power vested in the Central Government. case is an excel1ant illustration of the proper exercise of the power. [498E-H, 499A] E CIVIL APPELLATE JuRISDICTION: Civil Appeal No. 2112 of

1979. _ . ..__ Appeal by special Leave from the Judgment and Order dated 23-3-1979 of the Himachal Pradesh High Court in Civil Writ Petition No. 398 of 1976. F R. K. Garg, and B. P. Singh for the Appellants. V. M. Tarkunde and P. P. Juneja for the Respondent No. 4. M. M. Abdul Khader and Miss A. Subhashini for the Union of • India. Mukul Mudgal for the Respondent No. 13. The Judgment of the Court was delivered by, KRISHNA IYER, J.-Competitive claims to seniority, dependent on the year of allotment in the Indian Police Service, fall for consideration in this appeal by special leave. We have expedited the hearing of the case since keeping officers in an unsettled state may be a factor which impairs their efficiency. G II One Shri Ahluwalia, a senior member of the Indian Police Service, sought to quash the decision of the Union of India dated 26-6-1976, whereby his year of allotment was fixed as 1965.

According to his If his case, the correct year of allotment should have been 1961. · plea were granted, the present appellants would be affected by being made junior to him. The rival contentions revolve round a few facts, which we will set out, and a few rules framed under the All India Services Act, 1951, which we will construe. First a rush through the relevant calendar of dates. Concerned, as we are, with the year of allotment of Shri Ahluwalia (respomlent No. 4), let us focus on chronology of events wHh special reference to him. If his claim were untenable, the appeal must be allowed and vice-versa. The 4th respandent (Ahluwalia) became a Deputy Superintendent of Police in Himachal Pradesh (which was then a Union Territory) In 1962, the Central Government constituted a by the end of 1956. common police service for the Union Territory of Delhi and Himacha] Praded1 called the Delhi and Himachal Pradesh Police Service; and later, in 1964, respondent No.

4 was absorbed into that service on a regular basis. The usual avenue of promotion for a Deputy Superin tendent of Police is the post of Superintendent of Police, but Superi tendents of Police are borne on the cadre of the Indian Police Service and the exercise which results in the inclusion in the Indian Police Service is governed by the Indian Police Service (Appointment by Promotion) Regulations, 1955 framed under Sec. 3(4) of the All India Services Act, 1951. The first step is to prepare a Select List from among eligible officers of the State concerned, in the present case, the Union Territories of. Delhi and Himachal Pradesh. Some times, it happens that although the post of a Superintendent of Police is a cadre post, if no hands are readily available for being posted from the LP .S. Deputy Superintendent of Police from the Select List is fornialities which we will promoted provisionally subject to certain presently consider.

The 4th respondent (Ahluwalia) was brought into the Select List in 1965 and later appointed Superintendent of Police in October, 1965 and he worked as Superintendent of Police in one place or other, until December, 1967, and, even thereafter, he continued as Superintendent of Police right down to January 1971 when on January 30, 1971, he was appointed to the I.P.S. and confirm ed as such. The year of allotment was fixed as 1965 bnt the 4th res pandent had a case that the law and justice of the case entitled him to 196 l as year of allotment. So he challenged the Order of Central Government allotting 'him the year 1965. The High Court considered the matter with reference to the relevant rules and came to the conclusion that there was merit in the 4th respondent's cont en- + • (He was the petitioner before the High Court). The learned tion. Judges wound up thus : I "It is, therefore, evident that the period of officiation of the peti tioner during 1-8-1968 to 12-10-1969 could not be considered to be· invalid or irreg\llar on any such ground.

A B We, therefore, conclude that the Government of Ind.iia wrongly decided that the officiation of the petitioner between the period 1-1-1%8 and 12-1-1971 or during the period 1-8-1968 to 12-10-69 could not be considered valid officiation. Rather he was continuously holding a cadre post throughout this period, and the benefit regarding C seniority wiU have to be given for the entire period. The decision being wrong and invalid under the very Rules and Regulations applied by the Government, was subsequently set right by them under Anne xure-Y. The upshort of all that we have stated above is that the pelltioner D shall be given the benefit of his continuous officiation against a senior post of the entire period from 11-11-1965 to the date of his appoint ment in the Indian Police Service his year of allotment shall be deter mined under Rule 3(3) (b) of the Seniority Rules keeping in view In conse that he started his continuous officiation from 11-11-1965. quence, Annexure-N is quashed to the extent the said Annexure held a view contrary to our decision.

It is declared that the petitioner continued and should be deemed to have continued to officiate on ii senior duty post of the Indian Police Service with effect from 11-11-65 without any break up to his confirmation in the Indian Police Service. The petitioner's seniority shall be determined accordingly and all con sequential benefits of seniority shall be granted to him by the respon dents Nos. 1 and 2. The respondent No. 1 shall determine the senio- rity of the Petitioner in accordance with our observations made above within three months". • The Central Government reconsidered the matter even earlier, and, by its Order dated 27-7-1979, refixed the seniority of the 4th respondent by assigning 1961 as his year of allotment. Aggrieved by this development, the appellants have come to this court and con tested the reasoning and conclusion of the High Court. E F G A few more facts about the career of the 4th respondent and the developments in the Indian Police service may be natrated before we set out and consider Rules and Regulations and their implications.

II The 4th respondent Ahlnwalia, as stated earlier, was Superintendent of Police from 1965 to 1967, followed by a short perrod of earned leave, which ended on 25-3-68. From March 26, 1968 he again continned as Superintendent of Police. Meanwhile, an event beyond the control of the parties took place which has a bearing on the ultimate view we take, although only indirectly. On November 1, 1966, the re-organi sation of the Punjab State took place which resulted in some areas of Punjab being transferred to the Union Territory of Himachal Pradesh. Consequently, certain officers, including one Shri P. C. Sahney and Shri K. S. Dhaliwal, were brought over from Punjab to Himachal Pradesh. Admittedly, both these officers, Sahney and Dhaliwal, were senior to Ahluwalia, but a key circumstance which, in the submission of the appel lants is decisive in their favour deserves mention. It is this Shri Sahney, a senior of Ahluwalia, was holding an Ex-cadre post of Superintendent of Police, C.B.I. under the Ministry of Home Affairs between 7-12-1964 and 6-10-1969.

The Joint Select List of the Union Territories of Delhi and Himachal Pradesh Police Service, prepared on 29-4-1967, included the names of Ahluwalia, Sahney and Dhaliwal, the last two being above Ahluwalia. On January 1, 1968, the Central Government created single cadre for all the Union Territories in India and, as a follow-up action, prepared a common Select List for the IPS Cadre on 13-1-1971. Ahluwalia was in the Select List of the Union Territories Cadre so pre- pared. The story of the Cadre continued in the sense that on 25-1-1971, when Himachal Pradesh acquired full-fledged State-hood, Ahluwalia was allocated, along with others, to that State. The Hima chal Pradesh State came to have its own Cadre of I.P.S. Officers, in which Ahluwalia became a Member. Thereafter, the question was mooted before Government as to what should be the year of allotment for the 4th respondent (Ahluwalia). Two factors having relevancy to the determination of the issue be fore us, were highlighted by Shri R. K. Garg, appearing for the appel lant.

He stated that so long as Shri Sahney was holding an ex-cadre post and was senior to Ahluwalia, the officiation of the latter was not legal and regular and therefore had to be ignored for the purpose of continuity of officiating service. This break was material in fixing the year of allotment. Secondly, he urged that the continuation of a non cadre officer in a Cadre post beyond 3 months required the State con cerned to report to the Central Government this fact and the Central Government in return had to consult and go by the opinion of the In the present case, Ahluwalia bad Union Pnblic Service Commission. co~tinued in the Cadre post of Superintendent ·of Police, ·without • ).-.. this necessary exercise by the State and the Central Government and without the approval of the Union Public Service Commission. Thus, lethal to the claims of the two reasons, briefly, s.tated above, were Ahluwalia and he was bound to be pushed to the year 1965 and could not claim the earlier year of allotment of 1961 awarded to him If the contention by the Central Government and the High Court. put forward by Shri Garg were sound, the conclusion would be Thus inevitable and we are rele- vant rules in their application to the facts present in this case.

Of course, before launching on that essay, we must also mention that the Central Government has a residuary power, in cases of equity and justice. to exempt an officer from the rigour of any rule or re gulation. the appeal must inescapably be allowed. an examination thrown It may be treated as common case The Rules may now be reproduced before scanning the submis sions of either side. that not only was Sahney (now retired) senior to Ahluwalia but he wa~ hold If ing an ex-cadre post during the period 1-8-1968 to 12-10-1969. this period were to be excluded from Ahluwalia's officiation he must It is also beyond dispute that there was no consultation with fail. the U.P.S.C. for the period of officiation beyond 6 months of Shri Ahluwalia in a cadre post. The Union of India had, on one stage, agreed tentatively with Ahluwalia's case but changed its mind and came to the conclusion that there was a break in service between 1-8-1968 and 12-10-1969 for Ahluwalia and, therefore, the benefit of officiation during that period could not be given in fixing the year of allotment under Rule 3 ( 3) (b) of the Regnlation of seniority Rules, 1954. Again Government veered round to the view 1961 was the correct year of allotment. Now the Statntory Provisions: ''

Select List • .._ (1) The Commission shall consider the list prepared by the committee along with the other documents rec ceived from the State Government and, unless considers any change necessary, approve the list. (2) (3) .................... The list as finally approved by the Commission shall form the Select List of the members of the State Police Service. " p G H II Under this Rule a Select List was prepared where Ahluwalia was ap pointed against a Cadre post with effect from 11-11-1965. Regula tion 8 may also be read : I "

Appointments to Cadre post from Select List Appointments of members of the State Police Service from the Select List to posts borne on the State Cadre on the joint Cadre of a group of States, as the case may be, shall be made in accordance with the provisions of rule 9 of Cadre Rules. the State Government shall follow the order in which the names of such officers appear in the Select List. In making such appointments, • ,, From this, it i~ clear, Rule 9 of the Cadre Rules has governing force and so we must excerpt Rule 9 also : "

Temporary appointment of non-cadre officers cadre posts (I) A cadre post in a state may be filled by a person who is not a cadre officer if the State Government 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. (2) where in any state, a person other than a cadre offi cer is appointed to a cadre post for a period exceed-. ing three months the State government shall forthwith report the fact to the Central Government together with the reasons for making the appointment. (3) On receipt of a report under sub-rule (2) or other wise, the Central Government may direct that the State Government shall terminate the appointment thereto a cadre officer of such person and appoint and where any direction is so issued, the state Go vernment shall accordingly give effect thereto. ( 4) Where a cadre post is likely to be filled by 11 person who is not a cadre officer for a PERIOD exceeding ..;_ .. AMRIK SINGH v.

Prior to their appointment to the Indian Police Service, these officers were holding the following posts. In accordance with Regulation 8 of IPS (Appointment by Promotion) Regulations, 1955 the Select List officers are to be appointed to the Cadre Post in the order in which their names appear in the Select List As such in cases where a senior select list officer was 'not holding a cadre post, the offi ciation in a. cadre post of a junior officer in the Select List was not approved by the Central Government because the appointment of Junior Select List officer to a cadre post was violative of the provisions of Regulation 8 of the Promotion Regulations. Accordingly, it was decided that the rules may be relaxed to count the period of officiation against ex-cadre posts so as to give benefit of the service rendered by the junior officers in the cadre post for the purpose of seniority. Applying the ratio of the case of U. T. Cadre, the Government of India has come to the conclusion that the appointment of Shri P. C. Sahney in the C. B. I. on depntatio'n basis from 7-12-1964 to 6-10-1969 was made by the Central Government in public interest since Shri Sahney belonged to the U. T. Cadre which was managed by the Central Government.