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PETITIONER:

DEVENDRA NARAYAN SINGH AND OTHERS

Vs.

RESPONDENT:

THE STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT: 24/10/1996

BENCH:

K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

Hon'ble Mr.Justice G.B.Pattanaik

P.P.Rao, Sr. ADV., Vijay Kumar, J.P.Parihar, Abhay

Chandrakant Mahimka. Advs, with him for the appellants.

B.B.Singh, Adv. for the Respondents.

J U D G M E N T

The following Judgement of the Court was delivered:

PATTANAIK, J.

Leave granted.

This appeal by special leave is directed against the

order dated 5th September, 1995 of the Central

Administrative Tribunal, Patna Bench, Patna in O.A. No. 12

of 1993. The appellants who had been recruited to the Bihar

State Police Service in the year 1969 were promoted to the

Indian Police Service in the year 1987 in accordance with

the provisions of the Indian Police Service (Promotion by

Recuritment) Regulations, 1955 (hereinafter referred to as

the 'Promotion Regulations'). On being appointed to the

cadre of IPS they were assigned the year of allotment as

1981 by the Central Government. They challenged the said

order and claimed that their year of allotment should be

1979 before the Tribunal. The Tribunal by the impugned

judgement rejected their claim and having dismissed the

O.A., the present appeal has been preferred.

The case of the appellants in nutshell is that they

having been appointed to the Bihar State Police Service on

1.9.1969 were eligible for being considered to be included

in the Select List prepared under Regulation 5 of the

Promotion Regulations since 1977. But the Committee

constituted under Regulation 3 of the Promotion Regulations

did not prepare any Select List for the years 1977, 1978,

1979 and 1980. It is only in 1981 a Select List of 18

officers was prepared to fill-up 7 vacancies ignoring one

anticipated vacancy during the year. The further case of the

appellants was that in the triennial review conducted for

determining the strength of the cadre in the year 1981 the

number of senior posts in the said cadre of IPS was

increased to 137 from 123. But the Section Committee, though

met on 14.10.1981, did not take the increase in the cadre

strength as a result of which the appellants suffered to a

great extent. A Writ Petition was filed in the Patna High

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Court which was registered as CWJC No. 5372 of 1983. The

High Court by order dated 30th July, 1984 came to the

conclusion that the Selection Committee had committed an

error by not taking into account the number of vacancies

existing as well as number of vacancies likely to fall

vacant during the year and accordingly directed the

Selection Committee to prepare a fresh Select List for the

year 1983. The State Government challenged the aforesaid

order of the High Court by filing a Special Leave Petition

in the Apex Court which was ultimately dismissed with the

observation that the Selection Committee should prepare a

fresh list for the year 1983 with respect to all the

vacancies including the vacancies that occurred on account

of triennial review by the authorities. Pursuant to the

aforesaid direction of the Apex Court the Selection

Committee met on 19.9.1985 and prepared a Select List of 24

officers including the appellants for promotion to the

Indian Police Service and the appellants were ultimately

appointed to the cadre of IPS on different dates in the year

1987. The earliest appointment being of appellant no.1 on

27.7.1987. The Ministry of Home Affairs thereafter issued

order dated 4.5.1992 assigning the appellants the year of

allotment as 1981. The appellants then challenged the same

order of the Union Government claiming that the year of

allotment should be 1979 on the ground that the Select List

though was factually prepared in the year 1985 but in the

eye of law it relates to the year 1983 and the Union

Government has not taken that into consideration while

assigning year of allotment. The Union Government contested

the application before the Tribunal alleging therein that no

doubt the Supreme Court had directed to draw a Select List

for the year 1983 and the same was drawn on 9.9.1985 but the

appellants having been appointed in the year 1987 pursuant

to their name being included in the select List prepared on

19.9.1985, their year of allotment has been rightly fixed

under Rule 3(iii) of the Indian Police Service (Regulation

of Seniority) Rules, 1954 hereinafter referred to as the

'Seniority Rules' and therefore there is no error in

determining the year of allotment of the appellants. The

Tribunal by the impugned judgment came to the conclusion

that the year of allotment of an officer has to be assigned

in accordance with the Seniority Rules, more particularly

Rule 3(3)(b) of the said Rules. The Tribunal also came to

the conclusion that the question of assignment of year of

allotment only arises after appointment of the concerned

officer to the cadre either through competitive examination

or by promotion from the State Police Service under Rule

9(1) of the Recruitment Rules. That being the position,

taking into account the date of appointment of the

appellants to the Indian Police Service Cadre and the date

from which the concerned officer was actually included in

the Select List as well as the date of continuous

officiation of the appellants in a senior post, the year of

allotment as determined by the Government is correct. The

Tribunal was of the view that the appellants being in the

Select List since 1986 and having been appointed in 1987 to

the Indian Police Service Cadre. they cannot make any

grievance of their year Of allotment being fixed in the year

1979.

Mr. P.P. Rao, the learned senior counsel appearing for

the appellants contended that the Tribunal committed an

error in not considering that the Select List in which the

appellants were included was in fact the Select List for the

year 1983 and for the purpose of determining the year of

allotment in the eye of law it must be deemed that the

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appellants were in the Select List of the year 1983. Mr.

Singh, the learned counsel for the State of Bihar on the

other hand submitted that pursuant to the directions of the

Patna High Court as well as the apex Court the State

Government did consider the case of the appellants for being

included in the Select List and in fact got their names

included in the Select List but Union Public Service

Commission did not approve the same earlier as a result of

which the appellants could be appointed only in the year

1987 and as such for the selection made by the Union Public

Service Commission as well as Union Government, the

appellants cannot claim an earlier year of allotment. The

stand of the counsel appearing for the Union of India on the

other hand was, an officer gets included in the Select List

only when the Select List prepared by the appropriate

authority gets the approval of the Union Public Service

Commission. That being the position and the Select List in

question having been approved only in the year 1986, the

Union Government rightly determined the year of allotment of

the appellants.

In view of rival submissions at the bar the question

that arises for consideration is whether the Union

Government and the Central Administrative Tribunal were

justified in coming to the conclusion that it is the date of

factual inclusion of the appellants name in the Select List

and their appointments to the Indian Police Service Cadre

which would government the year of allotment,

notwithstanding the fact that earlier the Patna High Court

and this Court had given directions that the appropriate

authorities have committed error in not preparing the list

for the year 1983 and the question of inclusion of the

appellants name in the Select List for the year 1983 be

reconsidered by the State Government.

Having given our anxious consideration to the relevant

Provisions, Rules and the Regulations for appointment and

for determination of the year of allotment and the earlier

directions of the Patna High Court as well as of this

Court, we find sufficient force in the contentions of Mr.

P.P. Rao, the learned senior counsel appearing for

appellants and we come to the conclusion that the Union

Government has committed error in treating the appellants to

have been included in the Select List only from the year

1986 which is the factual year of their inclusion in the

list and thereby determining the year of allotment. We also

come to the conclusion that the Tribunal committed error in

ignoring the fact of the earlier direction of this Court and

the legal fiction by which it must be held that the

appellants were included in the Select List of the year

1983. It is not disputed that the Patna High Court as well

as this Court had issued directions to consider the question

of inclusion of appellants name in the Select List for the

year 1983 and pursuant to such directions the State

Government having re-considered the matter included the

names of the appellants in the Select List. Though the list

in question was made in the year 1985 pursuant to the

direction of this Court and was approved by the Union Public

Service Commission in 1986 but in the eye of law it must be

deemed to be a list for the year 1983. When the appropriate

authorities committed error in not preparing the Select List

for the year 1983 and the appellants being aggrieved

assailed the same and ultimately this Court directed to

reconsider the matter, thereafter, the appropriate authority

reconsidered the matter and included the appellants name in

the Select List for the year 1986, in the eye of law the

said Select List can be held to be the Select List for the

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year 1983. Consequently the year of allotment of those who

were included in the said list has to be determined on the

basis that they were in the Select List of the year 1983

though factually the list was prepared in the year 1985 and

was approved by the Union Public Service Commission in

February, 1986. The Union Government, therefore, in our

considered opinion committed serious error in determining

the year of allotment of the appellants on the basis that

they were in the Select List from the date of approval of

the list by the Union Public Service Commission i.e.

February 1986. The impugned order of the Tribunal as well as

the order of the Union Government determining the year of

allotment of the appellants are hereby set aside and the

Union Government is directed to re-determine the year of

allotment of the appellants on the premise that they were

included in the Select List of 1983. Further the appellants

are entitled for consequential benefits and the same may be

given to them. This may be done within three months from

the date of receipt of this order. The appeal is accordingly

allowed but in the circumstances without any order as to

costs.