Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2446 /2014

[Arising out of S.L.P.(Civil) No. 9409/2013]

STATE OF SIKKIM AND OTHERS …

APPELLANT (S)

VERSUS

ADUP TSHERING BHUTIA AND OTHERS … RESPONDENT (S)

J U D G M E N T

KURIAN, J.:

Leave granted.

2.Integration of services means the creation of a

homogenous service by the amalgamation or merger

of service personnel belonging to separate services.

Integration is a policy matter as far as the State is

concerned. In evolving a proper coalescence of the

services, there are various steps:

(i)Decide the principles on the basis of which

integration of services has to be effected;

(ii)Examine the facts relating to each category and class

of post with reference to the principle of equivalence;

1

Page 2 (iii)Fix the equitable basis for the preparation of common

seniority list of personnel holding posts which are merged

into one category.

The State is bound to ensure a fair and equitable

treatment to officers in various categories/cadres of

services while preparing the common seniority list. Being

a complicated process, integration is likely to result in

individual bruises which are required to be minimised and

if not possible, to be ignored. These first principles on

integration are to be borne in mind whenever a dispute on

integration is addressed.

SHORT HISTORY

3.Prior to the constitution of integrated Sikkim Police

Force w.e.f. 11.09.2000 as per the Sikkim Police

Force (Recruitment, Promotion and Seniority) Rules,

2000, there were three different services, viz., (1)

Sikkim Police Force, (2) Sikkim Armed Police Force

and (3) Sikkim Vigilance Police. All the three forces

were governed by separate service rules. There is

entry level of constable in all the three forces. The

Sikkim Vigilance and Sikkim Armed Forces ended

with the cadre of inspector. In the case of Sikkim

2

Page 3 Armed Police there was also 50% direct recruitment

at the level of sub-inspector. Promotion to the post of

Deputy Superintendent of Police was available only

to the Sikkim Police Force. The posts of Deputy

Superintendent of Police in Sikkim Vigilance Police

and Sikkim Armed Police were filled up only by

deputation. The personnel belonging to the Sikkim

Vigilance Police and Sikkim Armed Police had been

raising their grievances with regard to lack of

promotion beyond inspector of police at various

levels. The matter reached the High Court in Writ

Petition (C) No. 513 of 1998. Realising the heartburn,

the State Government appointed Justice N. G. Das, a

former Judge of the High Court of Sikkim as one man

Commission for examining the scope of integration of

different services. Implementing the

recommendations of the Commission, the State

Government framed the Sikkim Police Force

(Recruitment, Promotion and Seniority) Rules, 2000

under Article 309 of the Constitution of India

consisting of posts upto inspector in all the three

forces. For the purpose of ready reference, we shall

3

Page 4 extract Rule 4 of 2000 Rules on constitution of the

forces:

“4. Constitution of the Force:

The Force shall consist of the following, namely:-

(a)Persons holding the posts upto and including

Inspectors under Schedule I of the Sikkim

Police Force (Recruitment, Promotion and

Seniority) Rules, 1981.

(b)Persons holding the posts of Constable, Head

Constable, Assistant sub-Inspector, Sub-

Inspector and Inspector under the Sikkim

Vigilance Police Force (Recruitment,

Promotion and Seniority) Rules, 1981.

(c)Persons holding the posts of Sub-Inspector

and Inspector under the Sikkim Armed Police

(Recruitment, Promotion and Seniority) Rules,

1989.

(d)Persons recruited to the Force in accordance

with the provisions of these rules.”

4.On seniority, Rule 9 provided that the same would be

determined by the order of merit in which they are

selected for recruitment. To quote:

“9. Seniority

(i)The relative seniority of the members of the

force recruited directly, shall be determined

by the order of merit in which they are

selected for such recruitment. Members as a

result of an earlier selection shall be senior to

those recruited as a result of a subsequent

selection.

(ii)The relative seniority of persons promoted

from a lower post shall be on the basis of

seniority-cum-merit subject to successfully

passing the prescribed exam.

(iii)The relative seniority inter-se of members

recruited directly and through promotion

4

Page 5 shall be determined according to the rotation

of vacancies between direct recruits and

promotes which shall be based on the quota

of vacancies reserved for direct recruitment

and promotion, respectively, in these rules.”

(Emphasis supplied)

5.On inter se seniority at the level of two cadres, viz.,

sub-inspector and inspector, it appears, there was a

back reference to Justice N. G. Das Commission.

However, it is seen from the records that there was

no further recommendation from Justice N. G. Das

Commission. With regard to the method and

modalities of fixing of seniority of the sub-inspectors

and inspectors, the matter was hence referred to a

committee of senior police officers constituted by the

Director General of Police. It was recommended that

the inter se seniority at the level of sub-inspectors be

the determining criterion for fixing the inter se

seniority of inspectors in the integrated cadre. The

proposal was approved by the Government on

11.04.2008 but the same was not implemented due

to the pendency of a Writ Petition filed by the first

respondent herein. After the disposal of the Writ

Petition on 27.08.2009 as withdrawn, the

government again constituted a high level committee

5

Page 6 headed by the Chief Secretary as Chairman with

Director General of Police, Home Secretary and

Secretary DoP as members and Joint Secretary DoP

as member secretary. The committee submitted its

report on 31.10.2009. It was recommended that the

inter se seniority of police inspectors should be fixed

based on the seniority at the entry level of sub-

inspectors. It was also recommended that inspectors

of Sikkim Police be deemed to have been promoted

as inspectors w.e.f. the date their colleague officers

at the entry level of sub-inspectors in Sikkim Armed

Police and Sikkim Vigilance Police first got promoted

as inspectors. The recommendation was approved by

the State Government on 10.11.2009, and on

19.01.2010 a Notification was issued granting

retrospective promotion to 52 members of the Sikkim

Police Force with the condition that the officers will

not be entitled to arrears of pay.

6.The State Government also amended the integrated

Sikkim Police Force (Recruitment, Promotion and

Seniority) Rules, 2000 as per Notification dated

20.01.2010 with retrospective effect from

11.09.2000. The amendment was mainly in Rule No.

6

Page 7 9 on seniority wherein a new sub-clause (iv) was

inserted. The amended Rule 9 (iv) reads as follows:

“9(iv)(a)The inter-se-seniority of police personnel

up to the rank of Assistant Sub-inspector

in the Sikkim Police and Sikkim Vigilance

Police on the date of amalgamation of

the cadres for the purpose of their

promotion to the next rank shall be

determined on the basis of their date of

appointment to the entry level post of

Constable.

(b)The inter-se-seniority of Police

Inspectors of Sikkim Police, Sikkim

Vigilance Police, Sikkim Armed Police

and Indian Reserve Battalion on the

date of amalgamation of the cadres for

the purpose of their promotion to the

rank of Deputy Superintendent of Police

shall be determined on the basis of their

date of appointment to the entry level of

Sub-Inspector.”

(Emphasis supplied)

7.The Rules also provided for a residuary power to the

Government for relaxation. The relevant Rule reads

as under:

“17. Power to relax: Where the Government of

Sikkim is of the opinion that it is necessary or

expedient to do so, it may, by order, for reasons to

be recorded in writing, relax and of the provisions

of these rules with respect to any class or category

of persons or post.”

7

Page 8 SHORT FACTS

8.Seniority, the retrospective promotion granted

notionally to the members of the pre-integrated

Sikkim Police Force and the amendment was

challenged by respondent no.1 before the High Court

in Writ Petiton (C) No. 33 of 2010 mainly with the

following two prayers:

“(a)A writ in the nature of certiorari or any other

writ, order or directions striking

down/quashing Rule 9(iv)(b) of the Sikkim

Police Force (Recruitment, Promotion &

Seniority) Rules, 2000 as inserted by Rule 2

of the Sikkim Police Force (Recruitment,

Promotion and Seniority) Amendment Rules,

2009 brought into force vide Notification No.

222/GEN/DOP dated 20.01.2010 with

retrospective effect from 11.09.2000.

(b)A writ in the nature of certiorari or any other

writ, order or directions striking

down/quashing the Notification No.

02/PHQ/2010 dated 19.01.2010 to the extent

it gives retrospective promotion to over 6

years to the private Respondent Nos. 7 to 28

except Respondent No. 21 by a deeming

fiction irrespective of their actual date of

confirmation with effect from the dates

mentioned in the said impugned notification

against the names of each of the said private

Respondents.”

9.For a proper understanding of the factual disputes,

we shall refer to the grievance of the writ petitioner.

He joined Sikkim Police as a Constable on

8

Page 9 12.08.1974. He was absorbed in the Sikkim Vigilance

Police on 12.09.1978. He was promoted as sub-

inspector on 22.12.1986 and was further promoted

as inspector on 26.09.1995. On account of the

retrospective promotion granted to the members of

the Sikkim Police Force based on the date of

appointment/promotion as sub-inspector in the case

of the other two services, the writ petitioner became

junior to them, affecting his chances of promotion to

the post of Deputy Superintendent of Police.

10.The High Court by Judgment dated 10.10.2012

allowed the Writ Petition quashing the retrospective

promotion granted to the private respondents and

striking down Rule 9(iv) holding also that the

seniority in the integrated cadre of inspectors shall

be decided only on the basis of their substantive

promotion to that post, and not based on the date of

promotion/appointment to the post of sub-inspector.

The Court, however, protected the promotions

granted to the private respondents. It is significant to

note that even the writ petitioner was also promoted

as Deputy Superintendent of Police on 23.02.2012

and he retired from service on 31.08.2012. The

9

Page 10 direction by the High Court is to grant promotion with

effect from the date the first promotion was granted

to any other private respondent with all the

consequential including monitory benefits. Thus

aggrieved, the State is before this Court.

11.The High Court has placed reliance on the

Constitution Bench decision of this Court in State of

Gujarat and Another v. Raman Lal Keshav Lal

Soni and Others

1

regarding retrospective operation

of law. Reliance is also placed on another

Constitution Bench decision in B.S. Yadav and

Others v. State of Haryana

2

. In B. S. Yadav’s

case (supra), this Court dealt with the legislative

power of the State under Article 309 of the

Constitution of India. It was clearly held in both the

decisions that the State is competent to enact laws

with retrospective effect. The only rider is that the

date of retrospective operation should have

relevance and nexus with the object sought to be

achieved and the same shall not affect the accrued

rights.

1

(1983) 2 SCC 33

2

(1980) Suppl. SCC 524

10

Page 11 12.The short question is whether the amended Rule on

fixation of seniority satisfied the test of

reasonableness. Integration of three services was

necessitated for balancing the inequality to the

extent that the members of two of the services were

denied promotion to the post of Deputy

Superintendent of Police. Such promotion was

available only to the members of the erstwhile Sikkim

Police Force and was denied to Sikkim Vigilance

Police and Sikkim Armed Police. In this context, it

would be useful to refer to the terms of reference to

Justice N. G. Das Commission:

“(1)To comprehensively review the existing

Recruitment Rules of all the different wings of

Sikkim Police so as to arrive at an appropriate

solution, which would meet promotional

aspirations of the entire Police Force.

(2)To examine the necessity for integration of

the different Recruitment Rules particulary

(a) Sikkim Police Force (Recruitment,

Promotion and Seniority) Rules, 1988, (b)

Sikkim Armed Force (Recruitment, Promotion

and other Conditions of Service) Rules, 1989

and (c) the Sikkim Vigilance Police

(Recruitment, Seniority and Promotion) Rules,

1981, so as to bring about long term solution

to meet the promotional aspirations of the

entire Police Force. The Commission shall

submit its report on or before 31.12.99.”

(Emphasis supplied)

11

Page 12 13.Accepting the recommendation of the Commission

for a unified Police Force, the State Government

integrated three services and promulgated the

Sikkim Police Force (Recruitment, Promotion and

Seniority) Rules, 2000. It is to be specifically noted

that the members of Sikkim Vigilance Police and

Sikkim Armed Police had obtained accelerated

promotion to various posts up to the position of

inspector of police. However, their compeers in the

erstwhile Sikkim Police Force could not get such

promotions to the higher post of inspector for want of

vacancy. It is crucially significant to note that there

was entry level direct recruitment in one of the

services, viz., Sikkim Vigilance Police to the extent of

50%.

14.No doubt one of the main principles of integration is

equation of posts. But the question is whether such

integration based only on equation of posts will result

in inequality or injustice to the members of any other

service.

15.As we have already noted above, promotion to the

post of Deputy Superintendent of Police was

12

Page 13 available only to members of the Sikkim Police Force.

In the other two services, viz., Sikkim Vigilance Police

and Sikkim Armed Police, though the members

therein got accelerated promotion to the post of

inspector, there was no further promotion available

to them and they had to retire from service in that

cadre. It was this inequality that was sought to be

remedied by integration.

16.The feeder category for promotion to the post of

Deputy Superintendent of Police is inspector. If the

seniority is fixed in that cadre of inspector, it would

virtually amount to denial of promotion to the post of

Deputy Superintendent of Police for quite some time

to the members of the Sikkim Police Force. It was this

discrimination and resultant injustice that was sought

to be remedied by referring the matter to the

Committee which recommended that for the purpose

of promotion to the post of Deputy Superintendent of

Police and preparation of seniority list in that regard,

the date of promotion to the post of sub-inspector

should form the basis. That date was taken, as we

have already noted above, since there was direct

recruitment to the post of sub-inspector in Sikkim

13

Page 14 Armed Police. What has been done by the

Government is to base the date of promotion/direct

recruitment to the post of sub-inspector as the

determining factor for fixation of seniority for the

purpose of promotion to the post of Deputy

Superintendent of Police and grant deemed/notional

promotion to the members of the Sikkim Police Force

from the date their compeers in the other two

services got promotion to the post of inspector.

Appointment to the post of inspector is by promotion.

Therefore, the entry level appointment to the cadre

of sub-inspector becomes relevant. The sub-inspector

of Sikkim Vigilance and Sikkim Armed Forces, by

chance, got accelerated promotion to the post of

inspector. It was this injustice that was sought to be

remedied by the retrospective promotion without

monitory benefits and the amendment in the Rules.

Merely because there is equation of post in a cadre

on integration that does not necessarily mean that

the common seniority list should be prepared in that

cadre for promotion to the next higher cadre. If that

method would result in injustice and graver

14

Page 15 inequality, another fair and just mode can be

adopted.

17.True, many officers who were working as sub-

inspectors, while the writ petitioner had been working

as inspector, have gone above him in the process but

the hard fact which caused the heartburn to his

compeers in the Sikkim Police Force is that at the

level of sub-inspectors, all of them were either

travelling together with the writ petitioner or had

gone much earlier to him in that cadre.

18.One cannot also lose sight of the fact that, after

integration, the promotion chances of members of

Sikkim Police have been reduced considerably, since

originally it was their exclusive domain.

19.The Apex Court in Tamil Nadu Education

Department Ministerial and General

Subordinate Services Association and Others v.

State of Tamil Nadu and Others

3

held that

integration is a complicated administrative process

and it is likely to affect certain individuals. To quote:

“7. In service jurisprudence integration is a

complicated administrative problem where, in doing

3

(1980) 3 SCC 97

15

Page 16 broad justice to many, some bruise to a few cannot

be ruled out. Some play in the joints, even some

wobbling, must be left to government without fussy

forensic monitoring, since the administration has

been entrusted by the Constitution to the executive,

not to the court. All life, including administrative life,

involves experiment, trial and error, but within the

leading strings of fundamental rights, and, absent

unconstitutional “excesses”, judicial correction is not

right. Under Article 32, this Court is the constitutional

sentinel, not the national ombudsman. We need an

ombudsman but the court cannot make-do.

8. … Maybe, a better formula could be evolved,

but the court cannot substitute its wisdom for

Government’s, save to see that unreasonable

perversity, mala fide manipulation, indefensible

arbitrariness and like infirmities do not defile the

equation for integration. We decline to demolish the

order on this ground. Curial therapeutics can heal

only the pathology of unconstitutionality, not every

injury.”

(Emphasis supplied)

The same view has been followed in Indian Airlines

Officers’ Association v. Indian Airlines Limited and

others

4

, Kerala Magistrates’ (Judicial) Association

and others v. State of Kerala and others

5

, Life

Indian Corporation of India and Others v. S. S.

Srivastava and Others

6

and New Bank of India

Employees’ Union and Another v. Union of India and

Others

7

.

4

(2007) 10 SCC 684

5

(2001) 3 SCC 521

6

1988 Supp SCC 1

7

(1996) 8 SCC 407

16

Page 17 20.It has also been held by this Court in K.S. Vora and

others v. State of Gujarat and others

8

that

integration affecting the larger public interest would

necessarily affect the seniority of some members of

some of the services. To quote:

“5. As we have already pointed out in the

instant case the State decided at stages to switch

over to the common cadre in respect of all the four

grades of the Subordinate Service. Before common

grades had been formed promotion was granted

departmentwise. When ultimately a common

cadre came into existence — and all that was done

by 1974 — it was realised that if seniority as given

in the respective departments were taken as final

for all purposes there would be prejudice .

Undoubtedly the common cadre was for the

purpose of increasing the efficiency by introducing

a spirit of total competition by enlarging the field

of choice for filling up the promotional posts and in

the interest of discipline too. After a common

cadre was formed, the general feeling of

dissatisfaction on account of disparity of seniority

became apparent. The 1977 Rules were

introduced in this background to ease the

situation. The scheme of this rule protected the

rank then held by every member of the service

notwithstanding alteration of seniority on the new

basis. This, therefore, made it clear that accrued

benefits were not to be interfered with. To that

extent the 1977 Rules were not retroactive. In

spite of the protection of rule regarding the post

then held, the Rules brought about a change in the

inter se seniority by adopting the date of initial

recruitment and the length of service became the

basis for refixing seniority. Total length of service

for such purpose is a well known concept and

could not said to be arbitrary. Undoubtedly one of

the consequences of the change in the basis was

8

(1988) 1 SCC 311

17

Page 18 likely to affect prospects of promotion — a matter

in future. Two aspects have to be borne in mind

while considering the challenge of the appellants

to this situation. It was a historical necessity and

the peculiar situation that arose out of

government’s decision to create a common cadre

with four grades in the entire Secretariat. We

would like to point out with appropriate emphasis

that there was no challenge to creation of the

common cadre and certainly government was

competent to do so. The second aspect to be

borne in mind is that rules of seniority are a

matter for the employer to frame and even though

prospects of promotion in future were likely to be

prejudiced by introduction of a new set of rules to

regulate seniority, if the rules were made bona

fide and to meet exigencies of the service, no

entertainable grievance could be made . If these

are the tests to apply, we do not think the

appellants have indeed any grievance to make. In

our view, therefore, the High Court rightly

dismissed the contention and found that

appellants were not entitled to relief.”

(Emphasis supplied)

21.In Kerala Magistrates’ (Judicial) Association

case (supra), this Court held:

“5. We have examined the relevant records

containing the deliberations made in the full court

meetings of the High Court on the topic of

integration of the two wings. It appears that on the

criminal side the entry post was Magistrate Second

Class and the highest post, a Magistrate Second

Class could reach was Chief Judicial Magistrate. On

the civil side the entry post was Munsif and the

highest post was the District Judge. The

association of the Criminal Magistrates had all

along been clamouring that the post of District and

Sessions Judge should also be separated and the

Chief Judicial Magistrates on the criminal side

should also be promoted to the post of District and

Sessions Judge. … … … the number of posts

of Judicial Magistrates Second Class, which existed

18

Page 19 on the date of the full court meeting. The Court

took notice of the fact that on the date of

integration, 42 Magistrates Second Class will be

absorbed in the category of Munsif Magistrates

and all of them will be duly benefited in their scale

of pay. The Court also considered that in view of

the number of posts available, while Munsifs could

expect promotion to 49 posts of Subordinate Judge

but the Judicial Magistrates could expect

promotion only to 18 posts of Chief Judicial

Magistrates, as it existed. But by reason of

integration, the chances of promotion of the

Magistrates will be much more enhanced,

compared to the chances of promotion to the

Munsifs. The Court also considered the normal rate

of promotion and found that for Munsifs, the rate

being 1.25, for a Magistrate rate was only 0.30

and on account of integration, the ratio would

come to 0.84, which indicates that overall chances

of promotion to the Munsifs would get reduced

from 1.25 to 0.84, whereas the chances of

promotion of the Magistrates get increased from

0.30 to 0.84. The High Court, therefore, suggested

that the ratio of 3:1 should be fixed both in the

integrated cadre of the Subordinate Judges and

Chief Judicial Magistrates for promotion to the post

of District Judge as well as in the cadre of Munsifs

and Magistrates First Class for the promotion to

the post of Subordinate Judges. The High Court

also was of the opinion that the effect of

integration will be that while Munsifs would lose

chances of promotion the Magistrates will improve

their chances of promotion, although some Senior

Magistrates, individually, will sustain some loss.

But such loss is the usual consequence of any

integration process. Notwithstanding the aforesaid

recommendations of the High Court, the State

Government on receipt of representation from the

Magistrates’ Association, made further

correspondence with the High Court and

suggested that the ratio for promotion from the

Munsifs and Magistrates to the Subordinate Judges

should be fixed at 5:2. The High Court initially had

some reservations, but ultimately accepted the

same and communicated its acceptance to the

Government, whereafter the Rules were

19

Page 20 promulgated and Rule 3(4) of the Rules embodies

the aforesaid principle. … … … We see no legal

infirmity with the conclusions arrived at by the

High Court, requiring interference by this Court,

even though we agree that some individual

Magistrates might have suffered some loss. …”

(Emphasis supplied)

22.All that apart, integration is a policy matter for the

State. This Court had occasion to consider this aspect

of the matter in Reserve Bank of India v. N.C.

Paliwal and others

9

. To quote:

“15. Now, the first question which arises for

consideration is whether Reserve Bank violated

the constitutional principle of equality in bringing

about integration of non-clerical with clerical

services. We fail to see how integration of different

cadres into one cadre can be said to involve any

violation of the equality clause. It is now well

settled, as a result of the decision of this Court in

Kishori Mohanlal Bakshi v. Union of India2 that

Article 16 and a fortiori also Article 14 do not

forbid the creation of different cadres for

government service. And if that be so, equally

these two articles cannot stand in the way of the

State integrating different cadres into one cadre. It

is entirely a matter for the State to decide whether

to have several different cadres or one integrated

cadre in its services. That is a matter of policy

which does not attract the applicability of the

equality clause. The integration of non-clerical

with clerical services sought to be effectuated by

the combined seniority scheme cannot in the

circumstances be assailed as violative of the

constitutional principle of equality.”

(Emphasis supplied)

9

(1976) 4 SCC 838

20

Page 21 23.In R.S. Makashi and others v. I. M. Menon and

others

10

, this Court held that :

“34. When personnel drawn from different

sources are being absorbed and integrated in a

new department, it is primarily for the

Government or the executive authority concerned

to decide as a matter of policy how the equation of

posts should be effected. The courts will not

interfere with such a decision unless it is shown to

be arbitrary, unreasonable or unfair, and if no

manifest unfairness or unreasonableness is made

out, the court will not sit in appeal and examine

the propriety or wisdom of the principle of

equation of posts adopted by the Government . In

the instant case, we have already indicated our

opinion that in equating the post of Supply

Inspector in the CFD with that of Clerk with two

years’ regular service in other government

departments, no arbitrary or unreasonable

treatment was involved.”

(Emphasis supplied)

24.In Prafulla Kumar Das and others v. State of

Orissa and others

11

, it was held that :

“33. Under Article 309 of the Constitution of

India, it is open to the Governor of the Sate to

make rules regulating the recruitment, and the

conditions of service of persons appointed to such

services and posts until provision in that behalf is

made by or under an Act of the legislature. As has

been rightly pointed out by the Court in

Nityananda Kar case 2 , the legislature, or the

Governor of the State, as the case may be, may, in

its discretion, bestow or divest a right of seniority.

This is essentially a matter of policy, and the

question of a vested right would not arise, as the

State may alter or deny any such ostensible right,

10

(1982) 1 SCC 379

11

(2003) 11 SCC 614

21

Page 22 even by way of retrospective effect, if it so

chooses ( sic ) in public interest .”

(Emphasis supplied)

25.In S. S. Bola and others v. B.D. Sardana and

others

12

also, this Court held that seniority of a

government servant is not a vested right and that an

Act of State Legislature or a Rule under Article 309 of

the Constitution of India can retrospectively affect

the seniority of a government servant. To quote:

“153. xxx xxx xxx

xxx

AB. A distinction between right to be considered

for promotion and an interest to be considered for

promotion has always been maintained. Seniority

is a facet of interest. The rules prescribe the

method of recruitment/selection. Seniority is

governed by the rules existing as on the date of

consideration for promotion. Seniority is required

to be worked out according to the existing rules.

No one has a vested right to promotion or

seniority. But an officer has an interest to seniority

acquired by working out the rules. The seniority

should be taken away only by operation of valid

law. Right to be considered for promotion is a rule

prescribed by conditions of service. A rule which

affects chances of promotion of a person relates to

conditions of service. The rule/provision in an Act

merely affecting the chances of promotion would

not be regarded as varying the conditions of

service. The chances of promotion are not

conditions of service. A rule which merely affects

the chances of promotion does not amount to

change in the conditions of service. However, once

a declaration of law, on the basis of existing rules,

is made by a constitutional court and a mandamus

12

(1997) 8 SCC 522

22

Page 23 is issued or direction given for its enforcement by

preparing the seniority list, operation of the

declaration of law and the mandamus and

directions issued by the Court is the result of the

declaration of law but not the operation of the

rules per se.

xxx xxx xxx xxx xxx

200. Thus to have a particular position in the

seniority list within a cadre can neither be said to

be accrued or vested right of a government

servant and losing some places in the seniority list

within the cadre does not amount to reduction in

rank even though the future chances of promotion

get delayed thereby.”

26.The High Court patently erred in holding that the

acquired or accrued rights of the writ petitioner had

been affected by the fixation of seniority at the level

of sub-inspector of Police. It has to be noted that, but

for merger, neither the writ petitioner nor the

members of the two other police forces, viz., Sikkim

Vigilance Police and Sikkim Armed Force, could have

got any promotion at all to the post of Deputy

Superintendent of Police. The very purpose of

integration was to remove the inequality and provide

them with the opportunity for promotion to the post

of Deputy Superintendent of Police. If length of

continuous service in the highest cadre of some

similar services is taken as the basis of fixing the

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Page 24 seniority and for further promotion to higher posts

that would certainly result in deeper injustice to the

members of the other services. It was hence the

State, after due deliberations and based also on

report of an expert Committee consisting of the top

level offices in the State, took an equitable decision

to make the post of sub-inspector of Police, where

there is direct level entry in one of the services, as

the determining factor for fixation of seniority. The

writ petitioner did not suffer any demotion in the

process. He continued in the post of inspector. The

only thing is that his compeers in Sikkim Police Force

who could not get accelerated promotion to the post

of inspector, but who are admittedly senior to him if

the date of appointment to the post of sub-inspector

is taken, were given the deemed date of promotion

to the post of inspector based on the seniority at the

level of sub-inspector. The amended rule certainly

has thus a nexus to the injustice sought to be

removed so as to balance the equity. It is neither

irrational nor arbitrary.

27.It is significant also to note that in the whole State of

Sikkim, the writ petitioner is the only person who

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Page 25 challenged the amendment which by itself would

show that it was a case of a solitary instance,

assuming there is basis for his grievance. We may,

however, take note of a factual position that the writ

petitioner was senior to some of the private

respondents if his date of entry in service as Sikkim

Police Constable is taken. But when the Sikkim

Vigilance Police was formed, he opted for that and he

was absorbed in that Police wherein he got

accelerated promotions to the various posts of head

constable, assistant sub-inspector, sub-inspector and

inspector. But it appears that such a ground with

regard to his original date of entry as a police

constable in 1974 is not taken anywhere.

28.All that apart, if we closely analyse Rule 9(1), it can

be seen that the principle of fixation of seniority as

introduced by the amendment was already there. It is

already provided therein that the relative seniority of

the members recruited directly will be fixed based on

the date of induction to the cadre. In other words,

date of induction to a cadre where there is direct

recruitment is the basis of fixation of seniority in the

instant case at the level of sub-inspector. Thus, the

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Page 26 amendment is merely clarificatory in nature and,

therefore, it is deemed to exist from the original date

of commencement of the Rule in 2000.

29.Be that as it may, the High Court has already

protected the promotions granted to the private

respondents but the High Court has struck down the

Rule and has quashed the seniority list. As we have

already noted above, the High Court has

unfortunately missed the crucial consideration with

regard to the principles set by the State with regard

to fixation of seniority, the purpose sought to be

achieved in the process, the relevant considerations

which lead to the decision and the materials

including the report of the expert committee which

were relied on by the State in the process of making

and taking of the decision. The State has only acted

within its authority under Article 309 of the

Constitution of India in bringing about the

clarificatory amendment with regard to the fixation of

seniority in the cadre of sub-inspectors. The

retrospectivity given to the private respondents by

giving the deemed date of promotion is neither

arbitrary nor unreasonable. On the contrary, it is

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Page 27 perfectly just, fair and equitable in the given

circumstances without which the integration of

services would have resulted in graver inequality and

injustice to the members of the major service. In the

result, the appeal is allowed. The impugned judgment

is set aside. Writ Petition filed by the private

respondent in High Court is dismissed.

30.We have already noted above that the first

respondent-writ petitioner was also promoted as

Deputy Superintendent of Police and he has retired

from service. Rule 17 of the 2000 Rules has provided

for power of relaxation to the State. Since the first

respondent-writ petitioner had actually entered in

service in 1974, prior to some of the private

respondents, this could have been probably a case

for the State Government to exercise that power. We

do not propose to relegate the first respondent-writ

petitioner at this stage for that remedy. For doing

complete justice, being a solitary case, we hold that

the benefits granted by the High Court in the

impugned Judgment to the writ petitioner, shall not

be disturbed.

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Page 28 31.The appeal is allowed as above. There is no order as

to costs.

……………………… J.

(H. L.

GOKHALE)

………………

………J.

(KURIAN

JOSEPH)

New Delhi;

February 18, 2014.

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