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PETITIONER:

UNION OF INDIA AND ANOTHER

Vs.

RESPONDENT:

HARISH CHANDER BHATIA AND OTHERS

DATE OF JUDGMENT08/12/1994

BENCH:

HANSARIA B.L. (J)

BENCH:

HANSARIA B.L. (J)

KULDIP SINGH (J)

CITATION:

1995 SCC (2) 48 JT 1995 (1) 233

1994 SCALE (5)144

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered by

HANSARIA, J.- The perennial dispute of Service Law-inter se

seniority between promotees and direct recruits-has surfaced

again in this appeal. This time the parties in dispute are

officers belonging to DANI

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(Delhi and Andaman and Nicobar Islands) Police Service (the

Service). To resolve the lis we shall have to first

determine as to when the respondents can be said to have

become members of the Service and then we have to find out

as to how they are to be placed in the seniority list to be

prepared as required by Rule 29 of the DANI Police Service

Rules, 1971 (for short 'the Rules').

2.While making appointments to the Service, proportion as

specified in Rule 5 has to be home in mind-which, under

normal circumstances is 1: 1 qua promotees and direct

recruits, which, however, for reasons to be recorded, may be

varied in the exigency of public service. The respondents

herein, who are 4 in number were appointed after they had

gone through the procedure of selection mentioned in Rule

24. They admittedly did not come to be appointed as per

Rule 16. They came to occupy the promotional post of

Assistant Commissioner of Police, by virtue of what has been

provided in Rule 25. We would be called upon to determine

whether the respondents were appointed under sub-rule (1) or

sub-rule (3) of this rule. After having done so, we would

be required to see as to how their seniority vis-a-vis the

direct recruits has to be determined.

3.Rules 4, 14, 15, 16, 24, 25 and 29 of the Rules are

relevant to determine the controversy at hand and they read

as below:

"4. Strength of the Service.- (1) The

authorised permanent strength of the Service

and the posts included therein shall be as

specified in the Schedule.

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(2) The number of selection grade posts in

the Service shall be 13 per centof the

authorised permanent strength of the Service.

(3) The Central Government or the

Administrator, subject to such conditions and

limitations as may be specified by the Central

Government, may, by order, create duty posts

for such period as may be specified therein.

14. Conditions of Eligibility and Procedure

for Selection.- (1) The Committee shall

consider from time to time the cases of

officers eligible under clause (b) of sub-rule

(1) of Rule 5, who have served in the

respective cadre or posts, as the case may be,

for not less than two years and prepare a list

of officers recommended for appointment after

taking into account the actual vacancies at

the time of selection and those likely to

occur during a year. The selection for

inclusion in the list shall be based on merit

and suitability in all respects for

appointment to the Service with due regard to

seniority.

(2)The seniority of the officers eligible

for consideration by the Committee under sub-

rule (1) shall be determined by the Central

Government with due regard to the dates of

their appointments on a regular basis to the

respective cadre or posts, the pay scales of

the posts etc.:

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Provided that the persons belonging to the same parent

service or Department shall be ranked inter se in order of

their relative seniority in the parent Service or

Department, as the case may be;

(3) The names of persons included in the list shall be

arranged in order ofmerit.

(4) The list so prepared shall be forwarded by the

Committee to the

CentralGovernment.

15. Consultation with the Commission.- (1) The list

prepared under Rule 14 together with the relevant records

shall be forwarded by the Central Government to the

Commission, where consultation with the Commission is

necessary or where the Chairman of the Committee desires

that a reference be made to the Commission along with the

relevant records.

(2)If the Commission considers it necessary to make any

change in the list received from the Central Government the

Commission shall inform the Central Government of the

changes proposed by it.

*(3) The list shall finally be approved by the Central

Government after taking into account the changes, if any,

proposed by the Commission, and where any changes suggested

by the Commission are not accepted, the reasons for such

non-acceptance shall be recorded in writing.

(4)The list thus finally approved shall be in force until

a fresh list is prepared for the purpose in accordance with

these rules. All persons except those under the Himachal

Pradesh Administration who immediately before the

commencement of these rules were borne on the list approved

by the Central Government under sub-rule (4) of Rule 15 of

the Delhi, Himachal Pradesh and Andaman and Nicobar Islands

Police Service Rules, 1965, shall be deemed to have been

included in the same order in a list approved under sub-rule

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(4) of this rule.

*Substituted w.e.f. 12.74 vide MHA Notification No.

U14012/10/73-UTS, dated 2-12-1974.

16. Appointment to the Service.- Appointment to the Service

shall be made in order of merit in the list referred to in

sub-rule (4) of Rule 15 with due regard to the proportion

specified in Rule 5.

24. Selection for Officiating Appointment.-If at any time

the Central Government is of the opinion that the number of

officers available in the list referred to in sub-rule (4)

of Rule 15 for appointments to duty posts is not adequate

having regard to the vacancies in such posts, it may direct

the Committee to consider the case of officers who have

officiated for a period of not less than three years in any

of the cadres mentioned in clause (b) of sub-rule (1) of

Rule 5 and prepare a separate list of officers selected.

The selection for inclusion in the list shall be based on

merit and suitability in all respects for

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officiating appointments to duty posts with due regard to

seniority. The provisions of sub-rules (3) and (4) of Rule

14 and Rule 15 shall apply mutatis mutandis in the

preparation of the selection list under this rule.

25. Officiating appointment to duty posts of the Service.-

(1) If a member of the Service is not available for holding

a duty post, the post may be filled on an officiating basis-

(a) by the appointment of an officer

included in the list referred to in sub-rule

(4) of Rule 15, or

(b) if no such officer is available, by the

appointment of an officer included in the list

prepared under Rule 24.

(2)Notwithstanding anything contained in these rules if

the exigencies of public service so require, a duty post for

which a member of the Service is not available may be filled

on an officiating basis by the appointment with prior

consultation with the Commission of an officer belonging to

a State Police Service on deputation for such period or

periods ordinarily not exceeding three years as the Central

Government may consider necessary.

(3)Notwithstanding anything contained in these rules,

where appointment to a duty post is to be made purely as a

local arrangement for a period of not exceeding six months,

such appointment may be made by the administrator from

persons who are included in the list prepared under sub-rule

(4) of Rule 15, or Rule 24 or who are eligible for inclusion

in such a list

(4)Any appointment made under sub-rule (3) shall be

reported by the Administrator to the Central Government

forthwith.

29. Seniority.- The Central Government shall prepare a list

of members of the Service arranged in order of seniority as

determined in the manner specified below:

(1) Member of the Service appointed at the

initial constitution under Rule 17 shall be

ranked inter se in the order of their relative

seniority in the Delhi, Himachal Pradesh and

Andaman and Nicobar Islands Police Service:

Provided that if the seniority of any such

officer had not been specifically determined

before the commencement of these rules, it

shall be as determined by the Central

Government.

(2) Seniority of person appointed to the

Service under clauses (a) and (b) of sub-rule

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(1) of Rule 5 after the initial constitution

under Rule 17, shall be determined as follows:

(a) Persons recruited on the results of the

competitive examination in any year shall be

ranked inter se in the order of merit in which

they are placed at the competitive examination

on the results of which they are recruited,

those recruited on the basis of an earlier

examination

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being ranked senior to those recruited on the

basis of later examination.

(b) The seniority inter se of persons

recruited by selection shall be determined on

the basis of the order in which their names

are arranged in the list prepared under Rule

14, those recruited on the basis of an earlier

selection being ranked senior to those

recruited on the basis of a later selection.

(c) The relative seniority of direct

recruits and of promotees shall be determined

according to the rotation of vacancies between

direct recruits and promotees which shall be

based on the quotas of vacancies reserved for

direct recruitment and promotion under Rule

5."

4. From the above, it is clear that for a person to be

appointed under subrule (1) of Rule 25, he has to be an

officer whose name is included in the list referred to in

sub-rule (4) of Rule 15 or one prepared under Rule 24.

Insofar as sub-rule (3) is concerned, this requirement is

not to be satisfied, and further, appointment under that

sub-rule cannot exceed six months and is made as a local

arrangement. The respondents are those whose names found

place in the list prepared under Rule 24 and their

appointments not having been made purely as a local

arrangement for a period not exceeding six months, we have

no difficulty in upholding the view of the Central

Administrative Tribunal, Principal Bench, whose judgment has

been impugned in this appeal, that respondents were

appointed under sub-rule (1).

5. There is no serious dispute to this position even by

learned Additional Solicitor General, Shri Tulsi, who has

appeared for the appellants. His first real contention is

that despite the appointments being under sub-rule (1), the

respondents cannot be taken to have been appointed to the

Service and as such the direction of the Tribunal to treat

them as permanent appointees instead of as officiating

hands, is not in consonance with what has been provided in

the Rules. Shri Tulsi submits that appointment to the

Service can be made only as visualised by Rule 16 and this

can be of those whose names find place in the list referred

in sub-rule (4) of Rule 15. The respondents not being such

incumbents, they cannot be treated as permanent appointees

to the Service.

6. This submission would not be correct if heart of the

matter is looked into. To put it differently, the

submission is not correct in substance, but is so only in

form. We have taken this view because an examination of

Rule 24 shows that the list prepared as required by that

rule, has also to satisfy the requirements of provisions of

sub-rules (3) and (4) of Rules 14 and 15. This shows that

the incumbents whose names find place in the list prepared

as contemplated by Rule 24 are also those who have been duly

selected and consultation with the Commission has also been

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made and the list prepared has been forwarded to the

Central Government as well for its doing the needful. There

is thus no difference in substance between the list

prepared, as

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contemplated by Rule 14 read with Rule 15, and the one

visualised by Rule 24. So, there appears to be no

justifiable reason to regard Rule 24 selectees as in any way

inferior to Rule 14 selectees. According to us, they stand

almost at par. It is because of this that clauses (a) and

(b) of sub-rule (1) of Rule 25 have virtually made no

distinction between these two categories of incumbents.

7. Shri Tulsi, however, contends that Rule 25 visualises

officiating appointment and not permanent; and that

appointment is required to be made when a member of the

Service is not available. Though this is so, but the facts

of the present case would show that though the appointments

were stated to be officiating these continued for a very

long period, which in the case of Respondent 1 was of about

12 years as he came to be appointed under Rule 25 on 6-11-

1972 and was fixed permanently in the slot meant for

promotees on 28-7-1984. An officiating appointment for over

a decade cannot be treated as fleeting appointment with no

service benefits to be given. Any other view would very

seriously prejudice such a service-holder who, even after

having rendered service equal to those of permanent

appointees for a long period, and that too for proper

functioning of the Service, would be denied the benefit of

the same for no cogent reasons. Any other view is bound to

have a demoralising effect in the Service as a whole. As

the appointments under Rule 25 are also to duty posts, which

may form part of the strength of Service because what has

been stated in Rule 4(3), we are of the view that justice of

the case and the need to preserve the efficient functioning

of the Service would require to treat the appointments of

the respondents as permanent, despite their having been

first appointment on officiating basis.

8. The real hub lies in the placement of the respondents

in the seniority list. Shri Tulsi has urged that we may not

do anything, because of the long period for which

respondents have served, which would be against the

principle of seniority embodied in Rule 29. As per clause

(c) of sub-rule (2) of this rule inter se seniority has to

be determined according to the "rotation of vacancies

between direct recruits and promotees", which shall be based

on the quotas of vacancies reserved for direct recruitment

and promotion under Rule 5, which, as already noted, is in

the ratio of 1: 1. The learned counsel, on the strength of

recent decision of this Court in Syed Khalid Rizvi v. Union

of India1 contends that present is not a case where

seniority can be determined on the basis of continuous

officiation. Shri Tulsi earnestly prays that we may not

depart for the requirement of Rule 29 as sanctity of law is

greater than interest of some individuals. It is also

submitted that the present is not a case as to which it can

be said that quota rule has broken down, in which case

alone, seniority which is required to be determined on the

basis of quota can be fixed on the basis of length of

service. We are reminded that the quota rule has become an

inseparable part of our service jurisprudence, as

1 1993 Supp (3) SCC 575: 1994 SCC (L&S) 84: (1994) 26 ATC

192

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it allows a harmonious combination of fresh blood and old

experience, and we may not do anything to cause dent to this

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useful principle.

9.The strenuous contention of Shri Gupta, appearing for

the respondents, is that the present is a case on all fours

with O.P Singla v. Union of India2 in which case this Court

in a similar situation took the view that seniority was

required to be determined on the basis of length of service,

despite there being quota in appointment to the Service in

that case also, which was taken to have broken down.

10.In our view, a few scattered appointments against the

quota rule as have been given here, cannot be taken to be

breakdown of the principle of quota. Such appointments are

at times made in exigency of service because of non-

availability either of direct recruits or suitable

incumbents for promotion. In Singla case2 breakdown was

read because of the language of the service rule concerned

and the way appointments had come to be made. The fact

situation and provision in the rules are different here.

Singla case2 cannot, therefore, come to the aid of the

respondents.

11.According to us, the just and proper order to be passed

would be to direct the appellants to treat the dates of

officiating appointments of the respondents as the dates of

their regular appointments and then to place them in the

seniority list as required by Rule 29 i.e. to interpose a

direct recruit in between two promotees as per their

respective inter se seniorities; and we direct accordingly.

The seniority would, therefore, be refixed of all concerned,

not as per length of service alone as ordered by the

Tribunal, but as indicated by us.

12.Before closing, it is required to be stated that we

have not appreciated the stand taken by the appellants.

This is for the reason that employers like the appellants,

who are required to be model employers, should not take a

stand which is unfair. They have to treat both the wings of

the Service fairly, as both are equally important insofar as

they are concerned. The need for making this observation

has been felt because what we find is that despite an

incumbent like Respondent 1 having served for more than a

decade following his appointment, the stand taken is that he

should be taken to have become a member of the Service from

1984 and not from 1972, being oblivious of the fact that for

more than 12 years he had discharged the functions of the

higher post to the satisfaction of all concerned. Denial of

such long period of service for the purpose of seniority is

an unjustified and arbitrary act which a model employer has

to eschew.

13.The appeal is disposed of as per direction given

earlier. In the facts and circumstances of the case we make

no order as to costs. Special Leave Petition (C) No. 22013

of 1994 (CC No. 21852 of 1993)

14.This petition stands disposed of in terms of the

judgment in CA No. 2481 of 1993 delivered today.

2 (1984) 4 SCC 450: 1984 SCC (L&S) 657: (1985) 1 SCR 351

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