Full Judgment Text
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PETITIONER:
BAIDYANATH JENA & ANR.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 18/09/1998
BENCH:
Sujata V. Manohar, G.B. Pattanaik.
JUDGMENT:
Mrs. Sujata V. Manohar, J.
Delay condoned.
Leave granted.
These appeals are from a judgment of a Full Bench of
the Central Administrative Tribunal dated 29.9.1988
delivered T.A. No.90 of 1987 along with O.A No.146 of 1986.
By a subsequent amendment in these appeals, the
consequential judgment of the Central Administrative
Tribunal dated 6.8.1993 in T.A. No. 90 of 1987 along with
O.A. No. 146 of 1986, giving effect to the said Full Bench
judgment of the Tribunal and also decoding another issue
raised in O.A.No.140 of 1986, has also bean allowed to be
challenged. The appeals are filed by the State of Orissa
the Union of India as also senior officers of the Orissa
State Police Service who were on the Select List, of 1983
for promotion to the Indian Police Service and who have been
thereafter promoted to the Indian Police Service. The
original application before the central Administrative
Tribunal who are now respondents before us were senior
officers in the Orrissa State Police Service whose names
were included in the Select List of 1962 for promotion to
the Indian Police Service; but whose names did not find a
place in the Select List of 1983 for promotion to the Indian
Police Service.
The promotion from the Orissa State Police Service
to the Indian Police Service is governed by the Indian
Police Service (Appointment by Promotion) Regulation of 1955
as amended from time to time. Under Regulation 3 of the
Indian Police Service (Appointment by Promotion) Regulation
of 1955, a Committee is required to be set up as provided
therein for preparation of a list of suitable officers for
promotion to the Indian Police Service. The preparation of
such a list by the Committee is governed by Regulation 5.
The relevant provisions of Regulation 5 for our present
purposes are as follows :
"5. Preparation of a list of Suitable
officers.
(1) Each Committee shall ordinarily meet
at intervals not exceeding one year and
prepare a list of such members of the
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State Police Service as are held by them
to be suitable for promotion to the
Service. The number of members of the
State Police Service included in the list
shall not be more than twice the number of
substantive vacancies anticipated in the
course of the period of twelve months,
commencing from the date of preparation of
the list, in the posts available for them
under rule 9 of the Recruitment Rules, or
5 per cent of the senior posts shown
against items 1 and 2 of the cadre
schedule of each State or group of States,
whichever is greater.
(2) The Committee shall consider for
inclusion in the said list, the cases of
member of the State Police Service in the
order of seniority in that service of a
number which is equal to three times the
number referred to the sub-times the
number referred to in sub-regulation (1) :
Provided that ...........
Provided further that in
computing the number for inclusion in the
field of consideration, the number of
officers referred to in sub-regulation (3)
shall be excluded :
Provided also .............
(2A) ......................
(3) The Committee shall not consider the
cases of the Members of the State Police
Service who have attained the age of 54
years on the first day of January of the
year in which it meets :
Provided that a member of the e State
Police Service whose name appears in the
Select List in force immediately before
the date of the meeting of the Committee
shall be considered for inclusion in the
fresh list, to be prepared by the
Committee, even if he has in the meanwhile
attained the age of 54 years.
Provided further ............
(4) .........................
(5) .........................
(6) The list so prepared shall be reviewed
and revised every year.
(7) Select List (1) The Commission shall
form the Select List of the members of the
State Police Service.
(2) .........................
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(3) The list as finally approved by the
Commission shall form the Select List of
the members of the State Police Service.
(4) The Select List shall ordinarily be in
force until its review and revision,
effected under sub-regulation (6) of
regulation 5, is approved under
sub-regulation (1) or, as the case may
be, finally approved under sub-regulation
(2).
Provided that ............"
Regulation 5(1), therefore requires the Committee to
meet once a year to prepare a Select List. The number of
State Police Service members to be included in the Select
List depends upon the number of substantive vacancies
anticipated in the course of the coming 12 months. The
total number on the list is required to be twice the number
of such vacancies, Where no vacancies are anticipated in the
coming years, the rule requires that the number equivalent
to 5 per cent of senior posts shown against item 1 and 2 of
the cadre schedule of the concerned State should be
considered as the number of vacancies for calculating the
number to be included in the Select List. Under
sub-regulation (2), for the purpose of inclusion in the
Select List the Committee shall consider in the order of
seniority three times the number required in the Select List
under sub-regulation (1) of Regulation 5.
Accordingly a Select Lilt of 1982 was prepared on
the basis of anticipated vacancies in the forthcoming; year.
The names of the original applicants before the Central
Administrative Tribunal were Included in the Select List of
1982. The applicants were, however, not appointed during
the next year 1983. In December 1983, the Committee met and
prepared on 27.12.1983 a Select List of 1983. For the
forthcoming year there were no anticipated vacancies.
Therefore, under sub-regulation (1) of Regulation 5, the
Committee considered 5 per cant of the senior posts shown
against items 1 and 2 of the cadre schedule for the State of
Orissa to decode the number of anticipated vacancies. The
number came to three "vacancies". On that basis, the
Committee under sub-regulation (2) considered the names of
the members of the Orissa State Police Service "In the order
of seniority for inclusion in the Select List prepared in
1983. The original applicants did not find a place in the
Select List of 1983.
According to the original applicants every person
who was on the previous Select List of 1962 is entitles to
be considered for inclusion in the Select List for the next
year i.e. Select List of 1983. The applicant rely upon the
proviso to Sub-ragulation (3) of Regulation 5 in support of
their contention. To examine this contention it necessary
to look at the scheme of Regulation 5. Regulation 5(1)
prescribes the method by which the number of persons on the
Select List will be determined. Under sub-regulation (2)
for putting the names of persons on the Select List the
Committee is required to consider, in the order of
seniority, three times the number referred to in
sub-regulation (1). the second proviso to sub-regulation
(2), however, provides that in considering the names in the
field of consideration the officers who are referred to in
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sub-regulation (3) shall be excluded. Sub-regulation (3),
therefore, is meant to exclude certain people who may
otherwise, be in the zone of consideration, Sub-regulation
(3) provides that those who have attained the age of 54
years on the 1st day of January of the year in which the
Committee meets, shall not be within the zone of
consideration. The proviso to sub-regulation (3), however,
makes an exception. It provides that if a person who has so
attained the age of 54 years was in the previous Select
List, his name shall be considered. The Tribunal has
interpreted this proviso to mean that every person whose
name was in the previous Select List shall be included in
the subsequent Select List. This interpretation is not
borne out by the scheme of sub-regulation (3) read with
subregulation (2). The proviso to sub-regulation (3) is an
exception to the Rule in sub-regulation (3) that those who
have attained the age of 64 years shall not be included in
the Select List. The only exception is in the case of those
persons whose names were in the previous Select List and who
have attained, in the meanwhile, the age of 64 years. All
these persons are required to be considered. The proviso to
sub-regulation (3), therefore, covers only those persons who
have attained the age of 64 years and whose names were In
the previous Select List.
Similar, Regulations for promotion to the Indian
Administrative Service were considered in Ramnand Prasad
Singh and Anr. etc.v. Union of India and Ors. etc.
([1996)] 4SCC 64). Regulation 6 of the I.A.S. Promotion
Rules which is similar to Regulation 6 in the present case,
was interpreted for the purpose of deciding who were within
the zone of consideration under Regulation 5. This Court
said that zone of selection under Regulation 5 consists of
three parts, (i) Officers who fall within Regulation 5(2)
after excluding all those officers falling under Regulation
3, (ii) Officers who have attained the age of 54 years who
are carried forward from the earlier selection list in
force, (iii) Officers above the age of 54 who have been
deprived of their chance of being considered due to
non-holding of meeting of the Selection Committee [second
proviso to sub-regulation (3)]. Hence sub-regulation (3)
does not provide for considering all those persons who were
in the previous Select List for selection to the Select List
for the subsequent years. The list has to be prepared in
accordance with Regulation 5(2). The only exception is in
respect of those in the previous Select List who have
attained the age of 54 years.
The original applicants contend that under
Regulation 7 of the Indian Police Service (Appointment by
Promotion) Regulations, sub-regulation (4) of Regulation 7
provides that the Select List shall ordinarily be in force
until its review and revision effected under sub-regulation
(60 of Regulation 5. Regulation 5(6) also states that the
list has to be reviewed and revised every year. They submit
that the residue of the previous list must, therefore, form
a part of the new list because Regulations 7(4) and 5(6)
talk about review and revision of the Select List. However,
Regulation 5 of which sub-regulation (60 forms a part, quite
clearly lays down the manner in which the list has to be
annually reviewed and revised. A new list has to be
prepared every year and the list so prepared Is a
reviewed/revised list for that year. From these
sub-regulations one cannot spell out that the members on the
old list will continue to form a part of the new Select List
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when the provisions of Regulation 5 are expressly to the
contrary. A similar agreement was rejected by this Court in
the case of Union of India v. Mohan Lal Capoor & Ors.
([1974] 1 SCR 797, 803). It said that although the new
Select List was called a review/revision of the previous
list, It was to be prepared on the basis of fresh
assessment. Inclusion in the Select List for one year was
not an entitlement to inclusion in the next List. The
direction given by the Full Bench of the Tribunal,
therefore, that the applicants who were in the Select List
of 1982 are required to bo considered for the Select List of
1983, cannot be sustained. The consequential directions
given by the Tribunal In the impugned judgment of 6.8.1993
also have to be set aside.
The next question that we have to consider pertains
to an individual respondent one Raiguru who had filed O.A.
No.146 of 1986 before the Central Administrative Tribunal.
He contended that his officiating service in the Indian
Police Service should count for seniority in the Indian
Police Service. Raiguru who was a senior officer in the
Orissa State Police Service and was in the Select List for
1982 was given an officiating promotion to the Indian Police
Service under on order of 18.6.1982 and he started
officiating in the Indian Police Service with effect from
23.6.1982. Despite being on the Select List of 1982
Raiguru, however, could not be promoted regularly to the
Indian Police Service with effect from 23.6.1982. Despite
being on the Select List of 1982 Raiguru, however, could not
be promoted regularly to the Indian Police Service before
the Select List of 1983 was finalised. His name was not
included in the Select List for 1983, Thereafter by an
office order dated 22.7.1983 Raiguru was again allowed to
officiate against a post of Additional S.P. in the Inidan
Police Service cadre for a period not exceeding three months
under Rule 9 of the I.P.S. Cadre for a period not exceeding
three months under Rule 9 of the I.P.S. (cadre Rules), 1954
was again granted on 5.7.1985.
Thereafter by a notification of 10.1.1986 a number
of officers belonging to the Orisaa Police Service including
Raiguru were allowed to officiate in Orissa Police Service
Senior Class I on ad hoc basis for a period of one year or
till the recommendations of the Orissa Public Service
Commission was received, whichever was earlier. The
appellant was granted a post in the Orissa Police Service
Senior Class I as Additional Superintendent of Police,
Balasour. However, by an office order dated 16.5.1987 he
was again allowed to officiate against a post of Additional
S.P. in the I.P.S. Cadre for a period not exceeding three
months under Rule 9 of the I.P.S. (Cadre ) Rules, 1954, By
a notification dated 30.4.1988, Raiguru who was described
there as Orissa Police Service Class I Additional
Superintendent of Police, Bolangir, was transferred and his
service were placed at the disposal of Commerce and
Transport (Transport) Department for his posting as Chief
Vigilance Officer under the Orissa Transport Company
Limited, Berhampur. These orders show some postings in the
I.P.S. Cadre under Rule 9 and at least two postings in the
Orissa Police Service (OPS) Cadre or elsewhere during the
period 23.4.1982 to 30.4.1988.
Under an order of the Central Administrative
Tribunal dated 19.3.1990 in O.A.No. 97 of 1989 filed by
Raiguru, (who seems to have a penchant for filing OAS) the
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Tribunal has given a deemed date of 1st of February, 1989 as
the date of regular promotion of Raiguru to the I.P.S.
Cadre. This date has not been challenged. Raiguru has
claimed that his officiating service in the I.P.S. Cadre
from 23.6.1982 should count for seniority in the I.P.S.
Cadre which relief has been granted to him.
To examine the question of seniority it must
firstly, be borne in mind that during the period 23.6.1982
untill 1.2.1989, the deemed date of promotion to the I.P.S.
Cadre, Raigur’s appointment to the I.P.S. Cadre was only
temporary and in an officiating capacity under Rule 9 of the
I.P.S. Cadre Rules. Rule 9 of the Indian Police Service
(Cadre) Rules, 1954 provides as follows :-
"Temporary appointments of non-cadre
officers to cadre posts, (1) A cadre post
in a State may be filled by a person who
is not a cadre officer if the State
Government "or any of its Heads of
Department to whom the State Government
may delegate its powers of making
appointments to cadre posts", 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;
Provided where a cadre post is
filled by a non-Select List officer, or a
Select List officer who is not next in
order in the Select List, under this
sub-rule, the State Government shall
forthwith report the fact to the Central
Government together with the reasons for
making the appointment."
Therefore, office orders of 22.7.1983, 5.7.1985 and
16.5.1987 are all office order of temporary appointment to a
cadre post in the I.P.S. and the same is the position with
regard to the first order of 18/23.6.1982.
The seniority in the Indian Police Service (I.P.S.)
is governed by Indian Police Service (Regulation of
Seniority) Rules, 1954 (hereinafter referred to as the
Seniority Rules). Under Rule 3(1) every officer shall be
assigned a year of allotment in accordance with the
provisions hereinafter contained in the said Rule. Sub-rule
(3) of Rule 3 is as follows :-
Sub-ru1e(3) of Rule 3: The year of
allotment officer 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
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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 these Rules who officiated continuously
in the senior post from a data earlier
than the date of commencement of such
officiation by the former:
Provided that the year of allotment 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 cadre 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.
......................
Explanation 1: In respect of an officer
appointed to the Service by promotion in
accordance with sub-rule (1) of rule 9 of
the Recruitment Rule, the period of his
continuous officiation in a senior post
shall for the purposes of determination of
his seniority; count only from the date of
the inclusion of his name in the Select
List, or from the date of his officiating
appointment to such senior post whichever
is later:
Provided ..............
Explanation 2- 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
continuous to hold without any break or
reversion a senior post otherwise than as
a purely temporary or local arrangement.
Explanation 3- 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 training."
The reference to Rule 9 of the Recruitment Rules in the said
sub-rule (3) of Rule 3 is to recruitment by promotion from
the State Police Service. Therefore, Rule 3(3)(b) provides
for the manner in which the year of allotment has to be
assigned to an officer promoted from the State Police
Service. Under Explanation 1, the period of his continous
officiation in a senior poet shall, for the purpose of
determining seniority, count only from the date of inclusion
of hie name in the Select List or from the date of his
officiating appointment to such senior post, whichever is
later. Explanation 2 provides that an officer shall be
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deemed to have officiated continuously in a senior post in
the I.P.S. Cadre if, during the period from that date to
the date of hie confirmation, he continues to hold without a
break or reversion such a post otherwise than as a purely
temporary or local arrangement.
Therefore, officiation in a senior post in the
I.P.S. Cadre will count for seniority provided such
officiation is continuous and the post is not held as a
purely temporary or local arrangement. From the available
material, it is difficult to see how Raiguru could be said
to have held the post in the I.P.S. Cadre continuously till
his deemed regular appointment on 1.2.1989. Even if we
assume that in the interregnum between the different office
orders he continued to hold the same post, this cannot be
considered as regular officiation in the absence of any
order. Moreover, the notifications of 10.1.1986 and
30.4.1988 show that pursuant to those notifications he was
given postings in the Orissa Police Service Senior Class I
post and later he was also given a posting as Chief
Vigilance Officer in the Orrissa Transport Company.
Therefore, it cannot be said that till 1st of February, 1989
which has been accepted by all sides as the deemed date of
regular promotion to the I.P.S. Cadre of Raiguru, he was
continuously officiating in a senior post in the I.P.S.
Cadre otherwise than as a purely temporary or local
arrangement.
The appellants have also pointed out that on
7.7.1988 six temporary posts in Orissa Police Service Senior
Class I in the rank of Additional S.P. were created in
order to regularise the officiation of six officers
including Raiguru in the I.P.S. Cadre posts. Against the
name of Raiguru the period of irregular officiation is
mentioned as 23.6.1982 to 31.1.1986. In paragraph 4 of the
letter of sanction dated 7.7.1988, it is stated that
"officers concerned were allowed to officiate as Additional
S.P. against cadre post of I.P.S. for a period of three
months under Rule 9 of I.P.S.(Cadre) Rules but continued to
hold a post of Additional S.P. without any further
extension by the Government. Since the Government by
creating post of Additional S.P. (unspecified) in O.P.S.
Senior Class I, it is necessary now to fix up their pay
during the period of their officiation as mentioned in the
Government Order". Clearly, therefore, the officiation in
the I.P.S. Cadre beyond a period of three months under each
of the orders was irregular officiation which had to be
regularised by creating posts in the Orissa Police Service
Senior Class I Cadre. There is another order of 9.7.1991 by
the Under Secretary to the Government of India to give
effect to the judgment dated 31.3.1989 in T.A. No. 2 of
1988 filed by Raiguru under which the Tribuanl had directed
that Raiguru be given the allowances attached to the post of
Additional S.P. during the period of his offication). To
give effect to this order, the Government of India, in order
to regularise the payment of such pay and allowances, in
compliance with the said Judgment, approved the creation of
a temporary post of Additional S.P. to the I.P.S. Cadre of
Orissa for the period from 23.6.1982 to 7.7.1988. This
creation of a post was pursuant to the order of the Tribunal
in T.A. No.2 of 1988 and was only for the purpose of
regularising payment of pay and allowances to Raiguru under
that order. It does not give him any right to claim
seniority on the basis of the order of 9.7.1991. The said
order cannot and is not meant to give him any benefit of
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seniority on that basis. The order is merely to regularise
payment of allowances of an Additional S.P. to Raiguru
because of the judgment of the Tribunal in T.A. No.2 of
1988.
Apart from a question mark against his continuous
officiation, there is another hurdle in the way of counting
such officiation for seniority. Explanation 1 to Rule
3(3)(b) of the Seniority Rules requires that such
officiation must be during the period when the officer’s
name is no the select list. Otherwise, officiation does not
count for seniority. We have not been shown that from 1983
to 1989, Raiguru’s name was no the select list for each of
those years. The Tribunal was, therefore, not right in
granting to the appellant seniority on the basis of his
temporary officiation commencing from 23.6.1982 when there
are Seniority Rules which expressly lay down the manner in
which such seniority Rules which expressly lay down the
manner in which such seniority is to be given. Those Rules
have to be followed.
Our attention was drawn to a decision in the case of
Union of India etc. v. G.N. Tiwari, K.L. Jain & Ors.
[(1985] Supp. 3 SCR 744), where this Court considered
similar Rules pertaining to the Indian Administrative
Service. In that case the concerned person had officiated
in a senior post under Rule 9 of the corresponding I.A.S.
Cadre Rules from 10.11.1975 and he had continued to
officiate until he was regularly appointed to the I.A.S. on
7.12.1926. On that basis he was assigned a year of
allotment under Rule 3(3)(b) of the I.A.S. (Seniority)
Rules. The Court held that his continuous officiation
should count for the purposes of Rule 3(3)(b) of the I.A.S.
(Seniority) Rules. This was a case where a person was
appointed under Rules. This was a case where a person was
appointed under Rule 9 of the Cadre Rules to officiate in a
senior post and he continued to so officiate until his
actual regular appointment. In these circumstances, the
Court held that his continuous officiation must count for
the purposes of seniority under Rule 3(3)(b) of the
Seniority Rules.
Another case where the same Rules with which we are
concerned came up for consideration was the case of M.V.
Krishna Rao and Ors. v. union of India and Ors. ([1994]
Supp. 3 SCC 553). In that case the appellant had been
appointed to officiate in a senior post under Rule 9 of the
I.P.S. Cadre Rules. There was a challenge to his
continuous officiation under Rule 9 as being not in
accordance with Rule 9. Nevertheless, the person had
continued to officiate in the senior post. While so
officiating he was included in the Select List with effect
from 9.1.1978. Pursuant to the inclusion in the Select
List, he was appointed regularly to I.P.S. on 19.12.1978.
The Court said that in view of Explanation 1 to Rule 3(3)
which provides for counting continous officiation only from
the date of inclusion in the Select List, the appellant was
entitled to count his seniority in the I.P.S. post from
9.1.1978. The Court rejected various objections relating to
that person’s officiation as not being entirely in
accordance with Rule 9. Nevertheless, what was important
was that the person had officiated in a senior post
continuously until his name was included in the Select List
and until his regular appointment. Although he had
officiated prior to the inclusion of his name in the Select
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List, he was given seniority only from the date of inclusion
of his name in the Select List.
The provisions of Rule 3(3)(b) of the Seniority
Rules have been interpreted by this Court in paragraph 8 of
that judgment. In respect of the promotes the Court has
said that under Rule 3(3)(b), in the case of a promotee his
year of allotment shall be the year of allotment assigned to
the junior-most among the direct recruits who officiated
continuously in a senior post from a date earlier than the
date of commencement of officiation by such promotee. In
the case of a promotee the period of his continuous
officiation in a senior post shall count from the date of
inclusion of his name in the Select List or from the date of
his continous officiating appointment whichever is later.
Explanation 2 seeks to exclude the period of temporary
posting made by way of local arrangement from the purview of
continuous officiating service.
Therefore, in the present case it is necessary to
establish (1) the period of continuous officiation in the
senior post by Raiguru; and (2) the period of continuous
officiation, if any, after his inclusion in the Selection
and officiation must coincide and should be continuous to
form a basis for granting seniority. When the first order
of 18.6.1982 was issued under Rule 9 Raiguru was on the
Select List of 1982. However, when the next order of
22.7.1983 was issued under Rule 9 Raiguru was not in the
Select List for that period. There are two subsequent
orders of 1985 and 1987 for his continuous officiation. It
is not shown whether during this entire period the name of
Raiguru was on the Select List. Then in 1986 he was clearly
not officiating in a senior post but he was posted in the
Orissa Police Service Senior Class I Service and the same is
the case with the order of 30th of April, 1988. In the
order of 30th of April, 1988, Raiguru is described as
holding the post in Orissa Police Service Senior Class I.
In the light of these facts it is not possible to
hold that prior to his deemed date of promotion on 1.2.1989
he was continuously officiating a senior post in the I.P.S.
Cadre or that such officiation was at a time when his name
was on the Select List because unless such officiation is
during the period when the name of the officer is on the
Select List it will not count for seniority under
Explanation 1 to Rule 3(3)(b). This not being the case
here, the respondent-Raigure cannot be given the benefit of
the so called continuous officiation for his seniority.
Learned counsel for the respondent-Raiguru has
relied upon Union of India and Anr. v. Harish Chander and
Ors. ([1995] 2 SCC 48), where this Court held that
officiation for a long period would count for seniority. He
has also relied upon case cited there. However, when there
are express Rules which prescribe how and when continuous
officiation will or will not count for seniority, such Rules
have to be enforced and one cannot resort to any general
legal formulation. Three other cases were cited before us
relating to seniority and year of allotment. These are
Harjeet Singh v. Union of India 9[1980] 1 SCC 37) and
Ramchandra Dayaram Gawande v. Union of India and Ors.
([1996] 10 SCC 420). All these cases deal with seniority
and year of allotment. However, each of them turns upon its
own special facts and have no application to the present
case.
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In the premises respondent-Raiguru is not entitled
to claim seniority from 23.6.1982 or for any part of the
period prior to 1.2.1989.
The appeals are accordingly allowed and the impugned
judgment and orders of the Tribunal dated 29.9.1988 and
6.8.1993 are set aside and the original writ
petition/applications are dismissed. There will, however,
be no order as to cost.