Full Judgment Text
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PETITIONER:
R. P. KHANNA & ORS.
Vs.
RESPONDENT:
S.A.F. ABBAS & ORS. ETC.
DATE OF JUDGMENT22/02/1972
BENCH:
RAY, A.N.
BENCH:
RAY, A.N.
SIKRI, S.M. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1972 AIR 2350 1972 SCR (3) 548
1972 SCC (1) 784
CITATOR INFO :
R 1975 SC1061 (11)
R 1977 SC 451 (8)
R 1979 SC1676 (2)
D 1991 SC1406 (24)
ACT:
Indian Administrative Service (Regulation of Seniority)
Rules 1954, Rule 3(3)(b)--Year of allotment of
promotee--Officiation in senior post prior to inclusion of
promotee’s name in Select List can be taken into
consideration only after approval by Central Government and
Union Public Service Commission---Post held by promotee may
be declared equivalent to senior post retrospectively.
HEADNOTE:
Rule 3(3)(b) of the Indian Administrative, Service
(Regulation of Seniority) Rules 1954 laid down in its main
part that the year of allotment of an officer who was
appointed to the service by promotion ’shall be the year of
allotment of the junior-most among the officers who entered
the service by direct recruitment who officiated
continuously in a senior post from a date earlier than the
date of commencement of such officiation by the former. The
second proviso to the rule laid down that a promotee shall
be deemed to have officiated continuously in a senior post
prior to the date of inclusion of his name in the Select
List prepared in accordance with the requirements of the
Indian Administrative Service (Appointment by Promotion)
Regulations, if the period of such officiation prior to that
date was approved by the Central Government in consultation
with the Union Public Service Commission.. The appellants
became members of the Indian Administrative Service in the
years 1949 and 1950 by direct recruitment. The respondents
were initially recruited to the executive branch of the
Bihar State Civil Service and were subsequently in the years
1955 and 1956 promoted to the Indian Administrative Service.
The Government of India on 3 September 1958 allotted to the
respondents the year 1948 and placed them below the junior
most amongst the direct recruits of the 1948 allotment in
purported compliance with Rule 3(3)(b) aforesaid. The
appellants thereupon made a representation to the Union
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Government as a result of which the Union Government by
order dated 20 September 1967 revised the seniority of the
promotees and allotted to some of the promotees the year
1950 and to others the year 1952. In making this order the
Government of India agreed with the Ministry of Law in its
view that rule 2(g) of the Seniority Rules did not permit
retrospective declaration of a post as equivalent to a
senior post within the meaning of Rule 3(3)(b) as had been
done by the State Government in the case of the respondents.
The respondents challenged the Union Government’s order
dated 20 September 1967 in the High Court. That Court
quashed the said order and directed that the promotees would
continue to hold the year of allotment assigned to them in
the year 1958. In appeal to this Court by the direct
recruits the questions that fell for consideration were (i)
whether the period of officiation in a senior post by a
promotees prior to the inclusion of his name in the Select
List could be taken into consideration without the approval
of the Central Government and the Union Public Service
Commission as required by Rule 3 (3) (b); (ii) whether the
State Government was authorized to retrospectively declare a
post as equivalent to a ’senior post’; (iii)
549
whether in the circumstances of the, ease the order of the
High Court restoring the year 1948 as the year of allotment
for the respondents was right.
HELD : (i) The Select List for the promotion of the
respondents was finally approved by the Union Public Service
Commission on 26 December 1955. Rule 3 (3) (b) of the
Regulation of Seniority Rules, 1954 speaks of approval by
the Central Government in consultation with the Union Public
Service Commission of the period of the officiation prior to
the date of the inclusion of the, names of the promotees in
the select list. This approval as contemplated in rule 3
(3) (b) is a specific approval and is directed to the
particular matter mentioned therein as to whether there is
approval of the period of officiation prior to the inclusion
of the names in the select list. On the materials in the
present appeals it could not be held that the Central
Government gave any approval in- consultation with the Union
Public Service Commission within the meaning of rule 3 (3 )
(b) so as to enable the promotees to have the, benefit of
the period of officiation prior to the date of the inclusion
of their names in the select list. [556H-557C]
D.R. Nim, I.P.S. v. Union of India, [1967] 2 S.C.R. 325
and State of Orissa & Anr. v. B. K. Mohapatra, [1970] 1
S.C.R. 266,applied.
(ii)The contention on behalf of the direct recruits that it
is not open to the State to make a retrospective declaration
with regard to posts being made equivalent to senior posts
was, however, unacceptable. (Reasons discussed.) The State
Government has power to make such a retrospective
declaration. The order of the Union Government dated 20
September 1967 which directed the years of allotment on the
basis that there could not be any retrospective declaration
of equivalent post could not be sustained. [557C-559H]
(iii)The High Court directed that the promotees must
continue to hold ’ranks as assigned to them in the year
1958. This order of the High Court must be set aside for
the reason that the year of allotment must now be determined
by the approval of the Central Government in consultation
with the Union Public Service Commission. [560A]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 565 and
1470 to 1474 of 1970.
Appeals from the judgment and order dated November 7, 1969
of the Patna High Court in Civil Writ Jurisdiction Cases
Nos. 853, 854 and 877 to 880 of 1968.
Basudeo Prasad, R. B. Datar and S. N. Prasad, for the appel-
lants (in all the appeals).
Lal Narain Sinha, Advocate-General for the State of Bihar,
C. K. Daphtary and U. P. Singh, for respondent No. 4 (in
C.A. No. 565 of 1970), respondent No. 2 (in C.A. No. 1473 of
1970) and respondent No. 3 (in C.As. Nos. 1470 to 1472 and
1474 of 1970).
M.C. Chagla, Gobind Das and S. P. Nayar, for respondent
No. 3 (in C.As. Nos. 565 and 1473 of 1970) and respondent
No. 2 (in C.As. Nos. 1470 to 1472 and 1474, 1970).
550
C.K. Daphtary, S. C. Agarwal, R. K. Garg and V. J.
Francis, for respondent No. 1 (in C.A. No. 1470 of 1970).
S.C. Agarwal, R. K. Garg and V. J.-Francis for
respondents Nos. 1 and 2 (in C.A. No. 565 of 1970) and
respondent No. 1 (in C.As. Nos. 1471 to 1474 of 1970).
The Judgment of the Court was delivered by
Ray, L-These six appeals are by certificate from the judg-
ment dated 7 November, 1969 of the High Court at Patna
quashing the order of the Government of India dated 20
September, 1967, and directing that the respondents must
continue to hold rank as assigned to them in 1958.
The appellants and the respondents are now members of the
Indian Administrative Service. For the sake of brevity the
appellants can be described as direct recruits and the
respondents as promotees. The direct recruits were
appointed to the Indian Administrative Service in the years
1949 and 1950 as a result of competitive examination held
for recruitment of candidates to that Service. The
promotees were initially recruited to the executive branch
of the Bihar State Civil Service and were subsequently in
the years 1955 and 1956 promoted to the Indian
Administrative Service.
The controversy in the present appeals is as to the
seniority between the direct recruits and the promotees
under the Indian Administrative Service (Regulation of
Seniority) Rules, 1954.
The Government of India on 3 September, 1958 allotted to the
promotees the year 1948 and placed them below the junior
most amongst the direct recruits of the 1948 allotment.
The direct recruits thereafter made representation against
the decision of the Government of India. Eventually, on 13
January, 1965 the State of Bihar forwarded the.
representation of the direct recruits to the Government of
India against the decision made by the Government of India
in the year 1958. On 4 January. 1966 the Government of
India took a tentative decision to allow the representation
of the direct recruits on the ground that the previous
decision was on wrong facts and on wrong interpretation.
On 14 April, 1967 the State of Bihar represented to the
Government of India to reject the representation of the
direct recruits on the ground that the facts alleged by the
direct recruits were wrong. On 20 September, 1967 the
Government of India however allowed the representation of
the direct recruits and revised the seniority of the
promotees and allotted to some of the promotees the year
1950 and to some of the promotees the year
551
1952 as mentioned in the letter of the Government of India
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dated 20 September, 1967 set out hereunder:-
"The matter was further examined in
consultation with the Ministry of, Law,, who
have reiterated their earlier advice and said
that rule 2 (g) of the Indian Administrative
Service (Regulation of Seniority) Rules, 1954
does not permit retroactive declaration of a
post equivalent to a senior post of the I.A.S.
The declaration made by the State Government
in the present case cannot have retrospective
operation. It will have prospective
operation. The Government of India have
therefore decided to revise the seniority of
the officers concerned. It will appear from
the attached statement that the relevant dates
for the purposes of fixation of Seniority will
be 26 December, 1955 in the case of Shri S. C.
Mishra, S. A. F. Abbas, R. S. Mandal, S. K.
Sinha and S. K. Chakravarty; 1 February, 1956
in the case of Shri S. Sahay and 17 October,
1956 in the case of S/Shri Ramanand Sinha,
Anwar Karim, R. C. Sinha, S. K. Ghosh and M.
Alam. As Shri M. K. Mukherjee the seniormost
regular recruit of 1950 batch started
officiating continuously in senior posts with
effect from 2 May, 1955 a date earlier than
the relevant dates of S/Shri S. C. Mishra,
S. A. F. Abbas, R. S. Mandal, S. K. Sinha, S. K.
Chakravarty, N. P. Sinha and S. Sahay, these
,officers may be re-allotted to the year 1950
and may be placed before Shri S. D. Prasad
(RR-1950) and above Shri P. S. Appu (RR-1951).
Shri N. Nagamani, the seniormost regular
recruit of 1952 batch started officiating
continuously in senior posts earlier than the
relevant dates of S/Shri Ramanand Sinha, Anwar
Karim, R. C. Sinha, S. K. Ghosh, and M. Alam.
These officers may be allotted to the year
1952 and may be placed below Shri K. I K.
Srivastava (RR-1952) and above Shri R. B. Lal
(SCS7SR-1952)".
The promotees impeached the Government of India Memorandum
dated 20 September, 1967 principally on the ground that the
Government of India-was wrong in holding that it was not
competent to the State of Bihar to make a retrospective
declaration of a post as equivalent to a cadre post. The
promotees succeeded in the High Court. The High Court
quashed the order dated 20 September, 1967 and directed that
the promotees would continue to hold the year of allotment
assigned to them in the year 1958.
The Indian Administrative Service (Regulation of Seniority)
Rules, 1954 formed the bone of contention between the direct
552
recruits and the promotees. In order to appreciate the
rival contentions reference may be made to the origin of the
Indian Administrative Service and the relevant rules and
regulations in that behalf.
The origin of the Indian Administrative Service is to be
found in the Memorandum of Agreement dated 21 October, 1946
between the Government of India and the Government of the
then Provinces. The Indian Administrative Service came to
be constituted under the Agreement with effect from 21
October, 1946. Recruitment to the Indian Administrative
Service was to be by direct recruitment or by promotion of
members of a Provincial Civil Service. The Indian Civil
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Administrative Cadre Rules, 1950 specified in the Schedule
thereto for each Province the strength of the cadre and the
number and character of the posts. In 1951 the All-India
Services Act came into existence. The All-India Service was
defined to mean the Indian Administrative Service or the
Service known as the, Indian Police, Service. Later on
section 2(a) was introduced into the 1951 Act to include
certain other. specified Services as All India Services.
Section 3 of the All-India Services Act, 1951 conferred
power on the Central Government after consultation with the
Governments of the States concerned to make rules for the
regulation of recruitment and the conditions of service of
persons appointed to All-India Service. That is how the
Indian Administrative Service (Cadre) Rules, 1954 came into
existence repealing the Indian Civil Administrative Cadre
Rules, 1950. So did the Indian Administrative Service
(Recruitment) Rules, 1954 and the Indian Administrative
Service (Regulation of Seniority) Rules, 1954. Two other
Regulations which are material for the purposes of the
present appeals are the Indian Administrative Service
(Appointment by Promotion) Regulations, 1955 and the Indian
Administrative Service (Fixation of Cadre Strength)
Regulations, 1955. The Promotion Regulations, 1955 were in
exercise of the rule making power under rule 8 of the Indian
Administrative Service (Recruitment) Rules, 1954. The
Fixation of Cadre Strength Regulations, 1955 were made in
exercise of the rule making power conferred on the Central
Government by rule 4 of the Indian Administrative Service
(Cadre) Rules. The 1954 Cadre Rules defined cadre post to
mean any of the posts specified in item I of the Schedule to
the Indian Administrative Service (Fixation of Cadre
Strength) Regulations. The Cadre Strength Regulations, 1955
set out the strength and the composition of the cadre in
relation to the different States including Bihar. For the
State of Bihar there are 8 items. The first item relates to
senior posts under the State Government which are 103 in
number and item 2 relates to senior posits under the Central
Government which are 41 in number. Of these 144 posts 36
are to be filled by promotion and selection in accordance
with
553
rule 8 of the Recruitment Rules, 1954. The other 108 posts
are to be filled by direct recruitment. Items 5, 6, 7 and 8
in the Bihar Cadre Strength relate, to other posts with
which the present appeals are not concerned. Of the total
authorized strength of 211 cadre posts in the State of Bihar
175 are direct recruitment posts and 36 are promotion posts.
The Regulation of Seniority Rules, 1954 defines senior post
meaning a post included and specified under item 1 of the
cadre of each State in the Schedule to the Fixation of Cadre
Strength Regulations, 1955. The 1954 Recruitment Rules
speak of recruitment to the Service inter alia (a) by a
competitive examination, and (b) by promotion. The other
two modes of recruitment by selection from emergency
commissioned officers and from persons who hold any
substantive capacity gazetted post and who are not members
of the State Civil Service are not relevant for the purpose
of the present appeals. Rule 7 of the Recruitment Rules,
1954 relates to recruitment by competitive examination and
rule 8 relates to recruitment by promotion or selection.
The Promotion Regulations, 1955 prescribed the conditions of
eligibility for promotion.
In the background of these Rules and Regulations it follows
that members of a State Civil Service are promoted to the
Indian Administrative Service. The present appeals relate
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to promotees after the abovementioned Rules and Regulations
came into existence.
The question of seniority of promotees vis-a-vis direct
recruits is covered by rule 3(3)(b) of the Indian
Administrative Service (Regulation of Seniority) Rules, 1954
which is set out hereunder:-
" The year of allotment of an officer
appointed to the Service after the
commencement of these rules, shall be :-
(b)where the officer is appointed, to the
Service by promotion in accordance with sub-
rule (1) of rule 8 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 a senior post from
a date earlier than the date of commencement
of such officiating by the former :
Provided that the year of allotment of an
officer appointed to the Service in accordance
with sub-rule, (1) of rule 8 of the
Recruitment Rules who started officiating
continuously in a senior post from a date
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
554
Government in consultation with the State
Government concerned.
Provided further that an officer appointed to
the Service, after the commencement of these
rules in accordance with sub-rule (1) of rule
8 of the Recruitment Rules shall be deemed to
have officiated continuously in a senior post
prior to,the date of the inclusion of his name
in the Select List prepared in accordance with
the requirements of the, Indian Administrative
Service (Appointment by Promotion) Regulations
framed under sub-rule (1) of rule 8 of the
Recruitment Rules, if the period of such
officiation prior to that date is approved by
the Central Government in consultation with
the Commission".
There are two explanations which need not be set out
because. they are not relevant for the purposes of the
present appeals.
The, scheme of the Indian Administrative Service (Regulation
of Seniority) Rules, 1954 is that every officer shall be
assigned a year of allotment in accordance with the
provisions contained therein. The present appeals raise the
question of the year of allotment of the promotees who were
promoted to the Service, after the commencement of the
Rules, in the years 1955 and 1956. Therefore, rule 3(3)(b)
applies to the case of the promotees vis-avis the direct
recruits.
The Indian Police Service, (Regulation of Seniority) Rules,
1954 is the counter-part of the Indian Administrative
Service (Regulation of Seniority) Rules, 1954. Rule 3(3)(b)
of the Indian Police, Service(Regulation of Seniority)
Rules is in identical language with rule3(3)(b) of the
Indian Administrative Service (Regulation of Seniority)
Rules. Rule 3(3)(b,) of the Indian Police Service
(Regulation of Seniority) Rules came up for consideration
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before this Court in two cases. These are the decisions in
D. R. Nim, I.P.S. v. Union of India(1) and State of Orissa &
Anr. v. B. K. Mohapatra (2). Rule 3 (3) (b) which is in
common language the Rules of both the Services and the two
provisos lay down the mode of regulation of seniority of the
promotees vis-a-vis the direct recruits. Promotees will be
given the year of allotment of the junior-most among direct
recruits who officiated in a senior post from a date earlier
than the date of commencement of such officiation by a
promotee. The first proviso regulates the seniority between
direct recruits and promotees who started officiating con-
tinuously in a senior post from a date earlier than the date
on which the direct recruits so started officiating by
prescribing the mode of regulation of seniority by ad hoc
determination by the Central Government in consultation with
the State Government.
(1) [1967] 2 S.C.R. 325.
(2) [1970] 1 S.C.R. 255.
555
The effect of the second. proviso was stated by this Court
in Nim’s (1) caw to be this : "The second proviso limits
the- operation of the first proviso by dividing the
officiating period into two classes; first, a period before
the date of inclusion- of an officer in the Select List and,
secondly, the period after that date. The first period can
only be counted if such period is approved by the Central
Government in consultation with the Union Public Service
Commission".
The rulings of this Court hold that a promotee can obtain
the advantage of officiation continuously in a senior post
prior to the inclusion of the name in, the Select List if
the period of such officiation is approved by the Central
Government in consultation with the Union. Public Service
Commission. The officiation in a senior post is one of the
indispensable ingredients in the application of rule
3(3)(b). A senior post-as defined in the Regulation of
Seniority Rules means a post included and specified under
item 1 of the cadre of the State or any post declared
equivalent thereto by the State Government concerned. It
may be stated here that the definition of. senior post
underwent change in the year 1967 by notification No.
27/47/64-AIS(III)-A dated 17 April, 1967 and the new
definition of senior post came into effect on 22 April,
1967. The present appeals are governed by the definition of
senior post prior to the year 1967. The important words in
the relevant definition of the senior post are ’any post
declared equivalent thereto by the State Government’.
The memorandum dated 20 September, 1967 was impeached by the
promotees on the, ground that the State Government could not
make a retrospective declaration with regard to making posts
equivalent to senior posts. Counsel on behalf, of direct
recruits contended that the letter dated 9 April, 1958, from
the Chief Secretary to the Government of Bihar to the
Secretary to the Government of India, Ministry of Home
Affairs,could not amount to a declaration of posts as
equivalent to senior, posts and further that there could not
be any retrospective declaration of making posts equivalent
to senior posts.
Council on behalf of the Union of contended that the
declaration contemplated with regard to senior post must be
a formal and it was not, open to the State to, make, a
retroactive declaration because the rule contemplated
approval of such officiation in consultation with the
Commission. other words, it was said that the State, would
first have to make. a declaration with regard to making
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posts equivalent to senior posts and. thereafter approval
of such to officiation would be given by the State
Government in consultation with the public service
Commission.
Criticism was made- by counsel for the direct recruits that
there was no proper Select List and Rao’s letter dated 9
July, 1958 and
(1) [1970]2 S.C.R 325.
556
the reply thereto dated 3 September, 1958 by the Deputy
Secretary to the Government of India were contended not to
amount to approval by the Central,Government in consultation
with the Union Public Service Commission of the period of
officiation prior to the date of inclusion of the names of
promotees in the Select List. There was an ad hoc list in
the year 1954 and the ad hoc list is referred to in the
Chief Secretary’s letter with the letter ’A’. The select
list was prepared in the year 1955 and is referred to in the
Chief Secretary’s letter with the letter "B’. In the Chief
Secretary’s letter the date of officiation of the promotees
was proposed by the State Government to be 28 December,
1954. The date of officiation in the senior scale by the
promotees as agreed to by the Government of India was shown
in that letter as some time in the month of October, 1955
with regard to three promotees and in the month of December,
1955 with regard to the fourth promotee. With regard to the
other three promotees no date was shown as having been
agreed to by the Government of India. The State Government
proposed with regard to some of the promotees that they
should be allowed the benefit of officiation from the time
of the inclusion of their names, in the ad hoc list in the
year 1954. The Deputy Secretary to the Government of India
by letter dated 3 September, 1958 accepted the
recommendation of the State Government with regard to the
promotees and allotted to them the year 1948 and placed the
promotees below Shri B. S. Srivastava who was the junior
most among direct recruits- who had started officiating
continuously in a senior post earlier than 28 December,
1954. The impeached circular dated 20 September, 1967 did
not allow retrospective declaration of equivalent posts and
therefore the year of allotment was no longer 1948. The
High Court held that there could be retrospective
declaration and thus in effect restored 1948 as the year of
allotment.
The Government of India by the letter dated 20 September,
1967 which is impeached by the promotees changed the year of
allotment of the promotees from 1948 to 1950 with regard to
the first three promotees and to the year 1951 with regard
to the fourth promotee and the year 1952 with regard to the
other two promotees and placed these promotees below the
direct recruits of those batches who started officiating
continuously in a senior post earlier than the date of such
officiation by the promotees.
On these materials it appears that the ad hoc list was
prepared with the approval of the Union Public Service
Commission on 28 December, 1954 and the Select List was
finally approved by the, Union Public Service Commission on
26 December, 1955. The select list was the list prepared
for appointment of the promotees by promotion to the Indian
Administrative Service. Rule 3(3)(b) of the Regulation of
Seniority Rules, 1954 speaks of approval by
557
the Central Government, in consultation with the Union
Public Service Commission of the period of officiation prior
to the date of the inclusion of the names of the promotees
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in the select list. This approval as contemplated in rule
3(3)(b) is a specific approval and is directed to the
particular matter mentioned therein as to whether there is
approval of the period of officiation prior to the inclusion
of the names in the select list. On the materials in the
present appeals we are unable to hold that the Central
Government gave any approval in consultation with the Union
Public, Service Commission within the meaning of rule 3(3)
(b) so as to enable the promotees the benefit of the period
of officiation prior to the date of the inclusion of their
names in the select list.
The contention on behalf of the direct recruits that it is
not open to the State to make a retrospective declaration
with regard to posts being made equivalent to senior posts
is unacceptable. From the point of view of workability of
the rule as well as the circumstances and the conditions of
service it may not always be practicable to make such
prospective declaration. It is only when the Government has
found that it is necessary or desirable to declare such
posts equivalent to senior posts that the Government will do
so. That will be usually possible after the Government will
have considered several factors, namely, finance, structure
of the service, the personnel fit for undertaking the post.
Normally, the promotees obtain promotion from the State
Civil Service after long service. That is why rule 3 (3)
(b) of the Regulation of Seniority Rules is designed to
arrive at a fair adjustment of the competing claims of the
direct recruits and the promotees. To hold that a promotee
could not get the benefit of officiation unless the post was
declared as equivalent to a senior cadre post before the
promotee was appointed to officiate might defeat the policy
of the, Government. A promotee may be officiating
continuously for a long period and his name may be included
in the select list after some time. Again a person who
officiates continuously for long time may thereafter be not
included in the select list. Such a person might deprive a
person who would otherwise be found suitable for appointment
by promotion after similar officiation in a similar post.
It is only when the State Government finds that it is
desirable to declare the post equivalent to a senior post
inter alia by reason of the efficiency of the person which
has entitled him to promotion that the consequential
necessity arises for giving him that senior post by
requisite declaration of a senior post. A retrospective
declaration therefore is in the scheme of things practical
as well as reasonable.
The basic idea of declaration of post as equivalent to a
senior post is that it is treated as a post of equal rank
and responsibility. Rule 3(3)(b) is designed to strike a
balance. between conflicting
558
claims. When a promotee with the background of a long
continuous officiation gets promotion it is in the fitness
of things that the period of such officiation is not lost to
him. The necessary check is supplied by approval by the
Central Government in consultation with the Commission.
There will be two sources charged with the responsibility of
approval of the period of officiation prior to inclusion of,
the name in the select list.
A retrospective declaration that a post is equivalent to a
senior post really amounts to declaration of an existing
fact. It is that the Personwho has officiated continuously
for a long time is allowed the benefit of a senior Post
prior to the appointment by promotion of such officer to the
Cadre of the Indian Administrative Service. Ordinarily,
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under Cadre Rules a non-cadre officer cannot hold a cadre
post excepting for short time of three months and if‘it is
for a longer period not without approval by the Central
Government. Therefore there is no occasion for declaration
by the State Government of a non-cadre post as equivant to a
cadre post. The question of declaration arises only for the
purpose of giving the promotee the benefit of the period of
officiation prior to promotion. The use of the word
’deemed’ in rule 3 (3)(b) of the Regulation of Seniority
Rules indicates that the Government has the power to make a
retrospective declaration because it is only after promotion
that there is any occasion to consider whether the period of
offication prior to promotion will be counted for purposes
of seniority.
The harmonious construction of the definition of ’senior
post’ occurring in the 1954 Cadre Rules along with rule
3(3)(b) of the Regulation of Seniority Rules is that
promotee will by a legal fiction obtain advantage of the
period of officiation first by the declaration and second by
the approval of the Central Government in consultation with
the Union Public Service Commission. It is not the
declaration but the approval which introduces the legal
fiction.
There is an apprehension that retrospective declaration
might cause-mischief in the sense that it would enable a
promotee to obtain seniority as against a direct recruit.
The apprehension is unmerited because promotees obtain
promotion after long service and that is why, the year of
allotment of promotee is below the junior most among direct
recruits who continuously officiated in a senior post from a
date earlier than the date of commencement of such
officiation by the promotee. Again, there may be a salutary
reason to defend a retrospective declaration because a pros-
pective declaration by the State Government may not be
acceptable to the Central Government by not giving approval
of the period of officiation prior to the date of inclusion
of the names in the, select list. There is no time limit
fixed with regard to approval by the
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Central Government. Therefore, a retrospective declaration,
will be under the check of approval by the Central
Government and such approval will always act as a safety
valve., against any abuse or mischief of retrospective
declaration.
It is important to notice that the definition of ’Senior
post’ has undergone change in the year 1967. The amendment
of the definition has brushed away the necessity of any
declaration by the Government of a post being made.
equivalent to senior cadre, post. also deleted the second
proviso to rule 3(3) (b) of the Regulation of Seniority
Rules. In place of the second proviso a new explanation has
been added. The explanation states that in respect of a
promotee the period of 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. The
declaration of a post to be equivalent to a senior post and
the approval of the Government of India in consultation with
the Commission for allowing a promotee the benefit of the
period of continuous officiation prior to the inclusion of
his name in the Select List are all obsolete now. One of
the reasons for the changes may be that a prospective
declaration might give rise to show of preference or favour
to some chosen persons who might not turn out to be suitable
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person to fill that post. Again, the disadvantage of
prospective declaration may be that the Government might be
saddled with the problem of a declaration in anticipation
and later finding out the absence of necessity of such a
post or even of not finding a suitable person for occupying
such a post. The soundness of a retrospective declaration
rests on the consideration that not only will the promotee
by that time have been tried and tested in that post but
also his promotion would indicate the benefit of the period
of continuous officiation which earned promotion for him.
To deny a retrospective declaration would in the case of
promotion of persons from State Civil Service deprive them
of the opportunity of enjoyment of the period of
officiation.
For these reasons, we uphold the judgment of the High Court
that the memorandum dated 20 September, 1967 which stated
that the State Government could not retrospectively declare
a post to be equivalent to a senior post was bad. The State
Government has power to make such a retrospective
declaration. The order dated 20 September, 1967 which also
directed the years of allotment on the basis that there
could not be any retrospective declaration of equivalent
post cannot be sustained.
The High Court however further directed that the promotees
must continue to hold ranks as assigned to them in the year
1958
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This order of the High Court is to be set aside, for the
reason that the year of allotment will now have to be
determined by the approval of the Central Government in
consultation with the Union Public Service Commission.
The appeals are therefore dismissed in so far as they relate
to quashing of the order of the Central Government dated 20
September, 1967. The appeals are allowed setting aside the
order of the High Court that the promotees would continue to
hold ranks as assigned to them in the year 1958. In the
facts and circumstances of the case, parties will pay and
bear their own costs.
G.C. Appeals allowed.
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