Union of India & ANR Vs. Shri
Harish Chander Bhatia & Ors  INSC 650 (8 December 1994)
HANSARIA B.L. (J) HANSARIA B.L. (J) KULDIP
CITATION: 1995 SCC (2) 48 JT 1995 (1) 233
1994 SCALE (5)144
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 (Delhi and Andaman and Nicobar Islands)
Police Service (the Service). To resolve the lie we shall have to first
determine as to when the respondents can be said to have become members of the
Service and then we 235 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').
making appointments to the service, proportion as specified in rule 5 has to be
borne 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 #he
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
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
4,14,15,16,24,25 and 29 of the Rules are relevant to determine the controversy
at hand and they read as below:- "Rule 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.
(2) The number of selection grade posts in
the Service shall be 13 per cent of the authorised permanent strength of the
(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 in such period as
may be specified therein.
Rule 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
Provides 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 of merit.
(4) The list so prepared shall be forwarded
by the committee to the Central Government.
236 Rule 15. Consultation with the
(1) The list prepared under rule 14 to-
gether 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 alongwith the relevant records.
(2) If, the Commission. considers it nec-
essary to make .my 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 Govt. after taking into account the changes, if any, proposed by the
Commission, and where changes any changes suggested by the Commission is 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
All persons except those tinder the Himachal
Pradesh Administration who immediately before the commencement of these rules
were borne on the list approved by the Central Govt. 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 (4) of this rule.
Substituted w.e.f 12.74 vide MHA Notification
No. U14012/10/73UTS, dated 2.12.74.
Rule 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.
Rule 24. Selection for Officiating
if at any time the Central Govt. 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
officiating appointments to duty posts with due regard to seniority. The
provisions of subrule (3) and (4) of rule 15 shall apply mutatis mutandis in
the preparation of the selection list under this rule.
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 tinder rule 24.
237 (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
(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 moths, 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 subrule (3)
shall be reported by the Administrator to the Central Govt. forth- with.
Rule 29. Seniority:
The Central Govt. 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
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 Govt.
(2) Seniority of person appointed to the
Service under clauses (a) and (b) of sub-rule (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 the 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 being ranked senior to those
recruited on the basis of later examina- tion.
(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 re- cruited 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."
the above, it is clear that for a person to be appointed under sub-rule (1) 25,
he has to be an officer whose name is included in the list referred to in
subrule (4) of rule 15 or one prepared under rule 24. In so far as sub-rule (3)
is con- 238 cerned, 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, the respondents were appointed
under sub-rule (1).
is no serious dispute to this position even by learned Addl. 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 being not such incumbents, they cannot
be treated as permanent appointees to the Service.
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 rule 15. This shows that
the incumbents whose names find place in the list pre- pared as contemplated by
rule 24 are also those who have been duly selected and consultation with the
Commission has also been 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 contemplated by rule 14 read with rule 15, and
the one visualised by rule 24. So, there appears to be 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.
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 No. 1 was of
about 12 years as he came to be appointed under rule 25 on 6.11.72 and was
fixed permanently in the slot meant for promotees on 28.7.84. 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 239 effect in the Service as a
whole. As the appointments under rule 23. 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
real publics 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
respondent have served, which would be against the principle of seniority
embodied in rule 29. As per clause (c) of subrule (2) of this rule inter
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 India, 1993
Supp (3) SCC 575, '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 reminded that the quota rule
has an inseparable a part of our service jurisprudence, as it allows a
harmonious combination of fresh blood and old experience, and we may not do
anything to cause dent to this useful principle.
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 India, 1985 (1) SCR
351, 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.
our view, a few scattered appointments against the quota rule as have been
given here, cannot be taken to be, break down 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 in- cumbents for promotion.
In Singla's case, break down was read because of the language of the concerned
service rule and the way appointments had come to be made. The fact situation
and provision in the Rules are different here.
Singla's case cannot, therefore, come to the
aid of the respondents.
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 240 as per length of service alone as ordered by the
Tribunal, but as indicated by us.
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 in so far as they are concerned. The need for making
this observation has been felt because what we find is that despite an
incumbent like respondent No. 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 higher post to
the satisfaction of the 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.
appeal is disposed of as per direction given earlier. In the facts and
circumstances of the case we make no order as to costs.
Shri Ajmer Jeet Singh Cheema v. Union of
India & Ors.
Special Leave Petition (c) No. 22013 of 1994
(CC No. 21852 of 1993) ORDER
petition stands disposed of in terms of the judgment in CA No. 2481/93