Vs. Union of India & Ors  INSC 1050
(2 September 1996)
O R D
have heard learned counsel on both sides.
appeal by special leave arises from the order or the Central Administrative
Tribunal, Madras Bench made on January 23, 1995
in OA No.3/92. The admitted position is that the appellant was appointed to
Tamil Nadu State Police Services by direct recruitment on October 7, 1979. He was transferred and posted as
D.C.P., Law & Order, Madras (South) which is a cadre post, w.e.f.
July 27, 1980 and ever since he had been
continuously officiating in the cadre post. He was included in the select list,
for the first time, on October
26, 1979 approved by
the UPSC on December
12, 1979. The same
list was continued for the year 1980. But in the select list for the year 1981,
he was not included for want of requisite vacancy allotable the State cadre.
he came to be included again on December 16, 1982 in the select list approved by the UPSC on March 28, 1983. When his seniority was determined
the order of allotment indicated that 1978 was fixed as his year of allotment.
He questioned the correctness thereof on two grounds, namely, his non-inclusion
in the list for the year 1981 was bad in law; he also contended that since he
was continuously officiating from 1975 and was included in list for the first
time in the year 1979 is year of allotment should be 1975. Both the contentions
were negatived by the Tribunal. The question for consideration, therefore, is:
the Tribunal is right in its conclusion? Rule 3(3) of the IPS (Appointment by
Promotion) Seniority Rules reads as under:
Assignment of year of Allotment.
Every officer shall be assigned a year of allotment in accordance with the
provisions hereinafter contained in this rule.
... ... ... ...
The year af allotment of an officer appointed to the service after the
commencement of these rules shall be-
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;
where the officer is 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 a senior post from date earlier than the date of
commencement of such officiation by the former.
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 State Government concerned.
l - In respect of
an officer appointed to the service by promotion in accordance with sub- rule
(1) of rule 9 of the Recruitment Rules, the period of his continuous officiation
in senior post shall, for the purpose of determination of his seniority; count
only from the date of inclusion of his name in the select list, or from the
date of his officiating appointment to such senior post whichever is
later." This rule was considered by Bench of three Judges of this Court in
Syed Khalid Rizvi & Ors. vs. Union of India & Ors. [(1993) Supp. 3 SCC
575]. After an elaborate consideration, in paragraph 21 of the judgment this
court had held as under:
it is settled law that a promotee officer appointed temporarily under
Regulation 8 of Promotion Regulation and Rule 9 of Cadre Rules to a cadre post
does not get his/her continuous officiation towards seniority.
would be counted only form the date on which he/she was brought into the
select-list by the selection committee in accordance with Recruitment Rules,
Promotion Regulations and Seniority Rules and was approved by the UPSC,
appointed under Rule 9 of Recruitment Rules and Regulation 9 of Promotion
Regulations and has continuously officiated without break Seniority would be
entitled form the date of select-list or continuous officiating which ever is
is entitled to appointment by the Central Government to substantive vacancy
under Regulation 9 of Promotion Regulations form that date. The Central
Government and the UPSC should approve temporary appointment by an order in
writing and also of such officiating. In that event seniority would be counted
only from the date, either of his/her inclusion in the select- list or form the
date of officiating appointment to the cadre post whichever is later. By
operation of Explanation 1 to Rule 3(3)(b) of the Seniority Rules, his
seniority will be counted only from either or the later dates and the necessary
effect is that the entire previous period of officiating should be rendered
fortuitous and the appointment as ad hoc appointment or by local
arrangement." This was again reconsidered by another Bench of two Judges
of this Court in R.R.S. Chouhan & Ors. vs. Union of India & Ors. [(1995) Supp. 3 SCS 109]. This Court in
the latter judgment has held that in the matter of year of allotment, the basis
should be the date of inclusion or of continuous officiation, whichever is
later. It was held that where an officer continuously officiating as Officer on
Special Duty, was promoted to the IFS after his name was included in the select
list for the IFS in different years except in the year immediately preceding
the year of his promotion, assuming that the post of OSD was a senior post,
benefit of such officiation was held to be not available in assignment of year
of allotment to him since he was include in the select list in the later year
by operation of the Explanation II to Rule 3(3) of the Rule.
we hold that the appellant was entitled to his year of allotment only from the
date when he was later included in the select list in the year 1982.
Accordingly, 1978 as his year of allotment was immediately below the direct
recruits in the cadre.
appeal is accordingly dismissed. No costs.