Amrik Singh & Ors Vs. Union of
India & Ors [1980] INSC 78 (11 April 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 1447 1980 SCR (3) 485 1980
SCC (3) 393
CITATOR INFO :
F 1986 SC 348 (15) RF 1988 SC 535 (38)
ACT:
Seniority, claim for-Indian Police Service
Officers- Counting officiating service in a Cadre post of a junior officer in
the Select List while his senior in the list was officiating in another
ex-cadre post for the purposes of fixing year of allotment-Whether
illegal-Whether continuation of a non-cadre officer in a cadre post beyond 3
months by the State Government without a report to the Central Government and
the Central Government non reporting after six months to U.P.S.C. is
illegal-Indian Police Service Rules Regulation of Seniority Rules 1954 r/w
Regulation 7-9 of Indian Police Service (Appointment by Promotion) Regulations
1955 Indian Police Service (Cadre) Rules 1954-All India Services (Conditions of
Service Residuary matters) Rules, 1960.
HEADNOTE:
One Sri Ahluwalia, 4th respondent herein
became a Deputy Superintendent of Police in Himachal Pradesh (which was then a
Union Territory) by the end of 1956. In 1962, the Central Government
constituted a common police service for the Union Territory of Delhi and
Himachal Pradesh called the Delhi and Himachal Pradesh Police Service, and
later, in 1964, respondent No. 4 was absorbed into that service on a regular
basis. The usual avenue of promotion for a Deputy Superintendent of Police is
the post of Superintendent of Police, but Superintendents of Police are borne
on the cadre of the Indian Police Service and the exercise which results in the
inclusion in the Indian Police Service is governed by the Indian Police Service
(Appointment by Promotion) Regulations. 1955 framed under section 3(4) of the
All India Services Act, 1951. The first step is to prepare a select list from
among eligible officers of the State concerned, in the present case the Union
Territories of Delhi and Himachal Pradesh. Sometimes, it happens that although
the post of a Superintendent of Police is a cadre post, if no hands are readily
available for being posted from the I.P.S., Deputy Superintendent of Police
from the Select List is promoted provisionally subject to certain formalities.
The 4th respondent (Ahluwalia) was brought into the Select List in 1965 and
later appointed Superintendent of Police in October 1965 and he worked as
Superintendent of Police in one place or the other, until December 25, 1967,
when he went on Earned Leave from 26-12-67 to 25-3-68 and, even thereafter i.e.
from 26-3-68 onwards, he continued as Superintendent of Police right down to
January 1971, when on January 30, 1971, he was appointed to the I.P.S. and
confirmed as such. The year of allotment was fixed as 1965. For ascertaining
the period of allotment under rule 3(3) (b) of the Regulation of Seniority
Rules. 1954, the period of his officiating service in the cadre post from
1-8-68 to 12-10-69 was not taken into account under Regulations 7 to 9 of the Indian
Police Service (Appointment by Promotion) Regulations, 1955, in view of the
fact that one Mr. Sahney who was senior to him in the Select List happened to
be posted in an ex-cadre post. The 4th respondent who had a case that the law
and justice of his case entitled him to 1961 as year of allotment, challenged
the order of the Central Government allotting him the 486 year 1965. The High
Court considered the matter with reference to the relevant rules and allowed
the writ petitions with a direction to the Union of India to refix his
seniority after assigning him the year of allotment as 1961. The Central
Government reconsidered the matter even earlier, and, by its order dated
27-7-1979, refixed the seniority of the 4th respondent by assigning 1961 as his
year of allotment. Aggrieved by this development the appellants have come up in
appeal.
Dismissing the appeal by special leave, the
Court
HELD : 1. The Officer Sri Ahluwalia was
rightly assigned 1961 as the year of allotment. There was continuous officiation
by him in a cadre post right down to 1971. There was no fault on his part.
There was no illegality. There was no outwitting at the instance of Ahluwalia,
of the claims of any other candidate. [494H, 495A]
2. The real line of distinction between a State
and the Union of India might well be blurred a little when it is a Union
Territory. Moreover, there is the circumstance that the entire Service was in
the melting pot for a few years because the All India Services were being
switched from Himachal Pradesh and Delhi into all the Union Territories.
Even more; since uncertainty prevailed while
the question of a part of Punjab being tacked on to Himachal Pradesh came to
engage the Administration. Amidst these fluctuating factors, the solecism
committed by the Union Territory of Himachal Pradesh in not having reported to
the Central Government about continuing Ahluwalia, beyond 3 months, in a cadre
post, was a venial sin for which the candidate was free from blame. [495C-E]
3. The argument, based on Sahney, a senior to
Ahluwalia, being in a ex-cadre post and therefore, Ahluwalia's service during
that period not being regular, also cannot be exaggerated out of proportion.
Technically, the C.B.I. posts are ex-cadre posts, but it is a Central
Government Department and nothing is suggested that there was something
suspicious in Sahney being kept in the C.B.I.
to facilitate Ahluwalia's continuance in
Cadre post.
Everything in this case is straightforward
and, therefore, if there was any administrative lapse, Ahluwalia could not be
victimized. Indeed, an unwitting hardship inflicted on a member of the Service
under such circumstances can be relieved by exercise of the residuary power of
Central Government under Rule 3 of the All India Services (Conditions of Service
Residuary Matters) Rules, 1960. After full and second consideration, the
Central Government passed Annexure 'Y' dated 1-12-78 whereby Ahluwalia was
given the benefit of 1961 as the year of the allotment. The period of
officiation of Ahluwalia between 1-8-1968 and 19-10-1969 was approved by the
Central Government after consultation with the U.P.S.C. This retrospectively
cured the infirmity that existed in Ahluwalia's officiation, beyond 3 months or
6 months, in a cadre post without consultation with the U.P.S.C. The
contravention of Regulation 8 was, thus, relieved against. [495E-H, 497F-G]
4. In substance the exercise prescribed by
Rule 9 of the India Police Service (Cadre) Rules, 1954 is that, when the cadre
post is vacant and no Cadre Officer is available, a non-cadre officer may fill
the vacancy for a period beyond three months if the State Government reports to
the Central Government the reasons therefor and it is not ordered to be
terminated. The Central 487 Government may permit a non-cadre officer to fill a
Cadre post for a period exceeding six months provided it reports the full facts
to the U.P.S.C. and acts responsibly in the light of the advice of the
Commission. In the present case, no such report by the State Government to the
Central Government was sent, no consultation by the Central Government with the
Commission was done. Bypassing the Public Service Commission bespeaks prima
facie impropriety, but it is not destructive of the officiation of Ahluwalia in
the special conspectus of facts present here. For one thing, Ahluwalia has
nothing to do with the error; for another, no senior of Ahluwalia suffered,
thirdly, the Central Government, in exercise of its power to relax the Rules,
in good faith and, indeed in equity, did relieve the officer against this
violation. [498A-E]
5. Under Rule 3(iii)(b) of the Indian Police
Service Regulation of Seniority Rules, 1954 continuous officiation is the
decisive factor. Assuming that what is needed is regular officiation and not
physical officiation, it is perfectly open for the Central Government to relax
any irregularity by relaxing any particular rule or regulation.
That power under All India Services
(Conditions of Service Residuary Matters) Rules 1960, to relax is not arbitrary
because the Rule contains guidelines. Government must be satisfied, not
subjectively but objectively, that any rule or regulation affecting the
conditions of service of a member of the All India Services causes undue
hardship then the iniquitous consequence thereof may be relieved against by
relaxation of the concerned Rule or Regulation; There must be undue hardship
and, further the relaxation must promote the dealing with the case "in a
just and equitable manner". These are perfectly sensible guidelines. What
is more, there is implicit in the Rule, the compliance with natural justice so
that nobody may be adversely affected even by administrative action without a
hearing. There is nothing unreasonable, capricious or deprivatory of the rights
of anyone in this residuary power vested in the Central Government. Indeed, the
present case is an excellent illustration of the proper exercise of the power.
[498E-H, 499A]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 2112 of 1979.
Appeal by special Leave from the Judgment and
Order dated 23-3-1979 of the Himachal Pradesh High Court in Civil Writ Petition
No. 398 of 1976.
R. K. Garg, and B. P. Singh for the
Appellants.
V. M. Tarkunde and P. P. Juneja for the
Respondent No. 4.
M. M. Abdul Khader and Miss A. Subhashini for
the Union of India.
Mukul Mudgal for the Respondent No. 13.
The Judgment of the Court was delivered by,
KRISHNA IYER, J.-Competitive claims to seniority, dependent on the year of
allotment in the Indian Police Service, fall for consideration in this appeal
by special leave. We have expedited the hearing of the case since keeping
officers in an unsettled state may be a factor which impairs their efficiency.
488 One Shri Ahluwalia, a senior member of
the Indian Police Service, sought to quash the decision of the Union of India
dated 26-6-1976, whereby his year of allotment was fixed as 1965. According to
his case, the correct year of allotment should have been 1961. If his plea were
granted, the present appellants would be affected by being made junior to him.
The rival contentions revolve round a few facts, which we will set out, and a
few rules framed under the All India Services Act, 1951, which we will
construe.
First a rush through the relevant calendar of
dates.
Concerned, as we are, with the year of
allotment of Shri Ahluwalia (respondent No. 4), let us focus on the chronology
of events with special reference to him. If his claim were untenable, the
appeal must be allowed and vice-versa.
The 4th respondent (Ahluwalia) became a
Deputy Superintendent of Police in Himachal Pradesh (which was then a Union
Territory) by the end of 1956. In 1962, the Central Government constituted a
common police service for the Union Territory of Delhi and Himachal Pradesh
called the Delhi and Himachal Pradesh Police Service; and later, in 1964,
respondent No. 4 was absorbed into that service on a regular basis. The usual
avenue of promotion for a Deputy Superintendent of Police is the post of
Superintendent of Police, but Superintendents of Police are borne on the cadre
of the Indian Police Service and the exercise which results in the inclusion in
the Indian Police Service is governed by the Indian Police Service (Appointment
by Promotion) Regulations, 1955 framed under Sec. 3(4) of the All India
Services Act, 1951. The first step is to prepare a Select List from among
eligible officers of the State concerned, in the present case, the Union
Territories of Delhi and Himachal Pradesh. Sometimes, it happens that although
the post of a Superintendent of Police is a cadre post, if no hands are readily
available for being posted from the I.P.S.
Deputy Superintendent of Police from the
Select List is promoted provisionally subject to certain formalities which we
will presently consider. The 4th respondent (Ahluwalia) was brought into the
Select List in 1965 and later appointed Superintendent of Police in October,
1965 and he worked as Superintendent of Police in one place or other, until
December, 1967, and, even thereafter, he continued as Superintendent of Police
right down to January 1971 when on January 30, 1971, he was appointed to the
I.P.S. and confirmed as such. The year of allotment was fixed as 1965 but the
4th respondent had a case that the law and justice of the case entitled him to
1961 as year of allotment. So he challenged the Order of the Central Government
allotting him the year 1965. The High Court considered the matter with
reference to the relevant rules and came to the conclusion that there was merit
in the 4th respondent's contention. (He was the petitioner before the High
Court). The learned Judges wound up thus:
"It is, therefore, evident that the
period of officiation of the petitioner during 1-8-1968 to 12-10-1969 could not
be considered to be invalid or irregular on any such ground.
We, therefore, conclude that the Government
of India wrongly decided that the officiation of the petitioner between the
period 1-1-1968 and 12-1-1971 or during the period 1-8-1968 to 12-10-69 could
not be considered valid officiation. Rather he was continuously holding a cadre
post throughout this period, and the benefit regarding seniority will have to
be given for the entire period. The decision being wrong and invalid under the
very Rules and Regulations applied by the Government, was subsequently set
right by them under Annexure-Y.
The upshort of all that we have stated above
is that the petitioner shall be given the benefit of his continuous officiation
against a senior post of the entire period from 11-11-1965 to the date of his
appointment in the Indian Police Service his year of allotment shall be
determined under Rule 3(3)(b) of the Seniority Rules keeping in view that he
started his continuous officiation from 11-11-1965.
In consequence, Annexure-N is quashed to the
extent the said Annexure held a view contrary to our decision. It is declared
that the petitioner continued and should be deemed to have continued to
officiate on a senior duty post of the Indian Police Service with effect from
11-11-65 without any break up to his confirmation in the Indian Police Service.
The petitioner's seniority shall be
determined accordingly and all consequential benefits of seniority shall be
granted to him by the respondents Nos. 1 and 2. The respondent No. 1 shall
determine the seniority of the Petitioner in accordance with our observations
made above within three months".
The Central Government reconsidered the
matter even earlier, and, by its Order dated 27-7-1979, refixed the seniority
of the 4th respondent by assigning 1961 as his year of allotment. Aggrieved by
this development, the appellants have come to this court and contested the
reasoning and conclusion of the High Court.
A few more facts about the career of the 4th
respondent and the developments in the Indian Police service may be narrated
before we set out and consider Rules and Regulations and their implications.
490 The 4th respondent Ahluwalia, as stated
earlier, was Superintendent of Police from 1965 to 1967, followed by a short
period of earned leave, which ended on 25-3-68. From March 26, 1968 he again
continued as Superintendent of Police. Meanwhile, an event beyond the control
of the parties took place which has a bearing on the ultimate view we take,
although only indirectly. On November 1, 1966, the reorganization of the Punjab
State took place which resulted in some areas of Punjab being transferred to
the Union Territory of Himachal Pradesh. Consequently, certain officers,
including one Shri P.C. Sahney and Shri K.S. Dhaliwal, were brought over from
Punjab to Himachal Pradesh.
Admittedly, both these officers, Sahney and
Dhaliwal, were senior to Ahluwalia, but a key circumstance which, in the
submission of the appellants is decisive in their favour deserves mention. It
is this Shri Sahney, a senior of Ahluwalia, was holding an Ex-cadre post of
Superintendent of Police, C.B.I. under the Ministry of Home Affairs between 7-
12-1964 and 6-10-1969. The Joint Select List of the Union Territories of Delhi
and Himachal Pradesh Police Service, prepared on 29-4-1967, included the names
of Ahluwalia, Sahney and Dhaliwal, the last two being above Ahluwalia. On
January 1, 1968, the Central Government created single cadre for all the Union
Territories in India and, as a follow-up action, prepared a common Select List
for the IPS Cadre on 13-1-1971. Ahluwalia was in the Select List of the Union
Territories Cadre so prepared. The story of the Cadre continued in the sense
that on 25-1-1971, when Himachal Pradesh acquired full-fledged State-hood,
Ahluwalia was allocated, alongwith others, to that State. The Himachal Pradesh
State came to have its own Cadre of I.P.S. Officers, in which Ahluwalia became
a Member. Thereafter, the question was mooted before Government as to what
should be the year of allotment for the 4th respondent (Ahluwalia).
Two factors having relevancy to the
determination of the issue before us, were highlighted by Shri R.K. Garg,
appearing for the appellant. He stated that so long as Shri Sahney was holding
an ex-cadre post and was senior to Ahluwalia, the officiation of the latter was
not legal and regular and therefore had to be ignored for the purpose of
continuity of officiating service. This break was material in fixing the year
of allotment. Secondly, he urged that the continuation of a non-cadre officer
in a Cadre post beyond 3 months required the State concerned to report to the
Central Government this fact and the Central Government in return had to
consult and go by the opinion of the Union Public Service Commission. In the
present case, Ahluwalia had continued in the Cadre post of Superintendent of
Police, without 491 this necessary exercise by the State and the Central
Government and without the approval of the Union Public Service Commission.
Thus, the two reasons, briefly, stated above, were lethal to the claims of
Ahluwalia and he was bound to be pushed to the year 1965 and could not claim
the earlier year of allotment of 1961 awarded to him by the Central Government
and the High Court. If the contention put forward by Shri Garg were sound, the
conclusion would be inevitable and the appeal must inescapably be allowed. Thus
we are thrown back to an examination of the relevant rules in their application
to the facts present in this case. Of course, before launching on that essay,
we must also mention that the Central Government has a residuary power, in
cases of equity and justice, to exempt an officer from the rigour of any rule
or regulation.
The Rules may now be reproduced before
scanning the submissions of either side. It may be treated as common case that
not only was Sahney (now retired) senior to Ahluwalia but he was holding an
ex-cadre post during the period 1-8- 1968 to 12-10-1969. If this period were to
be excluded from Ahluwalia's officiation he must fail. It is also beyond
dispute that there was no consultation with the U.P.S.C. for the period of officiation
beyond 6 months of Shri Ahluwalia in a cadre post. The Union of India had, on
one stage, agreed tentatively with Ahluwalia's case but changed its mind and
came to the conclusion that there was a break in service between 1-8-1968 and
12-10-1969 for Ahluwalia and, therefore, the benefit of officiation during that
period could not be given in fixing the year of allotment under Rule 3(3)(b) of
the Regulation of seniority Rules, 1954.
Again Government veered round to the view
that 1961 was the correct year of allotment.
Now the Statutory Provisions:
"7. Select List (1) The Commission shall
consider the list prepared by the committee alongwith the other documents
received from the State Government and, unless it considers any change
necessary, approve the list.
(2)
...........................................
(3) The list as finally approved by the
Commission shall form the Select List of the members of the State Police
Service." 492 Under this Rule a Select List was prepared where Ahluwalia
was appointed against a Cadre post with effect from 11-11- 1965. Regulation 8
may also be read:
"8. Appointments to Cadre post from
Select List Appointments of members of the State Police Service from the Select
List to posts borne on the State Cadre on the joint Cadre of a group of States,
as the case may be, shall be made in accordance with the provisions of rule 9
of the Cadre Rules. In making such appointments, the State Government shall
follow the order in which the names of such officers appear in the Select List.
.................................................
.................................................
From this, it is clear, Rule 9 of the Cadre
Rules has governing force and so we must excerpt Rule 9 also:
"9. Temporary appointment 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 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.
(2) where in any state, a person other than a
cadre officer is appointed to a cadre post for a period exceeding three months
the State government shall forthwith report the fact to the Central Government
together with the reasons for making the appointment.
(3) On receipt of a report under sub-rule (2)
or otherwise, the Central Government may direct that the State Government shall
terminate the appointment of such person and appoint thereto a cadre officer
and where and direction is so issued, the state Government shall accordingly
give effect thereto.
(4) Where a cadre post is likely to be filled
by a person who is not a cadre officer for a PERIOD exceeding 493 six months,
the Central Government shall report the full facts to the Union Public Service
Commission with the REASONS for holding that no suitable officer is available
for filling the post and may in the light of the advice given by the Union
Public Service Commission give suitable directions to the State Government
concerned." The critical rule regarding the assignment of year of
allotment is Rule 3, which we may now reproduce;
"3. Assignment of year of allotment:
(1) Every officer shall be assigned a year of
allotment in accordance with the provisions hereinafter contained in this rule.
(2) .........................................
(3) The year of allotment of an officer
appointed to the service after the commencement of these rules, shall be:
(a) .........................................
(b) 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 a date earlier than the date of commencement of such
officiation by the former;
........................................
........................................
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 Rules, the period of his continuous officiation in a senior
post shall, for the purpose 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 that where the name of a State
Police Service Officer was included in the Select List in force immediately
before the reorganisation of a State and is also included in the first Select
List prepared subsequent to the date of such reorganisation, the name of such
officer shall be deemed to have been continuously in the Select List with
effect from the date of inclusion in the first mentioned Select List.
......................................
......................................
Explanation 4: An officer appointed to the
Service in accordance with sub-rule (i) of rule 9 of the Recruitment Rules
shall be treated as having officiated in a senior post during any period of
appointment to a non-cadre post if the State Government has certified within
three months of his appointment to the non-cadre post that he would have so
officiated but for his appointment, for a period not exceeding one year, and,
with the approval of the Central Government, for a further period not exceeding
two years, to a non-cadre post under a State Government or the Central
Government in a time-scale identical to the time-scale in a senior post.
......................................
......................................
There is one more Rule which can play a
heroic role in a crisis between equity and legalism. That is, contained in Rule
3 of the All India Services (Conditions of Service- Residuary Matters) Rules
1960:
"3. Power to relax rules and regulations
in certain cases:- Where the Central Government is satisfied that the operation
of:- (i) any rule made or deemed to have been made under the All India Services
Act, 1951 (61 of 1951), or (ii) any regulation made under any such rule,
regulating the conditions of service of persons appointed to an All India
Service causes undue hardship in any particular case, it may, by order,
dispense with or relax the requirements of that rule or regulation, as the case
may be, to such extent and subject to such exceptions and conditions as may
consider necessary for dealing with the case in a just and equitable
manner." 495 In the perspective of the Act and Rules, we may proceed to
analyse the submissions and assess their worth. We are not disposed to launch
on a prolix investigation or delve into minute details because we are impressed
with the justice of the conclusion reached by the High Court and the Central
Government in giving to Ahluwalia 1961 as the year of his allotment. It is
indubitable that, as a fact, there was continuous officiation by him in a cadre
post right down to 1971. There was no fault on his part. There was no
illegality so far as we can gather. There was no outwitting at the instance of
Ahluwalia, of the claims of any other candidate. The two technical infirmities
powerfully pressed, with characteristic vigour, by Shri R. K. Garg do not in
the least detract from the effective officiation as Superintendent of Police by
Shri Ahluwalia.
Let us assume for a moment that the State
Government had not reported to the Central Government and that the consultation
with the Union Public Service Commission had not been made by the Central
Government. Let us further assume that, in a strict view, that was needed. Even
so, the Union Territories of Himachal Pradesh and Delhi should have formally
told the Home Ministry about the officiation beyond three months by Ahluwalia
in a cadre post. This was not done. The real line of distinction between a
State and the Union of India might well be blurred a little when it is a Union
Territory. Moreover, there is the circumstance that the entire Service was in
the melting pot for a few years because the All India Services were being
switched from Himachal Pradesh and Delhi into all the Union Territories.
Even more; since uncertainty prevailed while
the question of a part of Punjab being tacked on to Himachal Pradesh came to
engage the Administration. Amidst these fluctuating factors, the solecism
committed by the Union territory of Himachal Pradesh in not having reported to
the Central Government about continuing Ahluwalia, beyond 3 months, in a cadre
post, was a venial sin for which the candidate was free from blame. Secondly,
the argument, based on Sahney, a senior to Ahluwalia, being in a ex-cadre post
and therefore, Ahluwalia's service during that period not being regular, also
cannot be exaggerated out of proportion. Technically, the C.B.I. posts are
ex-cadre posts, but it is a Central Government Department and nothing is
suggested that there was something suspicious in Sahney being kept in the
C.B.I.
to facilitate Ahluwalia's continuance in a
Cadre post.
Everything in this case is straight-forward
and, therefore, if there was any administrative lapse, Ahluwalia could not be
victimized. Indeed, an unwitting handship inflicted on a member of the Service
under such circumstances can be relieved against by exercise of the residuary
power of Central Government under Rule 3 496 extracted above. They passed the
Order (Annexure X) which we reproduce :
"Annexure-'X' No. 24/16/71-Pers. II
(IPS) Government of India/Bharat Sarkar Ministry of Home Affairs/Grih
Mantralaya MEMORANDUM S/Shri P. C. Sahney, K. S. Dhaliwal and V. K. Ahluwalia
were appointed the Indian Police Service by Promotion from the State Police
Service on 30th January, 1971 and allocated to the Himachal Pradesh Cadre of
Service.
2. Prior to their appointment to the Indian
Police Service, these officers were holding the following posts.
...... ...... ......
...... ...... ......
In accordance with Regulation 8 of IPS
(Appointment by Promotion) Regulations, 1955 the Select List officers are to be
appointed to the Cadre Post in the order in which their names appear in the
Select List. As such in cases where a senior select list officer was not
holding a cadre post, the officiation in a cadre post of a junior officer in
the Select List was not approved by the Central Government because the
appointment of Junior Select List officer to a cadre post was violative of the
provisions of Regulation 8 of the Promotion Regulations.
...... ...... ......
...... ...... ......
Accordingly, it was decided that the rules
may be relaxed to count the period of officiation against ex- cadre posts so as
to give benefit of the service rendered by the junior officers in the cadre
post for the purpose of seniority. Applying the ratio of the case of U. T.
Cadre, the Government of India has come to the conclusion that the appointment
of Shri P. C. Sahney in the C. B. I. on deputation basis from 7-12- 1964 to
6-10-1969 was made by the Central Government in public interest since Shri
Sahney belonged to the U. T. Cadre which was managed by the Central Government.
It can, therefore, be said that the question of misuse of provisions of 497
rules and regulations by the State Government in this case does not arise. The
certificates that but for his appointment to ex-cadre post in the C.B.I., Shri
Sahney would have continued against a cadre post, was to be issued by the
Ministry of Home Affairs and the fault, if any, lies with the Central
Government and not with any State Government. It has, therefore, been
tentatively decided to count the ex-cadre officiations of Shri P. C. Sahney
from 7-12-1964 to 6-10-1969 for the purpose of seniority in relaxation of the
provisions of the I.P.S. (Regulation of Seniority) Rules, 1954.
..... ....... ......
...... ...... ......
In view of the counting of ex-cadre
officiation of Shri P. C. Sahney for the period 7-12-64 to 6-10-1969, the Cadre
officiation of S/Shri K. S. Dhaliwal and V. K. Ahluwalia prior to 13-10-1969
will not be violative of the provisions of regulation 8 of I.P.S.
(Appointment by Promotional Regulations,
1955). It is, therefore, prepared to count the entire cadre officiation of
S/Shri K. S. Dhaliwal and V. K. Ahluwalia for the purpose of their seniority.
Accordingly, the crucial date in respect of
S/Shri K. S. Dhaliwal and V. K. Ahluwalia shall be 28-3-1965 and 11-11-1965
respectively.
...... ...... ......
..... ....... ......
..... ...... ......
sd/- A. Jayaraman Under Secretary to the
Government of India.
After full and second consideration, the
Central Government passed Annexure 'Y' dated 1-12-1978, whereby Ahluwalia was
given the benefit of 1961 as the year of the allotment. The period of
officiation of Ahluwalia between 1-8-1968 and 19-10-1969 was approved by the
Central Government after consultation with the U.P.S.C.
This retrospectively cured the infirmity that
existed in Ahluwalia's officiation, beyond 3 months or 6 months, in a cadre
post without consultation with the U.P.S.C. The contravention of Regulation 8
was, thus, relieved against.
498 Regulation 7, earlier reproduced, has
reference to the Select List, received from the State, being approved by the
Commission. Ahluwalia was in this list and by virtue of that inclusion in the
Select List, was posted against a Cadre post with effect from 11-11-1965.
Regulation 8 authorises such appointment of the members of the State Police
Service.
However, Rule 9 of the Indian Police Service
(Cadre) Rules 1954 has a crucial impact in regard to temporary appointments of
non-cadre officers to Cadre posts. We have earlier extracted the Rule, but in
substance, the exercise prescribed by the Rule is that, when the Cadre post is
vacant and no Cadre Officer is available. A non-cadre officer may fill the
vacancy for a period beyond three months if the State Government reports to the
Central Government the reasons there for and it is not ordered to be
terminated. The Central Government may permit a non-Cadre Officer to fill a
Cadre post for a period exceeding six months provided it reports the full facts
to the U.P.S.C.
and acts responsibly in the light of the
advice of the Commission. In the present case, no such report by the State
Government to the Central Government was sent, no consultation by the Central
Government with the Commission was done. We are agreed that by-passing the
Public Service Commission bespeaks prima facie impropriety, but we are not
inclined to consider this grievance as destructive of the officiation of
Ahluwalia in the special conspectus of facts present here. For one thing,
Ahluwalia has nothing to do with the error; for another, no senior of Ahluwalia
suffered, thirdly, the Central Government, in exercise of its power to relax
the Rules, in good faith and, indeed in equity, did relieve the officer against
this violation. That power to relax exists is admitted, although a feeble
challenge to its vires was made in passing. When we consider the year of
allotment what looms large is Rule 3 (iii) (b).
Continuous officiation is the decisive
factor. Assuming that what is needed is regular officiation and not physical
officiation, it is perfectly open for the Central Government to relax any
irregularity by relaxing any particular rule or regulation. We have earlier
indicated the scope of this power and reproduced the Rule itself. It is not
arbitrary because the Rule contains guidelines. Government must be satisfied,
not subjectively but objectively, that any rule or regulation affecting the
conditions of service of a member of the All India Service causes undue
hardship, then the inequitous consequence thereof may be relieved against by
relaxation of the concerned Rule of Regulation; There must be undue hardship
and, further the relaxation must promote the dealing with the case "in a
just and equitable manner". These are perfectly sensible guidelines. What
is more, there is implicit in the Rule, the compliance with natural justice so
that nobody may be 499 adversely affected even by administrative action without
hearing. We are unable to see anything unreasonable, capricious or deprivatory
of the rights of anyone in this residuary power vested in the Central
Government. Indeed, the present case is an excellent illustration of the proper
exercise of the power. We are therefore, satisfied that the Central Government
was right in invoking its power to relax and regularize the spell of
officiation, which was impugned as irregular or illegal. The consequence
inevitably follows that the officer Ahluwalia was rightly assigned 1961 as the
year of allotment.
The appeal fails and is dismissed.
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