Ramchandra
Dayaram Gawande Vs. Union of India & Ors [1996] INSC 727
(10 May 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (6) 361 1996 SCALE (5)293
ACT:
HEAD NOTE:
THE
10TH DAY OF MAY, 1996 Present:
Hon'ble
Mr.Justice K.Ramaswamy Hon'ble Mr.Justice G.B.Pattanaik K.Madhava Reddy, Sr.Adv.
A.M.Khanwilkar, Adv. with him for the Appellant V.N. Ganpule, Sr.Adv. R.N. Keshwani
and D.M. Nargolkar, Advs. with him for the Respondents.
O R D
E R
The
following Order of the Court was delivered:
Ramchandra
Dayaram Gawande V. Union of India & Ors.
O R D
E R
Leave
granted.
We
have heard learned counsel on both sides.
The
appellant appointed to a substantive post in State Police Service was promoted
as a Superintendent of Police in senior time scale on May 11, 1976. He was brought on select list for
the year 1977. He was given seniority in the All India Police Service from promotee
quota w.e.f. April 30,
1978. Since he was
brought on the select list on the said date under Rule 3(3)(b) of the IPS (Regulation
of Seniority) Rules, 1954 (for short, the 'Rules;), the appellant claimed the
year of allotment, i.e., 1972 under IPS (Regulation of Seniority) Rules, 1954,
which was rejected' by the Tribunal in the impugned order dated August 18, 1995
in OA No.557/90.
Notice
was issued confining to the question as to what would be the consequence of
failure to convene a meeting for selection of the candidates and preparation of
the annual seniority list.
It is
stated in the counter af affidavit that on November 23, 1976 in a meeting, Selection Committee
considered the claims of a total number of 30 State Police Officers and
ultimately found 9 officers to be brought on the select list. Notification was
issued by the Government of India on June 17, 1977 to appoint 8 officers from the
select list of 1976 under Rule 5(1) of the IPS (Cadre) Rules, 1954. By
notification dated August
27, 1977, the list of
officers for the selection was to be considered but it could not be considered
on account of the strike in the State and the meeting was postponed.
Ultimately, a meeting came to be held on February 15, 1978 and the names of 5 persons were
listed in the select list of whom the appellant was 5th in the order of merit.
The appellant came to be given the seniority from April 30, 1978 when the vacancy from promotee quota has arisen.
Shri
K. Madhava Reddy, learned senior counsel for the appellant, contended that in
view of the decision of this Court in Syed Khalid Rizvi & Ors. vs. Union of India & Ors. [1993 Supp.(3) SCC 576], it is
mandatory on the part of the State to prepare every year the select list of
Deputy Superintendent of Police to fill up vacancies which have arisen in the
year to tile quota and to promote them to the IPS cadre under Rule 9 of the IPS
(Appointment by Promotion) Rules, 1954 which was held to be mandatory. It is
incumbent upon the State Government to conduct a meeting and select the
officers and allot the year of allotment to fulfil the legitimate expectation
of the right to consider for promotion. Though explanation has been sought to
be given by the Government for failure to hold the meeting, it must be
considered that the appellant had lost the chances for promotion and the year
of allotment since the appellant has been continuously officiating from the
year 1976 and that, therefore, the year of allotment of 1973 is not valid in
law. We find no force in the contention.
The
effect of the inter-play of IPS (Recruitment Rules), 1954, IPS (Cadre) Rules,
1954, IPS (Appointment by Promotion) Regulations, 1954 and IPS. (Regulation of
Seniority) Rules, 1954 was considered thread-bare in Rizvi's case by a Bench of
3 Judges to which one of us (K.Ramaswamy, J.) was a member. Recruitment to the
Indian Police Service is from two sources, namely, direct recruitment and by
promotion from the members of State Police Service holding substantive posts.
No employee has a right to promotion but has right to be considered for
promotion according to Rules.
Chances
of promotion are not conditions of service but every incumbent of a substantive
post in lower cadre has a legitimate expectation for promotion and to be
considered for promotion in accordance with the Rules. Unless the officer of a
State Police Service is-brought on the select list and appointed to a cadre
post in accordance with rules , he does not acquire right to assignment of the
year of allotment. Eligibility for consideration have been prescribed in IPS
(Recruitment by Promotion) Rules.
Candidate
that fulfills the qualifications requires to be considered for appointment by
promotion as per Rule 9 thereof. preparation of the select list in accordance
with the Appointment by Promotion Regulations is a pre-condition which requires
to be prepared every year. It was held to be a mandatory duty. It subserves the
object of the Rules and afford an equal opportunity to promotee officers to
reach higher echelons of the service. It would inculcate dedicated service
assiduously discharging the duties with integrity, honesty, exhibiting ability,
straight forwardness with missionary zeal of self-confidence. The failure to
prepare the list and accord chances of promotion would inhibit efficacy in
service - and generate dishonesty and manipulation. Preparation of annual list
and appointment to service gives, apart from equal opportunity to augment
efficacy in service, provides equal chances of promotion to the officers of
State Police Service to provide harmony among direct recruits and promotees and
make them accountable to proper implementation of law and order. The
regulations require preparation of select list annually and revision of the
list and review thereof from time to time as adumbrated in the regulations. It
was, therefore, held in Rizvi's case that preparation of the select list every
year is mandatory. The State Government is enjoined to account for dereliction
of the statutory duty satisfactorily to the Court.
Regulation
3 of IPS (Appointment by Promotion) Regulations enjoins the State Government to
constitute a committee consisting of all the officers enumerated therein to
select the promotees. Under Regulation 5(1), a committee may ordinarily meet at
intervals not exceeding one year prepare a list of the members of the State
Police Service as are found to be suitable for promotion to the Indian Police
Service. The manner and methodology of the preparation has been enumerated in
the Regulations, the details of which are not material for the purpose of this
case. Regulation 6 mandates the State Government to forward the select list to
the UPSC for approval along with the records and remarks of the members and
also send their observations on the recommendations of the committee to the
UPSC. Regulation 7 requires UPSC to consider the service record and it is
empowered to change the order of the merit. As seen under the Appointment by
promotion Regulations, the list should be prepared in the order of merit as
envisaged therein. The UPSC, while considering the order of merit, is empowered
to revise the order and recommend to the Government of India for appointment,
after obtaining the comments on the proposed changes from the State Government
and consideration thereof. The modified seniority lists recommended by the UPSC
shall become final list. The Union of India shall appoint the promotee officers
in the order of merit to the vacancies arisen for their quota from the list
approved by the UPSC. Under Rule 9 of the Recruitment Rules, the Central
Government shall make the appointment in the order in which the names of the
members of the Police, Service appeared in the select list, The select list
requires to be changed from time to time by review and revision and that,
therefore, the candidate put in the select list does not acquire any
substantive right to appointment until approval of the list by the UPSC and
appointment by the Central Government. The inclusion of a person's name in the
select list in any order, therefore, does not give that person a vested right
to have his name in the select list continued in the succeeding years. The
object of preparing select list every year and revision and review from time to
time itself would indicate that the inclusion of the name in the select lists
creates only inchoit until he gets his appointment in accordance with the
rules.
In para
8 of the judgment in Rizvi's ,case, this Court pointed out that the select
committee should consider the eligibility and suitability of the members of the
State Police Service on the basis of merit, ability and suitability. Seniority
will be considered only where merit and suitability are approximately equal and
it should be prepared the list of such suitable officers in the order of merit
in each category such as outstanding, very good, good etc. and would send the
select list to the State Government.
The
State Government with its comments should forward the same to the UPSC for
approval. It would, thus, be seen that mere giving promotion to a State Police
Officer and posting him to a cadre post does not cloth him with a right to be
appointed with effect from the year in which he was temporarily promoted and posted
to cadre post. Inclusion in the selection list and appointment in accordance
with the rules are conditions precedent. An officer including in the merit list
and continuously officiated in the cadre post, gets his seniority when the
vacancies have arisen in proportion to the percentage prescribed to the promotee
officers from the date he was put in the select list and appointed in
accordance with the rules or continuously officiated in the cadre post after
putting in the select list without break. The year of allotment shall be next
below the junior-most direct recruit selected by the direct recruitment
continuously officiated in a cadre post. In Paragraph 15, this Court considered
the seniority rules and held as under:
"Rule
3(1) of Seniority Rules adumberated that every officer shall be assigned the
year of allotment in accordance with Seniority Rules. Rule 3(3), which is
relevant to this case, declares that the year of allotment of an officer
appointed to the Service after the seniority rules came into an officer
appointed to the Service after the seniority. rules came into force, shall be
as follows:
the
year of allotment of a direct recruit officer shall be the year following..the
year in which competitive examination was held;
(proviso
omitted) (ii) officer appointed to the Indian Police 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 (direct recruit) who officiated continuously in a senior post
from a date earlier than the date of the commencement of such officiation by
the former. Provided that the year of allotment of an officer appointed to the
Service in accordance with Rule 9 of the Recruitment Rules who started
officiating continuously in a senior post from a 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 Government
in consultation with the State Government concerned." Similarly, the
Promotion Rules and Recruitment Rules were considered in paragraph 16 and
stated the law as under:
"It
could, thus, be seen that an officer appointed to the Indian Police Service by
promotion from State Services to the Central Services in accordance with Rule 9
of the Recruitment Rules read with Promotion Regulation 9, his year of
allotment is that of the junior- most among the direct recruit officers who
officiated continuously in a senior post from a date earlier than-the date of
the commencement of such officiation by the former. The continuous officiation
of the promotee officers appointed under Rule 9 of the Recruitment Rules
earlier that the date on which direct recruit officers started officiation
should be determined and hoc by the Central Government. By operation of
Explanation 1 the period of continuous officiation of the promotee officer in
the senior post for the purpose of determining his seniority should count only
from the date of his inclusion in the select-list or from the date of his
continuous officiation in such senior post whichever is later. As a
consequence, though the promotee officer continues to officiate earlier to his
being brought into the select-list, he gets his seniority on his appointment to
the senior post from the date on which he was brought into select-list, only
from the date of appointment, or continuous officiation without break whichever
is later." It would, therefore, be clear that the Committee prepare the
select list in the order of merit and forward the same to the Stage Government.
It is the duty of the State Government to send the said list with its comments
to the UPSC who in turn finalises the select list and prepares the list in the
order of merit. In case, it revises the order of merit as per law it forms the
final list Appointment of the promotee officer to the Indian Police Service by
the Central Government are mandatory requirements to claim seniority in the
Indian Police Service and the year of allotment. The Government have properly
explained the circumstances in which the Committee could not meet to consider
the claims for selection of the candidates.
Preparation
of the list in the order of merit approved by UPSC and appointment to the post
in accordance with the rules was follow thereafter.
In
this case, it is not in dispute that a Committee was constituted and was to
hold the meeting in December but since the strike of the State Government
employees was continuing, the meeting was cancelled. Ultimately, the Committee
met in February, 1978 and selected the candidates who are found to be eligible
and put then in the select list. It is explained in the counter affidavit filed
by the respondents that direct recruits of the year 1976 were given the year of
allotment of 1977 and that, therefore, the appellant cannot get any day earlier
than the direct recruits of the year 1973. The placement of the direct recruits
also has been mentioned in the counter affidavit Under these circumstances, the
year of allotment of the appellant of 1973 is not vitiated by any error of law
warranting interference:
The
appeals are accordingly dismissed. No costs.
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