D. Radhakrishnan Vs. Union of India & Ors [1996] INSC 1050 (2 September 1996)

K. Ramaswamy, G.B. Pattanaik

ACT:

HEAD NOTE:

O R D E R

Leave granted.

We have heard learned counsel on both sides.

This 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.

Consequently, 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:

whether the Tribunal is right in its conclusion? Rule 3(3) of the IPS (Appointment by Promotion) Seniority Rules reads as under:

"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 af allotment of an officer appointed to the service after the commencement of these rules shall be-

(a) where 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;

(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 date earlier than the date of 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 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.

Explanation 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:

"Thus 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.

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 later.

He/she 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.

Thus, 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.

The appeal is accordingly dismissed. No costs.

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