HARI SHANKAR SONI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition impugns the correctness of the order of the C. A. T. , Jabalpur in O. A. No. 143/92, which was disposed of being devoid of merit as the points raised therein have been held to be covered by the judgment of the Apex Court in the case of [syed Ktialid Rizvi and Ors v. Union of India and Ors. , (1994) 26 A. T. C. 192].

(2.) THE petitioner joined the State Police Service as a Deputy Superintendent of Police on 21-8-71, in Radio Branch as per Annexure P-l of the petition. The gradation lists as on 1-4-78 and 1-4-83 showed the name of the petitioner against serial Nos. 54 and 15 respectively. The petitioner was issued a posting order on 3-3-82 to join on promotion as Additional Superintendent of Police, Bastar, a Cadre post of the IPS of M. P. , while deputed as a DSP with the Organisation of the Vigilance Commissioner (now designated as Lok-Ayukt ). The petitioner grieves that he was not relieved as he was conducting enquiry/investigation in some important matters and consequently, suffered a short tenure of officiation on the cadre post. Subsequently the said order was modified by the order dated 29-4-82 to transfer and post the petitioner. as Additional Superintendent of Police, Bilaspur, which he complied on being relieved on 1-5-82. He assumed the new charge on 10-5-82 and continued to officiate till his induction in the IPS Cadre vide notification of the Government of India dated 23-10-84 under the Indian Police Service (Appointment by Promotion) Regulations, 1955, on the basis of select list of the year 1982-83. However, to his utter dismay, the petitioner was granted 1981 as the year of his induction in the IPS, whereas his juniors respondent Nos. 3 to 4 were made one year senior to him on being allotted the year 1980. Accordingly, the petitioner submitted a representation for restoration of his seniority as per the letter dated 27-6-87, but the earlier year of allotment was suo-motu reviewed in view of the judgment of the Apex Court and he was allotted the year 1979 to the IPS, but his position did not improve vis-a-vis his juniors as their year of allotment was shifted to 1978. Thus, being aggrieved by and dis-satisfied with the outcome of review, the petitioner submitted another representation which was rejected by the Government of India as per the letter dated 29-1-92. Thereafter the State Government vide order dated 6-2-92, promoted the respondent Nos. 3 to 5 to selection grade which was denied to the petitioner. Under the circumstances, the petitioner moved the Central Administrative Tribunal, Jabalpur, by way of O. A. No. 143/92 and prayed, amongst others, for restoration of seniority by granting 1978 as the year of allotment to the IPS and consequently placing him above respondent Nos. 3 to 6 by computing the period of officiation w. e. f. 3-3-82 and not from 11-5-82 when he joined the new assignment. The petitioner contended that the date of inclusion of his name in the select list was the crucial date and not the date of his physically joining the cadre post of the IPS. The delay caused in joining the Cadre Post of IPS was due to delay in relieving him from the Office of the State Vigilance Commissioner (Lok-Ayukt ). As in his case, the period of continuous officiation in the cadre post was calculated to be 172 days, being less than his juniors, the petitioner canvassed that in computing his seniority, the relevant provisions of the the IPS (Regulation of Seniority) Rules, 1954, could be relaxed as for no fault of his, there was a delay in joining the cadre post of the IPS and the Central Government in exercise of residuary powers under Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960 could have relaxed the relevant rules on the ground of equity and in the interest of justice while computing the period of officiation on the cadre post, as a result whereof, he was not allotted the year 1978 in the IPS and lost his seniority by one year. The Union of India countering the submissions of the petitioner averred, amongst others, that the appointment of a select list officer of cadre post is also within the scope of instructions contained under rule of the IPS (Cadre) Rules, 1954 and the State Government can appoint cadre officer to non-cadre post and vice-versa. It was also averred that the respondent Nos. 3 and 4 were correctly placed above the petitioner in the gradation list of the IPS Officers of Madhya Pradesh as they started officiating on cadre post earlier than him. Respondent Nos. 5 and 6 being direct recruit IPS Officers were appointed as on 1979 and their seniority was not in dispute whereas the petitioner being a promoted IPS Officer was appointed to the IPS only on 23*10-84. His entire continuous officiation on cadre posts prior to his appointment to the IPS was taken into account for fixation of seniority in the IPS and therefore, he could not have claimed violation of his Fundamental Rights under Articles 14 and 16 of the Constitution. It was clarified that the representation dated 27-6-87 of the petitioner was considered sympathetically by the Central Government and, therefore, his seniority was revised upward by allotting him the year 1979 in the IPS. It was also clarified that respondent Nos. 3 and 4 started officiating on cadre post with effect from 4-3-82 and 6-3-82 respectively where as the petitioner started officiation only with effect from 11-5-82, that seniority in the select list and the State Police Service has no bearing on fixation of seniority in the IPS and that in terms of Rule 3 (3) (b) of the IPS (Regulation of Seniority) Rules, 1954 read with Explanation'1, of the said rule, the date of continuous officiation or the date of inclusion of name in the select list whichever is later is the crucial date for determination of seniority of an officer appointed to the IPS by promotion. Thus the petitioner is not entitled to any benefit because of break in his continuous officiation as the rules mandate the officiation to be continuous and that too after inclusion in the select list. Further in the instant case, IPS (Regulation of Seniority) Rules, 1954 cannot be relaxed under Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960 as the petitioner has not suffered any undue hardship. The State Government (respondent No. 2) also adopted the same line of argument and over and above, fastened the responsibility on the petitioner for delay in joining the cadre post of the IPS as he failed to make efforts to get himself relieved from the Organisation of the Vigilance Commissioner (Lokayukta ). The relevant portion of the affidavit of the State Government on reproduction reads as under:-"

(3.) THAT, the answering respondents most respectfully submits that in accordance with provisions of IPS (Appointment by Promotion) Regulations, 1955, the name of applicant was included in the Select List for the year 1981 -82, for promotion to IPS Cadre. It is submitted that promotion orders are issued by GOI under Rule 9 of 1988 Regulations, as and when vacancy arise during concurrency of the Select List. It is submitted that before the regular promotion order could be issued by the GOI, (he applicant who was on deputation with the Organisation of Lokayukt, was transferred and posted against Cadre post of IPS in the capacity of ASP Bastar, vide order dated 3-3-82, Annexure A-3 to the application. By the same order, the respondent Nos. 3 and 4 were also transferred and posted against cadre post as ASP, Raipur and Commandant, 5th SAP Battalion, Morena, respectively. It is submitted that the respondent Nos. 3 and 4 in compliance of order dated 3-3-82, joined and assumed the charge of cadre posts on 4-3-82 and 6-3-82 respectively, whereas the applicant made no efforts to get himself relieved so as to take over the new arrangement of cadre post at Bastar, on the contrary, even after rejection of his representation by D. G. , he was making efforts for the cancellation/modification of order dated 3-3-82, so far as it relates to the applicant. It is respectfully submitted that by order 29-4-82, A/4, the modified posting order was issued and the applicant was transferred and posted against cadre post of ASP at Bilaspur. It is submitted that after the order dated 29-4-82 was issued, then only the applicant sought permission to get himself relieved from the organisation of Lok-Ayukt, as would be clear from perusal of Annexure R-l, filed herewith. It is absolutely wrong on the part of the applicant to allege that he was not relieved in compliance of order dated 3-3-82, from Lok-Ayukt because of his so-called association with important enquiry/investigation and that the order dated 3-3-82, in respect of applicant was withheld and lateron cancelled in the public interests because the applicant had conducted enquiry against so-called senior officer, posted at Bastar. It is submitted that after availing joining time, the applicant in compliance of order dated 29-4-82, vide Annexure A-6 intimated his arrival at Bilaspur and was permitted to join in the afternoon of 10-5-82 and actually assumed the charge of the cadre post as ASP in the afternoon of 12-5-82, as would be clear from perusal of Annexure R-2, filed herewith and started officiating on the cadre post of IPS (Regulation of Seniority) Rules, 1954. " 3. The Central Administrative Tribunal, Jabalpur, following the dictum of the Apex Court in Syed Khalid Rizvi's case (supra) held that the manner in which seniority is to be counted has been laid down in the Indian Police Services (Regulation of Seniority) Rules and the condition precedent for purpose of counting seniority is officiation on a cadre post. Accordingly, the application of the petitioner was disposed of being devoid of merits.