S A F ABBAS Vs. STATE OF BIHAR

JUDGEMENT

(1.) All these petitions have been heard together as they raise common questions of law and questions of fact arising in more or less similar circumstances. The petitioners and members of the opposite party, except (1) the State of Bihar and (2) the Union of India, are all members of the Indian Administrative Service. The petitioners were initially recruited to the executive branch of the Bihar Civil Service but were subsequently appointed by promotion to the Indian Administrative Service. The members of the opposite party, however, were appointed as a result of the competitive examination held for recruitment of candidates for the Indian Administrative Service in terms of the All India Services Act, 1951, It may also be stated as general approach to the question that the officers who are fanged as opposite party entered the service earlier than the petitioners who were appointed by promotion on a later date. The petitioners may be compendiously called "promoted officers" and 'the opposite party as "direct recruits". It may be stated that it is not questioned that if there were no provision in the rules framed by the Government of India, in pursuance of the power conferred upon it under the 1951 Act, the direct recruits would be senior to the promoted officers. A complication, however, has been introduced into this position on account of the fixation of seniority in terms of what is called the Indian Administrative Service (Regulation of Seniority) Rules, 3954, which regulates seniority not only among the direct recruits inter se and the promoted officers inter se but also lays down the criterion for determining the relative seniority between an officer recruited to the Service as a result of the competitive examination and an officer appointed to the Service by promotion, from the rank of State Civil Service. It may be stated here that the criterion laid down is that of continuous officiation in a senior post by both categories of officers, in which event, if a direct recruit started officiating in the senior post from a date earlier than the date of commencement of such officiation by a promoted officer, then the promoted officer shall rank next below the junior-most of the officers, who are direct recruits, who started officiating in a senior post from a date earlier than the promoted officers. In substance, the entire controversy centres round this question and it is accordingly the interpretation of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, which has been mooted by learned Counsel for the parties. It may be stated further that apart from the petitioners and the direct recruits who are directly affected, and who are represented by their Counsel in each one of the petitions, the State of Bihar (opposite party No. 1) and the Union of India (opposite party No. 2) have been represented by their respective Counsel before us. So far as the Union of India is concerned, it supports the stand of the direct recruits inasmuch as the latest Order of the Government of India is in favour of the seniority claimed by the direct recruits, but the learned Advocate-General for the State of Bihar has informed the Court that the State only seeks a decision from the Court to re-shuffle the seniority of the officers in accordance with the direction of the Court. It may be stated that the counter-affidavit filed on behalf of the State of Bihar is in consonance with the recommendation of the State of Bihar which was accepted by the Government of India, in the first instance, by the letter of Shri S. Narayanswamy, Deputy Secretary, Government of India, dated the 3rd September, 1958, giving the promoted officers seniority over the direct recruits, by virtue-of the recommendation by the State of Bihar contained in the letter of the then Chief Secretary Shri M.S. Rao, dated the 9th July, 1958. It may also be stated that by virtue of the approval granted by the Government of India, the recommendation contained in the letter of the Chief Secretary, Bihar, Shri M.S. Rao, the petitioners have been shown in the civil list as ranking senior to the opposite party direct recruits, but subsequently a representation was filed by Shri P.S. Appu which was rejected by the Government of India by letter No. 3/7/57--AIS(II), dated the 18th October, 1958 (vide paragraph 26, page 11, Vol. 1 of the brief in C. W. J. C. No. 853 of 1968). Subsequent representations were, however, made by two of the opposite parries, one, by Shri K.A. Eamsubramaniam and another by Shri S.D. Prasad, which were forwarded to the Government of India by the State of Bihar sometime in 1965, and the Government of India took a decision on these representations holding that the previous order of the Government of India was incorrect and that the direct recruits should be held to be senior to the promoted officers and that the rank of the officers as members of the Indian Administrative Service, Bihar Cadre, should be revised accordingly.

(2.) The order of the Government of India is contained in the letter dated the 20th of September, 1967, by the Deputy Secretary, Government of India, Ministry of Home Affairs, to the Secretary, Appointment Department, Government of Bihar, being No. 26/5/64--AIS(II) -- Vide Annexure 1, p. 19, Vol. 1, of the brief in G. W. J. C. No. 853/ 68, which stands as follows:

(3.) Accordingly, the two All India Services were formed and they were put on a statutory basis under the Indian Civil Administrative (Cadre) Rules, 1950, the I.P. (Cadre) Rules, 1950 and the Indian Administrative and Police Service (Pay) Rules, 1950. This was followed by the All India Services Act, 1951, which the Indian Parliament passed under Article 312 (1) of the Constitution of India, which empowered the Government of India, in consultation with the State Governments, to make rules for the regulation of recruitment and conditions of service of the persons appointed to an All India Service. In terms' of Section 3 of the All India Services Act, 1951, a series of rules were promulgated in consultation with the State Governments. Under the Indian Administrative Service/Indian Police Service (Recruitment) Rules, 1954, the I.C.S./I.P. officers became members of the Indian Administrative Service/Indian Police Service, subject to the provisions of Article 314 of the Constitution of India. Generally, these rules follow the pattern of the rules applicable to the former I.C.S. and I.P. officers. Attention may, however, be invited to the following rules which are relevant for deciding the point in controversy in the instant applications. They are: The Indian Administrative Service (Recruitment) Rules, 1954; The Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955; The Indian Administrative Service (Appointment by Promotion) Regulations, 1955; The Indian Administrative Service (Appointment by Selection) Regulations, 1956; The Indian Administrative Service (Cadre) Rules, 1954; The Indian Civil Administration (Cadre) Rules, 1950; The Indian Administrative Service (Pay) Rules, 1954; The Indian Administrative and Police Services (Pay) Rules, 1950; The Indian Administrative Service (Regulation of Seniority) Rules, 1954; The Indian Police Service (Regulation of Seniority) Rules, 1954; Bihar Service Code, Appendix 6, Rule 14. It may be stated that it is the last three in the series of rules which are crucial for determining the relative seniority of the petitioners as well as the direct recruits, other rules being more or less subsidiary to throw light upon the provisions of the Regulation of Seniority Rules. Here it is relevant to set out the following charts which would apply a bird's-eye view with regard to the relevant dates in connection with the question of seniority. <FRM>JUDGEMENT_397_AIR(PAT)_1970Html1.htm</FRM> <FRM>JUDGEMENT_397_AIR(PAT)_1970Html2.htm</FRM>