Central Administrative Tribunal - Allahabad
Kavindra Pratap Singh vs The Union Of India Through Secretary ... on 31 March, 2017
(Reserved) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD This the 31st Day of March, 2017 Honble Ms. Jasmine Ahmed, Member J. Honble Mr. O.P.S Malik, Member A. Original Application No. 330/00463/2016 (U/S 19, Administrative Tribunal Act, 1985) 1. Kavindra Pratap Singh, aged about 53 years, son of Late Mahendra Pratap Singh, presently posted as Superintendent of Railway Police, Allahabad. 2. Subhash Singh Baghel, presently posted as Superintendent of Police, Bijnore. 3. Satyendra Kumar Singh, presently posted as Commandant 24th Battalian, Muradabad. 4. Ratan Kant Pandey, presently posted as Commandant, 12th Battalian, PAC, Fatehpur. 5. Vikramaditya Sachan, presently posted as Commandant, 20th Battalion, Azamgarh. 6. Piyush Srivastava, presently posted as Superintendent of Police, Bulandshahar . Applicants V E R S U S 1. The Union of India through Secretary (Ministry of Home Affairs), North Block, New Delhi. 2. The Secretary, Department of Personnel and Training (DOPT), Ministry of Home Affairs, Government of India, New Delhi. 3. The State of U.P through Principal Secretary (Home Affairs), Lucknow. 4. The Director General of Police, U.P., Lucknow. 5. The Inspector General of Police (Karmik), Police Head Quarter, Lucknow. 6. Rambodh, presently posted as Commandant 33th Battalion, Jhansi. ..Respondents Advocates for the applicants:- Shri V.K. Singh, Sr. Advocate Shri Anil Kumar Singh Mrs. Archana Singh Advocate for the Respondents:- Shri L.P. Tiwari Shri K.P. Singh O R D E R
DELIVERED BY:-
HONBLE MR. O.P.S. MALIK (MEMBER-A) By way of the instant Original Application filed under Section 19 of Administrative Tribunals Act 1985, the applicants have prayed for following main reliefs: -
(i). An order be passed in the nature of certiorari to quash the impugned order dated 07.08.2015 passed by the respondent no. 1, a copy whereof is contained in Annexure A-1...
(ii). An order be passed in the nature of mandamus directing the respondents to re-determine the seniority of the applicants and fix their seniority by according allotment year 2003 in place of 2005.
2. Factual matrix of the case, as stated by the applicants, is that the applicants herein are Provincial Police Service (in short PPS) Officers of 1985 batch of the State of Uttar Pradesh. They joined the service on different dates in the year 1987. The respondent no. 6 Shri Rambodh, who is of 1984 batch, joined the PPS on 06.07.1990 i.e. approx three years later than the applicants. The delay in his joining the service is attributed to time taken in determination of his fitness.
2.1. At the time of meeting of Departmental Promotion Committee (DPC) of 2010 for induction of PPS officers into the Indian Police Service (in short IPS), Respondent No. 6 had rendered 20 years actual service in the rank of Deputy Superintendent of Police (in short Dy. SP). As per the policy of the respondents for determination of the seniority in IPS Cadre, he was given weightage of five years. The applicants, on the other hand, had completed 23 years of actual service on the date of the said DPC of 2010. It is the claim of the applicants that they ought to have been given the service weightage of seven years. But since Shri Rambodh was given service weightage of five years, the applicants have also been given the weightage of five years in place of seven years for no fault on their part. It is alleged by the applicants that though their continuous service was more than Shri Rambodh, they have been placed in the seniority list of IPS issued vide Notification dated 24.06.2013 below him and their allotment year has been determined as 2005 in place of 2003. Referring to column no. 6 of this Notification, it is pointed out that though the original weightage of seven years has been given to the applicants but it was reduced to five years in pursuance to Proviso to Rule 3(3)(ii) of IPS (Regulation of Seniority ) Rules 1988 (in short Seniority Rules 1988).
2.2. The applicants submit that this has caused undue hardship to them. It is suggested that this unfairness can be rectified by construing the proviso harmoniously by giving actual service weightage to the applicants for their actual service and the respondent no. 6 may also be given notional benefit of same weightage of service as to his junior officers because he was not able to join the service in 1986 alongwith his batch-mates due to incorrect decision of the Medical Board initially which was later on rectified and he was allowed to join the PPS in 1990. It is further stated by the applicants that appreciating the grievances like that of the applicants, the Central Government, in exercise of powers conferred by sub-section (i) of Section 3 of All India Services Act 1951 (61 of 1951), after consultation with the concerned State Government made rules titled The All India Services (Conditions of Service Residuary Matters) Rules 1960 (In short Residuary Rules 1960) (Annexure A-5). It is pointed out that Section 3 of Residuary Rules 1960 provides to relax rules in certain cases. The applicants urge that relaxation should be granted to them in accordance with Clause (a), (b) and (c), as laid down by the Government of India so that their undue hardship is mitigated by giving them weightage of seven years in place of five years.
2.3 It has further been stated that the Seniority Rules 1988 have been amended from time to time recent being in 2005 and 2012. In case of the applicants, the amended rule 2005 (Annexure A-6) ought to have been applied but the respondents applied the amended rule 2012. It caused further loss of one year seniority to them. It is submitted that any statute should be applicable prospectively but in this case, it was applied retrospectively. Had the Rule 2005 been applied, the respondent no. 6 would have been given the weightage of six years and the applicants seven years. Based on earlier Rules, the respondent no. 6 is entitled for the weightage of six years for 19 years of service and the applicants for seven years for 22 years of service. Thus, retrospective application of Rules is illegal and violative of Article 14 and 16 of the Constitution of India.
2.4. The applicants made representations to the Secretary, Ministry of Home Affairs, New Delhi through proper channel for re-fixation of their allotment year and also for application of Seniority Rules as amended in 2005 (Annexure A-7). The Director General of Police, U.P, and Home Department (U.P) had also recommended the case of the applicants for giving them the seniority of 7 years (Annexure A-8). But, completely ignoring the aforesaid recommendation, the impugned order has been passed without assigning any cogent reasons and only stating that no recommendation by the DOP&T has been made. Resultantly , the applicants have suffered seniority loss of two years. Aggrieved, they have preferred this O.A.
3. Per-contra, the respondents have filed two Counter Affidavits; one on behalf of respondent nos. 1 & 2 and another on behalf of respondent nos. 3, 4 & 5. In the CA filed on behalf of respondent nos. 1 & 2, the respondents have stated distinct roles in the process of appointment from State Police Service to IPS in respect of State Government, Union Public Service Commission (in short UPSC) and the Central Government.. After appointment to the IPS, the concerned State Government sends a proposal to the Central Government for fixation of the year of allotment and inter-se seniority of the concerned officers in the IPS. The year of allotment of an officer is determined with reference to the year of the select list from which he stands appointed to the IPS. As per the pre-amended rules, the continuous service rendered by an officer in the PPS on a post not below the rank of Dy. SP or equivalent upto the 31st December of the year immediately before the year of the Select List is taken into account. For such service rendered by him upto 21 years, he is given a weightage of one year for every completed 03 years of service, subject to a minimum of four years. Further, weightage of one year for every completed 02 years of service beyond the period of 21 years is given subject to a maximum of 03 years. Whereas, as per the 2012 amended rules, the continuous service rendered by an officer in the same rank upto 31st December of the year of the select list is taken into account. For such service rendered by the concerned officer upto first 12 years, he is given a weightage of 01 year for every completed 04 years of service, subject to a minimum of 03 years. Further, for service beyond 12 years and upto 21 years, he is given a weightage of 01 year for every completed 03 years of service and beyond 21 years, weightage of one year for every completed 02 years of service, subject to a maximum of 03 years. Thus, the critical change in the amended rules of 2012 is two fold as under: -
(i). words immediately before the year were omitted.
(ii). method of calculation of weightage for such service rendered by an officer.
3.1. It is further submitted that the weightage so arrived at is deducted from the year of select list to calculate the year of allotment of an officer. The proviso to Rule 3(3)(ii) of Seniority Regulations envisages that even if a junior officer is having a longer service as Dy. SP to his credit than that of his senior in the IPS, he will not be given a higher batch year than that of his senior Thus, it restricts the junior IPS officer to get higher batch year than that of his senior. It is claimed that this is a logical rationale provided to ensure that senior remains senior and junior may not become senior to his senior.
3.2 Coming to the specific facts of the case, it is submitted by the respondents that the applicants were appointed by promotion to the Uttar Pradesh Cadre of the IPS from the select list of 2010 vide the Home Ministrys Notification dated 21.12.2012. Thereafter, they were assigned 2005 as their year of allotment vide Ministrys order dated 24.06.2013 in terms of the Seniority Rules 1988 as amended by the DOP&T in 2012. The respondent no. 6 joined the PPS only in 1990 when he was declared medically fit by the Special Medical Board. For the purpose of calculation of his seniority, his service comes to a total of 20 years. Accordingly, he was allotted the seniority of 2005. Since the applicants were junior to respondent no. 6, their seniority has been restricted to 2005 in pursuance to proviso to Rule 3(3)(ii) of Seniority Rules 1988. It is admitted that the representations were received from the officers whose seniority had been restricted. The State Government of U.P. also requested the respondent no. 1 to relax the condition of Seniority Rules 1988 as amended in 2005 and 2012 in terms of Residuary Rules 1960 and thereby re-fix the seniority of the aggrieved officers. These representations were examined in consultation with the DOP&T and the State Government of U.P and it was decided that there was no justification to relax the aforesaid Rules in terms of Residuary Rules 1960. Accordingly, such representations were rejected vide letter dated 07.08.2015 (impugned).
3.3. Reacting to the contentions of the applicants that the respondent no. 6 may also be given notional benefit of weightage to which his juniors were entitled, the respondents have stated that there is no provision in the Rules for taking any notional date of appointment in the rank of Dy. S.P except continuous service for the purpose of reckoning the year of seniority /allotment. Hence, it was not possible. It has further been submitted by the respondents that the judgment in Praveen Kumars case changed the methodology for preparing the select list.
3.4 In the Counter Affidavit filed on behalf of respondent nos. 3, 4 and 5, it has been stated that the year of allotment of the applicants was fixed as per the Seniority Rules 1988 amended by the Notification of 2012. Further, the representation of the applicant was correctly decided as per the Rules.
4. The applicants have filed Rejoinder Affidavit reiterating their contentions in the O.A and pleaded that any loss in the seniority for no fault of the applicants will clearly cause undue hardship to them and, hence, they are entitled to be given relaxation on the basis of equity and principles of natural justice.
5. Heard Shri V.K. Singh, Senior Advocate alongwith Shri Anil Kumar Singh & Mrs. Archana Singh, learned counsel for the applicants and Shri L.P. Tiwari & Shri K.P. Singh, learned counsel for the respondents and perused the entire record.
6. Learned counsel for the applicants have taken us through relevant rules and provisions. It has been contended by the learned counsel that the impugned order has been passed in a non-speaking manner and without assigning any cogent reasons. Despite the fact that the State of U.P recommended for re-fixation of seniority of the applicants, their representations were rejected on the ground that no recommendation by the DoP&T has been made. As a result, the applicants have to suffer the seniority loss of two years without any fault on their part. They have lost their seniority due to respondent no. 6, who was supposed to join in 1986 alongwith his batch-mates but could join the service in 1990 on account of administrative lapse. Placing the applicants below him in the seniority list is illegal and arbitrary. The reduction in their seniority will adversely affect the promotional avenues and future service career of the applicants. Further, the case of the applicants is a fit case for invoking the Residuary Rules 1960 as they have been put to undue hardship. Learned counsel have repeatedly emphasised that the proviso cannot override the substantive rule. Further, it has been argued that the amendment of 2012 does not apply to the Select list of 2010. The relevant rules to the select list of 2010 are the Seniority Rules 1988 as amended in 2005. It has been urged by the learned counsel that it is necessary to re-read the provisions of Seniority Rules and the way-out is to give the respondent no. 6 a higher seniority while preserving the due seniority of the applicants.
7. The learned counsel for respondents, on the other hand, have contended that the seniority of the applicants has been fixed in accordance with the Seniority Rules 1988 as amended finally in 2012. It became necessary to amend the rules in view of the case of Praveen Kumar which changed the methodology of preparing the Select List. The representations of the applicants were duly considered by the respondents. It is true that the Government of U.P requested to relax the Rules but the proposal was rejected as it was not found justified.
8. From careful consideration of the rival contentions, it clearly emerges that there is no dispute regarding the facts of the case and sequence of events. The applicants belong to 1985 batch and respondent no. 6 to 1984 batch of the PPS. However, the respondent no. 6 actually joined the service in 1990 which was 03 years later than the applicants. As one of the factors in determining the seniority is the continuous service in the PPS, the seniority of the applicants was restricted to that of the respondent no. 6 who had three years less service than the applicants. This is the genesis of the controversy involved in the present case.
9. There was no issue between the rival parties insofar as their status in the PPS was concerned. The controversy arose on account of the induction of these officers from State Service to All India Service. The process for this induction was initiated by the submission of a proposal from the Government of U.P vide Letter dated 10.08.2012 to the Secretary, UPSC for the selection years 2009 A, 2010 and 2011. The particulars of State Police Service Officers who were eligible for consideration for promotion to the IPS in their order of seniority on relevant dates were also enclosed with this letter. The meeting of the Selection Committee was held in the UPSC on 26/27.11.2012. Based on the Select List prepared by the UPSC, Respondent No. 1 vide Notification dated 21.12.2012 issued formal orders to appoint the members of UP Police Service to the IPS under Recruitment Rules 1954 read with sub Rule (1) of Regulation 9 of the IPS (Appointment by Promotion) Regulations, 1955 (in short Promotion Regulations 1955) for the Select Lists of 2009 A, 2010 and 2011. Subsequently, the seniority / year of allotment of these 60 officers, who were appointed to the UP Cadre of IPS from year-wise select list of the years 2009A to 2011, was computed as per Rule 3(3)(ii) of the Seniority Rules 1988 as amended from time to time and conveyed accordingly vide order dated 24.06.2013 by Respondent No. 1. The details of reduction of weightage from their original weightage in respect of certain officers and restriction of their seniority have been recorded in this order. The applicants in the present case figure at Sl. No. 16, 18, 21, 22, 23 and 26. Aggrieved, the applicants submitted representations against restriction of their seniority which were rejected by the Respondent no. 1 vide impugned order dated 07.08.2015.
10. As the controversy primarily relates to assignment of the year of allotment and inter-se seniority, the discussion would be focused mainly on this aspect. As per procedure, after the appointment of PPS officers to the IPS, the concerned State Government sends a proposal to the Central Government for fixation of the year of allotment and inter-se seniority of the concerned officers. Having regard to the pleadings, the issues for determination in the instant case are as under: -
(i). Whether the amended Seniority Rules 2012 could be applied retrospectively to the select list of 2010 ?
(ii). Whether the weightage given to the applicants and, hence, their year of allotment according to the length of continuous service rendered by them could be restricted by virtue of a senior having less continuous service in the State Police Service?
(iii). Whether the case of the applicants falls in the category of undue hardship as envisaged by the Residuary Rules 1960 ?
11. On the issue of retrospective applicability of Rules, learned counsel for the applicants have contended that the Seniority Rules 1988 as amended in 2012 could not be applicable to the Select List of 2010. Reliance has been placed on the following judgments: -
(i). (2001) 10 SCC 51 Maharashtra State Road Transport Corporation & Ors Vs. Rajendra Bhimrao Mandve & Ors.
(ii). (2008) 3 SCC 512 K. Manjushree Vs. State of A.P & Ors.
(iii). (2013) 4 SCC 540- Tej Prakash Pathak & Ors Vs. Rajasthan High Court & Others.
(iv). Order dated 15.05.2015 of this Tribunal passed in O.A No. 595/2012 Deepak Jyoti Ghildiyal Vs. UOI & Ors.
11.1. In the case of Maharastra SRTC (Supra), the Honble Supreme Court has held that: -
It has been repeatedly held by this court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. 11.2. In the case of K. Manjushree (Supra), the Honble Supreme Court while referring to Maharastra SRTC (Supra) has held as follows: -
In this case the position is much more serious. Here not only the rules of the game were changed, but they were changed after the games had been played and the result of the game were being awaited. This is un-acceptable and impermissible 11.3. The above two judgments have been subsequently followed by the Honble Apex Court in the case of Tej Prakash (Supra) and by this Tribunal in O.A No. 595/12 Deepak Jyoti Ghildiyal Vs. UOI.
11.4. Thus, it is a well settled legal position that Rule/ Legislation cannot be applied with retrospective effect unless expressly provided or intended in the Notification itself. The 2012 Notification was to come into force on the date of publication in the Official Gazette i.e. with effect from 18.04.2012. Therefore, the amended Seniority Rule 2012 could not have been applied for the Select List of 2010 whatsoever may have been the reasons for such amendment.
11.5. Let us now see as to what specific difference would it make in the case of the applicants in terms of weightage and seniority as per pre-amended Rules and amended Rules 2012. The two critical changes brought by the amendment of 18.04.2012 in Rule 3, sub rule (3), clause (ii) were as under: -
(a). The words immediately before the year were omitted.
(b). The system of calculation of weightage for completed years of service was modified.
11.6. It would be seen from the method of calculation of weightage on the basis of completed years of service that under both, pre-amended and amended, Rules, the weightage permissible to the applicants would be 07. Thus, no material change in weightage would be made by application of the amended Rules in case of the applicants. However, in case of respondent no. 6, the weightage would be increased from 5 to 6, if pre-amended Rules are applied. Thus, the application of amended Rules 2012 has no practical implication in the case of applicants as these do not alter the weightage given to them. The issue of retrospective non-applicability of amended Rules is, therefore, only of academic interest in case of applicants. Issue no (i) is answered accordingly.
12. We will now advert to issue no. (ii). The central issue in the instant case is the assignment of year of allotment and the seniority to an officer on his induction into IPS from PPS. Relevant Rule 3 of Seniority Rules 1988, as amended upto 30.07.2005 and before the amendment of 2012 is reproduced below: -
Rule 3. Assignment of year of allotment
1. .
2. ..
3. (i). ..
(ii). The year of allotment of a promote officer shall be determined with reference to the year for which the meeting of the Committee to make selection, to prepare the Select List on the basis of which he was appointed to the Service, was held and with regard to the continuous service rendered by him in the State Police Service not below the rank of a Deputy Superintendent of Police or equivalent, upto the 31st day of December of the year immediately before the year for which the meeting of the Committee to make selection was held to prepare the select list on the basis of which he was appointed to the Service, in the following manner: -
(a). for the service rendered by him upto twenty one years, he shall be given a weightage of one year for every completed three years of service, subject to a minimum of four years.
(b). He shall also be given a weightage of one year for every completed two years of service beyond the period of twenty one years, referred to in sub clause (a), subject to a maximum of three years.
Provided that he shall not be assigned a year of allotment earlier than the year of allotment assigned to an officer senior to him in that select list or appointed to the service on the basis of an earlier select list. 12.1. Thus, the relevant Rule prescribes two essential parameters for determination of the year of allotment / fixation of seniority consequent upon induction into the IPS from PPS : -
(a). The year of Select List from which a promotee officer stands appointed to the IPS;
(b). The continuous service rendered by such officer in the State Police Service not below the rank of Dy. S.P or equivalent.
12.2. The weightage in years to be given to an officer is computed based on parameter (b) above. This weightage is deducted from the year of the Select List to reach at the year of allotment of an officer. By various amendments in Seniority Rules 1988, the cut off dates to calculate the continuous service have been changed. As per 2005 amendment, it was upto 31st day of December of the year immediately before the year for which the meeting of the Committee to make selection was held. However, by amendment of 18.04.2012, the words immediately before the year were omitted. It essentially meant that according to the amended Rules 2012, the continuous service was counted upto 31st day of December of the year for which meeting of the Selection Committee was held.
12.3. Thus, computation of weightage is a core parameter for assignment of year of allotment to an officer. The weightage, in turn, depends on the continuous service rendered by an officer in State Police Service. In the present case, under the 2012 amended Rules, the weightage to be given to the applicants would be 07 years for 23 years continuous service. There is no dispute on this total original weightage to applicants amongst the parties as it is both the claim of the applicants as also shown by the respondents in column (6) of their order dated 24.06.2013 under the head Total weightage in the years in terms of the IPS (Regulation of Seniority) Rules 1988 as amended vide notification No. 14014/14/2000-AIS dated 30.08.2005 and no. 14014/4/2011-AIS-I(B) dated 18.04.2012. Thus, the original weightage to which the applicants are entitled is undisputedly 07 years. But, the real problem arose when original weightage of the applicants was restricted to 05 years which was the original weightage given to respondent no. 6 based on his continuous service of only 20 years. The rationale for this restriction, according to the respondents, is that the applicants could not be given their original weightage of 07 years as the weightage given to their senior/ respondent no. 6 was only 05 years. It resulted in suppression of the seniority of the applicants to 05 years. The respondents claim that this has been done in compliance of the proviso to Rule 3(3)(ii) of Seniority Rules 1988.
13. Let us now consider how justified is this act of suppression of the original seniority of the applicants by the respondents? In order to appreciate the controversy involved, it would be necessary to delve into the process of assignment of inter-se seniority.
14. Learned counsel for the applicants has argued that a proviso can not over-ride the main Rule. According to the main Rule, the applicants are entitled for 07 years weightage. But, due to 05 years weightage given to the respondent no. 6, who is allegedly senior to them, the original weightage of the applicants has been reduced to 05 years. This restriction of seniority in the peculiar circumstances of the case cannot be justified.
15. The core contention of the respondents is that this restriction has been done in compliance of the proviso to Rule 3(3) (ii) of Seniority Rules 1988. It has been contended that this proviso envisages that even if a junior officer is having longer service as Dy. SP to his credit than that of his senior in the IPS, he will not be given a higher batch year than that of his senior. In other words, it restricts the junior IPS officer to get higher batch year than that of his senior. What does the word seniority mean in this context and in which list and how does respondent no. 6 become senior qua the applicants ? It has been repeatedly argued by the respondents counsel that respondent no. 6 belongs to 1984 batch of the PPS and applicants to 1985. Hence, applicants cannot become senior to respondent no. 6. We are unable to accept this contention of 1984 Vs. 1985 batches of the PPS. In fact, reference of PPS batches has no relevance ipso facto in the fixation of order of seniority in the IPS . What matters ultimately is the order in the Select List. It is the order in the Select List that is followed for appointment to and fixation of seniority in IPS . How is this order of seniority fixed ? The UPSC, on the basis of the relative assessment , selects the PPS officers as suitable for promotion to IPS and places them in a particular order which may be different from the order in which their names are placed in the eligibility list (according to the PPS seniority) submitted by the State Government. It is this final order in the Select List that is the basis for all future purposes including fixation of seniority and assignment of year of allotment.
15.1. The plain reading of the proviso refers to seniority of an officer in the Select List which is prepared by the UPSC / Central Government. It is not necessarily the seniority in the eligibility list submitted by the State Government. The order of seniority in which the Select List is prepared may change from seniority position / order in the eligibility list of the State Police Service. Rule 5(4) and 5(5) of the Promotion Regulations 1955 provide for classification of officers on the basis of their relative evaluation during the exercise of preparation of Select List. It would be meaningful to quote these Rules as under: -
5(4).The Selection Committee shall classify the eligible officers as outstanding very good good or unfit as the case may be, on an overall relative assessment of their service records.
5(5). The list shall be prepared by including the required number of names, first from among the officers finally classified as outstanding then from among those similarly classified as Very Good and thereafter from amongst those similarly classified as Good and the order of names inter se within each category shall be in the order of their seniority in the State Police Service 15.2. Two aspects are clear from these provisions as under :
i)The officers are selected as suitable for inclusion in the Select List on the basis of their merit and service records. Service records are based on the performance of officers during the period of their continuous service. However, the length of continuous service does not seem to be taken into account at this stage.
ii)The officers classified as outstanding in the consideration list for a particular year are placed on top of the list and even above the officers, who are senior, even batch-wise, to them. The eligibility list for a particular select year may contain names of officers belonging to various batches. Yet, in the final Select List, an officer of a junior PPS batch may leapfrog over his seniors of many batches if he is assessed as outstanding. Thus, merit and performance over a period are not only considered for the purpose of inclusion of PPS officers in the Select List, the officers assessed with higher grading can jump the list and be placed over their seniors in PPS. This results in the change of order in the eligibility list. Such leapfrogging by juniors above their seniors in the State Police Service is, thus, provided in the Rules. There are specific instances of some officers, as borne out by the records , jumping over their seniors based on their classification which, in turn, is based on their merit and service records. Jumping the State List seniority by juniors based on such classification is provided in the scheme of things while preparing the Select List. Thus, seniority and order in the State list is subsumed in the seniority and order assigned in the Select List. Henceforth, it is this order in the Select List which is sacrosanct and followed for all purposes after induction into the IPS.
16. The most critical fact in the case in hand is that a particular officer is senior to another set of officers in the State Police Service as he belongs to an earlier batch of PPS. Rule 9 of Promotion Regulations 1955 states that the appointment of a member of State Police Service shall be made by the Central Government in the order in which the names of the members of State Police Service appear in the Select List during its validity period. As per Rule 4(2) of the Seniority Rules 1988, promotee officers shall be ranked inter-se in the order in which their names are arranged by the Commission for the purpose of appointment to the service by promotion. Further, Rule 5(5) of Promotion Regulations 1955 ibid provides that the list shall be prepared by including the required number of names...... and order of names inter-se within each category shall be in the order of their seniority in the State Police Service. Rule 5(2) of these Regulations provides that the Committee shall consider for inclusion in the said list the cases of members of the State Police Service in the order of seniority in that service. These provisions read together imply that, normally, the inter-se sequence in which the names of officers are kept in the Select List and the appointment made to the IPS from it is in the same inter-se sequence of the concerned officers as in the State Police Service. However, an exception is provided under Regulation 5(5) wherein the classification on the basis of over all relative assessment of the service records of the officers in the eligibility list under consideration is made and , as stated above, an officer lower down in this list can leapfrog over his seniors, if he has been assessed / classified with a superior rating. As will be seen in succeeding paragraphs, the inter-se sequence in the eligibility list prepared by the State Government is the same as prepared by the State Public Service Commission at the time of declaration of result of the entrance examination. There is no other factor that comes into play in preparation of this inter-se sequence in the seniority of the concerned officers in the State Police Service. It boils down to the fact that the sequence in which the UPSC and Central Government prepare the Select List is generally the same as prepared by the State Government and the State Public Service Commission in the beginning unless disrupted by classification clause. Thus, once an officer is selected with reference to a particular selection year by the State Government, he retains the same position in inter-se seniority linked to that year irrespective of his actual date of joining the service. .
17. We have perused the Select List of 2010 and found that the order in which the names have been placed in the Select List are exactly in the same order in which the proposal for preparation of the Select List was submitted vide the UP Government Letter dated 10.08.2012 to the Secretary, UPSC. Annexure 3.2 of the proposal mentions the details of the officers under consideration in their order of seniority in the State Police Service for years 2009(a), 2010 and 2011. We find that the order in which the officers have been placed in the Select List for 2010 is exactly the same as their order in inter-se seniority in the State Police Service. It is evident from the record that inter-se order of all the officers in the State Eligibility List remained unaltered in the Select List for 2010 and finally prevailed. As the respondent no. 6 was senior in the State List to the applicants, he also remained senior in the Select list to them. In this entire process, a fait accompli seems to have been created by the State Government and State Public Service Commission which went through almost intact till the stage of Select List and finally appointment to the IPS. It was not altered by UPSC/ Central Government. The element of length of continuous service was not factored in the entire process of preparation of the Select List at any stage. Thus , essentially, the order of seniority finalised in the Select List is nothing but the order of seniority in the Seniority List of State Police Service.
18. It would, now, be necessary to ascertain how the seniority in the State Police Service is fixed, that being the foundation. We enquired from the learned counsel for State of U.P and also called a responsible officer of State Public Service Commission to throw some light on this aspect. It was clarified by them that the inter-se seniority of the State Police Service Officers is assigned under Rule 5 of U.P. Government Servant (Seniority) Rules 1991. According to the relevant Rules, the inter-se seniority of the officers selected for a particular Selection Year will be the same as shown in the merit list prepared by the State Public Service Commission. The year of allotment or the batch, as it is called, is the Selection Year for which a notification is made and selection done. The allotment year in the State Police Service has no nexus with the year of examination, declaration of result or the date of joining of the selected officers. The sole criterion is the selection year for which a particular notification was made. Once an officer is selected against a particular selection year, that would be his year of allotment in the State Police Service and is not changed whether a particular officer joins the service alongwith his batch or any time later. It implies that an officer would be entitled to the year of allotment based purely on his selection year and will continue to be senior to all the subsequent batches even if he joins service later than them. This is the case of respondent no. 6.
19. It would be meaningful to see how respondent no. 6 joined the service three years later than the applicants and yet remained senior to them. It is stated by the respondents that he was selected on the basis of examination for selection year 1984. Hence, his year of allotment was 1984 which is fixed forever. The officer was sent for medical examination in the month of June 1986. The Chief Medical Officer, Lucknow vide his Letter dated 12.06.1986 conveyed that he was medically unfit as his height was 163.5 cms against eligibility of 165 cms. On the other hand, the Chief Medical Officer, Varanasi vide his Letter dated 01.07.1986 declared him fit by recording his height as 165 cms. Thus, there was a contradiction in the medical assessment of the officer by two CMOs. In view of this contradiction in the medical reports, the UP Government got him re-examined after four years by a Special Medical Board on 26.04.1990 in which his height was measured as 165 cms declaring him medically fit. Consequently, he was appointed and sent for training after approximately 04 years on 06.07.1990. Though, it has been stated that there was no fault on the part of respondent no. 6, it is noteworthy to see that it took the U.P. Government almost 04 years to resolve a variation of 1.5 cm in height. Despite the late joining by the respondent no. 6 by 04 years, his allotment year/ batch remained 1984. It is this fact which has created the present controversy.
20. Summing up, assignment of year of allotment and seniority of PPS officers on their appointment to IPS is determined on the basis of the year of Select List and their actual continuous State Police Service. Appointment of PPS officers to IPS is made by the Central Government in the order in which the names of the members of State Police Service appear in the Select List.. Though the Select List is prepared on the basis of merit and performance, the order in which the officers are placed in the Select List is according to seniority in the State Police Service.. The order of seniority in the State Police Service is according to selection year/ batches and within each batch inter se according to the entrance result declared by the State Public Service Commission. Hence, an officer belonging to a previous selection year / batch is and remains senior to subsequent batches of PPS irrespective of his date of joining the service or any other factor. The date of joining the service by an officer is not factored in assigning the year of allotment / seniority in the State Police Service. The factor of actual continuous service is also not considered during the preparation of Select List and it suddenly appears at the time of assignment of year of allotment and seniority in the IPS. No intervention or moderation is made during the preparation of the Select List in the order of seniority of State List except the classification clause. Thus, what is termed as the order of seniority in the Select List is nothing but the seniority in the State Police Service which is based on an imaginary year of selection / batch and remains unaffected by any subsequent development. In the instant case, the order in the Select List, which is sacrosanct and final, is nothing but the order in which the names of officers appeared in the seniority list of the State Government. Thus, de facto the order of seniority in the State List finally prevailed in the Select List.
21. The whole controversy arose because of the interpretation of the parameters of continuous actual service and batch seniority. At times, the interplay of two valid parameters simultaneously can lead to contradictions and incongruent situations. In the instant case, two such absolute parameters have come into conflict. One is the fundamental principle of service jurisprudence that the seniority of the employee has to be protected and no junior can supersede a senior. Another is the absolute parameter of the length of continuous service of the officers. Apparently, it has been applied mechanically. The respondents have used it to cut both ways. In the case of Respondent no. 6, it has been treated as an immutable parameter from which no deviation can be made. Simultaneously, in case of applicants, the same parameter has been sacrificed. The benefit accruing to the applicants from longer continuous service has been washed off. The same parameter deprives the applicants of the claim on the basis of which they are originally entitled for a higher weightage. It has resulted in a situation that violates the legitimate right of the applicants in terms of the original weightage and, hence, their seniority.
21.1. Such an interpretation to suppress the genuine claim of officers with longer continuous service may lead to ridiculous and untenable consequences. Supposing that an officer selected against a particular selection year actually joins the service 09 years after the next junior batch, it would result in the restriction of the weightage points of such juniors by almost three years. And so on. This would be disastrous for such junior batch/s only because some one senior to them in the State List of PPS has less continuous service than them. The handicap of such senior would then be transferred to the junior batch/s mechanically. Such a situation would be a gross miscarriage of justice.
22. The purpose of proviso to rule 3(3)(ii) of Seniority Rules 1988 is to protect the right of a senior employee and not to damage the claim of a junior. This proviso should receive purposive interpretation. The terms of the main Rule have to be properly appreciated. The Rule, as extracted in para 12 above, refers to the following: -
(i) Select List
(ii). Weightage
(iii). Year of allotment Select List prepared is merit based, placing the outstanding on a higher pedestal than Very Good, and Very Good higher than Good, as has been provided for in Rule 5(4) and 5(5) of the Promotion Regulations, 1955. Here, seniority in the feeder grade does not have much relevance.
22.1. The weightage afforded is related to the years of service rendered in a particular rank calculated in a quantified manner. This would mean that the weightage corresponds to the extent of continuous service rendered. This premium is thus experience (continuous service) based.
22.2. Stipulation of continuous service for weightage purposes obviously excludes notional service. Apparently, the respondents have understood the intention of stipulation of continuous service and accordingly, restricted the actual service of respondent no. 6 to 20 years treating the remaining period as only notional 22.3. The Rule for working out the year of allotment which virtually forms the seniority in the IPS cadre plays a considerable role and has direct and proximate impact on the future career prospects, and thus ensures a justifiable and healthy blend both of merit and experience, which should be actual. Thus, after preparing the Select List on the basis of the merit position, for working out the year of allotment, the continuous service in the feeder grade is reckoned as per the norms prescribed in the above Rule. This period of weightage is the one earned by each on completion of certain years of past services and cannot be diluted on the vagaries of other candidates. If the rule is literally and rigidly interpreted, it would result in a number of officers in the select list losing their weightage on the ground that the senior in the Select List has less years of weightage. Such a jettisoning cannot be permitted. Thus the cap on the weightage of applicants to 05 years, which is the weightage being given to respondent no. 6, is in utter disregard of legitimate claim of the applicants. The consequence of this situation is offensive to the applicants genuine claim who have been made to suffer for no fault of theirs.
23. Almost a similar issue came up for consideration by the Honble Apex Court in the case of Harjeet Singh Vs. B.R. Kapoor AIR 1980 (SC) 1275 - . The facts in that case were that two officers, B.R.Kapoor and Harjeet Singh, were directly recruited in the same batch. B.R. Kapoor was senior to Harjeet Singh but Harjeet Singh had served for a longer period than B.R. Kapoor in continuous officiation capacity. However, he was placed below B.R. Kapoor on the ground that he ranked below B.R. Kapoor in the Select List. Honble Apex Court held as under: -
18. One of the submissions made to us by the respondents was that the Select List having been prepared on ground of merit and ability, the order in which officers were ranked in the Select List should not be disturbed after they were actually promoted to the Indian Police Service. This submission is without substance. Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability , the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability. Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of officers are arranged in the order of that seniority. We are, therefore, satisfied that the benefit of continuous officiation in a senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate.
24. Undisputedly, continuous service of the applicants is 23 years. The restriction of seniority in the peculiar circumstances of the case cannot be justified. In our view , the proviso has to be given a positive interpretation. It cannot impose a negative burden or encumbrance on the applicants. If, by virtue of certain situation of fact, a senior is visited by some handicap, it cannot be transmitted to his junior/s by transferring the consequent infirmity to them. Hence, the action of the respondents qua the applicants is a gross miscarriage of justice. Issue no. (ii) is answered accordingly.
25. Coming to issue no. (iii) for invoking Residuary Rules 1960, it would be proper to quote the relevant Rule. It reads as under : -
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 an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. 25.1. Subsequently, a question arose regarding the extent of the powers vested in the Government under Rule 3 of the All India Service (Conditions of Service Residuary Matters) Rules, 1960, to deal with cases involving relaxation of rules and regulations. The Government of India , Ministry of Home Affairs vide Letter no. 30/1/63-AIS(II) dated 01.01.1966 laid down the following criteria for relaxation of rules and regulations under Residuary Rules 1960: -
(a). Undue hardship signifies unforeseen or unmerited hardship to an extent not contemplated when the rule was framed and does not cover any ordinary hardship of inconvenience which normally arises;
(b). The relaxation should enable the cases to be dealt with in a just and equitable manner and not on grounds of compassion, however, justified, and
(c). The benefit to be conferred in relaxation of any rule or rules must be of a nature already provided for in the rules; Government are not empowered by this rule to confer benefits which are not contemplated in the rules. 25.2. The critical conditions under which the Residuary Rules 1960 can be invoked, in brief, would be as under: -
(i). undue hardship signifies unforeseen or unmerited hardship;
(ii). these could not have been contemplated when the Rule was framed;
(iii). such relaxation should be in order to ensure justice and equity;
(iv). the benefit to be so conferred must be of a nature already provided for under the Rules.
Thus, the Central Government is vested with a reserve power to deal with the unforeseen and unpredictable situations to relieve civil servants from infliction of undue hardship, and to ensure equity and justice.
25.3. In the instant case, the entire exercise has had the effect of depriving a set of officers the benefit of their continuous service on the ground that some one senior to them has less continuous service. The scheme cannot work to the prejudice of the junior officers so as to nullify the actual continuous service rendered by them. Surely, the argument that the applicants are now required to surrender their genuine claim would amount to nullifying their continuous service of many years. This would not only be harmful to the applicants in the immediate sense but would also adversely affect their future career prospects.
25.4. In the present case, Select List based on merit recognizes the merit of the senior but the effect of such merit cannot recoil upon the years of weightage of others junior to him. The truncation of the weightage period from 7 to 5 years of the applicants is on the ground that Respondent no. 6 who happens to be senior to the applicants in the Select List, has at his credit weightage of only 5 years. Had the weightage of the applicants been kept at 7 years advancing the year of allotment at 2003, and had the weightage of the Respondent No. 6, kept at 5 years on the basis of the fact that his initial appointment was delayed by four years, the hardship would have been to the said Respondent, who could have pressed into service the Residual Rules 1960 for relaxation. Instead , mechanical application of the proviso has resulted in extreme prejudice to the applicants. Their continuous service of as many as 3 years has been obscured.
25.5. In the light of the provisions of Residuary Rules 1960 and Government of Indias decision, it can be appreciated that apparently undue hardship has been caused to the applicants in that their legitimate claim for seniority has been washed off by the respondents by invoking the said proviso. Their legitimate seniority could not be taken away by eclipsing their original seniority by invoking the said proviso. However, in the facts of this case, it is the respondent no. 6 who could have been considered for advantage of Residuary Rules 1960 while retaining the original weightage / seniority of the applicants. We find it difficult to agree with the contentions of the respondents that there is no provision in the Rules for taking any notional date of appointment in the rank of Dy. SP except continuous service for the purpose of reckoning the seniority / year of allotment. The respondents can invoke this provision to give the benefit of notional weightage to respondent no. 6. It is thus a case of manifest injustice and extreme hardship to the applicants which needs to be redressed in accordance with the principles of reasonableness. Issue no. (iii) is answered accordingly.
25.6. However, since we are holding that the applicants are entitled for their original weightage of 07 years without being eclipsed by the weightage of respondent no. 6, it would not be just to compel the applicants to beg for relaxation under the Residuary Rules 1960 for no fault of theirs. Hence, the occasion of application of the Residuary Rules 1960 would not arise in case of the applicants.
26. What then is the resolution of the controvesy? In our view, both the parameters (Supra) have to be read and interpreted harmoniously. Both must be balanced against each other. Neither should be allowed to eclipse the other. Gestalt of all components and parameters has to be maintained in a system. Two valid principles involved in this case can be and have to be reconciled with each other. The interpretation of rules cannot be permitted to create consequences which are not conducive to equity and justice. The balance of convenience in the instant case rests in favour of the applicants. The applicants cannot be made to surrender their legitimate claim based on the length of continuous service which is the main criteria for awarding weightage and assigning the year of allotment.
27. In view of the aforesaid analysis, we feel that a harmonious way of resolving this issue would be to retain the original weightage of 07 years to the applicants without any damage to be caused by the position of respondent no. 6. Further, the seniority of the respondent no. 6 above the applicants, can be preserved by giving him 07 years of weightage.
28. Taking into consideration the facts and circumstances of the case and the legal position, we are of the considered opinion that restriction of the weightage and consequent seniority awarded to the applicants is unjustified and unsustainable. The applicants are entitled to their legitimate claim of seven weightage points and, accordingly, the seniority of 2003 instead of 2005 in the Indian Police Service. The O.A deserves to succeed.
29. Accordingly, the O.A is allowed. Impugned order dated 07.08.2015 passed by the Respondent no. 1 insofar as it relates to the applicants herein is quashed and set aside. The respondents are directed to re-determine the seniority of the applicants and fix their year of allotment as 2003 in place of 2005 as per their original weightage of 07 points.
30. There will be no order as to costs.
(O.P.S. MALIK) (MS. JASMINE AHMED)
MEMBER-A MEMBER-J
Anand
39
O.A No. 463/16