SYED KHALID RIZVI AND ORS. ETC. v. UNION OF INDIA AND ORS. ETC. ETC.

The Judgment of the Court was delivered by B K. RAMASWAMY, J. Leave granted ..

This bunch of 22 appeals and one writ petition raise the traditional tangle of inter-se seniority between the India Police Service Direct Recruits C and U.P. State Police Service, Special Grade Deputy Superintendents of Police for short 'Promotees'. It is not necessary to detail myriad facts in all the appeals but shortly stated the facts in Civil Appeal No. 823 of 1989 are sufficient to decide the controversy by a common judgment. The appellants were direct recruits of the years 1970 and 1973 into Indian Police Service D 'and were allotted to U.P. cadre. The respondents Nos. 3 to 9, Trivedi Kumar Joshi & Others were appointed as Deputy Superintendents of Police between July 12, 1961 to July 7, 1963 in substantive capacity in State Service and were promoted between October 4, 1973 to June 2, 1975 to perform the duties of the cadre posts of Superintendents of Police, con- E tinued to occupy the said posts till they were included in the select list (Respondent No. 3 in 1977, Respondents Nos. 4 to 9 in 1978) and were latte.r appointed and ·confirmed in the Indian, Police Service w.e.f. various dates between July 29, 1978 to- December 6, 1980.

When the inter-se seniority list was prepared and published on April F 24, 1977 showing the respondents as juniors to the appellants, they repre- sented to the Govt. of India that since they had continuously officiated on the cadre posts without break from the respective dates of promotion, their entire continuous officiating period should be counted towards seniority in Indian Police Service. They requested to redetermine their seniority giving G them years of allotment from the respective dates of continuous officiation dating back to 1968, 1969 and 1970 to respondents Nos. 3, 4, 5, 6 and- 7 to 9 respectively. The State Govt. rejected their claim in 1980. Preceding thereto some of their senior promo tees filed writ petition Nos .. 4490- 4499/80 and 5128-29/80 in this court questioning the validity of Rule 3 (3)(b) and 2(g) of I.P.S. (Regulation of Seniority Rules, 1954) for short

SYED RIZVI v. U.0.1.[RAMASWAMY,J.] 191

'Seniority Rules' and Regulation 5 of l.P.S. (Appointment by Promotion) A Regulation 1955 for short the 'Promotion Regulations' claiming the same relief. A Bench of three Judges of this Court directed the Central Govt. to determine the year of allotment of each of the respondents in accordance with Rule 3(1) of the Seniority Rules and also the question as to whether they were entitled to the benefit of continuous officiation of the posts of B .Superintendent of Police under Rule 3(3)(b) of the Seniority Rules in the light of the decisions in Union of India v. G.N. Tiwari, (1985] Suppl. 3 SCR 747, Narendra Chadha & Ors., v. Union of India & Ors., (1986] 1 SCR 211 and other decisions interpreting the analogus provisions of the All India Services Act, 1951 and the relevant rules and regulations framed there- C under. After giving suffi<:;ient opportunity to the promotees and the direct recruits and considering the material, the Central Govt. by Order dated July 1, 1986 fixed the seniority and had given them 1968, 1970 and 1972 as years of allotment respectively the details thereof do not bear relevance for disposal of the appeals. Challenging the correctness thereof Bhupinder D Singh and Others filed 0.A. No. 583/86 in the Central Administrative Tribunal at Allahabad. When it came up before a bench of two members, the judicial member held that by operation of Explanation 1 to Rule 3(3)(b) of the Seniority Rules, the promotees are entitled to get seniority from the date of inclusion of their names in the select list. The officiation period has to be counted only from that date. The year of allotment under Rule 3(1) E read with Rule 3(3)(b) of the Seniority Rules should be drawn accordingly bringing on notional list for 1971, 1975 and 1976. The administrative member held that by (")nduct, the .Central Govt. must be deemed to have relaxed the requirement of Explanation 1 to Rule 3(3)(b) of the Se11iority Rules as the State Govt. did not prepare the select list for the years 1971, F 1975 and 1976 and by non action the rule regulating seniority had been broken down and accordingly directed to prepare the seniority list, count- ing their continuous officiation from the date of their initial promotions. On reference, the Vice-Chairman agreed with the administrative member and accordingly directed the Govt. of India to prepare the seniority list G afresh. This is the subject matter in C.A. No. 1382/87 and Union of India filed C.A.No. 1383/87. The Central Govt., however, considered afresh and fixed seniority again on April 24, 1987 showing them as juniors to the appellants, which was impugned in O.A. Nq. 676/87 and was allowed. Civil Appeal No. 823/89 arises against it. ·union of India filed C.A.No. 1801/89. H

p. 192 Copy page pinpoint

A Following that order in the main judgment dated December 12, 1988 in 0.A. No. 583 of 1986, the C.A.T. at Allahabad practically reiterated the same view and directe\d the Central Govt. in aU. other cases to prepare the seniority list afresh whether they officiated either in the cadre posts or ex-cadre posts. Thus all the appeals are before us by special leave. B The admitted facts are that the promotees held their substanti_ve posts as Deputy Supf1rintendents of Police of the U.P. Police Ser.foe. They were not included in the select list. Though the State Govt. initially ap- pointed them as Superinter.dents ' Jf Police, obviously for a period of 3 months, they continued to officiate in cadre posts uninterruptedly. Though c the direct recruits contended that the posting of the promotees to the cadre posts was the result' of the manipulation at the behest of the State level officers, assuming, without deciding for the purpose of this case, that the promotees were posted to discharge the duties of the cadre posts when the direct recruits went, on deputation in excess of the quota and .that there D existed dearth of the direct recruits or the suitable officers from the select list to hold 'the cadre posts. Their promotion to officiate in the cadre posts was by local or ad-hoc arrangement. The record does not bear out that the State Govt. had sent any reports to the Central Govt. from time to time with reasons therefor, nor obtained prior concurrence from Central Govt. E to promote the non-select list officers to officiate on the cadre posts. Admittedly the Un.on Public Service Commission was· not consulted when the promolees continued to officiate in the cadre posts for one year and more. There is. no I:express order passed by the Central Govt. under Rule 3 of the Residuary Rules relaxing rule 3(3)(b) of Seniority Rules and F Regulation 5 of Promotion Regulations.

These facts ,and diverse contentions of the counsel on either side would give rise to the following questions : (i) whether the promotees have been appointed to' I.P.S. according to Rules? (ii) whether their continuous G officiation in cadre posts would enure to their seniority entitling to the year of allotment from !the dates of their initial promotions; (iii) whether their inclusion in the select list ·and the computation of seniority from that date are conditions of ~ervice; and (iv) whether the facts would justify to draw the presumption of deemed relaxation of relevant rules by rule 3 of the H Residuary Rules?

SYED RIZVI v. U.0.1. [RAMASWAMY,J.) 193 A The recruitment rules provide the method of recruitment to the Indian Police Service. Rule 2(aa) defines 'direct recruitment' means a person appointed to the service after recruitment under clause (a) of sub-rule (1) of rule 4; rule 2(d) defines 'service' means the Indian Police Service; rule 2(g) defines 'State Police Service' means - in all other cases, the principal police service of a State, a member of which normally holds B charge of a sub-division of a district for purpo~es of police administration etc..... Similar definitions were given in all the rules and it is not necessary to repeat them once over. Rule 3 provides constitution of the I.P. Service; Rule 3(1)(a) an9 3(1)(b) are not necessary, hence omitted; Rule 3(1)(c) provides that persons recruited to the Service in accordance with the c provisions of these rules are members of the service. Rule 4(1) postulates that recruitment to the service, after the commencement of these rules, shall be by the following methods, namely, (a) by competitive examination; the details are not relevant and (b) by promotion of substantive members of a State Police Service. Sub- rules 2, 3 and 4 are not relevant, hence omitted. Rule 5 prescribes the disqualification for appointment which is not material for the purpose of this case, hence omitted. Rule 6(1) posits that 'all appointments to the service', after the commencement of these rules 'shall be made by the Central Govt.' and 'no such appointment should be made except after recruitment by one of the methods specified in Rule 4'. Rest of the sub-rules are not necessary hence omitted. Rule 7 provides recruitment by competitive examination, the material details thereof are not germane. Rule 9 which is material for the purpose of this case provides thus:- Recruitment by promotion : 9(1) 'The Central Govt. may', on the l i recommendation of the State Govt. concerned and 'in consultation with the - U.P.S.C.', 'recruit to the Service' persons by promotion from a~ongst the (substantive)members of a State Police Service in accordance with such regulations as the Central Govt. may, after consultation with the State Govt. and the Union Public Service Service Commission, from time to time,' made. Sub-rule (2) provides the number of persons recruited under sub- rule (1) in any State or group of State shall not at any time, exceed 33-1/3 per cent of the number of those posts as are shown against items 1 and 2 G of the cadre in relation to that state or to the group of states in the :;chedule to the I.P.S. (Fixation of Cadre Strength) Regulation, 1955. Sub-rule (3) etc. are not necessary hence omitted. Sub-rule (5) provides that not- withstanding anything contained in sub-rule (2), the Central Govt. may promote substantive members of a State Police Service in excess of the normal promotion quota in accordance with such regulations as the Central H

p. 194 Copy page pinpoint

A Govt. may, after consultation with the State Govt. and the Commission, fr;~mtime to time, made.

A reading of these provisions 'do indicate that to become a member of the Indian Police Service, by promotion, one must belong to the State Police Service and must hold substantive post in that Service. The appoint- B ment t9 the service should be made by the Central Govt. No such app9int- ment slwuld be made except after 'recruitment' by one of the methods -spe_cified in Rule 4 i.e. direct recruitment and by promotion. The recruit- _ment by promotion under Rule 9(1) should be made by the Central Govt. on the recommendation of the State Govt. concerned and the consultation c of the U.P.S.C. is mandatory; A person thus recruited by promotion or direct recruitment alone should become a member of the Indian Police Service .. The ratio of recruitment of 33-1/3 per cent between the appellants and the respondents has been limited to initial recruitment only.

D Regulation 3 of the Promotion Regulations enjoins the State Govt. to constitute the. Committee to select the promotees, consisting of the Chairman of the U.P.S.C or its Member; the Chief Secretary. Secretary Home Department; Director General of Police, in his absence Inspector General of Police; a member of the Service not below the rank of Deputy Inspector General of Police; and a nominee of the Govt. of India not below E the rank of Joint Secretary, who shall prepare, under Rule 5, a list of suitable officers. Under Rule 5(1) each committee may 'ordinarily meet at intervals not exceeding one year' and prepare a list of such member~ of the State Police Service, as are found 'to be suitable for promotion to the Service'. The number of members of the State Police S~rvice to be included r F in the list shall be calculated as the number of substantive vacancies anticipated in the course of the period of 12 months, commencing from the date of preparation of the list, "in the posts available for them under Rule 9 of the Recmitmcnt Ritlcs" plus twerity per cent of such number "or two whichever is greater" (emphasis supplied). Under sub-rule (2) of Rule 5 G 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 of such number which is equal to "three times the number" referred to in sub regulation (1). The provisos are not relevant, hence omitted. The member of the State Police Service eligible for inclusion must possess the following qualifications i.e. (i) he is a substantive member in the State H Police Service, (ii) he has completed not less than 8 years of continuous

SYED RIZVI v. U.0.1. [RAMASWAMY,J.] 195

ser\rice whether officiating or substantive in the post of Deputy Superinten- A dent of Police or in any other post or posts declared equivalent thereto by the State Govt., and (iii) he has not attained the age of 52 years (on the first day, earlier January and now as amended April of the year in which the Committee meets. It has been amended to 54 years as per the latest amendment dated April 5, 1979). If the committee does not meet in ·the B interregnum the age barred _officer also may be considered in the committee's next meeting. Sub-rule (3) issues a mandate that the commit- tee shall not consider the member who has attained the age of 52 (54) years as on date. The mechanism for selection and the number of officers to be included are not material for the purpose of the case. Hence it ~as not been adverted to. The committee shall classify the eligible officers as c 'Outstanding', 'Very Good', 'Good' or 'Unfit', as the case may be, "on an overall relative assessment of their service record", vide regulation 5(4). The list shall be prepared by including the required number of names in the order specified in sub-regulation 5(4) in the order of merit inter-se within each category, i.e. "outstanding etc. shall be in the order of their D seniority in the State Police Service. Under regulation 5'6) the list so prepared "shall be reviewed and revised every year". Regulation 6 mandates the State Govt. to forward the select list to the U.P.S.C. for approval, along with the records and remarks of the members, a copy thereof "shall also be forwarded to the Central Govt." who "shall send their observations" on the recommendation of the Committee to the U.P.S.C. Under Regulation E 7 "after considering the service records" and observations of the Central Govt, State and the Committee, if the U.P.S.C. considers necessary, it has been empowered to change the order in the list and shall inform the State Govt. of the proposed changes. Thus the U.P.S.C. "may approve the list finally with such modification, if any, as may in the opinion of the U.P.S.C F be just and proper". Under regulation 3 thereof the "list finally approved by the commission shall f om1 the select list of the promotee officers". Regulation 9 provides the appointment of the promotees to the Indian Police Service thus - 9(1) Appointment of members of the State Police Service to the Service (I.P.S.) "shall be made by the Central Govt. on the recommendation of the State Govt. in the order in which the names of members of the State G Police Service appear in the Select List" (emphasis supplied) for the time being in force. The provisos thereto ~re not necessary and hence omitted. In Union of India v. Mohan Lal Capoor & Ors., [1973) 2 SCC 836 the Select List Officers I.P.S. and I.AS. continued in the select list from the year 1961-62 and also continued to officiate on the cadre posts from·iln anterior H

p. 196 Copy page pinpoint

A period. They were dropped from the select list of the year 1968 and were reverted to their substantive posts which was questioned in the High Court and was allowed. On appeal, this Court held that under Regulation 5(3) of the Promotion Regulations the Selection Committee has an unrestricted choice of selection of the best available talent from amongst the eligible candidates determined by reference to merit and suitability. Seniority B would be considered only where merit and ability ar~ nearly equal. The process. of selection may· involve supersession, which may mean superses- sion by a junior or even exclusion from the selection. There is "no vested right to promotion or to remain in the seniority list". The word 'promotion' in Rule 9 of the Recruitment Rules would not indicate that promotion c should be on the basis of seniority subject to fitness. Inclusion of a person named in the select list in a year does not give that person a vested right to have his name in the select list in the succeeding years. The select list shall be prepared every year and be reviewed and the revision effected so as to include the most talented, meritorious and suitable officers though junior to the persons already in the select list.

' It would, thus, be clear that the selection committee shall 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, ability and suitability are approximately equal and it should prepare the select list of such suitable officers in the order of merit in each category such as "outstanding", etc. and send the select list in order of seniority to the State Govt. who with its comments would forward the same to the U.P.S.C. for approval. The U.P.S.C. again would review the list, if necessary, with prior riotice to the State Govt. and revise the order of names (seniority) in the list which should be final and operative for a period of 12 months. The list should consist of such number plus 20% or two. officers whichever is more and of three times the anticipated substan- tive vacande·s. in the cad~~ posts. The appointment to the cadre posts should be n1ade by the Central Govt. in the order in the list on the recommendatibn of the State Govt~ The word "may" in regulation 5 indi- G cates that the Committee ordinarily meets at intervals not exceeding one year. Though the word "may" indicates that it is not mandatory to meet at regufar intervals, since preparation of the select list is the foundation for promotion and its omission impinges the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS / H officers, the preparation of the select list must be construed to be man- .. '

SYED RIZVI v. U.O.l. [RAMASWAMY,J.) 197

datory. The committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand. No officer whose name has been entered in the list has a vested right to remain in the list till date of appointment. The list would be liable to shuffle ~nd the name may l:>e excluded from the list on the comparative assessment of merit, ability and suitability based on the anticipated or expected availabil.ity of the vacancies within quota etc. The junior may supersede the senior and may be ranked top.

Every person recruited to the service either by direct recruitment or by promotion under Promotion Regulation shall be appointed on probation under Rule 3(1) of the I.P.S. (Probation) Rules 1954 for short 'Probation C Rules' for a period of two years unless the Central Govt. grants exemption, Under sub-rule 2 thereof, the probation may be extended for a period of one year and in no case would it exceed three years. During the period of probation, he/she must undergo the prescribed course of training and pass the tests. At the end of the probation period, on its satisfactory completion, the Central Govt. should confirm the probationer into the service.

Rule 8 of Promotion Regulations provides that temporary appoint- ments from the select list to the posts borne on the State Cadre or the Joint Cadre of a group of States, as the case may be, shall be made by the State Govt. in accordance with rule 9 of the Cadre Rules. In making such appointments, the State Govt. shall follow the order in which the names of such officers appeared in the Select List. Rule 8(2) declares that, not- withstanding anything contained in sub-regulation (1), where administrative exigencies so require, a member of the State Police Service whose name was not included in the Select List, or who was not next in the order ih that Select List, may subject to the Cadre Rules, be appointed to the cadre post, if the State Govt. is satisfied that (i) the vacancy is not likely to last for more than three months; or (ii) that no suitable cadre officer is available for filling the vacancy : provided that where any such appointment is made in a State, the State Govt. shall forthwith report to the Central Govt. together with the reasons for making the appointment. Provided further that where administrative exigencies so require, such appointments may be continued in a cadre post beyond a period of three months with 'prior concurrence of the Central Govt'. Provided further that where administra- tive exigencies so require, a member of the State Police Service who is not next in the order in that Select List may, subject to rule 9 of the cadre H

p. 198 Copy page pinpoint

A Rules, be appointed tO a Cadre post if the State Govt. is satisfied - (i) that the vacancy is not likely to last for more than three months; or (ii) that no suitable Cadre officer is available to fill the vacancy.

Regulation 8 thus empowers the State Govt., on ad hoc ba;>is or local arrangement, to appoint temporarily, due to administrative exigencies, B either the persons in the select list in the order of merit or dehors the list even non-s~lect list officer to fill in the short term vacapcy which does not likely to last for more than three months. This would be subject to the pre-conditions that no suitable cadre officer was available to occupy the cadre post and followed by a report with reasons thereof sent forthwith to c the Central Govt. In other words, the State Govt. should post cadre officers to cadre posts and only in case of non-availability of cadre officers the select list officers be posted in the order in the select list. This is the rule. Where neither category officers are available, resort can be had to appoint non-select list officers to man the cadre posts. Regulation 8 does not empower the State Govt. either to tamper with Regulation 9 or to cut down its operation to favour undue weightage either to the select list or non- select list promotee officers. The fine distinction, made out by the counsel for promotees of senior post or cadre post is superfluous. Take for instance even where a cadre officer or select list officer was available for posting, yet if the vacancy does not last more than three months, instead of disturbing the cadre or select list officer, a nearby non-select list officer may be posted to ·officiate in the cadre post, even may be in excess of the quota prescribed in the promotion Regulation and recruitment Rules, as the existence of a post within quota is not relevant. Such appointment is, therefore, on ad-hoc basis or by local arrangement. In its guise the State F _Govt. has no power to make any substantive appoi~tment of the promotees to the cadre posts. The appointment under Regulation 9 and Regulation 8 are, therefore, distinct and different. Under Regulation 9 read with Rule 9 of recruitment rules the Central Govt. is empowered to appoint promotee officer to the substantive vacancies strictly in conformity with the select list. The appointment has reference to the quota and existence of substantive G vacancy within the quota are necessary conditions, though some times quota may be exceeded but it is liable to adjustment. The observance of quota rule is only for initial appointment. An officer so appointed starts ., ... officiating in the cadre post and gets his/her seniority from the date of I'I inclusion in the select list or appointment whichever is later. Whereas the { H appointment under Regulation 8 is only fortuitous due to administrative ,. - f

p. 199 Copy page pinpoint

exigencies and such an appointee cannot claim any seniority from the date A of initial appointment. The existence of the select list as on that date under Rule 8 has relevance as a source to fall back upon to fill in the vacancies . and non-availability of cadre officer/select list officer for being posted. The date of appointment under rule 8 bears no relevance to the non~select list officers for seniority. B Rule 3 of cadre· rules adumberates constitution of the cadre and under rule 3(2) the cadre so constituted shall be 'State cadre' -0r joint cadre, as the case may be. Rule 4 prescribes the strength of the cadre, the details whereof are not material. Rule 5 empowers the Central. Govt., in consultation with the State Govt. concerned, to allocate the cadre officers. C Rule 7 provides the method of posting the officers to fill in the cadre posts. All appointments to cadre posts shall be made (a) in the case of a State Cadre, by the State Govt.; and (b) in the case of a Joint Cadre, by the State Govt. concerned. Rule 8 provides that, save as otherwise provided in these rules, "every cadre post shall be filled by a cadre officer". Marginal note of D Rule 9 open up its vistas to 'temporary appointment of non-cadre officer to cadre post' and thereby forebode the field of operation of Regulation 8 of promotion regulations. Regulation 9 is material for the purpose of this case which reads thus : A cadre post in a State may be filled by a person who is not a cadre officer, if the State Govt. or any of its Heads of Department to whom the State Govt. may delegate its powers of making E appointment to cadre posts, is satisfied - (a) that the vacancy is not likely to last for more than three months; and (b) that no suitable cadre officer is available for filling the vacancy, provided that where cadre post is filled by a non-select list officer, or a select list officer who is not next in order in the select list, the State Govt. shall forthwith report the fact to the F Central Govt. together with the reasons therefor. (2) Where in any state a person other than a cadre officer is appointed to a cadre post for a period exceeding three months, the State Govt. shall forthwith report the fact to the Central Govt. together with the reasons for making the appointment. Provided that a non-select list officer or a select list officer who is not next in order in the select list, shall be. appointed to a.cadr~ post only with the G prior concurrence of the Central Govt. (3) On receipt of the report under sub-rule (2) or "otherwise", the Central Govt. may direct that the State Govt. shall terminate the appointment of such person and appoint thereto a cadre officer, and where any direction was so issued, the State Govt. shall accordingly give effect thereto. Under sub-rule (4) where a cadre post is H ..... 1

p. 200 Copy page pinpoint