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

A likely to be filled by a person who is not a cadre officer for a period exceeding six months, the Central Govt. shall report the full facts to the U.P.S.C. ~th the reasons for holding that no suitable cadre officer is available for filling the post and may in the light of the advice given by the U.P.S.C. give suitable direction to the State Govt. concerned.

B Cadre Rules, thus, _enjoins the State Govt. that only a cadre officer should· be appointed .to a cadre post, Where the cadre officer is not available then, temporary appointments, by operation of Regulation 8 of the Promotion Regulation read with rule 9 of cadre rules, could be resorted to and appointments are made by the State Govt. or its delegates to cope c up with the administrative exigencies, of the select list officers in the order or even· among the sele<;t list officers dehors the order. When both cadre officers or select list officers are not available, then only non~select list officers could be temporarily appointed. However, it is mandatory that the State Govt. should report forthwith to the Central Govt. together with the reasons to make such appointments. The condition precedent is that the post shall not last for more than three months; if it exceeds three months theri the 'prior concurrence' of the Central Govt. 'is mandatory'. If it lasts more than six months it should be with the consultation of the U.P.S.C., and the Central Govt. should post the UPSC with those facts and should implement the advice so tendered by the UPSC. The State Govt. should act according to ·the directions of the Central Govt. The compliance of these steps are mandatory to make temporary appointment legitimate and transitory arrangement a legal one. For violation thereof, the Central Govt. is entitled to give directions to the State Govt. to terminate the service of such temporary· officer and the State Govt. should abide by such direction and give effect to it. The leeway and liberty given to the State Govt. under

'""t-. Regulation 8 of Promotion Regulations read with Rule 9 of cadre rules is only to cope up with administrative exigencies but it became a breeding ( I ground to distort the operation of the Rules which should scrupulously be I eschewed and avoided. Any appointment made otherwise than in accord- ~.J ance with Regulation 9 of Promotion Regulations read with rule 9 of recruitment Rules is thus not a valid regular appointment in the eye of law. Such temporary appointments would be transient and would be apparent when we glean through Seniority Rules as well.

Rule 3(1) of Seniority Rules adumberates that every officer shall be assigned the year of allotment in accordance with Seniority Rules. Rule ) .~ • ~

SYED RIZVI~;. U.O.I.[RAMASWAMY,J.] 201

3(3), which is relevant fo this case, declares ·that the year of allotment of an officer appointed to the Service afte~ the seniority rules came into force, shall be as follows:- (i) the year of allotment of a direct recruit officer shall be the year following the year in which competitive examination was held; (proviso omitted) (ii) officer appointed to the Indian Police Service by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recr:uited to the Service in accordance with rule 7 of these Rules (direct recruit) who officiated continuously in a senior post from a date earlier than the date of the commencement of such officiation by the former. Provided that the year of allotment of an officer appointed to the Service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior c post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiat- ing shall be determined ad-hoc by the Central Govt. in consultation with the State Govt. concerned. (Now these rules were amended in 1987 and 1988). Explanation 1 posits that in respect of an officer appointed to the D Service by promotion in accordance with sub-rule (1) of rule 9 of the Recruitment Rules, the period of his continuous officiation in a 'senior post shall, for the purpose of determination of his seniority count only from the date of the inclusion of his name in the Select List or from the date of his officiating appointment to such senior post whichever is latter (proviso is omitted). The second explanation says that an officer shall be deemed tc) E have officiated continuously in a senior post from a certain date "if during the period from that date to the date of his confirmation in the senior grade he continues to hold, without any break or reversion, a senior post, other- wise than as a purely temporary or local arrangement". In other words, the officiatin~ period of ad hoc promotion would not count towards seniority. F The rest of the provisos are not relevant for the purpose of this case. Hence omitted. Rule 4 determines the inter-se seniority of officers of Indian Police Service. The seniority of officers inter-se should be determined in accord- ance with the provisions contained in these rules ad-hoc by the Central Govt. G It could, thus, be seen that an officer appointed to the Indian Police Service by promotion from State Services to the Central Services in accord· ance with Rule 9 of the Recruitment Rules read with Promotion Regulation No. 9, his year of allotment is that of the junior most among the direct recruit officers who officiated continuously in a senior post from a date H

202 SUPREMECOURTREPORTS [1992] SUPP-3S.C.R.

A earlier than the date of the commencement of such officiation by the former. The continuous officiation of the promotee officers appointed under Rule 9 of the recruitment rules earlier than the date on which the direct recruit officers started officiation, should be determined ad hoc by the Central Govt. By operation of Explanation I the periQd of continuous officiation of the promotee officer in the senior post for the purpose of B determining his seniority should count only from the date of his inclusion. in the Select List or from the date of his continuous officiation in such senior post whichever is latter. As a consequence, though the promotee officer continues to officiate earlier to his being brought into the select list, he gets his seniority on his appointment to the senior post from the date C . on which he was brought into select list, only from the date of appointment, or continuous officiation without break whichever is latter. The entire preceding officiating period earlier than his being brought on the select list should be treated to be fortuitous. By operation of Exp. 2 he counts his continuous officiation in the senior post towards his seniority from the date of his appointment provided he holds the senior post without any break or reversion otherwise than as a purely temporary or local arrangement.

In D.R. Nim, l.P.S. v. U11ion of /11dia, [1967] 2 SCR 325, the appellant was officiating as Superintendent of Police from June, 1947, namely, from the date earlier than the date of any officer recruited by competitive examination. After the Seniority Rules came into force, he was appointed to the Indian Police Service by promotion in 1955. His name was included in the Select List in 1956. The Central Govt. passed an order that the officer promoted earlier to the rules came into force should be allowed the benefit of their continuo1:1.s officiation only with effect from May, 1951. It F was challenged in a writ petition and requested to fix his seniority from June, 1947 counting seniority upto May, 1951, contending that the fixation of .the date i.e. May, 1951 was artificial and arbitrary and had no nexus. While considering that contention the Constitution Bench held that the Central Govt. must consider the question of approval of the officiation G period and come to an ad hoc decision after considering all the relevant circumstances in consultation with the Union Public Service Commission and the State' Govt. concerned and fix the year of allotment. Fixing an artificial date without any .reference to the relevant facts was held arbitrary. When the appellant started officiating continuously in a senior post from H a date earlier than the date of any direct recruit officer, his allotment has

SYED RIZVI v. U.0.1. [RAMASWAMY,J.) 203

to be determined ad hoc by the Central Govt. The first proviso applied to A those facts and not the second proviso to rule 3(3)(b) of the Seniority Rules. His seniority was fixed from 1947. In State of Orissa & Anr. v. B.K Mohapatra, [1970] 1 SCR 255, the responde\tt was appointed as a Deputy Superintendent of Police in the appellant's state in 1947. He was confirmed in 1950 and had continuously officiated in a senior post from 1951to1957. B His name was included in the select list considering him to be suitable as "fit for trial list" which was approved by the U.P.S.C. on September 6, 1951 for the year 1952 and 1954. On November 10, 1955, the Selection Commit- tee selected and recommended him for officiating appointment as Super- intendent of Police. The list was approved on February 10, 1956. On C December 1, 1956 the Central Gm1. consulted the U.P.S.C. as to whether this list of November 10, 1955 could be treated as the select list under second proviso to Rule 3(3)(b) of Seniority Rules which was negatived by the U.P.S.C. Again on February 15, 1957 the Selection Committee prepared select list for substantive posts in the I.P.S. and included the respondent's name therein. The Central Govt. decided that the continuous officiation in the senior post on the basis of 'fit for trial' list could not be counted for the purpose of determining his seniority. On July 10, 1957 the respondent was appointed to the I.P.S. and on July 22, 1958, the Central Govt. wrote to the State Govt. that the continuous officiation of the respondent was not approved prior to February 10, 1956, namely, the date on which he was included in 'fit for trial' list and on that basis the year of allotment of 1951 was not given to the respondent under rule 3(3)(b) of seniority rules. The respondent filed the writ petition in the High Court contending that since he was included in the select list of the year 1952-54 as approved by the U.P.S.C., the year of allotment should be 1948 which was the year of allotment of a junior most direct recruit and the choicB of February 10, 1956 was discriminatory between him and the other officers: This was found favour with the High Court which allowed the writ petition. On appeal, this court by a bench of three Judges aliowed the appeal and held that the object of the second proviso to rule 3(3)(b) was to cut down the period of officiation which could oe taken into consideration under rule 3(3)(b). The lists of 1951, 1952 and 1954 were not select lists for tlte purpose of substantive appointment but only for the purpose of officiation. Therefore, 'fit for trial' list could not be deemed to be select list. The officiation was not contir1<.1ous officiation of the officers in the select list. Only from H

204 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A February 15, 1957, the date on which he was brought on the select list could be deemed to be in the select list. The Central Govt. and U.P.S.C. must approve the officiating period. While considering the effect of Explanation 1 this court held that 'Explanation 1 really explain the expression "officiat- ing continuously" occurring in rule 3(3)(b) but it does not mean that where B Explanation 1 applies the second proviso does not apply. The object of Explanation 1 is to deal with the problem arising in the case of officer holding appointment as a purely temporary or local a"angement. (emphasis sup- plied) "If the second proviso applies as we hold, it was for the Central Govt. to approve or not to approve the period of officiation prior to the date of C inclusion of the petitioner in the select list". Accordingly it was held that the respondent was entitled to his continuous officiation only from the date when he was put in the select list, though he had continuous officiation in the senior post for a long period.

In Anil f<cumar Choudhary v. State of Assam & Ors., [1975] 3 SCR D _878, the petitioner while holding substantive post pi Assam Civil Serviee, Class I, he was included in the select list in the year 1961 and was functioning in the senior post from the year 1960 till he was included in the select list with a gap of one week in 1966. He. claimed seniority from 1960 to 1967. Those posts were not declared equivalent to the cadre posts. -E Even some of the posts held by the petitioner were superior to the cadre posts. When he was denied continuous officiation, he filed in this court a writ petition under Art. 32. A Bench of two judges held that, though the petitioner held responsible positions vis-a-vis cadre posts, "the formal requirements of rule 3(3)(b) are basic to his claim for pre-dating his entry F into the !AS." It is a condition precedent that the officiation must be in a post declared as cadre post by the State Govt. with the approval of the Central Govt. The deemed relaxation was negatived holding that the 'Governments speak and act f onnally and in solemn writing and not infom1al/y'. The approval of the Central Govt. was also held mandatory. It was further held at p.884 that "Another impediment confronting the unfor- G tunate petitioner is that the proviso to Rule 3(3)(b) requires not merely the State Government's decision regarding the posts being equal to cadre post but such officiation must be with the approval of the Central Govt.; none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Govt.". Accordingly the writ petition was dismissed. H In R.P. Klianna & Ors., v. SA.F. Abbas & Ors. etc., [1972] 3 SCR 548, the

SYED RIZVI v. U.0.1. [RAMASWAMY,J.] 205

appellants were direct recruits and the respondents were promotees. The A direct recruits were appointed to the IAS in the year 1949-50. The promotees were initially promoted to the IAS in the year 1955-56. In fixing their inter se seniority in terms of seniority rules, the Govt. of India allotte.d 1948 to the promotees as the year of allotment and placed them below the junior most among the direct recruits of the year 1948. On the repre- sentation of the direct recrµits that the State Govt. had no power to create B cadre post retrospectively 'and the year of allotment to the promotee was wrong, in September 20, 1967, the Central Govt. tentatively revised the year of allotment and allotted 1950 to some and 1952 to others as year of allotment. That was challenged in the High Court by the promotees and succeeded. On appeal, a 3 Judge Bench of this court held that as per rule c 3(3)(b) of IAS. Regulation of Seniority Rules, 1954, the year of allotment of an officer who was appointed to the service by promotion shall be the year of allotment of the junior most among the officer who entered the service by direct recruitment and who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation D by the promotee. The second proviso to the rule laid down that thl( promotee shall be deemed to have officiated continuously in the senior post prior to the date of inclusion of his name in the select list.

The select list for the promotion of the respondents was finally approved by the U.P.S.C. on December 26, 1955. Rule 3(3)(b) of the E Seniority Rules; 1954 speakes of approval by the Central Govt. in consult- ation with the U.P.S.C. of the period of the offication ·prior to the date of the inclusion of the names of the promotees in the select list. This approval as contemplated in rule 3(3)(b) is a specific approval and is directed to the particular matter mentioned therein as to whether there is approval of the F period of officiation prior to the inclusion of the names in the select list. The Central Govt. did not give Gil}' approval in cons11ltatio11 with the U.P.S.C under rnle 3(3)(b). (emphasis supplied). Therefore, the benefit of the period of officiation prior to the date of the inclusion of their names in the select list was not available. This court further held that "the harinonious construction of the definition of senior post occurring in the 1954 Cadre G

- Rules along with rule 3(3)(b) of the Regulation of Seniority Rules is that promotee will by a legal fiction, obtain advantage of the period of officia- tion first by the declaration and second by the approval of the Central Govt. in consultation with the U.P.S.C. It is not the declaration but the H

206 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A approval which introduced the legal fiction". Construing the Explanation 1, this court held that 'the explanation states that In respect of a promotee the period of continuous officiation in a senior post shall, for the purpose of determination of his seniority, is only from the date of the inclusion of his name in the select list, or froll_l.the date of his officiating appoihtment to such senior post whichc~er is latter." In Amrik Singh & Ors., v. Union of India & Ors., [1980] 3 SCR 485. Sri Ahluwalia, 4th respondent therein became a Deputy Superintendent of Police by the end of 1956. In 1962 the Central Govt. constituted a commoh police service for the Union Territory of Delhi and Himachal Pradesh and in 1964 he was absorbed into that service on a regular basis. In the absence of any direct recruit Sri Ahlu).Valia was promoted as Superintendent of Pofice. In 1_965 the select ii-st was prepared and he was appointed in October 1965 as Superintendent of ·Police and he continued to officia~e.i·:rm January, 1971 and,he was appointed substantively on January· 30, 1971 as Superintendent of Police and was confirmed. He was gi~en 1965 as the year of allotment on the ground that one Mr. Sahney another promotee officer who. was senior to him· in the select list was posted to an ex-cadre post, Mr. Ahluwalia contended that he is entitled to 1961 as the year of al!otment. The High Court accepted the contention and allowed the writ petition. \Yhile dismissing the appeal this cour~ held that the effect of Rule 9 of the Indian Police Service (Cadre) E Rules, 1954 is that, when the cadre post was vacant and no cadre officer was availab~e, a non-cadre officer may fill the vacancy for a period beyond three months if the State Govt. reports to the Central Govt. the re~sons therefor and if it was not ordered to be terminated, the Central Go\1 may permit a non-cadre officer to fill a cadre post for a ·period exceeding six F . months provided that it reports the full facts to the U.P.S.C. ancf ~cts responsibly in the light of the. ad:Vice of the Commission. If no such report by the State Govt. to the Central Govt. was sent and no consultation by the Central Govt. with the Commission was done, by-passing the Public Service Commission be ~peaks prima facie impropriety. In that case there was an G express order passed under rule 3 of the Residuary Rules giving the benefit of 1961 year of allotment to Ahluwalia with the consultation of the U.P;S.C. It was an individual case between two promotees. The ratio reiterates. the mandatory duty to comply with the Seniority Rules.

H In U11io11 of India, etc. v. (J.N. Tiwari, K.L. Jain & Ors., [1985] Suppl.

SYED RIZVI v. U.O.I. [RAMASWAMY,J.] 207

3 SCR 744, relied on by the Tribunals and by the respondents, the A respondent was temporarily appointed to the cai1re post (post of Collector) and had continuously officiated from November 10, 1975 till the Central Govt. accorded its approval on October 1, 1976. The promotion was according to the rules and within the quota and no one either direct recruit or promotee officer had been effected. He was appointed to the Indian B Administratiye Service on Dec. 7, 1976 and was informed that his year of. allotment was 1972. He challenged it and contended that his year of allotment should be 1971 and claimed to fix his seniority accordingly. The High Court allowed the writ petition. This court while allowing the appeal held that where a cadre post was likely to be filled by a person who was not a cadre officer for a period exceeding six months, the Central Govt. C was req11ired to report the full facts to the U.P.S.C. with the reasons for · holding that no suitable officer was available to man the post and may, and in the light of the advice given by the U .P.S.C., give suitable directions to the State Govt concerned in that behalf. At p. 755 this Court held that "where a person other than a cadre officer was appointed to tht; Service D by promotion in accordance with sub-r.(1) of rule 8 of the Recruitment Rules, the year of allotment of the junior-most amongst the officers recruited to the Service in accordance with rule 7 of the Rules who officiated continuously in a senior post from a date earlier than the commencement of such officiation by the promotee, is the determinative factor in the allocation of the year of allotment under rule 3(3)(b) of the Seniority Rules." At p.756 this Court further held that Explanation 1 to rule 3(3)(b) interdicts that in respect of an officer appointed to the Service by promotion in accordance witl- sub-r.(1) of rule 8 of the Recruitment Rules, the period of his continuous officiating in a senior post shall, for purposes of determination of his seniority, count only from the date of his inclusion in the select list or from the date of his officiating appointment to such senior post, whichever is later. The second explanation provided that an officer shall be deemed to have officiated .continuously in a senior post from a certain date if during the period from the date of his appointment till the date of his confirmation in the senior post -he continued to hold without any break or reversion from the seniorpost otherwise than as a purely temporary or local arrangement. In that case since no one was effected by the continuous officiation by the non-cadre officer, this court drew fiction of the deemed approval by the Central Govt. For from helping J I the promotees the ratio does assist the appellants. H

208 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.

A Thus it is settled law that a promotee Officer appointed temporarily under Regulation 8 of Promotion Regulation and Rule 9 of cadre Rules to a cadre post does not gets his/her continuous officiation towards' seniority. Seniority would be counted only from the date on which he/she was brought into the select list by the selection committee in accordance with Recruitment Rules, Promotions, Regulations and seniority Rules and was B approved by the UPSC, appointed .under Rule 9 of Recruitment Rules and regulation 9 of Promotion Regulations and Rules has continuously of- ficiated without break. Seniority would be entitled from the date of select list or continuous officiation whichever is later. He/she is entitled to appointment by the Central Govt. to substantive vacancy under Regulation c 9 of Promotion Regulations from that date. The Central Govt. and the U.P.S.C. should approve temporary appointment by an order in writing and also of such officiation. In that event seniority would be counted only from the date, either of his/her inclusion in the select list or from the date of officiating appointment to the cadre post whichever is latter. By operation of Explanation I to rule 3(3)(b) of the Seniority Rules his seniority will be D counted only from ..either of the latter dates and the necessary effect is that the entire previous period of officiation should be rendered fortuitous and the appointment as ad-hoc appointn:ent or by local arrangement.

The question then emerges as to when the promotees stood ap- E pointed to the cadre/Senior posts? The learned counsel Sri Jain contends that due to inaction in preparing the select lists for the years 1971, 1974 and 1975 and later 1979 & 1980 the promotees lost their right to inclusion in the select list and that, therefore, rules 5 and 9 of the Recruitment Rules read with rule 3(3)(h)of the Seniority Rules have been broken down and F the Central Govt. must be deemed to have relaxed the above rules by deemed exercise of its power under rule 3 of the Residuary Rules. In this context he argues that the seniority, being a condition of the service, could be relaxed.

Preparation of the select list as per promotion Regulations is a G pre-condition for recruitment by promotion. The State Govt. is enjoined to send the select list to the UPSC, which after considering the objections, if any, of the Central Govt. and the State Govt. and the views of the Com- mittee, would approve the list with such modifications as it may be deemed just and proper. The Central Govt. makes appointment of the promote' H officer to the l.P. service in strict conformity with Rule 9 of Recruitment

SYED RIZVI v. U.O.I. [RAMASWAMY,J.] 209

Rules and regulation 9 of Promotion Regulations in the order of m.;rit and A in no case the quota of 33-1/3 per cent to the promotees should be exceeded. The year of allotment under Rule 3 of Seniority Rules to every officer of the LP.S. is mandatory. In order to get into the select list, the promotee officer has to fulfil the conditions of the rules of recruitment and Promotion Regulations i.e. he must be brought into the select list satisfying the conditions specified therein and the Seniority Rules. As _per Recruit- B ment Rules, merit, auility and suitability are the criteria and seniority will be considered only where merit and suitability are approximately equal. Integrity, ability and record of service would furnish the ground to assess the merit of the promotec officer to assign the ranking inter-se in the list and appointment by Central Govt. should be in the order as approved by c the UPSC and recommended by the State Govt. Bringing the name on the list does not confer any right to automatic appointment. The appointment should be made to a substantive vacancy within the quota in the order in the select list unless the predecessor promotee officer in the list opts to forgo the same. Seniority rules thus provide the source or foundation upon which the whole edifice of Indian Police Service has been built upon to assign the year of allotment. The scheme of the Rules and Regulations is an integral and continuous whole and any snap in the link would lead to distortion and land up in imbalance in the ratio and upset the smooth working of the scheme frustrating the national integration, the object of the All India Service Act. Moreover, the recruitment by selectiOn would give only right to be considered according to rule and creates no right to appointment. The order of appointment by the Central Govt. under Rule 9 of Recruitment rules crystalises the right of a promotee officer into the service. Seniority would be counted only from date of select list or the date of continuous officiation after appointment whichever is later. F Rule 3(1) & 3(3)(b) of Seniority Rules, lays down the criteria for assigning the year of allotment that where an Officer has been appointed to the service by promotion under Rule 9 of the Recruitment Rules, his seniority would be determined in the light of Explanations 1 and 2 thereof. The year of allotment is that of the junior most among the direct recruit G officers to the Service in accordance with rule 7 of the Recruitment Rules who has officiated continuously in a senior post from a date earlier than the date of commencement of the officiation by the promotee officer. The concomitant result is that the determination of the seniority has been inter linked with the recruitment of the promotee officer to the Indian Police H'

210 SUPREMF COURT REPORTS [1992] SUPP. 3S.C.R.

A Service. To satisfactorily solve the problem the Recruitment Rules, Promo- tion Regulations and Seniority Rules vis-a-vis the Cadre Rules should be read together.

Due to exigencies of the service, the State Govt. has been empowered under regulation 8 of Promotion Regulations read with rule 9 of cadre rules B to appoint select list. or non-select officers to man temporary vacancies in cadre posts. So long as cadre officer is available, he/she alone is to be posted to a senior cadre post In his/her absence the select list officer awaiting promotion, must be appointed in the order found in the list. It must · be the rule and_ deviation must be for exceptional reasons and c circumstances. Where either the cadre officers or select list officers are not available, then only non-select list officers may be promoted to temporary vacancies which should not be likely to last for more than three months and the State Govt. must strictly, comply with the conditions specified in the provisos to regulation 8(2) of Promotion Regulations and Rule 9 of D cadre rules. In other words, where the vacancy/vacancies continue for more than three months, the prior concurrence of the Central Government is mandatory.· If it continues for more than six months prior approval of the Union Public Service Commission is also mandatory. Any appointment in violation thereof is not an appointment in accordance with the !J.w. These appointments are mere ad-hoc or local arrangement or fortuitous. E The question at once arises whether persons appointed under Regulation 8 of promotion Regulation read with Rule 9 of cadre rules would be entitled to count the entire officiating period in the cadre post and if so from what period and to what extent. In Direct Recntit Class II F Engineering Officers' Association & Ors. v. State of Maharashtra & Ors., [1990] 2 SCR 900, the Constitution Bench held in proposition 'A' that once any one is appointed to a· post according to rules his seniority has to be counted from the date of his appointment and not according to the date of confirmation. A corolary of the above rule is that where initial appoint- ment is ad-hoc and not according to rules and made as stop-gap arrange- G ment, the officiation in such post cannot be taken into account ·for considering seniority. Proposition 'B' lays down that if the initial appoint~ ment was not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till regularisation of his service the period of offidating service will be counted towards seniority. H The contention raised by the prornotees in that case was that since they

SYED RIZVI v. U.0.1. [RAMASWAMY,J.) 211

were appointed according to rules and had been uninterruptedly officiating in the posts tiil regularisation they were entitled to count their temporary service towards seniority. On those facts, the Constitution Bench held that the initial appointments were according to rules, and the promotees were entitled to seniority from the .date of initial promotion. The propositions should be understood and applied in the light of the facts in each case. Propositions 'A' and 'B' must be read together in the light of the discussion in Paragraph 13 of the judgment.

In KC. Joshi v. Union of India, [1992] Suppl. 1 SCC 272, it was held that the Forest Range Officers were not appointed as j\sstt. Conservators of Forest as per the Rules and that, therefore, the entire continuou~ C officiating period was not counted towards ,~niority. The same view was reiterated inA.N. Sehgal & Ors., v. Raje Ram ·s1ieoran & Ors., [1992] Suppl. 1 SCC 304. In that case also contrary to and in excess of the quota· rule, the promotions were made and the. services of som~ officers were also regularised. This court held that the appointment to the post according to D rules and within the quota was mandatory. The continuous officiation or 1

confirmation would not enure to the benefit of the promotee officers appointed in excess of the quota. In Masood Akhtar Khan & Ors., v. State of Madhya Pradesh & Ors., [1990] 4 SCC 24 it was held that if the initial appointment is not according to rules, the benefit of continuous officiation will not be given. E

We find force in the contention of Sri P.P. Rao that unless the promotees were recruited to the Indian Police Service in accordance with the regulations and rules they did not form a class with the direct recruits and unequals cannot be treated as eq-µals. Recruitment to the service is from more than two sources, primarily from direct recruitment and promo- tion. Unless the promotee officer is appointed to the service in accord,ance with the rules, he does not become a member of the service. On appoint- ment under Rule ·9 of the Recruitment rules to a substantive vacancy from thit select list by the Central Govt. the promotee officer beromes a member of the service. But whereas appointment under regulation 8 of promotion regulation is in disregard of the rules to cope up with the administrativ:! expediency, be it to a temporary or substantive vacancy, an appointee under Regulation 8 read with Rule 9 of cadre rules is an unequal to a direct recruit or one under Regulation 9 of Promotion Regulation read with Rule 9 of Recruitment Rules. So unequals cannot be treated as equals offending H

212 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.

A Art. 14 and 16(1) of the Constitution. Mere production of inequality by operation of the rule is not sufficient to treat an appointee under Regula- tion 8 of.Promotion Regulation at par with one under Direct Recruitment or one under rule 9 of Recruitment Rule and Regulation 9 of Promotion Regulations. Getting qualified earlier in point of time or passing the B .prescribed tests does not by itself clothe with a right to promotion or entitle to sen~ority. It would arise only after the select list was prepareq on comparative evaluation of the record and assessment of merit, ability and suitability and fixation of inter se seniority was made and approved by the UPSC followed by or preceded with an order of appointment under Regulation 9 of Promotion Regulations and Rule 9 of Recruitment Rules. C Persons similarly circumstanced alone are entitled to equal treatment. The rule making authority or the legislature take into consideration diverse factors to integrate into common cadre the incumbents drawn from dit~ ferent sources. They have better knowledge to adjust those appointees to integrate them into common cadre. Until the officers are appointed to the D Indian Police Service in accordance with the recruitment rules and Promo- tion Regulations, ·they remain a separate source and a distinct class. Only on due appointment after their fusion into common stream or cadre, there canno: be any invidious discrimination thereafter between the promotees and the direct recruits. The direct recruits anJ promotees/officers con- stitute, thus, different classes. Conditions of recruitment should strictly be E complied with in making recruitment by promotion of the Dy. S.P. from a State ·Police Service holding substantive posts into the Indian Police Ser- vice. Any appointment. in. contravention thereof would negate the scheme of the rules <ind regulations.

F Fulfilling the conditions of eligibility for consideration for promotion to the Indian Police Service from State Service are conditions of recruit- ment. Once a promotee has duly been recruited by promotion the condi- tions thereafter like pay, pension etc. are conditions of service. The compliance of conditions of recruitment are mandatory for appointment by promotion. In Keshav Chandra Joshi's case (Supra), the \vrit petitioners were Forest Range Officers in U.P. State Forest Subordinate Service. Due to pauCity of direct recruit Asstt. Conservators of Forest by the U.P.S.C. the Forest Range officers were temporarily promoted and they continued to officiate as Asstl. Conserva!~rs of Forest for a period ranging between 5 to 12 years. T~ey filed a writ petition under Art. 32 contending that they became senior to the direct recruits who were recruited later on and that

SYEDRIZVI v. U.O.I.[RAMASWAMY,J.] . 213

their continuous officiation should be counted towards their seniority. This A Court, while repelling the contention, held that appointment to the post in accordance with the rules is a pre-condition and the conditions of rules of recruitment cannot be relaxed and that the promotees get their seniority only from the date of the regular promotion in accordance with the rules and within quota. The entire officiating period was held to be fortuitous. It must, therefore, be held that rec.ruitment by promotion in accordance B with the Regulation and Rules are conditions of Recruitment and are mandatory and should be complied with.

The next question is whether the seniority is a condition of service or a part of rules of recruitment? In State of M.P. & Ors., v. Shardul Singh, C [1970] 3 SCR 302, this Court held that conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment (emphasis Supplied) to his retirement and even beyond, in matters like pensions etc. In J.N. Subba Reddy v. Andhra University & Ors., [1976} 3 SCR 1013, the same view was reiterated. In D Mohd. Shujat Ali & Ors., etc. v. Union of India & Ors., etc., [1975] 1 SCR 449 at 468, Constitution Bench held that the rule which confers a right to actual promotion or a right to be considered for promotion is a rule prescribing a condition of the service. In Mohd. Bhakar v. Krishna Reddy, 1970 S.L.R. 768, another Constitution Bench held that any rule which affects the promotion of a person relates to his condition of service. In State E of Mysore v. G.B. Purohit, C.A. No. 2281of1965 dt. 25.1.1967, this Court held that a rule which merely effects chances of promotion cannot be regarded as varying a condition of service. Chances of promotion are not conditions of service. The same view was reiterated in another Constitution Bench judgment in Ramcltandra Shankar Deodhar & Ors., v. The State of F Maharashtra, W.P. No. 299of1969 dt. Nov. 12, 1973. No doubt conditions of service may be classified as salary, confirmation, promotion, seniority, tenure or termination of service etc. as held in State of Punjab. v. Kai/ash Nath, [1989] 1.scc 321, by a bench of two Judges. But it must be noted the context in which the law therein was laid. The question therein was whether non-prosecution for a grave offence after expiry of four years is a G condition of service? While negativing the contention that non-prosecution is after expiry of 4 years not a condition of service, this Court elaborated the subject and the above view was taken. The ratio therein does not have any bearing on the point in i1'sue. Perhaps the question may bear relevance, if an employee was initially recruited into the service according to the Rules H

214 SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.

A and Promotion was regul~ted in the same rules to higher echolons of service. In that arena promotion may be considered to be a condition of service. In A.K Bhatnagar v. Union of India, (1991] 1 SCC 544 at 548, this court held that seniority in an incidence of service and where the service rules prescribe the method of its computation it is squarely governed· by such ~ules. In their absence ordinarily the length of service is taken into B acco'unt.ln that case the direct recruits were made senio~ to the recruits by regularisation although the appellants were appointed earlier. in point of time and uninterruptedly remained in service as temporary appointees alongwith the appellant but later on when recruited by direct recruitment they were held senior to the promotees. c No employee has a right to promotion but he has only right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible. Take an illustration that the Promotion Regulations envisage maintaining integrity and good record by D Dy. S.P. of State Police Service as eligibility condition for inclusion in the select list for recruitment by promotion to Indian Police Service. Inclusion and approval of the name in the select list by the U.P.S.C., after considering the objections if any by the Central Govt. is also a condition precedent. Suppose if 'B', is far junior to 'A' in State Services and 'B' was found more meritorious and ~uitable and was put in a select list of 1980 and accordingly E 'B' was appointed to the Indian Police Service after following the proce- dure. 'A' was thereby superseded by 'B'. Two years later 'A' was found fit _and suitable in 1984. and was accordingly appointed ac~ording to rules. Can

l 'A' thereafter say that 'B' being far junior to him in State Service, 'A' should become senior to 'B' in the Indian Police Service. The answer is obviously F no b~cause 'B' had stolen a march over 'A' and became senior to 'A'. Here maintaining integrity and good record are conditions of recruitment and seniority is an incidence of service'. Take another illustration that the State Service provides rule of reservation to the Scheduled Castes and Scheduled Tribes. 'A' is a general candidate holding No. 1 rank according to the roster as he was most meritorious in the State service among general candidates. G 'B', Scheduled Castes candidate holds No. 3 point in the roster and 'C', Scheduled Tribe holds No. 5 in the roste~. Suppose Indian Police Service Recruitment Rules also provides reservation to the Scheduled Castes and Scheduled Tribes as well. By operation of the equality of opportunity by Arts. 14, 16(1), .16(4) and 335 'B' & 'C' were.recruited by promotion from H State Services to Central Services and were appointed earlier to 'A' in 1980.

SYED RIZVI v. U.0.1. [RAMASWAMY,J.] 215 - 'A', thereafter in the next year was found suitable as a general candidate A and was appointed to the Indian Police Service. Candidate thereafter contend that since 'B' & 'C' were appointed by virtue of the reservation, though were less meritorious and juniors to him in the State service and gradation list would not become seniors to him in the cadre as IPS Officer. Undoubtedly 'B' & 'C' by rule of reservation, had stolen a march over 'A' B from the State Service ...BY operation of rule of reservation 'B' and 'C' became Seniors and 'A' became junior in the Central Services. Reservation and roster were conditions of recruitment and seniority was only an in- cidence of service. The eligibility for recruitment to the I.ndian Police Service, thus, is a condition of the recruitmertt and not a condition of service. Accordingly we hold that seniority, though, normally an incidence c to service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion, which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable.

The next question is whether rule 3(3)(b) of the seniority rules and D regulation 5 of Promotion Regulation had collapsed. In support thereof strong reliance was placed by the counsel for promotees on the ratio in Narender Chadha & Ors., v. Union of India & Ors., [1986} 1 SCR 211, The facts therein were that for the Indian Economics and Statistics Service there aretwo modes of..r~ruitment, namely, direct recruitment and promo- E tion from foeder source. The petitioners therein were promotees from Grade IV ~ervice and -1or well over 15 to 20 years there was no direct recruitment. The promotees continued in the promoted posts, though on ad-hoc basis, without reversion. When the later direct recruits claimed seniority over them, this Court in Contempt proceedings to relieve the inequitious results, held that since the recruitment rules given power to the . Central Govt. to relax the condition of service, the rule must be deemed to have been relaxed and promotees deemed to have been appointed to the post in accordance with the rules.

Rule 3 of the Residuary Rules provides the power to relax rules and regulations in certain cases - Where the Central Govt. is satisfied that the operation of - (i) any rule made or deemed to have been made under the Act, 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 H

216 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A 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" .. Rule 3 empowers the Central Govt. to relieve undue hardship occurred due to unforseen or unmeritted circumstances. The Central Govt. must be satisfied that the operation of°the rule or regulation brought about B undue hardship to an officer. The condition precedent, therefore, is that there shou!d be an appointment to the service in accordance with rules and by operati~n of the rule, undue hardship has been caused, that too iii an individual case. the Central Govt. on its satisfaction of· those conditions, have been empowered to relieve such undue hardship by exercising the c power to relax the condition. It is already held that conditions of recruit- ment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed. The latter too must be in writing that too with the consultation of U.P.S.C. In Mahapatra and Khanna cases this Court held that approval by the Central Govt. and U.P.S.C. are mandatory. In A.K Cnaudhary's case it was held that requirement of rule 3(3)(b) of Seniority Rules is mandatory. In Amrik Singlz's case an express order in writing under Rule 3 of Residuary rule is mandatory. In this case neither any representation to relax the rules was made nor any order in writing in this behalf was expressly passed by the J Central Govt. The fiction of deeming relaxation would emasculate the operation of the Rules ~nd Regulations and be fraught with grave imbalan- ces and chain reaction. It is, therefore, difficult to accept the contention that there would he deemed relaxation of the Rules and Regulations; (

It is next contended that by non-preparation of the select list, the promotees had lost their chances of promotion to get into super time scales l of pay and so on. Preparation of the annual seniority list is, therefore, \ mandatory and that by its non-preparation the rules have been collapsed. ~· The argument ex-facie is alluring but lost validity on close scrutiny. The I contention bears two facets: firstly preparation of the seniority list and ( secondly the cons~quences that flow from the omission to prepare the I

• G seniority list. It i~ already held that the committee shall prepare the seniority list every year and be reviewed and revised from time to time taking into account the expected or anticipated vacancies during the year plus 20 per cent or two vacancies whichever is more. It is already held that I l wide distinction exists between appointment by direct recruitment and one under Regulation 9 of Promotion regulation and Rule 9 of Recruitment

SYED RIZVI v. U.0.1. [RAMASWAMY, J.] 217

Rules on the one hand and under Regulation 8 thereof read with rule 9 of cadre rules on the other hand. Their consequences are also distinct and operate in different areas. Prior approval of the Union Public Service Commission and prior concurrence of the Central Govt. are mandatory for continuance of temporary appointment under Regulation 8 beyond six months and three months respectively together with prompt report sent by the State Goyt. supported by reasons therefore. In their absence it is not a valid appointment in the eye of law. Unless an officer is brought on tile select list and appointed to a senior cadre post and continuously officiated thereon he does not acquire right to assignment of the year of allotment Eligibility age for consideration was only upto 52 years and presently 54 years. If the list was not prepared though for the succeeding year the age c barred officers may be considered but were made to compete with junior officers who may eliminate the senior officer from the zone of considera- tion. Suppose in 1980 the senior officer was not qualified though the list was made, but in 1981 he could improve and become eligible. Non-prepara- tion of the select list for 1980 disables the officer to improve the chances. D In Sehga/'s case, this Court held that chances of promotion and the aspiration to reach higher echolons of service would enthuse a member of the service to dedicate himself assiduously to the service with deligence, exhigiting expertise, straight forwardness with missionary zeal, self-con- fidence, honesty and integrity. The absence of chances of promotion would generate frustration and an officer would tend to become corrupt, slowen and a mediocre. Equal opportunity is a fertile resource to augment efficien- cy of the service. Equal chances of promotion to the direct recruits and the promote.es would produce harmony with accountability to proper im- plementation of government policies. Unless the select list is made annually and reviewed and revised from time to time, the promoted officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This Court in Mohan Lal Capoor's case held that the committee shall prepare every year the select list and the list must be submitted to the U.P.S.C. by the State Govt. for approval and thereafter appointment shall be made in accordance with the rules. We have, there- fore, no hesitation to hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echolons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State Govt. concerned and this court takes serious note of wanton infraction. H

218 SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R.

A The question then is whether the failure to prepare the select list could give rise to an inference that rules have been collapsed and t~e State Govt's l_ocal arrangement shall be given legitimacy as regular appoint- ments? After giving our anxious consideration to the end resultants, we find it hard to accept the contention. The reasons are manifold. The B appointment by promotion to the Indian Police Service and as a fact to any · All India Service and determinatio11: of inter se seniority bear vital effect at the higher echolons of super time scale of pay and the above. The State Govt. and the Central Govt. should strictly comply with the provisions in making recruitment by promotion from the State Service to the All\India Services. If laxity has been given legitimacy and deemed relaxation is extended it would not only upset smooth working of the rules but also undo the prescribed ratio between promotees officers and direct recruits. It would also produce adverse effect at the All India level. Moreover, the concept of All India Services introduced to effectuate the national integra- tion by drawing persons from different regions by direct recruitment into concerned States cadres would be dereated by manipulation National integration would be disturbed and frustrated. Smooth implementation of the rules would be deflected and distortions in service would gain legitimacy and acceptability. While the Central Govt. remain statutory appointing authority the State Govt. gets into saddle and would become de facto appointing authority. the junior most and unqualified or unfit would be pushed in from back door and pumped up into higher echolons, eroding efficiency and honesty. We, therefore, hold that for failure to prepare select list every year, rule 3(3)(b) of the Seniority Rule, Rules 5 and 9 of Recruitment Rules and Regulation 9 of Promotion Regulations have not been broken down and the appointment by local arrangement by the State F Govt. under Regulation 8 of the Promotion Regulations and Rule 9 of Cadre Rules are not valid and legal. The promotee officers are not entitled to count their whole officiating period towards their seniority.

Of course Sri Harish N. Salve contended that the promotees were not unduly favoured by t~e State Govt. On the facts we need not go into G that question. This Court, pending appeals, directed the State Govt. to prepare the select list on notional basis for the years 1971, 1975, 1976, 1979 and 1980 and to consider the eligibility of the officers as per rule and to submit the report to .this court which lists were accordingly prepared and kept in this court; The promotees questioned their correctness. Since it is H a matter of factual verification by the State, the Central Govt. and U .P .S.C.,

SYED RIZVI v. U.0.1. [RAMASWAMY,J.] 219

thi'.s Court cannot undertake to review their legality. Therefore, the hand- A icap, if any, suffered by promotees for that limited periods has now been made good and subject to further verification into the grievance, if any, is now redressed. The special grade posts were created in the scale of pay of the cadre posts held by the promotees. It is seen that under the cadre rules the Central Govt. in consultation with the State Govt. creates the cadre posts and the State Govt. merely recommends. The State Govt. c~nnot, on B its own, create cadre posts and that is not the case on hand. The special grade posts enabled the promotees to remain as Deputy Superintendent of Police· drawing the pay, equal to the cadre posts but to no other benefit and they did not cease to be Dy. Superintendent of Police as contended by Sri Gupta. c We accordingly hold that majority members committed the gravest of errors in holding that F.xplanation 1 to rule 3(3)(b) of Seniority Rules and the relevant rules were deemed to have been relaxed and the directions given to the Central Govt. to refix the seniority is illegal. However, we emphasise that many of the promotees have since been retired from service after working out notional promotion and monetary benefits, as this Court did not stay the operation of the Tribunal's order. Arrears paid should not be recovered from them and promotions already made to some of the promotees and now continuing in the respective offices may not also be recalled since they have been working for some time past. However, the continuing officers should not be entitled to any future promotions on the basi.S of the directions of the Tribunal, superseding the claims of the direct recruits until they became eligible in their turn as per this judgment. The Registry is directed to return the seniority lists produced by the State Govt., which would give notice to the promotees who were included in the notional list of their inter se placement of the respective years 1971, .1975, 1976, 1979 and lSJO directing them to submit within a specified time their objections, if any, and the State Govt. would send the list, the objections if made all relevant record to the U.P.S.C. marking copies thereof to the Central Govt. The Central Govt. would submit their comments to the U.P.S.C. which would consider them any may accept or modify the list as per the record and would communicate to the Central Govt. and State Govts. Thereafter the Central Govt. would make necessary appointments on the recommendation by the State Govts. as per law. The seniority list already approved by the Central Govt. as directed by this Court in the first instance subject to the above modification and for the rest of the years H

220 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A would stand upheld and the Civil Appeals to that extent are allowed and O.As. stand dismissed. For others the respective years of allotment shall accordingly be assigned. The appeals are accordingly allowed with above directions. The Writ Petition is against interim directions of this Court. Pending appeal. It is not maintainable. It is accordingly dismissed. The I.A. Nos. 1 to 10/91 and C.P. No. 191 of 1991 are dismissed. The directions B given by the respective. tribunals stand modified. In the circumstances · parties would bear their respective costs throughout.

G.N. Appeals allowed. Petition dismissed.