Case: State Of Orissa &amp; Anr Vs. B. K. Mohapatra

be deemed to be select lists made within the draft rules or the Promotion Regulations.23. In view of this conclusion it is not necessary to decide the question, which was raised by the learned Attorney General, that in any event the second proviso is only dealing with select lists made after the Promotion Regulations came into force and not with select lists made under the so-called draft rules. We are assuming, without deciding, that if a proper select list had been made under the draft rules it would be a select list within the meaning of the second proviso.24. This takes us to the next point whether the petitioner is governed by the main portion of rule 3 (3) (b) and not by the second proviso.In our opinion, the object of the second proviso is to cut down the period of officiation which would be taken into consideration under Rule 3 (3) (b).It is common ground that the case of the petitioner is not covered by the first proviso. We are unable to agree with the learned Counsel for the petitioner that the only object of the second proviso is to limit the operation of the first proviso.25. Explanation 1 really explains the expression "officiated continuously" occurring in Rule 3 (3) (b). But it does not mean that where 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 officers holding appointments as a purely temporary or local arrangement.26. If the second proviso applies, as we hold it does, it was for the Central Government to approve, or not to approve, the period of officiation prior to the date of inclusion of the petitioner in the Select List. As observed by this Court in D. R. Nim v. Union of India, (1967) 2 SCR 325 at p. 329=(AIR 1967 SC 1301 at p. 1303),"the first period (i. e., period before the date of inclusion of an officer in the Select List) can only be counted if such period is approved by the Central Government in consultation with the Commission."They have approved the period from February 10, 1956, to July 10, 1957.No material has been brought to our notice to show that the Central Government did not apply its mind to the problem.27. The learned Counsel for the petitioner contends that in the letter dated July 22, 1958, a list called the "fit for continuous officiation list" is mentioned which is said to have been approved by the Public Service Commission. The learned Counsel rightly points out that no such list exists. Apparently this is an expression coined by the draftsman to express the views of the Public service Commission which clearly stated in the letter dated February 10, 1956, that they approved the recommendation of the Selection Committee which met at Cuttack for the selection of police officers for promotion to the Indian Police Service in an officiating capacity.28. There is no doubt from the correspondence we have set out above that the Government of India were quite aware of the requirements of a select List.29. We and unable to agree with the learned Counsel that February 10, 1956, is an arbitrary date.It has definite relation to the question of approved period of officiation because it is on this date that the Public Service Commission approved the inclusion of the petitioner in the list for officiating appointment for the first time after the Promotion Regulations had come into force.30. The next point which we may now consider is whether the officiation period prior to February 10, 1956, was as a matter of fact, approved by the Government of India. The learned counsel has taken us through the correspondence.He has been able to point out some letters written by the State Government on the point but no letter from the Government of India has been shown which could possibly be read as approving his period of officiation prior to Frbruary 10, 1956. At any rate the approval of Government of India has to be accorded after the appointment to I. P. S. and not before.31. The only point that remains now is the question of discrimination. Singh Deo was an officer who was appointed on June 1, 1955, after the Seniority Rules had come into force and he seems to be governed by the first proviso. We have not been able to appreciate how this case has any relationship to the case of the petitioner.32. The learned Attorney General had raised the point that all the officers who were likely to be affected by the decision of the writ petition had not been impleaded as parties to the petition, and he referred to us the decision of this Court in Padam Singh Jhina v. Union of India, Civil Appeal No. 405 of 1967, D/- 14-8-1967 (SC) where Shah, J., speaking for the Court observed:"But we are unable to investigate the question whether there has been infringement of the rules governing fixation of semority, for a majority those who were placed above the appellant in the seniority list are not impleaded in the petition before the Judicial Commissioner and are not before this Court. It is impossible to pass an order, assuming that the appellant is able to convince us that a breach of the rules was committed, altering the list of seniority, unless those who are likely to be affected thereby are before the Court and have an opportunity of replying to the case set up by the appellant."This is a salutary rule and should be observed. But the learned Counsel for the petitioner says that he was concerned with his year of allotment and in that question nobody else was interested directly. Each officer has to have a year of allotment and no other officer is directly interested in it. But as we are allowing the appeal it is not necessary to finally decide whether the petition should have been dismissed only on this ground.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. It seems to us that the 1951, 1952 and 1954 lists cannot be deemed to be Select lists within the second proviso because, as a matter of fact, the Selection Committee did not select names for the purpose of substantive appointment but only selected names for the purpose of officiation in the senior posts of the Indian Policethis clearly means that the Committee should think of substantive appointments in the service and not officiating appointments.It seems to us that the Public Service Commission and the Government of India were quite right in deciding thatthe fit for trial lists could not be deemed to be select lists made within the draft rules or the Promotion Regulations.23. In view of this conclusion it is not necessary to decide the question, which was raised by the learned Attorney General, that in any event the second proviso is only dealing with select lists made after the Promotion Regulations came into force and not with select lists made under the so-called draft rules. We are assuming, without deciding, that if a proper select list had been made under the draft rules it would be a select list within the meaning of the second proviso.24. This takes us to the next point whether the petitioner is governed by the main portion of rule 3 (3) (b) and not by the second proviso.In our opinion, the object of the second proviso is to cut down the period of officiation which would be taken into consideration under Rule 3 (3) (b).It is common ground that the case of the petitioner is not covered by the first proviso. We are unable to agree with the learned Counsel for the petitioner that the only object of the second proviso is to limit the operation of the first proviso.If the second proviso applies, as we hold it does, it was for the Central Government to approve, or not to approve, the period of officiation prior to the date of inclusion of the petitioner in the Select List. As observed by this Court in D. R. Nim v. Union of India, (1967) 2 SCR 325   at p. 329=(AIR 1967 SC 1301  at p. 1303),"the first period (i. e., period before the date of inclusion of an officer in the Select List) can only be counted if such period is approved by the Central Government in consultation with the Commission."They have approved the period from February 10, 1956, to July 10, 1957.No material has been brought to our notice to show that the Central Government did not apply its mind to the problem.There is no doubt from the correspondence we have set out above that the Government of India were quite aware of the requirements of a selecto was an officer who was appointed on June 1, 1955, after the Seniority Rules had come into force and he seems to be governed by the first proviso. We have not been able to appreciate how this case has any relationship to the case of theas we are allowing the appeal it is not necessary to finally decide whether the petition should have been dismissed only on this ground.