Case: D.D. Suri Vs. Union of India and Another

an officer might be good enough to be a Divisional Commissioner and might not be good enough to be the Joint Secretary to the Government of India, hits at the very root of the system of Administration which we have adopted in this Country. It further expressed that the fact that most of the States have got Divisional Commissioners while some States do not have these posts, has no relevance. It, therefore, proposed that officers belonging to the Indian Administrative Service should be given pro forma promotion to the super-time scale by the State Government under the Next Below Rule so that the service rendered by such officer from the date of such promotion, will count for the purpose of fixation of initial pay, on reversion to the present cadre, and also for the purpose of increments, and the benefit should be allowed on one for one basis. It was also suggested in the alternative, that if the benefit of the Next Below Rule could not be extended to such officer and if he is detained by the Government in a lower post at the Centre against his wishes and in public interest, he should be given the higher pay on personal basis, i.e., as a measure personal to him within the frame-work of the policy quoted above. When the matter was referred to the Ministry of Finance, it did not agree to either proposal, and the Ministry of Law rightly pointed out:"It is not appropriate to raise the scale of ex- cadre post to that of super-time scale merely because the incumbent has become due for promotion to the super-time scale. The pay attached to a post is with regard to the nature of the duties and responsibilities and not with reference to the entitlement of the incumbents."25. As regards, the scope of the protection of pay envisaged by the proviso to sub-rule (2) of Rule 6 of the Indian Administrative Service (Cadre) Rules, the Law Ministry advised that:"The concept of the basic pay which the officer would have drawn but for his deputation is limited to the basic pay of the post to which he would have been promoted in the natural course of things but not to a post like a super-time scale to which appointment is not only on the basis of seniority but also merit and suitability."Thus the present position is that the benefit of the Next Below Rule is available at the first stage of se lection i.e. at the time of appointment in the selection grade but not at the second stage, namely, at the time of promotion to the super-time scale.26. It is, therefore, abundantly clear that the appellant cannot claim as a right the super-time scale merely on the basis of his seniority among the members of the Indian Administrative Service belonging to the Orissa cadre. The process of appointment to the super-time scale is by selection. When the element of selection comes in, this promotion must be subject only to the claims of exceptional merit and suitability, and is not a matter of right: Union of India v. M.L. (Capoor(1). Promotion to the super-time scale is, therefore, not a matter of course. The officer must stand the test of suitability and his integrity must be beyond doubt. For this purpose, there is a Senior Selection Committee which prepares a select list of suitable officers which must be approved by the Union Public Service Commission. The Senior Selection Committee has to prepare a panel of names for each grade and submit the same for approval to the Union Public Service Commission as well as to the Government of India, Ministry of Home Affairs. The select list has to be reviewed and revised every year, and the Senior Selection Committee meets annually. The essence of holding Selection Committee meeting annually is that each annual proceeding is independent of the other. That is why as soon as the proceedings of the new Selection Committee are approved by the Union Public Service Commission, the proceedings of the earlier Selection Committee become inoperative. No manner of continuity can, therefore, be imputed to the proceedings of the various Selection Committees. It is not the petitioners case that his name was ever brought into the select list by the Senior Selection Committee and approved by the Government of India, Ministry of Home Affairs, for appointment in the selection grade. If the petitioner was consciously passed over by the Senior Selection Committee or the Government of India, Ministry of Home Affairs, then there is no question of the applicability of the Next Below Rule.Much stress was, however, la id on the letter of Sri R.N. Mohanti, Joint Secretary to the Government of Orissa, Political &Services Department, dated May 7, 1963, addressed to the petitioner in reply to his letter dated March 15, 1963 for the submission, that had remained in his parent cadre, he would have been promoted and drawn pay in the super-time scale. It was urged that the petitioner should have been given pro forma promotion and the higher scale of pay in the super-time grade under the Next Below Rule because his junior in his parent cadre had been promoted to such scale of pay or granted higher pay, on personal basis to compensate for the financial loss suffered by him due to his retention in a lower post at the Centre. We are afraid, the contention must be rejected. The aforementioned letter only stated that his case would have been considered in the normal course for appointment to the selection grade as well as to a super-time scale post, had he continued under the State Government. It did not at all mention nor could it be construed to mean that he was entitled for appointment to a post in super-time scale on account of his seniority on the basis of the Next Below Rule. In any event, the letter, we are afraid, cannot take the place of the recommendation of the Senior Selection Committee.27.

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

Explanation:
0[ds]At the very outset, we tried to impress on the petitioner that his main relief, i.e. with respect to fixation of the year of allotment according to the N formula, had become infructuous, as he had already retired from service and only the subsidiary relief i.e., for giving necessary benefits to him in the fixation of his pay remains which is nothing but a monetary claim, for the enforcement of which the remedy lay elsewhere. But the petitioner who appeared in person persisted in arguing all the points raised particularly the one regarding fixation of the year of allotment saying that he was doing it for the benefit of others. We have, therefore, no alternative but to deal with the appeal onfail to comprehend what relief the petitioner can be granted in this appeal. In his application for grant of special leave to this Court under Article 136 of the Constitution, the petitioner has categorically stated that he was no longer interested in the relief for determination of the year of allotment, according to the N formula, since he was on the verge of retirement, and that the arguments advanced on his behalf in the High Court were, therefore, only confined to his entitlement to additional pay under F.R. 49, irrespective or the fact whether he was given the benefit under the Next Below rule orare afraid, none of the contentions can prevail.It is common ground that as regards Emergency Recruits from the Open Market, the year of allotment was to be determined according to the Open Market Emergency Recruitment Scheme, embodied in the instructions of the Government of India for the preparation of a common gradation list for the officers of the Indian Civil Service cadre in each State issued on July 7,that be s o, the High Court quite properly declined to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution inasmuch as no writ or direction could be issued, in a matter which was essentially in the discretion of the Government , to re-fix his seniority by giving credit for 9 years instead of 8 years as provided for, as admittedly the relevant instructions require completed years of actualthe decision of the Government of India assigning a year of allotment to a particular officer under Rule 3 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, or in accordance with orders and instructions issued by the Central Government in that behalf before the commencement of these Rules, is final and cannot be interfered by the Courts under Article 226 of the Constitution unless such decision was capricious or arbitrary or in breach of the said Rules. The same principle should apply to the assignment of a year of allotment under the Nthese circumstances, the decision taken from the beginning was that allowances would not be included in computing the pay and as long as this decision is applied uniformly, without exception, the appellant can have no grievance in this regard to seniority specifically as allowances would have to be added uniformly to all other persons in the seniority list. Thus, the definition of pay in F.R. 9(21)(b) is applicable only for the fixation of pay of a Government servant who had been recruited from the armed Forces. In such a case, the total salary including such allowances as falling within the definition, is taken note of. The petitioner admittedly was given an initial pay of Rs 1, 000/- i.e. much higher than officers appointed to the Indian Administrative Service on the result of the competitive examinations. Here we are not concerned with the fixation of pay of the petitioner but with regard to the Rules relating to the fixation of his seniority which would take note of the period prior to his recruitment to the Indian Administrative Service and for that purpose the basic pay alone was relevant. The concept of pay under F.R. 9(21) (b) cannot, therefore, be introduced for purposes of regulating the year of allotment under N formula, as it relates to fixation of seniority and not of pay. The matter falls to be regulated by the interpretation placed by the Government of India, Ministry of Home Affairs in their letter dated July 18, 1949.If the definition of pay in F.R. 9(21) (b) was to be taken note of, then Calcutta compensatory allowance and marriage allowance would also be included. Obviously, a rule which makes seniority dependent upon marriage allowance and, therefore, on whether the officer was married or not will be violative of Article 14 of thecannot see that the appellant is on a better footing as regards lodging allowance, which is usually given to Army Officers in lieu of rent-free quarters. They become at once disentitled to such allowance the moment they are allotted quarters. Lodging allowance is, therefore, essentially compensatory in nature. The inclusion of pay as defined in F.R. 9(21) (b) in the N formula to include the Lodging allowance, is not permissible as the appellant would have to claim the application of the definition of pay in its full rigour or not at all. Any other construction will lead to manifest injustice as it would result in discrimination between persons similarly situated, i.e., between an Army Officer in receipt of lodging allowance in lieu of rent-free quarters and one in occupation of such rent-free quart es, in the matter of seniority in the Indian Administrative Service. The inevitable conclusion, therefore, is that the definition of pay in F.R. 9(21) (b) was not applicable for purposes of fixation of seniority of thethe present position is that the benefit of the Next Below Rule is available at the first stage of se lection i.e. at the time of appointment in the selection grade but not at the second stage, namely, at the time of promotion to the super-timeis, therefore, abundantly clear that the appellant cannot claim as a right the super-time scale merely on the basis of his seniority among the members of the Indian Administrative Service belonging to the Orissa cadre. The process of appointment to the super-time scale is by selection. When the element of selection comes in, this promotion must be subject only to the claims of exceptional merit and suitability, and is not a matter of right: Union of India v. M.L. (Capoor(1). Promotion to the super-time scale is, therefore, not a matter of course. The officer must stand the test of suitability and his integrity must be beyond doubt. For this purpose, there is a Senior Selection Committee which prepares a select list of suitable officers which must be approved by the Union Public Service Commission. The Senior Selection Committee has to prepare a panel of names for each grade and submit the same for approval to the Union Public Service Commission as well as to the Government of India, Ministry of Home Affairs. The select list has to be reviewed and revised every year, and the Senior Selection Committee meets annually. The essence of holding Selection Committee meeting annually is that each annual proceeding is independent of the other. That is why as soon as the proceedings of the new Selection Committee are approved by the Union Public Service Commission, the proceedings of the earlier Selection Committee become inoperative. No manner of continuity can, therefore, be imputed to the proceedings of the various Selection Committees. It is not the petitioners case that his name was ever brought into the select list by the Senior Selection Committee and approved by the Government of India, Ministry of Home Affairs, for appointment in the selection grade. If the petitioner was consciously passed over by the Senior Selection Committee or the Government of India, Ministry of Home Affairs, then there is no question of the applicability of the Next Beloware afraid, the contention must be rejected. The aforementioned letter only stated that his case would have been considered in the normal course for appointment to the selection grade as well as to a super-time scale post, had he continued under the State Government. It did not at all mention nor could it be construed to mean that he was entitled for appointment to a post in super-time scale on account of his seniority on the basis of the Next Below Rule. In any event, the letter, we are afraid, cannot take the place of the recommendation of the Senior Selection Committee.