Case: Baidyanath Jena Vs. Union of India

3. These appeals are from a judgment of a Full Bench of the Central Administrative Tribunal dated 29.9.1988 delivered in T.A. No. 90 of 1987 along with O.A. No. 146 of 1986. By a subsequent amendment in these appeals, the consequential judgment of the Central Administrative Tribunal dated 6.8.1993 in T.A. No. 90 of 1987 along with O.A. No. 146 of 1986, giving effect to the said Full Bench judgment of the Tribunal and also deciding another issue raised in O.A. No. 146 of 1986, has also been allowed to be challenged. The appeals are filed by the State of Orissa, the Union of India as also senior officers of the Orissa State Police Service who were on the Select List of 1983 for promotion to the Indian Police Service and who have been there after promoted to the Indian Police Service. The original applicants before the Central Administrative Tribunal who are now respondents before us were senior officers in the Orissa State Police Service whose names were included in the Select List of 1982 for promotion to the Indian Police Service; but whose names did not find a place in the Select List of 1983 for promotion to the Indian Police Service.4. The promotion from the Orissa State Police Service to the Indian Police Service is governed by the Indian Police Service (Appointment by Promotion) Regulation of 1955 as amended from time to time. Under Regulation 3 of the Indian Police Service (Appointment by Promotion) Regulation of 1955, a Committee is required to be set up as provided therein for preparation of a list of suitable officers for promotion to the Indian Police Service. The preparation of such a list by the Committee is governed by Regulation 5.

Reasoning:
7. According to the original applicants every person who was on the previous Select List of 1982 is entitled to be considered for inclusion in the Select List for the next year i.e. Select List of 1983. The applicants rely upon the proviso to sub-regulation (3) of Regulation 5 in support of their contention. To examine this contention it is necessary to look at the scheme of Regulation 5. Regulation 5(1) prescribes the method by which the number of persons on the Select List will be determined. Under sub-regulation (2) for putting the names of persons on the Select List the Committee is required to consider, in the order of seniority, three times the number referred to in sub-regulation (1). The second proviso to sub-regulation (2), however, provides that in considering the names in the field of consideration the officers who are referred to in sub-regulation (3) shall be excluded. Sub-regulation (3), therefore, is meant to exclude certain people who may otherwise be in the zone of consideration. Sub-regulation (3) provides that those who have attained the age of 54 years on the Ist day of January of the year in which the Committee meets, shall not be within the zone of consideration. The proviso to sub- regulation (3), however, makes an exception. It provides that if a person who has so attained the age of 54 years was in the previous Select List, his name shall be considered. The Tribunal has interpreted this proviso to mean that every person whose name was in the previous Select List shall be included in the subsequent Select List. This interpretation is not borne out by the scheme of sub-regulation (3) read with sub-regulation (2). The proviso to sub- regulation (3) is an exception to the Rule in sub-regulation (3) that those who have attained the age of 54 years shall not be included in the Select List. The only exception is in the case of those persons whose names were in the previous Select List and who have attained, in the meanwhile, the age of 54 years. All these persons are required to be considered. The proviso to sub-regulation (3), therefore, covers only those persons who have attained the age of 54 years and whose names were in the previous Select List.Apart from a question mark against his continuous officiation, there is another hurdle in the way of counting such officiation for seniority. Explanation 1 to Rule 3(3)(b) of the Seniority Rules requires that such officiation must be during the period when the officers name is on the select list. Otherwise, officiation does not count for seniority. We have not been shown that from 1983 to 1989, Raigurus name was on the select list for each of those years. The Tribunal was, therefore, not right in granting to the appellant seniority on the basis of his temporary officiation commencing from 23.6.1982 when there are Seniority Rules which expressly lay down the manner in which such seniority is to be given. Those Rules have to be followed.The provisions of Rule 3(3)(b) of the Seniority Rules have been interpreted by this Court in paragraph 8 of that judgment. In respect of the promotees the Court has said that under Rule 3(3)(b), in the case of a promotee his year of allotment shall be the year of allotment assigned to the juniormost among the direct recruits who officiated continuously in a senior post from a date earlier than the date of commencement of officiation by such promotee. In the case of a promotee the period of his continuous officiation in a senior post shall count from the date of inclusion of his name in the Select List or from the date of his continuous officiating appointment whichever is later. Explanation 2 seeks to exclude the period of temporary posting made by way of local arrangement from the purview of continuous officiating service.22. Therefore, in the present case it is necessary to establish (1) the period of the continuous officiation in the senior posts by Raiguru; and (2) the period of continuous officiation, if any, after his inclusion in the Select List for each of the relevant years. Such selection and officiation must coincide and should be continuous to form a basis for granting seniority. When the first order of 18.6.1982 was issued under Rule 9 Raiguru was on the Select List of 1982. However, when the next order of 22.7.1983 was issued under Rule 9 Raiguru was not in the Select List for that period. There are two subsequent orders of 1985 and 1987 for his continuous officiation. It is not shown whether during this entire period the name of Raiguru was on the Select List. Then in 1986 he was clearly not officiating in a senior post but he was posted in the Orissa Police Service Senior Class I Service and the same is the case with the order of 30th of April, 1988. In the order of 30th of April, 1988, Raiguru is described as holding the post in Orissa Police Service Senior Class I.23. In the light of these facts it is not possible to hold that prior to his deemed date of promotion on 1.2.1989 he was continuously officiating in a senior post in the I.P.S Cadre or that such officiation was at a time when his name was on the Select List because unless such officiation is during the period when the name of the officer is on the Select List, it will not count for seniority under Explanation 1 to Rule 3(3)(b). This not being the case here, the respondent-Raiguru cannot be given the benefit of the so-called continuous officiation for his seniority.24. Learned counsel for the respondent-Raiguru has relied upon Union of India and Anr. v. Harish Chander and Ors., JT 1995(1) SC 233 : 1995(2) SCT 14 (SC), where this Court held that officiation for a long period would count for seniority. He has also relied upon case cited there. However, when there are express Rules which prescribe how and when continuous offiation will or will not count for seniority, such Rules have to be enforced and one cannot resort to any general legal formulation. Three other cases were cited before us relating to seniority and year of allotment. These are Harjeet Singh v. Union of India, 1980(3) SCR 459, O.S. Singh and Anr. v. Union of India and Anr., JT 1995(7) SC 664 : 1996(1) SCT 1 (SC) and Ramchandra Dayaram Gawande v. Union of India and Ors., 1996(10) SCC 420 : 1996(4) SCT 300 (SC). All these cases deal with seniority and year of allotment. However, each of them turns upon its own special facts and has no application to the present case.25. In the premises respondent-Raiguru is not entitled to claim seniority from 23.6.1982 or for any part of the period prior to 1.2.1989.26. The appeals are accordingly allowed and the impugned judgment and orders of the Tribunal dated 29.9.1988 and 6.8.1993 are set aside and the original writ petition/applications are dismissed. There will, however, be no order as to costs.