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

2. In order to appreciate the points raised before us it is necessary to set out the facts somewhat in detail. The petitioner was appointed as Deputy Superintendent of Police in the State of Orissa on January 1, 1947. On January 1, 1950, he was confirmed as D. S. P. In the meantime an agreement had been arrived at between the Central Government and some State Governments, including Orissa, regarding the constitution of an Indian Police Service. This agreement is printed as annexure to the Indian Police Cadre Rules, 1950. This agreement provided for various matters such as the strength, including both the number and character of posts of the Indian Police Service, the method of recruitment to the Service, framing of rules regarding conditions of service, the penalties which could be imposed, etc. We are concerned, in particular, with para 2 (e) and para 7 which are as(e) The rules regulating the promotion of Provincial Police Service Officers to the Indian Police Service shall be framed by the Provincial Government concerned in consultation with the Federal Public Service Commission shall provide that no Provincial Police Service Officer shall be appointed to hold a superior post included in the Schedule for a period of more than one year unless the Federal Public Service Commission have certified that the officer is in every way fit to hold a superior post in the Indian Police Service.7. In order to ensure that the conditions of service applicable to officers of the Indian Police Service are as uniform as possible, rules regulating pay and other conditions of services will be framed by the Central Government to such extent as may be considered necessary. Provincial Governments will, however, be consulted before the rules are framed, and before they are amended in any manner. In respect of matters not covered by the said rules, an officer of the Indian Police Service will be governed by such rules as may be framed by the Government under which he is for the time being serving and, if no such rules are framed, by the rules applicable to the Central Service/Provincial Police Service Class I, as the case may be.The All India Services Act, 1951, came into force on October 29, 1951. Section 3 enabled the Central Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an All India Service which was defined to include, among others, the Indian Police Service. Section 4rules in force immediately before the commencement of this Act and applicable to an All India Service shall continue to be in force and shall be deemed to be rules made under this Act.On April 30, 1951, the State Government wrote to the Secretary, Union Punjab Service Commission, that they proposed to hold a meeting of the committee (to be constituted in accordance with R. 2 of the Draft Rules) sometime in June 1951 with a view to prepare a select list of officers suitable for promotion to the Indian Police Service. The Commission was asked to depute one of its members to preside over the said meeting in accordance with Rule 3 of the Draft Rules. On September 6, 1951, the Union Public Service Commission approved the recommendation of the above committee which met to prepare the select list for promotion to Indian Police Service, and agreed to the select list as drawn up by the Committee. The petitioners name appears at No. 5 of Part II of the list which is in the followingList of officers fit for confirmation in promotion post.1.2.3.4.II. List of officers fit for trial to promotion posts.1. H. P. Singh Deo.2.3.45. Shri Binode Kishore Mohapatra.6. Shri Banamali Das".On May 14, 1952, the petitioner was promoted as Additional Superintendent of Police in the I. P. S. cadre. On August 21, 1952, his name again appeared in the list which we may call "fit for trial list. His name also appeared in a similar list on July 12, 1954.6. One of the questions which has to be decided in this case is whether these lists can come within the expression "select list" used in the second proviso in R. 3 (3) of the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter referred to is the Seniority Rules, which came into force on September 8, 1954.7. On November 10, 1955, the first meeting of the Selection Committee set up in acccordance with Regulation 3 of the Indian Police Service (Appointment by Promotion) Regulation, 1955, hereinafter referred to as the Promotion Regulations, was held at Cuttack. In this meeting the Committee selected and recommended officers for officiating appointment in the I. P. S. and the petitioners name appeared as No. 2 in the List.8. On February 10, 1956, the Union Public Service Commission approved the recomendations of the above selection committee. On December 1, (sic) 1956, the Government of India wrote to the Union Public Service Commission requesting for its advice as to whether the list prepared by the Selection Committee could be treated as Select List" as recommended by the State Government. On January 10,1957, the Commission replied asam directed to refer to Shri S. P. Mukherjees letter No. 5/1/56-AIS(I) dated the 10th (sic) December, 1956 and to say that the Selection Committee which met at Cuttack on the 10th November, 1955, did not recommend any officer for appointment to the Indian Administrative Service/Indian Police Service. The Committee only recommended officers who were considered suitable to hold Indian Administrative Service/Indian Police Service cadre posts in an officiating capacity. Lists of such officers are made to avoid frequent references to the Commission in making interim arrangements in cadre posts till cadre officers become available and these lists cannot be considered as Select Lists.I am to suggest that the State Government may be advised to place the cases of all these officers before the Selection Committee when it meets again in Orissa sometime in the month of February, 1957, for preparation of the Select List.On February 15, 1957, the Selection Committee met and placed the petitioner, including some others, in the "Select List" for substantive appointment to the Indian Police Service. The Committee also recommended some persons for holding cadre posts in an officiating capacity.10. Reiterating the view that it had already expressed on January 23, 1957, on March 27, 1957, the Commission wrote to the Government of Indiathat the "fit for trial" list is intended merely in order to avoid specific references to the Commission for casual appointments to senior Indian Administrative Service/Indian Police Service Posts.(ii) that the Commission have advised in para 2 of their letter No. F. 950/55-R.III dated the 25th September, 1956, that the "fit for trial" list being not a list envisaged under the Indian Administrative Service/ Indian Police Service (Appointment by Promotion) Regulations, any officiation of an officer included in the "fit for trial" list cannot be taken as approved officiation for purposes of seniority and . . . . .. . .On May 7, 1957, the Government of India wrote to the State Governments andquestion whether the officiation in senior posts of the State Civil Service/ State Police Officer after inclusion of their names in the "fit for trial list" should or should not be taken into account for the purpose of seniority, on their subsequent appointment to the Indian Administrative Service, Indian Police Service, has been engaging the attention of the Government of India for some time past. As the State Governments are aware, the Indian Administrative/Police Service (Appointment by Promotion) Regulations do not provide for the preparation of any such "fit for trial list". Such a list has been devised merely to enable the State Government to try out a few officers irrespective of their seniority with a view to test their suitability for senior posts and is intended only to avoid specific reference to the Union Public Service Commission for casual short term appointments of the State Civil Service/ State Police Service officers to senior Indian Administrative Service/Indian Police Service posts. The Union Public Service Commission, who were consulted in this respect have advised that any officiation of State Civil Service/State Police Service officers included in the fit for trial list should not be taken into account to determine their seniority in the Indian Administrative Service/Indian Police Service.The Central Government furtherGovernment of India have accordingly decided that wherever such lists have been prepared in some States, the officiation in the senior posts of the State Civil Service/State Police Service officers included in the fit for trial list cannot be counted for the purpose of determining the seniority of such officers, under the Indian Administrative Service/Indian Police Service (Regulation of Seniority) Rule, 1954.On July 10, 1957, the petitioner was appointed to the Indian Police Service. July 22, 1958, the Government of India wrote to the Government of Orissa regarding the seniority of the petitioner. Itapproved continuous officiation of these officers counting for seniority commenced from the 10th February, 1956 the date on which the Union Public Service Commission approved the fit for continuous officiation list containing their names. This date being later than the date i.e., 7th September, 1955 on which Shri S. S. Padhi (1951 R. R.) started officiating in the senior posts but earlier than the date on which regular recruits of 1952 started officiating, it has been decided that these officers may be finally allotted to 1951 and placed enbloc below Shri S. S. Padhi (1951 R. R.) and above Shri B. N. Misra (1952-R.R.).It is this order which has been quashed by the High Court.

Reasoning:
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.