Case: Amrik Singh and Others Vs. Union of India and Others

One Shri Ahluwalia, a senior member of the Indian Police Service, sought to quash the decision of the Union of India dated 26-6-1976, whereby his year of allotment was fixed as 1965. According to his case, the correct year of allotment should have been 1961. If his plea were granted, the present appellants would be affected by being made junior to him. The rival contentions revolve round a few facts, which we will set out, and a few rules framed underthe All India Services Act, 1951, which we will construe. First a rush through the relevant calendar of dates. Concerned, as we are, with the year of allotment of Shri Ahluwalia (respondent No. 4), let us focus on the chronology of events with special reference to him. If his claim were untenable, the appeal must be allowed and4th respondent (Ahluwalia) became a Deputy Superintendent of Police in Himachal Pradesh (which was then a Union Territory) by the end of 1956. In 1962, the Central Government constituted a common police service for the Union Territory of Delhi and Himachal Pradesh called the Delhi and Himachal Pradesh Police Service; and later, in 1964, respondent No. 4 was absorbed into that service on a regular basis. The usual avenue of promotion for a Deputy Superintendent of Police is the post of Superintendent of Police, but Superintendents of Police are borne on the cadre of the Indian Police Service and the exercise which results in the inclusion in the Indian Police Service is governed by the Indian Police Service (Appointment by Promotion) Regulations, 1955 framed under Sec. 3(4) ofthe All India Services Act, 1951. The first step is to prepare a Select List from among eligible officers of the State concerned, in the present case, the Union Territories of Delhi and Himachal Pradesh. Sometimes, it happens that although the post of a Superintendent of Police is a cadre post, if no hands are readily available for being posted from the I.P.S. Deputy Superintendent of Police from the Select List is promoted provisionally subject to certain formalities which we will presently consider. The 4th respondent (Ahluwalia) was brought into the Select List in 1965 and later appointed Superintendent of Police in October, 1965 and he worked as Superintendent of Police in one place or other, until December, 1967, and, even thereafter, he continued as Superintendent of Police right down to January 1971 when on January 30, 1971, he was appointed to the I.P.S. and confirmed as such. The year of allotment was fixed as 1965 but the 4th respondent had a case that the law and justice of the case entitled him to 1961 as year of allotment. So he challenged the Order of the Central Government allotting him the year 1965. The High Court considered the matter with reference to the relevant rules and came to the conclusion that there was merit in the 4th respondents contention. (He w as the petitioner before the High Court). The learned Judges wound upis, therefore, evident that the period of officiation of the petitioner during 1-8-1968 to 12-10-1969 could not be considered to be invalid or irregular o n any such ground.We, therefore, conclude that the Government of India wrongly decided that the officiation of the petitioner between the period 1-1-1968 and 12-1-1971 or during the period 1-8-1968 to 12-10-69 could not be considered valid officiation. Rather he was continuously holding a cadre post throughout this period, and the benefit regarding seniority will have to be given for the entire period. The decision being wrong and invalid under the very Rules and Regulations applied by the Government, was subsequently set right by them under Annexure-Y.The upshort of all that we have stated above is that the petitioner shall be given the benefit of his continuous officiation against a senior post of the entire period from 11-11-1965 to the date of his appointment in the Indian Police Service his year of allotment shall be determined under Rule 3(3)(b) of the Seniority Rules keeping in view that he started his continuous officiation from 11-11-1965. In con sequence, Annexure-N is quashed to the extent the said Annexure held a view contrary to our decision. It is declared that the petitioner continued and should be deemed to have continued to officiate on a senior duty post of the Indian Police Ser vice with effect from 11-11-65 without any break up to his confirmation in the Indian Police Service. The petitioners seniority shall be determined accordingly and all consequential benefits of seniority shall be granted to him by the respondents Nos. 1 and 2. The respondent No. 1 shall determine the seniority of the Petitioner in accordance with our observations made above within threeCentral Government reconsidered the matter even earlier, and, by its Order date d 27-7-1979, refixed the seniority of the 4th respondent by assigning 1961 as his year of allotment. Aggrieved by this development, the appellants have come to this court and contested the reasoning and conclusion of the Highfew more facts about the career of the 4th respondent and the developments in the Indian Police service may be narrated before we set out and consider Rules and Regulations and their4th respondent Ahluwalia, as stated earlier, was Superintendent of Police from 1965 to 1967, followed by a short period of earned leave, which ended on 25-3-68. From March 26, 1968 he again continued as Superintendent of Police. Meanwhile, an event beyond the control of the parties took place which has a bearing on the ultimate view we take, although only indirectly. On November 1, 1966, the reorganization of the Punjab State took place which resulted in some areas of Punjab being transferred to the Union Territory of Himachal Pradesh. Consequently, certain officers, including one Shri P.C. Sahney and Shri K.S. Dhaliwal, were brought over from Punjab to Himachal Pradesh. Admittedly, both these officers, Sahney and Dhaliwal, were senior to Ahluwalia, but a key circumstance which, in the submission of the appellants is decisive in their favour deserves mention. It is this Shri Sahney, a senior of Ahluwalia, was holding an Ex-cadre post of Superintendent of Police, C.B.I. under the Ministry of Home Affairs between 7- 12-1964 and 6-10-1969. The Joint Select List of the Union Territories of Delhi and Himachal Pradesh Police Service, prepared on 29-4-1967, included the names of Ahluwalia, Sahney and Dhaliwal, the last two being above Ahluwalia. On January 1, 1968, the Central Government created single cadre for all the Union Territories in India and, as a follow-up action, prepared a common Select List for the IPS Cadre on 13-1-1971. Ahluwalia was in the Select List of the Union Territories Cadre so prepared. The story of the Cadre continued in the sense that on 25-1-1971, when Himachal Pradesh acquired full-fledged State-hood, Ahluwalia was allocated, alongwith others, to that State. The Himachal Pradesh State came to have its own Cadre of I.P.S. Officers, in which Ahluwalia became a Member. Thereafter, the question was mooted before Government as to what should be the year of allotment for the 4th respondent (Ahluwalia).

Reasoning:
In the perspective of the Act and Rules, we may proceed to analyse the submissions and assess their worth. We are not disposed to launch on a prolix investigation or delve into minute details because we are impressed with the justice of the conclusion reached by the High Court and the Central Government in giving to Ahluwalia 1961 as the year of his allotment. It is indubitable that, as a fact, there was continuous officiation by him in a cadre post right down to 1971. There was no fault on his part. There was no illegality so far as we can gather. There was no outwitting at the instance of Ahluwalia, of the claims of any other candidate. The two technical infirmities powerfully pressed, with characteristic vigour, by Shri R. K. Garg do not in the least detract from the effective officiation as Superintendent of Police by Shrius assume for a moment that the State Government had not reported to the Central Government and that the consultation with the Union Public Service Commission h ad not been made by the Central Government. Let us further assume that, in a strict view, that was needed. Even so, the Union Territories of Himachal Pradesh and Delhi should have formally told the Home Ministry about the officiation beyond three months by Ahluwalia in a cadre post. This was not done. The real line of distinction between a State and the Union of India might well be blurred a little when it is a Union Territory. Moreover, there is the circumstance that the entire Service w as in the melting pot for a few years because the All India Services were being switched from Himachal Pradesh and Delhi into all the Union Territories. Even more; since uncertainty prevailed while the question of a part of Punjab being tacked on to Himachal Pradesh came to engage the Administration. Amidst these fluctuating factors, the solecism committed by the Union territory of Himachal Pradesh in not having reported to the Central Government about continuing Ahluwalia, beyond 3 months , in a cadre post, was a venial sin for which the candidate was free from blame. Secondly, the argument, based on Sahney, a senior to Ahluwalia, being in a ex-cadre post and therefore, Ahluwalias service during that period not being regular, also cannot be exaggerated out of proportion. Technically, the C.B.I. posts are ex-cadre posts, but it is a Central Government Department and nothing is suggested that there was something suspicious in Sahney being kept in the C.B.I. to facilitate Ahluwalias continuance in a Cadre post. Everything in this case is straight-forward and, therefore, if there was any administrative lapse, Ahluwalia could not be victimized. Indeed, an unwitting handship inflicted on a member of the Service under such circumstances can be relieved against by exercise of the residuary power of Central Government under Rule 3 extractedaccordance with Regulation 8 of IPS (Appointment by Promotion) Regulations, 1955 the Select List officers are to be appointed to the Cadre Post in the order in which their names appear in the Select List. As such in cases where a senior select list officer was not holding a cadre post, the officiation in a cadre post of a junior officer in the Select List was not approved by the Central Government because the appointment of Junior Select List officer to a cadre post was violative of the provisions of Regulation 8 of the Promotionit was decided that the rules may be relaxed to count the period of officiation against ex- cadre posts so as to give benefit of the service rendered by the junior officers in the cadre post for the purpose of seniority. Applying the ratio of the case of U. T. Cadre, the Government of India has come to the conclusion that the appointment of Shri P. C. Sahney in the C. B. I. on deputation basis from 7-12-1964 to 6-10-1969 was made by the Central Government in public interest since Shri Sahney belonged to the U. T. Cadre which was managed by the Central Government. It can, therefore, be said that the question of misuse of provisions of rules and regulations by the State Government in this case does not arise. The certificates that but for his appointment to ex-cadre post in the C.B.I., Shri Sahney would have continued against a cadre post, was to be issued by the Ministry of Home Affairs and the fault, if any, lies with the Central Government and not with any State Government. It has, therefore, been tentatively decided to count the ex-cadre officiations of Shri P. C. Sahney from 7-12-1964 to 6-10-1969 for the purpose of seniority in relaxation of the provisions of the I.P.S. (Regulation of Seniority) Rules,have earlier extracted the Rule, but in substance, the exercise prescribed by the Rule is that, when the Cadre post is vacant and no Cadre Officer is available. A non-cadre officer may fill the vacancy for a period beyond three months if the State Government reports to the Central Government the reasons therefore and it is not ordered to be terminated. The Central Government may permit a non-Cadre Officer to fill a Cadre post for a period exceeding six months provided it reports the full facts to the U.P.S.C. and acts responsibly in the light of the advice of the Commission. In the present case, no such report by the State Government to the Central Government was sent, no consultation by the Central Government with the Commission was done. We are agreed that by-passing the Public Service Commission bespeaks prima facie impropriety, but we are not inclined to consider this grievance as destructive of the officiation of Ahluwalia in the special conspectus of facts present here. For one thing, Ahluwalia has nothing to do with the error; for another, no senior of Ahluwalia suffered, thirdly, the Central Government, in exercise of its power to relax the Rules, in good faith and, indeed in equity, did relieve the officer against this violation. That power to relax exists is admitted, although a feeble challenge to its vires was made in passing. When we consider the year of allotment what looms large is Rule 3 (iii) (b). Continuous officiation is the decisive factor. Assuming that what is needed is regular officiation and not physical officiation, it is perfectly open for the Central Government to relax any irregularity by relaxing any particular rule or regulation. We have earlier indicated the scope of this power and reproduced the Rule itself. It is not arbitrary because the Rule contains guidelines. Government must be satisfied, not subjectively but objectively, that any rule or regulation affecting the conditions of service of a member of the All India Service causes undue hardship, then the inequitous consequence thereof may be relieved against by relaxation of the concerned Rule of Regulation; There must be undue hardship and, further the relaxation must promote the dealing with the case "in a just and equitable manner". These are perfectly sensible guidelines. What is more, there is implicit in the Rule, the compliance with natural justice so that nobody may be adversely affected even by administrative action without hearing.We are unable to see anything unreasonable, capricious or deprivatory of the rights of anyone in this residuary power vested in the Central Government. Indeed, the present case is an excellent illustration of the pro per exercise of the power. We are therefore, satisfied that the Central Government was right in invoking its power to relax and regularize the spell of officiation, which was impugned as irregular or illegal. The consequence inevitably follows that the officer Ahluwalia was rightly assigned 1961 as the year ofthe present case, Ahluwalia had continued in the Cadre post of Superintendent of Police, without this necessary exercise by the State and the Central Government and without the approval of the Union Public Service Commission. Thus, the two reasons, briefly, stated above, were lethal to the claims of Ahluwalia and he was bound to be pushed to the year 1965 and could not claim the earlier year of allotment of 1961 awarded to him by the Central Government and the High Court. If the contention put forward by Shri Garg were sound, the conclusion would be inevitable and the appeal must inescapably be allowed. Thus we are thrown back to an examination of the relevant rules in their application to the facts present in this case. Of course, before launching on that essay, we must also mention that the Central Government has a residuary power, in cases of equity and justice, to exempt an officer from the rigour of any rule or regulation.