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

The appellant having been selected by the Special Recruitment Board as an Emergency Recruit from the Open Market, was appointed to the Indian Administrative Service on August 7, 1950 and allocated to the Orissa cadre. He was born on January 7, 1950, and joined the Editorial Staff of the Civil &Military Gazette, Lahore, towards the end of 1938. He continued to serve the Civil &Military Gazette upto January 7, 1943 when he joined the Army. During the Second World War, he was granted an Emergency Commission in the Army w.e f. March 7, 1943 with the rank of Lieutenant w.e.f. June 3, 1948 but with seniority in that rank w.e.f. September 9,Government of India, Ministry of Home Affairs, New Delhi, by letter dated Jul y 19, 1951, forwarded a statement showing the years of allotment assigned to various officers borne on the Indian Civil Administrative cadre of Orissa. The year of allotment assigned to the petitioner was 19431/2 for purposes of seniority, on the bas is of his particulars as available at that time. On receiving his representation, the Ministry of Defence was requested to furnish information regarding the particulars of his pay and allowances drawn by him during the period December 31, 1944 to Dece mber 31, 1948. As the information furnished by the Ministry of Defence did not tally with those furnished by the petitioner in his application for recruitment to the Indian Administrative Service to the Special Recruitment Board, he was asked to explain the discrepancy between the particulars furnished by him and those furnished by the Ministry of Defence. He was also asked to explain why his seniority should not be calculated on the basis of the information furnished by the Ministry of Defence according to which his year of allotment should have been 1945. On receiving his reply, the Government of India, Ministry of Home Affairs, by its letter dated June 11, 1952 decided after due consideration that his protection pay should be treated as part of his pay, the allowances like the Calcutta Compensatory and Lodging allowances etc. were not to be counted as part of his pay. It was further decided that the deficiency of six days in counting t he number of completed years of actual experience could not be condoned. The Government of India, Ministry of Home Affairs, accordingly, fixed the year of allotment of the petitioner to the Indian Administrative Service as 1944.The appellant has had a chequered career. It appears that the petitioner faced heavy weather in the State of Orissa, from where in 1952 he was sent out on deputation to the Government of India i.e. after he had served the State Government of Orissa for a p eriod of little less than two years. Thereafter, he remained continuously on deputation with the Government of India for 12 1/2 years till he reverted to his parent State on April 23, 1965, despite the objection of the then Chief Minister. H e served as Deputy Secretary to the Government of India in the Ministry of Transport from 1955 to 1961. On April 1, 1961 he proceeded on long leave. On his return from leave, the petitioner was appointed as the Salt Commissioner and Managing Dir ector, Hindustan Salt Ltd. with headquarters at Jaipur. He held both the posts until December 23, 1963 and only as Salt Commissioner till April 7, 1964, whereafter he was reverted to the State of Orissa. On his reversion to the State, he was first appointed as Managing Director, State Warehousing Corporation, a post usually held by an Additional District Magistrate, but later on allowed to officiate in the super- time scale as Revenue Divisional Commissioner, Sambal pur w.e.f. October 24, 1965, by reverting an officer junior to him. While the petitioner was serving as Commissioner of Land Reforms, Orissa, a prosecution was launched against him on November 24, 1967 u/s. 5(2) read with s. 5(1) (e) of the Preventi on of Corruption Act, 1947, on a charge of having assets to the tune of Rs 3, 29, 476.90 disproportionate to his income. There was a search of his house at Cuttack on and after November 27, 1967, and he was placed under suspension by the Government of Orissa on November 28, 1967 under Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955. Eventually, the prosecution ended in an acquittal. The petitioner was compulsorily retired by the Government on June 9, 1971. On September 1, 1977, the State Government after the order of acquittal, issued an order directing that the period from November 29, 1967 i.e. the date of suspension, till June 9, 1971, i.e., the date of his retirement, shall be treated as period sp ent on duty. It also made consequential directions in the matter of pay and allowances, treating him in the super-time grade from November 29, 1967 to April 24, 1968 and, thereafter in the selection grade, from April 25, 1968 till June 9, 1971.The questions sought to be raised by the appellant who appeared in person, are no doubt of a wide and general importance. The question still remains whether one of them, i.e., regarding the year of allotment need or could be decided at all. Three questions arise for determination on his submissions: First, whether the Court has the jurisdiction or the power to make a direction requiring the Government of India, to re-fix the year of allotment of the petitioner as 1942 instead of 1944 as determined, respecting his seniority in the Indian Administrative Service, from which he has retired; secondly, whether the Fundamental Rules applied to the petitioner, and if so, whether he was entitled under F.R. 49 for the period from September 11, 1961 to December 23, 1963 during which he simultaneously held both the posts of the Salt Commissioner and the Managing Director, Hindustan Salt Ltd. with headquarters at Jaipur in the State of Rajasthan, to the full s alary of one post and additional salary upto a maximum of 50% of the second post, which salary has been denied to him; and thirdly, whether the Next Below Rule implied in F.R. 30 was applicable to the petitioner while he was serving in connection with the affairs of the Union. inasmuch as his junior in the Orissa cadre, Shri V.V. Anantkrishnan was appointed in the super-time scale on July 24, 1962 and he was thus entitled to the benefit of the same and had to be placed in th e super-time scale w.e.f. July 24, 1962 to June 9, 1971, i.e., the date of histhe whole structure of this argument has no realUnion of India and the State of Orissa filed counter-affidavits and denied the petitioners right to relief on any of theits elaborate judgment, the High Court carefully considered all the aspects and took the view that the considered decision of the Government of India, Ministry of Home Affairs, on the representation of the petitioner reached after due consideration, cannot be interfered with. They had decided not to condone the deficiency of six days in counting the number of completed years of actual experience, nor take into account compensatory allowance like Calcutta Compensatory allowance and the lodging allowance, in calculating his pay, for determining the year of allotment. Further, the High Court observed that the failure of the petitioner to explain the discrepancy between the particulars as furnished by him and those furnished by the Ministry of Defence, his failure to produce any records to show what the information of the Ministry of Defence was or even the reply that he had ultimately sent to the Government of India in trying to explain the discrepancy, coupled with the fact that he had neither produced the impugned order of the Government of India fixing 1944 as the year of allotment, nor had he furnished the details of hi s pay and allowances from time to time in respect of the period in question, were fatal to the petitioners case. It also observed that in the absence of any good reason being shown to justify intervention by the Court in the exercise of its writ jurisdiction, the contention regarding the year of allotment cannot be accepted.The High Court also held in the alternative, that the Government of India had arrived at the correct year of allotment in respect of the petitioner. In deter mining the number of completed years in the N formula, the Government was not duty bound under Rule 3 to relax the same, and its refusal to condone the deficiency of six days, it could not be said that the Government had not dealt with the case in a just and equitable manner. In its view, the benefit claimed by the petitioner, to say the least, would be in direct contravention of the requirement that no fraction of a year was to be taken into account. On a proper reading of the N formula, it was not possible to read into the same the imposition of a duty on the Government to relax the requirements in appropriate cases, nor would the Government be justified in making a departure from the plain meaning of the instructions in a particular case, merely on the ground of hardship. According to the High Court, the word pay in the context of the relevant Rules and Instructions, included only such allowances as were intended to form an addition to pay and not compensatory allowances like Calcutta City Allowance and Lodging Allowance etc., i.e., allowances which were essentially compensatory in character and were intended to be reimbursed to the Government servant for the expenditure incurred by him in the course of his duty and, therefore, they could not be taken to form part of pay as referred to in the instructions. It lastly held that it was not disputed before it with regard to the applicability of the Next Below Rule, that promotion t o a post in super- time scale involves an element of selection and not mere seniority, and that there was nothing to show that the Government of India ever failed to apply their mind to the case of the petitioner in respect of his claim t o the benefit of the Next Below Rule, nor was it argued before it that the Government of India acted mala fide or in an arbitrary manner. From the language of the clarificatory letter of the Secretary of State for India in Council, dated April 2, 1947, it was clear that no Officer can claim as of right promotion to a post carried in super-time scale under the Next Below Rule. It merely embodies the guiding principles governing promotion to such post which involves an element of selection and not mere seniority.

Court's reasoning:
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.