Nityanand Sinha v. State Of Bihar — 1981 DIGILAW 99 (PAT)

Judgment S.K.Jha, J. 1. In this application under Article 226 of the Constitution of India the petitioner-Nityanand Sinha-an officer of Indian Administrative Service (hereinafter to be referred to as the I.A.S. for the sake of brevity) has prayed for an appropriate writ, order or direction to quash the order of the Government of India (respondent No. 2) communicated to the petitioner by annexure 1 and for a further writ, order or direction to be issued to respondent No. 2 to fix the seniority of the petitioner by allotting him the year 1968 in accordance with the relevant rules to be dealt with hereinafter. By the order as contained in annexure 1, the year of allotment assigned to the petitioner is 1973 whereas the petitioner claims that his year of allotment to the I.A.S. cadre legally should be 1968. Although learned Counsel for the parties have dragged on the hearing of this case for quite a number of days, the point involved, to my mind, is neither a complicated nor a vexed one. 2. The facts relevant for the disposal of this application may be stated thus. The case of the petitioner is that respondent No. 2 (the Government of India) has fixed the seniority of the petitioner in the I.A.S. cadre as communicated to him in letter No. 13388 dated the 12th of July, 1978 by the under Secretary to the Government of Bihar, respondent No. 1, wherein the petitioner has been assigned 1973 as the year of allotment in that cadre placing him above one Sri Prakash Keshav, a regular recruit of 1974, and below Sri Atul Krishna Biswas (respondent No. 58) a regular recruit of 1973, in the seniority list of Bihar. It is alleged that the seniority of the petitioner in the I.A.S. cadre has been fixed by ignoring the period of his continuous afficiation in senior posts after inclusion of his name in the Select List and thus respondent No. 2 has determined the petitioners seniority to his prejudice and disadvantage by acting in violation of the provisions of Rule 3(3)(b) of the I.A.S. (Regulation of Seniority) Rules, 1954 (hereinafter to be referred to as the Seniority Rules). The petitioner was appointed to the State Civil Service on 5th February, 1951. He was appointed as an Additional District Magistrate/Deputy Secretary to the State Government on 15th January, 1962. The petitioner was appointed to the State Civil Service on 5th February, 1951. He was appointed as an Additional District Magistrate/Deputy Secretary to the State Government on 15th January, 1962. His name was included in the Select List approved on 6th April, 1973. He was appointed to the cadre post after inclusion of his name in the Select List on 26th April, 1973. He had to his credit a continuous officiation in senior posts of Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Bhagalpur, District Magistrate, Madhubani, and Director, Panchayati Raj, Bihar, from 26th April, 1973 upto the date of notification No. 14015/30/75-A. I.S. (I) dated 29-10-1977 appointing him by promotion to the Indian Administrative Service on 29th October, 1977. Ever since 26th April, 1973 till the date of his appointment to the Indian Administrative Service on 29th October, 1977 he continuously officiated in senior posts as defined under Rule 2(g) of the Seniority Rules. la the supplementary affidavit filed on behalf of the petitioner it has been clearly specified that after inclusion of his name in the Select List the petitioner was appointed to the cadre post of Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Bhagalpur, by the State Governments notification No. 2934 dated 4th April, 1973 and the petitioner joined this post on 26th April, 1973. While holding the said office, the petitioner was appointed to another cadre post, namely, the District Magistrate of Madhubani by a notification of respondent No. 1 bearing number 10425 dated 14th June, 1975. Again while holding the post of District Magistrate, Madhubani, he was appointed to the cadre post of Director of Panchayati Raj by State Governments (respondent No. 1) notification No. 12854 dated 13th July, 1977 and while he was still holding this post, he was, as already stated above, appointed to the Indian Administrative Service on 29th October, 1977. These appointments were duly reported by the State Government to the Government of India from time to time as prescribed in Rule 9 of the I.A.S. (cadre) Rules, 1954 (hereinafter to be referred to as the Cadre Rules). These appointments were duly reported by the State Government to the Government of India from time to time as prescribed in Rule 9 of the I.A.S. (cadre) Rules, 1954 (hereinafter to be referred to as the Cadre Rules). The report for the half-year ending 30th September, 1973 was sent to the Government of India in which the petitioners name was mentioned against serial No. 11 of the report indicating his officiation in the cadre post of Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Bhagalpur, Similarly, half-yearly reports were sent for the half-years ending 31st March. 1974, 30th September, 1974. 3lst March 1975 and 30th September, 1975 wherein the petitioners name was mentioned against serial No. 10 of each of such reports indicating his continuous officiation in cadre posts. The half-yearly report for the half-year ending 31st March, 1976 specified his name against serial No. 4 of the report again indicating his coninuous officiation in the cadre post of District Magistrate, Madhubani. In the half-yearly reports for the half-year ending 30th September, 1976 and 31st March, 1977 the petitioners name was mentioned against serial No. 3 showing his continuous officiation in the cadre post of District Magistrate, Madhubani. In the last relevant half-yearly report for the half year ending 30th September, 1977 also the petitioners name was noted against serial No. 2 indicating his continuous officiation in the cadre post of Director of Panchayati Raj of the State Government, respondent No. I. The Government of India (respondent No. 2), which considered these reports from time to time, did not see any objection to any of these appointments. And. yet, to come back to the petition as originally filed, the petitioner has asserted that the Central Government has assigned the year 1973 as the year of allotment to him. The seniority of a promoted officer has got to be fixed according to the statutory rules with special reference to Rule 3(3)(b) of the Seniority Rules mentioned above. The petitioner claims that according to the rules referred to above he should be allotted the year 1968 and be placed above one Sri Pratyush Sioha, (respondent No. 3) a regular recruit of 1969, who started continuous officiation in a senior post from 2nd July, 1973. The petitioner claims that according to the rules referred to above he should be allotted the year 1968 and be placed above one Sri Pratyush Sioha, (respondent No. 3) a regular recruit of 1969, who started continuous officiation in a senior post from 2nd July, 1973. Respondent No. 2 has fixed the seniority of the petitioner by ignoring the period of his continuous officiation in the senior posts in the I.A.S. cadre from 26th April, 1973 upto the date of his appointment to the Indian Administrative Service on 29th October, 1977, The said year of allotment has been assigned to him and some others by the order as contained in annexure 1 which is impugned. The petitioner has suffered in status and consequential benefits emanating therefrom as a result of this arbitrary decision of respondent No. 2 and has been deprived of his rightful place in the I.A.S. cadre against the provisions of such rules. The petitioner made a representation to respondent No. 2 which was rejected as communicated to him by the Special Secretary to Government, Personnel and Administrative Reforms Department, in his letter No. 1611 dated 7th February, 1980. 3. The State of Bihar, respondent No. 1, had not chosen to file any counter-affidavit till after the conclusion of the submissions made by learned Counsel for the petitioner. After the arguments on behalf of the petitioner were concluded or a little later, an oral prayer was made by the learned Advocate-General for respondent No. 1 to give him an opportunity to file a counter affidavit, which was rejected by us by an order dated 24th March, 1981, giving detailed reasons therein. Therefore, the facts as stated by the petitioner have been admitted by respondent No. 1 by non-traverse according to the well settled principles of pleadings. 4. The only other relevant counter-affidavit which has been filed is that on behalf of the Union of India, respondent No. 2. The facts asserted by the petitioner have not been controverted at all. All that is said in the counter-affidavit of respondent No. 2, in paragraph 4 is that the officiation of the petitioner in a cadre post from 26th April, 1973 to 31st March, 1974 was not approved by the Central Government because the State Deputation Reserve was over-utilised. The facts asserted by the petitioner have not been controverted at all. All that is said in the counter-affidavit of respondent No. 2, in paragraph 4 is that the officiation of the petitioner in a cadre post from 26th April, 1973 to 31st March, 1974 was not approved by the Central Government because the State Deputation Reserve was over-utilised. Again the cadre officiation of the petitioner from 1st April, 1974 to 22nd July, 1975, was not approved by respondent No. 2 because, officers, who were senior to him in the Select List, were not holding I.A.S. cadre posts and, thus, the appointment of the petitioner to the cadre post violated regulation 8 of the I.A.S. (Appointment by Promotion) Regulation, 1955 (hereinafter called the Regulation). The cadre officiation of the petitioner was approved from 23rd July, 1975 to 13th November, 1975 but beyond that date till the date of his appointment to the Indian Administrative Service on 29th October, 1977 the cadre officiation by the petitioner was not approved by respondent No. 2 on account of over-utilisation of the State Deputation Reserve. To state it shortly, the case of respondent No. 2 is that the petitioner cannot get the benefit of his continuous officiation as it had not the seal of approval of the Union of India, not that it had issued any direction to respondent No. 1 in this regard. It has been further submitted in paragraph 10 of the counter affidavit that unless the officiation in the I.A.S. cadre posts is approved, the same cannot be counted for the purpose of determination of either seniority or year of allotment. In paragraph 18 of the counter-affidavit of respondent No. 2, it has been reiterated by way of submission that only continuous officiation in a cadre post prior to the appointment to the Indian Administrative Service, which is approved under Rule 9 of the Cadre Rules of 1954, is counted for the purpose of seniority under Rule 3(3)(b) of the Seniority Rules of 1954, and since the petitioner had no approved continuous officiation to his credit prior to his appointment to the Indian Administrative Service, his year of allotment was reckoned from the date of appointment to the Indian Administrative Service itself. It will thus be seen that the question of fact with regard to the continuous officiation of the petitioner has not been denied even by respondent No. 2 and all that has been said on its behalf is by way of submission on questions of law-that factual continuous officiation has no bearing upon the issue. The continuous officiation to be legal has to fulfil two conditions; (i) the approval of the Central Government and (ii) non-over-utilisation of the State Deputation Reserve. These are the only grounds in the counter-affidavit on which the petitioners claim is sought to be countered. 5. A rejoinder to this counter-affidavit has been filed by the petitioner showing that there had been no over-utilisation of the State Deputation Reserve and facts and figures in detail have been given therein. But I do not think that question is relevant for the determination of the questions of law involved on the admitted facts although it must be said that the statistics given in the rejoinder of the petitioner to the counter-affidavit of respondent No. 2 have not been said to be wrong even during oral submissions. 6. The admitted facts, therefore, bring us to the question of the legal interpretation of the relevant rules and regulations which I shall deal with presently. As has already been pointed out above, the admitted fact is that the petitioner has been continuously officiating in senior posts in the cadre as . defined in Rule 2(g) of the Seniority rules since the 26th of April, 1973, till the date of his appointment to the I.A.S. on the 29th of October, 1977. Relying upon Rule 3(3)(b) of Seniority Rules, learned Counsel for the petitioner submitted that year of allotment, which ought to have been assigned to the petitioner, should be 1968 above the year of allotment assigned to Sri Pratyush Sinha (respondent No. 3), a regular recruit of 1969. Rule 3(3)(b) of the Seniority Rules mentioned above runs thus- 3. Relying upon Rule 3(3)(b) of Seniority Rules, learned Counsel for the petitioner submitted that year of allotment, which ought to have been assigned to the petitioner, should be 1968 above the year of allotment assigned to Sri Pratyush Sinha (respondent No. 3), a regular recruit of 1969. Rule 3(3)(b) of the Seniority Rules mentioned above runs thus- 3. (3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be- (b) where the officer is appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules, the year of allotment of the junior-most among the "officers recruited to the Service in accordance with Rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former; Provided that the year of allotment of an officer appointed to the Service in accordance with Sub-rule (1) of Rule 8 of the Recruitment rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service in accordance with Rule 7 of these rules so started officiating, shall be determined ad hoc by the Central Government in consultation with the State Government concerned; Provided further that an officer appointed to the Service after the commencement of these rules in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Administrative Service (Appointment by Promotion) Regulations framed under Sub-rule (1) of Rule 8 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with Commission. Explanation 1.-An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement; Explanation 2.-An officer shall be treated as having officiated in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstance. Learned Counsel for the petitioner submitted that on a true interpretation of the rule, extracted above, the petitioner having been continuously officiating in a senior cadre post since 26th April, 1973, he should have been assigned the year of allotment to the I.A.S. as 1968. Learned Senior Standing Counsel for the Union of India, respondent No. 2, however, submitted that the continuous officiation must be legal and there were two infirmities in that continuous officiation of the petitioner to a cadre post, namely, that the approval of the Central Government in consultation with the Union Public Service Commission was not accorded and, secondly, that officers senior to the petitioner had not been posted to the cadre posts. 7 To deal with the second objection of the learned Counsel for the Union of India, respondent No. 2, suffice it to say that officiation in a cadre post of a person junior in the Civil Service of a State is wholly immaterial and irrelevant. If authorities be needed in this connection, reference may be made to the case of Harjeet Singh V/s. Union of India -- . Although that case was concerned with the interpretation of the Indian Public Service (Regulation of Seniority) Rules, 1954 and Rule 3(3)(b) thereof, the provisions of that rule are mutatis mutandis the same as the rule with which we are concerned and the rules are in pari materia. Although that case was concerned with the interpretation of the Indian Public Service (Regulation of Seniority) Rules, 1954 and Rule 3(3)(b) thereof, the provisions of that rule are mutatis mutandis the same as the rule with which we are concerned and the rules are in pari materia. It has been specifically laid down by the Supreme Court in Harjeet Singhs case that Rule 3(3)(b) as well as Rule 4(4) throw up the date of continuous officiation of an officer in a cadre post as the most important factor both for the purpose of assignment of year of allotment and for purposes of assignment of seniority, For the purpose of assignment of year of allotment, the date of continuous officiation in a senior post is the only relevant factor while for the purpose of assignment of seniority, first, the date of continuous officiation in a senior post, than the date of appointment to the Service if the date of commencement of continuous officiation in a senior post of more than one officer is the same and finally, the order in Select List if the date of appointment is also the same, are the several relevant factors in that order. That is not the case here. We are not concerned with officers holding the senior cadre posts on the same date. We are here concerned merely with regard to the continuous officiation of the petitioner in a senior post in the cadre as defined in Rule 2(g). It has been further observed in that case by the Supreme Court that the order in the Select List is irrelevant for the purpose of determining the year of allotment and is relevant in determining the seniority only if the year of allotment of the officers is the same and their date of appointment is also the same. That is also not the case at hand. The fact then remains that the petitioners date of continuous officiation shall be treated as 26-4-1973. It has further been held in Harjeet Singhs case that though under the Regulations the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List is according to seniority in the State Service and not according to merit and ability. It has further been held in Harjeet Singhs case that though under the Regulations the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List is according to seniority in the State Service and not according to merit and ability. Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Service takes over and the names of officers are arranged in the order of that seniority. The benefit of continuous officiation in a senior post cannot be denied to an officer appointed to the Indian Police Service, which corresponds to the Indian Administrative Service, merely on the ground that an officer senior to him in the State Police Service had not so continuously officiated. Even assuming that members of the State Civil Service senior to the petitioner were not assigned any duties of an office belonging to senior cadre as defined under Rule 2(g) of the Seniority Rules, the fact remains that the petitioner had been so assigned the duties to officiate in a cadre post within the meaning of the rule as far back as on 26th April, 1973. Howsoever innocuous the orders of the State Government, respondent No. 1, may have been, not to assume that petitioners merit did not weigh in their mind, the law does not detract from the provision that an officer continuously officiating in a cadre post to the detriment of his seniors should not get the approval of the Central Government, respondent No. 2. Nor is it asserted that respondent No. 2 ever refused to accord approval or send any direction contrary to the interest of the petitioner, In the case of Lalit Vijoy Singh V/s. Union of India 1974 (1)S.L.R. 692, Untwalia, C.J., speaking for the Bench, of which I was a member, held that for counting the period of officiation in the senior post for the purpose of assignment of the year of allotment under Rule 3(3)(b) of the Seniority Rules, the officiation must be legal and valid. If the officiation was illegal and invalid then it could not be counted for the purposes of fixation of the year of allotment. If the officiation was illegal and invalid then it could not be counted for the purposes of fixation of the year of allotment. But merely because there was some irregularity in the officiation, the Court will not be justified in setting aside the order of fixation of allotment year of a promotee. So also it was held by a Bench of this Court in the case of Bhttwaneshwar Prasad V/s. State of Bihar 1976 (2) S.L.R. 307, that officiation of an officer in a senior post after inclusion of his name in the Select List must be counted for determination of the year of allotment. The positive approval of the Central Government in this regard is wholly immaterial. Unless there is a direction to the contrary or the Central Government refuses by a positive order to accept the officiation of an officer of the State Civil Service in a senior cadre post as defined in Rule 2(g) of the Seniority Rules, such officiation by the officer concerned cannot be held to be invalid. 8. This then brings us to the next question with regard to over-utilisation of State Deputation Reserve by the State Government. This question was mooted in quite a number of cases, but was also turned down as being devoid of merit. As has already been pointed out above, the petitioner in his rejoinder to the counter affidavit has specifically asserted that there has been no over-utilisation of the deputation reserve. That fact has not been controverted. Apart from that, as a question of law it does not stand to reason as to why if the State Government think it proper in the fitness of things to assign an officer of the State Civil Service to officiate in a senior cadre post as defined in Rule 2(g) of the Seniority Rules, he should be deprived of the benefits of the relevant rules to give him the year of allotment to which he is entitled under such rules. In the cases of Sri Sahdeo Ram. I.P.S., and Anr. V/s. The Union of India and Ors. and Sri Akhilendra-Nath Trivedi and Anr. V/s. The Union of India and Ors. respectively registered as C.W.J.C. Nos. 5065 of 1978 and 1535 of 1979 both decided by a common judgment dated 5th December, 1980, and in the case of Sri Brijnandan Sinha, I.A.S. V/s. The State of Bihar and Ors. V/s. The Union of India and Ors. and Sri Akhilendra-Nath Trivedi and Anr. V/s. The Union of India and Ors. respectively registered as C.W.J.C. Nos. 5065 of 1978 and 1535 of 1979 both decided by a common judgment dated 5th December, 1980, and in the case of Sri Brijnandan Sinha, I.A.S. V/s. The State of Bihar and Ors. C.W.J.C. No. 2266 of 1976 decided on 7th August, 1978, two Bench decisions of this Court have held that over utilisation of officers in cadre post in deputation reserve has got absolutely no bearing on the question of their absorption in the I.A.S. or the year of allotment which ought to be assigned to them. 9. Learned Senior Standing Counsel for the Union of India tried to catch at the last straw in a sinking boat by submitting that the petitioner did not give details of his date of joining on one senior post or the other belonging to the cadre and the assertions made by the petitioner were vague. It was further submitted that the onus to prove discrimination against the petitioner lay on him and, therefore, it was necessary for him to give detailed statement of dates with regard to each senior post that he was holding from 26th April, 1973. He relied upon a number of decisions to show that where an infraction of Article 14 of the Constitution of India was impugned, the onus lay heavily upon the person who challenged a discriminatory treatment as against him. Therefore, the petitioner ought not to be held to have officiated in the cadre post as defined in Rule 2(g) of the Seniority Rules. This is an argument in desperation. There is a categorical statement in the petition and there is absolutely no vagueness or ambiguity in such statement in paragraph 9 of the petition that the petitioner has been holding senior cadre posts continuously since 26th April, 1973, and there is no denial of this fact. A fact which is admitted need not be proved this is an elementary principle of pleadings. 10. Learned Senior Standing Counsel for respondent No. 2 then invited our attention to a decision of the Supreme Court in the case of D. D. Suri V/s. Union of India and Anr. A fact which is admitted need not be proved this is an elementary principle of pleadings. 10. Learned Senior Standing Counsel for respondent No. 2 then invited our attention to a decision of the Supreme Court in the case of D. D. Suri V/s. Union of India and Anr. -- , for the purpose of bringing home the point of law that normally the decision of the Government of India assigning a year of allotment to a particular officer under Rule 3 of the Seniority Rules or in accordance with the orders and instructions issued by the Central Government in that behalf before the commencement of these rules is final and cannot be interfered with by the Courts under Article 226 of the Constitution. Learned Counsel for respondent No. 2 has. perhaps, not noticed what the Supreme Court has said categorically and unambiguously in the case of D. D. Suri. That decision clearly lays it down that the decision of the Government of India can be interfered with by the High Court under Article 226 if such decision was capricious or arbitrary or in breach of the rules and the principle will apply to the assignment of a year of allotment. As I have already pointed out above, the decision of the Government of India, respondent No. 2, is in breach of the rules as mentioned above, which does not preclude this Court from exercising its powers under Article 226 of the Constitution. 11. The Learned Senior Standing Counsel for respondent No. 2 also invited our attention to the unreported Bench decision of this Court in Brijendra Sinhas case to show that the petitioner must prove that there has been a compliance with Rule 9 of the Cadre Rules, 1954 before he could get the advantage of his continuous officiation. That case is of no help to the respondents. In that case there was a categorical assertion that the period of continuous officiation "was not approved in consultation with the Commission as required under Rule 9(4) of the Cadre Rules". There is no such assertion here. Even if that be a fact, we had given an opportunity to the learned Senior Standing Counsel for the Union of India to produce the entire records with regard to the petitioner for the production of which he had made a prayer himself on 26th March, 1981. There is no such assertion here. Even if that be a fact, we had given an opportunity to the learned Senior Standing Counsel for the Union of India to produce the entire records with regard to the petitioner for the production of which he had made a prayer himself on 26th March, 1981. Yet the learned Counsel did not produce the relevant records lying with respondent No. 2 and made a further prayer for adjournment on 14th April, 1981 which we rejected on that date recording detailed reasons thereof in the order-sheet. Therefore, it cannot be said nor can it be inferred from the facts on record that the Union of India sent the petitioners case for approval to the Union Public Service Commission and the Commission did not find its way to approve the same and he rejected his officiation. There is, thus, no merit in this contention of the learned Senior Standing Counsel also. 12. In the result, therefore, I am constrained to allow this application and quash the order as contained in annexure 1 in so far as the petitioner is concerned, and direct that a writ of mandamus be issued to respondents 1 and 2 for fixing the seniority of the petitioner keeping in view that the date since when he started his continuous officiation in senior posts of I.A.S. cadre was 26th April, 1973 and to fix his seniority accordingly in the I.A.S. cadre on or before the 30th of September, 1981 since the petitioner is going to retire as we were informed at the Bar, sometime early in 1982. The application is allowed accordingly with the directions mentioned above. There shall be no order as to cost. Chaudhary Sia Saran Sinha, J. 13 I agree.