GANGBIR SINGH v. UNION OF INCITE — 1982 DIGILAW 17 (HP)

JUDGMENT V. D. Misra, C. J.—By this writ petition Gangbir Singh, an officer of the Indian Police Service (I. P. S. or Service), challenges his year of allotment. 2. Though there was an Indian Police Service Cadre, the posts of Superintendents of Police of Himachal Pradesh were not included in the Cadre till 1962. Before the inclusion of these posts in the Cadre, these were filled on officiating basis by selections made by a Departmental Promotion Committee set up by the Central Government m consultation with the Union Public Service Commission (referred to as the Commission). The petitioner, who was working as Deputy Superintendent of Police since 18th April 1955, was selected for promotion to the grade of Superintendent of Police. The selection was duly approved by the Commission. The petitioner was, therefore, appointed "as officiating Superintendent of Police, Border" (Annexure-B). He took status and responsibility to those of Superintendents of Police of Delhi included in Schedule III to the Indian Police Service (Pay) Rules, 1954 (referred to as the Pay Rules) by an order dated 15th October, 1958. 3. The petitioner continued to work as Superintendent of Police, Border, till 10th May, 1961. Ho held the post of Superintendent of Police, Mandi, from 18th May, 1961 to 14th May, 1963. Thereafter he went on deputation with the Ministry of External Affairs and was appointed as Area Organiser, S. S. B., Mahasu. He held this post from 16th May, 19o3 to 31st October, 1965. On 9th July, 1965 he was brought on the Select List of the Delhi and Himachal Pradesh Police officers suitable for promotion to the Service in accordance with Indian Police Service (Appointment by Promotion) Regulations. He was appointed to the Indian Police Service on 15th July, 1966 and is now working as Divisional Organiser, S. S. B., Punjab, Himachal Pradesh, Jammu and Ladakh Division, Simla. By a letter dated 23rd August, 1968 (Annexure-1) the petitioner was conveyed the decision of the Government of India, Ministry of Home Affairs, dated 1st August, 1968 fixing 1961 as his year of allotment under Indian Police Service (Regulation of Seniority) Rules, 1954. The petitioner represented against this decision. By an order dated 12th September, 1973 (Annexure-J) the petitioner was re-allotted to the year 1960. The petitioner challenged the re-allotment and his representation was rejected on 15th July, 1975 (Annexure-K). The petitioner represented against this decision. By an order dated 12th September, 1973 (Annexure-J) the petitioner was re-allotted to the year 1960. The petitioner challenged the re-allotment and his representation was rejected on 15th July, 1975 (Annexure-K). A memorial dated 7th July, .978 under Rule 25 of All India Services Disciplne and Appeal) Rules, 1965 was submitted by the petitioner to the President of India. Since the petitioner did not get any reply to his memorial even after waiting for more than three years, the petitioner filed the present writ petition in September, 1981. When the matter came up for admission, it was impressed upon the Union of India to take a decision on the memorial within the next six weeks. When the matter again came up in November, 1981 the Court was informed that the Central Government has taken a tentative decision revising the seniority of the petitioner and assigning him 1935 as the year of allotment but no final decision could be taken unless the officers affected by the same were heard. Ultimately on 23rd February, 1982 during the pendency of the writ petition, the petitioners memorial was rejected. 4. It is Rule 3 of Indian Police Service (Regulation of Seniority) Rules, 1954 (referred to as the Seniority Rules) which deals with the assignment of the year of allotment. Every officer has to be assigned the year of allotment in accordance with the provisions contained in this rule. This rule has undergone some changes but we are concerned with the rule as it stood before its amendment in April, 1967. The relevant part of this rule may be extracted with advantage: 3. Assignment of the year of allotment.—(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule. This rule has undergone some changes but we are concerned with the rule as it stood before its amendment in April, 1967. The relevant part of this rule may be extracted with advantage: 3. Assignment of the year of allotment.—(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule. (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 Rule 9 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 further that an officer appointed to the Service after the commencement of these rules in accordance with Rule 9 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 Police Service (Appointment by Promotion) Regulations framed under Rule 9 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission." 5. Now it is clause (g) of Rule 2 of Seniority Rulss which defines senior pot. The definition as it stood before its amendment in April, 1967 was : "(g) senior post means a post included under item 1 of each Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 195:, framed under sub-rule (1) of Rule 4 of the Indian Police Service (Cadre) Rules, 1951, or any post declared equivalent thereto by the State Government concerned 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 re pact 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." 6. It is thus obvious that where an officer is appointed to the Service by promotion and wants to take advantage of officiation before his name came on the Select List, he will have to satisfy the following conditions. Firstly, ht should have officiated in a senior post, secondly, this officiation should be continuous till the date of inclusion of his name in the Select List, and thirdly, this officiation must b; approved by the Central Government in consultation with the Commission. 7. The first Question, therefore, which arises for determination is whether the petitioner was officiating in a senior post before his name was included in the Select List? By a letter dated 15th October, 1958 (Annexure-C) the President of India equated the posts of Superintendent of Police in Himachal Pradesh with those of Superintendent of Police, Delhi. The relevant part of this letter reads: "I am directed to say that the President has been pleased to decide that the posts of Superintendent of Police in Himachal Pradesh should be equated in status and responsibility to those of Superintendents of Police Delhi included in Schedule-III to the Indian Police Service (Pay) Rule, 1954." It may be remembered that at that time Himachal Pradesh was a Union Territory. It is contended by the petitioner that the effect of this decision was to declare the posts of Superintendent of Police as senior posts in terms of the aforementioned Rule 2 (g). The stand taken by the Union of India, which is adopted by the other respondents, may better be reproduced verbatim. The relevant part of para 4 of the return of Union of India reads thus: "It is however, pointed out that the post of Superintendent of Police in Himachal Pradesh was equated in status and responsibility to those of Superintendents of Police, Delhi included in Schedule-Ill to the Indian Police Service (Pay) Rules, 1954 to enable the Indian Police Service Officers, who went on deputation to the Himachal Pradesh Administration and joined as Superintendents in Himachal Pradesh, to draw pay in the Indian Police Service Senior Scale. It may be pertinent to mention that the post of Superintendent of Police, Himachal Pradesh was not equated to a senior post under Rule 2 (g) of the Indian Police Service (Regulation of Seniority) Rules, 1954, as it existed prior to its amendment on 22-4-1967. As such, it was not a senior post for the purpose of IPS (Regulation of Seniority) Rules, 1954." It is Rule 9 of the Indian Police Service (Pay) Rules, 1954 which deals with the pay of the members of the Service. We may now read this rule: "9. Pay of members of the Service appointed to posts not included in Schedule III.—(1) No member of the Service shall be appointed to a post other than a post specified in Schedule III, unless the State Government concerned in respect of posts under its control, or the Central Government in respect of posts under its control, as the case may be, makes a declaration that the said post is equivalent in status and responsibility to a post specified in the said Schedule. (2) The pay of member of the Service on appointment to a post other than a post specified in Schedule III shall be the same as he would have been entitled to, h id he been appointed to the post to which the said post is declared equivalent. (3) For the purposes of this rule, post other than a post specified in Schedule III includes a post under a body incorporated or net, which is wholly or substantially controlled by the Government. (4) Notwithstanding anything contained in this rule, the State Government concerned in respect of any posts under its control, or the Central Government in respect of any posts under its control, may, for sufficient reasons to be recorded in writing, where equation is not possible, appoint any member of the Service to any such post without making a declaration that the said post is equivalent in status and responsibility to a post specified in Schedule III. (5) A member of the 4Service on appointment to a post referred to in sub rule (4), in respect of which no pay or scale has been prescribed, shall draw such rate of pay as the state Government, in consultation with the Central Government in the case of a post under the control of the State Government, or as the Central Government, may, after taking into account the nature of duties and responsibilities involved in the post determine. (6) A member of the Service on appointment to a post referred to in sub-rule (4), in respect of which any pay or scale of pay has been prescribed, shall draw where the pay has been prescribed, the prescribed pay and where scale of pay has been prescribed, such rate of pay not exceeding the maximum of the scale as may be fixed in this behalf by the State Government, or as the case may be, by the Central Government: Provided that the pay allowed to an officer under this sub-rule and sub-rule (5) shall not at any time be less than what he would have drawn had he not been appointed to a post referred to in sub-rule (4)." 8. Now, what is the effect of the declaration made in terms of Rule 9 (1) It is only to enable the Indian Police Service officers to draw their scales of pay when appointed to a non-cadre post ? Or has it the effect of making the non-cadre post a senior post in terms of the said Rule 2 (g) ? Mr. J. L. Gupta learned counsel for the respondents 3 and 4, contends that whereas posts, specified in schedule III are only those known as senior scale posts, under Rule 2 (g) an ex-cadre post can be declared equivalent to what is known as a junior scale post. Now the Indian Police Service (Cadre) Rules, 1954 by Rule 2 (b) define cadre posts thus: "Cadre post means any of the posts specified is such in the regulations made under sub-rule (1) of rule (4)" (This was the definition before its amendment in May, 1966). Rule 4(1) reads: "4. Now the Indian Police Service (Cadre) Rules, 1954 by Rule 2 (b) define cadre posts thus: "Cadre post means any of the posts specified is such in the regulations made under sub-rule (1) of rule (4)" (This was the definition before its amendment in May, 1966). Rule 4(1) reads: "4. Strength of Cadre.—(I) The strength and composition of each of the cadres constituted under Rule 3 shall be as determined by regulations made by the Central Government ;n consultation with the State Governments in this behalf and until such regulations are made shall be as in force immediately before the commencement of these rules." It is true that by an amendment dated 4th May, 1966 the definition of "cadre post" has been changed and it now reads: "Cadre post means any of the posts specified under item 1 of each Cadre in the schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955." But in our opinion the amendment does not make any material difference. Under item No. 1 various posts are specifically mentioned whereas remaining items, which are uniform for all States, do not specifically mention any post in particular. These items are: "2. Senior posts under the Central Government @ 20% of 1 above ; 3. Posts to be filled by promotion in accordance with Rule 8 of the Indian Forest Service (Recruitment) Rules, 1966; 4. Posts to be filled by Direct Recruitment ; 5. (i) Deputation Reserv. @ 1 5% of 4 above ; (ii) Ad hoc increase to Deputation Reserve ; 6. Leave Reserve @ 11% of 4 above ; 7. Junior posts @ 20% of 4 above ; 8. Training Reserve @ 10% of 4 above," Since we are concerned with rules as were in force on the date of decision in question (Annexure-P) dated l5th October, 1958, we need not look at the present definition. Keeping in view the old definition, we do not find any distinction being made between the so called junior scale of pay and the senior scale of pay. 9. Rule 2 (g) only defines a senior post. Admittedly no mode of declaring the posts equivalent is prescribed by or under this rule. Rule 9(1) of the Pay Rules prohibits the appointment of any member of the Indian Police Service to any post other than the posts specified in Schedule III. 9. Rule 2 (g) only defines a senior post. Admittedly no mode of declaring the posts equivalent is prescribed by or under this rule. Rule 9(1) of the Pay Rules prohibits the appointment of any member of the Indian Police Service to any post other than the posts specified in Schedule III. Evidently this has been done to ensure that the cadre officers do not fall a victim to the whims of the executive and punished by appointments to non-cadre posts. The only exception under which a cadre officer may be appointed to a non-cadre post is where the Central Government or the State Government, as the case may be, makes a declaration that the non cadre post in question is equivalent in status and responsibility to a cadre post. Rule 9 (1) by itself does not guarantee the pay of the cadre officers when appointed to non-cadre posts. It is sub-rule (2) which explicitly guarantees the pay of a cadre officer when appointed to a non-cadre post which is declared equivalent in status and responsibility to a cadre post. Sub-rules 4), (5) and (6) deal with a situation where it is not possible to equate a non-cadre post with a cadre post. Whenever a cadre officer is appointed to a non-cadre post not declared equivalent in status and responsibility to a cadre post, the pay of such officer will be regulated by tub-rules (5) and ((). 10. In R. P. Khanna and others v. S. A. F. Abbas and others, [1972 (I) SCC 784], a somewhat similar question had arisen. The relevant definition of the senior post which came to be considered was as it stood prior to the year 1967, that is when the words "any post declared equivalent thereto by the State Government" were a part of the definition clause. The contention of the Union of India as noticed in para 17 of the judgment was: "............that the declaration contemplated with regard to senior posts mast be a formal order and it was not open to the State to make a retrospective declaration because the rule contemplated approval of such officiation in consultation with the Commission." The court observed : “The basic idea of declaration of post as equivalent to a senior post is that it is treated as a post of equal rank and responsibility. Rule 3 (3) (b) is designed to strike a balance between conflicting claims, when a promotee with the background of a long continuous officiation gets promotion it is in the fitness of things that the period of such officiation is not lost to him The necessary chek is supplied by approval by the Central Government in consultation with the Commission There will be two sources charged with the responsibility of approval of the period of officiation prior to the inclusion of the name in the Select List. "A retrospective declaration that a post is equivalent to a senior post really amounts to declaration of an existing fact. It is that the person who has officiated continuously for a long time is allowed the benefit of a senior post prior to the appointment by promotion of such officer to the cadre of the Indian Administrative Service. Ordinarily, under Cadre Rules a non-cadre officer cannot hold a cadre post excepting for short time of three months and if it is for a longer period not without approval by the Central Government. Therefore, there is no occasion for declaration by the State Government of non-cadre post as equivalent to a cadre post. The question of declaration arises only for the purpose of giving the promotee the benefit of the period of officiation prior to promotion The use f the word deemed in Rule 3(3) (b) of the Regulation of Seniority Rules indicates that the Government has the power to make a retrospective declaration because it is only after promotion that there is any occasion to consider whether the period of officiation prior to promotion will be counted for purposes of seniority. "The harmonious construction of the definition of senior post occurring in the 1954 cadre rules alongwith Rule 3 (3) (b) of the Regulation of Seniority Rules is that the promotee will by a legal fiction obtain advantage of the period of officiation first by the declaration and second by the approval of the Central Government in consultation with the Union Public Service Commission. It is not the declaration but the approval which introduces the legal fiction." (emphasis supplied). In E. P. Royappa v. State of Tamil Nadu and another, [1974 (4) SCC 3], the Supreme Court had an occasion to consider the amplitude of Rule 9 of the Indian Administrative Service (Pay) Rules, 1954. It is not the declaration but the approval which introduces the legal fiction." (emphasis supplied). In E. P. Royappa v. State of Tamil Nadu and another, [1974 (4) SCC 3], the Supreme Court had an occasion to consider the amplitude of Rule 9 of the Indian Administrative Service (Pay) Rules, 1954. (It may be noticed that the rules of the I. A S. and the I. P. S. are pari materia) Bhagwati, J., speaking for the majority, observed : "This Rule is intended to provide a safeguard for the protection of a member of the Indian Administrative Service. Sub-rule (1) enacts that no member of the Indian Administrative Service shall be appointed to a post other than a post specified in Schedule III, or in other words, to a non-Cadre post unless the Government makes a declaration that such non-Cadre post is "equivalent in status and responsibility" to a post specify in the said Schedule, i.e to a cadre post. If the State Government wants to appoint a member of the Indian Administrative Service to a non-Cadres post created by it, it cannot do so unless it makes a declaration setting out which is the Cadre post to which such non-Cadre-post is equivalent in status and responsibility. The making of such a declaration is a sine qua non of the exercise of power under sub-rule (1). It is not an idle formality which can be dispensed with at the sweet will of the Government. It has a purpose behind it and that is to ensure that member of the Indian Administrative Service is not pushed off to a non-Cadre post which is inferior in status and responsibility to that occupied by him. It is not an idle formality which can be dispensed with at the sweet will of the Government. It has a purpose behind it and that is to ensure that member of the Indian Administrative Service is not pushed off to a non-Cadre post which is inferior in status and responsibility to that occupied by him. So far as Cadre posts are concerned, their hierarchy would be known, but a non-Cadre post created by the Government would be stranger in the hierarchy, and that is why sub-rule (1) requires that before appointing a member of the Indian Administrative Service to such non-Cadre post, the Government must declare which is the Cadre post to which such non-Cadre post is equivalent status and responsibility, so that the member of the Indian Administrative Service who is appointed to such non-Cadre post, would know what is the status and responsibility of his post in terms of Cadre posts and whether he is placed in a superior or equal post or he is brought down to an inferior post.........The object of this provision clearly is to ensure that the public services are, in the discharge of their duties, not exposed to the demoralising and depraving effects of personal or political nepotism or victimisation or the vagaries of the political machine. The determination of equivalence is, therefore, made a condition precedent before a member of the Indian Administrative Service can be appointed to non-Cadre post under sub rule (1). It is a mandatory requirement which must be obeyed The Government must apply its mind to the nature and responsibilities of the functions and duties attached to the non-Cadre post and determine the equivalence. There the pay attached to the non-Cadre post is not material." (emphasis supplied). 11. We called upon the learned counsel for the respondents, including the Central Government Standing Counsel, to show us any record where a declaration using the language of Rule 2 (g) for declaring a non-cadre post equivalent to a post in the cadre has been made They have been unable to show any such declaration. In our opinion there could not be such a case. It may be recalled that the language of this rule is "or any post declared equivalent thereto". When does a non-cadre post become equivalent to a cadre post? It becomes equivalent only when it is equal in status and responsibility. In our opinion there could not be such a case. It may be recalled that the language of this rule is "or any post declared equivalent thereto". When does a non-cadre post become equivalent to a cadre post? It becomes equivalent only when it is equal in status and responsibility. Unless it is so, a mere declaration of "equivalency" will not make it equivalent as held in the above mentioned case. We have, therefore, no hesitation in holding that the declaration of equivalence in question is a sufficient declaration to treat the post equivalent in terms of Rule 2 (g) since the main criterion for declaring a post equivalent even under Rule 2 (g) is that it is of the same status and responsibility. It may be noticed that the said declaration does not in terms refers to sub rule (1) of Rule 9 of the Pay Rules but is being accepted to have been made under this rule. 12. The next question now which falls for decision is whether there has been a continuous offication till the date of the inclusion of the petitioners name in the Select List. No., it is not in dispute before us that the petitioner held the post of Superintendent of Police from 7-10 19:8 to 14th May, 1963. He held the post of Area Organiser, S. S. B. Mahasu, from 16th May, 1963 to 31st October, 1965. From 11th May, 1965 to 15th July, 1966 the petitioner held the post of the Superintendent of Police, Anti-Corruption Unit, Himachal Pradesh. The name of the petitioner was included in the Select List on 9th July, 1965 and the posts of Superintendent of Police in Himachal Pradesh were included in the Indian Police Service cadre of then Delhi and Himachal Pradesh with effect from 25th April, 1965 (as is evident from the return of the Union of India. We are not concerned with the posts held by the petitioner after his name had been brought on the Select List. Now the posts held by the petitioner upto 14th May, 1963 being that of Superintendents of Police, which we have determined as senior posts, the question only remains in respect of the post of Area Organiser, S. S. B , Mahasu. 13. Now the posts held by the petitioner upto 14th May, 1963 being that of Superintendents of Police, which we have determined as senior posts, the question only remains in respect of the post of Area Organiser, S. S. B , Mahasu. 13. The post of Area Organiser, S. S. B , Mahasu, was the result of the aftermath of the Chinese aggression when the Government of India created the S. S* B. Organisation. The petitioner was deputed to the Ministry of External Affairs and he was posted as Area Organiser, S. S. B., Mahasu. The State Government issued a certificate dated 30th January, 1964 certifying that but for his deputation to the Ministry of External Affairs, the petitioner would have continued to officiate against the cadre post of I. P. S. The relevant part of this certificate (Annexure-E) reads: "I am directed to state that the Government of India, Ministry of Home Affairs have allowed Shri Gangbir Singh to officiate as Superintendent of Police till he is replaced by an I. P. S. Officer. This Government accordingly certify that Shri Gangbir Singh would have continued to officiate as Superintendent of Police, but for his deputation to the Ministry of External Affairs,......" This state of affairs is admitted by the State of Himachal Pradesh as well as the Union of India. The State Government while sending their comments (Annexure-L-1) in respect of the memorial submitted by the petitioner regarding fixation of his seniority stated: "I am directed to refer to your letter No. 1-15016/14/78, I. P. S. dated the 28th February, 197y on the above subject and to say that the crux of Memorial of Shri Gangbir Singh, I. P. S. is that he has not been allowed the benefit of counting of his officiating service against a cadre post of I. P. S from 7-10-1958- to 8-7-1965 for the purpose of allotment of year of seniority in his favour. The facts of this case are that Shri Gangbir Singh was appointed as S. P. on 7-10-1958 which post was declared by the Government of India vide their letter No. H (P)-l4-540/58, dated the 9th December, 1958 as equal in status and responsibility of those of S. P. in the cadre post of I. P. S. in accordance with I. P. S. (Pay) Rules, 1954 vide annexure G*. ihe appointment of Shri Gangbir Singh against this post was with the prior approval of the Government of India and the U. P. S. C. Shri Gangbir Singh continued as such till the formation of Joint Cadre of I P. S. for U. T. Since Shri Gangbir Singh was officiating as S. P. on the formation of the U. T. Cadre of I. P. S., his officiating against the cadre post was approved by you in consultation with the U. P. S. C. vide your letter No. 8/3/63-DH (S) dated the 21-3-1963 which is at annexure J of the memorial with effect from 25-4-1962 till the availability of members of Joint I. P. S. Cadre from Delhi and H P. or a Select List Officer of the DHANI and H. P. Police Service becomes available. It is a fact that the memorialist was sent on deputation from 16-5-1963 to 31-10-1965 to the S. S. B. Organisation by this Government much against the wishes of the memorialist as the S. S. B. Organisation was to be formed by the Government of India on priority basis immediately after the Chinese Aggression. Therefore, we have given a certificate that Shri Gangbir Singh would have continued to officiate against the cadre post of I. P. S. but for his deputation to the Government of India. The provision of the Government of Indias letter annexure J of the memorial was kept in view by the Government before sending Shri Gangbir Singh to the S. S. B. Organisation. Therefore, the continued officiation from 25-4-1962 of the memorialist is valid. "The basis on which the period of officiation of Shri Gangbir Singh from 7-10-1958 to 8-7-1965 has not been allowed to count towards his seniority is not known to this Government and the Government of India have been rejecting his representation without intimating any reason for its rejection. Therefore, we are not in a position to say as to what are the basis on which you have not allowed to count the officiation period of Shri Gangbir Singh from 7-10-1958 onwards for the purposes of seniority, though admissible under toe rules." However, the Union of India has only added (vide para 6 of the return) that the post of Superintendent of Police when held by a non-Select List officer was not a Cadre post as per orders dated 21-4-1965 issued by the Government of India. A copy of the order dated 21-4-1965 is also annexed to the return. The relevant part of this letter reads : "Subject:—Regulation of Pay of non-I. P. S. non-Select List officers appointed as Superintendents of Police under the Delhi Administration or the Government of Himachal Pradesh. Sir, I am directed to say that the President has been pleased to decide that the posts of Superintendents of Police which are included in the Joint I.P.S. Cadre for Delhi and Himachal Pradesh when not filled by members of the Indian Police Service or Select List officers of the Delhi and Himachal Pradesh Police Service or any other State Police Service, shall be deemed to have been held in abeyance. Non-I.P.S. non-Select List officers appointed to the posts of Superintendents of Police so held in abeyance will be entitled to draw pay in the unrevised scale of Rs. 600-40-1000-1000-1050-1050-1100-1100-1150 and dearness allowance admissible on pay in this scale. These orders shall be deemed to have come into force with effect from 25th July, 1960, the date on which the Joint I. P. S. Cadre for Delhi and Himachal Pradesh was constituted." 14. It is obvious that retrospectively the posts have been held in abeyance when these were not occupied by non-I. P. S. non-Select List officers. 15. It is not disputed before us that there cannot be a retrospective order putting a post in abeyance. Indeed a Division Bench of this Court in Shri Madan Gopal Singh v. The Union of India and another, [ILR 1976 H. P. 162]. held that a retrospective order holding a post in abeyance which post has already been occupied by an officer, cannot be contemplated. The post of Superintendent of Police which had been declared a senior post could not be held in abeyance retrospectively by this order of 21st April, 1965 since it was admittedly not vacant and was held by the petitioner. The order to that extent is bad and has to be quashed. However, this order is good as far as the prospective operation is concerned. In other words, the post could be in abeyance from 21st April, 1965 onwards. 16. What is the effect of the abeyance of the post from 21st April, 1965 to 9th July, 1965 when the petitioners name was brought on the Select List ? However, this order is good as far as the prospective operation is concerned. In other words, the post could be in abeyance from 21st April, 1965 onwards. 16. What is the effect of the abeyance of the post from 21st April, 1965 to 9th July, 1965 when the petitioners name was brought on the Select List ? The effect of the abeyance of this post is that the petitioner will be entitled to draw his pay in the unrevised scale mentioned in the order. In other words, the effect of the order is to reduce the pay of the petitioner during this period. However, since the declaration of equivalence continues, the post of Superintendent of Police held by the petitioner would continue to be equivalent in status and responsibility to the post of Superintendent of Police of Delhi. This period cannot be termed as a break in continuous officiation as submitted by Mr. Gupta. 17. We may at this stage also extract the relevant part of order dated 23rd February, 1982 rejecting the memorial of the petitioner. It reads: "And Whereas the posts of Superintendents of Police, Himachal Pradesh were included in the I. P. S. Cadre of the then Delhi and Himachal Pradesh Cadre with effect from 25-4-1952. These posts were declared equivalent in status and responsibility to those of Superintendents of Police, Delhi, included in Schedule-III to the Indian Police Service (Pay) Rules 1954. This declaration is issued to enable the deputationist I. P. S. officers from other States holding such posts, to draw pay in the I. P. S. Senior Scale. The officiation rendered by Shri Gangbir Singh in this post prior to 25-4-1962 could not be taken as officiation rendered in a senior post as these posts were not equated to senior posts under the then existing Rule 2 (g) of the 1. P. S. (Regulation of Seniority) Rules, 1954. The officiation rendered by Shri Gangbir Singh from 25-4-1962 onwards was approved by the Government of India under Rule 9 (4) of the Indian Police Service (Cadre) Rules, 1954, which did not qualify him to get the benefit of this service for the purposes of fixation of his seniority because this period of officiation was not approved by the Government of India under second proviso to Rule 3 (3) (b) of the Indian Police Service (Regulation of Seniority) Rules, J954. Moreover, a decision was taken by the Gevernment of India vide letter No. 9/J/64-DH (S) dated 21-4-1965 to the effect that the posts of Superintendent of Police, Himachal Pradesh, when held by a non-Select List officer would be deemed to be held in abeyance. This decision was given effect from 25-7-1960." As already held the posts could not be held in abeyance retrospectively and, therefore, the last part of this order making a reference to the introspective operation has to be quashed. We will now consider other contentions of the respondents in support of this order. 18. It is contended on behalf of the respondent-officers that since the petitioner was appointed as Deputy Superintendent of Police on 18th April, 1955, he was required to complete h years of service before being eligible for promotion to the I. P. S. in terms of Regulation (4) of Indian Police Service (Appointment by Promotion) Regulations, 1955. This regulation, before its deletion in October, 1972, laid down that the cases "of all substantive members of the State Police Service who on the first day of January of that year, had completed not less than 8 years of service (whether officiating or substantive) in a post of Deputy Superintendent of Police" have to be considered. It is thus contended that the petitioner could not be taken to have officiated continuously in a senior post before be became eligible for consideration. We arc afraid that this objection is baseless. The aforementioned Regulation 4 applies only when the name of an officer has to be considered for being put on the Select List. Simply because a person may not be eligible to be placed on the Select List it does not necessarily follow that his officiation on a senior pest is of no avail. The question of considering the period of continuous officiation till ones name is put on the Select List only arises in tern s of Rule 3 of Indian Police Service (Regulation of Seniority) Rules, 1954. The question of considering the period of continuous officiation till ones name is put on the Select List only arises in tern s of Rule 3 of Indian Police Service (Regulation of Seniority) Rules, 1954. Rule 3 (3) (b) lays down: "(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 Rule 9 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 : " In other words, there is no question of a person officiating in a senior post being eligible for being considered for inclusion in the Select List. 19. The Government of India vide its letter dated 21st March, 1963 (Annexure-D) addressed to the Chief Secretary of Himachal Pradesh Administration regarding "Apptt. of Non-I. P. S. Officers to post of Superintendent of Police in Himachal Pradesh" wrote: " I am directed to say that the Central Government in consultation with U. P. S. C. agree under Rule 9 (4) of I. P. S. Cadre Rules 1954 to the following :— * * * * (2) continued appointment of the following officers S. P. from the dates shown against each officers till the availability of a member of Joint I. P. S. Cadre from Delhi and H. P. Police Service or another State. * * * * * 6. Sh. Gangbir Singh 25-4-1962." Rule 9 (4) of the Indian Police Service (Cadre) Rules, 1954 reads: "(4) Where a cadre post is likely to be filled by a person who is not a cadre officer for a period exceeding six months, the Central Government shall report the full facts to the Union Public Service Commission with the reasons for holding that no suitable officer is available for filling the post and may in the light of the advice given by the Union Public Service Commission give suitable directions to the State Government concerned." It is under this rule that appointment of a non-cadre officer to a cadre post has been approved. 20. It is contended by Mr. 20. It is contended by Mr. Gupta that the appointment of the petitioner was a temporary or stop-gap arrangement as is evident from the aforementioned Annexure-D and the appointment was approved till the availability of a cadre officer. It may be noticed that it is not the case of the Union of India that the appointment of the petitioner was temporary or a stop-gap arrangement. In our opinion we cannot call it a temporary or a stop-gap arrangement. The approval was necessary under Rule 9 (4) of the Cadre Rules since the appointment was to last for more than six months. This rule takes care of the appointments for a shorter period for which no approval is necessary and it is only those appointments which may be termed as temporary or stop-gap arrangement. However, when the appointment has to be made for a period exceeding six months or for any indefinite period till the availability of a cadre or Select List officer, it cannot be termed as a temporary or a stop-gap arrangement in terms of Explanation-I of Rule 3 (3) (b; of the Regulation of Seniority Rules. Such an approval for an indefinite period till suitable officers are available is valid and cannot be termed as illegal. (See Lalit Vijoy Singh and another v. The Union of India and others, 1974(1) SLR 692], 21. The result of the above discussion is that we find that the petitioner was holding a senior post continuously since its declaration of equivalence vide Annexure-C dated 15th October, 1958. 22. The order of the Government of India, Ministry of Home Affairs, dated 12th September, 1973 (Annexure-J) re-assigning 1960 as the year of allotment of the petitioner has, therefore, to be struck down since it does not consider the period of continuous officiation in a senior post. The decision of the Government of India, Ministry of Home Affairs, dated 23rd February, 19K2, rejecting the memorial of the petitioner during the pendency of the writ petition as a necessary corollary to our above decision has to be struck down. 23. An attempt has been made by Mr. Gupta to contend that the petition should be dismissed because of delay and laches in approaching the court. 23. An attempt has been made by Mr. Gupta to contend that the petition should be dismissed because of delay and laches in approaching the court. It is contended that it was on 12th September, 1973 that the Government of India passed the order (Annexure-J) re-assigning the petitioner the year 1960 and that the memorial was sent on 7th July, 1978. It is submitted that according to Rule 25 of All India Services (Discipline and Appeal) Rules, 1969 a memorial can be submitted to the President of India by a member of the Services within three years from the date of passing of the order. It was also contended that the representation made by the petitioner against the order in question is not provided by the rules. We find that under Rule 16 the petitioner was entitled to file an appeal against the order, amongst others, which denies or varies to his disadvantage the conditions of service as regulated by the rules applicable to him or interprets to his disadvantage the provisions of any such rules. Though the petitioner called it a representation, it was duly considered as having been filed according to rules. It was rejected on 15th July, 1975 (Annexure-K). The memorial was submitted to the President of India on 7th July, 1978 which was within time. Since the authorities concerned sat silently on the petitioners memorial for a period over three years, the petitioner was justified in approaching the court without waiting for the decision. It is very unfortunate indeed that the authorities concerned did not decide the matter for such a long period and it was only when this court directed the Union of India to take a decision within the next six weeks that the authorities moved. They should have realised that the grievances of the disciplined forces must be attended to and decided as early as possible since unreasonable delay in the decision results in justified disgruntlement among the members of the Services. 24. However, before the petitioner can be given the benefit of the continuous officiation till his name was brought on the Select List, this officiation has to be approved by the Central Government in consultation with the Union Public Service Commission. Admittedly the Central Government has not consulted the Commission in respect of the approval or disapproval of the continuous period of officiation of the petitioner. Admittedly the Central Government has not consulted the Commission in respect of the approval or disapproval of the continuous period of officiation of the petitioner. The Supreme Court in D. R. Nim v. Union of India, [1967 S. L. K. 221], ruled: "it appears to us that under the second proviso to Rule 3 (3) the period of officiation of a particular officer has to be considered and approved or dis-approved by the Central Government in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a hat—and that is what it seems to have done in this case—and say that a period prior to that date would not be deemed to be approved by the Central Government." 25. We would, therefore, accept the present petition, quash the orders assigning the year of allotment to the petitioner and direct the Central Government to re-allot the year of assignment in consultation with the Union Public Service Commission in the light of our judgment. The petitioner will be entitled to his costs from the Union of India. Counsels fee Rs. 500. Petition quashed.