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1993 DIGILAW 682 (SC)

H. R. Kasturi Rangan v. Union of India

1993-07-28

J.S.VERMA, S.MOHAN, S.P.BHARUCHA

body1993
JUDGMENT : 1. Leave granted. 2. The two appellants were appointed to the Karnataka State Police Service in the rank of Dy. Superintendent of Police (Non-IPS) in January 1976. In January 1978 appellant No. I H.R. Kasturi Rangan was posted to officiate in a cadre post while the appellant No. 2, S.S. Masali was so posted to officiate in a cadre post in September, 1978. Respondent No.4, Ajay Kumar Singh who belonged to the 1974 batch of the Indian Police Service (Karnataka Cadre) was promoted to a Senior Scale post on 17.10.1978. The appellants were confirmed as Dy. Superintendent of Police in the State Police Service by notification issued on 2.3.1979, with effect from 1.1.1978. Respondent No. 5, Smt. Jija Hari Singh, a direct recruit to the Indian Police Service of the 1975 batch was promoted to a Senior Scale post on 24.11.1979. The selection committee constituted under Regulation 3 of the Indian Police Service (Appointment by Promotion) Regulation, 1955 met in December, 1980, when name of both the appellants was included in the select list for the IPS to which they were appointed on 3.4.1981. In 1982 the year of allotment was given to both the appellants as 1976, on their appointment to IPS by promotion in this manner. 3. The appellants made applications to the Central Administrative Tribunal in 1987 and 1988 making the grievance that they were entitled to a year of allotment earlier than 1976 on account of the reason that they should have been included in the select list for appointment by promotion to I.P.S. which ought to have been prepared two years earlier. The appellants contended that the delay inclusion of their names in the select list by a period of two years was occasioned on account of the failure of the selection committee to meet for two years, even though the requirement of Regulation 5 of the I.P.S. (Appointment by Promotion) Regulation, 1955 is that the committee "shall ordinarily meet at intervals not exceeding one year". The appellants also challenged the validity of Explanation I of the first proviso to Rule 3(3) (b) of the I.P.S. (Regulation of Seniority) Rules, 1954. The Tribunal has dismissed these applications of the appellants. Hence these appeals by Special leave. 4. This matter has been placed before a three Judge Bench on account of an order dated 12.1.1993 made by a Bench of two learned Judges. The Tribunal has dismissed these applications of the appellants. Hence these appeals by Special leave. 4. This matter has been placed before a three Judge Bench on account of an order dated 12.1.1993 made by a Bench of two learned Judges. It appears that the order was made on account of a submission made at the hearing that there appeared to be some conflict between the decisions in Union of India v. Mohan Lal Capoor & Ors., (1974) 1 SCR 797 and Syed Khalid Rizvi & Ors. v. Union of India & Ors., JT 1992 (Supple.) SC 169 and that the word "ordinarily" in Regulation 5 appears to have been overlooked by the Bench deciding Rizvi's case. 5. Having heard learned counsel we are satisfied that there is no conflict between the decisions in Mohan Lal Capoor and Syed Khalid Rizvi. As for the submission that the word "ordinarily" occuring in Regulation 5 appears to have been overlooked in Rizvi, we find that it is not so in as much as the learned Judges in para 9 have referred to it while dealing with Regulation 5. The learned counsel for the respondent, who had made that submission before a two Judge Bench, then referred to the observations in para 34 of the decision in Rizvi wherein Regulation 5 has been described as mandatory while saying that "preparation of the select list every year is mandatory". In our opinion these observations in the decision in Rizvi have to be read in the context and together with what follows that observation. It has been stated thereafter that the dereliction of the statutory duty must satisfactorily be accounted for by the State Government concerned and this Court takes serious note of want on infraction. It is clear from the observations which follow that the importance of performing this exercise annually was emphasised and it was pointed out that in the event of any failure, the lapse must be satisfactorily explained by the State Government concerned. This is itself an indication of the purpose for which the performance of that exercise annually was described as mandatory, without saying that its breach invalidates the subsequent action. This conclusion is obvious also from the conclusion reached in Rizvi thereafter in para 35 of the report. This is itself an indication of the purpose for which the performance of that exercise annually was described as mandatory, without saying that its breach invalidates the subsequent action. This conclusion is obvious also from the conclusion reached in Rizvi thereafter in para 35 of the report. K. Ramaswamy, J. speaking for the bench stated the contention and the conclusion thereon as under : "The question then is whether the failure to prepare the select list could give rise to an inference that rules have been collapsed and the State Government's local arrangement shall be given legitimacy as regular appointments. After giving our anxious consideration of the end resultants, we find it hard to accept the contention. ...................................... We, therefore, hold that for failure to prepare select list every year, rule 3(3)(b) of the Seniority Rule, Rules 5 and 9 of the Recruitment Rules and Regulation 9 of Promotion Regulations have not been broken down and the appointment by local arrangement by the State Govt. under Regulation 8 of the Promotion Regulations and Rule 9 of the Cadre Rules are not valid and legal. The promotee officers are not entitled to count their whole officiating period towards their seniority. 6. It is, therefore, clear that the failure to prepare the select list annually was not accepted as a ground to validate the select list for that reason alone in Rizvi. It is in this manner that the word `mandatory' used in para 34 has to be understood. 7. The contention in the present case of learned counsel for the appellants being substantially the same which was rejected in pars 35 of the decision in Rizvi, there is nothing in that decision to lend support to the appellants' contention based on this ground in the present case. 8. Learned counsel for the appellants also reiterated the submission advanced before the Tribunal relating to the validity of explanation 1 of the Proviso to rule 3(3) (b) which reads as under : "3. Assignment of year of allotment (1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule. 8. Learned counsel for the appellants also reiterated the submission advanced before the Tribunal relating to the validity of explanation 1 of the Proviso to rule 3(3) (b) which reads as under : "3. Assignment of 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 - (a) where the officer is appointed to the service on the results of a competitive examination the year following the year in which such examination was held : (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 juniormost among the officers recruited to the service in accordance with Rule 7 of these Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former : 9. Provided that the year of allotment of an officer appointed to the service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a cadre earlier than the date on which any of the officers recruited to the service, in accordance with rule 7 of those rules, so started officiating shall be determined ad hoc by the Central Government in consultation with State Government concerned. Explanation 1- In respect of an officer appointed to the service by promotion in accordance with sub-rule (1) of Rule 9 of the Recruitment Rules, the period of his contineous officiation in a senior post shall, for the purpose of determination of his seniority, count only from the date of the inclusion of his name in the select list, or from the date of his officiating appointment to such senior post whichever later. 10. The contention of learned counsel for the appellants is that in the case of a promotee exclusion of the period of his continuous officiation prior to the date of inclusion of his name in the select list is discriminatory. We find no merit in this contention. The promotion to the I.P.S. constitute a class distinct from the direct recruits to that service. We find no merit in this contention. The promotion to the I.P.S. constitute a class distinct from the direct recruits to that service. The claim for inclusion of the period of their officiation prior to inclusion of their name in the select list in all situations does not appear to be reasonable in as much as that may amount to conferring on them the benefit of membership of service in the I.P.S. from a date prior to their selection for entry into the service 11. We are also satisfied that the Tribunal was right in taking into account the laches of the appellants in as much as they approached the Tribunal after about 5 years of the date on which the cause of action arose as a result of the appellants being given the year of allotment. In disputes relating to seniority in a service, the lapse of several years changes the scenario due to the events happening in the intervening period and, therefore, the aggrieved person must invoke remedy promptly within a reasonable period. In our opinion, no interference is called for with the Tribunal's order. 12. Consequently, the appeals are dismissed. No costs.