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Madhya Pradesh High Court · body

2001 DIGILAW 883 (MP)

Hari Shankar Soni v. Union of India

2001-11-30

DIPAK MISRA, UMANATH SINGH

body2001
ORDER Singh, J. -- 1. This writ petition impugns the correctness of the order of the CAT Jabalpur in O.A. No. 143/92, which was disposed of being devoid of merit as the points raised therein have been held to be covered by the judgment of the Apex Court in the case of Syed Khalid Rizvi and others v. Union of India and others [(1994) 26 ATC 192]. 2. The petitioner joined the State Police Service as a Deputy Superintendent of Police on 21.8.1971 in Radio Branch as per Annexure P-l of the petition. The gradation lists as on 1.4.1978 and 1.4.1983 showed the name of the petitioner against serial No. 54 and 15 respectively. The petitioner was issued a posting order on 3.3.1982 to join on promotion as Additional Superintendent of Police, Bastar, a Cadre post of IPS of M.P. while deputed as a DSP with the organisation of the Vigilance Commissioner (now designated as Lok-Ayukt). The petitioner grieves that he was not relieved as he was conducting enquiryl investigation in some important matters and consequently, suffered a short tenure of officiation on the cadre post. Subsequently the said order was modified by the order dated 29.4.1982 to transfer and post the petitioner as Additional Superintendent of Police, Bilaspur, which he complied on being relieved on 1.5.1982. He assumed the new charge on 10.5.1982 and continued to officiate till his induction in the IPS cadre vide notification of the Government of India dated 23.10.1984, under the Indian Police Service (Appointment by Promotion) Regulations 1955, on the basis of select list of the year 1982-83. However, to his utter dismay, the petitioner was granted 1981 as the year of his induction in the IPS, whereas his juniors respondents No.3 to 4, were made one year senior to him on being allotted the year 1980. Accordingly, the petitioner submitted a representation for restoration of his seniority as per the letter dated 27.6.1987, but the earlier year of allotment was suo motu reviewed in view of the judgment of the Apex Court and he was allotted the year 1979 to the IPS but his position did not improve vis-a-vis his juniors as their year of allotment were shifted to 1978. Thus, being aggrieved by and dissatisfied with the outcome of review, the petitioner submitted another representation which was rejected by the Government of India as per the letter dated 29.1.1992. Thus, being aggrieved by and dissatisfied with the outcome of review, the petitioner submitted another representation which was rejected by the Government of India as per the letter dated 29.1.1992. Thereafter the State Government vide order dated 6.2.1992, promoted the respondents No.3 to 5 to selection grade which was denied to the petitioner. Under the circumstances, the petitioner moved the Central Administrative Tribunal, Jabalpur by way of O.A.No. 143/92 and prayed amongst others, for restoration of seniority by granting 1978 as the year of allotment to the IPS and consequently placing him above respondents No.3 to 6 by computing the period of officiation w.e.f 3.3.1982 and not from 11.5.1982 when he joined the new assignment. The petitioner contended that the date of inclusion of his name in the select list was the crucial date and not the date of his physically joining the cadre post of the IPS. The delay caused in joining the Cadre Post of IPS was due to delay in relieving him from the office of the State Vigilance Commissioner (Lok-Ayukt). As in his case, the period of continuous officiation in the cadre post was calculated to be 172 days, being less than his juniors, the petitioner canvassed that in computing his seniority, the relevant provisions of the IPS (Regulation of Seniority), Rules 1954 could be relaxed as for no fault of his, there was a delay in joining the cadre post of the IPS and the Central Government in exercise of residuary powers under Rule 3 of The All India Services (Conditions of Service-Residuary Matters) Rules, 1960 could have relaxed the relevant rules on the ground of equity and in the interest of justice while computing the period of officiation on the cadre post, as a result whereof he was not allotted the year 1978 in the IPS and lost his seniority by one year. The Union of India countering the submissions of the petitioner averred, amongst others, that the appointment of a select list officer of cadre post is also within the scope of instructions contained under rule of the IPS (Cadre) Rules 1954 and the State Government can appoint cadre officer to non-cadre post and vice-versa. It was also averred that the respondents No.3 and 4 were correctly placed above the petitioner in the gradation list of the IPS officers of Madhya Pradesh as they started officiating on cadre post earlier than him. It was also averred that the respondents No.3 and 4 were correctly placed above the petitioner in the gradation list of the IPS officers of Madhya Pradesh as they started officiating on cadre post earlier than him. Respondents No.5 and 6 being direct recruit IPS officers were appointed as on 1979 and their seniority was not in dispute whereas the petitioner being a promoted IPS Officer was appointed to the IPS only on 23.10.1984. His entire continuous officiation on cadre posts prior to his appointment to the IPS was taken into account for fixation of seniority in the IPS and therefore, he could not have daimed violation of his Fundamental Rights under Articles 14 and 16 of the Constitution. It was clarified that the representation dated 27.6.1987 of the petitioner was considered sympathetically by the Central Government and, therefore, his seniority was revised upward by allotting him the year 1979 in the IPS. It was also clarified that Respondents No.3 and 4 started officiating on cadre post with effect from 4.3.1982 and 6.3.1982 respectively where as the petitioner started officiation only with effect from 11.5.1982, that seniority in the select list and the State Police Service has no bearing on fixation of seniority in the IPS and, that in terms of Rule 3(3) (b) of the IPS (Regulation of Seniority) Rules, 1954 read with Explanation-1 of the said rule, the date of continuous officiation or the date of inclusion of name in the select list whichever is later is the crucial date for determination of seniority of an officer appointed to the' IPS by promotion. Thus the petitioner is not entitled to any benefit because of break in his continuous officiation as the rules mandate the officiation to be continuous and that too after inclusion in the select list. Further in the instant case, IPS (Regulation of Seniority) Rules, 1954 cannot be relaxed under Rule-3 of The All India Services (Conditions of Service-Residuary Matters) Rules, 1960 as the petitioner has not suffered any undue hardship. The State Government (Respondent No.2) also adopted the same line of argument and over and above, fastened the responsibility on the petitioner for delay in joining the cadre post of the IPS as he failed to make efforts to get himself relieved from the organisation of the Vigilance Commissioner (Lokayukuta). The State Government (Respondent No.2) also adopted the same line of argument and over and above, fastened the responsibility on the petitioner for delay in joining the cadre post of the IPS as he failed to make efforts to get himself relieved from the organisation of the Vigilance Commissioner (Lokayukuta). The relevant portion of the affidavit of the State Government on reproduction reads as under : "3. That, the answering respondents most respectfully submits that in accordance with provisions of IPS (Appointment by Promotion) Regulations, 1955, the name of applicant was included in the Select list for the year 1981-82, for promotion to IPS Cadre. It is submitted that promotion orders are issued by G.O.I. under Rule 9 of 1988 Regulations, as and when vacancy arise during concurrancy of the Select list. It is submitted that before the regular promotion order could be issued by the G.O.I., the applicant who was on deputation with the organisation of Lokayukt was transferred and posted against Cadre post of IPS in the capacity of ASP Bastar, vide order dated 3.3.1982, Annexure A-3 to the application. By the same order, the respondents No.3 and 4 were also transferred and posted against cadre post as ASP Raipur and Commandant, 5th S.A.F. Battalion, Morena, respectively. It is submitted that the Respondents No.3 and4 in compliance of order dated 3.3.1982, joined and assumed the charge of cadre posts on 4.3.1982 and 6.3.1982 respectively, whereas the applicant made no efforts to get himself relieved so as to take over the new arrangement of cadre post at Bastar on the contrary, even after rejection of his representation by D.G., he was making efforts for the cancellation/ modification of order dated 3.3.1982, so far as it relates to the applicant. It is respectfully submitted that by order 29.4.1982, A/4, the modified posting order was issued and the applicant was transferred and posted against cadre post of ASP at Bilaspur. It is submitted that after the order dated 29.4.1982 was issued, then only the applicant sought permission to get himself relieved from the organisation of Lok-Ayukt, as would be clear from perusal of Annexure-R/1, filed herewith. It is submitted that after the order dated 29.4.1982 was issued, then only the applicant sought permission to get himself relieved from the organisation of Lok-Ayukt, as would be clear from perusal of Annexure-R/1, filed herewith. It is absolutely wrong on the part of the applicant to allege that he was not relieved in compliance of order dated 3.3.1982, from Lok-Ayukt because of his so-called association with important enquiry/investigation and that the order dated 3.3.1982 in respect of applicant was withheld and lateron cancelled in the public interests because the applicant had conducted enquiry against so-called senior officer posted at Bastar. It is submitted that after availing joining time, the applicant in compliance of order dated 29.4.1982, vide Annexure-A/6 intimated his arrival at Bilaspur and was permitted to join in the afternoon of 10.5.1982 and actually assumed the charge of the cadre post as ASP in the afternoon of 12.5.1982, as would be clear from perusal of Annexure-R/2, filed herewith and started officiating on the cadre post of IPS. (Regulation of Seniority) Rules, 1954". 3. The Central Administrative Tribunal, Jabalpur, following the dictum of the Apex Court in Syed Khalid Rizvi' case (supra) held that the manner in which seniority is to be counted has been laid down in the Indian Police Services (Regulation of Seniority) Rules and the condition precedent for purpose of counting seniority is officiation on a cadre post. Accordingly the application of the petitioner was disposed of being devoid of merits. 4. Heard the rival contentions and perused the records. Apart from submissions as above before the Tribunal, the petitioner contended that his case is distinguishable from the case of Syed Khalid Rizvi and the Tribunal ought to have directed the respondents to condone the delay in officiation on the cadre post of the IPS by relaxing the rules in the facts and circumstances of his case. 5. On a close scrutiny of the findings filtered out through the process of adjudication by the Tribunal, we find no ment in the submissions of the petitioner and therefore, the impugned order of the Tribunal does not call for our interference. The crucial date, for the purpose of counting the seniority of the petitioner is the date on which he joined the cadre post of the IPS and his case does not come within the ambit of undue hardship. The crucial date, for the purpose of counting the seniority of the petitioner is the date on which he joined the cadre post of the IPS and his case does not come within the ambit of undue hardship. Further in view of the averments of the State Government in their reply before the Tribunal the relaxation claimed by the petitioner cannot be permitted dehors the rules, nor is he entitled to claim equity if failed to get himself relieved for joining the cadre post. The situation where in the petitioner was placed was not beyond his control and, therefore, it is not open to him to plead undue hardship. The petitioner has not questioned the vires of Rule 3 (3)(b) of Indian Police Service (Regulation of Seniority) Rules, 1954 read with Explanation-I, of the said rule, which has been discussed in the judgment of the Apex Court (supra), relied upon by the Tribunal. Under the circumstances, the petitioner is not entitled to, for relaxation of the rules, if the circumstances of his case do not fit in, in the category of undue hardship. Further the Govt. of India as per its letter (G.I.M.H.A. Letter No. 30/1/63-AIS (II), dated 1st January, 1966) reproduced at page 53 of Sarkar's The All India Services Manual (IInd Edition) have laid down the guide lines regarding the power to relax rules and regulation in certain cases under rule 3 of The All India Services (Conditions of Service-Residuary Matters) Rules, 1960 as under: (a) undue hardship signifies unforeseen or unmerited hardship to an extent not contemplated with the rule was framed and does not cover any ordinary hardship or inconvenience which normally arises. (b) the relaxation should enable the case to be dealt with in a just and equitable manner and not on grounds of compassion however justified; and (c) the benefit to be conferred in relaxation of any rule or rules must be of a nature already provided for in the rules; Government are not empowered by this rule to confer benefits which are not contemplated in the rules. 6. 6. The Apex Court while discussing the circumstances necessitating relaxation of rules in the case of Ashok Kumar Uppal and others v. State of Jammu and Kashmir and others, AIR 1998 SC 2812 permitted the relaxation of rules only to obviate genuine hardship and to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where in working of rule might have become impossible. 7. In the premises discussed herein above, the writ petition fails and is hereby dismissed with no order as to costs.