Research › Search › Judgment

Gauhati High Court · body

2002 DIGILAW 40 (GAU)

G. P. Giri v. Union of India

2002-01-18

A.K.PATNAIK, H.K.KUMAR SINGH

body2002
In this application under Article 226/227 of the Constitution, the petitioners have prayed for quashing the order dated 2.4.98 of the Central Administrative Tribunal, Guwahati Branch, in OA No. 279/95. 2. The petitioner Nos. 1 to 6 were initially in the State Police Service of Nagaland. They were selected and appointed under sub-rule (6) of Rule 4 of the Indian Police Service (Recruitment) Rules 1954, by the President of India to the Indian Police Service cadre of Nagaland at the time of its initial constitution with effect from 1.3.86 by notification dated 18.1.89. The petitioner Nos. 7 and 8, however, were not selected at the time of initial constitution of Indian Police Service cadre of Nagaland but were subsequently appointed by way of promotion by the President of India under sub-rule (1) of Rule 9 of the Indian Police Service (Recruitment) Rules 1954 read with sub-regulation (1) of regulation 9 of the Indian Police Service (Appointment by Promotion) Regulations, 1955. The respondent Nos. 5 to 10 were neither selected at the time of initial constitution nor selected in the selection held in the year 1990 but were appointed thereafter by way of promotion to the Indian Police Service. The said respondent Nos. 5 to 10 filed six separate applications before the Central Administrative Tribunal, Guwahati Branch, which were numbered as OA Nos. 143/90, 144/90, 145/90, 147/90, 148/90, and 160/90 and their case before the Central Administrative Tribunal, Guwahati Branch, was that in the State Police Service of Nagaland they have all through been senior to some of the officers including the petitioner Nos. 1 to 6 selected and appointed at the time of initial recruitment to the Indian Police Service cadre of Nagaland. By a common judgment and order dated 1.8.94, the Central Administrative Tribunal, Guwahati Branch, disposed of the said applications of the respondent Nos. 5 to 10 in the said OANos. 143/90,144/90,145/90,147/90, 148/90 and 160/90 with the following directions: "The applicants are required to submit representations jointly or individually before the Central Government through the Government of Nagaland stating their grievances, grounds and relief sought for. In the event of submission of such representation, the State Government (Nagaland) is directed to forward their representation to the Central Government with recommendation to consider it on ground of hardship, within four weeks from the receipt of the representation. In the event of submission of such representation, the State Government (Nagaland) is directed to forward their representation to the Central Government with recommendation to consider it on ground of hardship, within four weeks from the receipt of the representation. It is directed that the Central Government shall consider their case on the basis of the recommendations of the State Government and shall dispose of the representation with orders within 60 (sixty) days from the date of receipt of the representation with recommendation." Pursuant to the aforesaid directions of the Central Administrative Tribunal, Guwahati Branch, the respondent Nos. 5 to 10 submitted separate representations which were recommended for favour of consideration by the Government of Nagaland by its letter dated 23.11.94 to the Government of India, Ministry of Home Affairs (Police). The Government of India, Ministry of Home Affairs then sent a FAX message dated 16.1.95 requesting the Government of India to initiate the grounds on which the case of the respondents had been recommended and a reply was sent by the Government of Nagaland by letter dated 1.3.95 stating therein that the respondent Nos. 5 to 10 were not inducted by way of initial selection, in view of their poor service records and as a result they became junior and juniors officers became senior to them and subsequently,those junior officers were promoted to the next higher post and this aspect created hardship for them. The Government of India by its letter dated 6.6.95 intimated the Secretary to the Government of Nagaland, Home Department, that the representations of the respondent Nos. 5 to 10 have been considered carefully by the Ministry but the same have been rejected. Aggrieved, the respondent Nos. 5 to 10 filed OA No. 279/95 before the Central Administrative Tribunal, Guwahati Branch, and by the impugned judgment and order dated 2.4.98, the Central Administrative Tribunal, Guwahati Branch, held that the Government of Nagaland did not make clear recommendation on the ground of hardship as directed by the Central Administrative Tribunal, Guwahati Branch, in its earlier judgment dated 1.8.94 and because of this the Central Government rejected the representations and as a result of such rejection, the respondent No. 5 to 10 had been put to hardship and that their representations required fresh consideration. By the said judgment and order dated 2.4.98, the Central Administrative Tribunal, Guwahati Branch, disposed of the said OA No. 279/95 with the direction to the Government of Nagaland to send recommendation by answering the queries made by the Central Government and on receipt of the recommendation the Central Government shall take decision in the manner indicated in the judgment and order dated 6.8.94. Aggrieved by the said judgment and order dated 2.4.98 in OA No. 279/95, the petitioner have filed this writ petition. 3. Mr S.S. Goswami, learned counsel for the petitioners, relying on the averments and grounds in the writ petition submitted that the petitioner Nos. 1 to 6 were selected and appointed to the Indian Police Service cadre of Nagaland at its initial constitution with effect from 1.3.86 and the petitioner Nos. 7 and 8 were selected and appointed by way of promotion in the year 1990 to the Indian Police Service cadre of Nagaland by notification dated 14.3.90. He further submitted that the respondent Nos. 5 to 10 on account of their poor service records though considered by the selection committee were not selected at the time of initial constitution of the Indian Police Service cadre of Nagaland and were also not selected in the selection held in the year, 1990. They were selected and appointed much later to the Indian Police Service cadre of Nagaland. Hence under the relevant statutory rules of seniority, the petitioners were senior to the respondent Nos. 5 to 10 and the Central Administrative Tribunal, Guwahati Branch cannot direct the State Government of Nagaland to recommend the cases of the respondent Nos. 5 to 10 on the ground of hardship so as to place the said respondent Nos. 5 to 10 above the petitioners in the Indian Police Service cadre of Nagaland contrary to the statutory rules relating to seniority. 4. Mr G.K. Bhattacharjee, learned counsel for the respondent Nos. 5 to 10, on the other hand, made all efforts to support the impugned judgment and order of the Central Administrative Tribunal, Guwahati Branch. He submitted that by the earlier common judgment and order dated 1.8.94 in OA Nos. 143/90, 144/90, 145/ 90,147/90,148/90 and 160/90, the Central Administrative Tribunal, Guwahati Branch, expressly directed the State Government of Nagaland to forward the representations of the respondent Nos. He submitted that by the earlier common judgment and order dated 1.8.94 in OA Nos. 143/90, 144/90, 145/ 90,147/90,148/90 and 160/90, the Central Administrative Tribunal, Guwahati Branch, expressly directed the State Government of Nagaland to forward the representations of the respondent Nos. 5 to 10 to the Central Government with the recommendation to consider on the ground of hardship and further directed the Central Government to consider their cases on the basis of the recommendation of the State Government and dispose of the representations. But the State Government instead of recommending the case of the respondent Nos. 5 to 10 on the ground of hardship took a stand in the letter of March/ 95 that the case of the respondent Nos. 5 to 10 cannot be recommended on the ground of hardship. It is for this reason that the Central Administrative Tribunal, Guwahati Branch, in the impugned judgment and order dated 2.4.98 in OA No. 279/95 has taken a view that the direction of the Central Administrative Tribunal, Guwahati Branch, in its earlier common judgment dated 1.8.94 in OA Nos. 143/ 90, 144/90, 145/90, 147/90, 148/90 and 160/90 to the State Government to recommend the case of the respondent Nos. 5 to 10 on the ground of hardship to the Central Government to consider such recommendation on the ground of hardship has not been followed and has accordingly directed the State Government to recommend afresh the cases of the respondent Nos. 5 to 10 on the ground of hardship and directed the Central Government to take a decision on such recommendation in accordance with its earlier common judgment and order dated 1.8.94 on OANos. 143/90, 144/90, 145/ 90, 147/90, 148/90 and 160/90. Mr Bhattacharjee further submitted that the Central Government had powers to relax the statutory rules and consider the case of the respondent Nos. 5 to 10 if the Central Government is of the view that the respondent I^os. 5 to 10 had suffered hardship and pass orders restoring seniority of respondent Nos. 5 to 10 over the petitioners as it existed in the State Police Service of Nagaland prior to the induction of the petitioners and respondent Nos. 5 to 10 in Indian Police Service cadre of Nagaland. 5. 5 to 10 had suffered hardship and pass orders restoring seniority of respondent Nos. 5 to 10 over the petitioners as it existed in the State Police Service of Nagaland prior to the induction of the petitioners and respondent Nos. 5 to 10 in Indian Police Service cadre of Nagaland. 5. We are unable to accept the aforesaid submission of Mr Bhattacharjee as we find that the directions of the Central Administrative Tribunal, Guwahati Branch, in the common judgment and order dated 1.8.94 in OANos. 143/90,144/ 90, 145/90, 147/90, 148/90 and 160/90 have been complied with both by the .State Government and the Central Government. By the said directions in the common judgment and order dated 1.8.94 quoted above, the State Government of Nagaland was required to forward the representations of the respondent Nos. 5 to 10 to the Central Government with recommendation to consider the said representation on the ground of hardship. By letter dated 23.11.94, the Government of Nagaland recommended the cases of the respondent Nos. 5 to 10 for favourable consideration. The portion of the said letter dated 23.11.94 of the Government of Nagaland is quoted in the impugned judgment and order dated 2.4.98 of the Central Administrative Tribunal, Guwahati Branch, is extracted herein below: "....... Induction of the officers in the IPS Cadre and their seniority etc. are considered by the Government of India on the basis of their ACRs/Performance. Now in view of their representations, the State Government recommends for favourable consideration of their representation." On receipt of the said recommendation dated 23.11.94 of the State Government in favour of the respondent Nos. 5 to 10, the Government of India, Ministry of Home Affairs, sent a FAX Message dated 16.1.95, inter alia requesting the State Government to furnish the ground on which they have recommended for favourable consideration of the representation of respondent Nos. 5 to 10. In reply to the said FAX message, the Home Commissioner, Nagaland, sent a letter to the Under Secretary to the Government of India (Police), Ministry of Home Affairs, which is to the following effect: "Sir, I am directed to refer to your FAX message No. 1-15016/45/90-IPS-I (Vol. II) dated 16.1.1995 on the subject cited above and to say that the petitioners were not inducted by the Initial Selection Committee in view of their poor service records. II) dated 16.1.1995 on the subject cited above and to say that the petitioners were not inducted by the Initial Selection Committee in view of their poor service records. As a result they became junior and junior officers became senior to them and subsequently some of those junior officers are promoted to the next higher post also. This aspect may have created hardship for them. Since parawise comments have already been submitted vide this department's letter of even number dated 16th Feb, 1994, we cannot recommend otherwise at this stage." In the aforesaid letter, the Home Commissioner, Government of Nagaland stated that the respondent Nos. 5 to 10 were not inducted by the Initial Selection Committee in view of their poor service records and as a result they became junior and junior officers became senior to them and subsequently some of those junior officers were promoted to the next higher post also and this aspect might have created hardship for them but the Government of India by its communication dated 6.6.95 informed the Secretary to the Government of Nagaland, Home Department, Police Establishment Branch that the representations of the respondent Nos. 5 to 10 have been considered carefully, but the same have been rejected. The aforesaid discussion would show that by the letter dated 23.11.94, the Government of Nagaland recommended the case of the respondent Nos. 5 to 10 for favourable consideration and in the subsequent reply in March, 1995, to a FAX message dated 16.1.95 of the Government of India had communicated as to how the respondent Nos. 5 to 10 had suffered hardship, but the Government of India, Ministry of Home Affairs, rejected the representations of the respondent Nos. 5 to 10. 6. In the counter affidavit filed on behalf of the Government of India in reply to the averments made in the writ petition before this Court and in particular paragraph-17 thereof, the Central Government has stated as to why it cannot reconsider the representations of respondent Nos. 5 to 10 on the ground of hardship. The said paragraph-17 of the counter affidavit filed on behalf of the Government of India, Ministry of Home Affairs is extracted hereinbelow: "17. 5 to 10 on the ground of hardship. The said paragraph-17 of the counter affidavit filed on behalf of the Government of India, Ministry of Home Affairs is extracted hereinbelow: "17. That with regard to the averments made in paras 18 to 21 of the writ petition, the deponent begs to state that the directions given by the Hon'ble C.A.T. are not in conformity with the statutory provisions relating to appointment of SPS Officers to IPS and subsequent fixation of their seniority in IPS. As per Supreme Court's judgment dated 9.1.96 in C.A. No. 1492/96 arising out of SLP(C) No. 12002 of 1995 (JT 1996(1) SC 258), the seniority in service can only be determined in accordance with the relevant rules applicable at the time of appointment to service. The directions of the Hon'ble C.A.T. in the present case directing the State Govt. to recommend the cases of respondent Nos. 5 to 10 to Central Govt. on grounds of hardship so that their seniority could be refixed in accordance with the seniority rules meant for officers who were appointed to IPS at initial constitution of the Nagaland Cadre is against the above said judgment of Hon'ble Supreme Court." It will be clear from paragraph-17 of the counter affidavit filed on behalf of the Government of India that the cases of the respondent Nos. 5 to 10 for refixing their seniority on the ground of hardship cannot be considered by the Government of India because as per the judgment of the Supreme Court dated 9.1.96 in CA No. 1492/96 (Union of India-Vs-S.S. Upal, AIR 1996 SC 2340 ) seniority in service is to be determined only in accordance with the relevant rules applicable at the time of appointment to service. 7. To a query made by the Court as to whether the respondent Nos. 5 to 10 who were appointed by promotion to the Indian Police Service cadre of Nagaland subsequent to the petitioners could be given seniority over the petitioners under any statutory rule, Mr. Bhattacharjee referred to Rule 4. A of the Indian Police Service (Regulation of Seniority) Rules, 1988, applicable only to cadre of Nagaland to show that the seniority in the cadre of Nagaland State Police Service was taken into consideration for the purpose of determining the seniority in the Indian Police Service cadre of Nagaland. Bhattacharjee referred to Rule 4. A of the Indian Police Service (Regulation of Seniority) Rules, 1988, applicable only to cadre of Nagaland to show that the seniority in the cadre of Nagaland State Police Service was taken into consideration for the purpose of determining the seniority in the Indian Police Service cadre of Nagaland. The said Rule 4.A of the Indian Police Service (Regulation of Seniority) Rules, 1988 is quoted herein below: "4. A. Seniority of officers appointed to the service at the initial constitution of the Cadre of Nagaland - Notwithstanding anything contained in these rules in relation to the State of Nagaland the year of allotment and seniority of officers appointed to the service at the time of the initial constitution of the State Cadre shall be determined by the Central Government in the following manner, namely :- The year of allotment and seniority shall be determined ad hoc in consultation with the Union Public Service Commission and the State Government, after taking into account the length of service and the responsibilities of posts held by the officer as reflected in pay or nature of duties or in both." Provided that the year of allotment of an officer so arrived at shall be limited to the year to which his immediate senior in Nagaland State Police Service who is selected to the Indian Police Service cadre of Nagaland, at its initial constitution has been allotted." It will be clear from a plain reading of the aforesaid Rule 4.A that it refers to interse seniority of officers appointed to the service at the time of initial constitution of Indian Police Service cadre of Nagaland. The respondent Nos. 5 to 10 had not been appointed to the service at the initial constitution of the Cadre of Nagaland and, therefore, the aforesaid Rule 4.A does not apply to the respondent Nos. 5 to 10. Confronted with this situation, Mr Bhattacharjee submitted that a similar rule can be made by the Central Government for giving seniority to the respondent Nos. "5' to 10 on the basis of their seniority in the State Police Service of Nagaland, but no such direction has been given by the Central Administrative Tribunal, Guwahati Branch, either in the common judgment and order dated 1.8.94 of the Tribunal in OA Nos. "5' to 10 on the basis of their seniority in the State Police Service of Nagaland, but no such direction has been given by the Central Administrative Tribunal, Guwahati Branch, either in the common judgment and order dated 1.8.94 of the Tribunal in OA Nos. 143/90,144/90,1457 90, 147/90, 148/90 and 160/90 or in the later judgment and order dated 2.4.98 in OA No. 279/95 to introduce a new statutory rule by way of amendment in the Indian Police Service (Regulation & Seniority) Rules, 1988, for the purpose of removing the hardship, if any, suffered by the respondent Nos. 5 to 10. 8. The result of the aforesaid discussion is that the cases of the respondent Nos. 5 to 10 for seniority over the petitioners cannot be reconsidered by the Central Government on the ground of hardship as the statutory rules for determination of seniority do not permit placing of the respondent Nos. 5 to 10 over the petitioners in the Indian Police Service cadre of Nagaland. The impugned judgment and order dated 2.4.98 of the Central Administrative Tribunal, Guwahati Branch, in OA No. 279/95 directing the State Government of Nagaland to reconsider the cases of the respondent Nos. 5 to 10 on the ground of hardship, therefore, suffers from a grave error of law apparent on the face of the record and is quashed and this writ petition is allowed. But considering the facts and circumstances of the case parties shall bear their own costs.