V.K. Ahluwalia vs Union of India (UOI) and Others

D.B. Lal, J.—Shri V.K. Ahluwalia, a senior member of the Indian Police, (I..P.S.) has filed this writ petition under Article 226 and 227 of the Constitution wherein he has asked for quashing the decision of the Union of India, Respondent No. 1, dated 26-6-1976 (Annexure N) whereby 1965 has been given as the year of allotment for Ahluwalia. He has further asked for a declaration that he continued to officiate on a senior duty post of the Indian Police Service from 11-11-1965 without any break whatsoever after he was brought on the select list till the date of his confirmation in the India Police Service and to determine the year of his allotment as the year 1961. In consequence thereof, the Petitioner seeks for a declaration that he is senior to Respondents Nos. 4 to 13. He has also prayed for grant of selection grade in accordance with this seniority keeping in view his year of allotment as 1961. The facts giving rise to this petition are that the Petitioner Ahluwalia was promoted to the gazetted post of Deputy Superintendent of Police on 10-12-1956 in the State Service of Himachal Pradesh. In the year 1962, the Government of India constituted a new service for the Union territories of Delhi and Himachal Pradesh Police Service known as Delhi and Himachal Pradesh Police Service. The Petitioner Ahluwalia was taken in that service and was confirmed therein with effect from 27-11-1964. In exercise of the powers conferred under Sub-section (4) of Section 3 of the All India Service Act, 1951 the Central Government after consultation with the Governments of the States has made certain Rules and Regulations which shall govern the seniority of the Petitioner. According to Ahluwalia a select list was prepared under the Indian Police Service (Appointment by Promotion) Regulations, 1955, and Ahluwalia was placed in that select list in the year 1965 along with other officers of the department. After having been brought on the select list the Petitioner was appointed as Superintendent of Police, Chamba, a senior duty post of the I.P.S. on 12th October, 1965, although the Petitioner. took the charge of that office on 11-11-1965. Thereafter, the Petitioner continuously held senior duty posts which were admittedly cadre posts. He was Superintendent of Police, Chamba, from 11-11-1965 to 25-12-1967. Thereafter, he was on earned leave from 26-12-1967 to 25-3-1968. From 26-3-1968 to 20-5-1968 he was Superintendent of Police, H.A.P. and from 25-5-1968 till the date of his appointment in the I.P.S. on 30-1-1971 he was Superintendent of Police, Nahan. On 1st November, 1966, the re-organisation of the State took place and certain areas of Punjab were transferred to the Union territory of Himachal Pradesh. The result was that several officers, inter alia Shri P.C. Sahney and Shri K.S. Dhaliwal, were brought from Punjab and these officers were also entered in the select list of the I.P.S. along with Ahluwalia. Shri P.C. Sahney, however, was at that time holding the -cadre post of Superintendent of Police, C.B.I, under the Ministry of Home Affairs which office he held with effect from 7-12-1964 and continued to hold that post till 6-10-1969. It may also be specified that Sahney was entered in the select list in the year 1962 and as such he was senior to Ahluwalia. After this merger of the officers of Punjab with the officers of the Himachal Pradesh, a joint select list of the erstwhile Union territory of Delhi and Himachal Pradesh was prepared on 29-4-1967. The name of Ahluwalia was entered in that list along with Sahney and Dhaliwal as well as other officers. Thereafter, on 1st January, 1968 instead of Delhi and Himachal Pradesh cadre a single cadre for all the Union territories came into being. The first select list of that cadre, however, came into force on 13-1-1971. It has to be understood that Ahluwalia all along continued to hold a senior post of the I.P.S. and on 13-1-1971 his name was formally mentioned in the select list of the Union Territories Cadre. The other significant date thereafter was V-251-1971 when Himachal Pradesh assumed full Statehood and Ahluwalia was allocated along with others to the cadre of Himachal Pradesh Police Service. He was appointed to the Indian Police Service on probation on 30th January, 1971. He was also confirmed with effect from the said date. After these developments, it appears a question was raised for the allocation of year of allotment and on 3-2-1970 the Petitioner received a letter from the Government of India disclosing that under Rule 9(4) of the Indian Police Service (Cadre) Rules, 1954, the Union Public Service Commission has not approved the appointment of Ahluwalia against a cadre post for the period 1-8-1968 to 12-10-1969 (Annexure-G). The Petitioner made a representation on 19-11-1970 that during this period he was holding a senior duty post and that there was no reason why the period should not be approved by the Union Public Service Commission as well as the Government. The Petitioner received a letter on 8th August, 1973 from the Government of Himachal Pradesh conveying the decision of the Government of India which had the effect that his period of service against a senior duty post before 12-1-1971 was not to be considered, and the year of allotment could be given to him with reference to the date 13th January, 1971. This decision being obviously against Ahluwalia, he made several representations and finally in July, 1975 (Annexure-M), the Government of India tentatively opined that Ahluwalia had a good case and that neither the period between 1-1-1968 to 12-1-1971, when apparently there was no select list for the Union territory cadre, nor the period between 1-8-1968 to 12-10-1969 could be excluded and Ahluwalia should be given benefit of the entire period. However, the Government of India asked for representations from the other affected officers and thereby intended to decide the case of Ahluwalia only after hearing the said representationists. After these representations were made and considered by the Government of India under Annexure-N, dated 26th June, 1976, they decided that the Petitioner could not be given the benefit for the period 1-8-1968 to 12-10-1969 because P.C. Sahney, his senior, was holding ex-cadre post during this period. In other words, the Petitioner was made to suffer because Sahney was posted by the Government of India against a non-cadre post and it was considered that the Petitioner could not hold a cadre post during this period. The result was that under Annexure-N, Ahluwalia was given the year of allotment with reference to the date 13th October, 1969. As such, his year of allotment was 1965 and he was held junior to several officers. The Petitioner did not feel satisfied with that decision and after making several representations when he did not get any redress from the Government of India he filed the present petition.

In the petition, besides the Union of India and the Government of Himachal Pradesh, Respondents Nos. 4 to 15 were also made parties. These Respondents are the officers belonging to the I.P.S. cadre and Ahluwalia claims seniority over Respondents Nos. 4 to 13. The returns have been filed by the Union of India, Respondent No. 1 as well as the State of Himachal Pradesh, Respondent No. 2. The Respondent No. 2, however, submitted that the question essentially relates to the Union of India and as such they would depend upon the return filed by the Respondent No. 1. Besides these two Respondents, K.S. Dhaliwal, Respondent No. 15, has also filed a return and his contention is that he is senior to Ahluwalia which position is also conceded by the Petitioner. Respondent No. 14 is P.C. Sahney and this officer is again senior to Ahluwalia and as such there is no point of contention between him and the Petitioner. Amongst the Respondents Nos. 4 to 13, Kul Nath Kapoor, I.P.S., Respondent No. 5, appeared personally during our hearing. Although he did not file any return, yet we gave him opportunity of putting! is case before us. The rest of the Respondents did not care to file any return nor did they appear to contest the petition. The Union of India, Respondent No. 1, reiterated their position under Anncxures-M and N. The main ground of contention on behalf of Respondent No. 1 is that since P.C. Sahney, an officer senior to Ahluwalia, being in the select list was holding an cadre post, there was a break in the service of Ahluwalia between 1-8-1968 and 12-10-1969. As such he could not be given the benefit of that period and his officiation against a senior duty post could only be deemed from 13-10-1969 for ascertaining the year of allotment under rule 3(3) (b) of the Regulation of Seniority Rules, 1954. It was further contended that the officiation of Ahluwalia against a senior duty post for the period 1-8-1968 to 12-10-1969 violated Regulation 8 of the Promotion Regulations, and hence the said period could not be approved for the purpose of seniority. For that reason, according to Respondent No. 1, the Union Public Service Commission had not given its approval under sub-rule (4) of Rule 9 of the Cadre Rules. As such, Respondent No. 1 very much adhered to their decision under Annexure-N.

Before adverting to the points of contention between the respective parties, we think it appropriate to refer to the relevant parts of the statutory provisions as well as to the Annexures which contain the correspondence with reference to the seniority of the Petitioner. In that connection we have first to refer to the Indian Police Service (Appointment by Promotion) Regulations, 1955, (hereinafter to be referred to as Promotion Regulations, 1955). The relevant parts of Regulations 7 and 8 will be pertinent:

Select List.

(1) The Commission shall consider the list prepared by the Committee along with the other documents received from the State Government and, unless it considers any change necessary, approve the list.

(2) ....

(3) The list as finally approved by the Commission shall form the Select List of the members of the State Police Service.

The Petitioner''s name was entered in this select list and by virtue of that inclusion in the select list he was appointed against a cadre post of the I.P.S. with effect from 11-11-1965.

Appointments to Cadre Posts from the Select List.-

Appointments of members of the State Police Service from the Select List to posts borne on the State Cadre or the joint Cadre of a group of States, as the case may be, shall be made in accordance with the provisions of rule 9 of the Cadre Rules. In making such appointments, the State Government shall follow the order in which the names of such officers appear in the Select List.

....

It is evident that aforesaid Regulation 8 is governed by the provisions of Rule 9 of the Cadre Rules and at the same time it enjoins that for making the appointments the State Government has to follow the order in which the names of such officers appear in the select list. The contention of the Union of India has been that Sahney was entered as senior to ArJuwalia in the select list and because he was not appointed against a cadre post during the peiiod 1-8-1968 to 12-10-1969, and instead Ahluwalia continued to hold a cadre post during this period, he cannot be given the benefit of that period merely because Sahney happened to be posted for this period against an cadre post. In this manner it was contended Regulation 8 was violated.

Now we shall refer to Rule 9 of the Indian Police Service (Cadre) Rules, 1954 (hereinafter to be referred to as the Cadre Rule 1954). Rule 9 will be relevant:

Temporary appointment of non-cadre officers to cadre posts:

(1) A cadre post in a State may be filled by a person who is not a cadre officer if the State Government is satisfied-

(a) that the vacancy is not likely to last for more than three months; or

(b) that there is no suitable cadre officer available for rilling the vacancy.

(2) Where in any State, a person other than a cadre officer is appointed to a cadre post for a period exceeding three months the State Government shall forthwith report the fact to the Central Government together with the reasons for making the appointment.

(3) On receipt of a report under sub-rule (2) or otherwise, the Central Government may direct that the State Government shall terminate the appointment of such, person and appoint thereto a cadre officer and where any direction is so issued, the State Government shall accordingly give effect thereto.

(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.

Since Ahluwalia being a non-cadre officer of the State Government filled a senior duty post for a period exceeding six months, it was contended that the Central Government was required to report the full facts to the Union Public Service Commission and to issue suitable directions to the State Government in the light of the advice given by the Union Public Service Commission. From the language used in sub-rule (4) of this Rule 9 it was somehow considered that approval of the Union Public Service Commission was required although the sub-rule itself indicated that only an advice was required to be given by the Union Public Service Commission and suitable directions were to be issued to the State Government. The argument again turned on the question that Sahney was posted against an ex-cadre post from 1-8-1968 to 12-10-1969 and Ahluwalia having continued against a cadre post for more than six months, the advice of the U.P.S.C. was required under the rule. Since such an advice was neither solicited nor given, Ahluwalia had to suffer and it would be held that there was a break in his service between 1-8-1968 and 12-10-1969.

Then we arrive to Rule 3(3) (b) of the Indian Police Service (Regulation of Seniority) Rules, 1954 (hereinafter to be referred to as the Seniority Rules, 1954). Rule 3 would be relevant:

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.

(2) ....

(3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be-

(a) ....

(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;

....

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 continuous officiation in a senior post shall, for the purposes of determination of his seniority, count only from the date of the inclusion of his name in the Select Lit, or from the date of his officiating appointment to such senior post whichever is later:

Provided that where the name of a State Police Service Officer was included in the Select List in force immediately before the re-organisation of a State and is also included in the first Select List prepared subsequent to the date of such re- organisation, the name of such officer shall be deemed to have been continuously in the Select List with effect from the date of inclusion in the first metnioned Select List.

....

Explanation 4.-An officer appointed to the Service in accordance with sub-rule (1) of rule 9of the Recruitment Rules shall be treated as having officiated in a senior post during any period of appointment to a non-cadre post if the State Government has certified within three months of his appointment to the non-cadre post that he would have so officiated but for his appointment, for a period not exceeding one year, and, with the approval of the Central Government, for a further period not exceeding two years, to a non-cadre post under a State Government or the Central Government in a time-scale identical to the time-scale of a senior post.

....

It was contended that under the proviso to Explanation-l Ahluwalia should be deemed to be continuously in the select list even after re-organisation of the State. In respect of Sahney, however, with reference to Explanation 4, it was contended that he was holding a senior post of Superintendent of Police, C.B.I, which was included in Schedule-Ill of the Indian Police (Pay) Rules, 1954, and under Rule 8 of the said Pay Rules, 1954, he was entitled to draw the pay indicated against that post in the said Schedule, with the result that any certification by the State Government that he was holding an equivalent post was not required to be made. This would have enured a benefit to Sahney and the case of the Petitioner will not be prejudiced even because of the appointment of Sahney against an ex-cadre post.

The last rule which we have to refer is the All India Services (Conditions of Service-Residuary Matters) Rules, 1960. Its Rule 3 has to be referred:

Power to relax rules and regulations in certain cases.- Where the Central Government is satisfied that the operation of-

(i) any rule made or deemed to have been madeunder the All India Services Act, 1951 (61 of1951), or

(ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such extent and subject to such exceptions and conditions, as it may consider necessary for dealing with the case in a just and equitable manner.

It would be an argument on behalf of the Petitioner that subsequently exercising this power of relaxing the rules and regulations, the Union of India has approved the appointment of Ahluwalia against a senior duty post during the period 1-8-1968 to 12-10-1969 and a similar benefit for the entire ex-cadre period has been given to Sahney. We shall deal with that question in the later part of this judgment.

Now we shall deal with the Annexures as the allegations made therein shall reveal the points of contention between the parties. At first, we shall take up Annexure-G dated 3-2-1970:

ANNEXURE-''G'': Copy of letter No. 15/23/68-Z) (S) dated the 3rd February 1970 from the Government of India, Ministry of Home Affairs.

Subject.-Approval of the Union Public Service Commission to the appointment of certain non-I.P.S. Officers against senior posts of the Union territories.

I am directed to inform you that the Union Public Service Commission have agreed, under rule 9(4) of the I.P.S. (Cadre) Rules, 1954, to the continued officiating appointments of the following officers against senior posts of the I.P.S., Cadre of the Union Territories for the period shown against each or till they are replaced by I.P.S. officers, whichever is earlier:

....

Shri V.K. Ahluwalia from 11-11-1965 to 31-7-1968 and from 13-10-1969 to 30-6-1970.

It is thus evident that at that stage the Union Public Service Commission did not agree for the continued officiation of Ahluwalia against a senior duty post for the period between 1-8-1968 to 12-10-1969. This gave rise to an apprehension in the mind of the Petitioner that his seniority would be affected and he started making representations. As a result to his representations, Annexure-L was issued on 8-8-1973. It was to the following effect, although we shall quote only the relevant part of that Annexure:

ANNEXURE-''L'': No. 12-64/68-Apptt. (I), Government of Himachal Pradesh Department of Personnel (A-I), dated SimlaA the 8th August, 1973 from Shri A.K. Goswami, Joint Secretary to the Government of Himachal Pradesh to the Inspector-General of Police, Himachal Pradesh, Simla-4.

Subject.-Fixation of seniority of Sarvshri J. S. Dulat, P.C. Sahney, K.S. Dhaliwal and V.K. Ahluwalia in the Indian Police Service.

Sir,

With reference to the correspondence resting with your letter No. A-2-34/72-II-20604, dated the 16th May, 1973, I am directed to inform you that the Government of India, Ministry of Home Affairs have determined the seniority of Sarvshri J. S. Dulat, P.C. Sahney, K.S. Dhaliwal and V.K. Ahluwalia inter sewiih the I.P.S. officers of Himachal Pradesh. These officers have been allotted the year 1966 and accordingly placed below the name of Shri N.S. Sandhu, I.P.S., who is the junior most direct recruit of 1966 batch and above Shri A.K. Puri, i.p.s. of 1967 batch for purpose of seniority, in the order given below:

Shri J.S. Dulat

Shri P.C. Sahney (since retired)

Shri K.S. Dhaliwal

Shri V.K. Ahluwalia.

While giving reasons for assigning seniority of 1966, the Government of India observed-

The service rendered by these officers against the cadre posts cannot be counted for purpose of fixation of seniority keeping in view the clarification (1) and (2) given under rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules, 1954 for the reason that they have not been on a valid list during the period from 1-1-1968 to 12-1-1971. Till the Government of India takes a general decision on the desirability of the relaxation of the rule and other matters relating to the extent of relaxation in favour of these officers, Sarvshri J.S. Dulat and other three officers have been assigned the senority with reference to the 13th January, 1971.

All the concerned officers may kindly be informed accordingly.

Youfs faithfully, Sd/- A.K. GOSWAMI Joint Secretary to the Govt. of Himachal Pradesh. 14. It is thus evident that the Petitioner was given the seniority with reference to the date 13th January, 1971 and the obvious reason given was that his period of officiation between 1-1-1968 to 12-1-1971 was never considered. During this period the Union territory cadre was in vogue and it was somehow felt that the select list of the joint cadre of Himachal Pradesh and Delhi officers was defunct and did not remain operative. The result was that the Petitioner was considered to officiate against a senior duty post only from 13th January, 1971. That was the decision of the Government of India which was given in 1973. The Petitioner made representations which resulted in the subsequent issuance of Annexures MandN which need be referred at this stage:

ANNEXURE-M-MINISTRY OF HOME AFFAIRS. dated July, 1975.

MEMORANDUM:

S/Shri J.S. Dulat, P.C. Sahney (retired), K.S. Dhaliwal and V.K. Ahluwalia were appointd to the Indian Police Service by promotion from the State Police Service on the 30th January, 1971 and allocated to the Himachal Pradesh cadre of Service.

Prior to their appointment in the Indian Police Service, these officers were holding the following posts:

...

...

...

All these officers were officiating against cadre and ex-cadre posts as stated in para 2 above, from the time they were first included in the Select List of the then D.H.P. Joint Cadre. The said select list, however, became inoperative on 1-1-1968. The next Select List for the U. Ts. Cadre, in which all these officers were included, was approved only with effect from 13-1-1971. Their officiation in cadre posts was approved by the Central Govt, in consultation with the Union Public Service Commission.

...

...

As these four officers were not in any select list during the period 2-1-1968 to 12-1-1971, this period constituted a break in their continuous officiation for the purpose of Explanation (2) below Seniority Rule 3(3)(b) and none of their officiation rendered prior to 13-1-1971 could be counted for the purpose of senirioty. Their seniority was, therefore, determined with reference to 13-1-1971 only.

...

...

...

The Govt, of India in the Ministry of Home Affairs have, therefore, re-examined the cases of seniority of these officers and have come to the tentative conclusion that undue hardship has been caused to them.

...

The fact that there happened to be no select list in force for 3 years has operated harshly against them as they cannot count this period for purposes of seniority.

...

...

The officiation of these officers as well as that of Shri J.S. Dulat and V.K. Ahluwalia in the cadre posts have already been approved by the Government of India in consultation with, the U.P.S.C. under rule 9(4) of the I.P.S. (Cadre) Rules, 1954.

...

it is proposed to relax the rules in their favour.

...

...

S/Shri Dulat, Sahney and Dhaliwal would be allotted to the year 1955 and Shri Ahluwalia to the year 1961 and Shri I.J.S. Sodhi (R.R.-1955) was the junior most regular recruit who had started officiating in a senior post from a date prior to 9-6-1962 and Shri R.R. Varma (R.R.-1961) had started officiating in a senior post from a date prior to 11-11-1965.

...

...

S/Shri Gangbir Singh and others, whose seniority in the I.P.S. is liable to be affected adversely by the decision proposed above, are hereby given an opportunity to show cause as to why the seniority of these four officers (including Ahluwalia) should not be revised upwards in the manner stated above. Any representation which they may wish to make should be submitted in writing through the Government of Himachal Pradesh...

Sd/- K.S. BIST, Under Secretary to the Government of India.

Although this Annexure-M indicated the tentative proposals of the Government of India and said that representations were invited from Gangbir Singh and others against the upgraded seniority given to Ahluwalia and others, yet it is evident from the observations made that the officiation of Ahluwalia against the cadre post during the period 1-1-1968 to 13-1-1971 was approved by the Central Government in consultation with the Union Public Service Commission. We have to make mention of this fact because subsequently the Government of India did not adhere to this decision, and while issuing Annexure-N very much stated that the officiation period between 1-1-1968 and 12-10-1969 in the case of the Petitioner would not be considered a continuous service against a senior duty post. That is why he was given the year of allotment with reference to the date 13-10-1969. Now we shall refer to Annexure-N which is the impugned Annexure in this writ petition.

"ANNEXURE-''N''. NO. 14014/88/75-AIS (I) GOVERNMENT OF INDIA/BHARAT SARKAR

Department of Personnel and Administrative Reforms New Delhi, dated the 26th June, 1976

ORDER

Whereas S/Shri J.S. Dulat, P.C. Sahney, K.S. Dhaliwal and V.K. Ahluwalia, State Police Service Officers of Himachal Pradesh were appointed to the I.P.S. vide the Department of Personnel Notification No. 19/4/71-AIS (III), dated the 1st February, 1971, and allocated to the cadre of Himachal Pradesh;

AND WHEREAS, prior to their appointment to the I.P.S. S/Shri J.S. Dulat and others held the following posts:

...

...

AND WHEREAS, the matter was considered and the I.A.S./I.P.S, (Regulation of Seniority) Rules, 1954 were further amended vide the Ministry of Home Affairs Notification No. 39/25/68 A.I.S. (Ill), dated the 10th March, 1970 whereby the Seniority Rules were liberalised to the extent that period of ex-cadre officiation could count subject to the fulfilment of the conditions prescribed in Explanation IV to rule 3(3)(b) of the I.A.S./I.P.S. (Regulation of Seniority) Rules, 1954 as introduced by the above said amendment of 10th March., 1970.....it was tentatively decided vide Ministry of Home Affairs D.O. letter No. 24/16/71-Pers. II, dated the 21st July, 1975 to relax the provisions of the I.P.S. (Regulation of Seniority) Rules, 1954 and assign to each of S/Shri J.S. Dulat, P.C. Sahney and K.S. Dhaliwal, 1955 as the year of allotment. Shri V.K. Ahluwalia was proposed to be assigned 1961 as his year of allotment.

...

SHRI P.C. SAHNEY,

Shri P.C. Sahney held an ex-cadre post in the Central Bureau of Investigation from the 7th December, 1964 to the 6th October, 1969. Under the defunct Explanation 2 to rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules, 1954, the State Government were required to issue a certificate to the effect that but for his deputation to an ex-cadre post, the officer would have continued to officiate against a cadre post. Such certificate was not issued by the cadre authority. It is, therefore, inferred that the post held by Shri Sahney was not equivalent to cadre post.....The crucial date for fixation of year of allotment of Shri P.C. Sahney would be the 13th October, 1969. Accordingly, his year of allotment will work out to 1965.

SHRI K.S. DHALIWAL AND V.K. AHLUWALIA

There was no select list for the period between the 1st July, 1968 and 12th January,1971 because of the re-organisation of the Delhi Himachal Pradesh Cadre into the U.T. Cadre.....The Government of India have considered the matter and have come to the conclusion that there may not be any objection to consider both these officers as continuously on the select list ignoring the void between 1-1-1968 and 12-1-1971 so as to avoid any undue hardship. However, the service rendered by S/Shfi Dhaliwal and Ahluwalia on cadre posts prior to the 13th October, 1969 cannot be counted for purposes of their seniority in the I.P.S. inasmuch c.s there was a break in the continued officiation against cadre posts by these officers for the period from the 1st August, 1968 to 12th October, 1969. Their officiation against cadre posts for the period from 1st August, 1968 to 12th October, 1969 was not approved by the Government of India because Shri P.C. Sahney, the officer senior to them in the select list was holding ex-cadre post under the Government of India. Thus the appointment of S/Shri K.S. Dhaliwal and V.K. Ahluwalia to cadre posis was in violation of Regulation 8 of the I.P.S. (Appointment by Promotion) Regulations, 1955....

In the circumstances the crucial date for purposes of fixation of their seniority in the I.P.S. would be 13th October, 1969 from which date their service against cadre posts was duly approved under rule 9(4) of the I.P.S. (Cadre) Rules, 1954. Accordingly the year of allotment of each of these two officers would work out to 1965.

...

...

Now, therefore, in exercise of the powers conferred by rule 3 of the All India Services (Conditions of Service- Residuary Matters) Rules, 1960, the Government of India hereby relax the provisions of rule 3(3) (b) of the I.P.S. (Regulation of Seniority) Rules, 1954 and re-determine the seniority of S/Shri J.S. Dulat and others by giving them the benefit of the service rendered by them against cadre posts from the date indicated against their names:

...

... Shri V.K. Ahluwalia 13th October, 1969

Sd/- R.S. SHAKUNT, Desk Officer to the Government of India."

It is evident from this Annexure that the void between 1-1-1968 and 12-1-1971 when the U.T. Cadre was in force as the argument was that the select list no longer existed for that period was not considered a void in the case of the Petitioner. Rather the decision of the Government was that he would be deemed to be continuously serving against a cadre post during this period. It is also evident that the Government of India exercised its power of relaxing the rules and regulations and conferred the benefit upon the Petitioner but only to a limited extent. The void between 1-1-1968 and 12-10-1969 was, however, considered a void in the service. The only reason assigned was that Regulation 8 was violated due to the difficulty arising because of the posting of Sahney against ex-cadre post during this period.

The other two Annexures are by far important. After the filing of the writ petition perhaps the Government of India realised not only the hardship committed against the Petitioner but also the mistake committed by them in assigning the year of allotment. Under Annexure-X, dated 29th June, 1978 which we shall now quote, in part, an argument was advanced in favour of the Petitioner and by way of relaxation of Regulation 8 as well as the other rules, the year of allotment proposed for the Petitioner was 1961. Yet, the Government of India did not want to take a final decision. They asked for representations from other officers. We shall proceed to Annexure-X:

"ANNEXURE-''X'': No. 24/16/71-Pers. II (IPS) GOVERNMENT OF INDIA/BHARAT SARKAR Ministry of Home Affairs/Grih Mantralaya New Delhi, dated 29th June, 1978

MEMORANDUM

S/Shri P.C. Sahney, K.S. Dhaliwal and V.K. Ahluwalia were appointed to the Indian Police Service by promotion from the State Police Service on 30th January, 1971 and allocated to the Himachal Pradesh Cadre of Service.

Prior to their appointment to the Indian Police Service, these officers were holding the following posts.

...

...

In accordance with regulation 8 of I.P.S. (Appointment by Promotion) Regulations, 1955, the Select List Officer are to be appointed to the Cadre Post in the Order in which their names appear in the Select List. As such in cases where a senior select list officer was not holding a cadre post, the officiation in a cadre post of a junior officer in the Select List was not approved by the Central Government because the appointment of Junior Select List Officer to a cadre post was violative of the provisions of regulation 8 of the Promotion Regulations.

... Accordingly, it was decided that the rules may be relaxed to count the period of officiation against w-cadre posts so as to give benefit of the service rendered by the junior officers in the cadre post for the purpose of seniority. Applying the ratio of the case of U.T. Cadre, the Government of India has come to the conclusion that the appointment of Shri P.C. Sahney in the C.B.I, on deputation basis from 7-12-1964 to 6-10-1969 was made by the Central Government in public interest since Shri Sahney belonged to the U.T. Cadre which was managed by the Central Government. It can, therefore, be said that the question of misuse of provisions of rules and regulations by the State Government in this case does not arise. The Certificate that but for his appointment to ex-cadre post in the C.B.I., Shri Sahney would have continued against a cadre post, was to be issued by the Ministry of Home Affairs and the fault, if any, lies with the Central Government and not with any State Government. It has, therefore, been tentatively decided to count the ex-cadre officiations of Shri P.C. Sahney from 7-12-1964 to 6-10-1969 for the purpose of seniority in relaxation of the provisions of the I.P.S. (Regulation of Seniority) Rules, 1954.

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... In view of the counting of ex-cadre officiation of Shri P.C. Sahney for the period 7-12-1964 to 6-10-1969, the cadre officiation of S/Shri K.S. Dhaliwal and V.K. Ahluwalia prior to 13-10-1969 will not be violative of the provisions of regulation 8 of I.P.S. (Appointment by Promotion) Regulations, 1955. It is, therefore, proposed to count the entire cadre officiation of S/Shri''K.S. Dhaliwal and V.K. Ahluwalia for the purpose of their seniority. Accordingly, the crucial date in respect of S/Shri K.S. Dhaliwal and V.K. Ahluwalia shall be 28-3-1965 and 11-11-1965 respectively.

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... S/Shri Gangbir Singh and others, whose seniority in the I.P.S.,Cadre of Himachal Pradesh is liable to be affected adversely by the decision proposed above, are hereby given an opportunity to show cause as to why the seniority of S/Shri P.C. Sahney, K.S. Dhaliwal and V.K. Ahluwalia should not be revised upwards as stated above.

Sd/- A. JAYARAMAN, Under Secretary to the Government of India.

As we have stated above, although the entire period of service rendered by Ahluwalia against a senior post was regularised and even a reference was made to the power of the Government of I ndia to relax rules and regulations, yet representations were invited from Gangbir Singh and others and the matter was laid at rest there. A subsequent Annexure-Y, however, clarified the position. Ultimately it was found that the period between 1-8-1968 and 12-10-1969 when cadre post was held by Sahney could not adversely affect the officiation of Ahluwalia. Accordingly, the Government of India approved that period of officiation. Annexure-Y is to that effect.

"ANNEXURE-''Y'':

Copy of letter M. 7-13/65-Apptt. (Part-II) dated 1-12-1978 from the Joint Secretary (Personnel) to the Government of Himachal Pradesh, Simla-2 to the Inspector-General of Police, H.P. Simla-l with a copy to Accounts Officer (Appointment) H.P. Sectt.

Subject.-Indian Police Service (Cadre) Rules, 1954-Union Territories-Non-cadre officers holding cadre posts-Approval under rule 9 of the-

The undersigned is directed to convey the ex-post-facto approval of the Government of India in consultation with the Union Public Service Commission, under rule 9(4) of the Indian Police Service (Cadre) Rules, 1954, to the officiating appointment of the following five officers in the Indian Police Service Cadre posts of the Union Territories Cadre for the period from 1 -8-1968 to 12-10-1969:

Shri K.S. Dhaliwal

Shri R.S. Anand (Retd.)

Shri V.K. Ahluwalia

Shri B.N. Mehra

Shri S.S. Palta (Retd.)

In this connection this Ministry''s O.M. No. 2/2/69-AIS (III), dated 13-2-1970 also refers.

Under this Annexure, the period of officiation of the Petitioner between 1-8-1968 to 12-10-1969 was approved by the Central Government after due consultation with the Union Public Service Commission. The only consequence was that the Petitioner would be deemed to be officiating during this period against a senior duty post and any stigma attached to him due to the officiation of Sahney against an ex-cadre post during this period lost its significance. The other significant consequence was that no longer any violation of Regulation 8 sustained. Alternately, the Government of India could be stated to have relaxed Regulation 8 to the extent mentioned in this Annexure.

Now we shall go straight to the points of contention between the parties. There were two main objections of the Government of India for giving 1961 as the year of allotment to the Petitioner. The first objection was that the period between 1-1-1968 and 12-1-1971 was to be considered a break in service because during this period the Union Territory Cadre was in force and the select list meant for Himachal Pradesh and Delhi officers had become defund. The second objection pertained to the period 1-8-1968 to 12-10-1969 when Sahney, a senior officer of the select list, was working against an ex-cadre post and it was stated that Ahluwalia could not be given the benefit of that period for it would lead to violation of Regulation 8. As regards the first objection. Annexure-N (supra) clearly gave a decision in favour of Ahluwalia. It was specifically mentioned therein that the period between 1-1-1968 and 12-1-1971 could still be counted as a period of regular appointment for Ahluwalia and the mere fact that the seniority list for Delhi and Himachal Pradesh cadre had become defunct would be of no avail. A reference was made to Explanation-1 and to Explanation-4 of Rule 3(3)(b) of the Regulation of Seniority Rules. Ahluwalia could be considered to have continued against a valid select list for the entire period. As submitted by Shri D.K. Khanna, the learned Counsel for the Petitioner, Sahney was also holding a senior post under Schedule III of the Pay Rules 1954; and since he was getting the pay against that post under the said rule, any certification by the State Goverr.menl was not required to be given. Being governed by the considerations the Government of India ultimately decided in favour of both Sahney and Ahluwalia and this period of officiation jy Ahluwala between 1-8-1968 and 12-10-1969 was approved after consideration by the Union Public Service Commission Thus, the first objection of the Government of India no longer prevailed after Annexure-N. As regards the second objection, in our opinio.!, it was not validly sustainable. Regulation 8 (supn) in case of Ahluwalia was amply followed. He was an officer of the select list and when he was appointed against a cadre post on 11-11-1965, the seniority fixed in the select list was duly protected. Once he got the appointment under Regulation 8, die said Regulation spent its force, and it could not be stated that subsequently because of Sahney, who was integrated from Punjab service, Ahluwalia lost his appointment from that select list or his appointment validly made from that select list was in any manner prejudiced. In our opinion, Regulation 8 once exhausted in a proper manner and once applied in the case of Ahluwalia in a legal manner could not be brought into force subsequently due to the integration of Sahney in the Service and his officiation against an ex-cadre post, so as to affect the rights of the Petitioner. A valid appointment of a junior officer initially made under Regulation 8 will not be invalidated subsequently because a senior officer is inducted in (the same select list who prefers to remain posted against an ex-cadre post. It could not but be stated that while the Petitioner was appointed from the select list in 1965 the order of seniority in the select list was duly observed. The Government of India subsequently somehow inferred that because Sahney was working (against an ex-cadre post, Ahluwalia had to vacate the cadre post. In our opinion, that could not be inferred by the application of Regulation 8 nor could it be stated that the said Regulation was not followed in the case of the Petitioner. It is also somewhat incongruous and appears to be highly prejudicial to the rights of the Petitioner that the appointment of Sahney at a later stage would have thus affected all the junior officers including Ahluwalia who remained continuously appointed against a senior duty posts. It was for the Central Government to have then and there directed Sahney to take up the cadre post and in consequence Ahluwalia or any other junior officer would have vacated the said pose in favour of Sahney. It may be for his own personal reasons that Sahney accepted the ex-cadre post or the Government of India in public interest gave that post to him. All this would not be prejudicial to the rights of the Petitioner. In that connection we shall refer to two decisions, of which one is S. Palanivelu and Ors. v. Union of India and Ors. (Writ Petition No. 3540 of 1974 of the Madras High Court decided on 18-1-1977). That was a case in which a similar situation had arisen and junior officers in the cadre were liable to be affected because a senior officer was given an ex-cadre post. The following observations would be pertinent for our decision:

It was then contended by the learned Counsel for the direct recruits that if there is a break in the officiation of a person whose name is above the officer concerned in the select list, such break in service would affect every one of officers junior to him in the matter of assignment of the year of allotment and fixing up seniority though the junior officers themselves might have officiated continuously for a longer period in a senior post. In support of this contention the learned Counsel referred to rules 8 and 9 of the Promotion Regulations. This argument was on the basis that in case of Palanivelu who was senior to the others, there was a break during 22-4-1967 to 30-4-1967 and that would affect his juniors. On the finding that there was no break in service even in the case of Palanivelu this point does not arise. But for the sake of completeness, I am discussing this point also below.

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this rule implies that the State Government shall not appoint a member of the State Police Service whose name is in the select list to a non-cadre pest which is not declared equivalent to a cadre pest and appoint the officer next in order in that list in a cadre post or a post declared equivalent to cadre post, except in these exceptional circumstances mentioned in the proviso thereto. But I am unable to agree that if the State Government contravenes this provision, it could affect the service of the person who was posted in the cadre post. It might be that in such a case the person whose name is found earlier in the select list than that of the person who was appointed to a cadre post or a non-cadre post declared equivalent is entitled on equitable grounds to either for relaxation of the rules relating to continuous officiation or to treat the period during which he held the non-cadre post as not amounting to a break in officiation, but it cannot affect the officers who had continuously officiated in cadre post. The merits of each one of the officers and the date from which he had officiated continuously in a senior post would have to be determined only with reference to his own case and the rights determined accordingly and it cannot be made to depend on his senior qualifying of not qualifying for any privilege or allotment. Any other construction in my opinion may lead to the causing of a possible or even deliberate injurious affectation of the junior officer by the senior officer. In a conceivable case, a senior officer might even opt to hold a non-cadre post either for immediate monetary benefits or on the ground that he might not have any chance for promotion before retirement or to give seniority to a direct recruit over his junior. The junior officer in the select list could not also be affected by the action of the Government in not posting a senior in a cadre post as that was not in his hands or power. Therefore, even if it is to be assumed that there was break in the continuous officiation in senior post for the period from 22-4-67 to 30-4-1967 in the case of Palanivelu the right of the other officers could not be affected.

His lordship in this case was obviously considering the case of a junior officer who was held to be continuously officiating against a senior post but was likely i:o be affected because his senior chose to prefer an ex-cadre post. Jit was held that the service rendered by the junior officei against a senior post would not be adversely affected and he was nonetheless entitled to get the benefit of continuous officiation against that post. A similar situation has arisen in tae present case, because Sahney chose to prefer an ex-cadre post, Ailuwalia could not be considered to have discontinued his officiation for the period under dispute. The second case which we think to refer in this connection is of the Punjab High Court : Shri Harjeet Singh, I.P.S. v. The Union of India 1973 (2) SLR 382 . Rule 9(4) of the I.P.S. (Recruitment) Rules, 1954 was considered in this authority. A non-cadre officer officiated against e. cadre post and it was held:

It is not provided in these rules that the approval of the Central Government to continuous officiation of a non-cadre officer in a cadre post is required. All that can be gathered from these rules is that if the Government of India issues a direction to terminate the appointment of non-cadre officer on a cadre post, the State Government has to comply with that order. In this case it is nowhere pleaded that the Central Government at any time required the State Government to remove a non-cadre officer from a cadre post and appoint a cadre officer thereto during the period the Petitioner held the post of Commandant, 25th Battalion and 40th Battalion, P.A.P. The non approval of the officiation of the Petitioner in the cadre post of Commandant, 25th Battalion, P.A.P. during the period from July 2, 1966 to October 31, 1966, is, therefore, of no consequence.

All that we have to see under rules 2(g) and 3(3)(b) of the Seniority Rules is the date from which an officer on the Select list started officiation in a cadre post and continued in that post till he was appointed to the Service in accordance with the Promotion Regulations. In my opinion, it is physical occupation of a post that counts for continuous officiation as an officer on the Select List can continue to hold a post only under the orders of the appropriate authority and not on his own.

In this case the learned Judge emphasised the physical occupation of the post by the officer. It was held that under Rule 9(4) really the approval of the Central Government is not required. The matter has to be referred to the Union Public Service Commission and any advice received from there has got to be followed. In the case of the Petitioner, if such an advice was neither solicited nor given by the Union Public Service Commission, the fault was not of the Petitioner. However, even that defect is now cured inasmuch as under Annexure-Y the approval of the Central Government has been received after consultation with the Union Public Service Commission. Nevertheless, we wish to make it clear that even prior to Annexure-Y if the Central Government did not care to obtain the advice of the Union Public Service Commission, nor any direction was given to the State Government to discontinue the services of the Petitioner during this period against a cadre post, the fault did not lie with the Petitioner. His physical occupation of a senior post during this period was sufficient.

Apart from what we have stated above, and as evident from several Annexures, the Central Government had the power to relax the rules and regulations under the Residuary Rules of I960- They have referred to that relaxatisson in the Annexures referred to above. Therefore, in exercise of that valid power conferred under a statute, the officiation of the Petitioner during the relevant period was validated. That would be an additional argument in favour of the Petitioner. As regards Sahney, his period of service against an ex-cadre post could not but be considered officia,tipn against a senior post. That is with reference to Schedule III of the Pay Rules, 1954. In that connection we have to refer to another case of Patna High Court : Lalit Vijoy Singh v. The Union of India 1974 (1) SLR 692. In that case the Petitioners were the direct recruits, and they were cadre officers posted against ex-cadre posts. The Respondents 3 to 5 were pro-motees, and like the Petitioners they were in continuous officiation against cadre posts. The Petitioners direct recruits in that case having remained posted in ex-cadre posts filed a writ petition challenging the appointment of Respondents 3 to 5 against cadre posts. They claimed seniority over them with reference to the year of allotment. The petition was dismissed and it was held that the Respondents 3 to 5 in that case although promotees were in continuous officiation against cadre posts for no fault of theirs. They could not be disturbed by the direct recruits who could not claim seniority over them. The contention before their Lordships was that the direct recruits, who were the Petitioners, were appointed to non-cadre posts and that the cadre posts were illegally and unjustifiably given to the promotees officers by the State Government. A question arose for the approval of the Central Government under Rules 9(4) of the Cadre Rules. It was contended that the Respondents 3 to 5 in that case were allowed to continue in the cadre posts in violation of the said provision of law. This plea is in peri materia similar to the plea of the Government of India in this case inasmuch as it was at one stage contended that the Petitioner''s appointment was in violation of Regulation 8. Their Lordships referred to Schedule III of the Pay Rules, 1954 and held:

Under rule 8 of the Indian Police Service (Pay) Rules, 1954, any member of the Service appointed to hold a post specified in Schedule III, shall, for so long as he holds that post, be entitled to draw the pay in accordance with rule 8. Rule 9 provides that 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 the post under its control makes a declaration that the said post is equivalent in status and responsibility to a post specified in the Schedule. Thus, when a post is declared equivalent in status and responsibility to the schedule post, a member of the Service, becomes entitled to draw the same pay.

I now come to the consideration of the relevant provisions of the Regulation of Seniority Rules. At the relevant time, in clause (g) of rule 2 ''senior post'' was defined to mean ''a post included under item 1 of each Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955, framed under sub-rule (1) of rule 4 of the Indian Police Service (Cadre) Rules, 1954, or any post declared equivalent thereto by the State Government concerned''. This definition was drastically amended by notification dated 17-4-1967, and after amendment ''senior post'' means ''a post included and specified under item 1 of the cadre of each State in the Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955'' and includes certain other posts but not a post declared equivalent thereto by the State Government concerned. At the relevant time, if a post was declared as senior post by the State Government, then for the purposes of Regulation of Seniority Rules the post was to be treated as senior post and officiation of any officer appointed to the Indian Police Service by direct recruitment or by promotion in such a post was to be taken into consideration in accordance with rule 3 for fixation of the year of allotment.

Their Lordships further observed:

If by exceeding the deputation reserve by deputing the cadre officers to the non-cadre posts something wrong had been done by the State Government, it was open to the Central Government to immediately put a check on it and to say that suitable cadre officers were available for cadre posts, and by the device of sending those officers to non-cadre posts rooms could not be made for the non-cadre officers for officiating in the cadre posts. But nothing of the kind was written by the Central Government, no such action was taken. It is no doubt true that for counting the period of officiation in the senior post, for the purposes of assignment of the year of allotment under rule 3(3)(b) of the Regulation of 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. But merely because there was some irregularity in the officiation, the Court will not be justified in setting aside the order of fixation of the allotment year of a promotee.

It is, therefore, evident that the period of officiation of the Petitioner during 1-8-1968 to 12-10-1969 could not be considered to be invalid or irregular on any such ground.

We, therefore, conclude that the Government of India wrongly decided that the officiation of the Petitioner between the period 1-1-1968 and 12-1-1971 or during the period 1-8-1968 to 12-10-1969 could not be considered valid officiation. Rather he was continuously holding a cadre post throughout this period, and the benefit regarding seniority will have to be given for the entire period. The decision being wrong and invalid under the very Rules and Regulations applied by the Government was subsequently set right by them under Annexure-Y. Miss Kamlesh Sharma, the learned Counsel of the Union of India, however, contended that the present writ petition has become infructuous as, according to her, relief is already granted to the Petitioner. For this we have to say that the Government of India has frequently changed its stand. It is so evident from Annexures-L, M and X. In the last Annexure-X they have once again asked for the objections by other affected officers. Therefore, it would be incorrect to say that the matter is finalised at the Government level. Annexure-X is still there and one does not know in what manner they are going to decide the objections submitted by the representationists. In that connection it has also been brought to our notice that a writ petition is filed by some of the officers against the Petitioner and others before the Delhi High Court and in that writ petition, for which Respondent No. 5 very much stated before us, Annexure-X is challenged and some interim order has also been passed. In the light of this objection raised by Respondent No. 5, and which is not controverted by the learned Counsel for the Union of India, we think it proper to give our own considered decision on the points of contention raised in this petition. We, therefore, hold that the present writ petition has not become infructuous nor can it be stated that the relief is already granted to the Petitioner. As regards the contention ofRespondent No. 15 Shri K.S. Dhaliwal, it is already conceded on behalf of the Petitioner that Dhaliwal is senior to the Petitioner and as such he should have no grievance on that account. This is obviously due to the decision of the Government of India conveyed under Annexure-Y.

As regards Respondent No. 5, who argued the case before us, he referred to the very jame contentions as were previously raised by the Government of India. We have already given our considered opinion on all these contentions.

The upshot of all that we have stated above is that the Petitioner shall be given the benefit of his continuous officiation against a senior post for the entire period from 11-11-1965 to the date of his appointment in the Indian Police Service. His year of allotment shall be determined under Rule 3(3)(b) of the Seniority Rules keeping in view that he started his continuous officiation from 11-11-1965. In consequence, Annexure-N is quashed to the extent the said Aonexure held a view contrary to our decision. It is declared that the Petitioner continued and should be deemed to have continued to officiate on a senior duty post of the Indian Police Service with effect from 11-11-1965 without any break up to his confirmation in the Indian Police Service. The Petitioner''s seniority shall be determined accordingly and all consequential benefits of seniority shall be granted to him by the Respondents Nos. 1 and 2. The Respondent No. 1 shall determine the seniority of the Petitioner in accordance with our observations made above within three months. The petition is thus allowed with costs. Counsel fee to be assessed at Rs. 300/.

C.J.

I agree.