PETITIONER:
D. RADHAKRISHNAN
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 02/09/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises from the order or the Central Administrative Tribunal, Madras Bench made on January 23, 1995 in OA No.3/92. The admitted position is that the appellant was appointed to Tamil Nadu State Police Services by direct recruitment on October 7, 1979. He was transferred and posted as D.C.P., Law & Order, Madras (South) which is a cadre post, w.e.f. July 27, 1980 and ever since he had been continuously officiating in the cadre post. He was included in the select list, for the first time, on October 26, 1979 approved by the UPSC on December 12, 1979. The same list was continued for the year 1980. But in the select list for the year 1981, he was not included for want of requisite vacancy allotable the State cadre. Consequently, he came to be included again on December 16, 1982 in the select list approved by the UPSC on March 28, 1983. When his seniority was determined the order of allotment indicated that 1978 was fixed as his year of allotment. He questioned the correctness thereof on two grounds, namely, his non-inclusion in the list for the year 1981 was bad in law; he also contended that since he was continuously officiating from 1975 and was included in list for the first time in the year 1979 is year of allotment should be 1975. Both the contentions were negatived by the Tribunal. The question for consideration, therefore, is: whether the Tribunal is right in its conclusion? Rule 3(3) of the IPS (Appointment by Promotion) Seniority Rules reads as under:
"3. Assignment of year of
Allotment.
(1) Every officer shall be assigned
a year of allotment in accordance
with the provisions hereinafter
contained in this rule.
(2) ... ... ... ...
(3) The year af allotment of an
officer appointed to the service
after the commencement of these
rules shall be-
(a) where the officer is appointed
to the service on the results
of a competitive examination
the year following the year in
which such examination was
held;
(b) where the officer is appointed
to the service by promotion in
accordance with rule 9 of the
Recruitment Rules, the year of
allotment of the junior-most
among the officers recruited
to the service in accordance
with rule 7 of these Rules who
officiated continuously in a
senior post from date earlier
than the date of commencement
of such officiation by the
former.
Provided that the year of allotment
of an officer appointed to the
Service in accordance with Rule 9
of the Recruitment Rules who
started officiating continuously in
a senior post from a cadre earlier
than the date on which any of the
officers recruited to the service,
in accordance with rule 7 of those
Rules, so started officiating shall
be determined ad hoc by the Central
Government in consultation with
State Government concerned.
Explanation l - 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
senior post shall, for the purpose
of determination of his seniority;
count only from the date of
inclusion of his name in the select
list, or from the date of his
officiating appointment to such
senior post whichever is later."
This rule was considered by Bench of three Judges of this Court in Syed Khalid Rizvi & Ors. vs. Union of India & Ors. [(1993) Supp. 3 SCC 575]. After an elaborate consideration, in paragraph 21 of the judgment this court had held as under:
"Thus it is settled law that a
promotee officer appointed
temporarily under Regulation 8 of
Promotion Regulation and Rule 9 of
Cadre Rules to a cadre post does
not get his/her continuous
officiation towards seniority.
Seniority would be counted only
form the date on which he/she was
brought into the select-list by the
selection committee in accordance
with Recruitment Rules, Promotion
Regulations and Seniority Rules and
was approved by the UPSC, appointed
under Rule 9 of Recruitment Rules
and Regulation 9 of Promotion
Regulations and has continuously
officiated without break Seniority
would be entitled form the date of
select-list or continuous
officiating which ever is later.
He/she is entitled to appointment
by the Central Government to
substantive vacancy under
Regulation 9 of Promotion
Regulations form that date. The
Central Government and the UPSC
should approve temporary
appointment by an order in writing
and also of such officiating. In
that event seniority would be
counted only from the date, either
of his/her inclusion in the select-
list or form the date of
officiating appointment to the
cadre post whichever is later. By
operation of Explanation 1 to Rule
3(3)(b) of the Seniority Rules, his
seniority will be counted only from
either or the later dates and the
necessary effect is that the entire
previous period of officiating
should be rendered fortuitous and
the appointment as ad hoc
appointment or by local
arrangement."
This was again reconsidered by another Bench of two Judges of this Court in R.R.S. Chouhan & Ors. vs. Union of India & Ors. [(1995) Supp. 3 SCS 109]. This Court in the latter judgment has held that in the matter of year of allotment, the basis should be the date of inclusion or of continuous officiation, whichever is later. It was held that where an officer continuously officiating as Officer on Special Duty, was promoted to the IFS after his name was included in the select list for the IFS in different years except in the year immediately preceding the year of his promotion, assuming that the post of OSD was a senior post, benefit of such officiation was held to be not available in assignment of year of allotment to him since he was include in the select list in the later year by operation of the Explanation II to Rule 3(3) of the Rule.
Thus, we hold that the appellant was entitled to his year of allotment only from the date when he was later included in the select list in the year 1982. Accordingly, 1978 as his year of allotment was immediately below the direct recruits in the cadre.
The appeal is accordingly dismissed. No costs.