DEVENDRA NARAYAN SINGH AND ORS.versusSTATE OF BIHAR AND ORS.

A                 DEVENDRA NARAYAN SINGH AND ORS.
                                           v.
                          STATE OF BIHAR AND ORS.

                                OCTOBER 24, 1996
                                                                             1/
B               (K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

          Service Law

          Indian Police Se1vice (Promotion by Recrnitment) Regulations,
C 1985-Regulation-9(b ).
           Indian Police Service (Regulation of Sr.ni01ity) Rules, 1954-Rule
    3(iii)-Promotion-To Cadre of Indian Police Servic~ from state Police
    Service Year of Allotme111'c---Challenge of-As per direction of Supreme Court
    to prepare select list for the year 1983-The select list prepared infact i~ 1985
D   and allotment year given accordingly must be deemed to be for the year
    1983--Direction to Union Govemment to re-detennine the year of allotment
    of the appellants 011 the premise that they were included in the select list of
    1983.

          A Select List of 18 Officers of Bihar State Police Service, was made
E for promotion to the 7 vacancies in the Cadre of Indian Police Service.
    Appellants challenged the said Select List, in writ petition before High
    Court, wherein the Court directed the state to prepare fresh Select List for
    the year 1983. The spec:ial leave petition against the High Court's order,
    filed by the state, was d.ismissed upholding the order of the High Court.
F         Pursuant to the order of this Court, the Selection Committee
    prepared the select List in 1985 which was approved in 1986 and the
    appellants were appointed in 1987. Respondent Union Government passed
    the order assigning the appellants the year of allotment as 1981.

G        Appellants chalknged the order of the respondent Union Govern-
    ment, claiming the year of allotment to be 1979, vide application before
    Central-Administrative Tribunal. The Tribunal rejected the claim of the
    appellants.

          In appeal to this Court, appellants contended, that though the Select
H List was prepared in 1985, was in fact, Select List of 1983. Therefore, in
                                          732
          DEVENDRANARAYANSINGHv. STATE[PATIANAIK,J.]                     733

 the eye of law it must be deemed that the appellants were in Select List of A
 1983. The respondent Union Government contended that an officer gets
 included in Select List, only when the Select List prepared by appropriate
·authority gets approval. of UPSC. The Select List having been approved
 only in· 1986, allotment year has been rightly determined.

        Allowing the appeal, this Court                                         B

       HELD : 1.1. Though the list in question was made in the year 1985
pursuant to the direction of this Court, and was approved by the Union
Public Service Commission in 1986, but in the eye of law it must be deemed
to be a list for the year 1983. The Tribunal committed error in ignoring        C
the earlier direction of this Court and the legal fiction by which it must be
held that the appellants were included in the Select List of the year 1983.
The Union Government committed serious error in determining the year
of allotment of the appellants on the basic that they were in the Select List
from the date of approval of the list by the Union Public Service Commis·
sion i.e. 1986. [737-A-D]                                                       D
      1.2. The· Union Government is directed to redetermine the year of ·
allotment of the appellants on the premise that they were included in the .
Select List of.1983. Further the appellants are entitled to consequential .
benefits. [737-E]
                                                                                E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 13236 of
1996.

      From the Judgment and Order dated' 5.9.95 of the Central Ad-
ministrative Tribunal, Patna in 0.A. No. 12 of 1993.                            p
      P.P. Rao, Vijay Kumar, J.P. Parihar, Abhay Chandrakant Mahimka
for the Appellants.

        B.B. Singh for the Respondents.
                                                                                G
        The Judgment of the Court was delivered by

        PAITANAIK, J. Leave granted.

     This appeal by special leave is directed against the order dated 5th
September, 1995 of the Central Administrative Tribunal, Patna Bench, H
    734                  SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A Patna in O.A. No. 12 of 1993. The appellants who had been recruited to
    the Bihar State Police Service in the year 1969 were promoted to the Indian
    Police Service in the year 1987 in accordance with the provisions of the
    Indian Police Service. (Promotion by Recruitment) Regulations, 1955
    (hereinafter referred to as the 'Promotion Regulations'). On beif.g ap-
B   pointed to the cadre of IPS they were assigned the year of allotment as
    1981 by the Central Government. They challenged the said order and
    claimed that their year of allotment should be 1979 before the Tribunal.
    The Tribunal by the impugned judgment rejected their claim and having
    dismissed the O.A., the present appeal has been preferred.

C        The case of the appellants in nutshell is that they having been .
  appointed to the Bihar State Police Service on 1.9.1969 were eligible for
  being considered to be included in the Select List prepared under Regula-
  tion 5 of the Promotion Regulations since 1977. But the Committee con-
  stituted under Regulation 3 of the Promotion Regulations did not prepare
D any Select List for the years 1977, 1978, 1979 and 1980. It is only in 1981
  a Select List of 18 officers was prepared to fill-up 7 vacancies ignoring one
  anticipated vacancy during the year. The further case of the appellants was
  that in the triennial review conducted for determining the strength of the
  cadre in the year 1981 the number of senior posts in the said cadre of IPS
  was increased to 137 from 123. But the Selection Committee, though met
E on 14.10.1981, did not take the increase in the cadre strength as a result of
  which the appellants suffered to a great extent. A Writ Petition was filed
  in the Patna High Court which was registered as CWJC No. 5372 of 1983.
  The High Court by order dated 30th July, 1984 came to the conclusion that
  the Selection Committee had committed an error by not taking into ac-
F count the number of vacancies existing as well as number of vacancies likely
  to fall vacant during the year and accordingly directed the Selection
  Committee to prepare a fresh Select List for the year 1983. The State
  government challenged the aforesaid order of the High Court by filing a
  Special Leave Petition in the Apex Court which was ultimately dismissed
  with the observation that the Selection Committee should prepare a fresh
G list for the year 1983 with respect to all the vacancies including the
  vacancies that occurred on account of triennial review by the authorities.
  Pursuant to the aforesaid direction of the Apex Court the Selection Com-
  mittee met on 19.9.1985 and prepared a Select List of 24 officers including
  the appellants for promotion to the Indian Police Service and the appellants
H were ultimately appointed to the cadre of JPS on different dates in the year
        DEVENDRANARAYANSINGHv. STATE[PAITANAIK,J.]                    735

1987. The earliest appointment being of appellant no. 1 on 27.7.1987. The A
Ministry of Home Affairs thereafter issued order dated 4.5.1992 assigning
the appellants the year of allotment as 1981. The appellants then chal-
lenged the same order of the Union Government claiming that the year of
allotment should be 1979 on the ground that the Select List though was
factually prepared in the year 1985 but in the eye .o.f law it relates to the B
year 1983 and the Union Government has not taken that into consideration
while assigning year of allotment. Tlfo Union Government contested the
application before the Tribunal alleging t,herein that no doubt the Supreme
Court had directed to draw a Select List for the year 1983 and the same
was drawn on 9.9.1985 but the appellants having been appointed in the year
1987 pursuant to their name being included in the Select List prepared on C
19.9.1985, their year of allotment has been rightly fixed under Rule 3(iii)
of the Indian Police Service Regulation of Seniority) Rules, 1954
hereinafter referred to as the 'Seniority Rules' and therefore there is no
error in determining the year of allotment of the appellants. The Tribunal
by the impugned judgment came to the conclusion that the year of allot- D
ment of an officer has to be assigned in accordance with the Seniority
Rules, more particularly Rule 3(3)(b) of the said Rules. The Tribunal also
came to the conclusion that the question of assignment of year of allotment
only arises after appointment of the concerned officer to the cadre either
through competitive examination or by promotion from the State Police
Service under Rule 9(1) of the Recruitment Rules. That being the position, E
taking into account the date of appointment of the appellants to the Indian
Police Service Cadre and the date from which the concerned officer was
actually included in the Select List as well as the date of continuous
officiation of the appellants in a senior post, the year of allotment as
determined by the Government is correct. The Tribunal was of the view F
that the appellants being in the Select List since 1986 and having been
appointed in 1987 to the Indian Police Service Cadre, they cannot make
any grievance of their year of allotment being fixed in the year 1979. ·

      Mr. P.P. Rao, the learned senior counsel appearing for the appellants
contended that the Tribunal committed an error in not considering that G
the Select List in which the appellants were included was in fact the Select
List for the year 1983 and for the purpose of determining the year of
allotment in the eye of law it must be deemed that the appellants were in
the Select List of the year 1983. Mr. Singh, the learned counsel for the State
of Bihar on the other hand submitted that pursuant to the directions of the H
    736                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A   Patna High Court as well as the apex Court the State Government did
    consider the case of the appellants for being included in the Select List
    and in fact got their names included in the Select List but Union Public
    Service Commission did not approve the same earlier as a result of which
    the appellants could be appointed only in the year 1987 and as such for
B   the selection made by the Union Public Service Commission as well as
    Union Goveriiment, the appellants Cdnnot claim an earlier year of allot-
    ment. The stand of the counsel appearing for the Union of India on the
    other hand was, an officer gets included in the Select List only when the
    Select List prepared by the appropriate authority gets the approval of the
    Union Public Service Commission. That being the position and the Select
C   List in question h.aving been approved only in the year 1986, the Union
    Government rightly determined the year of allotment of the appellants.

          In view of rival submissions at the bar the question that arises for
    consideration is whether the Union Government and the Central Ad-
D   ministrative Tribunal were justified in coming to the conclusion that it is
    the date of factual inclusion of the appellants name in the Select List and
    their appointments to the Indian Police Service Cadre which would govern
    the year of allotment, notwithstanding the fact that earlier the Patna High
    Court and this Court had given directions that the appropriate authorities
    have committed error in not preparing the list for the year 1983 and the
E   question of inclusion of the appellants name in the Select List for the year
    1983 be re-considered by the State Government.

         Having given our anxious consideration to the relevant Provisions,
  Rules and the Regulations for appointment and for determination of the
F year of allotment and the earlier directions of the Patna High Court as well
  as of this Court, we find sufficient force in the contentions of Mr. P .P. Rao,
  the learned senior counsel appearing for the appellants and we come to
  the conclusion that the Union Government has com1nitted error in treating
  the appellants to have been included in the Select List only from the year
G 1986 which is the factual year of their inclusion in the list and thereby
  determining the year of allotment. We also come to the conclusion that the
  Tribunal committed error in ignoring the fact of the earlier direction of
  this Court and the legal fiction by which it must be held that the appellants
  were included in the Select List of the year 1983. It is not disputed that the
  Patna High Court as well as this Court had issued directions to consider
H the question of inclusion of appellants name in the Select List for the year      t
                                                                                    l
              DEVENDRANARAYAN SINGH v. STAIB [PATTANAIK,J.]                  737 '

      1983 and pursuant to such directions the State Government having re- A
      considered the matter included the names of the appellants in the Select
      List. Though the list in question was made in the year 1985 pursuant to the
      direction of this Court and was approved by the Union Public Service
      Commission in 1986 but in .the eye of law it must be deemed to be a list
      for the year 1983. When the appropriate authorities committed error in not
      preparing the Select List for the year 1983 and the appellants being
                                                                                     B
      aggrieved assailed the same and ultimately this Court directed to recon-
      sider the J?.latter, thereafter, the appropriate authority reconsidered the
      matter and included the appellants name in the Select List for the year
      1986, in the eye of law the said Select List can be held to be the Select List
      for the year 1983. Consequently the year of allotment of those who were        c
      included in the said list has to be determined on the basis that they were
      in the Select List of the year 1983 though factually the list was prepared in
    . the year 1985 and was approved by the Union Public Service Commission
      in February, 1986. The Union Government, therefore, in our considered
      opinion committed serious error in determining the year of allotment of D
      the appellants on the basis that they were in the Select List from the date
      of approval of the list by the Union Public Service Commission i.e.
      February 1986. The impugned order of the Tribunal as well as the order
      of the Union Government determining the year of allotment of the appel-
      lants are hereby set aside and the Union Government is directed to re-
      determine the year of allotment of the appellants on the premise that they E
      were included in the Select List of 1983. Further the appellants are entitled
      for consequential benefits and the same may be given to them. This may
      be done within three months from the date of receipt of this order. The
      appeal is accordingly allowed but in the circumstances without any order .
      as to costs.                                                                   F
     K.K.T.                                                     Appeal allowed.




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