J.S. Virk vs R.D. Pradhan
1987 Latest Caselaw 220 Del

JUDGMENT

S. Ranganathan, J.

(1) The petitioners in Ccp 82/86 and 176/86 came to this court with the complaint that the respondents have failed to implement the judgment of this court in C.W. 44/75 dated 2.9. 1985 and that they should be directed to do so forthwith. There have been some developments since the filing of Ccp 82/86 and, before referring to these developments and examining how well-founded the petitioners' grievances are, it is necessary to give a brief resume of some salient facts of the controversy C.W. 44/45.

(2) The writ petition raised a question of seniority among Company Commanders in the Central Reserve Police Force (CRPF). The hierarchy of posts in the service relevant for our consideration is as follows with Commandants at the top and Company Commanders at the bottom : (I)Commandants (CO) (Non-Selection Grade) (ii) Assistant Commandants (Second-in-Command) I (AC-210 (iii) Assistant Commandants (AC) (iv) Company Commanders (CC) Of these the post at (ii) is not really a promotion post from the post at (iii) It only represents an appellation given to a few of the officers of category (iii) who pass a test of fitness by a screening committee and who get a special pay of Rs. 100.00 Cos also are on the same pay scale as Assistant Commandants (1200-1700) and also get a special pay of Rs. 100.00 like the AC-21Cs but they are of a higher rank than ACs since they wear on more star and promoted by selection from among the latter. Above (i), there is also a post of Commandants (Selection Grade) who are also on the same scale of pay and special pay They were, however, placed in command of battalions and receiver a compensatory pay of Rs. 100.00 p.m.

(3) Now the dispute regarding seniority arose at the lowest level, viz., that of CCs and was a simple one. Recruitments to this post was made from two sources-one, which can be briefly described as direct recruits (though it included recruits from the police and certain other para-military forces) and other, ex-army personnel (ECOs & SECOs and the the short question was whether persons recruited from the second source were entitled in computing their seniority, to count in the length of their service in the army. This benefit they were denied. They came to this court as early as 1975 for a solution to this problem and, after certain vicissitudes which the litigation suffered and which it is unnecessary to refer to now they were able to get, by a judgment of this court dated 2.9.1985, an affirmative answer to the above question. Now, the question is the follow-up action which the respondents are bound to take to implement the above judgment.

(4) The respondents initially filed a petition in the Supreme Court for leave to prefer an appeal against the judgment of 2.9.1985 but this was dismissed on 21.1.1986 Thereafter, on 26.2.1986 they issued a tentative seniority list of CCs on the basis of the judgment and finalised the same. The petitioner, naturally, were not satisfied merely with a revision of their seniority but wanted it to be followed up by promotions to the post of ACs which was, in consequence of the revision, due to them and which had earlier gone, on the basis of the previous mode of computing seniority, to the direct recuits. The respondents seemed reluctant to take this steps as it would mean reversion of some of the officers already promoted and this was done eventually only on 24.9.1986. But this was an inevitable logical consequence of our judgment as the earlier promotions were subject to the result of the writ petition and so, by an interim order dated 11.8.1986, we directed the respondents (a) to give promotions to such of the petitioners as were eligible for it in consequence of the revision of seniority at the level of CCs; (b) to draw up a revised seniority list of ACs after such promotions; (c) to give 'promotions' in accordance with such seniority list to the post of AC-21CS; and (d) also give promotions to deserving candidates to the post of COs (which was selection post). In pursuance of these directions, the respondents also gave promotions to the petitioners, on the basis of their revised seniority, as ACs. But they were hesitant to take the next step and though they passed orders reverting some of those who had earlier been appointed as AC-21CS, those orders were not implemented. The court, by its interim order dated 27.10.1986, directed that, whether promoted or not. such of the petitioners as passed the fitness test, should be paid the special pay of RS.IOO.00 attached to the posts from the respective dates on which they were eligible to be appointed as AC-21Cs and this was complied with by an order dated 6.11.1986.

(5) When these proceedings were going on, the respondents took an important decision and, as the main debate before us is regarding the way in which the decision should be implemented, it will be well to set out in some detail the circumstances in which this decision was arrived at. As we have already mentioned, due the lapse of long years, several of the direct recruits had got promoted to the ranks of AC-21CS and COs over the heads of the petitioner whose seniority had been determined without counting-in their years of army service. If, now, the seniority of the petitioners were revised and their promotions considered on the basis of the new seniority, several persons who had already been promoted as AC-21Cs or COs and even one or two persons in the next higher post of DIGs would have to be reverted. It was considered that this was inadvisable in a sensitive force like the C.R.P.F. There were, therefore, serious discussions at the highest levels of administration with a view to attempt a fair and reasonable solution to the problem. We are glad to say that the counsel for the respondents have placed before us all the relevant files. Taking us through the details, be contended that the department concerned took fair and just decision on 18.6.1986 and implemented the same in an earnest attempt to solve a delicate problem. On the other hand, the petitioner, while agreeing that the decision of 18.6.1986 did evolve a solution fair to both the petitioner and direct recruits, contends that the direct recruits (who are in larger numbers in the force and had earlier also got the benefit of seniority over the petitioners) had come to hold almost all the key posts in the force, and they were able to give a totally different slant to that decision, while implementing it with the result not only that the original controversy between the petitioners and the direct recruits has not got solved but that fresh complications have been introduced by giving promotions as COs to persons far below in order of seniority in the cadre of ACs over the heads of the petitioners. It is, therefore, necessary to examine in details the context in which the decision dated 18.6.1986 was taken as well as the exact terms and meaning of that decision.

(6) A short time after the decision of the Supreme Court, on 10.2.1986, a note was put up by the Directorate-General of the Crpf to the Ministry. Starting with the preface that, as a consequence of the judgment of this court (affirmed by the Supreme Court) "the seniority list of 1974 has to be revised granting benefit to over 100 EC/SSC officers for seniority and bringing down approximately 400 officers of the other categories", the note proceeds : "

2.The modalities for revision of seniority and review of DPCs held since 1969 are being processed in furtherance of the judgment ......The obvious outcome would be reversion of nearly 45 officers including 2 additional Directors-General and the other Commadants. In some cases, the officers have been holding the rank of Commandants over 10 years. This would adversely affect the morale of the officers since many of them on reversion will have to serve under the officers who had been their juniors so far. This is a very unsatisfactory situation and will have serious and adverse effects on the morale and efficiency not only of the affected persons but of the entire force. The rank structure in any armed organisation has direct impact on management and discipline of the unit. Ever since the final serious effort is being made to find a solution to the problem created by it.

3.After much deliberations it has been found that the best way to do so is to upgrade certain posts on a temporary basis so that actual rank reversion is avoided.

4.The matter was discussed in a meeting on 4.2.1986 attended by Dg (CRPF), Special Secretary (Home), Joint Secretary (Police), Dy, Secretary (CPOs), Deputy Secretary (IF), Afa (Home)- Assistant Financial Adviser-from Mha (Ministry of Home Affairs), D.S. (Establishment) and Senior Research Officers (P P Division) from Dp & T to whom a presentation of the problem was given. After discussing the issue at length it was agreed that the 89 posts of Seconds-in-command may be converted to that of non-selection grade commandants and a new unit of Pke may be formed out of six existing companies of Pke to be commanded by a non-selection grade commandant. This would reduce the number of battalions with 4 ACs.

5.The scale of pay as well as special pay of a non-selection grade commandant in static formations, is also the same, i.e., Rs. 1200-1700+special pay of Rs. 100.00 p.m. It is proposed to convert these 89 posts of Second-in-command to that of Commandants (non-Selection grade) for a limited period till adequate number of officers retire on superannuation or are otherwise wasted out. It is estimated that by 1993 such a stage would be reached as per wastage chart attached as Annexure Iii, (emphasis ours)

The note then proceeded to discuss how the upgraded posts should be distributed among various units or formations.

(B)Examining the above proposal, a note in the Home Ministry dated 18.3.1986 pointed out: "2.........The scales of AC/21Cs and non-selection grade commandants are identical, namely, Rs. 1200-1700 plus special pay of Rs. 100.00 . These upgraded posts can be held by the officers who are likely to face reversion. Further it is expected that about 100 persons belonging to ex-ECO category will become liable to elevation in seniority and consequent promotion, subject to review by the DPCs. Crpf feel that by upgrading the ACs/21Cs post, reversion on their existing veteran commandants can be avoided." The note after clarifying that the proposal involved no extra-financial implications, proceeded:

"4.The proposal has been worked out in the public interest for keeping up the morale of officers and has to be accepted. AFA(H) was already present in the meeting convened by the Dg, CRPF.

5.We may request FA(H) to secure concurrence to the proposal on immediate basis. (The upgraded posts will have to remain in upgraded for duration of service of incumbents and status quo ante will be restored year by year on the basis of superannuating as indicated in annexure-III)."

(C)A note put up in the Finance Branch of the Ministry on 24.3.1986 pointed out inter aha, "The main argument for upgradation of these posts is that in implementation of the court decision and re-drawing of the seniority list a large number of ex-emergency officers and Short Service Commissioned officers will be pushed where as others, senior in the present seniority list, will be brought down. The reversion of the latter category of officers who are holding the rank of commandants for over 10 years will adversely affect the morale of the officers so reverted and also create command and control/discipline problem. It has also been stated that the proposed conversion of 89 posts of Asst. Commandants (2nd-in-command) to that of Commandant (non selection grade) will be limited for a period till adequate number of officers retire on superannuation or otherwise wasted out. The estimated period is 1993 (page 2/N). In this process, it has been stated that the proposal will lead to a saving of about Rs.l7000.00 per annum and as such no additional financial implications are involved." (Italics ours)

It proceeded to query whether a proposal to upgrade posts for avoiding reversions like this will not have repercussions in other services and suggested that the proposal could be considered after the review-DPCs from 1969 onwards "for the purpose of giving ex-ECOs their dues in accordance with the revised seniority list" are completed and the exact number of persons to be promoted; demoted is known. The AFA(H) also put up on 27.3.1986 a note on similar

(D)The proposals were forwarded to the Ministry of Personnel where the context of the proposal was thus explained in a note dated 3.4.1986 : "In the meeting held......on 4.2.87......it was made clear that the cadre review exercise of Crpf would not help much in this respect as cadre reviews are done on functional requirement basis and not on personal upgradation basis. The up gradations in this case were on personal basis required in order to avoid reversion of affected officers by the court judgment.'.

(7) The Annexure Iii referred to above which formed part of the discussions is a very interesting piece of document and reads thus :

"STATEMENT showing wastage for officers by retirement in the rank of commandants and above including those who will be due for promotion by getting higher seniority by adding EC/SCC service.

Year Commandant ECO/SSC Total Progressing & above would be Total due for promotion. 1987 3 - 3 3 1988 3 2 5 8 1989 2 5 7 15 1990 5 6 11 26 1991 8 10 18 44 1992 14 6 20 64 1993 10 6 16 80 1994 22 13 35 115"

There are also on record two lists prepared by the Crpf at the time in connection with the discussions : (1) A list containing the names of 45 officers "likely to face reversion on revision of seniority list"; and (2) A list of 110 "EC/SSC officers likely to benefit from the revised seniority list."

(8) The above proposal was eventually approved after examination from several angles at various levels which it is unnecessary to refer to here except to say : (a) that, though the posts of AC/2tCs and non-selection grade COs were on identical scales, the matter was considered to be one of not mere re-designation but, technically, one of upgradation in rank as non-selection grade commandants wore an additional 'badge of rank as compared to AC/21Cs;

(B)that, the number of 89 was an arbitrary one as nobody knew what would be the results of the review DPCs if and when held but the Ministry had made an assessment and considered 89 to be adequate; however, this envisaged the creation of one additional post of AC/21C, but as this would need the approval of the cabinet, it was decided not to insist on the creation of one additional post but to upgrade the existing 88 posts of AC/21Ds.

(9) On approval, the sanction of the President was obtained and communicated by a letter dated 18.6.1986 addressed by the Mha to the Dg, Crpf, the first para of which is relevant and reads thus : "I am directed to refer to the proposal in your U.0. No. 2,'10/86- Estt. (CRPFO dated 10 February, 1986 on the subject mentioned above and to convey the sanction of the President to the upgradation of 88 existing posts of Assistant Commandants Second-in- Commanding Crpf (in the scale of Rs. 1200-1700 plus special pay of Rs. 100.00 p.m.) to those of Commandants (non-selection grade) in the pay scale of Rs. 1200-1700 with special pay of Rs. 100.00 with effect from the dates from which the upgraded posts are actually filled. During the period of such upgradation, an equal number of posts of Assistant Commandant (Second-in-Coinmand) will cease to be operative. This upgradation will remain in force till such time as the incumbents in posts of Commandants retire or are otherwise wasted out from time to time or till February, 1993, whichever is earlier."

(10) In the meantime, in order to save and complaints of unnecessary delay the Crpf conducted, between 10.6.1986 and 19.6.1986, 11 review DPCs and 2DPCs. As against 96 vacancies of Commandant (88 upgraded and 8 regular), the Dpc convened on 19.6.1986 considered 192 officers and prepared a panel of 50 officers for promotion against these vacancies. A note put up in the administrative officers of the Crpf dated 20.6.1986 says that "as all the officers who were to face reversion due to loss in seniority are being accommodated and administrative necessity would be met, the Dpc has recommended a panel of 50 officers thereby utilising only 42 of the 88 upgraded posts of Commandants non-selection grade." It may be mentioned that, by the procedure adopted by the Dpc, all the officers who were liable to reversion retained their position but all the ECOs who would have become commandants if the simple rule of seniority had been applied, or even if all the 88 posts had been filled up, did not get their promotion. One of the notes on record dated 3.7.1986 puts the stand taken by the Crpf administration vis-a-vis the Dpc of 19.6.1986 thus : "DURING the discussions held with them, the Crpf officers emphsised that the sanction of 88 posts by upgradation of an equal number of posts of Assistant Commandants was with a definite and specific purpose of preventing reversion of Crpf officers who had been promoted to the post of Commandants (non-Selection grade) during the earlier years but whose seniority had been adversely affected by the Supreme Court judgment in ECO's case. It was also explained by Crpf officers that the last such person was at S.No. 132 in the revised seniority list of Assistant Commandants. That being so, the Crpf would actually need to prepare a panel of 44 officers so as to cover the officers mentioned above. Thus the Dpc which was held on 19.6.1986 should have taken note of the 'position' and should have prepared a panel of 44 officers only."

The proceedings of the Dpc of 19.6.1986 invited the following comments from the Mha on 27.7.1986 : "DP child on 19.6.1986 to consider cases of promotion of officers as Commandant. (a) The opening para of the proceedings indicates that the Dpc had to prepare a panel for filling 96 vacancies in the rank of Commandant. Of these, 8 vacancies were regular ones and 88 vacancies had arisen by a sanction of Government to upgrade 88 posts of Asst. Commandants (Second-in-Command) to that of Commandants, so as to prevent reversion of officers who, on the basis of their earlier seniority, were promoted as Commandants, but who lost their seniority on account of the Supreme Court judgment. The Dpc assessed 192 officers. Perhaps these were the only officers who were eligible for consideration. But, instead of giving a panel of 96 officers, the Dpc has given a panel of 50 officers, on the ground that with this number, the requirement of preventing reversions of officers would be met. The Dpc has, however, to give its recommendations for filling up declared number of vacancies, and it cannot assume the rule of an administrator and determine the number of vacancies which should be filled on account of administrative requirements. The Dpc has thus erred in restricting the panel to fill 50 vacancies only. (b) While assessing the suitability of officers for promotion, it appears that the Dpc has erred in judgment, inasmuch as a number of officers (such as S/Shri M.S. Gill, G.S. Raturi, B.L. Takkar and B.N. Sharda) who were senior, have been graded as 'good' whereas number of junior officers (such as Shri P.S. Verma) who should have been graded as "good" have been graded "very good" and placed in the panel over their seniors. Such a course of notion amounts to supersession of a number of seniors officers, which appears to be unjustified. (c) In the light of the position stated above, the Dpc may be advised to reconsider its recommendations."

A further note agreed that the Dpc had not taken into account the confidential reports of 1986 and that the cases of Wahi, Gill, Raturi, Takkar and Sharda were border line cases and endorsed the suggestion of a review by the DPC.

(11) Replying to the above points the administration of the Crpf reiterated their earlier stand in a note put up by the Crpf of the Mha on 8.9.1986 which reads thus : ".........GOVT.had sanctioned upgradation of posts of Assistant Commandants (Second-in-command). This had been proposed by us in view of the High Court judgment which required a revision of the seniority list, a review of a number of old DPCs and a fresh Dpc for promotions as per new seniority lists. While preparing for these, it was felt that if a certain number of additional posts of the rank of Commandants were available, it would be possible to implement the judgment without causing a large scale and avoidable upheaval in the rank structure which would be bad for the efficiency and morale of the force. It was then estimated that a maximum number of 88 extra posts should serve this purpose. In processing the case in the Mha, it had also been noted that only as many of these may be made use of as may be considered necessary. The matter had also been discussed in a number of meetings with the Js (P)and AS(DPS). Utilising all the 88 posts would create a number of administrative and cadre problems in view of which it is proposed to utilise only 45 of these........."

Again, in a note dated 17.9.1986, it was explained: "THE11 Review DPCs as well as the fresh Dpc have been reconsidered in view of the observations made by MHA......Consequently the review DPCs with reference to the DPCs of 1 7 1972 "1 7 1983 13.6.1984, 26.6.1985 and 31.7.85 have been further recast. ' " There are 36 cases of officers who were cleared for promotion from Assistant Commandants to Commandants by these 11 review DPCs, were actually promoted as Commandants and have served as such for various periods. It was brought to the notice of the Dpc that as against other officers who had served only as Asstt Commandants then 36 officers had also served as Commandants for various periods. Hence the comparable services of these 36 officers and the rest in the concerned rank may have to be kept in mind. Having lost seniority, these 36 officers are now not in the zone of consideration of these 11 Review DPCs. The Govt. vide letter. dated 18.6.1986 sanctioned upgradation of 88 posts of AC(21Cs)to Commandants (non-selection grade). The purpose of this was to avoid reversion in rank, as far as possible, as that was considered to be bad from the point of view of cadre management and morale of the force. While processing this case, it had been noted by the Mha that only as many of these posts may be made use of as may be considered necessary. We have proposed using only 45 posts of these for which Mha has deen informed vide our note dated 8.9.1986.........In addition to these 45 posts, there are 13 existing and anticipated vacancies in the rank of Commandants. This makes a total of 58 posts for which a fresh Dpc has been held."

In the light of these notes the recommendation of the Dpc for promotion as Assistant Commandants to Commandants were approved by the Minister of State on 19.9.1986.

(12) The criticism, on behalf of the petitioners, of the Dpc held on 19.6. 1986 and reaffirmed in the note of 17.9.1986 is this. It is submitted that all those who were Assistant Commandants and promoted as AC-21Cs deserved to be made Commandants. For, firstly, the upgradation was made only in places where the Second-in-Command would not, by the upgradation, become the Head of the Batallion and so entitled to a compensatory allowance of Rs. 100.00 and that, therefore, except that they became entitled, as Commandants, to wear one additional star, the incumbents of the upgraded posts of Commandants virtually remained only Second-in Command. The whole idea of the plan and order of upgradation was that all ECO/SSCCs who had earlier been overlooked should be accommodated as non-selection grade Commandants ensuring at the same time that none of the previous direct recruit promotees got reverted. But a totally different slant has been given to this idea at the stage of implementation by introducing an element of selection by considering 192 officers with the result that only direct recruits benefitted thereby and the army officers were denied the promotions lawfully due to them. Secondly it is submitted that the selections by the Dpc should have been made "on the 'basis of merit with due regard to seniority" which means that "seniority" is a relevant factor not only for determining the zone of officers eligible for consideration but also in the process of selection itself and this was not done. Thirdly.then respondents have acted arbitrarily filling up only some of the 88 posts eventually, apart from the regular vacancies. This was because this was found sufficient to save the previous incumbents from reversion. They have chosen to overlook that there are 58 ECOs entitled to promotion who have been denied their due. Fourthly, in these DPCs the ECOs were judged on the basis of confidential reports made on them by their erstwhile juniors who had stolen a march over them and got promotions earlier by denying the petitioners the benefit of counting in their army service. On the other hand, the direct recruits were regarded by giving weightage to the fact that they had been holding the rank of Commandants between 1981 to 1985, though they had been doing so wrongfully. The result ultimately is that out of 58 posts ultimately filled up-including regular vacancies-only very few posts have gone to ECO/SSCOs and as many as 50 posts have gone to direct recruits. The case of the petitioners is that the so called upgraded posts were no better than posts of Second-in-Command to which Assistant Commandants should have been promoted in the ordinary course of their seniority, subject only to a screening test for fitness. Or, even if they were considered as selection posts, they should have been filled up, due regard being had to seniority. This has not been done.

(13) Sri A.D. Singh, on behalf of the respondents, contends that the criticisms of the petitioners are all without basis and that the petitioners are not entitled to any relief in the contempt petitions filed by them. He submits that the respondents have implemented to the last detail/the judgment dated 2.9.1985 by giving the following reliefs to the petitioners: (A)A revised seniority list of CCs was issued. (b) Review DPCs were convened for the selection, on the basis of the revised list, of officers to the rank of ACs and promotions given to the petitioners who were selected. (c) After these appointments, the seniority list in the category of ACs was drawn up and finalised. (d) Appointments to the ranks of AC-21Cs, from among the petitioners' group, were made. (e) Ii DPCs held between 1972 to 1985 for the promotion of ACs to the rank of COs were reviewed and 17 ECOs were promoted as COs. Again, for the vacancies occurring in 1986 a fresh Dpc was held and 7 more ECOs were promoted as COs. (f) As many as 33 ECOs/SSCOs were promoted as selection grade COs as a consequence of which many of the direct recruits earlier appointed to such posts were reverted.

All this, he points out, is not denied by the petitioners and this was all that had to be, and could be, done on the existing structure of the service. What the petitioners are now complaining about are the promotions made to the posts of non-selection grade COs created by upgradation of 88 posts of AC- 2ACs. The creation of these posts by upgradation as well as selections thereto constitute, according to the counsel for the respondents, an entirely separate and independent matter. If the petitioners are aggrieved in this process, they may have ground for a fresh cause of action in respect of which they can seek relief either by way of representation under Rule 30 of the Crpf Rules, 1955 or by means of a fresh writ petition. But these grievances cannot be agitated under the guise of a contempt application in the writ petition which has been disposed of by treating it as a step in the implementation of the judgment of this court in Cw 44/75. Secondly, he says, the challenge, by the petitioners, to the selections and promotions made by the respondents to these posts, affects the interests of a large number of officers who have been promoted but who were not parties to Cw 44/75 or to these contempt applications. He contends that this court should not give any decision on the controversy raised by the petitioners without giving an opportunity to all the promoted officers of being heard in the matter. In support of this plea, he relies upon paragraphs 28 and 50 in Prabodh Verma and others v. State of Uttar Pradesh and others , and paragraph 4 of the decision in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another . Thirdly, he says, the petitioners have completely misinterpreted the object, purpose and effect of the proposal of upgradation. The reliance by the petitioners, in this context, on a note prepared in the Crpf entitled "Reassignment of Seniority to EC/SSC officers consequent upon the judgment by the Supreme Court dated 21.1.1986" and described as Annexure3 is misplaced. That note is unsigned and was prepared only as a basis of discussion and cannot be taken into account at all, much less treated as the basis of the order of upgradation. He says that the directions given in the judgment of this court in Cw 44/75 have been completely implemented and that, in any event, the CCPs filed by the petitioners are totally misconceived and deserve to be dismissed.

(14) It is unfortunate that a seniority wrangle of this type should have arisen in such a vital and sensitive organisation as the Crpf between its officers recruited from two different, but equally important, sources. It is of great importance that nothing should be done, or directed, to be done which may affect morale, efficiency and discipline in a para-military organisation of this type. We have, therefore, listened carefully to the detailed and elaborate arguments on both sides and we are unable to escape the conclusion the respondents have failed to keep in view this objective. While they have been considerably, and rightly, influenced by the consideration that if, possible, large scale reversion on direct recruits who had reached the level of Co under the old order of things should be reverted as it would vitally affect the morale of the organisation, they seem to have lost sight of the fact that a denial of promotions rightly due to the ECO/SSCs would leave behind a trail of dissatisfaction among an equally important group that could be equally subversive of the morale and discipline of the force. As we shall presently show, the respondents proceeded correctly up to a stage but then the interests of one set of officers, viz., direct recruits seem to have dominated and thrown to the hack stage the interests of the ECO/SSCOs. The result has been a failure, on the part of the respondents, to hold the scales even as between the recruits from these two sources and this, we think, is a defect that should be set right as quickly as possible. We shall, therefore, proceed to discuss where, according to us, this began to go wrong.

(15) We must point out, at the outset, that though the question involved in Cw 44/75 was only the question of seniority among the officers in the ranks of CCs it cannot really be disputed that the administration has not only to issue a revised seniority list for this rank of officers but has to follow it up by giving all the reliefs to the petitioners before this court which they would be legitimately entitled to as a follow-up of the revision of the above seniority list. This has been pointed out in the interim order dated 11.8.1986 in Ccp 82/86. That apart, even counsel for the respondents has contended that as many as six stages of implementation (as set out in paragraph 13 above) have been carried out by them pursuant to the judgment. This includes, inter alia, the promotion of 44 ECOs as COs. This is, therefore, no doubt that promotion even up to the stage of COs does fall within the scope of a follow-up of the decision given by this court. Incidentally, it has been pointed out for the petitioners that 37 ECOs were promoted up to the stage of COs as a result of review DPCs held for the period from 1972 to 1985 primarily because, as on the dates of these DPCs and on the basis of revived seniority lists, many of the direct recruits were then not even within the zone of consideration for selection. As against that, it is pointed out that, by enlarging the zone of consideration to 192 officers, many direct recruits were made eligible for consideration in the fresh Dpc of 1986 with the result that only 7 ECOs were selected as against 50 from the direct recruits. We shall deal later with this question of enlargement of the zone of consideration by embarking on a process of selection.

(16) But these review DPCs come later, on 19th June, 1986. As we have pointed out earlier these were the follow up of proposals and discussions between February, 1986 and June, 1986, culminating in the sanction order for upgradation of certain posts dated 18.6.1986. A preliminary exercise was carried out. It was found that 110 ECO/SSOs would benefit by the revised seniority and if this were to be implemented as many as 47 persons in the grade of COs and above would face reversion. If the judgment had to be implemented this could not be avoided but this was an appalling prospect, not merely for the officers who would face reversion but to the force itself as no such sensitive force could allowed to have so many disgruntled officers. Though the administration has laid emphasis on this aspect, it is equally clear that the administration could hardly deny promotions to the eligible ECO/SSCOs on this ground, as, a part from there being no question of not implementing the judgment, their discontent, on not being promoted would be equally unhealthy for the force Rightly, therefore, all thoughts went to evolve a via media which, while doing justice to the ECO/SSCOs who had been denied their seniority earlier, would also ensure that those who had become COs by virtue of their earlier seniority would not also get reverted. The solution evolved was a simple one : viz., to upgrade to the posts of AC-21Cs to that of COs (non-selection grade). There was, and at this time could be, no clear idea as to how many of the ECO/SSCO.s, would eventually be eligible to become. AC-21Cs but there were only 88 such posts that could be upgraded. It was thought that the upgradation of these 88 posts would offer a solution to the problem. The proposal went through and got approved on 18.6.1986 because it carried no implications of additional finance and involved no creation of any additional or new posts.

(17) There is controversy between the parties regarding the purpose and effect of this upgradation. But before proceeding to discuss the same, it is necessary to point out that the upgradation was a specific step taken by the administration in the implementation of this court's decision in Cw 44/75. Even according to the respondents, this scheme was drawn up only to avert the revision of direct recruit promotees consequent on giving effect to the judgment. It is not to be treated as a creation of fresh posts in the cadre which were not there when Cw 44/75 was filed or decided or as a development or improvement of promotional prospects independent of, or unconnected with, issue in the said writ petition. We, therefore think that it is not only legitimate but also proper for the petitioners to seek clarifications in these proceedings as to the correct method of implementation of the scheme of upgradation and also ventilate their grievances that its implementation is being done in such a way as to deprive them of the benefits given to them by this court's judgment. We have, therefore, on hesitation in rejecting the plea of the counsel for administration that petitioners should be directed to file a fresh writ petition or seek their remedies elsewhere if they have any grievances at not being promoted as COs.

(18) Now to turn to the proposal mooted and sanctioned by the Government, Sri Singh contends that there was no intention or suggestion that, in addition to the 45 direct recruits retaining the promotions they had already got, all the 110 ECO/SSCOs should be promoted as COs for, if that had been the idea, there would have been need to create 155 posts. All that the Government sanctioned was 88 posts of COs (non-selection grade) so that the promotional bottleneck could be relieved to some extent. These posts had to be filled up by selection in terms of Rule 105(5) which governed all promotions and, even assuming that this rule having statutory force could be modified by general instructions, there is nothing in any of the proceedings relied upon by the petitioners to show that this rule was given the go-by. If, as a result of Rule 105(5) being applied, some of the ECO/SSCOs did not get selected by the Dpc, they could have no legitimate grievance at all. We have given this contention deep thought but we are unable to accept it. It seems to us that the idea was this. In the normal course, many of the ECO/SSCOs, on the basis of their seniority and the screening test prescribed therefore, would have become AC- 21Cs reverting some direct recruits who were still at this stage but this was something that could not have been avoided. But the claim for promotion of these persons as COs would have meant the reversion of direct recruits COs in office. This could be averted, if the 89 posts of ACs-21Cs were upgraded as COs (non-selection grade) for then these ECOs/SSCOs would have automatically become COs and thus posed no threat to the COs already in office. It was clearly not the intention that these posts should be treated as posts of COs freshly created and that the ECOs/SSCOs who had been promoted as Assistant Commandants should only be eligible to these posts by the process of promotion on selection after competing therefore with other officers who fall within the zone of consideration. We have come to this conclusion for the following reasons:

(19) The Government sanctioned, not the abolition of 88 posts of AC- 21Cs and the creation of a corresponding number of posts of CDs, but only the upgradation of 88 posts of AC-21Cs. This, in the context discussed below, meant the upgrading of these 88 posts along with the incumbent officers therein and not a recruitment of officers by selection to fresh posts of COs. This is also clear from the fact that, under the order dated 18.6.1986, the upgradation was to take effect from the dates from which the upgraded posts are actually filled. In other words, the filling up of the posts of AC-21Cs comes first and the upgradation follows.

(20) The upgradation of the posts was more a matter of form rather than substance. It is clear that the new posts were equivalent in all respects to the posts of AC-21Cs. The incumbents of these posts were not to command battalions and were not entitled to the compensatory allowance of Rs. 100.00 They only had the liberty of wearing an extra star on their badge. This indicates that there could have been no intention to treat them as promotion posts involving selection. It was more a matter of re designation than promotion. In fact, the note of 10.2.1987 uses the word 'convert' and not 'upgrade' which is quite significant.

(21) The intent of the Government is made perfectly clear by the declaration in the order of 18.6.1986 that the upgradation will remain in force till such time as the incumbents in the posts of COs retire or are otherwise wasted out from time to time or till February, 1993, whichever is earlier. This is a very important clause. It makes it clear that the upgradation is a purely temporary measure intended to accommodate certain officers who will be getting appointed now but who will retire, the latest by February, 1993, Annexure 3, referred to earlier, assumes great significance in the regard. The reference to 1993 in the order 18.6.1986 shows that the annexure formed the basis of the order. In the process of selection that has now been embarked upon by the administration, as many as 192o.Tissrscame within the zone of consideration and some of the concerns far junior to the petitioners may have got selected.Those officers are hardly likely to retire by 1993. Annexure 3 makes it clear that only officers occupying the posts of COs as on date and those of the ECO/SSCOs who would be due for promotion on the basis of their revised seniority would be retiring by 1993 in sufficient numbers to render the upgradation unnecessary thereafter, Though the details of the retirement dates of the various officers who have been selected by the Dpc of September, '86 are not available before us, it is manifest that they could not all be retiring by February, 1993. The reference to this date as the terminal point for the duration of the upgradation is explicable only on the above basis and is completely nullified by the process of selection advocated by counsel for the respondents. The above clause of the order of 18-6-1986 makes it clear beyond all doubt that the upgradation was intended to personally benefit only those officers who would be due for upgradation on the basis of the revised seniority.

(22) As we have pointed out earlier, the scheme of upgradation was thought of as a solution to the problem created by the revision of seniority necessitated by the orders of this court and the Supreme Court. The problem was that the revision involved the granting of promotion to a large number of ECO/SSCOs at the cost of reversion to the direct recruits already promoted, Counsel for the respondents lays considerable stress to say that the scheme was intended only to avoid reversion to those already promoted. But he overlooks that this is only the other side of the coin as no reversions will be necessary unless promotions are given to the officers of the petitioners' group. It would, therefore, be more correct to say that the scheme involved really two facets : (a) the petitioners' getting their lawful dues on the basis of their seniority ; and (b) the direct recruits being allowed to retain their promotions to the extent possible. An interpretation that would seek to protect the interest only of the direct recruits by denying their dues to the ECO/SSCOs would not only be unfair to the force but also discriminatory and violative of Article 14. Moreover, to separate one from the other is to render the scheme illogical and unworkable The result the administration has achieved on its interpretation of the scheme amply demonstrates this. Previously, only the group of the petitioners and certain senior direct recruits were in the fray contesting for promotions on the basis of their inter se seniority. The administration has now brought in a group of comparatively junior officers in the direct recruits category to compete with their seniors in both groups. In other words, instead of solving the problem, the practical implication of the scheme has resulted in introducing elements of dispute that were not there earlier. That is not the way to interpret a scheme that was put forward after mature deliberation and envisaged as a measure to put an end to seniority wrangle in a sensitive force.

(23) Sri Singh contends that had it been the intention to automatically convert all ECO/'SSCOs who were eligible to become AC-21Cs into COs (besides averting reversion) there should have been 110 posts upgraded, not merely 88. The answer to this is simple. In the first place, though 110 ECO/ SSCOs would get increased seniority, not all of them would have been eligible for appointment as AC-21Cs as there was a screening for fitness to be undergone in which some of them may have got dropped. Secondly, there were only 88 posts of AC-21Cs in the force which could be upgraded easily involving no additional financial burden and no creation of new posts. This was the best, therefore, that could be done in the circumstances. As against this, it may be pointed out that if the intention was to save only the 45 direct recruits from being reverted, it is now clear that it would have been sufficient to upgrade only 45 posts and fill them on the basis of selection. Even allowing for the fact that the exact performances in a Dpc could not have been anticipated in advance, it would have been sufficient to upgrade only 45 (or at best a few more) posts for filling up which the Dpc would have had to consider a zone of 90 or 135 officers (two or three times the number of posts). There was not enough oncers to be considered for promotion as against 88 posts ; as has been pointed out in one of the office notes, the 192 officers considered took in the whole range of officers in the force eligible for consideration to the post of COs and brought in the juniormost of these officers into the picture. There was. therefore, no basis for suggesting an upgradation of 88 posts had the intention been only the avoidance of reversion to the 45 officers in position as COs.

(24) One more contention urged by Sri Singh was that the recruitment to these posts had to be done in accordance with rule 105(5) and that the administration could not, and could not also be directed to, ignore or override this rule without some sanction for doing so under the statute or the rules. We have already given the answer to this contention. The order of 18-6-1986 is clear that the upgradation is to be effective from the date the posts are filled up. In other words, the 88 posts of AC-21Cs are to be first filled up and then upgradation thereof becomes effective. It is nobody's case that even for posts AC-21Cs there has to be a promotion under rule 105(5). That, as we have pointed out, is only a post of Assistant Commandants with a special pay for which only a screening test had to be undergone by the ACs in their order of seniority. Even otherwise, one would be perhaps justified in saying that this upgradation cannot be treated as tantamount to a creation of fresh posts of COs to be recruited under rule 105(5). The order of 18-6-86 was a special order to provide for an extra-ordinary situation and should be implemented so as to effectuate its obvious intent and not so as to defeat it.

(25) We have, for the above reasons, no doubt in our minds that the order of 18.6.1986 required :

(I)The "promotion" from the posts of Assistant Commandants, of 88 officers as AC-21Cs on the basis of seniority with only a screening test as before ; and

(II)The conversion of these posts-with the incumbents thereof-as COs (non-selection grade). Only this course would have achieved the maximum promotion possible, in the circumstances, to the petitioners in consequence of the revision of their seniority without at the same time affecting the interests of the direct recruits who had overtaken them at the earlier stages. No other interpretation is, in our view, possible of the order dated 18-6-1986. It seems that the actual mode of implementation of the order of 1-6-1986 by the respondents is the result of an afterthought that seems to have crept in at some subsequent stage, that the direct recruits could be benefited in a larger measure by treating the upgraded posts as "promotion" posts. That after-thought and implementation are consistent neither with the purpose of the upgradation proposal nor with the language of the order of 18.6.1986 which approved the same. We may also point out that. pursuant to an interim order by us dated 27.10.1986, the respondents have taken step (i) mentioned above and appointed a number of officers from the petitioners' group as AC-21Cs from various dates in 1983 but they have limited these appointments till 17.6.1986, perhaps since we had left open the question regarding the status of these persons after that date. We have now given full thought to the order dated 18.6.1986 and set out our view and interpretation of the above order. Consequently, all that remains to be done by the respondents is to take step No. (ii) indicated above and convert all these posts (along with incumbents) into posts of COs (non-selection grade). These posts will be occupied by the incumbents till the 'date of their retirement. As and when each of the incumbents retire the upgradation of the post in question would cease and it will become once again a post of AC-21C. Only if this is done can the respondents be said to have implemented the decision given in Cw 44/75 and not otherwise.

(26) Counsel for the petitioners also challenged the validity and correctness of the selections made by the review DPCs on various grounds. They contended, without prejudice to their principal contention that no DPCs at all were called for as no promotion by selection was involved, that the DPCs proceeded on certain wrong principles and were thus vitiated. They argued-

(I)that, on a proper interpretation of rule 105(5), the DPCs should have given some weight to seniority even in the process of selection and should not have gone only on the basis of the confidential records and merits : vide observations of Beg, J. (as he then was) in para 22 of Uoi v. M.L. Capoor and others (1974 Sc 87) ;

(II)that the DPCs had erroneously attached weight to the fact that the direct recruit promotees had factually served as COs, overlooking that such service was the result of wrongful assignment of seniority to them earlier and also committing the gross inconsistency of giving weight to their service while ignoring the seniority of the petitioners' group;

(III)that, contrary to the principle laid down in Dr. S.P Kapoor v. State of Himachal Pradesh and others (1981-3 Sd 220) at paragraph 31, the DPCs had taken into account the C.Rs. of officers of the petitioners' group written by direct recruits who though then listed senior to them have now been found junior and who, in view of the competition and rivalry between the two sources of recruitment could hardly be expected to have given fair assessments of the petitioners' work ; and

(IV)that the Dpc, having considered 192 people for 88 vacancies, should have recommended a panel of 88 officers and should not have stop- ped at 45 merely because with that the reversions of direct recruits stood completely averted, overlooking the claims of the petitioners' group that, at least, as many of them as could qualify should be promoted to fill up the 88 upgraded posts.

(27) The above contentions were sought to be repelled by counsel for the respondents. He contended, relying on the observations of Mathew J. in Capoor's case (supra) and the decision in Dass v. UOl (1986-2 Scales 1012)- that the Dpc had applied rule 105(5) correctly by taking seniority to be relevant where the merits of two candidates were equal. He submitted that under a memorandum issued by the Government-OM No. 22011/6/75-Estt. (D) dated 30.12.1976-it was for the Dpc to classify the candidates, if need be on a basis different from the C.Rs. and that if the Dpc chose to give weight to the actual experience of some officers as COs, there was nothing wrong therewith. He urged that, in the absence of anything to show that the C.Rs. of the petitioners' group written by the direct recruits were biased or mala fide, there was no reason why the DPCs should ignore them, particularly as no other basis for classification or gradation would then be available. He also submitted that though 88 posts were upgraded, it was throughout the understanding that only so many of them would be utilised as were necessary to be filled up to get over the impasse created and hence there was nothing wrong in the Dpc having stopped with 45. He would up by saying that all these and, if any, other objections to the proceedings of the DPCs should be aired in representations to the Government or in a separate writ petition and not in these proceedings, particularly when the officers who may be affected as a result of the challenge to the Dpc are not parties to the contempt petition. He says we would not decide any of these issues unless we give notice to all the affected officers and give them an opportunity of being heard. In this context, he cites the decisions in Prabodh Verma and others v. State of Uttar Pradesh and others and Udit Narain Singh Malpaharia v. Additional Member Board of Revenue Bihar and another (AIR 1963 Sc /86).

(28) We have considered the matter and come to the conclusion that it is not necessary for us to go into these contentions in view of the conclusions we have arrived at as to the true interpretation of the order dated 18.6.1986. As we have pointed out, the order dated 18.6.1986 was a step in the implementation of the judgment in Cw 44/75 and it is within the scope of these proceedings to direct the respondents to give effect to it. We have explained the true scope and meaning of the order dated 18.6.1986 and we can, and do, direct the respondents to give effect to it in the light of our interpretation. The respondents are bound to carry out this direction. They have interpreted the order differently and implemented it in a different manner. Having regard to the difficulties in the situation, we will not view this as a deliberate or wanton defiance of the order or this court. But we have to point out to the respondents that what they have done is wrong and that the order dated 18.6.1986 should be implemented as we have laid down and that this should be done by them. If they have implemented the order differently, it is for them to set the situation right expeditiously by taking appropriate action. It is for them to consider in what way they will retrace their steps in constituting a Dpc to select candidates for promotion as Commandants (non-selection grade) and rectify the position so as to give the petitioners their dues in terms of our order. We do not consider it necessary to enter into the merits of the selections made, to review the proceedings of the Dpc in the light of the above contentions or to consider quashing them at this stage when, in our view, there was no need to have any Dpc for selection at all.

(29) We should like to add a word. The petitioners, in pursuance of their success in the writ petition, are, in all strictness, entitled to insist that the effect of their revised seniority should be carried to its full length even if it should result in the reversion of direct recruits who had become Commandants and DIGs on the basis of a wrong seniority. However, the petitioners are willing to abide by the effort of the respondents to save a reversion to the direct recruits in position as Commandants, so long as their own position is not substantially jeopardised. It is in this view that they have not challenged the validity of the order of 18.6.1986, which, they say, is to be interpreted in the manner we have done though this may not carry them as far as a full fledged implementation of their revised seniority. If, however, it is to be interpreted in the manner contended for by the respondents, the petitioners may have liked to challenge the validity of the order itself. It is, therefore, necessary to emphasise that the petitioners' acceptance of the order dated 18.6.1986 is only of a limited nature and this gesture of its acceptance should be understood in the above context.

(30) We, therefore, hold that there has been a default on the part of the respondents in the implementation of that order of this Court. We, however do not treat it as a willful at this stage, because, as indicated in this order, up to a the certain stage the respondents have proceeded bona fide and we want to give one more opportunity to the respondents to correct the errors. We direct that the judgment as clarified by us should now be implemented within three months from today.

(31) Pending disposal of the CCPs, certain interim applications were filed by the applicants. These applications also stand disposed of.

(32) There will be no order as to costs on these petitions.