Delhi High Court
Union Of India vs R.A. Sanjeev & Ors on 12 August, 2016
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) NO. 3062/2016 & CM No.12957/2016
Reserved on : 27th May, 2016
Date of Decision : 12th August, 2016
UNION OF INDIA ..... Petitioner
Through: Mr. Ravi Prakash, CGSC with
Mr. Aditya Dewan, Advocate
Versus
R.A. SANJEEV & ORS ..... Respondents
Through: Ms. Jyoti Singh, Senior Advocate
with Mr. Amandeep Joshi, Advocate
Mr. Shatrajit Banerji, Ms. Shruti
Parasa, Mr. R.A. Iyer, Advocates for
respondent No.12
Mr. Naresh Kaushik & Ms.Joymoti
Mize, Advocates for UPSC.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J.
The Union of India, by this writ petition, impugns the order dated
29th May, 2015 passed by the Principal Bench of the Central Administrative
Tribunal, New Delhi, whereby OA No.2982/2012 filed by respondent
Nos.1 to 11 herein has been allowed. The impugned order holds that the
select list for the calendar year 2010 would be in accord and as per the
unamended Rule 3 of the Indian Police Service (Regulation of Seniority)
Rules, 1988 („Rules 1988‟for short). The amended Rule 3 would be
applicable and effective from 18th April, 2012, the date when the said
amendment was published in the Gazette.
2. The respondents herein are officers who were recruited to Delhi,
Andaman and Nicobar Island Police Service (DANIPS) between the years
1986 and 1992. They were promoted as Junior Administrative Grade-II in
due course of time, as per the service Rules applicable to DANIPS officers.
3. Rule 3 of the 1988 Rules, prior to its amendment with effect from
18th April, 2012 was as under:
"3. Assignment of year of allotment. - 3(1) Every officer shall
be assigned a year of allotment in accordance with the
provisions hereinafter contained in these rules.
3(2) The year of allotment of an officer in Service at
the commencement of these rules shall be the same as has
been assigned to him or may be assigned to him by the
Central Government in accordance with the rules, orders
and instructions in force immediately before the
commencement of these rules.
3(3) The year of allotment of an officer
appointed to the service after the commencement of
these rules shall be as follows: -
(i) The year of allotment of a direct recruit officer
shall be the year following the year in which the competitive
examination was held:
(ii) The year of appointment of a promotee officer
shall be determined with reference to the year for which the
meeting of ,the Committee to make selection, to prepare the
Select List on the basis of which he was appointed to the
Service, was held and with regard to the continuous service
rendered by him in the State Police Service not below the
rank of a Deputy Superintendent of Police or equivalent,
upto the 31st day of December of the year immediately
before the year for which the meeting of the Committee to
make selection was held to prepare the select list on the
basis of which he was appointed to the Service, in the
following manner:-
(a) for the service rendered by him upto twenty one
years, he shall be given a weightage of one year for every
completed three years of service, subject to a minimum of
four years:
(b) He shall also be given a weightage of one year
for every completed two years of service beyond the period
of twenty one, years, referred to in sub-clause (a), subject to
a maximum of three years.
Explanation: For the purpose of calculation of weightage
under this clause, fractions, if any, are to be ignored.
Provided that he shall not be assigned a year of
allotment earlier than the year of allotment assigned to an
officer senior to him in that select list or appointed to the
service on the basis of an earlier select list."
Every officer appointed to the service is to be assigned a year of
allotment in accordance with the provisions of Rule 3 of the 1988 Rules.
Sub-rule (2) of Rule 3 states that allotment year of an officer "in service"
on the date of the commencement of the 1988 Rules, shall be the same as
has been assigned to him or may have been assigned to him by the Central
Government in accordance with the rules, orders, and instructions in force
immediately before the commencement of these Rules. Sub-rule (2) is not
applicable in the present case. Sub-rule (3) of 1988 Rules states that in the
case of direct recruit officers, the year of allotment of an officer appointed
after the commencement of the Rules shall be the year following the year in
which the competitive examination was held. In case of promotee officers,
the year of allotment shall be determined with reference to the year for
which the meeting of the Committee to make selection, to prepare the select
list on the basis of which he was appointed to the service, was held. To
qualify, such candidate should have rendered continuous service at the rank
not be below the rank of Deputy Superintendent of Police or equivalent in
the said police service as on 31st December of the year immediately before
year in which the meeting of the Committee to make the select list is held.
Sub-clause (a) and (b) of sub-rule 3(3) relates to weightage of the service
rendered by a promotee officer in the State Police Service. The weightage
determines the year of allotment in the Indian Police Service. The greater
the weightage, the earlier is the year of allotment and therefore higher the
seniority. The weightage formula or criterion entitles the State Police
Service officers to partial benefit by way of counting past service in the
State Police Service on absorption and encadrement in the Indian Police
Service. For service rendered up to 21 years, the State Police Officer is
given weightage of one year for every completed three years of service,
subject to a minimum of four years. For a period of service beyond 21
years, the State officer has to be given weightage of one year service for
every completed two years of service after 21 years, subject to a maximum
of three years. There is also an explanation to the proviso which states that
for the purpose of weightage under this clause, fractions, if any, have to be
ignored.
4. The impugned order passed by the Tribunal records that there was no
lis or dispute between the petitioner and the respondents on the issue that
the service rendered by an officer of DAINIPS constitutes „approved
service‟ as defined in the National Capital Territory of Delhi, Andaman &
Nicobar Island, Lakshadweep, Daman & Diu and Dadar & Nagar Haveli
Police Rules, 1998 or as per the amended National Capital Territory of
Delhi, Andaman & Nicobar Island, Andaman & Nicobar Island,
Lakshadweep, Daman & Diu and Dadar & Nagar Haveli (Police Rules),
2003. As per the said Rules, the term „approved service‟ in relation to any
grade means the period or periods of regular service rendered in that grade,
including the period of absence, during which the officer would have held a
post on regular basis in that grade, but for the officer being on leave or
otherwise not being available to hold such post from the 1 st day of July of
the year in which the examination was held and the officer was directly
appointed in that grade. In the case of promotion, as per Rule 2 (n) of the
1998 Rules and Rule 2(e) of the 2003 Rules, the "approved service" would
be counted from the date recruitment was made on regular basis in the
promotional grade.
5. The following chart, therefore, sets out the undisputed factual
position:
Name of the Date of Year of Date of Approved Year of
officer Birth appearance joining service Select
in Civil DANIPS counted for List
Services grant of
Examination JAG-I &
JAG-II
R.A.Sanjeev 03.02.1963 1988 01.04.1990 01.07. 1989 2010
Prem Nath 10.02.1963 1988 31.03.1990 01.07. 1989 2010
Parwaiz Ahmed 10.11.1963. 1989 15.05.1991 01.07. 1990 2010
Ishwar Singh 03.01.1961 1989 14.05.1991 01.07. 1990 2010
Dheeraj Kumar 03.06.1966 1989 15.05.1991 01.07. 1990 2010
Brija Kishore 05.05.1962 1987 30.04.1989 .01.07.1988 2010
Singh
Prabhakar 12.08.1959 1984 30.04.1986 01.07.1985 2010
Rupinder Kumar 15.05.1962 1984 26.06.1986 01.07.1985 2010
Kamal Kant Vyas 14.01.1958 1985 29.04.1987 01.07.1986 2010
Omvir Singh 30.06.1965 1984 01.07.1987 01.07.1985 2010
Bhairon Singh 02.07.1958 1990 15.05.1992 01.07.1991 2010
Gujjar
6. The year of the select list, as noticed below, was earlier a matter of
debate. The Punjab & Haryana High Court, in CWP No.15798/2010 titled
Praveen Kumar versus U.P.S.C. and Ors., decided on 1st February, 2010,
had examined the Indian Administrative Service (Appointment by
Promotion) Regulations, 1955 and held:
"21.We find substantive support to the aforesaid submission in
unnumbered proviso to Regulation 5(1). According to the
aforesaid proviso if no meeting of the Committee could be held
during a year then whenever the Committee meets again, the
select list has to be prepared separately for each year during
which the Committee could not meet as on December 31st of
each year. The aforesaid proviso is consistent with the definition
of expression 'year' in Regulation 2(1)(1). Therefore, the
vacancies for the year 2006 i.e. from 01.01.2006 to 31.12.2006
have to be determined as on December 31st of that year. The
select list, which has been erroneously styled as 'Select List of
2007', in fact, is the select list for the year 2006. Therefore, the
age of the petitioner has to be determined as on 01.01.2006.
Accordingly, he would be eligible.
22. It is true that for the vacancies of the year 2006, the
Committee would meet in the year 2007. It does not follow that if
meeting of the Committee is held in 2007 then it would alter the
eligibility in so far age of a candidate is concerned, which is
provided by Regulation 5(3). The effect of any contrary
interpretation would be that the officers like the petitioners
would be deprived of entering the zone of consideration without
any fault of theirs. For example, the petitioner would not be
eligible in respect of the vacancies, which have arisen in
January 2006 although he was not yet 54 years of age nor he
would be eligible for vacancies of the year 2007 because he
would cross 54 years of age. The consideration of all eligible
candidates annually in respect of vacancies which have arisen
during that year is to avoid any such anomaly. It is also to
facilitate the work of the Committee so that all vacancies of that
year are considered in one meeting instead of holding a meeting
for every single vacancy and then determining eligibility.
23. To better understand, another hypothetical situation could
be considered. Let us assume that the date of birth of an officer
is December 31, 1952. As on 01.01.2006, he would be less than
54 years of age but on 01.01.2007 he would certainly cross the
age of 54 years. Therefore, if the reasoning adopted by the
Tribunal and the respondents is applied then such an officer
would never enter the zone of consideration for the vacancies of
year 2006.
24. The intention of the framers of the Regulations further
become discernible from the reading of un-amended
Regulations, which have linked the age of 54 years to the 1st of
April of the year of meeting. The framers of the Regulations
must have found that the year of meeting has no relationship
for determination of the age of eligibility as it was wholly
fortuitous. Therefore, to keep the eligibility intact in respect of
the year for which the select list is prepared, amendment has
been incorporated in the year 2000 and an effort has been
made to link the age of eligibility to the occurrence of
vacancies and to de-link the same from the year of meeting. If
we construe the Regulation 5(3) to mean that age has to be
determined by reference to the year of meeting then the
mischief which is sought to remedied would perpetuate and
amendment would lose its object. The aspirations of a brilliant
and meritorious officer working in the State cannot be defeated
by any arbitrary method of fixing the age of eligibility, which
has got nothing to do with the basic principles of service
jurisprudence, namely, occurrence of vacancy. Therefore, we
find that the Tribunal has committed a grave error by
presuming that the age of eligibility has to be determined in
respect of the year when the Committee is supposed to meet,
which is wholly unsustainable."
7. The Union of India had filed a special leave to appeal against the said
judgment but the same was dismissed. Subsequent thereto, the Union of
India issued Office Memorandum No.12012/99/09-AIS (1) dated 25th
August, 2010 and has accepted the decision in Praveen Kumar (supra) and
given the following directions:
"3. Against the above-mentioned orders of the Hon'ble High
Court, this Department had filed SLP No. 14002 of 2010
before the Hon'ble Supreme Court, which has been dismissed,
vide order dated 31s1 May 2010.
4. In view of above, the order of the Hon'ble High Court has
become absolute. Accordingly, the following decisions have
been taken by the competent authority:-
st
(i) The said order would be implemented w.e.f . 1
February 2010, i.e. date of the High Court order.
(ii) Wherever meetings of the Selection Committee in respect
of any All India Service have not been held or meetings have
been held but minutes of the meeting have not been approved
by the Commission, the same will be held in accordance with
the interpretation of Regulations given by Hon'ble High Court
and confirmed by Hon'ble Supreme Court.
(iii) Where meetings have already been held and minutes have
been approved the same will not be opened unless and until
there is a specific direction from a Court of Law.
(iv) The eligibility of State Service officers in cases of Review
Selection Committee meeting would be reckoned on the basis
of Regulations/interpretation prevailing in that year unless
otherwise directed by a Court of Law.
(v) Select List will henceforth be styled coinciding with the
year of vacancies. In case there are two overlapping Select
Lists for a particular year the same-will-be distinguished by
styling the Select List of that year (correspondent to the year
in which vacancies have arisen) and the other select list will
be named by adding 'A' to that year."
A reading of the aforesaid quotation, including the directions, would
elucidate that the order of the High Court in the case of Praveen Kumar
(supra) had become absolute and the Union of India had decided to
implement the said order with effect from 1st February, 2010, i.e., from the
date of the High Court judgment. Wherever meetings of the Selection
Committee for the All India Service had not been held or the meetings had
been held but Minutes of the Meeting had not been approved by the
Commission, the same would be held in accordance with the interpretation
of the Regulations by the High Court in the case of Praveen Kumar
(supra).
8. It is an accepted case that, in the present case, clause (ii) of paragraph
4 of the Office Memorandum would apply because the meeting of the
Select Committee was not held till 1st February, 2010. As sequitur and
logically, it follows that the respondents were eligible and have to be
considered by the Selection Committee as on 1st January, 2010, i.e., the
year in which they had become eligible for appointment to the Indian Police
Service.
9. The respondents in the present case were given the benefit of the
judgment in the case of Praveen Kumar (supra) vide notification dated 16th
December, 2011. The notification specifically records that the President
was pleased to appoint the present respondents, who were members of the
Union Territory Police Force, to the Indian Police Service on probation and
allocate them the Union Territory segment of the Joint AGMU Cadre under
sub-rule (1) of Rule 5 of the Indian Police Service (Cadre) Rules, 1954.
The appointments were to take effect from the date of issue of this
notification. Thus, it is not debatable that the respondents became members
and were encadered in the Indian Police Service Cadre on 16th December,
2011. As per the respondents and as held by the Tribunal, in terms of Rule
3 of the 1988 Rules, the respondents were entitled to weightage of past
service in the State Police Force as per the original Rule 3 as was applicable
and in force on 16th December, 2011, and not on the basis of the amended
Rule which came into effect „/on 18th April, 2012. This is the precise issue
and challenge before us.
10. Before elucidating upon the legal issue, we would like to exposit the
notification dated 18th April, 2012 issued in exercise of power under sub-
section (1) of Section 3 of the All India Services Act, 1951. The
notification had amended the 1988 Rules by way of the Indian Police
Service (Regulation of Seniority) Amendment Rules, 2012. Sub-clause (2)
of Rule 1 of the Rules specifically notes and states that the Amended Rules
would come into force on the date of their publication in the Official
Gazette. Thus, the amended Rules were not made retrospective and were to
apply prospectively from the date of notification, i.e. 18 th April, 2012.
Specific amendments were made in Rule 3, in sub-rule (3) of clause (ii),
quoted above. The expression/words "immediately before the year" was
deleted and sub-clauses (a) and (b) were substituted. The amended clause
(ii) of sub-rule (3) of Rule 3 would read as under:-
"3(3) The year of allotment of an officer
appointed to the service after the commencement of
these rules shall be as follows: -
(ii) The year of appointment of a promotee officer
shall be determined with reference to the 4 year for which
the meeting of ,the Committee to make selection, to prepare
the Select List on the basis of which he was appointed to the
Service, was held and with regard to the continuous service
rendered by him in the State Police Service not below the
rank of a Deputy Superintendent of Police or equivalent,
upto the 31st day of December of the year immediately
before the year for which the meeting of the Committee to
make selection was held to prepare the select list on the
basis of which he was appointed to the Service, in the
following manner:-
"(a) for the service rendered by him upto twelve years, he shall
be given a weightage of one year for every completed four
years of service, subject to a minimum of three years;
(b) for the service rendered by him beyond 12 years, as
referred to in sub-clause (a) and upto 21 years, he shall be
given a weightage of one year for every completed three years
of service;
(c) for the service rendered by him beyond 21 years, as
referred
to in sub-clause (b), he shall be given a weightage of one year
for every completed two years of service, subject to a maximum
of three years".
The amended sub-rule would show that significant changes were made for
computing the weightage of past service for allocation year of appointment.
Sub-clause (c) was introduced. As per the new sub-clauses (a) to (c),
weightage would be given on the basis of the service rendered in the State
Police Service up to 12 years; beyond 12 years and up to 21 years; and
beyond 21 years. For service up to 12 years, weightage will be given for
one year on every four years of completed service, subject to a minimum of
three years. Under clause (b), service rendered beyond 12 years and up to
21 years, weightage will be one year for each completed year of service and
for service rendered after 21 years, weightage will be one year for each
completed two years of service, subject to a maximum of three years. We,
at this stage, again record that the question of weightage is relevant because
the appointment in the Indian Police Service gets ante-dated, depending
upon the weightage. The aforesaid new Rule substantially changed and
modified the weightage formula, viz., the pre-amendment Rule 3(3) clauses
(a) and (b).
11. The effect of Notification dated 18th April, 2012 is that an entirely
new criterion or formula of weightage has been prescribed. It is, no doubt,
true and correct that the new weightage criterion can be traced and
connected to the judgment of the Punjab & Haryana High Court in Praveen
Kumar (supra), for the said judgment had the effect of giving benefit to the
State Civil Service Officers of about one year and correspondingly the
weightage given to them would mean that their appointments in the Indian
Administrative Service or Indian Police Service would get pre-dated in
some cases. The effect of the Notification dated 18th April, 2012 has, to
some extent, reduced the weightage of past service under the unamended
clauses (a) and (b) to sub-rule (3) to Clause-2. We also record that the
validity of the Notification dated 18th April, 2012 and the amendment to the
1988 Rules is not under challenge before us. Indeed, the petitioner, i.e., the
Union of India, cannot make a challenge and question their Rules.
12. The respondents were inducted in the Indian Police Service vide
notification dated 16th December, 2011 and the appointments had taken
place with effect from the said date. The amended sub-rule (3) to Rule 3
came into force subsequently on 18th April, 2012. Notwithstanding the
power to make retrospective amendment under Sub-Section 1A to Section 3
of the All India Services Act, 1951, the Central Government, which had
framed the amended Rules in consultation with the Governments of the
States concerned, had not made the amended Rules retrospective. The
amendment notification and the Rule as amended did not state and stipulate
retrospective application or specify that the amended provision would be
applicable from an earlier date or a date other than that of publication. No
such inference is possible, in view and in terms of the express language. It
was directed that the amended Rules would come into force on the date of
their publication in the Official Gazette i.e. 18th April, 2012. In these
circumstances, we are of the opinion that the Tribunal was right in holding
that amended sub-rule (3) to Rule 3 of the 1988 Rules; effective from 18th
April, 2012 would not be applicable.
13. The view, which we have taken, finds support from the judgment of
the Supreme Court in Indian Administrative Service (SCS) Association,
U.P., (1993) Supp (1) SCC 730. The IAS (Regulation of Seniority) Rules,
1954 were repealed and replaced by IAS (Regulation of Seniority) Rules,
1987, which came into force from 6th November, 1987. Subsequently, on
the basis of suggestions or comments from State Governments, the Central
Government in exercise of power under sub-section (1) to Section 3 of the
All-India Services Act, 1951 amended Rule 3(3) of the 1987 Rules, which
were published in the Gazette of India on 3rd February, 1989. The
amended Rule stipulated that for determination of seniority of a promotee
officer in assigning the year of allotment, service rendered in State Civil
Service upto twelve years as Deputy Collector or equivalent post,
weightage of four years would be given and further benefit of one year
weightage for every completed three years of service beyond twelve years
subject to maximum weightage of five years would be given. The
weightage would be computed from the year of appointment of the officer
to the service. It was held that seniority is an incidence of service and is
variable and defeasible by operation of law. The first amendment Rules
made operative prospectively from 3rd February, 1989 had incorporated a
proviso to stipulate that an officer shall not be assigned year of allotment
earlier than the year of allotment assigned to the officer senior to him in
the select list or appointed on the basis of an earlier select list. In this case,
the officers appointed/promoted to the Indian Administrative Service prior
to the introduction of 1987 Rules on 6th November, 1987 had prayed for
similar treatment as those appointed post 6th November, 1987. It was held
that no statute shall be so construed so as to have retrospective operation,
unless its language is such as painly to require such construction. The
legislature, as its policy, gives effect to the statute or statutory rule from a
specified time or from the date of its publication in the State Gazette.
When the statutory amendment is clear and expressive, words cannot be
interpolated. Referring to the proviso, it was stated that the aim of the
same was to ensure that the State service senior officers, who had a varied
length of service do not become juniors to those, who were appointed
under the 1987 Seniority Rules or after the first amendment Rules came
into force. It was also intended not to let an endless chain reaction occur
to unsettle the settled position in seniority. In the facts of the said case, the
benefit of full weightage under the amended Rules was cut down and
applied in varied degrees to the officers promoted during the transitional
period to prevent unjust results and to met out justice. In this context,
reference was made to Constitution Bench decision in State of Jammu
and Kashmir versus T.N. Khosa and Others, (1974) 1 SCC 19 and J.
Kumar versus Union of India, (1982) 2 SCC 116 to observe that amended
Rules varying the conditions of service would operate in future and govern
the future rights of existing personnel. Section 3(1A) of the All-India
Services Act, 1951 had conferred power on the Union to make rules with
retrospective effect from a date not earlier than the date of commencement
of the Act with one restriction that no retrospective effect shall be given to
any rules so as to prejudicially affect the interest of any person to whom
such rules may apply. Drawing a distinction between right and interest, it
was observed that an officer, though has no vested right to seniority, he
does have an interest in the seniority acquired by working out the rules
governing the same. Furthermore, when there are rules that prescribe the
method of computation, seniority is squarely governed by such rules.
14. Reference can also be made to the decision of the Supreme Court in
Union of India versus S.S. Uppal and Another (1996) 2 SCC 168, a
decision relied on by the Tribunal. In the said case, S.S. Uppal was
appointed to the Indian Administrative Service on 15th February, 1989
and the year of allotment was fixed as 1985 after taking into consideration
the revised weightage formula, which had come into force on 3rd
February, 1989. The question arose whether the weightage formula
enforced prior to 3rd February, 1989 could be applied, in which case S.S
Uppal should have been assigned 1983 as the year of allotment.
Accepting the case of the Union of India that the amended weightage
formula would be applicable, it was held:-
"12. We are of the view that the question of seniority of
Uppal, Respondent 1, has to be determined by the rules
in force on the date of his appointment to IAS. The
fixation of seniority in the IAS follows appointment to
the service. The Year of Allotment in the IAS will have
to be determined according to the provisions of
seniority rules which are in force at the time of his
appointment. The date of occurrence of vacancy has
really no relevance for the purpose of fixation of
seniority in the IAS. The fixation of seniority is done
only after an officer is appointed to IAS. The Central
Government is competent to amend the seniority rules
from time to time keeping in view the exigencies of
administration.
It was also observed:-
"17. This case again does not throw any light on the
controversy raised before us. Uppal was being taken
into Administrative Service. He was actually inducted
into the service on 15-2-1989. The rules which were in
force on that day for determination of seniority will
clearly apply to his case. It is true that Uppal's name
was included in a panel drawn up sometime in August
1988. But mere inclusion of his name in the panel did
not confer upon him any right to automatic
appointment to the IAS. Nor can it be said that he was
to be treated as to have been appointed from the date
when a suitable post fell vacant. It has been stated in
the affidavit filed before the Tribunal by Shri Hari
Singh, Under Secretary to the Government of India that
although a vacancy had arisen on 1-2-1989, the
proposal for appointment of Uppal to IAS was received
from the State Government only on 14-2-1989. The
seniority of an officer appointed into the IAS is
determined according to the seniority rules applicable
on the date of appointment to the IAS. Weightage in
seniority cannot be given retrospective effect unless it
was specifically provided in the rule in force at the
material time. In the case of Shankarsan Dash v. Union
of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 :
(1991) 17 ATC 95 : JT (1991) 2 SC 380] it was pointed
out by this Court that the existence of vacancies did not
give any legal right to a selected candidate."
The significance and importance of this decision is that the year of
induction in the Administrative Service was held to be determinative. We
have followed the same test.
15. In P. Mohan Reddy versus E.A.A. Charles & Ors. (2001) 4 SCC
433, there was inter se dispute in the cadre of Sub-Tehsildars between
direct recruits and promotees. After referring to the decisions in Union of
India versus M. Ravi Varma, (1972) 1 SCC 379, D.P. Sharma versus
Union of India, 1989 Supp (1) SCC 244, Constitution Bench decision in
B.S. Yadav versus State of Haryana, 1980 Supp SCC 524, P.D. Aggarwal
versus State of U.P. (1987) 3 SCC 622 and Gaya Baksh Yadav versus
Union of India (1996) 4 SCC 23, and distinguishing the judgments in the
case of State of J & K versus Triloki Nath Khosa (1974) 1 SCC 19 and
S.S. Bhola versus S.S. Sardana, (1997) 8 SCC 522, it was held:-
"12..........A conspectus of the aforesaid decision,
therefore, unequivocally indicates that the seniority of
an employee in the cadre is required to be determined
in accordance with the Rules in force unless the
subsequent amendment is expressly given retrospective
effect, and even though an employee does not have a
vested right to have any particular position in the
gradation list, but he does possess a right to get his
seniority determined in accordance with the Rules in
force when he was recruited and that right should not
be interfered with unless the rule-making authority by
virtue of amending the Rules makes it applicable to all
the existing employees in the cadre, notwithstanding
the fact that their seniority had already been determined
under the pre-existing rule."
This judgment also makes extensive reference to facts and decision in the
case of Wing Commander J. Kumar versus Union of India, (1982) 2 SCC
116 and also K.V. Subba Rao versus Government of Andhra Pradesh,
(1988) 2 SCC 201 and holds that:-
"17. A conspectus of the aforesaid decisions of this
Court would indicate that even though an employee
cannot claim to have a vested right to have a particular
position in any grade, but all the same he has the right
of his seniority being determined in accordance with
the Rules which remained in force at the time when he
was borne in the cadre. The question of re-
determination of the seniority in the cadre on the basis
of any amended criteria or rules would arise only when
the amendment in question is given a retrospective
effect. If the retrospectivity of the Rule is assailed by
any person then the court would be entitled to examine
the same and decide the matter in accordance with the
law. If the retrospectivity of the Rule is ultimately
struck down, necessarily the question of redrawing of
the seniority list under the amended provisions would
not arise, but if, however, the retrospectivity is upheld
by a court then the seniority could be redrawn in
accordance with the amended provisions of the
employees who are still in the cadre and not those who
have already got promotion to some other cadre by that
date. Further, a particular rule of seniority having been
considered by the Court and some directions in relation
thereto having been given, that direction has to be
followed in the matter of drawing up of the seniority
list until and unless a valid rule by the rule-making
authority comes into existence and requires otherwise,
as was done in Bola case [(1997) 8 SCC 522]. It may
be further stated that if any rule or administrative
instruction mandates drawing up of seniority list or
determination of inter se seniority within any specified
period then the same must be adhered to unless any
valid reason is indicated for non-compliance with the
same.
18. When we examine the present case from the
aforesaid principles we have no doubt in our mind that,
in view of the judgment of this Court in Subba Rao
case[(1988) 2 SCC 201 : 1988 SCC (L&S) 506 : (1988)
7 ATC 94] , seniority of Deputy Tahsildars appointed
between the dates 10-4-1980 till September 1992 is
required to be determined in accordance with the pre-
amended rules (sic and not in accordance with the
Rules) which came into existence in September 1992,
and even if factually such seniority has not been drawn
up then the same has to be drawn up in accordance with
the criteria indicated in the pre-amended rules and not
according to the amended rules, which came into
existence in September 1992, as has been held by the
High Court in the impugned judgment. The High Court,
therefore, was clearly in error and the said judgment of
the High Court is thus set aside. The Tribunal was fully
justified in dismissing the OAs filed by the promotee
Deputy Tahsildars. In the premises, as aforesaid, the
civil appeals by the direct recruits are allowed and the
OAs filed by the promotees before the Administrative
Tribunal stand dismissed.
16. In the light of the aforesaid discussion, we find that the Tribunal was
right in holding that the weightage formula applicable in the case of the
respondents would be as per the unamended sub-rule (3) to Rule 3, which
was in force on the date when the respondents were appointed to the Indian
Police Service on 16th December, 2011. The weightage formula introduced
by the amended Rules, which was given effect from 18th April, 2012, would
not be applicable to the case of the respondents as the respondents had
already been appointed in the IPS earlier in point of time, i.e. on 16th
December, 2011. The extant rule, as applicable in the year in which the
respondents were appointed in the Indian Police Service, would determine
the weightage for past service to be given to the respondents.
17. Learned counsel for the petitioner submitted that if we accept the
plea of the respondents, it would result in iniquitous results, for the
respondents would be entitled to weightage benefits but the same would be
available to those who join after 18th April, 2012. This is correct, but this is
also the natural consequence and effect when an amendment to the
weightage formula is made. The petitioners‟ concerns, we feel, are
somewhat misplaced as the benefit of weightage formula would be only
available to a limited number of candidates/officers, who were selected and
appointed prior to 18th April, 2012. The first proviso to sub-rule (3) to Rule
3 would, to a large extent, negate the apprehension and concern of the
petitioners. The said proviso stipulates that an appointee, who has gained
weightage in 3(3) (ii) shall not be assigned a year of allotment earlier than
the year of allotment assigned to an officer senior to him in that select list
or appointed to service on the basis of an earlier select list. The
respondents, therefore, cannot claim entitlement of year of allotment to the
service prior to the last selected candidate in the earlier select list i.e. select
list of 2009. The impugned decision would not, in any manner, undo or
override the effect and mandate of the proviso.
18. In view of the aforesaid discussion, and subject to the clarification
made in paragraph 17 above, we do not find any merit in the present writ
petition and the same is dismissed. No order as to costs.
(SANJIV KHANNA)
JUDGE
(NAJMI WAZIRI)
JUDGE
AUGUST 12th, 2016
tp/ssn
