Holding

The Tribunal’s order setting aside the promotion was invalid because it failed to consider Rule 9 of the IPS (Cadre) Rules and relied on an inadmissible memo.

Summary

Navneet Rajan Wasan, an IPS officer of the Andhra Pradesh cadre, was denied promotion to the senior scale on the ground that he had not passed the language test. He obtained a direction from the Central Administrative Tribunal ordering the Government to consider him for promotion. When the Government implemented the order, it altered the seniority list, affecting nine other officers, including respondents R4‑R6, who challenged the promotion before the Tribunal. The Tribunal set aside Wasan’s promotion, relying on Rule 3(3)(b) of the IPS (Regulation of Seniority) Rules and a memo from the State Government, without addressing Wasan’s contention based on Rule 9 of the IPS (Cadre) Rules. Wasan appealed to the Supreme Court, which held that the Tribunal failed to consider the crucial Rule 9 argument and based its decision on an inadmissible memo, thereby rendering its order invalid. The Supreme Court set aside the Tribunal’s order and remanded the matter for proper disposal. The appeal was allowed.

Issues considered

Whether the Tribunal correctly applied Rule 9 of the Indian Police Service (Cadre) Rules, 1954 in determining the validity of the promotion.
Whether the memo relied upon by the Tribunal was a legally admissible document.
Whether the Tribunal erred in setting aside the promotion order despite the direction of the CAT.
Interpretation of seniority under Rule 3(3)(b) and Rule 4 of the IPS (Regulation of Seniority) Rules, 1954.

Legislation cited

Indian Police Service (Cadre) Rules, 1954s. Rule 9

Subjects

promotionseniorityIPS Cadre Ruleslanguage testadministrative tribunalRule 9admissible evidenceservice law

Judgment

/y

NAVNEET RAJAN WASAN A
v.
• t UNION OF INDIA & ORS .

MARCH 12, 1996

[B.P. JEEVAN REDDY AND M.K. MUKHERJEE] B

Service Law :

Indian Police Service (Cadre) Rules, 1954 : Rule Hndian Police
Service (Regulation of Seniority) Rules, 1954: Rules 3(3)(b) and 41, Indian
Police Service (Appiontment by Promotioi1) Regulation 1965-Police Officer
c
belonging to Indian Police Service-Promotor-Not grantetf-Direction from
Tribunal-Officer promoted to senior scale-On challenge, Tribunal relying
on a memo, set aside the promotion order-Held T1ibunal was not justified
in not considering Rule 9 of Indian Police Service (Cadre) Rules on which
the claim was principally based-Order of Tribunal set asid<:-Case remanded D
to Tribunal.
J
4 The appellant, an officer of the Indian Police Service (IPS) having
not been given promotion even aller completion of 4 years of service on
the ground that he had not passed the language test, approached the
Tribunal. The Tribunal while allowing his application directed the govern·
E
men! to consider his case for promotion. The appeal filed by the Govern·
men! before this Court was dismissed. The Government issue show-cause
notices to 9 promotee officers, including respondent Nos. 4 to 6, whose
seniority was to be affected while implementing the Tribunal's order. After
(
.. considering the representations of the officers, the Government issued F
order allowing senior time-scale to the appellant and placed him above the
respondents. Respondents No. 4 to 6 challenged the promotion order of
the appellant before the Tribnnal. The Tribunal allowed their application
and set aside the promotion of the appellant. Hence the present appeal by
the appellant.
G
The contention of the appellant was that contention he raised before
\.. ,._ the Tribunal relying on Rule 9 of the Indian Police Service (Cadre) Rules,
1954 which was of crucial relevance for determining the issue involved was
not at all considered. It was further submitted that no satisfactory or
reliable material was placed on behalf of the three respondents so as to H
259
260 SUPREME COURT REPORTS (1996] 3 S.C.R.

A entitle the Tribunal to conclude that after inclusion in the seniority list
they officiated in cadre post.

Allowing the appeal, this Court

HELD : 1. The grievance of the appellant that Rule 9 of the Indian
B Police Service (Cadre) Rules 1954 which was of crucial relevance for
determining the issue involved was not considered by the Tribunal, is well
founded and genuine. It is found that appellant's contest to the claim of
the three respondents was principally based on Rule 9 of the Indian Police
Service (Cadre) Rules. In spite of this the Tribunal did not advert to the
C contentions raised by the appellant. [264-A-C]

2. The Tribunal negatived the contention of the appellant that the
respondents did not officiate in the cadre post on the basis of a memo
issued by the State Government. The memo was not a formal order
supported by a proper affidavit but was only a written instructions given
D by the client to his lawyer. The Tribunal was not at all justified in
entertaining and basing its findings on a document which was not legally
permissible nor properly brought on record. Besides, .the communication
doesnot support the conclusion drawn by the Tribunal that three con-
cerned respondents officiated in "senior 'cadre' post'. [264-D, F-G]

E 3. The Tribunal did not approach the questions raised before it from
a proper perspective nor did it take into consideration the plea raised by
the appellant. Therefore, the impugned orders of the Tribunal are set aside
and the applications are remanded to the Tribunal for proper disposal in
accordance with law and in the light of the present judgment as ex-
F peditiously as possible. [264-H; 265-A-B]
•
CIVIL APPELLATE JURISDICTION : Civil appeal Nos. 4226-27
of 1996.

From the Judgment and Order dated 29.6.93 of the Central Ad-
G ministrative Tribunal, Hyderabed in Original Applications. Nos. 823 and
919 of 1992.

AS. Nambiar, Ms. Binu Tamta and P. Parmeswaran for the Union
of India.

H L. Nageswara Rao, S. Uday Kumar Sagar, K.R. Kumar, C.
I
>-'
N.R. WASANv. U.0.1. [M.K.MUKHERJEE, J.] 261

Balasubramanian, J.P. Misra, Y. Prabhakara Rao for the Respondent Nos. A
4 & 5.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. Leave granted. Head the learned counsel
for the parties. B
These two appeals have been heard together as they arise out of a
common judgment rendered by the Central Administrative Tribunal,
Hyderabad ('Tribunal' for short) disposing of two original applications
(O.A. Nos. 823 of 1992 and 919 of 1992). Facts relevant for disposal of
these appeals are as under : C
Shri N.R. Wasan, the appellant herein, was appointed to the Indian
Police Service (JPS) on September 20, 1980 on the basis of Civil Service
Examination, 1979 and was allotted to the Andhra Pradesh Cadre. Inspite
of his completion of 4 years of service on September 19, 1984, he was D
however not promoted to the senior scale on the ground that he had not
pa'5ed the language test. Aggrieved by his delayed promotion he filed an
application before the Tribunal vide O.A No. 414 of 1987 seeking redressal
of his grievances. His application was allowed by the Tribunal by its order
dated January 13, 1988 with a direction to the Government of India to
consider him for promotion to the senior scale on completion of 4 years of E
service in the junior scale subject to the conditions prescribed in the Rules,
without insisting on passing of the language test. Assailing the above order
of the Tribunal the State of Andhra Pradesh filed a special leave petition
in this Court which was dismissed on February 18, 1991. Thereafter the
Government oflndia decided to implement the direction of the Tribunal F
but as its implementation was to affect the seniority of nine promotee
officers including the respondents No. 4, 5 and 6 herein, (R4, RS and R6
for short), in that, their year of allotment was to be changed from 1979 to
1980 they were asked to show cause against the proposed revision of the
Gradation List. After considering the representations submitted by those
officers the Government of In.dia issued, in accordance with Rule 4 of the G
Indian Police Service (Regulation of Seniority) Rules, 1954, an Order on
June 18, 1992 whereby it allowed senior time scale to the appellant with
effect from September 20, 1984 and amended the Gradation List of IPS
officer of Andhra Pradesh so as to place him above those three respon-
dents. H
262 SUPREME COURT REPORTS [1996] 3 S.C.R.

A Assailing the above Order R4 and R5 filed a joint application (O.A.
No. 823 of 1992) and R6 filed a separate application (O.A.No. 919 of 1992)
before the Tribunal. In their applications they averred that all of them were
included in the Select list of 1983 prepared in accordance with the Indian
Police Service (Appointment by Promotion Regulation, 1955 and that after
such inclusion they were promoted to officiate in senior time scales of IPS
B
Officers with effect from February 23, 1984, February 29, 1984 and March
6, 1984 respectively till they were appointed in substantive vacancies in the
post of JPS Officers in the month of October, 1984, Resultantly, they
contended, in view of Rule 3(3)(b) of the Indian Police Service (Regulation
of Seniority) Rules, 1954, (as it stood at the relevant time) their seniority
C was to be reckoned with reference to the dates from which they officiated
in the senior posts and not the dates of their actual absorption in the
substantive vacancies of !PS Officers. When so reckoned, their year of
allotment would be 1979 as originally assigned, and hence the Gradation
List did not warrant modification notwithstanding the appellant's appoint-
D ment in the senior post with effect from September 20, 1984.

In contesting the applications the appellant submitted that under
Rule 9 of the Indian Police Service (Cadre) Rules, 1954 a cadre post in a
State may be filled by a person who is not a cadre officer only if the State
Government or its delegatee is satisfied that the vacar.cy is not likely to last
E for more than three months or that there is no suitable cadre officer
available for filling the vacancy. According to the appellant the concerned
authorities could not have obtained satisfaction that no suitable cadre
officer was available for filling the vacancy as he (the appellant) was
available and that it was not the case of the authorities that he was not
.,,
p suitable. The appellant's next contention was that even if the initial officiat-
ing promotion of the above the respondents was assumed to be legal and
valid its continuance beyond a period of three months was illegal due to
non compliance of sub-rule (2) thereof, which requires the State Govern-
ment to report such extension to the Central Government. The appellant
also denied knowledge of the three respondents' claim that their pro;no-
G tional officiation was in cadre post. The stand of the Union of India, the
respondent No. 1 (Rl) in the applications, however, on this point was
specific as it asserted that in fixing the inter se seniority by the impugned
order dated June 18, 1992, the dates of appointments of the three respon-
dents in the substantive vacancies in the JPS posts were only taken into
H consideration as their officiation after inclusion in the Select List, was not
N.R. WASANv. U.0.l. [M.K.MUKHERJEE,J.] 263

in cadre posts. A
By the impugned judgment the Tribunal allowed the applications of
the three respondents and set aside lhe Order dated June 18, 1992 issued
by Rl. In so doing, the Tribunal placed strong reliance on Ruic 3(3)(b) of
the Indian Police Service (Regulation of Seniority) Rule, 1954 (as it stood
at the relevant time), which provides for the mode of assignment of year B
of allotment, and recorded the following findings :

"It has to be noted that prior to amendment in 1987 the year of
actual appointment of promolee lo the !PS was not relevant for
determining the year of allotment, if such promotee police officer C
was in continuous officiation prior to date of appointment to JPS.
The impugned order discloses that the date of actual appointment
of the applicant to the JPS was taken into consideration for
determining the year of allotment of the applicants, even though
they were in continuous officiation of senior posts prior to their
appointments to IPS. D

But in the counter filed R-1 it was stated that the dates of
appointment of the applicants were taken into consideration as
their officiation was not in the cadre .posts. The assun1ption on the
part of RI that the applicants officiated in Ex cadre senior po;ts is E
not co"ect in view of the memo dated 26.6.1993 of the secretary to
Andhra Pradesh State Govenvnent in General Adrninistration.
Hence, there is no need to consider for disposal of these OAS as
to whether the date of the inclusion in the select list or the date
from which the promotcc in officiation in senior Ex-cadre posts
whichever is later cannot be taken for determining the year of F
allotment prior to amendment of Rule-3 in 1987.

Tl is thus evident that 29.2.1984 and 20.3.1984 the dates from
which these two applicants respectively officiated in senior posts
continuously till the date of their appointments have to be taken into G
consideration for assigning the year of allotmelll and on that basis
1979 was originally assigned and hence it does not warrant
modification even though R-4, Sri Wasan was in continuous of-
ficiation of senior post from 20.9.1984."

(emphasis supplied) H
264 SUPREME COURT REPORTS (1996] 3 S.C.R.

A In impugning the above finding, the appellant, who himself argued
his case, submitted that the contention he raised before the Tribunal
relying on Rule 9 of the Indian Police Service (Cadre) Rules, 1954 which, + '-
according to him, was of crucial relevance for determining the issues
involved, was not at all considered by it. Besides, he asserted, no satisfac-
tory or reliable material was placed on behalf of the three respondent so
B as to entitle the Tribunal to conclude - as it did - that after inclusion in the
Select List they officiated in carde posts.

So far as the first grievance of the appellant is concerned it must be
said that it is well founded and genuine. On perusal of the counter
,-1
c affidavits that he filed before the Tribunal we find that his contest to the
claim of the three applicants-respondents was principally based on Rule 9
of the Indian Police Service (Cadre) Ruic, 1954. In spite thereof, surpris-
ingly however, the Tribunal did not even advert to the contentions raised
by the appellant, much less meet the same.
D
As regards the other contention of the appellant that those three
respondents did not officiate in cadre post after inclusion in the Select List
- which was also supported by the respondent No. 1 - it has already been '-
f-
noticed (in the earlier quoted passage) that the Tribunal negatived the
same relying solely upon a memo dated June 26, 1993 issued by the Andhra
E Pradesh State Government. As on perusal of the records we did not find
any such memo, we enquired of the learned counsel for the three ap-
plicants-respondents about its issuance/existence. The learned counsel
handed over a copy thereof to us and on perusal of the same, we were
surprised to find that it was only a communication addressed to the special
F counsel who appeared for the State of Andhra Pradesh before the
)>
.
Tribunal. In other words, it was not a formal order which was issued by
the State of Andhra Pradesh and filed before the Tribunal supported by a
proper affidavit, but was only the written instructions given by a client to
his lawyer. We are, therefore, constrained to say that the Tribunal was not
at all justified in entertaining the same, far less, basing its decision there-
G upon. This apart, the communication, for what it is worth, does not support
the conclusion drawn by the Tribunal that the three concerned respondents
officiated in "senior 'cadre' post" for it only says that they officiated in KY

'senior post'.

H For the foregoing discussion we must hold that the Tribunal did not
N.R. WASAN v. U.0.1. [M.K.MUKHERJEE, J.] 265

approach the questions raised before it from a proper perpesctive nor did A
it take into consideration the plea raised by the appellant; and, on the
_..., _., contrary based its finding on a document which was not legally admissible
nor properly brought on record. We, therefore, set aside the impugned
orders and remand the applications to the tribunal for proper disposal in
accordance with law and in the light of the observations made herein- B
before.. Since, we are told, the three concerned respondents are on the
verge of retirement we respondent the Tribunal to dispose of the applica-
tions as expeditiously as possible. There will be no order as to costs.

S.V.K.I. Appeal allowed.