Supreme Court of India
STATE OF SIKKIM AND OTHERSversusADUP TSHERING BHUTIA AND OTHERS
- Citation
- 2014 INSC 109
- Decided
- 18 February 2014
- Disposal
- Appeal(s) allowed
- Bench
- H L GOKHALE
Holding
The amendment fixing seniority on the basis of sub‑inspector appointment date is a valid, non‑arbitrary exercise of the State's power under Article 309, and the High Court's judgment is set aside while the writ petitioner's benefits remain undisturbed.
Summary
The State of Sikkim integrated three separate police forces into a single Sikkim Police Force under the 2000 Rules, fixing seniority of officers at the sub‑inspector level to address promotion inequities. The High Court struck down Rule 9(iv) and the seniority list, holding that the retrospective deemed promotions violated the writ petitioner's accrued rights. On appeal, the Supreme Court examined whether the amendment was arbitrary, unreasonable, or violative of constitutional equality and whether the State could retrospectively alter seniority under Article 309. The Court held that the amendment was a valid policy measure aimed at eliminating greater inequality and was within the State's legislative competence. It found that the High Court erred in its interpretation of seniority fixation and that the retrospective promotion did not infringe vested rights. Consequently, the appeal was allowed, the High Court judgment set aside, but the benefits granted to the writ petitioner were left undisturbed. The decision affirms the State’s power to amend service rules for integration purposes.
Issues considered
- Whether the amendment to Rule 9(iv) of the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000, fixing seniority based on the date of appointment to sub‑inspector is arbitrary, unreasonable or violative of Articles 14 and 16 of the Constitution.
- Whether retrospective deemed promotion under the amendment infringes the accrued rights of officers.
- Whether the State, under Article 309 of the Constitution, has the authority to amend service rules retrospectively for the purpose of integration.
- Whether the High Court correctly held that seniority should be determined by substantive promotion to inspector rather than by sub‑inspector appointment date.
- Whether the benefits granted to the writ petitioner by the High Court should be disturbed after setting aside its judgment.
Legislation cited
- Constitution of Indias. Article 309
Subjects
service integrationseniority fixationretrospective promotionArticle 309police service lawequalityconstitutional lawRule 9(iv)promotion to DSPadministrative policy
Judgment
[2014] 2 S.C.R. 1003 ,
STATE OF SIKKIM AND OTHERS A
v.
ADUP TSHERING BHUTIA AND OTHERS
(Civil Appeal No. 2446 of 2014)
FEBRUARY 18, 2014
B
[H L. GOKHALE AND KURIAN JOSEPH, JJ.]
Sikkim Police Force (Recruitment, Promotion and
Seniority) Rules, 2000: r. 9(iv) - Integration of services - Three
different services viz. Police Force, Armed Police and C
Vigilance Police in the State of Sikkim - In Vigilance Police
and Armed Police, though the members therein got
accelerated promotion to the post of inspector, there was no
further promotion available to them - Promotion to the post
of Deputy Superintendent of Police (DSP) available only to D
members of the Police Force - This inequality sought to be
remedied by integration of three services - The feeder
category for promotion to the post of DSP is inspector - Date
of promotion/direct recruitment to the post of sub-inspector
taken as determining factor for fixation of seniority for the E
purpose of promotion to the post of DSP and grant of
deemed/notional promotion to the members of the Police
Force from the date their compeers in the other two services
got promotion to the post of inspector - Writ petition by
respondent alleging that on account of the retrospective F
promotion granted to the members of the Police Force based
on the date of appointment/promotion as sub-inspector in the
case of the other two services, the respondent became junior
to them, affecting his chances of promotion to the post of DSP
- High Court allowed writ petition - Held: High Court patently G
erred in holding that the acquired or accrued rights of the writ
petitioner had been affected by the fixation of seniority at the
level of sub-inspector of Police - The very purpose of
integration was to remove the inequality and provide them with
1003 H
1004 SUPREME COURT REPORTS [2014] 2 S.C.R.
A the opportunity for promotion to the post of DSP - If length of
continuous service in the highest cadre of some similar
services is taken as basis of fixing seniority and for further
promotion that would certainly result in deeper injustice to the
members of the other services - r. 9(iv) is just, fair and
B equitable in the given circumstances without which the
integration of services would have resulted in graver inequality
and injustice to the members of the major service - The
impugned judgment is set aside - However, for doing
complete justice, being a solitary case, the benefits granted
c by the High Court in the impugned Judgment to the writ
petitioner shall not be disturbed - Service law.
Prior to the constitution of integrated Sikkim Police
Force w.e.f. 11.09.2000, there were three different services
viz. Sikkim Police Force, Sikkim Armed Police and Sikkim
D Vigilance Police in the State of Sikkim. All the three forces
were governed by separate service rules. There was entry
level of constable in all the three forces. The Sikkim
Vigilance and Sikkim Armed Forces ended with the cadre
of inspector. In the case of Sikkim Armed Police there was
E also 50% direct recruitment at the level of sub-inspector.
Promotion to the post of Deputy Superintendent of Police
was available only to the Sikkim Police Force. The posts
of Deputy Superintendent of Police in Sikkim Vigilance
Police and Sikkim Armed Police were filled up only by
F deputation. The personnel belonging to the Sikkim
Vigilance Police and Sikkim Armed Police had been
raising their grievances with regard to lack of promotion
beyond inspector of police at various levels. The State
Government framed the Sikkim Police Force
G {Recruitment, Promotion and Seniority) Rules, 2000 under
Article 309 of the Constitution of India consisting of posts
upto inspector in all the three forces whereby seniority
and retrospective promotion was granted notionally to
the members of pre-integrated Sikkim Police Force.
H
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1005
BHUTIA AND OTHERS
The respondent had joined Sikkim Police as a A
Constable on 12.08.1974. He was absorbed in the Sikkim
Vigilance Police on 12.09.1978. He was promoted as sub-
inspector on 22.12.1986 and was further promoted as
inspector on 26.09.1995. On account of the retrospective
promotion granted to the members of the Sikkim Police B
Force based on the date of appointment/promotion as
sub-inspector in the case of the other two services, the
respondent became junior to them, affecting his chances
of promotion to the post of Deputy Superintendent of
Police. He filed a writ petition before the High Court. c
The High Court allowed the writ petition quashing the
retrospective promotion granted to the private
respondents and striking down Rule 9(iv) holding also
that the seniority in the integrated cadre of inspectors
shall be decided only on the basis of their substantive D
promotion to that post, and not based on the date of
promotion/appointment to the post of sub-inspector. The
Court, however, protected the promotions granted to the
private respondents. Even the respondent was also
promoted as Deputy Superintendent of Police on E
23.02.2012 and he retired from service on 31.08.2012. The
direction by the High Court was to grant promotion w.e.f.
the date the first promotion was granted to any other
private respondent with all the consequential including
monitory benefits. The instant appeal was filed F
challenging the order of the High Court.
Allowing the appeal, the Court
HELD: 1. Integration of three services was
necessitated for balancing the inequality to the extent that G
the members of two of the services were denied
promotion to the post of Deputy Superintendent of
Police. Such promotion was available only to the
members of the erstwhile Sikkim Police Force and was
denied to Sikkim Vigilance Police and Sikkim Armed H
1006 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Police. Accepting the recommendation· of the
Commission for a unified Police Force, the State
Government integrated three services and promulgated
the Sikkim Police Force (Recruitment, Promotion and
Seniority) Rules, 2000. The members of Sikkim Vigilance
B Police and Sikkim Armed Police had obtained accelerated
promotion to various posts up to the position of
inspector of police. However, their compeers in the
erstwhile Sikkim Police Force could not get such
promotions to the higher post of inspector for want of
c vacancy. There was entry level direct recruitment in one
of the services, viz., Sikkim Vigilance Police to the extent
of 50%. No doubt one of the main principles of
integration is equation of posts. But the question is
whether such integration based only on equation of
posts will result in inequality or injustice to the members
0
of any other service. Promotion to the post of Deputy
Superintendent of Police was available only to members
of the Sikkim Police Force. In the other two services, viz.,
Sikkim Vigilance Police and Sikkim Armed Police, though
E the members therein got accelerated promotion to the
post of inspector, there was no further promotion
available to them and they had to retire from service in
that cadre. It was this inequality that was sought to be
remedied by integration. The feeder category for
promotion to the post of Deputy Superintendent of Police
F is inspector. If the seniority is fixed in that cadre of
inspector, it would virtually amount to denial of promotion
to the post of Deputy Superintendent of Police for quite
some time to the members of the Sikkim Police Force. It
was this discrimination and resultant injustice that was
G sought to be remedied by referring the matter to the
Committee which recommended that for the purpose of
promotion to the post of Deputy Superintendent of Police
and preparation of seniority list in that regard, the date
of promotion to the post of sub-inspector should form the
H basis. That date was taken, since there was direct
STATE OF SIKKIM AND OTHERS v: ADUP TSHERING1007
BHUTIA AND OTHERS
recruitment to the post of sub-inspector in Sikkim Armed A
Police. What has been done by the Government is to
base the date of promotion/direct recruitment to the post
of sub-inspector as the determining factor for fixation of
seniority for the purpose of promotion to the post of
Deputy Superintendent of Police and grant deemed/ B
notional promotion to the members of the Sikkim Police
Force from the date their compeers in the other two
services got promotion to the post of inspector.
Appointment to the post of inspector is by promotion.
Therefore, the entry level appointment to the cadre of sub- c
inspector becomes relevant. The sub-inspector of Sikkim
Vigilance and Sikkim Armed Forces, by chance, got
accelerated promotion to the post of inspector. It was this
injustice that was sought to be remedied by the
retrospective promotion without monitory benefits and 0
the amendment in the Rules. Merely because there is
equation of post in a cadre on integration that does not
necessarily mean that the common seniority list should
be prepared in that cadre for promotion to the next higher
cadre. If that method would result in injustice and graver E
inequality, another fair and just mode can be adopted.
[Para 12 to 16] [1018-C-D; 1019-B-H; 1020-A-F]
State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni
and Ors. (1983) 2 SCC 33: 1983 (2) SCR 287; B.S. Yadav
and Ors. v. State of Haryana (1980) Suppl. SCC 524: 1981 F
SCR 1024 - referred to.
2. True, many officers who were working as sub-
inspectors, while the writ petitioner had been working as
inspector, have gone above him in the process but the G
hard fact which caused the heartburn to his compeers in
the Sikkim Police Force is that at the level of sub-
inspectors, all of them were either travelling together with
the writ petitioner or had gone much earlier to him in that
cadre. No doubt, after integration, the promotion chances H
1008 SUPREME COURT REPORTS [2014] 2 S.C.R.
A of members of Sikkim Police have been reduced
considerably, since originally it was their exclusive
domain. [paras 17, 18] [1020-G-H; 1021-A]
3. The High Court patently erred in holding that the
8 acquired or accrued rights of the writ petitioner had been
affected by the fixation of seniority at the level of sub-
inspector of Police. It has to be noted that, but for merger,
neither the writ petitioner nor the members of the two
other police forces, viz., Sikkim Vigilance Police and
C Sikkim Armed Force, could have got any promotion at all
to the post of Deputy Superintendent of Police. The very
purpose of integration was to remove the inequality and
provide them with the opportunity for promotion to the
post of Deputy Superintendent of Police. If length of
continuous service in the highest cadre of some similar
D services is taken as the basis of fixing the seniority and
for further promotion to higher posts that would certainly
result in deeper injustice to the members of the other
services. It was hence the State, after due deliberations
and based also on report of an expert Committee
E consisting of the top level offices in the State, took an
equitable decision to make the post of sub-inspector of
Police, where there is direct level entry in one of the
services, as the determining factor for fixation of seniority.
The writ petitioner did not suffer any demotion in the
F process. He continued in the post of inspector. The only
thing is that his compeers in Sikkim Police Force who
could not get accelerated promotion to the post of
inspector, but who are admittedly senior to him if the date
of appointment to the post of sub-inspector is taken, were
G given the deemed date of promotion to the post of
inspector based on the seniority at the level of sub-
inspector. The amended rule certainly has thus a nexus
to the injustice sought to be removed so as to balance
the equity. It is neither irrational nor arbitrary. In the whole
H State of Sikkim, the writ petitioner is the only person who
I
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING 1009
BHUTIA AND OTHERS
challenged the amendment which by itself would show A
that it was a case of a solitary instance, assuming there
is basis for his grievance. The writ petitioner was senior
to some of the private respondents if his date of entry in
service as Sikkim Police Constable is taken. But when
the Sikkim Vigilance Police was formed, he opted for that B
and he was absorbed in that Police wherein he got
accelerated promotions to the various posts of head
constable, assistant sub-inspector, sub-in!?pector and
inspector. But such a ground with regard to his original
date of entry as a police constable in 1974 was not taken c
anywhere. The principle of fixation of seniority as
introduced by the amendment was already there in Rule
9(1). It is already provided therein that the relative seniority
of the members recruited directly will be fixed based on
the date of induction to the cadre. In other words, date D
of induction to a cadre where there is direct recruitment
is the basis of fixation of seniority in the instant case at
the level of sub-inspector. Thus, the amendment is
merely clarificatory in nature and, therefore, it is deemed
. to exist from the original date of commencement of the E
Rule in 2000. Be that as it may, the High Court has
already protected the promotions granted to the private
respondents but the High Court has struck down the
Rule and has quashed the seniority list. The High Court
has unfortunately missed the crucial consideration with
regard to the principles set by the State with regard to F
fixation of seniority, the purpose sought to be achieved
in the process, the relevant considerations which led to
the decision and the materials including the report of the
expert committee which were relied on by the State in the
process of making and taking of the decision. The State G
has only acted within its authority under Article 309 of the
Constitution of India in bringing about the clarificatory
amendment with regard to the fixation of seniority in the
cadre of sub-inspectors. The retrospectivity given to the
private respondents by giving the deemed date of H
1010 SUPREME COURT REPORTS [2014] 2 S.C.R.
A promotion is neither arbitrary nor unreasonable. On the
contrary, it is perfectly just, fair and equitable in the given
circumstances without which the integration of services
would have resulted in graver inequality and injustice to
the members of the major service. The impugned
B judgment is set aside. The first respondent-writ petitioner
was also promoted as Deputy Superintendent of Police
and he has retired from service. Rule 17 of the 2000 Rules
has provided for power of relaxation to the State. Since
the first res'pondent-writ petitioner had actually entered
c in service· in 1974, prior to some of the private
respondents, this could have been probably a case for
the State Government to exercise that power. For doing
complete justice, being a solitary case, the benefits
granted by the High Court in the impugned Judgment to
the writ petitioner shall not be disturbed. [paras 26 to 30]
0
[1028-E-H; 1029-A-H; 1030-A-G]
Tamil Nadu Education Department Ministerial and
General Subordinate SeNices Association and Ors. v. State
of Tamil Nadu and Ors. (1980) 3 sec 97: 1980 (1) SCR
E 1026; Indian Airlines Officers' Association v. Indian Airlines
Limited and Ors. (2007) 10 sec 684: 2007 (8) SCR 655;
Kera/a Magistrates' (Judicial) Association and others v. State
of Kera/a and Ors. (2001) 3 SCC 521: 2001 (2) SCR 222;
Life Indian Corporation of India and Ors. v. S. S. Srivastava
F and Ors. 1988 Supp SCC 1: 1987 SCR 180; New Bank of
India Employees' Union and Anr. v. Union of India and Ors.
(1996) 8 sec 407: 1996 (3)SCR 322; KS. Vora and Ors. v.
State of Gujarat and Ors. (1988) 1 sec 311: 1988 (1) SCR
611; ReseNe Bank of India v. N.C. Paliwal and Ors. (1976)
G 4 SCC 838: 1977 (1) SCR 377; R.S. Makashi and Ors. v. I.
M. Menon and Ors. (1982) 1 SCC 379: 1982 (2) SCR 69;
Prafulla Kumar Das and Ors. v. State of Orissa ahd Ors.
(1976) 4 sec 838: 2003 (4) Suppl. SCR 301; S.S. Bola and
others v. B.D. Sardana and Ors. (1997) 8 SCC 522:1997 (2)
H Suppl. SCR 507 - relied on.
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING 1011
BHUTIA AND OTHERS
Case Law Reference: A
1983 (2) SCR 287 referred to Para 11
1981 SCR 1024 referred to Para 11
1980 (1) SCR 1026 relied on Para 19 B
2007 (8) SCR 655 relied on Para 19
2001 (2) SCR 222 relied on Para 19
1987 SCR 180 relied on Para 19
c
1996 (3) SCR 322 relied on Para 19
1988 (1) SCR 611 relied on Para 20
1977 (1) SCR 377 relied on Para 22
1982 (2) SCR 69 relied on Para 23 D
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2446 of 2014.
From the Judgment and Order dated 10.10.2012 of the E
High Court of Sikkim, Gangtok in WPC No. 33 of 2010.
A Mariarputham, AG, A.K. Gaguli, Aruna Mathur, Yusuf
Khan (for Arputham, Aruna & Co.) for the Appellants.
Bhaskar Raj Pradhan, Arunabh Chowdhury, Anupam Lal F
Das; Karma Dorjee, G. Panmei, Vaibhav Tomar, Dipesh Sinha,
Anirudh Singh, Annam D.N. Rao for the Respondents.
The Judgment of the Court was delivered by
KURIAN, J. 1. Leave granted. G
2. Integration of services means the creation of a
homogenous service by the amalgamation or merger of service
personnel belonging to separate services. Integration is a policy
matter as far as the State is concerned. In evolving a proper H
1012 SUPREME COURT REPORTS [2014] 2 S.C.R.
A coalescence of the services, there are various steps:
(i) Decide the principles on the basis of which integration
of services has to be effected;
(ii) Examine the facts relating to each category and class
B of post with reference to the principle of equivalence;
(iii) Fix the equitable basis for the preparation of common
seniority list of personnel holding posts which are merged into
one category.
c The State is bound to ensure a fair and equitable treatment
to officers in various categories/cadres of services while
preparing the common seniority list. Being a complicated
process, integration is likely to result in individual bruises which
are required to be minimised and if not possible, to be ignored.
0 These first principles on integration are to be borne in mind
whenever a dispute on integration is addressed.
SHORT HISTORY
E 3. Prior to the constitution of integrated Sikkim Police -
Force w.e.f. 11.09.2000 as per the Sikkim Police Force
(Recruitment, Promotion and Seniority) Rules, 2000, there were
three different services, viz., (1) Sikkim Police Force, (2) Sikkim
Armed Police Force and (3) Sikkim Vigilance Police. All the
F three forces were governed by separate service rules. There
is entry level of constable in all the three forces. The Sikkim
Vigilance and Sikkim Armed Forces ended with the cadre of
inspector. In the case of Sikkim Armed Police there was also
50% direct recruitment at the level of sub-inspector. Promotion
G to the post of Deputy Superintendent of Police was available
only to the Sikkim Police Force. The posts of Deputy
Superintendent of Police in Sikkim Vigilance Police and
Sikkim Armed Police were filled up only by deputation. The
personnel belonging to the Sikkim Vigilance Police and Sikkim
Armed Police had been raising their grievances with regard to
H lack of promotion beyond inspector of police at various levels.
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING 1013
BHUTIA AND OTHERS [KURIAN, J.]
The matter reached the High Court in Writ Petition (C} No. 513 A
of 1998. Realising the heartburn, the State Government
appointed Justice N. G. Das, a former Judge of the High Court
of Sikkim as one man Commission for examining the scope
of integration of different services. Implementing the
recommendations of the Commission, the State Government B
framed the Sikkim Police Force (Recruitment, Promotion and
Seniority) Rules, 2000 under Article 309 of the Constitution of
India consisting of posts upto inspector in all the three forces.
For the purpose of ready reference, we shall extract Rule 4 of
2000 Rules on constitution of the forces: c
"4. Constitution of the Force:
The Force shall consist of the following, namely:-
(a) Persons holding the posts upto and including 0
Inspectors under Schedule I of the Sikkim Police
Force (Recruitment, Promotion and Seniority)
Rules, 1981.
(b) Persons holding the posts of Constable, Head
Constable, Assistant sub-Inspector, Sub-Inspector E
and Inspector under the Sikkim Vigilance Police
Force (Recruitment, Promotion and Seniority)
Rules, 1981.
(c) Persons holding the posts of Sub-Inspector and F
Inspector under the Sikkim Armed Police
(Recruitment, Promotion and Seniority) Rules,
1989.
(d) Persons recruited to the Force in accordance with
the provisions of these rules." G
4. On seniority, Rule 9 provided that the same would be
determined by the order of merit in which they are selected for
recruitment. To quote:
H
1014 SUPREME COURT REPORTS [2014] 2 S.C.R.
A "9. Seniority
(i) The relative seniority of the members of the force
recruited directly. shall be determined by the order
of merit in which they are selected for such
recruitment. Members as a result of an earlier
B
selection shall be senior to those recruited as a
result of a subsequent selection.
(ii) The relative seniority of persons promoted from a
lower post shall be on the basis of seniority-cum-
c merit subject to successfully passing the prescribed
exam.
(iii) The relative seniority inter-se of members recruited
directly and through promotion shall be determined
D according to the rotation of vacancies between
direct recruits and promotes which shall be based
on the quota of vacancies reserved for direct
recruitment and promotion, respectively, in these
rules."
E (Emphasis supplied)
5. On inter se seniority at the level of two cadres, viz., sub-
inspector and inspector, it appears, there was a back reference
to Justice N. G. Das Commission. However, it is seen from the
F records that there was no further recommendation from Justice
N. G. Das Commission. With regard to the method and
modalities of fixing of seniority of the sub-inspectors and
inspectors; the matter was hence referred to a committee of
senior police officers constituted by the Director General of
G Police. It was recommended that the inter se seniority at the
level of sub-inspectors be the determining criterion for fixing the
inter se seniority of inspectors in the integrated cadre. The
proposal was approved by the Government on 11.04.2008 but
the same was not implemented due to the pendency of a· Writ
H Petition filed by the first respondent herein. After the disposal
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1015
BHUTIA AND OTHERS [KURIAN, J.]
of the Writ Petition on 27.08.2009 as withdrawn, the A
government again constituted a high level committee headed
by the Chief Secretary as Chairman with Director General of
· Police, Home Secretary and Secretary DoP as members and
Joint Secretary DoP as member secretary. The committee
submitted its report on 31.10.2009. It was recommended that B
the inter se seniority of police inspectors should be fixed based
on the seniority at the entry level of sub-inspectors. It was also
recommended that inspectors of Sikkim Police be deemed to
have been promoted as inspectors w.e.f. the date their
colleague officers at the entry level of sub-inspectors in Sikkim c
Armed Police and Sikkim Vigilance Police first got promoted
as inspectors. The recommendation was approved by the State
Government on 10.11.2009, and on 19.01.2010 a Notification
was issued gr.anting retrospective promotion to 52 members
"
of the Sikkim Police Force with the condition that the officers 0
will not be entitled to arrears of pay.
6. The State Government also amended the integrated
Sikkim Police Force {Recruitment, Promotion and Seniority)
Rules, 2000 as per Notification dated 20.01.2010 with
retrospective effect from 11.09.2000. The amendment was E
mainly in Rule No. 9 on seniority wherein a new sub-clause (iv)
was inserted. The amended Rule 9 (iv) reads as follows:
"9(iv)(a) The inter-se-seniority of police personnel up to
the rank of Assistant Sub-inspector in the Sikkim F
Police and, Sikkim Vigilance Police on the date of
amalgamation of the cadres for the purpose of their
promotion to the next rank shall be determined on
the basis of their date of appointment to the entry
level post of Constable.
G
{b) The inter-se-seniority of Police Inspectors of Sikkim
Police. Sikkim Vigilance Police. Sikkim Armed
Police and Indian Reserve Battalion on the date of
amalgamation of the cadres for the purpose of their
promotion to the rank of Deputy Superintendent of H
1016 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Police shall be determined on the basis of their
date of appointment to the entry level of Sub-
Inspector."
(Emphasis supplied)
B 7. The Rules also provided for a residuary power to the
Government for relaxation. The relevant Rule reads as under:
"17. Power to relax: Where the Government of Sikkim is
of the opinion that it is necessary or expedient to do so, it
c may, by order, for reasons to be recorded in writing, relax
and of the provisions of these rules with respect to any
class or category of persons or post."
SHORT FACTS
D 8. Seniority, the retrospective promotion granted notionally
to the members of the pre-integrated Sikkim Police Force and
the amendment was challenged by respondent no.1 before the
High Court in Writ Petiton (C) No. 33 of 2010 mainly with the
following two prayers:
E
"(a) A writ in the nature of certiorari or any other writ,
order or directions striking down/quashing Rule
9(iv)(b) of the Sikkim Police Force (Recruitment,
Promotion & Seniority) Rules, 2000 as inserted by
Rule 2 of the Sikkim Police Force (Recruitment,
F
Promotion and Seniority) Amendment Rules, 2009
brought into force vide Notification No. 222/GEN/
DOP dated 20.01.2010 with retrospective effect
from 11.09.2000.
G (b) A writ in the nature of certiorari or any other writ,
order or directions striking down/quashing the
Notification No. 02/PHQ/201 O dated 19.01.201 O to
the extent it gives retrospective promotion to over
6 years to the private Respondent Nos. 7 to 28
H except Respondent No. 21 by a deeming fiction
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING 1017
BHUTIA AND OTHERS [KURIAN, J.]
irrespective of their actual date of confirmation with A
effect from the dates mentioned in the said
impugned notification against the names of each of
the said private Respondents."
9. For a proper understanding of the factual disputes, we
B
shall refer to the grievance of the wri~ petitioner. He joined
Sikkim Police as a Constable on 12.08.1974. He was absorbed
in the Sikkim Vigilance Police on 12.09.1978. He was
promoted as sub-inspector on 22.12.1986 and was further
promoted as inspector on 26.09.1995. On account of the
retrospective promotion granted to the members of the Sikkim C
Police Force based on the date of appointment/promotion as
sub-inspector in the case of the other two services, the writ
petitioner became junior to them, affecting his chances of
promotion to· the post of Deputy Superintendent of Police.
D
10. The High Court by Judgment dated 10.10.2012
allowed the Writ Petition quashing the retrospective promotion
granted to the private respondents and striking down Rule 9(iv)
holding also that the seniority in the integrated cadre of
inspectors shall be decided only on the basis of their E
, substantive promotion to that post, and not based on the date
of promotion/appointment to the post of sub-inspector. The
Court, however, protected the promotions granted to the private
respondents. It is significant to note that even the writ petitioner
was also promoted as Deputy Superintendent of Police on
F
23.02.2012 and he retired from service on 31.08.2012. The
direction by the High Court is to grant promotion with effect from
the date the first promotion was granted to any other private
respondent with all the consequential including monitory
benefits. Thus aggrieved, the State is before this Court.
G
1 f The High Courtnas placed reliance on the Constitution
Bench decision of this Court in State of Gujarat and Another
v. Raman Lal Keshav Lal Soni and Others 1 regarding
1. (1983) 2 sec 33.
H
1018 SUPREME COURT REPORTS [2014] 2 S.C.R.
A retrospective operation of law. Reliance is also placed on
another Constitution Bench decision in B.S. Yadav and Others
v. State of Haryana 2 . In £3 S. Yadav's case (supra), this Court
dealt with the legislative power of the State under Article 309
of the Constitution of India. It was clearly held in both the
. 8 decisions that the State is competent to enact laws with
retrospective effect. The only rider is that the date of
retrospective operation should have relevance and nexus with
the object sought to be achieved and the same shall not affect
the accrued rights.
C 12. The short question is whether the amended Rule on
fixation of seniority satisfied the test of reasonableness.
Integration of three services was necessitated for balancing the
inequality to the extent that the members of two of the services
were denied promotion to the post of Deputy Superintendent
D of Police. Such promotion was available only to the members
of the erstwhile Sikkim Police Force and was denied to Sikkim
Vigilance Police and Sikkim Armed Police. In this context, it
would be useful to refer to the terms of reference to Justice N.
G. Das Commission:
E
"(1) To comprehensively review the existing Recruitment
Rules of all the different wings of Sikkim Police so
as to arrive at an appropriate solution. which would
meet promotional aspirations of the entire Police
Force.
F
(2) To examine the necessity for integration of the
different Recruitment Rules particulary (a) Sikkim
Police Force (Recruitment, Promotion and
Seniority) Rules, 1988, (b) Sikkim Armed Force
G (Recruitment, Promotion and other Conditions of
Service) Rules, 1989 and (c) the Sikkim Vigilance
Police (Recruitment, Seniority and Promotion)
Rules, 1981, so as to bring about long term solution
H 2. (1980) Suppl. sec 524.
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1019
BHUTIA AND OTHERS [KURIAN, J.]
to meet the promotional aspirations of the entire A
Police Force. The Commission shall submit its
report on or before 31.12.99."
(Emphasis supplied)
13. Accepting the recommendation of the Commission for 8
a unified Police Force, the State Government integrated three
services and promulgated the Sikkim Police Force
(Recruitment, Promotion and Seniority) Rules, 2000. It is to be
specifically noted that the members of Sikkim Vigilance Police
and Sikkim Armed Police had obtained accelerated promotion C
to various posts up to the position of inspector of police.
However, their compeers in the erstwhile Sikkim Police Force
could not get such promotions to the higher post of inspector
for want of vacancy. It is crucially significant to note that there
was entry level direct recruitment· in one of the services, viz., D
Sikkim Vigilance Police to the extent of 50%.
14. No doubt one of the main principles of integration is
equation of posts. But the question is whether such integration
based only on equation of posts will result in inequality or E
injustice to the members of any other service.
15. As we have already noted above, promotion to the post
of Deputy Superintendent of Police was available only to
members of the Sikkim Police Force. In the other two services,
viz., Sikkim Vigilance Police and Sikkim Armed Police, though F
the members therein got accelerated promotion to the post of
inspector, there was no further promotion available to them and
they had to retire from service in that cadre. It was this inequality
that was sought to be remedied by integration.
G
16. The feeder category for promotion to the post of
Deputy Superintendent of Police is inspector. lfthe seniority is
fixed in that cadre of inspector, it would virtually amount to denial
of promotion to the post of Deputy Superintendent of Police for
quite some time to the members of the Sikkim Police Force. It H
1020 SUPREME COURT REPORTS [2014] 2 S.C.R.
A was this discrimination and resultant injustice that was sought
to be remedied by referring the matter to the Committee which
recommended that for the purpose of promotion to the post of
Deputy Superintendent of Police and preparation of seniority
list in that regard, the date of promotion to the post of sub-
B inspector should form the basis. That date was taken, as we
have already noted above, since there was direct recruitment
to the post of sub-inspector in Sikkim Armed Police. What has
been done by the Government is to base the date of promotion/
direct recruitment to the post of sub-inspector as the
c determining factor for fixation of seniority for the purpose of
promotion to the post of Deputy Superintendent of Police and
grant deemed/notional promotion to the members of the Sikkim
Police Force from the date their compeers in the other two
services got promotion to the post of inspector. Appointment
D to the post of inspector is by promotion. Therefore, the entry
level appointment to the cadre of sub-inspector becomes
relevant. The sub-inspector of Sikkim Vigilance and Sikkim
Armed Forces, by chance, got accelerated promotion to the
post of inspecto~. It was this injustice that was sought to be
E remedied by the retrospective promotion without monitory
benefits and the amendment in the Rules. Merely because there
is equation of post in a cadre on integration that does not
necessarily mean that the common seniority list should be
prepared in that cadre for promotion to the next higher cadre.
If that method would result in injustice and graver inequality,
F . another fair and just mode can be adopted.
17. True, many officers who were working as sub-
inspectors, while the writ petitioner had been working as
inspector, have gone above him in the process but the hard fact
G which caused the heartburn to his compeers in the Sikkim
Police Force is that at the level of sub-inspectors, all of them
were either travelling together with the writ petitioner or had
gone much earlier to him in that cadre.
H
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1021
BHUTIA AND OTHERS [KURIAN, J.]
18. One cannot also lose sight of the fact that, after A
integration, the promotion chances of members of Sikkim
Police have been reduced considerably, since originally it was
their exclusive domain.
19. The Apex Court in Tamil Nadu Education Department
Ministerial and General Subordinate Services Association
8
and Others v. State of Tamil Nadu and Others3 held that
integration is a complicated administrative process and it is
likely to affect certain individuals. To quote:
"7. In service jurisprudence integration is a complicated C
administrative problem where. in doing broad justice to
many. some bruise to a few cannot be ruled out. Some
play in the ·joints. even some wobbling. must be left to
government without fussy forensic monitoring. since the
administration has been entrusted by the Constitution to o
the executive. not to the court. All life, including
administrative life, involves experiment, trial and error, but
within the leading strings of fundamental rights, and, absent
unconstitutional "excesses", judicial correction is not right.
Under Article 32, this Court is the constitutional sentinel, E
not the national ombudsman. We need an ombudsman but
the court cannot make-do.
8 .... Maybe, a better formula could be evolved, but the
court cannot substitute its wisdom for Government's, save
to see that unreasonable perversity, mala fide F
manipulation, indefensible arbitrariness and like infirmities
do not defile the equation for integration. We decline to
demolish the order on this ground. Curial therapeutics can
heal only the pathology of unconstitutionality, not every
injury." G
(Emphasis supplied)
The same view has been followed in Indian Airlines
3. (1980) 3 sec 97. H
1022 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Officers' Association v. Indian Airlines Limited and others4,
Kera/a Magistrates' (Judicial) Association and others v. State
of kerala and others 5, Life Indian Corporation of India and
Others v. S. S. Srivastava and Others6 and New Bank of India
Employees' Union and Another v. Union of India and Others7•
B 20. It has also been held by this Court in K.S. Vora and
others v. State of Gujarat and others8 that integration affecting
the larger public interest would necessarily affect the seniority
of some members of some of the services. To quote:
c "5. As we have already pointed out in the instant
case the State decided at stages to switch over to the
common cadre in respect of all the four grades of the
Subordinate Service. Before common grades had· been
formed promotion was granted departmentwise. When
D ultimately a common cadre came into existence - and all
that was done by 1974 - it was realised that if seniority as
given in the respective departments were taken as final for
all purposes there would be prejudice. Undoubtedly the
common cadre was for the purpose of increasing the
E efficiency by introducing a spirit of total competition by
enlarging the field of choice for filling up the promotional
posts and in the interest of discipline too. After a common
cadre was formed. the general feeling of dissatisfaction
on account of disparity of seniority became apparent. The
1977 Rules were introduced in this· background to ease
F
the situation. The scheme of this rule protected the rank
then held by everv member of the service notwithstanding
alteration of seniority on the new basis. This. therefore.
made it clear that accrued benefits were not to be
interfered with. To that extent the 1977 Rules were not
G
4. c2007) 10 sec 684.
5. c2001) 3 sec 521.
6. 1988 Supp sec 1.
7. (1196) 8 sec 407.
H 8. (1988) 1 sec 311.
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1023
BHUTIA AND OTHERS [KURIAN, J.]
retroactive. In spite of the protection of rule regarding the A
post then held, the Rules brought about a change in the
inter se seniority by adopting the date of initial recruitment
and the length of service became the basis for refixing
senioritv. Total length of service for such purpose is a well
known concept and could not said to be arbitrary. B
Undoubtedly one of the consequences of the change in the
basis was likely to affect prospects of promotion - a matter
in future. Two aspects have to be borne in mind while
considering the challenge of the appellants to this situation.
It was a historical necessity and the peculiar situation that c
arose out of government's decision to create a common
cadre with four grades in the entire Secretariat. We would
like to point out with appropriate emphasis that there was
no challenge to creation of the common cadre and certainly
government was competent to do so. The second aspect 0
to be borne in mind is that rules of seniority are a matter
for the employer to frame and even though prospects of
promotion in future were likely to be prejudiced by
introduction of a new set of rules to regulate seniority. if
the rules were made bona fide and to meet exigencies of E
the service. no entertainable grievance could be made. If
these are the tests to apply, we do not think the appellants
have indeed any grievance to make. In our view, therefore,
the High Court rightly dismissed the contention and found
that appellants were not entitled to relief."
F
(Emphasis supplied)
21. In Kera/a Magistrates' (Judicial) Association case
(supra), this Court held:
"5. We have examined the relevant records containing the G
deliberations made in the full court meetings of the High
Court on the topic of integration of the two wings. It appears
that on the criminal side the entry post was Magistrate
Second Class and the highest post, a Magistrate Second
Class could reach was Chief Judicial Magistrate. On the H
1024 SUPREME COURT REPORTS [2014] 2 S.C.R.
A civil side the entry post was Munsif and the highest post
was the District Judge. The association of the Criminal
Magistrates had all along been clamouring that the post
of District and Sessions Judge should also be separated
and the Chief Judicial Magistrates on the criminal side
B should also be promoted to the post of District and
Sessions Judge .......... the number of posts of Judicial
Magistrates Second Class, which existed on the date of
the full court meeting. The Court took notice of the fact that
on the date of integration, 42 Magistrates Second Class
c will be absorbed in the category of Munsif Magistrates and
all of them will be duly benefited in their scale of pay. The
Court also considered that in view of the number of posts
available, while Munsifs could expect promotion to 49
posts of Subordinate Judge but the Judicial Magistrates
could expect promotion only to 18 posts of Chief Judicial
D
Magistrates, as it existed. But by reason of integration, the
chances of promotion of the Magistrates will be much
more enhanced, compared to the chances of promotion
to the Munsifs. The Court also considered the normal rate
of promotion and found that for Munsifs, the rate being
E 1.25, for a Magistrate rate was only 0.30 and on account .
of integration, the ratio would come to 0.84, which
indicates that overall chances of promotion to the Munsifs
would get reduced from 1.25 to 0.84, whereas the chances
of promotion of the Magistrates get increased from 0.30
F to 0.84. The High Court. therefore. suggested that the ratio
of 3:1 should be fixed both in the integrated cadre of the
Subordinate Judges and Chief Judicial Magistrates for
promotion to the post of District Judge as well as in the
cadre of Munsifs and Magistrates First Class for the
G promotion to the post of Subordinate Judges. The High
Court also was of the opinion that the effect of integration
will be that while Munsifs would lose chances of promotion
the Magistrates will improve their chances of promotion.
although some Senior Magistrates. individually, will sustain
H some loss. But such loss is the usual cor1sequence of any
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1025
BHUTIA AND OTHERS [KURIAN, J.]
integration process. Notwithstanding the aforesaid A
recommendations of the High Court, the State Government
on receipt of representation from the Magistrates'
Association, made further correspondence with the High
Court and suggested that the ratio for promotion from the
Munsifs and Magistrates to the Subordinate Judges should B
be fixed at 5:2. The High Court initially had some
reservations, but ultimately accepted the same and
communicated its acceptance to the Government,
whereafter the Rules were promulgated and Rule 3(4) of
the Rules embodies the aforesaid principle .......... We c
see no legal infirmity with the conclusions arrived at by the
High Court. requiring interference by this Court. even
though we agree that some individual Magistrates might
have suffered some loss .... "
(Emphasis supplied) D
22. All that apart, integration is a policy matter for the State.
This Court had occasion to consider this aspect of the matter
in ReseNe Bank of India v. N.C. Paliwa/ and others9. To quote:
E
"15. Now, the first question which arises for consideration
is whether Reserve Bank violated the constitutional
principle of equality in bringing about integration of non-
clerical with clerical services. We fail to see how
integration of different cadres into one cadre can be said
F
to involve any violation of the equality clause. It is now well
settled, as a result of the decision of this Court in Kishori
Mohan/a/ Bakshi v. Union of lndia 2 that Article 16 and a
fortiori also Article 14 do not forbid the creation of different
cadres for government service. And if that be so, equally
these two articles cannot stand in the way of the State G
integrating different cadres into one cadre. It is entirely a
matter for the State to decide whether to have several
different cadres or one integrated cadre in its services.
9. (1976) 4 sec 838. H
1026 SUPREME COURT REPORTS [2014] 2 S.C.R.
A That is a matter of policy which does not attract the
applicability of the equality clause. The integration of non-
clerical with clerical services sought to be effectuated by
the combined seniority scheme cannot in the
circumstances be assailed as violative of the constitutional
B principle of equality."
(Emphasis supplied)
23. In R.S. Makashi and others v. I. M. Menon and
others 10, this Court held that :
c
"34. When personnel drawn from different sources
are being absorbed and integrated in a new department.
it is primarily for the Government or the executive authority
concerned to decide as a matter of policy how the
D equation of posts should be effected. The courts will not
interfere with such a decision unless it is shown to be
arbitrary. unreasonable or unfair. and if no manifest
unfairness or unreasonableness is made out. the court will
not sit in appeal and examine the propriety or wisdom of
the principle of equation of posts adopted by the
E
Government. In the instant case, we have already indicated
our opinion that in equating the post of Supply Inspector
in the CFD with that of Clerk with two years' regular service
in other government departments, no arbitrary or
unreasonable treatment was involved."
F
(Emphasis supplied)
24. In Prafulla Kumar Das and others v. State of Orissa
and others 11 , it was held that :
G "33. Under Article 309 of the Constitution of India, it is open
to the Governor of the Sate to make rules regulating the
recruitment, and the conditions of service of persons
appointed to such services and posts until provision in that
10. (1982) 1 sec 379.
H 11. (2003) 11 sec 614.
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING 1027
BHUTIA AND OTHERS [KURIAN, J.]
behalf is made by or under an Act of the legislature. As A
has been rightly pointed out by the Court in Nitvananda
Kar cas&. the legislature. or the Governor of the State. as
the case may be. may, in its discretion. bestow or divest
a right of seniority. This is essentially a matter of policy,
and the question of a vested right would not arise. as the B
State may alter or deny any such ostensible right. even by
way of retrospective effect. if it so chooses (sic) in public
interest.".
(Emphasis supplied)
c
25. In S. S. Bola and others v. B.D. Sardana and others12
also, this Court held that seniority of a government servant is
not a vested right and that an Act of State Legislature or a Rule
under Article 309 of the Constitution of India can retrospectively
affect the seniority of a government servant. To quote: 0
"153. xxx xxxxxx xxx
AB. A distinction between right to be considered for
promotion and an interest to be considered for promotion
has always been maintained. Seniority is a facet of E
interest. The rules prescribe the method of recruitment/
selection. Seniority is governed by the rules existing as on
the date of consideration for promotion. Seniority is
required to be worked out according to the existing rules.
No one has a vested right to promotion or seniority. But F
an officer has an interest to seniority acquired by working
out the rules. The seniority should be taken away only by
operation of valid law. Right to be considered for
promotion is a rule prescribed by conditions of service. A
rule which affects chances of promotion of a person relates G
to conditions of service. The rule/provision in an Act merely
affecting the ·chances of promotion would not be regarded
as varying the conditions of service. The chances of
promotion are not conditions of service. A rule which
12. (1997) a sec 522. H
1028 SUPREME COURT REPORTS [2014] 2 S.C.R.
A merely affects the chances of promotion does not amount
to change in the conditions of service. However, once a
declaration of law, on the basis of existing rules, is made
by a constitutional court and a mandamus is issued or
direction given for its enforcement by preparing the
B seniority list, operation of the declaration of law and the
mandamus and directions issued by the Court is the result
of the declaration of law but not the operation of the rules
per se.
xxx xxx xxx xxx xxx
c
200. Thus to have a particular position in the seniority list
within a cadre can neither be said to be accrued or vested
right of a government servant and losing some places in
the seniority list within the cadre does not amount to
D reduction in rank even though the future chances of
promotion get delayed thereby."
26. The High Court patently erred in holding that the .
acquired or accrued rights of the writ petitioner had been
E affected by the fixation of seniority at the level of sub-inspector
of Police. It has to be noted that, but for merger, neither the writ
petitioner nor the members of the two other police forces, viz.,
Sikkim Vigilance Police and Sikkim Armed Force, could have
got any promotion at all to the post of Deputy Superintendent
of Police. The very purpose of integration was to remove the
F inequality and provide them with the opportunity for promotion
to the post cif Deputy Superintendent of Police. If length of
continuous service in the highest cadre of some similar services
is taken as the basis of fixing the seniority and for further
promotion to higher posts that would certainly result in deeper
G injustice to the members of the other services. It was hence the
State, after due deliberations and based also on report of an
expert Committee consisting of the top level offices in the State,
took an equitable decision to make the post of sub-inspector
of Police, where there is direct level entry in one of the services,
H as the determining factor for fixation of seniority. The writ
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1029
BHUTIAAND OTHERS [KURIAN, J.]
petitioner did not suffer any demotion in the process. He A
continued in the post of inspector. The only thing is that his
compeers in Sikkim Police Force who could not get
accelerated promotion to the post of inspector, but who are
admittedly senior to him if the date of appointment to the post
of sub-inspector is taken, were given the deemed date of B
promotion to the post of inspector based on the seniority at the
level of sub-inspector. The amended rule certainly has thus a
nexus to the injustice sought to be removed so as to balance
the equity. It is neither irrational nor arbitrary.
27. It is significant also to note that in the whole State of C
Sikkim, the writ petitioner is the only person who challenged
the amendment which by itself would show that it was a case
of a solitary instance, assuming there is basis for his grievance.
We may, however, take note of a factual position that the writ
petitioner was senior to some of the private respondents if his D
date of entry in service as Sikkim Police Constable is taken.
But when the Sikkim Vigilance Police was formed, he opted
for that and he was absorbed in that Police wherein he got
accelerated promotions to the various posts of head constable,
assistant sub-inspector, sub-inspector and inspector. But it E
appears that such a ground with regard to his original date of
entry as a police constable in 1974 is not taken anywhere.
28. All that apart, if we closely analyse Rule 9(1 ), it can be
seen that the principle of fixation of seniority as introduced by
F
the amendment was already there. It is already provided therein
that the relative seniority of the members recruited directly will
be fixed based on the date of induction to the cadre. In other.
words, date of induction to a cadre where there is direct
recruitment is the basis of fixation of seniority in the instant case G
at the level of sub-inspector. Thus, the amendment is merely
clarificatory in nature and, therefore, it is deemed to exist from
the original date of commencement of the Rule in 2000.
29. Be that as it may, the High Court has already protected
the promotions granted to the private respondents but the High H
1030 SUPREME COURT REPORTS [2014) 2 S.C.R.
A Court has struck down the Rule and has quashed the seniority
list. As we have already noted above, the High Court has
unfortunately missed the crucial consideration with regard to the
principles set by the State with regard to fixation of seniority,
the purpose sought to be achieved in the process, the relevant
B considerations which lead to the decision and the materials
including the report of the expert committee which were relied
on by the State in the process of making and taking of the
decision. The State has only acted within its authority under
Article 309 of the Constitution of India in bringing about the
C clarificatory amendment with regard to the fixation of seniority
in the cadre of sub-inspectors. The retrospectivity given to the
private respondents by giving the deemed date of promotion
is neither arbitrary nor unreasonable. On the contrary, it is
perfectly just, fair and equitable in the given circumstances
without which the integration of services would have resulted
0
in graver inequality and injustice to the members of the major
service. In the result, the appeal is allowed. The impugned
judgment is set aside. Writ Petition filed by the private
·respondent in High Court is dismissed.
E 30. We have already noted above that the first respondent-
writ petitioner was also promoted as Deputy Superintendent of
Police and he has retired from service. Rule 17 of the 2000
Rules has provided for power of relaxation to the State. Since
the first respondent-writ petitioner had actually entered in
F service in 1974, prior to some of the private respondents, this
could have been probably a case for the State Government to
exercise that power. We do not propose to relegate the first
respondent-writ petitioner at this stage for that remedy. For
doing complete justice, being a solitary case, we hold that the
G benefits granted by the High Court in the impugned Judgment
to the writ petitioner, shall not be disturbed.
31. The appeal is allowed as above. There is no order as
to costs.
H D.G. Appeal allowed.
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