UNION OF INDIA AND ANR.versusSHRI HARISH CHANDER BHATIA AND ORS.

A                         UNION OF INDIA AND ANR.
                                         v.
                 SHRI HARISH CHANDER BHATIA AND ORS.

                               DECEMBER 8, 1994

B                 [KULDIP SINGH AND B.L. HANSARIA, JJ.]

         Service Law: Delhi and Andaman and Nicobar Islands 'DANI' Police
    Service Rules, 1971: Sections 4, 14, 15, 16, 24, 25 and 29 Inter-se seniority
    of promotees and direct recruits-Reckoning of-Promotees regularly
    appointed and officiating for number of years- Held: Dates of officiating
c   appointments of promotees to be treated as dates of their regular
    appointments and their seniority determined by interposing a direct recruit
    in between two promotees as per their respective Inter-se seniorities.

        Union ofIndia, being a model employer has to eschew a stand which is
    unjustified and arbitarary.
D
        The dispute in this appeal relates to the inter-se seniority between
    promotees and direct recruits belonging to Delhi and Andaman and
    Nicobar Islands (DANI) Police Service. Appointments to the said
    service are normally made 1:1 qua promotees and direct rc::cruits,
    which could be varied in the exigency of public service. The
E   respondents were appointed to the promotional post of Assistant
    Commissioner of Police after they had gone through the procedure of
    selection.

        The respondents (promotees) won their case for seniority before
F
    the Central Administrative Tribunal, against which the Union of India
    preferred the present appeal.

         On behalf of the appellants, it was contended that despite the
                                                                                    .
    appointments being under sub-rule (1) of Rule 25, the respondents
    cannot be taken to have been appointed to the service and could not be
G   treated as permanent appointees; and that seniority could not be
    determined on the basis of continuous officiation as it cannot be said
    that the quota-rule has broken down.

        The respondents contended that seniority was required to be
    determined on the basis of length of service, despite there being quota
H   in appointment, which had broken down.
                                      394
                       U.0.1. JAIN v. H. C. BHATIA                 395

    Disposing of the matter, this Court                                  A
     HELD: 1. An examination of rule 24 of the Delhi and Andaman
and Nicobar Islands Police Service Rules, 1971 shows that the list
pepared as required by that rule, has also to satisfy the requirements of
provisions of sub-rules(3) and (4) of rules 14 and rule 15. This shows
that the incumbents whose names find place in the list prepared as B
contemplated by rule 24 are also those who have been duly selected and
consultation with the Commission has also been made and the list
prepared has been forwarded to the Central Government as well for its
doing the needful. There is thus no difference in substance between the
list prepared, as contemplated by rule 14 read with rule 15, and the one
visualised by rule 24. So, there appears to be no justifiable reason to C
regard rule 24 selectees as in any way inferior to rule 14 selectees. They
stand almost at par. It is because of this that clauses (a) and (b) of sub-
rule (1) of rule 25 have virtually made no distinction between these two
categories of incumbents. [401 E to G]
                                                                         D
     2. The facts of the present case would show that though the
appointments were stated to be offidating, these continued for a very
long period, which in the case ·of respondent No. 1 was of about 12
years as he came to be appointed under rule 25 on 6.11.72 and was
fixed permanently in the slot meant for promotees on 28.7.84. An
officiating appointment for over a decade cannot be treated as fleeting E
appointment with no service benefits to be given. Any other view would
very seriously prejudice such a service holder who, even after having
rendered service equal to those of permanent appointees for a long
period, and that too for proper functioning of the Service, would be
denied the benefit of the same for no cogent reasons. Such a view is
bound to have a demoralising effect in the Service as a whole. As the F
appointments under rule 25 are also to duty posts, which may form
part of the strength of Service because what has been stated in rule
4(3), justice of the case and the need to preserve the efficient
functioning of the Service would require to treat the appointments of
the respondents as permanent, despite their having been first appointed G
on officiating basis. [401H,402 A to C]

    3. A few scattered apointments against the quota rule cannot be
taken to be break down of the principle of quota. Such appointments
are at times made in exigency of service because of non-availability
either of direct recruits or suitable incumbents for promotion. [403 B] H
     396                   SUPREME COURT REPORTS               (1994] SUPP. 6 S.C.R

A          O.P. Sing/av. Union ofIndia, [1985) 1 SCR 351, Distinguished.

         4. The just and proper order to be passed would be to direct the
     apellants to treat the dates of officiating apointments of the
     respo~1dents as the dates of their regular appointments and then to
     place tkiem in the seniority list as required by rule 29. i.e. to interpose a
B    direct re1:ruit in between two promotees as per their respective inter-se
     seniorities; and it is directed accordingly. [403 DJ

         It was observed that denial of such long period of service for the
     purpose of seniority would be an unjustified and arbitrary act, which a
     model employer like the Union of India has to eschew. [403 G]
c        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2481 of
     1993.

        From the Judgment and Order dated 31.3 .92 of the Central
     Administrative Tribunal, in New Delhi in O.A. No. 300of1989.
D       N.N. Goswamy, Hemant Sharma P.Parmeswaran, and Ms. A.
     Subhashini for the Appellants.

          G.D. Gupta, A.K. Mahajan, Vikas Singh, Yunus Malik and L.R. Singh
     for the Respondents.

E          The Judgment of the Court was delivered by

            HANSARIA, J. The perennial dispute of service law-inter se seniority
     . between promotees and direct recruits- has surfaced again in this appeal.
       This time the parties in dispute are officers belonging to DANI (Delhi and
       Andaman and Nicobar Islands) Police Service (the Service). To resolve the
F      lis we shall have to first determine as to when the respondents can be said
       to have become members of the Service and then we have to fmd out as to
    . how they are to be placed in the seniority list to be prepared as required by
       Rule 29 of the DANI Police Service Rules, 1971 (for short 'the Rules')

          2. While making appointments to the service, proportion as specified in
G
     rule 5 has to be borne in mind-which, under normal circumstances is l: l
     qua poromotees and direct recruits, which, however, for reasons to be
     recorded, may be varied in the exigency of poblic service. The respondents
     herein, who are 4 in number were appointed after they had gone through
     the procedure of selection mentioned in rule 24. They admittedly did not
H    come to be appointed as per rule 16. They came to occupy the promotional
                 U.0.1. JAIN v. H. C. BHATIA [HANSARIA, J.]              397

post of Assistant Commissioner of Police, by virtue of what has been A
provided in rule 25. We would be called upon to determine whether the
respondents were appointed under sub-rule (1) or sub-rule (3) of this rule.
After having done so, we would be required to see as to how their seniority
vis-a-vis the direct recruits has to be dertemined.

    3. Rules 4, 14, rs, 16, 24, 25 and 29 of the Rules are relevant to          B
determine the controversy at hand and they read as below : -

         "Rule 4. Strength of the Service:

   ( 1) The authorised permanent strength of the Service and the posts
        included therein shall be as specified in the Schedule.
                                                                                c
   (2)   The number of selection grade posts in the Service shall be 13 per
         cent of the authorised permanent strength of the Service.

   (3)   The Central Government or the Administrator, subject to such
         conditions and limitations as may be specified by the Central          D
         Government, may; by order, create duty posts for such period as
         may be specifed therein.

    Rule 14. Conditions ofEligibility and Proceedure for Selection :

   ( l) The Committee shall consider from time to time the cases of
        officers eligible under clause (b) of sub rule (I) of rule 5, who       E
        have_ served in the respective cadre or posts, as the case may be,
        for not less than two years and prepare a list of officers
        recommended for appointment after talcing into account the actual
        vacancies at the time of selection and those likely to occur during a
        year. The selection for inclusion in the list shall be based on merit
        and suitability in all respects for appointment to the service with     F
        due regard to seniority.

   (2)   The seniority of the officers eligible for consideration by the
         Committee under sub-rule (I) shall be determined by the Central
         Government with due regard to the dates of their appointments on
         a regular basis to the respective cadre or posts, the pay scales of G
         the posts etc;

              Provides that the persons belonging to the same parent
              service or Department shall be ranked inter se in order of
              their releative seniority in the parent Service or Department,
              as the case may be;                                               H
    398                     SUPREME COURT REPORTS              [1994] SUPP. 6 S.C.R

A         (3)   The names of persons included in the list shall be arranged in order
                of merit.

          (4)   The list so prepared shall be forwarded by the Committee to the
                Central Government.

B         Rule 15. Consultation with the Commission:

          (1)   The list prepared under rule 14 together with the relevant records
                shall be forwarded by the Central Government to the Commission,
                where consultation with the Commission is necessary or where the
                Chairman of the Comittee desires that a reference be made to the
c               Commission alongwith the relevant records.

          (2) If the Commission considers it necessary to make any change in
              the list received from the Central Government the Commission
              shall inform the Central Government of the changes proposed by
              it.
D         *(3) The list shall finally be approved by the Central Govt. after taking
               into account the changes, if any, proposed by the Commission, and
               where changes any changes suggested by the Commission is not
               accepted, the reasons for such non-acceptance shall be recorded in
               writing.
E
          (4) The list thus finally approved shall be in force until a fresh list is
              prepared for the purpose in accordance with these rules. All
              persons except those under the Himachal Pradesh Administration
              who immediately before the commencement of these rules were
              borne on the list aproved by the Central Govt. under sub-rule (4)
F             of rule 15 of the Delhi, Himachal Pradesh and Andaman and
              Nicobar Islands Police Service Rules, 1965, shall be deemed to
              have been included in the same order in a list approved under sub-
              rule (4) of this rule.

          *     Substituted w.e.f. 12.74 vide MHA Notification No. Ul4012/10/73
G               UTS, dated2.12.74.

           Rule 16. Appointment to the Service:

                     Appointment to the Service shall be made in order of merit in
                     the list referred to in sub-rule (4) of rule 15 with due regard
H                    to the proportion sepcified in rule 5.
                U.0.1. JAIN v. H. C. BHATIA [HANSARIA, J.]              399

 Rule 24. Sec/ectionfor Officiating Appointment:                              A
             If at any time the Central Govt. is of the opinion that the
             number of officers available in the list referred to in sub-rule
             (4) of rule 15 for appointments to duty posts is not adequate
             having regard to the vacancies in such posts, it may direct the
             Committee to consider the case of officers who have B
             officiated for a period of not less than three years in any of
             the cadres mentioned in clause (b) of sub-rule ( l) of rule 5
             and prepare a separate list of officers selected. The selection
             for inclusion in the list shall be based on merit and suitability
             in all respects for officating appointments to duty posts with
             due regard to seniority. The provisions of sub-rules (3) and C
             (4) of rule 14 and rule 15 shall apply mutatis mutandis in the
             preparation of the selection list under this rule.

Rule. 25. Officiating appointment to duty posts ofthe service:

(I)     If a member of the service is not available for boding a duty post,   D
        the post may be filled on an officiating basis:-

  (a)     by the appointment of an officer included in the list referred to
          in sub-rule (4) of rule 15, or

  (b)     if no such officer is available, by the appointment of an officer
          included in the list prepared under rule 24.                        E
(2) Notwithstanding anything contained in these rules ifthe exigencies
    of public service so require, a duty post for which a member of the
    Service is not available may be filled on an officiating basis by the
    appointment with prior consultation with the Commission of an
    officer belonging to a State Police Service on deputation for such F
    period or periods ordinarily not exceeding three years as the
    Central Government may consider necessary.

(3)     Notwithstanding anything contained in these rules, where
        appointment to a duty post is to be made purely as a local
        arrangement for a period of not exceeding six months, such G
        appointment may be made by the administrator from persons who
        are included in the list prepared under sub-rule (4) of rule 15, or
        rule 24 or who are eligible for inclusion in such a list.

(4)     Any appointment made under sub rule (3) shall be reported by the
        Administrator to the Central Govt. forthwith.                    H
                                                                                                  t

        400                      SUPREME COURT REPORTS                [1994) SUPP. 6 S.C.R

    A          Rule 29. Seniority:
,                         The Central Govt. shall prepare a list of members of the
                          Service arranged in order of seniority as detertmined in the
                          manner specified below : -

    B         (1)   Member of the service appointed at the· initial constitution under
                    rule 17 shall be ranked inter se in the order of their relative
                    seniority in the Delhi, Himachal Pradesh and Andaman and
                    Nicobar Islands Police Service :

                    Provided that if the seniority of any such officer had not been
    c               specifically determined before the commencement of t.'tese rules, it
                    shall be as determined by the Central Govt.

            (2)     Seniority of person appointed to the Service under clauses (a) and
                    (b) of sub-rule (1) of rule 5 after the initial constitution under rule
                    17, shall be determined as follows:-
    D       (a)     Persons recruited on the results of the competitive examination in
                    any year shall be ranked inter se in the order of the merit in which      t
                    they are placed at the competitive examination on the results of
                    which they are recruited, those recruited on the basis of an earlier
                    examination being ranked senior to those recruited on the basis of
    E               later examination.

           (b)      The seniority inter se of persons recruited by selection shall be         ,..
                    determined on the basis of the order in which their names are             {
                    arranged in the list prepared under rule 14, those recruited on the
                    basis of an earlier selection being ranked senior to those recruited
    F               on the basis of a later selection.

           (c)      The relative seniority of direct recruits and of promotees shall be
                    determined according to the rotation of vacancies between direct
                    recruits and promotees which shall be based on the quotas of
                    vacancies reserved for direct recruitment and promotion under rule
    G               5."

             4. From the above, it is clear that for a person to be appointed under
        sub-rule (1) of rule 25, he has to be an officer whose name is included in
        the list referred to in sub-rule (4) of rule 15 or one prepared under rule 24.
        In so far as sub-rule (3) is concerned, this requirement is not to be satisfied,
    H   and further, appointment under that sub-rule cannot exceed six months and
                U.0.1. JAIN v. H. C. BHATIA [HANSARIA, J.]              401

is made as a local arrangement. The respondents are those whose names A
found place in the list prepared under rule 24 and their appointments not
having been made purely as a local arrangement for a period not e~ceeding
six months, we have no difficulty in upholding the view of the Central
Administrative Tribunal, Principal Bench, whose judgment has been
impugned in this appeal, that respondents were appointed under sub-rule
(I).                                                                      B

     5. There is no serious dispute to this position even by learned Addi.
Solicitor General, Shri Tulsi, who has appeared for the appellants. His first
real contention is that despite the appointments being under sub-rule (I),
the respondents cannot be taken to have been appointed to the Service and
as such the direction of the Tribunal to treat them as permanent appointees C
instead of as officiating hands, is not in consonance with what has been
provided in the Rules. Shri Tulsi submits that appointment to the Service
can be made only as visualised by rule 16 and this can be of those whose
names find place in the list referred in sub-rule (4) of Rule 15. The
respondents being not .such incumbents, they cannot be treated as D
permanent appointees to the Service.

     6. This submission would not be correct if heart of the matter is looked
into. To put it differently, the submission is not correct in substance, but is
so only in form. We have taken this view because an examination of rule 24
shows that the list prepared as required by that rule, has also to satisfy the E
requirements ofporvisions of sub-rules (3) and (4) of rules 14 and rule 15.
This shows that the incumbents whose names find place in the list prepared
as contemplated by rule 24 are also those who have been duly selected and
consultation with the Commission has also been made and the list prepared
has been forwarded to the Central Government as well for its doing the
needful. There is thus no difference in substance between the list prepared, F
as contemplated by rule 14 read with rule 15, and the one visualised by rule
24. So, there appears to be no justifiable reason to regard rule 24 selectees
as in any way inferior to rule l 4 selectees. According to us, they stand
almost at par. It is because of this that clauses (a) and (b) of sub-rule (I) of
rule 25 have virtually made no distinction between these two categories of G
 incumbents.

     7. Shri Tulsi, however, contends that rule 25 visualises officiating
appointment and not permanent; and that appointment is required to be
made when a member of the Service is not available. Though this is so, but
the facts of the present case would show that though the appointments were H
     402                  SUPREME COURT REPORTS              [1994] SUPP. 6 S.C.R

A    stated to be officiating these continued for a very long period, which in the
     case of respondent No. 1 was of about 12 years as he came to be appointed
     under rule 25 on 6.11.72 and was fixed pennanently in the slot meant for
     promotees on 28.7.84. An officiating appointment for over a decade cannot
     be treated as fleeting appointment with no service benefits to be given. Any
     other view would very seriously prejudice such a service holder who, even '
B    after having rendered service equal to those of pennanent appointees for a
     long period, and that too for proper functioning of the Service, would be
     denied the benefit of the same for no cogent reasons. Any other view is
     bound to have a demoralising effect in the Service as a whole. As the
     appointments under rule 25 ar.e also to duty posts, which may fonn part of
c    the strength of Service because what has been stated in rule 4 (3), we are of
     the view that justice of the case and the need to preserve the efficient
     functioning of the Service would require to treat the appointments of the
     respondents as pennanent, despite their having been first appointement on
     officiating basis.

D        8. The real hub lies in the placement of the respondents in the seniority
   list. Shri Tulsi has urged that we may not do anything, because of the long
   period for which respondent have served, which would be against the
   prin~iple of seniority embodied in rule 29. As per clause (c) of sub-rule (2)
   of this rule inter se seniority has to be detennined according to the "rotation
   of vacancies between direct recruits and promotees", which shall be based
E
   on the quotas of vacancies reserved for direct recruitment and promotion
   under Rule 5, which, as already noted, is in the ratio of 1: 1. The learned
   counsel, on the strength of recent decision of this Coll;rt jn Syed Khalid
   Rizvi v. Union of India, [1993] Supp 3 .SCC 575, contends that present is
   not a case where seniority can be detennined on the basis of c<mtinuous
F officiation. Shri Tulsi earnestly prays that we may not depart for the
   requirement of rule 29 as sanctity of law is greater than interest of some
   individuals. It is also submitted that the present is not a case as to which it
   can be said that quota rule has broken down, in which case alone, seniority
   which is required to be detennined on the basis of quota can be fixed on the
   basis of length of service. We are reminded that the qouta rule has become
G .an inseparable part of ciur service jurisprudence, as it allows a hannonious
   combination of fresh blood, and old experience and we may ·not do
   anything to cause dent to this useful principle.

         9. The strenuous contention of Shri Gupta, appearing for the
H    respondents, is that the present is a case on all fours with 0 P. Sing/a v.
                 U.O.I. JAIN v. H. C. BHATIA [HANSARIA, J.]                403

Union of India, [1985] I SCR 351, in which case this Court in a similar          A
situation took the view that seniority was required to be detennined on the
basis of length of service, despite there being quota in appointment to the
Service in that case also, which was taken to have broken down.

     10. In our view, a few scattered appointments against the quota rule as
have been given here, cannot be taken to be break down of the principle of · B
quota. Such appointments are at times made in exigency of service because
of non-availablity either of direct recruits or suitable: incumbents for
promotion. In Singla's case, break down was read because of the language
of the concerned service rule and the way appointments had come to be
made. The fact situation and provision in the Rules are different here.
Sing/a 's case cannot, therefore, come to the aid of the respondents.        C
     11. According to us, the just and proper order to be passed would be to
direct the appellants to treat the dates of officiating appointments of the
respondents as the dates of their regular appointments and then to place
them in the seniority list as required by rule 29 i.e. to interpose a direct
recruit in between two promotees as per their respective inter-se seniorities; D
and we direct accordingly. The seniority would, therefore, be refixed of all
concerned, not as per length of service along as ordered by the Trubunal but
as indicated by us.

     12. Before closing it is required to be stated that we have not
appreciated the stand taken by the appellants. This is for the reason that       E
employers like the appellants, who are required to be model employers,
should not take a stand which is unfair. They have to treat both the wings of
the Service fairly, as both are equally important in so far as they are
concerned. The need for making this observation has been felt because
what we find is that despite an incumbent like respondent No. I having
served for more than a decade following his appointment, the stand taken is      F
that he should be taken to have become a member of the Service from 1984
and not from 1972, being oblivous of the fact that for more than 12 years he
had discharged the functions of the higher post to the satisfaction of the all
concerned. Denial of such long period of service for the purpose of
seniority is an unjustified and arbitrary act which a model employer has to
~~~-                                                                             G
    13. The appeal is disposed of as per direction given earlier. In the facts
and circumstances of the case we make no order as to costs.

    Special Leave Petition (C) No. 22013 of 1994. (CC No. 21852 of
1993)                                                                            H
--- ----------------,--------------




         - 404               SUPREME COURT REPORTS            [1994) SUPP. 6 S.C.R
     '                                   ORDER
 A
              This petition stands disposed of in tenns of the judgment in CA No.
          2481/93 delivered today.

          G.N.                                                Matters disposed of.
                                                                         ~




            __,