Holding

The Select Committee correctly prepared a select list of ten persons based on five anticipated vacancies, and the appellant was not entitled to be placed in the 1977 list; no prejudice was caused.

Summary

V.C. Perumal, a directly recruited police officer, challenged the year his name was placed on the select list for promotion to the Indian Police Service, arguing it should have been in the 1977 list rather than the 1978 list. The Court examined Regulation 5 of the IPS (Appointment by Promotion) Regulations, 1955, which requires the select list to contain at most twice the number of anticipated vacancies for the coming twelve months, and noted that the Committee correctly considered five anticipated vacancies and prepared a list of ten names for 1977. The Court held that existing unfilled vacancies at the time of preparation were not required to be included under Regulation 5, and the 1989 amendment to Regulation 7 was not applicable. It further found that the appellant suffered no prejudice, as his senior batchmate, who was senior to him, was also promoted in 1979 despite being on the earlier list. Consequently, the appeal was dismissed and the Tribunal's order upheld.

Issues considered

Whether the appellant's name should have been included in the 1977 select list under Regulation 5 of the IPS (Appointment by Promotion) Regulations, 1955.
Whether existing unfilled vacancies must be taken into account when preparing the select list.
Whether the appellant suffered prejudice by being placed in the 1978 select list instead of the 1977 list.

Legislation cited

Indian Police Service (Appointment by Promotion) Regulations, 1955s. Regulation 5, s. Regulation 7

Subjects

promotionselect listIPS (Appointment by Promotion) Regulationsanticipated vacanciesseniorityprejudicecivil appellate jurisdictionpolice service

Judgment

. "'f-
A V.C. PERUMAL
v.
THE UNION OF INDIA AND ORS.

JANUARY 20, 1999

B [MRS. SUJATA V. MANOHAR AND R.C. LAHOTI, JJ.] --,.
' "
l.P.S. (Appointment by promotion) Regulations, 1955:

Regulations 5, 7 and 9-Scope and applicability of
c SeTVice law-lPS-Promotion-Preparation of list of suitable officers
under Regulation 5-Number of State Police seTVice officers to be included
in the list-Preparation of select list by State Govemment for the year 1977
011 23rd November, 1976-Select Committee required to consider vacancies

allficipated for the period November 1976 to November 1977-As per Regula- ,...._
D tion 5 the Committee considered the number of anticipated vacancies as five Jr

and prepared the select list consisting of twice that number i.e. 10 per-
sons-List approved by UPSC-Name of appellant not figuring in the select
list-In this list nobody junior to appellant was included-Appellant's conten-
tion that four carried over vacancies which remained unfilled out of 1976
E select list should also have been taken into account-Held not maintainable
in view of the provisions of Regulations 5 and 7-Held anticipated vacancies
were five, and preparation of a select list of ten was in accordance with
Regulation 5-Proviso added to regulation 7 in 1989 Held inap-
plicabl~Appellant's name included in the select list of 1978 while his
batchmate, who was throughout senior to him, was included in the list of
...
F 1977-Held no prejudice was caused to the appellant by reason of the fact
-t·

that his name is included for the first time only in the select list of 1978.

Union of India v. M.G. Dighe & Ors., [1991) 4 SCC 551; Devender
Narayan Singh & Ors. v. State of Bihar & Ors., [1996) 11 SCC 342, distin·
guished.
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4168 of
1994.

From the Judgment and Order dated 30.11.90 of the Central Ad-
H ministrative Tribunal, Madras in 0.A. No. 692 of 1988.
160
V.C. PERUMALv. U.O.I. 161

V.A. Mohta, R. Mohan and R.A. Perumal for the appellant. A
A. Mariarputham, Ms. Aruna Mathur for M/s. Arputham, Aruna &
Co., for the State/Respondent.

A.S. Nambiar, Y.P. Mahajan, P. Parmeshwaran, Ms. Niranjana Singh
and S.N. Terdol for the Respondent. B
The following Order of the Court was delivered :

The appellant was directly recruited to the post of District Superin-
tendent of Police in the competitive examination conducted by the Tamil
Nadu Public Service Commission in the year 1965. He joined service on C
5.7.1965. At the relevant time he was officiating as Superintendent of Police
which is a post in the Indian Police Service. He was so officiating from
26.6.1975 to 5.5.1978. The substantive post held by him at the material time
was of Additional Superintendent of Police which is in the State Police
Service. D
The dispute in the present case relates to the year in which the name
of the appellant should have been included in the select list for appoint-
ment as Superintendent of Police. The name of the appellant was included,
for the first time,· in the select list prepared for the year 1978. According
to the appellant, he should have been included in the select list which was E
prepared in the year 1977.

Under Regulation 5 of the IPS (Appointment by Promotion) Regula-
tions, 1955 it is provided as follows :

"Regulation 5 : Preparation of a list of Suitable officers. F

(i) Each Committee shall ordinarily meet at interval not ex-
ceeding one year and prepare a list of such members of the State
Police Service as are held by them to be suitable for promotion to
the service. The number of members of the State Police Service G
included in the list shall not be

more than twice the number of substantive vacancies an-
ticipated in the course of the period of twelve months, commencing
from the date of preparation of the list in the posts available for
them under rule 9 of the Recruitment Rules; H
162 SUPREME COURT REPORTS [1999) lS.C.R.
·"i-
A OR

10 per cent of the senior posts shown against item 1 and 2 of
the cadre schedule of each State of Group of States,

whichever is greater.
B .../
Under Regulation, 5 the Select Committee is required to meet at an
interval not exceeding one year. In ord<:!r to prepare the select list for the
year 1977, the Select Committee met on 23rd November, 1976. Regulation
5 provides that the number of candidates to be included in the select list
shall not exceed twice the number of substantive vacancies anticipated in
c the course of the period of 12 months commencing from the date of
preparation of the list. In the present case, therefore, for preparing the
select list for the year 1977, the Select Committee which met and prepared
the list on 23.11.1976, was required to consider vacancies anticipated for
the period November, 1976 to November, 1977. The number of candidates
D on the select list would be twice the anticipated vacancies. Regulation (5) ~ ...
)<
also provides that the number on the select list should be atleast equal to
10% of the posts in the cadre allotted to the State in question. We are not
concerned with this second part of Regulation· 5 in the present case
because of the, number under first part of Regulation 5 in the present case
exceeding 10% of the posts. However, one may note that the total posts
E which were available to the State Police for the State of Tamil Nadu were
80. Therefore, atleast a minimum of 8 names were required on the select
list.

F period
In order to ascertain the number of anticipated vacancies for the
November, 1976 to November, 1977 both the sides have relied upon ...
-t·
Annexure D to the Special Leave Petition which was also before the
Central Administrative Tribunal. As per Annexure D, there were four
vacancies which were existing at the time when the select list was prepared.
These were carried forward from 1976 as no appointment was made to
these four posts from the select list of 14.7 .1976. In addition, there were
G five anticipated vacancies which would arise during the period February,
1977 to November, 1977. There is also a note that no vacancy was created
....
during the year 1977 due to death, dismissal or resignation of any officer.
Therefore, as per the details set out in Annexure D, there were four
existing vacancies and five anticipated vacancies at the time when the Select
H Committee met on 23.11.1976. Therefore, as per Regulation 5, the Com-
V.C. PERUMALv. U.0.1. 163

mittee considered the number of anticipated vacancies as five, and A
prepared a select list consisting of twice that number, that is to say a select
list of 10 persons. This select list of 10 persons was finally approved by the
Union Public Service Commission on 21.1.1977. This became the select list
for the year 1977. The name of the appellant does not figure in the select
list of 10 persons so prepared for the year 1977. It is an accepted position
that in this select list of 10 persons, nobody junior to the appellant is
B
included. These are all persons senior to the appellant.

In connection with the existing vacancies, learned counsel for the
respondents has drawn our attention to Regulation 7(3) which provides
that the list, as finally approved by the Union Public Service Commission, C
shall form the select list of the members of the State Police Service for
appointment to the Indian Police Service. Under Regulation 7(4) the select
list shall ordinarily be in force until its review and revision effected under
Regulation 5(4) is approved under Sub-Regulation (1), or as the case may
be, approved under Sub-Regulation (2). Sub-Regulation (1) of Regulation D
7 requires the Union Public Service Commission to consider the selection
list prepared by the Select Committee and Sub-Regulation (2) of Regula-
tion 7 enables the Union Public Service Commission, if it considers neces-
sary, to make changes in the list received in the manner set out in that
Sub-Regulation. Therefore, under regulation 7(4) the select list will operate
until the approval of the new select list by the Uniori, Public Service E
Commission. In the present case, therefore, when the Committee prepared
the new select list on 23.11.1976, the select list for 1976 was in operation
and would have continued to operate till the approval of the new select list
for 1977 by the Union Public Service Commission which normally takes
some time. The CoMmittee, therefore, could not h'ave anticipated that any F
existing vacancies which were available for being-:illed from the select list
of 1976 would or not be filed by the time the new select list was approved
by the Union Public Service Commission.

Learned counsel for the respondent has drawn our attention to an G
amendment to Regulation 7 which has been made in the year 1989 by
adding a proviso for the purpose of eliminating this problem of existing
vacancies, and whether they should or should not be taken into account by
the Select Committee while preparing a new list. The proviso which has
been added in 1989 provides that no appointment to the service under
Regulation 9 shall be made after the meeting of the fresh Committee to H
164 SUPREME COURT REPORTS (1999] 1 S.C.R.
-~
A draw up a fresh list under Regulation 5 is held. This proviso, however, was
not in existence at the material time. The Committee, therefore, was
justified in not taking into account the existing vacancies for the purposes
of Regulation 5. In fact Regulation 5 in terms, makes no reference to any
existing unfilled vacancies. It fixes the number of candidates on the select
list with reference to anticipated vacancies during the coming year. The
B contention of the appellant, therefore, that the Commission should have
prepared a list of more than 10 persons for the year 1977 does not appear
to be justified.

The appellant has added the four existing vacancies to the five
anticipated vacancies which makes a total of nine. He has, however,
C excluded from consideration the anticipated vacancy of 30.11.1977, thU.S
reducing the total number to eight. He has contended that a select list of
sixteen should, therefore, have been prepared. His contention cannot be
accepted in view of the provisions of Regulation 5 and Regulation 7. The
anticipated vacancies were five, and preparation of a selection list of ten
D was in accordance with Regulation 5. ....
)..

Learned counsel for the appellant has drawn our attention to a
. decision of this Court in Union of India v. M.G. Dighe & Ors., [1991] 4 SCC
551. In that case the Court was concerned with the date from which
anticipated vacancies were required to be calculated for the purpose of
E preparing a select list. In that case a review DPC was required to be
convened on account of a faulty list prepared by the original DPC. The
Court said that vacancies would have to be determined after reckoning 12
months from the date of the review DPC and not from the date when the
original DPC had met. The Court said that the crucial date would remain
F the date of the meeting of the DPC, but it would be the date of review ...
DPC which would count for that purpose. We fail to see how this judgment
helps the appellant in any manner. The second judgment which was relied
upon by the appellant is the judgment in the case of Devender Narayan
Singh v. State of Bihar & Ors., (1996] 11 SCC 342. In that case, on account
of certain errors in preparing the select list for the year 1983, this Court
G had directed preparation of a fresh list for the year 1983. Consequently .a
fresh select list was prepared in the year 1985 and was approved by the
Union Public Service Commission in the year 1986. This Court said that in
view of .the earlier directions given by this Court the fresh select list
prepared must be deemed to be a select list for year 1983 and hence the
H . year .of allotment of the officers promoted in 1987 on the basis of the select
V.C. PERUMAL v. U.0.L 165

~- list should be determined on the basis that they were included in the select A
list of 1983 and not on the basis of the approval of the list in 1986. This
decision also turns upon its own special facts and the specific directions
given in that case earlier by this Court. This decision also does not assist
the appellant in any way.

In the present case the appellant was included for the first time in B
•..... the select list of 1978 and on that basis he was promoted in the year 1979 .
His only grievance appears to be that his batchmate Balakrishnan was
included in the select list of 1977 while he himself was included only in the
select list of 1978. Balakrishnan was also, in fact, promoted in the year 1979

,
because out of the select list of ten for 1977, only seven persons were
actually promoted. Balakrishnan has been throughout senior to the appel-
c
,J1
!ant, although they were in the same batch. Even when both are promoted
in 1979, Balakrishnan being senior to the appellant, has been so shown.
Undoubtedly because Balakrishnan was in the select list of 1977, while the
appellant was included only in the select list of 1978, Balakrishnan would
.. ~ get seniority. But even if the appellant had been in the select list of 1977, D
~- Balakrishnan would still have been senior to him. Therefore, there is no
prejudice caused to the appellant by reason of the fact that his name is
included for the fust time only in the select list of 1978.

In the premises the present appeal is dismissed and the order of the
Tribunal is upheld. E

T.N.A. Appeal dismissed.
~

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