# ARUN RANJAN MUKHERJEE v. UNION OF INDIA & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 574
- **Court:** Supreme Court of India
- **Decided:** 1971-04-29
- **Bench:** S. M. SiKRI, G. K. Mitter, C. A. Vaidialingam, P. Jaganmohan. Reddy, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arun-ranjan-mukherjee-v-union-of-india-ors-5280
- **Pages:** 14

## Headnote

Indian Police Service (Regulation of Seniority) Rules 1954, r. 3(3)(b)
-Fixation of year of allotment-Officer recruited directly to Indian Police
in 1945 is not direct recruit for purpose of main part of r. 3(3) (b)-
First proviso to r. 3(3)(b) does not relate only to 'joint cadre'-Court
must not interfere with discretion of Central Government to fix year of
allotment on ad hoc basis under first proviso,
The appellant joined the Indian Army as a Commissioned Officer in
1942.
He became a Major in 1945. The appellant's services were lent
to the State of West Bengal and accordingly on 10-1-1949 the appellant
was posted as Commandant of the Special Police Battalion, a post corresponding to a senior post in the Indian Police Service.
The appellant
with bis consent, was appointed to the West Bengal State Police Service
on 1'7-1953. On 8th September 1954 the Indian Police Service (Recruit·
ment) Rules, 1954, Indian Police Service (Cadre) Rules, 1954 and tbe
Indian Police Service (Regulation of Seniority) Rules 1954 were framed by
the Government of India under s. 3 of the All India Services Act 61 of
1951.
On 6th June 1955 the Indian Police Service (Appointment by
Promotion) Regulations 1955 were also issued under which 25% of the
senior posts were allotted to the Indian Police Service cadre in each State.
The appointment of the appellant was outside this quota. On 31st Ju)y
1958 the appellant was appointed on probation in the State Cadre of
West Bengal.
In December 1959 he was substantively appointed to a
senior post in the Indian Police Service and confirmed thereon with effect
from 21st July 1958.
In December 1958 the Ministry of Home Affairs
conveyed to the Government of West Bengal its decision to fix the pay
of the appellant in the senior scale of the Indian Police Service notionally
from 10-1-1949, the date from which he held an Indian Police Service
Cadre post continuously. On 19th January 1960 the Indian Police Servi.cc
(Seniority of Special Recruits) Regulations 1960 ·were framed pursuant to
r. 5-A of the Seniority Rules. On 11-10-1960 the Government of India in
consultation with the Union Public Service Commission decided to allot
to the appellant the year 1948. The year of allotment was subsequently
changed to 1947 on the basis that the officiation of the appellant as well
as that of the junior most direct recruit, in a senior scale did not start before 19th 1'.1ay 1951. The appellant filed a writ petition under Art. 27.6
of the Constitution. The Single Judge, allowing his petition, held that the
date from which the appellant continuously officiated was 10-1-1949 and
that accordingly the year 1943 allotted to D the Juniormost direct recruit,
should olso be allotted to the appellant.
The learned Judge also hold
that the first and second provisos to r. 3(3) (b) of the Senioritv Rules
were not applicable to the appellant. The Division Bench in appeai agreed
with the Single Judge, that the date of continuous officiation of the appellant was 10-1-1949. But the High Court thought that the year 1947 allotted to the appellant on the basis of his officiation from 19th May 1951
could not be sustained because the latter date had been held by this Court
to be irrelevant in Nim's case. Non-the-less the year of allotment 1948
A. R. MUKHBR!Bll v. UNION (Jagan mohan Reddy, J.)
assigned to the appellant in the order of 11th October 1960 was sustained
because it was on an ad hoc basis. Against the High Court's order the
appellant appealed to this Court by certificate. His contentions were:
(i) that under the main clause of r. 3(3). (b) of the Seniority Rules the year
1943 should be allotted to him as the said year had been allott<d to D
lhe juniormost direct recruit; (ii) that the first proviso to r. 3(3)(b) did not
apply to him as it applied only to those .in the joint cadre; (iii) that this
Court should deduct the 'P' factor from the date of officiation which as
held by the High Court was 10th January 1949 and allot to hlm the year
1943

## Text

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ARUN RANJAN MUKHERJEE
v.
UNION OF INDIA & ORS.
April 29, 1971
[S. M. SiKRI, C. J., G. K. MITTER, C. A. VAIDIALINGAM,
P. JAGANMOHAN. REDDY AND I. D. DUA, JJ.]
Indian Police Service (Regulation of Seniority) Rules 1954, r. 3(3)(b)
-Fixation of year of allotment-Officer recruited directly to Indian Police
in 1945 is not direct recruit for purpose of main part of r. 3(3) (b)-
First proviso to r. 3(3)(b) does not relate only to 'joint cadre'-Court
must not interfere with discretion of Central Government to fix year of
allotment on ad hoc basis under first proviso,
The appellant joined the Indian Army as a Commissioned Officer in
1942.
He became a Major in 1945. The appellant's services were lent
to the State of West Bengal and accordingly on 10-1-1949 the appellant
was posted as Commandant of the Special Police Battalion, a post corresponding to a senior post in the Indian Police Service.
The appellant
with bis consent, was appointed to the West Bengal State Police Service
on 1'7-1953. On 8th September 1954 the Indian Police Service (Recruit·
ment) Rules, 1954, Indian Police Service (Cadre) Rules, 1954 and tbe
Indian Police Service (Regulation of Seniority) Rules 1954 were framed by
the Government of India under s. 3 of the All India Services Act 61 of
1951.
On 6th June 1955 the Indian Police Service (Appointment by
Promotion) Regulations 1955 were also issued under which 25% of the
senior posts were allotted to the Indian Police Service cadre in each State.
The appointment of the appellant was outside this quota. On 31st Ju)y
1958 the appellant was appointed on probation in the State Cadre of
West Bengal.
In December 1959 he was substantively appointed to a
senior post in the Indian Police Service and confirmed thereon with effect
from 21st July 1958.
In December 1958 the Ministry of Home Affairs
conveyed to the Government of West Bengal its decision to fix the pay
of the appellant in the senior scale of the Indian Police Service notionally
from 10-1-1949, the date from which he held an Indian Police Service
Cadre post continuously. On 19th January 1960 the Indian Police Servi.cc
(Seniority of Special Recruits) Regulations 1960 ·were framed pursuant to
r. 5-A of the Seniority Rules. On 11-10-1960 the Government of India in
consultation with the Union Public Service Commission decided to allot
to the appellant the year 1948. The year of allotment was subsequently
changed to 1947 on the basis that the officiation of the appellant as well
as that of the junior most direct recruit, in a senior scale did not start before 19th 1'.1ay 1951. The appellant filed a writ petition under Art. 27.6
of the Constitution. The Single Judge, allowing his petition, held that the
date from which the appellant continuously officiated was 10-1-1949 and
that accordingly the year 1943 allotted to D the Juniormost direct recruit,
should olso be allotted to the appellant.
The learned Judge also hold
that the first and second provisos to r. 3(3) (b) of the Senioritv Rules
were not applicable to the appellant. The Division Bench in appeai agreed
with the Single Judge, that the date of continuous officiation of the appellant was 10-1-1949. But the High Court thought that the year 1947 allotted to the appellant on the basis of his officiation from 19th May 1951
could not be sustained because the latter date had been held by this Court
to be irrelevant in Nim's case. Non-the-less the year of allotment 1948
A. R. MUKHBR!Bll v. UNION (Jagan mohan Reddy, J.)
assigned to the appellant in the order of 11th October 1960 was sustained
because it was on an ad hoc basis. Against the High Court's order the
appellant appealed to this Court by certificate. His contentions were:
(i) that under the main clause of r. 3(3). (b) of the Seniority Rules the year
1943 should be allotted to him as the said year had been allott<d to D
lhe juniormost direct recruit; (ii) that the first proviso to r. 3(3)(b) did not
apply to him as it applied only to those .in the joint cadre; (iii) that this
Court should deduct the 'P' factor from the date of officiation which as
held by the High Court was 10th January 1949 and allot to hlm the year
1943 as the year of allotment. Dismissina the appeal,
·
HELD: (i) D was an Indian Police Officer recruited in 1945. He became a member of the Indian Police Service under sub-r. (l) of r .. ' of the
Indian Police Service (Recruitment) Rules 1954 on the date when the .aid
Rules came ~nto force in 19541 and was not an officer recruited to the service in accordance with r. 7 of those Rules. The year of allotment assigned
to D was not therefore available to the appellant under the main part of
r. 3(3) (b).
(ii) The first proviso to r. 3 nowhere refers or even remotely indicates
·that it is only applicable to the persons in the joint cadre. In fact r. 2(1) of
the Seniority Rules and the words 'State cadre' and 'joint cadre' have been
<iefined as having the meaning respectively assigned to them in the Indian
Police Service (Cadre) Rules, 1954.
By reference to r. 7 of the Cadre
Rules it is, apparent that what is to be determined is the authority which
is to appoint, to .the respective cadres i.e. in the case of State Cadre it is
the State Government and in the case of Joint Cadre it is the State Government conCerned. The first proviso does not refer to any appointment.
to any cadre; it only deals with Regulation of Seniority and the reference
to State Government concerned is for the purpose of ftxina the date of
·officiation ad hoc in consultation with the Central Government.
WhP.:n
there are several State Governments the consultation by the. Central Government must necessarily be with the. State Government concerned in rela·
tion to the officer who is appointed to the cadre of that State. Whether
the first proviso applies or the second proviso applies, it is the Central
Government that has to determine ad hoc, the year of allotment after
approving the period of officiation in consultation with the Public Service Commission.
(iii) In view of the judgment in Nim's case the order assignillg 1947
as the year of allotment to the appellant on the basis of an arbitrary date
of officiation namely 19th May, 1951 was bad and had been quite properly
struck down by the High Court. The High Court however had no power
to direct the. year 1948 to be fixed as the year of allotment for the determination of the seniority of the appellant. on the basis that that was fixed
on an ad hoc basis in an earlier occasion by the Government of India.
Once the Government of India had on a meniorial presented by the Appellant decided .finally in supersession of its previous decision that his year
of allotment· was 1947, the previous decision fixed on ad hoc basis could
not be revived. It was for the Government of India in consultation with
the Commission to determine ad hoc the year of allotment to be assigned
to the appellant in re1ation to the date of his continuous officiation. This
Court would not trespass upon the jur'sdiction of the Government of India
to determine ad hoc in consultation with the Cornmision, on a consideration of the relevant materials, the date of the appellant's continuous officiation and assign him an year of allotment.
D. R. Nim v. Union of India, [1967] 2 S.C.R. 325, applied.
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SUPRBMI! COURT REPORTS
. (1971] SUPP. s.c.R.
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CIVIL APPELLATE JURISDICTION ; Civil Appeal No .. 1943 of
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1969.
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Appeal from the judgment and order dated December 22, 1967
of the Calcutta High Court in Appeal from Original Order No. 551
of 1966.
The appellant appeared in person.
Jagdish Swarup, Solicitor-General, Ram Panjwani and S. I'.
Nayar, for respondent No. 1.
M. C. Chagla, D. N. Mukherjee, G. S. Chatterjee for Sukumar
Basu, for respondent No. 2.
The Judgment of the Court was delivered by ·
P. Jaganmohan Reddy, J~
This Appeal is
by certificate
against the judgment of a Division Bench of the Calcutta High
Court dismissing the application by the Appellant under Article 226
of the Constitution of India.
The Appellant who is an Indian
Police Service Officer holding a senior post in that service made
an application to fix his year of allotment in the service which the
Government of India ultimately fixed as 1947. With this fixation
the Appellant is aggrieved.
The brief facts which may be necessary for consideration of
the matters in issue are that the Appellant was Commissioned as
an Officer of the Indian Army on the 12th April 1942. He was
promoted to the rank of a Major on or about !st April '45. On
10-1-1949 the State of West Bengal feeling the need of a Bengali
Officer to serve in the Special Armed Police requested the Army
for the services of the Appellant which the Ministry of Defence
agreed to lend. The Appellant was relieved from the Army r.nd
posted as a Commandant of the Special Armed Police Battalion
on 10-1-1949, which post corresponded to a senior post in the
Indian Police Service.
There is no dispute that his services werelent and that he took charge on the 10th January '49 or th31! the
post of a Commandant in the Special Armed Battalion was in the
senior scale of Indian Police Service.
While serving in this .capacity the Government expressed a
desire to absorb him and on the Appellant's showing his willingness to be so absorbed, he was appointed to the West Bengal State
Police Service on 1-7-1953. On the 8th September 1954, the Indian
Police Service (Recruitment) Rules, 1954, Indian Police Service
(Cadre) Rules, 1954 and Indian Police Service (Regulation of Seniority) Rules, 1954 were framed by the Government of India under
su!Hection (1) of Section 3 of All India Services Act LXI of
A. R. MUKHERJEE v. UNION (Jaganmohan Reddy, J.)
195 l (hereinafter called "the Recruiiment Rules", "the Cadre
Rules" and "the Seniority Rules" respectively). On 6th June 1955
the Indian Police Service (Appointment by Promotion) Regulation
1955, were also issued under which 25% of the senior posts were
allotted to the Indian Pol\ce Service· Cadre in each State. It is also
not disputed that the appointment of the Appellant was outside
the 25% quota.
On 31st July 1958, the Apelian! was appointed
un probation in the State Cadre of West Bengal.
On 8th/ 17th
December 1959 he was substantively a1>pointed to a senior post
in the Indian Police Service and confirmed thereon with effect from
21st July 1958.
'On the 19th December 1958, the Ministry of
Home Affairs, New Delhi, by its letter to the Chief Secretary to
the Government of West Bengal conveyed its decision to fix the
pay of the Appellant in the senior scale of the Indian Police Service
notionally from 10-1-1949 the date from which he held an Ii:tdian
Police Service Cadre post continuously.
Inasmuch as no order of allotment was given to the Appellant and the seniority was not fixed at the time of his confirmation, the Appellant made a representation on the 3rd November
1958 for fixation of his seniority and granting of 1943 as the year
of allotment in the Indian Police Service Cadre, under Rules and
Regulations of the service.
To this he received a reply on 31st
March 1959 from the Assistant Secretary to the Government ot
West Bengal informing that it is not possible for him to accede
to the request of the Appellant contained in his representation.
Thereafter the Appellant seems to have taken up the matter again
by his letter of 30-4-1959 and 22-8-1959 but there was no reply
thereto. On 19th January 1960 the Indian Police Service (Seniority
of Special.Recruits) Regulations 1960 were framed persuant to
Rule 5-A of the seniority Rules. On 11-10-1960 the Government
of India on a. reconsideration and in consultation with the Service
Commission finally decided to allot to the Appellant the year 1948
enclosing a letter of the first Respondent dated 14-1-1963. Thereafter a memorial was
presented to the President of India on
2-12-1960 asking for 1943 as the year of allotment to which the
Appellant received a reply on 12-2-1963.
In this letter dated
12-2-1963 the Assistant Secretary to the second Respondent the
State of West Bengal informed him of the decision of the Government of India as under :
"The Government of India have decided that the
seniority of Shri A. R. Mukherji may be revised taking
into account his officiation in senior cadre post from 19th
May 1951.
Since direct recruits borne on the I. P. S.
cadre post of the West Bengal did not start officiating in a
senior scale before this date (19-5-1951), Shri Mukherji's
case will be decided ad hoc under Reg. 3 of the I. P. S.
37-1 S.C. lndia/7 I
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(Seniority of Special Recruits) Regulations read with the
first proviso to Rule 3(3) (b) 1954.
As the 'P' Factor in
the West Bengal was 4 years 19 days, Shri Mukherji may
be allotted, in modification of this Ministry's letter ........ .
to the year 1947".
Being aggrieved by the assignment of the allotment year 1947
the Appellant by his letter dated 1st July '63 made a representation to which he received a reply on 7th November 1963 enclosing a copy of letter dated 11th October '63 of the !st Respondent
the Union of India, informing him that his representation was
rejected. Thereupon he filed a Petition under Article 226 in the
High Court of Calcutta.
A Single Judge held that under the main Rule 3(3) (b) of the
seniority Rules the date from which the Appellant continuously
officiated is 10-1-1949 and accordingly having regard to the fact
that Shri P. Dhar who was the juniormost direct recruit, the year
of allotment given to him viz. 1943 also should be allotted to the
Appellant.
The learned Judge also held that neither the 1st proviso nor 2nd proviso to r. 3(3) (b) is applicable to the Appellant.
While the Division Bench in appeal lllgfeed with the Single Judge
that the date of continuous officiation of the Appellant was 10-1-49,'
it held that iii the circumstances the year of allotment which was
required to be determined by the Government of India had to
be decided on an ad hoc basis.
But since the date 19th May
1951 fixed as the date of officiation was struck down by this Court
as arbitrary in D. R. Nim v. Union of India('), the High Court
thought that the year 1947 allotted to the Appellant on the basis
of his officiating from 19th May 1951 could not be sustained, nonetht>-less the year of allotment 1948 assigned to the Appellant in the
order of I Ith October 1960 was sustained because it was on an
ad-hoc basis. It was however observed by the Bench that in respect of inter-se seniority as they are not in a position to say whether
the order of 11th October '60 in so far as it fixes the seniority of
officers complies with. the requirements of Regulation of 1960,
interest of justice required that they should strike down that portion of the order and ask the Government of India to make a new
decision in the light of the principles they have indicated. In the
result the Appeal was allowed and it ~as declared that the year
of allotment 1948 was correctly assigned to the Appellant and
accordingly the Government of India was directed to fix the
seniority of the special recruits in accordance with Regulation 4 of
the Seniority of Special Recruits Regulations 1960.
The short question in this Appeal which has been argued at
some length by the Appellant personally is to ascertain the Rule
----------
(I) [196712 S.C. R. 325.
A. It l\lUKHERJEll .. UNION (Jaganmohan Reddy, J.)
579
which is applicable in determining what year of allotment should
A
be assigned to him.
A brief history of the All India Police
Services would facilitate an understanding of this question.
There was prior to 1946 a Secretary of State Service known
as the Indian Police (IP).
When India was to attain Independence
an agreement was arrived at between the British Govermnent and
the Central Govermnent with the concurrence of a number of
Provincial Govermnents to constitute another service on the 21st
October '46 known as the Indian Police Service (IPS).
Recruit·
ment to this latter service began on and after the 15th August '47
when India attained Independence and subsequently on 23-1-1950,
three days before India was declared a Republic on 26th January
'50, the Governor General in consultation with the
Provincial
Governments promulgated rules for framing a Cadre for Police
Officers known as the Indian Police Service (Cadre) Rules 1950
which came into force on that date. After 26-1-1950 Article 312
governed the All India Services.
Under clause (1) of the Said
Article Parliament was empowered by law to constitute an All
India Service common to the Union and the States and to regulate
the recruitment and conditions of service. It also provided that
the services known before the commencement of the Constitution
the Indian Police Service arid Indian Administrative Service shall
be deemed to be services created by Parliament under that Article.
Persuant to these powers Parliament passed an Act known as the
All India Services Act 61 of 1951 which recognised the existence
of the two All India Services mentioned above.
Section 3 of that
Act empowered the Central Government after consultation witli
the State Government concerned to make Rules and Regulation
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for recruitment and conditions of service for appointment to All
India Service.
Section 4 further provided that all Rules in force '
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immediately before the commencement of the Act were deemed
to be Rules made under that Act.
The Central Government by
virtue of tlie powers vested in it under Section 3 of the Act had
promulgated 3 sets of Rules to which a reference has already been
made namely the Recruitment Rules, the Cadre Rules and the
Seniority Rules.
On May 14,
1956 the Indian Police Service
(Special Recruitment) Regulations 1957 were made under Rule
9(5) of the Recruitment Rules.
On 19th January 1960 the Indian
Police Service (Seniority of Special Recruits) Regulations 1960
were made persuant to Rule 5-A of the Seniority Rules.
These
Regulations deal with the determination of seniority of recruits
ap!>ointed under Special Recruitment Regulations; Regulation 3
of which provides that officers appointed to Service in accordance
with that Regulation shall be assigned a year of allotment in
accordance with r. 3(3) (b) of the Seniority Regulations 1954.
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SUPREME. COURT REPORT~
{1~71] SUPP. s.c.R.
Under sub-rule (!) of Rule 3 of the Recruitment Rules the
Indian Police Service is constituted of the following persons.
namely :
(a) Members of the Indian Police ;
(b) Members recruited to the service before the commencement of the Rules ; and
(c) Persons recruited to the service in accordance with
the provisions of these rules.
Service has been defined as meaning the Indian Police Service
which as we have noticed was constituted even earlier than these
rules.
After the commencement of the Rules, recruitment to
the service is to be made under Rule 4 by 2 methoqs :
(a) by competitive examination, and
(b) by promotion of substantive members of a State
Police Service.
Rule 6 further provides that all appointments to service after the
commencement of the Rules shall be made by the Central Government and no such arrangements shall be made except by one
of the methods specified in Rule 4.
It is with respect to the
second method of recruitment by promotion that we are concerned
in this case as the Appellant was appointed to the service under
Rule 9. Sub-rule (5) of that rule which was introduced with
effect from 14th May '56 by Notification dated the 9th May '57
empowers the Central Government to promote substantive members of a State Police Service in excess of the normal promotion
quota in accordance with such regulation as the Central Government may in consultation with the State Government and the
Commission make from time to itme.
In exercise of the powers
under this Rule the Special recruitment Regulation 1957 was made,
which by Regulation 4 applied the Indian Police Service (Appointment by Promotion) Regulation 1955 (hereinafter called the
"Appointment by Promotion Regulation".).
Regulation 4 of the
Appointment by promotion Regulation was substituted by another
Regulation 4 the effect of which is that the Committee in consultatiOn with the Commission must consider the cases of members
of the State Police Service who mi 3ht December '56 may have
completed not less than six years of service (whether officiating or
substantive) in a post of Deputy Superintendent of Police. While
under the original Regulation 4 of the Appointment by Promotion
Regulation, the Committee has to meet at intervals ordinarily not
exceeding one year and consider a case of a.11 the substantive members of the Police Servioe who had on !st January of that year completed eight years of service in a post of Deputy Superintendent of
Police. In Regulation 5, sub-Regulation (4) and in sub-Regulation
A. R• MUEHBRJEl! Y. lrNION (Jagaitmohan Reddy, J.)
<S> the words "Review i>r revision" were'-deleted. Similarly sub-Regulation (3) & (4) of Regulation 7- as well as Regulations 8; 9 and IO
were omitted.
The effect of these amendments is that for the
Special Recruits there was no provision for the preparation of a
select list referred to in Regulation 7(3) and (4).
In the case of
the special recruits a list prepared by the Committee is sent alongwith other documents from the State Government to the Commission and unless the Commission considers any change necessary
it merely has to approve the list:
It is then for the Central Government to appoint the persons approved in the list.
The Appellant is admittedly a special recruit within the meaning of the
provisions referred to above and his eontention that unlike the
cases of those who are to be appointed within the 25 % quota his
name need not be included in the select list to be appointed whenever there is a vacancy from out of that list. All that is necessary in his case is that once the Commission approves the list of
persons selected the Government of India can straightaway appoint
him and that is what he says has been done in his case.
While
this may be so in our view no significance can be attached to this
difference in the method of recruitment.
In so far as the question before us is concerned what we have
to see is whether the main rule
3(3) (b) of the seniority Rules
applies or whether his case comes _within any of the provisions
thereto for the purposes of ascertaining which is the year of allotment which can be_ assigned to him. It may be mentioned that submle (I) of Rule 3 of the Seniority Rules makes it incumbent upon
the Central Government to assign a year of allotment to every
olJicer in accordan~e with the provisions of that Rule.
The
assignment of the year of allotment to an officer appointed to the
service after the commencement of the Rules is governed by the
Seniority Rules which are applicable to the Appellant.
The relevant rule 3(3) (b) is as follows :
"3(3) The year of allotment of an Officer appointed to
the service after the commencement of these rules shall
be:
(a) ...
(b) Where the Officer is appointed to the service
by promotion in accordance with Rule 9 of the Recruitment Rules, the year of allotment of the juniormost among the Officers recruited to the service in
accordance with Rule 7 of _those rules who officiated
continuously in a senior post from a date earlier
than the date of commencement of such officiation
by the former".
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Provided that the year of allotment of an Officer
appointed to the Service in accordance with Rule 9 of
the Recruitment Rules who started officiating continuously
in a senior post from a date earlier than the date on
which any of the officers recruited to the Service, in
accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by the Central Government
in consultation with the State Government concerned;
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Provided further that an · Officer appointed to the
Service after the commencement of these Rules in accordance with Rule 9 of the Recruitment Rules shall be
deemed to have officiated continuously in a senior post
prior to the date of the inclusion of his name in the Select
List prepared in accordance with the requirements of the
Indian Police Service (Appointment by Promotion) Regulations framed under Rule 9 of the Recruitment Rules,
if the period of such officiation prior to that date is approved by the Central Government in consultation with
the Commission.
Explanation I. An Officer shall be deemed to have
officiated continuously in a senior post from a certain date
if during the period from that. date to the date of his
confirmation in the senior grade he continues to hold
without any break or reversion as senior post otherwise
than as a purely temporary or local arrangement.
Explanation 2.
An Officer shall b~ treated as having officiated in a senior post during any period in respect of which the State Government concerned certifies
that he would have so officiated but for his absence on
leave or appointment to any ·special post or any other
exceptional circumstance.
The above rule has been construed by this Court in D. R.
Nim v. Union of India('), in respect of the second category to
which it was applicable namely an officer appointed to the Indian
Police Service after the commencement of the Rules.
One of us
<Mylord, the Chief Justice) after analysing the Rule, set out the
result of the analysis of the provision at page 328 as under :
"The formula adopted works out as follows : -
(!) Finding out the year of allotment of the juniormost among the officers recruited to the service by competition who officiated continuously in a senior post from
(1l [1967] 2 s.c.R. 325.
A. R. MUKHERJBE v. UNION (Jaganmohan Reddy, J.)
a date earlier than the date of commencement of officiation of the Appellant. . . . But according to the first proviso, if the Appellant started officiating continuously in a
senior post from a date earlier than the date of any officer recruited by competition his allotment had to be determined ad hoc by the Central Government.. .......... The
second proviso limits the operation of the first proviso
by dividing the officiating period into two classes ; first,
a period before the date of inclusion of an officer in the
Select List, and secondly the period after that date. The '
first period can only be counted if such period is approved by the Central Government in consultation with the
Commission ............... We may here notice explanation
I to Rule 3, because the Government of India also say
that the Appellant officiated continuously as a temporary
or local arrangement ............... Therefore according to
the Rule the Central Government had to determine ad hoc
the year of allotment after approving or not approving the
period of officiation of the Appellant before 1956".
In that case also the Government of India had taken the stand
that it had determined the date of commencement of officiation of
the Appellant as 19th May '51 after consultation with the Commission and on that basis the period of officiation as Superinten~
dent of Police from 25,th June '47 to May 19, 1951 was excluded
for the purpose of fixation of seniority.
At page 330 it was
pointed out that the date May 19, 1951 to begin with had nothing
to do 'with the finalisation of the gradation list of the I. P. S.
because it was a date which had reference to the finalisation of
the Gradation list of the Indian Administrative Services.
In so
far as the applicability of that date as the crucial date for classification of officers in the Police Service is concerned, it was held
to be arbitrary and contrary to Rule 3. In this view the impugned order fixing the year of allotment was quashed.
It was further pointed out that the contention of the Government of India
that the Appellant's continuous officiation was a temporary or
local arrangement within Explanation I to Rule 3, cannot as a
stop gap arrangement last for eight years nor has it been shown
that the Appellant was appointed in place of someone as subsequently he has never been reverted.
Further the fact that he was
appointed to the post at the time when vacancies occurred negatives that it was merely a temporary arrangement.
In view of this Judgment we find it unnecessary to cover the
same ground again in dealing with the arguments of the Appellant because in the case before us also 19th May '51 was treated
as the date prior to which the period of officiation would not be
deemed to be approved by .the Central Government and which was
held to be bad by the High Court.
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SUPREME COURT REPORTS
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It is clear from the facts stated, that the Appellant had been
holding a senior post in the West Bengal Police Service no doubt,
on deputation but continuously from
10-1-1949 and was. only
appointed to that service in 1953 a year before the promulgation
of the Recruitment Rules.
He was however not appointed to the
Indian Police Service till after the Rules had come into force in
1954.
The question will therefore be how is his year of allotment to
be determined? The Appellant claims that the main rule 3(3) (b)
without it being read with any of the two provisos is applicable
to him and on that basis he contends that the year of allotment
to be assigned to him is the same as that of Shri P. Dhar who is
the junior-most among the officers directly recruited to the service
in accordance with Rule 7.
The Respondents however repel this
contention and say that Shri Dhar was not directly appointed
under Rule 7 of the Rules because he was recruited in 1945 even
before the Indian Police Service was constituted. If as the Appellant states Shri Dhar was an Indian Police Officer, whether recruited directly or promoted under the Rules then existing, he became
a member of the Indian Police Service under sub-rule (!) of Rule
3 on the date when the Rules came into force in 1954 and is not
an officer recruited to the service in accordance with 'Rule 7 of
those rules'. The year of allotment assigned to Shri P. Dhar will
not therefore be available to the Appellant under r. 3(3)(b).
The Respondents however contend that the first proviso al>"
plies, as such the Central Government has to fix the year of allot·
ment and seniority of the applicant on. ad hoc basis. The Appellant on the other hand argues strenuously that the first proviso does
not apply t~ him because, it .is. _applicable only to persons in the
joint cadre.
This contention is suggested by a curious process
of reasoning namely that because under that rule the officiating
date has to be determined ad hoc by the Central Government in
consultation with the State Government concerned and as "the
State Government concerned" is defined as being in relation to a
joint cadre that proviso deals only with officers in the joint cadre
and the officiating date to be fixed ad hoc is in relation to persons
who come into the joint cadre from States other than the nine
erstwhile British Indian Provinces like Hyderabad, Mysore etc. In
our view the first proviso to rule 3 nowhere refers or even remotely
indicates that it is only applicable to the persons in the joint cadre.
In fact, in rule 2(i) of the Seniority Rules and word "State cadre"
and 'joint cadre' have been defined as having the meaning respectively assigned to them in the Indian Police Service (Cadre) Rules
1954.
By reference to rule 7 of the Cadre rules it is apparent
that what is to be determined is the authority which is to appoint,
to the respective cadres i.e. in the case of State Cadre it is the
A. R. MUKHERJEE •• UNION (Jaganmohan Reddy, J.)
58 5
State Government and in the case of Joint Cadre it is the State
Government concerned. ·The first proviso does not refer to any
appointment to any cadre, it only deals with Regulation of Seniority and the reference to the 'State Government concerned' is for
the purposes of fixing the date of officiation ad hoc in consultation
with the Central Government. When there are several State Governments the consultation by the Central Government must neces- • B
sarily be with the State Goverment concerned m relation lu th~
officer who is appointed to the cadre of that State. Whether the
first proviso applies or the second proviso applies, under both of
them it is the Central Government that has to determine ad hoc,
the year of allotment after approving the period of· officiation in
consultation with the Public Service Commission.
In view of the Judgment in Nim's case, the order assigning
1947 as the year of allotment to the Appellant on the basis of an
arbitrary date of officiation namely 19th May '51, is bad and has
been quite properly struck down by the High Court.
The High
Court however had no power to direct the year 1948 to be fixed
as the year of allotment for the determination of the seniority ot
the Appellant on the basis that that was fixed on an ad hoc basis
in an earlier occasion by the Government of India. . Once the
Government of India has on a memorial presented by the Appellant decided finally in supercession of its previcms . decision that
the year of allotment to be assigned to the Appellant in relation to
the date of his continuous officiation.
The Appellant also contends that the date of his continuous
·officiation is that which has been held by both the Single Judge
as well as the Division Bench of the High Court of Calcutta i.e.
the 10th January '49. While on the other hand the learned Solicitor General as well as Mr. Chagla appearing on behalf of West
Bengal contend that the officiation cannot commence till after he
was appointed to the West Bengal service which was only on the
!st July '53, till then he was an Officer in the Army with a lien
to the post of a Major and cannot therefore be said to be appointed to that service from the 10th January '49. The Appellant's
answer is that the Government of India had in relation to his
pay determine4 10-1-1949 as the date from which he is said to be
officiating and in any case the date of continuous officiation is not
from the date of appointment but from the date on which a person
<>ecupies a post and officiates continuosly without a break.
It is
true that both the Courts have held that the date of the Appellant's officiation in. the service is 10-1-1949 and in arriving at this
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conclusion they seem to have relied on a letter to the Government_
of India dated 19-12·1958 in which it has been stated as follows:
"The Government of India have decided that the pay
of Shri Mukherjee should be fixed in the sepior scale of
the I.P.S. notionally from 10-1-1949 the date from which
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The Division Bench however rejected the contention of the Respondents that July I, 1953 should be the datum date, the date
from which the Appellant's continuous officiation commenced. It
observed :
"Now, there can be no question that the Petitioner
had been officiating in the post of a Commandant from
January 10, 1949 and that he had continuously held that
post right upto July I, 1953. There is nothing in clause (b),
which shows that while officiating in a 'senior post' the
officer concerned must be an officer belonging substantive·
Jy to the State Police Service in question and could not be
an officer on deputation from some other service. There
can be little doubt that the particular clause we have
before us viz., clause (bT of rule 3(3) in term is wide
enough to cover even the period between January 10,
1949 to July I, 1953".
In view of this finding the Petitioner strenuously contends
that as he has already suffered a great deal and has come to the
end of his resources this Court should, having regard to the position taken up by the Government, of India in its Jetter referred
to earlier namely 10th January '49 as the date from which he held
the post in the West Bengal Police Service continuously, which
·according to both the Courts was also the date of continuous officiation and also having regard to the 'P' factor which for the
State of Bengal has been fixed by the Government of India as
4 years 19 days, this Court could determine the year of allotment
by deducting the 'P' factor from the date of officiation and assign
to the appellant the year 1943 as the year of allotment. He also
contends that in the case of Nim, the Government of India after
the decision of this Court, determined the year of allotment and
assigned to him this very date 1943.
Whatever force these contentions may have we do not propose to trespass upon the jurisdiction of the Government of India to determine ad hoc in consultation with the Commission, on a consideration of the relevant
materials, the date of the Appellant's continuous officiation and
assign to him a year of allotment
A. R. MUKHERJEE v. UNION (Jaganmohan Reddy, J.).
We would therefore direct that. the Government of India in
consultation with the Public Service Commission do determine and
allot ad hoc the year of allotment according to law within two
to three months, as in our view after Nim's case the position
having already been clarified, it should not take much time to
determine the seniority of tho Appellant.
The: Appeal is accordingly allowed with costs against tho
Union of India.
G.C.
Appeal allowed.
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