# R. P. KHANNA & ORS v. S.A.F. ABBAS & ORS. ETC

- **Citation:** [1972] 3 S.C.R. 548
- **Court:** Supreme Court of India
- **Decided:** 1972-02-22
- **Case number:** Civil Writ Jurisdiction Cases Nos. 853, 854 and 877 to 880 of 1968
- **Bench:** S. M. S!Kri, A. N. Ray, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-p-khanna-ors-v-s-a-f-abbas-ors-etc-5568
- **Pages:** 13

## Headnote

ltidian Administrative Service (Regulation of Seniority) Rules 1954,
Rule 3(3) (b)-Year of allotment of promotee--Officiation in senior post
prior to inclusion of promotee's name in Select List can be taken into
consjderation only after approval by Central Government
and
Union
Public Service
Commission-Post held by promotee
may be declared
equivc.:lent to senior post rettrospectively.
Rule 3(3){b) of the Indian Administrative Service (Regulation of
Senicnty) Rules 1954 laid down in its main part that tlr. year of allotment of an officer who was appointed to the service by promotion shall
TM' the year of allotment of the junior-most among the officers who entered th: service by direct recruitment who
offici~ted continuously in a
senior post from a date earlier than the date of commencement of such
officiation by the former. The second proviso to the rule laid d~wn that
a promotee shall he deemed to have officiated dpntinuously in a senior
post prior to the date of inclusion of his name in the Select List prepared
in accordance with ·the requirements of the lndi':ln Adniinistrative Service
{Appointment by Promotion) Regulations, if the period of such officiation prior to that date was approved by the Central Government in consultation with the Union Public Service Commission. The appellants became members of the Indian Administrative Service in the years 1949 and
1950 by direct recruitm_ent.
The respondents were initially recruited to
the executive branch of the Bihar State Civil Service and were subsequently in the years 1955 and 1956 promoted to the Indian Administrative Service. The Government of India on 3 September 1958 allotted to
the respondents the year 1948 and placed them below the junior most
amongst the direct recruits of the 1948 allotment in purported compliance
with Rule 3 ( 3 )(b) aforesaid.
The appellants thereupon made a repreSentation to the Union Government as a result Of which the Union Government by order dated 20 September 1967 revised the seniority of the
promotees and allotted to some of the promotees the year 1950 and to
others the year 1952. In making this order the Government of India
agreed with the Ministry of Law in its view that rule 2{g) of the Seniority
Rules did not perm.it retrospective declaration of a post as equivalent to a
senior post within the meaning of Rule 3(3){b) as had been done by the
State Government in the ca~e, of the respondents. The respondents challenged the Union Government's order dated 20 September 1967 in the
High Court.
That Court quashed the said order and directed that the
promotees would continue to hold the year of allotment assigned to them
in the year 1958. Jn appeal to this Court by the direct recruits the questions that fell for consideration were {i) whether the period of officiation
in a senior post by a promotees prior to the inclusion of his name in the
Select List could be taken into consi!leration without the app~oval of the
Central Government and the Union Public Service Commission as required by Rule 3(3){b); (ii) whether the State Government was authorised
to retrospectively declare a post as equivalent to a 'senior post';
(iii)
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
R. P. KHANNA V, &. A. F. ABBAS (Ray, J.)
549
whether in the circumstances of the case the order of the High Court
restoring the year 1948 as the year df allotment for the respondents was
right.
·
HELD : (i) The Select List for the promotion of the respondents was
fiually approved by the Uiiion Public Service Cornmm..ion on 26 Decem·
ber 1955. Rule 3(3)(b) of the Regulation of Seniority Rules, 1954 speaks
of approval by the Central Government in consultation with the Union
Public Service Commission of the period of the officiation prior to the
date of the inclusion of the names of the promotees in the select list.
This approval '.lS contemplated in rule 3(3) (b) is a specific.approval and
is directed to the particular matter mentioned therein as to whetber there
is approval of the period of officia

## Text

548
R. P. KHANNA & ORS.
v.
S.A.F. ABBAS & ORS. ETC.
February 22, 1972
[S. M. S!KRI, C.J., A. N. RAY AND M. H. BEG, JJ.]
ltidian Administrative Service (Regulation of Seniority) Rules 1954,
Rule 3(3) (b)-Year of allotment of promotee--Officiation in senior post
prior to inclusion of promotee's name in Select List can be taken into
consjderation only after approval by Central Government
and
Union
Public Service
Commission-Post held by promotee
may be declared
equivc.:lent to senior post rettrospectively.
Rule 3(3){b) of the Indian Administrative Service (Regulation of
Senicnty) Rules 1954 laid down in its main part that tlr. year of allotment of an officer who was appointed to the service by promotion shall
TM' the year of allotment of the junior-most among the officers who entered th: service by direct recruitment who
offici~ted continuously in a
senior post from a date earlier than the date of commencement of such
officiation by the former. The second proviso to the rule laid d~wn that
a promotee shall he deemed to have officiated dpntinuously in a senior
post prior to the date of inclusion of his name in the Select List prepared
in accordance with ·the requirements of the lndi':ln Adniinistrative Service
{Appointment by Promotion) Regulations, if the period of such officiation prior to that date was approved by the Central Government in consultation with the Union Public Service Commission. The appellants became members of the Indian Administrative Service in the years 1949 and
1950 by direct recruitm_ent.
The respondents were initially recruited to
the executive branch of the Bihar State Civil Service and were subsequently in the years 1955 and 1956 promoted to the Indian Administrative Service. The Government of India on 3 September 1958 allotted to
the respondents the year 1948 and placed them below the junior most
amongst the direct recruits of the 1948 allotment in purported compliance
with Rule 3 ( 3 )(b) aforesaid.
The appellants thereupon made a repreSentation to the Union Government as a result Of which the Union Government by order dated 20 September 1967 revised the seniority of the
promotees and allotted to some of the promotees the year 1950 and to
others the year 1952. In making this order the Government of India
agreed with the Ministry of Law in its view that rule 2{g) of the Seniority
Rules did not perm.it retrospective declaration of a post as equivalent to a
senior post within the meaning of Rule 3(3){b) as had been done by the
State Government in the ca~e, of the respondents. The respondents challenged the Union Government's order dated 20 September 1967 in the
High Court.
That Court quashed the said order and directed that the
promotees would continue to hold the year of allotment assigned to them
in the year 1958. Jn appeal to this Court by the direct recruits the questions that fell for consideration were {i) whether the period of officiation
in a senior post by a promotees prior to the inclusion of his name in the
Select List could be taken into consi!leration without the app~oval of the
Central Government and the Union Public Service Commission as required by Rule 3(3){b); (ii) whether the State Government was authorised
to retrospectively declare a post as equivalent to a 'senior post';
(iii)
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
R. P. KHANNA V, &. A. F. ABBAS (Ray, J.)
549
whether in the circumstances of the case the order of the High Court
restoring the year 1948 as the year df allotment for the respondents was
right.
·
HELD : (i) The Select List for the promotion of the respondents was
fiually approved by the Uiiion Public Service Cornmm..ion on 26 Decem·
ber 1955. Rule 3(3)(b) of the Regulation of Seniority Rules, 1954 speaks
of approval by the Central Government in consultation with the Union
Public Service Commission of the period of the officiation prior to the
date of the inclusion of the names of the promotees in the select list.
This approval '.lS contemplated in rule 3(3) (b) is a specific.approval and
is directed to the particular matter mentioned therein as to whetber there
is approval of the period of officiation prior to the inclusion of tne names
in the selec~ list.
On the materials in the pre,.,nt appeals it could not
be held that the Central Government gave any approval in consultation
with lhe Union Public Service Commission within the meaning of rule
3(3)(b) so as to enable the promotees to have the benefit of the period
of officiation prior to the date of the inclusion of lheir names in
the
select list. [556H-557CJ
D. R. Nim, /.P.S. v. Union of India, [1967] 2 S.C.R. 325 and State
of Oris.a & Anr. v. B. K, MohapMra, ·L1970] l S.C.R. 266, opplied.
(ii) The contention on behalf of the direct recruits that it is not open
to the State to make a retrospective declaration with regard to posts be·
ing 1nade equivalent to senior posts was, however, unacceptable.
(Reaw
sons discussed.)
The State Government has power to make such a retros·
pective declaration. The order of the Union Government dated 20 Sep·
tember 196 7 which directed the years of allotment on the basis that there
could not be any rctr_pspcctive declaration Of equ·ivalent i;ost could
not
be sustained. [557C-559HJ
(iii) The High Court directed that the promotees must continue to
hold ranks as assigned to them in
the year 1958. This order of
the
High Court must be set aside for the reason that the year of allotment must
now be determined by the approval of the Central Government in consultation with the Union Public Service Commission. [560AJ
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 565 and
1470 to 1474 ol 1970.
·
Appeals trom the judgment and order dated November 7, 1969
of the Patna High Court in Civil Writ Jurisdiction Cases Nos. 853,
854 and 877 to 880 of 1968.
Basudeo Prasad, R. B. Datar and S. N. Prasad, for the appellan!S (in all the appeals).
Lal Narain Sinha, Advocate-General for the .State of B!har,
C. K. Daphtary and U. P. Singh, for responderii No. 4 (in C.A.
No. 565 of 1970), respondent No. 2 (in C.A. No. 1473 of 1970)
and respondent No. 3 (in C.As. Nos. 1470 to 1472 and 1474 of
1970).
M. C. Chagla, Gobind Das and S. P. Naypr, for.respondent
No. 3 (iin: C.As. NoS. 565 and 1473 of 1970) and respondent.No.
2 (in C.As. Nos. 1470 to 1472 and 1474 oi 1970).
7-L1031 Sup.Cl/72
550
SUPREME COIJRT REPORTS
(1972] 3 S.C.R.
A
C. K. Daphtary, S. C. Agarwal, R. K. Garg and V. I. Francis,
for respondent No. 1 (in C.A. No. 14 70 of 1970).
S. C. Agarwal, R. K. Garg and V. I. Francis, for respondents
Nos. 1 and 2 (in C.A. No. 565 of 1970) aind respondent No. 1
(in C.As. Nos. 1471to1474 of 1970).
The Judgment of the Court was delivered by
Ray, J.-These six appeals are by certiificate from the judgment dated 7 November, 1969 of the High Court at Patria quashlng
the order of the Government of India dated 20 September, 1967,
and directing that the respondents must continue to hold rank as
assigned to them in 1958.
B
c
The appellants and the respondents are now members of the
lndian Administrative Service. For the sake of brevity the appellants can be described as direct recruits and the respondents as
promotees.
The direct recruits were appointed to the Indian
Administrative Service in the years 1949 and 1950 as a result of
competitive examination held for nicruitment of candidates to that D
Service.
The promotees were initially recruited to the executive
branch of the Bihar Stiate Civil Service and were subsequently in
the years 1955 and 1956 promoted to the Indian Administrative
Service.
The controversy i!I the present appeals is as to the seniority E
between the direct recruits and the promotees und.er the Indian
Administrative Service (Regulation 9f Seniority) Rules, 1954.
The Government of India on 3 September, 1958 allotted to the
promotees the year 1948 and placed them below the junior most
amongst the direct recruits of the 1948 allotment.
I
The direct recruits thereafter made representation against the
decision of the Government of India. Eventually, on 13 January,
1965 the State of Bihar forwarded the representation of the direct
recruits to the Government of India against the decision made by
the Government of India in the year 1958. On 4 January, 1966 ·
F
the Government of India took a tentative decision to allow the
repreSentation of the direct recruits on !lie ground that the previous
G
· decision was on wrong facts and on wrong interpretation.
On 14 April, 1967 the State of Bihar represented to the
Government of India to reject the representation of the direct recruits on the ground that the facts alleged by the direct recruits
were wrong.
On 20 September, 1967 the Government of India
H
however allowed the representation of the direct recruits and revised the seniority of the promotees and allotted to some of the
promotees the year 1950 and to some of the promotees the year
B
D
E
F
R. P. KHANNA V, S. A. F. ABBAS (Ray, J.)
551
1952 as mentioned in the letter of the Government of lndia dated
20 September, 1967 set out hereunder:-
"The matter was further examined in consultation
with the Ministry of Law, who have reiterated their earlier
advice and said that rule 2(g) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 does
not permit retro-!'ctive declaration of a post equivalent
to a senior post of the I.As.-
The declaration made by
the State Government in the presen~ case cannot have retrospective operation. It will have prospective operation.
The Government of India have therefore decided to revise the seniority of the officers concerned. It will
appear from the attached statement that the relevant
dates for the purpQ.Ses of fixation of seniority will be 26
December, 1955 in the case of S/Shri S. C. Mishra,
S. A. F. Abbas, R. S. Manda!, S. K. Sinha and S. K.
Chakravarty; 1 February, 1956 in the case of Shri S.
Sahay and 17 October, 1956 in the case of S/Shri
Ramanand Sinha, Anwar Karim, R. C. Sinha, S. K.
Ghosh and M. Alam. As Shri M. K. Mukherjee the
seniormost regular recruit of 1950 batch started officiating continuously in senior posts with effect from 2 May,
1955 ,a date earlier than the relevant dates of S/Shri
S. C. Mishra, S. A. F. Abbas, R. S. Manda!, S. K. Sinha,
S. K. Chakravarty, N. P. Sinha and S. Sahay, these
officers may be re-!tllotted to the year 1950 and may be
placed before Shri S. D. Prasad (RR-1950) and above
Shri P. S. Appu (RR-1951).
Shri N. Nagamani, the
seniormost regular recruit of 1952 batch started officiating continuously in senior posts earlier than the relevant
dates of S / Shri Raman and Sinha, A'.nwar Karim, R. C.
Sinha, S. K. Ghosh and M. Alam. These officers may
be allotted to the year 1952 and may be placed below
Shri K. K. Srivastava (RR-1952) and above Shri R. B.
Lal (SCS,SR-1952)".
The promotees impe<1ched the Government of India MemoranG dum dated 20 September, 1967 principally on the ground that the
Government of India. was wrong in holding th!'t it was not competent to the St:ate of Bihar to make a retrospective declaration of
a post as equivalent to a cadre iiost. The promotees succeeded in
the High Court.
The High Court quashed the order dated 20
September 1967 and directed that the promotees would continue
to hold th~ year of allotment assigned to them in the year 1958.
H
The Indian , Administrative Service (Regulation of Seniority)
Rules, 1954 formed the bone of contention between the direct
552
SUPREME COURT REPORTS
[1972] 3 S.C.R.
r~ruits and the promotees. In order to appreciate the rival content1on.s refere!1ce may be made to the origin of the Indian Adminis-!
trative Service and the relevant rules and regulations in that behalf.
The origin of the Indian Administrative Service is to be found
in .the Memorandum of Agreement dated 21 October
1946
between the Government of India and the Government of the then
Provinces. 1·The Indian Administrative Service came to be consti·
tuted under the Agreement with effect from 21 Ociober, 1946.
Recruitment to the Indian Administrative Service was to be by
direct recruitment or by promotion of members of a Provincial
Civil Service. The Indian Civil Administrative Cadre Rules, 1950
specified in the Schedule thereto for each Province the strength of
the cadre and the number and character of the posts. In 1951
the All-India Services Act came into existence. Tne All-India
Service was defined t9 mean the Indian Administrative Service or
the Service known as the Indian Police Service. Later on section
2(a) was introduced into the 1951 Act to include certain other
specified Services as All India Services.
Section 3 of the All-India Services Act, 1951 conferred power
on the Cent;ral Government after consultation with the Governments of the States con~erned to make rules for the regulation of
recruitment and the conditions of service of persons appointed to
All-India Service. That is how the Indian Administrative Service
(Cadre) Rules,d 954 came into exis~nce repealing the Indian Civil
Administrativ~ Cadre Rules, 1950. So did the Indian Administrative Service (Recruitment) Rules, 1954 and the Indian Administrative Service (Regulation of Seniority) Rules, 1954.
Two other
Regulations which are material for the purposes of the present
appeals are the Indian fl.dministrative Service (Appointment by
Promotion) Regulations, 1955 and the Indian Administrative
Service (Fixation of Ca.dre Strength) Regulations,
1955.
The
Promotion Regulations, 1955 were in exercise of the rule making
power under rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954. The Fixation of Cadre Strength Regulations,
1955 were made in exercise of the rule making power conferred
on the Central Government by rule 4 of the Indian Administrative
Service (Cadre) Rules.
The 1954 Cadre Rules defined cadre post
to mean any of the posts specified in item 1 of the Schedule to the
Indian Administrative Service (Fixation of Cadre Strength) Regulations. The Cadre Strength Regulations, 1955 set out the strength
and the composition of the cadre in relation to the different States
including Bihar. For the State of Bihar there. are 8 items.
The first
item relates to senior posts under the State Government which
are 103 in number and item 2 relates to senior posts under the
Central Government which are 41 in number. Of these 144 posts
36 are to be filled by promotion and sclec~on in accordance with
B
c
D
E
F
G
H
R. P. KHANNA v. S. A. F. ABBAS (Ray, J.)
553
A
rule 8 of the Recruitment Rules, 1954. The other 108 posts are
to be filled by direct recruitment. Items 5, 6, 7 and 8 in the Bihar
Cadre Strength relate to .other posts with which the present appeals
are not concerned. Of the total authorised strength of 211 cadre
posts in the State of Bihar 175 are direct recruitment posts and 36
are promotion posts.
The Regulation of Seniority Rules, 1954
.B
defines senior post meaning a post included and specified under
item 1 of the cadre of each State in the Schedule to the Fixation of
Cadre Strength Regulations •. 1955. The 1954 Recruitment Rules
speak of recruitment to the Service inter alia (a) by a competitive
examinallion, and (b) by promotion. The other two modes of recruitment by selection fmm emergency commissioned officers and
c from persons who hold any substantive capacity gazetted post and
who are not members of the State Civil Service are not relevant for
the purpose of the present appeals.
Rule 7 of the Recruitment
Rules, 1954 relates to recruitment by competitive examination and
rule 8 relates to recruitment by promotion or selection. The Promotion Regulations, 1955 prescribed the conditions of eligibility
D
for promot,ion.
E
F
G
H
In the background of these Rules and Regulations it follows
that members of a State Civil Service are promoted to the Indian
Administrative Service. The present appeals relate to promotees
after the abovementioned Rules and Regulations came into existence.
The question of ireniority of promotees vis>-a-vis direct recruits
is covered by rule 3(3)(b) of the Indian Administrative Service
(Regulation of Seniority) Rules, 1954 which is set out hereunder :-
"The year of allotment of an officer appointed
to the Service after the commencement of these rules,
shall be:-
(b) where the officer is appointed to the Service by
promotion in accordarice with sub-rule ( 1) of rule 8 of
the Recruitment Rules, the year of allotment of the
junior-most among the officers recruited to the Service in
accordance with rule 7 of these rules who officiated continuously in a senior post from a date earlier than the date
of commencement of such officiating by the former :
Provided that the year of allotment of an officer
appointed to the Service in accordance with sub-rule (I)
of rule 8 of the Recruitment Rules who started officiating
continuously in a senior post from a da~e earlier than ~he
date on which any of t!he officers recrmted l'O the service
in accordance with rule 7 of those rules so started officiating, shall be determined ad hoc by the Central
554
SUPREME COURT llEPORTS
L 1972] 3 S.C.R.
Government i:n consultation with the State Governmen,
concerned.
Provided further that an officer appointed to the
Service after the commencement of these rules in accordance with sub-rule (1) of rule 8 of the Recruitment Rules
shall be deemed to hav• officiated continuously in a
senior post prior to the date of the inclusion of his name
in 'the Seleco List prepared in acdordance wit'h the requirements of the
Indian Administrative Service
(Appointment bY. Promotion) Regtilations framed under
sub-rule (1) of rule 8 of the Recruitment Rules, if the
period of such officiation prior to that date is approved
by the Central Government in consultation with the
Com.mission".
There are two explanations which need not be set out because ·
they are not relevant for the purposes of the present appeals.
The scheme of the Indian Administrative Service (Regulation ·
B
c
of Seniority) Rules, 1954 is that every officer shall be assigned a
Ii)
year of al!Ollment in accordance with the provisions contained
therein.
The present appeals raise the question of the year of
allotment of the promotees who were promoted to the Service,
after the commencement of the Rules, in the years 1955 and 1956.
Therefore, rule 3(3 ){b) applies to the case of 1ib.e promotees vis-avis the direct recruits.
The Indian Police Service (Regulation of Seniority) Rules, 1954
is the counter-part of the Indian Administrative Service (Regulation ()f Seniority) Rules, 1954. Rule 3(3)(b) of the Indian Police
Service (RegulatiOn of Seniority) Rules is in identical language
with rule 3(3)(b) of the Indian Administrative Service (Regulation
of Seniority) Rules.
Rule 3(3 )(b) of the Indian Police Service
(Regulation of Seniority) Rules came up for consideration before
this Court in two cases.
These are the decisions in D. R. Nim,
l.P.S. v. Union of India(') and State of Orissa & Anr. v. B. K.
Mahapatra(').
Rule 3(3)(b) which is in common language in
the Rules of both the Services and the two provisos lay down the
mode of regulation of seniority of the promotees vis-a-vis the
direct recruits.
Promotees will be given the year of allotment of
E
F
G
the junior-most among direct recruits who officiated in a senior
post from a date earlier than the date of commencement of such
officiation by a promotee. The first proviso regulates the seniority
between direct recruits and promotees who started officiating continuously in a senior post from a date e~r!ier than the . ~te on
which the direct recruits so started officia#ing by ~~1bmbg tthhe
JI
mode of regulation of seniority by ad hoc determmatton Y
e
Central Government iμ consultation with the State Government.
(I) [1967] 2 S.C.R. 325.
(2) [1970] 1 S.C.R. 255.
A
B
c
D
E
F
, ll. P. KHANNA V. S. A. F. ABBAS (Ray, J.)
555
The effect of the second proviso was stated by this Court in
Nim's(') case to be this : "The second proviso limits the operation
of the first proviso by diyiding 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. on!)' be counted if such period is approved by the Central Government in consultation with the Union Public Service
Commission".
The rulings of this ~ourt hold that a promotee can obtain the
advantage of officiation continuously in a senior post prior to the
inclusion of the name in the Select List if the period of such officiation is approved by the Central Government in consultation
with the Union Public Service Commission. The officiation in a
senior post is one of the indispensable ingredients in the application
of rule 3(3)(b). A senior post as defined -in the Regulation of
Seniority Rules means a post included and specified under item 1
of the cadre of the State or any post declared equivalent thereto by
the State Government concerned. It may be stated here that the
definition of senior post underwent change in the year 1967 by
notification No. 27/47/64-AIS(IIl)-A dated 17 April, 1967 and
the new definition of senior post came into effect on 22. April, 1967.
The present appeals are governed by the definition of senior post
prior to the year 1967. The important words in the relevant deli•
nition of the senior post are 'any post declared equivalent thereto
by the State Government'.
The memorandum dafud 20 September, 1967 Was impeached
by the promotees on the ground that the State Government could
not make a retrospective declaration with regard to malting posts
equivalent to senior pQSts.
Counsel on behalf of direct recruits
contended that the letter dated 9 April, 1958 from the Chief Secretary to the Government of Bihar to the Secretary to the Government of India, Ministry of Home Affairs could not amount to a
declaration of posts as equivalent to senior posts and further '1Jiat
there could not be any retrospective· declaration of making posts
equivalent to senior posts.
Counsel on behalf of the Union contended that the declaration
contemplated with regard to senior posts must be a formal order
G
and it was not open to the State to make a retro-active declaration
· because the rule contemplated approval of such officiation in consultation with the Commission. In other words, it was said that
the State would first have to make a declaration with regard to
making posts equivalent· to senior posts and thereaft!er approval of
such officiation would be given by the State Government in consulH
tation with the Public Service Commission.
Criticism was made by counsel for the direct recruits that there
was no proper Select List and Rao's letter dated 9 July, 1958 and
(I) [1970] 2 S.C.R 325.
556
SUPREME COURT REPORTS
(1972] 3 S.C.R.
the reply thereto dated 3 September, 1958 by the Deputy Secretary
to t;he Government of India wer!l contended not to amount to
approval by the Central Government in consultation with the
Union Public Service Commission of the period of officiation prior
to the date of inclusion of the names of promotees in the Select List.
There was an ad hoc list in the year 1954 and the ad hoc list is
referred to in the Chief Secretary's letter with the letter 'A'. The
select list was prepared in the year 1955 and is referred to in the
Chief Secretary's letter with the letter ''B'. In the Chief Secretary's
letter the date of officiation of the promotees was proposed by the
State Government to be 28 December, 1954. The date of officiation in the senior scale by the promotees as agreed to by the
Government of India was shown in that letter as some time in the
month of October, 1955 with regard to three promotees and in the
month of December, 1955 with regard to 1ihe fourth promotee.
With regard to the other three promotees no date was shown as
having been agreed to l:>Y the Government of India. The State
Government proposed with regard to some of the promotees that
they should be allowed the benefit of officiation from the time of
the inclusion of their names in the ad hoc list in the year 1954.
The Deputy. Secretary tci the GovernmenQ of India by letter dated
3 September, 1958 accepted the recommendation of the State
Government with re2:ard to the promotees and allotted to them
the year 1948 and placed the promotees below Shri B. S. Srivastava
who was the junior most among direct recruits who had started
officiating continuously in a senior p0st earlier than 28 December,
1954. The impeached ~ircular dated 20 September, 1967 did not
allow retrospective declaration of equivalent posts and therefore
the year of allotment was no longer 1948. The High Court held
that there could be retrospective declaration and thus in effect restored 1948 as the year of allotment.
The Government of India by the letter dated 20 September,
1967 which is impeached by the promotees changed the. year of
allotment of the promotees from 1948 to 1950 with regard to the
first three promotee9 and to the year 1951 with regard to the
fourth promotee and the year 1952 with regard to the other two
promotees and placed these promofees below the direct recruits of
those batches who started officiating continuously in a senior post
earlier than the date of such officiation bv the promotees.
On these materials it appears that the ad hoc list was prepared
with the approval of the Union Public Service Commission on 28
December, 1954 and the Select List was finally approved by the
Union Public Service Commission on 26 December, 1955.
The
select list was the list prepared for appointment of the promotees
by promotion to the Indian Administrative Ser.ice. Rule 3(3)(b)
1f the Regulation of Seniority Rules, 1954 speaks of approval by
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R. P. KHANNA V. S. A. F, ABBAS (Ray, J.)
557
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the Central Governm_ent in consultation with the Union Public
Service Commission of the period of officiation pr(or to the date
of ~e inclusion of the names of the promotees in the select list.
This .app:oval as contemplated in rule 3(3)(b.) is-a specific approval
and 1s drrected to the par!Jcular matter mentioned therein as to
whether there is approval of the period of officiation prior to the
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inclusion of the names in the select list. On the materials in the
present appeals we are unable to hold that the Central Government
gave any approval in consultation with the Union Public Service
Commission within the meaning of rule 3(3) (b) so as to enable
the promotees the benefit of the period of officiation prior to the
date of the inclusion of their names in the select list.
D
The contention on behalf of the direct recruits that it is not
open to the State -to make a retrospective declaration with regard to
posts being made equivalent to senior posts is unacceptable. From
the point of view of workability of the rule as well as the circumstances and the COl)ditions of service ·it may not always be practicable to make such prospective declaration.
It is only when the
Government has found that it is necessary or desirable to declare
such posts equivalent to senior posts that the Government will do
so. That will be usually possible after the Government will have
considered several factors, namely, finance, structure of the service,
the personnel fit' for undertaking the post. Normally, the promotees obtain promotion from the State Civil Service after long
E
service.
That is why rule 3(3)(b) of the Regulation of Seniority
Rules is designed to arrive at a fair adjustment of the competing
claims of the direct recruits and the promotees. To hold that a
promotee could not get the benefit of officiation unless the post was
declared as equivalent to a senior cadre post before the promotee
was appointed to officiate might defeat the policy of the GovernF
ment. A promot_ee may be officiating continuously for a long
period and his name may be included in the select list after some
time.
Again a person who officiates continuously for long time
may thereafter be not included in the select list. · Such a person
rnl~ht deprive a person who would otherwise be found suitable for
appointment by w:omotion after similar officiation in a sil)lilar post.
'It is only when the State Government finds that it is desirable to
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declare the post equivalent to a senior post inter alia by reason of
the efficiency of the person which has entitled him to promotion
that the consequential necessity arises for giving him that senior
post by requisite declaration of a senior _ post.
A retrospective
declaration therefore is in the scheme of things practical as well as
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reasonable.
·
The basic idea of declaration of post as equivalent to a senior
post is that it is treated as a post of equal rank and responsibility.
'Ruic 3(3)(b) is designed to strike a balance between conflicting
558
SUPREME COURT REPORTS
[1972] 3 S.C.R.
claims. When a promotee with the background of a long conti-
"'
nuous officiation gets promotion it is in the fitness of things that
the pe~od of .such officiation is not lost to him.
The necessary
check 1s supplied by approval by the Central Government in consultation with the Commission.
There will be two sources charged
with the ft'.sponsibility of approval of the period of officiation prior
to the inclusion of the name in the select list.
"B
A retrospective declaration that a post is equivalent to a senior
post really amounts to declaration of an existing fact. . It is that
tho person who has officiated continuously for a long time i~ allowed the benefit of a senior post prior to the appointment by promotion of such officer to the Cadre of the Indian Administrative
Service. Ordinarily, under Cadre Rules a non-cadre officer cannot
hold a cadre post excepting for short time of three months and if
it is for a longer period not without approval by the Central
Government. Therefore, there is no occasion for declaration by
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the State Government of a non-cadre post as equivalent to a cadre
post. The question of declaration arises only for the purpose of
giving the promotee the benefit of the period of officiation prior ))
to promotion. The use of the word 'deemed' in rule 3(3)(b) of the
Regulation of Seniority Rules indicates that the Government has
the power to make a retrospective declaration because it Js only
after promotion that there is any occasion to consider whether the
period of offication prior to promotion will be counted for purposes
of seniority.
The harmonious construction of the definition of 'senior post'
occurring in the 1954 Cadre Rules along with rule 3(3)(b) of
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the Regulation of Seniority Rules is that promotee will by a
legal fiction obtain advantage of the period of officiation first by
the declaration and second bv the approval of the Central Government in consultation with the Union Public Service Commission.
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It is not the declaration but the approval which introduces the legal
fiction.
There is an apprehension that retrospective declaration might
cause mischief in the sense that it would enable a promotee to
obtain seniority as against a direct recruit. The apprehension is
unmerited because promotees obtain promotion after long service
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and that is why the year of allotment of promotee is below the
junior most among direct recruits who continuously officiated in
a senior post from a date earlier than the date of commencement
of such officiation by the promotee. Again, there may .be a salutary reason to defend a retrospective declaration because a prospective declaration by the State Government may not be acceptable
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to the Central Government by not giving approval of the period of
officiation prior to the date of inclusion of the names in the select
list. There is no time limit fixed with regard to approval by the
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559
Central Government.
Therefore, . a retrospective declaration will
be under the check of approval by the Central Government and
such approval will always act as a. safecty valve against any abuse
or mischief of retospective declaration.
It is important to notice that' the defuutlon of 'Senior post' has
undergone change in the year 1967. The amendment of the definition has brushed ~way the necessity of any declaration by the
Government of a post being made equivalent to senior cadre post.
also deleted the second nroviso to rule 3(3)(b) of the Regulation of
Seniority Rules. In place of the second proviso a new explanation
has been added. The explanation states ,that in respect of a promotee the period of continuous officiation in a senior post shall, for
the purposes of determination of his seniority, count only from the·
date of the inclusion of l)is name in the Select List, or from the date
of his officiating appointment to such senior post whichever is later;
The declaration of a .P<>St to be equivalent to a senior post and the
approval of the Government of India in consultation with the
Commiss!on fur alk>\vjng a promotee the benefit of the period of
continuous officiation prior to the inclusion of his nam11 in the
Select List are all obsolete now. One of the reasons for the changes
may be that a prospective declaration might give rise to show of
preference or favour to some chosen persons who might not turn
out to be suitable person to fill that post.
Again, the disadvan-.
tage of prospective declaration may be that the Government might
be saddled with the problem of a declaration in anticipation and
later finding out the absence of necessity of such a post or even of
not finding a suitable person for occupying such a post. The
soundness of a retrospective declaration ·rests on the consideration
that not only will the promotee by that time have been tried and
tested in that post but also his promotion would indicate the benefit of the period of continuous officiation which earned promotion
for him. To deny a retrospective declaration would in the case of
promotion· of persons from State Civil Service deprive them of the
opportunity of enjoyment of the period. of officiation.'
For these reasons, we uphold the judgment of the High Court
that the memorandum dated 20 September, 1967 which stated that
the State Government could not retrospectively declare a post to
be equivalent to a senior post was bad.
The State Government
has power to make such a retrospective declaration. The order
dated 20 September, 1967 which also directed the years of allotment on the basis that there could not be any retrospective declaration of equivalent post cannot be sustained.
The High Court however further directed that the promotees
must continue to hold ranks as assigned to them in the year 1958".
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SUPREME COURT REPORTS
[1972] 3 S.C.R.
This order of the High Court is to be set aside, for the reason that
A
the year of allotment will now have to be determined by the approval of the Central Government in consultation with the Union
Public Service Commission.
The appeals are therefore dismissed in so far as they relate to
quashing of the order of the Central Government dated 20 SeptemB
ber, 1967. The appeals are allowed setting aside the order of the
High Court that the promotees would continue to hold ranks as
assigned to them in the year 1958. In .the facts and circumstances
of the case parties will pay and bear their own costs.
G.C.
Appeals allowed.