# STATE OF ORISSA & ANR v. B. K. MOHAPATRA April 11, 1_969

- **Citation:** [1970] 1 S.C.R. 255
- **Court:** Supreme Court of India
- **Decided:** 1970
- **Case number:** Writ Petition O.J.C. No. 156 of 1965
- **Bench:** S. M. _S_Ikri, R S. Bachawat, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-anr-v-b-k-mohapatra-april-11-1-969-4748
- **Pages:** 13

## Headnote

255
The lrtdian Police Service (Regulation of
Seniority) Rules,
1954,
r. 3(3) (b), second provisrr--Select List, Meaning of-Whether secnnd
proviso goi·erns main -ntle or first proviso--fVhether choice of date for
fixing seniorit,v arbitrary and discriminatory.
_
.
In pursuance. of an agreement dated October 21, 1946, bet\veen the
Central and Provincial Governments regarding the constitution
of
an
Indian Police Service, certain draft 'rules were framed and the appellant
State constituted a Committee under the draft rules for preparing a list
of State-Police Officers who are considered suitable _for promotion. The
Committee prepared: a list of officers 'fit 1for trial to promotion po5ts' in the
· l.P.S. and the list was approved by the U.P.S.C. on September 6, 1951. On
October 29, 1951, the All India Services Act, 1951, came into fon:e and .
the Indian Police ~ervice (Regulation of Seniority) Rules, 1954 and the
Indian Police Service (Appointment. by Promotion) ~Regulation, 1955,
were framed under the Act; Rule 3(3){b) of the Seniority Rules provides
that the yea'r of allotment of an officer appointed to the service by promotion shall be the year of allotment of the junior most direct-recruit who
officiated continuously in a senic;tr post from a date earlier than the. Jate
of comn1encement of continuous of]iciatio11 by the promotee. The second
proviso to the rule provides that an officer shall be deemed to have ofliciated continuously in a senior post prior to the date of the inclusion of his
name in the Select List if the period of such officiation was approved by
the Central Government.
·
The respondent was appointed as a Dy. S.P. in the appellant-Sta~ in
1947. In 1950, he 'Vas confirmed as D.S.P. and be was officiating conti-
', nuously from 1951 to 1957 in senior officiating appointments of the l.P.S.
His name was included in the List of officers considered suitable for proniotion v.:hich \Vas approved by·the U.P.S.C. on September 6, 1951, and in
similar 'fit for trial' lists prepared for the years
1952 and 1954. On
November 10, 1955, the Selection Committee~ set up in accordance withRe.gufation 3 of the Promotion Regulation. selected and -recommended
officers for officiating appointment in the I.P .S. and the respondent's name
was included in that list also. That list was approved by the U.P.S.C. on·
February 10, 1956.
On December I, 1956, the Government of India
consulted the U.P.S.C. as to whether this list of November 10, 1955 coutd
be treated as the- 'Select List' within the meaning of the second proviso to ·
'r. 3(3)(b) of the Seniority Rules.
The U.P.S.C. wrote back sayini; that
. it could not be so considered, because, the Committee -only recommended
- officers. who were considered suitable to .hold l.P.S. posts in an offeciating
capGcit;~ and not for appointment to I.P.S.
The Selection Committee of
the appellant-State, therefore, on February 15, 1957, prepared a 'Sdect
List' for substantive posts in the -1.P.S. and-- included the respondent's
name in it. - The Central Gove'rnmcnt decided that the officiation in. the
senior posts of the officers included in the 'fit for trial' lists could~ not be ~
counted for the pnrpose
of determining the seniority of such
officers
uncier the Seniority Rules. On July 10, 1957 the respondent was appointed to the 1.P.S., and on July 22, 1958, the Central Government wrote
to the appellant-State that the approved continuous. officiation
of-~ the
256
SUPRE~IE COURT REPORTS
· ..
(1970]1 S.C.R.
respondent for seniority, ~ommenced from 'February 10, 1956 the date
on which the U.P.S.C. approved the •fit for continuous officiation Jist'
containing the respondent's name, and, on that basis, the respondent \\·as
a11otted the year 1951 as his year of allotment for purposes of seniority
under 'r. 3 (3 )(b) of the Seniority Rules.
The_ respondent filed a writ petition in the High Court contending
that: (1) Rule 3(3)(b) is not governed by its second .proviso, that bis
case was governed by the mai

## Text

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STATE OF ORISSA & ANR.
v.
B. K. MOHAPATRA
April 11, 1_969
[S. M. _S_IKRI, R
S. BACHAWAT AND K. S. HEGDE, JJ.]
255
The lrtdian Police Service (Regulation of
Seniority) Rules,
1954,
r. 3(3) (b), second provisrr--Select List, Meaning of-Whether secnnd
proviso goi·erns main -ntle or first proviso--fVhether choice of date for
fixing seniorit,v arbitrary and discriminatory.
_
.
In pursuance. of an agreement dated October 21, 1946, bet\veen the
Central and Provincial Governments regarding the constitution
of
an
Indian Police Service, certain draft 'rules were framed and the appellant
State constituted a Committee under the draft rules for preparing a list
of State-Police Officers who are considered suitable _for promotion. The
Committee prepared: a list of officers 'fit 1for trial to promotion po5ts' in the
· l.P.S. and the list was approved by the U.P.S.C. on September 6, 1951. On
October 29, 1951, the All India Services Act, 1951, came into fon:e and .
the Indian Police ~ervice (Regulation of Seniority) Rules, 1954 and the
Indian Police Service (Appointment. by Promotion) ~Regulation, 1955,
were framed under the Act; Rule 3(3){b) of the Seniority Rules provides
that the yea'r of allotment of an officer appointed to the service by promotion shall be the year of allotment of the junior most direct-recruit who
officiated continuously in a senic;tr post from a date earlier than the. Jate
of comn1encement of continuous of]iciatio11 by the promotee. The second
proviso to the rule provides that an officer shall be deemed to have ofliciated continuously in a senior post prior to the date of the inclusion of his
name in the Select List if the period of such officiation was approved by
the Central Government.
·
The respondent was appointed as a Dy. S.P. in the appellant-Sta~ in
1947. In 1950, he 'Vas confirmed as D.S.P. and be was officiating conti-
', nuously from 1951 to 1957 in senior officiating appointments of the l.P.S.
His name was included in the List of officers considered suitable for proniotion v.:hich \Vas approved by·the U.P.S.C. on September 6, 1951, and in
similar 'fit for trial' lists prepared for the years
1952 and 1954. On
November 10, 1955, the Selection Committee~ set up in accordance withRe.gufation 3 of the Promotion Regulation. selected and -recommended
officers for officiating appointment in the I.P .S. and the respondent's name
was included in that list also. That list was approved by the U.P.S.C. on·
February 10, 1956.
On December I, 1956, the Government of India
consulted the U.P.S.C. as to whether this list of November 10, 1955 coutd
be treated as the- 'Select List' within the meaning of the second proviso to ·
'r. 3(3)(b) of the Seniority Rules.
The U.P.S.C. wrote back sayini; that
. it could not be so considered, because, the Committee -only recommended
- officers. who were considered suitable to .hold l.P.S. posts in an offeciating
capGcit;~ and not for appointment to I.P.S.
The Selection Committee of
the appellant-State, therefore, on February 15, 1957, prepared a 'Sdect
List' for substantive posts in the -1.P.S. and-- included the respondent's
name in it. - The Central Gove'rnmcnt decided that the officiation in. the
senior posts of the officers included in the 'fit for trial' lists could~ not be ~
counted for the pnrpose
of determining the seniority of such
officers
uncier the Seniority Rules. On July 10, 1957 the respondent was appointed to the 1.P.S., and on July 22, 1958, the Central Government wrote
to the appellant-State that the approved continuous. officiation
of-~ the
256
SUPRE~IE COURT REPORTS
· ..
(1970]1 S.C.R.
respondent for seniority, ~ommenced from 'February 10, 1956 the date
on which the U.P.S.C. approved the •fit for continuous officiation Jist'
containing the respondent's name, and, on that basis, the respondent \\·as
a11otted the year 1951 as his year of allotment for purposes of seniority
under 'r. 3 (3 )(b) of the Seniority Rules.
The_ respondent filed a writ petition in the High Court contending
that: (1) Rule 3(3)(b) is not governed by its second .proviso, that bis
case was governed by the main r. 3(3)(b) and on the basis of his continuous officiation in a senior post as an officer included .in the Select List
·of the years 1952 and 1954 approved by the U.P.S.C. and accepted by the
Central Government his yea'r_- of allotment should be 1948 \vhich \\·as
the year -of aIJotment of a junior most di'rect-recruit officer ~-ho officiated
continuously in a senior post from a date earlier than the date o'f commencement of the officiation by the respondent; (2) Even if the second
proviso governed the main r. 3(3)(b) and only the list of February
· 15, 1957 was the Select· List his year of allotment should be 1948, on
the basis that his continuous officiation throughout from 1951 to 1957
\Vas / approved by the Central Government by inclusion in the approved·
lists; (3). The choice of February 10, 1956 men.tioned in - the Central
Government communication <lated July 22, 1958 was arbitrary; anll
(4) There was discrimination behveen him and another officer.
The
High Court allowed the· writ petition.
In appeal to this Court,
HELD : (I) The object of the second proviso is to cut down the
period of officiation which could .be taken into consideration under r.
3 (3) (b). Therefore, the second proviso governs r. 3(3)(b). The Promotion Regulation and the draft rules acted· upon before
the
Promotion
Regulation came -into force, show that the
ComrUittee
preparing
the·
Select Lists should think of substantive appointments in the service and
not officiating appointments. In the present case when the lists of 1951,
1952 and 1954 were prepared the names were not selected for the purpose of substantive appointment but only for the purpose of officiation.
Therefore, the •fit for trial' lists could not be deemed to be 'Select Llsts~
and hence the resoondenfs officiation \V·as not continuoul officiation of
an officer in th<: 'Select List'.
Only the List of February
15,
1957.
could be deemed to be such Se1ect List.
Though _in the Jetter of. July
22, 1958, there \\.'as a reference to a list called 'fit for continuous oITIR
ciation list', there was in fact no su:.h list and the expression referred
only to the list of November 10, · 1955, of officers for promotion in an
officiating capacity. (264 C, E; 265 A, C-D, G-266 A]
(2) Since the second proviso i;ove!rns the main r. 3(3) (b), it was
for the Central Government to approve or not to approve. the period
of officiation prior to the date of inclusion of the
re~pondent in the
Select List of February 15, 1957.
Jn the present case, the Central
Government, after applying its mind to the problem, approved the period
from February 10, 1956 to July 10, 1957; and there was no evidence to
show that the period of officiation prior to February 10, 1956, of the
respondent was approved by the Central Government.
Such aporoval
had to be accorded after the appointment to the I.P.S. (265 E-G;
266 D-E]
D. R. Nim v. Union, (1967] 2 S.C.R. 325, referred to ..
(3) The date February 10, 1956, was not arbitrarily chosen. It has
a definite relation to the question of approved
period
of offici:.ition.
:bccaue. it was on that date that the U.P.S.C. approved the inclusion of
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257
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the respondent in the list for officiating appointment for the first time
after the Promotion Regulation had come into force. [266 B-C]
( 4) The<e was no discrimination between the respondent and th~
other officer, because, the latter was appointed on June 1, 1955, after
the Seniority Rules had come into force and was governed by the first
proviso tor. 3(3)(b). [266 E-F]
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2162 of
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1968.
Appeal fr.o mthe judgment and order dated October 23, 1967
of the Orissa High Court in O.J.C. No. 156 of 1965.
Niren De, Attorney-General, Santosh Chatterjee and R. N.
Sachthey, for the appellants.
B. M. Patnaik, Vinoo Bhagat and P. C. Bhartari, for the respondent.
The Judgment of the Court was delivered by
Sikri, 1. This is an appeal by certificate granted by the High
Court of Orissa under art 133(l)(c) of the Constitution from
the judgment and order of the High Court in Writ Petition O.J.C.
No. 156 of 1965 filed by B. K. Mohapatra, I.P.S., hereinafter
referred to as the petitioner, against the State of Orissa and the
Union of India. In this petition the petitioner had prayed for a
writ of mandamus directing the respondents to fix the petitioner's
seniority and year of allotment as 1948 instead,of the year 1951
fixed by the Government of India. . The High Court quashed the
order of the Union Govermnent, dated July 22, 1958, and directed the Central Govermnent to fix the year of allotment and
seniority of the petitioner in accordance with its judgme,.t. · and
the law.
In order fo appreciate the points raised before us it is necessary to set out the facts somewhat in detail. The petitioner was
appointed as Deputy Superintendent of Police in the State ef
Orissa on January 1, 1947. On January 1, 1950, he was confirmed as D.S.P. In the meantime an agreement had been arrived
at between the Central Government and some State Governments,
including Orissa, regarding the constitution of an Indian Police
Service.
This agreement is printed as annexure to the Indian
Police Cadre Rules, 1950. This agreement provided for various
matters such as the strength, including both the number and
character of posts of the Indian Police Service, the method of
receruitment to the Service, framing of rules regarding conditions
of service, the penalties which could be imposed, etc. We are concerned, in particular, with para 2 ( e) and para 7 which are as
undar :
258
SUPREME COURT REPORTS
(1970] 1 s.c.R.
"2 ( e) The rules regulating the promotion of ProA -
vincial Police Service Officers to the
Indian
Police
Service shall be framed by the Provi.icial Government
concerned in consultation with the Federal Public Service Commission and shall provide that no Provincial
Police Service Officer shall be appointed to hold a
superior post included in the Schedule for a period of
B
more than one year unless the Federal Public Service
Commission have certified that the officer is in every
way fit to hold a superior post in the Indian Police
Service.
7. In order to ensure that the conditions of service
applicable to officers of the Indian Police Service are
as uniform as possible, rules regulating pay and other
conditions of services will be framed by the Central
Government to such extent as may be considered necessary. Provincial Governments will, however, be consulted
before the ~ules arc framed, and before they are amended in any manner.
In respect of matters not covered
by the said rules, an officer of the Indian Police Service will be governed by such rules as may be framed
by the Government under which he is for the time being
serving and, if no such rulP,s are framed, by the rules
applicable to the Central
Service/Provincial Police
Service Class I, as the case may be."
The All India Services Act, 1951, came into force on October 29, 1951. section 3 enabled the Central Government to
make rules for the regulation of recruitmert and conditions of
service of persons appointed to an All India Service which was
defined to include, among others, the Indian Police Service. Sec1ion 4 provided :
"All rules in force
immediately before the
commencement of this Act and applicable to an All India
Service shall continue to be in force
and
shall
be
deemed to be rules made under this Act."
On April 30, 1951, the State Government wrote to
the
Secretary, Union Public Service Commission, that they proposed
to hold a meeting of the committee (to be constituted in accordance with rule 2 of the Draft Rules) sometime in June 1951
with a view to prepare a select list of officers suitable for promotion to the Indian Police Service.
The Commission was asked
to depute one of its members to preside over the said meeting in
.ccordance with rule 3 of the Draft Rules.
On September 6.
1951, the Union Public Service Commission approved the
recommendation of the above committee which met to prepare the
-select list for promotion to Indian Police Service, and agreed to
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ORISSA v . .MOHAPATRA (Sikri, J.)
259
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the select list as drawn up by the Committee. The petitioner's
name appears at No. 5 of Part II of the list which is in the follow·
ing form :
"I. List of Officers fit for confirmation in promotion
post.
B
1.
2.
3.
4.
II. List of officers fit for trial to promotion
C
posts.
1. H. P. Singh Deo
2.
3.
4.
D
5. Shri Binode Kishore Mohapatra
6. Shri Banamali Dass".
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On May 14, 1952, the petitioner was promoted as Additlonal
Superintendent of Police in the I.P.S. cadre. On August 21,
1952, his name again appeared in the list which we may call "fit
for trial list". His name also appeared in a similar list on July
12, 1954.
One of the questions which has to be decided in this case is
whether these lists can come within the expression "select Joist"
used in the second proviso in r. 3 ( 3) of the Indian Police Service
(Regulation of Seniority) Rules, 1954, hereinafter referred to as
the Seniority Rules, which came into force on September 8,
1954.
On November 10, 1955, the first meeting of the Selection
Committee set up in accordance with Regulation 3 of the Indian
Police Service (Appointment by Promotion) Regulation, 1955,
hereinafter referred to as the Promotion Regulations, was held at
Cuttack. In this meeting the Committee selected and recommended officers for officiating appointment in the I.P .S. and the
petitioner's name appeared as No. 2 in the List.
On February 10, 1956; the Union Public Service Commission approved the recommendations of the above s~lection committee. On December 1, 1956, the Government of India wrote
to the Union Public Service Commission requesting for its advice
as to whether the list prepared by the Selection Committee could
260
SUPREME COURT REPORTS
[ 1970] I S.C.R.
be treated as "Select List" as recommended by the State GovernA
ment. On January 10, 1957, the Commission replied as foUows:
"I am directed to refer to Shri S. P. Mukherjee's
letter No. 5/1/56-AIS(I), dated the 10th Dec. 1956
and to say that the Selection Committee whi~h met at
Cuttack on the 10th Nov. 1955 did not recommend
any officer for appointment to the Indian AdministraB
tive Service/Indian Police Service.
The
Committee
only recommended officers who were considered suit·
able to hold
Indian
Administrative
Service/Indian
Police Service cadre posts in an officiating capacity.
Lists of such officers are made to avoid frequent references to the Commission in making interim arrangec
ments in cadre pos;·; till cadre officers become available
and these lists can not be considered as Select Lists.
I am to su~est that the State Govt. may be advised
to place the cases of all these officers before the Selection Committee when it meets again in Orissa somt;time
in the month of Feb. 1957. for preparation of the
D
Select List."
On February 15, 1957, the Selection Committee met
and
placed the petitioner, including some others, in the "Select List"
for substantive appointment to the Indian Police Service.
The
Committee also recommended some persons for holding ~adre
posts in an officiating capacity.
E
Reiterating the view that it had already expressed en January 23, 1957, on March 27, 1957, the Commission wrote to the
Government of India stating :
"(i) that the 'fit for trial' list is intended merely in
order to avoid specific references to the Commission
F
for casual appointments to senior Indian Administrative Service/Indian Police Service Posts.
(ii) that the Commission have advised in para 2
of their letter No. F.950/55-R.Ill, dated
the 25th
Sept. 1956, that the 'fit for trial' list being not a list envisaged under the
Indian
Administrative
Semce/
G
Indian Police Service (Appointment by Promotion)
Regulations, any officiation of an officer includecl in the
'fit for trial' list cannot be taken as approved officiation
for purposes of seniority and .... "
On May 7, 1957, the Government of India wrote to
the
State Governments and observed :
H
"The question whether the officiation in senior posts
of the State Civil Service/State Police Officer after in-
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261
clusion of their names in the ~fit for trial list' should
or should not be taken into account for the purpose of
seniority, on their subsequent
appointment
to the.
Indian Administrative Service, Indian Police Service,
has been engaging the attention of the Government of
India for some time past.
As the State Governments
are. aware, the Indian Administrative/Police Service
(Appointment by Promotion) Regulations do not pro·
vide fo. the preparation of any such fit for trial list. ·
Such a list has been devised merely to enable the State
Government to :ry out a few officers irrespective of
their seniority with a view to test their suitability for
senior posts and is intended only to avoid specific
reference to ·the Uuion Public Service Commission for
casual short term appointments of the State Civil Service/ State Police Service officers to senior Indian Ad·
ministrative Service/Indian Police Service posts. The
Union Public Service Commission, who were consulted
in this respect, have advised that any officiation of
State Civil Service/State Police Service officers included in the fit for trial list should not be taken into
account to determine their seniority in the
Indian
Administrative Service/Indian Police Service."
The Central Government further stated :
"The Government of India have
accordingly
decided that wherever such lists have been prepared
in some States, the officiation in the senior posts of the
State Civil Service/State Po!ice Service officers included in the 'fit for trial' list cannot be counted for
the purpose of determining the seniority of such offi.
cers, under the Indian Administrative Service/Indian
Police Service (Regulation ()f Seniority) Rules, 1954.
On July 10, 1957, the petitioner was appointed to the Indian
Police Service.
On July 22, 1958, the Government tJf India
wrote to the Government of Orissa regarding the seniority of
the petitioner. It stated :
"Til.e approved continuous officiation of these officers counting for seniority commenced from the 10th
February, 1956-the date on which the Union Public
Service Commission approved the 'fit for continuous offi·
ciation list' containing their names. This date being
later than the date i.e. 7-9-55 on which Shri S. S.
Padhi (1951 R.R.) siarted officiating in the ;enior posts
but earlier than th.e date on "'hich regular recruits of
1952 started officiating it has been decided that these
officers may be finally allotted to 1951
and placed
I.13SupCl69-3
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SUPREME COURT REPORTS
[1970] l S.C.R,
en.bloc below Shri S. S. Padhi (1951-R.R.) and above
A
Shri B. N. Misra (1957.-R.R.)."
It is this order which has been quashed by the High Court.
The learned Attorney General, who appears for the appellant, urges that the case of the petitioner is covered by the second
proviso tor. 3(3) of the Seniority Rules and is not governed only
B
by r. 3(3)(b). He urges that the lists of 1951, 1952 and 1954,
mentioned above, were not Select Lists within the meaning of
the second proviso, and it is only the Select List which was made
on February 15, 1957, which is the Select List within the second
proviso, and that there has been no discrimination or breach of
art. 14, as held by the High Court.
c
The learned counsel for the petitioner on the other hand contends that the second proviso does not govern r. 3 (3 )(b) but
in fact governs the first proviso only.
He says that the Select
List of 1951 was a Select List within the meaning of the second
proviso and the seniority of the petitioner should be counted from
that date.
In the alternative he contends that the petitioner's
D
officiation in senior posts prior to July 10, 1957, had in fact been
approved and was approved officiation within the second proviso.
He further contends that the date, February 10, 1956, mentioned
in the order dated July 22, 1958, is an arbitrary date and the
Government has, in fact, not applied its mind to the question.
He further says that there has been discrimination and one SinghE
deo has been given benefit which has been denied to the petitioner.
The main point that arises in this case is whether the
Se;-~,
Lists of 1951, 1952 and 1954 can be deemed to be treated as
Select Lists within the second proviso. Ii is necessary to set out
rule 3 of the Seniority Rules in order to deal with this point.
F
Rule 3 reads thus :
"3. Assignment
of
Year of Allotment-(!)
Every officer shall be assigned a year of allotment in
accordance with the provisions hereinafter contained in
this rule.
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(2) The year of allotment of an officer in service
at the commencement of these rules shall be the same
as has Ir.en assigned to him or may be assigned to him
by the Central Government in accordance with the
orders and instructions in force immediately before the
commencement of these ,rules:
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Provided that where the year of allotment of an
officer appointed in accordance with rule 9 of the Re-
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ORISSA v. MOHAPATRA (Sikri, J.)
cruitment Rules has not been determined prior to the
commencement of these Rules, his year of allotment
shall be determined in accordance with the provision
in clause (b) of sub-rule (3) of this rule and for this
purpose such officer shall be deemed to have officiated
in a senior post only if and for the period for which he
was approved for such officiatien by the Central Government in consultation with the Commission.
( 3) The year of alloiment of an officer appointed
to the Service after the commencement of these rules,
shall be-
(a) where the officer is appointed to the Service on
the results of a competitive examination, the year following the year in which such examination was held;
(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 junior-most
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;
Provided that the year of allotment of an officer
appointed to the Service in accordance with rule Q 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 F.ules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned;
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 recruitment 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 1-An officer shall be deemed to have
officiated continuously in a senic: 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
263
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SUPREME COUllT Rl!PORTS
[1970] I S.C.R.
hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement.
Explapation 2.-An officer shall be
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 exce.ptional circumstance."
.
It seems to us that the 19.51, 1952 and 1954 lists cannot be
~.w to be Select Lists within the second proviso because, u
a matter of fact, the Selection Committee did not select names
for the purpose of substantive appointment but Only selected
names for the purpose of officiation in the senior posts of the
Indian Police Service. Regulation 5 ( 1) of the Promotion Regulations inter alia provided :
"5. Preparation of a list of suitable officers.-( I)
The comu1ittee shall prepare a list of such members of
the State Police Service as sansfy the condition spc:cified in regulation 4 and as are held by the committee to
be suitable for promotion to the Service . ... "
Now this clearly means that the Committee should think of
substantive appointments in the service and not officiating appointments.
Similarly, the draft rule 2, which was being acted upon before the Promotion Regulations came into force, provided :
"A committee shall be constituted by the State
Government composed ...• (for the Indian Police Service) of the Chief Secretary, the Inspector General of
Police and Deputy Inspectors General of Police. 'This
Committee ~hall prepare a select list of State ....
Police Service Officers who are considered suitable for
promotion. The list will
be renewed and revised
annually."
Draft rule 3 provided that "the State Government should
invite the Union Public Service Commission to depute one
of their members to preside at the meetings of the Committee."
Draft rule 4 provided that "in preparing this list, th;: Committee
shall be guided by the suitability of the officers for appointment
to the .... Indian Police Service. No officer shall be included in
the list who has not definitely proved his fitness for such appointment . ... "
It seems to us thN the Public Service Commission and the
Government of Tndia were quite right in deciding that the 'fit for
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trial' lists could not be deemed to be select lists made within the
draft rules or the Promotion Regulations.
In view of this conclusion it is not necessary to decide the
question, which was raised by the learned Attorney General, that
in any event the second proviso is only dealing with select lists
made after the Promotion Regulations came into force and not
with select lists made under the so-called draft rules.
We are
assuming, without deciding, that if a proper select list bad been
made under the draft rules it would be a select list within
the meaning of the second proviso.
This t'lkes us to the next point whether .the petitioner is
governed by the main portion of rule 3 ( 3 )( b) and not by the
second proviso. In our opinion, the object of the second proviso
is to cut down the period of officiation which would be taken into
consideration under rule 3 ( 3 )(b). It is common ground that
the case of ~e petitioner is not covered by the first proviso. We
are unable to agree w;th the learned counsel for the petitioner
that the qnly object of the second proviso is to limit the operation of the first proviso.
Explanation I really explains the expression "officiated continuously" occurring in rule 3(3)(b). But it does not mean that
where Explanation I applies the second proviso does not apply.
The object ;if Explanation I is to deal with the problem arising in
the case of officers holding appointments as a purely temporary
or local arrangement.
If the second proviso applies, as we hold it does, it was for
the Central Government to approve, or not to approve, the period
of officiation prior to the date of inclusion of the petitioner in
the Select List.
As observed by this Court in D. R. Nim v.
Union of India(') "the first period (i.e. period before the date
of inclusion of an officer in the Select List) can only be counted
if such period is approved by tb(I Central· Government in consultation with the Commission." They have approved the period
from February 10, 1956 to July 10,
1957. No material has
been brought to our notice to show that the Central Government
did not apply its nrind to the problem.
The learned counsel for the petitioner contends that in the
letter dated July 22, 1958, a list called the "fit for continuous
officiation list" is mentioned which is said to have been approved
by the Public Service Commission. The learned counsel rightly
points out that no ~uch list exists. Apparently this is an expression coined by the draftsman to express the views of the Public
Service Commissio,n which clearly stated in the letter dated
February 10, 1956, that they approved the recommendation of
(1) [1967] 2 S.C.R. 325, JZ9.
286
SUPREME COUJ.T REPORTS
(1970] l sc.R.
the Selection Committee which met at Cuttack for the selection
of police officers for promotion to the Indian Police Service in
an officiating capacity.
There is no doubt from the correspondence we have set out
above that the Government of India were quite aware of the requirements of a Select list.
We are unable to agree with the learned counsel that February 10, 1956, is an arbitrary date. It has definite relation to
the question of approved period of officiation because it is on this
date that the Public Service Commission approved the inclusion
of the petitioner in the list for officiating appointment for the first
time after the Promotion Regulations had come into force.
The next point which we may now consider is whether the
officiation period prior to February 10, 1956, was, as a matter
of fact, approved by the Government of India.
The learned
coun~:I has taken us through the correspondence. He has been
able to point out some letters written by the State Government
on the point but no letter from the Government of India has been
shown which could possibly be read as approving his period of
ofliciation prior to February 10, 1956. At any rate the approval
of Government of India has to be accorded after the appointment
to I.P .S. and not before.
The only point that remains now is the question of discrimination. Singh Deo was an officer who was appointed on June I,
1955, after the Seniority Rules had come into force and he seems
to be governed by the first proviso. We have not been able to
appreciate how this case has any relationship to the case of the
petitioner.
The learned Attorney General had raised the point that all
the officers who were likely to be affected by the decision of the
writ petition had not been impleaded as parties to the petition,
and he referred to us the decision of this Court in Padam Singh
Jhina v. Union of India('). where Shah, J., speaking for the
Court observed :
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"But we are unable to investigate the question
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whether there has been infringement of the rules governing fixation of seniority, for a majority of those who
were placed above the appellant in the seniority list are
not impleaded in the petition before the Judicial Commissioner and are not before this Court. It is impossible to pass an order, assuming that the appellant is able
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(I) Civil Appeal No. 40S of 1967: Judgment dated AUJll't 14, 1967
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ORISSA v. MOHAPATRA (Sikri, /.)
likely io be affected thereby are before the Court and
have an opportunity of replying to the case set up by
the appellant."
267
This is a salutary rule and should be observed. But the learned
counsel for the petitioner says that he was concerued with his
year of allotment and in that question no body else was interested
directly. Each officer has to have a year of allotment and no
other officer is directly interested in it.
But as we are allowing
the appeal it is not necessary to finally decide whether the petition should have been dismissed only on this ground.
In the result the appeal is allowed, the judgment and order
of the High Court set aside and the petition dismissed, but there
will be no order as to costs here and in the High Court.
V.P.S.
Appeal allowed .