# STATE OF SIKKIM AND OTHERS v. ADUP TSHERING BHUTIA AND OTHERS

- **Citation:** [2014] 2 S.C.R. 1003
- **Court:** Supreme Court of India
- **Decided:** 2014-02-18
- **Case number:** Civil Appeal No. 2446 of 2014
- **Bench:** H L. Gokhale, Kurian Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-sikkim-and-others-v-adup-tshering-bhutia-and-others-29792
- **Pages:** 28

## Headnote

A
B
Sikkim Police Force (Recruitment, Promotion and
Seniority) Rules, 2000: r. 9(iv) - Integration of services - Three
different services viz. Police Force, Armed Police and C
Vigilance Police in the State of Sikkim - In Vigilance Police
and Armed Police, though the members therein got
accelerated promotion to the post of inspector, there was no
further promotion available to them - Promotion to the post
of Deputy Superintendent of Police (DSP) available only to
D
members of the Police Force - This inequality sought to be
remedied by integration of three services - The feeder
category for promotion to the post of DSP is inspector - Date
of promotion/direct recruitment to the post of sub-inspector
taken as determining factor for fixation of seniority for the
E
purpose of promotion to the post of DSP and grant of
deemed/notional promotion to the members of the Police
Force from the date their compeers in the other two services
got promotion to the post of inspector - Writ petition by
respondent alleging that on account of the retrospective
promotion granted to the members of the Police Force based
on the date of appointment/promotion as sub-inspector in the
case of the other two services, the respondent became junior
to them, affecting his chances of promotion to the post of DSP
F
- High Court allowed writ petition - Held: High Court patently G
erred in holding that the acquired or accrued rights of the writ
petitioner had been affected by the fixation of seniority at the
level of sub-inspector of Police - The very purpose of
integration was to remove the inequality and provide them with
1003
H
1004
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A the opportunity for promotion to the post of DSP - If length of
continuous service in the highest cadre of some similar
services is taken as basis of fixing seniority and for further
promotion that would certainly result in deeper injustice to the
members of the other services - r. 9(iv) is just, fair and
B equitable in the given circumstances without which the
integration of services would have resulted in graver inequality
and injustice to the members of the major service - The
impugned judgment is set aside - However, for doing
complete justice, being a solitary case, the benefits granted
c by the High Court in the impugned Judgment to the writ
petitioner shall not be disturbed - Service law.
Prior to the constitution of integrated Sikkim Police
Force w.e.f. 11.09.2000, there were three different services
viz. Sikkim Police Force, Sikkim Armed Police and Sikkim
D Vigilance Police in the State of Sikkim. All the three forces
were governed by separate service rules. There was entry
level of constable in all the three forces. The Sikkim
Vigilance and Sikkim Armed Forces ended with the cadre
of inspector. In the case of Sikkim Armed Police there was
E also 50% direct recruitment at the level of sub-inspector.
Promotion to the post of Deputy Superintendent of Police
was available only to the Sikkim Police Force. The posts
of Deputy Superintendent of Police in Sikkim Vigilance
Police and Sikkim Armed Police were filled up only by
F deputation. The personnel belonging to the Sikkim
Vigilance Police and Sikkim Armed Police had been
raising their grievances with regard to lack of promotion
beyond inspector of police at various levels. The State
Government framed
the Sikkim
Police Force
G {Recruitment, Promotion and Seniority) Rules, 2000 under
Article 309 of the Constitution of India consisting of posts
upto inspector in all the three forces whereby seniority
and retrospective promotion was granted notionally to
the members of pre-integrated Sikkim Police Force.
H
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1005
BHUTIA AND OTHERS
The respondent had joined Sikkim Police as a
A
Constable on 12.08.1974. He was absorbed in the Sikkim
Vigilance Police on 12.09.1978. He was promoted as subinspector on 22.12.1986 and was further promoted as
inspector on 26.09.1995. On account of the retrospective
promotion

## Text

_Characters 0–39,775 of 53,729. This is a partial read: ask again with offset=39775 for what follows._

[2014] 2 S.C.R. 1003 ,
STATE OF SIKKIM AND OTHERS
v.
ADUP TSHERING BHUTIA AND OTHERS
(Civil Appeal No. 2446 of 2014)
FEBRUARY 18, 2014
[H L. GOKHALE AND KURIAN JOSEPH, JJ.]
A
B
Sikkim Police Force (Recruitment, Promotion and
Seniority) Rules, 2000: r. 9(iv) - Integration of services - Three
different services viz. Police Force, Armed Police and C
Vigilance Police in the State of Sikkim - In Vigilance Police
and Armed Police, though the members therein got
accelerated promotion to the post of inspector, there was no
further promotion available to them - Promotion to the post
of Deputy Superintendent of Police (DSP) available only to
D
members of the Police Force - This inequality sought to be
remedied by integration of three services - The feeder
category for promotion to the post of DSP is inspector - Date
of promotion/direct recruitment to the post of sub-inspector
taken as determining factor for fixation of seniority for the
E
purpose of promotion to the post of DSP and grant of
deemed/notional promotion to the members of the Police
Force from the date their compeers in the other two services
got promotion to the post of inspector - Writ petition by
respondent alleging that on account of the retrospective
promotion granted to the members of the Police Force based
on the date of appointment/promotion as sub-inspector in the
case of the other two services, the respondent became junior
to them, affecting his chances of promotion to the post of DSP
F
- High Court allowed writ petition - Held: High Court patently G
erred in holding that the acquired or accrued rights of the writ
petitioner had been affected by the fixation of seniority at the
level of sub-inspector of Police - The very purpose of
integration was to remove the inequality and provide them with
1003
H
1004
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A the opportunity for promotion to the post of DSP - If length of
continuous service in the highest cadre of some similar
services is taken as basis of fixing seniority and for further
promotion that would certainly result in deeper injustice to the
members of the other services - r. 9(iv) is just, fair and
B equitable in the given circumstances without which the
integration of services would have resulted in graver inequality
and injustice to the members of the major service - The
impugned judgment is set aside - However, for doing
complete justice, being a solitary case, the benefits granted
c by the High Court in the impugned Judgment to the writ
petitioner shall not be disturbed - Service law.
Prior to the constitution of integrated Sikkim Police
Force w.e.f. 11.09.2000, there were three different services
viz. Sikkim Police Force, Sikkim Armed Police and Sikkim
D Vigilance Police in the State of Sikkim. All the three forces
were governed by separate service rules. There was entry
level of constable in all the three forces. The Sikkim
Vigilance and Sikkim Armed Forces ended with the cadre
of inspector. In the case of Sikkim Armed Police there was
E also 50% direct recruitment at the level of sub-inspector.
Promotion to the post of Deputy Superintendent of Police
was available only to the Sikkim Police Force. The posts
of Deputy Superintendent of Police in Sikkim Vigilance
Police and Sikkim Armed Police were filled up only by
F deputation. The personnel belonging to the Sikkim
Vigilance Police and Sikkim Armed Police had been
raising their grievances with regard to lack of promotion
beyond inspector of police at various levels. The State
Government framed
the Sikkim
Police Force
G {Recruitment, Promotion and Seniority) Rules, 2000 under
Article 309 of the Constitution of India consisting of posts
upto inspector in all the three forces whereby seniority
and retrospective promotion was granted notionally to
the members of pre-integrated Sikkim Police Force.
H
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1005
BHUTIA AND OTHERS
The respondent had joined Sikkim Police as a
A
Constable on 12.08.1974. He was absorbed in the Sikkim
Vigilance Police on 12.09.1978. He was promoted as subinspector on 22.12.1986 and was further promoted as
inspector on 26.09.1995. On account of the retrospective
promotion granted to the members of the Sikkim Police
B
Force based on the date of appointment/promotion as
sub-inspector in the case of the other two services, the
respondent became junior to them, affecting his chances
of promotion to the post of Deputy Superintendent of
Police. He filed a writ petition before the High Court.
c
The High Court allowed the writ petition quashing the
retrospective promotion granted to the private
respondents and striking down Rule 9(iv) holding also
that the seniority in the integrated cadre of inspectors
shall be decided only on the basis of their substantive D
promotion to that post, and not based on the date of
promotion/appointment to the post of sub-inspector. The
Court, however, protected the promotions granted to the
private respondents. Even the respondent was also
promoted as Deputy Superintendent of Police on
E
23.02.2012 and he retired from service on 31.08.2012. The
direction by the High Court was to grant promotion w.e.f.
the date the first promotion was granted to any other
private respondent with all the consequential including
monitory benefits. The instant appeal was filed
F
challenging the order of the High Court.
Allowing the appeal, the Court
HELD: 1. Integration of three services was
necessitated for balancing the inequality to the extent that G
the members of two of the services were denied
promotion to the post of Deputy Superintendent of
Police. Such promotion was available only to the
members of the erstwhile Sikkim Police Force and was
denied to Sikkim Vigilance Police and Sikkim Armed
H
1006
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A Police. Accepting the recommendation· of the
Commission for a unified Police Force, the State
Government integrated three services and promulgated
the Sikkim Police Force (Recruitment, Promotion and
Seniority) Rules, 2000. The members of Sikkim Vigilance
B Police and Sikkim Armed Police had obtained accelerated
promotion to various posts up to the position of
inspector of police. However, their compeers in the
erstwhile Sikkim Police Force could not get such
promotions to the higher post of inspector for want of
c vacancy. There was entry level direct recruitment in one
of the services, viz., Sikkim Vigilance Police to the extent
of 50%. No doubt one of the main principles of
integration is equation of posts. But the question is
whether such integration based only on equation of
0 posts will result in inequality or injustice to the members
of any other service. Promotion to the post of Deputy
Superintendent of Police was available only to members
of the Sikkim Police Force. In the other two services, viz.,
Sikkim Vigilance Police and Sikkim Armed Police, though
E the members therein got accelerated promotion to the
post of inspector, there was no further promotion
available to them and they had to retire from service in
that cadre. It was this inequality that was sought to be
remedied by integration. The feeder category for
promotion to the post of Deputy Superintendent of Police
F is inspector. If the seniority is fixed in that cadre of
inspector, it would virtually amount to denial of promotion
to the post of Deputy Superintendent of Police for quite
some time to the members of the Sikkim Police Force. It
was this discrimination and resultant injustice that was
G sought to be remedied by referring the matter to the
Committee which recommended that for the purpose of
promotion to the post of Deputy Superintendent of Police
and preparation of seniority list in that regard, the date
of promotion to the post of sub-inspector should form the
H basis. That date was taken, since there was direct
STATE OF SIKKIM AND OTHERS v: ADUP TSHERING1007
BHUTIA AND OTHERS
recruitment to the post of sub-inspector in Sikkim Armed
A
Police. What has been done by the Government is to
base the date of promotion/direct recruitment to the post
of sub-inspector as the determining factor for fixation of
seniority for the purpose of promotion to the post of
Deputy Superintendent of Police and grant deemed/
B
notional promotion to the members of the Sikkim Police
Force from the date their compeers in the other two
services got promotion to the post of inspector.
Appointment to the post of inspector is by promotion.
Therefore, the entry level appointment to the cadre of subc
inspector becomes relevant. The sub-inspector of Sikkim
Vigilance and Sikkim Armed Forces, by chance, got
accelerated promotion to the post of inspector. It was this
injustice that was sought to be remedied by the
retrospective promotion without monitory benefits and
0
the amendment in the Rules. Merely because there is
equation of post in a cadre on integration that does not
necessarily mean that the common seniority list should
be prepared in that cadre for promotion to the next higher
cadre. If that method would result in injustice and graver
E
inequality, another fair and just mode can be adopted.
[Para 12 to 16] [1018-C-D; 1019-B-H; 1020-A-F]
State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni
and Ors. (1983) 2 SCC 33: 1983 (2) SCR 287; B.S. Yadav
and Ors. v. State of Haryana (1980) Suppl. SCC 524: 1981
F
SCR 1024 - referred to.
2. True, many officers who were working as subinspectors, while the writ petitioner had been working as
inspector, have gone above him in the process but the
G
hard fact which caused the heartburn to his compeers in
the Sikkim Police Force is that at the level of subinspectors, all of them were either travelling together with
the writ petitioner or had gone much earlier to him in that
cadre. No doubt, after integration, the promotion chances
H
1008 SUPREME COURT REPORTS
[2014] 2 S.C.R.
A of members of Sikkim Police have been reduced
considerably, since originally it was their exclusive
domain. [paras 17, 18] [1020-G-H; 1021-A]
3. The High Court patently erred in holding that the
8 acquired or accrued rights of the writ petitioner had been
affected by the fixation of seniority at the level of subinspector of Police. It has to be noted that, but for merger,
neither the writ petitioner nor the members of the two
other police forces, viz., Sikkim Vigilance Police and
C Sikkim Armed Force, could have got any promotion at all
to the post of Deputy Superintendent of Police. The very
purpose of integration was to remove the inequality and
provide them with the opportunity for promotion to the
post of Deputy Superintendent of Police. If length of
continuous service in the highest cadre of some similar
D services is taken as the basis of fixing the seniority and
for further promotion to higher posts that would certainly
result in deeper injustice to the members of the other
services. It was hence the State, after due deliberations
and based also on report of an expert Committee
E consisting of the top level offices in the State, took an
equitable decision to make the post of sub-inspector of
Police, where there is direct level entry in one of the
services, as the determining factor for fixation of seniority.
The writ petitioner did not suffer any demotion in the
F process. He continued in the post of inspector. The only
thing is that his compeers in Sikkim Police Force who
could not get accelerated promotion to the post of
inspector, but who are admittedly senior to him if the date
of appointment to the post of sub-inspector is taken, were
G given the deemed date of promotion to the post of
inspector based on the seniority at the level of subinspector. The amended rule certainly has thus a nexus
to the injustice sought to be removed so as to balance
the equity. It is neither irrational nor arbitrary. In the whole
H State of Sikkim, the writ petitioner is the only person who
I
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING 1009
BHUTIA AND OTHERS
challenged the amendment which by itself would show A
that it was a case of a solitary instance, assuming there
is basis for his grievance. The writ petitioner was senior
to some of the private respondents if his date of entry in
service as Sikkim Police Constable is taken. But when
the Sikkim Vigilance Police was formed, he opted for that B
and he was absorbed in that Police wherein he got
accelerated promotions to the various posts of head
constable, assistant sub-inspector, sub-in!?pector and
inspector. But such a ground with regard to his original
date of entry as a police constable in 1974 was not taken c
anywhere. The principle of fixation of seniority as
introduced by the amendment was already there in Rule
9(1). It is already provided therein that the relative seniority
of the members recruited directly will be fixed based on
the date of induction to the cadre. In other words, date D
of induction to a cadre where there is direct recruitment
is the basis of fixation of seniority in the instant case at
the level of sub-inspector. Thus, the amendment is
merely clarificatory in nature and, therefore, it is deemed
. to exist from the original date of commencement of the E
Rule in 2000. Be that as it may, the High Court has
already protected the promotions granted to the private
respondents but the High Court has struck down the
Rule and has quashed the seniority list. The High Court
has unfortunately missed the crucial consideration with
regard to the principles set by the State with regard to F
fixation of seniority, the purpose sought to be achieved
in the process, the relevant considerations which led to
the decision and the materials including the report of the
expert committee which were relied on by the State in the
process of making and taking of the decision. The State G
has only acted within its authority under Article 309 of the
Constitution of India in bringing about the clarificatory
amendment with regard to the fixation of seniority in the
cadre of sub-inspectors. The retrospectivity given to the
private respondents by giving the deemed date of H
1010 SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
promotion is neither arbitrary nor unreasonable. On the
contrary, it is perfectly just, fair and equitable in the given
circumstances without which the integration of services
would have resulted in graver inequality and injustice to
the members of the major service. The impugned
B judgment is set aside. The first respondent-writ petitioner
was also promoted as Deputy Superintendent of Police
and he has retired from service. Rule 17 of the 2000 Rules
has provided for power of relaxation to the State. Since
the first res'pondent-writ petitioner had actually entered
c in service· in 1974, prior to some of the private
respondents, this could have been probably a case for
the State Government to exercise that power. For doing
complete justice, being a solitary case, the benefits
granted by the High Court in the impugned Judgment to
0
the writ petitioner shall not be disturbed. [paras 26 to 30]
[1028-E-H; 1029-A-H; 1030-A-G]
Tamil Nadu Education Department Ministerial and
General Subordinate SeNices Association and Ors. v. State
of Tamil Nadu and Ors. (1980) 3 sec 97: 1980 (1) SCR
E 1026; Indian Airlines Officers' Association v. Indian Airlines
Limited and Ors. (2007) 10 sec 684: 2007 (8) SCR 655;
Kera/a Magistrates' (Judicial) Association and others v. State
of Kera/a and Ors. (2001) 3 SCC 521: 2001 (2) SCR 222;
Life Indian Corporation of India and Ors. v. S. S. Srivastava
F
and Ors. 1988 Supp SCC 1: 1987 SCR 180; New Bank of
India Employees' Union and Anr. v. Union of India and Ors.
(1996) 8 sec 407: 1996 (3)SCR 322; KS. Vora and Ors. v.
State of Gujarat and Ors. (1988) 1 sec 311: 1988 (1) SCR
611; ReseNe Bank of India v. N.C. Paliwal and Ors. (1976)
G 4 SCC 838: 1977 (1) SCR 377; R.S. Makashi and Ors. v. I.
M. Menon and Ors. (1982) 1 SCC 379: 1982 (2) SCR 69;
Prafulla Kumar Das and Ors. v. State of Orissa ahd Ors.
(1976) 4 sec 838: 2003 (4) Suppl. SCR 301; S.S. Bola and
others v. B.D. Sardana and Ors. (1997) 8 SCC 522:1997 (2)
H Suppl. SCR 507 - relied on.
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING 1011
BHUTIA AND OTHERS
Case Law Reference:
A
1983 (2) SCR 287
referred to
Para 11
1981 SCR 1024
referred to
Para 11
1980 (1) SCR 1026
relied on
Para 19
B
2007 (8) SCR 655
relied on
Para 19
2001 (2) SCR 222
relied on
Para 19
1987 SCR 180
relied on
Para 19
c
1996 (3) SCR 322
relied on
Para 19
1988 (1) SCR 611
relied on
Para 20
1977 (1) SCR 377
relied on
Para 22
1982 (2) SCR 69
relied on
Para 23
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2446 of 2014.
From the Judgment and Order dated 10.10.2012 of the
E
High Court of Sikkim, Gangtok in WPC No. 33 of 2010.
A Mariarputham, AG, A.K. Gaguli, Aruna Mathur, Yusuf
Khan (for Arputham, Aruna & Co.) for the Appellants.
Bhaskar Raj Pradhan, Arunabh Chowdhury, Anupam Lal
F
Das; Karma Dorjee, G. Panmei, Vaibhav Tomar, Dipesh Sinha,
Anirudh Singh, Annam D.N. Rao for the Respondents.
The Judgment of the Court was delivered by
KURIAN, J. 1. Leave granted.
G
2. Integration of services means the creation of a
homogenous service by the amalgamation or merger of service
personnel belonging to separate services. Integration is a policy
matter as far as the State is concerned. In evolving a proper
H
1012 SUPREME COURT REPORTS
[2014] 2 S.C.R.
A coalescence of the services, there are various steps:
(i) Decide the principles on the basis of which integration
of services has to be effected;
(ii) Examine the facts relating to each category and class
B of post with reference to the principle of equivalence;
c
(iii) Fix the equitable basis for the preparation of common
seniority list of personnel holding posts which are merged into
one category.
The State is bound to ensure a fair and equitable treatment
to officers in various categories/cadres of services while
preparing the common seniority list. Being a complicated
process, integration is likely to result in individual bruises which
0
are required to be minimised and if not possible, to be ignored.
These first principles on integration are to be borne in mind
whenever a dispute on integration is addressed.
SHORT HISTORY
E
3. Prior to the constitution of integrated Sikkim Police -
Force w.e.f. 11.09.2000 as per the Sikkim Police Force
(Recruitment, Promotion and Seniority) Rules, 2000, there were
three different services, viz., (1) Sikkim Police Force, (2) Sikkim
Armed Police Force and (3) Sikkim Vigilance Police. All the
F three forces were governed by separate service rules. There
is entry level of constable in all the three forces. The Sikkim
Vigilance and Sikkim Armed Forces ended with the cadre of
inspector. In the case of Sikkim Armed Police there was also
50% direct recruitment at the level of sub-inspector. Promotion
G to the post of Deputy Superintendent of Police was available
only to the Sikkim Police Force. The posts of Deputy
Superintendent of Police in Sikkim Vigilance Police and
Sikkim Armed Police were filled up only by deputation. The
personnel belonging to the Sikkim Vigilance Police and Sikkim
Armed Police had been raising their grievances with regard to
H lack of promotion beyond inspector of police at various levels.
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING 1013
BHUTIA AND OTHERS [KURIAN, J.]
The matter reached the High Court in Writ Petition (C} No. 513
A
of 1998. Realising the heartburn, the State Government
appointed Justice N. G. Das, a former Judge of the High Court
of Sikkim as one man Commission for examining the scope
of integration of different services. Implementing the
recommendations of the Commission, the State Government
B
framed the Sikkim Police Force (Recruitment, Promotion and
Seniority) Rules, 2000 under Article 309 of the Constitution of
India consisting of posts upto inspector in all the three forces.
For the purpose of ready reference, we shall extract Rule 4 of
2000 Rules on constitution of the forces:
c
"4. Constitution of the Force:
The Force shall consist of the following, namely:-
(a)
(b)
Persons holding the posts upto and including
0
Inspectors under Schedule I of the Sikkim Police
Force (Recruitment, Promotion and Seniority)
Rules, 1981.
Persons holding the posts of Constable, Head
Constable, Assistant sub-Inspector, Sub-Inspector
E
and Inspector under the Sikkim Vigilance Police
Force (Recruitment, Promotion and Seniority)
Rules, 1981.
(c)
Persons holding the posts of Sub-Inspector and
F
Inspector under the Sikkim Armed Police
(Recruitment, Promotion and Seniority) Rules,
1989.
(d)
Persons recruited to the Force in accordance with
the provisions of these rules."
G
4. On seniority, Rule 9 provided that the same would be
determined by the order of merit in which they are selected for
recruitment. To quote:
H
1014 SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
"9. Seniority
B
c
(i)
The relative seniority of the members of the force
recruited directly. shall be determined by the order
of merit in which they are selected for such
recruitment. Members as a result of an earlier
selection shall be senior to those recruited as a
result of a subsequent selection.
(ii)
The relative seniority of persons promoted from a
lower post shall be on the basis of seniority-cummerit subject to successfully passing the prescribed
exam.
(iii)
The relative seniority inter-se of members recruited
directly and through promotion shall be determined
D
according to the rotation of vacancies between
direct recruits and promotes which shall be based
on the quota of vacancies reserved for direct
recruitment and promotion, respectively, in these
rules."
E
(Emphasis supplied)
5. On inter se seniority at the level of two cadres, viz., subinspector and inspector, it appears, there was a back reference
to Justice N. G. Das Commission. However, it is seen from the
F records that there was no further recommendation from Justice
N. G. Das Commission. With regard to the method and
modalities of fixing of seniority of the sub-inspectors and
inspectors; the matter was hence referred to a committee of
senior police officers constituted by the Director General of
G Police. It was recommended that the inter se seniority at the
level of sub-inspectors be the determining criterion for fixing the
inter se seniority of inspectors in the integrated cadre. The
proposal was approved by the Government on 11.04.2008 but
the same was not implemented due to the pendency of a· Writ
H Petition filed by the first respondent herein. After the disposal
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1015
BHUTIA AND OTHERS [KURIAN, J.]
of the Writ Petition on 27.08.2009 as withdrawn, the
A
government again constituted a high level committee headed
by the Chief Secretary as Chairman with Director General of
· Police, Home Secretary and Secretary DoP as members and
Joint Secretary DoP as member secretary. The committee
submitted its report on 31.10.2009. It was recommended that
B
the inter se seniority of police inspectors should be fixed based
on the seniority at the entry level of sub-inspectors. It was also
recommended that inspectors of Sikkim Police be deemed to
have been promoted as inspectors w.e.f. the date their
colleague officers at the entry level of sub-inspectors in Sikkim c
Armed Police and Sikkim Vigilance Police first got promoted
as inspectors. The recommendation was approved by the State
Government on 10.11.2009, and on 19.01.2010 a Notification
was issued gr.anting retrospective promotion to 52 members
"
of the Sikkim Police Force with the condition that the officers 0
will not be entitled to arrears of pay.
6. The State Government also amended the integrated
Sikkim Police Force {Recruitment, Promotion and Seniority)
Rules, 2000 as per Notification dated 20.01.2010 with
retrospective effect from 11.09.2000. The amendment was
E
mainly in Rule No. 9 on seniority wherein a new sub-clause (iv)
was inserted. The amended Rule 9 (iv) reads as follows:
"9(iv)(a)
The inter-se-seniority of police personnel up to
the rank of Assistant Sub-inspector in the Sikkim
Police and, Sikkim Vigilance Police on the date of
amalgamation of the cadres for the purpose of their
promotion to the next rank shall be determined on
the basis of their date of appointment to the entry
level post of Constable.
F
G
{b)
The inter-se-seniority of Police Inspectors of Sikkim
Police. Sikkim Vigilance Police. Sikkim Armed
Police and Indian Reserve Battalion on the date of
amalgamation of the cadres for the purpose of their
promotion to the rank of Deputy Superintendent of H
A
B
c
1016 SUPREME COURT REPORTS
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Police shall be determined on the basis of their
date of appointment to the entry level of SubInspector."
(Emphasis supplied)
7. The Rules also provided for a residuary power to the
Government for relaxation. The relevant Rule reads as under:
"17. Power to relax: Where the Government of Sikkim is
of the opinion that it is necessary or expedient to do so, it
may, by order, for reasons to be recorded in writing, relax
and of the provisions of these rules with respect to any
class or category of persons or post."
SHORT FACTS
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8. Seniority, the retrospective promotion granted notionally
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to the members of the pre-integrated Sikkim Police Force and
the amendment was challenged by respondent no.1 before the
High Court in Writ Petiton (C) No. 33 of 2010 mainly with the
following two prayers:
"(a) A writ in the nature of certiorari or any other writ,
order or directions striking down/quashing Rule
9(iv)(b) of the Sikkim Police Force (Recruitment,
Promotion & Seniority) Rules, 2000 as inserted by
Rule 2 of the Sikkim Police Force (Recruitment,
Promotion and Seniority) Amendment Rules, 2009
brought into force vide Notification No. 222/GEN/
DOP dated 20.01.2010 with retrospective effect
from 11.09.2000.
(b)
A writ in the nature of certiorari or any other writ,
order or directions striking down/quashing the
Notification No. 02/PHQ/201 O dated 19.01.201 O to
the extent it gives retrospective promotion to over
6 years to the private Respondent Nos. 7 to 28
except Respondent No. 21 by a deeming fiction
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING 1017
BHUTIA AND OTHERS [KURIAN, J.]
irrespective of their actual date of confirmation with
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effect from the dates mentioned in the said
impugned notification against the names of each of
the said private Respondents."
9. For a proper understanding of the factual disputes, we
shall refer to the grievance of the wri~ petitioner. He joined
Sikkim Police as a Constable on 12.08.197 4. He was absorbed
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in the Sikkim Vigilance Police on 12.09.1978. He was
promoted as sub-inspector on 22.12.1986 and was further
promoted as inspector on 26.09.1995. On account of the
retrospective promotion granted to the members of the Sikkim
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Police Force based on the date of appointment/promotion as
sub-inspector in the case of the other two services, the writ
petitioner became junior to them, affecting his chances of
promotion to· the post of Deputy Superintendent of Police.
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10. The High Court by Judgment dated 10.10.2012
allowed the Writ Petition quashing the retrospective promotion
granted to the private respondents and striking down Rule 9(iv)
holding also that the seniority in the integrated cadre of
inspectors shall be decided only on the basis of their
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, substantive promotion to that post, and not based on the date
of promotion/appointment to the post of sub-inspector. The
Court, however, protected the promotions granted to the private
respondents. It is significant to note that even the writ petitioner
was also promoted as Deputy Superintendent of Police on
23.02.2012 and he retired from service on 31.08.2012. The
direction by the High Court is to grant promotion with effect from
the date the first promotion was granted to any other private
respondent with all the consequential including monitory
benefits. Thus aggrieved, the State is before this Court.
1 f The High Courtnas placed reliance on the Constitution
Bench decision of this Court in State of Gujarat and Another
v. Raman Lal Keshav Lal Soni and Others1 regarding
1.
(1983) 2 sec 33.
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1018 SUPREME COURT REPORTS
[2014] 2 S.C.R.
A retrospective operation of law. Reliance is also placed on
another Constitution Bench decision in B.S. Yadav and Others
v. State of Haryana2. In £3 S. Yadav's case (supra), this Court
dealt with the legislative power of the State under Article 309
of the Constitution of India. It was clearly held in both the
. 8
decisions that the State is competent to enact laws with
retrospective effect. The only rider is that the date of
retrospective operation should have relevance and nexus with
the object sought to be achieved and the same shall not affect
the accrued rights.
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12. The short question is whether the amended Rule on
fixation of seniority satisfied the test of reasonableness.
Integration of three services was necessitated for balancing the
inequality to the extent that the members of two of the services
were denied promotion to the post of Deputy Superintendent
D of Police. Such promotion was available only to the members
of the erstwhile Sikkim Police Force and was denied to Sikkim
Vigilance Police and Sikkim Armed Police. In this context, it
would be useful to refer to the terms of reference to Justice N.
G. Das Commission:
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"(1) To comprehensively review the existing Recruitment
Rules of all the different wings of Sikkim Police so
as to arrive at an appropriate solution. which would
meet promotional aspirations of the entire Police
Force.
(2)
To examine the necessity for integration of the
different Recruitment Rules particulary (a) Sikkim
Police Force (Recruitment, Promotion and
Seniority) Rules, 1988, (b) Sikkim Armed Force
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(Recruitment, Promotion and other Conditions of
Service) Rules, 1989 and (c) the Sikkim Vigilance
Police (Recruitment, Seniority and Promotion)
Rules, 1981, so as to bring about long term solution
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2.
(1980) Suppl. sec 524.
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1019
BHUTIA AND OTHERS [KURIAN, J.]
to meet the promotional aspirations of the entire
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Police Force. The Commission shall submit its
report on or before 31.12.99."
(Emphasis supplied)
13. Accepting the recommendation of the Commission for
8
a unified Police Force, the State Government integrated three
services and promulgated the Sikkim Police Force
(Recruitment, Promotion and Seniority) Rules, 2000. It is to be
specifically noted that the members of Sikkim Vigilance Police
and Sikkim Armed Police had obtained accelerated promotion
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to various posts up to the position of inspector of police.
However, their compeers in the erstwhile Sikkim Police Force
could not get such promotions to the higher post of inspector
for want of vacancy. It is crucially significant to note that there
was entry level direct recruitment· in one of the services, viz.,
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Sikkim Vigilance Police to the extent of 50%.
14. No doubt one of the main principles of integration is
equation of posts. But the question is whether such integration
based only on equation of posts will result in inequality or
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injustice to the members of any other service.
15. As we have already noted above, promotion to the post
of Deputy Superintendent of Police was available only to
members of the Sikkim Police Force. In the other two services,
viz., Sikkim Vigilance Police and Sikkim Armed Police, though
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the members therein got accelerated promotion to the post of
inspector, there was no further promotion available to them and
they had to retire from service in that cadre. It was this inequality
that was sought to be remedied by integration.
16. The feeder category for promotion to the post of
Deputy Superintendent of Police is inspector. lfthe seniority is
fixed in that cadre of inspector, it would virtually amount to denial
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of promotion to the post of Deputy Superintendent of Police for
quite some time to the members of the Sikkim Police Force. It
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[2014] 2 S.C.R.
A was this discrimination and resultant injustice that was sought
to be remedied by referring the matter to the Committee which
recommended that for the purpose of promotion to the post of
Deputy Superintendent of Police and preparation of seniority
list in that regard, the date of promotion to the post of subB inspector should form the basis. That date was taken, as we
have already noted above, since there was direct recruitment
to the post of sub-inspector in Sikkim Armed Police. What has
been done by the Government is to base the date of promotion/
direct recruitment to the post of sub-inspector as the
c determining factor for fixation of seniority for the purpose of
promotion to the post of Deputy Superintendent of Police and
grant deemed/notional promotion to the members of the Sikkim
Police Force from the date their compeers in the other two
services got promotion to the post of inspector. Appointment
D to the post of inspector is by promotion. Therefore, the entry
level appointment to the cadre of sub-inspector becomes
relevant. The sub-inspector of Sikkim Vigilance and Sikkim
Armed Forces, by chance, got accelerated promotion to the
post of inspecto~. It was this injustice that was sought to be
E remedied by the retrospective promotion without monitory
benefits and the amendment in the Rules. Merely because there
is equation of post in a cadre on integration that does not
necessarily mean that the common seniority list should be
prepared in that cadre for promotion to the next higher cadre.
If that method would result in injustice and graver inequality,
F . another fair and just mode can be adopted.
17. True, many officers who were working as subinspectors, while the writ petitioner had been working as
inspector, have gone above him in the process but the hard fact
G which caused the heartburn to his compeers in the Sikkim
Police Force is that at the level of sub-inspectors, all of them
were either travelling together with the writ petitioner or had
gone much earlier to him in that cadre.
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STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1021
BHUTIA AND OTHERS [KURIAN, J.]
18. One cannot also lose sight of the fact that, after
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integration, the promotion chances of members of Sikkim
Police have been reduced considerably, since originally it was
their exclusive domain.
19. The Apex Court in Tamil Nadu Education Department
Ministerial and General Subordinate Services Association
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and Others v. State of Tamil Nadu and Others3 held that
integration is a complicated administrative process and it is
likely to affect certain individuals. To quote:
"7. In service jurisprudence integration is a complicated
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administrative problem where. in doing broad justice to
many. some bruise to a few cannot be ruled out. Some
play in the ·joints. even some wobbling. must be left to
government without fussy forensic monitoring. since the
administration has been entrusted by the Constitution to o
the executive. not to the court. All life, including
administrative life, involves experiment, trial and error, but
within the leading strings of fundamental rights, and, absent
unconstitutional "excesses", judicial correction is not right.
Under Article 32, this Court is the constitutional sentinel,
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not the national ombudsman. We need an ombudsman but
the court cannot make-do.
8 .... Maybe, a better formula could be evolved, but the
court cannot substitute its wisdom for Government's, save
to see that unreasonable perversity, mala fide
manipulation, indefensible arbitrariness and like infirmities
do not defile the equation for integration. We decline to
demolish the order on this ground. Curial therapeutics can
heal only the pathology of unconstitutionality, not every
injury."
(Emphasis supplied)
The same view has been followed in Indian Airlines
3.
(1980) 3 sec 97.
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1022 SUPREME COURT REPORTS
[2014] 2 S.C.R.
A Officers' Association v. Indian Airlines Limited and others4,
Kera/a Magistrates' (Judicial) Association and others v. State
of kerala and others5, Life Indian Corporation of India and
Others v. S. S. Srivastava and Others6 and New Bank of India
Employees' Union and Another v. Union of India and Others7•
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20. It has also been held by this Court in K.S. Vora and
others v. State of Gujarat and others8 that integration affecting
the larger public interest would necessarily affect the seniority
of some members of some of the services. To quote:
"5. As we have already pointed out in the instant
case the State decided at stages to switch over to the
common cadre in respect of all the four grades of the
Subordinate Service. Before common grades had· been
formed promotion was granted departmentwise. When
ultimately a common cadre came into existence - and all
that was done by 197 4 - it was realised that if seniority as
given in the respective departments were taken as final for
all purposes there would be prejudice. Undoubtedly the
common cadre was for the purpose of increasing the
efficiency by introducing a spirit of total competition by
enlarging the field of choice for filling up the promotional
posts and in the interest of discipline too. After a common
cadre was formed. the general feeling of dissatisfaction
on account of disparity of seniority became apparent. The
1977 Rules were introduced in this· background to ease
the situation. The scheme of this rule protected the rank
then held by everv member of the service notwithstanding
alteration of seniority on the new basis. This. therefore.
made it clear that accrued benefits were not to be
interfered with. To that extent the 1977 Rules were not
4.
c2007) 10 sec 684.
5.
c2001) 3 sec 521.
6.
1988 Supp sec 1.
7.
(1196) 8 sec 407.
H 8.
(1988) 1 sec 311.
STATE OF SIKKIM AND OTHERS v. ADUP TSHERING1023
BHUTIA AND OTHERS [KURIAN, J.]
retroactive. In spite of the protection of rule regarding the
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post then held, the Rules brought about a change in the
inter se seniority by adopting the date of initial recruitment
and the length of service became the basis for refixing
senioritv. Total length of service for such purpose is a well
known concept and could not said to be arbitrary.
Undoubtedly one of the consequences of the change in the
basis was likely to affect prospects of promotion - a matter
in future. Two aspects have to be borne in mind while
considering the challenge of the appellants to this situation.
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It was a historical necessity and the peculiar situation that c
arose out of government's decision to create a common
cadre with four grades in the entire Secretariat. We would
like to point out with appropriate emphasis that there was
no challenge to creation of the common cadre and certainly
government was competent to do so. The second aspect 0
to be borne in mind is that rules of seniority are a matter
for the employer to frame and even though prospects of
promotion in future were likely to be prejudiced by
introduction of a new set of rules to regulate seniority. if
the rules were made bona fide and to meet exigencies of
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the service. no entertainable grievance could be made. If
these are the tests to apply, we do not think the appellants
have indeed any grievance to make. In our view, therefore,
the High Court rightly dismissed the contention and found
that appellants were not entitled to relief."
(Emphasis supplied)
21. In Kera/a Magistrates' (Judicial) Association case
(supra), this Court held:
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"5. We have examined the relevant records containing the
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deliberations made in the full court meetings of the High
Court on the topic of integration of the two wings. It appears
that on the criminal side the entry post was Magistrate
Second Class and the highest post, a Magistrate Second
Class could reach was Chief Judicial Magistrate. On the
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1024 SUPREME COURT REPORTS
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civil side the entry post was Munsif and the highest post
was the District Judge.