# SYED KHALID RIZVI AND ORS. ETC v. UNION OF INDIA AND ORS. ETC. ETC

- **Citation:** [1992] Supp. 3 S.C.R. 180
- **Court:** Supreme Court of India
- **Decided:** 1992-11-20
- **Case number:** Contempt Petition No. 191/91, I.A. No. 1-10/91. IN c C.A. Nos. 2932, 1801, 2464 & 3165-67 of 1989
- **Bench:** Am. Ahmadi, M.M. Punchhi, K. Ramaswamy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/syed-khalid-rizvi-and-ors-etc-v-union-of-india-and-ors-etc-etc-11899
- **Pages:** 41

## Headnote

Civil Services: JPS (Regulation of Seniority Rules, 1954/IPS (Appointment by Promotion) Regulations, 1955: Rules 3(3)(b) and 2(g) Regulation
5-Direct Recrnits and promotees from U.P. State Police Service Special
Grade Deputy Superintendents of Police-btter-se seniority-Fixation of
These matters relate to inter-se seniority between the direct recruit
I;P.S. Otlicers and the promotee l.P.S. Otlicers from the rank of special
grade Deputy Superintendents of Police in U.P. State Police Service. The
D claim of the promotee officers for determining their seniority giving them
the years of allotment from the respective dates of officiation was rejected
by the State Government. Some of the promotees filed Writ· Petitions
before this Court challenging the validity of Rules 3(3)(b) and 2(g) ofl.P.S.
(Regulation of Seniority Rules) 1954 and Regulation 5 of the JPS (Appointment and Promotion) Regulations 1955 respectively. This Court directed
E
the Central Government to determine the year of allotment of each of the
respondents in accordance with Rule 3(1) and also the question as to
whether they were entitled to the benefit of continuous officiation as
Superintendents of Police under Rule 3(3)(b) and in the light of decisions
of this Court interpreting analogous provisions.
F
. After hearing both the direct recruits and promotees and considering the material on record, the Central Government prepared a fresh
seniority list. This was challenged before the Central Administrative
Tribunal which directed the Central Government to prepare the seniority
list afresh. This was challenged again. In accordance with the directions
G of the Tribunal, the Central Government prepared a fresh seniority list
which was successfully challenged again before the Tribunal. In another
cases before it also the Tribunal directed the Central Government to
prepare the seniority list afresh.
H
All .these appeals by special leave were tiled against the various
180
l. -
-
SYED RIZVI v. U.0.1.
181
orders of the Tribunal. The Writ Petition has been filed before this Court A
challenging the inter-se seniority fixed by the Central Government.
On the question (1) whether the promotees have been appointed to
IPS according to rules (ii) whether their continuous officiation in cadre
post would enure to their seniority entitling to the year of allotment from
the dates of their initial promotions; (iii) whether their inclusion in the
select list and the computation of seniority from the date are conditions
of service; and (iv) whether the facts would justify to draw the presumption
of deemed relaxation of relevant rules:
B
Allowing the appeals and dismissing the writ petition as not mainC
tainable, this Court,.
HELD : 1. Cadre Rules enjoins the ~tate Govt. that only a cadre
officer should be appointed to a cadre post. Where the cadre officer is not
available then, temporary appointments, by operation of Regulation 8 of , D
the promotion· Regulations read with rule 9 of cadre rules, could be
resorted to and appointments made by the State Govt. or its delegates to
cope up with the administrative exigencies, of the select list officers in the
order or .even among the select list otlicers dehors the order. When both
cadre officers or select list officers are not available, then only non-select E
list officers could be temporarily appointed. However, it is mandatory that
the State Govt. should report forthwith to the Central Govt. together with
the reasons for making such appointments. The condition precedent is,
that the post shall not last for more than three months; if it exceeds three
months then the 'prior concurrence' of the Central Govt., 'is mandatory'.
If it lasts more than six months it should be with the consultation of the
U.P.S.C., and the Central Govt. should post the UPSC with those facts and
should implement the advice so tendered by the UPSC. The State Govt.
should act according to the directions of the Central Govt. The compliance·
of these steps are mandatory to

## Text

_Characters 0–39,928 of 108,428. This is a partial read: ask again with offset=39928 for what follows._

A
B
c
SYED KHALID RIZVI AND ORS. ETC.
v.
UNION OF INDIA AND ORS. ETC. ETC.
NOVEMBER 20, 1992
[AM. AHMADI, M.M. PUNCHHI AND K. RAMASWAMY, JJ.]
Civil Services: JPS (Regulation of Seniority Rules, 1954/IPS (Appointment by Promotion) Regulations, 1955: Rules 3(3)(b) and 2(g) Regulation
5-Direct Recrnits and promotees from U.P. State Police Service Special
Grade Deputy Superintendents of Police-btter-se seniority-Fixation of
These matters relate to inter-se seniority between the direct recruit
I;P.S. Otlicers and the promotee l.P.S. Otlicers from the rank of special
grade Deputy Superintendents of Police in U.P. State Police Service. The
D claim of the promotee officers for determining their seniority giving them
the years of allotment from the respective dates of officiation was rejected
by the State Government. Some of the promotees filed Writ· Petitions
before this Court challenging the validity of Rules 3(3)(b) and 2(g) ofl.P.S.
(Regulation of Seniority Rules) 1954 and Regulation 5 of the JPS (Appointment and Promotion) Regulations 1955 respectively. This Court directed
E
the Central Government to determine the year of allotment of each of the
respondents in accordance with Rule 3(1) and also the question as to
whether they were entitled to the benefit of continuous officiation as
Superintendents of Police under Rule 3(3)(b) and in the light of decisions
of this Court interpreting analogous provisions.
F
. After hearing both the direct recruits and promotees and considering the material on record, the Central Government prepared a fresh
seniority list. This was challenged before the Central Administrative
Tribunal which directed the Central Government to prepare the seniority
list afresh. This was challenged again. In accordance with the directions
G of the Tribunal, the Central Government prepared a fresh seniority list
which was successfully challenged again before the Tribunal. In another
cases before it also the Tribunal directed the Central Government to
prepare the seniority list afresh.
H
All .these appeals by special leave were tiled against the various
180
l. -
-
SYED RIZVI v. U.0.1.
181
orders of the Tribunal. The Writ Petition has been filed before this Court A
challenging the inter-se seniority fixed by the Central Government.
On the question (1) whether the promotees have been appointed to
IPS according to rules (ii) whether their continuous officiation in cadre
post would enure to their seniority entitling to the year of allotment from
the dates of their initial promotions; (iii) whether their inclusion in the
select list and the computation of seniority from the date are conditions
of service; and (iv) whether the facts would justify to draw the presumption
of deemed relaxation of relevant rules:
B
Allowing the appeals and dismissing the writ petition as not mainC
tainable, this Court,.
HELD : 1. Cadre Rules enjoins the ~tate Govt. that only a cadre
officer should be appointed to a cadre post. Where the cadre officer is not
available then, temporary appointments, by operation of Regulation 8 of , D
the promotion· Regulations read with rule 9 of cadre rules, could be
resorted to and appointments made by the State Govt. or its delegates to
cope up with the administrative exigencies, of the select list officers in the
order or .even among the select list otlicers dehors the order. When both
cadre officers or select list officers are not available, then only non-select E
list officers could be temporarily appointed. However, it is mandatory that
the State Govt. should report forthwith to the Central Govt. together with
the reasons for making such appointments. The condition precedent is,
that the post shall not last for more than three months; if it exceeds three
months then the 'prior concurrence' of the Central Govt., 'is mandatory'.
If it lasts more than six months it should be with the consultation of the
U.P.S.C., and the Central Govt. should post the UPSC with those facts and
should implement the advice so tendered by the UPSC. The State Govt.
should act according to the directions of the Central Govt. The compliance·
of these steps are mandatory to make temporary appointment legitimate
F
and transitory arrangement a legal one. For violation thereof, the Central G
Govt. is entitled to give directions to the State Govt to terminate the
service of such temporary officer and the State Govt. should abide by such
direction and give effect to it. The leeway and liberty given to the State
Govt. under Regulation 8 of Promotion Regulations read with Rule 9 of
cadre rules is only to cope up with.administrative exigencies but it became H
182
SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.
A
a breeding ground to distort the operation of the Rules which should
scrupulously be eschewed and avoided. Any appointment made othernise
than in accordance with Regulation 9 of Promotion Regulations read with
.rule 9 of recruitment Rules is thus not a valid or regular appointment in
the eye ofJaw. [200-B·G]
B
c
2 •. An officer appointed to the Indian Police Service by promotion
from State Services to the Central Services in accordance with Rule 9 of
the Recruitment Rules read with Promotion Regulation No. 9, his year of
allotment is that of the junior most among the direct recruit officers who
officiated continuously in a senior post from· a date earlier than the date
of the commencement of such ofiiciation by the former. The continuous
officiation of the promotee officers appointed under Rule 9 of the recruitment rules earlier than the date on which the direct recruit officers started
ofiiciation, s~ould be determined ad hoc by the Central Govt. By operation
of Explanation 1 the period of continuo,us offieiation of the promotee officer
D
in the senior post for the purpose of determining his seniority should count
only from the date of his inclusion in the Select List or from the date of
his continuous officiation in such senior post whichever is later. As a
consequence, though the promotee officer continues to officiate.earlier to
his being brought into the select list, he gets his seniority on his appointE
ment to the senior post from the date on which he was brought into select
list, only from the date of appointment, or contim~ous officiatfon without
break whichever is later. The entire preceding officiating period earlier
than his being brought on the select list should be treated to be fortuitous.
By operation of Exp.2 he counts his continuous .officiation in the senior
F
post towards his seniority from the date of his appointment provided he
holds the senior post without any break or reversion otherwise than as a
purely temporary or local arrangement. [201-B-E]
3. It is settled law that a promotee Officer appointed temporarily
under Regulation 8 of ~romotion Regulation and Rule 9 of cadre Rules. to
G a cadre post does not. get his/her continuous officiation towards seniority.
Seniority would be counted only from the date on which he/she was brought
into the select list by the selection committee in accordance with Recruitment Rules, Promotion Regulations and seniority Rules and was approved
by the UPSC, appointed under Rule 9 of Recruitment Rules and RegulaH tion ~ of Promotion Regulations and Rules and has continuously officiated
......
•
SYED RIZVI v. U.0.1.
183
without break. Seniority would be counted from the date of select list or A
continuous officiation whichever is latter. He/she is entitled to appointment by the Central Govt. to substantive vacancy under Regulation 9 of
Promotion Regulations from that date. The Cerdral Govt. and the U.P.S.C.
should approve temporary appointment by an order in writing and also of
such officiation. In that event seniority would be counted only from the B
date, either of his/her jnclusion in the select list or from the date of
officiating appointment to the cadre post whichever is later. By operation
of fuplanation 1 to rule 3(3) (b) of the Seniority Rules his seniority will be
counted only from either of the later dates and the necessary effect is that
the entire previous period of officiation should be rendered fortuitous and
the appointment as ad-hoc appointment or by local arrangement.
C
[208-A-D]
D.R. Nim, l.P.S. v. Union of India, (1967) 2 SCR 325; State of Orissa
&Anr. v.B.K. Mahapatra, (1970) 1 SCR255;Anil KumarC/zoudha'Y.v.State D
of Assam & Ors., (1975) 3 SCR 878; R.P. Khanna & Ors., v. SA.F. Abbas
& Ors., [1972) 3 SCR 548; Amrit Singh & Ors. v. Union of India & Ors.,
[1980) 3 SCR 485 and Union of India, etc. v. G.N. Tiwari, KL. Jain & Ors.,
(1985) Suppl. 3 SCR 744, relied on.
4. Preparation of the select list as per promotion Regulations is a E
pre-condition for recruitment by promotion. The State Govt. is enjoined
to send the select list to the UPSC, which after considering the objections,
if any, of the Central Govt. and the State Govt. and the views of the
Committee, would approve the list with such modifications as it may deem
just and proper. The Central Govt. makes appointment of the promotee F
officer to the I.P. service in strict conformity with Rule 9 of Recruitment
Rules and Regulation 9 of Promotion Regulations in the order of merit
and in no case the quota of 33-1/3 per cent to the promotees should be
exceeded. The year of allotment under Rule 3 of Seniority Rules to every
officer of the l.P.S. is mandatory. [208-G, H; 209-A]
In order to get into the select list, the promotee officer has to fulfil
the conditions of the rules of recruitment and Promotion Regulations i.e.
he must be brought into the select list satisfying the conditions specified
therein and the Seniority Rules. As per Recruitment Rules, merit, ability
G
and suitability are the criteria and seniority will be considered only where H
184
SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
A
merit and suitability are approximately equal. Integrity, ability and record
of service would furnish the ground to assess the merit of the promotee
officer to assign the ranking inter-se in the list and appointment by Central
Govt. should be in t_he order as approved by the UPSC and recommended
by the State Govt. Bringing the name on the list does not confer_anyright
B
to automatic appointment. The appointment should be made to a substantive ·rncancy within .the quota in the order in the select list uril~ss the
predecessor promotee officer in the list opts to forgo the same. Seniority
rules thus provide the source or foundation upon which the whole edifice
of Indian Police Service has been built upon to.assign the year of allotment.
c
The scheme of the Rules and Regulations is an integral and continuous
whole and .any snap in the link would lead to distortion and land up in
imbalance in the ratio and upset the smooth working of the scheme
frustrating the national integration, tile object of the All India Service Act.
Moreover, the recruitment by selection would give only right to be considered according to rule and would create no right to appointment: The
D _ order of appointment by the Central Govt. under Rule 9 of Recruitment
rules crystalises the right of a promotee officer into the service. Seniority
would be counted ·only from date of select list or the date of continuous
officiation after appointment whichever is later. [209-B-F]
E
_ 5. Due to exigencies of the service, the State Govt. has been emF
powered under regulation 8 of Promotion Regulations read with rule 9 of
cadre rules to appoint select list or_ non-select officers to ma_n temporary
vac~ncies in cadre_ posts. So long as cadre officer is available, he/she alone
is to be_ posted to a senior cadre post. In his/her absence the select list
officer awaiting promotion, must be appointed in the order found in the
list. It must be the rule and deviation must be for exceptional reasons and
circumstances. Where either the cadre officers or select list officers are
not available, then only non-select list officers may be promoted to temporary vacancies which should not be likely to last for more than three
months and the State Govt. must strictly comply with the conditions
G specified in the -provisos to regulation 8(2) of Promotion Regulations and
Rule 9 of cadre rules. In other words, where the v~cancy/vacancies continue
_for m_ore than three months, th~ prior concurrence of the Central Government is mandatory. If it continues for more than si_x months prior ap- -
proval_ of the Union Public Service Commission is also mandatory. Any
H ap1>0intment in violation thereof is not an appointment in accordance with
I
(
SYED RIZVI v. U.0.1.
185
the law. Such appointments are mere ad hoc or local arrangement or A
fortuitous. [210-B-E]
6. On appointment under Rule 9 of the Recruitment rules to a
substantive vacancy from the select list by the Central Govt. the promot~e
officer becomes a member of the service. But whereas appointment under
regulation 8 of promotion regulation is in disregard of the rules to cope
up with the administrative expediency, be it to a temporary or substantive
vacancy, an appointee under Regulation 8 read with Rule 9 of cadire rules
is unequal to a direct recruit or one under Regulation 9 of Promotio~1
Regulation read with Rule 9 of Recruitment Rules. So unequals cannot be
treated as equals offending Art, 14 and 13(1) of the Constitution. Mere
production of inequality by operation of the rule is not sufficient to treat
B
c
an appointee under Regulation 8 of Promotion Regulation at par with 011;e
under Direct Recruitment or one under rule 9 of Recruitment Rule and
Regulation 9 of Promotion Regulations. Getting qualified earlier in point
of time or passing the prescribed tests does not by itself clothe with a right D
to promotion or entitle to seniority. It would arise only after the select list
was prepared on comparative evaluation of the record and assessment of
merit, ability and suitability and fixation of inter se seniority was made
and approved by the UPSC followed by or preceded with an order of
appointment under Regulation 9 of Promotion Regulations and Rule 9 Qf E
Recruitment Rules. Persons similarly circumstanced alone are entitled to
equal treatment. The rule making authority or the legislature takes into
consideration diverse factors to integrate into common cadre the incumbents drawn from different sm1rces. They have better knowledge to adjust
those appointees to integrate them into common cadre. Until the officers F
are appointed to the Indian Police Service in accordance with the Recruitment Rules and Promotion Regulations, they remain a separate source and
a distinct class. Only on due appointment after their fusion into common
stream or cadre, there cannot be any invidious discrimination thereafter
between the promotees and the direct recruits. The direct recruits and
promotees/officers constitute, thus, different classes. Conditions of
recruitment should strictly be complied with in making recruitment by
promotion of the Dy. S.P. from a State Police Service holding substantive
posts into the Indian Police Service. Any appointment in contravention
thereof would negate the scheme ot'the rules and regulations. Recruitment
G
by promotion in accordance with t.he Regulation and Rules are conditions HI
186
SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R.
A
of Recruitment and are mandatory and should be complied with.
(211-G, ff; 212-A-E]
Direct Recrnit Class II Engineering Officers' Association & Ors. v. Stat(!
of Maharashtra & Ors., (1990] 2 SCR 900; KC. Joshi v. Union of India,
(19921' Suppl. 1 SCC 272; A.N. Sehgal & Ors. v. Raje Ram Sh~oran & Ors.,
B
(1992] Suppl. 1 SCC 304 and Masood Akhtar Khan & Ors. v. State of
Madhya Pradesh & Ors., [1990] 4 SCC 24, referred to.
c
7. No employee has a right to promotion but he has only right to be
considered for promotion according to rules. Chances of promotion are
not conditions of service and aye defeasible. The eligibility for recruitment
to the Indian Police Service, is a condition of the recruit~ent and not a
condition of service. Accordingly seniority, though, normally an incidence
to service, Seniority Rules, Recruitment Rules and.Promotion Regulations
form part of the conditions of recruitment to the Iildian Police Service by
promotion, which should be strictly complied with before becoming eligible
D for consideration for promotion and are not relaxable. [214-C, D; 215-A-C]
E
State of Mysore v. G.N. Purohit, 1967 SLR 753 and Rarnachandra
Shankar Deodhar & Ors. v. The State of Maharashtra, (1974] 2 SCR 216,
relied on.
State of Punjab v. Kai/ash Nath, (1989] 1 SCC 321, distinguished.
State of M.P. & Ors. v. Shardul Singh, (19701 3. SCR 302; I.N. Subba
Reddy v.Andhra University & Ors. etc., [1975] 1SCR449; Mohd. Bhaktir v.
Krishna Reddy, 1970 S.L.R. 768 and A.K Bhatnagar v. Union of India,
F
[19911 t sec 544, referred to.
8. Rule 3 of the Residuary Rules provides the power to relax rules
and regulations in certain cases, - Where the Central Govt. is satisfied that
the oyeration of - (i) any rule made or deemed to have been made under
the Act, or (ii) any regulation made under any such rule, regulating the
G conditions of service of persons appointed to an All India Service "causes
undue hardship in any particular case", it may, by order, dispense with or
relax the requirements of that rule or regulation, as the case may be, to
such an extent and subject to such exceptions and conditions as it may
consider necessary for dealing with the case in a 'just and equitable
H
nianner". Rule 3 empowers the Central Govt. to relieve undue hardship
-
SYED RIZVI v. U .0.1.
187
occurred due to unforeseen or unmerited circumstances. The Central A
Govt. must be satisfied that the operation of the rule or regulation brought
about undue hardship to an officer. The condition precedent, therefore, is
that there should be an appointment to the service in accordance with rules
and by operation of the ru~e, undue hardship has been caused, that too in
an individual case.
The Central Govt. on its satisfaction of those B
conditions, have been empowered to relieve such undue hardship by exer·
cising the power to relax the condition. Conditions of recruitment and
conditions of service are distinct and the latter is preceded by an appoint·
ment according to Rules. The former cannot be relaxed. The latter too
must be in writing that too with the consultation of U.P.S.C.
[215-G, ff; 216-A·D]
State of Orissa & Anr. v. B.K Mohapatra, [1970] 1 SCR 255; Anil
Kumar Choudhary v. State of Assam & Ors., [1975] 3 SCR 878; R.P. Khanna
& Ors. v. SA.FAbbas & Ors., [1972] 3 SCR "548 andAmrik Singh & Ors. v.
Union of India & Ors., [1980] 3 SCR 485, relied on.
Narender Chadha & Ors. v. Union of India & Ors., [1986] { SCR 2tl,
referred to a~d explained.
9. The appointment by promotion to the Indian Police Service and
c
D
as a fact to any All India Service and determination ot int(!r se seniority .E
bear vital effect at the higher echolons of super time scale of pay and the
above. The State Govt. and the Central Govt. should strictly comply with
the provisions in making recruitment by promotion from the State Service
to the All India Services. If laxity has been given legitimacy and deemed
relaxation is extended it would not only upset smooth working of the rules
but als_o undo the prescribed ratio between promotee officers and direct
recruits. It would also produce adverse affect . at the All India level;
Moreover, the concept of All India Services introduced to effectuate the
national integration by drawing persons from different regions by direct
recruitment into concerned State cadres would be defeated by manipula·
F
tion National integration would be disturbed and frustrated. Smooth G
implementation of the rules would be deflected and distortions in service
would gain legitimacy and acceptability. While the Central Govt. remains
statutory appointing authority the State Govt. gets into saddle and would
become de facto ~ppointing authority. The junior most and unqualified or
unfit would be pushed from back door and pumped up into higher H
188
SUPREME COURT REPORTS [1992] SUPP. 3 ~~C.R.
A
echolons, eroding efficiency and honesty. For failure to prepare select list
every year, rule 3(3)(b) of the Seniority Rule, Rules Sand 9 oi Recruitment
Rules and Regulation 9 of Promotion Regulations have not )Jeen broken
down and the appointment by local arrangement by the State Govt. under.
Regulation 8 of the Promotion Regulations and.Rule 9 of Cadre Rules are
B
c
not. valid and legal. The promotee officers are not entitled to count their
whole officiating period towards their seniority. (218-B-F]
Union of India v. Mohan Lal Capoor & Ors., [1973] 2 SCC 836 and
A.N. Sehgal & Ors. v. Raje Ram Sheoran & Ors., (1992] Suppl. 1 SCC 304,
relied on.
Narender Chad/ta.& Ors. v. Union of India & Ors., (1986) 1 SCR 211,
referred to.
10. The majority members of the Central Administrative Tribunal
D committed the gravest of errors in holding that EJ.planation 1 to rule
3(3)(b) of Seniority Rules and the relevant rules were deemed to have been
relaxed and the directions given to the Central Govt. to refix the seniority
is illegal. However, many of the promotees have since been retired from
service after working out notional promotion and monetary benefits, as
E
this Court did not stay. the operation of the tribunal's order, arrears paid
should not be recovered from them and promotions already made to some
of the promotees and now continuing in the respective offices may not also
be recalled. However, the continuing officers should not be entitled to any
future promotions on the basis of the directions of the Tribunal, superF
seding the claims of the direct recrμits until they became eligible in .their
turn as per this judgment. The Registry is directed to return the seniority
lists produced by the State Govt., which would give notice to the promotees
who were included in the notional list of their inter se placement of the
resptdive years 1971, 1975, 1976, 1979 and 1980 directing them to submit
within a specified time their objections, if any, and the State Govt. would
G send the list, the objections if made and all relevant records to the U.P.S.C.
marking copies thereof to the Central Govt. The Central Govt. would
submit their comments to the U.P.S.C. which would consider them and
may accept or modify the list as per the record and would communicate
to the Central Govt. and State Govt. Thereafter the Central Govt. would
H
~ake necessary appointments on the recommendation by the State Govts.
SYED RIZVI v. U.O.I.
189
as per law. The seniority list already approved by the Central Govt. as A
directed by this Court in the first instance subject to the above modification and for the rest of the years would stand. For others the respective
years of allotment shall accordingly be assigned. (219-D-H; 220-A]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 823 of B
1989.
From the Judgment and order dated 9.12.1988 of the Central Administrative Tribunal, Allahabad in Registration O.A. No. 626 of 1987.
WITH
Contempt Petition No. 191/91, I.A. No. 1-10/91.
IN
c
C.A. Nos. 2932, 1801, 2464 & 3165-67 of 1989, 1804-05/88, 1382, 1383 D
& 3712 of 1987, 1317-18/91, 1802/89, 1/90, 4709-10/90 and 2964/89.
AND
W.P. Nos. 668/91 and C.A. Nos. 4955, 4949 & 4950/92.
P.P. Rao, R.K. Gupta, P.C. Kapur in C.A. Nos. 2932/89, 1801/89,
823/89, 2464/89, 3165-67/89 & 2964/89.
A.R. Chaphekar in C.A. No.
1382/87, P. Parmeswaran in C.A. Nos. 1383 & 3712/87, Ms. Rachna Gupta
in C.A. Nos. 4709-10/90. Harish 1~. Salve, U.N. Singh and Vishwajeet Singh
in C.A. Nos. 2932, 823, 1317-18, 1/90 & 4950/92. A.K. Goel in C.A. Nos,
2932, 1801 & 2464 of 1989, 1382, 1383 of 1987 and 4949 of 1992. Altaf
Ahmad Addi. Solicitor General, V.C. Mahajan, T.C. Sharma, Ms. A
Subhashini and Ms. Sushma Suri for Union of India. C.V.S. Rao in. C.A.
Nos. 1801/89, 1317-18/91, 1802/89, 1/90. 2964/89 & 4950/92. Pradeep
Misra,
M.K. Maheshwari, R.K. Jain, Ms. Abha R. Sharma, Ashish
Verma, Manoj Goel and R.P. Singh in C.A. Nos. 823/87, 1382/87,
1383/87, 3712/87, 1802/89 & 4955192. Ashok K. Srivastava in C.A. No. 823/
89. Pankaj Kaira in C.A. No. 823/89 & 1383/87, Altaf Ahmad in C.A. Nos.
3165-67/89, Devendra Singh in C.A. Nos. 3165-67 & W.P. No. 668/91. B.B.
Singh in C.A. No. 4955/92, Rachna Gupta in C.A. Nos. 3165-67/89, P.K.
I
190
SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.
A
Jain.in C.A. No. 4709-10/90, 3165-67/89 & 4949/92, V. Yadav and R.C.
B
Verma for State of U.P., Ms. P.S. Shroff, Ms. S. Sohi, S.S. Shroff for S.A.
Shroff & Co. in C.A. No. 1805/88. Surya Kant and T.N. Singh in C.A. No.
823/89 for the appearing parties.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. Leave granted ..
This bunch of 22 appeals and one writ petition raise the traditional
tangle of inter-se seniority between the India Police Service Direct Recruits
C
and U.P. State Police Service, Special Grade Deputy Superintendents of
Police for short 'Promotees'. It is not necessary to detail myriad facts in all
the appeals but shortly stated the facts in Civil Appeal No. 823 of 1989 are
sufficient to decide the controversy by a common judgment. The appellants
were direct recruits of the years 1970 and 1973 into Indian Police Service
D 'and were allotted to U.P. cadre. The respondents Nos. 3 to 9, Trivedi
Kumar Joshi & Others were appointed as Deputy Superintendents of
Police between July 12, 1961 to July 7, 1963 in substantive capacity in State
Service and were promoted between October 4, 1973 to June 2, 1975 to
perform the duties of the cadre posts of Superintendents of Police, conE
tinued to occupy the said posts till they were included in the select list
(Respondent No. 3 in 1977, Respondents Nos. 4 to 9 in 1978) and were
latte.r appointed and ·confirmed in the Indian, Police Service w.e.f. various
dates between July 29, 1978 to- December 6, 1980.
F
When the inter-se seniority list was prepared and published on April
24, 1977 showing the respondents as juniors to the appellants, they represented to the Govt. of India that since they had continuously officiated on
the cadre posts without break from the respective dates of promotion, their
entire continuous officiating period should be counted towards seniority in
Indian Police Service. They requested to redetermine their seniority giving
G
them years of allotment from the respective dates of continuous officiation
dating back to 1968, 1969 and 1970 to respondents Nos. 3, 4, 5, 6 and- 7 to
9 respectively. The State Govt. rejected their claim in 1980. Preceding
thereto some of their senior promo tees filed writ petition Nos .. 44904499/80 and 5128-29/80 in this court questioning the validity of Rule 3
(3)(b) and 2(g) of I.P.S. (Regulation of Seniority Rules, 1954) for short
SYED RIZVI v. U.0.1.[RAMASWAMY,J.]
191
'Seniority Rules' and Regulation 5 of l.P.S. (Appointment by Promotion) A
Regulation 1955 for short the 'Promotion Regulations' claiming the same
relief. A Bench of three Judges of this Court directed the Central Govt. to
determine the year of allotment of each of the respondents in accordance
with Rule 3(1) of the Seniority Rules and also the question as to whether
they were entitled to the benefit of continuous officiation of the posts of B
.Superintendent of Police under Rule 3(3)(b) of the Seniority Rules in the
light of the decisions in Union of India v. G.N. Tiwari, (1985] Suppl. 3 SCR
747, Narendra Chadha & Ors., v. Union of India & Ors., (1986] 1 SCR 211
and other decisions interpreting the analogus provisions of the All India
Services Act, 1951 and the relevant rules and regulations framed thereC
under. After giving suffi<:;ient opportunity to the promotees and the direct
recruits and considering the material, the Central Govt. by Order dated
July 1, 1986 fixed the seniority and had given them 1968, 1970 and 1972 as
years of allotment respectively the details thereof do not bear relevance for
disposal of the appeals. Challenging the correctness thereof Bhupinder D
Singh and Others filed 0.A. No. 583/86 in the Central Administrative
Tribunal at Allahabad. When it came up before a bench of two members,
the judicial member held that by operation of Explanation 1 to Rule 3(3)(b)
of the Seniority Rules, the promotees are entitled to get seniority from the
date of inclusion of their names in the select list. The officiation period has
to be counted only from that date. The year of allotment under Rule 3(1)
read with Rule 3(3)(b) of the Seniority Rules should be drawn accordingly
bringing on notional list for 1971, 1975 and 1976. The administrative
member held that by (")nduct, the .Central Govt. must be deemed to have
relaxed the requirement of Explanation 1 to Rule 3(3)(b) of the Se11iority
Rules as the State Govt. did not prepare the select list for the years 1971,
1975 and 1976 and by non action the rule regulating seniority had been
broken down and accordingly directed to prepare the seniority list, counting their continuous officiation from the date of their initial promotions.
On reference, the Vice-Chairman agreed with the administrative member
E
F
and accordingly directed the Govt. of India to prepare the seniority list G
afresh. This is the subject matter in C.A. No. 1382/87 and Union of India
filed C.A.No. 1383/87. The Central Govt., however, considered afresh and
fixed seniority again on April 24, 1987 showing them as juniors to the
appellants, which was impugned in O.A. Nq. 676/87 and was allowed. Civil
Appeal No. 823/89 arises against it. ·union of India filed C.A.No. 1801/89. H
192
SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
A
Following that order in the main judgment dated December 12, 1988 in
0.A. No. 583 of 1986, the C.A.T. at Allahabad practically reiterated the
same view and directe\d the Central Govt. in aU. other cases to prepare the
seniority list afresh whether they officiated either in the cadre posts or
ex-cadre posts. Thus all the appeals are before us by special leave.
B
c
D
E
F
The admitted facts are that the promotees held their substanti_ve
posts as Deputy Supf1rintendents of Police of the U.P. Police Ser.foe. They
were not included in the select list. Though the State Govt. initially ap-
'
pointed them as Superinter.dents Jf Police, obviously for a period of 3
months, they continued to officiate in cadre posts uninterruptedly. Though
the direct recruits contended that the posting of the promotees to the cadre
posts was the result' of the manipulation at the behest of the State level
officers, assuming, without deciding for the purpose of this case, that the
promotees were posted to discharge the duties of the cadre posts when the
direct recruits went, on deputation in excess of the quota and .that there
existed dearth of the direct recruits or the suitable officers from the select
list to hold 'the cadre posts. Their promotion to officiate in the cadre posts
was by local or ad-hoc arrangement. The record does not bear out that the
State Govt. had sent any reports to the Central Govt. from time to time
with reasons therefor, nor obtained prior concurrence from Central Govt.
to promote the non-select list officers to officiate on the cadre posts.
Admittedly the Un.on Public Service Commission was· not consulted when
the promolees continued to officiate in the cadre posts for one year and
more. There is. no :express order passed by the Central Govt. under Rule
I
3 of the Residuary Rules relaxing rule 3(3)(b) of Seniority Rules and
Regulation 5 of Promotion Regulations.
These facts ,and diverse contentions of the counsel on either side
would give rise to the following questions : (i) whether the promotees have
been appointed to' I.P.S. according to Rules? (ii) whether their continuous
G
officiation in cadre posts would enure to their seniority entitling to the year
of allotment from ! the dates of their initial promotions; (iii) whether their
inclusion in the select list ·and the computation of seniority from that date
are conditions of ~ervice; and (iv) whether the facts would justify to draw
the presumption of deemed relaxation of relevant rules by rule 3 of the
H Residuary Rules?
l
i
SYED RIZVI v. U.0.1. [RAMASWAMY,J.)
193
The recruitment rules provide the method of recruitment to the
Indian Police Service. Rule 2(aa) defines 'direct recruitment' means a
person appointed to the service after recruitment under clause (a) of
sub-rule (1) of rule 4; rule 2(d) defines 'service' means the Indian Police
Service; rule 2(g) defines 'State Police Service' means - in all other cases,
the principal police service of a State, a member of which normally holds
charge of a sub-division of a district for purpo~es of police administration
etc ..... Similar definitions were given in all the rules and it is not necessary
to repeat them once over. Rule 3 provides constitution of the I.P. Service;
Rule 3(1)(a) an9 3(1)(b) are not necessary, hence omitted; Rule 3(1)(c)
provides that persons recruited to the Service in accordance with the
provisions of these rules are members of the service. Rule 4(1) postulates
that recruitment to the service, after the commencement of these rules,
shall be by the following methods, namely, (a) by competitive examination;
the details are not relevant and (b) by promotion of substantive members
A
B
c
of a State Police Service. Sub- rules 2, 3 and 4 are not relevant, hence
omitted. Rule 5 prescribes the disqualification for appointment which is D
not material for the purpose of this case, hence omitted. Rule 6(1) posits
that 'all appointments to the service', after the commencement of these
rules 'shall be made by the Central Govt.' and 'no such appointment should
be made except after recruitment by one of the methods specified in Rule
4'. Rest of the sub-rules are not necessary hence omitted. Rule 7 provides
recruitment by competitive examination, the material details thereof are E
not germane. Rule 9 which is material for the purpose of this case provides
thus:- Recruitment by promotion : 9(1) 'The Central Govt. may', on the
recommendation of the State Govt. concerned and 'in consultation with the -
U.P.S.C.', 'recruit to the Service' persons by promotion from a~ongst the
(substantive)members of a State Police Service in accordance with such
F
regulations as the Central Govt. may, after consultation with the State Govt.
and the Union Public Service Service Commission, from time to time,'
made. Sub-rule (2) provides the number of persons recruited under subrule (1) in any State or group of State shall not at any time, exceed 33-1/3
per cent of the number of those posts as are shown against items 1 and 2 G
of the cadre in relation to that state or to the group of states in the :;chedule
to the I.P.S. (Fixation of Cadre Strength) Regulation, 1955. Sub-rule (3)
etc. are not necessary hence omitted. Sub-rule (5) provides that notwithstanding anything contained in sub-rule (2), the Central Govt. may
promote substantive members of a State Police Service in excess of the
normal promotion quota in accordance with such regulations as the Central H
A
B
c
D
E
194
SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.
Govt. may, after consultation with the State Govt. and the Commission,
fr;~m time to time, made.
A reading of these provisions 'do indicate that to become a member
of the Indian Police Service, by promotion, one must belong to the State
Police Service and must hold substantive post in that Service. The appointment t9 the service should be made by the Central Govt. No such app9intment slwuld be made except after 'recruitment' by one of the methods
-spe_cified in Rule 4 i.e. direct recruitment and by promotion. The recruit_ment by promotion under Rule 9(1) should be made by the Central Govt.
on the recommendation of the State Govt. concerned and the consultation
of the U.P.S.C. is mandatory; A person thus recruited by promotion or
direct recruitment alone should become a member of the Indian Police
Service .. The ratio of recruitment of 33-1/3 per cent between the appellants
and the respondents has been limited to initial recruitment only.
Regulation 3 of the Promotion Regulations enjoins the State Govt.
to constitute the. Committee to select the promotees, consisting of the
Chairman of the U.P.S.C or its Member; the Chief Secretary. Secretary
Home Department; Director General of Police, in his absence Inspector
General of Police; a member of the Service not below the rank of Deputy
Inspector General of Police; and a nominee of the Govt. of India not below
the rank of Joint Secretary, who shall prepare, under Rule 5, a list of
suitable officers. Under Rule 5(1) each committee may 'ordinarily meet at
intervals not exceeding one year' and prepare a list of such member~ of the
State Police Service, as are found 'to be suitable for promotion to the
Service'. The number of members of the State Police S~rvice to be included
F
in the list shall be calculated as the number of substantive vacancies
anticipated in the course of the period of 12 months, commencing from the
date of preparation of the list, "in the posts available for them under Rule 9
of the Recmitmcnt Ritlcs" plus twerity per cent of such number "or two
whichever is greater" (emphasis supplied). Under sub-rule (2) of Rule 5
G the Committee shall consider for inclusion in the said· list., the cases of
members of the State Police Service in the order of seniority in that service
of such number which is equal to "three times the number" referred to in
sub regulation (1). The provisos are not relevant, hence omitted. The
member of the State Police Service eligible for inclusion must possess the
following qualifications i.e. (i) he is a substantive member in the State
H Police Service, (ii) he has completed not less than 8 years of continuous
r
SYED RIZVI v. U.0.1. [RAMASWAMY,J.]
195
ser\rice whether officiating or substantive in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by
the State Govt., and (iii) he has not attained the age of 52 years (on the
first day, earlier January and now as amended April of the year in which
the Committee meets. It has been amended to 54 years as per the latest
amendment dated April 5, 1979). If the committee does not meet in ·the
interregnum the age barred _officer also may be considered in the
committee's next meeting. Sub-rule (3) issues a mandate that the committee shall not consider the member who has attained the age of 52 (54) years
as on date. The mechanism for selection and the number of officers to be
included are not material for the purpose of the case. Hence it ~as not
been adverted to. The committee shall classify the eligible officers as
'Outstanding', 'Very Good', 'Good' or 'Unfit', as the case may be, "on an
overall relative assessment of their service record", vide regulation 5( 4).
The list shall be prepared by including the required number of names in
the order specified in sub-regulation 5( 4) in the order of merit inter-se
within each category, i.e. "outstanding etc. shall be in the order of their
seniority in the State Police Service. Under regulation 5'6) the list so
prepared "shall be reviewed and revised every year". Regulation 6 mandates
the State Govt. to forward the select list to the U.P.S.C. for approval, along
with the records and remarks of the members, a copy thereof "shall also
be forwarded to the Central Govt." who "shall send their observations" on
the recommendation of the Committee to the U.P.S.C. Under Regulation
7 "after considering the service records" and observations of the Central
Govt, State and the Committee, if the U.P.S.C. considers necessary, it has
been empowered to change the order in the list and shall inform the State
Govt. of the proposed changes. Thus the U.P.S.C. "may approve the list
finally with such modification, if any, as may in the opinion of the U.P.S.C
be just and proper". Under regulation 3 thereof the "list finally approved by
the commission shall f om1 the select list of the promotee officers".