WP/17373/2003 of K. Lakshman Mohan, Vs Union of India, rep., by its on 27 December 2004

1. K.Lakshman Mohan s/o late K.Sugunakar Rao, Krishna District, R/O Machilipatnam.

2. The State of Andhra Pradesh, rep., by its ChiefSecretary to Government, General Administration Department, Secretariat Buildings, Hyderabad.

3. The State of Andhra Pradesh, rep., by its Principal Secretaryto Government, Home Department, Secretariat, Hyderabad.

… RESPONDENT/

PETITIONER AND RESPONDENT NOS.2 & 3 IN DO

Counsel for the Petitioner:- A.Sanjeeva Kumar Counsel for the Respondent No.1 : Mr.NOOTY RAMA MOHAN RAO

Counsel for the Respondent Nos.2 and 3:THE ADDITIONAL ADVOCATE GENERAL

Petition under Section114 of C.P.C., praying that in the Circumstances stated in theMemo of petition the High Court may be pleased to review the order dt. 18-3-2004 inW.P.No.17373 of 2003 on the file of this Court.

AND

Rev. W.P.M.P NO : 10159 of 2004

BETWEEN:-

1. State of Andhra Pradesh, rep., by its Chief Secretary to Government, General Administration Department, Secretariat,Hyderabad.

2. State of Andhra Pradesh, rep., by its Principal Secretary to Government, Home Department, Secretariat, Hyderabad.

AND

………..REVIEW PETITIONERS/(RESPONDENTS 2 AND 3 IN W.P.NO. 17373 OF 2003)

1. K.Lakshmi Mohan s/O late K.Sugunakar Rao, R/O Machilipatnam, Krishna District.

2. Union of India, rep., by its Secretary to Government,

….. RESPONDENT/PETITIONER AND 1[ST] RESPONDENT IN DO.

Counsel for the Petitioner: ADDITIONAL ADVOCATE GENERAL OF A.P.

Counsel for the Respondent NO.1: Sri. NOOTY RAMA MOHAN RAO

Counsel for the Respondent No.2 :A.SANJEEVA KUMAR

S.C. FOR CENTRAL GOVERNMENT.

Petition under Section 114 of CPC read with Order 47 Rule 1 of CPC prayingthat in the Circumstances stated in the memo of petition the High Court may bepleased to review the judgment dt 18-3-2004 in W.P.NO.17373 of2003 on the file ofthis Court.

W.P.NO. 17373 of 2003

BETWEEN: -

K. Lakshman Mohan S/o late K. Sugunakar Rao, occu: Superintendent of Police, Krishna District, r/oMachilipatnam

…...PETITIONER

AND

1. Union of India, rep. by its Secretary to Government,

2. State of Andhra Pradesh, rep. by its Chief Secretary to Government, General Administration Department, Secretariat,

3. State of Andhra Pradesh, rep. by its Principal Secretary to Govt., Home Department, Secretariat, Hyderabad.

…..RESPONDENTS

Petition under Article 226 of Constitution of India praying that in the circumstances stated inthe Affidavit filed herein, the High Court may be pleased to issue a writ, Order or directionmore particularly one in the nature of writ of Certiorari by:

a. Calling for the record relating to and connected with O.A.NO. 988 of 2002, dated: 6/5/2003 onthe file of Central Administrative Tribunal, Hyderabad and set aside the same;the file of Central Administrative Tribunal, Hyderabad and set aside the same;

b. Also declare the action of the respondents in not treating the petitioner as to have beenpromoted on and from 31.12.1996 as bad in law and unjust;promoted on and from 31.12.1996 as bad in law and unjust;

c. Consequently, declare that the petitioner is entitled to be treated to have been holding the poston I.P.S. on and from 31.12.1996.on I.P.S. on and from 31.12.1996.

d. Direct the respondents to review the Order of allotment of the petitioner as 1990 in pursuance ofsuch a declaration, grant all consequential benefits that would flow from out of such a revisionof year of allotment like fitness arrears and promotions to higher grade etc.such a declaration, grant all consequential benefits that would flow from out of such a revisionof year of allotment like fitness arrears and promotions to higher grade etc.

For the Appellant: Mr. NOOTY RAMA MOHANA RAO

For the Respondent No.1: Mr. A. SANJEEVA KUMAR

S.C. FOR CENTRAL GOVERNMENT.

For the Respondents No.2 & 3: THE ADDITIONAL ADVOCATE GENERAL.

The Court made the following Order:-

1. The Review Petitions are filed by the Union of India and State Governmentseeking to review the judgment passed by this Court in W.P.No. 17373 of 2003,dated: 18.3.2004.

2. Respondent herein filed O.A.NO. 988 of 2002 on the file of the CentralAdministrative Tribunal, Hyderabad seeking declaration that he shall be deemed tohave been promoted and has been holding the post in the I.P.S. Cadre from31.12.1996 and consequently sought directions to the respondents to review theyear of allotment of the petitioner to I.P.S. as 1990 and for consequential benefitsflowing out of the revised year of allotment.

3. The learned tribunal, however, on considering the matter held that the petitionerwas not entitled for the relief as claimed for and accordingly dismissed the O.A. byan Order dated: 5.5.2003.

4. Aggrieved by the said Order of the Central Administrative Tribunal, he filedW.P.No. 17373 of 2003. The Writ Petition was allowed by this Court by judgmentdated: 18.3.2004. However, the respondents filed the Review applications statingthat the matter was considered under the amended provisions of I.P.S. (Regulationsof Seniority) Rules, 1988 was considered under the amended provisions, but in factthe case ought to have been considered under the unamended rules. Therefore, ifthe matter is considered under the unamended Rules, the respondent is not entitledfor relief as granted by this Court. However, it is to be noted that none of the partiesbrought to the notice of this Court about this position and made the submissionsbasing on the amend provisions only. In view of the present situation, the matter hasto be considered only under the unamended Rules. Thus, we find, it is a fit case forreviewing the Order. Accordingly, we allow the Review Petition and set aside the

5. The matter is heard again on merits. The brief facts as set out by the petitioner aretraced out as follows:

The petitioner was selected by the A.P. Public Service Commission by directrecruitment to the post of Deputy Superintendent of Police. He was appointed to thesaid post in the year 1978 after completion of training he was posted as S.D.P.O.Nalgonda with effect from 11.10.1980. Petitioner has been discharging his dutieswith utmost dedication and he received appreciations from his superiors. He alsoearned number of commendations. He was posted to sensitive areas, and he wasawarded A.P. Police Uttam Seva Pathakam in 1992. He was also awarded IndianPolice Medal for meritorious Services in January, 1997. He became eligible forpromotion to I.P.S. cadre under the provisions of the All India Services Act. TheCentral Government framed I.P.S. (Recruitment) Rules, 1954. The recruitment toI.P.S. takes place from various sources. Rule 4 stipulates method of recruitment tothe service, which reads thus:

“4. Method of recruitment to the Service:-(1) Recruitment to theService, after the commencement of these rules, shall be by thefollowing methods, namely:-

a. by a competitive examination;

(aa) by selection of persons from among the EmergencyCommissioned Officers and Short Service CommissionedOfficers of the Armed Forces of the Union, “who werecommissioned on or after the 1[st] November, 1962 butbefore the 10[th] January, 1968, or who had joined any pre-Commission training before the latter date, but who arecommissioned on or after that date” and who arereleased in the manner specified in sub-rule (1) of rule 7-A.

b. by promotion of substantive members of a State Police Service.

(2) Subject to the provisions of these rules, the method ormethods of recruitment to be adopted for the purpose of fillingany particular vacancy or vacancies in the Service, or such vacancies therein as maybe required to be filled during anyparticular period of recruitment, and the number of persons tobe recruited by each method shall be determined on eachoccasion by the Court in consultation with the Commission andthe State Government concerned.

(3) Notwithstanding anything hereinafter contained in this rule,in relation to the State of Jammu and Kashmir, recruitment tothe State Cadre on its initial constitution shall be made by suchmethod, as the Central Government may, after consultation withthe State Government and the Commission prescribe.

(4) Notwithstanding anything hereinafter contained in this rule,in relation to the Union Territories and the North East FrontierAgency recruitment to the Joint Cadre on its initial Constitutionshall be made by such method, as the Central Government may,after consultation with the Commission, prescribe.”

Rule 6 regulates appointment to the service, which is extracted below:

“-6. Appointment to the Service:(1) All appointments to theService after the commencement of these rules shall be made bythe Central Government and no such appointment shall be madeexcept after recruitment by one of the methods specified in rule4.

(2) The initial appointments of persons recruited to the Serviceunder clause (a) and (appellate authority) of sub-rule (1) of rule 4shall be in the junior time-scale of pay.

(3) The initial appointments of persons recruited to the Serviceunder clause (b) of sub-rule (1) of rule 4 in accordance with theprovisions of the Indian Penal Code (Appointment byPromotion) Regulations, 1955 shall be in the senior time-scale ofpay.”

But, in this case we are only concerned with the promotion from the substantivemembers of State Police Service and such appointments are governed by the I.P.S.(Appointment and Promotion) Regulations, 1955 (for brevity PromotionRegulations). Under Regulation 3, a committee is constituted to make selection forthe purpose of recruiting suitable Officers to the Service and detailed procedure

relating to preparation of the list of suitable Officers is stipulated in Regulation 5. Itmay be stated that the Officers of the Rank of Deputy Superintendent of Police in theState Service and who have put 8 years of service are eligible to be considered forconsideration of such promotion. The seniority list at the State Level Officers will bedeterminative factor. However, the turn of the petitioner fructified for 1995-96. For thepurpose of preparation of the seniority list, the Select Committee met on 14.3.1995for making recommendations for promotion to I.P.S. Cadre. Petitioner was oneamong 18 candidates. However, he was not recommended by the selectioncommittee. Aggrieved by the said action, he filed O.A.NO. 498 of 1995 before theCentral Administrative Tribunal. The learned tribunal dismissed the same by anOrder dated: 7.11.1997. While O.A. was pending, the petitioner was considered forI.P.S. again during 1996. The Select Committee, which met for the purpose ofrecommending the candidates in 1996, the petitioner appears to have been placedat Sl.No. 3, out of four names recommended. At that relevant time, there were onlytwo clear vacancies. Therefore, Sl.No. 1 and 2 were immediately promoted. The 3[rd]vacancy would arise on the retirement of one K.L. Reddy. It was to take place on31.12.1996. It is the case of the petitioner that the said K.L. Reddy was relieved on31.12.1996/A.N. and the petitioner was asked to take over the charge from K.L.Reddy immediately and he took over the charge from K.L. Reddy by 1.30 p.m.

6. It is the case of the petitioner that he was issued with appointment Order witheffect from 1.1.1997 to I.P.S. and that he was erroneously allotted the year ofallotment of 1991 instead of 1990. Under the I.P.S. Recruitment Rules, year ofallotment is governed by Rule (3). Under the said rule, a person would be givenweightage to the Police Service and the year of allotment would be fixed based onthe Service rendered by him in the feeder category subject to certain limits. It is theprinciple contention of the petitioner that since he has taken over the charge fromK.L. Reddy from the Afternoon of 31.12.1996, he is deemed to have been appointedfrom 31.12.1996 and not from 1.1.1997 and if the appointment is reckoned from

7. Two questions would arise in this case. Firstly, what is the date of appointment ofthe petitioner whether it is 31.12.1996 Afternoon or 1.1.1997 and secondly, thefixation of year of allotment whether it is 1990 or 1991. This Court in the Order dated:18.3.2004 in the Writ Petition, while dealing with the issue No.1 held that hisappointment to I.P.S. has to be reckoned from 1.1.1997 even though he has takencharge from K.L. Reddy on the Afternoon of 31.12.1996. We reiterate the same viewin this Order also.

8. The next question that calls for consideration is fixation of year of allotment.However, as already observed by us, that the matter was considered under theamended rule 3 of I.P.S. (Regulation of Seniority) Rules, 1988 (for brevity “SeniorityRules), but the requirement is that the issue has to be considered under pre-amended rule 3.Therefore, let us consider the matter with reference to the pre-amended rule.

9. It is the contention of the official respondents that the year of allotment has to becalculated on the basis of the unamended rule as existed prior to 1.1.1998 as thepetitioner was appointed prior to amendment of rule 3(ii) on 1.1.197. Therefore, theweightage of the petitioner should be calculated on the basis of the said old rule.The said Rule provides that the year of allotment of the promotee Officer should bereckoned from the date of the Officer was appointed to the Service. The facts are notmuch in dispute. As can be seen from the Service record of the petitioner, he wasappointed as Deputy Superintendent of Police on 27.12.1978. However, he wasappointed by promotion to I.P.S. with effect from 1.1.1997 even though, he tookcharge from his predecessor K.L. Reddy on the Afternoon of 31.12.1996. Therefore,we are required to consider the case of the petitioner under Rule 3 as existed prior to1.1.1998. Rule 3 contains assignment of year of allotment, which reads thus:

“-3. Assignment of year of allotment(1) Every Officer shall be assigned a year of allotment in accordance with the provisionshereinafter contained these rules.

(2) The year of allotment of an Officer in Service at thecommencement of these rules shall be the same as has beenassigned to him or may be assigned to him by the CentralGovernment in accordance with the rules, orders andinstructions in force immediately before the commencement ofthese rules.

(3) The year of allotment of an Officer appointed to the serviceafter the commencement of these rules shall be as follows:-

(i) the year of allotment of a direct recruit Officer shall bethe year following the year in which the competitiveexamination was held; Provided that, in the case of exempted probationers, asdefined in clause (ee) of rule 2 of the I.P.S. (Probation)Rules, 1954, and direct recruit officers, who are permittedto joint probationary training under sub-rule (1) of rule 5of the I.P.S. (Probation) Rules, 1954, with the directrecruit Officers of a subsequent year of allotment, theyshall be assigned that subsequent year as the year ofallotment.

(ii) The year of allotment of a promotee Officer shall bedetermined in the following manner:-

a. For the service rendered by him in the State Police Service upto twelve years,in the rank not below that of a Deputy Superintendent of Police or equivalent,he shall be given a weightage of four years towards fixation of the year ofallotment.in the rank not below that of a Deputy Superintendent of Police or equivalent,he shall be given a weightage of four years towards fixation of the year ofallotment.

b. He shall also be given a weightage of one year for every completed three yearsof service beyond the period of twelve years, referred to in sub-clause (a),subject to a maximum weightage of five years. In this calculation, fractions areto be ignored;of service beyond the period of twelve years, referred to in sub-clause (a),subject to a maximum weightage of five years. In this calculation, fractions areto be ignored;

c. The weightage mentioned in sub-clause (b) shall be calculated with effect fromthe year in which the Officer is appointed to the Service.the year in which the Officer is appointed to the Service.

Provided that he shall not be assigned a year ofallotment earlier than the year of allotmentassigned to an Officer senior to him in that selectlist or appointed to the service on the basis of anearlier Select list.”

However, the said Rule was amended and the amended Rules as far as thePromotee Officer reads thus:

“3. Assignment of year of allotment:(1) to (3) (i)

xxx

(ii) The year of allotment of a promotee Officer shall bedetermined with reference to year in which the meeting of theCommittee to make selection, to prepare the Select List on thebasis of which he was appointed to the Service, was held andwith regard to the continuous service rendered by him in theState Police Service not below the rank of a DeputySuperintendent of Police or equivalent, up to the 31[st] day ofDecember of the year immediately before the year in which themeeting of the Committee to make selection was held to preparethe Select List on the basis of which he was appointed to theService, in the following manner:-

a. for the service rendered by him up to twenty one years, he shall be givenweightage of one year for every completed three years of service, subject to aminimum of four years;weightage of one year for every completed three years of service, subject to aminimum of four years;

b. He shall also be given a weightage of one year for every completed two years ofservice beyond the period of twenty years, referred to in sub-clause (a), subjectto a maximum of three years.service beyond the period of twenty years, referred to in sub-clause (a), subjectto a maximum of three years.

Explanation.- For the purpose of calculation of weightageunder this clause, fractions, if any, are to be ignored.

Provided that he shall not be assigned a year of allotmentearlier than the year of allotment assigned to an Officersenior to him in that Select List or appointed to theservice on the basis of an earlier Select List.”

The said amendment entered force from 1.1.1998. Therefore, let us consider thecase of the petitioner under unamended rule 3. In case of promotee Officers, the yearof allotment has to be determined after giving weightage as follows:

“For the service rendered by him upto 12 years, he is entitled forweightage of four years. Thereafter, he shall be given weightageof one year for every completed three years of service beyondthe date of 12 years. However, the weightages mentioned inclause (b) shall be calculated with effect from the year in whichthe Officer was appointed to the Service.

The expression “Service” was defined to mean Indian Police Service, the expression “promotee Officer” was defined as an Officer appointed to the service inaccordance with the provisions of the I.P.S. Appointment by Promotion Regulation,1955 and the expression “Select List” was defined as List was prepared inaccordance with the Indian Police Service Recruitment Service Regulation, 1955.

10. Under Rule 5 of Promotion Rules, the modalities for preparation of list of suitableOfficers is contained. The Select Committee constitutes under Rule 3 shall meetevery year and prepare list of the members of the State Police Service foundsuitable for promotion to the Service. The number of members of the State PoliceService to be included in the list shall be determined by the Central Government inconsultation with the State Government concerned and shall not exceed twice thenumber of substantive vacancies anticipated in the course of the period of 12months commencing from the date of preparation of list. The list so prepared will bereviewed and revised every year.

11. Under Rule 7, the Union Public Service Commission shall consider the listprepared by the Select Committee and prepare final list and the said list shall form aselect list of the members of the State Police Service. The said Select List shallremain in force till it is reviewed or revised. However, this rule was further clarified bysubstitution of sub-rule (4) to Rule 7 with effect from 1.1.1998, which reads thus:

“7. Select list:-

(1) to 3): xxx xxx xxxx

(4) The Select List shall remain in force till 31[st] day ofDecember of the year in which the meeting of theselection committee was held with a view to prepare thelist under sub-regulation (1) of Regulation 5 or up to sixtydays from the date of approval of the Select List by theCommission under sub-regulation (1) or, as the case maybe, finally approved under sub-regulation (2), whicheveris later.”

12. Rule 9 relates to appointment to the service from the select list. Under the saidRules, the appointment of the members from the State Police Service shall be madeby the Central Government in the order in which the members of the State Police Service appeared in the select list for the time being in force. Therefore, it is not indispute that the petitioner was figuring as Sl.No. 3 in the select list for the year 1996and a fresh select list shall be prepared for 1997 and thereafter every year. Theexpression “year” was defined in the amended rules as a “period of commencementfrom 1[st] January and ending 31[st] day of December of the same year”. Therefore,when the name of the petitioner figuring in select list of 1996, it shall remain validupto 31[st] December of the year in which the meeting of the Select Committee washeld. However, under Rule 9, the appointment takes place from out of the select listfor the time being in force during the period when the select list is in force.Admittedly, in the instant case, the petitioner was selected in the select list for theyear 1996 and he was appointed from out of the select list and he took charge fromK.L. Reddy on the Afternoon of 31.12.1996 and such an arrangement is permissibleunder the Promotion Rules.

13. Therefore, the crucial question that calls for consideration is the date ofappointment to the service from the select list? Though he was appointed to I.P.S. bynotification issued by the Central Government with effect from 1.1.1997, but the factremains that he was appointed from out of the select list of 1996 and the listprepared for 1996 is valid for one year. The validity of the select list shall standextinguished at the end of the year and fresh select list for 1997 was prepared andthe select list for 1996 becomes inoperative. Therefore, rule 7 and 9 have to beinterpreted harmoniously. Hence the expression as appearing in clause 3© namely“the weightage mentioned in sub-clause (b) shall be calculated with effect from theyear in which the Officer was appointed” has to be given meaningful interpretation.Even though he was appointed on 1.1.1997, it has to be only construed as havingbeen appointed on the last day of the year in which the meeting of the selectcommittee was held for the purpose of Rule 3(3)(ii)(2) and thus the expression “theyear in which the petitioner was appointed to the service” has to be only reckonedwith reference to the year in which the select committee held its meeting. Further, inthis case we find peculiar and unanticipated features. One Cadre Officer by name K.L. Reddy retired with effect from 31.12.1996 and as per the undisputed situationthe petitioner took charge from him on 31.12.1996/A.N. and according to thepetitioner he took charge at 1-30 p.m. itself and it is also borne out by thedocuments. Therefore, the vacancy was deemed to have occurred on31.12.1996/A.N. The select list was prepared and approved by the Union PublicService Commission for 1996, which also include the post held by K.L. Reddy andin fact the petitioner was earmarked to fill up the vacancy of K.L. Reddy. If thevacancy had been treated for 1997,the appointment would be made from 1997select list. Added to this, the petitioner started officiating to I.P.S. Cadre post from31.12.1996/A.N. followed by regular appointment from 1.1.1997. This type ofcoincidences are exceptionally rare. Therefore, viewed from dual angles, the year inwhich Officer was appointed to the service is to be taken as 1996, having beenselected in 1996 select list, he shall be deemed to have been appointed on31.12.1996 for the purpose of calculation of weightages. He had completed 18 yearsby 17.12.1996 by which he earned six weightages and if these six weightages takeninto consideration, the year of allotment will be 1990. That is the reason why he wasallowed to take charge from K.L. Reddy on 31.12.1996 in the Afternoon and nothingcould have prevented the authorities from giving additional charge to another CadreOfficer. It is, however, contended that the petitioner was appointed from1.1.1997onwards and therefore, the year of allotment should be reckoned only as 1997 andnot 1996. But, that contention would go contrary to the rule 7 and 9 of the PromotionRules and also the conduct of the State in directing the petitioner to take charge fromK.L. Reddy with effect from 31.12.1996/A.N.

14. Under those circumstances, we are of the considered view that the Order of thetribunal is not sustainable and the same is set aside and the petitioner is entitled foryear allotment to I.P.S. 1990 and he is entitled for consequential benefits out of thefixation of year of allotment as 1990.

____________________G.BIKSHAPATHY, J

27-12-2004

______________________S.ANANDA REDDY, J

CHV

L.R. COPY: No.

That Rule Nisi has been made absolute as above.

Witness the Hon’ble Devinder Gupta the Chief Justice on this Monday the TwentySeventh Day of December, Two Thousand and Four.

ASST. REGISTRAR

//TRUE COPY//

SECTION OFFICER

THE HON’BLE MR. JUSTICE G. BIKSHAPATHY

(FOR HIS LORDSHIP’S KIND PERUSAL)

To

1. Registrar, Central Administrative Tribunal Hyderabad Bench at Hyderabad.

2. Secretary to Government, Ministry of Home Affairs, Union of India, New Delhi.

3. The Chief Secretary to Government, General AdministrationDepartment, State of A.P. Secretariat, Hyderabad.Department, State of A.P. Secretariat, Hyderabad.

4. The Principal Secretary to Government, Home Department, State of A.P. Secretariat, Hyderabad.

5. 2 CCs. To the Additional Advocate General, High Court of A.P. Hyderabad (OUT)

6. 2 CD Copies.

7. Two CC’s to Mr. Nooty Rama Mohana Rao, Advocate (OPUC)