WP(C)/33/2010 of Adup Tshering Bhutia Vs State Of Sikkim on 10 October 2012

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THE HIGH COURT OF SIKKIM: GANGTOK `L`; '(Civil Writ Jurisdiction)

DATED : 10.10.2012

COFIAM

HON'BLE MR. JUSTICE PERMOD I(OHLI, CHIEF JUSTICE

Writ Petition fcivill No. 33 Of 2010

Shri Adup Tsherjng Bhutia,Inspector of Police,Sikkim Armed Police,Government of Sikkim,Gangtok.

..... Petitioner,

- versus -

The State of Sikkim,Through the Chief Secretary,Tashiling Secretariat Building,Government of Sikkim,Gangtok,East Sikkim.

The Department of Personnel, A.R.& Training, Public Grievances, CareerOption, Employment SikkjmDevelopment and Chief Minister's Self-Employment Scheme,Gangtok through :The Principal Secretary,Tashiling,Gangtok -737101,East Sikkim.

Home Department through:The Principal Secretary,Tashiling,Gangtok -737101.

Sikkim Police Department through:The Director General of Police,Police Head Quart:er,Government of Sikkim,Gangtok,East Sikkim.The Director General of Police,Police Head Quart:er,Government of Sikkim,Gangtok,East Sikkim.

The Additional Director GeneralOf Police,Of Police,Special Branch,Government of Sikkim,Yangthang Kothi,Gangtok,East Sikkim.Government of Sikkim,Yangthang Kothi,Gangtok,East Sikkim.

Senior Superintendent of Police/Hqrs.,Police Headquarters,Gangtok,Sikkim.Police Headquarters,Gangtok,Sikkim.

Shri Tilok Chettri,Deputy Superintendent of Police(Offjcjatjng)Deputy Superintendent of Police(Offjcjatjng)District Prison/South & West,Namchi,South Sikkim.Namchi,South Sikkim.

8. ShriB.B.Subba,

Deputy Superintendent of Police(Officiating)(Officiating)Office of Superintendent of Police,South District,Namchi,South Sikkim.South District,Namchi,South Sikkim.

Shri Tulshi Chettri,Deputy Superintendent of Police(Officiating)Sikkim Armed Police,Pangthang,East Sikkim.

(Officiating)

10. Shri Nima cheder Bhutia,Deputy Superintendent of Police(Officiating)Sikkim Armed Police,Pangthang,East Sikkim.

11. Shri Sonam Dawa Lepcha,Deputy Superintendent of Police(Officiating)Special Branch,Gangtok,East Sikkjm.

12. Shri Puma Kumar Lohar,

Deputy Superintendent of Police(Officiating)Special Branch,Gangtok,East Sikkim.

13. Ms. Chewang Lhamu Bhutia,Deputy Superintendent of Police(Officiating)Indian Reserve Battalion,Cl 0 . C .a . I SNP ,P.O. Penlong, Pangthang,East Sikkim.

14. Shri Shyam Kala Basnet,Deputy Superintendent of Police(Officiating)Indian Reserve Battalion,C| o . C.a . , SAJP ,P.O. Penlong, Pangthang,East Sikkim.

(Officiating)

15. Shri Prasad Dewan,Deputy Superintendent of Police(Officjatjng)Indian Reserve Battalion,Kingsway,New Delhi.

16. Shri Kewal Prasad Nepal,

Deputy Superintendent of Police(Officiating)Indian Reserve Battalion,C/ o . C .a . , SAP ,P.O. Penlong, Pangthang,East Sikkim.

(Officiating)

17. Shri Bhanu Bhakta Kharel,

Deputy Superintendent of Police

(Officiating)

`,

Indian Reserve Battalion,C| o . C.O . , SA!P ,P.O. Penlong, Pangthang,East Sikkim.

18. Shri Sonam Gyurmit Lepcha,Deputy Superintendent of Police(Offjciatjng)Indian Reserve Battalion,C| o . C.a . , SA!P ,P.0. Penlong, Pangthang,East Sikkjm.19. Ms. Bishnu Kumari Rai,Deputy Superintendent of Police(Officiating)Indian Reserve Battalion,C| o , C.a . , SAIP ,P.O. Penlong, Pangthang,East Sikkim.20. Ms. Ongmu Bhutia,Deputy Superintendent of Police(Offjciatjng)Indian Reserve Battalion,C/ o . C.a . , SAIP ,P.0. Penlong, Pangthang,East Sikkim.21. Shri sambhu pradhan,Deputy Superintendent of Police(Officiating)Sikkim Armed Police,Gangtok, East Sikkim.22. Shri Laxuman Pradhan,Inspector of PoliceReader to ADGP,Gangtok, East Sikkim.23. Shri DukTshering Lepcha,Inspector of Police,Special Branch,Gangtok, East Sikkim.24. Shri Phur Tshering Lepcha,Inspector of Police,Arms Section,Gangtok, East Sikkim.

I ± E2 § M I J± I

Kohli Permod, CJ.

I ± E2 § M I J± I

Kohli Permod, CJ.

The controversy in the present petition relates tofixation of seniority of officials constituting the amalgamatedforce and their consequential promotional .claims on merger of different wings of police. Relevant factual matrixextracted from the pleadings of the parties is noticedhereinafter.

The police force in the State of Sikkim wasgoverned and regulated by Sikkim Police Rules. These ruleswere replaced by the Sikkim Police Act, 1969, which cameinto operation on 15.06.1969. Petitioner was enrolled as aconstable in Sikkim police on 12.08.1974. In the year 1978,the State enacted another Act, namely, Sikkim VigilancePolice Act, 1978 creating a separate wing of the police,namely, Sikkim Vigilance Police. Petitioner was absorbed inthe Sikkim Vigilance Police on 12.09.1978. In the year1981, another force, namely, Sikkim Armed Police Force wascreated under a newly enacted Sikkim Armed Police ForceAct, 1981. Separate sets of recruitment rules were alsoframed under Article 309 of the Constitution of India fordifferent wings of the police force in the State of Sikkim.The Sikkim Police Force (Recruitment, Promotion andSeniority) Rules, 1981 were given retrospective effect witheffect from 01.04.1974, whereas the Sikkim Vigilance Police(Recruitment, Seniority and Promotion) Rules, 1981 werenotified on 19.12.1981. Petitioner was promoted as Sub-Inspector in the Sikkim Vigilance Police on 12.12.1986 andas Inspector on 26.09.1995.

3. Respondent No.21 was recruited as a constable inSikkim Armed Police in the year 1975 and promoted as Sub-Inspector in Sikkim Police on 01.06.1986 and as Inspectoron 04.01.1994 in the same branch of the police force.Respondents No.7 to 20 were appointed as Sub-Inspectorsin Sikkim Police on 08.03.1984 and respondents No.7 and 8came to be promoted as Inspectors in Sikkim Police on20.07.2000, whereas respondents No.9 to 20 werepromoted as Prosecuting Inspectors in Sikkim Police inofficiating capacity on 28.02.2001. Respondents No.22 to27 were promoted as Sub-Inspectors on 09.09.1986,whereas respondent No.28 was directly appointed as Sub-Inspector on 27.10.1986. Respondents No.22 to 28 werelater promoted as Prosecuting Inspectors in Sikkim Police inofficiating capacity on 26.11.2002. In the year 1998, 3(three) police officials from the Sikkim Vigilance Police Forcefiled Writ Petition No.513 of 1998, seeking a direction forcreation of promotional avenues for the members of SikkimVigilance Police Force beyond the rank of Inspector. Duringpendency of this petition, the State Government constituteda One Man Commission comprising of Hon'ble Mr. Justice N.G. Das (Retd.), the then Chairman, Sikkim Commission forBackward Classes for comprehensive review of all therecruitment rules of the different wings of the Sikkim Police vide Notification dated 10.09.1989. The terms of reference of the Commission were as under: - "(1) To comprehensively review the existing RecruitmentRules of all the different wings of Sikkim Police so asto arrive at an appropriate solution, which would meetpromotional aspirations of the entire Police Force.Rules of all the different wings of Sikkim Police so asto arrive at an appropriate solution, which would meetpromotional aspirations of the entire Police Force.

(2) To examine the necessity for integration of thedifferent Recruitment Rules particularly(a) Sikkim Police Force (Recruitment, PI-omotion andSeniority) Rules, 1988, (b) the Sikkim Armed Force(Recruitment, Promotion and other Conditions ofService) Rules, 1989 and (c) the Sikkim VigilancePolice (Recruitment, Seniority and Promotion) Rules,1981, so as to bring about long term solution to meetthe promotional aspirations of the entire Police Force.different Recruitment Rules particularly(a) Sikkim Police Force (Recruitment, PI-omotion andSeniority) Rules, 1988, (b) the Sikkim Armed Force(Recruitment, Promotion and other Conditions ofService) Rules, 1989 and (c) the Sikkim VigilancePolice (Recruitment, Seniority and Promotion) Rules,1981, so as to bring about long term solution to meetthe promotional aspirations of the entire Police Force.

The Commission shall submit its report on or before31.12.99."31.12.99."

Pursuant to the above notification, the One ManCommission submitted its report dated 10.02.2000(Annexure P-7).

5. The report of the One Man Commission wasaccepted by the State Government for integration of thethree distinct services of the police. With the object ofcreating one unified police force and to grant statutorysanction to the amalgamated force, the State Governmentframed the Sikkim Police Force (Recruitment, Promotion andSeniority) Rules, 2000 under Article 309 of the Constitutionof India as notified vide Notification No.27/Gen/DOP dated08.09.2000 published in the Extraordinary Government Gazette on 11.09.2000. Rule 4 deals with the initialConstitution of the Force, whereas Rule 9 deals with theSeniority. Both the Rules are reproduced hereunder:- "4. Constitution of the Force:

The Force shall consist of the following, namely:- (a) Persons holding the posts upto andincluding Inspectors under Schedule I of theSikkim Police Force (Recruitment, Promotionand Seniority) Rules,1981.including Inspectors under Schedule I of theSikkim Police Force (Recruitment, Promotionand Seniority) Rules,1981.(b) Persons holding the posts of Constable,Head Constable, Assistant sub-Inspector,Sub-Inspector and Inspector under theSikkim Vigilance Police Force (Recruitment,Promotion and Seniority) Rules,1981.Head Constable, Assistant sub-Inspector,Sub-Inspector and Inspector under theSikkim Vigilance Police Force (Recruitment,Promotion and Seniority) Rules,1981.

(c) Persons holding the posts of sub-Inspectorand Inspector under the Sikkim ArmedPolice (Recruitment, Promotion andSeniority) Rules, 1989.and Inspector under the Sikkim ArmedPolice (Recruitment, Promotion andSeniority) Rules, 1989.

(d) Persons recruited to the Force in accordancewith the provision of these rules."with the provision of these rules."

"9. Seniority

(i) The relative seniority of the members ofthe force recruited directly, shall bedetermined by the order of merit inwhich they are selected for suchrecruitment. Members as a result of anearlier selection shall be senior to thoserecruited as a result of a subsequentselection.the force recruited directly, shall bedetermined by the order of merit inwhich they are selected for suchrecruitment. Members as a result of anearlier selection shall be senior to thoserecruited as a result of a subsequentselection.

ITE

The relative seniority of personspromoted from a lower post shall be onthe basis of seniority-cum-merit subjectto successfully passing the prescribedexam.promoted from a lower post shall be onthe basis of seniority-cum-merit subjectto successfully passing the prescribedexam.

(iii) The relative seniority inter-se ofmembers recruited directly and throughpromotion shall be determined accordingto the rotation of vacancies betweendirect recruits and promotes which shallbe based on the quota of vacanciesreserved for direct recruitment andpromotion, respectively, in these rules."members recruited directly and throughpromotion shall be determined accordingto the rotation of vacancies betweendirect recruits and promotes which shallbe based on the quota of vacanciesreserved for direct recruitment andpromotion, respectively, in these rules."

From perusal of Rule 4, it appears that personsholding the posts upto the rank of Inspector in the SikkimPolice Force governed by the Sikkim Police Force(Recruitment, Promotion and Seniority) Rules, 1981 andpersons holding the posts of Constable, Head Constable,Assistant Sub-Inspector, Sub-Inspector and Inspector in theSikkim Vigilance Police Force governed by the SikkimVigilance Police Force (Recruitment, Promotion andSeniority) Rules, 1981 and persons holding the posts of Sub-Inspector and Inspector in the Sikkim Armed Policegoverned by the Sikkim Armed Police (Recruitment,Promotion and Seniority) Rules, 1989 would be themembers of the newly constituted/amalgamated force intheir respective cadres. This means that merger was at thelevel of each cadre of the service right from the Constable tothe Inspector in so far the Sikkim Police Force and SikkimVigilance Police Force are concerned, and at the level of theSub-Inspector and Inspector with the Sikkim Armed PoliceForce.

7. Rule 9 which deals with the seniority, however,did not specifically attend to the question of inter-se-seniority at the level of each cadre of merged force. This t'

fact js evident from Notification dated 31.07.2000 (Annexure P-8A). The Notification is reproduced hereunder: - `` GOVERNMENT OF SIKI(IM

DEPARTMENT OF PERSONNEL, ADM. REF. & TRG.TASHILINGGANGTOK -SIKKIM 707101

Dated : 31.7.2000NOTIFICATION

No.19/GEN/DOP

Facts

Whereas the Governor of Sikkim was pleased toconstitute a One-man Commission comprising of theHon'ble Justice N. G. Das, Chairman, SikkimCommission for Backward classes, for a comprehensivereview of all the Recruitment Rules of different wings ofthe Sikkim Police vide notification No.36/GEN/DOPdated 10.9.1999.

2. And whereas on receipt of the Report of theCommission on 10.2.2000 the same was studied and itis observed that no clear term/recommendation hasemerged from the report on the point of fixation ofseniority particularly at the level of Sub-Inspector.

3. And whereas the method of fixation of seniority ofInspectors and Sub-Inspectors of different wings of theSikkim Police has to be taken care of while framingcommon Recruitment Rules as per therecommendations of the Commission in view of thepending writ petition filed by the Inspectors serving inSikkim Vigilance Police.

4. Therefore, the Governor of Sikkim is pleased torefer the matter regarding method and modalities forfixation of seniority of the Inspectors and Sub-Inspectors to the One-man Commission constituted videNotification No.36/GEN/DOP dated 10.9.1999.

This Commission shall submit its report on orbefore 7.8.2000.

By Order and in the name of Governor.

R. S. BasnetSecretary to the GovernmentDepartment of Personnel, Adm. Ref. & Trg."

b

No material has been produced on record to demonstratethat the One Man Commission again examined the questionof inter-se-seniority and submitted its report.

8. In the meantime, the Police Headquarters, Sikkimnotified a provisional integrated inter-se-seniority list ofInspectors of Sikkim Police comprising of all the threebranches of the merged force as on 02.12.2002 vide itsCircular dated 07.12.2002, inviting representations/objections. It is relevant to note that paragraph 2 of theCircular set out the criterion for determining the inter-se-seniority at the level of the Inspectors, which reads asunder:- ``2. Seniority at the time of appointment/promotion as Sub-Inspector has been fixed as thecriterion in determining the inter-se-seniority atthe level of Inspectors."

From the above criterion, it appears that theseniority of the Inspectors was taken at the time ofappointment/promotion as Sub-Inspector. In the provisionalseniority list, the petitioner was placed at Sl. No.36 and allthe private respondents above him. The petitioner filed hisobjection on 31.12.2002 claiming his seniority over andabove the private respondents on the basis of his promotionas Inspector on substantive basis with. effect from25.09.1995, i.e. prior to the promotion of the private

respondents as Inspectors in their respective wings of thepolice prior to merger. It seems that thereafter also anotherprovisional seniority list of Police Inspectors was circulatedvide letter dated 22.09.2006 inviting objections. PoliceHeadquarters, Sikkim notified the final/confirmed senioritylist of Police Inspectors vide Notification No.01/PHQ dated14.11.2006. In this seniority list, the petitioner was placedat Sl. No.27 and all the private respondents above him. Thepetitioner was shown as Officiating Inspector. The petitionerfiled his objection to this seniority list vide his petition dated08.01.2007 and thereafter, served a Legal Notice dated11.01.2007 objecting to the seniority list. Having fat.led toreceive any response, he filed W.P. (C) No.10 of 2007challenging the final seniority list dated 14.11.2006 and alsothe stipulation therein showing him as "OfficiatingInspector''.

10. This Court vide its Order dated 22.05.2007restrained the respondents from in any manner giving effectto the Notification dated 14.11.2006 in so far as it describedthe annexure thereof as a confirmed seniority list anddirected to treat the status of the petitioner as ``Officiating"only as provisional one and his description as Officiating inthe Notification shall be given no effect. The petitioner was I

also allowed to make a representation and the respondentswere allowed to take decisions notwithstanding thependency of the Writ Petition.

11. While the above Writ Petition was pending forconsideration, the Police Department through theSuperintendent of Police, Police Headquarters issuedMemorandum dated 07.09.2007 notifying the criterion forfixation of inter-se-seniority of Inspectors in theamalgamated cadre at the level of the Sub-Inspectors andinvited objections from the affected persons. Petitioner filedhis objection dated 26.09.2007 to this Memorandum. In themeantime, the State Government granted officiatingpromotion to respondents No.7 and 8 to the rank of theDeputy Superintendent of Police vide Office OrderNo.7604/G/DOP dated 18.07.2008 (Annexure P-20)subject to the final decision of the Writ Petition No.10 of2007 filed by the petitioner. This was followed by anotherOffice Order dated 29.08.2008 granting substantivepromotion to the private respondents and others as PoliceInspectors subject to the final decision of the Writ Petition.

12. When the writ petition filed by the petitioner cameup for consideration before this Court on 04.02.2007,Hon'ble Court taking note of promotion granted to the

private respondents No.7 and 8 and failure of officialrespondents to decide the representation of the petitionerdirected personal appearance of Mr. C. L. Sharma, SpecialSecretary to the Government of Sikkim and theSuperintendent of Police, Police Headquarters for non-compliance of the Court's order. Both these officers filedtheir replies pleading therein that the alleged offending orderhas been passed pursuant to the legal advice tendered bythe Legal Remembrancer-cum-Secretary, Law, Governmentof Sikkim and the Chairman, Law Commission of Sikkim.This Court vide its Order dated 23.06.2009 summoned theLegal Remembrancer-cum-Secretary, Law to appear inperson to explain. It seems that the matter was consideredby the State Government and the Notification No.01/PHQdated 14.11.2006 notifying the combined final seniority listcame to be withdrawn vide Notification No.01/PHQ/09 dated24.07.2009. This withdrawal order was placed before thisCourt in W.P. (C) No.10 of 2007. The Government alsoproposed to publish a final seniority list after affordingopportunity to all the members of the cadre. On that basisthis Court vide its Order dated 27.08.2009 disposed of theWrit Petition with the following observations: - "7. Having considered the above proposedamendment in the prayer, we are of the view thatsince the Government itself has withdrawn theimpugned Notification dated 14.11.2006 andamendment in the prayer, we are of the view thatsince the Government itself has withdrawn theimpugned Notification dated 14.11.2006 and proposed to publish a final seniority list afteraffording opportunities to all the members of thecadre to file their respective claims andob]-ections, the proposed amendment seekinginclusion of the above quoted prayer appears tobe pre-matured.

8. On due consideration of the facts andcircumstances of the case in its entirety includingthe Notification dated 24.07.2009 annexed asAnnexure A-1 in the CM Appl. No. 48 of 2009 andalso upon hearing the learned Counsel for theparties, we are of the considered opinion that thiswrit petition has been rendered as infructuous.

9. Needless to say that the petitioner, ifaggrieved by publication of final seniority list,shall be at liberty to approach this Court forredressal of his grievances."

13. Since the final seniority list of Inspectors earliernotified vide Notification dated 14.11.2006 stood withdrawn,the State Government instead of re-determining theseniority issued Notification No. 02/PHQ/2010 dated19.01.2010 granting retrospective promotion to respondentsNo, 7 to 28 from the date(s) their counterparts in the SikkimArmed Police or Sikkim Vigilance Police were promoted asInspectors prior to merger. This retrospective promotionwas allegedly granted pursuant to the reports of Committeeof Senior Police Officers constituted by the Director Generalof Police approved by the Police Establishment Board andthe Government and report of another Committeeconstituted by the Government headed by the ChiefSecretary. By virtue of retrospective promotion asInspectors, all the private respondents were placed at a ®

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higher pedestal in the cadre of Inspectors than thepetitioner, who was promoted as Inspector in SikkimVigilance Police on 26.09.1995 on substantive basis. With aview to justify and legalize its administrative action ofgranting retrospective promotion to the private respondents,the Government amended the Sikkim Police Force(Recruitment, Promotion and Seniority) Rules, 2000 videNotification No.222/GEN/DOP dated 20.01.2010. Theamendment was carried out in Rule 9 of 2000 Rules byinserting sub-clause (iv) after sub-clause (iii) as also in theSchedule-I and Schedule-II and introduction of Rule 17 inthe aforementioned Rules. For the purpose of brevity, thenotification is reproduced hereunder: - `` GOVERNMENT OF SIl(KIN

DEPARTMENT 0F PERSONNEL, ADM. REFORMS,TRAINING, PUBLIC GRIEVANCES, CAREEF`OPTIONS & EMPLOYMENT SI(ILL DEVELOPMENTAND CHIEF MINISTER'S SELF EMPLOYMENTSCHEMEGANGTOI( - SIKIGM 707101

No.222/GEN/DOPDated : 20.1.10

NOTIFICATION

In exercise of the powers conferred by the provisoto Article 309 of the Constitution of India, the Governorof Sikkim hereby makes the following rules to amendthe Sikkim Police Force (Recruitment, Promotion andSeniority) Rules, 2000, namely:

1. (1) These rules may be called the sikkim policeForce ( Recruitment, Promotion a ndSeniority) Amendment Rules, 2009.Force ( Recruitment, Promotion a ndSeniority) Amendment Rules, 2009.

(2) They shall be deemed to have come intoforce on the llth day of September, 2000.force on the llth day of September, 2000.

2. In the Sikkim Police Force (Recruitment,Promotion and Seniority) Rules, 2000;(hereinafter referred to as the said rules), aftersub-rule (iii) of rule 9, the following shall beinserted, namely:- ``(iv) (a) The inter-se-seniority of policepersonnel up to the rank of AssistantSub-Inspector in the Sikkim Policeand Sikkim Vigilance Police on thedate of amalgamation of the cadresfor the purpose of their promotion tothe next rank shall be determined onthe basis of their date of appointmentto the entry level post of Constable.personnel up to the rank of AssistantSub-Inspector in the Sikkim Policeand Sikkim Vigilance Police on thedate of amalgamation of the cadresfor the purpose of their promotion tothe next rank shall be determined onthe basis of their date of appointmentto the entry level post of Constable.

(b) The inter-se-seniority of PoliceInspectors of Sikkim Police, SikkimVigilance Police, Sikkim Armed Policeand Indian Reserve Battalion on thedate of amalgamation of the cadresfor the purpose of their promotion tothe rank of Deputy Superintendent ofPolice shall be determined on thebasis of their date of appointment tothe entry level of Sub-Inspector."Inspectors of Sikkim Police, SikkimVigilance Police, Sikkim Armed Policeand Indian Reserve Battalion on thedate of amalgamation of the cadresfor the purpose of their promotion tothe rank of Deputy Superintendent ofPolice shall be determined on thebasis of their date of appointment tothe entry level of Sub-Inspector."

In the said rules, in Schedule I, the existingparagraph (b) under the Column 8, against thepost of Assistant Sub-Inspector and in Schedule11, the existing paragraph (b) under the column 8,against the post of Sub-Inspector and Inspector,shall be omitted.paragraph (b) under the Column 8, against thepost of Assistant Sub-Inspector and in Schedule11, the existing paragraph (b) under the column 8,against the post of Sub-Inspector and Inspector,shall be omitted.

4. In the said rules, after rule 16, the following shall be inserted, namely: - ``17. Power to relax: Where the Government ofSikkim is of the opinion that it is necessary orexpedient to do so, it may, by order, for reasonsto be recorded in writing, relax and of theprovisions of these rules with respect to any classor category of persons or post."

expedient to do so, it may, by order, for reasons BY ORDER, Sd/- (Tara Sampang) Mrs JOINT SECRETARY TO THE GOVERNMENTDEPIT. OF PERSONNEL, ADM. REFORMS, TRAINING,PUBLIC GRIEVANCES, CAREER OPTIONS & EMPLOYMENT SKILLDEVELOPMENT AND CHIEF MINISTER'S SELF EMPLOYMENTSCHEME''

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14, It js pertinent to note that retrospective promotionwas given on 19.01.2010 and the Rules were amended onthe following day. The respondents immediately, thereafter,issued an Office Memorandum No.47/PHQ/10 dated23.01.2010 notifying the provisional inter-se-seniority ofPolice Inspectors drawn on the basis of the amended Rulesand retrospective promotion granted to the privaterespondents. Through this Memorandum, representations/objections were invited from the aggrieved persons. In theprovisional seniority list of Police Inspectors in theamalgamated cadre, the private respondents were placedfrom Sl. No.1 to 23, whereas the petitioner was placed at Sl.No.24. The petitioner filed his objection dated 11.02.2010to the provisional seniority list. It seems that the StateGovernment did not accept the contention of the petitionerand notified the final seniority list vide NotificationNo. 03/PHQ/10 dated 03.04. 2010 placing privaterespondents from Sl. No.1 to 22 and the petitioner at Sl.NO.23.

15. Aggrieved of the final seniority list, the petitionerpreferred an appeal on 08.04.2010 before the Government.In the meantime, the respondents No.7 to 10 werepromoted to the rank of Deputy Superintendent of Police inofficiating capacity vide Office Order No.554/G/DOP dated ®.

03,05.2010 (Annexure P-34). The aforesaid Order wasfollowed by another Order No.567/G/DOP dated 04.06.2010(Annexure P-36) granting promotion to respondents No.11to 15 in officiating capacity. Yet another OrderNo.599/G/DOP dated 16.06.2010 came to be issued furthergranting officiating promotion to respondents No.16 to 21(Annexure P-37). Aggrieved of the final seniority list,promotion of private respondents to the post of DeputySuperintendent of Police and the Notification amending theSikkim Police Force (Recruitment, Promotion and Seniority)Rules, 2000, the petitioner filed this petition before thisCourt:.

16. During the pendency of the petition, the petitionerwas also promoted as Deputy Superintendent of Police videOrder No.8902/G/DOP dated 23.02.2012. Thereupon thepetitioner amended his Writ Petition and incorporatedfurther reliefs for his retrospective promotion from the datethe private respondents were promoted as DeputySuperintendent of Police. It is also relevant to note thatduring the pendency of this petition, the petitioner standsretired with effect from 31.08.2012. The question ofseniority in normal circumstances becomes irrelevant.However, in view of the prayer of the petitioner forretrospective promotion and consequential retiral benefits emanating there from the question of seniority needs to beaddressed.

17. It is pertinent to note here that after theretirement of the petitioner, respondent-State was asked toconsider the retrospective promotion of the petitioner fromthe date the first promotion was granted to any of theprivate respondents, but it seems that the State is unwillingand Mr. J. 8. Pradhan, learned Addl. Advocate Generalappearing for the State, conveyed to this Court that theofficial respondents are not willing to consider the case ofthe petitioner for retrospective promotion which would haveavoided the consideration of intricate issues regarding thevalidity of the amended Rules and the question ofretrospective promotion to the private respondents. Hence,all the relevant issues involved in this petition are beingadjudicated upon.

18. I heard the learned counsel for the parties.

]9. The petitioner's grievance is in respect to theaction of the official respondents granting retrospectivepromotion to the private respondents making them senior tothe petitioner even when their officiating/substantive datesof appointment as Inspectors of Police in their respectiveservices prior to merger were much later than the date of appointment of the petitioner. The dates of appointment ofthe petitioner and the private respondents as Inspectors onofficiating and confirmed basis are reflected hereinafter inform of comparative chart indicating the advantage ofnumber of years to each one of the private respondents.

COMPARATIVE CHART

20. It is thus contended that each one of the privaterespondents except respondent No. 21 has been grantedbenefit of retrospective promotion ranging between 6 yearsto 14 years and 7 months. Even when they were Sub-Inspectors, they had been promoted as Inspectors withoutthere being any vacancy available in the cadres of theInspectors for such promotion. The sole purpose of suchretrospective promotion is to give undue benefit to theprivate respondents to gain seniority over and above thepetitioner and to ultimately, illegally promote them asDeputy Superintendents of Police. The petitioner's furthercontention is that by this action, his promotional right hasbeen adversely affected. It is stated that the entire exerciseis totally illegal, arbitrary and unconstitutional.

21, Mr. J. 8. Pradhan, learned Addl. Advocate Generaland Mr. A. Moulik, Senior Advocate, appearing for the Stateand private respondents respectively, however, vehementlyargued that after the merger of the different services/branches of the Police Department, the seniority of theamalgamated cadres was required to be fixed and with aview to consider the claims of all the members of differentForces, governed by separate rules/acts granted themequitable relief. The State Government after constitutingvarious Committees and considering their reports, granted retrospective promotion and resultant seniority to theprivate respondents, who had disadvantage of delayedpromotions in their respective services. It is stated onbehalf of the respondents that the petitioner got acceleratedpromotion being member of vigilance police service as betterpromotional avenues were available in that service, whereasthe private respondents who were members of the SikkimPolice (an executive branch of the Police) and Sikkim ArmedPolice had, lesser chances of promotion, even when theywere appointed as Sub-inspectors earlier than the petitionerin their respective services. It is stated that they could onlybe promoted as Inspectors on availability of vacancy/vacancies. The cadre being much larger, they were able tosecure promotion years after the promotion of thepetitioner. It is, accordingly, submitted that onconsideration of the issue of seniority by various Committeesincluding the Committee headed by the Chief Secretary, theState Government in its wisdom thought it appropriate togrant them retrospective promotion from the date thepersons in Sikkim Armed Police and Sikkim Vigilance Policewere appointed as inspectors to remove the anomaly forpurpose of fixation of the seniority and further promotion.

22. According to the learned counsel appearing for theprivate respondents, the State has had always the right and

liberty to grant retrospective promotion and seniority whichaction is constitutionally permissible. Mr. Moulik furt:hersubmitted that before the merger the members of VigilancePolice could only be promoted upto the rank of Inspectorsand there were no promotional avenues for them. Thus, themerger was primarily in the interest of the members ofSikkim Vigilance Police and the question of inter-se-seniorityof the members of Sikkim Vigilance Police Force, SikkimArmed Police and Sikkim Police became relevant only afterthe merger of the three Forces. It is further submitted thatthe petitioner cannot have any grievance against the fixationof the seniority of the private respondents or theirretrospective promotion as Inspectors.

23. It is admitted position that prior to merger, themembers of Sikkim Vigilance Police Force could only bepromoted upto the rank of Inspector under the SikkimVigilance Police (Recruitment, Seniority and Promotion)Rules, 1981 and the posts of Deputy Superintendent ofPolice even in the Vigilance Police Service could only be filledup by deputation from the. Sikkim Police, which wasgoverned by separate Recruitment Rules, namely, theSikkim Police Force (Recruitment, Promotion and Seniority)Rules, 1981.

®

24. It is settled law that promotion is not a right but rightto be considered for the promotion is one of the recognisedand vested rights of a public servant. Prior to merger onlymembers of the Sikkim Police Force were granted promotionbeyond the rank of Inspectors and such promotees werebeing deputed to Sikkim Vigilance Police and Sikkim ArmedPolice to man the sanctioned posts of DeputySuperintendents of Police in latter two services. Thisanomaly was challenged by the three members of theSikkim Vigilance Police Force in W.P. (C) No.513 of 1998.Realising the anomaly and to remove the discrepancy andinequality created by the Recruitment Rules depriving aparticular branch of the Force from right of consideration forfurther promotion, the State Government appointed JusticeN. G. Das (Retd.) Commission to examine the question ofintegration of different Recruitment Rules and these servicesfor equitable promotional avenues. Justice N. G. DasCommission submitted its report proposing completeintegration of two services, i.e. Sikkim Police Force andSikkim Vigilance Police Force at all the levels right from theentry level posts of Constable/Sub-Inspector to Inspectorand merger of Sikkim Armed Police at the levels of Sub-Inspector and Inspector. These recommendations of theCommission were accepted by the State Government. With ®

a view to implement the recommendations, the StateGovernment framed the Sikkim Police Force (Recruitment,Promotion and Seniority) Rules, 2000 under Article 309 ofthe Constitution of India vide its Notification dated08.09.2000 published in Government Gazette oh11. 09 . 2000 .

25. As noticed hereinabove, Section 4 of the 2000Rules deals with the initial Constitution of the Force. Thusnew Recruitment Rules constituting new service, namely,Sikkim Police Force, comprising amalgamation of all thethree Forces came to be created. From reading of Rule 4, itappears that merger has been sanctioned in respect to allthe cadres of two services, i.e. Sikkim Police Force andSikkim Vigilance Police Force, namely, Constable, HeadConstable, Assistant Sub-Inspector, Sub-Inspector andInspector. Whereas the Sikkim Armed Police Force isconcerned, the merger is only at the level of Sub-Inspectorand Inspector. The merger of different cadres would meanthat the members of each cadre of the amalgamated Forceswill merge at the same level only. Thus, an Inspector couldonly be merged with the cadre of Inspector. The mergerbecame effective on 11.09.2000 when the Recruitment Rulesof 2000 were published in the Government Gazette. Thus,on that day, Sub-Inspectors of all the three Forces ?

constituted one single cadre and similarly, Inspectors of allthe three Forces constituted one single cadre. On merger,the inter-se-seniority could be fixed on the basis of theirlength of service in that cadre. In that eventuality, thepetitioner having been appointed as Inspector on26.09.1995 should have ranked senior to the privaterespondents who were promoted as Inspectors much later.It is useful to note that except respondent No. 21 who wasappointed as Inspector on 04.01.1994, respondents No.7and 8 were promoted as Inspectors on 07.02.2000, whereasall other private respondents were promoted as Inspectorson 29.08.2008 on substantive basis. The only legalconsequence of such merger could be that respondent No.21is to rank senior than the petitioner on the basis of his priorpromotion as Inspector and all other private respondentswere to rank below the petitioner in the seniority. TheState-respondents, however, by granting retrospectivepromotion to the private respondents No.7 to 28 except 21,made them Inspectors from the year 1994, i.e. respondentsNo.7 to 20 with effect from 04.01.1994 and No.22 to 28 witheffect from 26.09.1995. This retrospective promotion wasgranted to them when they were only holding thesubstantive rank of Sub-Inspectors and there were novacancies in their respective services for such promotion. As a a consequence of such retrospective promotion, respondentsNo. 7 and 8 got the benefit of 6 years, respondents No.22 to28 got benefit of 13 years and 11 months whereas therespondents No.9 to 20 got benefit of 14 years and 7months of service as Inspectors.

26. Though the retrospective promotion was grantedvide Order dated 19.01.2010, which was only anadministrative order, however with a view to grant statutorycolour to retrospective promotion, amendment was made tothe Sikkim Police Force (Recruitment, Promotion andSeniority) Rules, 2000. This amendment came to be madeon 20.01.2010, i.e. after almost 10 years of the merger, theeffective date of merger being 11.09.2000.

27. The State as also the private respondentsdefended the action of the State primarily on two accounts;(i) that the State has power to grant retrospectivepromotion and (ii) such promotion has been granted tofacilitate fixation of inter-se-seniority of the merged cadre,particularly, at the rank of Inspectors to remove anyanomaly because of disadvantage suffered by the membersof the Sikkim Police Force prior to merger and provide themequal promotional avenues. To buttress their stand, theserespondents have relied upon the reports of the Committees ®

constituted by Government from time to time. The FirstCommittee of Police Officers headed by Shri Avijit Dutta,IPS, IGP, Special Branch recommended fixation of inter-se-seniority of Vigilance Police Officers in March, 2001 vis-a-visCivil Police Officers on the basis of their dates ofappointment to the entry level posts of Constable and Sub-Inspectors whichever is applicable. The State Government,however, in its wisdom without acting upon suchrecommendation, constituted another High Level Committeein November, 2002 headed by Addl. Director General ofPolice, Shri C. M. Ravindran, IPS. This Committeerecommended that the seniority of officers from differentstreams of Sikkim Police should be counted from the date ofappointment or promotion in the rank of the Sub-Inspectorsof Police. On consideration of the representations by themembers of Vigilance and Sikkim Armed Police, theCommittee recommended a separate cadre for the PoliceOfficers upto the rank of Inspectors of Police.

28. In the year 2006, the Police Establishment Boardconstituted by the Government further recommended thatcriterion for fixation of inter-se-seniority of Sikkim Policepersonnel irrespective of their present ranks should be onthe basis of their original seniority at the entry level post ofConstable or appointment/promotion to the rank of Sub- Inspectors. In view of the pendency of W.P. (C) No.10 of2007 in the High Court, no decision was taken by theGovernment. On disposal of the Writ Petition, anotherCommittee headed by the Chief Secretary with the DirectorGeneral of Police, Home Secretary and Secretary,Department of Personnel, Adm. Reforms and Training wasconstituted. This Committee made the following recommendations: -

``22. After detailed examination of all relevant aspects anddeliberations the Committee in public interest and largerinterest of the police force recommends that determinationof inter-se seniority of police officers belonging to the threeforces for the purpose of promotion should be on the basis oftheir seniority at the entry level ranks. This is considered tobe the most just, fair and reasonable was of resolving theissue. The difficulty should end after a few years when allsuch officers in the SAP and SVP are promoted to the nexthigher rank. This criteria should, therefore, be operative tillsuch time officers of the different police cadres, who wereholding ranks higher to their colleagues at the entry levels atthe time of amalgamation of the cadres, have all beenconsidered for promotion to the next higher level.

23. In view of the above recommendation, the committeefurther recommends that Inspectors of Sikkim Police (oreven of other cadres as applicable) be deemed to have beenpromoted as Inspectors with effect from the date from whichtheir colleague officers (at the entry level of Sub-Inspector)in the SAP or SVP got promoted as Inspectors. They would,however, not be entitled to any arrears of pay. NecessaryAmendments to the Sikkim Police Force (Recruitment,Promotion & Seniority) Rules, 2000 may be effectedappropriate. Generally, Recruitment Rules have provjsjongiving powers to the Government for relaxation to get oversuch difficulties. This provision may also be included inS.P.F. (Recru.itment, Promotion and Seniority) Rules, 2000."

It is on the basis of this recommendation that the State Government initially granted retrospective promotion to theprivate respondents vide order dated 19.01.2010 andthereafter granted retrospective seniority by amending the Rules vide Notification No.222/GEN/DOP dated 20.01.2010as noticed hereinabove.

29, In support of their contentions that the State hasabsolute authority to grant retrospective promotion/seniority, the respondents have relied upon judgmentsnoticed hereinafter.

(i) I.n Reserve Bank of India v. N. C. Paliwal &others = (1976) 4 SCC 939, employees coming from non-clerical cadres were adjusted in the clerical cadre of ReserveBank of India after seeking their option. On suchadjustment the seniority was fixed by taking intoconsideration one third of the total non-clerical service untila cut-off date or the date of acquiring qualification forfixation of their seniority in the integrated service. Themembers of non-clerical cadres challenged the mode ofintegration and fixation of seniority. The Hon'ble SupremeCourt rejected the challenge holding that non-clerical servicecannot be equated with the clerical service and the twocannot be treated on the same footing, the policy todetermine the seniority of non-clerical cadres with theclerical cadre on integration cannot be condemned asarbitrary or discriminatory. It was held that it is notcompetent to the Court to strike down such a rule on theground that another rule would have been better or more e appropriate. The only enquiry which the Court can make iswhether the rule laid down by the State is arbitrary andirrational so that it results in inequality of opportunityamongst employees belonging to the same class.

-/-,Tn K. 8. Shukla and Others v` union of Indial &ofbers = (1979} 4 SCC 673, the length of service ofemployees appointed by transfer was adopted as a criterionfor fixing the seniority. The Hon'ble Supreme Court while upholding the criterion observed as under:- "32.The main criterionunder sub-rule (ii) of Rule 29, is the length of servicerendered by the persons. Indeed, in our opinion, this isinfinitely the best criterion which could ever be devised byany rule governing the conditions of a Service, to ensurefairness and equable treatment guaranteed by Article 16 ofthe Constitution. It was pointed out by this Court in S, 8.Patwardhan v. State of Maharashtra, that a rule which leavesthe valuable right of seniority to depend upon the mereaccident of confirmation suffers from the vice of unfairdiscrimination which is impermissible under Articles 14 and16 of the Constitution."

Tn Wing Commander I. Kumar v. union of

(,',I,I,

Jndri-a & others : (1982) 2 .SCC 116, it has been held thatit is settled law that the service conditions pertaining toseniority are liable to alteration by subsequent changes thatmay be introduced in the rules and except to the extent ofprotecting promotions that have already been earned underthe previous rules, the revised rules will operate to governthe seniority and future promotion prospects of all thepersons in the concerned service. The Hon'ble SupremeCourt upheld the criterion of fixation of seniority in the i

integrated grades giving full grade to the length of serviceput in by the service officers in their respective parentservices. The criterion so held not to be arbitrary, unjustand unreasonable. It has further been observed that thepromulgation of a statutory rule governing seniority is not aquasi-judicial function. It is the exercise of a legislativepower where principles of natural justice have noapplication.

f/-vj While laying down the above principles, theHon'ble Supreme Court relied upon a Constitution Benchjudgment of the Supreme Court reported as R. S. "akashi-& others v.I. M. Menon & others .. {±982) 1 SCC 379.In this case, personnel drawn from different sources wereabsorbed and integrated in a new department. It has beenheld that it is primarily for the Government or the executiveauthority concerned to decide as a matter of policy how theequation of the posts should be effected. The Court furtherobserved as under: - ``36.

It is a just andwholesome principle commonly applied in such situationswhere persons from other departments are drafted to serveon deputation, their inter se seniority in the parentdepartment should be respected and preserved during theperiod of such deputation to the new department. We,therefore, consider that the High Court was in error instriking down the proviso to Rule 7 as being violative ofArticles 14 and 16 of the Constitution. "wholesome principle commonly applied in such situationswhere persons from other departments are drafted to serveon deputation, their inter se seniority in the parentdepartment should be respected and preserved during theperiod of such deputation to the new department. We,therefore, consider that the High Court was in error instriking down the proviso to Rule 7 as being violative ofArticles 14 and 16 of the Constitution. "

y,±n Dir'ector, Lift Irrigation Corporation Ltd. &

others v. Pravat Kiran Mohanty & others -. `±99±\ 2:

SCC 295, a policy decision to amalgamate the existingcadres by re-organising and fixation of inter-se-seniority onthe basis of their initial appointment vis-a-vis their scale ofpay was held to be fair, reasonable and beneficial to all theemployees without affecting their scales of pay or losingseniority from the date of initial appointment.

(vi) lr\ Prafulla Kumar Dos & others v. State ofOri-ssa & others = (2003) 11 SCC 614, it has been heldthat the legislature or the Government of the State byadopting rules under proviso to Article 309 of theConstitution may in its discretion bestow or divest a right ofseniority. This is essentially a matter of policy, and thequestion of a vested right would not arise, as the State mayalter or deny any such ostensible right, even by way ofretrospective effect, if is so chooses in public interest. Itwas further observed that a seniority is not a fundamentalright but is merely a civil right. However, it has beenobserved that policy could be struck down if violative ofArticles 14 and 16 of the Constitution.

(vii) ±n T. Narasimr\ulu & others v. State of AndhraPradresA & otAeAs : (2010) 6 SCC 545, it has been heldthat seniority of a government servant is not a vested rightand that an Act of the State Legislature or a rule madeunder Article 309 of the Constitution can retrospectively affect the seniority of a government servant. It has furtherbeen observed that losing some places in the seniority listwithin the cadre does not amount to reduction in rank eventhough the future chances of promotion get delayed.

(viii) In Tamil Nadu Education DepartmentMinisterial and General Subordinate ServicesJtssociation & otr\ers v . State of Tamil Naldu a otl\ers ..(1980) 3 SCC 97, it has been observed that in ServiceJurisprudence integration is a complicated administrativeproblem where, in doing broad justice to many, some bruiseto a few cannot be ruled out.

(ix) Ln om I.rakash sr\arma & others v. union ofJndli-a a oavers : 1985 (Supp) SCC 218, a commonseniority list of three departments was maintained whereinappellant in the case was shown senior to the privaterespondents on the basis of their entry into the cadre ofservices. Later this department was separated and aseparate seniority list was maintained. Because of separateseniority list, some of the respondents got acceleratedpromotion. After 23 years, the separated departments werere-amalgamated and inter-se-seniority of the members ofthe merged departments was restored. The Hon'bleSupreme Court upheld the action of the respondents as they ®

initially belonged to the same cadre of service and onamalgamation seniority was held to be rightly restored.

(x) tn K. S. Vora & others v. State of Guiarat &others : AIR 1987 SC 2348, the State decided to mergefour grades of the Subordinate Service and by framing rulesadopted the length of service in the particular grade andprotected the rank then held by every member of theservice notwithstanding alteration of seniority on the newbasis. The Hon'ble Supreme Court upholding the rulesobserved as under: - "4.

The scheme of thisrule protected the rank then held by every member of theservice notwithstanding alteration of seniority on the newbasis. This, therefore, made it clear that accrued benefitswere not to be interfered with. To that extent the 1977Rules were not retroactive

It was further held that Rules of seniority are a matter forthe employer to frame and even though prospects ofpromotion in future were likely to be prejudiced byintroduction of a new set of rules, if the rules were madebona fide and to meet exigencies of the service, noentertainable grievance could be made.

(xi) In Kerala State Electricity Boalrd v. N.Sukesen & oils. = (1996) 9 SCC 397, initially the KeralaState Electricity Board had one common establishment. Aseparate Secretarial Establishment was formed with effect from 01.04.1964. However, on 14.01.1981 the separatestatus of the Establishment was brought to an end and againa common cadre was established. Seniority was fixed onthe basis of the length of service in the cadre/categoryconcerned at the time of integration. The Hon'ble SupremeCourt upheld the rule of seniority.

(xii) I.n Kerala Magistrates (Judicial) Ass. & othersv. Sfafe of Jreria/a & others : (2001) 3 SCC 521, it hasbeen held that if due to amalgamation of services somesenior may suffer some loss but such loss is the usualconsequence of integration. Rule cannot be struck downunless arbitrary or malafide.

30. To the contrary, the petitioner has placed relianceupon the following Judgments:

(i) In Nirmal Kumar Choudhary & others v.State of Bi-her & others : 1988 (Supp) SCC 107, theHon'ble Supreme Court directed fixation of inter-se-seniorityof the merged cadre on the basis of length of service in theirrespective departments in a common grade.

(ii) \n union of Indiai & atr\ers v. Tushar FlanjanMOAai)fy & others : (1994) 5 SCC 450, candidatesbelonging to Scheduled Caste and Scheduled Tribe were promoted from Grade-IV to Grade-Ill on the basis ofadministrative instructions though statutory rules did notprovide for any such reservation in promotion. A generalcategory candidate, who was senior to the reserved categoryofficials, challenged the promotion before the Tribunal. Thispetition was allowed and he was granted promotion from thedate reserved category candidates were promoted and alsoplaced above them in the Indian Statistical Service.Government of India amended the rules retrospectivelymaking a provision for reservation in promotion as well. TheHon'ble Supreme Court while examining the validity of theretrospective amendment and impact on the seniority of thereserved category candidates, held as under: -

"14. The legislatures and the competent authority underArticle 309 of the Constitution of India have the power tomake laws with retrospective effect. This power, however,cannot be used to justify and arbitrary, illegal orunconstitutional acts of the Executive. When a person isdeprived Of an accrued right vested in him under a statute orunder the Constitution and he successfully challenges thesame in the court of law, the legislature cannot render thesaid right and the relief obtained nugatory by enactingretrospective legislation. "

-,I,',

\n uday Praltalp Singh & others v. State of Bi-har & others : 1994 Supp (3) SCC 451, two cadres ofBihar Finance Service consisting of the Senior Branch andJunior Branch were ordered to be merged. Some directappointments were made to the Senior Branch on12.05.1974 and 25.5.1974 respectively. The merger wasmade effective with effect from 01.04.1974. By a separate `, executive order the officers belonging to the Junior Branch,which was in fact a feeding cadre, were grantedretrospective appointment to the Senior Branch with effectfrom 01.04.1974, i.e. the date prior to the appointment ofthe direct recruits in the Senior Branch. The members ofthe Junior Branch, who were granted retrospectivepromotion, claimed seniority in the merged cadre over thedirect recruits of the Senior Branch. Their claim wasaccepted by the Government. However, the Patna HighCourt allowed the Writ Petition challenging their seniority.While considering the controversy, the Hon'ble SupremeCourt observed as under:- \\6.In the present case jthas to be kept in view that the contesting respondents weredirectly recruited and appointed in the Senior Branch on12-5-1974 and 25-5-1974 respectively, while the appellantswere appointed on 2-11-1975 in the merged cadre. It is truethat their order of appointment purports to give themappointment retliospectively from 1-4-1974 but such effectcannot be given so as to destroy the seniority rights of thewrit petitioners, respondents herein, who were inducted asdirect recruits in the Senior Branch prior to 2-11-1975.

In Stalte of Bihar & others v. Akhouri(iv)

Sachi-r]dra Jvath & others : 1991 Supp {1) SCC 334, ithas been held that no person can be promoted withretrospective effect from the date when he was not born inthe cadre. The relevant observations are as under: - "12. In the instance case, the promotee respondents 6 to23 were not born in the cadre of Assistant Engineer in theBihar Engineering Service, class 11 at the time whenrespondents 1 to 5 were directly recruited to the post OfAssistant Engineer and as such they cannot be given23 were not born in the cadre of Assistant Engineer in theBihar Engineering Service, class 11 at the time whenrespondents 1 to 5 were directly recruited to the post OfAssistant Engineer and as such they cannot be given

seniority in the service of Assistant Engineers overrespondents 1 to 5. It is well settled that no person can bepromoted with retrospective effect from a date when he wasnot born in the cadre so as to adversely affect others. It iswell settled by several decisions of this Court that amongstmembers of the same grade seniority is reckoned from thedate of their initial entry into the service. In other words,seniority inter se amongst the Assistant Engineers in BiharEngineering Service, Class 11 will be considered from thedate of the length of service rendered as Assistant Engineers.This being the position in law respondents 6 to 23 cannot bemade senior to respondents 1 to 5 by the impugnedgovernment orders as they entered into the said service bypromotion after respondents 1 to 5 were directly recruited inthe quota of direct recruits. The judgment of the High Courtquashing the impugned government orders made inAnnexures 8, 9 and 10 is unexceptionable."

31. From the above judgments, following propositionof law can be safely and conveniently extracted: -

(i) the State as an employer has authority andpower to determine the seniority, which, /.nter a/;.a,includes to give retrospective operation to theseniority by law. The only caveat on such exerciseof authority is that it should be fair, transparent,non-arbitrary or non-discriminatory and shouldnot be actuated by malafides.

The action of the official respondents and the impugnedorders are to be tested on the touch stone of the aboveproposition.

32. Apart from the above referred judgments, it isuseful to notice two Constitution Bench judgments of theApex Court, which were relied upon in various subsequentjudgments referred to above. In 8. S. Yadlav & others v.Sfafe of Har]/ana & ors. : 1980 (Supp) SCC 524, on the ®

question of retroactive operation of law, the Constitution Bench observed as under: - u76.

Since the Governorexercises a legislative power under the proviso to Article 309of the Constitution, it is open to him to give retrospectiveoperation to the rules made under that provision. But thedate from which the rules are made to operate must beshown to bear, either from the face of the rules or byextrinsic evidence, reasonable nexus with the provisionscontained in the rules, especially when the retrospectiveeffect extends over a long period as in this case. No suchnexus is shown in the present case on behalf of the StateGovernment Ln State of Guiarat & anr. v. Flaman Lal Kest\av LalSon7-& ore. = (1983) 2 SCC 33, a Constitution Bench ofthe Apex Court again relying upon the above ConstitutionBench judgment in B.S. Yadav fsupra), considered thequestion of retrospective effect of law to determine theservice rights as existed at the time of the amendment ofthe law. The Hon'ble Supreme Court observed as under: -

\,52.The legislature jsundoubtedly competent to legislate with retrospective effectto take away or impair any vested right acquired underexisting laws biit since the laws are made under a writtenConstitution, and have to conform to the dos and don'ts ofthe Constitution, neither prospective nor retrospective lawscan be made so as to contravene fundamental rights. Thelaw must satisfy the requirements of the Constitution todaytaking into account the accrued or acquired rights of theparties today. The law cannot say, 20 years ago the partieshad no rights, therefore, the requirements of theConstitution will be satisfied if the law is dated back by 20years. We are concerned with today's rights and notyesterday's. A legislature cannot legislate today withreference to a situation that obtained 20 years ago andignore the march Of events and the constitutional rightsaccrued in the course of the 20 years. That would be mostarbitrary, unreasonable and a negation of history.

33. The petitioner has challenged the Rule 9(iv)(b) ofSikkim Police Force (Recruitment, Promotion and Seniority)

e

Rules, 2000 as inserted by Rule 2 of the Amendment Rules,2009 brought into force vide Notification No.222/GEN/DOPdated 20.01.2010. Under these Rules, inter-se-seniority ofPolice Inspectors of Sikkim Police, Sikkim Vigilance Police,Sjkkim Armed Police and Indian Reserve Battalion on thedate of amalgamation of the cadre for the purpose of theirpromotion to the rank of Deputy Superintendent of Policehas been determined on the basis of their date ofappointment to the entry level of Sub-Inspector, meaningthereby that the seniority of Inspectors has been determinedat the feeding cadre of Sub-Inspectors irrespective of theentry/appointment of the persons as Inspectors onsubstantive basis. The seniority was required to bedetermined in the cadre of Inspectors on amalgamation ofthe cadres of different services. Indubitably, the cadre ofInspectors is higher than the Sub-Inspectors. Thus,determination of seniority on the basis of their initialappointment in the lower cadre in respective services priorto merger seems to be totally uncalled for, arbitrary,discriminatory, illegal and unconstitutional. It goes withoutsaying that seniority has relation to a class, category, cadreor grade of a service that means the persons belonging tosame status and not from different categories. The onlyargument of the respondents is that while the persons a recruited to the Sikkim Police could be promoted over alonger period of time as Inspectors as compared to thepersons recruited to the Sikkim Vigilance Police and SikkimArmed Police where the promotional avenue was better andearlier than the Sikkim Police.

34. It must be born in mind and is an admittedposition on record that prior to merger, Sikkim Police,Sikkim Vigilance Police and Sikkim Armed Police weredifferent and distinct services and were established underdifferent enactments, namely, the Sikkim Police Act, 1969and their service conditions were governed and regulated bythe Sikkim State Police Service (Recruitment) Rules, 1976;the Sikkim Vigilance Police Act, 1978 and service conditionsof its members were regulated by the Sikkim Vigilance Police(Recruitment, Seniority and Promotion) Rules, 1981; andthe Sikkim Armed Police Force Act, 1981 and serviceconditions of its members were regulated by the SikkimArmed Police Force (Recruitment, Promotion and OtherConditions of Service) Rules, 1989, as amended from timeto time. All the three Services had separate cadres havingseparate seniority and separate promotional streams. Thepersons recruited as Constables and Sub-Inspectors in theirrespective services were promoted from time to time onavailability of vacancy(ies) in their respective services.

There had been no linkage or bond amongst these services,the services being totally distinct and separate.

35. Justice N. G. Das (Retd.) Commissionrecommended integration of the three services at the levelof each cadre of services. The recommendation having beenaccepted, common rules were framed for the amalgamatedPolice Force vide Notification dated 08.09.2000 published inthe Government Gazette dated 11.09.2000. Thus thecommon service came to be constituted with effect from11.09.2000. From the perusal of Rule 4, which deals withthe injtjal constitution of the amalgamated service, jt jsapparent that the integration has taken place at each cadreof services. In the present case, the relevancy is in respectto the cadres of Sub-Inspector and Inspector. Theintegration thus resulted in commonality of cadre of theInspectors drawn from the three services and similar is theposition at the level of Sub-Inspectors. Neither therecommendation of the Commission nor the rule suggestintegration between Sub-Inspector of one service andInspector of other service, which is otherwise impermissiblein law and offends Articles 14 and 16 of the Constitution.

36. The petitioner having been appointed as Inspectorin Vigilance Police on 26.09.1995, was taken as Inspector at ®

the time of merger whereas all the private respondentsexcept respondent No. 21 were promoted as Inspectorsmuch later than the petitioner. Respondents No. 7 and 8were appointed as Inspectors on confirmed basis on07.02.2000, i.e. after more than 4 (four) years ofpetitioner's appointment as Inspector. Respondents No. 9 to20 were promoted as Inspectors on officiating basis on28.02.2001, whereas the respondents No. 22 to 28 werepromoted as Inspectors on 26.11.2002 and all therespondents No. 9 to 28 were confirmed as Inspectors on29.08.2008. This clearly indicates that at the time ofmerger of cadres except respondents No. 7, 8 and 21, allother private respondents were in the substantive ranks ofSub-Inspectors. By virtue of the rule 4, they could only beadjusted in the amalgamated service in the cadre of Sub-Inspectors and not as Inspectors. Even at the level of theInspectors, the petitioner was senior to respondents No. 7and 8 though respondent No. 21 was senior to him.

37. Another order challenged by the petitioner is No.02/PHQ/2010 dated 19.01.2010, whereby respondents 7 to20 have been promoted as Inspectors with effect from04.01.1994 and respondents 21 to 28 with effect from26.09.1995 respectively. This retrospective promotion wasagain granted on the same basis, i.e. promotions awarded to the Sub-Inspectors in their respective services with differenttime frames. It is useful to notice the relevant extract fromthe preamble of this order which is the sole basis for granting retrospective promotion:- ``3. Prior to issue of this Notification, there was nouniformity in promotions, as separate islets of cadresawarded promotions in their respective units depending uponvacancies. While Sub-Inspectors of the Sikkim Police tooklonger time to get promotions to the rank of Inspector, theircounterparts in Sikkim Armed Police, India Reserve Battalionand Sikkim Vigilance Police got their promotions rapidly.

4. For want of clear rules in the Sikkim Police Force(Recruitment, Promotion & Seniority) Rules, 2000, anomalycrept in while integrating and fixing the inter-se-seniority ofPolice Inspectors in the amalgamated cadre. This wasexamined in depth by the Committee of Senior Police Officersconstituted by the Director General of Police and afterexamining all relevant aspects it was recommended thatinter-se-seniority at the level of Sub-Inspectors be thedetermining criterion for fixing inter-se-seniority of PoliceInspectors in the amalgamated cadre. The recommendation#aesetj:#e#onb¥ndt::dp;t`jc]eu,;,St2aob6];rmTeh|::::r:p:nroj:':by the State Government on 11/4/2008. However, itsimplementation was kept in abeyance due to pendency of theWrit Petition (C) No.10 of 2007 in the matter of AdupTshering Bhutia -vs- State of Sikkim in the High Court ofsikkim.„

38-From the reports of the Committees and premisesof the impugned order quoted above, it appears that theCommittees were influenced and persuaded by the onlyfactor that the members of Sikkim Police Force, prior to theirmerger, had fewer/lesser chances of promotion and theirpromotions were delayed on account of non-availability ofpromotional vacancies in the cadre of Inspectors in theirservice. Whereas in Sikkim Vigilance Police and SikkimArmed Police, services Sub-Inspectors got promotions earlier

than their counterparts in the Sikkim Police Force. With aview to remove so-called anomaly, the Committees devisedthe method of fixing the seniority of Inspectors by takinginto consideration initial appointment/recruitment at thelevel of sub-Inspectors. While formulating this opinion theCommittees though comprising of senior officers andbureaucrats totally ignored the basis and fundamentalprinciples of seniority. It seems that Sikkim Police Forcehaving a much larger cadre, its members were able topersuade the Committee members to devise this methodwhich was to their advantage. The fallacy of themethodology adopted by the Committee is writ large andmanifest on the face of the reports and paragraph 3 of theimpugned order dated 19.01.2010. The Committees wereeither oblivious of or unwittingly ignored the fact that theSikkim Police Force, Sikkim Vigilance Police and SjkkimArmed Police were different services and they had separateseniorities and separate promotional avenues. Thus,drawing a comparison or parity of promotional avenuesamongst cadres of three different services was/isimpermissible in law. The Government without dueapplication of mind accepted the reports of the Committees,particularly, the last report headed by the Chief Secretaryand granted retrospective promotion to the private respondents without there being any nexus or valid reason.Retrospective promotion is permissible where an employeewas denied his due promotion on account of someintervening circumstances like pendency of disciplinary/criminal proceedings, illegal promotion to juniors any interimdirection of the Court etc. Retrospective promotion cannotbe granted merely to upgrade the status to bring them atpar with the members of another service when there was nocommonaljty or linkage between such services. Right topromotion in any service depends upon the availability ofpromotional vacancies. In different services, promotionchances may be different but that cannot be a ground forclaiming equality in law nor the members of two serviceseven if have similar cadres can complaint inequality havinglesser or bleak promotional avenues or claim parity to seekpromotion irrespective of the promotional vacancies. Parityamongst unequals is itself transgression of rule of equalityenshrined under Articles 14 and 16 of the Constitution ofIndia. Admittedly, the private respondents were promotedretrospectively with benefit of service as Inspectors rangingfrom 6 (six) years to 14 (fourteen) years and 7 (seven)months vide impugned order dated 19.01.2010 without anyvacancy or valid reason. They were never denied theirpromotion unjustly, illegally or on account of any e

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supervening event affecting their promotional right in theirrespective services. Thus the basis for granting themretrospective promotion after the merger of the cadres ismanifestly illegal, per se, unconstitutional being violative ofArticles 14 and 16 of the Constitution of India. Subsequentamendment of the rules suffers on the same principles.Neither the rule nor the reply or even the reports of theCommittees disclose any nexus much less a valid nexusjustifying a retroactive amendment of the rule of seniority.The sum and substance of the above discussion leads to thefollowing conclusion: - The State as an employer has authority todetermine the seniority according to rules and alsoto fix the seniority giving it retrospective operationby law. Such action of the State is liable to beinterfered or struck down only if it is found to bearbitrary, discriminatory and actuated bymalafide. However, the retrospective action is notjustified to negate any accrued or vested right,particularly, where such action affect the rightacquired over a longer period of time.

39. Other orders under challenge are promotionorders of private respondents from the post of Inspectors tothe post of Deputy Superintendent of Police from time to e time. In view of the promotion of the petitioner duringpendency of this petition, the challenge to these promotionorders can only be considered to the extent of entitlement ofthe petitioner for promotion from the date the privaterespondents were promoted, hence their promotions as suchneed not be interfered.

40. In Reserve Bank of India /s«praj, the Hon'bleSupreme Court approved the fixation of seniority by takingonly 1/3rd of the non-clerical service with the clerical service.It was thus in the opinion of the Hon'ble Supreme Court thatthe merger is between two unequal cadres and thus the ruleof seniority adopted by the Bank was held to be not arbitraryor discriminatory. In K. 8. Shukla & ors fsupraj, it hasbeen held that length of service is "infinitely the bestcriterion which could ever been devised by any rulegoverning the conditions of a Service" to determine theseniority. In all other judgments, the length of service in aparticular cadre has been approved as the best criterion fordetermining the seniority.

41. Apart from the ratio of above noticed judgments,the present case, in fact, is squarely covered by theConstitution Bench judgment of the Hon'ble Supreme Courtin State of Gujarat & Anr. fsupraj.

I

42. Applying the above ratio, the right of thepetitioner and private respondents stood crystallized on thedate of their substantive promotions as Sub-Inspectors/Inspectors of Police in their respective services andsubsequently on the date of merger which became effectiveon 11.09.2000. On this date, admittedly petitioner wasconfirmed in the cadre of Inspectors with effect from26.09.1995 whereas the private respondents exceptrespondent No.21, 7 and 8 were substantively holding theposts of Sub-Inspectors. Respondents 7 and 8 wereappointed as Inspectors on confirmed basis on 07.02.2000and respondents 8 to 28 earned their officiating andsubstantive appointments in the years 2001, 2002 and 2008respectively, i.e. much later than merger of the services andthus by no stretch of imagination, the private respondentsexcept respondent No.21 could be granted benefit ofretrospective promotion prior to the petitioner or even at parwith him or be granted seniority over and above him. Theaction of State in passing the impugned order dated19.01.2010 granting retrospective promotion as also theamendment dated 20.01.2010 to Rule 9 fixing the seniorityof these Inspectors at the level of Sub-Inspectors tends tonegate the accrued and vested right of seniority after a long period of time, is discriminatory in nature result of arbitraryexercise of jurisdiction, unconstitutional, illegal and violativeof Articles 14 and 16 of the Constitution of India.

43. In this view of the matter, this petition is allowed.Notification No. 2/PHQ/2010 dated 19.01.2010 (AnnexureP-27) granting retrospective promotion to the privaterespondents and the amended Rule 9(iv)(b) and otherrelated amendments to the Sikkim Police Force(Recruitment, Promotion and Seniority) Rules, 2000introduced vide Notification No.222/GEN/DOP dated20.01.2010 (Annexure P-28) are hereby quashed/struckdown as unconstitutional. Private respondents shall bedeemed to have been promoted as Inspectors from thedates of their substantive promotion i.e. respondents No.7and 8 on 07.02.2000 and respondents 9 to 17, 19 to 23 and26 to 28 on 29.08.2008 (respondents 18, 24 and 25 havingbeen deleted vide order dated 01.12.2011). In view of thequashment of amended Rule 9(iv)(b) and consequentialamendments in Notification dated 20.01.2010, the seniorityof the petitioner and private respondents be re-fixed witheffect from the dates of their substantive appointment asInspectors in the amalgamated force.

Pin

44. Petitioner has already got promotion as DeputySuperintendent of Police vide order dated 23.02.2012whereas he was entitled to be promoted with effect from thedate the first promotion was granted to any of the privaterespondents. Resultantly, it is directed that the petitionershall be promoted as Deputy Superintendent of Police witheffect from 03.05.2010 when respondents No.7 to 10 werepromoted. In view of the retirement of the petitioner, heshall be entitled to all financial and other consequentialbenefits of such promotion.

45. Petitioner shall also be entitled to cost ofRs.20,000/-to be shared by State Rs.10,000/-and privaterespondents Rs.10,000/-equally.

(Permed Kohli) `Chief Justice10.10.2012

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