STATE OF SIKKIM Vs ADUP TSHERING BHUTIA .
Bench: H.L. GOKHALE,KURIAN JOSEPH
Case number: C.A. No.-002446-002446 / 2014
Diary number: 2192 / 2013
Advocates: ARPUTHAM ARUNA AND CO Vs
ANUPAM LAL DAS
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2446 /2014 [Arising out of S.L.P.(Civil) No. 9409/2013]
STATE OF SIKKIM AND OTHERS … APPELLANT (S)
VERSUS
ADUP TSHERING BHUTIA AND OTHERS … RESPONDENT (S)
J U D G M E N T KURIAN, J.:
Leave granted.
2. Integration of services means the creation of a
homogenous service by the amalgamation or merger
of service personnel belonging to separate services.
Integration is a policy matter as far as the State is
concerned. In evolving a proper coalescence of the
services, there are various steps:
(i) Decide the principles on the basis of which
integration of services has to be effected;
(ii) Examine the facts relating to each category and class
of post with reference to the principle of equivalence;
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(iii) Fix the equitable basis for the preparation of common
seniority list of personnel holding posts which are merged
into one category.
The State is bound to ensure a fair and equitable
treatment to officers in various categories/cadres of
services while preparing the common seniority list. Being
a complicated process, integration is likely to result in
individual bruises which are required to be minimised and
if not possible, to be ignored. These first principles on
integration are to be borne in mind whenever a dispute on
integration is addressed.
SHORT HISTORY
3. Prior to the constitution of integrated Sikkim Police
Force w.e.f. 11.09.2000 as per the Sikkim Police
Force (Recruitment, Promotion and Seniority) Rules,
2000, there were three different services, viz., (1)
Sikkim Police Force, (2) Sikkim Armed Police Force
and (3) Sikkim Vigilance Police. All the three forces
were governed by separate service rules. There is
entry level of constable in all the three forces. The
Sikkim Vigilance and Sikkim Armed Forces ended
with the cadre of inspector. In the case of Sikkim
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Armed Police there was also 50% direct recruitment
at the level of sub-inspector. Promotion to the post of
Deputy Superintendent of Police was available only
to the Sikkim Police Force. The posts of Deputy
Superintendent of Police in Sikkim Vigilance Police
and Sikkim Armed Police were filled up only by
deputation. The personnel belonging to the Sikkim
Vigilance Police and Sikkim Armed Police had been
raising their grievances with regard to lack of
promotion beyond inspector of police at various
levels. The matter reached the High Court in Writ
Petition (C) No. 513 of 1998. Realising the heartburn,
the State Government appointed Justice N. G. Das, a
former Judge of the High Court of Sikkim as one man
Commission for examining the scope of integration of
different services. Implementing the
recommendations of the Commission, the State
Government framed the Sikkim Police Force
(Recruitment, Promotion and Seniority) Rules, 2000
under Article 309 of the Constitution of India
consisting of posts upto inspector in all the three
forces. For the purpose of ready reference, we shall
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extract Rule 4 of 2000 Rules on constitution of the
forces:
“4. Constitution of the Force: The Force shall consist of the following, namely:- (a) Persons holding the posts upto and including
Inspectors under Schedule I of the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 1981.
(b) Persons holding the posts of Constable, Head Constable, Assistant sub-Inspector, Sub- Inspector and Inspector under the Sikkim Vigilance Police Force (Recruitment, Promotion and Seniority) Rules, 1981.
(c) Persons holding the posts of Sub-Inspector and Inspector under the Sikkim Armed Police (Recruitment, Promotion and Seniority) Rules, 1989.
(d) Persons recruited to the Force in accordance with the provisions of these rules.”
4. On seniority, Rule 9 provided that the same would be
determined by the order of merit in which they are
selected for recruitment. To quote:
“9. Seniority (i) The relative seniority of the members of the
force recruited directly, shall be determined by the order of merit in which they are selected for such recruitment. Members as a result of an earlier selection shall be senior to those recruited as a result of a subsequent selection.
(ii) The relative seniority of persons promoted from a lower post shall be on the basis of seniority-cum-merit subject to successfully passing the prescribed exam.
(iii) The relative seniority inter-se of members recruited directly and through promotion
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shall be determined according to the rotation of vacancies between direct recruits and promotes which shall be based on the quota of vacancies reserved for direct recruitment and promotion, respectively, in these rules.”
(Emphasis supplied)
5. On inter se seniority at the level of two cadres, viz.,
sub-inspector and inspector, it appears, there was a
back reference to Justice N. G. Das Commission.
However, it is seen from the records that there was
no further recommendation from Justice N. G. Das
Commission. With regard to the method and
modalities of fixing of seniority of the sub-inspectors
and inspectors, the matter was hence referred to a
committee of senior police officers constituted by the
Director General of Police. It was recommended that
the inter se seniority at the level of sub-inspectors be
the determining criterion for fixing the inter se
seniority of inspectors in the integrated cadre. The
proposal was approved by the Government on
11.04.2008 but the same was not implemented due
to the pendency of a Writ Petition filed by the first
respondent herein. After the disposal of the Writ
Petition on 27.08.2009 as withdrawn, the
government again constituted a high level committee
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headed by the Chief Secretary as Chairman with
Director General of Police, Home Secretary and
Secretary DoP as members and Joint Secretary DoP
as member secretary. The committee submitted its
report on 31.10.2009. It was recommended that the
inter se seniority of police inspectors should be fixed
based on the seniority at the entry level of sub-
inspectors. It was also recommended that inspectors
of Sikkim Police be deemed to have been promoted
as inspectors w.e.f. the date their colleague officers
at the entry level of sub-inspectors in Sikkim Armed
Police and Sikkim Vigilance Police first got promoted
as inspectors. The recommendation was approved by
the State Government on 10.11.2009, and on
19.01.2010 a Notification was issued granting
retrospective promotion to 52 members of the Sikkim
Police Force with the condition that the officers will
not be entitled to arrears of pay.
6. The State Government also amended the integrated
Sikkim Police Force (Recruitment, Promotion and
Seniority) Rules, 2000 as per Notification dated
20.01.2010 with retrospective effect from
11.09.2000. The amendment was mainly in Rule No. 6
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9 on seniority wherein a new sub-clause (iv) was
inserted. The amended Rule 9 (iv) reads as follows:
“9(iv)(a) The inter-se-seniority of police personnel up to the rank of Assistant Sub-inspector in the Sikkim Police and Sikkim Vigilance Police on the date of amalgamation of the cadres for the purpose of their promotion to the next rank shall be determined on the basis of their date of appointment to the entry level post of Constable.
(b) The inter-se-seniority of Police Inspectors of Sikkim Police, Sikkim Vigilance Police, Sikkim Armed Police and Indian Reserve Battalion on the date of amalgamation of the cadres for the purpose of their promotion to the rank of Deputy Superintendent of Police shall be determined on the basis of their date of appointment to the entry level of Sub-Inspector.”
(Emphasis supplied)
7. The Rules also provided for a residuary power to the
Government for relaxation. The relevant Rule reads
as under:
“17. Power to relax: Where the Government of Sikkim is of the opinion that it is necessary or expedient to do so, it may, by order, for reasons to be recorded in writing, relax and of the provisions of these rules with respect to any class or category of persons or post.”
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SHORT FACTS
8. Seniority, the retrospective promotion granted
notionally to the members of the pre-integrated
Sikkim Police Force and the amendment was
challenged by respondent no.1 before the High Court
in Writ Petiton (C) No. 33 of 2010 mainly with the
following two prayers:
“(a) A writ in the nature of certiorari or any other writ, order or directions striking down/quashing Rule 9(iv)(b) of the Sikkim Police Force (Recruitment, Promotion & Seniority) Rules, 2000 as inserted by Rule 2 of the Sikkim Police Force (Recruitment, Promotion and Seniority) Amendment Rules, 2009 brought into force vide Notification No. 222/GEN/DOP dated 20.01.2010 with retrospective effect from 11.09.2000.
(b) A writ in the nature of certiorari or any other writ, order or directions striking down/quashing the Notification No. 02/PHQ/2010 dated 19.01.2010 to the extent it gives retrospective promotion to over 6 years to the private Respondent Nos. 7 to 28 except Respondent No. 21 by a deeming fiction irrespective of their actual date of confirmation with effect from the dates mentioned in the said impugned notification against the names of each of the said private Respondents.”
9. For a proper understanding of the factual disputes,
we shall refer to the grievance of the writ petitioner.
He joined Sikkim Police as a Constable on
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12.08.1974. He was absorbed in the Sikkim Vigilance
Police on 12.09.1978. He was promoted as sub-
inspector on 22.12.1986 and was further promoted
as inspector on 26.09.1995. On account of the
retrospective promotion granted to the members of
the Sikkim Police Force based on the date of
appointment/promotion as sub-inspector in the case
of the other two services, the writ petitioner became
junior to them, affecting his chances of promotion to
the post of Deputy Superintendent of Police.
10. The High Court by Judgment dated 10.10.2012
allowed the Writ Petition quashing the retrospective
promotion granted to the private respondents and
striking down Rule 9(iv) holding also that the
seniority in the integrated cadre of inspectors shall
be decided only on the basis of their substantive
promotion to that post, and not based on the date of
promotion/appointment to the post of sub-inspector.
The Court, however, protected the promotions
granted to the private respondents. It is significant to
note that even the writ petitioner was also promoted
as Deputy Superintendent of Police on 23.02.2012
and he retired from service on 31.08.2012. The 9
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direction by the High Court is to grant promotion with
effect from the date the first promotion was granted
to any other private respondent with all the
consequential including monitory benefits. Thus
aggrieved, the State is before this Court.
11. The High Court has placed reliance on the
Constitution Bench decision of this Court in State of
Gujarat and Another v. Raman Lal Keshav Lal
Soni and Others1 regarding retrospective operation
of law. Reliance is also placed on another
Constitution Bench decision in B.S. Yadav and
Others v. State of Haryana2. In B. S. Yadav’s
case (supra), this Court dealt with the legislative
power of the State under Article 309 of the
Constitution of India. It was clearly held in both the
decisions that the State is competent to enact laws
with retrospective effect. The only rider is that the
date of retrospective operation should have
relevance and nexus with the object sought to be
achieved and the same shall not affect the accrued
rights.
1 (1983) 2 SCC 33 2 (1980) Suppl. SCC 524
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12. The short question is whether the amended Rule on
fixation of seniority satisfied the test of
reasonableness. Integration of three services was
necessitated for balancing the inequality to the
extent that the members of two of the services were
denied promotion to the post of Deputy
Superintendent of Police. Such promotion was
available only to the members of the erstwhile Sikkim
Police Force and was denied to Sikkim Vigilance
Police and Sikkim Armed Police. In this context, it
would be useful to refer to the terms of reference to
Justice N. G. Das Commission:
“(1) To comprehensively review the existing Recruitment Rules of all the different wings of Sikkim Police so as to arrive at an appropriate solution, which would meet promotional aspirations of the entire Police Force.
(2) To examine the necessity for integration of the different Recruitment Rules particulary (a) Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 1988, (b) Sikkim Armed Force (Recruitment, Promotion and other Conditions of Service) Rules, 1989 and (c) the Sikkim Vigilance Police (Recruitment, Seniority and Promotion) Rules, 1981, so as to bring about long term solution to meet the promotional aspirations of the entire Police Force. The Commission shall submit its report on or before 31.12.99.”
(Emphasis supplied)
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13. Accepting the recommendation of the Commission
for a unified Police Force, the State Government
integrated three services and promulgated the
Sikkim Police Force (Recruitment, Promotion and
Seniority) Rules, 2000. It is to be specifically noted
that the members of Sikkim Vigilance Police and
Sikkim Armed Police had obtained accelerated
promotion to various posts up to the position of
inspector of police. However, their compeers in the
erstwhile Sikkim Police Force could not get such
promotions to the higher post of inspector for want of
vacancy. It is crucially significant to note that there
was entry level direct recruitment in one of the
services, viz., Sikkim Vigilance Police to the extent of
50%.
14. No doubt one of the main principles of integration is
equation of posts. But the question is whether such
integration based only on equation of posts will result
in inequality or injustice to the members of any other
service.
15. As we have already noted above, promotion to the
post of Deputy Superintendent of Police was
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available only to members of the Sikkim Police Force.
In the other two services, viz., Sikkim Vigilance Police
and Sikkim Armed Police, though the members
therein got accelerated promotion to the post of
inspector, there was no further promotion available
to them and they had to retire from service in that
cadre. It was this inequality that was sought to be
remedied by integration.
16. The feeder category for promotion to the post of
Deputy Superintendent of Police is inspector. If the
seniority is fixed in that cadre of inspector, it would
virtually amount to denial of promotion to the post of
Deputy Superintendent of Police for quite some time
to the members of the Sikkim Police Force. It was this
discrimination and resultant injustice that was sought
to be remedied by referring the matter to the
Committee which recommended that for the purpose
of promotion to the post of Deputy Superintendent of
Police and preparation of seniority list in that regard,
the date of promotion to the post of sub-inspector
should form the basis. That date was taken, as we
have already noted above, since there was direct
recruitment to the post of sub-inspector in Sikkim 13
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Armed Police. What has been done by the
Government is to base the date of promotion/direct
recruitment to the post of sub-inspector as the
determining factor for fixation of seniority for the
purpose of promotion to the post of Deputy
Superintendent of Police and grant deemed/notional
promotion to the members of the Sikkim Police Force
from the date their compeers in the other two
services got promotion to the post of inspector.
Appointment to the post of inspector is by promotion.
Therefore, the entry level appointment to the cadre
of sub-inspector becomes relevant. The sub-inspector
of Sikkim Vigilance and Sikkim Armed Forces, by
chance, got accelerated promotion to the post of
inspector. It was this injustice that was sought to be
remedied by the retrospective promotion without
monitory benefits and the amendment in the Rules.
Merely because there is equation of post in a cadre
on integration that does not necessarily mean that
the common seniority list should be prepared in that
cadre for promotion to the next higher cadre. If that
method would result in injustice and graver
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inequality, another fair and just mode can be
adopted.
17. True, many officers who were working as sub-
inspectors, while the writ petitioner had been working
as inspector, have gone above him in the process but
the hard fact which caused the heartburn to his
compeers in the Sikkim Police Force is that at the
level of sub-inspectors, all of them were either
travelling together with the writ petitioner or had
gone much earlier to him in that cadre.
18. One cannot also lose sight of the fact that, after
integration, the promotion chances of members of
Sikkim Police have been reduced considerably, since
originally it was their exclusive domain.
19. The Apex Court in Tamil Nadu Education
Department Ministerial and General
Subordinate Services Association and Others v.
State of Tamil Nadu and Others3 held that
integration is a complicated administrative process
and it is likely to affect certain individuals. To quote:
“7. In service jurisprudence integration is a complicated administrative problem where, in doing
3 (1980) 3 SCC 97 15
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broad justice to many, some bruise to a few cannot be ruled out. Some play in the joints, even some wobbling, must be left to government without fussy forensic monitoring, since the administration has been entrusted by the Constitution to the executive, not to the court. All life, including administrative life, involves experiment, trial and error, but within the leading strings of fundamental rights, and, absent unconstitutional “excesses”, judicial correction is not right. Under Article 32, this Court is the constitutional sentinel, not the national ombudsman. We need an ombudsman but the court cannot make-do.
8. … Maybe, a better formula could be evolved, but the court cannot substitute its wisdom for Government’s, save to see that unreasonable perversity, mala fide manipulation, indefensible arbitrariness and like infirmities do not defile the equation for integration. We decline to demolish the order on this ground. Curial therapeutics can heal only the pathology of unconstitutionality, not every injury.”
(Emphasis supplied)
The same view has been followed in Indian Airlines
Officers’ Association v. Indian Airlines Limited and
others4, Kerala Magistrates’ (Judicial) Association
and others v. State of Kerala and others5, Life
Indian Corporation of India and Others v. S. S.
Srivastava and Others6 and New Bank of India
Employees’ Union and Another v. Union of India and
Others7.
4 (2007) 10 SCC 684 5 (2001) 3 SCC 521 6 1988 Supp SCC 1 7 (1996) 8 SCC 407
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20. It has also been held by this Court in K.S. Vora and
others v. State of Gujarat and others8 that
integration affecting the larger public interest would
necessarily affect the seniority of some members of
some of the services. To quote:
“5. As we have already pointed out in the
instant case the State decided at stages to switch over to the common cadre in respect of all the four grades of the Subordinate Service. Before common grades had been formed promotion was granted departmentwise. When ultimately a common cadre came into existence — and all that was done by 1974 — it was realised that if seniority as given in the respective departments were taken as final for all purposes there would be prejudice. Undoubtedly the common cadre was for the purpose of increasing the efficiency by introducing a spirit of total competition by enlarging the field of choice for filling up the promotional posts and in the interest of discipline too. After a common cadre was formed, the general feeling of dissatisfaction on account of disparity of seniority became apparent. The 1977 Rules were introduced in this background to ease the situation. The scheme of this rule protected the rank then held by every member of the service notwithstanding alteration of seniority on the new basis. This, therefore, made it clear that accrued benefits were not to be interfered with. To that extent the 1977 Rules were not retroactive. In spite of the protection of rule regarding the post then held, the Rules brought about a change in the inter se seniority by adopting the date of initial recruitment and the length of service became the basis for refixing seniority. Total length of service for such purpose is a well known concept and could not said to be arbitrary. Undoubtedly one of the consequences of the change in the basis was
8 (1988) 1 SCC 311
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likely to affect prospects of promotion — a matter in future. Two aspects have to be borne in mind while considering the challenge of the appellants to this situation. It was a historical necessity and the peculiar situation that arose out of government’s decision to create a common cadre with four grades in the entire Secretariat. We would like to point out with appropriate emphasis that there was no challenge to creation of the common cadre and certainly government was competent to do so. The second aspect to be borne in mind is that rules of seniority are a matter for the employer to frame and even though prospects of promotion in future were likely to be prejudiced by introduction of a new set of rules to regulate seniority, if the rules were made bona fide and to meet exigencies of the service, no entertainable grievance could be made. If these are the tests to apply, we do not think the appellants have indeed any grievance to make. In our view, therefore, the High Court rightly dismissed the contention and found that appellants were not entitled to relief.”
(Emphasis supplied)
21. In Kerala Magistrates’ (Judicial) Association
case (supra), this Court held:
“5. We have examined the relevant records containing the deliberations made in the full court meetings of the High Court on the topic of integration of the two wings. It appears that on the criminal side the entry post was Magistrate Second Class and the highest post, a Magistrate Second Class could reach was Chief Judicial Magistrate. On the civil side the entry post was Munsif and the highest post was the District Judge. The association of the Criminal Magistrates had all along been clamouring that the post of District and Sessions Judge should also be separated and the Chief Judicial Magistrates on the criminal side should also be promoted to the post of District and Sessions Judge. … … … the number of posts of Judicial Magistrates Second Class, which existed
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on the date of the full court meeting. The Court took notice of the fact that on the date of integration, 42 Magistrates Second Class will be absorbed in the category of Munsif Magistrates and all of them will be duly benefited in their scale of pay. The Court also considered that in view of the number of posts available, while Munsifs could expect promotion to 49 posts of Subordinate Judge but the Judicial Magistrates could expect promotion only to 18 posts of Chief Judicial Magistrates, as it existed. But by reason of integration, the chances of promotion of the Magistrates will be much more enhanced, compared to the chances of promotion to the Munsifs. The Court also considered the normal rate of promotion and found that for Munsifs, the rate being 1.25, for a Magistrate rate was only 0.30 and on account of integration, the ratio would come to 0.84, which indicates that overall chances of promotion to the Munsifs would get reduced from 1.25 to 0.84, whereas the chances of promotion of the Magistrates get increased from 0.30 to 0.84. The High Court, therefore, suggested that the ratio of 3:1 should be fixed both in the integrated cadre of the Subordinate Judges and Chief Judicial Magistrates for promotion to the post of District Judge as well as in the cadre of Munsifs and Magistrates First Class for the promotion to the post of Subordinate Judges. The High Court also was of the opinion that the effect of integration will be that while Munsifs would lose chances of promotion the Magistrates will improve their chances of promotion, although some Senior Magistrates, individually, will sustain some loss. But such loss is the usual consequence of any integration process. Notwithstanding the aforesaid recommendations of the High Court, the State Government on receipt of representation from the Magistrates’ Association, made further correspondence with the High Court and suggested that the ratio for promotion from the Munsifs and Magistrates to the Subordinate Judges should be fixed at 5:2. The High Court initially had some reservations, but ultimately accepted the same and communicated its acceptance to the Government, whereafter the Rules were
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promulgated and Rule 3(4) of the Rules embodies the aforesaid principle. … … … We see no legal infirmity with the conclusions arrived at by the High Court, requiring interference by this Court, even though we agree that some individual Magistrates might have suffered some loss. …”
(Emphasis supplied)
22. All that apart, integration is a policy matter for the
State. This Court had occasion to consider this aspect
of the matter in Reserve Bank of India v. N.C.
Paliwal and others9. To quote:
“15. Now, the first question which arises for consideration is whether Reserve Bank violated the constitutional principle of equality in bringing about integration of non-clerical with clerical services. We fail to see how integration of different cadres into one cadre can be said to involve any violation of the equality clause. It is now well settled, as a result of the decision of this Court in Kishori Mohanlal Bakshi v. Union of India2 that Article 16 and a fortiori also Article 14 do not forbid the creation of different cadres for government service. And if that be so, equally these two articles cannot stand in the way of the State integrating different cadres into one cadre. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services. That is a matter of policy which does not attract the applicability of the equality clause. The integration of non-clerical with clerical services sought to be effectuated by the combined seniority scheme cannot in the circumstances be assailed as violative of the constitutional principle of equality.”
(Emphasis supplied)
9 (1976) 4 SCC 838 20
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23. In R.S. Makashi and others v. I. M. Menon and
others10, this Court held that :
“34. When personnel drawn from different sources are being absorbed and integrated in a new department, it is primarily for the Government or the executive authority concerned to decide as a matter of policy how the equation of posts should be effected. The courts will not interfere with such a decision unless it is shown to be arbitrary, unreasonable or unfair, and if no manifest unfairness or unreasonableness is made out, the court will not sit in appeal and examine the propriety or wisdom of the principle of equation of posts adopted by the Government. In the instant case, we have already indicated our opinion that in equating the post of Supply Inspector in the CFD with that of Clerk with two years’ regular service in other government departments, no arbitrary or unreasonable treatment was involved.”
(Emphasis supplied)
24. In Prafulla Kumar Das and others v. State of
Orissa and others11, it was held that :
“33. Under Article 309 of the Constitution of India, it is open to the Governor of the Sate to make rules regulating the recruitment, and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the legislature. As has been rightly pointed out by the Court in Nityananda Kar case 2 , the legislature, or the Governor of the State, as the case may be, may, in its discretion, bestow or divest a right of seniority. This is essentially a matter of policy, and the question of a vested right would not arise, as the State may alter or deny any such ostensible right,
10 (1982) 1 SCC 379 11 (2003) 11 SCC 614
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even by way of retrospective effect, if it so chooses ( sic ) in public interest .”
(Emphasis supplied)
25. In S. S. Bola and others v. B.D. Sardana and
others12 also, this Court held that seniority of a
government servant is not a vested right and that an
Act of State Legislature or a Rule under Article 309 of
the Constitution of India can retrospectively affect
the seniority of a government servant. To quote:
“153. xxx xxx xxx xxx
AB. A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus
12 (1997) 8 SCC 522 22
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is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se.
xxx xxx xxx xxx xxx
200. Thus to have a particular position in the seniority list within a cadre can neither be said to be accrued or vested right of a government servant and losing some places in the seniority list within the cadre does not amount to reduction in rank even though the future chances of promotion get delayed thereby.”
26. The High Court patently erred in holding that the
acquired or accrued rights of the writ petitioner had
been affected by the fixation of seniority at the level
of sub-inspector of Police. It has to be noted that, but
for merger, neither the writ petitioner nor the
members of the two other police forces, viz., Sikkim
Vigilance Police and Sikkim Armed Force, could have
got any promotion at all to the post of Deputy
Superintendent of Police. The very purpose of
integration was to remove the inequality and provide
them with the opportunity for promotion to the post
of Deputy Superintendent of Police. If length of
continuous service in the highest cadre of some
similar services is taken as the basis of fixing the
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seniority and for further promotion to higher posts
that would certainly result in deeper injustice to the
members of the other services. It was hence the
State, after due deliberations and based also on
report of an expert Committee consisting of the top
level offices in the State, took an equitable decision
to make the post of sub-inspector of Police, where
there is direct level entry in one of the services, as
the determining factor for fixation of seniority. The
writ petitioner did not suffer any demotion in the
process. He continued in the post of inspector. The
only thing is that his compeers in Sikkim Police Force
who could not get accelerated promotion to the post
of inspector, but who are admittedly senior to him if
the date of appointment to the post of sub-inspector
is taken, were given the deemed date of promotion
to the post of inspector based on the seniority at the
level of sub-inspector. The amended rule certainly
has thus a nexus to the injustice sought to be
removed so as to balance the equity. It is neither
irrational nor arbitrary.
27. It is significant also to note that in the whole State of
Sikkim, the writ petitioner is the only person who 24
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challenged the amendment which by itself would
show that it was a case of a solitary instance,
assuming there is basis for his grievance. We may,
however, take note of a factual position that the writ
petitioner was senior to some of the private
respondents if his date of entry in service as Sikkim
Police Constable is taken. But when the Sikkim
Vigilance Police was formed, he opted for that and he
was absorbed in that Police wherein he got
accelerated promotions to the various posts of head
constable, assistant sub-inspector, sub-inspector and
inspector. But it appears that such a ground with
regard to his original date of entry as a police
constable in 1974 is not taken anywhere.
28. All that apart, if we closely analyse Rule 9(1), it can
be seen that the principle of fixation of seniority as
introduced by the amendment was already there. It is
already provided therein that the relative seniority of
the members recruited directly will be fixed based on
the date of induction to the cadre. In other words,
date of induction to a cadre where there is direct
recruitment is the basis of fixation of seniority in the
instant case at the level of sub-inspector. Thus, the 25
Page 26
amendment is merely clarificatory in nature and,
therefore, it is deemed to exist from the original date
of commencement of the Rule in 2000.
29. Be that as it may, the High Court has already
protected the promotions granted to the private
respondents but the High Court has struck down the
Rule and has quashed the seniority list. As we have
already noted above, the High Court has
unfortunately missed the crucial consideration with
regard to the principles set by the State with regard
to fixation of seniority, the purpose sought to be
achieved in the process, the relevant considerations
which lead to the decision and the materials
including the report of the expert committee which
were relied on by the State in the process of making
and taking of the decision. The State has only acted
within its authority under Article 309 of the
Constitution of India in bringing about the
clarificatory amendment with regard to the fixation of
seniority in the cadre of sub-inspectors. The
retrospectivity given to the private respondents by
giving the deemed date of promotion is neither
arbitrary nor unreasonable. On the contrary, it is 26
Page 27
perfectly just, fair and equitable in the given
circumstances without which the integration of
services would have resulted in graver inequality and
injustice to the members of the major service. In the
result, the appeal is allowed. The impugned judgment
is set aside. Writ Petition filed by the private
respondent in High Court is dismissed.
30. We have already noted above that the first
respondent-writ petitioner was also promoted as
Deputy Superintendent of Police and he has retired
from service. Rule 17 of the 2000 Rules has provided
for power of relaxation to the State. Since the first
respondent-writ petitioner had actually entered in
service in 1974, prior to some of the private
respondents, this could have been probably a case
for the State Government to exercise that power. We
do not propose to relegate the first respondent-writ
petitioner at this stage for that remedy. For doing
complete justice, being a solitary case, we hold that
the benefits granted by the High Court in the
impugned Judgment to the writ petitioner, shall not
be disturbed.
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31. The appeal is allowed as above. There is no order as
to costs.
………………………J.
(H. L.
GOKHALE)
……………… ………J.
(KURIAN JOSEPH)
New Delhi; February 18, 2014.
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