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Wednesday, February 19, 2014

Service matter - promotion to D.S.P cadre - The Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000, - Police force , Vigilance force , Armed police force - except in police force there is no promotion to DSP post in other cadres - to avoid injustice - integrated rules framed merging all forces - Apex court set aside the order of High court which quashed the retrospective promotion granted to the private respondents and striking down Rule 9(iv) and hold 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 - Apex court held that the rule is valid and sound - if length of service was taken in to consideration for promotion to the DSP - direct recruiters should be eliminated every time from promotion to DSP - to avoid injustice only integrated rules are farmed merging three forces under one service rules - Date of appointment or promotion to the post of Sub-Inspector was only taken as basic for promotion to DSP - not unconstitutional = STATE OF SIKKIM AND OTHERS … APPELLANT (S) VERSUS ADUP TSHERING BHUTIA AND OTHERS … RESPONDENT (S)= 2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41230

Service matter - promotion to D.S.P cadre - The Sikkim Police Force (Recruitment, Promotion  and Seniority) Rules, 2000, -  Police force , Vigilance force , Armed police force - except in police force there is no promotion to DSP post in other cadres - to avoid injustice - integrated rules framed merging all forces - Apex court set aside the order of High court which quashed the  retrospective  promotion   granted   to   the   private respondents and  striking  down  Rule  9(iv)  and hold  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 - Apex court held that the rule is valid and sound - if length of service was taken in to consideration for promotion to the DSP -  direct recruiters should be eliminated every time from promotion to DSP - to avoid injustice only integrated rules are farmed merging three forces under one service rules - Date of appointment or promotion to the post of Sub-Inspector was only taken as basic for promotion to DSP - not unconstitutional = 

He joined Sikkim  Police  as  a
      Constable on 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. 
 The Sikkim Police Force (Recruitment, Promotion  and Seniority) Rules, 2000,
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.=
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 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.=
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.

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 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.


 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  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.

  31. The appeal is allowed as above. There is no order as to costs.


  2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41230
H.L. GOKHALE, KURIAN JOSEPH
                                                              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;

(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 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 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  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 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. 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.”



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 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 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 Others[1] regarding retrospective operation of law.  Reliance
      is also placed on another Constitution Bench decision  in  B.S.  Yadav
      and Others v. State of Haryana[2]. 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.

  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)




  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 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 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 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  Others[3]   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 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  others[4],  Kerala  Magistrates’
(Judicial) Association and others v. State of  Kerala  and  others[5],  Life
Indian Corporation of India and Others v. S.  S.  Srivastava  and  Others[6]
and New Bank of India Employees’ Union and Another v.  Union  of  India  and
Others[7].

  20. It has also been held by this Court in K.S. Vora and others  v.  State
      of Gujarat and others[8] 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 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 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  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 others[9]. 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)



  23. In  R.S. Makashi and others v. I. M. Menon and others[10], 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  others[11],
      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 case2, 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, 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  others[12]  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 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 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 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
      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  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.

  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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[1]    (1983) 2 SCC 33
[2]    (1980) Suppl. SCC 524
[3]    (1980) 3 SCC 97
[4]    (2007) 10 SCC 684
[5]    (2001) 3 SCC 521
[6]    1988 Supp SCC 1
[7]    (1996) 8 SCC 407
[8]    (1988) 1 SCC 311

[9]    (1976) 4 SCC 838
[10]   (1982) 1 SCC 379
[11]   (2003) 11 SCC 614
[12]    (1997) 8 SCC 522

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