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.
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.
-----------------------
[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
-----------------------
24
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.
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.
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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