G.B Pattanaik, J.— Delay condoned.
2. Leave granted.
3. These two applications are directed against the judgment dated 24-5-1993 of the Central Administrative Tribunal in OA No. 479 of 1986, one at the instance of Union of India and the other at the instance of an employee Shri O.S Singh. Perennial dispute of determining inter se seniority between a direct recruit and a promotee in the Indian Police Service and the ticklish issue of year of allotment has cropped up again in these two applications. The appellant, Shri O.S Singh had joined as Deputy Superintendent of Police on 26-11-1965 after being selected by the State Public Service Commission. The recruitment to the Indian Police Service is made under IPS (Recruitment) Rules, 1954, (hereinafter referred to as “the Recruitment Rules”). Under Rule 4 thereof, recruitment is made both by competitive examination as well as by promotion of substantive member of a State Police Service. Under sub-rule (2) of Rule 6 of the Recruitment Rules, the initial appointment of person recruited to the Service under clause (a) of sub-rule (1) of Rule 4, shall be in the junior time scale of pay and under sub-rule (3) of Rule 6 the initial appointment of person recruited to Service under clause (b) of sub-rule (1) of Rule 4 shall be in the senior time scale of pay. Thus an officer of the State Police Service on being promoted is recruited in the senior time scale of pay of the Indian Police Service. Rule 9 of the Recruitment Rules provides that the Central Government may on the recommendation of the State Government concerned and in consultation with the Commission, recruit to the Service persons by promotion from amongst the substantive member of a State Police Service in accordance with such regulation as the Central Government after consultation with the State Government and the Commission from time to time make. In pursuance of sub-rule (1) of Rule 9 of the Recruitment Rules, the Regulation has been framed for appointment by promotion to the Indian Police Service called the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as “the Promotion Regulation”). Under the IIIrd Proviso to sub-regulation (2) of Regulation 5 of the Promotion Regulations, a member of the State Police Service is entitled to be considered for being included in the Select List if he is continuing in the State Police Service on a substantive basis and has completed not less than 8 years of continuous service in the post of Deputy Superintendent of Police or any other post or posts declared equivalent thereto by the State Government by the 1st day of January of the year in which the Committee meets for preparation of the Select List. The Select List which is approved by the Commission forms the Select List of the members of the State Police Service under sub-regulation (3) of Regulation 7 of the Promotion Regulations. In accordance with Regulation 9 of the said Promotion Regulations appointment to the Indian Police Service is made by the Central Government on the recommendation of the State Government in the year in which the names of the members of the State Police Service appeared in the Select List, for the time being in force. The name of Shri O.S Singh had not been included in the Select List prepared during 1974 to 1976, as some adverse remarks were there against him in the CR though one of his juniors in the State Police Service Shri Kali Charan was included in the Select List on 12-7-1974. On a representation being filed for expunction of the adverse remarks by the appellant Shri O.S Singh, the Government expunged the same on 1-1-1976. Said Shri Singh was allowed to officiate against a senior post in Indian Police Service with effect from 30-8-1978 after he was brought on to the Select List in the year 1977. As his case had been overlooked for being brought on to the Select List during 1974-1976 on the basis of certain adverse entries and the adverse entries stood expunged by the Government, a writ petition was filed in the year 1984 in Himachal Pradesh High Court seeking mandamus to the State Government to reconsider the case of Shri Singh. The said writ petition was registered as Civil Writ Petition No. 661 of 1984. By an interim order dated 18-12-1984 the High Court directed that the competent authority would re-examine the case of Shri O.S Singh in the light of the decision of this Court in Amar Kant Choudhary v. State of Bihar (1984) 1 SCC 694, (1984) 2 SCR 299. The State Government intimated the High Court on 11-3-1985 that the Selection Committee has reconsidered the case of Shri O.S Singh and necessary recommendation is being made to the Union Government for appropriate orders. The High Court, therefore, directed that the final decision be taken in the case of Shri O.S Singh on the recommendation of the Selection Committee. On 5-7-1985, the Standing Counsel appearing for the Union of India intimated the Court that the Government of India has taken the decision to appoint Shri O.S Singh to the Indian Police Service with effect from 31-3-1976 and that his seniority will be determined accordingly. In view of the aforesaid decision of the Government of India the writ petition filed by Shri Singh became infructuous and was withdrawn with the liberty to approach the Court again, if any part of the relief is not finally granted. The Government of India by its letter dated 23-7-1985, intimated Shri O.S Singh that his year of allotment under Rule 3(3)(b) of the IPS (Regulation of Seniority) Rules, 1954, (hereinafter referred to as “the Seniority Rules”) is 1970 and the inter se seniority of the officers was also indicated therein whereunder Shri Singh was shown senior to Shri Ashwini Kumar, Respondent 4 in Special Leave Petition No. 5394 of 1993. The said Respondent 4 filed an application before the Central Administrative Tribunal, Principal Bench, New Delhi, challenging the aforesaid order of the Government of India dated 23-7-1985. The Tribunal having quashed the aforesaid order of the Government of India and having directed to place Shri Ashwini Kumar above Shri Singh in the Seniority List of IPS officers in the State of Himachal Pradesh, the two Special Leave Petitions have been filed, as already stated. The Tribunal on an analysis of the provisions of the Seniority Rules, more particularly Rule 3(3)(b) thereof came to the conclusion that Shri Singh having started continuous officiation in the senior post on 30-3-1978, his year of allotment must be determined by finding out who was the juniormost officer recruited to the service in accordance with Rule 7 who officiated continuously in a senior post from a date earlier than Shri Singh. He having found that Shri Ashwini Kumar was the juniormost officer amongst the direct recruits who had officiated continuously in a senior post earlier to 30-3-1978, the year of allotment of Shri Singh must be determined according to the year of allotment of Shri Ashwini Kumar. And as such, the Tribunal held that it must be 1973. Consequently, the Tribunal held Shri Ashwini Kumar to be senior to Shri Singh.
4. Shri Reddy, learned Additional Solicitor General contended that the Tribunal committed gross error of law in not taking into account the retrospective appointment of Shri Singh to the Indian Police Service with effect from 31-3-1976 and determined the year of allotment of Shri Singh only by taking into consideration his continuous officiation in a senior post with effect from 30-3-1978, by literally applying Rule 3(3)(b) of the Seniority Rules. According to learned Additional Solicitor General the case of Shri Singh having been reconsidered after expunction of the adverse entries in pursuance to the interim direction of the High Court and the Government of India having appointed said Shri Singh to the Indian Police Service w.e.f 31-3-1976, the conclusion is inescapable that his seniority has to be determined on the basis that he is borne in the cadre in the Indian Police Service with effect from 31-3-1976 and by no stretch of imagination the period from 31-3-1976 till 30-3-1978 can be ignored. Mr Gautam, learned counsel appearing for Respondent 4, Shri Ashwini Kumar, on the other hand, contended that in view of the decision of this Court in Syed Khalid Rizvi v. Union of India 1993 Supp (3) SCC 575, (1994) 26 ATC 192, JT 1992 Supp SC 169, the year of allotment of Shri Singh has to be determined in accordance with Rule 3(3)(b) of the Seniority Rules and that being so, said Shri Singh having continuously officiated in a senior scale of pay in the Indian Police Service with effect from 30-3-1978, the Tribunal rightly determined the year of allotment of Shri Singh as well as the inter se seniority of Shri Singh and Shri Ashwini Kumar. He further contended that the retrospective appointment of Shri Singh to the Indian Police Service with effect from 31-3-1976 is of no consequence for determining his year of allotment as the same has to be determined under Rule 3(3)(b) of the Seniority Rules and the Tribunal has not committed any error by holding Shri Ashwini Kumar to be senior to Shri O.S Singh.
5. In view of the rival submissions at the Bar the question that arises for consideration is whether the year of allotment of an officer of the State Police Service has to be determined in accordance with Rule 3(3)(b) of the Seniority Rules notwithstanding the fact that his case had been ignored from consideration erroneously and later on the mistake was rectified and he was appointed to the Indian Police Service with effect from an anterior date on which date he would have otherwise been entitled to be appointed. To appreciate this point at the cost of repetition it would be appropriate to notice the admitted facts. Shri O.S Singh who was a Deputy Superintendent of Police in the State Police Service on substantive basis and had completed more than 8 years of service by the year 1974 and could have been placed in the Select List but for the adverse entries in his CR. The adverse entries having been expunged he had approached the High Court of Himachal Pradesh for a direction to the appropriate authorities for reconsideration of his case. The High Court by an interim order had called upon the State Government to reconsider his case. The State Government on reconsideration recommended for his appointment to the Indian Police Service from an anterior date. Finally, the Government of India in consultation with the Union Public Service Commission appointed said Shri Singh to the Indian Police Service with effect from 31-3-1976. It is under these admitted facts, the correctness of the decision of the Tribunal has to be decided upon. It is no doubt, true that in Rizvi case 1993 Supp (3) SCC 575, (1994) 26 ATC 192, JT 1992 Supp SC 169 this Court has observed that the year of allotment of an officer who was appointed to the service by promotion shall be determined in accordance with Rule 3(3)(b) of the Seniority Rules. But the Court was not faced with a situation as in the case in hand, where the case of the promotee had been ignored from consideration, and on reconsideration the promotee has been appointed retrospectively with effect from 31-3-1976. In our considered opinion the Tribunal committed gross error in deciding the year of allotment of Shri Singh only by taking into consideration his date of continuous officiation in the senior post with effect from 30-3-1978 and ignoring the order of the Central Government on reconsideration appointing said Shri Singh to the Indian Police Service with effect from 31-3-1976. As has been noticed earlier, under sub-rule (3) of Rule 6 of the Recruitment Rules, the initial appointment of a promotee to the Indian Police Service is in the senior time scale of pay. When Shri Singh was appointed to the Indian Police Service with effect from 31-3-1976 in the eye of law it must be held that he has been continuing in the senior post with effect from that date and, therefore, his seniority vis-à-vis the direct recruits like Respondent 4 cannot be determined by determining his factual officiation in a senior post with effect from 30-3-1978. The benefit conferred upon him on reconsideration and appointing him to the Indian Police Service retrospectively with effect from 31-3-1976 cannot be taken away for the purpose of determining his year of allotment and seniority in the cadre. The Central Administrative Tribunal, in our considered opinion, committed error in totally ignoring the effect of retrospective appointment of Shri Singh to the Indian Police Service with effect from 31-3-1978. Taking this into consideration the Central Government rightly determined the year of allotment of Shri Singh as well as inter se seniority vis-à-vis Respondent 4 Shri Ashwini Kumar in its letter dated 23-7-1985. In fact in A.K Choudhary case (1984) 1 SCC 694, (1984) 2 SCR 299, in somewhat similar circumstances, this Court had directed for reconsideration of the case of the promotee and observed that on reconsideration if the employee is selected from any anterior date then he shall be entitled to the seniority and other consequential benefits flowing therefrom.
6. Seniority in the Service is governed by the year of allotment. Provisions for assignment of year of allotment are contained in Rule 3 of the Seniority Rules. In the Seniority Rules clause (a) of sub-rule (3) of Rule 3 makes provision for assignment of year of allotment to an officer who is appointed to the Service by direct recruitment. The year of allotment of such an officer is the year following the year in which the competitive examination (on the basis of which he was recruited) was held. In respect of officers who are appointed to the Service by promotion provision is made in clause (b) of Rule 3(3) which reads as under:
“(b) where the officer is appointed to the Service by promotion in accordance with Rule 9 of the Recruitment Rules, the year of allotment of the juniormost among the officers recruited to the Service in accordance with Rule 7 of these Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former.”
7. This provision envisages assignment of the year of allotment to a promotee officer with reference to the year of allotment assigned to the juniormost among the officers recruited to the Service by direct recruitment who had officiated continuously in a senior post from a date earlier than the date of commencement of the officiation on a senior post in the Service by the promotee officer. In other words, for the purpose of seniority, a promotee officer is treated on a par with a directly recruited officer who had been officiating in a senior post. This appears to be so for the reason that under Rule 6 of the Recruitment Rules the initial appointment of a person appointed by way of direct recruitment is in the junior time scale while the initial appointment of a person appointed to the Service by way of promotion from the State Police Service is in the senior time scale. The governing factor for assignment of year of allotment under Rule 3(3)(b) is, therefore, the continuous officiation in a senior post by a directly recruited officer as well as the promotee officer.
8. In service jurisprudence a distinction is made between a “substantive appointment” and an “officiating appointment”. While substantive appointment confers on the person so appointed a substantive right to the post, an officiating appointment does not confer any such substantive right. The appointment on officiating basis is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or a substantive appointment being made to that permanent post in the latter case. An appointment on officiating basis, is, from the very nature of such employment, itself of a transitory character and, under the ordinary law of master and servant, is terminable at any time. (See: Parshotam Lal Dhingra v. Union of India 1958 SCR 828, AIR 1958 SC 36, (1958) 1 LLJ 544, SCR at pp. 841-842). The expression “officiated continuously in a senior post” in Rule 3(3)(b) of the Seniority Rules must, therefore, be construed to mean holding a senior post on officiating basis prior to substantive appointment on such senior post. Since a person cannot be treated as officiating on a post after he has been substantively appointed on that post, the said expression cannot be construed as referring to the period of officiation subsequent to the date of substantive appointment. For ascertaining the period of continuous officiation on a senior post, which is required to be taken into consideration for the purpose of assigning the year of allotment to a promotee officer, Rule 3(3)(b) has to be read with Explanation I wherein it has been prescribed that in respect of an officer appointed to the Service by promotion for the purpose of determination of his seniority the period of his continuous officiation in a senior post shall count only from the date of the inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post whichever is later. Thus two conditions are required to be fulfilled: (i) inclusion of the name in the Select List prepared for the purpose of promotion under the Recruitment Rules and Promotion Regulations; and (ii) continuous officiation on a senior post. Explanation I postulates that both these conditions must coexist for a promotee officer to take the benefit of continuous officiation in a senior post from the date prior to the date of his substantive appointment.
9. But there may be a situation when a person is appointed to the Service by promotion without his having officiated on a senior post prior to his substantive appointment. How is the year of allotment to be assigned to such an officer? A literal interpretation of Rule 3(3)(b) of the Seniority Rules would lead to the result that Rule 3(3)(b), when it talks of continuous officiation in a senior post, only envisages cases where an officer before his substantive appointment to the service has officiated in a senior post and it does not make any provision in respect of a situation where an officer is appointed substantively to the service without his having officiated in a senior post prior to his substantive appointment to the service. In other words, Rule 3(3)(b) suffers from casus omissus. Before we reach this conclusion it may be pointed out that judicial decisions reveal two trends. One view, which reflects the traditional approach, is that the court cannot legislate for casus omissus and that if there is a gap or an omission in the statute the lacuna cannot be supplied by the court by judicial construction and that it is for the law-making authority to remove the defect. [See: Hira Devi v. Distt. Board 1952 SCR 1122, AIR 1952 SC 362 (SCR at p. 1131) and Nalinakhya Bysack v. Shyam Sunder Haldar 1953 SCR 533, AIR 1953 SC 148 (SCR at p. 545.)] Here also the approach is that the Court cannot so interpret a statute to produce a casus omissus where there is really none. [See: Mersey Docks & Harbour Board v. Henderson Bros. (1888) 13 AC 595 (A.C at p. 602); State of Karnataka v. Union of India (1977) 4 SCC 608, (1978) 2 SCR 1 (SCR at p. 65 :.] The other view has been thus put forward forcefully by Denning, L.J, as the learned Master of Rolls then was in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155, (1949) 2 KB 481: (All ER at p. 164)
“… when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament … and then he must supplement the written words so as to give ‘force and life’ to the intention of the legislature. … A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”
10. Again in Magor & St. Mellons Rural Distt. Council v. Newport Corpn. (1950) 2 All ER 1226 the learned Judge has said: (All ER at p. 1236)
“We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”
11. Although the said views of Lord Denning have not been approved by the House of Lords in Magor & St. Mellons Rural Distt. Council (1951) 2 All ER 839, 1952 AC 189, they have been referred to with approval by this Court. [See: State of Bihar v. Dr Asis Kumar Mukherjee (1975) 3 SCC 602, (1975) 2 SCR 894 (SCR at p. 902 :; State of Karnataka v. Hansa Corpn. (1980) 4 SCC 697, (1981) 1 SCR 823 (SCR at p. 833 :.] The observations of Viscount Simonds in the House of Lords disapproving the observations of Denning, L.J referred to above, have also been referred to with approval in Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court (1990) 3 SCC 682, (1990) 3 SCR 111 (SCR at pp. 153-154 :.
12. If Rule 3(3)(b) is so read as to effectuate the intention of the rule-making authority then the considerations referred to therein which apply in the matter of assignment of year of allotment in cases where an officer has officiated prior to the date of his substantive appointment, must necessarily apply for the purpose of assigning the year of allotment of an officer who has been substantively appointed without being required to officiate. In such a case his year of allotment will have to be determined with reference to the year of allotment of juniormost among the officers directly recruited to the Service who officiated continuously in a senior post from a date earlier than the date of substantive appointment of the promotee officer. For that purpose the expression “such officiation” in the context of the promotee officer in Rule 3(3)(b) will have to be construed as meaning “substantive appointment” in cases where the promotee did not officiate in a senior post before his substantive appointment to the Service. The said construction would also govern a case, like the present one, where an officer has been wrongly denied promotion to the Service and the said wrong is rectified later by the competent authority by appointing the officer who was denied promotion with effect from the date on which he should have been so appointed by way of promotion. Such an officer may have officiated in a senior post prior to the passing of the order of substantive appointment but he may not have officiated in a senior post prior to the date from which he has been substantively appointed. Once the error in the matter of his promotion is rectified and he has been given substantive appointment from an anterior date on which he should have been promoted the year of allotment has to be assigned to him having regard to the date from which his substantive appointment becomes operative even though he did not officiate in a senior post prior to the said date of substantive appointment. His year of allotment cannot be depressed on the basis that he had started officiating on a senior post from a date later than the date with effect from which he has been substantively appointed to the Service.
13. We arrive at the same result if we proceed on the basis that there is a casus omissus in Rule 3(3)(b) in the matter of assignment of year of allotment for an officer appointed by promotion who has not officiated prior to his substantive appointment to the Service and the said omission cannot be filled by the Court by judicial interpretation. This would only mean that the Seniority Rules are silent in the matter of assignment of year of allotment of such a promotee officer. In that event the competent authority can assign the year of allotment to such an officer in exercise of its administrative discretion. [See: Sant Ram Sharma v. State of Rajasthan (1968) 1 SCR 111, AIR 1967 SC 1910, (1968) 2 LLJ 830 (SCR at p. 119).] The order dated 23-7-1985 passed by the Central Government assigning the year of allotment to Shri O.S Singh has to be treated as passed by the Central Government in exercise of its administrative discretion. The only question that would arise in respect of such an order is whether in the exercise of its administrative discretion the Central Government has acted arbitrarily. Having regard to the facts and circumstances of the case, it is not possible to take the view that in the matter of assignment of year of allotment of Shri O.S Singh the Central Government has acted arbitrarily. The Central Government appears to have followed the scheme underlying Rule 3(3)(b) and has assigned the year of allotment on the basis of the date of which the substantive appointment of Shri O.S Singh became operative keeping in view the year of allotment of the juniormost directly recruited officer who officiated continuously in a senior post from a date earlier than the date of such substantive appointment of Shri O.S Singh.
14. In view of our conclusion, as aforesaid, the impugned judgment of the Central Administrative Tribunal is set aside and the year of allotment as well as inter se seniority between Shri Singh and Ashwini Kumar, as determined by the Central Government in its letter dated 23-7-1985, is restored. It must be held that the year of allotment of Shri Singh is 1970 and he is to be treated senior to Shri Ashwini Kumar. Both these appeals are accordingly allowed and in the circumstances with no order as to costs.