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State Of Bihar v. Rameshwar Nath Mishra
Factual and Procedural Background
Sri Rameshwar Nath Mishra (the writ petitioner) filed a writ application seeking, inter alia, a writ or direction to the respondents to promote him to the post of Deputy Superintendent of Police (DSP) with effect from the date of his officiating promotion, asserting that his seniority should be fixed on the basis of continuous officiation from 1.1.1975.
Relevant factual chronology given in the opinion:
- Appointed as a literate constable on 21.4.1949.
- Promoted to Sub-Inspector of Police on 17.12.1960 and confirmed in that post on 10.9.1973.
- Transferred to the Cabinet (Vigilance) Department and joined on 31.12.1974.
- Promoted by an office order dated 1.1.1975 to the post of Inspector of Police by the Inspector General–cum–Special Secretary, Cabinet (Vigilance) Department, Bihar.
- Granted scale of Selection Grade Inspector of Police by office order dated 1.11.1980, but the period of officiation was not being considered for seniority purposes.
The petitioner filed representations which were rejected. He relied on earlier writ decisions (notably Kamla Singh v. The State of Bihar) in support of counting continuous officiation for seniority. This Court disposed of the writ application on 5.8.1992 directing the State to grant the benefit of continuous officiation. The State thereafter filed a Civil Review application on 23.10.1992 seeking recall of the 5.8.1992 order on several grounds, including that the Vigilance Department has a separate mode of promotion and that the facts in this petition differ from those relied upon earlier.
Legal Issues Presented
- Whether the period during which the petitioner officiated as Inspector of Police in the Cabinet (Vigilance) Department (from 1.1.1975) can be counted for determining his seniority in his original cadre and, consequently, whether he is entitled to promotion to the post of Deputy Superintendent of Police with retrospective effect.
- Whether the earlier order dated 5.8.1992 (in C.W.J.C No. 4884 of 1990) granting benefit of continuous officiation to the petitioner should be recalled in light of facts showing a different factual matrix (including the mode of promotion followed by the Vigilance Department and compliance with Rule 649 of the Bihar Police Manual).
Arguments of the Parties
Writ Petitioner’s Arguments
- The petitioner contended that his period of continuous officiation as Inspector beginning 1.1.1975 should be counted for fixing his seniority and consequential promotions, and that he had been continuously officiating in the post.
- He relied on earlier decisions (including Kamla Singh v. The State of Bihar) where continuous officiation was allowed to count for seniority.
- The petitioner relied on a departmental letter dated 23.12.1983 (Annexure-7) indicating that selections made by the Selection Board for persons deputed to the Cabinet (Vigilance) Department should be recognized and considered for State-wise seniority; he submitted the State was bound by those directives.
- He relied on section 2 of the Indian Police Act and the Police Manual (rules framed thereunder) to argue that the police cadre is governed by the Act and Police Manual.
- He further argued that even if there was irregularity in grant of the promotion by the Cabinet (Vigilance) Department, his seniority would not be affected, relying on authorities cited in his pleadings (Direct Recruit Class-II Engineering Officers' Association v. State of Maharashtra; P.S. Mohal v. Union of India; Sri Charan Dass Chadhu v. The State of Punjab).
State of Bihar’s Arguments
- The State contended that the Cabinet (Vigilance) Department is a separate and independent department with a separate mode of promotion and that promotions effected there cannot ipso facto determine seniority in the original cadre.
- The State asserted that the petitioner was found fit for promotion to Inspector by the I.G.'s Selection Board in 1982 and that his seniority was fixed at Serial No. 658, resulting in promotion to Deputy Superintendent of Police with retrospective effect in that exercise.
- The State denied that the petitioner was confirmed with effect from 1.11.1980 as alleged by the petitioner.
- The State submitted that the earlier decision relied upon by the petitioner (Kamla Singh) was distinguishable on facts and that the promotion obtained by the petitioner was an ad hoc/fortuitous promotion outside the regular departmental procedure and therefore could not be considered for fixing seniority in the original cadre.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kamla Singh v. The State of Bihar (C.W.J.C No. 563 of 1985) | Used by petitioner as authority for counting continuous officiation for seniority and promotions. | The Court noted that earlier orders, including the order dated 5.8.1992, had relied on Kamla Singh. On review the Court held that the facts of the present case are different from Kamla Singh and therefore distinguished that authority and recalled the earlier order which had followed Kamla Singh. |
| Sri Balram Dubey v. The State of Bihar (C.W.J.C No. 7723 of 1989 / C.W.J.C No. 7713 of 1989 — as cited in the opinion) | Used in earlier orders as a decision directing grant of benefit of continuous officiation in similar matters. | The Court observed that the earlier order had been passed citing Balram Dubey; on review the Court found the facts of the present case distinguishable from Balram Dubey and therefore did not treat that earlier authority as binding for the present facts. |
| Direct Recruit Class-II Engineering Officers' Association v. State of Maharashtra (1990) 2 SCC 715; AIR 1990 SC 1607 | Cited by the petitioner to support the contention that irregularity in grant of promotion does not necessarily affect seniority in certain circumstances. | The Court recorded that the petitioner placed reliance on this authority but the opinion does not state that the Court adopted this authority to uphold the petitioner’s claim. |
| P.S. Mohal v. Union of India (1984 (4) SCC 454) | Cited by the petitioner in support of his contention about counting officiation even if irregularity occurred. | The Court noted the citation by the petitioner; the opinion does not indicate the Court treated this precedent as determinative for the petitioner’s claim. |
| Sri Charan Dass Chadhu v. The State of Punjab (1980 (3) S.L.R 702) | Cited by the petitioner for similar propositions regarding seniority and officiation. | The Court recorded the citation; the opinion does not indicate the Court adopted this precedent as a basis for allowing the petitioner’s claim. |
| K.L. Bansal v. Union of India (1992 Supp (2) SCC 318; A.I.R. 1993 S.C. 978) | Authority for the proposition that the date of confirmation cannot be made the basis for determining seniority and that seniority may be counted from the date of appointment in appropriate circumstances. | The Court referred to this decision in support of the proposition that seniority should be considered from the date of appointment (and that confirmation date is not the basis for seniority) when determining the petitioner’s seniority vis-à-vis others. |
Court's Reasoning and Analysis
The Court conducted a fact-focused analysis and applied the legal rules expressly referenced in the opinion. The Court's reasoning proceeded along the following lines (as stated in the opinion):
- Undisputed facts. The Court observed that the material facts were not in dispute: the petitioner joined the Cabinet (Vigilance) Department on 31.12.1974 and, by an office order dated 1.1.1975 (one day later), was promoted to Inspector of Police in that Department.
- Mandatory procedure under Rule 649. The Court examined Rule 649 of the Bihar Police Manual (quoted at length in the opinion), noting it prescribes the procedure for promotion from Sub-Inspector to Inspector by an Inspector-General's Selection Board, including nomination, publication of names, opportunity to represent, scrutiny by Range Selection Board and compilation of a list ordinarily in order of seniority.
- Police Manual as legislative in character. The Court held that the Bihar Police Manual, insofar as it relates to conditions of service, is a rule deemed to have been made under the proviso to Article 309 of the Constitution and is legislative in character; therefore the rules laid down (including Rule 649) are mandatory.
- Non-compliance and invalidity of promotion. The Court found that the promotion granted to the petitioner by the Cabinet (Vigilance) Department did not comply with the mandatory procedures of Rule 649. On that basis the Court concluded that the purported promotion by the Vigilance Department was wholly illegal, without jurisdiction and void ab initio, and further held that it violated Rule 649 as well as Article 16 of the Constitution because other persons required to be considered were not considered.
- Effect on counting officiation for seniority. The Court observed that where an initial appointment does not follow the procedure laid down by the rules, the period of officiating service cannot be counted for seniority if it was not regularised in accordance with the rules. Applying that principle to the present facts, the Court held that the petitioner’s period of officiation as Inspector in the Cabinet (Vigilance) Department cannot be taken into account for determining his seniority in his original cadre.
- Seniority to be determined from date of appointment. The Court cited the principle (and K.L. Bansal) that seniority is to be counted from the date of appointment where appropriate and that confirmation date is not the basis for determining seniority. Accordingly, the Court directed that the petitioner’s seniority vis-à-vis other officers be considered from their respective dates of appointment and other relevant factors.
- Recall of earlier order. The Court explained that its earlier order dated 5.8.1992 was passed relying upon decisions such as Kamla Singh and Balram Dubey without detailed consideration of the present facts, and that the present facts are materially different. For that reason, the Court recalled its earlier order of 5.8.1992 in C.W.J.C No. 4884 of 1990.
- Directions for fresh consideration. The Court directed the respondents to reconsider seniority and consequential promotions taking into account the dates of appointment and all eligible candidates. The Court directed that the question whether the petitioner could have been granted promotion with retrospective effect should be considered, and that any decision should be taken as early as possible and preferably within three months from receipt of the order.
- Final protective measures. The Court ordered that if it is found that the petitioner was not entitled to retrospective promotion and some excess payment was made, no recovery should be made from the petitioner, noting that the petitioner has already superannuated and had worked in the Vigilance Department for a long time.
Holding and Implications
Holding:
The Court recalled its earlier order dated 5.8.1992 (in C.W.J.C No. 4884 of 1990) and held that the promotion granted to the petitioner by the Cabinet (Vigilance) Department on 1.1.1975 was void ab initio for non-compliance with Rule 649 of the Bihar Police Manual and Article 16 of the Constitution; the period of officiation in that post cannot be counted for determining seniority in the original cadre.
Immediate consequences directed by the Court (as stated in the opinion):
- The respondents were directed to consider the petitioner’s seniority vis-à-vis other officers from their respective dates of appointment and other relevant factors, and thereafter to consider whether the petitioner could have been granted promotion with retrospective effect, taking into account the cases of all eligible candidates.
- The respondents were asked to take the necessary decision as early as possible and preferably within three months from receipt of a copy of the order.
- If it is found that the petitioner was not entitled to retrospective promotion (either as Inspector or DSP) and some excess payment has been made, the Court directed that no recovery should be made from the petitioner.
- The Civil Review application and the writ application were disposed of with the aforementioned directions.
- There was no order as to costs.
The opinion explicitly distinguishes the present facts from earlier decisions (Kamla Singh; Balram Dubey) relied upon in prior orders and, on that factual basis, chooses not to apply those earlier rulings to the petitioner’s case.
S.B Sinha and G.G Bharuka, JJ.:—Sri Rameshwar Nath Mishra filed a writ application in the Court claiming inter-alia issuance of a writ or-direction upon the respondents to promote the petitioner to the post of Deputy Superintendent of police with effect from the date of his officiating promotion as his seniority is fixed on the basis of the continuous officiation i.e from 1.1.1975
2. The fact of the matter lies in a narrow compass.
3. The writ petitioner was appointed as literate constable on 21.4.1949 He was promoted to the post of Sub-Inspector of Police on 17.12.1960 and was confirmed in the said post on 10.9.1973
4. The petitioner, thereafter, was transferred to the department of Vigilance and he joined there on 31.12.1974 He was promoted to the post of Inspector of Police by the then Inspector General-Cum-Special Secretary, Cabinet (Vigilence) Department, Bihar Patna, by an office order dated 1.1.1975
5. By an of lice order dated 1.11.1980 the petitioner was granted scale of Selection Grade Inspector of Police. However, the period during which the petitioner officiated in the post of Inspector of Police was not being considered.
6. The petitioner filed several representations but the same were rejected. The petitioner contended that a similar question was raised in C.W.J.C No. 563 of 1985 (Kamla Singh v. The State of Bihar) which was disposed of in the following terms:
“The petitioners were declared entitled to count their seniority as Inspector and if the plea of State is accepted then the petitioners will not be getting any advantage out of their success in their earlier writ case except a bag of winds. I, therefore, hold that the petitioner must get their seniority in accordance with the direction given in annexure-3 and the respondent must give effect to the same while passing orders of promotion of the Police Inspectors to the rank of the Deputy Superintendent of Police.”
7. According to the petitioner, after the said writ application was allowed, the petitioners thereof were promoted to the post of Sub Inspector of Police. It has further been submitted that, similar other writ applications have also been disposed of by this Court.
8. The petitioner filed a supplementary affidavit alleging therein that various similar writ applications have been allowed by this Court. The petitioner has contended that many persons who are junior to the petitioner in the light of the officiating promotion have been promoted to the post of Deputy Superintendent of Police but the case of the petitioner had not been so considered.
9. This writ application was disposed of by this Court on 5.8.1992 in the following terms:
“Heard learned counsel for the petitioner. Nobody appears on behalf of the State. The petitioner has been officiating in the post of Inspector of police with effect from 1.1.1975 and he has been confirmed in the said post with effect from 1.11.1980 However, according to the petitioner, the period of officiation while he was posted in the said post of Inspector was neither given nor other benefits incidental thereto are being granted to the petitioner. It appears that in similar matters this Court in the case of Kamla Singh v. The State of Bihar in C.W.J.C No. 563 of 1985 Annexure-9 and in the case of Sri Balram Dubey v. The State of Bihar C.W.J.C No. 7723 of 1989 (Annexure 11) directed to grant benefit of continuous officiation to the petitioner.
Following the aforementioned decisions, we also direct the State to grant benefit of continuous officiation to the petitioner in accordance with law for determining the inter se seniority as also the consequential promotion. This application is, thus, disposed of with the aforementioned directions.”
10. However, on 23.10.1992 the State of Bihar filed a review application slating inter-alia therein that certain lads were not pointed out to this Court at that point of time, and thus, the said-order dated 5.8.1992 passed in C.W.J.C No. 4884 of 1990 should lie recalled.
11. It has been stated that Vigilance Department is separate and independent department having a separate mode of promotion.
12. According to the State of Bihar, the petitioner was found lit for promotion in the rank of Inspector of Police by the I.G.S Selection Board in the year 1982. It has been pointed out that the petitioner's seniority was fixed at Serial No. 658 and, thus, he was promoted to the post of Deputy Superintendent of Police with retrospective effect. The State has contended that the petitioner's case was considered for promotion to the rank of Inspector of Police alongwith other candidates of his batch.
13. It has been denied that the petitioner was confirmed with effect from 1.11.1980 as alleged. The applicant-State has further contended that the case of Kamla Singh v. The State of Bihar upon which reliance has been placed by the petitioner stands on a different footing.
14. The petitioner filed a counter-affidavit to the said application reiterating his stand taken in the writ application.
15. In reply to the said counter-affidavit filed by the petitioner, it has been pointed out by the State of Bihar that the petitioner obtained a fortuitous promolion on ad hoc basis outside the department which can not be considered for the purpose of determining his seniority inside the department.
16. At the time of hearing the Civil Review application, the learned counsel appearing on behalf of the parties were asked to address us both on merits on the Civil Review application as well as on the writ application so that in the event the Civil Review application is allowed, the writ application itself can be disposed of on its merits. The learned counsel of both parties agreed to the said suggestion of the Court and addressed us on merits both in the Civil Review Application as also in the Writ Application.
17. In this case, the basic facts are not in dispute. The writ petitioner on his own showing was transferred to the Cabinet (Vigilance) Department in the year 1974 and he joined the said post on 31.12.1974 Surprisingly, by reason of an office order dated 1.1.1975 i.e only after one day of his joining in the Cabinet (Vigilance) Department, he was promoted to the post of Inspector of Police.
18. As the fact of the present case and other cases in which we passed similar orders are absolutely different, we think it fit and proper and necessary for the interest of justice to recall our order dated 5.8.1992 passed in C.W.J.C No. 4884 of 1990.
19. From a perusal of the aforementioned order dated 5.8.1992 passed in C.W.J.C No. 4884 of 1990, it appears that the said order was passed upon following decisions of this court in Kamla Singh v. The State of Bihar in C.W.J.C No. 563 of 1985 and in Balram Dubey v. The State of Bihar in C.W.J.C No. 7713 of 1989 without considering the facts of the matter in details.
20. Admitted fact which has emerged now and as narrated hereinbefore clearly show that the case of the writ petitioner was not similar to that of the aforementioned petitioners Kamla Singh and others in C.W.J.C No. 563 of 1985 (Annexurc-9) and Balram Dubey in C.W.J.C No. 7713 of 1989 (Annexure-11).
21. We, therefore, recall out order dated 5.8.1992 passed in C.W.J.C No. 4884 of 1990.
22. Mr. Giri, learned counsel appearing on behalf of the writ petitioner submitted that admittedly the petitioner was appointed as Constable in the year 1960 and joined the Cabinet (Vigilance) Department in December, 1974.
23. Mr. Giri further submitted that from a perusal of latter letter dated 23.12.1983 as contained in Annexure-7 to the writ application, it would appear that Sri Gajendra Narayan, D.I.G of Police had narrated to Sri Dinesh. Nandan Sahay, D.I.G of Police (Administration), Bihar Patna, that a Selection Board under the Chairmanship of Director General of Police had given promotion to the persons deputed in the Cabinet (Vigilance) Department and such promotion should be recognised and be also considered for the purpose of Statewise seniority.
24. It was, therefore, contended that the State was bound by directives contained in the said letter. Thus, the period of officiation in the post of Inspector of Police in the Cabinet (Vigilance) Department should be counted in favour of the writ petitioner.
25. Mr. Giri, learned counsel for the writ petitioner further submitted that from a perusal of the section 2 of the Indian Police Act, it would appear that the entire cadre for the Police force is governed thereby and the rules framed thereunder i.e Police Manual.
26. The learned counsel submitted that even if any irregularity was committed in grant of promotion to the petitioner by the Cabinet (Vigilance) Department, the seniority of the petitioner would not be affected thereby. The learned counsel in support of his contention has placed his reliance in The Direct Recruit Class-II Engineering Officers' Association v. State of Maharashtra reported in (1990) 2 SCC 715 : AIR 1990 S.C 1607; P.S Mohal v. Union of India reported in 1984 (4) S.C.C 454 and Sri Charan Dass Chadhu v. The State of. Punjab reported in 1980 (3) S.L.R 702.
27. It is not in dispute that Cabinet (Vigilance) Department is a separate department. The petitioner on his own showing was posted in the said department on deputation. He therefore, kept his lien in the General Police Department. It is not his case that lie gave up his lien in his original cadre and was absorbed in the Cabinet (Vigilance) Department.
28. It is also not disputed that statewise seniority list is maintained so far as the posts of Sub-Inspector of Police are concerned and the cases of all eligible persons are taken into consideration for the purpose of promotion to the post of Inspector of Police and Deputy Superintendent of Police.
29. It appears strange that, although, the writ petitioner joined the Cabinet (Vigilance) Department only on 31.12.1974, but he was promoted to the post of Inspector of police on 1.1.1975 itself.
30. It has not been disputed before us that promotion to the post of Inspector of Police is governed by Rule 649 of the Bihar Police Manual.
31. Rule 649 of the Bihar Police Manual reads as follows:
Inspectors and Reserve Inspectors.—(a) “The promotion of-Sub-Inspectors to Inspectors, and Reserve Sub-Inspectors to Reserve Inspectors will be made by the Inspector-General on the advice of the Inspector-General's Selection Board (Appendix 72(i))
(b) In July the Deputy Inspector General will call for nominations for promotion to reach him on the date fixed. The form of nomination and the list of enclosures are given in P.M Form no. 102.
(c) At least 14 days before nominations are sent to the Deputy-Inspector General, the names of the nominees shall be published by the nominating authority in district orders so that, those who are not nominated may have an opportunity of representing their cases before the nominations are actually submitted. Officers, having such representation to make, should be given interviews and their cases examined with them.
In case their representations are rejected, those who have been superseded may file representation before Deputy Inspector General. Such representation shall be submitted within 14 days of receipt of information and this shall be forwarded soon to Deputy Inspector General, so that additional nominal ions may be sent on the orders of Deputy Inspector General.
In forwarding the nominations a certificate must be given of the dates on which the lists were published and intimations sent to those not nominated. In selecting Sub-Inspectors and Reserve Sub-Inspectors for promotion, preference should be given to those who have received special commendation for integrity of character and good detective Work.
(d) The Range Selection Board shall scrutinize the district nominations and shall select from among them in order of merit those whose nominations are to be sent before the Inspector-General's Selection Board on a date to be fixed by the Inspector General.
(e) The Inspector-General's Selection Board shall scrutinize the nomitations of the Range Selection Board and compile a list of selections which should ordinarily be in order of seniority for promotion as vacancies occur. If an officer is placed higher in the list then his seniority warrants a full note giving reason shall be recorded. This list shall be of as many Sub-Inspectors as there are vacancies plus few anticipatory vacancies depending on averages of last few years. Promotions by the Inspector General under clause (a) shall be confined to his list, but if any one does not get appointed from the list, his case shall be received again at the time of preparation of the next year's list and if found fit, he shall be placed above the selected nominees of that year.”
32. The procedures laid down in the aforementioned rules appear to be a mandatory ones. Bihar Police Manual so far as the same relates to the conditions of services is a rule deemed to have been made under the proviso appended to Article 309 of Constitution of India. The said rule is, therefore, legislative in character. The petitioner, therefore, could not have been promoted to the post of Inspector of Police by the Cabinet (Vigilance) Department. His case of promotion was, therefore, required to be considered in terms of the aforementioned Rule 649 of the Bihar Police Manual along with the cases of other eligible candidates.
33. In granting promotion to the writ petitioner, evidently mandatory procedures of the said rules were not followed and, thus, the purported promotion, of the petitioner to the post of Inspector of Police, Cabinet (Vigilance) Department must be held to ??? wholly illegal, without jurisdiction and void ab-initio being violative of Rule 649 of the Bihar Police Manual as also Article 16 of the Constitution of India in as much as other persons who were required to be considered along with the petitioner were not and could not have been considered for promotion by the purported Indpector-General Selection Board constituted by the Cabinet (Vigilance) Department.
34. In this view of the matter, the promotion granted to the petitioner by the Cabinet (Vigilance) Department is not binding upon the respondents nor the said promotion can be taken into consideration for the purpose of determining his seniority.
“If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.”
35. Such is not the case here. In the aforementioned decision, it has been observed that if the promotion had been granted without following the rules, the period of officiation can not be counted.
36. In this view of the matter, in our opinion, the period of officiation of the petitioner during the period in which he worked as Inspector of Police in the Cabinet (Vigilance) Department can not be taken into consideration in determining his seniority in the original cadre. He was, thus, evidently not entitled to get the officiating period counted for the purpose of determining his seniority.
37. However, there can not be any doubt that a person's seniority has to be counted from the date of his appointment where the cadre cannot exist of both permanent and temporary posts. The date of confirmation can not be made the basis for determining the seniority. This aspect of the matter has recently been considered by Supreme Court in K.L Bansal v. Union of India reported in 1992 Supp (2) SCC 318 : A.I.R 1993, S.C 978.
38. In this view of the matter, this writ application is disposed of with a direction to the respondents that the seniority of the petitioner vis-a-vis others officers be considered from their respective dates of appointment and other relevant factors where-after the question as to whether the petitioner could have been granted promotion with retrospective effect or not should be considered. While determining the said question, cases of all other eligible candidates should lie taken into consideration.
39. If the petitioner is found entitled for promotion to the post of Deputy Superintendent of Police in terms of any decision that may lie taken by the I.G's Selection Board in the mailer of grant of promotion to the petitioner and others to the post of Inspector the petitioner should be granted all consequential ??? Such a decision should be taken by the respondents as early as possible and perferably within a period of three months from the date of receipt of a copy of this order.
40. However, in the event if it is found that the petitioner was not entitled to promotion with retrospective effect either in the post of Inspector or in the post of Deputy Superintendent of Police and consequently if it is held that some excess payment has been made to the petitioner, no recovery should be made from him.
41. This order is passed keeping in view of the fact that the State at the time of passing of the order dated 5.8.1992 in C.W.J.C No. 4884 of 1990 did not raise the salient features of the case.
42. In the interest of justice also, in our opinion, no recovery from the petitioner should be made for any excess amount if paid to him at this juncture as he has already superannuated. The fact that the petitioner has worked in the post of Inspector of Police in the Cabinet (Vigilance) Department for a long time also can not be lost sight of.
43. The Civil Review application as also the writ application are, thus, disposed of with the aforementioned directions.
44. In the facts and circumstances of the case, there will be no order as to costs.
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