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V.P Gupta Petitioner v. Union Of India And Others S

Himachal Pradesh High Court

Jan 6, 2009

Judgment

Subsequent
References

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Structured Summary of the Opinion (Per Surjit Singh, J.)

Factual and Procedural Background

The petitioner filed the present writ petition under Articles 226/227 of the Constitution of India seeking judicial review of the Central Administrative Tribunal's (Chandigarh Bench) order dated 8 May 2001 which dismissed his original application challenging an order dated 28 January 1998 (Annexure A-1) concerning the year of allotment for seniority in the Indian Administrative Service (IAS).

Relevant chronological facts in the opinion:

The petitioner was appointed to the Himachal Pradesh Administrative Service (State Service) in 1974.
In the State Service seniority list of 4 December 1978, the petitioner was at Sr. No. 41, while some ex‑servicemen were placed at Sr. Nos. 68, 69, 87, 107 and 109. In the seniority list of 16 August 1983, ex‑servicemen were placed above the petitioner (they appeared at Sr. Nos. 15–20 while the petitioner was at Sr. No. 31).
Two writ petitions (CWP No. 407 of 1983 and CWP No. 37 of 1985) were filed by the petitioner's batch‑mates (Rattan Lal and S.N. Katwal) challenging the 16 August 1983 seniority list. Those matters were transferred to the State Administrative Tribunal, which decided in favour of the batch‑mates and ordered re‑fixation of seniority in their favour; the Supreme Court dismissed an appeal against that tribunal judgment on 18 October 1994.
Following review of select lists occasioned by the tribunal's re‑fixation, the petitioner (and others) were inducted into the IAS with effect from 30 June 1988 on the basis of the reviewed select list of 1987.
The Indian Administrative Service (Regulation of Seniority) Rules, 1987 (which came into force on 6 November 1987) were amended as to Rule 3 on 18 January 1988. Under the applicable provision the petitioner was given four years' weightage and assigned the year 1984 as his year of allotment to the IAS. The petitioner contended he was entitled to assignment of the year 1981 under earlier regulations and sought relief; his representation was rejected and his original application before the Central Administrative Tribunal was dismissed.

Legal Issues Presented

Whether the year of allotment of the petitioner to the Indian Administrative Service should be determined under the Indian Administrative Service (Regulation of Seniority) Rules, 1987 (as amended in January 1988) or under the earlier rules/regulations (1954/1957 provisions referenced by the petitioner).
Whether the petitioner was entitled to have the year of allotment fixed as 1981 (by counting his entire officiating period against a senior post from 1985 onwards under Regulation 3(iii)(b) of the earlier regulations), rather than the year 1984 as assigned by application of Rule 3(3)(ii) of the 1987 Rules.
Whether the Central Administrative Tribunal erred in dismissing the original application on the ground that the petitioner had not disclosed the year in which the junior‑most direct recruit started officiating immediately prior to the petitioner, when the record purportedly contained the petitioner's assertion on that point.
Whether the respondents' selection of 30 June 1988 as the operative date of appointment (on the basis of the reviewed select list of 1987) was arbitrary or whimsical and therefore liable to be set aside.

Arguments of the Parties

Petitioner's Arguments

The petitioner contended that his year of allotment should be 1981 by counting his entire officiating period against a senior post from 1985 onwards, relying on Regulation 3(iii)(b) under the Regulations framed under the earlier Rules (referred to in the opinion as the rules of 1954).
The petitioner also submitted that the respondents' action in treating 30 June 1988 as his date of appointment (on the basis of the reviewed select list) was whimsical, arbitrary and liable to review.

Respondents' Arguments

Before the Central Administrative Tribunal the respondents' stand was that the year of allotment had to be determined under the Indian Administrative Service (Regulation of Seniority) Rules, 1987 (as amended on 18 January 1988), because the petitioner's appointment to the IAS was made with effect from 30 June 1988.
The respondents relied on the methodology prescribed by Rule 3(3)(ii) of the 1987 Rules for determining year of allotment for promotee officers (weightage provisions), which produced the year 1984 for the petitioner.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Union of India v. S.S. Uppal, (1996) 2 SCC 168	That where a person is appointed to the IAS after the commencement of the 1987 Rules, year of allotment must be fixed as per Rule 3 of the 1987 Rules and not in accordance with earlier rules (the opinion refers to "earlier rules of 1957" as having been repealed by the 1987 Rules).	The court applied this precedent to hold that the petitioner, appointed with effect from 30 June 1988 (i.e. after the 1987 Rules and their 18 January 1988 amendment were in force), must have his year of allotment determined under Rule 3 of the 1987 Rules. The court treated the Uppal decision as directly on point and dispositive.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps, relying strictly on the material recorded in the opinion:

Recognition of an error in the Tribunal's factual reasoning: The Tribunal dismissed the original application for failure to disclose in which year the junior most direct recruit had started officiating immediately prior to the petitioner; the High Court observed that this finding was contrary to the pleadings, because the petitioner had specifically stated that Bheem Sain (a direct recruit) had commenced officiating in the senior post in the year 1981. Despite identifying the Tribunal's reasoning as erroneous on this factual point, the High Court stated it was not inclined to interfere with the Tribunal's order for the legal reasons that follow.
Temporal and legal applicability of the 1987 Rules: The petitioner was appointed to the IAS with effect from 30 June 1988 on the basis of the reviewed select list of 1987. The 1987 Rules (which came into force on 6 November 1987) and the amendment to Rule 3 effective 18 January 1988 were therefore already in force at the time of the petitioner's appointment. The court emphasized that Rule 3(3)(ii) of the 1987 Rules prescribes the method for determining the year of allotment for promotee officers.
Application of Rule 3(3)(ii): The court cited the sub‑clauses of Rule 3(3)(ii) (weightage mechanism): (a) four years' weightage for up to 12 years' service in a qualifying rank, (b) one year weightage for every completed three years beyond twelve years subject to a maximum of five years, and (c) calculation of the sub‑clause (b) weightage with effect from the year of appointment to the service, together with the proviso preventing assignment of a year earlier than that assigned to a senior officer on an earlier select list. The petitioner had been given four years' weightage under sub‑clause (a) and was not entitled to additional weightage under sub‑clause (b) because he had not completed the requisite additional three years.
Preclusion of application of earlier rules: The petitioner’s attempt to have his year of allotment determined under the earlier rules/regulations (referred to in the opinion as the rules of 1954 or earlier rules of 1957) was found to be contrary to the clear language of the 1987 Rules. Rule 3(3) of the 1987 Rules states that the year of allotment for an officer appointed after commencement of those rules shall be determined by the method therein.
Binding precedent: The court relied on Union of India v. S.S. Uppal (1996) 2 SCC 168 to reinforce the above conclusion. In Uppal the Supreme Court rejected a claim to apply an unamended provision where the officer was appointed after an amendment had come into force; by analogy and application of that ruling, the High Court concluded the present petitioner (appointed after the effective date of the 1988 amendment) could not claim benefit under earlier or unamended provisions.
On the challenge to the appointment date (30 June 1988) as arbitrary: The court rejected the submission that the respondents' selection of that date was whimsical or arbitrary. It observed that no foundation for this plea had been laid in the original application before the Tribunal nor in the present writ petition. The court examined the proceedings of the review D.P.C. (Annexure P‑5) and noted that earlier appointments based on the 1987 select list had been made w.e.f. 30 June 1988; therefore, when the select lists were reviewed in February 1997, appointments pursuant to the reviewed 1987 select list were rightly made w.e.f. 30 June 1988.
Conclusion of analysis: For the reasons above — principally that the petitioner’s appointment occurred after the 1987 Rules (as amended) had taken effect and in light of the controlling Supreme Court authority — the petitioner was not entitled to year 1981 and had been correctly assigned four years' weightage and the year 1984 as his year of allotment. Hence, there was no merit in his claim.

Holding and Implications

Holding:

DISMISSED — The writ petition was dismissed and the impugned order of the Central Administrative Tribunal (which had dismissed the petitioner's original application) was not interfered with.

Implications:

Direct effect on the parties: The petitioner's year of allotment to the Indian Administrative Service remains as fixed by application of Rule 3(3)(ii) of the 1987 Rules (the petitioner had been assigned the year 1984 with four years' weightage). The court rejected the petitioner's claim to an earlier allotment year (1981) and found no merit in the challenge to the employment of 30 June 1988 as the operative appointment date.
Broader precedent and legal consequence: The opinion applied existing Supreme Court authority (Union of India v. S.S. Uppal) and did not purport to lay down any new law. The decision is a factual application of the 1987 Rules and the cited precedent; the court did not indicate that it was creating or altering legal precedent.

End of summary — based solely on the provided opinion text.

Show all summary ...

Per Surjit Singh, J.(Oral)

Petitioner in the present writ petition under Articles 226/227 of the Constitution of India, has sought judicial review of order dated 8th May, 2001 of the Central Administrative Tribunal, Chandigarh Bench, whereby original application filed by the petitioner, seeking quashing of order dated 28 January, 1998, Annexure A-1, regarding the year of allotment, for the purpose of seniority in the cadre of Indian Administrative Service, stands dismissed.

2. Relevant facts may be stated thus. Petitioner was appointed to H.P Administrative Service (hereinafter referred to as the State Service) in the year 1974. In the seniority list of State Service issued on December 4, 1978, his name figured at Sr. No. 41, while names of some ex-servicemen members of the service appeared at Sr. Nos. 68, 69, 87, 107 and 109. In the seniority list, issued on 16 August, 1983, ex-servicemen members of the service were shown seniors to the petitioner and several other officers. Their names were shown at Sr. Nos. 15 to 20, while the name of petitioner was shown at Sr. No. 31. Two writ petitions, being CWP No. 407 of 1983 and CWP No. 37 of 1985 were filed by two batch-mates of the petitioner, named Rattan Lal and S.N Katwal, challenging the seniority list, wherein ex-servicemen, who though ranked junior to the petitioner and his above named batch-mates were placed above them in the seniority list, issued on August 16, 1983.

3. During the pendency of those writ petitions, State Administrative Tribunal was constituted and the writ petitions were transferred to that tribunal. The tribunal decided the two petitions in favour of the batch mates of the petitioner and ordered that all the members of the first batch of the service (i.e the batch of the petitioner) are entitled to rank higher in seniority to the private respondents (ex-servicemen), whose names were shown at Sr. Nos. 15 to 20 in the seniority list issued on August 16, 1983. Judgment of the tribunal was appealed against and the Hon'ble Supreme Court dismissed the appeal on 18 October, 1994.

4. Meanwhile, petitioner and several other officers of the State Service had been inducted into Indian Administrative Service. Order regarding re-fixation of seniority passed by the State Administrative Tribunal, necessitated the review of select lists on the basis of which the petitioner and other members of the State Service had already been inducted into Indian Administrative Service. As a consequence of review of select lists, the petitioner was appointed to the Indian Administrative Service w.e.f 30 June, 1988 on the basis of review select list of 1987. In the meantime, Indian Administrative Service (Regulation of Seniority) Rules, 1987 replacing the Indian Administrative Service (Regulation of Seniority) Rules, 1954 came into force. These rules came into force from 6 November, 1987. Amendment was carried out to these rules, particularly to rule 3, pertaining to assignment of year of allotment on 18 January, 1988. In accordance with the provision of this rule, petitioner was given four years' weightage for his being a member of the State Service and resultantly the year 1984 was assigned as year of his allotment in the Indian Administrative Service. Petitioner felt that he was entitled to be allotted the year 1981, by counting his entire officiating period against a senior post from 1985 onwards, in accordance with Regulation 3(iii)(b) of the Regulations framed under Rules of 1954. He made a representation to the respondents which was rejected. He then filed an original application before the Central Administrative Tribunal, which the tribunal has dismissed vide impugned order.

3. Stand taken by the respondents before the Central Administrative Tribunal was that the year of allotment was required to be determined not under the rules of 1954 and the Regulations issued thereunder, as claimed by the petitioner, but in accordance with the Rules of 1987 as amended in January, 1988 since his appointment to the Indian Administrative Service had been made w.e.f 30 June, 1988.

4. From the reading of the order of Central Administrative Tribunal, it appears that the tribunal did not take into account the plea of the respondents that the matter was governed by the rules of 1987, as amended in the year 1988. The tribunal dismissed the original application holding that the petitioner had not disclosed as to in which year junior most officer of direct category had started officiating in the senior post, immediately prior to his having commenced officiation in a senior post. This reasoning of the Central Administrative Tribunal is wrong and contrary to the pleadings because the petitioner very categorically stated that Bheem Sain from a direct recruit category was the junior most officer, who had started officiating in senior post immediately before him and that he started officiating in the senior post in the year 1981.

4. We have heard the counsel for the petitioner, also the petitioner, who is present in person and the learned Assistant Solicitor General of India.

5. Though, as already noticed hereinabove, we find that the reasoning given by the tribunal is contrary to the facts on record, yet we are not inclined to interfere with the order of the Tribunal for the reasons which follow.

6. Admittedly, the petitioner was appointed to the Indian Administrative Service w.e.f 30 June, 1988 on the basis of his name figuring at Sr. No. 1 in the reviewed select list of 1987. By then, rules of 1987, as amended in the year 1988, which amendment was effective from 18.1.1988, had come into force. Rule 3 of the said rules has a basis, different from the rules of 1954 and the regulations framed thereunder, for determining the year of allotment. According to Rule 3(3)(ii) of 1987 Rules the year of allotment of a promotee officer shall be determined in the following manner:-

“(a) For the service rendered by him in the State Civil Service upto twelve years, in the rank not below that of a Deputy Collector or equivalent, he shall be given a weightage of four years towards fixation of the year of allotment;

(b) he shall also be given a weightage of one year for every completed three years of service beyond the period of twelve years, referred to in sub-clause (a), subject to a maximum weightage of five years. In this calculation, fractions are to be ignored;

(c) the weightage mentioned in sub-clause (b), shall be calculated with effect from the year in which the officer is appointed to the service:

Provided that he shall not be assigned a year of allotment earlier than the year of allotment assigned to an officer senior to him in that Select List of appointment to the service on the basis of an earlier Select List.”

7. Petitioner has been given 4 years' weightage in accordance with sub rule (3)(ii)(a) of the aforesaid rules of 1987. Admittedly, he was not entitled to any extra weightage under Clause (b) because of his having not put in three years of service in addition to 12 years service, referred to in Rule 3(ii)(a).

8. Petitioner claims that his name having figured in the select list of 1987, year of his allotment should be determined in accordance with rules of 1954. The claim made by the petitioner is contrary to rules of 1987. Rule 3(3) of 1987 Rules clearly says that the year of allotment of an officer appointed to the service, after the commencement of these rules, shall be in accordance with method prescribed therein. Hon'ble Supreme Court in Union of India v. S.S Uppal(1996) 2 SCC 168 has very categorically ruled that in the case of appointment of a person to the Indian Administrative Service after the commencement of rules of 1987, the year of his allotment has to be fixed, as per provision of rule 3 of 1987 Rules, and not in accordance with the earlier rules of 1957, which stand repealed by the Rules of 1987.

9. In the aforesaid case before the Supreme Court, the affected officer, who was a Joint Director of Industries, was considered suitable for absorption in the Indian Administrative Service in August, 1988. Three more officers were also considered suitable for absorption alongwith him. Those three officers were placed above him in the panel. Those persons were appointed in the year 1988 itself. The affected officer was not appointed in the year 1989 as no vacancy was available. Fourth vacancy occurred on Ist February, 1981. On 3rd February, 1989, rule 3(3)(iii) pertaining to year of allotment of officers absorbed from services other than the State Civil Service was amended. The affected officer was appointed on 15.2.1989 He claimed seniority in accordance with the provision of rule 3(3)(iii) as was in vogue prior to its amendment effective from 3.2.1989 Rejecting his plea, the Supreme Court held that he having been appointed on 15.2.1989, i.e after the amendment of rule 3(3)(iii) was not entitled to the year of allotment on the basis of un-amended rule. This judgment of the Supreme Court applies to the case in hand on all fours.

8. It was submitted on behalf of the petitioner that the action of the respondents in choosing the date of his appointment as 30 June, 1988, on the basis of reviewed select list, for which the D.P.C was held on 11.2.1997, is whimsical, arbitrary and, therefore, liable to be reviewed. For a number of reasons, we do not find any merit in this submission. No foundation for this plea had been laid in the original application, which was filed before the tribunal. Even in the present writ petition, such a foundation has not been laid. From the proceeding of the review D.P.C (Annexure P-5), we find that the earlier appointments, on the basis of select list of 1987, were made w.e.f 30 June, 1988. It was for this reason that when the select lists, including that of 1987, were reviewed in February, 1997, appointments of the State Officers from the reviewed select list of 1987, were made with effect from 30 June, 1988.

For the foregoing reasons, we do not find any merit in the petitioner's claim. Consequently, the writ petition is dismissed.