D. B. Lal, J. -
(1.) Shri V. K. Ahluwalia, a senior member of the Indian Police (I.P.S.) has filed this writ petition under Articles 226 and 227 of the Constitution wherein he has asked for quashing the decision of the Union of India, respondent No. 1, dated 26-6-1976 (Annexure-N) whereby 1965 has been given as the year of allotment for Ahluwalia. He has further asked for a declaration that he continued to officiate on a senior duty post of the Indian Police Service from 11-11-1965 without any break whatsoever after he was brought on the select list till the date of his confirmation in the Indian Police Service and to determine the year of his allotment as the year 1961. In consequence, thereof, the petitioner seeks for a declaration that he is senior to respondents Nos. 4 to 13. He has also prayed for grant of selection grade in accordance with this seniority keeping in view his year of allotment as 1961. The facts giving rise to this petition are, that the petitioner Ahluwalia was promoted to the gazetted post of Deputy Superintendent of Police on 10-12-1956 in the State Service of Himachal Pradesh. In the year 1962, the Government of India constituted a new service for the Union Territories of Delhi and Himachal Pradesh Police Service known as Delhi and Himachal Pradesh Police Service. The petitioner Ahluwalia was taken in that service and was confirmed therein with effect from 27-11-1964. In exercise of the powers conferred under sub-section (4) of Section 3 of the All India Service Act, 1951, the Central Government after consultation with the Governments of the States has made certain Pules and Regulations which shall govern the seniority of the petitioner. According to Ahluwalia a select list was prepared under the Indian Police Service (Appointment by Promotion) Regulations, 1955, and Ahluwalia was placed in that select list in the year 1965 along with other officers of the department. After having been brought on the select list the petitioner was appointed as Superintendent of Police, Chamba, a senior duty post of the I.P.S on 12th October, 1965 although the petitioner took the charge of that office on 11-11-1965. Thereafter, the petitioner continuously held senior duty posts which were admittedly cadre posts. He was Superintendent of Police, Chamba from 11-11-1965 to 25-12-1967. Thereafter, he was on earned leave from 26-12-1967 to 25-3-1968. From 26-3-1968 to 20-5-1968 he was Superintendent of Police, H A.P. and from 25-5-1968 till the date of his appointment in the I.P.S. on 30-1-1971 he was Superintendent of Police, Nahan. On 1st November, 1966 the re-organisation of the State took place and certain areas of Punjab were transferred to the Union Territory of Himachal Pradesh. The result was that several officers, inter alia, Shri P. C. Sahney and Shri K. S Dhaliwal, were brought from Punjab and these officers were also entered in the select list of the I.P.S. along with Ahluwalia. Shri P. C. Sahney, however, was at that time holding the ex-cadre post of Superintendent of Police, C.B.I. under the Ministry of Home Affairs which office he held with effect from 7-12-1964 and continued to hold that post till 6-10-1969. It may also be specified that Sahney was entered in the select list in the year 1962 and as such he was senior to Ahluwalia. After this merger of the officers of Punjab with the officers of the Himachal Pradesh, a joint select list of the erstwhile Union Territory of Delhi and Himachal Pradesh was prepared on 29-4-1967. The name of Ahluwalia was entered in that list alongwith Sahney and Dhaliwal as well as other officers. Thereafter, on 1st January 1968 instead of Delhi and Himachal Pradesh cadre a single cadre for all the Union Territories came into being. The first select list of that cadre, however, came into force on 13-1-1971. It has to be understood that Ahluwalia all along continued to hold a senior post of the l.P.S. and on 13-1-1971 his name was formally mentioned in the select list of the Union Territories cadre. The other significant date thereafter was 25-1-1971 when Himachal Pradesh assumed full Statehood and Ahluwalia was allocated along with others to the cadre of Himachal Pradesh Police Service. He was appointed to the Indian Police Service on probation on 30th January, 1971. He was also confirmed with effect from the said date After these developments, if appears a question was raised for the allocation of year of allotment and on 3-2-1970 the petitioner received a letter from the Government of India disclosing that under Rule 9(4) of the Indian Police Service (Cadre) Rules, 1954 the Union Public Service Commission has not approved the appointment of Ahluwalia against a cadre post for the period 1-8-1968 to 12-10-1969 (Annexure-G). The petitioner made a representation on 19-11-1970 that during this period he was holding a senior duty post and that there was no reason why the period should not be approved by the Union Public Service Commission as well as the Government. The petitioner received a letter on 8th August 1973 from the Government of Himachal Pradesh conveying the decision of the Government of India which had the effect that his period of service against a senior duty post before 12-1-1971 was not to be considered, and the year of allotment could be given to him with reference to the date 13th January, 1971. This decision being obviously against Ahluwalia, he made several representations and finally in July 1975 (Annexure-M), the Government of India tentatively opined that Ahluwalia had a good case and that neither the period between 1-1-1968 to 12-1-1971, when apparently there was no select list for the Union Territory Cadre, nor the period between 1-8-1968 to 12-10-1969 could be excluded and Ahluwalia should be given benefit of the entire period. However, the Government of India asked for representations from the other affected officers and thereby intended to decide the case of Ahluwalia only after healing the said representationists. After these representations were made and considered by the Government of India, under Annexure N dated 26th June, 1976, they decided, that the petitioner could not be given the benefit for the period 1-8-1968 to 12-10-1969 because P. C. Sahney, his senior, was holding ex-cadre post during this period. In other words, the petitioner was made to suffer because Sahney was posted by the Government of India against a non-cadre post and it was considered that the petitioner could not hold a cadre post during this period. The result was that under Annexure-N, Ahluwalia was given thereof allotment with reference to the date 13th October, 1969. As such, his ear of allotment was 1965 and he was held junior to several officers. The petitioner did not feel satisfied with that decision and after making several representations when he did not get any redress from the Government of India he filed the present petition.
(2.) In the petition, besides the Union of India and the Government of Himachal Pradesh, respondent Nos. 4 to 15 were also made parties. These respondents are the officers belonging to the IPS cadre and Ahluwalia claims seniority over respondents Nos. 4 to 13. The returns have been filed by the Union of India, respondent No. 1 as well as the State of Himachal Pradesh, respondent No. 2. The respondent No. 2, however, submitted that the question essentially relates to the Union of India and as such they would depend upon the return filed by the respondent No. 1. Besides these two respondents, K. S. Dhaliwal, respondent No. 15, has also filed a return and his contention is that he is senior to Ahluwalia which position is also conceded by the petitioner. Respondent No. 14 is P.C. Sahney and this officers is again senior to Ahluwalia and as such there is no point of contention between him and the petitioner. Amongst the respondents Nos. 4 to 13, Kul Nath Kapoor, I.P.S., respondent No. 5, appeared personally during our hearing. Although he did not file any return, yet we gave him opportunity of putting his case before us. The rest of the respondents did not care to file any return nor did they appear to contest the petition. The Union of India, respondent No. I, reiterated their position under Annexures-M and N. The main ground contention on behalf of respondent No. 1 is that since P. C. Sahney, an officer senior to Ahluwalia, being in the select list was holding an ex-cadre post, there was a break in the service of Ahluwalia between 1-8-1968 and 12-10-1969. As such 'he could not be given the benefit of that period and his officiation against a senior duty post could only be deemed from 18-10-1969 for ascertaining the year of allotment under rule 3(3) (o) of the Regulation of Seniority Rules, 1954. It was further contended that the officiation of Ahluwalia against a senior duty post for the period 1-8-1968 to 12-10-1969 violated Regulation 8 of the Promotion Regulations, and hence the said period could not be approved for the purpose of seniority. For that reason, according to respondent No. I, the Union Public Service Commission had not given its approval under sub-rule (4) of Rule 9 of the Cadre Rules. As such, respondent No. 1 very much adhered to their decision under Annexure-N.
(3.) Before adverting to the points of contention between the respective parties, we think it appropriate to refer to the relevant parts of the statutory provisions as well as to the Annexures which contain the correspondence with reference to the seniority of the petitioner. In that connection we have first to refer to the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter to be referred to as Promotion Regulations, 1955). The relevant parts of Regulations 7 and 8 will be pertinent :
"7 Select List -
(1) The Commission shall consider the list prepared by the Committee along with the other documents received from State Government and, unless it considers any change necessary, approve the list.
(3) The list as finally approved by the Commission shall form the Select List of the members of the State Police Service.";