Sikri, J. - (1.) This appeal by Special leave is directed against the, judgment of the Circuit Bench of the Punjab High Court at Delhi, dismissing in limine the petition under Article 226 of the Constitution filed by the appellant D. R. Nim. The appellant had impugned in this petition an order, dated August 25, 1955, passed by the Government of India, (Ministry of Home Affairs) - hereinafter referred to as the impugned order as being contrary to law and Art. 14 of the Constitution.
(2.) The relevant facts for the determination of the validity of the impugned order are as follows:The appellant was appointed to the U. P. Police Service as a result of a competitive examination held in 1938. In course of time he was appointed officiating Superintendent of Police with effect from June 25, 1947. He continued to officiate till he was appointed to the Indian Police Service against the promotion quota of the Indian Police Service Cadre of Uttar Pradesh with effect from October 22, 1955. By the time he was appointed to the Indian Police Service various Rules and Regulations governing the Indian Police Service had been issued by the Central Government in exercise of the powers conferred by sub-s. (1) of S. 3 of the All India Services Act (LXI of 1951). We are concerned particularly with the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter referred to as the Seniority Rules. The seniority of the appellant has to be determined under these Seniority Rules. The first thing to be done under the Seniority Rules is to determine the year of allotment of the appellant. The appellant claims that a wrong year of allotment has been given to him by the application of the impugned order, which according to him, is a void order. Rule 3. which deals with the assignment d the year of allotment reads as follows:- "3. Assignment of Year of Allotment.- (1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule. (2) The year of allotment of an officer in service at the commencement of these rules shall be the same as has been assigned to him or may be assigned to him by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules: Provided that where the year of allotment of an officer appointed in accordance with R. 9 of the Recruitment Rules has not been determined prior to the commencement of these Rules, his year of allotment shall be determined in accordance with the provision in Cl. (b) of sub-r. (3) of this rub and for this purpose, such officer shall be deemed to have officiated in a senior post only if and for the period for which he was approved for such officiation by the Central Government in consultation with the Commission. (3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be- (a) where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held; (b) where the officer is appointed to the Service by promotion in accordance with R. 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with rule 7 of those Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former: Provided that, the year of appointment of an officer appointed to the Service in accordance with R. 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with R. 7 of those Rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned; Provided further that an officer appointed to the Service after the commencement of these Rules in accordance with R. 9 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulations framed under R. 9 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission. Explanation 1-An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion as senior post otherwise than as a purely temporary or local arrangement. Explanation 2-An officer shall be treated as having officiated in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstance."
(3.) Sub-rule (1) clearly makes R 3 the Controlling Rule for the purposes of assignment of the year of allotment. The Rule then divides of officers into two categories:(1) an officer in the Indian police Service at the commencement of the Rules, and (2) an officer appointed to the Indian Police Service after the commencement of the Rules. We are concerned with the second category as the appellant was appointed to the Indian Police Service in 1955. The second category is again divided into two sub-categories:(a) officer appointed to the service as a result of a competitive examination, and (b) officer appointed to the service by promotion in accordance with R. 9 of the Recruitment Rules. As the appellant was appointed to the Service by promotion, we are concerned with the second sub-category The formula adopted works out as follows:first find out the year of allotment of the junior-most among the officers recruited to the service by competition who officiated continuously in a senior post from a date earlier than the date of commencement of officiation of the appellant. We may again mention that the appellant started officiating as Superintendent of Police on June 25, 1947. But, according to the first proviso, if the appellant started officiating continuously in a senior post from a date earlier than the date of any officer recruited by competition his allotment had to be determined ad hoc by the Central Government. According to the facts of this case, the first proviso applies and not the test provided in R. 3 (3) (b) of the Seniority Rules. The second proviso limits the operation of the first proviso by dividing the officiating period into two classes:first, a period before the date of inclusion of an officer in the Select List, and secondly, the period after that date. The first period can only be counted if such period is approved by the Central Government in consultation with the Commission. The appellant's name was included in the Select List of 1956. Therefor, in the case of the appellant the period prior to 1956 had to be approved by the Central Government in consultation with the Commission.;