CASE NO.: Appeal (civil) 4168 of 1994 PETITIONER: V.C. PERUMAL RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT: 20/01/1999 BENCH: MRS. SUJATA V. MANOHAR & R.C. LAHOTI JUDGMENT:
JUDGMENT
1999 (1) SCR 160
The following Order of the Court was delivered :
The appellant was directly recruited to the post of District Superin-
tendent of Police in the competitive examination conducted by the Tamil
Nadu Public Service Commission in the year 1965. He joined service on
5.7.1965. At the relevant time he was officiating as Superintendent of
Police which is a post in the Indian Police Service. He was so officiating
from 26.6.1975 to 5.5.1978. The substantive post held by him at the
material time was of Additional Superintendent of Police which is in the
State Police Service.
The dispute in the present case relates to the year in which the name of
the appellant should have been included in the select list for appoint-ment
as Superintendent of Police. The name of the appellant was included, for
the first time, in the select list prepared for the year 1978. According to
the appellant, he should have been included in the select list which was
prepared in the year 1977.
Under Regulation 5 of the IPS (Appointment by Promotion) Regula-tions, 1955
it is provided as follows :
“Regulation 5: Preparation of a list of Suitable officers.
(i) Each Committee shall ordinarily meet at interval not ex-ceeding one
year and prepare a list of such members of the State Police Service as are
held by them to be suitable for promotion to the service. The number of
members of the State Police Service included in the list shall not be more
than twice the number of substantive vacancies an-ticipated in the course
of the period of twelve months, commencing from the date of preparation of
the list in the posts available for them under rule 9 of the Recruitment
Rules;
OR
10 per cent of the senior posts shown against item 1 and 2 of the cadre
schedule of each State of Group of States, whichever is greater.
Under Regulation, 5 the Select Committee is required to meet at an interval
not exceeding one year. In order to prepare the select list for the year
1977, the Select Committee met on 23rd November, 1976. Regulation 5
provides that the number of candidates to be included in the select list
shall not exceed twice the number of substantive vacancies anticipated in
the course of the period of 12 months commencing from the date of
preparation of the list. In the present case, therefore, for preparing the
select list for the year 1977, the Select Committee which met and prepared
the list on 23.11.1976, was required to consider vacancies anticipated for
the period November, 1976 to November, 1977. The number of candidates on
the select list would be twice the anticipated vacancies. Regulation (5)
also provides that the number on the select list should be atleast equal to
10% of the posts in the cadre allotted to the State in question. We are not
concerned with this second part of Regulation 5 in the present case because
of the number under first part of Regulation 5 in the present case
exceeding 10% of the posts. However, one may note that the total posts
which were available to the State Police for the State of Tamil Nadu were
80. Therefore, atleast a minimum of 8 names were required on the select
list.
In order to ascertain the number of anticipated vacancies for the period
November, 1976 to November, 1977 both the sides have relied upon Annexure D
to the Special Leave Petition which was also before the Central
Administrative Tribunal. As per Annexure D, there were four vacancies which
were existing at the time when the select list was prepared. These were
carried forward from 1976 as no appointment was made to these four posts
from the select list of 14.7.1976. In addition, there were five anticipated
vacancies which would arise during the period February, 1977 to November,
1977. There is also a note that no vacancy was created during the year 1977
due to death, dismissal or resignation of any officer. Therefore, as per
the details set out in Annexure D, there were four existing vacancies and
five anticipated vacancies at the time when the Select Committee met on
23.11.1976. Therefore, as per Regulation 5, the Committee considered the
number of anticipated vacancies as five, and prepared a select list
consisting of twice that number, that is to say a select list of 10
persons. This select list of 10 persons was finally approved by the Union
Public Service Commission on 21.1.1977. This became the select list for the
year 1977. The name of the appellant does not figure in the select list of
10 persons so prepared for the year 1977. It is an accepted position that
in this select list of 10 persons, nobody junior to the appellant is
included. These are all persons senior to the appellant.
In connection with the existing vacancies, learned counsel for the
respondents has drawn our attention to Regulation 7(3) which provides that
the list, as finally approved by the Union Public Service Commission, shall
form the select list of the members of the State Police Service for
appointment to the Indian Police Service. Under Regulation 7(4) the select
list shall ordinarily be in force until its review and revision effected
under Regulation 5(4) is approved under Sub-Regulation (1), or as the case
may be, approved under Sub-Regulation (2). Sub-Regulation (1) of Regulation
7 requires the Union Public Service Commission to consider the selection
list prepared by the Select Committee and Sub-Regulation (2) of Regula-tion
7 enables the Union Public Service Commission, if it considers neces-sary,
to make changes in the list received in the manner set out in that Sub-
Regulation. Therefore, under regulation 7(4) the select list will operate
until the approval of the new select list by the Union Public Service
Commission. In the present case, therefore, when the Committee prepared the
new select list on 23.11.1976, the select list for 1976 was in operation
and would have continued to operate till the approval of the new select
list for 1977 by the Union Public Service Commission which normally takes
some time. The Committee, therefore, could not have anticipated that any
existing vacancies which were available for being-filled from the select
list of 1976 would or not be filed by the time the new select list was
approved by the Union Public Service Commission.
Learned counsel for the respondent has drawn our attention to an amendment
to Regulation 7 which has been made in the year 1989 by adding a proviso
for the purpose of eliminating this problem of existing vacancies, and
whether they should or should not be taken into account by the Select
Committee while preparing a new list. The proviso which has been added in
1989 provides that no appointment to the service under Regulation 9 shall
be made after the meeting of the fresh Committee to draw up a fresh list
under Regulation 5 is held. This proviso, however, was not in existence at
the material time. The Committee, therefore, was justified in not taking
into account the existing vacancies for the purposes of Regulation 5. In
fact Regulation 5 in terms, makes no reference to any existing unfilled
vacancies. It fixes the number of candidates on the select list with
reference to anticipated vacancies during the coming year. The contention
of the appellant, therefore, that the Commission should have prepared a
list of more than 10 persons for the year 1977 does not appear to be
justified.
The appellant has added the four existing vacancies to the five anticipated
vacancies which makes a total of nine. He has, however, excluded from
consideration the anticipated vacancy of 30.11.1977, thus reducing the
total number to eight. He has contended that a select list of sixteen
should, therefore, have been prepared. His contention cannot be accepted in
view of the provisions of Regulation 5 and Regulation 7. The anticipated
vacancies were five, and preparation of a selection list of ten was in
accordance with Regulation 5.
Learned counsel for the appellant has drawn our attention to a decision of
this Court in Union of India v. M.G. Dighe & Ors., [1991] 4 SCC 551. In
that case the Court was concerned with the date from which anticipated
vacancies were required to be calculated for the purpose of preparing a
select list. In that case a review DPC was required to be convened on
account of a faulty list prepared by the original DPC. The Court said that
vacancies would have to be determined after reckoning 12 months from the
date of the review DPC and not from the date when the original DPC had met.
The Court said that the crucial date would remain the date of the meeting
of the DPC, but it would be the date of review DPC which would count for
that purpose. We fail to see how this judgment helps the appellant in any
manner. The second judgment which was relied upon by the appellant is the
judgment in the case of Devender Narayan Singh v. State of Bihar & Ors.,
[1996] 11 SCC 342. In that case, on account of certain errors in preparing
the select list for the year 1983, this Court had directed preparation of a
fresh list for the year 1983. Consequently a fresh select list was prepared
in the year 1985 and was approved by the Union Public Service Commission in
the year 1986. This Court said that in view of the earlier directions given
by this Court the fresh select list prepared must be deemed to be a select
list for year 1983 and hence the year of allotment of the officers promoted
in 1987 on the basis of the select list should be determined on the basis
that they were included in the select list of 1983 and not on the basis of
the approval of the list in 1986. This decision also turns upon its own
special facts and the specific directions given in that case earlier by
this Court. This decision also does not assist the appellant in any way.
In the present case the appellant was included for the first time in the
select list of 1978 and on that basis he was promoted in the year 1979. His
only grievance appears to be that his batchmate Balakrishnan was included
in the select list of 1977 while he himself was included only in the select
list of 1978. Balakrishnan was also, in fact, promoted in the year 1979
because out of the select list of ten for 1977, only seven persons were
actually promoted. Balakrishnan has been throughout senior to the appel-
lant, although they were in the same batch. Even when both are promoted in
1979, Balakrishnan being senior to the appellant, has been so shown.
Undoubtedly because Balakrishnan was in the select list of 1977, while the
appellant was included only in the select list of 1978, Balakrishnan would
get seniority. But even if the appellant had been in the select list of
1977, Balakrishnan would still have been senior to him. Therefore, there is
no prejudice caused to the appellant by reason of the fact that his name is
included for the first time only in the select list of 1978.
In the premises the present appeal is dismissed and the order of the
Tribunal is upheld.