ORDER
S.R. Nayak, J.
1. Since all these writ petitions were directed against the same judgment of the Central Administrative Tribunal, Bangalore Bench, Bangalore (for short, ‘the Tribunal’) dated 15th March, 2001 passed in O.A. No. 655 of 2000, we clubbed all the writ petitions, heard them together and they are being disposed of by this common judgment. At this stage itself, it needs to be noticed that Writ Petition No. 14842 of 2001 preferred against the same judgment of the Tribunal filed by late Sri S.S. Annegowda came to be closed as having become abated vide Order of this Court dated 21st August, 2003.
2. The background facts leading to the filing of the Original Application No. 655 of 2000 be noted in brief in the first instance and they are as follows: The fourth respondent, namely, Sri B. Kamalanabhan in Writ Petition No. 14837 of 2001 is the applicant in O.A. No. 655 of 2000 (hereinafter referred as the ‘applicant’), for the sake of convenience. The applicant was initially appointed as Deputy Superintendent of’ Police, a Group-A, Junior Scale Post in the Karnataka State Police Service (for short, ‘KSPS’) in the year 1982. The applicant was promoted as Superintendent of Police, a Group-A, Senior Scale Post in the KSPS in the year 1991. We were told that the applicant retired from service on attaining the age of superannuation on 31st May, 2003 at the age of 58 years.
3. In exercise of the powers conferred under Section 3 of the All India Services Act, 1951 (for short, ‘the Act’), the Central Government has framed the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as ‘the 1955 Regulations’),’ providing for appointment of officers from State Police Service to the IPS. Regulation 2(1)(1) defines word ‘year’ as meaning the period commencing on the first day of April and ending on the 31st day of March of the subsequent year. Regulation 3 of the 1955 Regulations provides for constitution of the Committee to make selection. Sub-regulation (1) of Regulation 5 provides that the Committee shall meet at intervals not exceeding one year. Sub-regulation (2) of Regulation 5 provides for the preparation of list of eligible officers thereby’ meaning those officers who come under zone of consideration from the State Police Service three times the number of substantive vacancies anticipated in the course of the period of 12 months. Regulation 5(4) provides for classification of officers included in the zone of consideration as “outstanding”, “very good”, “good” or “unfit” as the case may be, on an overall relative assessment of their service records. Under sub-regulation (5) of Regulation 5, the Selection Committee is required to prepare the Select List.
4. The Central Government issued a notification dated 31-12-1997 whereby and whereunder published the Indian Police Service (Appointment by Promotion) (Amendment) Regulations, 1997 (hereinafter referred to as ‘the 1997 Regulations’) amending inter alia Regulation 2 (1)(1) and Regulation 5 (1) of the 1955 Regulations. The 1997 Regulations came into force with effect from 1-1-1998. The amended Regulations 2(1)(1) and 5(1) read as follows:
“2(1)(1) ‘year’ means the period commencing on the first day of January and ending on the thirty-first day of December of the same year.
5. Preparation of a list of suitable officers.–(1) Each Committee shall ordinarily meet at intervals not exceeding 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 to be included in the list shall be determined by the Central Government in consultation with the State Government, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission:
Provided that no meeting of the Committee shall be held, and no list of the year in question shall be prepared when,
(a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under Rule 9 of the Recruitment Rules; or
(b) the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under Rule 9 of the Recruitment Rules; or
(c) the Commission, on its own or on a proposal made by either the Central Government or the State Government, after considering the facts and circumstances of each case, decides that it is not practicable to hold a meeting of the Committee to make the selection to prepare a select list.
Explanation.–In the case of’ joint cadres, a separate list shall be prepared in respect of each State Police Service”.
5. It is stated that the Central Government in pursuance of the judgment of the Supreme Court in K.K. Goswami v. Union of India, included the training reserve, State deputation reserve and the Central deputation reserve components to the cadre strength of the IPS/IAS/IFS for determining the revised promotional quota of the State Service including KSPS. Consequent upon the inclusion of the said components, an additional seven vacancies accrued to the promotional quota of KSPS as on 1-1-1.998. The Central Government by its notification dated 31-12-1997 included the said seven vacancies as being available for promotional quota (from 37 to 44) by amending the Schedule to the Indian Police Service (Fixation of Cadre Strength) (7th Amendment) Regulations, 1997. When the matter stood thus, the Government of India vide its letter dated 19-2-1998 addressed to the Chief Secretary, Government of Karnataka informed him that out of seven vacancies, two vacancies were released for being utilised in respect of officers included in the Select List of 1997 and the remaining five vacancies are phased for being utilised during the years 1998, 1999 and 2000 in the ratio of 1:2:2. At this stage itself, it needs to be noticed that although all the seven vacancies were accrued as on 1-1-1998, the Government of India in its discretion released only two for being utilised to accommodate the officers included in the Select List of 1997. We are not concerned with the selection made in the year 1997 in this case. During the year 1998, Selection Committee could not meet inasmuch as the issue relating to the validity or otherwise of the ACRs remained under protracted correspondences between the Union Public Service Commission (for short, ‘UPSC’) and the Karnataka State Government and the said issue was finally resolved only on 1-6-1999 by which time an amendment of the KSPS (Confidential Reports/PR) Rules was brought about providing for validation of hitherto time-barred ACRs. In the circumstance, the Selection Committee could not sit before 31-12-1998. The records placed before the Court and the pleadings filed by the Central Government and the UPSC would show that the UPSC has also made a declaration in terms of Regulation 5(l)(c) of the 1997 Regulations to the effect that it is not practicable to hold the meeting for making promotions from KSPS to IPS in respect of Karnataka State for the year 1998.
6. After the issue relating to the ACRs was resolved on 1-6-1999, the Central Government determined the vacancies for the year 1999 as three by taking into account the substantive vacancies available as on 1-1-1999 purported to be in terms of the 1997 Regulations. The Selection Committee considered the cases of nine officers including the petitioner in terms of the ratio prescribed and prepared the select list of three officers consisting of Sri K.H. Srinivasan, the petitioner in W.P. No. 14837 of 2001, Sri H.N. Siddanna, the petitioner in W.P. No. 14843 of 2001 and late Sri S.S. Annegowda, petitioner in W.P. No. 14842 of 2001 whose writ petition was closed as having abated vide Order of this Court dated 21st August, 2003. On the basis of the selection so made, the Government of Karnataka, by its notification dated 18-1-2000, issued the list of three candidates and appointed them to IPS.
7. The applicant who was one of the nine officers who were considered by the Selection Committee but not included in the Select List being aggrieved by the notification dated 18-1-2000 instituted O.A. No. 655 of 2000 before the Tribunal praying for quashing of the selection and appointment of the writ petitioners and for issue of a direction to the official respondents to reconsider and review his case by preparing separate zones of consideration for the years 1998 and 1999. The application was opposed by the Central Government, the UPSC and the State Government as well as the contesting private respondents by filing reply statements. At this stage itself, two contentions raised by the applicant before the Tribunal need to be noticed, because, those contentions are not urged before us for decision-making. Before the Tribunal, among other grounds, the applicant had contended that the impugned notification dated 18-1-2000 is vitiated on account of legal mala fide and that the Selection Committee ought to have made appointment with regard to one vacancy which arose in the year 1998 in the year 1998 itself. Although these two grounds were taken before the Tribunal, Sri Masur, learned Counsel for the applicant, quite fairly and according to us, quite rightly, did not press those grounds before us in support of his client’s case.
8. The Tribunal having considered the relevant regulations and the judgments of the Supreme Court in Syed Khalid Rizvi and Ors. v. Union of India and Ors., , Union of India and Ors. v. Vipinchandra Hiralal Shah, and also a Full Bench judgment of the Hyderabad Bench of the Tribunal in O.A. No. 1971 of 1999 and batch dated 8-2-2001 as well as its own judgment in O.A. No. 1175 of 2000 and batch dated 10-1-2001 found flaw in the procedure adopted by the Selection Committee and held that the Selection Committee ought to have made separate list for the years 1998 and 1999 in terms of the ratio of 1:3 to maintain the proper zone of consideration and since the Selection Committee had bunched together all the vacancies for the years 1998 and 1999 and has made one selection for the three vacancies resulting in enlargement of the field of choice for the purpose of selection and thereby violating the right of the applicant, allowed the application in part and quashed the impugned notification dated 18-1- 2000 produced and marked as Annexure-A3. The operative Order passed by the Tribunal reads thus:
“For the reasons discussed by us above, we allow the O.A. in part quashing the impugned Order dated 18-1-2000 at Annexure-A3 and direct the official respondents to review the case of the applicant for the vacancy of 1998 with a separate zone of consideration and if found suitable to give him the benefit of retrospective promotion to IPS with all consequential benefits with effect from the date of the impugned Order at Annexure-A3, that is, 18th January, 2000, placing him at SI. No. 1 in the list. If he is not found suitable for the vacancy of 1998, the case of the applicant shall he reviewed by the official respondents in the context of the two vacancies for the year 1999 with a separate zone of consideration for those vacancies and if found eligible and otherwise suitable he shall be appointed with effect from the date of the issue of the impugned Order at Annexure-A3, i.e., 18-1-2000 with all consequential benefits. These directions shall be carried out by the official respondents within a period of 3 months from the date of receipt of a copy of this order. There shall be no Order as to costs”.
9. The selected candidates being aggrieved by the above Order of the Tribunal have preferred the writ petitions. During the pendency of the writ petition, one selected candidate, namely Sri Annegowda died and his writ petition is closed as having abated. The UPSC also being aggrieved by the above Order of the Tribunal, has, independently, filed W.P. No. 35109 of 2001.
10. On behalf of the petitioners, Mr. Nanjunda Reddy, led the arguments and he was supplemented by Sri S.V. Narasimhan and Sri Arvind Kumar. Sri V.Y. Kumar, learned Government Advocate appearing for the State Government and its authorities has also supported the stand of the writ petitioner and took exception to the impugned Order of the Tribunal. We also heard Sri Masur, learned Counsel for the applicant-contesting respondent.
11. Sri Nanjunda Reddy, with his usual forceful persuasiveness, would contend that the opinion of the Tribunal without noticing the binding judgments of the Supreme Court in Nepal Singh Tanwar v. Union of India, (1998) Scale (SP) 7; H.R. Kasturi Rangan v. Union of India, (1998) Scale (SP) 11, could not be sustained inasmuch as the opinion of the Tribunal is solely grounded on the earlier judgments of the Supreme Court in Syed Khalid Rizvi’s case, and Vipinchandra Hiralal Shah’s case and since the aforementioned judgments were considered by a Co-ordinate Bench in Nepal Singh Tanwar’s case and a Division Bench in H.R. Kasturi Rangan case, and if these two later judgments are read carefully, it would clearly show that the preparation of separate list for the years 1998 and 1999 was not necessary and therefore, the method adopted by the Selection Committee could not be faulted in terms of law. Sri Nanjunda Reddy would draw our attention specifically to paras 4, 5 and 6 of the judgment in H.R, Kasturi Rangan’s case and paras 4 and 5 of the judgment in Nepal Singh Tanwar’s case. Sri Nanjunda Reddy would also strongly highlight that the very fact that the preparation of separate list for each year came to be prescribed for the first time in 2000 Amendment which would also clearly indicate that there was no duty cast on the Selection Committee to prepare separate lists for different years before 2000 Amendment and since the 2000 Amendment is not made applicable retrospectively, the method adopted by the Selection Committee was in Order and in accordance with law and therefore, the Tribunal has seriously erred in law in interfering with the selection and appointments made. The learned Counsel appearing for the UPSC and the learned Government Advocate for the State of Karnataka and its authorities drew our attention to their respective pleadings and pointed out as to why the selection could not be made during the year 1998. There is no need for us to refer to those pleadings, because, it is not the contention of Sri Masur before us that the Selection Committee ought to have met in the year 1998 itself to fall up one vacancy occurred in the year 1998. Be that as it may, since the UPSC has made a declaration in terms of Regulation 5(1)(c) incorporating the circumstances and reasons not to make selection with regard to one vacancy which arose in the year 1998 and since that declaration is not challenged by the applicant, no exception can be taken to the official respondents not taking steps to make selection during the year 1998.
12. Learned Counsel for the applicant, per contra, while supporting the impugned Order of the Tribunal, would maintain that the opinion of the Tribunal is in perfect conformity with the law declared by the Apex Court in Syed Khalid Rizvi’s case and Vipinchandra Hiralal Shah’s case and the observations made by the Apex Court subsequently in Nepal Singh Tanwar’s case and H.R. Kasturi Rangan’s case, to which reference is made by the learned Counsel for the petitioners in the peculiar fact situation of those cases would not in any way dilate the authoritative declaration of the law made by the Supreme Court in Syed Khalid Rizvi’s case and Vipinchandra Hiralal Shah’s case. Be that as it may, Sri R.K. Masur would contend that since Sub-regulation (1) of Regulation 5 does not specifically deal with whether the Selection Committee should make a compendious list for all the years or a separate list for each year concerned, it is just and proper that the Court should interpret the provision in such a way as to uphold the importance and utility attached to the relative seniority of the applicant and similarly circumstanced others. Further, it was pointed out that it is not as if before 2000 Amendment, the law was different. According to Sri R.K Masur, even before 2000 Amendment, the law required the Selection Committee to prepare a separate list for each year and in fact that was so regulated by administrative instructions contained in O.M. dated 24-12-1980 to which reference is made by the Apex Court in Vinod Kumar Sangal v. Union of India and Ors., . Sri R.K. Masur would also point out that that is how the UPSC itself had understood and its understanding was rightly stated in para 13 of the reply-statement filed by it in O.A. No. 1175 of 2000, disposed of by the Tribunal vide its Order dated 10-1-2001, A copy of the said reply statement was placed before us for our perusal.
13. In reply, oh behalf of the writ petitioners and UPSC, it was contended that the administrative instructions incorporated in O.M. dated 24-12-1980 are not applicable to the facts of this case. It was contended that when the mode and method of appointment to IPS is governed by statutory regulations, deriving any sustenance from administrative instructions contained in O.M. dated 24-12-1980 is impermissible and, be that as it may, it was contended that under no circumstance such administrative instructions would amend the statutory instruments.
14. Having heard the learned Counsels for the parties, a short, but an important question that arises for decision-making is whether the UPSC, if for any reason, cannot make recruitment to the IPS from the State cadre during any particular year and such recruitment is required to be made during subsequent year, whether the Selection Committee is required to make a separate list for each year concerned or whether in terms of the regulations it is permissible for the Selection Committee to make a common or compendious list for all the years with respect to which it proposes to make appointment?
15. It is not in controversy that the Selection Committee did not make separate list to fill up the vacancies for the years 1998 and 1999 and, on the other hand, admittedly, it has bunched together the vacancies for the years 1998 and 1999 and has made one selection for all the three vacancies. In the process, it has included 9 candidates including the applicant under the zone of consideration. This method adopted by the Selection Committee is sought to be supported by the UPSC, the State Government as well as the selected candidates heavily depending upon Regulation 5 of the 1997 Regulations. We have extracted Sub-regulation (1) of Regulation 5 of the 1997 Regulations which has application to the facts of this case, supra.
16. We have carefully perused Sub-regulation (1) of Regulation 5. The said provision mandates that the Selection Committee constituted shall ordinarily meet at intervals not exceeding 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 to be included in the said list shall not exceed the number of substantive vacancies as on the first day of January of the year in which the ‘meeting is held. An effort is made by the learned Counsel for the selected candidates to contend that the aforementioned provision of Sub-regulation (1) of Regulation 5 would enable the Selection Committee to draw up only one compendious list because Sub-regulation (1) speaks about the total number of substantive vacancies as on the first day of January of the year in which the meeting is held. It was contended that if the intendment of the rule-making authority is different, there would not have been any difficulty for the rule-making authority to specifically prescribe that the Selection Committee should prepare a separate list for each year concerned. This submission is not acceptable to us. It does not leave any doubt in our mind that Regulation 5(1) is in no way helpful or an aid to decide the question whether separate list or a combined list should be prepared as contended by the contesting parties before us. What we wish to emphasise is that Regulation 5(1) would not even remotely give any clue to answer that question. If Regulation 5(1) is of no help to us to answer the question, what could be a reasonable interpretation we may place with regard to the power, nay, the duty of the Selection Committee in the matter of preparation of the lists. It need not be emphasised that the relative seniority of an employee or officer would play crucial and important role in his official career in earning promotions or securing service benefits, pecuniary or otherwise, in the administrative echelon of his department during his official career. Unless there is a clear intendment spelt out by statute to the contrary, the administrative instructions which intend to protect the relative seniority of an employee cannot be faulted. Furthermore, the Court should adopt an interpretation which would advance the objective behind the concept of relative seniority and it would not be justified in placing an interpretation which would dilate or thwart its objective. The second circumstance that needs to be noticed in the present case is that the applicant did not contribute anything from his side for non-selection of candidate to IPS with regard to one vacancy which arose in the year 1998, in the year 1998 itself.
17. Admittedly, if the Selection Committee in ordinary course in terms of amended Regulation 5(1) were to initiate selection process in the year 1998 itself to fill up one vacancy, the applicant and two others alone would have come under the zone of consideration and not any of the selected candidates. The records placed before the Court and even the pleading of the UPSC and the Central Government would show that of all the three officers who would have come under zone of consideration, if the Selection Committee were to fill up one vacancy in the year 1998 itself, the applicant alone was qualified to be considered having earned “Good” gradation to his credit and the remaining two having earned gradation “unfit”. In other words, if the Selection Committee were to fill up one vacancy during the year 1998 itself, the applicant would have been the sole candidate for the post and since he had earned gradation “Good”, he should have been appointed to IPS in terms of the Regulations. If this is the position flowing from the provisions of the Regulations, simply, because, due to a fortuitous circumstance over which the applicant has had no control, the selection was not done in the year 1998, could it be said that his right to be considered and appointed to the IPS in the year 1998 itself stood frustrated by permitting expansion of zone of consideration as done by the Selection Committee by preparing a common list for the years 1998 and 1999. We are of the considered opinion that the Selection Committee’s action in preparing the common list with regard to the vacancies occurred during the years 1998 and 1999 is not in consonance with Article 14 postulates. It is true that right to promotion is not a vested right unless statute grants it. But, here is a case where the statute grants a right to a State Police Officer to enter IPS. If in the ordinary course, the selection process were to take place in the year 1998 itself, the applicant being the sole eligible candidate could have entered the IPS by dint of his merit. In Order to frustrate or deny that advancement to the applicant, there should be legal justification and Constitutional sanction. We do not find any Constitutional sanction or statutory support to deny such advancement to the applicant. In taking this opinion, we are also fortified by the judgment of the Supreme Court in Vinod Kumar Sangal’s case. In that case, the Supreme Court, in para 8 of the judgment, held.–
“It is not the case of the respondents that the DPC made separate selection for the vacancies for the years 1980, 1982 and 1983 and the DPC appears to have bunched together all the vacancies for the years 1980 to 1985 and has made on selection for the 6 promotional vacancies and this has resulted in enlargement of the field of choice for the purpose of selection. The grievance of the appellant is that this mode of selection in disregard of the instructions contained in the office memorandum dated 24-12-1980 operated to his prejudice appears to be justified “because if separate selection had been made for the vacancies which occurred in the years 1980, 1982 and 1983 the field of choice would have been much more restricted and the appellant would have had better chances of being selected”.
In that case, the method adopted by the DPC resulting in enlargement of the field of choice for the purpose of selection was specifically disapproved by the Apex Court. Since Regulation 5(1) does not direct the Selection Committee to prepare a common list, what the Supreme Court observed in the context of that case squarely applies to the facts of this case too. We also find considerable force in the contention of Sri R.K. Masur that the law laid down by the Supreme Court in Syed Khalid Rizvi’s case and Vipinchandra. Hiralal Shah’s case, is not changed or altered by the subsequent judgments of the Supreme Court in Nepal Singh Tanwar’s case and H.R. Kasturi Rangan’s case. We have carefully read both the latter judgments. Nowhere the Supreme Court has observed or ruled that the ratio decided of the judgments in the cases of Syed Khalid Rizvi and Vipinchandra Hiralal Shah, is not good law. In both the latter judgments, the Supreme Court made certain observations only to highlight the context in which the law was declared by the Supreme Court in the cases of Syed Khalid Rizvi and Vipinchandra Hiralal Shah. Therefore, from the observations made by the Apex Court in paragraphs 4, 5 and 6 of the judgment in Nepal Singh Tanwar’s case and paras 4 and 5 of the judgment in H.R, Kasturi Rangan’s case, it cannot be said that the law declared by the Supreme Court in Syed Khalid Rizvi’s case and Vipinchandra Hiralal Shah’s case, on which the opinion of the Tribunal rests, is in any way dilated or altered. Be that as it may, in no judgment cited before us by both the sides, the precise question that falls for consideration in this case arose for decision making.
18. Although before us it was debated as to whether the proviso added to Regulation 5(1) by 2000 Amendment is clarificatory or substantive in nature, there is no need for us to undertake the adjudication of that question and resolution of that question is not necessary for us for the purpose of disposing of the present writ petitions, for we have held that 1997 Regulations did not require the Selection Committee to prepare a common list for all years concerned. We would rather rest our opinion on that basis without going into the question whether the subsequent amendment brought in the year 2000 by inserting the proviso to Sub-regulation (1) of Regulation 5 is clarificatory in nature or not.
19. This takes us to the kind of relief that we may grant in these writ petitions, having regard to the subsequent developments brought to our notice. It is seen that if the Selection Committee were to conduct separate selection process by drawing up separate list to fill up one vacancy that occurred in the year 1998, the applicant alone could have been selected to IPS inasmuch as the other two candidates who could have come under zone of consideration were admittedly found to be ‘unfit’. Of the three selected candidates, Sri S.S. Annegowda, petitioner in Writ Petition No. 14842 of 2001 died during the pendency of the writ petition. Since, the two others including Sri S.S. Annegowda who would have come under zone of consideration with regard to the vacancy that occurred during the year 1998 are found to be unfit, they would be unfit for consideration even with regard to the two vacancies that arose in the year 1999. In that view of the matter, there is no need to disturb the appointment of the two writ petitioners to the IPS viz., K.H. Srinivasan (petitioner in W.P. No. 14837 of 2001) and H.N. Siddanna (petitioner in W.P. No. 14843 of 2001).
20. In the result, we dispose of these writ petitions and, in substitution of the impugned Order of the Tribunal, we direct the official respondents to appoint the applicant B. Kamalanabhan to the IPS against the vacancy that occurred in the year 1998 with effect from 18-1-2000, the date of the notification impugned before the Tribunal with all consequential benefits, pecuniary and otherwise, flowing therefrom. In the facts and circumstances of the case, the parties shall bear their respective costs.
21. Sri V.Y. Kumar, learned Government Advocate, is granted four weeks time to file memo of appearance on behalf of respondent-State authorities in all the writ petitions.