Case Note & Summary
The dispute arose out of seniority and year of allotment in the Indian Police Service between a direct recruit officer and promote officers. The appellant was appointed to the Indian Police Service on September 20, 1980 and allotted to the Andhra Pradesh cadre. He completed four years of service on September 19, 1984 but was not promoted to the senior scale because he had not passed the language test. He challenged this before the Central Administrative Tribunal in O.A. No. 414 of 1987, which by order dated January 13, 1988 directed the Government of India to consider him for promotion without insisting on the language test. The State of Andhra Pradesh's special leave petition against that order was dismissed on February 18, 1991. To implement the direction, the Government of India issued an order on June 18, 1992 under Rule 4 of the Indian Police Service (Regulation of Seniority) Rules, 1954 granting senior time scale to the appellant with effect from September 20, 1984 and amending the Gradation List to place him above nine promote officers, including respondents 4, 5 and 6. Respondents 4 and 5 filed joint O.A. No. 823 of 1992 and respondent 6 filed O.A. No. 919 of 1992 before the Tribunal, contending that they had been included in the Select List of 1983 and had officiated in senior time scale posts from February 23, 1984, February 29, 1984 and March 6, 1984 respectively until their substantive appointment in October 1984. They relied on Rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules, 1954 as it stood at the relevant time, arguing that their seniority should be reckoned from the dates of officiation and hence their year of allotment should remain 1979, not be changed. The appellant contested this by invoking Rule 9 of the Indian Police Service (Cadre) Rules, 1954, arguing that non-cadre officers could officiate in cadre posts only if the State Government was satisfied that the vacancy would not last more than three months or that no suitable cadre officer was available, and that continuance beyond three months required reporting to the Central Government. The Union of India supported the appellant's position that the respondents' officiation was not in cadre posts. The Tribunal allowed the respondents' applications, set aside the order dated June 18, 1992, and held that the year of allotment should remain 1979. The Tribunal relied on an internal communication dated June 26, 1993 from the Secretary, Andhra Pradesh State Government to its special counsel to conclude that the respondents had officiated in senior cadre posts. The Supreme Court found that the Tribunal had failed to consider the appellant's Rule 9 contention, which was his principal defence, and had relied on a document that was neither a formal order nor filed with a proper affidavit, but merely written instructions from client to lawyer. The Court held that the communication did not support the conclusion of officiation in senior cadre posts, as it referred only to senior posts. Accordingly, the Supreme Court set aside the Tribunal's order and remanded the two original applications for fresh disposal in accordance with law and the observations made, requesting expeditious disposal as the respondents were nearing retirement. No order as to costs was made.
Headnote
A) Service Law - Seniority and Year of Allotment - Indian Police Service (Regulation of Seniority) Rules, 1954, Rule 3(3)(b) - The Tribunal relied on Rule 3(3)(b) as it stood before 1987 to assign year of allotment based on continuous officiation in senior posts, but the Supreme Court found that the Tribunal failed to consider whether the officiating posts were cadre posts. The seniority dispute involved distinction between cadre and ex-cadre posts, and the Tribunal's assumption that officiation was in cadre posts based on an unfiled communication was flawed. Held that the matter required fresh consideration in light of Rule 9 of Cadre Rules. (Paras 1-4) B) Service Law - Cadre Post Officiation - Indian Police Service (Cadre) Rules, 1954, Rule 9 and sub-rule (2) - The appellant contended that non-cadre officers could only officiate in cadre posts under strict conditions, including satisfaction of no suitable cadre officer and reporting of extensions beyond three months. The Tribunal failed to consider this statutory challenge. Held that the appellant's grievance was well founded and genuine as the Tribunal did not advert to Rule 9 contentions at all. (Paras 1-4) C) Evidence - Legally Admissible Material - Indian Police Service (Cadre) Rules, 1954, Rule 9 - The Tribunal relied on a communication dated 26.6.1993 from Secretary, Andhra Pradesh State Government to special counsel, which was not a formal order and not filed with affidavit. The Supreme Court held that written instructions to a lawyer cannot be treated as evidence. Held that the Tribunal was not justified in entertaining the communication, and the communication did not support the conclusion that respondents officiated in senior cadre posts, as it referred only to senior posts. (Paras 3-4) D) Procedural Law - Remand - Not mentioned - The Supreme Court set aside the Tribunal's order and remanded the applications for fresh disposal, directing consideration of the appellant's Rule 9 plea and proper evidence. Held that since the Tribunal did not approach questions from proper perspective and based its finding on inadmissible material, remand was necessary; expeditious disposal requested as respondents were nearing retirement. (Paras 3-4)
Issue of Consideration
Whether the Central Administrative Tribunal erred in failing to consider the appellant's contention based on Rule 9 of Indian Police Service (Cadre) Rules, 1954 regarding legality of officiating promotions of respondents in cadre posts; whether the Tribunal could rely on a communication dated 26.6.1993 addressed to special counsel which was not an order or supported by affidavit to conclude that respondents officiated in cadre posts; whether Rule 3(3)(b) of Indian Police Service (Regulation of Seniority) Rules, 1954 as it stood prior to 1987 required year of allotment to be based on continuous officiation in senior posts irrespective of cadre status.
Final Decision
Supreme Court set aside the Central Administrative Tribunal's common judgment and remanded the two original applications for fresh disposal in accordance with law and observations. It held that Tribunal failed to consider Rule 9 contention and improperly relied on an unfiled communication; requested expeditious disposal as respondents nearing retirement. No order as to costs.
Law Points
- A tribunal must consider all pleaded statutory grounds
- especially Rule 9 of Indian Police Service (Cadre) Rules
- 1954
- written instructions to counsel are not evidence and cannot form basis of findings
- findings must be based on formally filed and admissible material
- failure to consider material contentions and reliance on inadmissible document vitiates decision
- seniority of promote officers under Rule 3(3)(b) of Indian Police Service (Regulation of Seniority) Rules
- 1954 requires determination whether officiation was in cadre posts
- continuous officiation alone does not determine year of allotment unless cadre status is established.
