Home » Landmarks » Union of India vs Rahul Rasgotra


DATE OF JUDGMENT: 01/02/1994
1995 AIR 2237 1994 SCR (1) 508
1994 SCC (2) 600 JT 1994 (1) 441
1994 SCALE (1)336

The judgment of the Court was delivered by VERMA,J.–Rahul Rasgotra, Respondent 1 in Civil appeal No.5414of 1992 was selected for the Indian Police Service in the combined Civil Service Examination held in theyear 1988, while Desh Raj Singh, 603 Respondent I in Civil Appeal No, 3844 of 1993 was selected for the Indian Police Service in the combined Civil Services Examination held in the year 1989. Rahul Rasgotrawas, therefore, a probationer in the IPS belonging to the1989 batch,while Desh Raj Singh was an IPS probationer ofthe 1990 batch. Rahul Rasgotra was granted exemptionfrom joiningtraining with other probationers of the 1989 batch of IPSsince he wanted to appear in the nextexamination held in the year 1989 in an attempt to improve his prospects by getting selected for a better service. However, he did not succeed and he joined the training in August 1990 as an exempted probationerof the 1989batchalongwith probationers of the 1990 batch. Desh Raj Singh hadalso sought permission to appear in the. next examination but he later withdrewhis request and joined the training along with the probationers of the 1990 batch. Rahul Rasgotra was ranked168 in the 1989 batch and according to his rankthe cadre allocation made to him on December 28, 1989 was in the joint cadre of the States of Manipur and Tripura. There is no dispute that according to his rank in the 1989 batch, the cadre allocated to him is appropriate.The claim of Rahul Rasgotra is that the cadre allocation to him should bemade treating him as a probationer along with the 1990 batchand not 1989 batch since as an exempted probationer of the 1989 batch he had joined the training along with probationers of the 1990 batch; and on this basis, he would get allocation to thecadre of a State better than Manipur and Tripura.

However, he does not indicate the manner in which he can be mixed with probationers of the 1990 batch or be given a rank with them. Desh Raj Singh was allotted the Orissa cadre as a probationer of the 1990 batch, but he claimed allotment to his home State of Uttar Pradesh. He too is aggrieved by the allotment of Orissa cadre to him. Both ofthem filed applications before the Central Administrative Tribunal challenging the cadreallotment. Their claim hasbeen allowedby the Tribunal. Hence these appealsby special leave are filed by the Union of India.

2.We may now refer to some relevantprovisions. The IndianPoliceService(Cadre) Rules, 1954providefor constitution of cadres, allocation of membersof various cadresand certain ancillary matters.Rule 2(a) defines ‘cadreofficer’ to mean a member ofthe Indian Police Service. Rule 3 provides that there shall beconstituted for each State or group of States an Indian Police Service Cadre.Rule 4 deals with the strength and composition of each of the cadres constituted under Rule 3. Rule 5 which is material reads as under :

“5. Allocation of members to various cadres.- (1) Theallocation of cadre officer tothe various cadres shall be made bythe Central Government in consultation with the State Government or State Governments concerned.

(2)The Central Government may,with the concurrence oftheStateGovernments concerned, transfer a cadre officer fromone cadre to another cadre.” 604 Sub-rule (1) of Rule 5, in terms, requiresthe Central Government tomake allocation of cadre officers tothe various cadres in consultation with the State Government or State Governments concerned.Sub-rule (2)of Rule 5 provides for transfer of a cadre officer from one cadre to anotherby the Central Government with the concurrence of the State Governments concerned.

3.The main argument in these appeals by Shri P.P. Rao, learnedcounsel forRespondent I is thatthe cadre allocation canbe made by the Central Governmentin accordance with sub-rule (1) of Rule 5 only of a ‘cadre officer’ as defined in Rule 2(a) which means a member of the Indian Police Service; and, therefore, it can be made of an officeronly when he has become a member ofthe Indian PoliceService by appointment to the Service which happens when the officer concerned joins the training onhis appointment and not earlier.The argumentis that on selection as a result of the competitive examination and allotment ofa particular Serviceto thesuccessful candidate, he does not become a member of the Service which happens only when he is appointed to the Service by joining the training.On this basis, it was contended, that Rahul Rasgotra having joined the training in August 1990,the cadre allocation made in his case in December1989 after being exempted from joining the training alongwith other officers of the 1989 batch, was made when hewas not a ‘cadreofficer’ whichhe became only in August 1990 on joiningthe training with officers of the 1990batch.It was submitted, that the cadre allocation of Rahul Rasgotra in December 1989 being made prior to hisjoiningthe training in August 1990, the power under Rule 5(1) wasthen not available and a fresh cadre allocation has to be made in his case on the basis of facts existing in August 1990 along with the officers of the 1990 batch who hadjoinedthe training at the same time. The submission is, that onthis basis he expects allocation to a better cadre to which he is entitled on consideration for cadre allocationalongwith officers of the 1990 batch.

4.We find no merit in the contention of Shri P.P. Rao, learned counsel for Respondent 1.

5.The Indian Police Service (Recruitment) Rules, 1954 define’directrecruit’ in Rule 2(aa) to mean a person appointed to the Service after recruitment under clause(a) of sub-rule (1) of Rule 4. Rule 4 deals with method of recruitment to the Service and clause (a) of sub-rule(1) thereinprovides the method of a competitiveexamination.

Rule 4(2) requires determination of number of persons to be recruited by each method of recruitment on each occasion as may be required to fill the vacancies during any period of recruitment. Rule 6 provides for appointments tothe Serviceby the Central Governmentaccording tothe prescribed methods. Rule 7deals with recruitment by competitive examination. Respondent I in both these appeals were so appointed.

6.The Indian Police Service (Appointment by Competitive Examination) Regulations, 1955 have been framed in pursuance of Rule 7 of 605 the Indian Police Service (Recruitment) Rules, 1954, wherein Regulation 7 providesfor preparation of the list of successful candidatesarranged in order of merit ofthe candidates as a result of the competitive examination.

7.The Indian Police Service (Probation) Rules, 1954, in Rule 2(e), define ‘probationer’ to mean a person appointed to theService on probationand include an exempted probationer when heis appointed to the Serviceon probation. Rule 2(ee) defines ‘exempted probationer’ to mean a person ‘who, on being allocated to the Service,’has expressed his intention to appear at the nextexamination and has been permitted to abstain from probationary training in order to so appear.Obviously, allocation to the Service is complete in the case of an ‘exempted probationer’ also.

It isin this sense that Rahul Rasgotra wasan exempted probationer of the 1989 batch.Rule 3 relates to period of probation. Rule 5 deals with training of the probationers.

Rule 10 therein relates to seniority of probationersand reads as under :

“10. Seniorityof Probationer.- (1)The Central Government shall prepare a list in two parts of all probationers who are appointed to the Service onthe results of thesame competitive examination.The first part shall consist of the probationers other thanthe exemptedprobationers and thesecondpart shall consist of the exempted probationers who were selectedat thesamecompetitive examination. The probationers included in the first part shall be placed en bloc abovethe exemptedprobationers included in the second part. The list shall be arranged in the order of merit whichshallbe determinedin accordance withthe aggregateof marks obtainedby each probationer or exempted probationer, as the case may be- (a) at the competitive examination;

(b) inrespectof his recordin theLal BahadurShastri National Academyof Administration and theSardarVallabhbhai Patel National Police Academy; and (c) at the final examination:

Provided that if two or more probationers have secured equal number of marks in the aggregate, their order of merit shall be the order of their dates of birth.

(2)Theseniority inter se of the probationers, who are assigned the same year of allotment, shall be determined in accordance with the list prepared under sub-rule (1).” (emphasis supplied) 8.The Indian Police Service (Regulation of Seniority) Rules, 1988 are also material.Rules 3 and 4,insofar as they are material, read as under:

“3. Assignmentof year of allotment.-(1) Every officer shall be assigneda year of allotmentin accordance with the provisions hereinafter contained in these rules.

(2)The year of allotment of an officer in Service at the commencement ofthese rules shall be the same as has been assigned tohim or may be assigned to him bythe Central Government in accordance 606 with therules, orders and instructions in force immediately before the commencement of these rules.

(3)The year of allotment of an officer appointedtothe serviceafterthe commencement ofthese rules shall beas follows- (i)The year ofallotment of a direct recruit officer shall be the year following the year in which the competitiveexamination was held :

Providedthat in thecase of exempted probationers, asdefined in clause (ee) of Rule 2 of the IPS (Probation) Rules, 1954, and direct recruit officers, who are permitted to join probationary training under sub-rule (1) of Rule 5 of the IPS (Probation) Rules, 1954, with the direct recruit officers of a subsequent year of allotment, they shall be assignedthat subsequent year as the year of allotment.

*** 4.Inter se seniority of the officers.- The inter seseniority of the officers whoare assignedthe same year of allotment shall be in the following order and in each category the inter se seniority shall be determined in the following manner- (i)Direct recruit officers shall be ranked inter se in the order of merit as determined in accordance with Rule 10 ofthe Indian Police Service (Probation) Rules, 1954;

*** These are the relevant provisions in the present context.

9.It may also be mentioned that an explanation was added at the end of sub-rule (1) of Rule 5 of the Indian Police Service(Cadre) Rules, 1954by a Government of India Notification published in the Gazette of Indiaon January 13, 1993 which is deemed to have come into force on January 1, 1988. It reads as under :

“Explanation : For the purposes of thissub- rule, ‘cadre officer’includes a person allottedto the Indian Police Service onthe basis of a competitive examination held under sub-rule(1) of Rule 7 of the Indian Police Service (Recruitment) Rules, 1954 readwith the Indian Police Service (Appointment by Competitive Examination) Regulations, 1955 and grantedextension of time tojointhe service.” It does appear that this retrospective amendmentby insertion of the explanation in sub-rule (1) of Rule 5 is clarificatory in nature and was made as a result of the view taken by theCentralAdministrativeTribunal insuch matters. With this explanation, there can be no doubtthat an exempted probationer like Rahul Rasgotrawould be a ‘cadre officer’ for the purpose of the Indian Police Service (Cadre)Rules,1954 for exercise of the power of cadre allocation to him in accordance with Rule 5 even before he joins the training. The question is : Whether this wasthe position evenwithout the explanation to sub-rule (1) of Rule 5? We have no doubt that this was so.

607 10.Thevarious stepsleading to the selection and appointment of a candidate to an All India Service likethe Indian PoliceService as aresultofa combined competitive examination and allocation of the State Cadre to him are these, namely, (i) competitive examination;(ii) selection in the competition and determination of his order of merit; (iii) allocation of the particular All India Service to him based on his position in the order of merit;

and (iv) allocation of the State Cadre to him. Itis, therefore, obvious that allocation of the State Cadre is made after the stage for allotting the particular All India Service like the Indian Police Service has been made, to the selected candidate. The object andpurpose of cadre allocation to the selected candidate who has been allocated to a particular Service is merely toindicate the State Cadre to which he would belong in the service and it isnot necessary forthis purpose for him to actually jointhe training. The number of total vacancies in the serviceand those available in the State Cadres for a particular batch being known and so also the total number of candidates selected atthe competitive examinationwith their comparative position in order of merit, nothing more is neededto perform the exercise of cadre allocation at that stage and no useful purpose is served by postponingthat exercise to a later date. There is thus no reason whythe cadre allocation is required to be deferred till a candidate has joined the training after being allotted the particular Servicelike the Indian Police Service on the basis ofhis comparative position in merit among the selected candidates.

The only question, therefore, is : Whether the Indian Police Service(Cadre) Rules, 1954 forbid performance ofthis exercise before the officer has actually joined the training after being allotted to the Indian Police Service? 11.`Exempted probationer’ in Rule 2(ee) of the Indian Police Service (Probation) Rules, 1954 is defined to mean a personwho, on being ,allocated’ to the Service, hasbeen permitted to abstain from probationary training in order to appearat the next examination. It is, therefore, clear that allocation of the Indian Police Serviceto himhas already been made and but for the exemption granted tohim, he would be required to join the probationary training.In other words, for all practical purposes, he istreated as probationer of the Indian Police Service and it is forthis reason that he seeks and is granted the exemption permitting him toabstain from probationary training for thetime being.This incidentof granting exemption is itself indicative of the fact that for all practical purposes, he is treated as a member of the Indian Police Service and is granted exemption from commencing his probationary training.

There is thusno reason why for thepurpose of cadre allocation, hecannotbe treated asa probationerand, therefore, a member of the Indian Police Service. Rule 10 of the Indian Police Service (Probation) Rules, 1954 dealing with seniority of probationers also givesthesame indication. Rule 10 requires one common list, even though in two parts, of all probationers who are appointed tothe Serviceon the results of the same competitiveexamination of which the first part consists of probationers otherthan exempted probationersand the second partconsists of exempted probationers who were selected at the same 608 competitive examination; and those in the first partare placeden bloc above the exempted probationers included in the second part. Thus, the exempted probationers arealso treatedas probationers selected at the samecompetitive examination and areincluded in the common listof probationers of the same batch with the only difference of a possible lossof seniorityin thesame batch to a probationer lower in order of meritin thecompetitive examination in case the probationer who ranked lower in the examination result is in the first part of the list.This being the only difference as a consequence of thelate joining of training of an exempted probationer, it is clear that the Indian Police Service (Probation) Rules, 1954read as a whole treat the exempted probationeralso as a probationer ofthe same batch for allpractical purposes and, therefore, as a member of the Indian Police Service of the same batch as any other probationer of that batch who is not an exempted probationer. The meaning of ‘cadre officer’ in Rule 5(1) of the Indian Police Service (Cadre) Rules, 1954 has, therefore, to be understood to mean a member of the Indian Police Service in this manner, or in other words a probationer so understood.

12.Thisview is alsoin accord with thepractical consequence thereof.If the submission of Shri P.P.Rao were to be accepted, there is no provision in the relevant rules to work out the same. The officers selected atthe same competitive examination and,therefore, being probationers of the same batch, are placed in one combined list for the purpose of seniority prepared in accordance with Rule 10 of the Indian Police Service (Probation) Rules, 1954, while those of the next year’s competitive examination belongto thesubsequent batch andare ina separate seniority listprepared under Rule 10. Even thoughthe exempted probationerscommence their trainingwith probationers of the next batch, the rules do not provide for inter se ranking ofthe exempted probationers ofthe previous batch along with the probationers of the next batch or forcadre allocation of exempted probationers against vacancies forthe next batch meant for thenext years’ probationers. If thesubmission ofShri P.P. Rao be correct, there has to be some mode prescribed in the rules for that purpose also. The absence of any such provision in the rules isa clear indication that the exempted probationers are to be treated as probationers of thesame batch along with all those selected at the samecompetitive examination and this has to be for all purposes including their cadre allocation which has reference to the available vacancies meant forofficers selected at thesame competitive examination and, I therefore, tothe corresponding cadre allocation for the entire batch ofthe same year, there being no method forintermixing ofany probationer includingthe exempted probationer oftwo different batches for the purpose of cadre allocation.For a harmonious construction of all the relevantprovisions, the meaning of ‘cadre officer’ in Rule 5(1) ofthe Indian Police Service (Cadre) Rules, 1954 must be so understood and construed and this also promotes the object and purpose of cadre allocation to be made thereunder. Theexplanation added in sub-rule (1) of Rule 5 retrospectively from January 1, 1988 is obviously to clarify thisposition which is implicit in the provisions even without the aid of this explanation.

609 13.On the above view, the claim made by RahulRasgotra, Respondent I in Civil Appeal No. 5414 of 1993 is untenable.

The claim of Desh Raj Singh, Respondent I in Civil Appeal No. 3844 of 1993 is even more tenuous in view of thefact that he was not even an ‘exempted probationer’ since he withdrew his request for permission to appear at thenext examination. The view taken by theTribunal thatthe retrospective amendment of Rule 5(1) by insertion ofthe Explanation therein w.e.f. January 1, 1988 isinapplicable to theapplication of Desh Raj Singh,whichwas pending beforethe Tribunal at the time the amendment was made, is untenable in view of the construction we have made ofthe provisions andour view that the Explanation is merely clarificatory of the existing position.

14.Before parting with this case, weare constrained to place on record our deep distress at the manner in which the cases on behalf of the Government aregenerally conducted even in this Court and also when the Government comes to this Court to overcome the consequence of an adverse order made against it. We do so with a feeling almost of despair since our constant lament orally and, at times, even in writinghas so far evinced no appropriate responsefor improvement. On a similar occasion, this Court in Union of India v. A. Radhakrishnan, observed thus : (SCC p. 209, para 1) “This matter brings to the fore once again the ineptitude with which litigation is conducted quite often on behalf of the Government of India and State Governmentsevenwhen importantissueshavinglasting andwide repercussions are involved. The point in this case relates to the validity of a policy of the railway administration and is likely to affect the staff pattern in several units. In spite of this fact, to support validity of the impugnedpolicy the required materialswere not produced in the High Court and to overcome the adverse decision several opportunities given byus to produce the entire relevant record were not availed. The learned Additional Solicitor General informed us after several adjournments that betterperformance is not possible.We, therefore, concluded the hearing and proceed to decide on the available materials. It is indeed fortunate forthe appellants thatour conclusion is in their favour…….

There is no improvement in the situation. An argumentwas advanced on behalf of the respondents that the cadre allocation to Respondent 1 was made prior to allotment of the Service to him on account of which it was invalid.

Material documents to negative thesame must bein possession ofthe Government of India but they werenot produced before the Tribunal or even before us, in spite of opportunity given by us. The learned Additional Solicitor Generalexpressed his utter helplessness in the matterand informed us that his efforts to obtain and produce those documents from the authorities concerned had failed.This shows the apathy of the persons responsible for the conduct of the case on behalf of the Government of India. Weare not sure whether such lapses of the persons responsiblefor conduct 1 1991 Supp (2) SCC 208: 1992 SCC (L&S) 145 :(1992) [1991] INSC 220; 19ATC 308: (1991) 3 SCR 895 610 of the case on behalf of the Government are deliberate or inadvertent but they are certainly culpable which need to be investigated by the authorities concerned to identifythe delinquents and punish them in public interest.It istime that the derelicts are also held accountable and liablefor the loss of public money due to their lapses. The stage is now reached for taking drastic stepsto arrest further decadence and to implement the avowed promises held outfor improvement of the working of the system. Governments being the largest litigants, radical improvement is needed inthe functioning of theirmachinery byreducing frivolous litigation andensuring proper conduct of the necessary litigation. Unless the desirable steps in this behalfare taken in theright earnest, any number of seminarsand conferences todevise means for reducing thebacklog in courts is an exercise in futility and the resolutionsmade therein, are empty slogans. We reiterate this with the fond hope that the authorities concerned would wake up tothe true malaise and work to make the programme of improving its machinery, a reality.

15.Consequently, boththese appeals are allowed. The impugned orders made by the Tribunal in both cases areset aside resulting in dismissal of theapplications filed beforethe Tribunal by Rahul Rasgotra and DeshRaj Singh.

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