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TMI Blog1995 (10) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive member of a State Police Service. Under Sub- Rule(2) of Rule 6 of the Recruitment Rules, the initial appointment of person recruited to the service under Clause (a) of Sub-Rule (1) of Rule 4, shall be in the junior time scale of pay and under Sub-Rule (3) of Rule 6 the initial appointment of person recruited to service under Clause (b) of Sub-Rule (1) of Rule 4 shall be in the senior time scale of pay. Thus an officer of the State Police Service on being promoted is recruited in the senior time scale of pay of the Indian Police Service. Rule 9 of the recruitment Rules provides that the Central Government may on the recommendation of the State Government concerned and in consultation with the Commission, recruit to the service persons by promotion from amongst the substantive members of a State Police Service in accordance with such regulation as the Central Government after consultation with the State Government and the Commission from time to time make. In pursuance of Sub Rule (1) of Rule 9 of the Recruitment Rules, the Regulation has been framed for appointment by promotion to the Indian Police Service called the Indian Police Service (Appointment by Promotion) Regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment intimated the High Court on 11.3.1985 that the Selection Committee has reconsidered the case of Shri O.S. Singh and necessary recommendation in being made to the Union Government for appropriate orders. The High Court, therefore, directed that the final decision be taken in the case of Shri O.S. Singh on the recommendation of the Selection Committee. On 5th July, 1985, the Standing counsel appearing for the Union of India intimated the Court that the Government of India has taken the decision to appoint Shri O.S. Singh to the Indian Police Service with effect from 31.3.1976 and that his seniority will be determined accordingly. In view of the aforesaid decision of the Government of India the Writ Petition filed by Shri Singh became infructuous and was withdrawn with the liberty to approach the Court again, if any part of the relief is not finally granted. The Government of India by its letter dated 23rd July, 1985, intimated Shri O.S.Singh that his year of allotment under Rule 3 (3) (b) of the IPS (Regulation of Seniority) Rules, 1954, (hereinafter referred to as the Seniority Rules ) is 1970 and the inter se seniority of the officers was also indicated therein whereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the period from 31.3.1976 till 30.3.1978 can be ignored. Mr. Gautam, learned counsel appearing for respondent No. 4, Shri Ashwini Kumar, on the other hand contended that in view of the decision of this Court in Syed Khalid Rizvi Ors. etc. v. Union of India Ors. etc. (Judgment Today (Suppl.) 169), the year of allotment of Shri Singh has to be determined in accordance with Rule 3 (3)(b) of the Seniority Rules and that being so said Shri Singh having continuously officiated in a senior scale of pay in the Indian Police Service with effect from 30.3.1978, the Tribunal rightly determined the year of allotment of Shri Singh as well as the inter se seniority of Shri Singh and Shri Ashwini Kumar. He further contended that the retrospective appointment of Shri Singh to the Indian Police Service with effect from 31.3.1976 is of no consequence for determining his year of allotment and the same has to be determined under Rule 3(3)(b) of the Seniority Rules and the Tribunal has not committed any error by holding Shri Ashwini Kumar to be senior to Shri O.S. Singh. In view of the rival submissions at the Bar the question that arises for consideration is whether the year of allotment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian Police Service is in the senior time scale of pay. When Shri Singh was appointed to the Indian Police Service with effect from 31.3.1976 in the eye of law it must be held that he has been continuing in the senior post with effect from that date and therefore, his seniority vis-a-vis the direct recruits like respondent No. 4 cannot be determined by determining his factual officiation in a senior post with effect from 30.3.1978. The benefit conferred upon him on reconsideration and appointing him to the Indian Police Service retrospectively with effect from 31.3.1976 cannot be taken away for the purpose of determining his year of allotment and seniority in the cadre. The Central Administrative Tribunal, in our considered opinion, committed error in totally ignoring the effect of retrospective appointment of Shri Singh to the Indian Police Service with effect from 31.3.1976. Taking this into consideration the Central Government rightly determined the year of allotment of Shri Singh as well as inter se seniority vis-a-vis the respondent No. 4 Shri Ashwini Kumar in its letter dated 23rd July, 1985. In fact in A.K. Chowdhary's case (supra), in somewhat similar circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made between a substantive appointment and an officiating appointment''. While substantive appointment confers on the person so appointed a substantive right to the post, an officiating appointment does not confer any such substantive right. The appointment on officiating basis is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post Such an officiating appointment conies to an end on the return of the incumbent substantively holding the post from leave in the former case or a substantive appointment being made to that permanent post in the latter case. An appointment on officiating basis, is from the very nature of such employment, itself of a transitory character and, under the ordinary law of master and servant, Ls terminable at any time. (See : Parshotam Lal Dhingra v. Union of India, [1958] SCR 828 at p. 841-842). The expression Officiated continuously in a senior post in Rule 3(3)(b) of the Seniority Rules must, therefore, be construed to mean holding a senior post on officiating basis prior to substantive appointment on such senior post. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be supplied by the Court by judicial construction and that it is for the law making authority to remove the defect. (See: Smt.Hira Devi and Ors. v. District Board, Shahjahanpur, [1952] SCR 1122 at p. 1131, and Nalinakhya Bysack v. Shyamsunder, [1953] SCR 533 at p.545). Here also the approach is that the Court cannot so interpret a statute to produce a casus omissus where there is really none. (See : The Mersacy Docks Harbour Board v. Penbusan Brothers, (1885) 13 A.L. 595 at p, 602; State of Karnataka v. Union of India, [1978] (2) SCR 1 at p. 65. The other view has been thus put forward forcefully by Denning, L.J., as the learned Master of Rolls then was in Seaford Court Estates Ltd v, Asher, [1949] 2 All E.R. 155 : When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer who was denied promotion with effect from the date on which he should have been so appointed by way of promotion. Such an officer may have officiated in a senior post prior to the passing of the order of substantive appointment but he may not have officiated in a senior post prior to the date from which he has been substantively appointed. Once the error in the matter of his promotion is rectified and he has been given substantive appointment from an anterior date on which he should have been promoted the year of allotment has to be assigned to him having regard to the date from which his substantive appointment becomes operative even though he did not officiate in a senior post prior to the said date of substantive appointment. His year of allotment cannot be depressed on the basis that he had started officiating on a senior post from a date later than the date with effect from which he has been substantively appointed to the Service. We arrive at the same result if we proceed on the basis that there is a casus omissus in Rule 3(3)(b) in the matter of assignment of year of allotment for an officer appointed by promotion who has not officiated prior to his substantive a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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