D. Basu, J.
1. Though the affidavits on either side, in this case, are longish documents, the real issue between the parties is one of interpretation of certain rules relating to the Indian Police Service, which has to be determined with reference to certain landmarks in the career of the petitioner, which are substantially admitted.
2. The petitioner was commissioned in the Indian Army as a Second Lieutenant on 12 April 1942, and promoted to the rank of Major In April 1945.
3. On 10 January 1949, the services of the petitioner were lent by the Defence Department of the Government of India to the Province of West Bengal, to cope with the unusual situation arising out of the partition of India and the petitioner was posted as a Commandant in the Special Armed Police Battalion of West Bengal, which post was acknowledged by the Government of West Bengal as ' a senior scale Indian Police Service post, which may temporarily be held by an Army officer of the rank of a Major ...' (annexure B to the petition, dated 10 April 1950; annexure C, Para. 1),
4. Though the Initial loan was for a period of three years, it was extended from time to time at the instance of the State of West Bengal until 1 July 1953, when the petitioner was absorbed in the State Police Service, appointing him to be a probationary Deputy Superintendent of Police with effect from that date (vide annexure C to the petition, Para. 1). But though the petitioner was thus absorbed in the State Police Service, terminating his deputation from the Government of India, his seniority in the State Police Service was not determined until 1956, which by its Memorandum No. 4439 of 15 December 1956 (annexure C to the petition), the State Government ordered as follows:. the question of fixation of pay and seniority of these officers in the West Bengal Police Service has been considered by Government and if has been decided that for the said purpose their past service from the dates on which they joined as Second Lieutenant in the Army should be counted ...
A. R. Mukherjee will be deemed to have entered the West Bengal Police Service on 12 April 1942, on which date he Joined as Second Lieutenant in the Army...
5. On 31 July 1958, the petitioner was appointed on probation to the Indian Police Service under the Special Recruitment Scheme, i.e., in terms of the Indian Police Service (Special Recruitment) Regulations, 1957, framed in accordance with the provisions of Rule 9 (6) of the Indian Police Service (Recruitment) Rules, 1954, and the petitioner was confirmed in that appointment, with retrospective effect from that date (i.e., 31 July 1958), by the letter No. (sic) 15 April 1959/11 August 1959, which is at annexure G to the petition, and annexure H.
6. The dispute as to the petitioner's seniority in the Indian Police Service cadre started with the letter at annexure I to the petition, dated 3 November 1958, by which the petitioner requested the Inspector-General of Police to move the Government of India to fix the petitioner's seniority in the all-India cadre at an early data, by specifying the 'year of allotment' in respect of the petitioner-presumably under Rule 3 (3) of the Indian Police Service (Regulation of Seniority) Rules, 1954, read with the last part of Rule 2 (g) thereof, by which a post declared by the State Government as equivalent to a post included under item 1 of the schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1956, was to be treated as a ' senior post ' for the purposes of the Regulation of Seniority Rules, 1954. In this letter, the petitioner mentioned the particulars of some other officers, officiating in a senior post, presumably for the purpose of determining the standard for applying Sub-rule (3) of Rule 3 (3) of the Regulation of Seniority Rules, and the substance of his claim was that his ' year of allotment' should be 1943. The reply of the Government; of India (dated 14 February 1959) to this letter of the petitioner is at p. 55 of the petition, forwarded with annexure J. This reply of the Government of India has to be carefully remembered because it is the stand taken by the Government of India at the earliest point of time, which has been subjected to the risk of being obliterated by the changes introduced by the subsequent correspondence, in the background of the complexity of the rules, which will be explained presently:
(a) The stand taken in this letter at annexure J (p. 55) is clearly one under Rule 3 (3)(&) of the seniority rules, read with proviso 2 thereof. Two proposition asserted by the Government of India in this letter are material:
(i) The first Is that ' the ' fit list' of State Police Service officers prepared in 1955 which contained the names of D. Lahiri, H. K Bhattacharyya, A.R. Mukherjee (petitioner)... was regarded by the Union Public Service Commission as ' fit for trial' list and not as a select list. The names of Lahiri, Bhattacharyya, Mukherjee ... appeared for the first time in the select list which was approved by the Union Public Service Commission in their letter, dated 20 September 1956. In accordance with the Instructions contained in the Ministry of Home Affairs letter No. 3/35/57-A.I.R. (II), dated 17 May 1957, the officiation in a senior scale post of the State Police Service officers included in the ' fit for trial' list cannot be counted for purposes of determining the seniority of such officers and as such all officiation before 20 September 1956 has to be ignored in all these cases.'
(ii) ' In accordance with Rule 3 (3) of the Indian Police Service (Regulation of Seniority) Rules, 1954, Lahiri, Bhattacharyya, Mukherjee ... have to be allotted to the year 1951. As in oases of all these officers the approved officiation is from a date later than the date of promotion to the senior scale of S. Basu, a direct recruit of 1951 seniority, namely, 1 September 1956, the Government of India have, therefore, decided that all the five officers should be finally allotted to the year 1951.
(b) Petitioner could not, however, welcome this decision of the Government of India and made a representation, on 30 April 1959 (annexure K), in which he reiterated his claim that he should be given the same year of allotment as R. N. Chatterjee, i.e., 1943 (R. N. Chatterjee, having been appointed Deputy Superintendent of Police on 1 March 1942); No reply to this representation was received until October 1960, by which time the Indian Police Service (Seniority of Special Recruits) Regulations, 1960, came to be promulgated. By this reply (annexure M, dated 11 October 1960), the Government of India revised their earlier decision and allotted the year 1948 to the petitioner. The reason for reconsideration, as given in this communication, was-. on reconsideration, the Government of India have in consultation with the Public Service Commission (?) finally decided to allot A.R. Mukherjee to the year 1948.There is no indication in this letter why the Public Service Commission or the Government gave up their previous stand that no officiation by the petitioner prior to September 1956 could be counted for the fixation of his year of allotment or how the previous allotment of 1951 was wrong.
(c) Most curious is the fact that though in the decision of October 1960, the Government of India asserted their allotment of 1948 to be a final decision, it did not remain final for long. The petitioner lost no time to submit a memorial to the President of India on 12 December 1960 (annexure N. p. 48) and urged that he should be allotted the year 1942, at par with R. Gupta or the year 1943, at par with R. N. Chatterjee. In response to this memorial, Government of India again revised their decision and allotted to the petitioner the year ' 1947 ' and the reasons for this change is explained at annexure O.P. 107 (14 January 1963) in these words:
The Government of India have decided that the seniority to A. R. Mukherjee may be revised taking into account his officiation in senior cadre post from 19 May 1951.Since direct recruits borne on the Indian Police Service cadre poet of West Bengal did not start officiating in senior scale before this date (19 May 1951), Mukherjee's case will be decided ad hoc under Regn. 3 of the Indian Police Service (Seniority of Special Recruits) Regulations read with proviso 1 to Rule 3 (3)(6; of the Indian Police Service (Regulation of Seniority) Rules, 1954.As the 'P' factor in West Bengal was 4 yearn 19 days, Mukherjee may be allotted, in modification of this Ministry' letter ... to the year 1947 ...
7. Though it is stated in the above letter of the Government of India that the revised decision was made in conformity with the advice given by the Public Service Commission, from the copy of the letter of the Public Service Commission appended, It would be clear that the Commission was, in its turn, giving its advice in accordance with ' the Ministry of Home Affairs circular letter No. 2/32/51, dated 25 August 1055, for purposes of seniority.' This circular of 1955, which is to be found at p. 109 of the petition, again, appears to be an ad hoc decision, witheut any reasoning to refuse to recognize the officiation prior to 19 May 1951, as follows:
The Government of India have now decided with the, concurrence of the Commission that the State Civil Service officer who were officiating in senior posts prior to 19 May 1951, but have bean appointed to the Indian Administrative Service after that date, should, for purposes of fixation of seniority, be allowed the benefit of their continuous officiation in senior posts with effect from 19 May 1951.
8. One wonders why, if the foregoing circular had been issued in consultation with the Commission as early as in 1955, the Commission or the Government did not apply this circular to the case of the petitioner so long and why in two successive decisions of 1959 and 1960, they refused to recognize the officiation by the petitioner prior to 1956 or thereabout. One thing cannot, however, be overlooked: While in 1959 (annexure- J, p. 15), the Government of India were Invoking proviso 2 to Rule 3 (3)(b) of the Seniority Rules, 1954, in the year 1963, they gave a go-by to proviso 2 and resorted to proviso 1 of that rule. The two positions, as will be shown below, are inconsistent with each other.
9. The petitioner again submitted a representation against the Government of India decision to allot the year 1947 to the petitioner, counting his officiation from 19 May 1951 onwards. In this representation of 1 July 1963 (annexure Q, p. 113), he urged for counting his officiation from 1945 onwards. But the representation was rejected and communicated to the petitioner on 21 October 1963 (annexure R). After soma farther correspondence and the like, the petitioner demanded justice from the Union of India, claiming that his year of allotment should be fixed at 1943 1/2 or 1945 1/2, by the letter at annexure S, dated 5 February 1965, and moved the instant petition under Article 226 on 23 February 1965.
10. On behalf of the Union, it has been urged, as a preliminary objection, that this petition should be dismissed in limine, on the ground of delay. It is true that the petitioner must explain his delay from 21 October 1963, when the rejection of his final representation to the Union was communicated to him, up to 5 February 1965, the date when he Issued his demand for justice. In Para. 46 of his petition, the petitioner has indeed given Borne explanation. The question is whether this explanation should be accepted by the Court. Delay, per se, is not fatal to a petition under Article 223, there being no law of limitation to fetter this constitutional jurisdiction. But whore there is no explanation or where the explanation is not accepted by the Court as satisfactory, it may refuse the relief where it is discretionary. It should be pointed out at the outset that in Para. 41 of the counter-affidavit filed on behalf of the Union the factual correctness of the explanation offered in Para. 46 of the petition is not questioned. The following facts stated in Para. 46 of the petition must, therefore, be accepted as correct:
(a) After the rejection of his final representation by the Union, the petitioner requested the Chief Secretary to the State Government to move the Union for a revision, but by a letter of 25 December 1963, he was informed that ' no useful purpose will be served ' thereby.
(b) The petitioner next sought for permission to take legal action. On 6 May 1964, he was told that there was no objection to the petitioner's doing that.
(c) From May 1964 to the end of December 1964, it was not possible for the petitioner to seek legal advice inasmuch as he was engaged in raising an Armed Battalion, as Commandant of Rh-3 West Bengal Rifles, to which post he was appointed during this period.
11. If subjected to a mathematical scrutiny, there may be holes in the above account, here and there, but there are) certain broad countervailing consideration why I am inclined not to reject the petition in limine:
(i) The petitioner's case is that the impugned orders of the Government of India are ultra vires being contrary to the statutory provisions governing the issue of seniority of persons, of the petitioner's rank. In view of the infirmity and hesitancy of the officers of the Union who have dealt with this matter, it, is abundantly clear that they have not understood the implication of some of the relevant statutory rules made by themselves, which, it must be said, are complicated enough. It is in the common interest of this parties as well as the members of the Indian Police Service in general, that the correct Interpretation of these rules should be Laid down by the Courts of law. In this context, I would refer to the observations of the Supreme Court in Madhya Pradesh Transport Corporation v. Road Transport Autherity : 3SCR786 as 791.
(ii) In view of the complicated nature of the relevant rules, which will be evident presently, it may have taken a pretty long time for the petitioner's legal advisers to give him definite advice.
(iii) Even though no permission may be required for a Government employee to take legal action again the Government, an employee can ill-afford to invite the risks of a hasty action In such matters, particularly when the employer is the Government and the employee is a military or police officer, subject to a special disciplinary code. The very fact that the petitioner sought for such permission shows that he was not aware that ha could sue without permission and also that he was not willing to come to Court if it could be avoided. But, for the matter of that, lie never acquiesced in any of the impugned orders.
(iv) The real consideration in cases of delay is the likelihood of third party rights being affected by a belated action. But even that consideration does not stand In the way of the petitioner because of the following reasons:
(a) As stated in Para. 47 of the petition, which goes uncontradicted, the petitioner has brought on the record all his co-employees who might possibly be affected in case their existing seniority is disturbed by the petitioner's success in this rule, and none of these persons has come to oppose the petitioner, Just as they did not demur when the Government of India had revised its decision, to their detriment, thrice before. They would, therefore, be bound by any decision arrived at in this proceeding.
(b) In fact, neither these persons nor the Governments concerned can legitimately raise the question of altered situation because they have themselves altered the situation by revising their decisions at least twice, which must have affected the then existing seniority of some of the co-employees of the petitioner and they have not demurred.
(c) As observed earlier, it would be to the advantage of these co-employees themselves that the question IB set at rest by an authoritative interpretation of the relevant rules so that the established order may not be disturbed by any further erroneous orders of the Government made at the instance of any employee other than the petitioner.
12. It need hardly be pointed out in this context that the interpretation of statutes and statutory instruments is the business of Courts and that any Interpretation given by an administrative autherity, even though it were itself the creator of the rules, cannot be binding on the Courts, just as the draftsman's views arc no guide to the Court in the matter of interpretation of a statute which is to be governed by the expressed intention of the legislature as embodied in the text of the statute. Further, since the power of the High Court under Article 226 of the Constitution cannot be controlled by legislation, it cannot be fettered by a subordinate legislation, which reserves to the rule-making autherity the ' final' power of interpreting the rules, as has been done in many of the rules before the Court in the instant case. From another standpoint, the effect of such a provision is to oust the jurisdiction of the Courts which cannot be done by a subordinate legislation, witheut express autherity in the statute-Pyx Granite Co. v. Ministry of Housing (1959) 3 All E.R. 1 (ILL.); Chester v. Bateson (1920) 1 K.B. 829.
13. I am, therefore, of opinion that this is not a case where the petitioner may be refused a hearing under Article 226 on the merits, on the ground of delay.
14. On the merits, the issue is practically one, namely, the interpretation of Rule 3 (3)(6) of the Indian Police Service (Regulation of Seniority) Rules, 1954, along with its two provisos.
15. In order to appreciate the applicability of this rule to the instant case, it would be necessary to refer to the background of these rules, made under Section 3(1) of the All India Services Act, 1951.
16. A series of rules have been made by the Central Government in exercise of the powers conferred by the All India Services Act, 1951, to regulate the recruitment and conditions of services of persons appointed to All India Services, namely, the Indian Administrative Service and the Indian Police Service. The first of these rules, with which we are concerned in the instant case, is the Indian Police Services (Recruitment) Rules, 1954. The substance of these rules, as regards the future recruitment to the Indian Police Service, is that some of the personnel shall be recruited
(a) by competitive examination, as under Rule 7, and
(b) some others by promotion from amongst members of the State Police Service
in the manner Laid down in Rule 9 (1):
The Central Government may, on the recommendation of the State Government concerned and in consultation with the Commission (i.e., the Union Public Service Commission), recruit to the service persons by promotion from amongst members of the State Police Service In accordance with such regulations as the Central Government may, after consultation with the State Governments and the Commission, from time to time, make.
17. The regulations made to govern such promotion are the Indian Police Service (Appointment by Promotion) Regulations, 1955.
18. The quota of persons to be so recruited by promotion under the foregoing provision, was fixed by Sub-rule (2) of this rule (Rule 9) at not more than ' 25 per cent of the number of senior duty poets borne on the cadre of that State or group of States.'
19. An exception under which the quota fixed by Sub-rule (2) could be exceeded was provided by Sub-rule (5) of the same rule, and we are particularly concerned with this Sub-rule Inasmuch as the petitioner was recruited In accordance with this Sub-rule, which says:
Notwithstanding anything contained in Sub-rule (2), the Central Government may promote substantive members of a State Police Service In excess of the normal promotion quota in accordance with such regulations as the Central Government may, In consultation with the State Governments and the Commission, from time to time, make.
20. This exceptional recruitment under the foregoing sub-rule has been called ' special recruitment' (perhaps a better nomenclature would have been ' special promotion ') and the regulations, referred to, made under the foregoing Sub-rule (5) of Rule 9 of the Indian Police Service (Recruitment) Rules, 1954, are to be found in the Indian Police Service (Special Recruitment) Regulations, 1957. These regulations do not provide a self-contained code relating to the mode of special recruitment, but Introduce certain ' modifications,' subject to which the regulations governing the ' ordinary' promotion, namely, the Indian Police Service (Appointment by Promotion) Regulations, 1955, shall apply to govern the 'special recruitment,' The modifications so Introduced will be noticed hereafter.
21. Having reviewed the rules and regulations relating to the recruitment of officers to the Indian Police Service ordinary and special promotion, we have now to advert to the question of fixation of seniority of the persons thus recruited. There are two sets of rules to govern the question of seniority:
(i) The first is the Indian Police Service (Regulation of Seniority) Rules, 1954, which deal with the seniority of persons recruited to the Indian Police Service, in general.
(ii) The other one is the Indian Police Service (Seniority of Special Recruits) Regulations, 1960, dealing with the seniority of the special recruits.
22. When the Seniority Rules of 1954 were promulgated, it did not contain any special provisions to govern the seniority of officers appointed under the special recruitment scheme, for the simple reason that the latter mode of recruitment did not come into being prior to 1957. After the Introduction of the Special Recruitment Regulations of 1957, the question of fixation of the seniority of such officers naturally arose and, therefore, Rule 5A was inserted Into the Seniority Rules of 1954 on 23 January 1958, with retrospective effect from 14 May 1956 (M.H.A. Notification No. 13/30/57-A.LS. (III-A), as follows:
Notwithstanding anything contained in any of the provisions of these rules, the seniority of officers appointed to the service In accordance with the regulations framed under Sub-rule (5) of Rule 9 of the Indian Police Service (Recruitment) Rules, 1954, shall be determined In accordance with such regulations, as the Central Government may, after consultation with the State Government and the Commission, from time to time, make.
23. It is obvious that the Intention of the Government of India, when Rule 5 A was Introduced, was not to apply the ordinary Seniority Rules of 1954 to the officers recruited under the Special Recruitment Scheme, but to make separate regulations to govern their seniority. This Intention, however, disappeared by the time when the Government applied its mind to the question of making separate regulations, in 1960. The separate regulations are contained In the Indian Police Service (Seniority of Special Recruits) Regulations, 1960. But a glance at these Regulations of 1960 reveals that it contains no separate provisions at ail bat seeks to apply the provisions of the Seniority Rules of 1954 itself to the special recruits, even though the system of special recruitment had not seen the light of the day when the rules of 1954 had been framed. This indecision, the natural anachronism in applying the antecedent rules to the case of the special recruits, together with the obscurity of language and the inept draftsmanship of Rule 3 (6) of the Seniority Rules of 1951 have contributed towards bringing about the instant litigation.
24. To all intents and purposes, the Seniority Regulations of 1960 are declaratory in nature. Regulation 3, which is its substantive provision, says:
Every officer appointed to the service in accordant with the provisions of the Indian Police Service (Special Recruitment) Regulations, 1957, shall be assigned o year of allotment in accordance with the provisions of Clause (b) of Sub-rule (3) of Rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954.
25. In the result, the question which I have to determine in the Instant case is:
What is the 'year of allotment' which is to be legitimately assigned to the petitioner In accordance with Rule 3 (3)(b) of the Seniority Rule of 1954 ?
26. In Clause (b) of Rule 3 (3), there are throe paragraphs:
(i) the enacting provision;
(ii) two provisos; and
(iii) two explanations.
At the hearing, no question has been raised as to the moaning or scope of the explanations. We may, therefore, leave them out of account. The question to be answered is whether the enacting portion or either of the provisos is applicable to the facts of the petitioner's casa. The text of Rule 3 (3)(b), with the provisos is as follows:
(3) The year of allotment of an officer appointed to tae service after the commencement; of these rules, shall be-
* * *(b) where the officer la appointed to the service by promotion in accordance with Rule 9 of the Recruitment Rules, the year of allotment, of the junior-meet among the officers recruited to the service in accordance with Rule 7 of these rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former:
Provided that the year of allotment of an officer appointed to the service in accordance with Rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the service, in accordance with Rule 7 of these rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned:
Provided further that an officer appointed to the service after the commencement of these rules in accordance with Rule 9 of the Recruitment, Rules shall be deemed to have officiated continuously in a senior poet prior to the date of the inclusion of his name in the select list prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulations framed under Rule 9 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission.
27. It must be said at the outset that both parties have been under a confusion as to which of the foregoing parts of Rule 3 (3)(b) should be applicable to the facts of the petitioner's case. As I have stated earlier, in his letter at annexure I, dated 3 November 1958, the petitioner had asserted that his case was governed by the enacting portion of Rule 3 (3)(b). In reply to this claim, the reply of the Government of India, dated 14 February 1959 (annexure J), was that the petitioner's case was governed by proviso 2 of Rule 3 (3)(b) and the subsequent stand taken by the Government of India in their letter of 14 January 1963 (annexure O) was that the petitioner should be governed by proviso 1 of the rule. The petition under Article 226, having been brought subsequently, the petitioner's endeavour therein was to show that the decision of the Government, even if proviso 1 were applicable, was wrong and invalid, fn the counter-affidavit filed on behalf of the Government of India on 9 June 1965, the definite case Bat up was that the petitioner's year of allotment had been and should be fixed under proviso 1 (Paras. 27, 33 and 33). In his rejoinder dated 17 January 1966, the petitioner asserted that neither of the two provisos was applicable to his case and that the enacting portion of Rule 3 (3)(b) should govern Paras. 29, with Clause (f) thereof; and 63).
28. On behalf of the petitioner, Sri Roy has contended that the case in the rejoinder should be treated as an alternative pleading and, in support, has relied upon the observations- Life. Insurance Corporation v. Sunil : (1964)ILLJ442SC and Pandarasannidi v. State of Madras : 3SCR17 . Since all the components of Rule 3 (3)(b) have been fully canvassed and analyzed at the hearing on behalf of the various parties to this proceeding, and the question relates to the correct Interpretation of statutory provisions, against which there cannot be any estoppel, I would proceed to examine the Import of the enacting portion as well as the provisos separately, to determine which of them should properly be Applicable to the petitioner's case.
A. The enacting portion of Rule 3 (3)(b).
29. It was contended at the outset on behalf of the respondents that the enacting paragraph of Rule 3 (3)(b) has no independent existence or application and that to any given case either of the two provisos must be applicable. But it is difficult to accept this contention because of the function of a proviso in a statute as has been settled by authoritative judicial pronouncements. As was observed by the Privy Council in Madras and Southern Mahratta Railway v. Bezwada Municipality , the proper function of a proviso IB to except and deal with a particular case, leaving the generality of the substantive enactment unqualified, except in so far as it concerns the particular subjects to which the proviso relates. If the tyro provisos eat away the whole of enacting paragraph of Rule 3 (3)(6), there would Se let no justification for enacting Rule 3 (3)(b) at all; the purpose would have been served in enacting the two provisos as independent provisions, with the necessary drafting changes. The construction suggested on behalf of the respondents militates against the established principle that a proviso is to be treated ' as subordinate to the main clauses of the Act,' Stourbridge Navigation Co. v. Dudley (1860) 3 E. and E, 409 at 427, and not as if it were an independent enacting clause R. v. Dibdin (1944) 6 Q.B. 649 at 653.
30. Coming now to the enacting paragraph of Rule 3 (3)(b), it provides that the year of allotment of an officer who has been appointed to the Indian Police Service by promotion under any of the Sub-rules of Rule 9 of the Recruitment Rules of 1054 petitioner has been recruited under Sub-rule (5) of Rule 9 shall be the same as the year allotted to the juniormost of the officers who have been recruited by competitive examination under Rule 7 of the Recruitment Roles, and such direct recruit must have officiated continuously in a senior poet from a date earlier than the date of commencement of such officiation by the promoted officer whose year of allotment is to be fixed.
'Senior post,' for the above purpose, has been defined in Rule 2 (g) of the Seniority Rules as-
(a) a post included in item 1 of each schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955; or
(b) any post declared equivalent thereto by the State Government concerned.
31. For the application of Rule 3 (3)(6), thus we are first to find out the date of commencement of ' continuous officiation' by the petitioner in a 'senior post' within the meaning of the foregoing definition. The petitioner relies on the second alternative of the foregoing definition of a senior poet, and contends that his continuous officiating in such poet dates from 10 January 1949 when he was appointed to the post of a Commandant of the Special Armed Police Battalion, after his services from the Army were lent to the State of West Bengal (annexure A). That this post was equivalent to a ' senior scale Indian Police Service post' has been declared in unmistakable terms by the State Government since the appointment of the petitioner, Annexure B, dated 10 April 1950, addressed by the State Government to the Defence Department by which the petitioner had been lent, is in these terms:.Major A. R. Mukherjee Is temporarily holding the post of Commandant, Armed Police Battalion J, which is a senior scale Indian Police Service post and which may temporarily be held by an Army officer of the rank of Major or Lieutenant-Colonel.
As late as 15 December 1956, this statement was reiterated in a letter addressed by the 8tai;e Government to the Accountant-General, West Bengal (annexure C), for the purpose of 'fixation of pay and seniority ...' as follows:. While holding the rank of Major he came on deputation to this Government on 10 January 1949 and was employed as a Commandant, Armed Police Battalion, a post borne on the senior scale of the Indian Police Service cadre.
32. It has been contended on behalf of the Union that the seniority of the officers in the Indian Police Service is to be fixed by the Central Government and not by the State Government. That may be so, but the State Government has been given power to declare any post as a ' senior Indian Police Service poet' by Rule 2 (g) of the Indian Police Service (Regulation of Seniority) Rules, 1954, and no form has been prescribed for ouch declaration. Hence, there is no reason why the two foregoing statements of the State Government to the former employer of the petitioner and the financial autherity of the State Government itself taken along with the admission in Para. 10 of the counter-affidavit of the State Government, should not be taken as a declaration that the post of Commandant In which the petitioner officiated from 10 January 1949, should not be taken as a declaration of equivalence by the State Government particularly, when the date given in these correspondence is stated to be the date of the first officiating appointment of the petitioner to the Indian Police Service In the gradation list of gazetted police officers (p. 22),-an official publication of the Government of West Bengal and the post of ' Commandant, Special Armed Police Battalion ' is also shown as one of the 63 senior Indian Police Service posts in West Bengal, in the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955, made by the Central Government, in pursuance of Rule 4 (1) of the Indian Police Service (Cadre) Rules, 1954. The contention of the Union of India in Para. 11 of the counter-affidavit, that notwithstanding the above declaration by the State Government as well as by the Central Government Itself, that the post of a Commandant of Armed Police was equivalent to a senior Indian Police Service post, the petitioner cannot be said to have officiated in a senior post until 30 June 1963, when he was permanently absorbed In the State Police on release from the Army, cannot be accepted Inasmuch as, for the purposes of applying Rule 3 (3)(6), the definition in Rule 2 (g) is the sole guide and whether the person acting in an equivalent post was, for the time being, on deputation from the Army or was promoted to the State Police ranks, is Immaterial. Nor does it lie In the mouth of the Union Government to say so, after the categorical statement at annexure D (p. 30 of the petition), dated 19 December 1958, that-
the Government of India have decided that the pay of Mukherjee should be fixed in the senior scale of Indian Police Service notionally from 10 January 1949 -the date from which he held an Indian Police Service post continuously.
33. This was a letter written by the Government of India to the State of West Bengal. On behalf of the Union, serious efforts were made at the hearing to wage (sic) that this letter related to the fixation of pay only and had nothing to do with the fixation of seniority of the petitioner. Even if the purpose of the letter were so, there is no reason why the statement of fact or admission in the letter that the petitioner had been holding an Indian Police Service cadre post continuously from 10 January 1949 should not be accepted in favour of the petitioner. There is no reason why it should not operate as admission particularly because this statement cams after the petitioner had moved the Government to fix his seniority in the Indian Police Service (annexure I, dated 3 November 1958) and it was known to the Union Government that the date of continuous officiation In a senior post was one of the Ingredients for determining seniority under Rule 3 (3)(6). In view of this clear admission, the contrary statement in annexure to the petition that the petitioner's officiation commenced on 19 May 1951 cannot be given any consideration. As I have already said, for the purpose of determining that date, the only guide is the definition of ' senior post ' in Rule 2 (0) of the Seniority Rules. If that definition included only officiation subsequent to an appointment to the Indian Police Service cadre, after termination of deputation from a parent department, the second part of the definition would have been unnecessary and meaningless. The second part has been Incorporated solely for the purpose of including people like the petitioner, so that they may not lose the benefit of their service in a post equivalent to an Indian Police Service cadre post, prior to their absorption in that service. Otherwise, there would be a great injustice perpetrated against such people who would be denied of all benefits in their parent department, having been deputed to another department on account of the exigencies of public service (and kept there otherwise than at their option as in the case of the petitioner-vide Para. 12 of the counter-affidavit of the State Government), and would, at the same time be deprived of the results of their service In the borrowing department until the Hen on the parent department were terminated. This would involve an interregnum, which cannot be reasonably imputed to the service rules. In this view, I am fortified by the observations of the Supreme Court in State of Mysore v. M. H. Bellary 1966-1 L.L.J. 50, that the service of an officer, on deputation to another department should, on principle, be treated as equivalent to service in the parent department and that, accordingly, on reversion to his parent department, he Is entitled to obtain recognition for the satisfactory service rendered by him on deputation, In the matter of these promotions In the parent department, which are open on ' seniority cummerit ' basis, and further, 11' on reversion to the parent department, he is appointed to a post lower than that which he was holding at the time of deputation, that would, prima facie, constitute a ' reduction in rank.' The contention of the Union in the instant case would do violence to this reasonable principle and I could not understand how the Union Government, in consultation with the Commission, could take such an unreasonable stand. I cannot persuade myself to accept such an Interpretation of the rules as would lead to such a result.
34. The date of commencement of the continuous officiation In a senior Indian Police Service post, by the petitioner, for the purposes of Rule 3 (3)(&) of the Seniority Rules, must, therefore, be held to be 10 January 1949. The other question which we have to answer is, who, If any, is the juniormost directly recruited officer 'officiating continuously' in a senior Indian Police Service poet from a date earlier than 10 January 1949 The answer, according to the petitioner, is Sri R. K. Gupta (Para. 33 of the petition), whose name appears as No. 14 at p. 6 of the Government of West Bengal Gradation List for 1958 produced on behalf of the petitioner before me. This statement is, however, contradicted In Para. 27 of the counter-affidavit of the Union of India, where the juniormost officer, In this context, is stated to be Sri D. Dhar, whose name appears as No. 16 in the came gradation list. As this raises a disputed question of fact, and Sri Dab, appearing on behalf of the petitioner, offered to accept the position admitted by the Union, we may take D. Dhar as the juniormost direct recruit (the footnote to the gradation list shows that he was directly recruited to the Indian Police Service and he Is also described as 'I.P.' In Para. 27 of the counter-affidavit) who started officiating in the senior scale on 4 July 1946, which is prior to the commencement of the officiation by the petitioner (that is, 10 January 1949). According to the counter-affidavit,
it was decided with the approval of the Government of India that the date of continuous officiation of Dhar should be deemed to be 27 May 1947.
which date is also earlier than 10 January 1949. We need not bother further on the point, since the year of allotment of Dhar is stated to be 1943 in Col. (4) of the gradation list, referred to before. If the enacting paragraph of Rule 3 (3)(b) be the sole guide, I do not Bee why the petitioner's year of allotment should not be fixed at 1943.
35. Let us now proceed to the first proviso.
B. The first proviso
36. This proviso deals with the case where the special recruit, whose year of allotment IB to be determined, started officiating (continuously) in a senior post from a date earlier than the elate of commencement of such officiation of any of the direct recruits (rule 7 of the Recruitment Rules).
37. It is patent that this proviso cannot have any application to the petitioner's case, since the date of commencement of continuous officiation by the direct recruit Dhar is admitted by the Union to be 27 May 1947, which la earlier to the corresponding date of the petitioner, namely, 10 January 1949, and not vice versa.
38. The excuse given in Para. 22 of the counter-affidavit of the Union, for applying proviso 1, I venture to say, is hollow. It is stated there-.the Government of India decided that the petitioner's officiation in senior cadre post from 19 May 1951 should be taken into account for purposes of his seniority. Since direct recruits borne on the Indian Police Service cadre of West Bengal did not, start officiating in the senior scale before that date, the petitioner's case was to be decided ad hoc under Regn. 3 of the Indian Police Service (Seniority of Special Recruits) Regulations, 1960, read with proviso 1 to Rule 3 (3)(6) of the Indian Police Service (Regulation of Seniority) Rules, 1954.
39. I fail to understand what is meant by ' the Indian Police Service cadre of West Bengal.' If that moans the 'State cadre' as defined in Rule 2 (i) of the Seniority Rules, 1954, and which is referred to in Rule 6 thereof, I must say that that is wholly irrelevant for the purpose of applying either Rule 3 (3)(b) or proviso 1 thereof, because the expression used there is ' officers recruited to the service,' that is, the Indian Police Service as a whole vide S. (h), ibid and not the officers included in the State cadre of a particular State. I have, therefore, no hesitation in rejecting proviso 1 witheut more. In view of the admission in Para. 27 that the data of officiation of the direct recruit, Dhar, was 27 May 1947, which IB earlier to the date of commencement of officiation of the petitioner, Whether it is 10 January 1949 as held by me or 19 May 1951, according to the counter-affidavit, there can be no question of any ad hoc determination under proviso 1.
C. The second proviso
(a) The first Ingredient for the application of this proviso to an officer is that he must have been appointed to the service after commencement of these rules.' The Indian Police Service (Regulation of Seniority) Rules, 1954, were promulgated by notification No. (sic) 9 February 1954, with effect from 8 September 1954.
As to the date of appointment of the petitioner, it is stated in Para. 8 of the counter-affidavit of the Union, that the petitioner's ' appointment to the Indian Police Service ' took place on 31 July 1958 (after he was released from the Army on 27 June 1953, p. 45, of the petition). This is the date when the petitioner was confirmed after probation by order of the Government of India fit annexure G-H to the petition. This claw being subsequent to 8 September 1954, the first ingredient for the application of proviso 2 is satisfied.
(b) The second element in proviso 2 is, however, that the name of such officer must have been included in ' the select list ' prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulations.
(c) If the second element is satisfied, then any officiation by such officer In a senior post, prior to the date of cha inclusion of has name in the select list just referred to, shall be counted for the purpose of fixing the year of his allotment, under Rule 3 (3)(b), only if such prior officiation is 'approved by the Central Government in consultation with the Commission.
40. The contention of Sri Boy on behalf of the petitioner is that the second element cannot possibly be satisfied In the case of the petitioner, because there Is no provision for the preparation of a ' select list ' In the case of ' special recruits.'
41. This contention of Sri Roy must be accepted in view of the fact that when the ' special recruitment' scheme was introduced, the Central Government made the Indian Police Service (Special Recruitment) Regulations, 1957, by which the provisions of the general rules relating to recruitment by promotion contained in the Indian Police Service (Appointment by Promotion) Regulations, 1955, were imported to govern the special recruits, but subject to modifications. Before coming to these modifications we must discover the meaning and scope of a ' select list' under the Regulations of 1655. Regulations 3-7, read together, make it clear that two lists are to be prepared, or the same list has to undergo two stages:
(a) The first stage Js referred to by the regulations commencing from Regn. 3 up to Sub-regn. (2) of Regn. 7.
These regulations, in short, provide that each State shall have a committee which shall prepare a list of such members of the State Police Service as are considered by the committee to be suitable for promotion to the Indian Police Service which shall be for warded to the Commission (i.e.) Union Public Service Commission) and will become final on approval by the Commission.
(b) Sub-regulation (3) of Regn. 7 then says:The list as finally approved by the Commission shall form the select list of the members of the State Police Service.
42. The expression ' select list' is thus a technical term created by Sub-regn. (3) of Regn. 7 and the subsequent regulations, which refer to a select 11-t, are thus dependent upon Sub-regn. (3) of Regn. 7. If, therefore, Sub-regn. (3) of Regn. 7 are made non-applicable to the special recruits, there cannot be any ' select list' relating to such recruits, for the purpose of applying the relevant rules and regulations, and that is what has happened in the copy before me, for not only Sub-regn. (3) and (4) of Regn. 7 but also Regn. 10 of the Promotion Regulations of 1955, which speak of the use to be made of the select list, have been made not applicable to the 'special recruits' by the schedule to the Indian Police Service (Special Recruitment) Regulations, 1957, read with Regn. 4 thereof. There will, of course, be a list prepared by the State Government under Regn. 4 of the Regulations of 1955 as modified by the schedule (Para. 1) of the Regulations of 1957, but there the matter will end, and there will be no ' select list ' in relation to the special recruits.
43. The result Js quite clear, namely, that there cannot possibly be any ' select list prepared In accordance with the requirements of the Indian Police Service (Appointment by Promotion Regulations, 1955,' within the meaning of the proviso 2 to the Seniority Rules of 1954. This is an anomaly which should have been realized by the draftsman of the Seniority of Special Recruits Regulations, 1960, while applying: the earlier rules of 1954, and ought to have been rectified by suitable amendments, but the failure to do so does not alter the situation and cannot create a 'select list ' in relation to the special recruits which the modifications made by the prior regulations of 1957, just referred to, have expressly eliminated the select list as regards the special recruits.
44. I have, therefore, no hesitation to hold that proviso 2 to Rule 3 (3)(b) can have no application to the petitioner. It is also difficult to resist the conclusion that because the Union Government realized this position that they shifted their stand from proviso 2 (annexure J) to proviso 1 (annexure O). It was faintly argued that this was done in order to favour the petitioner with a concession. Bat, in the matter or of Interpretation of statutory ruled, the union Government had no right to make any concession In favour of a particular officer to the detriment of and discrimination against other officers governed by the same rules.
45. Be that as it may, my conclusions are:
(a) The enacting paragraph of Rule 3 (3)(b) of the Regulation of Seniority Ruler, 1954, governs the petitioner's seniority in the Indian Police Service and not either of the two provisos thereto.
(b) The date of commencement of continuous officiation in a senior post in the service toy the petitioner is 10 January 1949.
(c) The petitioner should be allotted the year 1943 under Rule 3 (3)(b).
(d) The impugned orders are ultra vires.
46. Both the Union Government and the State Government should be directed to take necessary steps, according to law, as explained herein, to fix the seniority of the petitioner in the Indian Police Service. The seniority of the petitioner in relation to other officers who may have been allotted the same year, namely, 1943, need not be determined by this Court as Regn. 4 of the Seniority of Special Recruits Regulations, 1930, clearly provides how that rank, inter se, is to be determined by the Central Government.
47. Let an order in the nature of mandamus do issue against respondents 1 and 2 to take all steps necessary according to law, to carry out the directions just given, and not to give effect to the Impugned order at annexure O to the petition and connected orders as against the petitioner. Petitioner shall get his costs from respondent 1 assessed at five gold mohurs. The rule is made absolute accordingly.
48. As prayed for on behalf of respondent 1 the operation of this order will remain stayed or in abeyance for a period expiring with 28 November 1966.
49. The rule is made absolute.