STATE OF ORISSA & ANR. versus B. K. MOHAPATRA

STATE OF ORISSA & ANR.

B. K. MOHAPATRA April 11, 1_969

[S. M. _S_IKRI, R S. BACHAWAT AND K. S. HEGDE, JJ.]

The lrtdian Police Service (Regulation of Seniority) Rules, 1954, r. 3(3) (b), second provisrr--Select List, Meaning of-Whether secnnd proviso goi·erns main -ntle or first proviso--fVhether choice of date for fixing seniorit,v arbitrary and discriminatory. _ .

In pursuance. of an agreement dated October 21, 1946, bet\veen the Central and Provincial Governments regarding the constitution of an Indian Police Service, certain draft 'rules were framed and the appellant State constituted Committee under the draft rules for preparing list of State-Police Officers who are considered suitable _for promotion. The Committee prepared: list of officers 'fit [1]for trial to promotion po5ts' in the · l.P.S. and the list was approved by the U.P.S.C. on September 6, 1951. On October 29, 1951, the All India Services Act, 1951, came into fon:e and . the Indian Police ~ervice (Regulation of Seniority) Rules, 1954 and the Indian Police Service (Appointment. by Promotion) ~Regulation, 1955, were framed under the Act; Rule 3(3){b) of the Seniority Rules provides that the yea'r of allotment of an officer appointed to the service by promo-tion shall be the year of allotment of the junior most direct-recruit who officiated continuously in senic;tr post from date earlier than the. Jate of comn1encement of continuous of]iciatio11 by the promotee. The second proviso to the rule provides that an officer shall be deemed to have ofli-ciated continuously in senior post prior to the date of the inclusion of his name in the Select List if the period of such officiation was approved by the Central Government. ·

The respondent was appointed as Dy. S.P. in the appellant-Sta~ in 1947. In 1950, he 'Vas confirmed as D.S.P. and be was officiating conti-', nuously from 1951 to 1957 in senior officiating appointments of the l.P.S. His name was included in the List of officers considered suitable for pro-niotion v.:hich \Vas approved by·the U.P.S.C. on September 6, 1951, and in similar 'fit for trial' lists prepared for the years 1952 and 1954. On November 10, 1955, the Selection Committee~ set up in accordance with-Re.gufation 3 of the Promotion Regulation. selected and -recommended officers for officiating appointment in the I.P .S. and the respondent's name was included in that list also. That list was approved by the U.P.S.C. on· February 10, 1956. On December I, 1956, the Government of India consulted the U.P.S.C. as to whether this list of November 10, 1955 coutd be treated as the- 'Select List' within the meaning of the second proviso to · 'r. 3(3)(b) of the Seniority Rules. The U.P.S.C. wrote back sayini; that . it could not be so considered, because, the Committee -only recommended - officers. who were considered suitable to .hold l.P.S. posts in an offeciating capGcit;~ and not for appointment to I.P.S. The Selection Committee of the appellant-State, therefore, on February 15, 1957, prepared 'Sdect List' for substantive posts in the -1.P.S. and-- included the respondent's name in it. - The Central Gove'rnmcnt decided that the officiation in. the senior posts of the officers included in the 'fit for trial' lists could~ not be ~ counted for the pnrpose of determining the seniority of such officers uncier the Seniority Rules. On July 10, 1957 the respondent was appoint-ed to the 1.P.S., and on July 22, 1958, the Central Government wrote to the appellant-State that the approved continuous. officiation of-~ the

SUPRE~IE COURT REPORTS · ..

respondent for seniority, ~ommenced from 'February 10, 1956 the date on which the U.P.S.C. approved the •fit for continuous officiation Jist' containing the respondent's name, and, on that basis, the respondent \\·as a11otted the year 1951 as his year of allotment for purposes of seniority under 'r. 3 (3 )(b) of the Seniority Rules.

The_ respondent filed writ petition in the High Court contending that: (1) Rule 3(3)(b) is not governed by its second .proviso, that bis case was governed by the main r. 3(3)(b) and on the basis of his con-tinuous officiation in senior post as an officer included .in the Select List ·of the years 1952 and 1954 approved by the U.P.S.C. and accepted by the Central Government his yea'r_- of allotment should be 1948 \vhich \\·as the year -of aIJotment of junior most di'rect-recruit officer ~-ho officiated continuously in senior post from date earlier than the date o'f com-mencement of the officiation by the respondent; (2) Even if the second proviso governed the main r. 3(3)(b) and only the list of February · 15, 1957 was the Select· List his year of allotment should be 1948, on the basis that his continuous officiation throughout from 1951 to 1957 \Vas [/ ]approved by the Central Government by inclusion in the approved· lists; (3). The choice of February 10, 1956 men.tioned in - the Central Government communication <lated July 22, 1958 was arbitrary; anll (4) There was discrimination behveen him and another officer. The High Court allowed the· writ petition.

In appeal to this Court,

HELD : (I) The object of the second proviso is to cut down the period of officiation which could .be taken into consideration under r. 3 (3) (b). Therefore, the second proviso governs r. 3(3)(b). The Promo-tion Regulation and the draft rules acted· upon before the Promotion Regulation came -into force, show that the ComrUittee preparing the· Select Lists should think of substantive appointments in the service and not officiating appointments. In the present case when the lists of 1951, 1952 and 1954 were prepared the names were not selected for the pur-pose of substantive appointment but only for the purpose of officiation. Therefore, the •fit for trial' lists could not be deemed to be 'Select Llsts~ and hence the resoondenfs officiation \V·as not continuoul officiation of an officer in th<: 'Select List'. Only the List of February 15, 1957. could be deemed to be such Se1ect List. Though _in the Jetter of. July 22, 1958, there \\.'as reference to list called 'fit for continuous oITIR ciation list', there was in fact no su:.h list and the expression referred only to the list of November 10, · 1955, of officers for promotion in an officiating capacity. (264 C, E; 265 A, C-D, G-266 A]

(2) Since the second proviso i;ove!rns the main r. 3(3) (b), it was for the Central Government to approve or not to approve. the period of officiation prior to the date of inclusion of the re~pondent in the Select List of February 15, 1957. Jn the present case, the Central Government, after applying its mind to the problem, approved the period from February 10, 1956 to July 10, 1957; and there was no evidence to show that the period of officiation prior to February 10, 1956, of the respondent was approved by the Central Government. Such aporoval had to be accorded after the appointment to the I.P.S. (265 E-G; 266 D-E]

D. R. Nim v. Union, (1967] 2 S.C.R. 325, referred to ..

(3) The date February 10, 1956, was not arbitrarily chosen. It has definite relation to the question of approved period of offici:.ition. :bccaue. it was on that date that the U.P.S.C. approved the inclusion of

the respondent in the list for officiating appointment for the first time after the Promotion Regulation had come into force. [266 B-C]

( 4) The<e was no discrimination between the respondent and th~ other officer, because, the latter was appointed on June 1, 1955, after the Seniority Rules had come into force and was governed by the first proviso tor. 3(3)(b). [266 E-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2162 of 1968.

Appeal fr.o mthe judgment and order dated October 23, 1967 of the Orissa High Court in O.J.C. No. 156 of 1965.

Niren De, Attorney-General, Santosh Chatterjee and R. N. Sachthey, for the appellants.

B. M. Patnaik, Vinoo Bhagat and P. C. Bhartari, for the res-pondent.

The Judgment of the Court was delivered by

Sikri, 1. This is an appeal by certificate granted by the High Court of Orissa under art 133(l)(c) of the Constitution from the judgment and order of the High Court in Writ Petition O.J.C. No. 156 of 1965 filed by B. K. Mohapatra, I.P.S., hereinafter referred to as the petitioner, against the State of Orissa and the Union of India. In this petition the petitioner had prayed for writ of mandamus directing the respondents to fix the petitioner's seniority and year of allotment as 1948 instead,of the year 1951 fixed by the Government of India. . The High Court quashed the order of the Union Govermnent, dated July 22, 1958, and direct-ed the Central Govermnent to fix the year of allotment and seniority of the petitioner in accordance with its judgme,.t. · and the law.

In order fo appreciate the points raised before us it is neces-sary to set out the facts somewhat in detail. The petitioner was appointed as Deputy Superintendent of Police in the State ef Orissa on January 1, 1947. On January 1, 1950, he was con-firmed as D.S.P. In the meantime an agreement had been arrived at between the Central Government and some State Governments, including Orissa, regarding the constitution of an Indian Police Service. This agreement is printed as annexure to the Indian Police Cadre Rules, 1950. This agreement provided for various matters such as the strength, including both the number and character of posts of the Indian Police Service, the method of receruitment to the Service, framing of rules regarding conditions of service, the penalties which could be imposed, etc. We are con-cerned, in particular, with para 2 ( e) and para 7 which are as undar :

"2 ( e) The rules regulating the promotion of Pro-vincial Police Service Officers to the Indian Police Service shall be framed by the Provi.icial Government concerned in consultation with the Federal Public Ser-vice Commission and shall provide that no Provincial Police Service Officer shall be appointed to hold superior post included in the Schedule for period of more than one year unless the Federal Public Service Commission have certified that the officer is in every way fit to hold superior post in the Indian Police Service.

7. In order to ensure that the conditions of service applicable to officers of the Indian Police Service are as uniform as possible, rules regulating pay and other conditions of services will be framed by the Central Government to such extent as may be considered neces-sary. Provincial Governments will, however, be consulted before the ~ules arc framed, and before they are amend-ed in any manner. In respect of matters not covered by the said rules, an officer of the Indian Police Ser-vice will be governed by such rules as may be framed by the Government under which he is for the time being serving and, if no such rulP,s are framed, by the rules applicable to the Central Service/Provincial Police Service Class I, as the case may be."

The All India Services Act, 1951, came into force on Octo-ber 29, 1951. section 3 enabled the Central Government to make rules for the regulation of recruitmert and conditions of service of persons appointed to an All India Service which was defined to include, among others, the Indian Police Service. Sec-1ion 4 provided :

"All rules in force immediately before the com-mencement of this Act and applicable to an All India Service shall continue to be in force and shall be deemed to be rules made under this Act."

On April 30, 1951, the State Government wrote to the Secretary, Union Public Service Commission, that they proposed to hold meeting of the committee (to be constituted in accord-ance with rule 2 of the Draft Rules) sometime in June 1951 with view to prepare select list of officers suitable for promo-tion to the Indian Police Service. The Commission was asked to depute one of its members to preside over the said meeting in .ccordance with rule 3 of the Draft Rules. On September 6. 1951, the Union Public Service Commission approved the re-commendation of the above committee which met to prepare the -select list for promotion to Indian Police Service, and agreed to

the select list as drawn up by the Committee. The petitioner's name appears at No. 5 of Part II of the list which is in the follow· ing form :

"I. List of Officers fit for confirmation in promotion post. 1. 2. 3. 4. II. List of officers fit for trial to promotion posts. 1. H. P. Singh Deo 2. 3. 4. 5. Shri Binode Kishore Mohapatra 6. Shri Banamali Dass".

On May 14, 1952, the petitioner was promoted as Additlonal Superintendent of Police in the I.P.S. cadre. On August 21, 1952, his name again appeared in the list which we may call "fit for trial list". His name also appeared in similar list on July 12, 1954.

One of the questions which has to be decided in this case is whether these lists can come within the expression "select Joist" used in the second proviso in r. 3 ( 3) of the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter referred to as the Seniority Rules, which came into force on September 8, 1954.

On November 10, 1955, the first meeting of the Selection Committee set up in accordance with Regulation 3 of the Indian Police Service (Appointment by Promotion) Regulation, 1955, hereinafter referred to as the Promotion Regulations, was held at Cuttack. In this meeting the Committee selected and recom-mended officers for officiating appointment in the I.P .S. and the petitioner's name appeared as No. 2 in the List.

On February 10, 1956; the Union Public Service Commis-sion approved the recommendations of the above s~lection com-mittee. On December 1, 1956, the Government of India wrote to the Union Public Service Commission requesting for its advice as to whether the list prepared by the Selection Committee could

be treated as "Select List" as recommended by the State Govern-ment. On January 10, 1957, the Commission replied as foUows:

"I am directed to refer to Shri S. P. Mukherjee's letter No. 5/1/56-AIS(I), dated the 10th Dec. 1956 and to say that the Selection Committee whi~h met at Cuttack on the 10th Nov. 1955 did not recommend any officer for appointment to the Indian Administra-tive Service/Indian Police Service. The Committee only recommended officers who were considered suit· able to hold Indian Administrative Service/Indian Police Service cadre posts in an officiating capacity. Lists of such officers are made to avoid frequent refe-rences to the Commission in making interim arrange-ments in cadre pos;·; till cadre officers become available and these lists can not be considered as Select Lists.

I am to su~est that the State Govt. may be advised to place the cases of all these officers before the Selec-tion Committee when it meets again in Orissa somt;time in the month of Feb. 1957. for preparation of the Select List."

On February 15, 1957, the Selection Committee met and placed the petitioner, including some others, in the "Select List" for substantive appointment to the Indian Police Service. The Committee also recommended some persons for holding ~adre posts in an officiating capacity.

Reiterating the view that it had already expressed en Janu-ary 23, 1957, on March 27, 1957, the Commission wrote to the Government of India stating :

"(i) that the 'fit for trial' list is intended merely in order to avoid specific references to the Commission for casual appointments to senior Indian Administra-tive Service/Indian Police Service Posts.

(ii) that the Commission have advised in para 2 of their letter No. F.950/55-R.Ill, dated the 25th Sept. 1956, that the 'fit for trial' list being not list en-visaged under the Indian Administrative Semce/ Indian Police Service (Appointment by Promotion) Regulations, any officiation of an officer includecl in the 'fit for trial' list cannot be taken as approved officiation for purposes of seniority and .... "

On May 7, 1957, the Government of India wrote to State Governments and observed :

the

"The question whether the officiation in senior posts of the State Civil Service/State Police Officer after in-

clusion of their names in the ~fit for trial list' should or should not be taken into account for the purpose of seniority, on their subsequent appointment to the. Indian Administrative Service, Indian Police Service, has been engaging the attention of the Government of India for some time past. As the State Governments are. aware, the Indian Administrative/Police Service (Appointment by Promotion) Regulations do not pro· vide fo. the preparation of any such fit for trial list. · Such list has been devised merely to enable the State Government to :ry out few officers irrespective of their seniority with view to test their suitability for senior posts and is intended only to avoid specific reference to ·the Uuion Public Service Commission for casual short term appointments of the State Civil Ser-vice/ State Police Service officers to senior Indian Ad· ministrative Service/Indian Police Service posts. The Union Public Service Commission, who were consulted in this respect, have advised that any officiation of State Civil Service/State Police Service officers includ-ed in the fit for trial list should not be taken into account to determine their seniority in the Indian Administrative Service/Indian Police Service."

The Central Government further stated :

"The Government of India have accordingly decided that wherever such lists have been prepared in some States, the officiation in the senior posts of the State Civil Service/State Po!ice Service officers in-cluded in the 'fit for trial' list cannot be counted for the purpose of determining the seniority of such offi. cers, under the Indian Administrative Service/Indian Police Service (Regulation ()f Seniority) Rules, 1954.

On July 10, 1957, the petitioner was appointed to the Indian Police Service. On July 22, 1958, the Government tJf India wrote to the Government of Orissa regarding the seniority of the petitioner. It stated :

"Til.e approved continuous officiation of these offi-cers counting for seniority commenced from the 10th February, 1956-the date on which the Union Public Service Commission approved the 'fit for continuous offi· ciation list' containing their names. This date being later than the date i.e. 7-9-55 on which Shri S. S. Padhi (1951 R.R.) siarted officiating in the ;enior posts but earlier than th.e date on "'hich regular recruits of 1952 started officiating it has been decided that these officers may be finally allotted to 1951 and placed I.13SupCl69-3

[1970] l S.C.R,

en.bloc below Shri S. S. Padhi (1951-R.R.) and above Shri B. N. Misra (1957.-R.R.)."

It is this order which has been quashed by the High Court.

The learned Attorney General, who appears for the appel-lant, urges that the case of the petitioner is covered by the second proviso tor. 3(3) of the Seniority Rules and is not governed only by r. 3(3)(b). He urges that the lists of 1951, 1952 and 1954, mentioned above, were not Select Lists within the meaning of the second proviso, and it is only the Select List which was made on February 15, 1957, which is the Select List within the second proviso, and that there has been no discrimination or breach of art. 14, as held by the High Court.

The learned counsel for the petitioner on the other hand con-tends that the second proviso does not govern r. 3 (3 )(b) but in fact governs the first proviso only. He says that the Select List of 1951 was Select List within the meaning of the second proviso and the seniority of the petitioner should be counted from that date. In the alternative he contends that the petitioner's officiation in senior posts prior to July 10, 1957, had in fact been approved and was approved officiation within the second proviso. He further contends that the date, February 10, 1956, mentioned in the order dated July 22, 1958, is an arbitrary date and the Government has, in fact, not applied its mind to the question. He further says that there has been discrimination and one Singh-deo has been given benefit which has been denied to the peti-tioner.

The main point that arises in this case is whether the Se;-~, Lists of 1951, 1952 and 1954 can be deemed to be treated as Select Lists within the second proviso. Ii is necessary to set out rule 3 of the Seniority Rules in order to deal with this point.

Rule 3 reads thus :

"3. Assignment of Year of Allotment-(!) Every officer shall be assigned year of allotment in accordance with the provisions hereinafter contained in this rule.

(2) The year of allotment of an officer in service at the commencement of these rules shall be the same as has Ir.en assigned to him or may be assigned to him by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these ,rules:

Provided that where the year of allotment of an officer appointed in accordance with rule 9 of the Re-

cruitment Rules has not been determined prior to the commencement of these Rules, his year of allotment shall be determined in accordance with the provision in clause (b) of sub-rule (3) of this rule and for this purpose such officer shall be deemed to have officiated in senior post only if and for the period for which he was approved for such officiatien by the Central Gov-ernment in consultation with the Commission.

( 3) The year of alloiment of an officer appointed to the Service after the commencement of these rules, shall be-

(a) where the officer is appointed to the Service on

the results of competitive examination, the year follow-ing the year in which such examination was held;

(b) where the officer is appointed to the Service

by promotion in accordance with rule 9 of the Recruit-ment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accord-ance with rule 7 of those Rules who officiated conti-nuously in senior post from 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 Q of the Recruitment Rules who started officiating continu-ously in senior post from date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those F.ules, so started offi-ciating shall be determined ad hoc by the Central Gov-ernment in consultation with the State Government con-cerned;

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 senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the recruit-ment 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 Govern-ment in consultation with the Commission.

Explanation 1-An officer shall be deemed to have officiated continuously in senic: post from certain date if. during the period from that date to the date of his confirmation in the senior grade he continues to

hold without any break or reversion senior post other-A wise than as purely temporary or local arrangement. Explapation 2.-An officer shall be treated as having officiated in senior post during any period in respect of which the State Government concerned certi-fies that he would have so officiated but for his absence on leave or appointment to any special post or any other exce.ptional circumstance."

It seems to us that the 19.51, 1952 and 1954 lists cannot be ~.w to be Select Lists within the second proviso because, u matter of fact, the Selection Committee did not select names for the purpose of substantive appointment but Only selected names for the purpose of officiation in the senior posts of the Indian Police Service. Regulation 5 ( 1) of the Promotion Regu-lations inter alia provided :

"5. Preparation of list of suitable officers.-( I)

The comu1ittee shall prepare list of such members of the State Police Service as sansfy the condition spc:ci-fied in regulation 4 and as are held by the committee to be suitable for promotion to the Service . ... "

Now this clearly means that the Committee should think of substantive appointments in the service and not officiating appoint-ments.

Similarly, the draft rule 2, which was being acted upon be-fore the Promotion Regulations came into force, provided :

"A committee shall be constituted by the State Government composed ...• (for the Indian Police Ser-vice) of the Chief Secretary, the Inspector General of Police and Deputy Inspectors General of Police. 'This Committee ~hall prepare select list of State .... Police Service Officers who are considered suitable for promotion. The list will be renewed and revised annually."

Draft rule 3 provided that "the State Government should invite the Union Public Service Commission to depute one of their members to preside at the meetings of the Committee." Draft rule 4 provided that "in preparing this list, th;: Committee shall be guided by the suitability of the officers for appointment to the .... Indian Police Service. No officer shall be included in the list who has not definitely proved his fitness for such appoint-ment . ... "

It seems to us thN the Public Service Commission and the Government of Tndia were quite right in deciding that the 'fit for

trial' lists could not be deemed to be select lists made within the draft rules or the Promotion Regulations.

In view of this conclusion it is not necessary to decide the question, which was raised by the learned Attorney General, that in any event the second proviso is only dealing with select lists made after the Promotion Regulations came into force and not with select lists made under the so-called draft rules. We are assuming, without deciding, that if proper select list bad been made under the draft rules it would be select list within the meaning of the second proviso.

This t'lkes us to the next point whether .the petitioner is governed by the main portion of rule 3 ( 3 )( b) and not by the second proviso. In our opinion, the object of the second proviso is to cut down the period of officiation which would be taken into consideration under rule 3 ( 3 )(b). It is common ground that the case of ~e petitioner is not covered by the first proviso. We are unable to agree w;th the learned counsel for the petitioner that the qnly object of the second proviso is to limit the opera-tion of the first proviso.

Explanation I really explains the expression "officiated conti-nuously" occurring in rule 3(3)(b). But it does not mean that where Explanation I applies the second proviso does not apply. The object ;if Explanation I is to deal with the problem arising in the case of officers holding appointments as purely temporary or local arrangement.

If the second proviso applies, as we hold it does, it was for the Central Government to approve, or not to approve, the period of officiation prior to the date of inclusion of the petitioner in the Select List. As observed by this Court in D. R. Nim v. Union of India(') "the first period (i.e. period before the date of inclusion of an officer in the Select List) can only be counted if such period is approved by tb(I Central· Government in consul-tation with the Commission." They have approved the period from February 10, 1956 to July 10, 1957. No material has been brought to our notice to show that the Central Government did not apply its nrind to the problem.

The learned counsel for the petitioner contends that in the letter dated July 22, 1958, list called the "fit for continuous officiation list" is mentioned which is said to have been approved by the Public Service Commission. The learned counsel rightly points out that no ~uch list exists. Apparently this is an expres-sion coined by the draftsman to express the views of the Public Service Commissio,n which clearly stated in the letter dated February 10, 1956, that they approved the recommendation of

(1) [1967] 2 S.C.R. 325, JZ9.

the Selection Committee which met at Cuttack for the selection of police officers for promotion to the Indian Police Service in an officiating capacity.

There is no doubt from the correspondence we have set out above that the Government of India were quite aware of the re-quirements of Select list.

We are unable to agree with the learned counsel that Febru-ary 10, 1956, is an arbitrary date. It has definite relation to the question of approved period of officiation because it is on this date that the Public Service Commission approved the inclusion of the petitioner in the list for officiating appointment for the first time after the Promotion Regulations had come into force.

The next point which we may now consider is whether the officiation period prior to February 10, 1956, was, as matter of fact, approved by the Government of India. The learned coun~:I has taken us through the correspondence. He has been able to point out some letters written by the State Government on the point but no letter from the Government of India has been shown which could possibly be read as approving his period of ofliciation prior to February 10, 1956. At any rate the approval of Government of India has to be accorded after the appointment to I.P .S. and not before.

The only point that remains now is the question of discrimi-nation. Singh Deo was an officer who was appointed on June I, 1955, after the Seniority Rules had come into force and he seems to be governed by the first proviso. We have not been able to appreciate how this case has any relationship to the case of the petitioner.

The learned Attorney General had raised the point that all the officers who were likely to be affected by the decision of the writ petition had not been impleaded as parties to the petition, and he referred to us the decision of this Court in Padam Singh Jhina v. Union of India('). where Shah, J., speaking for the Court observed :

"But we are unable to investigate the question whether there has been infringement of the rules gov-erning fixation of seniority, for majority of those who were placed above the appellant in the seniority list are not impleaded in the petition before the Judicial Com-missioner and are not before this Court. It is impossi-ble to pass an order, assuming that the appellant is able to convince us that breach of the rules was commit-ted, altering the list of seniority, unless those who are

(I) Civil Appeal No. 40S of 1967: Judgment dated AUJll't 14, 1967

likely io be affected thereby are before the Court and have an opportunity of replying to the case set up by the appellant."

This is salutary rule and should be observed. But the learned counsel for the petitioner says that he was concerued with his year of allotment and in that question no body else was interested directly. Each officer has to have year of allotment and no other officer is directly interested in it. But as we are allowing the appeal it is not necessary to finally decide whether the peti-tion should have been dismissed only on this ground.

In the result the appeal is allowed, the judgment and order of the High Court set aside and the petition dismissed, but there will be no order as to costs here and in the High Court.

Appeal allowed .