Per Hon’ble Mr. Devendra Chaudhry, Member (A)

1. The present Original Application (O.A.) has been preferred against the seniority fixed after being promoted into the Indian Administrative Service (I.A.S) Cadre from the State Civil Services vide order dated 28/10/2021.

2. Per applicant, brief facts of the case are that he was appointed in the State Civil Services in the State of Uttar Pradesh in October 1999. That, later on promotion he was appointed to the IAS cadre against promotion quota for the vacancy year 2020 by the Government of India duly vide order dated 13.10.2021. However, the year of allotment / seniority fixed vide order dated 28.10.2021 is incorrect inasmuch that as per provisions of IAS (Regulation of Seniority), Rules, 1987, his year of allotment should be 2014 instead of 2015 based on the number of years of qualifying service rendered, viz 21 and the points so accumulated being six. That this injustice has happened because one of his seniors viz. Shri Arun Kumar-II joined late of his own volition in the State Civil Services, viz. on 31.07.2000 which is later to his joining the service viz on 21.10.1999. That Applicant’s due seniority however, cannot be disregarded just because his senior per recruitment year joined late of his own volition. The senior’s doings cannot burden the Applicant.

2.1 That this matter regarding fixation of seniority/year of allotment has been settled vide judgement and order in a similar matter of CAT, Allahabad Bench which vide its order dated 31.03.2017 in the matter of Kavindra Pratap Singh and vide order dated 25.10.2018 in the matter of Rajesh Kumar Pandey directed revision of seniority to which the Government of India has complied with by its orders dated 13.09.2018 and 09.07.2019 respectively. It is the submission of the applicant that being similarly placed as in the case of Kavindra Pratap Singh and Rajesh Kumar Pandey (Supra) he, therefore preferred a representation dated 30.11.2021 to be given similar seniority benefit. That, the said representation has been forwarded in December, 2021 to the Government of India but so far as no action taken place and he is suffering the injustice of reduced seniority for no fault of his and that his seniority should be fixed correctly as of 2014 instead of 2015. Hence this OA.

3. Per contra, the respondent no. 2, viz: State Govt of U.P. has filed counter affidavit in which it is submitted that the allotment of seniority year in the Indian Administrative Service is made by the DoPT, Government of India and as such on behalf of Government of UP, Respondent No. 2, nothing can be said in this regard except that the promotion has been made as per the provisions of IAS (Regulation of Seniority), Rules, 1987. Therefore, as far Respondent No. 2 is concerned the representation of the applicant has been forwarded to the Government of India vide letter dated 15.12.2021 and it is up to the Government of India to take a decision in the matter. As regards the counter by respondent no. 1, viz: Union of India through Secretary Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, it is submitted that the applicant was appointed in the IAS by promotion from the select list of 2020 prepared against the vacancies which had arisen between 01.01.2020 and 31.12.2020 vide Department notification dated 13.10.2021. That, the seniority and year of allotment of 2015 has been determined as per Rule 3(3)(ii) of the IAS (Regulation of Seniority), Rules, 1987 as amended from time to time vide Department order dated 28.10.2021. That, as per the provisio to Rule 3(3)(ii) of the IAS (Regulation of Seniority), Rules, 1987, the year of allotment due is 2014. However, it has to be read with Regulation 5(2) of the Indian Administrative Service (Appointment and promotion), Regulation, 1955 which provides that an officer shall not be assigned the year of allotment earlier than that of the year of the allotment assigned to an officer senior to him in that Select list. That, in the present case though the Applicant who is entitled for 2014 seniority/ year of allotment, has been assigned as 2015 because of the fact that his senior Shri Arun Kumar-II who joined the State Civil Service on 31.07.2000 has been assigned 2015 year of allotment based on his total years of qualifying service. Therefore, the applicant cannot be given the 2014 year seniority. Moreover, the case of the Applicant is different from the case cited per the judgement and order of the CAT Allahabad Bench. That, the powers conferred under Rule 3 of the AIS (Conditions of Service-Residuary Matter) Rules, 1960 (referred to as 'Residuary rules' in short hereinafter) would be required to be invoked to grant 2014 seniority which would in turn depend on the facts and circumstances of a case at hand and merits therein, which provides that relaxation may be subject under such exceptions and conditions as may warrant and may be considered necessary for dealing with any case in just and equitable manner. That, the Residuary rules do not confer any right to the officer to be eligible for any relaxation. That, hence the Applicant has no right to be considered for the seniority of the year 2014 due to the later joining of the officer senior to him viz. Shri Arun Kumar-II who joined the State Civil Services on 31.07.2000 even if the applicant joined on 21.10.1999. Accordingly, it is submitted that the OA is not worthy of being considered and should therefore be dismissed.

4. Heard the learned counsels for the parties at length and examined the pleadings filed carefully.

5. The key issue is that the fixing of seniority of the applicant in light of the various Rules. More so in light of the similar benefit being granted by CAT Allahabad Bench cited by the Applicant.

6. In this connection, it will be useful to examine the judgment in another similar matter, viz that of Virendra Kumar Mishra & another v. UoI & Ors. in OA No. 403 of 2018 passed by CAT, Allahabad Bench in which similar matter was considered qua the IPS cadre which also has Rules similar to the IAS cadre being an All-India Service with respect to fixing seniority on promotion from the State service to All India Service and in which the matter of Kavindra Pratap Singh (supra) has also been referred to. In the operative portion of the judgment, it is observed as under:

“12. As may be seen above, the said order has been passed taking into account the continuing undecided position in the WP 1309/2018 in the Hon Allahabad High Court. Quiet logically therefore, there is no reason to deny the same benefit to the applicants and it seems that the respondents are just waiting for an order of this Tribunal followed by a possible contempt as had happened in the matter of Kavindra Pratap Singh so as to grant benefit to the applicants and they are not able to provide the same on their own initiative even though the facts of the case are identical. The only plea of the respondents is that given the pending WP in the Allahabad High Court and the view that the benefit of AIS Rules 1960 cannot be given to Baburam R-6, hence the applicants have to have their seniority fixed as per rule 3(3)(ii) of 1988 rules.

13. This rationale of the respondents in not granting similar benefit to the applicants is unacceptable on the grounds of equitable justice and the benefit provided to certain applicants in an earlier decided judicial matter cannot be denied to similarly placed applicants in a subsequent matter. In fact, there is a catena of judgements of the Hon Apex court in this connection.

14. In sum, we are inclined to agree with the view of the applicants that the benefit of the judgement and order of this Tribunal given in OA 463/2016 vide order dated 31-3-2017 should be given to the applicants subject to the final decision of the Hon Allahabad High Court in WP 1309/2018: Union of India versus Kavindra Pratap Singh which is still pending and there is no stay in the matter with regards to the order of this Tribunal dt 31.03.2017. Further that since the relief in this OA is being granted in terms of the relief granted in the OA 463/2016, hence we are not adjudicating on the relief sought with respect to quashing of the Proviso / Explanation to Rule 3(3) (ii) of the 1988 Rules.

15. On the basis of foregoing discussions and detailed analysis of the matter, the prayed for relief is granted and it is directed as follows:

i. The order dated 13.07.2018 rejecting the representation of the applicant Virendra Kumar Mishra is quashed.

ii. The order dated 11.01.2016 in respect of all applicants fixing their seniority erroneously is quashed.

iii. The respondent/ competent authority is directed to issue orders with respect to corrected seniority of the applicants taking into account the weightage admissible as per the latest amendments and circulars of DOPT including vide dated 18.04.2012

iv. The above orders are subject to the final order in WP 1309/2018 pending in the Hon Allahabad High Court.”

7. In connection with above, it would be useful to examine the order dated 28/10/2021, the Rule 3(3)(ii) of the IAS (Regulation of Seniority) Rules, 1987 and Regulation-5(2) of the IAS (Appointment and Promotion) Regulations, 1955 (referred to as 'IAS Regulations' in short hereinafter). Relevant portions are extracted below:

Annexure A-5: Order dated 28/10/2021:

No. 14014/04/2013-AIS-I

Government of India

Ministry of Personnel, Public Grievances and Pensions

Department of Personnel and Training

North Block, New Delhi

Dated 28th October, 2021

Order

Consequent upon receipt of a proposal from the State Government of Uttar Pradesh vide their letter No. 1235/2-1-2021-29-1(1)/2021 dated 26.10.2021 for fixation of seniority /year of allotment to the officers appointed to IAS from State Civil Service on the basis of inclusion of their names in Select List 2020 ( prepared against vacancies arisen between 01.01.2020 to 31.12.2020) vide DOPT Notification No. 14015/22/2021-AIS(I)-B dated 13.10.2021, the seniority /year of allotment of the officers has been computed under rule 3(3)(ii) of IAS (Regulation of Seniority) Rules, 1987 and other relevant Rules as amended from time to time. Weightage formula is as under:-

Completed years of qualifying service	Weightage in years
12	3
15	4
18	5
21	6
23	7
25	8
27	9(Maximum

2. Select List 2020 (SCS category)

(Prepared against vacancies arisen between 01.01.2020 to 31.12.2020)

Sl. No.	Name of the officer (S/Shri/Smt)	Date from which holding continuous service in the State Civil Service not below the rank of Dy. Collector or equivalent	Completed year of continuous service in the State Civil Service not below the rank of Dy. Collector or equivalent till 31st December of the year for which the meeting of the committee to make selection was held to prepare the Select List on the basis of which the said officers were appointed to IAS (Fractions if any, are to be ignored) i.e. 31.12.2020	Total weightage in years in terms of the IAS (Regulation of Seniority) Rules, 1987 as amended from time to time, till date.	Year of allotment entitled	Name, year of Sl and YOA of the officer in PQ (SCS, immediately senior to the one whose name is in column no. 02	Year of Allotment assigned
1	2	3	4	5	6	7	8
1	Ashok Kumar	03.01.1999	21	6	2014	Girijesh Kumar Tyagi allotted 2014 batch on the basis of Select List 2019	2014
2	Mahendra Prasad	03.01.1999	21	6	2014	As at S.No. 1 in the column no. 2	2014
3	Gaurav Verma	03.01.1999	21	6	2014	As at S.No. 2 in column no. 2	2014
-	-	-	-	-	-	-	-
-	-	-	-	-	-	-	-
10	Santosh Kumar Sharma	19.10.1999	21	6	2014	As at S. No. 9 in column no. 2	2014
11	Arun Kumar-II	31.07.2000	20	5	2015	As at S. No. 10 in column no. 2	2015
12	Shyam Bahadur Singh	19.10.1999	21	6	2014	As at S. No. 11 in column no. 2	2015*
13	Pawan Kumar Gangwar	20.10.1999	21	6	2014	As at S. No. 12 in column no. 2	2015*
14	Brijesh Kumar	20.10.1999	21	6	2014	As at S. No. 13 in column no. 2	2015*
15	Harikesh Chaurasia	24.12.1999	21	6	2014	As at S. No. 14 in column no. 2	2015*
16	Mahendra Singh	19.10.1999	21	6	2014	As at S. No. 15 in column no. 2	2015*
17	Ravindra Pal Singh	19.10.1999	21	6	2014	As at S. No. 16 in column no.	2015*
						2
18	Anil Kumar	19.10.1999	21	6	2014	As at S. No. 17 in column no. 2	2015*
19	Smt. Vandana Tripathi	04.01.2001	19	5	2015	As at S. No. 18 in column no. 2	2015
20	Sameer	03.01.2001	19	5	2015	As at S.NO. 19 in column no. 2	2015
21	Smt. Archana Gaharwar	04.01.2001	19	5	2015	As at S.No. 20 in column no. 2	2015
22	Kumar Vineet	04.01.2001	19	5	2015	As at S.No. 21 in column no. 2	2015
23	Vishal Singh	04.01.2001	19	5	2015	As at S.No. 22 in column no. 2	2015
24	Dhanajay Shukla	04.01.2001	19	5	2015	As at S.No. 23 in column no. 2	2015
25	Kapil Singh	04.01.2001	19	5	2015	As at S.No. 24 in column no. 2	2015

*The seniority/year of allotment of officers at SL.No. 12, 13,14,15,16,17 and 10 has been restricted under proviso to the rule 3(3)(ii) of the IAS Regulation of Seniority) Rules-1987 which provide that an officer shall not be assigned year of allotment earlier than year of allotment assigned to other officer senior to him in that Select List or appointed on the basis of earlier Select List. [EMPHASIS ADDED]

2.1. As per Rule 4 of the IAS (Regulation of Seniority) Rules, 1987, the officer whose names have been mentioned at Sl. No.1 to 10 In the Select List 2020 shall be placed below Sh. Girijesh Kumar Tyagi, Junior most promotee IAS officer of 2014 batch (appointed on the basis of Select List of 2019) and above Ms. Nidhi Gupta, senior most RR IAS officer of 2015 batch of UP cadres.

2.2 As per Rule 4 of the IAS (Regulation of Seniority) Rules, 1907, the officer whose names have been mentioned al Sl. No.11 to 25 In the Select List 2018 shall be placed below Shri Arvind Kumar Chauhan, Junior most RR IAS officer of 2015 batch and above Sh. Shashank Tripathi, senior most RR IAS officer of 2016 batch of UP cadre.

3. The orders may be convoyed to the concerned officers.

Sd/-

(Udal Bhan Singh)

Under Secretary to the Government of India

Tel: 23094142

Rule 3(3)(ii) of the IAS (Regulation of Seniority) Rules, 1987:

“3. Assignment of year of allotment:

(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in these rules.

(2) The year of allotment of an officer in Service at the commencement of these rules shall be the same as has been 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.

(3) The year of allotment of an officer appointed to the Service after the commencement of these rules shall be as follows:-

(i) the year of allotment of a direct recruit officer shall be the year following the year in which the competitive examination was held:

Provided that if a direct recruit officer is permitted to join probationary training under rule 5(1) of the IAS (Probation) Rules, 1954, with direct recruit officers of a subsequent year of allotment, then he shall be assigned that subsequent year as the year of allotment.

(ii) The year of allotment of a promotee officer shall be determined with reference to the year for which the meeting of the Committee to make selection, to prepare the select list on the basis of which he was appointed to the Service, was held and with regard to the continuous service rendered by him in the State Civil Service not below the rank of a Deputy Collector or equivalent, up to the 31st day of December of the year immediately before the year for which meeting of the Committee to make selection was held to prepare the select list on the basis of which he was appointed to the Service, in the following manner:-

a.for the service rendered by him upto twenty one years, he shall be given a weightage of one year for every completed three years of service, subject to a minimum of four years;

b. he shall also be given a weightage of one year for every completed two years of service beyond the period of twenty one years, referred to in sub-clause (a), subject to a maximum of three years.

Explanation- For the purpose of calculation of the weightage under this clause, the fractions, if any, are to be ignored:

Provided that he shall not be assigned a year of allotment earlier than the year of allotment assigned to an officer senior to him in that select list or appointed to the service on the basis of an earlier select list:

Regulation-5(2) of the IAS (Appointment and Promotion) Regulations, 1955:

“..5 (2)The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services in the order of seniority in that service of a number which is equal to three times the number referred in sub-regulation (1).

Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers;

Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in sub-regulation (3) shall be excluded;

Provided also that the Committee shall not consider the case of a member of the State Civil Service unless on the first day of January of the year for which the Select List is prepared, he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.

Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of January of the year for which the Select List is prepared, in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.

EXPLANATION:The powers of the State Government under the third proviso to the sub-regulation shall be exercised in relation to the members of the State Civil Service of constituent State, by the Government of that State.

-----------------------------

First of all as is evident from Rule 5(2) of the IAS Regulations, there is nothing which would be contrary to the procedure adopted by the Committee for finalising the Select list and the Regulations do not touch upon the issue of seniority year as in the case at hand. The controversy revolves more around the Proviso to Rule 3(3)(ii) of the Seniority Rules and so the averment of the Respondents that per the IAS Regulations the Applicant cannot be given 2014 as year of seniority does not seem to be correct.

Now we may advert to the point asserted by the Applicant in his Rejoinder, that in column 6, the Applicant, who is placed at serial number 13, is shown to be entitled for the year 2014 as his year of allotment to UP IAS Cadre by giving weightage of 6 years for his 21 completed years of qualifying services. However, in column 8, he has been assigned 2015 as his year of allotment on account of the Note at the end of the chart which per the Respondents has been done in accordance with the Proviso to Rule 3(3))(ii) of the Seniority rules of 1987 on the misconceived ground that even though an officer, placed at serial number 11, had only completed 20 years of qualifying service and was therefore given only 5 weightage points and was assigned 2015 as his year of allotment, the Applicant despite his completing 21 years of service and earning 06 points cannot be given the entitled year of allotment as 2014 per column-6 of the order 28/10/202 because the Proviso to Rule 3(3)(ii) requires that any officer shall not be given a year of allotment earlier than the year of allotment assigned to an officer senior in the select list. By doing so, the Respondents have ended up in foisting the fault of the candidate at Sl-11 on the Applicant and perhaps others in the Select list. What is equally significant here and not correctly interpreted by the Respondents is that the Rule 3(3)(ii) clearly states that the year of allotment of the promotee officers shall be determined with regard to the ‘continuous service rendered by him in State Civil Service not below the rank of a Deputy collector’, up to 31st December immediately before the year for which, the meeting of the committee to make selection was held, to prepare the select list on the basis of which he was appointed to service. The provisions of Rule 3(3)(ii) of the Seniority Rules even after amendment dated 18/04/2012 do not change this method of calculation. Relevant portions are extracted here as under:

1. (1) These rules may be called the Indian Administrative Service (Regulation of Seniority) Amendment Rules, 2012. (2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Indian Administrative Service (Regulation of Seniority) Rules, 1987, in rule 3, in sub-rule (3), in clause (ii)

(A) The words "immediately before the year" shall be omitted;

(B) For sub-clauses (a) and (b), the following clauses shall be substituted, namely:-

" (a) for the service rendered by him upto twelve years, he shall be given a weightage of one year for every completed four years of service, subject to a minimum of three years;

(b) for the service rendered by him beyond 12 years, as referred to in sub-clause (a) and upto 21 years, he shall be given a weightage of one year for every completed three years of service;

(c) for the service rendered by him beyond 21 years, as referred to in sub-clause (b), he shall be given a weightage of one year for every completed two years of service, subject to a maximum of three years". [EMPHASIS SUPPLIED]

Evidently the six points arrived at with respect to the Applicant are on the basis of this amended calculation and not the earlier one which marking is, in any case not disputed per the order of 28/10/2021 per Column-6. The amendment in no way effects the case at hand as the Applicant has been not been given benefit beyond the provision in (b) part of the amended para because his considered service is of 21 years only. The manner of counting the points with respect to the years of service continue to be ordained by provision in part (a) and (b). It is on this basis that the Selection Committee arrived at the figure of six points qua the Applicant as stated by them itself in the said column-6. Further the amended provisions of Rule 3(3)(ii) of the Seniority Rules, continues to lay emphasis on the “with regard to the continuous service rendered by him in the State Civil Service, not below the rank of Deputy Collector or equivalent. This clearly reveals that the emphasis of the Rule 3(3)(ii) is on completion of continuous service rendered by an officer in State Civil Service, meaning thereby, ‘the actual number of completed years of ‘qualifying service’. By applying the provisions of Rule 3(3)(ii) on the applicant, it is clear that since the Applicant has indeed completed 21 years of qualifying service in the State Civil Service, therefore he is legally entitled to 6 weightage points, and so therefore 2014 has to be his allotment year, which should have been lawfully assigned to him, while allotting the year of allotment of UP IAS Cadre. The interpretation of the Proviso has to be made constructively such as in matters of normal equal conditions wherein seniority is required to be protected but not where a provision emphasizes a manner of calculation of points for promotion based on the number of years of qualifying service rendered and the main provision containing the related method is itself made subservient to the Proviso in a blind one-sided manner with injustice to one party in an over reach to give justice to another. In this context the Respondents may do well to examine the Rule 3 of the All-India Services (Conditions of Service-Residuary Matters) Rules 1960 for appropriate cases which they have also alluded to. It reads as under:

Abstracts of “ The All India Services (Conditions of Service-Residuary Matters) Rules, 1960

“..2. Power of Central Government to provide for residuary matters.—The Central Government may, after consultation with the Governments of the States concerned, make regulations to regulate any matters relating to conditions of service of persons appointed to an All India Service, for which there is no provision in the rules made or deemed to have been made under the All India Services Act, 1951 (61 of 1951); and until such regulations are made, such matters shall be regulated:-

(a) in the case of persons serving in connection with the affairs of the Union, by the rules, regulations and orders applicable to officers of the Central Services, Class I;

(b) in the case of persons serving in connection with the affairs of a State, by the rules, regulations and orders applicable to officers of the State Civil Services, Class I, subject to such exceptions and modifications as the Central Government may, after consultation with the State Government concerned, by order in writing, make:

1 Provided that no order granting gratuity and pension to a member of an All India Service or his family members, under the relevant extraordinary pension Rules, applicable to officers of the State Civil Services, Class I, shall be passed by the State Government except after consultation with the Union Public Service Commission:

2 Provided further that:— (i) no order granting any costs incurred by a member of an All India Service in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty, under relevant rules, regulations or orders applicable to officers of State Civil Service, Class I, shall be passed by a State Government except after consultation with the Union Public Service Commission and in cases where there is a difference of opinion between the State Government and the Union Public Service Commission, the matter shall be referred to the Central Government for decision, and (ii) an order granting any costs incurred by a member of an All India Service in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty while serving in connection with the affairs of the Union, under relevant rules, regulations or orders applicable to officers of the Central Civil Services, Class I, shall be

1 Added vide MHA Not. No. 9/2/60-AIS(IIIa) dated 16.05.1961

2 Added vide MHA Not. No. 9/1/65-AIS(III) dated 02.05.1968 (GSR No.836 dt. 11.05.1968) 555 passed only by the Central Government after consultation with the Union Public Service Commission.

3. Power to relax rules and regulations in certain cases.—Where the Central Government is satisfied that the operation of— (i) any rules made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or (ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule or regulations, as the case may be, to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. 3

4. Interpretation.—If any question arises as to the interpretation of these rules, or relating to the application or interpretation of rules, regulations or orders referred to in clauses (a) and (b) of rules 2, the Central Government shall decide the same. GOVERNMENT OF INDIA’S DECISIONS GOVERNMENT OF INDIA DECISION UNDER RULE 3 1. Recruitment rules cannot be relaxed under these rules: -

A doubt was raised whether the power of relaxing rules was intended to be applicable to ‘recruitment rules’ also. The Government of India have held that the ‘recruitment rules’ cannot be relaxed under rule 3 of the A.I.S. (Conditions of Service- Residuary Matters) Rules, 1960. [M.H.A. F.No. 14/2/55-AIS(III).] 2. Circumstances under which rules and regulations can be relaxed: -

A question arose regarding the extent of the powers vested in the Government under rule 3 of the A.I.S. (Conditions of Service-Residuary Matters) Rules, 1960, to deal with cases involving relaxation of rules and regulations. The Government of India have held that:— (a) undue hardship signifies unforeseen or unmerited hardship to an extent not contemplated when the rule was framed and does not cover any ordinary hardship or inconvenience which normally arises; (b) the relaxation should enable the case to be dealt with in a just and equitable manner and not on grounds of compassion however justified: and (c) the benefit to be conferred in relaxation of any rule or rules must be of a nature already provided for in the rules; Government are not empowered by this rule to confer benefits which are not contemplated in the rules. [G.I. MHA letter No. 30/1/63-AIS(II). dated the 1st January,1966.]

This provision enables the Respondents to resolve the issue qua Sl-11 candidate should they wish to because the case of the Sl11 candidate could be a possible exception as one and only and not the Applicant per se because his case would be linked to several others who may be similarly placed and so together it could not be logically classified as an exception for consideration under the Residuary rules as the Respondents seem to suggest – again in a misconceived interpretation of the Seniority rules and to avoid admitting their misconceived position and shrugging of their burden on the Applicant to seek succour under the Residuary Rules. Notwithstanding this possibility, in any case the matter of allotment of any other officer of the Select List apart from the Applicant is not the mandate and business of the case at hand and hence we are not going into the ifs and buts of such a consideration. In any case we are not disturbing the year of allotment of anyone in the impugned order/list. What we are concerned in the limited way is that civil damage should not visit the Applicant for no fault of his in an unabashed unjustifiable interpretation of certain provisions in an out of context manner. The Respondents on the other hand cannot to the contrary stake claim to these Rules for not granting rightful benefit to the Applicant as is vaguely and threateningly attempted to be done so per the averments in the counter.

8. Notwithstanding above Residuary rules whose recourse the Govt of India can take as deemed fit, as far as the instant case is concerned, this Tribunal is inclined to apply the Kavindra Pratap Singh judgement and order dated 31/03/2017 of the CAT Allahabad Bench in the case at hand and so the same becomes very relevant. This would also show as to how the Respondents have asserted in a misconceived manner that the said judgement and order is not applicable in the current case. Relevant portions of the judgement are accordingly extracted below for threadbare analysis:

“…15. The core contention of the respondents is that this restriction has been done in compliance of the proviso to Rule 3(3) (ii) of Seniority Rules 1988. It has been contended that this proviso envisages that even if a junior officer is having longer service as Dy. SP to his credit than that of his senior in the IPS, he will not be given a higher batch year than that of his senior. In other words, it restricts the junior IPS officer to get higher batch year than that of his senior. What does the word seniority mean in this context and in which list and how does respondent no. 6 become senior qua the applicants It has been repeatedly argued by the respondents counsel that respondent no. 6 belongs to 1984 batch of the PPS and applicants to 1985. Hence, applicants cannot become senior to respondent no. 6. We are unable to accept this contention of 1984 Vs. 1985 batches of the PPS. In fact, reference of PPS batches has no relevance ipso facto in the fixation of order of seniority in the IPS . What matters ultimately is the order in the Select List. It is the order in the Select List that is followed for appointment to and fixation of seniority in IPS . How is this order of seniority fixed The UPSC, on the basis of the relative assessment , selects the PPS officers as suitable for promotion to IPS and places them in a particular order which may be different from the order in which their names are placed in the eligibility list (according to the PPS seniority) submitted by the State Government. It is this final order in the Select List that is the basis for all future purposes including fixation of seniority and assignment of year of allotment.

15.1. The plain reading of the proviso refers to seniority of an officer in the Select List which is prepared by the UPSC / Central Government. It is not necessarily the seniority in the eligibility list submitted by the State Government. The order of seniority in which the Select List is prepared may change from seniority position / order in the eligibility list of the State Police Service. Rule 5(4) and 5(5) of the Promotion Regulations 1955 provide for classification of officers on the basis of their relative evaluation during the exercise of preparation of Select List. It would be meaningful to quote these Rules as under: - [emphasis supplied]

5(4).The Selection Committee shall classify the eligible officers as outstanding very good good or unfit as the case may be, on an overall relative assessment of their service records.

5(5). The list shall be prepared by including the required number of names, first from among the officers finally classified as outstanding then from among those similarly classified as Very Good and thereafter from amongst those similarly classified as Good and the order of names inter se within each category shall be in the order of their seniority in the State Police Service 15.2. Two aspects are clear from these provisions as under :

i)The officers are selected as suitable for inclusion in the Select List on the basis of their merit and service records. Service records are based on the performance of officers during the period of their continuous service. However, the length of continuous service does not seem to be taken into account at this stage. [emphasis supplied]

ii)The officers classified as outstanding in the consideration list for a particular year are placed on top of the list and even above the officers, who are senior, even batch-wise, to them. The eligibility list for a particular select year may contain names of officers belonging to various batches. Yet, in the final Select List, an officer of a junior PPS batch may leapfrog over his seniors of many batches if he is assessed as outstanding. Thus, merit and performance over a period are not only considered for the purpose of inclusion of PPS officers in the Select List, the officers assessed with higher grading can jump the list and be placed over their seniors in PPS. This results in the change of order in the eligibility list. Such leapfrogging by juniors above their seniors in the State Police Service is, thus, provided in the Rules. There are specific instances of some officers, as borne out by the records , jumping over their seniors based on their classification which, in turn, is based on their merit and service records. Jumping the State List seniority by juniors based on such classification is provided in the scheme of things while preparing the Select List. Thus, seniority and order in the State list is subsumed in the seniority and order assigned in the Select List. Henceforth, it is this order in the Select List which is sacrosanct and followed for all purposes after induction into the IPS.

16. The most critical fact in the case in hand is that a particular officer is senior to another set of officers in the State Police Service as he belongs to an earlier batch of PPS. Rule 9 of Promotion Regulations 1955 states that the appointment of a member of State Police Service shall be made by the Central Government in the order in which the names of the members of State Police Service appear in the Select List during its validity period. As per Rule 4(2) of the Seniority Rules 1988, promotee officers shall be ranked inter-se in the order in which their names are arranged by the Commission for the purpose of appointment to the service by promotion. Further, Rule 5(5) of Promotion Regulations 1955 ibid provides that the list shall be prepared by including the required number of names...... and order of names inter-se within each category shall be in the order of their seniority in the State Police Service. Rule 5(2) of these Regulations provides that the Committee shall consider for inclusion in the said list the cases of members of the State Police Service in the order of seniority in that service. These provisions read together imply that, normally, the inter-se sequence in which the names of officers are kept in the Select List and the appointment made to the IPS from it is in the same inter-se sequence of the concerned officers as in the State Police Service. However, an exception is provided under Regulation 5(5) wherein the classification on the basis of over all relative assessment of the service records of the officers in the eligibility list under consideration is made and , as stated above, an officer lower down in this list can leapfrog over his seniors, if he has been assessed / classified with a superior rating. As will be seen in succeeding paragraphs, the inter-se sequence in the eligibility list prepared by the State Government is the same as prepared by the State Public Service Commission at the time of declaration of result of the entrance examination. There is no other factor that comes into play in preparation of this inter-se sequence in the seniority of the concerned officers in the State Police Service. It boils down to the fact that the sequence in which the UPSC and Central Government prepare the Select List is generally the same as prepared by the State Government and the State Public Service Commission in the beginning unless disrupted by classification clause. Thus, once an officer is selected with reference to a particular selection year by the State Government, he retains the same position in inter-se seniority linked to that year irrespective of his actual date of joining the service. .

17. We have perused the Select List of 2010 and found that the order in which the names have been placed in the Select List are exactly in the same order in which the proposal for preparation of the Select List was submitted vide the UP Government Letter dated 10.08.2012 to the Secretary, UPSC. Annexure 3.2 of the proposal mentions the details of the officers under consideration in their order of seniority in the State Police Service for years 2009(a), 2010 and 2011. We find that the order in which the officers have been placed in the Select List for 2010 is exactly the same as their order in inter-se seniority in the State Police Service. It is evident from the record that inter-se order of all the officers in the State Eligibility List remained unaltered in the Select List for 2010 and finally prevailed. As the respondent no. 6 was senior in the State List to the applicants, he also remained senior in the Select list to them. In this entire process, a fait accompli seems to have been created by the State Government and State Public Service Commission which went through almost intact till the stage of Select List and finally appointment to the IPS. It was not altered by UPSC/ Central Government. The element of length of continuous service was not factored in the entire process of preparation of the Select List at any stage. Thus , essentially, the order of seniority finalised in the Select List is nothing but the order of seniority in the Seniority List of State Police Service.

18. It would, now, be necessary to ascertain how the seniority in the State Police Service is fixed, that being the foundation. We enquired from the learned counsel for State of U.P and also called a responsible officer of State Public Service Commission to throw some light on this aspect. It was clarified by them that the inter-se seniority of the State Police Service Officers is assigned under Rule 5 of U.P. Government Servant (Seniority) Rules 1991. According to the relevant Rules, the inter-se seniority of the officers selected for a particular Selection Year will be the same as shown in the merit list prepared by the State Public Service Commission. The year of allotment or the batch, as it is called, is the Selection Year for which a notification is made and selection done. The allotment year in the State Police Service has no nexus with the year of examination, declaration of result or the date of joining of the selected officers. The sole criterion is the selection year for which a particular notification was made. Once an officer is selected against a particular selection year, that would be his year of allotment in the State Police Service and is not changed whether a particular officer joins the service alongwith his batch or any time later. It implies that an officer would be entitled to the year of allotment based purely on his selection year and will continue to be senior to all the subsequent batches even if he joins service later than them. This is the case of respondent no. 6.

19. It would be meaningful to see how respondent no. 6 joined the service three years later than the applicants and yet remained senior to them. It is stated by the respondents that he was selected on the basis of examination for selection year 1984. Hence, his year of allotment was 1984 which is fixed forever. The officer was sent for medical examination in the month of June 1986. The Chief Medical Officer, Lucknow vide his Letter dated 12.06.1986 conveyed that he was medically unfit as his height was 163.5 cms against eligibility of 165 cms. On the other hand, the Chief Medical Officer, Varanasi vide his Letter dated 01.07.1986 declared him fit by recording his height as 165 cms. Thus, there was a contradiction in the medical assessment of the officer by two CMOs. In view of this contradiction in the medical reports, the UP Government got him re-examined after four years by a Special Medical Board on 26.04.1990 in which his height was measured as 165 cms declaring him medically fit. Consequently, he was appointed and sent for training after approximately 04 years on 06.07.1990. Though, it has been stated that there was no fault on the part of respondent no. 6, it is noteworthy to see that it took the U.P. Government almost 04 years to resolve a variation of 1.5 cm in height. Despite the late joining by the respondent no. 6 by 04 years, his allotment year/ batch remained 1984. It is this fact which has created the present controversy. [emphasis supplied]

20. Summing up, assignment of year of allotment and seniority of PPS officers on their appointment to IPS is determined on the basis of the year of Select List and their actual continuous State Police Service. Appointment of PPS officers to IPS is made by the Central Government  in the order in which the names of the members of State Police Service appear in the Select List.. Though the Select List is prepared on the basis of merit and performance, the order in which the officers are placed in the Select List is according to seniority in the State Police Service.. The order of seniority in the State Police Service is according to selection year/ batches and within each batch inter se according to the entrance result declared by the State Public Service Commission. Hence, an officer belonging to a previous selection year / batch is and remains senior to subsequent batches of PPS irrespective of his date of joining the service or any other factor. The date of joining the service by an officer is not factored in assigning the year of allotment / seniority in the State Police Service. The factor of actual continuous service is also not considered during the preparation of Select List and it suddenly appears at the time of assignment of year of allotment and seniority in the IPS. No intervention or moderation is made during the preparation of the Select List in the order of seniority of State List except the classification clause. Thus, what is termed as the order of seniority in the Select List is nothing but the seniority in the State Police Service which is based on an imaginary year of selection / batch and remains unaffected by any subsequent development. In the instant case, the order in the Select List, which is sacrosanct and final, is nothing but the order in which the names of officers appeared in the seniority list of the State Government. Thus, de facto the order of seniority in the State List finally prevailed in the Select List. [EMPHASIS SUPPLIED]

21. The whole controversy arose because of the interpretation of the parameters of continuous actual service and batch seniority. At times, the interplay of two valid parameters simultaneously can lead to contradictions and incongruent situations. In the instant case, two such absolute parameters have come into conflict. One is the fundamental principle of service jurisprudence that the seniority of the employee has to be protected and no junior can supersede a senior. Another is the absolute parameter of the length of continuous service of the officers. Apparently, it has been applied mechanically. The respondents have used it to cut both ways. In the case of Respondent no. 6, it has been treated as an immutable parameter from which no deviation can be made. Simultaneously, in case of applicants, the same parameter has been sacrificed. The benefit accruing to the applicants from longer continuous service has been washed off. The same parameter deprives the applicants of the claim on the basis of which they are originally entitled for a higher weightage. It has resulted in a situation that violates the legitimate right of the applicants in terms of the original weightage and, hence, their seniority.

21.1. Such an interpretation to suppress the genuine claim of officers with longer continuous service may lead to ridiculous and untenable consequences. Supposing that an officer selected against a particular selection year actually joins the service 09 years after the next junior batch, it would result in the restriction of the weightage points of such juniors by almost three years. And so on. This would be disastrous for such junior batch/s only because some one senior to them in the State List of PPS has less continuous service than them. The handicap of such senior would then be transferred to the junior batch/s mechanically. Such a situation would be a gross miscarriage of justice.[EMPHASIS SUPPLIED]

22. The purpose of proviso to rule 3(3)(ii) of Seniority Rules 1988 is to protect the right of a senior employee and not to damage the claim of a junior. This proviso should receive purposive interpretation. The terms of the main Rule have to be properly appreciated. The Rule, as extracted in para 12 above, refers to the following: -

(i) Select List

(ii). Weightage

(iii). Year of allotment Select List prepared is merit based, placing the outstanding on a higher pedestal than Very Good, and Very Good higher than Good, as has been provided for in Rule 5(4) and 5(5) of the Promotion Regulations, 1955. Here, seniority in the feeder grade does not have much relevance.

22.1. The weightage afforded is related to the years of service rendered in a particular rank calculated in a quantified manner. This would mean that the weightage corresponds to the extent of continuous service rendered. This premium is thus experience (continuous service) based.

22.2. Stipulation of continuous service for weightage purposes obviously excludes notional service. Apparently, the respondents have understood the intention of stipulation of continuous service and accordingly, restricted the actual service of respondent no. 6 to 20 years treating the remaining period as only notional 22.3. The Rule for working out the year of allotment which virtually forms the seniority in the IPS cadre plays a considerable role and has direct and proximate impact on the future career prospects, and thus ensures a justifiable and healthy blend both of merit and experience, which should be actual. Thus, after preparing the Select List on the basis of the merit position, for working out the year of allotment, the continuous service in the feeder grade is reckoned as per the norms prescribed in the above Rule. This period of weightage is the one earned by each on completion of certain years of past services and cannot be diluted on the vagaries of other candidates. If the rule is literally and rigidly interpreted, it would result in a number of officers in the select list losing their weightage on the ground that the senior in the Select List has less years of weightage. Such a jettisoning cannot be permitted. Thus the cap on the weightage of applicants to 05 years, which is the weightage being given to respondent no. 6, is in utter disregard of legitimate claim of the applicants. The consequence of this situation is offensive to the applicants genuine claim who have been made to suffer for no fault of theirs.

23. Almost a similar issue came up for consideration by the Honble Apex Court in the case of Harjeet Singh Vs. B.R. Kapoor  AIR 1980 (SC) 1275 [LQ/SC/1980/177] - . The facts in that case were that two officers, B.R.Kapoor and Harjeet Singh, were directly recruited in the same batch. B.R. Kapoor was senior to Harjeet Singh but Harjeet Singh had served for a longer period than B.R. Kapoor in continuous officiation capacity. However, he was placed below B.R. Kapoor on the ground that he ranked below B.R. Kapoor in the Select List. Honble Apex Court held as under: -

18. One of the submissions made to us by the respondents was that the Select List having been prepared on ground of merit and ability, the order in which officers were ranked in the Select List should not be disturbed after they were actually promoted to the Indian Police Service. This submission is without substance. Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability , the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability. Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of officers are arranged in the order of that seniority. We are, therefore, satisfied that the benefit of continuous officiation in a senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate.

24. Undisputedly, continuous service of the applicants is 23 years. The restriction of seniority in the peculiar circumstances of the case cannot be justified. In our view , the proviso has to be given a positive interpretation. It cannot impose a negative burden or encumbrance on the applicants. If, by virtue of certain situation of fact, a senior is visited by some handicap, it cannot be transmitted to his junior/s by transferring the consequent infirmity to them. Hence, the action of the respondents qua the applicants is a gross miscarriage of justice. Issue no. (ii) is answered accordingly.

25. Coming to issue no. (iii) for invoking Residuary Rules 1960, it would be proper to quote the relevant Rule. It reads as under : -

3. Power to relax rules and regulations in certain cases  Where the Central Government is satisfied that the operation of 

(i). any rule made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or

(ii). any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. 25.1. Subsequently, a question arose regarding the extent of the powers vested in the Government under Rule 3 of the All India Service (Conditions of Service Residuary Matters) Rules, 1960, to deal with cases involving relaxation of rules and regulations. The Government of India , Ministry of Home Affairs vide Letter no. 30/1/63-AIS(II) dated 01.01.1966 laid down the following criteria for relaxation of rules and regulations under Residuary Rules 1960: -

(a). Undue hardship signifies unforeseen or unmerited hardship to an extent not contemplated when the rule was framed and does not cover any ordinary hardship of inconvenience which normally arises;

(b). The relaxation should enable the cases to be dealt with in a just and equitable manner and not on grounds of compassion, however, justified, and

(c). The benefit to be conferred in relaxation of any rule or rules must be of a nature already provided for in the rules; Government are not empowered by this rule to confer benefits which are not contemplated in the rules. 25.2. The critical conditions under which the Residuary Rules 1960 can be invoked, in brief, would be as under: -

(i). undue hardship signifies unforeseen or unmerited hardship;

(ii). these could not have been contemplated when the Rule was framed;

(iii). such relaxation should be in order to ensure justice and equity;

(iv). the benefit to be so conferred must be of a nature already provided for under the Rules.

Thus, the Central Government is vested with a reserve power to deal with the unforeseen and unpredictable situations to relieve civil servants from infliction of undue hardship, and to ensure equity and justice.

25.3. In the instant case, the entire exercise has had the effect of depriving a set of officers the benefit of their continuous service on the ground that some one senior to them has less continuous service. The scheme cannot work to the prejudice of the junior officers so as to nullify the actual continuous service rendered by them. Surely, the argument that the applicants are now required to surrender their genuine claim would amount to nullifying their continuous service of many years. This would not only be harmful to the applicants in the immediate sense but would also adversely affect their future career prospects.

25.4. In the present case, Select List based on merit recognizes the merit of the senior but the effect of such merit cannot recoil upon the years of weightage of others junior to him. The truncation of the weightage period from 7 to 5 years of the applicants is on the ground that Respondent no. 6 who happens to be senior to the applicants in the Select List, has at his credit weightage of only 5 years. Had the weightage of the applicants been kept at 7 years advancing the year of allotment at 2003, and had the weightage of the Respondent No. 6, kept at 5 years on the basis of the fact that his initial appointment was delayed by four years, the hardship would have been to the said Respondent, who could have pressed into service the Residual Rules 1960 for relaxation. Instead , mechanical application of the proviso has resulted in extreme prejudice to the applicants. Their continuous service of as many as 3 years has been obscured.

25.5. In the light of the provisions of Residuary Rules 1960 and Government of Indias decision, it can be appreciated that apparently undue hardship has been caused to the applicants in that their legitimate claim for seniority has been washed off by the respondents by invoking the said proviso. Their legitimate seniority could not be taken away by eclipsing their original seniority by invoking the said proviso. However, in the facts of this case, it is the respondent no. 6 who could have been considered for advantage of Residuary Rules 1960 while retaining the original weightage / seniority of the applicants. We find it difficult to agree with the contentions of the respondents that there is no provision in the Rules for taking any notional date of appointment in the rank of Dy. SP except continuous service for the purpose of reckoning the seniority / year of allotment. The respondents can invoke this provision to give the benefit of notional weightage to respondent no. 6. It is thus a case of manifest injustice and extreme hardship to the applicants which needs to be redressed in accordance with the principles of reasonableness. Issue no. (iii) is answered accordingly.

25.6. However, since we are holding that the applicants are entitled for their original weightage of 07 years without being eclipsed by the weightage of respondent no. 6, it would not be just to compel the applicants to beg for relaxation under the Residuary Rules 1960 for no fault of theirs. Hence, the occasion of application of the Residuary Rules 1960 would not arise in case of the applicants.

26. What then is the resolution of the controvesy In our view, both the parameters (Supra) have to be read and interpreted harmoniously. Both must be balanced against each other. Neither should be allowed to eclipse the other. Gestalt of all components and parameters has to be maintained in a system. Two valid principles involved in this case can be and have to be reconciled with each other. The interpretation of rules cannot be permitted to create consequences which are not conducive to equity and justice. The balance of convenience in the instant case rests in favour of the applicants. The applicants cannot be made to surrender their legitimate claim based on the length of continuous service which is the main criteria for awarding weightage and assigning the year of allotment.

27. In view of the aforesaid analysis, we feel that a harmonious way of resolving this issue would be to retain the original weightage of 07 years to the applicants without any damage to be caused by the position of respondent no. 6. Further, the seniority of the respondent no. 6 above the applicants, can be preserved by giving him 07 years of weightage.

28. Taking into consideration the facts and circumstances of the case and the legal position, we are of the considered opinion that restriction of the weightage and consequent seniority awarded to the applicants is unjustified and unsustainable. The applicants are entitled to their legitimate claim of seven weightage points and, accordingly, the seniority of 2003 instead of 2005 in the Indian Police Service. The O.A deserves to succeed.

29. Accordingly, the O.A is allowed. Impugned order dated 07.08.2015 passed by the Respondent no. 1 insofar as it relates to the applicants herein is quashed and set aside. The respondents are directed to re-determine the seniority of the applicants and fix their year of allotment as 2003 in place of 2005 as per their original weightage of 07 points.

Similar stand has been taken in another judgement and order of the CAT Allahabad Bench in the matter of Virendra Kumar Mishra & another v. UoI & Ors. in OA No. 403 of 2018 analysed in the earlier part of this order.

9. We find a similar set of circumstances in the case at hand. Here also the Applicant has rendered more years of qualifying service than his erstwhile senior at Sl. No. -11 whose year of allotment is not being disturbed by this judgment in the State service and so the benefits to the Applicant shall have to follow. The erroneous interpretation of the Proviso without understanding its import has resulted in a similar anomaly in the case at hand and the Applicant has been assigned a reduced year of seniority taking misconceived protection / alibi of the Proviso. In our view, the proviso has to be given a positive interpretation. It cannot impose a negative burden or encumbrance on the Applicant for no fault of his. If, by virtue of certain situation of fact, a senior is visited by some handicap, it cannot be transmitted to his junior/s by transferring the consequent infirmity to them. Hence, the action of the respondents qua the Applicants is a gross miscarriage of justice. The Proviso of Rule 3(3))(ii) must be balanced against the main provision in a positive sense. Neither should be allowed to eclipse the other. Gestalt of all components and parameters has to be maintained in a system. Two valid principles involved in this case can be and have to be reconciled with each other. The interpretation of rules cannot be permitted to create consequences which are not conducive to equity and justice. The balance of convenience in the instant case rests in favour of the Applicant even otherwise. The Applicant cannot be made to surrender his legitimate claim based on the length of continuous service which is the main criteria for awarding weightage and assigning the year of allotment.

10. Given the above analysis and on the basis of foregoing discussions, the prayer of relief is liable to be granted and is granted and it is directed as follows:

i. That, the order dated 28/10/2021 is set aside to the limited extent as pertains to the year of allotment assigned as 2015 to the Applicant as per column-8 of the order;

ii. The respondent/competent authority shall issue orders for grant of year of allotment as 2014 to the Applicant as prayed for with all consequential benefits;

iii. That, the above order shall be issued not later than four weeks from the date of receipt of a certified copy of this order; and

iv. That the order shall be subject to final order in the Writ petition No. 1309 of 2018 pending before the Hon’ble High Court of Allahabad.

11. O.A. allowed and ordered accordingly.

12. No costs.