Full Judgment Text
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PETITIONER:
SANT RAM SHARMA
Vs.
RESPONDENT:
STATE OF RAJASTHAN & ANR.
DATE OF JUDGMENT:
07/08/1967
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
WANCHOO, K.N. (CJ)
BACHAWAT, R.S.
MITTER, G.K.
HEGDE, K.S.
CITATION:
1967 AIR 1910 1968 SCR (1) 111
CITATOR INFO :
R 1972 SC 995 (9)
R 1972 SC1546 (7)
R 1973 SC 303 (9)
E&R 1974 SC 87 (14,18,48)
R 1974 SC 259 (13)
R 1975 SC 984 (8)
RF 1977 SC2411 (26)
F 1980 SC1246 (7)
R 1984 SC 850 (17)
R 1987 SC1676 (19)
RF 1987 SC2135 (6)
E 1988 SC2073 (16)
R 1990 SC 166 (10)
R 1991 SC2288 (12)
ACT:
Constitution of India, 1950, Arts, 14 and 16--Selection
grade posts in Indian Police Service--Appointment on basis
of merit and seniority considered only when merit equal--If
violative of the guarantee of equality.
HEADNOTE:
The All India Services Act, 1951, empowers the-Central
Government to make rules for the regulation of recruitment
and conditions of service of persons appointed to an All
India Service. In exercise of this power the Central
Government framed the Indian Police Service (Regulation of
Seniority) Rules, 1954. Rule 6 of the said Rules requires
that a Gradation List of all Police Officers in a State
should be maintained to ascertain their respective
seniority. Accordingly, a Gradation List wag prepared by
the respondent-State in which the petitioner was shown as
senior to respondents 3 and 4. In 1955, the petitioner was
superseded by respondents 3 and 4 who were confirmed in the
rank of Deputy Inspector General of Police, and in 1966, the
third respondent was promoted as Inspector General of Police
and respondent 4 was appointed as Additional Inspector
General of Police, superseding the petitioner. The
petitioner filed a writ petition in this Court under Art.
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32, contending that: (1) he was entitled as a matter of
right to big appointed as Deputy Inspector General of Police
in 1955 and as Inspector General of Police, in 1966, as he
was shown as the senior most officer in the Gradation List;
(2) in the absence of, any statutory rules governing
promotions to selection grade posts the Government could not
issue administrative instructions imposing restrict-ions not
found in the Rules already framed such as that merit and not
seniority should be considered; (3) the introduction of the
idea of merit into the procedure of promotion is violative
of Arts. 14 and 16, because, it brings in an element of per-
sonal evaluation with the consequent abuses of nepotism and
favouritism; and (4) if the Government is held to have the
power to make appointments without making rules in that
behalf under the proviso to Art, 309, then the appointments
of respondents 3 and 4 would be arbitrary, capricious and in
violation of Arts. 14 and 16 of the Constitution, because,
the claims of the petitioner were not considered either in
1955 or in 1966.
HELD:(1) A perusal of rr. 3 and 8 of the Indian Police
Service (Pay) Rules, 1954, read with Part B of Schedule III
of those Rules shows that the three posts of Deputy
Inspector General of Police. Additional Inspector General
of Police and Inspector General of Po’ lice in the
respondent State, are selection posts outside the junior’
and senior time scales of Pay. Promotion to selection grade
or selection posts is to be based primarily on merit and not
on seniority alone and therefore, the respondent-State was
not bound to promote the petitioner merely because he was
senior in the Gradation List. [118D-F].
(2)While Government cannot amend or supersede statutory
rules by administrative instructions, if rules are silent on
any particular point, Government can fill up the gaps and
supplement the rules and issue instructions not inconsistent
with the rules already framed.
112
The State Government has executive power in respect of State
Public Services mentioned in Entry 41, List II of Schedule
VII of the Constitution, and, there is nothing in the terms
of Art. 309 which abridges the power of the executive to act
under Art. 162 without a law. [119 F-G, H].
T. Cajee v. U. Jormanik Siem, [1961] 1 S.C.R. 750 and B.
N. Na. garajanv. State of Mysore, [1966] 3 S.C.R. 682,
followed.
(3) To ensure a reasonable prospect of advancement to all
officials and at the same time to protect the public
interest in having posts filled by the most able men, it is
necessary to evolve a proper promotion policy in which is
found a correct balance between seniority and merit. As a
matter of long administrative practice promotion to
selection grade or selection posts in the Indian Police Ser-
vice had been based on merit, and seniority was taken into
consideration only when merit of the candidates is otherwise
equal and no other criterion is available. Such a procedure
does not, in any way, violate the guarantee under Arts. 14
and 16 of the Constitution [112E; 123C-D].
(4)The respondent-State had considered the case of the
petitioner and taken into account the record, experience and
merit of the petitioner and of every other officer entitled
to be considered at the time of the promotion before
promotion of respondents 3 and 4 to selection posts was
made, and therefore, there was no breach of the provisions
of Arts. 14 and 16. [121D-E].
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JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 182 of 1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
N.C. Chatterjee, K. B. Roastagi, L. M. Singhvi and S.
Balakrishnan, for the petitioner.
C.B. Agarwala, G. C. Kasliwal, Advocate-General, Rajasthan,
Indu Soni and K. Baldev Mehta, for respondent No. 1.
N.S. Bindra, A. S. Nambiar and R. N. Sachthey, for
respondent No. 2.
K.Baldev Mehta and Indu Soni, for respondents Nos. 3 and
4.
The Judgment of the Court was delivered by
Ramaswami, J.-The petitioner, Sri Sant Ram Sharma has
obtained a rule from this Court calling upon the respondents
to show cause why a writ under Art. 32 of the Constitution
should not be granted for quashing two orders of the State
of Rajasthan, one dated March 22, 1966 whereby Sri Hanuman
Sharma, respondent No. 3 was promoted as Inspector General
of Police, Rajasthan superseding the petitioner, and the
other dated April 28, 1966 promoting Sri Sultan Singh,
respondent No. 4 as Additional Inspector General of Police
superseding the petitioner. The petitioner has also prayed
for a writ in the nature of mandamus commanding respondents
1 & 2 to consider the petitioner’s claim as the senior-most
officer in Rajasthan to be promoted to the post of Inspector
General of Police. Cause has been shown by Mr. C. B.
Agarwala on behalf of the State of Rajasthan and the other
respondents to whom notice of the rule was ordered to be
given.
113
The petitioner, Sri Sant Ram Sharma was appointed to the
Indian Police Service on June 10, 1952. On September 8,
1954 by a notification of the Ministry of Home Affairs,
Government of India, the Indian Police Service (Regulation
of Seniority) Rules, 1954 came into force. Rule 6 of the
said Rules required that a Gradation List of all Police
Officers in the State should be maintained to ascertain
their respective seniority. Accordingly, a Gradation List
was prepared by the State of Rajasthan in August, 1955. In
this Gradation List, the position of the petitioner was 5th.
Sri Hanuman Sharma was shown as occupying the 7th position,
Sri Sultan Singh stood 14th and the position of Sri Ganesh
Singh was 17th. Rule 3 of the Indian Police Service
(Regulation of Seniority) Rules, 1954 required that every
officer shall be assigned a year the allotment in accordance
with the provisions contained in that rule. According to
this rule the year of allotment of the petitioner was 1942,
that of. respondent No. 3, Sri Hanuman Sharma 1943, and that
of respondent No. 4, Sri Sultan Singh 1945. In April 1955
the question of confirmation of the petitioner and of the
three other officers, namely, Sri Hanuman Sharma, Sri Sultan
Singh and Sri Ganesh Singh to the rank of Deputy Inspector
General of Police was taken up. It was decided by the State
of Rajasthan that the petitioner should be superseded and
the three officers, Sri Hanuman Sharma, Sri Sultan Singh and
Sri Ganesh Singh should be confirmed in the rank of Deputy
Inspector General of Police. The case of the petitioner is
that in June, 1959 Sri Hanuman Sharma was promoted as
Special Inspector-General of Police and on June 2, 1961 the
post was encadred and Sri Hanuman Sharma was confirmed in
that post. It appears that, on March 22, 1966, Sri Hanuman
Sharma was promoted as Inspector General of Police,
Rajasthan and on April 28, 1966 Sri Sultan Singh was
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promoted as Additional Inspector General of Police
superseding the petitioner. The notifications of the State
of Rajasthan dated March 22, 1966 and April 28. 1966 are
annexures ’G’ and ’H’ to the writ petition. The contention
of the petitioner is that he was entitled, as a matter of
right, to be appointed as Deputy Inspector General of Police
in 1955 and as Inspector General of Police in 1966 as he was
shown as the senior-most officer in the Gradation List and
the orders of the State of Rajasthan in annexures ’G’ and
’H’ are in violation of the provisions of Rule 6 of the
Indian Police Service (Regulation of Seniority) Rules, 1954.
It was also contended for the petitioner that his claim was
not considered in 1955 at the time of confirmation of
respondents 3 and 4 as Deputy Inspector General of Police or
in 1966 at the time of promotion of respondents 3 and 4 to
the posts of Inspector General of Police and Additional
Inspector General of Police respectively. It was therefore
said that the fundamental rights of the petitioner under
Arts. 14 and 16 have been violated and the orders of the
State of Rajasthan dated March 22, 1966 and April 28, 1966
should be quashed by the grant of a writ in the nature of
certiorari with a direction to the 1st respondent to
consider the petitioner’s claim
N1sC1-9
114
afresh for being promoted to the post of Inspector General
of Police.
The allegations of the petitioner have been controverted by
the State of Rajasthan in its counter-affidavit. It was
said that the posts of Inspector General of Police,
Additional Inspector General of Police and Deputy Inspector
General of Police are selection posts which carry pay above
the time-scale of pay and for appointment to these
selection-posts an officer is chosen not merely on the basis
of his rank in the Gradation List but on the record of his
merit and past experience in the Police Department. The
petitioner was appointed to the Indian Police Service on
June 10, 1952 but even before that date Sri Hanuman Sharma,
Sri Sultan Singh and Sri Ganesh Singh were appointed to the
Indian Police Service in 1951 and they were already
officiating as Deputy Inspector General of Police. Sri
Hanuman Sharma and Sri Sultan Singh were officiating since
April 22, 1952 and Sri Ganesh Singh since May 17, 1952. The
petitioner was confirmed in the Senior Scale of Indian
Police Service on June 10, 1954 but the other three officers
were confirmed in the Senior Scale of the Indian Police
Service on March 24, 1953, i.e., more than a year before the
confirmation of the petitioner. When the question of
confirmation of the officers to the post of Deputy Inspector
General of Police arose in 1955, the State of Rajasthan
considered the comparative merit of all the officers
concerned including that of the petitioner and it was
decided to confirm respondents 3 & 4 and Sri Ganesh Singh as
Deputy Inspector General of Police in preference to the
petitioner in view of their outstanding record and merit and
experience in the Police Department. As regards the
promotion of respondent No. 3 to the post of Inspector
General of Police and of respondent No. 4 to the post of
Additional Inspector General of Police, it was stated that
the petitioner had no right to the selection posts carrying
pay above the time-scale of pay and that the appointment to
those posts was at the discretion of the State of Rajasthan
which decided the question after taking into consideration
the merit of all the officers concerned. It was further
stated that the power of appointment was not exercised
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arbitrarily but was exercised in the interest of efficiency
and good administration and that the promotion to selection
posts was on the basis of merit alone and it was only in a
case where the merit of the two officers was equal that the
seniority of one officer in the Gradation List might tilt
the case in his favour. It was denied by the respondent
that there was any violation of the Indian Police Service
(Regulation of Seniority) Rules, 1954.
The question for determination in this case is whether the
petitioner was entitled, as of right, to be promoted as
Deputy Inspector General of Police in 1955 or as Inspector
General of Police in 1966 merely on the ground that his name
stood first in the Gradation List prepared under Rule 6 of
the Indian Police Service (Regulation of Seniority) Rules,
1954.
115
Sub-section (1) of s. 3 of the All India Services Act, 1951
(LXI of 1951) empowers the Central Government to make rules
for the regulation of recruitment and conditions of service
of persons appointed to an All-India Service. In exercise
of this power the Central Government framed the Indian
Police Service (Regulation of Seniority) Rules, 1954. Rule
2 (a) provides that "Cadre" means "an Indian Police Service
Cadre constituted in accordance with rule 3 of the Indian
Police Service (Cadre) Rules, 1954". Rule 2 (d) defines
"gradation list" to mean "a gradation list prepared under
rule 6". Rule 2(g) defines a "senior post" to mean "a post
Included under item 1 of each Schedule to the Indian Police
Service (Fixation of Cadre Strength) Regulations, 1955 or
any post declared equivalent thereto by the State Government
concerned". Rule 3 deals with the assignment of year of
allotment and reads as follows:-
"(1) Every officer shall be assigned a 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 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-
(a) where the officer is appointed to the
Service on the results of a competitive
examination, the year following 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 Recruitment Rules, the year of
allotment of the junior-most among the
officers recruited to the Service in
accordance with rule 7 of those Rules who
officiated continuously in a senior post from
a date earlier than the date of commencement
of such officiation by the former:
Provided that the year of allotment of an
officer appointed to the Service in accordance
with rule 9 of the Recruitment Rules who
started officiating continuously in a senior
post from a date earlier than the date on
which any of the officers recruited to the
Service, in accordance with rule 7 of those
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Rules, so started officiating shall be
determined ad hoc by the Central Government in
consultation with the State Government
concerned;
116
Rule 4 relates to seniority of officers and
reads as follows: -
"4. (2) The seniority of officers in service
at the commencement of these rules shall be as
has been determined or may be determined by
the Central Government in accordance with the
orders and instructions in force immediately
before the commencement of these rules:
Provided that where the seniority of an
officer appointed in accordance with rule 9 of
the Recruitment Rules has not been determined
before the commencement of these rules, his
seniority shall be determined in accordance
with the provision in sub-rule (3).
Rule 5 deals with seniority of officers placed in List II
and List III by the Special Recruitment Board and Rule 5-A
deals with seniority of officers appointed under the Indian
Police Service (Special Recruitment) Regulations. 1957.
Rule 6 states:
"6. Gradation List.-There shall be prepared
every year for each State Cadre and Joint
Cadre a gradation list consisting of the names
of all officers borne on that Cadre arranged
in order of seniority in accordance with the
provisions of rules 4, 5, 5-A and 7".
On behalf of the petitioner Mr. N. C. Chatterjee put forward
the argument that Rule 6 required that a gradation list
should be prepared strictly in order of seniority in
accordance with the provisions of Rules 4, 5, 5-A and 7 and
it is not open to the State of Rajasthan to disregard the
claim of the petitioner who stood first in the Gradation
List and to promote respondents 3 & 4 to the rank of Deputy
Inspector General of Police. We are unable to accept the
argument put forward on behalf of the petitioner as correct.
it is apparent from a perusal of Rules 3 and 8 of the Indian
Police Service (Pay) Rules, 1954 read with Part B of Sch.
III of those Rules that the posts of Deputy Inspector
General of Police, Additional Inspector General of Police
and Inspector General of Police in Rajasthan State are
selection posts and outside the junior and senior time-
scales of pay. Rule 2(a) provides that ’Cadre’ and ’Cadre
post’ shall have the meanings respectively assigned to them
in the Indian Police Service (Cadre) Rules, 1954. Rule 3
prescribes the time-scales of pay admissible to members of
the Service and reads as follows:
"3. Time-scales of pay-The time-scales of pay
admissible to a member of the Service shall
be as follows: -
Junior Scale-Rs. 350-350-380-380-30-590-
E.B.--30-770---40-850 (19 years).
Senior Scale.-Rs. 600 (6th year under)-40-
1.0001,000-1,050-1,050-1,100-1,100-1.150 (22)
years.
Selection Grade-Rs. .1,250.
117
Provided that a member of the Service holding
a post in the senior time-scale may be
appointed to a post in the selection grade and
where he is so appointed, he shall be entitled
to draw pay of the post in the selection
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grade;
Provided further that a member of the Service
to whom any other time-scale of pay was
admissible under any order in force
immediately before the commencement of these
rules shall continue to draw pay in that
scale".
The rule prescribes two scales of pay-Junior Scale and
Senior Scale in addition to the Selection Grade which is Rs.
1,250. Rule 8 deals with pay of officers holding posts
enumerated in Schedule III and states as follows: -
"Any member of the Service appointed to hold a
post specified in Schedule 111, shall, for so
long as he holds that post, be entitled to
draw the pay indicated for that post in the
said Schedule:
Provided that no member of the Service shall
at any time draw pay less than that which he
is entitled to draw tinder rule 4 and rule 5;
Provided further that a member of the Service
to whom :any other special pay or pay above
the time-scale was .admissible under any order
in force immediately before the commencement
of these rules for holding posts specified in
Schedule III shall, for so long as he holds
the post, continue to draw the same pay".
The posts in the Schedule are (a) posts carrying pay above
the timescale pay of the Indian Police Service under the
State Governments, specified in Section A, (b) posts
carrying pay in the senior time-scale of the Indian Police
Service under the State Governments including posts carrying
special pay (in addition to pay in the time-scale) specified
in Section B and (c) posts carrying pay above the timescale
or special pay in addition to pay in the time-scale, under
the Central Government held by members of the Service,
specified in Section C. In category (a) so far as the State
of Rajasthan is concerned the posts of Inspector General of
Police, Additional Inspector General of Police and Deputy
Inspector General of Police are shown as Selection Grade
posts carrying pay above the time-scales of pay. It is
manifest therefore, on a perusal of Rules 3 and 8 read with
Part B of Sch. III, that the three posts of Inspector
General of Police, Additional Inspector General of Police
and Deputy Inspector General of Police in Rajasthan are
Selection posts and outside the junior and senior time-
scales of pay mentioned in Rule 3. This conclusion is also
supported by para 1 of Part B of Sch. III which states that
"the number of posts in the selection grade in a State Cadre
shall be equal to twenty per centum of the total number of
senior posts borne on that cadre reduced by the number of
posts carrying pay above the time-scale". In support of his
contention
118
Mr. N. C. Chatterjee referred to the decision of this Court
in P. C. Wadhwa v. Union of India.(1) But the ratio of that
case has no bearing on the question presented for
determination in the present case. The question involved in
that case was whether under the relevant rules governing the
Indian Police Service, a member thereof was entitled as of
right to be promoted to a post in the senior scale as and
when a vacancy (except a vacancy in the promotion quota)
arose therein and no one senior to him was available for
that post. It was held by the majority of the learned
Judges that a consideration of the various rules would make
it clear beyond doubt that a person in the junior time-scale
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of the service is as much a cadre officer as one holding a
post in the senior time-scale or a post above the timescale
and the whole scheme of the rules indicated that a person in
the junior scale of pay had a right to hold a post on the
senior scale of pay subject to the availability of a post in
the senior scale of pay and his seniority in the junior
scale of pay. At page 627 of the Report Mudholkar, J. in
the course of his judgment expressly observed-"we should not
be understood as saying that this right extends to the
appointment to a post carrying pay above time-scale of pay
or a post carrying a special pay, and the rules governing
appointment to such posts were not placed before us". The
decision of this Court in P. C. Wadhwa v. Union of India(1)
is therefore of no assistance to the petitioner and for the
reasons we have already given, we are of the opinion that
the three posts of Inspector General of Police, Additional
Inspector General of Police and Deputy Inspector General of
Police in Rajasthan State are selection posts and outside
the junior or senior time-scales of pay. If these three
posts are selection posts it is manifest that the State of
Rajasthan is not bound to promote the petitioner merely
because he stood first in the Gradation List. The
circumstance that these posts are classed as ’Selection
Grade Posts’ itself suggests that promotion to theme posts
is not automatic being made only on the basis of ranking in
the Gradation List but the question of merit enters in
promotion to selection posts. In our opinion, the
respondents are right in their contention that the ranking
or position in the Gradation List does not confer any right
on the petitioner to be promoted to selection posts and that
it is a well-established rule that promotion to :selection
grades or selection posts is to be based primarily on merit
and not on seniority alone. The principle is that when the
claims of officers to selection posts is under
consideration, seniority should not be regarded except where
the merit of the officers is judged to be equal and no other
criterion is therefore available. The administrative
practice with regard to selection posts is laid down in a
letter of the Government of India dated July 31 ,August, 3,
1954 as follows: -
.lm15
"If a person, though senior in the gradation list, is
appointed to the selection post later than his junior, this
is presumably because he is superseded as a matter of
selection.
(1) [1964] 4 S.C.R. 598.
119
If this is so, it would certainly not be unjustified to
regard the officer so selected earlier, though junior in the
gradation list, as senior to the other officer, as far as
the selection posts are concerned".
Another communication dated June 1, 1955 states:
"All super-time scale posts are selection posts and appoint-
ment thereto need not follow the order of seniority".
In another letter No. 7/6/56-AIS(1) dated October 5, 1956
the Government of India has reiterated the principle of
promotion to selection grade posts as follows:
"I am directed to say that the Government of
India have recently had. occasion to consider
the question of the principles to be followed
in the matter of promotion of I.P.S. Officers
to the selection Grade when some of the
officers junior in service were approved and
given officiating chances in such selection
grades earlier than their seniors. It is, of
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course, a well established principle that
promotions to the Selection Grade or a
selection post is to be based primarily on
merit and not seniority in the
service .............................."
We proceed to consider the next contention of Mr. N.C.
Chatterjee that in the absence of any statutory rules
governing promotions to selection grade posts the Government
cannot issue administrative instructions and such
administrative instructions cannot impose any restrictions
not found in the Rules already framed. We are unable to
accept this argument as correct. It is true that there is
no specific provision in the Rules laying down the principle
of promotion of junior or senior grade officers to selection
grade posts. But that does not mean that till statutory
rules are framed in this behalf the Government cannot issue
administrative instructions regarding the principle to be
followed in promotions of the officers concerned to
selection grade posts. It is true that Government cannot
amend or supersede statutory rules by administrative
instructions, but if the rules are silent on any particular
point Government can fill up the gaps and supplement the
rules and issue instructions not inconsistent with the rules
already framed.
In B. N. Nagaraja’n v. State of Mysore,(1) it was pointed
out by this Court that it is not obligatory under the
proviso to Art. 309 of the Constitution to make rules of
recruitment, etc., before a service can be constituted or a
post created or filled, and, secondly, the State Government
has executive power, in relation to all matters with respect
to which the Legislature of the State has power, to make
laws. It follows from this that the State Government will
have executive power in respect of Sch. 7, List II. Entry
41, State Public Services, and there is nothing in the terms
of Art. 309 of the Constitution which abridges the power of
the executive to act under Art. 162 of the Constitution
without a law. A similar view
(1) [1966] 3 S.C.R. 682.
120
was taken by this Court in T. Cajee v. U. Jormanik Siem(1)
where Wanchoo, J., as he then was, who delivered judgment on
behalf of the majority, observed as follows at pp. 762-764
of the Report:
"The High Court has taken the view that the
appointment and succession of a Siem was not
an administrative function of the District
Council and that the District Council could
only act by making a law with the assent of
the Governor so far as the appointment and
removal of a Siem was concerned. In this
connection, the High Court relied on para.
3(1)(g) of the Schedule, which lays down that
the District Council shall have the power to
make laws with respect to the appointment and
succession of Chiefs and Headmen. The High
Court seems to be of the view that until such
a law is made there could be no power of
appointment of a Chief or Siem like the
respondent and in consequence there would be
no power of removal either. With respect, it
seems to us that the High Court has read far
more into para. 3(1)(g) than is justified by
its language. Paragraph 3(1) is in fact
something like a legislative list and
enumerates the subjects on which the District
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Council is competent to make laws. Under
para. 3(1)(g) it has power to make laws with
respect to the appointment or succession of
Chiefs or Headmen and this would naturally
include the power to remove them. But it does
not follow from this that the appointment or
removal of a Chief is a legislative act or
that no appointment or removal can be made
without there being first a law to that
effect.
Further once the power of appointment falls
within the power of administration of the
district the power of removal of officers and
others so appointed would necessarily follow
as a corollary. The Constitution could not
have intended that all administration in the
autonomous districts should come to a stop
till the Governor made regulations under para.
19(1)(b) or till the District Council passed
laws under para. 3(1)(g). The Governor in the
first instance and the District Councils
thereafter were vested with the power to carry
on the administration and that in our opinion
included the power to appoint and remove the
personnel for carrying on the administration.
Doubtless when regulations are made under
para. 19(1)(b) or laws are passed under para.
3(1) with respect to the appointment or
removal of the personnel of the administra-
tion, the administrative authorities would be
bound to follow the regulations so made or the
laws so passed.
121
But from this it does not follow that till the
regulations were made or the laws were passed,
there could be no appointment or dismissal of
the personnel of the administration. In our
opinion, the authorities concerned would at
all relevant times have the power to appoint
or remove administrative personnel under the
general power of administration vested in them
by the Sixth Schedule. The view therefore
taken by the High Court that there could be no
appointment or removal by the District Council
without a law having been first passed in that
behalf under para. 3(1)(g) cannot be
sustained."
We pass on to consider the next contention of Mr. N.C.
Chatterjee that if the executive Government is held to have
power to make appointments and lay down conditions of
service without making rules in that behalf under the
proviso to Art. 309, there will be a violation of Arts. 14
and 16 because the appointments would be arbitrary and
capricious. In our view, there is no substance in this
contention of the petitioner. If the State of Rajasthan had
considered the case of the petitioner along with the other
eligible candidates before appointments to the selection
posts there would be no breach of the provisions of Arts. 14
and 16 of the Constitution because everyone who was eligible
in view of the conditions of service and was entitled to
consideration was actually considered before promotion to
those selection posts was actually made. It was said by Mr.
C. B. Agarwala on behalf of the respondents that an
objective evaluation of the merit of the officers is made
each year and promotion is made on scrutiny of the record-
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sheets dealing with the competence, efficiency and
experience of the officers concerned. In the present case,
there is no specific allegation by the petitioner in the
writ petition that his case was not considered along with
respondents 3 & 4 at the time of promotion to the posts of
Deputy Inspector General of Police in 1955 or to the rank of
Inspector General of Police or Additional Inspector General
of Police in 1966. There was, however, a vague suggestion
made by the petitioner in paragraph 68 of his rejoinder-
petition dated July 17, 1967 that "the State Government
could not have possibly considered my case, as they
considered and even in this counter-affidavit consider Shri
Hanuman Sharma and Sri Sultan Singh senior to me by the new
type of seniority they have invented for their benefit".
Even though there is no specific allegation by the
petitioner that there was no consideration of his case,
respondent No. 1 has definitely asserted in paragraphs 23,
25, 40 and 44 of the counter-affidavit that at the time of
promotion of respondents 3 & 4 to the selection posts of
Deputy Inspector General of Police and of Inspector General
of Police the case of the petitioner was considered. We are
therefore of the opinion that the petitioner is unable to
substantiate his argument that there was no consideration of
his case at the time of promotion of respondents 3 & 4 to
the selection posts. We must therefore proceed on the
footing that respondent No. 1 had considered the case of the
petitioner and
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taken into account the record, experience and merit of the
petitioner at the time of the promotion of respondents 3 & 4
to the selection grade posts. It is therefore not possible
to accept the argument of Mr. N. C. Chatterjee that there
was any violation of the constitutional guarantee under
Arts. 14 and 16 of the Constitution in the present case.
Mr. N. C. Chatterjee argued that the introduction of the
idea of merit into the procedure of promotion brings in an
element of personal evaluation, and that personal evaluation
open is the door to the abuses of nepotism and favouritism,
and so, there was a. violation of the constitutional
guarantee under Arts. 14 and 16 of the Constitution. We are
unable to accept this argument as well-founded. The
question of a proper promotion policy depends on various
conflicting factors. It is obvious that the only method in
which absolute objectivity can be ensured is for all
promotions to be made entirely on grounds of seniority.
That means that if a post falls vacant it is filled by the
person who has served longest in the post immediately below.
But the trouble with the seniority system is that it is so
objective that it fails to take any account of personal
merit. As a system it is fair to every official except the
best ones; an official has nothing to win or lose provided
he does not actually become so inefficient that disciplinary
action has to be taken against him. But, though the system
is fair to the officials concerned, it is a heavy burden on
the public and a great strain on the efficient handling of
public business. The problem therefore is how to ensure
reasonable prospect of advancement to all officials and at
the same time to protect the public interest in having posts
filled by the most able men? In other words, the question
is how to find a correct balance between seniority and merit
in a proper promotion-policy. In this connection Leonard D.
White has stated as follows:-
"The principal object of a promotion system is
to secure the best possible incumbents for the
higher positions, while maintaining the morale
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of the whole Organisation. The main interest
to be served is the public interest, not the
personal interest of members of the official
group concerned. The public interest is best
secured when reasonable opportunities for
promotion exist for all qualified employees,
when really superior civil servants are
enabled to move as rapidly up the Promotion
ladder as their merits deserve and as
vacancies occur, and when selection for
promotion is made on the sole basis of merit.
For the merit system ought to apply as
specifically in making promotions as in
original recruitment.
Employees often prefer the rule of seniority,
by which the eligible longest in service is
automatically awarded the promotion. Within
limits, seniority is entitled to consideration
as one criterion of selection. It tends to
eliminate favouritism or the suspicion
thereof; and experience is
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certainly a factor in the making of a
successful employee. Seniority is given most
weight in promotions from the lowest to other
subordinate positions. As employees move up
the ladder of responsibility, it is entitled
to less and less weight. When seniority is
made the sole determining factor, at any
level. it is a dangerous guide. It does not
follow that the employee longest in service in
a particular trade is best suited for
promotion to a higher grade; the very opposite
may be true".
(Introduction to the Study of Public Administration, 4th
Edn., pp. 380, 383).
As a matter of long administrative practice promotion to
selection grade posts in the Indian Police Service has been
based on merit and seniority has been taken into
consideration only when merit of the candidates is otherwise
equal and we are unable to accept the argument of Mr. N. C.
Chatterjee that this procedure violates, in any way, the
guarantee under Arts. 14 and 16 of the Constitution.
For the reasons expressed we hold that the petitioner has
been unable to make out a case for the grant of a writ under
Art. 32 of the Constitution. The petition accordingly fails
and is dismissed. There will be no order as to costs in the
Circumstances of this case.
Petition dismissed.
V. P. S.
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