Full Judgment Text
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PETITIONER:
PARAMJIT SINGH SANDHU AND ORS. ETC.
Vs.
RESPONDENT:
RAM RAKHA AND ORS. ETC.
DATE OF JUDGMENT22/03/1979
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
SHINGAL, P.N.
CITATION:
1979 AIR 1073 1979 SCR (3) 584
1979 SCC (3) 478
CITATOR INFO :
R 1981 SC 561 (71)
R 1984 SC1595 (24)
D 1990 SC1607 (19)
ACT:
Punjab Police Rules, 1959, Rules 3, 6, 8 and 10
Construction of-When appointments to a post are from two
different sources, one by promotion and another by direct
recruitment according to quota rule, whether the quota rule
would operate at both the stages of recruitment and
confirmation or at the stage of initial recruitment only.
Deemed confirmation after the expiry of the period of
probation and cases when an express order of confirmation is
necessary, pointed out.
HEADNOTE:
Under the Punjab Police Service Rules, 1959,
recruitment to Punjab Police Service (Deputy Superintendent
of Police) is made from two sources, namely 80% by promotion
and 20% through direct recruitment. Under Rule 10, seniority
in the cadre of Deputy Superintendent of Police is reckoned
according to the date of confirmation. Consideration for
nomination to Indian Police Service is done according to
seniority-cum-merit.
Respondents 1 and 2 in C.A. 2903/78 who were promotees
to the cadre of Deputy Superintendents of Police in
February, 1961 and January, 1961 respectively were not
confirmed even though appellants and respondents 5 to 8 who
were recruited to the same cadre by direct appointment
commencing from May, 1961 to May, 1965 were confirmed. They,
therefore, filed a Writ Petition praying for a direction to
confirm them in the Punjab Police Service, adhering to the
quota rule at the time of confirmation as well. They alleged
that as seniority in the cadre of Deputy Superintendent of
Police is reckoned under rule 10, according to date of
confirmation failure to confirm in the post available to
them in breach of the relevant rules, had resulted in the
denial of equality of opportunity in public service
enshrined in Art. 16 of the Constitution at the time of
consideration of their cases for nomination to the Indian
Police Service which is done according to seniority-cum-
merit.
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Allowing the Writ Petition and directing the State to
confirm them, the learned single judge held that the quota
rule would operate not only at the time of initial
recruitment but also at the time of confirmation, as he was
of the opinion that the quota-rule is linked with the
seniority rule.
Two Letters Patent Appeals, one filed by appellant No.
1 and another by the State, were heard along with another
Writ Petition filed by one Ram Rakha urging identical
contentions. The Writ Petition was allowed and the appeals
were dismissed by a common judgment modifying the direction
given by the learned single judge to the extent that the
State should consider the case of the Writ petitioners for
confirmation afresh according to quota rule and then refix
their inter-se seniority.
Dismissing the appeals, by special leave the Court
585
^
HELD: 1. When a first appointment or promotion is made
on probation for a specific period and the employee is
allowed to continue in the post after the expiry of the
period without any specific order of confirmation he should
be deemed to continue in his post as a probationer only in
the absence of any communication to the contrary in the
original order of appointment or promotion or the Service
Rules. In such a case, an express order of confirmation is
necessary to give the employee a substantive right to the
post. From the mere fact that he is allowed to continue in
the post after the expiry of the specific period of
probation he should not be deemed to have been confirmed.
This is so, when the relevant rules permitted extension of
the Probationary period for an indefinite time. [592 A-C]
Sukhbans Singh v. State of Punjab, [1963] 1 SCR 416, G.
S. Ramaswamy v. The Inspector General of Police, Mysore
State Bangalore, [1964] 6 S.C.R. 278; State of U.P. v. Akbar
Ali, [1966] 3 SCR 821; referred to.
2. Where the rules provide for a fixed period of
probation with a power in the Government to extend it up to
a specific period and not any unlimited period, either by
express provision or by necessary implication, at the end of
such specified period beyond which the Government had no
power to extend the probation, the probationer, if he
continues beyond that period, should be deemed to have been
confirmed in the post. [592 C-E]
State of Punjab v. Dharam Singh, [1968] 3 SCR 1
explained.
3. Rule 8 of the Punjab Service Rules, 1959 prescribes
a period of probation of two years and the proviso confers
power to extend the period of probation by not beyond one
year meaning thereby that in any case the Government would
not have the power to extend the period of probation beyond
a period of three years. [593 A-B]
In this situation, (a) the ratio of Dharam Singh’s case
would mulatis mutandis apply and the direct recruits who
completed the period of probation of two years and in the
absence of an extension of probationary period would be
deemed to be confirmed by necessary implication. [593 B-C]
(b) If seniority is to be reckoned from the date of
confirmation and if promotees are not confirmed for years
together in some cases, while direct recruits who came much
later got confirmed and ipso facto became senior to the
promotees, if quota rule is only applied at the time of
initial recruitment, this undesirable result is wholly
unavoidable. [593 C-D]
4. Where recruitment to a cadre is from two sources and
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the Service Rules prescribe quota for recruitment for both
sources, a question would always arise, whether the quota
rule would apply at the initial stage of recruitment or also
at the stage of confirmation. Ordinarily, if quota is
prescribed for recruitment to a cadre, the quota rule will
have to be observed at the recruitment stage. The quota
would then be co-related to vacancies to be filled in by
recruitment but after recruitment is made from two different
sources they will have to be integrated into a common cadre
and while so doing the question of their inter se seniority
would surface. [593 F-G]
586
Seniority is ordinarily determined from the date of
entry into cadre on the principle of continuous officiation.
Confirmation in a post would ordinarily depend upon such
circumstances as satisfactory completion of probationary
period, efficiency in the discharge of duty, capacity to
discharge functions of the post, availability of permanent
vacancy etc. Now, if seniority is to be determined according
to the date of confirmation and the quota rule is not made
relatable to confirmation in various posts falling vacant in
the cadre it would directly impinge upon the seniority of
members of the service. [593 G- H, 594 A]
S. B. Patwardhan and Ors. etc. v. State of Maharashtra,
[1977] 3 SCR 775 @ 797; referred to.
5. A harmonious reading of rules 3, 4, 6, 8, and 10
makes it clear that the quota rule is operative both at the
time of initial recruitment and at the time of confirmation.
The recruitment to Punjab Police Service is from two
sources. Recruits from both the sources have to be on
probation. Adopting the construction that the proviso to
Rule 8 (b) permitting a maximum period of probation of three
years at the end of which the direct recruit would
automatically be confirmed unless his services are dispensed
with simultaneously enjoying seniority from the date of such
automatic confirmation without applying quota rule at the
time of confirmation would put the promotee to an unintended
disadvantage who may be continued in an officiating capacity
without confirming him and consequently denying or
relegating him down in seniority for years as has happened
in the case of respondents 1 and 2. Such an approach would
be wholly unreasonable more so when there was not the
slightest suggestion that their services were not
satisfactory and that the confirmation was denied on any
such ground, thereby directly affecting their places in the
seniority list. [594 C-F, H]
If the other view that the quota rule would apply both
at the time of recruitment and at the time of confirmation,
is adopted rule 10 which provides for seniority according to
the date of confirmation would certainly be saved from the
vice of unreasonableness. [594 G]
The quota rule is linked up with the seniority rule.
Quota rule is linked up with seniority rule because, not the
date of entry in service determines the seniority but the
date of confirmation determines seniority. Quota rule being
inextricably intertwined with the seniority rule any
delinking would render the seniority rule wholly
unreasonable. After recduitment, members of the service,
though drawn from two different sources-direct recruits and
promotees-constitute a single integrated cadre. They
discharge identical functions, bear similar responsibilities
and, acquire an equal amount of experience in the respective
assignments. If quota rule were to be applied at the stage
of initial recruitment and wholly ignored at the time of
confirmation the rule would suffer from the vice of
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unreasonableness and would offend Art. 16, because, in that
event, while direct recruits would get confirmation
automatically, the promotees would hang out for years as has
happened in the case of respondents 1 and 2 and if they are
not confirmed they would never get seniority and their
chances of being considered for promotion to the higher post
would be wholly jeopardised. [595 A-B, C, D-E]
S. G. Jaisinghani v. Union of India and Ors. [1967] 2
SCR 703 @ 717 and 718; S. B. Patwardhan v. State of
Maharashtra, [1977] 3 SCR 775 @ 797; followed.
587
6. Where recruitment is from two sources and the
seniority in the cadre is determined according to the date
of confirmation to accord utmost fair treatment a rotational
system has to be followed while giving confirmation. The
quota rule would apply to vacancies and recruitment has to
be made keeping in view the vacancies available to the two
sources according to the quota. If the quota rule is
strictly adhered to there will be no difficulty in giving
confirmation keeping in view the quota rule even at the time
of confirmation. A roster is introduced while giving
confirmation ascertaining every time which post has fallen
vacant and the recruit from that source has to be confirmed
in the post available to the source. This system would
breakdown the moment recruitment from either source in
excess of the quota is made. In fact a strict adherance to
the quota rule at the time of recruitment would introduce no
difficulty in applying the rule at the time of confirmation
because vacancies would be available for confirmation to
persons belonging to different sources of recruitment. The
difficulty would arise when recuruitment in excess of the
quota is made and it would further be accentuated when
recruits from one source viz. direct recruits get automatic
confirmation on completion of the probationary period, while
the promotees hang out for years together before being
confirmed. [596 F-H, 597 A-B]
Mervyn Coutindo and Ors. v. Collector of Customs,
Bombay and Ors., [1966] 2 SCR 600; A.. K. Subraman and Ors.
v. Union of Indian and Ors., [1975] 2 SCR 979; explained and
distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2902-
2903 of 1977.
Appeals by Special Leave from the Judgment and Order
dated 3-11-1976 of the Punjab and Haryana High Court in
Civil Writ Petition No. 6781/74.
Y. S. Chitale, M. N. Phadke and P. C. Bhartari (In CA
2903/77) for the Appellants.
G. L. Sanghvi, S. K. Bagga and Mrs. S. Bagga for RR 1-
2.
R. S. Sodhi for the State of Punjab.
The Judgment of the Court was delivered by
DESAI, J.-These two appeals by special leave arise from
a common judgment rendered by the High Court of Punjab &
Haryana at Chandigarh in Letters Patent Appeals Nos. 560 and
564 of 1974 and Civil Writ No. 6781/74. The controversy
raised in these appeals turns upon the construction of the
Punjab Police Service Rules, 1959 (’Service Rules’ for
short). A few relevant facts as alleged by respondents 1 and
2 in Civil Appeal No. 2903/78 who moved Civil Writ No. 825
of 1972 in the High Court would highlight the problem posed
in these appeals.
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588
Respondents 1 and 2, Gurdip Singh and Dalip Singh,
filed a writ petition under Article 226 of the Constitution
against the State of Punjab, Inspector General of Police,
Punjab, and six others including the present appellants,
praying for a direction to confirm them in Punjab Police
Service. Respondents 1 and 2 alleged that they were
promotees to the cadre of Deputy Superintendent of Police of
February, 1961 and January, 1961 respectively having been
brought on ’G’ List by an order dated 23rd February 1961 of
the State of Punjab and the Inspector General of Police,
Punjab, respondents 3 and 4 herein. Appellants and
respondents 5 to 8 were recruited to the same cadre by
direct appointment commencing from May, 1961 to May, 1965.
The grievance of respondents 1 and 2 in the petition filed
by them was that recruitment to Punjab Police Service is
made from two sources, namely, 80% by promotion and 20% by
direct appointment but this quota rule is not adhered to at
the time of confirmation in the service and, therefore, even
though they were members of the service since a period
earlier to appellants and respondents 5 to 8, they were not
confirmed though the latter were confirmed and as seniority
in the cadre of Deputy Superintendent of Police is reckoned
under rule 10 according to date of confirmation, the failure
to confirm them in the post available to them, in breach of
the relevant rules, has denied to them equality of
opportunity enshrined in Article 16 of the Constitution to
be considered for nomination to Indian Police Service which
is done according to seniority-cum-merit.
The State of Punjab and Inspector General of Police,
Punjab, on the one hand and the direct recruits on the other
contested the writ petition, inter alia, contending that the
quota applies at the stage of initial recruitment and not at
the time of confirmation and there is no allegation that the
quota rule was violated at the time of initial recruitment.
It was further contended that no one can claim to be
confirmed as a matter of right and, therefore, the writ
petition is misconceived. Direct recruits to the post of Dy.
Superintendent of Police, appellants and respondents 5 to 8
further contended that the petitioners were promoted on
officiating basis against temporary posts and as there were
no permanent posts available, they could not be confirmed
till substantive vacancies in the permanent strength of the
cadre were available and till confirmation their seniority
having to be reckoned from the date of confirmation, they
cannot claim to be senior to the direct recruits on the
principle of continuous officiation.
The writ petition came up before a learned single Judge
of the High Court who was of the opinion that the quota rule
is linked with the seniority rule and in order to give a
reasonable interpretation and
589
in order not to make the seniority rule unreasonable, upon a
proper construction it must be held that the quota rule
would operate not only at the time of initial recruitment
but also at the time of confirmation. In reaching this
conclusion the learned single Judge relied upon two
decisions of this Court in S. G. Jaisinghani v. Union of
India & Ors.,(1) and Mervyn Coutindo & Ors. v. Collector of
Customs, Bombay & Ors., (2) and some other decisions of
other High Courts. The learned single Judge accordingly gave
a direction that the writ petitioners, respondents 1 and 2
herein, should be confirmed. Two appeals being Letters
Patent Appeal No. 560/74 by the present appellant 1 and
Letters Patent Appeal No. 564/74 by the State of Punjab and
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the Inspector General of Police, Punjab, were preferred. One
Rakha Ram filed Civil Writ No. 6781/74 raising identical
contentions and this writ petition was referred to the
Division Bench before which the aforementioned two Letters
Patent Appeals came up for hearing The Court by a common
judgment disposed of all the three matters. Both the Letters
Patent Appeals were dismissed and Civil Writ No. 6781/74 by
Ram Rakha was allowed, but the direction given by the
learned single Judge was modified to the extent that the
State of Punjab and Inspector General of Police, Punjab,
should consider the cases of writ petitioners 1 and 2 for
confirmation and to fix their seniority afresh according to
the quota rule. The present two appeals arise from this
common judgment preferred by the direct recruits. It may be
mentioned that neither the State of Punjab nor the Inspector
General of Police, Punjab, have questioned the decision of
the High Court though at the hearing of these appeals Mr. R.
S. Sodhi appeared for the State of Punjab and supported the
contentions canvassed on behalf of the appellants.
As the main controversy turns upon the construction of
rules 3, 6, 8 and 10 of the Service Rules it would be
advantageous to get a clear picture of the relevant rules.
The Service Rules provide for constitution, recruitment,
qualifications for being members of the service, probation,
pay, seniority and discipline of the members of the Service.
Rule 3 provides that the Service shall comprise of the posts
specified in Appendix ’A’ to the Service Rules. Designation
of the Post in Appendix ’A’ is shown to be Deputy
Superintendent of Police and the strength of the cadre is
shown as 66. The State Government, under rule 5, is the
appointing authority to the Service. Rule 6 provides for
method of recruitment from two different sources, viz., 80%
by promotion from the rank of Inspectors and 20% by direct
recruitment. It also prescribes eligibility qualification
for promotees. Sub-
590
rule (2) of rule 6 provides that appointment by promotion
shall be made by he Government from Inspectors brought on
List ’G’ and the method of drawing up of List ’G’. Sub-rule
(3) provides that direct appointment to the Service shall be
made upon the result of a competitive examination conducted
by the Punjab Public Service Commission (’Commission’ for
short) and further confers power on the Government in
consultation with the Commission to frame necessary rules
relating to examination. Rule 7 prescribes qualifications of
physical fitness. Rule 8 provides that members of the
Service shall be on probation for two years which shall
include the period of training at the Police Training
School, Phillaur, and in the districts and in the case of
members recruited by promotion the Government may be a
special order in each case permit periods of officiating
appointment to the Service to count towards the period of
probation. There is a proviso to the rule which enables the
Government to extend the period of probation by not more
than one year. Rule 9 provides for pay of members of the
Service. Rule 10 provides for seniority of members to be
reckoned by the date of confirmation in the Service.
Dr. Chitaley followed by Mr. Phadke, urged that the
vires, validity or reasonableness of rule 10 having not been
challenged, it was not open to the High Court to put upon
rules, 6, 8 and 10 a construction on the supposed
unreasonableness of rule 10 if it is interpreted by giving
the language therein used its ordinary grammatical meaning.
The High Court applied the quota rule even at the stage of
confirmation to avoid the vice of unreasonableness which, in
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the opinion of the High Court, would be implicit in rule 10
if any other view were taken.
The rules provide for constitution of Service and the
Service shall comprise of the posts specified in Appendix
’A’ to the rules. At the relevant time the sanctioned
strength of the Service was 66 posts. There is a proviso to
rule 3 which enables the Government to make additions to or
reductions in the number of such posts whether permanently
or temporarily. Rule 6 which provides for method of
recruitment in terms says that recruitment to the Service
shall be made: (i) 80% by promotion from the rank of
Inspectors; and (ii) 20% by direct appointment. Thus there
is recruitment to the Service from two independent sources,
viz., promotion and direct recruitment. Once recruitment to
any given cadre is from two sources obviously after
recruitment is made from two sources they have to be
integrated into one cadre which also necessitates providing
for their inter se seniority. Rule 10 provides that the
seniority of the
591
members of the Service shall be determined by the date of
confirmation in the Service. There is a proviso to rule 10
which is not material for the present discussion.
On behalf of the promotees it was contended that if
seniority is to be reckoned from the date of confirmation in
the Service, confirmation must be made available to recruits
from both the sources, viz., promotees and direct recruits.
It was further contended that if on satisfactory completion
of probation a direct recruit is confirmed or is deemed to
be confirmed and a promotee who can be continued in an
officiating capacity for any length of time without
considering his case for confirmation, promotees would be
put at a serious disadvantage because for further promotion
or what is styled as nomination to Indian Police Service,
seniority-cum-merit being the criterian and the basic cadre
being the cadre of Deputy Superintendent of Police from
which nomination is to be made, their case would not come up
for consideration as they are not confirmed. They pointed
out that in 1971 their names were recommended by Deparmental
Committee set up for the purpose but the State Government
turned down their names on the only ground that they were
not confirmed. It is clear from Rule 8 that both promotees
and direct recruits would be on probation for two years and
in case of promotees the Government may be special order in
each case permit periods of officiating appointments to the
Service to count towards the period of probation. Clause (b)
of rule 8 provides that the services of a member recruited
by direct appointment may be dispensed with by the
Government on his failing to pass the final examination at
the end of his period of training or on his being reported
on, during or at the end of his period of probation, as
unfit for appointment. There is a proviso at the end of sub-
rule (b) which reads as under:
"Provided that the Government may, if it deems
fit, extend the period of probation by not more than
one year."
There is some controversy between the parties whether the
proviso is to operate as proviso to rule 8(a) and 8(b) both
or only to rule 8 (b).
It was contended on behalf of the direct recruits that
once a specific period of probation is fixed and a fetter is
put on the power of the Government to extend probation only
by a specific period, at the end of such extended period
either the service of the direct recruit is to be dispensed
with on the ground that he was unfit for appointment or if
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he is continued thereafter he must be deemed to have been
confirmed and the date next after the day of expiry of his
ordinary or
592
extended period of probation would be the date of his
confirmation. This Court has consistently held that when a
first appointment or promotion is made on probation for a
specific period and the employee is allowed to continue in
the post after the expiry of the period without any specific
order of confirmation he should be deemed to continue in his
post as a probationer only in the absence of any
communication to the contrary in the original order of
appointment or promotion or the Service Rules. In such a
case an express order of confirmation is necessary to give
the employee a substantive right to the post and from the
mere fact that he is allowed to continue in the post after
the expiry of the specific period of probation it is not
possible to hold that he should be deemed to have been
confirmed. This view was taken in Sukhbans Singh v. State of
Punjab(1); G. S. Ramaswamy v. The Inspector General of
Police, Mysore State, Bangalore(2); and State of U. P. v.
Akbar Ali(3). This view was founded up on the relevant rules
which permitted extension of the probationary period for an
indefinite time. In fact there was no negative rule in these
cases prohibiting the Government from extending the
probationary period beyond a certain maximum period.
However, where the rules provide for a fixed period of
probation with a power in the Government to extend it up to
a specific period and not any unlimited period, either by
express provision or by necessary implication, at the end of
such specified period beyond which the Government had no
power to extend the probation, the probationer if he
continues beyond that period, should be deemed to have been
confirmed in the post. This Court in State of Punjab v.
Dharam Singh(4); after taking into consideration rule 6(3)
of the Punjab Educational Service (Provincialised Cadre)
Class III Rules, 1961, which provided for either dispensing
with the services of the person appointed to the post on
probation if his work was found to be unsatisfactory or to
extend the period of probation for such period as may be
deemed fit or revert him to his former post if he was
promoted from some lower post, provided that the total
period of probation including the extensions if any, shall
not exceed three years, held that the Service Rules fixed a
certain period of time beyond which the probationary period
cannot be extended and if an employee appointed or promoted
to a post is allowed to continue in that post after
completion of the maximum period of probation without an
express order of confirmation he cannot be deemed to
continue in that post as a probationer by implication. In
such a case the Court held it is permissible to
593
draw an inference that the employee allowed to continue in
the post on completion of the maximum period of probation
has been confirmed in the post by implication. Rule 8 of the
Service Rules prescribes the period of probation of two
years and the proviso confers power to extend the period of
probation by not beyond one year meaning thereby that in any
case the Government would not have the power to extend the
period of probation beyond a period of three years. In this
situation the ratio in Dharam Singh’s case (supra) would
mutatis mutandis apply and it will have to be held that the
direct recruit who completed the period of probation of two
years and in the absence of an extension of probationary
period, would be deemed to be confirmed by necessary
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implication. Respondent 5 to 8 direct recruits have
accordingly been confirmed on expiry of the period of
probation of two years. Now if seniority is to be reckoned
from the date of confirmation and if promotees are not
confirmed for years together in some cases, to wit,
respondents 1 and 2 who were promotees of February and
January, 1961 respectively, were not confirmed till they
filed the writ petition in 1972 while direct recruits who
came much later got confirmed and ipso facto became senior
to the promotees, if quota rule is only applied, as is
contended on behalf of the appellants and the State of
Punjab, at the time of initial recruitment, this undesirable
result is wholly unavoidable.
Mr. G. L. Sanghi learned counsel for the interveners
and the promotees contended that the framers of the rule
could not have intended to accord such a discriminatory
treatment to the promotees in whose favour the quota is as
big as 80% of the total strength.
Where recruitment to a cadre is from two sources and
the Service Rules prescribe quota for recruitment for both
sources a question would always arise whether the quota rule
would apply at the initial stage of recruitment or also at
the stage of confirmation. Ordinarily, if quota is
prescribed for recruitment to a cadre, the quota rule will
have to be observed at the recruitment stage. The quota
would then be co-related to vacancies to be filled in by
recruitment but after recruitment is made from two different
sources they will have to be integrated into a common cadre
and while so doing, the question of their inter se seniority
would surface. Seniority is ordinarily determined from the
date of entry into cadre on the principle of continuous
officiation. Confirmation in a post would ordinarily depend
upon such circumstances as satisfactory completion of
probationary period, efficiency in the discharge of duty,
capacity to discharge functions of the post, availability of
permanent vacancy, etc. Now, if seniority is to be
determined according to the date of confirmation and the
quota rule
594
is not made relatable to confirmation in various posts
falling vacant in the cadre it would directly impinge upon
the seniority of members of the service. In a slightly
different form this question came before this Court in S. B.
Patwardhan & Ors. etc. v. State of Maharashtra & Ors., (1)
in which vires of rule 8(iii) of 1960 Rules were questioned.
Rule 8(iii) of the 1960 Rules provided that probationers
recruited directly to the Bombay Service of Engineers Class
II Cadre in any year shall, in a bunch, be placed senior to
promotees confirmed during that year. Striking down this
rule as violative of Article 16 this Court held that the
rule leaves the valuable right of seniority to depend upon
the mere accident of confirmation.
The recruitment to Punjab Police Service is from two
sources. Recruits from both the sources have to be on
probation. Adopting the construction as canvassed for and on
behalf of direct recruits that the proviso to rule 8(b)
permitting a maximum period of probation of three years at
the end of which the direct recruit automatically be
confirmed unless his services are dispensed with
simultaneously enjoying seniority from the date of such
automatic confirmation without applying quota rule at the
time of confirmation, would put the promotee to an
unintended disadvantage who may be continued in an
officiating capacity without confirming him and consequently
denying or relegating him down in seniority for years as has
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happened in the case of respondents 1 and 2. Appellants who
were recruited to the Service after respondents 1 and 2,
came to be confirmed at the end of two years’ period of
probation while respondents 1 and 2 were not confirmed after
more than 11 years of officiating service and there it not
the slightest suggestion that the services of respondents 1
and 2 were not satisfactory and that the confirmation was
denied on any such ground thereby directly affecting their
place in the seniority list. Such an approach would be
wholly unreasonable.
Now, if the other view is taken that the quota rule
would apply both at the time of recruitment and at the time
of confirmation, rule 10 which provides for seniority
according to the date of confirmation would certainly be
save from the vice of unreasonableness. Is such a
construction possible ? One need not stretch the language to
bring about the desired result but in this case upon a
harmonious reading of rules 3, 6, 8 and 10, the conclusion
is inescapable that quota rule is operative both at the time
of initial recruitment and at the time of confirmation. If
the rule of seniority were one otherwise than according to
date of confirmation it would not have become necessary to
595
apply the quota rule at the stage of confirmation but in
this case the quota rule is linked up with the seniority
rule and unless the quota rule is strictly observed in
practice it will be difficult to hold that the seniority
rule is not unreasonable and does not offend Article 16 (see
S. G. Jaisinghani’s case (supra) at pp. 717 and 718). Quota
rule is linked up with seniority rule because, not the date
of entry in service determines the seniority but the date of
confirmation determines seniority and, therefore, quota rule
is inextricably intertwined with the seniority rule and any
delinking would render the seniority rule wholly
unreasonable. Any other view would lead to the most
undesirable result wholly unintended by the framers of the
rule. It must be remembered that after recruitment, members
of the service, though drawn from two different sources-
direct recruits and promotees-constitute a single integrated
cadre. They discharge identical functions, bear similar
responsibilities and acquire an equal amount of experience
in the respective assignments. In this background in S. B.
Patwardhan’s case (supra) this Court held that if the
promotees are treated with an evil eye and an unequal hand
in the matter of seniority as was done under rule 8(iii),
the rule would suffer from the vice of unreasonableness and
would offend Article 16 and it was actually struck down. An
exactly identical situation would follow here if quota rule
is applied at the stage of initial recruitment and wholly
ignored at the time of confirmation because in that event
while direct recruits will get confirmation automatically,
the promotees would hang out for years as has happened in
the case of respondents 1 and 2 and if they are not
confirmed they would never get seniority and their chances
of being considered for promotion to the higher post would
be wholly jeopardised. To avoid this utterly unconsciounable
outcome the construction we have put on rule 8 would be in
consonance with justice and reason.
It may be pointed out that where recruitment is from
two sources and the seniority in the cadre is determined
according to the date of confirmation, to accord utmost fair
treatment a rotational system has to be followed while
giving confirmation. The quota rule would apply to vacancies
and recruitment has to be made keeping in view the vacancies
available to the two sources according to the quota. If the
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quota rule is strictly adhered to there will be no
difficulty in giving confirmation keeping in view the quota
rule even at the time of confirmation. A roster is
introduced while giving confirmation ascertaining every time
which post has fallen vacant and the recruit from that
source has to be confirmed in the post available to the
source. This system would breakdown the moment recruitment
from either source in excess of the quota is made. In fact a
strict adherence to the quota
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rule at the time of recruitment would introduce no
difficulty in applying the rule at the time of confirmation
because vacancies would be available for confirmation to
persons belonging to different sources of recruitment. The
difficulty arises when recruitment in excess of the quota is
made and it is further accentuated when recruits from one
source, to wit, in this case direct recruits get automatic
confirmation on completion of the probationary period while
the promotees hang out for years together before being
confirmed. In Mervyn Coutindo’s case (supra) this Court in
terms said that rotational system of fixing seniority
meaning thereby confirmation followed by seniority does not
offend equality of opportunity in Government service and
recruitment not following the fixed quota rule need not be a
ground for doing away with rotational system.
It was, however, contended that in A. K. Subraman &
Ors. etc. v. Union of India & Ors. (1) this Court in terms
has held that when recruitment is from two sources and the
quota rule is enforced, the same will have to be enforced at
the time of initial recruitment in officiating capacity and
not at the time of confirmation. It was, therefore, said
that it would be contrary to settled law to hold that quota
rule will also operate at the time of confirmation. Now, the
observation of the Court is in the context of Central
Engineering Service (Class I) Recruitment Rules, 1954, which
came up for interpretation before the Court in that case.
The recruitment was from three different sources, viz., by
competitive examination, by promotion and by transfer. Rule
4 provided that 75% of the vacancies in the grade of
Executive Engineer Class I shall be filled by promotion of
Assistant Executive Engineers Class I, the rest of the
vacancies being filled by promotion and/or by transfer in
accordance with Parts IV and V of the Rules respectively.
The general seniority rule which was held applicable in that
case was that seniority should be determined on the basis of
length of service in that grade or a service in an
equivalent grade irrespective of whether the latter was
under Central or Provincial Government in India or Pakistan.
It is in the context of these rules the question whether the
quota rule should be applied at the stage of initial
recruitment or confirmation came up for consideration.
Unlike the rule in the present case seniority was not
dependent on confirmation but seniority was dependent upon
continuous officiation in the cadre. In this background this
Court held that the quota has to be enforced at the time of
initial recruitment in officiating capacity and not at the
time of confirmation. The situation in the case under
discussion is materially different. Therefore, it cannot be
said that ignoring the
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rule a proposition of universal application has been laid
down that whenever there is a quota prescribed for
recruitment to a cadre it can only apply at the time of
initial recruitment and not at the time of confirmation.
Everything will depend upon the whole body of rules and
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harmonious construction has to be put upon the rules so as
to avoid the possibility of a rules becoming unreasonable.
This Court while saying in Subraman’s case (supra) that
quota rule has to be adhered to and enforced at the time of
initial recruitment re-affirmed the observation in Mervyn
Coutindo’s case (supra) that there is no inherent invalidity
in introduction of quota system and to work it out by rule
of rotation. When it is said that the confirmation shall
follow the quota rule it is in terms being stated that the
rotational system should be followed at the time of
confirmation so as to make quota rule effective and
seniority rule reasonable because all the three are
interlinked. Undoubtedly, the decision in Subraman’s case
was in terms affirmed in Patwardhan’s case (supra) but the
scheme of rules in Patwardhan’s case (supra) was more or
less similar to the one that was examined by this Court in
Subraman’s case.
Mr. Sanghi also urged that the language of Rule 8(a)
would unmistakably show that members of Service recruited
from either source would be on probation for a period of two
years and this would imply that promotees would also be on
probation for a period of two years. Approaching the matter
from this angle he further urged that proviso to rule 8(b)
which permits extension of probation only by one year
without expressly referring to direct recruits would govern
both promotees and direct recruits and in that view of the
matter promotees would also be deemed to be confirmed on the
expiry of period of probation. This contention overlooks the
latter Part of rule 8(a) which provides that in case of
promotees the Government may by special order in each case
permit periods of officiating appointments to the Service to
count towards the period of probation. It appears that both
promotees and direct recruits to Service would be on
probation. But the latter part of rule 8 (a) comprehends
Inspectors being promoted on officiating basis. Unless there
is a temporary addition to the strength of the cadre such
officiating appointment by promotion would not make the
promotee a member of the service in view of Rule 3. In order
to avoid any injustice to such promotees the Government may
make an order to treat officiating service to count towards
probation. In the absence of such order the officiating
service would not count towards probation and such
appointment would not make the promotee a member of the
service. In that event his case would not be covered
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by the proviso to rule 8(a). Therefore, the contention
cannot be accepted.
The High Court was, therefore, right in concluding that
the quota rule would operate at both the stages. Accordingly
both these appeals fail and are dismissed but in the
circumstances of the case with no order as to costs.
S.R. Appeals dismissed.
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