Full Judgment Text
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PETITIONER:
RAJENDRA NARAIN SINGH AND OTHERS
Vs.
RESPONDENT:
STATE OF BIHAR AND OTHERS
DATE OF JUDGMENT10/04/1980
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
VENKATARAMIAH, E.S. (J)
CITATION:
1980 AIR 1246 1980 SCR (3) 450
1980 SCC (3) 217
CITATOR INFO :
D 1984 SC 885 (26)
RF 1984 SC1595 (73)
RF 1986 SC 638 (12)
ACT:
Constitution of India 1950-Art 309 Proviso State
Government whether can regulate its public service in
exercise of its executive power.
Bihar Police Service (Recruitment) Rules 1953-Scope of.
Fixing of inter-se seniority of promotees and direct
recruits on basis of continuous officiation by promotees-
Whether valid.
HEADNOTE:
The appellants were appointed Inspectors of Police in
1953. After working as Inspectors for about 12 years, they
were promoted by notification dated June 16, 1965 to
officiate as Deputy Superintendents of Police. Before
promotion they were subjected to the scrutinies prescribed
by rules 22, 23 and 24 of the Bihar Police Service
(Recruitment) Rules, 1953. Rule 648-B of the Bihar and
Orissa Police Manual (Volume I) requires a promoted Deputy
Superintendent of Police to pass an examination in accounts.
The appellants passed the examination and satisfied all the
requirements for confirmation. However, the posts in which
they were officiating were temporary posts. Thereafter the
Government by a notification dated August 22, 1974,
confirmed the appellants and other similarly situated
officers as Deputy Superintendents of Police with effect
from the dates which according to these officers were
arbitrarily chosen. On September 1, 1974 the Government
published a combined gradation list in which these promotees
were placed even below the direct recruits who were
appointed in 1974. The appellants challenged this gradation
list in the High Court by a Writ Petition and during the
pendency of the said Writ, the State Government constituted
"Saran Singh Committee", to assess the promotional prospects
of different State services, examine the problem of
"stagnation", and suggest remedial measures. The
recommendations of the committee were accepted by the State
Government by Resolution dated April 11, 1977. In the Writ
Petition, the High Court directed the State Government to
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re-examine the matter and prepare a fresh gradation list on
the basis of the statement made by the Government in the
light of the committees’ recommendations. None of the
parties appealed against this order.
By notification dated January 7, 1978 the State
Government appointed on probation the Officers who had been
officiating in those posts with effect from the dates
mentioned against their names in the notification and the
notification issued previously promoting these officers on
officiating basis was cancelled. The dates from which these
officers were said to have been appointed on probation were
the dates of their promotion as officiating Deputy
Superintendents of Police. The names of the appellants
figured against serial numbers 23, 24 and 25 in the list
given in the notification dated January 7, 1978. The revised
gradation list which is under challenge was thereafter
issued.
451
The appellants questioned the correctness of the
Judgment of the High Court which allowed the two Writ
Petitions made by two different groups of direct recruits
challenging the gradation lists of permanent Deputy
Superintendents of Police on February 24,1978.
Accepting the appeal,
^
HELD: 1. The appellants were promoted to officiate as
Deputy Superintendents of Police in the year 1965 (other
promotees like the appellants had also been officiating as
Deputy Superintendents of Police from different dates
between 1948 and 1970), and by the Government order dated
December 30,1977 fifty-four temporary posts of Deputy
Superintendent of Police created between 1948 and 1970 were
made permanent from the dates these posts were created.
[456D-G]
2. It is well settled that in the absence of any
legislation on the subject, or a rule framed under the
Proviso to Article 309 of the Constitution, the State
Government can regulate its public services in the exercise
of its executive power. [456 F-G]
B. N. Nagarajan v. State of Mysore [1966] 3 SCR 682,
Sant Ram Sharma v. State of Rajasthan [1968] 1 SCR 111,
referred to.
3. There is no statute or any rule framed under the
Proviso to Article 309 to determine the seniority as between
the direct recruits and the promotees. The determination of
seniority on the basis of continuous officiation has been
held valid in S. B. Patwardhan’s case [1977] 3 S. C. R. 775.
The gradation list cannot therefore be challenged on the
ground that an arbitrary date was taken as its basis or that
it offends Article 14 of the Constitution. [456G-H. 457A]
4. In the year 1977 exigencies of the situation
prompted the Government to convert the temporary posts
created between 1948 and 1970 into permanent posts with
effect from the dates on which the temporary posts had been
created. The appellants were promoted in 1965 to officiate
as Deputy Superintendents of Police in posts which were then
temporary. The Governor while exercising his powers under
rule 3 in the year 1965 could not naturally take into
account the number of posts made permanent in 1977 with
effect from 1965. Whatever was done subsequently to increase
the strength of the cadre in 1965 under compulsion of the
situation cannot be said to have effected the validity of
the action taken by the Governor in 1965. [457-F]
S. G. Jaisinghani v. Union of India & Ors. [1967] 2
S.C.R. 703; referred to.
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5. Rule 3 of the Bihar Police Service (Recruitment)
Rules, 1953 is not really a quota rule, it does not lay down
a fixed proportion, all it does is to insist that the number
of vacancies to be filled by proportion, should not be less
than half of the total number of vacancies to be filled in
any year. Adding to the number of vacancies and filling them
by promotees does not certainly violate the rule requiring,
that no less than half of the vacancies must be filled by
promotees. What the Governor had done in a previous year in
exercise of his power under rule 3, if it was valid then is
not invalidated by the subsequent conversion of some posts
which were temporary at the time into permanent posts with
effect from the earlier year. If for administrative reasons
452
such a measure was considered necessary, there is nothing
rule 3 to suggest a bar. Rule 3, as already mentioned, does
not prescribe a fixed proportion of promotees and direct
recruits for the vacancies to be filled in any year but only
ensures not less that half of the vacancies for the
promotees, that being so, filling more than half of the
vacancies by promotees, cannot be an infringement of that
rule. [457G-H, 458A-B]
6. The gradation list contains certain mistakes, and
these shall be corrected by the concerned authority. [458F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1309-
1310 of 1978.
Appeals by Special Leave from the Judgment and Order
dated 29-6-1978 of the Patna High Court in C.W.J.C. Nos.
204-205 of 1978.
L. M. Singhvi, and S. K. Verma for the Appellants.
Dr. Y. S. Chitale, S. K. Sharma, R. K. Jain, R. A. P.
Singh, R. P. Singh and B. P. Singh for the Respondent Nos.
3-10, 12, and 13 in CA 1309/78.
R. K. Jain and R. A. P. Singh for RR 4, 6, 7 & 9 in CA
1310/78.
R. K. Garg, R. A. P. Singh and B. P. Singh for the RR 8
in both the appeals.
D. Goverdhan for the R 1 in both the appeals.
The Judgment of the Court was delivered by
GUPTA J. The controversy in these two appeals by
special leave relates to the question of seniority between
the direct recruits and the promotees in the rank of Deputy
Superintendent of Police in the Bihar Police Service. The
appellants-the same persons in both appeals-are promotees
who question the correctness of the judgment of the Patna
High Court by which the High Court allowed the two writ
petitions made by two different groups of direct recruits
challenging the gradation list of permanent Deputy
Superintendents of Police published on February 24, 1978.
Fifty-four temporary posts of Deputy Superintendent of
Police created between 1948 and 1970 were made permanent
"from the dates of their creation" by the Government of
Bihar in December, 1977. Earlier, the Government had decided
that continuous officiating service of the promoted Deputy
Superintendents of Police in these posts should be the basis
of their seniority. Following this decision, after the
temporary posts had been made permanent, the gradation list
in question was prepared and published.
Admittedly there is no statutory rule governing
seniority inter-se of direct recruits and promotees. In the
absence of any such rule
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453
prescribing a different criterion, it cannot be disputed
after Patwardhan’s case(1) that continuous officiation is a
reasonable basis for fixation of seniority. The High Court,
however, allowed the writ petitions filed by the direct
recruits on the view that the gradation list was invalid as
it infringed rule 3 of the Bihar Police Service
(Recruitment) Rules, 1953 framed under the Proviso to
Article 309 of the Constitution of India. Rule 3 is in these
terms:
"The Governor shall decide in each year to number
of vacancies to be filled in that year.
Provided that the number of vacancies to be filled
by promotion in the service in any one year shall not,
unless the Governor is satisfied that there is not a
sufficient number of officers fit for promotion, be
less than half the total number of vacancies to be
filled in any such year."
Before we proceed to consider the scope of this rule
and its effect on the question of seniority in this case, it
would be necessary to refer to a few more provisions of the
Bihar Police Service (Recruitment) Rules and some facts
forming the background to the controversy.
It is the Governor’s duty under Rule 3 to decide "in
each year" the number of vacancies in the Bihar Police
Service required to be filled "in that year". The proviso to
the rule states that the promotees be to be appointed in any
particular year shall not be less than half of the total
number of vacancies to be filled in that year unless
sufficient number of officers fit for promotion is not
available. It is important to remember that rule 3 does not
prescribe a fixed quota for each of the two categories,
direct recruits and promotees, but only insists that at
least half the vacancies in any year should be reserved for
the promotees. Rule 2 of these Rules states that recruitment
to Bihar Police Service shall be made by direct recruitment
and by promotion. A third source of recruitment was later
added in the Rules in 1975 with which we are not concerned
in this case. The Rules as regards direct appointment are
included in part II of the Rules. Rules 22, 23 and 24,
occurring in part III of the Rules lay down the method of
recruitment by promotion. Under rule 22 a preliminary
selection of officers for promotion is made in each Range by
Range Selection Board. Those selected by the Range Selection
Board have to appear before the Inspector General’s
Selection Board. The Inspector General’s Selection Board has
to nominate for appointment twice as many candidates as
there are vacancies to be filled by
454
promotion and to send all relevant papers relating to the
candidates nominated by it to the Bihar Public Service
Commission and, at the same time, submit a list of such
candidates to the Governor. The Public Service Commission
after examination of the Papers is required to submit its
recommendations to the Governor. Rule 24 says that the final
selection of officers to be promoted shall be made by the
Governor after considering the recommendations made by the
Public Service Commission.
The appellants in both these appeals were appointed as
Inspectors of Police in 1953. After working as Inspectors
for about 12 years, they were promoted by notification
issued on June 16, 1965 to officiate as Deputy
Superintendents of Police. Before promotion they were
subjected to the scrutinies prescribed by rules 22, 23 and
24 of the Bihar Police Service (Recruitment) Rules, 1953.
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Rule 648-B of the Bihar and Orissa Police Manual (Volume I)
requires a promoted Deputy Superintendent of Police to pass
an examination in accounts. This rule further says that a
promotee shall be on probation for one year and at the end
of the period, if he has passed the said examination and is
found fit, he will be confirmed. The rule adds that if he
has officiated as Deputy Superintendent for one year or more
he may be confirmed without further probation on his passing
the examination in accounts. The appellants passed the
examination and thus satisfied all the requirements for
confirmation. However the posts in which they were
officiating were temporary posts. It appears from a
memorandum issued by the State Government on December 28,
1955 that the Government considered it "desirable that all
temporary posts of all categories, gazetted as well as non-
Gazetted, which are in existence at present and which will
be necessary for an indefinite period should be made
permanent with effect from 1st April, 1956". This was
followed by another memorandum on September 9, 1967
addressed to "All Departments of Govt." and "All Heads of
Departments" on the "Policy regarding making temporary posts
under Govt. in existence from a long period, permanent"
which said that the Government had taken a decision that
"steps should immediately be taken .... to make all those
posts permanent which are in existence for more than three
years and are likely to continue in future." A third
memorandum on the subject issued on November 19, 1971
expressed dissatisfaction that "no effective step" had been
taken to make the temporary posts permanent and requested
all heads of departments to take "necessary steps"
"immediately" to implement the Government decision.
Apparently even the third memorandum failed to have any
effect.
455
By a notification dated August 22, 1974 the State
Government confirmed appellants and other similarly situated
officers as Deputy Superintendents of Police with effect
from dates which according to these officers were
arbitrarily chosen. On September 1, 1974 the Government
published a combined gradation list in which these promotees
were placed even below the direct recruits who were
appointed in 1974. The appellants challenged this gradation
list in the Patna High Court by a writ petition (C.W.J.C.
2011 of 1976). While that writ petition was pending, the
Government of Bihar constituted a high power committee,
known as the Saran Singh Committee, to assess the
promotional prospects of different State services, examine
the problem of "stagnation", and suggest remedial measures.
The recommendations made by the Committee were accepted by
the Government by resolution dated April 11, 1977. One of
the decisions taken by the Government upon the
recommendations of the Committee, which were set out in the
schedule annexed to the resolution, was as follows:
"The seniority of promoted officers vis-a-vis
direct recruits should be determined by taking into
account the continuous officiating service instead of
on the basis of the length of substantive service in
the cadre."
On behalf of the State Government it was submitted
before the High Court at the hearing of the aforesaid writ
petition (C.W.J.C. 2011 of 1976) that the Government
proposed to re-examine the gradation list in the light of
the Committee’s recommendations. On this statement the High
Court directed the State Government to re-examine the matter
and prepare a fresh gradation list. None of the parties
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appealed against this order. Thereafter, on December 30,
1977, the State Government wrote to the Accountant General,
Bihar, saying that on the basis of the Government decision
that continuous officiating service of the promoted Deputy
Superintendents of Police was to be the basis of their
seniority, the Government had decided that "the temporary
posts created in the Home (Police) Department would be made
permanent from the dates of their creation." Accordingly 54
temporary posts brought into existence between 1948 and 1970
were converted into permanent posts by Government order No.
16161 also dated December 30, 1977. By notification dated
January 7, 1978 the State Government appointed on probation
the officers who had been officiating in those posts with
effect from the dates mentioned against their names in the
notification and the notification issued previously
promoting these officers on officiating basis was cancelled.
The dates from which these officers were said to have been
appointed
456
on probation were the dates of their promotion as
officiating Deputy Superintendents of Police. The names of
the appellants figure against serial numbers 23, 24 and 25
in the list given in the notification dated January 7, 1978.
It is difficult to see why this method of converting the
officiating appointment into one on probation was thought
necessary. Rule 648-B of the Bihar and Orissa Police Manual
(Volume I) to which reference has been made earlier in this
judgment provides that if a promotee has officiated as
Deputy Superintendent for one year or more, he may be
confirmed without further probation on his passing the
examination in accounts. It has been already stated that all
the appellants had passed the examination. However, the
revised gradation list which is under challenge was
thereafter issued. This list, it was stated in a letter
dated January 31, 1978/February 24, 1978 addressed by a
Joint Secretary of the State Government to the Inspector
General of Police, Bihar, Patna, had been "prepared on the
basis of the date of appointment, officiating or permanent,
whichever is earlier, in the Bihar Police in the light of
Finance Department Resolution No. 3521 dated 11-4-77 and
judgment of the High Court in C.W.J.C. No. 2011/76.. "
In the context of the present controversy two important
facts which have to be kept in mind are: (i) the appellants
were promoted to officiate as Deputy Superintendents of
Police in the year 1965 (other promotees like the appellants
had also been officiating as Deputy Superintendents of
Police from different dates between 1948 and 1970) and (ii)
by Government order dated December 30, 1977 fifty-four
temporary posts of Deputy Superintendent of Police created
between 1948 and 1970 were made permanent from the dates
these posts were created.
The only question here is whether there was anything
wrong in fixing the inter-se seniority of the promotees and
the direct recruits on the basis of continuous officiation
by the promotees. It is well settled that in the absence of
any legislation on the subject, or a rule framed under the
Proviso to Article 309 of the Constitution, the State
Government can regulate its public services in the exercise
of its executive power. (see B. N. Nagarajan v. State of
Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the
case before us there is no statute or any rule framed under
the Proviso to Article 309 to determine the seniority as
between the direct recruits and the promotees. The
determination of seniority on the basis of continuous
officiation has been held valid in S. B. Patwardhan’s case
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457
(supra). The gradation list cannot therefore be challenged
on the ground that an arbitrary date was taken as its basis
or that it offends Article 14 of the Constitution.
It is however contended on behalf of the respondents
who were the writ petitioners in the High Court that rule 3
of the Bihar Police Service (Recruitment) Rules, 1953 framed
under the Proviso to Article 309 of the Constitution, though
it is not a seniority rule, does not permit the course
adopted in this case by the Government, namely, converting
the temporary posts created between 1948 and 1970 into
permanent posts in the year 1977 with effect from the dates
on which the temporary posts had been created. Under rule 3
the Governor has to decide in each year the number of
vacancies to be filled in that year and to secure not less
than half of the total vacancies for the promotees. The
argument is that for the year 1965 or for that matter for
any year prior to 1977 when the notification under challenge
was issued, the Governor had duly exercised his power under
rule 3 in that very year, and adding to the number of
existing permanent posts by an order made in a subsequent
year after the Governor had ascertained the number of
vacancies required to be filled and had them filled
according to the ratio prescribed by rule 3, would disturb
that ratio and contravene rule 3. We are unable to accept
this contention as correct. In the year 1977 exigencies of
the situation prompted the Government to convert the
temporary posts created between 1948 and 1970 into permanent
posts with effect from the dates on which the temporary
posts had been created. The appellants were promoted in 1965
to officiate as Deputy Superintendents of Police in posts
which were then temporary. The Governor while exercising his
powers under rule 3 in the year 1965 could not naturally
take into account the number of posts made permanent in 1977
with effect from 1965. Whatever was done subsequently to
increase the strength of the cadre in 1965 under compulsion
of the situation cannot be said to have affected the
validity of the action taken by the Governor in 1965. In S.
G. Jaisinghani v. Union of India & Ors.(1) this Court held
that when the quota was fixed for the two sources of
recruitment, it could not be altered according to exigencies
of the situation. But rule 3 is not really a quota rule, it
does not lay down a fixed proportion, all it does is to
insist that the number of vacancies to be filled by
promotion should not be less than half of the total number
of vacancies to be filled in any year. Adding to the number
of vacancies and filling them by promotees does not
certainly violate the rule requiring that not less than half
of the vacancies must be
458
filled by promotees. What the Governor had done in a
previous year in exercise of his powers under rule 3, if it
was valid then, is not invalidated by the subsequent
conversion of some posts which were temporary at the time
into permanent posts with effect from the earlier year. If
for administrative reasons such a measure was considered
necessary, there is nothing in rule 3 to suggest a bar. Rule
3, as already mentioned, does not prescribe a fixed
proportion of promotees and direct recruits for the
vacancies to be filled in any year but only ensures not less
than half of the vacancies for the promotees; that being so,
filling more than half of the vacancies by promotees, cannot
be an infringement of that rule.
In the view we have taken, it is unnecessary to
consider two other subsidiary questions raised: (1) whether
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the cadre consisted only of permanent posts or included both
permanent and temporary posts: according to the appellants
the cadre should include both temporary and permanent
officers in the absence of any rule to the contrary. In this
Judgment in reaching the conclusion stated above we have
assumed that the cadre consisted of permanent officers only;
(ii) Whether rule 3 has ever been followed since the Rules
were framed in 1953; according to the appellants rule 3 has
really not been observed in any of those years and that no
question of contravention of the rule can therefore be
raised in this case.
In the result we allow the appeals, set aside the
judgment of the High Court and dismiss the writ petitions
C.W.J.C. 204 of 1978 and C.W.J.C. 205 of 1978 filed in the
High Court. It appears from an affidavit sworn by Shri Ashok
Kumar Sinha, Under Secretary, Home (Police) Department, on
behalf of the State of Bihar on August 31, 1979 and filed in
this Court on the same day that the gradation list in
question contains certain mistakes; these shall be corrected
by the concerned authority. In the circumstances of the case
we make no order as to costs.
N.K.A. Appeals allowed.
459