No 182 of 1966
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights
NC Chatterjee K B Roastagi L M Singhvi and section Balakrishnan for the petitioner
CB Agarwala G C Kasliwal Advocate General Rajasthan Indu Soni and K Baldev Mehta for respondent No 1
NS Bindra A section Nambiar and R N Sachthey for respondent No 2
KBaldev 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 article 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 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 articles 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 ie 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 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 section 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 2g 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
2The 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 3The 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 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
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 2a 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 EB 30 770 40 850 19 years
Senior Scale
600 6th year under 40 10001000 1050 1050 1100 1100 1150 22 years
Selection Grade Rs 1250 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 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 1250
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 vs Union of India1 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 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 vs Union of India1 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
1 119 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 7656 AIS1 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 IPS 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 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 NC 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 vs State of Mysore1 it was pointed out by this Court that it is not obligatory under the proviso to article 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 article 309 of the Constitution which abridges the power of the executive to act under article 162 of the Constitution without a law
A similar view 1 120 was taken by this Court in T Cajee vs U Jormanik Siem1 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
31g 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
31g than is justified by its language
Paragraph 31 is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws
Under para
31g 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
191b or till the District Council passed laws under para
31g
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
191b or laws are passed under para
31 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
31g cannot be sustained
 We pass on to consider the next contention of Mr NC 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 article 309 there will be a violation of articles 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 articles 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 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 122 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 articles 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 articles 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 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 123 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 articles 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 article 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


Summary:
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 article 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 articles 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 articles 14 and 16 of the Constitution because the claims of the petitioner were not considered either in 1955 or in 1966
HELD1 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
2While 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 article 309 which abridges the power of the executive to act under article 162 without a law
119 F G H
T Cajee vs U Jormanik Siem  and B N Na garajanv
State of Mysore  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 articles 14 and 16 of the Constitution 112E 123C D
4The 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 articles 14 and 16
121D E