ivil Appeal Nos
252677 and 241378
From the Judgment and order dated 17 5 1975 of the Punjab and Haryana High Court in LPA Nos 633 671 69473 and 60973
AND Writ Petition Nos
520 524 of 1980
Under Article 32 of the Constitution Jawahar Lal Gupta and section Ghose for the Appellant in CA 252677 P R Mridul M R Agnihotri and P C Bhartari for the Appellant in CA 241378
O P Sharma and M section Dhillon for the State of Punjab in both the appeals
464 Lal Narain Sinha Att
Abdul Khader and Miss section Subashini for the Union of India in all the appeals
H L Sibal R K Garg and R section Sodhi for Respondent No 10 in CA 2526 and RR11 in CA 2413
R K Garg and R section Sodhi  for the Petitioners in WP Nos
520 524 of 1980
The Judgment of the Court was delivered by CHINNAPPA REDDY J
In these appeals we have once again to consider career conscious competing claims to seniority which appear so much to dominate the lives and careers of our Civil Servants that a large bulk of the cases in this Court relate to the resolution of problems arising out of such claims
So much of our time is taken up in discovering the precise facts of these intricate problems that we wonder whether the constitution of a fact finding administrative tribunal who should invariably be approached in the first instance will not better serve the cause of successful administration
An administrative tribunal possessing the necessary expertise and familiarity with administrative procedures and rules may be able to deal with the problems in a satisfactory way
At least the facts will be found and the relevant rules will be known
Thereafter aggrieved parties may approach the Courts for further relief within the confines of Articles 226 and 32 of the Constitution
On selection by the Punjab Public Service Commission B R Kapur and Harjeet Singh were directly recruited in 1951 as Deputy Superintendents of Police in the Punjab Police Service
They are the appellants in Civil Appeal Nos 2413 of 1978 and 2526 of 1977 respectively
B R Kapur was senior to Harjeet Singh as Deputy Superintendent of Police
In 1960 both of them were included in the Select List prepared under Regulation 7 of the Indian Police Service Appointment by Promotion Regulations 1955
On November 24 1960 B R Kapur was appointed as Assistant Inspector General of Police which post was a cadre post
In May 1961 B R Kapur was appointed as Director of Sports and Youth Programme and Deputy Secretary to Government Sports Department
The post was a non cadre post
He held this post upto November 18 1962 and thereafter he was appointed as Additional Controller of Stores Punjab which was also a non cadre post
He continued to hold the post of Additional Controller of Stores till 1965
From July 19 1965 he was Commandant 40th Battalion PAP J  K which was a cadre post
He held the post till July 11 1966 when he took over as Commandant of 25th Battalion PAP
On the reorganisation of the State of Punjab he 465 was appointed as Assistant Inspector General of Police State of Punjab from November 1 1966
Thereafter he continuously held cadre posts and was finally appointed to the Indian Police Service with effect from September 3 1969
Shri Harjeet Singh was appointed to officiate as Superintendent of Police in December 1960
The post was a cadre post
He continued to hold a cadre post till he was appointed to the Indian Police Service with effect from September 3 1969
After the two officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of seniority arose for the consideration of the Government of India
Shri B R Kapur was allotted to the year 1963 and placed below Sube Singh and above Shri section R Sharma direct recruits in the Indian Police Service Gradation List of Punjab
The period of his service as Director of Sports and Youth Programme and as Additional Controller of Stores was not taken into consideration as both the posts were non cadre posts
His service as Commandant of 25th Battalion was also not taken into account on the ground that the 25th Battalion had been taken over by the Government of India and therefore the post of Commandant of the 25th Battalion was a non cadre post
He was therefore treated as having continuously officiated in a senior cadre post from November 1 1966 only
On that basis he was allotted to the year 1963
In the case of Harjeet Singh though admittedly he officiated continuously in a senior cadre post from December 1960 he was also allotted to the year 1963 and placed below Shri B R Kapur on the ground that he ranked below Shri B R Kapur in the select list
B R Kapur and Harjeet Singh filed Writ Petitions in the High Court of Punjab and Haryana questioning the allotment of the year 1963 to them for the purpose of seniority in the Indian Police Service
The learned Single Judge of the High Court who heard the petitions in the first instance held that there was no reason at all why Harjeet Singh should not be given the full benefit of his continuous officiation in a senior post
He therefore directed the Union and Punjab Governments to redetermine the year of allotment of Harjeet Singh taking December 17 1960 as the date from which he continuously officiated in a senior post
It was also directed that proper seniority should be assigned to him in accordance with the year of allotment so determined
In the case of B R Kapur it was held that July 29 1965 should be treated as the date of his continuous officiation in a senior post
It was held that the Government of India and the Government of Punjab had all the time treated the post of Commandant 466 25th Battalion as a cadre post and therefore B R Kapur was entitled to have his service in the post of Commandant 25th Battalion as officiation in a Senior post
A direction was issued that the year of allotment and seniority should be re determined
It was further directed that before redetermining the seniority of the two officers the respondents to the Writ Petitions who were direct recruits should be afforded an opportunity to make their representations
Appeals under Clause 10 of the Letters Patent were filed by the affected direct recruits as also by B R Kapur
Before the Division Bench the case took a new turn
It was argued before the Division Bench on behalf of the direct recruits that neither B R Kapur nor Harjeet Singh would have ever started officiating in the senior post on the dates from which they officiated or claimed to have officiated in senior posts if the State Government had not created artificial vacancies by excessive utilisation of the deputation and central reserve  quota in contravention of the Cadre Rules and the Cadre strength Regulations
It was apparently sought to be argued before the Division Bench that the period of service attributable to over utilisation of deputation and central reserve  quota should not be treated as service in a senior post for the purpose of determining the year of allotment of officers promoted to the Indian Police Service
The argument was accepted by the Division Bench and a direction was issued to the Central Government to reconsider the question of year of allotment after taking into consideration the question of over utilisation and its effect
The finding of the learned Single Judge that B R Kapur was entitled to have his service as Commandant 25th Battalion as officiation in a senior post was however affirmed
Shri Jawahar Lal Gupta learned counsel for Harjeet Singh argued that the service of Harjeet Singh in a senior cadre post was approved by the Government of India and once it was so approved the question whether there was over utilisation of deputation and central reserve quota was irrelevant for the purpose of determining the year of allotment
The only relevant question was whether the appellant had continuously officiated in a senior post and from what date
There after the year of allotment was to be determined by the simple and mechanical application of rule 33 b of the Indian Police Service Regulation of Seniority Rules
He further submitted that the circumstance that B R Kapur was senior to Harjeet Singh in the Select List was also irrelevant in considering the question of year of allotment
It was only if both of them were given the same year of allotment that their inter se seniority in the Select List would become relevant
Shri Mridul learned counsel for B R Kapur argued that 467 the single Judge of the High Court was wrong in excluding the period of service of B R Kapur as Director of Sports and as Additional Controller of Stores in determining the year of allotment
He further contended that in any event the case of B R Kapur was an appropriate one for the exercise by the Central Government of its power to relax the rules and that this Court should give a direction to the Central Government to relax the rules so as to enable that part of Kapur s service to be treated as service in a senior post
Shri H L Sibal learned counsel for one of the respondents argued that the number of cadre officers who could be deputed by the Central and State Governments for service elsewhere was limited and fixed by the Indian Police Service Fixation of Cadre Strength Regulations
By deputing more cadre officers than authorised by those Regulations and appointing non cadre officers to artificial vacancies so created in cadre posts the State Government had adopted a device to enable the officers of the State Police Service to continuously officiate in Senior posts longer than justified
The Cadre Strength Regulations were thereby contravened and the Cadre Rules which provide for the temporary appointment of non cadre officers to cadre posts circumvented
He submitted that officiating service rendered by a non cadre officer in a Senior post where the vacancy in the cadre post was the result of over utilisation of the deputation quota could not be taken into account under the Indian Police Service Regulation of Seniority Rules
Shri R K Garg who appeared for the remaining respondents urged that to permit promoted officers to take advantage of the deviation from the Cadre Rules and the Cadre Fixation of Strength Regulations for the purpose of gaining an advantage under the Seniority Rules would be a denial of the equal protection of the laws to the direct recruits who would be affected by such procedure
He also urged that Rule 3 of the Seniority Rules if so interpreted as to take into account officiation against the rules must be held to contravene Articles 14 and 16 of the constitution
In order to appreciate the rival contentions it is necessary to examine the relevant statutory provisions rules and regulations
Article 3121 empowers Parliament to provide by law for the creation of All India Services common to the Union and the States
Article 3122 declares that the services known at the commencement of the Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under article 3121
468 section 2 of the All India Services Act 1951 defines an All India Service as meaning the service known as the Indian Administrative Service or the service known as the Indian Police Service or any other service specified in section 2A
3 enables the Central Government after consultation with the Government of the States concerned to make rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Service
The Indian Police Service Cadre Rules 1954 made in exercise of the powers conferred by section 3 1 of the All India Services Act provide for the constitution of Cadres and certain connected matters
A Cadre Officer is defined as a member of the Indian Police Service and a Cadre post is defined as any of the posts specified under item 1 of each cadre in the schedule to the Indian Police Service Fixation of Cadre Strength Regulations 1955
Rule 41 provides that the strength and composition of a cadre constituted for each State or group of States shall be as determined by Regulations made by the Central Government in consultation with the State Governments
Rule 42 requires the Central Government to re examine the strength and composition of each such cadre at intervals of every three years in consultation with the State Government concerned and to make such alterations as it deems fit
The first proviso to Rule 42 expressly stipulates that the power of the Central Government to alter the strength and composition of any cadre at any other time is not affected by rule 42
The second proviso to r 42 enables the State Government to add for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years to a State cadre one or more posts carrying duties or responsibilities of a like nature to a cadre post
Rule 6 authorises the deputation of cadre officers for service under the Central Government or another State Government or under a Company Association or body of individuals whether incorporated or not which is wholly or substantially owned or controlled by the Central Government or a State Government a Municipal Corporation or a Local body or an international organisation etc
Rule 8 prescribes save as otherwise provided in these rules every cadre post shall be filled by a cadre officer
Rule 91 provides for the temporary appointment of a non cadre officer to a cadre post if the State Government is satisfied that the vacancy is not likely to last for more than three months or if there is no suitable cadre officer available for filling the vacancy
Where a non cadre officer is appointed to a cadre post for a period exceeding three months the State Government is required forthwith to report the fact to the Central Government together with their reasons for making the 469 appointment
The Central Government may then direct the State Government to terminate the appointment of such person and to appoint a cadre officer to the post in which case the State Government is bound to give effect to the direction
Where a cadre post is likely to be filled by a non cadre officer for a period exceeding six months the Central Government is required to report the full facts to the Union Public Service Commission and may thereafter give appropriate directions to the State Government in the light of the advice given by the Union Public Service Commission
Pursuant to the powers conferred by R 41 of the Indian Police Service Cadre Rules the Central Government has made the Indian Police Service Fixation of Cadre Strength Regulations 1955 determining the strength and composition of the cadres of each of the States
In the schedule the total authorised cadre strength for the State of Punjab is mentioned as 70 consisting of 34 Senior Posts under the State Government 14 Senior posts under the Central Government 7 Deputation Reserve posts 6 Leave Reserve posts and 7 Junior posts and 4 Training Reserve posts
The thirty four senior posts under the State Government are also particularly specified
Thirty six out of the total of forty eight Senior posts under the Central and State Governments the deputation Reserve posts the Leave Reserve posts the Junior posts and the Training Reserve posts are all stated to be direct recruitment posts  while the remaining 12 Senior posts under the Central and State Governments are stated to be promotion posts
It is necessary to mention here that the thirty four posts specified as Senior posts under the State Government are shown as item 1 of the schedule and the fourteen Senior posts under the Central Government are shown as item 2 of the schedule
The Indian Police Service Recruitment Rules 1954 provide for recruitment to the Service a by a competitive service and b by promotion of substantive members of a State Police Service
Rule 91 empowers the Central Government to recruit to the Indian Police Service persons by promotion from amongst the substantive members of the State Police Service in accordance with Regulations made by the Central Government
The recruitment is required to be made on the recommendation of the State Government concerned and in consultation with the Union Public Service Commission
Rule 92 provides that the total number of persons recruited by promotion shall not at any time exceed 25 of the number of posts shown against item No 1 and 2 of the cadre in the schedule to the Indian Police Service Fixation of Cadre Strength Regulation
Items 1 and 2 we have already mentioned are Senior posts under the State and the Central Governments
470 The Indian Police Service Appointment by Promotion Regulations 1955 made pursuant to Rule 91 of the Indian Police Service Recruitment Rules 1954 prescribes a very elaborate procedure for making appointments by promotion to the Indian Police Service
A Selection Committee is required to be constituted for each State consisting of the Chairman or any other member of the Union Public Service Commission and other members specified in the schedule
In the case of Punjab the other members are the Chief Secretary to the Government of Punjab the Secretary to the Government of Punjab in the Home Department the Inspector General of Police and a nominee of the Government of India not below the rank of Joint Secretary
The Selection Committee is required to meet at intervals ordinarily not exceeding one year and to consider the cases of all eligible substantive members of the State Police Service
The Committee is required to prepare a list of such eligible members of the State Police Service who are suitable for promotion to the Indian Police Service The selection for inclusion in the list is to be based on merit and suitability in all respects with due regard to seniority but the names of the officers included in the list are required to be arranged in order of seniority in the State Police Service
The list prepared by the Selection Committee is then to be forwarded to the Union Public Service Commission by the State Government with all relevant records the reasons recorded by the Committee for any proposed supersession of any member of the State Police Service and the observation of the State Government on the recommendation of the Committee
Thereafter the Union Public Service Commission is to consider the list prepared by the Committee and to make any changes considered by them to be necessary after informing the State Government of the proposed changes
The list as finally approved by the Commission is to form the Select List of the members of the State Police Service  All appointments of members of the State Police Service from the Select List to posts borne on the State cadre are to be made in accordance with the provisions of R 9 of the Cadre Rules
In making the appointments the State Government is to follow the order in which the names of such officers appear in the Select List except where administrative exigencies require otherwise and the vacancy is not likely to last for more than three months
Appointments of members to the Indian Police Service are to be made by the Central Government on the recommendation of the State Government in the order in which the names of the members of the State Police Service appear in the Select List for the time being in force
We arrive finally at the Indian Police Service Regulation of Seniority Rules 1954
Rules 3 provides that every officer shall be assigned 471 a year of allotment in accordance with the provisions of that rule
Rule 33b prescribes that the year of allotment of an officer who is appointed to the service by promotion in accordance with rule 9 of the Recruitment rules shall be the year of allotment of the junior most among the officers recruited by competitive examination who officiated continuously in a Senior post from a date earlier than the date of commencement of such officiation by the officer appointed to the service by promotion
Senior post  was originally defined as a post included and specified under item 1 of the cadre of each State in the Schedule to the Indian Police Service Fixation of Cadre Strength Regulation and as including posts declared by the State Government as equivalent to such posts
The definition was amended with effect from April 22 1967 and the present definition does not include posts declared equivalent by the State Government to cadre posts
Rule 41 provides that the seniority of officers inter se shall be determined in accordance with the provisions of the rules
Rule 44 provides that the Seniority of officers who are assigned the same year of allotment shall be in the order of the dates on which they started officiating continuously in the Senior post but in the case of Officers appointed to the service by promotion the dates of officiation shall be the same as the dates taken into account for the purpose of assignment of year of allotment under rule 33
Where the dates of commencement of continuous officiation in a Senior post of more than one Officer appointed to the service by promotion is the same their seniority inter se shall be in the order of their dates of appointment to the service and where the date of appointment is also the same it shall be in the order in which their names are arranged on the date of their appointment to the service in the Select List
These are the Statutory provisions Rules and Regulations with which we are concerned in the present appeals
What are primarily in question are the year of allotment and the Seniority of the two officers Harjeet Singh and B R Kapur
So therefore our primary concern is with the Indian Police Service Regulation of Seniority Rules 1954
Rule 33 b as well as rule 44 throw up the date of continuous officiation of an officer in a cadre post as the most important factor both for the purpose of assignment of year of allotment and for the purpose of assignment of seniority
For the purpose of assignment of year of allotment the date of continuous officiation in a senior post is the only relevant factor while for the purpose of assignment of seniority first the date of continuous officiation in a senior post is the only relevant factor while for the if the date of commencement of continuous officiation in a Senior 472 post of more than one officer is the same and finally the order in the Select List if the date of appointment is also the same are the several relevant factors in that order
Thus the order in the Select List is irrelevant for the purpose of determining the year of allotment and is relevant in determining the seniority only if the year of allotment of the Officers is the same and their date of appointment is also the same
Since the order in the Select List is dependent on the seniority in the State Service it follows that seniority in the State Police Service is irrelevant for the purpose of determining the year of allotment and is relevant for the purpose of determining the seniority only if the year of allotment and the date of appointment of two or more officers are the same
It must therefore necessarily follow that an officer who is junior to another in the State Police Service but who starts continuous officiation in a Senior post from a date earlier than the other may frog leap and gain Seniority by the consequential assignment of an earlier year of allotment
There is nothing in the Indian Police Service Regulation of Seniority Rules which has the effect of depriving an officer the benefit of continuous officiation on the ground that some one senior to him in the State Police Service did not so continuously officiate
Nor are we able to discover any other rule in the innumerable Rules and Regulations governing the recruitment appointment and Regulation of Seniority of officers of the Indian Police Service which is designed to deprive an officer the benefit of continuous officiation in a Senior post
One of the submissions made to us by the respondents was that the Select List having been prepared on grounds of merit and ability the order in which officers were ranked in the Select List should not be disturbed after they were actually promoted to the Indian Police Service
This submission is without substance
Though under the Indian Police Service Appointment by Promotion Regulations the Select List is prepared on the basis of merit and ability the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability
Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of Officers are arranged in the order of that seniority
We are therefore satisfied that the benefit of continuous officiation in a Senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate
It is however true that under Regulation 8 of the Indian Police Service Appointment by Promotion Regulations appointments to 473 cadre posts from among non cadre officers should be made according to the order in which the names of such officers appear in the Select List
A deviation from the order is permissible if administrative exigencies require it and if the vacancy is not likely to last for more than three months
Of course the Regulation does not license uninhibited deviation to favour individual non cadre officers
If that is done the deviation is liable to challenge
But where there is no such allegation there is no reason why a junior non cadre officer should lose the benefit of his continuous officiation in a cadre post merely because a non cadre officer senior to him in the Select List did not continuously officiate likewise
In such a situation it would be for the Government of India to consider whether the relevant rules may not be so relaxed as to enable such non cadre officer to add his officiation in a non cadre post to his officiation in a cadre post regard being had to the circumstances under which the officer had to work in a non cadre post while his junior in the Select List was made to fill the cadre post
But surely it cannot work to the prejudice of the junior officer in the Select List so as to nullify the actual continuous officiating service rendered by him
In the present case there is no allegation that B R Kapur was appointed to the non cadre posts of Director of Sports and Additional Controller of Stores with a view to favour Harjeet Singh
Now the question for consideration is whether non cadre officers are to be denied the benefit of continuous officiation in senior post merely because cadre officers were appointed on deputation elsewhere in excess of the number of posts specified against Deputation Reserve  in the schedule to the Cadre Fixation of Strength Regulation
We are unable to discover any provision in the Seniority Rules Recruitment Rules Cadre Rules or the Cadre Regulations which would lead to such a consequence
To begin with it has to be borne in mind that the Fixation of Cadre Strength Regulations are made in exercise of the powers conferred on the Central Government by Rule 41 of the Cadre Rules and are therefore subordinate to the Cadre rules even as rules made in exercise of powers conferred by a Statute are necessarily subordinate to the Statute
Rule 6 of the Cadre Rules provides for the deputation of Cadre Officers and Rule 9 of the same rules provides for the temporary appointment of non cadre officers to cadre posts
In making appointments of non cadre officers to cadre posts the rule prescribes the fulfillment of certain conditions
It is not disputed that the conditions prescribed by Rule 9 of the Cadre Rules were fulfilled
That the conditions were fulfilled is also apparent from the very impugned order
If non cadre officers are appointed to cadre posts in accordance with Rule 9 of the Cadre Rules is there 474 any justification for denying the non cadre officer the benefit of officiation in the cadre post on the ground that more cadre officers than the number specified in the Fixation of Cadre Strength Regulations had been deputed for service elsewhere  It is not disputed that the deputation of cadre officers was in accordance with Rule 6 of the Cadre Rules
True Rule 41 of the Cadre Rule enables the Central Government to make Regulations determining the strength and composition of the Cadre of each State
It is also true that a definite number of posts is specified against Deputation Reserve  in the schedule to the Fixation of Cadre Strength Regulations
But if owing to the situational demands and exigencies of the administration the number is exceeded and the State Government is compelled to utilise the services of experienced non cadre officers to fill cadre posts in strict compliance with the Cadre Rules we see no reason to hold that the service rendered by the non cadre officers in such posts should be ignored
On the other hand we think that the Fixation of Cadre Strength Regulations made under Rule 4 of the Cadre Rules do not over ride the Recruitment Rule the remaining Cadre Rules and the Seniority Rules so as to render invalid any service rendered by a non cadre officer in a cadre post on the mere ground of breach of the Fixation of Cadre Strength Regulations when there has been strict compliance with Rule 9 of the Cadre Rules
We think that fixation of Cadre strength is the exclusive concern of the Central and the State Governments and the Regulations are made for their convenience and better relationship
Excessive utilisation of Deputation or Central Reserve  is a matter for adjustment and controversy between the Central and the State Governments and is of no concern to any member of the Service
For example no cadre officer who is asked to fill a deputation post can refuse to join the post on the ground that the Deputation Reserve  has already been exceeded
The Regulations are not intended to and do not confer any right on any member of the Service unlike some other Rules which do confer or create rights in the members of the Services
Among other Rules for instance Rule 92 of the Recruitment Rules stipulates that the total number of persons recruited by promotion shall not at any time exceed 25 of the posts shown against item Nos 1 and 2 of the cadre in the schedule to the Fixation of Cadre Strength Regulations
Now if at a point of time this limit is exceeded direct recruits may have a just cause for complaint and it may perhaps be held that to the extent of the excess the appointments by promotion are invalid and confer no rights of seniority over direct recruits
But as we said the Fixation of Strength Regulation confer no rights on members of the Service and a mere breach of the Regulation furnishes no cause of action to any member of the service 475 On the ground that his seniority is affected in some round about way
We may add that there is no suggestion that Rule 92 of the Recruitment Rules was contravened
It was brought to our notice that several Senior cadre officers had to be deputed to organise Battalions of the Punjab Armed Police which came to be formed after the Chinese aggression in 1962 and at the time of the Indo Pakistan War in 1965
It was in the vacancies caused by their deputation that Senior officers of the State Police Services were appointed to cadre posts
Under Rule 6A 2 of the Indian Police Service Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service experience and performance he is found to be suitable for appointment to a post in the Senior time scale of pay
It appears that at that time in Punjab there was no direct recruit in the Junior time scale of pay who possessed experience of atleast four years who could be thought of for appointment in the Senior post
The State Government therefore had no option except to appoint experienced and suitable non cadre officers to cadre posts
It was also brought to our notice that no cadre officer who had been so deputed suffered in any manner in the matter of his career
It was repeatedly suggested that the State Governments were generally in the habit of adopting stratagem of sending cadre officer on deputation in excess of the Deputation Reserve in order to enable Officers of the State Services to officiate in cadre posts so as to further enable them to get the benefit of such continuous officiation when finally appointed to an All India Service
Whatever truth there may be in the suggestion it has to be remembered firstly that the appointment of non cadre officers to cadre posts is subject to the directions of the Central Government who may terminate such appointment
The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extend beyond six months
Next it has also to be borne in mind that non cadre officers of proven merit only are appointed to cadre posts
They are appointed to cadre posts if they are already in the Select List and the appointments also are made in accordance with the order in which they are placed in the Select List
We have earlier mentioned how the Select List itself if prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination of various levels of the merit of the officers of the State Police Service
A State officer whose name appears on the Select List may expect to be appointed to a Cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position
A direct recruit who ordi 476 narily comes into the picture years after a State Officer s name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promoted officer
We are also unable to appreciate the submission of Shri R K Garg that every departure from a rule which departure gives certain advantages to one group of civil servants as against another necessarily involves an encroachment of the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution
The proposition is widely stated far fetched in relation to the facts of the instant case and not supported by N K Chauhan  Ors
vs State of Gujarat1 on which Shri Garg relied
In Chauhan s case the Court was considering the effect of the breach of a Quota  rule fixing the proportion of direct recruits  and promotees 
In the present case as already noticed by us there is no allegation of breach of the quota  rule embodied in Rule 92 of the Recruitment Rules
The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any Quota  rule
The consequential submission of Shri Garg that rule 33b if so interpreted as to take into account officiation in contravention of the rules offends Articles 14 and 16 of the Constitution therefore loses all force particularly in view of what we have said about the true nature of the Fixation of Cadre Strength Regulations
We also notice that the vires of Rule 33b of the Indian Administrative Service Regulation of Seniority Rules which is in similar terms as rule 33b of the Indian Police Service Regulation of Seniority Rules was upheld by a Constitution Bench of this Court in A P Sharma vs Union of India2 In the light of our foregoing discussion we hold that the over utilisation  of Deputation and Central Reserve  does not affect the questions of assignment of the year of allotment and the seniority of the appellants
The concurrent finding of the learned single judge and the Division Bench that Kapur s service as Commandant PAP Battalion No 25 was service in a Senior post was not challenged before us
Shri Mridul argued that the records reveal that Kapur s appointment to the posts of Director of Sports and Additional Controller of Stores was because of his exceptional ability and therefore those posts must be treated as cadre posts
In any event he suggested that we should invite the Government of India to suitably 477 relax the rules so as to enable Kapur s service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts
We cannot of course hold Kapur s service in non cadre posts as service in cadre posts
Nor can we give the direction sought by Shri Mridul
It is of course open to Kapur to invoke the power of the Government of India to relax the rules and it is for the Government to take a just decision in the matter
We have no advice to offer
Both the Civil Appeals are allowed the Judgment of the Division Bench is set aside and the judgment of the Single Judge is restored
Writ Petition Nos
520 524 have been filed by some of the direct recruits questioning the vires of rule 33b of the Indian Police Service Regulation of Seniority Rules and Rule 3 of the All India Services Conditions of Service Residuary Matter Rules 1960 which vests in the Government of India the power to relax
We have upheld the validity of Rule 33b of the Indian Police Service Regulation of Seniority Rules and the question of the vires of Rule 3 of the All India Service Conditions of Service residuary matters rules does not arise at present
The Writ Petitions are also dismissed
SR Appeals allowed and Petitions dismissed


Summary:
On selection by the Punjab Public Service Commission B R Kapur appellant in CA 241378 and Harjeet Singh Appellant in CA 252677 were directly recruited in 1951 as Deputy Superintendents of Police in the Punjab Police Service
B R Kapur was senior to Harjeet Singh as Deputy Superintendent of Police
In 1960 both of them were included in the Select List prepared under Regulation 7 of the Indian Police Service Appointment by Promotion Regulations 1955
On November 24 1960 B R Kapur was appointed as Assistant Inspector General of Police which post was a cadre post
In May 1961 he was appointed to a non cadre post as Director of Sports and Youth Programme and Deputy Secretary to Government Sports Department
He held this post upto November 18 1962 and thereafter he was appointed as Additional Controller of Stores Punjab which was also a non cadre post
He continued to hold the post of Additional Controller of Stores till 1965 from July 19 1965 he was Commandant 40th Battalion PAP J  K which was a cadre post
He held the post till July 11 1966 when he took over as Commandant of 25th Battalion PAP
On the reorganisation of the State of Punjab he was appointed as Assistant General of Police State of Punjab from November 1 1966
Thereafter he continuously held cadre posts and was finally appointed to the Indian Police Service with effect from September 3 1969
Shri Harjeet Singh was appointed to officiate as Superintendent of Police in December 1960
The post was a cadre post
He continued to hold a cadre post till he was appointed to the Indian Police Service with effect from September 3 1969
After the two officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of seniority arose for the consideration of the Government of India
Shri B R Kapur was allotted the year 1963 and placed below Sube Singh and above section R Sharma direct recruits in the Indian Police Service counting his continuous officiating service from 1 11 66 only as service in a senior cadre post and not his service in the 460 non cadre post
In the case of Harjeet Singh though he admittedly officiated continuously in a senior cadre post from December 1960 he was also allotted to the year 1963 and placed below Sri Kapur on the ground that he ranked below Sri Kapur in the select list
Kapur and Harjeet Singh filed writ petitions in the High Court of Punjab and Haryana questioning the allotment of the year 1963
The Writ petitions were accepted
The Court directed the Union and Punjab Governments to redetermine the year of allotment and seniority of Harjeet Singh and Kapur taking December 17
1960 and July 29 1965 respectively as the dates of their continuous officiation in a senior post
A further direction was issued that before redetermining the seniority of the two officials the respondents to the Writ Petitions who were direct recruits should be afforded an opportunity to make their representation
Appeals under clause 10 of the Letters Patent were filed by the affected direct recruits as also by B R Kapur
The direct recruits contended that neither B R Kapur nor Harjeet Singh would have ever started officiating in the senior post on the dates from which they officiated or claimed officiating in the senior post on the dates from which they officiated or claimed to have officiated in senior posts if the State Governments had not created artificial vacancies by excessive utilisation of the deputation and central reserve quota in contravention of the cadre Rules and the Cadre strength Regulations
The arguments before the Division Bench therefore was that the period of service attributable to over utilisation of deputation and central reserve  quota should not be treated as service in a senior post for the purpose of determining the year of allotment of officers promoted to the Indian Police Service
The argument was accepted by the Division Bench and a direction was issued to the Central Government to reconsider the question of year of allotment after taking into consideration the question of over utilisation and its effect
The finding of the learned Single Judge that B R Kapur was entitled to have his service as Commandant 25th battalion as officiation in a senior post was however affirmed
Hence the appeals by special leave by Harjeet Singh and Kapur
Allowing the appeals and dismissing the Petitions the Court
 HELD 1 Rule 33b of the Indian Police Service Regulation of Seniority Rules 1954 is valid
476E AP Sharma vs Union of India  followed
Rule 33b as well as Rule 44 of the Indian Police Service Regulation of Seniority Rules 1954 throw up the date of continuous officiation of an officer in a cadre post as the most important factor both for the purpose of assignment of year of allotment and for the purpose of assignment of seniority
For the purpose of assignment of year of allotment the date of continuous officiation in a senior post is the only relevant factor while for the purpose of assignment of seniority first the date of continuous officiation in a senior post then the date of appointment to the Service if the date of commencement of continuous officiation in a Senior post of more than one officer is the same and finally the order in the Select List if the date of appointment is also the same and finally the order in the Select List if the date of appointment is also the same are the several relevant factors in that order
Thus the order in the Select List is irrelevant for the purpose of determining the year of allotment 461 and is relevant in determining the seniority only if the year of allotment of the officers is also the same and their date of appointment is also the same
Since the order in the Select List is dependent on the seniority in the State Service it follows that seniority in the State Police Service is irrelevant for the purpose of determining the year of allotment and is relevant for the purpose of determining the seniority only if the year of allotment and the date of appointment of two or more officers are the same
Therefore an officer who is junior to another in the State Police Service but who starts continuous officiation in a Senior post from a date earlier than the other may frog leap and gain seniority by the consequential assignment of an earlier year of allotment
Neither the Indian Police Service Regulation of Seniority Rules nor any other rule in the innumerable Rules and Regulations governing the recruitment appointment and Regulation of seniority of officers of the Indian Police Service is designed to deprive an officer the benefit of continuous officiation in a senior post
471G H 472A E 3
Though under the Indian Police Service Appointment by Promotion Regulations the Select List is prepared on the basis of merit and ability the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability
Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of officers are arranged in the order of that seniority
Therefore the benefit of continuous officiation in a Senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate
472F H 4
It is true that under Regulation 8 of the Indian Police Service Appointment by Promotion Regulation  Appointments to cadre posts from among non cadre officers should be made according to the order in which the names of such officers appear in the Select List
A deviation from the order is permissible if administrative exigencies require it and if the vacancy is not likely to last for more than three months
Of course the Regulation does not license uninhibited deviation to favour individual non cadre officers
If that is done the deviation is liable to challenge
But where there is no such allegation there is no reason why a junior non cadre officer should lose the benefit of his continuous officiation in a cadre post merely because a non cadre officer senior to him in the Select List did not continuously officiate likewise
In such a situation it would be for the Government of India to consider whether the relevant rules may not be so relaxed as to enable such non cadre officer to add his officiation in a non cadre post to his officiation in a cadre post regard being had to the circumstances under which the officer had to work in a non cadre post while his junior in the Select List was made to fill the cadre post
But surely it cannot work to the prejudice of the junior officer in the Select List so as to nullify the actual continuous officiating service rendered by him
In the present case there is no allegation that B R Kapur was appointed to the non cadre posts of Director of Sports and Additional Controller of Stores with a view to favour Harjeet Singh
472 H 473A D 5
Non cadre officers if they are appointed to cadre posts in accordance with Rule 9 of the Cadre Rules should not be denied the benefit of continuous officiation in senior post merely because cadre officers were appointed on deputation elsewhere in excess of the number of posts specified against a 462 Deputation Reserve in the schedule to the Cadre Fixation of Strength Regulation
473E F Fixation of Cadre Strength Regulations are made in exercise of the power conferred on the Central Government by Rule 41 of the Cadre Rules and are therefore subordinate to the Cadre rules even as rules made in exercise of powers conferred by a Statute are necessarily subordinate to the Statute
Rule 6 of the Cadre Rules provides for the deputation of Cadre officers and Rule 9 of the same rules provides for the temporary appointment of non cadre officers to cadre posts
In making appointment of non cadre officers to cadre posts the rule prescribes the fulfillment of certain conditions
In the instant case
that the conditions prescribed by rule 9 of the Cadre Rules were fulfilled is clear from the impugned order
473F H 6
Rule 41 of the Cadre Rules enables the Central Government to make Regulations determining the strength and composition of the Cadre of each State
A definite number of posts is also specified against Deputation Reserve in the schedule to the fixation of Cadre Strength Regulations
But if owing to the situational demands and exigencies of the administration the number is exceeded and the State Government is compelled to utilise the services of experienced non cadre officers to fill cadre posts in strict compliance with the Cadre Rules the Service rendered by the non cadre officers in such posts should not be ignored
In the instant case the deputation of cadre officers was in accordance with Rule 6 of the Cadre Rules
474A C 7
Fixation of cadre strength Regulations made under Rule 4 of the Cadre Rules do not over ride the Recruitment Rule the remaining Cadre Rules and the Seniority Rules so as to render invalid any service rendered by a non cadre officer in a cadre post on the mere ground of breach of the Fixation of Cadre Strength Regulations when there has been strict compliance with Rule 9 of the Cadre Rules
Fixation of Cadre Strength is the exclusive concern of the Central and the State Governments and the Regulations are made for their convenience and better relationship
Excessive utilisation of Deputation or Central Reserve  is a matter for adjustment and controversy between the Central and the State Governments and is of no concern to any member of the service
For example no cadre officer who is asked to fill a deputation post can refuse to join the post on the ground that the Deputation Reserve  has already been exceeded
The Regulations are not intended to and do not confer any right on any member of the Service unlike some other Rules which do confer or create rights in the members of the Services
A mere breach of the rule furnishes no cause of action on the ground that his seniority is affected in some round about way
474C G and 475A 8
Under Rule 6A 2 of the Indian Police Service Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service experience and performance he is found to be suitable for appointment to post in the Senior time scale of pay
Since at that time in Punjab there was no direct recruit in the junior time scale of pay who possessed experience of at least four years who could be thought of for appointment in the Senior post the State Government had no option except to appoint experienced and suitable non cadre officers to cadre posts
Further no cadre officer who had been so deputed suffered in any manner in the matter of his career
475B D 463 Further the appointment of non cadre officers to cadre posts is subject to the directions of the Central Government who may terminate such appointment
The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extent beyond six months
Moreover non cadre officers of proven merit only are appointed to cadre posts
They are appointed to cadre posts if they are already in the Select List and the appointments are made in accordance with the order in which they are placed in the Select List which is prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination at various levels of the merit of the officers of the State Police Service
A State officer whose name appears on the Select List may expect to be appointed to a cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position
A direct recruit who ordinarily comes into the picture years after a State Officer s name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promoted officer
475E H 476A B 9
Every departure from a rule which departure gives certain advantages to one group of Civil servants as against another does not necessarily involve an encroachment of the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution
The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any Quota rule
There is no allegation of breach of quota rule embodied in Rule 92 of the Recruitment Rules either
476B E N K Chauhan and Ors
vs State of Gujarat   distinguished
The over utilisation of Deputation and Central Reserve does not affect the questions of assignment of the year of allotment and the seniority of the appellants
476F G