CWP No. 12206 of 2005 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 12206 of 2005 Date of Decision: April 10, 2008 Gurpreet Singh Bhullar ....Petitioner Versus State of Punjab and others ....Respondents Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE MOHINDER PAL Present: Shri Rajiv Atma Ram, Senior Advocate, with Shri BNS Sharma, Advocate, for the petitioner. Shri Rupinder Khosla, Additional Advocate General, Punjab. Shri H.N.S. Gill, Advocate, for respondent No. 6. Shri D.V. Sharma, Senior Advocate, with Shri Harit Sharma, Advocate, for respondent Nos. 10, 11, 13 and 15. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. This order shall dispose of bunch of writ petitions, namely, CWP Nos.12206 of 2005; 9087 of 2006; 12208 of 2005 and 12321 of 2005 filed by the directly recruited Deputy Superintendents of Police and the CWP Nos. 11887 of 2005; 12009 of 2005; and 12475 of 2005 filed by the Deputy Superintendents of Police promoted from Inspectors against the finalisation of the seniority list vide order dated 7/8.7.2005. This order shall also dispose of the CWP Nos. 13224 of 2001; 14332 of 2001 and 15145 of 2001, wherein challenge is to the order of confirmation of the promotee Officers allegedly in violation of the Statutory Rules. This order shall also dispose of CWP No. CWP No. 12206 of 2005 (2) 17397 of 1999, whereby the petitioner has claimed finalisation of seniority in terms of the seniority Rules. In the said writ petition, an order was passed that appointment to the Indian Police Service shall be subject to the final decision of the writ petition. Since the issues involved in all the writ petitions are common, therefore, we deem it appropriate to decide all the cases together. However, the facts have been primarily taken from CWP No. 12206 of 2005 filed by the direct recruit Deputy Superintendents of Police (for short `the direct recruits') and CWP No. 11887 of 2005 filed by the promotee Deputy Superintendents of Police (for short `the promotees'). The recruitment and conditions of services of the Deputy Superintendent of Police in Punjab Police, are governed by the Punjab Police Service Rules, 1959 (hereinafter referred to as `the Rules'). The primary dispute in this bunch of writ petitions is in respect of fixation of seniority under Rule 10 of the aforesaid Rules. The recruitment to the Service is required to be made 80% by promotion from the rank of Inspector and 20% by direct appointment. The Inspectors, who have got 6 years continuous service, officiating as well as substantive, are eligible for promotion. The promotion from amongst the Inspectors is made from those Inspectors, who are brought in List-G, a list of officers considered fit for promotion to the post of DSP. Such list is prepared by the Department in consultation with the Government, whereas the direct appointment to the Service is required to be made as a result of competitive examination conducted by the Commission. The relevant Rules are being reproduced as under:- “6. Method of recruitment.-(1) Recruitment to the Service shall be made:- CWP No. 12206 of 2005 (3) (1) Eighty per cent by promotion from the rank of Inspector and twenty percent by direct appointment. Provided that only those Inspectors will be eligible for promotion who.- (a) in the case of Inspectors (both promoted from subordinate rank and directly recruited) have got six years continuous service (officiating as well as substantive) in the rank of Inspector; xxx xxx xxx 8. Probation of members of Service, (a) Members of the Service shall be on probation for two years, which shall include the period of training in the Police Training School, Phillaur, and in the districts and in the case of members recruited by promotion, the Government may by a special order in each case permit periods of officiating appointment to the Service to count towards the period of probation. xxx xxx xxx “10. Seniority of members of Service.- The Seniority of members of the Service shall be determined by the date of confirmation in the service. Provided that if two or more members are confirmed on the same date; (i) a member who is appointed to the Service by promotion shall be senior to the member appointed otherwise; (ii) in the case of members who were appointed by direct appointment, the seniority shall be determined in accordance with their position in the competitive examination; (iii) in the case of members who were appointed to the service by promotion, the seniority shall be determined in accordance with the date of their entry in promotion list `G'. CWP No. 12206 of 2005 (4) xxx xxx xxx 14. General Powers to relax rules.- Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons.” The direct recruits in this bunch of writ petitions were appointed on 6.4.1990 or later and confirmed on 2.9.1992, whereas the promotees whose seniority is in dispute were promoted in the year 1989. 111 Inspectors were promoted in 1989 as DSP and confirmed on 1.4.1992 but prior to confirmation of the direct recruits. It has also come on record that 31 Officers of the Service have been selected for appointment to Indian Police Service. Though the order Annexure P.6 dated 7/8.7.2005 deals with as many as 9 issues, but issue No. 3 i.e. “Violation of Quota Rule” is the central question. At this stage it may be mentioned that the Rules came for consideration before the Hon'ble Supreme Court for the first time in the year 1979 in the case of Paramjit Singh v. Ram Rakha, AIR 1979 SC 1073. That was a case arising out of writ petition filed by the promotees appointed to the Service in Feb-June, 1961. The Court found that where recruitment to a cadre is from two sources and the Service Rules prescribe quota for recruitment for both sources, then a question would always arise whether the quota rule would apply at the initial stage of recruitment or also at the stage of confirmation. It was considered that though generally the seniority is determined from the date of entry into cadre on the principles of continuous officiation, but confirmation would ordinarily depend upon satisfactory completion of probationary period, efficiency in discharge of duty, capacity to discharge the functions, availability CWP No. 12206 of 2005 (5) of permanent vacancy etc. It was held that on completion of maximum period of probation, the promotees would be put to an unintended disadvantage, as the promotees were not confirmed even after more than 11 years of officiating service and that there was not a slightest suggestion that the services of respondent Nos. 1 and 2 were not satisfactory and that confirmation was denied on any such ground thereby directly affecting their place in the seniority list. It was also held that quota rule would apply both at the time of recruitment as also at the time of confirmation. It was held to the following effect:- “It may be pointed out that where recruitment is from two sources and the seniority in the cadre is determined according to the date of confirmation, to accord utmost fair treatment a rotational system has to be followed while giving confirmation. The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. If the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of confirmation. A roster is introduced while giving confirmation ascertaining every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source. (Emphasis Supplied). This system would break down the moment recruitment from either source in excess of the quota is made. In fact a strict adherence to the quota rule at the time of recruitment would introduce no difficulty in applying the rule at the time of confirmation because vacancies would be available for confirmation to persons belonging to different sources of recruitment. The difficulty arises when recruitment in excess of the quota is made and it is further accentuated when recruits from one source, to wit, in this case direct recruits get automatic confirmation on CWP No. 12206 of 2005 (6) completion of the probationary period while the promotees hang out for years together before being confirmed. In Mervyn Coutinho's case this Court in terms said that rotational system of fixing seniority meaning thereby confirmation followed by seniority does not offend equality of opportunity in Government service and recruitment not following the fixed quota rule need not be a ground for doing away with rotational system.” The aforesaid judgment came up for clarification on an application filed by one Jaspal Singh Dhaliwal seeking quashing the tentative seniority list prepared by State of Punjab and published on June 4, 1981. The said application was disposed of vide order reported as Paramjit Singh Sandhu and others v. Ram Rakha Mal and others, AIR 1983 Supreme Court 314. Though the Hon'ble Supreme Court has not examined the validity of the seniority list, but found that there is no ambiguity in the judgment, including the words on which emphasis has been laid in the above reproduced para of the judgment. The Court held to the following effect:- “6. In our opinion there is no ambiguity in the judgment. Ordinarily speaking, where recruitment is from two sources with a view to integrating recruits from both sources after the recruitment seniority is determined from the date of entry into the cadre except where there has been a substantial violation of the quota giving undeserved advantage to one or the other source. Seniority ordinarily speaking is determined with reference to the date of entry into the cadre which in service jurisprudence is styled the date of continuous officiation. These notions of service jurisprudence may have to yield place to the specific rules and the fact situation with reference to Rule 10 CWP No. 12206 of 2005 (7) did compel this Court to depart from the normal concept in service jurisprudence. However, introduction of a roster system is very well known in service jurisprudence. What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre it meant that quota should be corelated to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. Promotees who come to the service at an advanced age may retire early and direct recruits who enter the service at the comparatively young age may continue for a long time. If, therefore, in a given year larger number of time the vacancy is filled in by referring to the source from which the retiring person was recruited it would substantially disturb the quota rule itself. Therefore, while making recruitment quota rule is required to be strictly adhered to. That was what was meant by this Court when it said: “The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota.” The quota in the present case is 4 : 1 that is, four promotees to one direct recruit. Therefore, whenever vacancies occur in the service the appointing authority has to go on recruiting according to quota. In other words, whenever vacancies occur, first recruit four promotees irrespective of the factors or circumstances causing the vacancies and as soon as four promotees are recruited bring in a direct recruit. That was what was meant by this Court when it said that a roster has to be introduced and this roster must continue while giving confirmation. The sentence which seems to have CWP No. 12206 of 2005 (8) created a difference of opinion reads as under:- “A roster is introduced while giving confirmation ascertaining every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source.” 7. The sentence cannot be read in isolation. It has to be read with the earlier sentence that the quota rule would apply to the vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. The Court then proceeded to say that if the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of confirmation.” It was held that when a Seniority Rule prescribes for a recruitment to a cadre from two sources, then quota should be corelated to the vacancies which are to be filled in. While making the recruitment, quota rule is required to be strictly adhered to. The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to quota. It was held that whenever vacancies occur in service, the appointing authority has to go on recruiting according to quota. In other words, whenever vacancies occur, first four promotees irrespective of the factors or circumstances causing the vacancies and that as soon as four promotees are recruited, bring in a direct recruit. After saying so, the Court recorded the assurance given by the counsel appearing for the State of Punjab that both the recruitment and the confirmation have strictly been made according to quota rule, namely, when vacancies occur, recruit first four promotees and the 5th post will go to direct recruit and the same Rule is CWP No. 12206 of 2005 (9) followed in confirmation. The aforesaid judgments came up for consideration in State of Punjab and others v. Dr. R.N. Bhatnagar and another, AIR 1999 Supreme Court 647, wherein the almost identical Rules i.e. Punjab Medical College Education Service (Class-I), Rules, 1978, was the subject matter of interpretation. In the said case, the State advertised 16th vacancy to be filled up by direct recruitment. The challenge was made by a promotee Assistant Professor alleging therein that the said vacancy has to go to the departmental promotee. The claim of the promotee was accepted by a Division Bench of this Court on 20.8.1997 after it was found that a direct recruit is already working as Professor and, therefore, vacancy in question must go to the promotee as there were only three promotee Professors at the relevant time. This Court relied upon a Constitution Bench decision of the Hon'ble Supreme Court in R.K. Sabharwal v. State of Punjab, AIR 1995 SC 1371. The Hon'ble Supreme Court found that the said judgment deals with Article 16(4) of the Constitution which carves out a separate field for itself from the general sweep of Article 16(1) which guarantees equality of opportunity in matters of appointment in Government services to all citizens of India. The reservation for these categories in employment has to be achieved by earmarking requisite percentage of posts for the reserved category of candidates and by pitchforking these posts on roster points on requisite point roster and when such a roster takes a full cycle, posts earmarked on reserved points will enable the requisite reserved category of candidates to fill up these posts. It was further held that whenever a reserved candidate vacated a reserved post, the said post was liable to be filled only by a candidate belonging to the CWP No. 12206 of 2005 (10) reserved category. But while interpreting the Rules, it was held that such Rule has nothing to do with reservation of posts in the cadre of Professors. It is not a rule of reservation envisaged for a specified category of persons as permitted by Article 16(4) of the Constitution. It was further held that on the contrary, it is a rule of recruitment from two different sources. Such two sources serve two entry points for the cadre and once the concerned candidates enter into any cadre through entry point reserved for them, they get fused and blended into one single cadre and their birth marks get obliterated. Quoting from Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, it was found that the decision rendered by the Constitution Bench in R.K. Sabharwal's case is in connection with Article 16(4) and the operation for the posts of Scheduled Castes and Scheduled Tribes and Backward Classes, cannot be pressed into service for interpreting the Rules. In the said case, it was held as under:- “The attempt of learned counsel for the respondent to treat a quota rule as a reservation rule would result in requiring the State authorities to continue the birth-marks of direct recruits and promotees even after they enter the common cadre through two separate entry points regulating their induction to the cadre. Therefore, the roster for 3 promoted and one direct recruit is to be continued every time a vacancy arises and there is no question of filling up a vacancy arising out of a retirement of a direct recruit by a direct recruit or on the retirement vacancy of a promotee by a promotee. Consequently, the question of rotating the vacancies as posts or for treating the posts mentioned in the rules of recruitment as necessarily referable to posts in the cadre at a given point of time in the light of R.K. Sabhrawal's judgment (supra), therefore, cannot survive for in the case of a quota rule between direct recruits and CWP No. 12206 of 2005 (11) promotees the same is to be judged on the touchstone of Article 16(1) and the statutory rules governing the recruitment to the posts of Professor constituting the Punjab Medical Education Service (Class-I) and not on the basis of Article 16(4). The Division Bench in the impugned judgment with respect wrongly applied the ratio of R.K. Sabharwal's case (supra) governing Article 16(4) to the facts of the present case, which are governed by Article 16(1).” After so holding the Hon'ble Supreme Court examined the judgments in Paramjit Singh's cases [AIR 1979 SC 1073 and AIR 1983 Supreme Court 314) (supra),and held to the following effect:- “The aforesaid decision which squarely applies to the facts of the present case, therefore, leaves no room for doubt that when under the recruitment Rule 9 in question there is no reservation of any given category of candidates like SCs, STs and BCs to the posts in the cadre of Professors, appointments to the posts in the cadre have to be made in the light of the percentage of vacancies in the posts to be filled in by promotees or direct recruits. The quota of percentage of departmental promotees and direct recruits has to be worked out on the basis of the roster points taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 promotees and one direct recruit moves forward, there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct recruit or the vacancy created by a promotee by a promotee. Irrespective of the identity of the person retiring, the post is to be filled by the onward motion of 3 promotees and one direct recruit.” The State Government while dealing with issue No. 3 i.e. Violation of quota rule in the impugned order found that the Government has CWP No. 12206 of 2005 (12) been working out the share of the two sources of recruitment of Deputy Superintendents of Police i.e. Direct recruits and promotees as a percentage of the total sanctioned strength of the cadre. This practice continued for over 45 years till date. The order further records that the Government has assured the Hon'ble Apex Court that the roster was being followed but for some unknown reasons, this roster has failed to be maintained so far and as a result there is an imbalance between the two sources of recruitment. The Government has decided to implement this roster for both recruitment and confirmation starting from the date the officers were promoted i.e. from 21.6.1989 and after some officers promoted on the said date were selected for appointment to the Indian Police Service. It was found as under:- “The Government had assured the Hon'ble Apex Court that the roster was being followed but for some unknown reasons this roster has failed to be implemented so far. As a result there is an imbalance between the two sources of recruitment. The Government has decided to implement this roster for both recruitment and confirmation. As far as the imbalance in recruitment is concerned the same cannot be undone now. But implementation of roster for recruitment would set right the balance in the future. The Hon'ble Court itself has observed that if the roster was to be applied to confirmation, imbalance, if any, in recruitment would be automatically taken care of. However, it is worth mentioning that the rosters cannot be implemented retrospectively from the date of inception of the cadre for the following reasons:- CWP No. 12206 of 2005 (13) a) This established practice of calculating the shares of direct/promotee officers as a percentage of the sanctioned posts of the cadre has been continuing for over 45 years. b) A large number of officers from both sources have been admitted into Punjab Police Service since the inception of the cadre on the basis of calculations of their shares as mentioned in sub para above. Moreover, a large number of them have already left the cadre on account of retirement /death/ dismissal/ induction into IPS etc. c) As on 1.1.2004, there were 31 serving IPS Officers who had been inducted into Indian Police Service from the Punjab Police Service in accordance with Rule 9 of the IPS (Recruitment) Rules, 1954. These officers had been admitted into the Punjab Police Service on the basis of calculation of shares of direct recruits/promotees as mentioned in sub para (a) above. Out of these 31 officers, at present 25 have already been confirmed in the IPS and they no longer have any lien on their parent cadre of the Punjab Police Service. Retrospective implementation of the roster enunciated by the Hon'ble Supreme Court would rake up the issue of the seniority of such officers within PPS and further their induction into CWP No. 12206 of 2005 (14) IPS. d) The direct recruit officers had raised the issue of the quota rule linked to vacancies as against a percentage of total sanctioned posts for the first time in the year 2000 in the form of CWP filed by Sh. A.S. Chahal, which is still sub-judice in the Hon'ble High Court. Out of the 31 serving inductees into IPS, 6 officers were promoted to the IPS subject to the outcome of above mentioned writ petition and another writ petition of 1999 filed by Sh. Mohinder Singh. That the Government has decided to implement the roster regulating confirmation from the 2 sources i.e. Promotees and direct recruits as enunciated by the Hon'ble Supreme Court in the case of Sh. Paramjit Singh starting from Sh. Iqbal Singh No. P/292 who happens to be the immediate junior of Sh. Lok Nath Angra in the Punjab Police Service (who was the last PPS Officer to be inducted to the IPS). iv) That there are 4 PPS officers namely, Sh. Rajinder Singh Darbhanga, Sh. Sukhmohinder Singh, Sh. Sohinderpal Singh Bawa and Sh. Ajaib Singh who were inducted into PPS prior to Sh. Lok Nath Angra referred to in the para above but are still continuing in PPS