Case: Harjeet Singh Etc Vs. Union of India and Others

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 6(A) (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. I t 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.23. 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 en able 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 ordinarily comes into the picture years after a State Officers 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.24. 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 b y 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. v. State of Gujarat(1) on which Shri Garg relied. In Chauhans 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 9(2) 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 3(3)(b), 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 t he vires of Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules which is in similar terms as rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules was upheld by a Constitution Bench of this Court in A. P. Sharma v. Union of India.(2) 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 Kapurs service as Commandant, P.A.P. Battalion No. 25 was service in a Senior post was not challenged before us. Shri Mridul argued t hat the records reveal that Kapurs 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 relax the rules so as to enable Kapurs service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts. We cannot of course hold Kapurs 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 t he matter. We have no advice to offer.25.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]So, therefore, our primary concern is with the Indian Police Service (Regulation of Seniority) Rules, 1954. Rule 3(3) (b) as well as rule 4(4) 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 fact or while for the 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, 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 r elevant 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 Seniorof 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 continuouslyis, however, true that under Regulation 8 of the Indian Police Service (Appointment by Promotion) Regulations, 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 ad d 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 Harjeetthe 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 4(1) 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 th e 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 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 4(1) 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 bethe 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 th ere 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 relation ship. 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 9(2) 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 m ay 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 On the ground that his seniority is affected in some round about way. We may add that there is no suggestion that Rule 9(2) of the Recruitment Rules w aswas 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 6(A) (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. I t 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 histruth 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 ordinarily comes into the picture years after a State Officers 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 promotedare 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 b y 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. v. State of Gujarat(1) on which Shri Garg relied. In Chauhans 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 9(2) 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 3(3)(b), 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 t he vires of Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules which is in similar terms as rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules was upheld by a Constitution Bench of this Court in A. P. Sharma v. Union ofthe 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 Kapurs service as Commandant, P.A.P. Battalion No. 25 was service in a Senior post was not challenged before us. Shri Mridul argued t hat the records reveal that Kapurs 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 relax the rules so as to enable Kapurs service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts. We cannot of course hold Kapurs 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 t he matter. We have no advice tosubmission 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