Case: Rajendra Narain Singh and Others Vs. State of Bihar and Others

basis of the date of appointment, officiating or permanent, whichever is earlier, in the Bihar Police in the light of Finance Department Resolution No. 3521 dated 11-4-77 and judgment of the High Court in C.W.J.C. No. 2011 /76.. "8. In the context of the present controversy two important facts which have to be kept in mind are: (i) the appellants were promoted to officiate as Deputy Superintendents of Police in the year 1965 (other promotees like the appellants had also been officiating as Deputy Superintendents of Police from different dates between 1948 and 1970) and (ii) by Government order dated December 30, 1977 fifty-four temporary posts of Deputy Superintendent of Police created between 1948 an d 1970 were made permanent from the dates these posts were created. The only question here is whether there was anything wrong in fixing the inter-se seniority of the promotees and the direct recruits on the basis of continuous officiation by the promotees. It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. (see B. N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation has been held valid in S. B. Patwardhans case (supra). The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the Constitution.9. It is however contended on behalf of the respondents who were the writ petitioners in the High Court that rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 framed under the Proviso to Article 309 of the Constitution, though it is not a seniority rule, does not permit the course adopted in this case by the Government, namely, converting the temporary posts created between 1948 and 1970 into permanent posts in the year 1977 with effect from the dates on which the temporary posts had been created. Under rule 3 the Governor has to decide in each year the number of vacancies to be filled in that year and to secure not less than half of the total vacancies for the promotees. The argument is that for the year 1965 or for that matter for any year prior to 1977 when the notification under challenge was issued, the Governor had duly exercised his power under rule 3 in that very year, and adding to the number of existing permanent posts by an order made in a subsequent year after the Governor had ascertained the number of vacancies required to be filled and had them filled according to the ratio prescribed by rule 3 , would disturb that ratio and contravene rule 3. We are unable to accept this contention as correct. In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created. The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary. The Governor while exercising his powers u nder rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965. Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have affected the validity of the action taken by the Governor in 1965. In S. G. Jaisinghani v. Union of India &Ors.(1) this Court held that when the quota was fixed for the two sources of recruitment, it could not be altered according to exigencies of the situation. But rule 3 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by promotion should not be less than half of the total number of vacancies to be filled in any year. Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring that not less than half of the vacancies must be filled by promotees. What the Governor had done in a previous year in exercise of his powers under rule 3, if it was valid then, is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year. If for administrative reasons such a measure was considered necessary, there is nothing in rule 3 to suggest a bar. Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule.10. In the view we have taken, it is unnecessary to consider two other subsidiary questions raised:(1) whether the cadre consisted only of permanent posts or included both permanent and temporary posts: according to the appellants the cadre should include both temporary and permanent officers in the absence of any rule to the contrary. In this Judgment in reaching the conclusion stated above we have assumed that the cadre consisted of permanent officers only;(ii) Whether rule 3 has ever been followed since the Rules were framed in 1953; according to the appellants rule 3 has really not been observed in any of those years and that no question of contravention of the rule can therefore be raised in this case.11.

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

Explanation:
1[ds]It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. (see B. N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation has been held valid in S. B. Patwardhans case (supra). The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of theare unable to accept this contention as correct. In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created. The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary. The Governor while exercising his powers u nder rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965. Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have affected the validity of the action taken by the Governor in 1965. In S. G. Jaisinghani v. Union of India &Ors.(1) this Court held that when the quota was fixed for the two sources of recruitment, it could not be altered according to exigencies of the situation. But rule 3 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by promotion should not be less than half of the total number of vacancies to be filled in any year. Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring that not less than half of the vacancies must be filled by promotees. What the Governor had done in a previous year in exercise of his powers under rule 3, if it was valid then, is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year. If for administrative reasons such a measure was considered necessary, there is nothing in rule 3 to suggest a bar. Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of thatis well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. (see B. N. Nagarajan v. State of Mysore and Sant Ram Sharma v. State of Rajasthan(2). In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation has been held valid in S. B. Patwardhans case (supra). The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the