Case: Paramjit Singh Sandhu and Others Etc Vs. Ram Rakha and Others Etc

every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source. This system would breakdown 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 completion of the probationary period while the promotees hang out for years together before being confirmed. In Mervyn Coutindos case (supra) 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. 10. It was, however, contended that in A. K. Subraman &Ors. etc. v. Union of India &Ors. (1) this Court in terms h as held that when recruitment is from two sources and the quota rule is enforced, the same will have to be enforced at the time of initial recruitment in officiating capacity and not at the time of confirmation. It was, therefore, said that it would be contrary to settled law to hold that quota rule will also operate at the time of confirmation. Now, the observation of the Court is in the context of Central Engineering Service (Class I) Recruitment Rules, 1954, which came up for interpretati on before the Court in that case. The recruitment was from three different sources, viz., by competitive examination, by promotion and by transfer. Rule 4 provided that 75% of the vacancies in the grade of Executive Engineer Class I shall be filled by promotion of Assistant Executive Engineers Class I, the rest of the vacancies being filled by promotion and/or by transfer in accordance with Parts IV and V of the Rules respectively. The general seniority rule which was held applicable in that case was that seniority should be determined on the basis of length of service in that grade or a service in an equivalent grade irrespective of whether the latter was under Central or Provincial Government in India or Pakistan. It is in the context of these rules the question whether the quota rule should be applied at the stage of initial recruitment or confirmation came up for consideration. Unlike the rule in the present case seniority was not dependent on confirmation but seniority was dependent upon continuous officiation in the cadre. In this background this Court held that the quota has to be enforced at the time of initial recruitment in officiating capacity and not at the time of confirmation. The situation in the case under discussion is materially different. Therefore, it cannot be said that ignoring the rule a proposition of universal application has been laid down that whenever there is a quota prescribed for recruitment to a cadre it can only apply at the time of initial recruitment and not at the time of confirmation. Everything will depend upon the whole body of rules and harmonious construction has to be put upon the rules so as to avoid the possibility of a rules becoming unreasonable. This Court while saying in Subramans case (supra) that quota rule has to be adhered to and enforced at the time of initial recruitment re-affirmed the observation in Mervyn Coutindos case (supra) that there is no inherent invalidity in introduction of quota system and to work it out by rule of rotation. When it is said that the confirmation shall follow the quota rule it is in terms being stated that the rotational system should be followed at the time of confirmation so as to make quota rule effective and seniority rule reasonable because all the three are interlinked. Undoubtedly, the decision in Subramans case was in terms affirmed in Patwardhans case (supra) but the scheme of rules in Patwardhans case (supra) was more or less similar to the one that was examined by this Court in Subramans case.Mr. Sanghi also urged that the language of Rule 8(a) would unmistakably show that members of Service recruited from either source would be on probation for a period of two years and this would imply that promotees would also be on probation for a period of two years. Approaching the matter from this angle he further urged that proviso to rule 8(b) which permits extension of probation only by one year without expressly referring to direct recruits would govern both promotees and direct recruits and in that view of the matter promotees would also be deemed to be confirmed on the expiry of period of probation. This contention overlooks the latter Part of rule 8(a) which provides that in case of promotees the Government may by special order in each case permit periods of officiating appointments to the Service to count towards the period o f probation. It appears that both promotees and direct recruits to Service would be on probation. But the latter part of rule 8 (a) comprehends Inspectors being promoted on officiating basis. Unless there is a temporary addition to the strength of the cadre such officiating appointment by promotion would not make the promotee a member of the service in view of Rule 3. In order to avoid any injustice to such promotees the Government may make an order to treat officiating service to count towards probation. In the absence of such order the officiating service would not count towards probation and such appointment would not make the promotee a member of the service. In that event his case would not be covered by the proviso to rule 8(a). Therefore, the contention cannot be accepted. 11.

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

Explanation:
0[ds]This Court in State of Punjab v. Dharam Singh(4); after taking into consideration rule 6(3) of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, which provided for either dispensing with the services of the person appointed t o the post on probation if his work was found to be unsatisfactory or to extend the period of probation for such period as may be deemed fit or revert him to his former post if he was promoted from some lower post, provided that the tot al period of probation including the extensions if any, shall not exceed three years, held that the Service Rules fixed a certain period of time beyond which the probationary period cannot be extended and if an employee appointed or promoted to a pos t is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation he cannot be deemed to continue in that post as a probationer by implication. In such a case the Court held it is permissible to draw an inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication. Rule 8 of the Service Rules prescribes the period of probation of two years and the proviso confers power to extend the period of probation by not beyond one year meaning thereby that in any case the Government would not have the power to extend the period of probation beyond a period of three years. I n this situation the ratio in Dharam Singhs case (supra) would mutatis mutandis apply and it will have to be held that the direct recruit who completed the period of probation of two years and in the absence of an extension of probationary perio d, would be deemed to be confirmed by necessary implication. Respondent 5 to 8 direct recruits have accordingly been confirmed on expiry of the period of probation of two years. Now if seniority is to be reckoned from the date of confirmation and if promotees are not confirmed for years together in some cases, to wit, respondents 1 and 2 who were promotees of February and January, 1961 respectively, were not confirmed till they filed the writ petition in 1972 while direct recruits who came much later got confirmed and ipso facto became senior to the promotees, if quota rule is only applied, as is contended on behalf of the appellants and the State of Punjab, at the time of initial recruitment, this undesirable result is wholly unavoidableAdopting the construction as canvassed for and on behalf of direct recruits that the proviso to rule 8(b) permitting a maximum period of probation of three years at the end of which the direct recruit automatically be confirmed unless his services are dispensed with simultaneously enjoying seniority from the date of such automatic confirmation without applying quota rule at the time of confirmation, would put the promotee to an unintended disadvantage who may be continued in an officiating capacity without confirming him and consequently denying or relegating him down in seniority for years as has happened i n the case of respondents 1 and 2. Appellants who were recruited to the Service after respondents 1 and 2, came to be confirmed at the end of two years period of probation while respondents 1 and 2 were not confirmed after more than 11 years o f officiating service and there it not the slightest suggestion that the services of respondents 1 and 2 were not satisfactory and that the confirmation was denied on any such ground thereby directly affecting their place in the seniority list. Such an approach would be wholly unreasonableIt 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. This system would breakdown 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 completion of the probationary period while the promotees hang out for years together before being confirmedTherefore, it cannot be said that ignoring the rule a proposition of universal application has been laid down that whenever there is a quota prescribed for recruitment to a cadre it can only apply at the time of initial recruitment and not at the time of confirmation. Everything will depend upon the whole body of rules and harmonious construction has to be put upon the rules so as to avoid the possibility of a rules becoming unreasonable. This Court while saying in Subramans case (supra) that quota rule has to be adhered to and enforced at the time of initial recruitment re-affirmed the observation in Mervyn Coutindos case (supra) that there is no inherent invalidity in introduction of quota system and to work it out by rule of rotation. When it is said that the confirmation shall follow the quota rule it is in terms being stated that the rotational system should be followed at the time of confirmation so as to make quota rule effective and seniority rule reasonable because all the three are interlinked. Undoubtedly, the decision in Subramans case was in terms affirmed in Patwardhans case (supra) but the scheme of rules in Patwardhans case (supra) was more or less similar to the one that was examined by this Court in Subramans caseThis contention overlooks the latter Part of rule 8(a) which provides that in case of promotees the Government may by special order in each case permit periods of officiating appointments to the Service to count towards the period o f probation. It appears that both promotees and direct recruits to Service would be on probation. But the latter part of rule 8 (a) comprehends Inspectors being promoted on officiating basis. Unless there is a temporary addition to the strength of the cadre such officiating appointment by promotion would not make the promotee a member of the service in view of Rule 3. In order to avoid any injustice to such promotees the Government may make an order to treat officiating service to count towards probation. In the absence of such order the officiating service would not count towards probation and such appointment would not make the promotee a member of the service. In that event his case would not be covered by the proviso to rule 8(a). Therefore, the contention cannot be accepted.