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

Respondents 1 and 2, Gurdip Singh and Dalip Singh, filed a writ petition under Article 226 of the Constitution against the State of Punjab, Inspector General of Police, Punjab, and six others including the present appellants, praying for a direction to confirm them in Punjab Police Service. Respondents 1 and 2 alleged that they were promotees to the cadre of Deputy Superintendent of Police of February, 1961 and January, 1961 respectively having been brought on G List by an order dated 23rd February 1961 of the State of Punjab and the Inspector General of Police, Punjab, respondents 3 and 4 herein. Appellants and respondents 5 to 8 were recruited to the same cadre by direct appointment commencing from May, 1961 to May, 1965. The grievance of respondents 1 and 2 in the petition filed by them was that recruitment to Punjab Police Service is made from two sources, namely, 80% by promotion and 20% by direct appointment but this quota rule is not adhered to at the time of confirmation in the service and, therefore, even though they were members of the service since a period earlier to appellants and respondents 5 to 8, they were not confirmed though the latter were confirmed and as seniority in the cadre of Deputy Superintendent of Police is reckoned under rule 10 according to date of confirmation, the failure to confirm them in the post available to them, in breach of the relevant rules, has denied to them equality of opportunity enshrined in Article 16 of the Constitution to be considered for nomination to Indian Police Service which is done according to seniority-cum-merit.The State of Punjab and Inspector General of Police, Punjab, on the one hand and the direct recruits on the other contested the writ petition, inter alia, contending that the quota applies at the stage of initial recruitment and not at the time of confirmation and there is no allegation that the quota rule was violated at the time of initial recruitment. It was further contended that no one can claim to be confirmed as a matter of right and, therefore, the writ petition is misconceived. Direct recruits to the post of Dy. Superintendent of Police, appellants and respondents 5 to 8 further contended that the petitioners were promoted on officiating basis against temporary posts and as there were no permanent posts available, they could not be confirmed till substantive vacancies in the permanent strength of the cadre were available and till confirmation their seniority having to be reckoned from the date of confirmation, they cannot claim to be senior to the direct recruits on the principle of continuous officiationThe writ petition came up before a learned single Judge of the High Court who was of the opinion that the quota rule is linked with the seniority rule and in order to give a reasonable interpretation and in order not to make the seniority rule unreasonable , upon a proper construction it must be held that the quota rule would operate not only at the time of initial recruitment but also at the time of confirmation. In reaching this conclusion the learned single Judge relied upon two decisions of this Court in S. G. Jaisinghani v. Union of India &Ors., (1) and Mervyn Coutindo &Ors. v. Collector of Customs, Bombay &Ors., (2) and some other decisions of other High Courts. The learned single Judge accordingly gave a direction that the writ petitioners, respondents 1 and 2 herein, should be confirmed. Two appeals being Letters Patent Appeal No. 560/74 by the present appellant 1 and Letters Patent Appeal No. 564/74 by the State of Punjab and the Inspector General of Po lice, Punjab, were preferred. One Rakha Ram filed Civil Writ No. 6781/74 raising identical contentions and this writ petition was referred to the Division Bench before which the aforementioned two Letters Patent Appeals came up for hearing. The Court by a common judgment disposed of all the three matters. Both the Letters Patent Appeals were dismissed and Civil Writ No. 6781/74 by Ram Rakha was allowed, but the direction given by the learned single Judge was modified to the extent that the State of Punjab and Inspector General of Police, Punjab, should consider the cases of writ petitioners 1 and 2 for confirmation and to fix their seniority afresh according to the quota rule. The present two appeals arise from this common judgment preferred by the direct recruits. It may be mentioned that neither the State of Punjab nor the Inspector General of Police, Punjab, have questioned the decision of the High Court though at the hearing of these appeals Mr. R. S. Sodhi appeared for the State of Punjab and supported the contentions canvassed on behalf of the appellants.As the main controversy turns upon the construction of rules 3, 6, 8 and 10 of the Service Rules it would be advantageous to get a clear picture of the relevant rules. The Service Rules provide for constitution, recruitment, qualifications for being members of the service, probation, pay, seniority and discipline of the members of the Service. Rule 3 provides that the Service shall comprise of the posts specified in Appendix A to the Service Rules. Designation of the Post in Appendix A is shown to be Deputy Superintendent of Police and the strength of the cadre is shown as 66. The State Government, under rule 5, is the appointing authority to the Service. Rule 6 provides for method of recruitment from two different sources, viz., 80% by promotion from the rank of Inspectors and 20% by direct recruitment. It also prescribes eligibility qualification for promotees. Sub-rule (2) of rule 6 provides that appointment by promotion shall be made by he Government from Inspectors brought on List G and the method of drawing up of List G. Sub-rule (3) provides that direct appointment to the Service shall be made upon the result of a competitive examination conducted by the Punjab Public Service Commission (Commission for short) and further confers power on the Government in consultation with the Commission to frame necessary rules relating to examination. Rule 7 prescribes qualifications of physical fitness. Rule 8 provides that members of the Service shall be on probation for two years which shall include the period of training at the Police Training School, Phillaur, and in the districts and in the case of members recruited by promotion the Government may be a special order in each case permit periods of officiating appointment to the Service to count towards the period of probation. There is a proviso to the rule which enables the Government to extend the period of probation by not more than one year. Rule 9 provides for pay of members of the Service. Rule 10 provides for seniority of members to be reckoned by the date of confirmation in the Ser vice.

Reasoning:
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.