Case: Sant Ram Sharma Vs. State Of Rajasthan &amp; Anr

1. The petitioner, Sri Sant Ram Sharma has obtained a rule from this Court calling upon the respondents to show cause why a writ under Art. 32 of the Constitution should not be granted for quashing two orders of the State of Rajasthan, one dated March 22, 1966 whereby Sri Hanuman Sharma, respondent No.3 was promoted as Inspector General of Police, Rajasthan superseding the petitioner, and the other dated April 28, 1966 promoting Sri Sultan Singh, respondent No. 4 as Additional Inspector General of Police superseding the petitioner. The petitioner has also prayed for a writ in the nature of mandamus commanding respondents 1 and 2 to consider the petitioners claim as the senior most officer in Rajasthan to be promoted to the post of Inspector General of Police. Cause has been shown by Mr. C. B. Agarwala on behalf of the State of Rajasthan and the other respondents to whom notice of the rule was ordered to be given2. The Petitioner, Sri Sant Ram Sharma was appointed to the Indian Police Service on June 10, 1952. On September 8, 1954 by notification of the Ministry of Home Affairs Government of India, the Indian Police Service (Regulation of Seniority Rules, 1954 came into force. Rule 6 of the said Rules required that a Gradation List of all Police Officers in the State should be maintained to ascertain their respective seniority. Accordingly a Gradation List was prepared by the State of Rajasthan in August. 1955. In his Gradation List, the position of the petitioner was 5th. Sri Hanuman Sharma was shown as of copying the 7th position, Sri Sultan Singh stood 14th and the position of Sri Ganesh Singh was 17th. Rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954 required that every officer shall be assigned a year of allotment in accordance with the provisions contained in that rule. According to this rule the year of allotment of the petitioner was 1942, that of respondent No 3, Sri Hanuman Sharma 1943 1/2, and that of respondent No 4, Sri ultan Singh 1945. In April. 1955 the question of confirmation of the petitioner and if the three other officers, namely, Sri Hanuman Sharma, Sri Sultan Singh and Sri Ganesh Singh to the rank of Deputy Inspector General of Police was taken up. It was decided by the State of Rajasthan that the petitioner should be superseded and the three officers. Sri Hanuman Sharma, Sri Sultan Singh and Sri Ganesh Singh should be confirmed in the rank of Deputy Inspector General of Police. The case of the petitioner is that in June, 1959 Sri Hanuman Sharma was promoted as Special Inspector General of Police and on June 2, 1961 the post was encadred and Sri Hanuman Sharma was confirmed in that post. It appears that on March 22, 1966, Sri Hanuman Sharma was promoted as inspector General of Police, Rajasthan and on April 28, 1966 Sri Sultan Singh was promoted as Additional Inspector General of Police superseding the petitioner. The notifications of the State of Rajasthan dated March 22, 1966 and April 28, 1966 are annexures G and H to the writ petition.The contention of the petitioner is that he was entitled, as a matter if right, to be appointed as Deputy Inspector General of Police in 1955 and as Inspector General of Police in l966 as he was shown as the senior-most officer in the Gradation List and the orders of the State of Rajasthan in annexures G and H are in violation of the provisions of Rule 6 of the Indian Police Service (Regulation of Seniority Rules, 1954. It was also contended for the petitioner that his claim was not considered in 1955 at the time of confirmation of respondents 3 and 4 as Deputy Inspector General of Police or in 1966 at the time of promotion of respondents 3 and 4 to the posts of Inspector General of Police and Additional Inspector General of Police respectively. It was therefore said that the fundamental rights of the petitioner under Arts. 14 and 16 have been violated and the orders of the State of Rajasthan dated March 22, 1966 and April 28, 1966 should be quashed by the grant of a writ in the nature of certiorari with a direction to the 1st respondent to consider the petitioners claim afresh for being promoted to the post of Inspector General of PoliceThe allegations of the petitioner have been controverted by the State of Rajasthan in its counter-affidavit. It was said that the posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police are selection posts which carry pay above the time scale of pay and for appointment to these selection-posts an officer is chosen not merely on the basis of his rank in the Gradation List but on the record of his merit and past experience in the Police Department. The petitioner was appointed to the Indian Police Service on June 10, 1952 but even before that date Sri Hanuman Sharma, Sri Sultan Singh and Sri Ganesh Singh were appointed to the Indian Police Service in 1951 and they, were already officiating as Deputy Inspector General of Police. Sri Hanuman Sharma and Sri Sultan Singh were officiating since April 22, 1952 and Sri Ganesh Singh since May I7, 1952.The petitioner was confirmed in the Senior Scale of Indian Police Service on June 10, 1954 but the other three officers were confirmed in the Senior Scale of the Indian Police Service on March 21 1953, i.e., more than a year before the confirmation of the petitioner. When the question of confirmation of the officers to the post of Deputy Inspector General of Police arose in 1955, the State of Rajasthan considered the comparative merit of all the officers concerned including that of the petitioner and it was decided to confirm respondents 3 and 4 and Sri Ganesh Singh as Deputy Inspector General of Police in preference to the petitioner in view of their outstanding record and merit and experience in the Police Department. As regards the promotion of respondent No. 3 to the post of Inspector General of Police and of respondent No 4 to the post of Additional Inspector General of Police, it was stated that the petitioner had no right to the selector posts carrying pay above the time-scale of pay and that the appointment to those posts was at the discretion at the State of Rajasthan which decided the question after taking into consideration the merit of all the officers concerned. It was further stated that the power of appointment was not exercised arbitrarily but was exercised in the interest of efficiency and good administration and that the promotion to selection posts was on the basis of merit alone and it was only in a case where the merit of the two officers was equal that the seniority of one officer in the Gradation List might tilt the case in his favour. It was denied by the respondent that there was any violation of the Indian Police Service (Regulation of Seniority) Rules, 1954.

Court's reasoning:
In our opinion, the respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection post and that it is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, availableWe are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framedIn our view, there is no substance in this contention of the petitioner. If the State of Rajasthan had considered the case of the petitioner alongwith the other eligible candidates before appointments to the selection posts there would be no breach of the provisions of Arts. 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotion to those selection posts were actually made. It was said by Mr. C. B. Agarwala on behalf of the respondents that an objective evaluation of the merit of the officers is made each year and promotion is made on scrutiny of the record sheets dealing with the competence, efficiency and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered alongwith respondents 3 and 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Additional Inspector General of Police in 1966. There was, however, a vague suggestion made by the petitioner in paragraph 68 of his rejoinder petition dated July 17, 1967 that"the State Government could not have possibly considered my case, as they considered and even in this counter-affidavit consider Shri Hanuman Sharma and Shri Sultan Singh senior to me by the new type of seniority they have invented for their benefit".Even though there is no specific allegation by the petitioner that there was no consideration of his case, respondent No. 1 has definitely asserted in paragraphs 23, 25, 40 and 44 of the counter-affidavit that at the time of promotion of respondents 3 and 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was considered. We are therefore of the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of promotion of respondents 3 and 4 to the selection posts. We must therefore proceed on the footing that respondent No. 1 had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner at the time of the promotion of respondents 3 and 4 to the selection grade-posts. It is therefore not possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution in the present caseWe are unable to accept this argument as well founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones, an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policyAs a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N. C. Chatterjee that this procedure violates, in any way, the guarantee under Arts. 14 and 16 of the Constitution.