HARJEET SINGH ETC.

UNION OF INDIA AND ORS.

April 11, 1980

[V. R. KRISHNA ]YER AND 0. CHINNAPPA REDDY, JJ.]

Indian Police Servtce (Regulation of Seniority) Rules-Rule 3 (3) (b )- Validity of

Indian Police Service (Fixation of Cadre Srength) Regulations, 1955- Regulations 7 to 9-Year oj allotment service in non-cadre posts not considered

-Whether such a service would constitute a break for fixing te year of allotment-JVhether over-utilisation of deputation und Central reserve quota relevant C (joft fixing tlie year of allotment, when once the officer has continuously officiated in a Senior Post-Whether offends Articles 14 and 16 of the Con~ stitution.

Indian Police Service (Fixation of Cadre Strength) Regulations-Regulutions 7 to 9 of 1955 and Indian Police Service (Cadre) Rules, 1954, µule 4(1), Scope

~ D

On seleciion by the Punjab Public Service Commission B. R. Kapur (appellant in CA 2413178) and Harjeet Singh (Appellant in CA 2526177) were directly recruited in 1951, as Deputy Superintendents of Police in the Punj.lb Police Service.

B. R. Kapur \Vas senior to Harjeet Singh as Deputy Superintendent of Police.

In 1960, both of them were included in the Select List prepared under Regulation 7 of the Indian Police Service, (Appointment by E Promotion) Regulations, 1955.

On November 24, 1960, B~ R. Kapur was appointed as A'Ssista.I1t Inspector General of Police which post was a cadre post In May 1961 he was appointed to a non-cadre post as Director of Sports and Youth Programme and Deputy Secretary to Government, Sports Department.

He held this post upto November 18, 1962, and thereafter he was appQinted as Additional Controller of Stores, Punjab which was also a non<.Odre post.

He continued to hold the post of Additional Controller of F Stores till 1965, loom July 19, 1965 he was Commandant, 40th Battalion PAP, J & K which was a cadre post.

He held the post till July 11, 1966 when he took over as Commandant of 25th Battalion PAP. On the reorganisation of the State of Punjab, he was appointed as Assistsant General of Police, State of Punjab from November l, 1966.

Thereafter he continuously held cadre posts and was finally appcinted to. the Indian Police Sen'ice with effect from September 3, 1969.

Shri Harjeet Singh was appointed to officiate IS G Superintendent of Police in December 1960. 1'he post was a cadre post.

He continued to hold a cadre post till he \Vas appointed to the Indian Police Servicewith effect from September 3, 1969.

P...ftec the l\\'O officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of seniority arQ6C for the consideration of the Government of India.

Shri B. R. Kapur was allotted the year 1963 and placed below Sube Singh and above S. R. Sharma (direcl recruits) in the Jndian Police Service, counting his continuoUs officiating service from 1-11-66 only, as service in a senior cadre post and not his service in the

A non-cadre post.

In the case of Harject Singh, though he admittedly officiated continuously in a senior cadre post from December 1960, he was also allotted to the year 1963 and placed below Sri Kapur on the ground that he ranked

elo¥/ Sri Kapur in the select list.

Kapur and Harjeet Singh filed \\Tit petitions in the High Court of PlUljab and Haryana quelltioning the allotment of the year 1963.

The Writ Petitions B were accepted.

The Court directed the Union and Punjab Government& to redetermine the year of allotment and seniority of J-Jarjeet Singh and Kapur taking December 17, 1960 and July 29, 1965 respectively as the dates of their continuous officiation in '-!. senior post.

A further direction was issued that before redetcrn1ining the seniority of the two officials, the respondents to the Writ Petitions \.Vho were direct recruits should be afforded an opp0rtunity to make their representation. c

Appeals under clause 10 of the Letters Patent were filed by the affected direct recruits as also by B. R. Kapur. The direct recruits contended that neither B. R. Kapur nor Harjeet Singh would have ever started officiating in the senior post on the daks from V.'hich they officiated or claimed to have officiated in senior posts, if the State Governments had not created artificial vacancies by excesive utilisation of the "deputation and central reserve" quota in contravention of the cadre Rules and the Cadrestrength Regulations. The arguments before the Division Bench therefore was that the period of service attributable to over utilisation of 'deputation and central reserve' quota should not be treated as service in a senior post for the purpose of determining the year of allotment of officers promoted to the I.ru.lian Police Service.

The argument was accepted by the Division Bench and a direction was issued to ithe Central Government to reconsider the question of year of allotment after taking into consideration the question of over utilisation and its effect.

The finding of the learned Single Judge that B. R. Kapur was entitled to have his service as Commandant 25th Battalion as officiation in a senior post was however affirmed. . Hence the appeals by special leave by Harjeet Singh and Kapnr.

Allowing the appeals and dismissing the Petitions, the Court.

HELD : 1. Rule 3 (3) (b) of the Indian Police Service (Regulation of Seniority) Rules, 1954 is valid. [476E]

A. P. Sharma v. Union of India, [1968] S.L.R. 582; followed.

2. Rule 3(3)(b) as well as Rule 4(4) of the Indian Police Service (Regulation of Seniority Rules 1954 throw up the date of continuous officiation of an officer in a cadre post as the most , important factor both for the pul"'- pose of assignment of year Of allotment and for the purpose of assignment of seniority.

For the. purpose of assignment of year of ailotment 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, then the date of appointment to the Service if the date of comnrencement 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 arc the several relevant factors in that order.

Thus the order in the Select List is irrelevant for the purpose of determining the year o.f allotment

.. _.._

HARJEET SINGH V. UNION 461

and is relevant in detennining the seniority, only if the year of allotinent of the officers is also 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 o'f allotment and is relevant for the purpose of deter111iningthe eniority only if the year of allotment and the date of appointn1ent of two or more officers are the same.

Therefore an officer who is junior to another in the State Police Service but, who starts continuous officiation in a Senior post fro1n a date earlier than the other, may frog-leap and gain seniority by the consequential assignn1ent of an earlier year of allotment.

Neither the Indian Police Serrice (Regulation of Seniority) Rules n_or any other rule in the irmumcrablc Rules and Regulations governing the recruitment, appoint1nent and Regulation of seniority of officers of the Indian Police Sen1ice is designed to deprive an officer, the benefit of continuous officiation in a senior post.

[471G-H, 472A-E]

3. Though under the Indian Police Service (/\.ppointment by Pro1notion) Regulations, the Select l, ist is prepared on the basis of merit and ability, the . order in which officers are placed in the Select List is accorditig to seniority in the State Police Service and not according to merit and ability. Merit and ability arc considered for the purpose of inclusion in the Select List but there-

<ifter s(:nior1ty in th~ State Police Service takes over and the nan1~ of Officers & :ire aJranged in the order of that seniority, Therefore the benefit of continuow 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 hitn in the State Police Service did not so continuously officiate.

[472FH]

4. It is true that under Regulation 8 of the Indian Police Service (i\.ppointment by Promotion) Regulation & Appointments to cadre posts from among E non-cadre officers should be n1ade according to the order in which the names o.f such officers appear in the Select Li..<>t. .A. dcviatio11 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 individunl non-cadre officers. If that

is done the deYiatiot1 is liable to cha11enge.

But where there is no such allegation, there is no reason why a junior non-cadre officer should lose the benefit F of his conti11uo~1s officiation in a. cadre post merely because a non-cadre officer senior to him in the Select I.ist did not continuously officiate likewise.

In such a situation, it \vould be for the Government of India to consider whether the relevant rules may not be so relaxed as to enable such non-caJ.rc officer to add hi~ officiation in a non-cadre post to his officiation in a cadre -post, regard being had to the circumstances under which the officer had 'i.o work in a non-cadre rost \vhilc his junior in the Select List \Vas inade to fill the G cadre post.

But. surely, it cannot \Vork to the prejudice of the junior officer in the Select Li"\ so as to nuilify the actual, continuous, officiating service rendered by hin1.

In the present case there is no allegation that B. R. Kapur was appointed to lhc non-cadre posts of Director of Sports and Additional Controller of Stores \vith a vie\v to favour Harjeet Singh. [472 H, 473A-Dl

5. Non-ca<lre officers if they arc appointed to cadre posts in accordance .ft with Rule 9 of the Cadre Rules should not 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 a

Deputation Reserve in the schedule to the Cadre Fixation of Strength Regu- . Jation.

[473E-FJ

Fixation of Cadre Strength Regulations are made in exercise of the power 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 confem:d by a Statute are necessarily subordinate to the Statute. Rule 6 of the 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 appointment of non-cadre officers to cadre posts the rule prescribes the fulfilment of certain conditions.

In the instant case. that the conditions prescribed by rule 9 of the Cad re Rules were fulfilled is clear from the impugned order.

[473F-H]

6. Rule 4(1) o; f the Cadre Rules enables the Central Government to make Regulations determining the strength and composition of the Cadre of each State. A definite number of posts is also specified against "Deputation Reserve'"

in the schedule to the fixation of Cadre Strength Regulations.

But if owing t<> the situational demands and exigencies of the <!dministration, 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 D Cadre Rules, the Service rendered by the non--cadre officers in such posts should not be ignored.

Jn the instant case, the deputation of cadre officers was in accordance with Rule 6 of the Cadre Rules.

[474A-C]

7. 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 there has been strict compliance with Rule 9 of the Cadre Rules.

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 relationship.

Excessive utilisation of 'Deputation or Central Reserye' 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.

A mere breach of the mle furnishes no cause of action on the ground that his seniority is affected in son1e round-about way. [474C-G and 475A]

8. 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 seale of pay if having regard to his length of service, experience and performance he is found to 1 be suitable for appointment to post in the Senior time scale of pay.

Since at that time in Punjab, there was no direct recruit in the junior time scale of pay \Vho possessed experience of at least four years who could be thought of for appaintment in the Senior post, the State Government had no option except to apPoint experienced and suitable non-cadre officers to cadre posts. Further no cadre officer who had been so deputed suffered in any manner in the matter of his career.

[475B-D]

HARJEET SINGH V. UNION 463

Further, the appointment of non-cadre officers to cadre post. is subject to A the directions of the Central Government, who may terminate such appointment.

The C'.entral Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extent beyond six months. 1\foreover non-cadre officers of proven merit only are appointed to cadre posts. 111ey are appointed to cadre posts if they are already in the Select List and the appointments are made in accordance with the order in which they are placed in the Sekel List which is prepared under the Indian Police B Service Recruitment Rules after following an elaborate procedure involving a thorough examination at 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 lo be promoted to the Indian Police Service at any time thereafter according to vacancy position.

A direct recruit who ordinnrily comes into the picture year:i after a State Officer's name

appears on the Select List cannot have any real grievance that the promoted C officer is given fin anterior date for the purpose of seniority since such <late 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 !he promoted officer.

[475E-H, 476A-B]

9. Every departure from a rule which departure gives certain advantages to one group of Civil servants as against another does not necessarily involve D an encroachment of the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution.

The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any "Quota" n1le.

There is no allegation of breach of "quota" rule embodied in Rule 9(2) of the Recruitment Rules either. [476B-E]

N. K. Chauhan nnd Ors. v. State of Gujarat, [1977] 1 SCR 1037, distinguished.

10. "The overutilisation" of 1'Deputation and Central Reserve" does not affect the questions of assignment of the year of allotment and the seniority of the appellants.

[476F-G]

C!viL APPELLATE JURISDICTION : Civil Appeal Nos. 2526/77 and 2413/78.

From the Judgment and Order dated 17-5-1975 of the Pnnjab and Haryana High Court in LPA Nos. 633, 671; 694/73 and 609173.

AND

Writ Petition Nos. 520-524 af 1980.

(Under Article 32 of the Constitution)

Jawahar Lal Gupta and S. Ghose for the Appellant in CA 2526/ 77.

P. R. Mridul, M. R. Agnihotri and P. C. Bhartari for the Appellant

in CA 2413/78.

0. P. Sharma and M. S. Dhillon for the State of Punjab in both the appeals. _

A Lal Narain Sinha Att. Genl. Abdul Khader and Miss S. Subhashini for the Union of India in all the appeals.

H. L. Sibal, R. K. Garg and R. S. Sodhi for Respondent No. 10 in CA 2526 and RRll in CA 2413.

R. K. Garg and R. S. Sodhi for the Petitioners in WP Nos. 520- B 524 of 1980.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. In these appeals we have once again to consider career conscious competing claims to seniority which appear so much to dominate the lives and careers of our Civil Servants that a large bulk of the cases in this Court relate to the resolution of problems arising out of such claims.

So much of our time is taken up' in discovering the precise facts of these intricate problems that we wonder whether the constitution of a fact-finding administrative tribunal who should invariably be approached in the first instance will not better serve the cause of successful administration. An administrative tribunal possessing the necessary expertise and familiarity with administrative procedures and rules may be able to deal with the problems in a satisfactory way. At least the facts wil1 be found and the relevant rules will be !mown.

Thereafter aggrieved parties may approach the Courts for further relief within the confines of Articles 226 and 32 of the Constitution.

On selection by the Punjab Public Service Commission, B. R.

Kapur and Harjeet Singh were directly recruited, in 1951, as Deputy Superintendents of Police in the Punjab Police Service. They are the appellants in Civil Appeal Nos. 2413 of 1978 and 2526 of 1977 respectively. B. R. Kapur was senior to Harjeet Singh as Deputy Superintendent of Police. In 1960 both of them were included in the Select List prepared under Regulation 7 of the Indian Police Service ( Appointment by Promotion) Regulations 1955. On November 24, 1960, B. R. Kapur was appointed as Assistant Inspector General of Police which post was a cadre post. In May, 1961, B. R. Kapur was appointed as Director of Sports and Youth Programme and Deputy Secretary to Government, Sports Department.

The post was a noncadre post.

He held this post upto November 18, 1962 and thereafter he was appointed as Additional Controller of Stores, Punjab which was also a non-cadre post. He continued to hold the post of Additional Controller of Stores till 1965. From July 19, 1965, he was Commandant, 40th Battalion, PAP, J & K, which was a cadre post. He held the post till July 11, 1966, when he took over as Commandant of 25th Battalion, PAP.

On the reorganisation of the State of Punjab, he

' ..

wa, s appointed as Assist.ant Inspector General of Police, State of Punjab from November 1, 1966. Thereafter he continuously held cadre posts and was finally appointed to the Indian Police Service with effect from September 3, 1969.

Shri Harjeet Singh was appointed to officiate as Superintendent of Police in Decmber, 1960. The post was a cadre pool.

He continued to hold a cadre post till he was appointed to the Indian Police Service with effect from September 3, 1969.

After the two officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of se'niority arose for the consideration of the Government of India.

Shri B. R. Kapur was allotted to the year 1963 and placed below Sube Singh and above Shri S. R. Sharma (direct recruits) in the Indian Police Service Gradation List of Punjab.

The period of his service as Director of sports and Yonth Programme and as Additional Controller of Stores was not taken into consideration as both the posts were non-cadre posts. His service as Commandant of 25th Battalion was also not taken into account on the gronnd that the 25th Bttalion had been taken over by the Government of India and therefore the post of Commandant of the 25th Batl'alion was a non-cadre post. He was, therefore, treated as having continuously officiated in a senior coore post from November 1, 1966 o'nly.

On that basis he was allotted to the year 1963. In the case of Harjeet Singh, though admittedly he officiated continuously in a senior cadre post from December, 1960 he was also allotted to the year 1963 and placed below Shri B. R Kapur on the ground that he ranked below Shri B. R. Kapur in the select list.

B. R. Kapur. and Harjeet Singh filed Writ Petitions in the High Court of Punjab and Haryana questioning the allotment of the year 1963 to them for the purpose of seniority in the Indian Police Service.

The learned Single Judge of the High Court who heard the petitions in the first instance held that there was no reason at all why Harjeet Singh should not be given the full benefit of his continuous officiation in a senior post.

He, therefore, directed the Union and Punjab Governments to redetermine the year of allotment of Harjeet Singh, taking December 17, 1960, as the date from which he continuously officiated in a senior post. It was also directed that proper seniority should be assigned to him in accordance with the year of allotment so determined.

In the case of B. R. Kapur it was held that Ju:y 29, 1965, should be treated as th,~ date of. his continuous officiation in a senior post. It was held that the Government of India and the Gov- , ernment of Pnnjab boo all the time treated the post of Commandant,

25th Battalion as a cadre post and therefore, B. R. Kapur was entitled to have his service in the post. of Co=andant, 25th Battalion as officiation in a Senior post.

A direction was issued that the year of allotment and seniority should be redetermined.

It was further directed that before redeterminihg the seniority of the two officers, the respondents to the Writ Petitions who were direct recruits, should be afforded an opportunity to make their representations.

Appeals under Clause 10 of the Letters Patent were filed by the affected direct recruits as also by B. R. Kapur. Before the Di\ision Bench the case took a new turn. It was argued before the Division Bench on behalf of the direct recruits that neither B. R. Kapur nor Harjeet Sihgh would have ever started officiating in the senior post on the dates from which they officiated or claimed to have officiated in senior posts, if the State Government had not created artificial vacancies by excessive utilisation of 'the deputation and central reserve' quota in contravention of the Cadre Rules and the Cadre-strength Regulations. It was apparently sought to be argued before the Divisioh Bench that th•e period of service attributable to over utilisation of 'deputation and central reserve' quota should not be treated as service in a senior post for the purpose of determining the year of allotment of officers promoted to the Indian Police Service. The argument was accepted by the Division Bench and a direction was issued to the Central Government to reconsider the question of year of allotment after taking into consideration the question of over utilisation and its effect.

The finding of the learned Single Judge that B. R. Kapur was entitled to have his service as Commandant 25th Battalion as officiation ih a senior post was however affirmed.

Shri Jawahar Lal Gupta, learned counsel for Harjeet Singh argued that the service of Harjeet Singh in a senior cadre post was approved by the Government of India and once it was so approved the question whether there was over utilisation of deputation and central reserve quota was irrelevant for the purpose of determihing the year of allotment.. The only relevant question was whether the appellant bad continuously officiated in a senior post and, from what date. Thereafter the year of allotment was to be determined by the simple and mechanical application of rule 3(3) (b) of the Indian Police Service (Regulation of Sehiority) Rules.

He further submitted that the 'circumstance that B. R. Kapur was senior to Harjeet Singh in the Select List was also irrelevant in considering the question of year of allotment. It was only if both of them were given the same year of allotment that their inter-se seniority in the Select List would become relevant.

Shri Mridul, learned counsel for B. R. Kapur, argued that

' •

• ' ·,

the single Judge of the High Court was wrong in excluding the period of service of B. R. Kapur as Director of Sports and as Additional Controller of Stores in determining the year of allotment.

He further contended that in any event the case of B. R. K.apnr was an .appropriate one for the exercise by the Central Government of its

pawer to reLix the rules and that this Court should give a direction to the Central Government to relax the rules so as to enable that part of Kapur's service to be treated as service in a &<nior pool.

Shri H. L. Sibal, learned counsel for one of the respondents argued that the number of cadre officers who could be deputed by the Central and State Governments for servie>< elsewhere was limited and fixed by the fndian Police Service (Fixation of Cadre Strength) Regulations.

By deputing more cadre officers than authorised by thoo" Regulations and appointing non-cadre officens to artificial vacancies so created in cadre posts, the State Government had adopted a device to enable the officers of the State Police Service to continuously officiate in Senior posts longer than justified.

The Cadre Strength Regulations were thereby' contraened and the Cadre Rules which provide for the temporary appointment of non-cadre officers to cadre posts circumvented. He submitted that officiating service rendered by a noncadre officer in a Senior post where the vacancy in the cadre post was the result of over utilisation of the deputation quota could not be taken into account under the Indian Police Service Regulation of Seniority Rules.

Shri R. K. Garg, who appeared for the remaining respondents urged that to permit promoted officers to take advantage of the deviation from the Cadre Rules and the Cadre Fixation of

Strength Regulations for the purpose of gaining an advantage under the Seniority Rules would be a denial of the equal protection of the

laws to the direct rcruits who would be affected by such procedure.

He also urged that Rule 3 of the Seniority Rules if so interpreted as to take into account officiation against the rules must be held to contrave1w A:rticb 14 and 16 of the Constitution.

In order to appreciate the rival contentions it is necessary to G examine the relevant statutory provisions, rules and regulations.

Article 312 ( 1) empomrs Parliament to provide, by law, for the

cration of All India Services common to the Union ahd the States.

Article 312(2) dclares that the services known at the commencement of th~ Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under Art. 312(1).

10-289 SC!/80

S. 2 of the All India Services Act, 1951 defines an "All India Service" as meaning the service known as the Indian Administrative Service or the service known as the Indian Police Service or any other service specified in S. 2(A). Sec. 3 enables the Central Government after consultation with the Government of the States concerned to make rules for the regnlation of recruitment, and the conditions of service of persons appointed to an All India Service.

The Indian Police Service (Cadre) Rules, 1954, made in exercise of the pomrs conferred by S. 3 (1) of the All India Services Act, provide for the constitution of Cadres and certain connected matters.

A Cadre Officer is defined as a member cf the Indian C Police Service and a Cadre post is defined as any of the posts specified under item 1 of each cadre in the schedule to the Indian Police Service (Fixation of Cadre Strength) Regnlations, 1955. Rule 4(1) provides that the strength and composition of a cadre constituted for each State or group of States shall be as determined by Regulations made by the Central Government in consultation with the State D Governments. Rule 4(2) requires the Central Government to re-examine the strength and composition of each such cadre at intervals of iovery three years in consultation with the State Government conorned and to make such alterations as it deems fit.

The first proviso to Rule 4(2) expressly stipulates that the power of the Central

Government to alter the strength and composition of any cadre at any other time is not affected by rule 4(2). The second proviso to r. 4(2) enables the State Government to add, for 'a period not exceeding one year,. and iwth the approval of the Central Government for a further period not exceeding two years, to a State cadre one or more ppsts carrying duties or responsibilities of a like nature to a cadre post. Rule 6 authorises the deputation of cadre officers for service under the Central Government or another State Government or under a Company, Association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or a State Government, a Municipal Corporation or a Local body or an international organisation etc. etc. Rule 8 prescribes "save as otherwise provided in these rules, every cadre post shall be filled by a cadre officer". Rule 9(1) provides for the temporary appointment of a non-cadre officer to a cadre post if the State Government is satisfied that the vacancy is not likely to last for more than three months or if there is no suitable cadre officer available for filling the vacancy.

Where a non-cadre officer is appointed to a cadre post for a period exceeding three months the State Government is required forthwith to report the fact to the Central Government together with their reasons for making the

.•.. _.\.-

appointment. The Central Government may then.direct the State Government to terminate the appointment of such person and to appoint a cadre officer to the post, in which ca9~ the State Govertunent iS bound to give effect to the directian.

Where a cadre post is likely to be filled by a non-cadre officer for a period exceeding six months the Central Government is required to report the full facts to the.

Union Public Service Commission and may thereafter give appropriate directions to the State Government in the light of the advice given by the. union Public Service Commission.

Pursuant to the powers conferred by R. 4(1) of the Indian Police Service Cadre Rules, the Central Government has made the Indian Police Service (Fixatian of Cadre Strength) Regulations 1955, determining the strength and compooition of the cadres of each of the States.

In the schedule the total anthorised cadre strength for the State of Punjab is mentioned as 70 consisting of 34 Senior Posts w:der the State Government, 14 Senior posts under the Central Government, 7 Deputation Reserve posts, 6 Leave Reserve posts and 7 Junior posts and 4 Training Reserve posts.

The thirty four senior posts under the State Govertunent are also particularly specified.

Thirty six out of the total of forty eight Senior posts under the Central and State Gavernments, the deputation Reserve posts, the Leave Reserve posts, the Junior posts and the Training Reserve posts are all stated to be 'direct recruitment posts' while the remaining 12 Senior posts m; ider the Central and State Governments are stated to be "promotion pqsts". It is necessary to mention here that the thirty four posts specified as "Senior posts under the State Government" are shown as item 1 of the schedule and the fourteen Senior posts under the Central Government are shown as item 2 of the schedule.

The Indian Police Service (Recruitment) Rnles, 1954 provide for recruitment to the Service (a) by a competitive service and (b) by promotion of substantive members of a State Police Service.

Rule 9 ( 1) empowers the Central Government to recruit to the Indian Police

Service persons by promotion from amongst the substantive members of the State Police Service in accordance with Regulations made by the Central Government. The recruitment is required to be made on the recommendation of the State Government concerned and in consultation with the Union Public Service Commission. Rule 9(2) provides that the total number of persons recruited by promotion shall not at any time exceed 25% of the number of posts shown against item No. , 1 and 2 of the cadre in the schedule to the Indian Police Service

(Fixatfon of Cadre Strength) Regulation.

Items 1 and 2, we have already mentioned are Senior posts nnder the State and the Central Govertunents.

The Indian Police Service (Appointment 'by Promotion) Regulations 1955, made pursnaJ1t to Rule 9(1) of the Indian Police Service

Recrnitment Rules 1954 prescribes a very elaborate procedure for making appointments by promotion to the Indian Police Service.

A Selection Committee is required to be constituted for each State consisting of the Chairman or any other member of the Union Public Service Commission and other members specified in the schedule. In the case of Punjab the other members are the Chief Secretary to the Government of Punjab, the Secretary to the Government of Punjab in the Home Department, the Inspector General of Police and a nominee of the Government of India not below the rank of Joint Secretary. The Selection Committee is required to meet at intervals ordinarily not exceeding one year and to consider the cases of all eligible substantive members of the State Police Service. The Committee is required to prepare a list of such eligible members of the State Police Service who are suitable for promotion to the Indian Police Service The selection for inclusion in the list is to be based on merit and suitability in all respects with due regard to seniority but the names of the officers included in the list are required to be arranged in order of seniority in. the State Police Service.

The list prepared by the Selection Committee is then to be forwarded to the Union Public Service Commission by the State Govermnent with all relevant records, the reasons recorded by the Committee for any _proposed supersession of any member E of the State Police Service and the observation of the State Government on the recommendation of the Committee. Thereafter the Union Public Service Commission is to consider the list prepared by the Committee and to make any changes considered by them, to be necessary, after informing the State Government of the proposed changes. The list as finally approved by the Commission is to form 'the Select List of the members of the State Police Service.' All appointments of members of the State Police Service from the Select List to posts borne on the State cadre are to be made in accordance with the provisions of R. 9 of the Cadre Rules. In making the appointments the State Government is to follow the order in which the 'names of such officers appear in the Select List except where administrative exigencies require otherwise and the vacancy is not likely to last for more than thre_e months. Appointments of members to the Indian Police Service are to be made by the Central Government on the recommendation of the State Government in the order in wliich the names of the members of the , State Police Service appear in the

Select List for ths time being in force.

We arrive :finally at the Indian Police Service (Regulation cf Seniority) Rules 1954. Rules 3 provides that every officer shall be assigned

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a year of allotment in accordance with the provisions of that rule.

Rule 3(3)(b) prescribes that the year of allotment of an. officer who is appointed to the service by promotion in accordance with rule 9 of the Recruitment rules, shall be the year of allotment of the junior most among the officers recruited by competitive examination who officiated continuously in a Senior post from a date earlier than the date of commencement of such officiation by the officer 'lippoi'nted to the service by promotion. 'Senior post' was originally defined as a post included and specified :under item 1 of the cadre of each State in the Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulation and as including posts declared by the State Government as equivalent to such posts.

The definition was amended with effect from April 22, 1967 and the present definition does not include posts declared equivalent by the State Government to cadre posts.

Rule 4 ( 1) provides that the seniority of officers inter-se shall be determined in accordance with the provisions of the rules. Rule 4( 4) provides that the Seniority of officers who are assigned the same year

<if allotment shall be in the order of the dates on which they started officiating continuously in the Senior post, but in the case of Officers appointed to the service by promotion, the dates of officiation shall be the same as the _dates taken into account for the purpose of assignment of year of allotment under rule 3 ( 3). Where the dates of commencement of continuous officiation in a Senior post of more than one Officer appointed to the service by promotion is the same their seniority inter-se shall be in the order of their dates of appointment to the service and where the date of appointment is also the same it shall be in the order in which their names are arranged on the date of their appointment to the service in the Select List.

These are the Statutory provisions, Rules and Regulations with which we are concerned in the present appeals. What are primarily in question are the year of allotment and the Seniority of the two officers, Harjeet Singh and B: R. Kapur.

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 yoor of allotment and for the purpose of assignment of seniority.

For the purpose of a1; signment of year of allotment the date of continuous officiation in a senior post Is the only relevant factor while for th" purpose of assignment of seniority, first, the date of continuous officiation in a senior post is the only relevant factor 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 thi!_t 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 appoi"ntment is also the same. Since th~ order in the Slect 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 relevant for the purpose of determining the se"niority 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 Servi¢ (Regulatiorn of Senidrity) 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 Senior post.

One of 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 wer.e actually promoted to the Indian Police Service. This submission is without substance. Though under the Indian Police Service (Appointment by Promotion) Regulations, th" 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 ctver 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 conthmously officiate.

It is, however, true that under Regulation 8 of the Indian Police Service (Appointment by Promotion) Regulations, appointments to

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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 nninhibited deviation to favour individnal 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 continnous 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 add 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 caµnot 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 tbe non-cadre posts of Director of Sports and Additional Controller of Stores with a view to favour Harjeet Singh.

Now, the 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 the Cadre Rules provides for th'e 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 fulfilment of certain condition~. 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 Govern~ ment 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 oflicers to fill cadre posts in strict compliance with the Cadre Rules, we see no reason to hold that the service render- ' ed by the non-cadre officers in such posts should be ignored.

On the other hand we think that the Fixation of Cadre Strength Regufations made under Rule 4 of the Cadre Rules do not over-ride D 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 there has been strict 'compliance with Rule 9 of the Cadre Rufos.

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 relationship.

Excessive utilisation of 'Deputation or Central Reserve' is a matter for adjustment an:d 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 may 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

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on the ground that his sniority is affected in some round abou1 way<

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We may add that there is no suggestion that Rule 9(2) of the Recruitment Rules was contravened.

It was 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 Inda-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 scare of pay C'an be appointed to a post in the Senior ti.Jne 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. It appears that, at that time, in Punjab, there was no direct recruit in tl1e Junior tinJe scaile 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.

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 enable them to get the benefit of such continuous officiation when finally appointed to an All India Service.

Whatever truth tl1ere may be in the suggestion it has to be remembered firstly that the appointment of noncadre 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 bas 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 lso are made in accordance wth 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 Officer's uame appears on the Select List cannot have any real grievance that the promoted officer is given an ante.rior 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 conti1; mous officiation of the promoted officer .

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 by Articles 14 and 16 of the Constitutiop. 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(') on which Shri Garg relied.

In Chauhan's 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, lose& 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 the 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 Indid. (')

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 Kapur's service as Commandant, P.A.P.

Battalion No. 25 was service in a Senior post was not challenged before us.

Shri Mridul argued that the records reveal that Kapur's appointment to the posts of Director of Sports and Adrlitional 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

(I) [1977] I S. C.R. 1037

(2) 1968 Service Law Reporter 582 ,

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relax the rules so as to enable Kapur's service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts.

We cannot of course hold Kapur's service in noncadre 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 the matter. We have no advice to offer.

Both the Civil Appeals are allowed, the Judgment of the Division Bench is set aside and the judgment of the Single Judge is restored.

Writ Petition Nos. 520-524 have been filed by some of the direct recruits questioning the vires of rule 3 ( 3 )(b) of the Indian Police Service (Regulation of Seniority) Rules and Rule 3 of the All India Services (Conditions of Service-Residuary Matter) Rules, 1960 which vests in the Government. of India the power to relax.

We have upheld the validity of Rule 3 (3 )(b) of the Indian Police Service (Regulation of Seniority) Rules and the question of the vires of Rule 3 of the All India Service (Conditions of Service residuary matters) rules does not arise at present.

The Writ Petitions are also dismissed.

S.R.

Appeals allowed and Petitions dismissed.