TMI Blog2014 (5) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... nd validity of the rules would be tested in the total setting of facts. It needs to be highlighted at this stage that having regard to the overall circumstances and the factual position which prevailed while deciding Paramjit Singh’s case, the Court held that in order to save Rule 10 from the vice of arbitrariness, the only interpretation which could be given was to hold that the quota rule would apply both at the time of recruitment and at the time of confirmation. Detailed reasons are given justifying the said line of action taken by the Court and that portion of the judgment has already been extracted. In the beginning, not only this, even when the Review Petition was filed the Court made it clear that there was no ambiguity in the judgment. It was also made clear that what the Court meant was that quota should be co-related to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. A roster had to be introduced which was to continue while giving confirmation. Introduction of roster only postulates ascertainment of available number of vacancies and proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the cadre of DSP. Method of recruitment is stipulated in Rule 6 as per which 80% posts are to be filled by promotion from the rank of Inspectors and 20% by direct recruitment. Rule 8 provides that both promotees and direct recruits would be on probation for a period of two years and in case of promotees, the Government may by special order in each case permit period of officiating appointment to the Service to count towards the period of probation. This rule also empowers the Government to extend the period of probation by not more than one year, if it deems fit. Rule 10, which is the most crucial provision and would remain fulcrum of the discussion hereinafter, provides for fixation of seniority and reads as under: SENIORITY OF MEMBERS OF SERVICE :- 10. The Seniority of members of the Service shall be determined by the date of confirmation in the service. Provided that if two or more members are confirmed on the same date; (i) a member who is appointed to the Service by promotion shall be senior to the members appointed otherwise; (ii) in the case of members who were appointed by direct appointment, the seniority shall be determined in accordance with their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruits are confirmed or deemed confirmed on satisfactory completion of probation and at the same time the cases of promotees for confirmation are not considered, it would put them in a serious disadvantage in so far as further promotions is concerned, viz. nomination to Indian Police Service. Seniority-cum-merit being the criteria and the basic cadre being the cadre of DSPs from nomination is to be made, their cases would not come up for consideration in the absence of confirmation. On consideration of the entire matter, the Court held that as the determinative date for fixing the seniority is the date of confirmation, quota rule will have to be observed not only at the stage of recruitment but at the stage of confirmation as well. Else, it would result in discrimination to the promotees and would impinge upon their seniority in the Service. The Court chose to give this interpretation as according to it, this was the only way out to save Rule 10 from the vice of arbitrariness. It is clear from the following discussion: Now, if the other view if taken that the quota rule would apply both at the time of recruitment and at the time of confirmation, Rule 10 which provides for senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consonance with justice and reason. 6. After solving the dispute in the aforesaid manner, the Court also made certain other observations in para 14. We would refer to that para at the relevant stage inasmuch as it is the contention of the appellants before us that observations made in the said para are legally erroneous which position is now acknowledged by this Court in the Constitution Bench judgment in the case of B.S.Yadav vs. U.O.I. 1980 Suppl. SCC 524. 7. To put it succinctly, in Paramjit Singh s case, this Court held that rule of quota shall apply at the time of confirmation also and confirmation was to be done on the basis of vacancies. It would mean that even at the time of confirmation quota of 4:1 between the promotees and direct recruits would be applicable. 8. Implementing this judgment, the State Government prepared seniority list dated 4.6.1981 thereby granting dates of confirmation from 1961 to 1981. This led to filing of an application for clarification in Paramjit Singh s case by the appellants in the said case. Dismissing the application the Court made the following categorical remarks: There was no ambiguity in the Court s earlier judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the promotees DSPs of 1989 batch. The aforesaid action of confirmation of 1989 batch DSPs was challenged by one Tulsi Ram by way of filing CWP No.16419 of 2000 in the High Court. The question which arose in the said writ petition for the determination by the High Court was whether the promotion of the promotees officers of 1989 batch to the post of DSP was de hors the Rules and whether they could be given the benefit of that service for the purpose of their seniority. 12. The Division Bench of the High Court vide judgment dated 26.4.2001 dismissed the writ petition filed by Tulsi Ram holding that the promotee officers are entitled to the benefit of their temporary service which they rendered as DSPs and that service has to count towards their seniority. The said judgment is reported in 2002 (5) SLR 409. The Special Leave Petition against the said judgment was dismissed by this Court and in view of the dismissal of the Special Leave Petition the aforesaid judgment became final so far as the promotees DSPs of 1989 batch are concerned. 13. Thereafter, the State Government finalized the seniority list of the members of the Punjab Police Service vide order dated 7.7.2005. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court passed the order deleting the direction of making consequential changes in the IPS. The promotees also filed Review Petition seeking review of the said judgment. This petition has been dismissed by the High Court vide order dated 24.4.2009. Before us, in all these appeals, promotees DSPs have come forward challenging the decision of the High Court in the Writ Petition as well as in the Review Petition. 17. Two more developments which need to be mentioned at this stage are: (1) The State Government has already circulated seniority list on 15.12.2009 on the basis of direction given in the judgment of the High Court i.e. after the filing of the SLPs. (2) The earlier 1959 Rules have been repealed with thepromulgation of the Punjab Civil Services General Conditions of Service Rules, 1994. Indubitably, Rule 20 of these Rules categorically mentions that only common permanent post would constitute the cadre and not the temporary ones. Vital change is made in the rule fixing seniority. Now, from the date of framing of these Rules dated 4.9.l994, length of service is adopted as the criteria for fixing the seniority and thereby giving go bye to the earlier criteria based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with reference to a specific point of time, namely : Recruitment to Service . The words to be filled up by direct recruitment which occur in the proviso to sub-rule (2) of Rule 8 also point in the direction that the operation of this sub-rule is confined to the stage of initial recruitment to the Service either by promotion or by direct appointment from the Bar. Rules 10, 11 and 12 provide for the regulation of probation, reversion of promoted officers and seniority, which conditions of service are distinct and separate from Recruitment to Service dealt with in Rule 8. In other words, Rule 8 only fixes the respective quota of recruits from the two sources specified in clauses (i) and (ii) of sub-rule (1). Such reservation is intended to be made at the stage of initial appointments only, by reserving 2/3rd of the total number of posts in the cadre for promotees and 1/3rd for direct recruits. It seems to us evident that a post which falls vacant in the quota of promotees cannot be filled by the confirmation of a direct recruit therein nor indeed can a promotee be confirmed in a post which is within the quota of direct recruits. 67. If this be the true construction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Constitution Bench in para 71 to which we shall advert later while undertaking our analysis as the outcome of these proceedings depends on the true impact of the discussion contained in that para. 21. The Constitution Bench, thereafter, discussed the judgment of the High Court which was impugned in the B.S.Yadav, and held that the High Court was not justified in applying the rule of rotation at the time of confirmation of the members of the superior judicial service. For the sake of clarity, we would like to reproduce para 72 and 73 containing such a ratio: 72. In our opinion, therefore, the High Court was not justified in applying the rule of rotation at the time of confirmation of the members of the Superior Judicial Service who were appointed to that Service by promotion and by direct recruitment. In fact, we would like to remind that a special Bench of five learned Judges of the High Court of Punjab Haryana had itself held on December 13, 1977 in N.S. Rao v. State of Haryana that the rule of rota cannot be read into the rule of quota prescribed by Rule 8 of the Punjab Superior Judicial Service Rules. It was observed by the Special Bench in para 14 of its jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees. What we find lacking in justification is the refusal of the High Court to confirm the promotees even if vacancies are available in their quota in which they can be confirmed merely because, by doing so, more than two promotees may have to be confirmed at one time, without the confirmation of a proportionate number of direct recruits. The fairness which Articles 14 and 16 postulate is that if a promotee is otherwise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed, his confirmation ought not to be postponed until a direct recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for confirmation. The adoption of this principle in the matter of confirmation, will not, in practice, give any undue advantage to the promotees. The facts and figures supplied by the High Court in Annexure R-4 to its counter-affidavit in Writ Petition No. 266 of 1979 show that vacancies in the quota of promotees do not generally become available before the promotees have put in two to five years service as officiating District and Sessions Judges. 22. Based on the aforesaid dicta in B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta rule. In so far as quota is concerned that was kept within bounds while making promotions of the promotees to DSP Cadre. He argued that in such a scenario, the subsequent judgment of the Supreme Court in R.K.Sabharwal vs. U.O.I. (1995) 2 SCC 745 would also be applicable which laid down rule of promotion on post basis and not vacancy basis. He further submitted that the judgment in B.S.Yadav was followed in Suraj Parkash Gupta vs. State of J K. 2000 (7) SCC 561 wherein the Court has held as under: 41. The direct recruits contend that rota is to be implied or read into the quota rule. It is also argued that there has been a previous practice of applying a rota and that this fact stands conceded in the counteraffidavit filed by the Government in SWP No. 824-B of 1994. Reliance is also placed on the Cabinet note of December 1997 where the view of the Law Department that quota-rota rule is to be applied, is referred to. He also referred to the judgment of G.S.Lamba Ors. v. U.O.I. Ors.1985 (2) SCC 604 and relied upon paras 17, 23 and 25 which are as under: 17. It is too late in the day to dispute that it would be open to the Government, while constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parture from the quota rule would be violative of Article 14. Therefore assuming that quota rule was mandatory in character as pointed out earlier, its departure must permit rejection of rota rule as a valid principle of seniority. 24. Mr. Rajeev Dhawan, learned senior counsel appearing for the private respondents in some of these appeals, submitted that the central issue was as to whether judgment in Paramjit Singh is per incuriam and had not to be followed at all. His submission was that it was not so as the judgment pertains to the same 1959 Rules and same Service Cadre i.e. DSP. Therefore, there was no reason to depart from the ratio in Paramjit Singh which had the direct bearing. He argued that in Paramjit this Court had emphasized that there were specific reasons, rationale and justification for attaching rota to quota because the Court was dealing with exceptional situation and found that linkage of the two as the only just solution. At that time, this was done to give benefit to the promotees. Now, these promotees cannot turn round and the ratio in Paramjit Singh, when the fact situation does not suit the application of that rule. Mr. Dhawan also referred to certain po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 10 and that was binding on the State Government. 27. From what we have noted above, including the submissions of learned counsel for the various parties, it becomes clear that the entire issue hinges primarily upon an answer to the question as to whether dicta laid down in Paramjit Singh s case be followed or we need to deviate therefrom and follow the principle laid down in B.S.Yadav s case. All other issues and arguments raised would pale into insignificance once answer to this core issue becomes available. In fact upon decision on this central issue, answer to other peripheral issues would itself surface. Therefore, we proceed to address this issue in the first place. 28. We have carefully considered the submissions of the learned counsel for the parties on this aspect. As pointed out above, shorn off any niceties and nuances which have been projected before us, the core issue is as to whether judgment of this Court in Paramjit Singh s case was rightly followed by the High Court. The case of Paramjit Singh was concerned with same 1959 Rules pertaining to the officers of this very cadre, namely DSP Cadre. It was interpreting the rule in the context which had arisen before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able at the stage of appointment/recruitment will have no applicability at the time of confirmation. Thus, on the one hand, we have the judgment in the case of Paramjit Singh which pertains to these very Rules and the ratio of this judgment is applied by the High Court and on the other hand, we have the law laid down by the Constitution Bench in B.S.Yadav wherein the provisions of some other rules came up for interpretation. 30. According to us, in a matter like this, the approach of the High Court to follow the dicta in Paramjit Singh is most appropriate which pertains to the same Service and same Rules. That is the mandate of Article 141 of the Constitution. The High Court could depart only in a situation where it finds that the said judgment has been subsequently overruled, specifically or impliedly or it is per- incurium. Therefore, the moot question would be to examine as to whether B.S.Yadav overrules the judgment in Paramjit Singh. 31. Significantly, Paramjit Singh s case has been specifically taken note of and commented upon by the Constitution bench. Therefore, we are not faced with a situation where Paramjit Singh judgment has gone unnoticed. This judgment has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances where such an interpretation would be permissible and validity of the rules would be tested in the total setting of facts. That was precisely done by the Bench in Paramjit Singh s case. Only conclusion which can be drawn from the reading of para 71 of the judgment is that the harmonious reading of the 1959 Rules done in that case was in fact approved, and by no stretch of reasoning, can it be inferred that it was overruled. 33. It needs to be highlighted at this stage that having regard to the overall circumstances and the factual position which prevailed while deciding Paramjit Singh s case, the Court held that in order to save Rule 10 from the vice of arbitrariness, the only interpretation which could be given was to hold that the quota rule would apply both at the time of recruitment and at the time of confirmation. Detailed reasons are given justifying the said line of action taken by the Court and that portion of the judgment has already been extracted. In the beginning, not only this, even when the Review Petition was filed the Court made it clear that there was no ambiguity in the judgment. It was also made clear that what the Court meant was that quota sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the argument of the appellants that the operation of the rotational principle in quota would lead to inequitable results was refuted by the respondents who submitted that by applying the principle as directed by this Court, the State Government has drawn out a seniority, the perusal of which shows that against the existing strength of the service of 450 there are 406 promotee officers as against 360 vacancies following to their share @ 80% and 44 direct recruits as against 90 vacancies to their share @ 20%. The further appointment to the promotion to the IPS cadre is made solely on the basis of merit and the ratio of officers which make it to the IPS from the State Service cannot be taken as an indicator of any discrimination resulting by virtue of the 959 Rules. We find some substance in the aforesaid argument. Somewhat similar argument, as taken by the appellants before us, was commented upon by this Court in Maharashtra Vikrikar Karamchari Sangathan v. State of Maharashtra (2000) 2 SCC 552, at page 567: Lastly, it was contended on behalf of the appellants that some of the appellants have put in more than 17 years of service when a few of the direct recruits were e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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