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Biding Nature of judgments of Apex court – two judgments one is Apex court judgment and later is constitution Bench judgment – not overruled the earlier judgement – Apex court held that 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.= M.S.Sandhu & Anr. Etc. …….Appellants Vs. State of Punjab & Ors. Etc. …….Respondents= 2014 ( May. Part ) http://judis.nic.in/supremecourt/filename=41521

  Biding Nature of judgments of Apex court –  two judgments  one is Apex court judgment and  later is constitution Bench judgment  – not overruled the earlier judgement – Apex court held that 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.=

 

The perennial dispute of seniority between  the  direct  recruits  and

promotees, that keeps showing its fang time and again in  one  form  or  the

other, has surfaced in these batch of appeals as  well.  the dispute relates to seniority  in  the cadre of Deputy Superintendent of Police (DSP) between the  direct  recruits and promotees in these proceedings, which was  the  subject  matter  of  the aforesaid decision  as  well.   =  

 

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.

From the reading of the aforesaid extracted portion, it  follows  that

the Court made it clear that it was not laying down that rule of  quota  and

rota cannot go exist. Service rules, in a particular case  may  specifically

provide the co-existence of quota and rota. There may also  be  a  situation

where service rules be interpreted  as  such.   That  is  a  very  important

comment made by the Constitution Bench after taking note  of  the  ratio  in

Paramjit Singh’s case. It is specifically noted how the Court on  harmonious

reading of Rules 3,4,6,8 and  10  of  these  1959  Rules  had  come  to  the

conclusion that quota rule  was  operative  both  at  the  time  of  initial

appointment and at the time of confirmation.   After  taking  note  of  this

ratio on the harmonious interpretation of  the  Rules  in  question,  rather

than stating that  such  an  interpretation  was  impermissible  or  wrongly

given, the Constitution Bench clarifies  that  there  may  be  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.=

 

  May be, because of such situation recurring time and again either in  favour

of the promotees   or in favour of the direct recruits, the  Government  has

remedied the situation by amending the rules thereby bringing  the  rule  of

continuous length of service for determining the  seniority.  It  is  always

open to the Government to take such steps for the  benefit  of  all  in  the

service and to ensure that the result is equitable. However, in the  instant

case, we do not find fault with the judgment of the High Court.


39.   We,  accordingly,  hold  that  the  approach  of  the  High  Court  in

following the dicta laid down in Paramjit  Singh  was  perfectly  justified.

Finding no merit in these appeals, the same are hereby dismissed. No costs.

 

2014 ( May. Part ) http://judis.nic.in/supremecourt/filename=41521

SURINDER SINGH NIJJAR, A.K. SIKRI

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs…5397-5406/2014
(arising out of S.L.P.(Civil) Nos.36319-36328/2009)

M.S.Sandhu & Anr. Etc. …….Appellants

Vs.

State of Punjab & Ors. Etc. …….Respondents

WITH

C.A.Nos.5407-5409/2014 @ SLP(Civil) Nos.36330-36332/2009

C.A. Nos.5413-5422/2014 @ SLP(civil) Nos.36334-36343/2009

C.A.Nos.5410-5412/2014 @ SLP(Civil) Nos.36344-36346/2009

C.A.Nos.5439-5441/2014 @ SLP(civil) Nos.36347-36349/2009

C.A.Nos.5426-5428/2014 @ SLP(Civil) Nos.36350-36352/2009

C.A. Nos.5429-5438/2014 @ SLP(Civil) Nos. 36353-36362/2009

C.A. Nos.5423-5425/2014 @ SLP(Civil) Nos. 36363-36365/2009

 

J U D G M E N T

A.K.SIKRI,J.

1. Leave granted.

2. The perennial dispute of seniority between the direct recruits and
promotees, that keeps showing its fang time and again in one form or the
other, has surfaced in these batch of appeals as well. Having regard to
the nature of the dispute, we deem it proper to narrate the facts
sequentially and while doing so, we will also be stating the respective
positions which the parties to this lis have taken. In this manner by the
time statement of facts is over, we shall have crystallized the issues as
well, which need to be answered.

3. Genesis of the dispute lies in the Punjab Police Service Rules 1959
(hereinafter referred to as “1959 Rules”) and the origin can be traced to
the judgment of this Court in the case of Paramjit Singh & Ors. vs. Ram
Rakha 1979 (3) SCC 478. The dispute before us relates to seniority in the
cadre of Deputy Superintendent of Police (DSP) between the direct recruits
and promotees in these proceedings, which was the subject matter of the
aforesaid decision as well. However, before discussing the nature of
dispute we would like to take stock of the relevant provisions of 1959
Rules.

4. 1959 Rules are framed by the Governor of Punjab in exercise of powers
vested by the proviso to Article 309 of the Constitution. Rule 2 which is
definition clause defines “Service to mean the Punjab Police Service Rule 2
(f)”. As per Rule 3 the Service shall comprise of the posts specified in
Appendix ‘A’ to these Rules which shows 62 posts in 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 position in
the competitive examination;

(iii) in the case of members who were appointed to the service by
promotion, the seniority shall be determined in accordance with the
date of their entry in position list ‘G’ .”

 

As is clear from the above, date of confirmation in Service is the
relevant date and determinative factor for assigning seniority.

5. This very rule of seniority in a dispute between direct recruits and
promotees, came up for consideration before this Court in Paramjit Singh’s
case. Respondents 1 and 2 in the said case, who were promotees to the cadre
of DSPs of February 1961 and January 1961 respectively, had filed the Writ
Petition in the High Court of Punjab and Haryana, at Chandigarh praying for
a direction to confirm them in the Service. Apart from impleading State
functionaries, six other persons who were direct recruits were also
impleaded as respondents. These direct recruits were appointed as DSPs
between May 1961 and May 1965. The grievance of the said two promotees was
that quota rule of 80% by promotion and 20% by direct recruitment was 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 the said
direct recruits, they were not confirmed though the latter were confirmed
and, as a consequence, were made senior to these promotess, by virtue of
Rule 10. On these premise, failure to confirm them in the post available to
them was challenged as breach of the 1959 Rules and also in violation of
Art.16 of the Constitution. The contention of the Government as well as the
direct recruits was that quota applies at the stage of initial recruitment
and not at the time of confirmation and there was no allegation that the
quota rule was violated at the time of initial recruitment. It was also
argued that no one can claim to be confirmed as a matter of right. Further,
the said promotees were on officiating basis against temporary posts and
therefore for want of permanent posts, they could not be confirmed till
substantive vacancies in the permanent strength of the cadre were
available. The argument of the promotees was that if seniority is to be
reckoned from the date of confirmation in the service, confirmation must be
made available to the recruits from both the sources, namely promotees and
direct recruits. It was argued that if the direct recruits 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 seniority according to
the date of confirmation would certainly be saved from the vice of
unreasonableness. Is such a construction possible? One need not
stretch the language to bring about the desired result but in this
case upon a harmonious reading of Rules 3,6,8 and 10, the
conclusion is inescapable that quota rule is operating both at the
time of initial recruitment and at the time of confirmation. If
the rule of seniority were one otherwise than according to date of
confirmation it would not have become necessary to apply the quota
rule at the stage of confirmation but in this case the quota rule
is linked up with the seniority rule and unless the quota rule is
strictly observed in practice it will be difficult to hold that
the seniority rule is not unreasonable and does not offend
Art.16(see S.G.Jaisinghani’s case at pp.717 and 718). Quota rule
is linked up with seniority rule because, not the date of entry in
service determines the seniority but the date of confirmation
determines seniority and, therefore, quota rule is inextricably
intertwined with the seniority rule and any delinking would render
the seniority rule wholly unreasonable. And other view would lead
to the most undesirable result wholly unintended by the framers of
the rule. It must be remembered that after recruitment, members of
the service, though drawn from two different sources – direct
recruits and promotees – constitute a single integrated cadre.
They discharge identical functions, bear similar responsibilities
and acquire an equal amount of experience in the respective
assignments. In this background in S.B.Patwardhan’s case this
Court held that if the promotees are treated with an evil eye and
an unequal hand in the matter of seniority as was done under Rule
8(iii), the rule would suffer from the vice of unreasonableness
and would offend Art.16 and it was actually rule is applied at the
stage of initial recruitment and wholly ignored at the time of
confirmation because in that event while direct recruits will get
confirmation automatically, the promotees would hang out for years
as has happened in the case of respondents 1 and 2 and if they are
not confirmed they would never get seniority and their chances of
being considered for promotion to the higher post would be wholly
jeopardized. To avoid this utterly unconscionable outcome the
construction we have put on Rule 8 would be 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 judgment. 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 proceeding to make
recruitment keeping in view of the quota. If recruitment is
strictly made according to quota there will be no difficulty in
applying the very rule of quota even while giving confirmation. It
was, thus, maintained that since the quota in the present case is
4 : 1 that, four promotes to one direct recruit, therefore,
whenever vacancies occur, the appointing authority has first to
recruit four promotes irrespective of the factors or circumstances
causing the vacancies and as soon as four promotes are recruited
to bring in a direct recruit.”

 

9. Having noticed the ratio of the case of Paramjit Singh (supra), we
now proceed to take stock of the factual details of the dispute in these
appeals. A number of posts of the DSPs were created in the year 1989 and
the State Government was not finding suitable persons for appointment to
the said posts. The State Government accepted the proposal of the Director
General of Police, Punjab and relaxed the condition of experience from 6
years to 4 years as Inspector for promotion to the post of DSP. Thereafter,
between November, 1989 to December 1989, 85 Inspectors who had more than 4
years of service but less than 6 years, were promoted to the rank of DSP.
The Punjab Public Service Commission, ultimately in the year 1998, granted
approval to the aforesaid appointments and the promotes, DSPs of 1989 batch
were brought on list ‘G’ from the date of their promotion.

10. A Writ Petition being CWP No.17397 of 1999 was filed by direct
recruits of 1990 and 1991 thereby challenging the action of the State
Government in bringing the promoted DSPs of 1989 batch on list ‘G’ from the
date of their promotion as DSPs in the High Court. It was the grievance of
the writ petitioners/direct recruits in the said writ petition that the
promotees who were appointed as DSPs from the year 1987 to 1989 were
promoted in excess of their quota of 80%.

11. Thereafter, the State Government vide order dated 10.10.2000
confirmed 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. One of the
writ petitioners in W.P.No.17397 of 1999 namely Gurpreet Singh Bhuller
filed the Civil Writ Petition No.12206 of 2005 challenging the aforesaid
seniority list and also prayed that the seniority list of the members of
the Punjab Police Service may be prepared in accordance with the judgment
of this Court in Paramjit Singh’s case.

14. The High Court, vide impugned judgment dated 10.4.2008, has allowed
the Civil Writ Petition No.12206 of 2005 and quashed the seniority list
dated 7.7.2005 thereby directing the State Government to prepare the
seniority list in accordance with the judgment of this Court in Paramjit
Singh’s case. It is this judgment which is assailed before us.
15. Some more factual details need a mention at this stage. When W.P.
No.16419/2000 filed by direct recruits was dismissed by the High Court on
26.4.2001 and SLP there against was also dismissed, the State Government
initially took the position based on the aforesaid judgment, viz. that the
requirement of 6 years service for promotion to the post of DSP which was
relaxed to 4 years was approved and confirmed held valid therefore
seniority would be given from 1988. However, the Government, thereafter,
chose to constitute a Committee to go into the entire gamut of these
issues. The Committee went into the length & breadth of all the relevant
issues, including the earlier judgment of this Court in the case of
Paramjit Singh and recommended that judgment in Paramjit Singh’s case
should be followed. On the basis of the said recommendation, the State
Government passed the orders dated 7.7.2005 accepting the same.
Interestingly, in the meantime, many promotees DSPs who were brought on
list ‘G’, had been inducted into IPS Service. However, the Government
decided not to interfere with the said career progression of those DSPs and
they are left untouched.

16. These developments and issues were debated before the High Court
which has, vide impugned judgment dated 10.4.2008, held that the decision
of the Government following the dicta in Paramjit Singh’s case is apt &
justified. It has been directed that this judgment be implemented and
consequential change in IPS be also made. However, those promotees DSPs who
had already been inducted as IPS and were not impleaded in the parties in
the said case filed an application stating that they were adversely
affected. On that application the High 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 the promulgation
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 on the date of confirmation.

18. Mr. P.S. Patwalia and Mr. Nidesh Gupta, Senior Advocates appeared
for the appellants in these cases and advanced detail arguments in support
of promotees’ case. Opening the front, Mr. Patwalia, at the outset drew the
attention of this Court to the subsequent case of B.S.Yadav vs. U.O.I.
(supra) and submitted that the Constitution Bench in that case has laid
down principle of law in unequivocal terms that rule of rotation cannot be
read into the rule of seniority. He, thus, submitted that observations of
the Division Bench in Paramjit Singh’s case in para 14 that rule of quota
shall apply at the time of confirmation also did not remain valid any
longer. In this endeavour, Mr. Patwalia specifically referred to para 35 of
B.S.Yadav judgment, wherein the Constitution Bench framed two issues that
needed to be resolved. We reproduce issue No.2 as framed as first issue
does not concern us:

“(2) whether the High Court, basing itself on the rule of quota,
is justified in applying the rule of rotation at the time of
confirmation of promotees and direct recruits as District and
Sessions Judges.”
19. He emphasized that question No.2 framed in the said case arose
directly for consideration in the present set of appeals also which was
answered by the Constitution Bench in para 53 onwards. In para 53, the
Court noticed that the main thrust of the argument of the promotees was
that method of rotation cannot apply at the time of confirmation as it
would be violative of their fundamental rights under Art.14 and 16 of the
Constitution. This is answered in subsequent paras. Our purpose would be
served in reproducing discussion contained in paras 65 to 68 which are as
follows:
“65. In the light of these contentions, the question for
determination is whether the method of confirmation adopted by the
High Court by the rotation of promotees and direct recruits in the
ratio of 2 : 1 is justified on a proper interpretation of the
relevant rules. Is the operation of Rule 8 confined to the stage of
initial recruitment to the Service by promotion and by direct
appointment? Or, can that rule be superimposed on Rules 10 and 12 so
as to justify its application at the stage of confirmation also?
These are the questions which are posed for our consideration.
66. Rule 8, as its very heading shows, provides for a distinct
condition of service 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 Rule 8, the method of
confirmation by rotation of direct recruits and promotees,
regardless of whether the vacancy assigned to the particular officer
falls within the quota of the class to which he belongs will be in
contravention of that rule. It was held by this Court in Punjab &
Haryana High Court v. State of Haryana that “appointment” is not a
continuous process, that the process of appointment is complete as
soon as a person is initially recruited to the service either by
promotion or by direct recruitment and that confirmation is not a
part of the process of appointment. The necessity of treating
“recruitment to the Service” and “confirmation” as two distinct and
separate matters can be appreciated if only it is realised that
“recruitment to the Service” is a matter which falls within the
power of the Governor under Article 233 while “confirmation” is a
matter of “control” vesting in the High Court under Article 235. The
superimposition of Rule 8, which fixes the quota at the stage of
recruitment, on the rules relating to confirmation and seniority is
therefore contrary to the basic constitutional concepts governing
judicial service.
68. This apart, the application of rota system at the stage of
confirmation is beset with practical difficulties. For example, if
vacancies in the quota of direct recruits cannot be filled for 2 or
3 years for the not uncommon reason that direct recruits are not
available, and during that period several vacancies occur in the
quota of promotees who have been officiating continuously for two or
three years, can the postponement of the confirmation of such
promotees against vacant posts in their quota, until the direct
recruits are appointed and become eligible for confirmation on
completing the prescribed period of probation, be justified on any
reasonable ground? Is it proper and fair to defer the confirmation
of the promotees merely because direct recruits are not available at
that point of time so as to enable the High Court to make
confirmations from both the sources by rotation? This, precisely, is
what the High Court has done by the impugned notification dated
August 25, 1976 and that is the reason why it has not confirmed ten
more promotees in Punjab, for whom vacancies are available within
the quota of promotees.”
20. It is noteworthy that judgment in Paramjit Singh (supra) was
specifically noticed and discussed 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 judgment that a plain reading of Rule 8
shows that the intention of the framers of the rules was only to
provide for quota and that no indication at all has been given that
the rotational system also had to be followed at the time of
confirmation or for the purpose of fixing seniority. In coming to
this conclusion, the High Court placed reliance on the decisions of
this Court in A.K. Subraman and N.K. Chauhan to which we have
already referred. The High Court expressed its conclusion in para
22 of the judgment by saying that Rules 8 and 12 are independent of
each other, that the rotational system cannot impliedly be read
into the quota rule prescribed by Rule 8 and that the members of
the Superior Judicial Service are entitled to claim seniority,
strictly in accordance with the provisions of Rule 12. We are
unable to understand how, in the discharge of its administrative
functions, the High Court could have failed to follow a judgment of
its own special Bench consisting of five learned Judges. We are of
the opinion that the aforesaid judgment has taken a correct view of
the matter on a combined reading of Rules 8 and 12.
73. We would like to say at the cost of repetition that we are
not dealing with the abstract question as to whether the rule of
quota necessarily excludes the rule of rotation. We are only
concerned to point out that it is not correct to say that the rule
of rota must necessarily be read into the rule of quota. We have to
decide in these cases the narrow question asto whether, on a true
interpretation of Rules 8 and 12 of the Superior Judicial Service
Rules of Punjab and Haryana, the quota rule prescribed by Rule 8
justifies, without more, its extension at the time of confirmation
so that, after every two promotees are confirmed one direct recruit
has to be confirmed and until that is done, promotees cannot be
confirmed even if vacancies are available within their quota in
which they can be confirmed. We are of the opinion, on a proper
interpretation of the rules, that promotees are entitled to be
confirmed in the vacancies which are available within their quota
of 2/3rd, whether or not 1/3rd of the vacancies are occupied by
confirmed direct recruits. And similarly, direct recruits are
entitled to be confirmed in vacancies which are available within
their quota of 1/3rd, whether or not 2/3rd of the vacancies are
occupied by confirmed promotees. 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.S.Yadav, the learned senior counsel
paraphrased his submissions as follows:

(1) Judgment in Paramjit Singh’s case was never implemented by the
Government when it was pronounced. This was clear from the fact that the
appellants promotees who were promoted in the November/December 1989 were
promoted in relaxation of the rule providing for length of service as
eligibility condition and their names were also brought in the list “G”.
Many persons of 1989 Batch were even further inducted into the IPS. This
list was even approved, though belatedly in the year 1998 and that was the
reason for the confirmation orders coming in the year 2000. However, that
was much before the direct recruits were confirmed. In case, quota is
applied at the stage of confirmation also, it would seriously affect these
promotees who are otherwise much senior to the direct recruits.

(2) In a situation like this, the Government rightly felt that the
judgment in Paramjit’s Singh case was not capable of implementation. This
was even the stand of the Government in the Writ Petition No.1739/1999
filed before the High Court by the direct recruits. A specific counter
affidavit was filed stating that the promotees did not exceed their quota
and their seniority was rightly determined. However, the Government turned
turtle thereafter and took a ‘U’ turn.

(3) In any case within one year of the judgment in Parmajit Singh,
which was rendered in the year 1979 Constitution Bench in B.S.Yadav in the
year 1980, strengthened the legal position which impliedly overruled
Paramjit Singh’s case.

(4) If at all, judgment in Paramjit Singh is to be confined to its
own facts without treating it as it precedent.

(5) Fault is found with the impugned judgment of the High Court which
decided to follow Paramjit Singh’s case on the ground that when this case
was decided by the High Court in the year 2008, the High Court had before
it Constitution Bench in B.S.Yadav and the High Court was supposed to
follow the law laid down therein which had binding force, rather than
choosing to follow another judgment which had lost its sheen.

(6) The judgment in Paramjit Singh, if followed now, is going to
create anomalous situation.

 

23. Mr. Nidesh Gupta while adopting the aforesaid submissions, further
pointed out that rule of 80:20 for promotees and direct recruits was only
a quota rule and not a rota 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 counter-affidavit 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 constituting a service, to provide for
recruitment to it from more than one source and also to reserve
quota for each source. As a logical corollary, it would equally be
open to the Government to provide for seniority rule related to
rotation of vacancies. Shortly this is called quota rule of
recruitment and rota rule of seniority interlinking them. So far
there is no controversy. The contention of the petitioners is that
in implementing this rule there has been such large scale deviation
that it results in denial of equality to the members of the service
similarly circumstanced. It will be presently demonstrably
established that where rota rule of seniority is interlinked with
quota rule of recruitment, and if the latter is unreasonably
departed from and breaks down under its own weight, it would be
unfair and unjust to give effect to the rota rule of seniority. To
some extent this is not res integra. Though some advance has been
made on this proposition in later decisions.
23. Now turning to the impugned seniority lists, what the Union
of India appears to have done is that it has applied the quota and
rotated the vacancies but where candidates from a particular source
were not available, the vacancies were deemed to be kept open (some
kind of carry forward) to be filled in by later recruitment from
the same source years after the vacancy occurred, but in the
meantime the vacancy was filled in presumably by excess recruitment
from the other sources. That is clearly either non-implementation
of the quota rule or malfunctioning of the quota rule and yet the
rota rule is adhered to which is both impermissible under the Rules
as well as unjust, unfair and inequitous being violative of
Articles 14 and 16.
25. The language of Rule 13(1) appears to be mandatory in
character. Where recruitment to a service or a cadre is from more
than one source, the controlling authority can prescribe quota for
each source. It is equally correct that where the quota is
prescribed, a rule of seniority by rotating the vacancies can be a
valid rule for seniority. But as pointed out earlier if the rule of
seniority is inextricably intertwined with the quota rule and there
is enormous deviation from the quota rule, it would be unjust,
inequitous and unfair to give effect to the rota rule. In fact as
held in O.P. Singla case giving effect to the rota rule after
noticing the enormous departure 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 portion of the judgment and B.S.Yadav argued that the
said judgment is based on the interpretation which was to be given to Rule
8 of Punjab Superior Judicial Service Rules, 1963. He further stressed that
when Paramjit Singh is specifically taken note in B.S.Yadav and not
overruled, it would mean that the said judgment is in fact upheld by the
Constitution Bench. It was also argued that the promotees were not even
appointed to the substantive vacancies and therefore cannot take advantage
of their so called continuous service rendered in temporary post of DSPs.
He, concluding his argument with emphatic plea that the peculiar situation
which prevailed qua this particular Service rightly led the High Court to
follow the dicta of Paramjit Singh giving sufficient justifiable reasons in
support.

25. Mr. Gurminder Singh, Sr. Advocate, appeared for some other private
respondents in these appeals. He also endeavoured to bring home the
different situation under which Paramjit Singh and B.S.Yadav cases were
decided. His submission was that even if Paramjit Singh was to be confined
to its own facts, the solution therein was valid in so far as this very
Service is concerned. As the present case also related to same Rules and
same Service, there was no illegality in following Paramjit Singh. He
further submitted that the reason for bunching, which had taken place in
the instant case, was direct recruits were not appointed at time and the
vacancies remained unfilled for long period. In fact between 1971 and 1985
there was no recruitment under this quota. He also mentioned that Rules
were again amended in the year 2010 i.e. w.e.f. 18.8.2010. With the
amendment of Rule 10, now length of service is the criteria. He referred to
orders of confirmation dated 19.12.2011 and submitted that this was the
most equitable solution which could be achieved by the Government.
Therefore, there was no reason to interfere with the exercise which had
been accomplished on the basis of the Expert Committee’s report and to
which the High Court in given its imprimatur in the impugned judgment.

26. Mr. Khanna who appeared on behalf of the State Government submitted
that the stand of the Government was very clear, namely, quota was
maintained on the cadre strength. He also submitted that the State had no
other alternative except to follow dicta in Paramjit Singh which gave
interpretation to Rule 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
it. The Court was of the opinion that to save rule 10 from the vice of
the arbitrariness and to avert the situation of striking down the same, it
would be appropriate to interpret the said Rule 10 to mean that rule of
quota shall apply not only at the time of appointment but at the time of
confirmation also and confirmation was to be done on the basis of
vacancies. This was achieved in the manner stated in para 14 of the said
judgment which reads that:

“It 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 break down 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 [pic]accentuated when recruits from one source, to wit,
in this case direct recruits get automatic confirmation on
completion of the probationary period while the promotees hang
out for years together before being confirmed. In Mervyn Coutinho
case this Court in terms said that rotational system of fixing
seniority meaning thereby confirmation followed by seniority does
not offend equality of opportunity in Government service and
recruitment not following the fixed quota rule need not be a
ground for doing away with rotational system.”
29. The appellants’ argument is that this principle is totally discarded
by the subsequent Constitution Bench judgment in the case of B.S.Yadav
wherein it is held that the rule of quota applicable 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 discussed by the Constitution Bench in para 71, as
under:

“71. In Paramjit Singh Sandhu v. Ram Rakha it was held by this
Court on a harmonious reading of Rules 3, 4, 6, 8, and 10 of the
Punjab Police Rules, 1959 that the quota rule was operative both at
the time of initial recruitment and at the time of confirmation. We
would like to clarify that this case is not an authority for the
proposition that whenever service rules provide for quota, the rule
of rota must be read into the rule of quota. We are not laying down
that the rules of quota and rota cannot coexist. Service rules may
so provide or they may yield to such an interpretation. In that
event, their validity may have to be tested in the total setting of
facts. Therefore, whether the quota system has to be observed not
only at the stage of initial recruitment but also at the stage of
confirmation is not a matter of abstract law but will depend on the
wording of the rules and the scheme of the rules under
consideration. Any dogmatic assertion, one way or the other, is
wrong to make. On a review of these authorities, all that we would
like to say is that on a proper interpretation of the rules
governing the Punjab and Haryana Superior Judicial Service, the rule
of rota cannot be read into the rule of quota. In other words, the
ratio of 2 : 1 shall have to be applied at the stage of recruitment
but cannot, on the language of the relevant rules, be applied at the
stage of confirmation.”

 

32. From the reading of the aforesaid extracted portion, it follows that
the Court made it clear that it was not laying down that rule of quota and
rota cannot go exist. Service rules, in a particular case may specifically
provide the co-existence of quota and rota. There may also be a situation
where service rules be interpreted as such. That is a very important
comment made by the Constitution Bench after taking note of the ratio in
Paramjit Singh’s case. It is specifically noted how the Court on harmonious
reading of Rules 3,4,6,8 and 10 of these 1959 Rules had come to the
conclusion that quota rule was operative both at the time of initial
appointment and at the time of confirmation. After taking note of this
ratio on the harmonious interpretation of the Rules in question, rather
than stating that such an interpretation was impermissible or wrongly
given, the Constitution Bench clarifies that there may be 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 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 proceeding to make recruitment keeping in
view of the quota.

34. It was argued by the learned counsel for the respondent that the
language of the rules that interpreted in B.S.Yadav (supra) viz. the Punjab
Judicial Service Rules 1963, are different from Punjab Police Rules 1959.
It is not even necessary to go into this aspect minutely, inasmuch as from
the above discussion it becomes clear that the judgment in Paramjit Singh
is not overruled by B.S.Yadav either impliedly or specifically. It also
cannot be said that Paramjit Singh’s case is per in curium nor was it
argued. Once, we go by the ratio of that judgment, the seniority being
dependent upon the date of confirmation made it necessary to introduce the
roster by giving four vacancies to promotees and the five vacancy to the
direct recruit and adhere to the same strictly to bring it in consonance
with justice and reason.

35. The learned senior counsel appearing for the appellants have tried to
argue that if the aforesaid rule is followed it would act to the prejudice
of the appellants. The appellants are the promotees. It was at the
instance of this very class viz. promotee officers in the same service who
had questioned the validity of the Rule 10, this Court was provoked to
decide that the quota rule had to be applied not only at the stage of
initial recruitment, but also at the stage of confirmation. It is strange
that when another set of promotees now feel that the aforesaid
interpretation rendered in favour of their own class, is not conducive to
them and the outcome is to their prejudice, they want the Court to take a
‘U’ turn. Such a situation cannot be countenanced as it would be anathema
to the principle of doctrine of stare decisis. Moreover, once we find that
the B.S.Yadav does not overrule Paramjit Singh and rather explains and
approves that judgment, the High Court had no option but to follow Paramjit
Singh, as well as the coordinate Bench of this Court.

36. Notwithstanding the above, it would be appropriate to point out 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 either schooling and/or nor born
in the cadre. If the appellants were to be pushed down, it would
cause great hardship to them. We are unable to subscribe to this
contention because if there is patent violation of the quota rule,
the result must follow and the appellants who remained in the
office for all these years cannot take the advantage of this
situation. This submission is, therefore, devoid of any
substance.”
37. The operation of the Rules may result in harsh consequences as far as
appellants are concerned. But on the vagaries of such outcomes, the Court
cannot keep on interpreting a rule differently. It is more especially when
the promotees being in excess of their quota have enjoyed the fortuitous
appointment beyond their quota of vacancies.

38. Likewise, argument of the appellants that the quota rule had broken
down would not cut much ice. First of all, such an argument was not even
raised/pleaded, nor any material was placed on record which shows that the
adherence to the quota rule as possible leading to break down of the quota.
Private respondents have made fervent plea that as a matter of record
whenever State Government had endeavoured to make direct recruitments,
vacancies had been duly filled with adequate number of candidates.
Therefore, for want of any material no definite findings can be recorded on
this aspect, more so, such a case was not pleaded before the High Court.
May be, because of such situation recurring time and again either in favour
of the promotees or in favour of the direct recruits, the Government has
remedied the situation by amending the rules thereby bringing the rule of
continuous length of service for determining the seniority. It is always
open to the Government to take such steps for the benefit of all in the
service and to ensure that the result is equitable. However, in the instant
case, we do not find fault with the judgment of the High Court.

39. We, accordingly, hold that the approach of the High Court in
following the dicta laid down in Paramjit Singh was perfectly justified.
Finding no merit in these appeals, the same are hereby dismissed. No costs.

…………………………………..J.
(Surinder Singh Nijjar)
………………………………….J.
(A.K.Sikri)
New Delhi,
Dated: May 07, 2014

 

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