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PETITIONER: JIT SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT13/02/1979

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. DESAI, D.A.

CITATION:  1979 AIR 1034            1979 SCR  (3) 194  1979 SCC  (3)  37  CITATOR INFO :  O          1990 SC 857  (9,10,11)

ACT:      Punjab Police  Service Rules,  1959-Rules 6  & 14-Scope of.

HEADNOTE:      The proviso to r. 6 of the Punjab Police Service Rules, 1959 relating  to the  appointment to  the higher  posts  of Deputy Superintendents  of Police  provided that  only those inspectors would  be eligible  for promotion who had got six years’  continuous   service   (officiating   as   well   as substantive) in the rank of inspector. Sub-rule (2) required that a list (called List ’G’) of officers considered fit for promotion to  the rank of Deputy Superintendent of Police be prepared by  the State  Government in  consultation with the State Public  Service Commission  and appointments  shall be made by promotion from persons brought on that list. In view of an urgent need to make a number of appointments of Deputy Superintendents of  Police, an executive order was issued in 1965 reducing  the period of six years continuous service to four years. Respondents 4 to 37 were accordingly promoted on an ad  hoc basis  as officiating  Deputy Superintendents  of Police. The  first list  ’G’ prepared in term of r. 6(2) was sent for  approval of the Service Commission on 7th January, 1966  and   in  September,  1966  a  supplementary  list  of inspectors who  had completed  four years’ service after 7th January, 1966  was sent  to the  Commission. Both  the lists were  eventually  approved  by  the  Service  Commission  in September, 1970.      The appellants who were appointed as inspectors in May, 1963 were  confirmed in May, 1966 and completed six years of service in  May, 1969.  Their names  were  not  included  in either the  first or  the supplementary list ’G’ sent by the State Government to the Service Commission whereas the names of respondents 4 to 37 found a place in the list.      In rejecting  the appellants’  writ petition  the  High Court held  that  they  had  not  qualified  themselves  for inclusion of  their names  in List ’G’ at the time that list was drawn  up by  the State  Government in 1966 because they had not  put in  the requisite  period of  service for being considered for inclusion in it.

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    Dismissing the appeal; ^      HELD  :   1.  The  appellants  were  not  eligible  for inclusion in  List ’G’  prepared in 1966 on the basis of the State  Government’s   recommendation  made  in  January  and September of  that year  because at  the relevant  time only those inspectors  who had  put in  six years  of  continuous service as inspector were eligible for promotion. No further supplement  to  List  ’G’  was  sent  for  the  Commission’s approval after  1966. In  other words  the  final  List  ’G’ related only  to the  year 1966.  The appellants who by then had not  put in even four years’ service could not have been promoted. [199 F, H]      2. Because  of the  extraordinary situation  which  had developed on  the borders of the State, the State Government was driven to the necessity of making some 195 ad hoc or temporary appointments, but it cannot be said that by reason  of this,  the  appointments  so  made  were  made wilfully in  derogation of  the requirements of the rules or were meant to run down the appellants. [200 B]      3.  However,   the  appellants’   argument   that   the relaxation  contemplated   by  r.   14  was   restricted  by considerations of  "undue hardship" in any "particular case" and that  it was not permissible for the State Government to reduce  in  the  case  of  the  respondents  4  to  37,  the requirement of continuous service from six years to four for the purpose  of eligibility for promotion is correct because r. 14 as it stood at the relevant time when respondents 4 to 37 were  promoted did  not permit  any general relaxation of the nature  ordered by the State Government in 1963 or 1965. The amended  r. 14  could not  avail  the  State  Government because it came into force much later in January, 1969. [198 G-H, 199 C]      4. The argument that only those inspectors who had been confirmed as  inspectors and  held that  post  substantively were eligible  for promotion  is not correct. To accept that would only  mean that an inspector who had put in six years’ officiating service  would not  be eligible for promotion if he had  not been  confirmed. All  that proviso  (a) to  r. 6 permits is  that, in  order to be eligible for promotion, an inspector should  have got  six years  "continuous" service, including service  in an  officiating as well as substantive capacity. [198 C-D]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1849 of 1972.      Appeal by  Special Leave  from the  Judgment and  Order dated 10-11-1970  of the Punjab & Haryana High Court in C.W. No. 2547 of 1970.      Y. S. Chitale and Mrs. Urmila Sirur for the Appellant.      Hardev Singh  and R.S. Sodhi for Respondents Nos. 2 and 3.      The Judgment of the Court was delivered by      SHINGHAL, J.  This appeal  by special leave is directed against the  judgment of  the Punjab  and Haryana High Court dated November  10, 1970,  by which the writ petition of the appellants was  dismissed on  the ground that the promotions challenged by  them were  made on  the basis  of list "G" of 1966 when  they had  not qualified  for  promotion.  It  has therefore to be examined whether that view of the High Court is incorrect in the facts and circumstances of the case.

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    A list  of dates  bearing on  the controversy  has been furnished by  Mr. Y.  S. Chitale,  learned counsel  for  the appellants, and we have been told by the learned counsel for the respondents  that it  is correct. The facts which emerge from that  list may  be stated  briefly for  learned counsel agree that they are quite sufficient for the disposal of the appeal 196      All the  three appellants  were appointed Inspectors of Police, by  direct  recruitment,  on  May  21,  1963,  on  a probationary period  of three years. At that time the Punjab Police Service  Rules, 1959.  hereinafter referred to as the Rules, were  in force,  providing  for  appointment  to  the higher post  of Deputy Superintendent of Police For purposes of this  appeal, it will be sufficient to say that rule 6 of the Rules  provided that  recruitment to  the Punjab  Police Service, consisting  of the  cadre of Deputy Superintendents of Police,  shall be  made by  promotion to  the  extent  of eighty percent from the rank of Inspector and twenty percent by direct  appointment. That was subject to the proviso that only those  Inspectors would  be eligible  for promotion who had put  in six years continuous service. It appears that as there  were   many  vacancies   in  the   posts  of   Deputy Superintendents of  Police,  the  State  Government  took  a decision on August 21, 1963, that the minimum requirement of six years  continuous service  for eligibility for promotion may be  reduced to  four years if about fifty percent of the vacancies were  to be  filled in  any year; and an executive order to that effect was issued some time in 1965 under rule 14 of  the Rules  as it stood until its amendment on January 28, 1969.  The State  Government  accordingly  promoted  the respondents   Nos.   4   to   37   as   officiating   Deputy Superintendents of  Police on  ad hoc  basis. As  it was the requirement of  sub-rule (2)  of rule  6 of  the Rules  that appointments by  promotion would  be  made  from  Inspectors "brought on  list ’G’  which will  be  a  list  of  officers considered  fit   for  promotion   to  the  rank  of  Deputy Superintendent  of   Police,  prepared   by  Government   in consultation with  the Commission,"  a list  was prepared by the State Government and it was sent for the approval of the Public Service Commission on January 7, 1966. The appellants were confirmed  as Inspectors  on September  10,  1966  with retrospective effect  from May 21, 1966. The Government took up the  question of  regularising the  ad hoc  promotions of respondents Nos.  4 to  37 pending the approval of the draft list  ’G’  by  the  Commission.  A  supplementary  list  was prepared of  Inspectors who had completed four years service after January  7, 1966, and it was sent to the Commission on September 29,  1966. Before  the two lists could be examined by the  Commission, the State of Punjab was reconstituted on November 1,  1966. The Commission thereupon sent a letter on December 30,  1966, to  the  Inspector  General  of  Police, asking for  information about  the allocation  of the police officers to  the  reorganised  States  and  for  information regarding the  vacancies which  remained to be filled in the State. The  Inspector General  of Police  sent  a  reply  on February 8,  1967. The  appellants completed  four years  of continuous service  on May 21, 1967. While the aforesaid two lists of 197 1966 were pending with the Commission for the preparation of list ’G’,  the State Government substituted a new rule 14 on January 28,  1969. The  appellants completed  six  years  of service on May 21, 1969. The Public Service Commission asked for a  seniority list  of Inspectors  some time in 1970, and

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ultimately approved  the list  ’G’  on  September  7,  1970, consisting of the names in the two lists which had been sent by the  State Government  in 1966.  The names of respondents Nos. 4  to 37 were thus included in that list but it did not contain the names of the appellants. They felt aggrieved and filed a  writ petition  in the High Court in September 1970, but it was dismissed by the High Court on November 10, 1970, as aforesaid.  That is  why they  have come  up in appeal to this Court by special leave.      Before examining the arguments which have been advanced before us,  it will  be proper  to make a brief reference to the salient  points mentioned  in the  reply  of  the  State Government. It  was stated  there that  a  large  number  of vacancies occurred in the cadre of Deputy Superintendents of Police because several battalions of the Police force had to be  sent   to  the  Punjab-Pakistan  border  and  it  became necessary for  the State  Government to fill those vacancies immediately. The  State Government  had therefore, to reduce the minimum requirement of six years service for eligibility to appointment  to the  post  of  Deputy  Superintendent  of Police to  four years.  The State  Government mentioned  the circumstances in  which it  had to  send two  lists  to  the Commission in  1966 for  the preparation of list ’G’ and its ultimate approval  by the  Commission on  September 7, 1970. The lists,  it was pointed out, were prepared as in 1966, by which date  the appellants  had  not  completed  four  years service as  Inspectors. That,  according to the respondents, was the  reason why their names could not be brought on that list.  It  was  categorically  stated  that  no  names  were recommended for  inclusion in  that list  during  the  years 1967,  1969   and  1970,  and  that  the  assertion  of  the appellants to the contrary was incorrect.      It is  in the  light of  these facts  and circumstances that we shall examine the arguments which have been advanced before us  by the  learned counsel  for the  appellants. The main controversy  is that  relating to  the meaning  and the application of  rule 6(1)  of the  Rules which  provides  as follows,-           "6. Method  of recruitment.-(1) Recruitment to the      Service shall be made-      (i)  Eighty per  cent by  promotion from  the  rank  of           Inspector  and   twenty   per   cent   by   direct           appointment: 198           Provided  that   only  those  Inspectors  will  be      eligible for promotion who-                (a)  in the case of Inspectors (both promoted                     from  subordinate   rank  and   directly                     recruited) have got six years continuous                     service   (officiating    as   well   as                     substantive) in  the rank  of Inspector:                     and" We are  not concerned  with part  (b) of  the proviso  as it relates to the promotion of Prosecuting Inspectors.      It has  been argued  that only  those  Inspectors  were eligible for  promotion as  Deputy Superintendent  of Police who had  been confirmed as Inspector and held that post on a substantive basis.  A reading  of part  (a) of  the  proviso shows however  that  it  cannot  be  said  to  restrict  the eligibility for promotion only to the substantive holders of the post of Inspector. All that it permits is that, in order to be eligible for promotion, the Inspectors should have got six years  "continuous" service,  including  service  in  an officiating  as   well  as   substantive  capacity.  We  are therefore unable  to think  that an Inspector who had put in

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six years officiating service was not eligible for promotion as Deputy Superintendent of Police.      It has  next been  argued that  the requirement  of six years service  could not  be relaxed by the State Government on August  21, 1963,  or thereafter in 1965, because rule 14 of the  Rules as  it stood until its substitution on January 28, 1969, read as follows,-           "Where  the   Government  is  satisfied  that  the      operation of  any of the rules causes undue hardship in      any particular case, it may, by order, dispense with or      relax the  requirement of  that rule to such extent and      subject to such conditions as it may consider necessary      for dealing  with the  case in  a  just  and  equitable      manner, provided  that the  case is not dealt with in a      manner less  favourable to  the person  concerned  than      provided by the relevant rule." It has therefore been urged that the relaxation contemplated by that  rule was  restricted by  considerations  of  "undue hardship", in  any "particular  case", and  that it  was not permissible  for   the  State   Government  to   reduce  the requirement of  continuous service  from six  years to  four years for  purposes of  eligibility  for  promotion  to  the Punjab Police  Service. The argument is correct because rule 14  as  it  stood  at  the  relevant  period  of  time  when promotions of  respondents (Nos. 4 to 37) were made, did not permit any general relaxation of the 199 nature ordered  by the  State Government in 1963 or 1965. It is true that rule 14 was amended and a new rule was inserted on January 28, 1969, to the following effect-           "7.  General   power  to  relax  rules.-where  the      Government is  of the  opinion that  it is necessary or      expedient so to do, it may, by order, for reasons to be      recorded in  writing, relax  any of  the provisions  of      these rules  with respect  to any  class or category of      persons." That was  a rule of general application, and it appears that there is  justification for  the  argument  of  the  learned counsel for  the respondents that it could not authorise the kind of relaxation which was made by the State Government in 1963 and  in 1965,  but the  fact remains  that it could not avail the  State Government  as the new rule came into force much later  on January  28, 1969.  It would thus follow that the respondents  were not eligible for promotion because the relaxation which  was ordered  in  1963  and  1965  was  not warranted by  the old  rule 14 as it stood at that time. The question  however   remains  whether  the  appellants  could possibly succeed in their appeal before us for that reason.      While examining this aspect of the matter we shall have regard to  the requirement of rule 6, as it stood before its amendment on  January 28,  1969 and disregard the relaxation orders of  1963 and  1965 as  they were not warranted by the provisions of  that rule.  And as  that rule  made  a  clear provision that  only those  Inspectors would be eligible for promotion who  had  got  six  years  continuous  service  as Inspectors, it  would follow  that the  appellants were  not eligible for  promotion until  May 21, 1969 as they had been appointed only  on May  21, 1963.  In other words, they were not eligible  for inclusion  in list ’G’, which was prepared under sub-rule  (2) of rule 6, as it was prepared in 1966 on the basis  of the  State Government’s  recommendations dated January 7,  1966, and September 29, 1966. It may be recalled that the  State Government  have categorically  stated  that they did  not send any list thereafter, for the Commission’s approval.  We  have  made  a  reference  to  the  facts  and

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circumstances in  which  the  Commission  did  not  find  it possible to  finalise list  ’G’ until  1970,  but  the  fact remains that the list contained names upto the year 1966. In other words,  the final  list ’G’  related only  to the year 1966, and  as the  appellants had not put in even four years of service  by then,  what to  say of  six years  service in terms of clause (a) of the proviso to sub-rule (1) of rule 6 of the  Rules, their names could not possibly be included in that list.  When that  was so,  they  could  not  have  been promoted as Deputy Superintendent of 200 Police because  that was  the basic  requirement of sub-rule (2)  of   that  rule.  We  have  made  a  reference  to  the circumstances in  which the  State Government  was driven to the necessity  of making some ad hoc or temporary promotions because of  the extraordinary  situation which had developed on the border of the State, and as it was the Public Service Commission which  delayed the  finalisation of  list ’G’, it cannot  be   said  that  the  ad  hoc  appointments  of  the respondents  were   wilfully  made   in  derogation  of  the requirement of  the Rules,  or were  meant to  run down  the appellants. In  fact,  as  has  been  explained  above,  the appellants were, in any view of the matter, not eligible for promotion as their names were not included in list ’G’ as it emerged from the Public Service Commission in 1970. The High Court therefore cannot be blamed if it took the view that as the appellants had not qualified for promotion when list ’G’ was drawn up by the State Government in 1966, they could not succeed in their claim in the writ petition. Their names did not appear  in list ’G’ which was approved by the Commission in 1970,  whereas the  names of  respondents Nos.  4  to  37 appeared in  it and  it is  not in dispute that they had all completed  6  years’  continuous  service  much  before  the appellants. The  appellants have  not therefore been able to show that  they had any legal right for promotion before the respondents.      There is thus no force in the arguments which have been advanced by  the learned  counsel for the appellants and the appeal is  dismissed. In  the circumstances  of the case, we shall leave the parties to bear their own costs. N.V.K.                                     Appeal dismissed. 201