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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: FATEH CHAND SONI

DATE OF JUDGMENT12/12/1995

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) G.B. PATTANAIK (J)

CITATION:  1996 SCC  (1) 562        JT 1995 (9)   523  1995 SCALE  (7)168

ACT:

HEADNOTE:

JUDGMENT:   [WITH Civil Appeals Nos. 4312 of 1994 and 4313 of 1994]                       J U D G M E N T S.C. AGRAWAL, J. :      The common  question which  falls for  consideration in these appeals is whether seniority in the Selection Scale in the Rajasthan Police Service (for short ‘the Service’) is to be fixed  on  the  basis  of  date  of  appointment  to  the Selection Scale  or on  the basis of seniority in the Senior Scale irrespective  of the date on which appointment is made to the Selection Scale.      Recruitment to  the posts in, and conditions of service of persons  appointed to  the Service  is  governed  by  the Rajasthan Police  Service Rules,  1954 (hereinafter referred to as  ‘the Rules’).  Originally, the  Service consisted  of posts in  the Ordinary  Time Scale  and Posts  in the Senior Scale as  indicated in  Schedule I  to the  Rules.  In  1966 Schedule I  to the Rules was amended and out of the posts in Senior Scale  3 posts  were kept  for officers  drawing  pay personally in  Selection Grade.  In 1974 the number of posts in the  Selection Scale  was increased  to 14 and in 1978 it was increased  to 19.  In 1985 the said number was increased to 30.  By virtue  of notification  dated April  19/20, 1988 issued under  Rule 6  of the  Rules the posts in the Service fall in  four scales,  viz.,  junior  scale,  Senior  Scale, Selection Scale  and superintendent  scale.  The  number  of posts in the Selection Scale was reduced from 30 to 22 and 8 posts were placed in the Super Time Scale.      Km. Badam  Bairwa and  Hari Ram  Meena  (appellants  in Civil  Appeal  No.  4313  of  1994)  and  Fateh  Chand  Soni (respondent No.1  in the  appeals) were all appointed to the Service by  direct recruitment  and  were  promoted  to  the Senior Scale.  In the  Senior Scale  respondent  No.  1  was senior  to   the  said   appellants.   On   the   basis   of recommendations made  by the Selection Committee constituted under Rule  32 of  the Rules all these three appellants were

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promoted to  Selection Scale  by order dated April 27, 1989. The said appointment of these appellants was on the basis of seniority-cum-merit. The  said order  dated April  27, 1989, has been  described as promotion order. Km. Badam Bairwa and Hari Ram  Meena were  appointed to  the Selection  Grade  on posts reserved  for the  Scheduled Castes  and the Scheduled Tribes. Respondent  No. 1  was appointed  to  the  Selection Scale by order dated January 24, 1991. In the Seniority List dated June  30, 1990  seniority in  the Selection  Scale was fixed on  the basis  of date of appointment to the Selection Scale. Feeling aggrieved by the fixation of the seniority in the said  seniority list  in  respect  of  Selection  Scale, respondent No.  1 filed  a Writ  Petition (C.W.P. No.3939 of 1991) in the Rajasthan High Court at Jaipur Bench wherein he challenged the  seniority list dated June 30, 1990 in so far as it  related to  the seniority  in the Selection Scale and sought a  direction for  maintaining the  seniority  of  the incumbents of  the Senior  Scale even after the grant of the Selection Scale. Respondent No. 1 also assailed the validity of Rule  8 of  the Rules  as well  as the reservation policy dated February  10, 1975  and the  100 point  roster  system dated July 9, 1985 as being ultra vires Article 16(4) of the Constitution.      The said  Writ Petition  filed by  respondent No. 1 has been allowed  by the  High Court  by the  impugned  judgment dated September 21, 1993. The High Court has held that there is/are no  separate post/posts  in the  Selection Scale  and that grant  of Selection Scale to certain number of officers working in the Senior Scale so as to avoid stagnation and to keep interest of the officers in the Service intact does not involve promotion  in the  eye of  law and  that if, for any reason, a  junior officer  is  granted  Selection  Scale  in preference to his senior, it will not have any impact on the seniority position  and it  will not  affect the position of the officers  who were otherwise senior in the Senior Scale. Since the  High Court  was of  the view  that  there  is  no separate post in the Selection Scale, it did not consider it necessary to examine the validity of Rule 8 of the Rules and the reservation policy and 100 point roster system. The High Court quashed  that seniority  list dated  June 30, 1990 and directed that  the seniority  list be prepared afresh in the light of the decision.      Civil Appeal  No. 4311  of 1994  had been  filed by the State, Civil  Appeal No.  4312 of  1994 had  been  filed  by Kundan Lal Sharma and Civil Appeal No. 4313 of 1994 has been filed by  Km. Badam  Bairwa and  Hari Ram Meena. Prahlad Rai Jawaria was  also one  of the appellants in Civil Appeal No. 4313 of 1994, but, at the time of hearing of the appeal, the learned counsel appearing for the said appellant stated that he does  not wish  to press the appeal on his behalf and the appeal, in  so far  as the  said appellant is concerned, has been dismissed.      Seniority in  the Service is governed by Rule 33 of the Rules. The relevant provisions of the said rule are as under :-      "Rule  33.   Seniority:-  Seniority   of      persons appointed  to the lowest post of      the  Service  or  lowest  categories  of      posts in  each of  the Group/Section  of      the Service,  as the  case may be, shall      be   determined   from   the   date   of      confirmation of  such persons to be said      post but in respect of persons appointed      by promotion  to other  higher posts  in      the Service  or other  higher categories

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    of posts in each of the Group/Section in      the Service,  as the  case may be, shall      be determined  from the  dated of  their      regular selection to such posts.      Provided :-      (i)  X                X                X      (ii) X                X                X      (iii)  That  the  persons  selected  and      appointed as  a result  of a  selection,      which  is  not  subject  to  review  and      revision,  shall   rank  senior  to  the      persons who  are selected  and appointed      as a result of subsequent selection.           Seniority   inter-se   of   persons      selected on  the basis of seniority-cum-      merit and  on the  basis of merit in the      same selection  shall be  the same as in      the next below grade, and      (iv)  X             X                  X      (v)   X             X                 X"      Seniority in the Selection Scale has to be fixed as per the aforesaid provisions contained in Rule 33 if appointment to the  Selection Scale  is treated as promotion from Senior Scale to  Selection Scale.  The High Court has held that the said appointment  cannot be  treated as  promotion  for  the reason that  when an  officer in the Senior Scale is granted Selection Scale,  he  neither  leaves  the  post  which  was already held  by him  nor he  occupies any  new post and the post held  by him remains the same and he starts getting the pay in  Selection Scale  instead of  Senior Scale  which, by itself, cannot  confer a higher status or rank. According to the High Court, the grant of Selection Scale to Senior Scale officers does  not exalt  his status,  rank or honour and an officer  does   not  stand   elevated  to  any  superior  or commanding position  over other  Senior Scale  officers. The High Court  has also  referred to  the fact that the post of Additional Superintendent  of Police  held by  Senior  Scale officers and  officers who  are being  paid in the Selection Scale is  interchangeable and such change or replacement and substitution by  posting and  transfer in  the Service  is a matter of  routine and merely because the Government follows the process  of selection  to identify  the officers to whom the Selection  Scale is to be granted cannot confer a higher status so as to make it a case of promotion.      The High  Court, in  our  opinion,  was  not  right  in holding that  promotion can  only be to a higher post in the service and  appointment to  a higher  scale of  an  officer holding the  same post does not constitute promotion. In the literal sense  the word  "promote" means  "to advance  to  a higher position,  grade, or  honour".  So  also  "promotion" means "advancement  or preferment  in honour, dignity, rank, or  grade".   [See  :  Webster’s  Comprehensive  Dictionary, International Edition,  p. 1009].  "Promotion" thus not only covers advancement  to higher  position  or  rank  but  also implies advancement  to a  higher grade. In service law also the expression  "promotion" has been understood in the wider sense and  it has been held that "promotion can be either to a higher  pay scale  or to  a higher  post". [See : Union of India & Anr. v. S.S. Ranade, 1995 (4) SCC 462 at p. 468].      In Lalit Mohan Deb v. Union of India, 1973 (3) SCC 862, the pay scale of all the Assistants in the Civil Secretariat in  Tripura   was  Rs.  80-180  and  on  the  basis  of  the recommendations of  the Second  Pay Commission  appointed by the Government  of India  the scales were revised and 25% of the posts were placed in the Selection Grade in the scale of

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Rs.150-300 and  the rest  continued in  the old pay scale of Rs. 80-180.  For the  purpose of filling the Selection Grade posts a  test was  held and  those who qualified in the said test were  appointed to  the Selection Grade. The Assistants in the  Selection Grade  and the  Assistants in  the old pay scale were  doing the same type of work. This Court observed that "provision of a Selection Grade in the same category of posts is  not a  new thing"  and that  "a Selection Grade is intended to  ensure that capable employees who may not get a chance  of  promotion  on  account  of  limited  outlets  of promotions should  at least be placed in the Selection Grade to prevent  stagnation on the maximum of the scale" and that "Selection Grades are, therefore, created in the interest of greater efficiency".  The Court  took note  of the fact that the basis  for selection  of some  of the  Assistants to the Selection Grade  scale was  seniority-cum-merit which is one of the  two or three principles of promotion widely accepted in  the  administration  and,  therefore,  the  creation  of Selection Grade  in the  category of Assistants was not open to challenge.  In that  case, the Court had proceeded on the basis that  the appointment  to the higher grade amounted to promotion.      The Rule  governing appointment  to the Selection Scale in  the   Service  also   envisage  that   such  appointment constitutes promotion.  The relevant  provision is contained in Rule  28(A) of  the Rules  which prescribes the criteria, eligibility and  procedure for  promotion to  Junior, Senior and other  posts encadred in the Service. Under sub-Rule (5) of Rule  28(A) promotion from the lowest post or category of post in  the Service  to the next higher post or category of post in  the Service  is required to be made strictly on the basis of  seniority-cum-merit. Sub-Rule  (6) of  Rule  28(A) provides that  selection for  promotion to  all other higher posts or  higher categories of posts in the Service shall be made on  the basis  of merit  and on the basis of seniority- cum-merit in  the proportion of 50:50. Sub-rule (7) reads as under :      "(7).     Selection for promotion to the      highest post/posts  in the State Service      shall always  be made  on the  basis  of      merit alone:      Provided that :-      (a) in  a Service  or Groups or Sections      thereunder, where  there  are  only  two      scale e.g.  junior scale or Senior Scale      and there  is only  one  promotion  then      promotion shall  be made on the basis of      seniority-cum-merit alone.      (b) in  a Service  or Groups or Sections      thereunder, where there are three scales      e.g.  junior  scale,  Senior  Scale  and      Selection  Scale   and  there   are  two      promotions then  promotion shall  be  as      under:-      (i) first  promotion  on  the  basis  of      seniority-cum-merit.      (ii) second  promotion on  the basis  of      seniority-cum-merit  and  merit  in  the      proportion of 50:50.      (c) in  Services or  Groups or  Sections      thereunder, where  there are  more  than      tow  promotions   then  first  promotion      shall be made on the basis of seniority-      cum-merit  alone   and   promotions   to      subsequent higher posts shall be made on

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    the  basis  of  seniority-cum-merit  and      merit in  the proportion of 50:50 except      to the highest post.           Provided  further   that   if   the      Committee  is  satisfied  that  suitable      persons are  not available for selection      by  promotion   to  highest   post/posts      strictly on  the basis  of  merit  in  a      particular year,  selection by promotion      to highest  post/posts on  the basis  of      seniority-cum-merit may  be made  in the      same  manner   as  specified   in  these      Rules."      The  said  provision  (especially  clause  (b)  of  the Proviso)  would   show  that   the  Rules  contemplate  that appointment to  the post  in the  Selection Scale  does  not constitute promotion under the Rules.      The High  Court has  referred to  the decision  of this Court in Dayaram Asanand Gursahani v. State of Maharashtra & Ors., 1984  (2) SCR  703,  wherein,  after  considering  the resolution of  the State  Government sanctioning the post of District Judge  in the  Selection Grade, this Court has held that the said resolution did not indicate that there was any process of  promotion by  selection or  otherwise  from  the cadre of  District Judges  to the  Selection Grade  District Judges. In  the particular  facts of  that case  it was held that mere  nomenclature given  to the  extended pay scale as the Selection Grade pay scale does not lead to the inference that  there   is  an   element  of   selection  involved  in sanctioning it  and that  it should  be treated  as just  an extended pay  scale which  forms part  of the pay scale. The position in  the present  case is,  however, different. Here the Selection  Scale is  a separate  scale  and  is  not  an extension of  the Senior  Scale. Moreover appointment to the Selection Scale  is made  by selection on the basis of merit and seniority-cum-merit in accordance with Rule 28(A) of the Rules.      It must,  therefore, be  concluded that  appointment to the Selection Scale of an officer in the Senior Scale in the Service constitutes promotion and seniority in the Selection Scale has  to be  fixed in  accordance with  Rule 33  of the Rules on  the basis  of the  date of  selection and a person selected and  appointed as  a result of an earlier selection would rank  senior to a person who is selected and appointed as a  result of a subsequent selection. Since the appellants were  selected   and  appointed  on  the  basis  of  earlier selection in  1989 while  respondent No.  1 was selected and appointed on  the basis  of a  subsequent selection in 1991, the appellants  would rank senior to respondent No. 1 in the Selection Scale.  The direction  given by the High Court for revising the seniority list of the officers in the Selection Scale of  the Service on the basis of their seniority in the Senior Scale  cannot, therefore, be upheld and has to be set aside. The  seniority of  officers in the Selection Scale of the Service  has to  be fixed as per Rule 33 on the basis of date of selection.      Shri R. Mohan, the learned senior counsel appearing for the respondent  No. 1,  has agitated  the question regarding the  validity   of  Rule  8  dealing  with  reservation  for Scheduled Castes and Scheduled Tribes and has submitted that such reservation  in the  matter of  promotion to the higher post is  impermissible in view the decision of this Court in Indira Sawhney  & Ors.  v. Union of India & Ors., 1992 Supp. (3) SCC 217. The said contention cannot be accepted since in Indira Sawhney  (supra) this  Court has  indicated that  the

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existing provisions  providing for  reservation can continue to operate  for a  period of five years from the date of the said decision.      Shri  Mohan  has  also  submitted  that  provision  for reservation for Scheduled Castes and Schedules Tribes can be made only  against  posts  in  the  cadre  and  not  against vacancies and  that under  Rule  8  of  the  Rules  and  the Reservation Policy and the 100 point roster such reservation is made  on the basis of vacancies and that Km. Badam Bairwa and Hari  Ram Meena  have been  promoted  against  vacancies reserved for  the Schedules Castes and the Scheduled Tribes. Shri Mohan  has placed  reliance  on  the  decision  of  the Allahabad High  Court in J.C. Malik & Ors. v. Union of India & Ors.,  1978 (1)  SLR 844  which has  been approved by this Court in  R.K. Sabharwal  v. State  of Punjab,  1995 (2) SCC 945. We  find no  merit in  this  contention.  In  his  writ petition respondent  No. 1  has not challenged the promotion of Km.  Badam Bairwa  and Hari  Ram Meena  to the  Selection Scale and  therefore, this  contention about  the basis  for reservation does  not fall  for consideration  in this case. Moreover in  R.K. Sabharwal  (supra) this Court has directed that the interpretation given by the Court about the working of the  roster and  the findings  on  this  point  shall  be operative prospectively  which means  that actions that have been taken  prior to  the decision in R.K. Sabharwal (supra) cannot be  assailed on the basis of the law laid down in the said decision.      For  the   reasons  aforementioned,   the  appeals  are allowed, the  judgment of  the Rajasthan  High  Court  dated September 21,  1993 is set aside and the Writ Petition filed by respondent  No. 1  is dismissed. But in the circumstances there is no order as to costs.