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CASE NO.: Appeal (civil)  4325 of 2006

PETITIONER: Arun Kumar & Ors

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 03/04/2007

BENCH: Dr. Arijit Pasayat & S.H. Kapadia

JUDGMENT: J U D G M E N T

KAPADIA, J.

A short question which arises for determination in this  civil appeal is whether the State Government could have  invoked Rule 14 of the Punjab Police Service Rules, 1959   (dealing with the power of relaxation) when there was no  provision in the said Rules for absorption of Deputationists on  permanent basis from Central Reserve Police Force ("CRPF")   in Punjab Police Service.

       The facts giving rise to this civil appeal are as follows.         Shri Avinder Singh Brar, IPS was killed by the terrorists.  He was an officer in the Punjab Police Service. On account of  the above incident, his sister, Ms. Amrit Brar-respondent no.  4, stood appointed on 9.6.1989 as Assistant Commandant in  CRPF on probation for two years. She was appointed in CRPF  under above tragic circumstances. She was the only child of  her parents. She was appointed in CRPF as her assignment  was relatively safer in CRPF than in Punjab Police Service.  These facts are important since they show that the  appointment of respondent no. 4 was not compassionate but  as an exception. Her appointment was to be governed by CRPF  Rules. She completed here probation on completion of two  years. On 16/17.8.1993, Ms. Amrit Brar was appointed on  deputation to the post of Superintendent of Police (SP) in  Punjab Police. She retained her lien as Assistant Commandant  in CRPF till 11.9.1998 when she was absorbed as DSP in  Punjab Police. She was allowed all benefits including pay and  seniority from 9.6.1989. In between, Ms. Amrit Brar was  promoted to the post of Deputy Commandant in CRPF in  March, 1995.  The appellants herein are officers of Punjab Police  Service. Some of the appellants are recipients of the  President’s medal for gallantry for having fought terrorism in  the State of Punjab. The appellants challenged the orders of  the State Government in the Punjab and Haryana High Court  granting absorption to Ms. Amrit Brar, particularly on the  ground that the Punjab Police Service Rules did not  contemplate absorption of a deputationist from CRPF. The  appellants challenged the absorption on the grounds that     Ms. Amrit Brar was granted benefit of compassionate  appointment as Assistant Commandant in CRPF in 1989 and,  therefore, she was not entitled to double benefit of  compassionate absorption in 1998 and that too from 9.6.1989.  The appellants’ main grievance before the High Court was that

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giving the benefit of seniority to Ms. Amrit Brar from 9.6.1989  would make her senior to almost ten other officers. According  to the appellants, the consequences of seniority being given to  Ms. Amrit Brar would mean supersession of the appellants.  According to the appellants, Ms. Amrit Brar stood appointed to  Class I post in the CRPF as Assistant Commandant on  compassionate ground and, therefore, there was no cause for  second exercise of this power by the State Government after  almost nine years. The appellants further submitted before the  High Court that there were many officers on deputation with  Punjab Police Service from various Para Military Forces,  including CRPF, most of whom had come on deputation even  prior to Ms. Amrit Brar. Appellants further contended before  the High Court that, in fact, the State Government had  notified Punjab Absorption of Officers of Para Military Forces  (Group A) Service Rules, 2005 and under the said Rules, the  State Government had created ex-cadre posts for absorption of  Para Military Forces officers, who were on deputation with the  State of Punjab and who were to be absorbed in Punjab Police  Service. According to the appellants, if the benefit of seniority  was to be given to Ms. Amrit Brar from 9.6.1989 then even in  the matter of absorption she would supersede a number of  other officers.

       By the impugned judgment dated 24.1.2006, the High  Court dismissed CWP No. 11548/96 filed by the appellants  herein. One of the main grounds urged by the appellants  before the High Court was that regularization of the services of  Ms. Amrit Brar with effect from 9.6.1989 and absorption of a  deputationist in Punjab Police Service would amount to  creation of a separate Method of Recruitment. According to the  appellants, under the said Rules there were only two sources  of recruitment, 80% is by promotion and 20% is by direct  recruitment. This contention was rejected by the High Court  saying that the word(s) "direct appointment" in the said Rules  would include appointment by deputation and, therefore, Rule  14 was applicable to the present case. Aggrieved by the  decision of the High Court, the appellants have come to this  Court by way of the present civil appeal.

       On behalf of the appellants, it was urged that the State  Government had violated the appellants’ fundamental rights  under Articles 14 and 16(1) of the Constitution of India by  reason of absorption of Ms. Amrit Brar as Deputy  Superintendent of Police with effect from 9.6.1989. According  to the appellants, Ms. Amrit Brar was appointed on  compassionate grounds in CRPF as an Assistant Commandant  and she retained her lien in CRPF till she stood absorbed in  Punjab Police Service on 11.9.1998. According to the  appellants, Ms. Amrit Brar was even given promotion in CRPF  from the post of Assistant Commandant to the post of Deputy  Commandant. According to the appellants a number of  concessions were given to respondent no. 4. Ms. Amrit Brar  was appointed in 1989 as Assistant Commandant in CRPF on  compassionate ground; that her post in Punjab Police was  taken out of the purview of Public Service Commission vide  Government’s Order dated 13.10.1997 and that even the rules  of competitive examination were relaxed. According to the  appellants,         Ms. Amrit Brar was not entitled to the double  benefit of appointment in CRPF on compassionate grounds  and absorption in Punjab Police Service again on  compassionate grounds. According to the appellants,  deputation is not a source of recruitment in Punjab Police  Service. According to the appellants, the effect of the  impugned judgment was to open one more source of

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recruitment which is not provided for under Punjab Police  Service Rules, 1959 ("1959 Rules"). According to the  appellants, CRPF in its activities is confined to law and order  whereas Punjab Police functions require crime detection, in  addition to policing. Moreover, according to the appellants, Ms.  Amrit Brar had not undergone that required training.  According to the appellants, even ACRs.  were not scrutinized  when Ms. Amrit Brar was taken on deputation in Punjab  Police Service on 16/17.8.1993. According to the appellants,  CRPF personnel are governed by CRPF Rules. They are not  governed by the said Punjab Police Service Rules, 1959. Under  the said 1959 Rules, the State Government has not even  maintained ACRs. of Ms. Amrit Brar between 16/17.8.1993  and 11.9.1998. The reason being that Ms. Amrit Brar had a  lien to a post in CRPF. It is for this reason that Ms. Amrit Brar  stood promoted to the post of Deputy Commandant on the  basis of ACRs. given in March, 1995. Therefore, her entire  service record during the above period was governed by the  CRPF Rules and, consequently, her absorption in Punjab  Police was without authority of law and in violation of  appellants’ fundamental rights under Article 14 read with  Article 16(1) of the Constitution of India, particularly in view of  the Government conferring the benefit of seniority on her with  effect from 9.6.1989.

       On behalf of the State Government, it was urged that  under Punjab Police Service Rules, 1959 the Method of  Recruitment has been provided. Under the said 1959 Rules,  there are two sources of recruitment. The sources include  direct recruitment. It was urged on behalf of the State  Government that the words ’direct recruitment’ in the said  1959 Rules has been defined to mean appointment by any  mode. According to the respondents, a deputationist would  come within the definition of direct appointment under Rule  2(b) read with Rule 13. In the circumstances, it was urged on  behalf of the State that once the concept of deputation fell  within the meaning of direct appointment, the State was  entitled to apply the rule of relaxation contemplated in Rule  14. According to the Government, the post was taken out of  the purview of Public Service Commission vide letter dated  13.10.1997. Further, Rule 6 which refers to competitive  examination stood relaxed and accordingly on such relaxation,  Ms. Amrit Brar was absorbed as a Deputy S.P. in Punjab  Police in 1998 with effect from 9.6.1989, which the State  Government was entitled to do. It was urged on behalf of the  State Government that, on her absorption, Ms. Amrit Brar  stood appointed in Punjab Police as a direct recruit. According  to the State Government, Ms. Amrit Brar had worked in  Punjab Police on deputation from 16/17.8.1993.  According to  the State Government, Ms. Amrit Brar who had worked as an  Assistant Commandant/ Deputy S.P. in CRPF between  9.6.1989 and 16/17.8.1993 and, consequently, absorbed in  1998 as a Deputy S.P. in Punjab Police, was entitled to the  benefit of her experience in CRPF with effect from 9.6.1989. It  was urged on behalf of the State Government, that even in  CRPF the designation of Ms. Amrit Brar was Deputy S.P. and  that the nature of the duties of Deputy S.P. in CRPF and the  functions of Deputy S.P. in Punjab Police were identical and,  therefore, the experience and the work put in by Ms. Amrit  Brar as Deputy S.P. in CRPF had to be taken into account  while absorbing her in Punjab Police Service. According to the  State Government, on application of Rule 14, Ms. Amrit Brar  was entitled to the benefit of the past service and accordingly  she had been given seniority in Punjab Police on and from  9.6.1989, therefore, according to the State Government, there

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was no breach or violation of Article 14 and Article 16 of the  Constitution.

       At the outset, we may state that the country owes its  gratitude to the brave officer, Shri Avinder Singh Brar, IPS,  who was killed at the hands of terrorists. The above facts show  that Ms. Amrit Brar was appointed rightly on compassionate  grounds as an Assistant Commandant in CRPF on 9.6.1989.  The State Government was right in initially appointing her as  an Assistant Commandant in CRPF, since in 1989 terrorism  was at its peak in the State and that her posting as an  Assistant Commandant was relatively safer than her posting   in Punjab Police. She was the only child of her old parents.  She had to be, therefore, protected. However, that could not  make her appointment a compassionate appointment. It was  an exceptional appointment. There cannot be a second opinion  on this count. After the situation improved, she was taken on  deputation in Punjab Police. This was in 1993. We do not find  any infirmity in the action of the State Government under the  above circumstances in appointing Ms. Amrit Brar as a  deputationist even in Punjab Police Service. We make it clear  that Punjab Police Service Rules provide for two sources of  recruitment. One is by direct recruitment, another is by way of  promotion. Although, the said 1959 Rules do not provide for  such appointment as a deputationist in the normal cadre, the  Government, in exceptional cases, can appoint deputationists  in Punjab Police Service. This is one such case. We do not find  any infirmity in the action of the State Government in  appointing Ms. Amrit Brar as a deputationist in Punjab Police  Service. She is entitled to those benefits under the above  circumstances. Further, as state above, Ms. Amrit Brar stood  absorbed in Punjab Police Service as Deputy S.P. on  11.9.1998. Even her absorption has been made on giving  relaxation, as indicated above. This was by way of one time  exercise in an exceptional case. The only dispute, therefore, is  whether Ms. Amrit Brar was entitled to one more benefit of  seniority with effect from 9.6.1989.  

Direct appointment as a source of recruitment is different  from Deputation/ Transfer in the method of recruitment. In  the present case, the dispute revolves around inter se  dispute  in the cadre of DSP, in Punjab Police, which is the Feeder Post.  If seniority is to be given to Ms. Amrit Brar with effect from  9.6.1989 then she supersedes the appellants, who have also  contributed in the elimination of terrorism in the State. It is  the next higher post which the appellants and respondent no.  4 aims for. It is the inter se seniority which gives rise to the  dispute between the appellants and the State. When inter se  seniority is to be fixed the concept of equality has to be kept in  mind. Equality before law and equal protection of law are the  basic postulates of Article 14 read with Article 16(1) of the  Constitution. We have to keep in mind the rights of the  appellants, who have been in service and who are also entitled  to seniority and promotion in the cadre. We quote hereinbelow  Rules 2(b), 6, 7, 8, 10, 13 and 14 of Punjab Police Service  Rules, 1959.

"2.     Definitions.-In these rules, unless there is  anything repugnant in the subject or  context,-

               xxx

(b)     ’direct appointment’ means an  appointment made otherwise than

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by promotion of an Inspector.

xxx

6.      Method of recruitment.- (1) Recruitment  to the Service shall be made -

(i)     Eighty per cent by promotion form  the rank of Inspector, and twenty  per cent by direct appointment:

               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

(b)     in case they are Prosecuting  Inspectors, have got eight years’  continuous service (both officiating  and substantive) in the rank of  Prosecuting Inspector.

        (2)     Appointments by promotions shall  be made by the Government 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. The names in this  list prepared at one time shall be  arranged according to their inter se  seniority. This list will be  maintained in two parts: Part I (for  officers from the Executive line) and  Part II (for officers from the  Prosecution line).

(3)     Direct appointment to the Service  shall be made on the result of a  competitive examination conducted  by the Commission. The syllabus  and rules relating to the  examination will be framed by the  Government in consultation with  the Commission. The examination  will include a viva voce test. Only  those candidates will be interviewed  for the viva voce test who obtain not  less than the minimum qualifying  marks fixed by the Commission in  the written examination. The  Inspector-General of Police, Punjab  will be present at the interview and  will be entitled to put questions to  the candidate and to express his  views to the Commission. A

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candidate’s position shall be  determined by adding the marks  obtained by him in the written  examination and in viva voce test.

               Provided that other things  being equal, preference will be given  to a candidate who has worked for  the cause of national independence  or has rendered some outstanding  social or public service.

        7.      Qualifications.- (1) No person shall be  recruited to the Service by direct  appointment unless-

(i)     he is not less than twenty-one years  and not more than twenty-five years  of age on the first of February of the  year in which appointment is to be  made;

(ii)    he produces a certificate of physical  fitness as prescribed by rule 3.1 of  the Punjab Civil Services Rules,   Volume, Part I;

(iii)   he has a minimum height of 5’-7"  and normal chest measurement of  33" with expansion of 1-1/2".

(iv)  he is a graduate of a recognized  university and possesses knowledge  of both Hindi and Punjabi upto the  Matriculation or its equivalent  standard.

Provided that the upper age  limit prescribed in sub-clause (i)  shall be thirty years in the case of  Scheduled Castes, Schedules Tribes  and Backward Classes;

Provided further that the  physical standard prescribed in  sub-clause (iii) shall not be relaxed  without special sanction of the  Government;

(2)     No male candidate who has more  than one wife living and no female  candidate who has married a person  having already a wife living shall be  eligible for appointment to the  service;

Provided that this  disqualification shall not be  applicable in cases where it was  incurred before the 8th September,  1954, and the recruitment is to be  made by promotion.

(3)   (i) The Government shall notify to the

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Commission the number of  vacancies to be filled by direct  appointment during the year, and  the Commission will proceed to give  publicity to the proposed  appointments and invite  applications. If applications are  invited before the results of the  University Examinations have been  notified, candidates appearing or  who have appeared in the Bachelor  of Arts or equivalent examination,  will be allowed to submit provisional  applications.

(ii) The applications received will be  referred for scrutiny to the  Inspector-General of Police, Punjab,  who may make such enquiries as he  may think fit and shall thereafter  return all the application with his  remarks, if any, to the Commission.

(iii) The Commission will scrutinize  all applications received and admit  to the examination mentioned in  sub-rule(3) of rule 6 all those  candidates who are found to be  eligible in accordance with these  rules.

(iv)  Success in the examination will  confer no right on any candidate to  appointment, unless Government is  satisfied, after such enquiry as may  be considered necessary, that the  candidate is suitable in all respects  for appointment to the Service.

8.      Probation of members of Service. (a)  Members of the Service shall be on  probation for two years, which shall  include the period of training at the  Police Training School, Phillaur, and  in the districts and in the case of  members recruited by promotion the  Government may, by a special order  in each case, permit periods of  officiating appointment, to the  Service to count towards the period  of probation.

(b)     The services of a member recruited  by direct appointment may be  dispensed with by Government on  his failing to pass the final  examination at the end of his period  of training, or on his being reported  on, during or at the end of his  period of probation, as unfit for  appointment.

               Provided that the Government  may, if it deems fit extend the period

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of probation by not more than one  year.

(c)     The Inspector-General of Police,  Punjab may require any member of  the service on probation appointed  by promotion from the rank of an  Inspector to undergo a special  course of training and to pass the  prescribed examination in any  subject or subjects, including a  compulsory language in which his  qualification may be defective. Any  such probationer failing to pass the  examination prescribed for him or  being unfavourably reported on,  may be reverted to his substantive  rank of Inspector.

xxx

10.     Seniority of members of Service. 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 a member 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 promotion list  ’G’. xxxx 13.     Matters not expressly provided in these  rules- In respect of all matters not specifically  mentioned in these rules, the member of the  Service shall be governed by such general  rules as may have been or may hereafter be  framed by the Government under the  provisions of the Constitution of India in this  respect.

14.     General powers 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."

       Heavy reliance has been placed on behalf of the State  Government and on behalf of respondent no. 4 on the  judgment of this Court in the case of K. Madhavan and anr.  

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v.  U.O.I. and ors. reported in (1987) 4 SCC 566. In that case  the petitioners, Madhavan and Sen, were directly recruited as  DSP in CBI on 6.7.1963 and 10.8.1963 respectively. O.P.  Sharma, respondent no. 5, who was appointed as DSP on  13.7.1962 in Rajasthan State Police, was sent on deputation  to CBI as DSP on 1.7.1967. At that time, this Court found that  majority of officers in CBI were deputationists. O.P. Sharma  was confirmed as DSP in Rajasthan Police Service on  1.12.1964. Madhavan and Sen were confirmed as DSP in CBI  on 30.3.1967. In the seniority list published by CBI on  17.10.1981 the name of O.P. Sharma, respondent no. 5, was  shown above the names of the petitioners, Madhavan and Sen.  The petitioners, Madhavan and Sen challenged the inter se  seniority list on the ground that respondent no. 5 was the  deputationist in CBI and that on absorption he was not  entitled to the benefit of his services in Rajasthan Police  Service. On this contention, this Court vide para 19 held that,  in computing the requisite period of service in the matter of  appointment/ promotion to the post of SP in CBI, the period  during which O.P. Sharma, respondent no. 5, held the post of  DSP in Rajasthan State Police Service should be taken into  consideration.  

Relying on this paragraph, it is urged on behalf of  respondent no. 4,     Ms. Amrit Brar, that her services in CRPF  should also be taken into account in the matter of fixation of  inter se seniority and that she was entitled to weightage with  regard to the service which she had between 9.6.1989 and  16/17.8.1993. However, the judgment in the case of K.  Madhavan (supra) clearly indicates that this Court examined  the Service Rules in which there was a third source of  recruitment, namely transfer, and, therefore, in para 21, this  Court observed that, there was no much difference between  deputation and transfer, and since under the rules transfer  was the source of recruitment, O.P. Sharma was entitled to  weightage for the service put by him as DSP in Rajasthan  State Police Service. Admittedly, in the present case, transfer  is not the third source of recruitment. On the contrary, the  above judgment equates deputation with transfer. It does not  equate deputation with direct appointment as done by the  impugned judgment. To this extent, there is infirmity in the  impugned judgment.

Before we proceed further, we may make it clear that, in  our judgment, we have observed earlier that we do not find  any infirmity in the action of the State Government in  absorbing respondent no. 4 as Deputy S.P. in Punjab Police  Service. However, there is a caveat. According to us, strictly on  interpretation of the said 1959 Rules, there is no scope for  opening of a third mode of recruitment. Deputation is not the  source of recruitment under the said 1959 Rules. It is only as  an exceptional case that respondent no. 4 was given the  benefit of absorption in Punjab Police Service as Deputy S.P.  and we do not find any fault with that exercise. It is the  genuine exercise. However, when her services are regularized  by the State not from 16/17.8.1993, when she stood  appointed as a deputationist, but from 9.6.1989, when she  was appointed as Assistant Commandant in CRPF, then  infirmity in the action of the State Government crept in. CRPF  functions cannot be compared with Punjab Police Service.  Apart from policing, an officer of Punjab Police Service has to  do the work of investigation of crime detection, which is not  within the purview of CRPF. A Deputy S.P. in CRPF need not  have the knowledge of CrPC, IPC etc., which an officer in  Punjab Police Service needs to possess. The Service Rules

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governing CRPF are different from the Service Rules which  governed Punjab Police Service. Therefore, even functionally,  the two cadres are different. In fact, respondent no. 4, Ms.  Amrit Brar, has not undergone training as contemplated  under Punjab Police Service Rules. However, she has put in 5  years experience as Deputy S.P. in Punjab Police Service  between 16/17.8.1993 and 11.9.1998. That experience should  be given due weightage. In our view, having examined the  above Punjab Police Service Rules, 1959, it is clear that  deputation is not the source of recruitment. Direct recruitment  is the source. Promotion is the source. However, deputation is  not the source for recruitment. Moreover, in the present case,  we are concerned with the rights of the appellants. We are  concerned with the inter se seniority in the said post of Deputy  S.P. since that seniority ultimately counts for promotion to the  next higher cadre. The post of Deputy S.P. is a feeder post in  that sense and when the post is a feeder post, the inter se  seniority has the role to play. In the circumstances, if  deputation is not the source of recruitment, then even in  exceptional cases of this nature, weightage cannot be given, in  the absence of the rules, to the services rendered by Ms. Amrit  Brar in CRPF. Rule 14 talks of relaxation. However, Rule 14 is  not applicable to the rules which do not provide for  recruitment through deputation. Rule 14 would have applied if  the said 1959 Rules had a third source of recruitment,  namely, deputation. There is no such third source of  recruitment. Hence, Rule 14 has no application. Rule 14 refers  to relaxation of rules. Rule 14 contemplates existence of a rule  of recruitment. If there is no such rule providing for third  source of recruitment, the Government cannot relax a non  existent rule. Therefore, the High Court had erred in treating  deputation as a third source of recruitment. There is a  difference between direct appointment as a source of  recruitment and deputation/ transfer as a source of  recruitment. In certain cases, cited before us, weightage has  been given to the service put in by the transferee. However, in  all those cases, the third source of recruitment was transfer/  deputation. In the present case, there is no such rule to that  extent. There is an error in the impugned judgment of the  High Court. As state above,  Ms. Amrit Brar has put in 5 years  service as a deputationist in Punjab Police Service between  16/17.8.1993 and 11.9.1998. She is certainly entitled to the  weightage for the services rendered by her during these 5  years. However, she is not entitled to weightage of service  between 9.6.1989 and 16/17.8.1993, as held by the High  Court, for the fixation of inter se seniority.

       Accordingly, the appeal is partly allowed with no order as  to costs.