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PETITIONER: PARAMJIT SINGH SANDHU AND ORS. ETC.

       Vs.

RESPONDENT: RAM RAKHA AND ORS. ETC.

DATE OF JUDGMENT22/03/1979

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

CITATION:  1979 AIR 1073            1979 SCR  (3) 584  1979 SCC  (3) 478  CITATOR INFO :  R          1981 SC 561  (71)  R          1984 SC1595  (24)  D          1990 SC1607  (19)

ACT:      Punjab Police  Rules,  1959,  Rules  3,  6,  8  and  10 Construction of-When  appointments to  a post  are from  two different sources,  one by  promotion and  another by direct recruitment according  to quota rule, whether the quota rule would  operate   at  both  the  stages  of  recruitment  and confirmation or at the stage of initial recruitment only.      Deemed confirmation  after the  expiry of the period of probation and cases when an express order of confirmation is necessary, pointed out.

HEADNOTE:      Under  the   Punjab   Police   Service   Rules,   1959, recruitment to  Punjab Police Service (Deputy Superintendent of Police) is made from two sources, namely 80% by promotion and 20% through direct recruitment. Under Rule 10, seniority in the  cadre of Deputy Superintendent of Police is reckoned according to  the date  of confirmation.  Consideration  for nomination to  Indian Police  Service is  done according  to seniority-cum-merit.      Respondents 1  and 2 in C.A. 2903/78 who were promotees to  the   cadre  of  Deputy  Superintendents  of  Police  in February, 1961  and  January,  1961  respectively  were  not confirmed even  though appellants and respondents 5 to 8 who were recruited  to the  same  cadre  by  direct  appointment commencing from May, 1961 to May, 1965 were confirmed. They, therefore, filed  a Writ Petition praying for a direction to confirm them  in the  Punjab Police Service, adhering to the quota rule at the time of confirmation as well. They alleged that as  seniority in  the cadre of Deputy Superintendent of Police is  reckoned under  rule 10,  according  to  date  of confirmation failure  to confirm  in the  post available  to them in  breach of  the relevant  rules, had resulted in the denial  of   equality  of   opportunity  in  public  service enshrined in  Art. 16  of the  Constitution at  the time  of consideration of  their cases  for nomination  to the Indian Police Service  which is  done according  to  seniority-cum- merit.

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    Allowing the  Writ Petition  and directing the State to confirm them,  the learned  single judge held that the quota rule  would   operate  not  only  at  the  time  of  initial recruitment but  also at the time of confirmation, as he was of the  opinion that  the  quota-rule  is  linked  with  the seniority rule.      Two Letters  Patent Appeals, one filed by appellant No. 1 and  another by  the State,  were heard along with another Writ Petition  filed  by  one  Ram  Rakha  urging  identical contentions. The  Writ Petition  was allowed and the appeals were dismissed  by a common judgment modifying the direction given by  the learned  single judge  to the  extent that the State should  consider the  case of the Writ petitioners for confirmation afresh  according to  quota rule and then refix their inter-se seniority.      Dismissing the appeals, by special leave the Court 585 ^      HELD: 1.  When a first appointment or promotion is made on probation  for a  specific period  and  the  employee  is allowed to  continue in  the post  after the  expiry of  the period without  any specific order of confirmation he should be deemed  to continue  in his post as a probationer only in the absence  of any  communication to  the contrary  in  the original order  of appointment  or promotion  or the Service Rules. In  such a  case, an express order of confirmation is necessary to  give the  employee a  substantive right to the post. From  the mere  fact that he is allowed to continue in the  post  after  the  expiry  of  the  specific  period  of probation he  should not  be deemed  to have been confirmed. This is  so, when  the relevant rules permitted extension of the Probationary period for an indefinite time. [592 A-C]      Sukhbans Singh v. State of Punjab, [1963] 1 SCR 416, G. S. Ramaswamy  v. The  Inspector General  of  Police,  Mysore State Bangalore, [1964] 6 S.C.R. 278; State of U.P. v. Akbar Ali, [1966] 3 SCR 821; referred to.      2. Where  the rules  provide  for  a  fixed  period  of probation with  a power in the Government to extend it up to a specific  period and  not any  unlimited period, either by express provision or by necessary implication, at the end of such specified  period beyond  which the  Government had  no power to  extend  the  probation,  the  probationer,  if  he continues beyond  that period, should be deemed to have been confirmed in the post. [592 C-E]      State of  Punjab  v.  Dharam  Singh,  [1968]  3  SCR  1 explained.      3. Rule  8 of the Punjab Service Rules, 1959 prescribes a period  of probation  of two years and the proviso confers power to  extend the  period of  probation by not beyond one year meaning  thereby that  in any case the Government would not have  the power to extend the period of probation beyond a period of three years. [593 A-B]      In this situation, (a) the ratio of Dharam Singh’s case would mulatis  mutandis apply  and the  direct recruits  who completed the  period of  probation of  two years and in the absence of  an extension  of probationary  period  would  be deemed to be confirmed by necessary implication. [593 B-C]      (b) If  seniority is  to be  reckoned from  the date of confirmation and  if promotees  are not  confirmed for years together in  some cases, while direct recruits who came much later got  confirmed and  ipso facto  became senior  to  the promotees, if  quota rule  is only  applied at  the time  of initial  recruitment,  this  undesirable  result  is  wholly unavoidable. [593 C-D]      4. Where recruitment to a cadre is from two sources and

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the Service  Rules prescribe  quota for recruitment for both sources, a  question would  always arise,  whether the quota rule would apply at the initial stage of recruitment or also at the  stage  of  confirmation.  Ordinarily,  if  quota  is prescribed for  recruitment to  a cadre, the quota rule will have to  be observed  at the  recruitment stage.  The  quota would then  be co-related  to vacancies  to be  filled in by recruitment but after recruitment is made from two different sources they  will have to be integrated into a common cadre and while  so doing the question of their inter se seniority would surface. [593 F-G] 586      Seniority is  ordinarily determined  from the  date  of entry into cadre on the principle of continuous officiation. Confirmation in  a post  would ordinarily  depend upon  such circumstances as  satisfactory  completion  of  probationary period, efficiency  in the  discharge of  duty, capacity  to discharge functions  of the  post, availability of permanent vacancy etc. Now, if seniority is to be determined according to the  date of  confirmation and the quota rule is not made relatable to confirmation in various posts falling vacant in the cadre  it would  directly impinge  upon the seniority of members of the service. [593 G- H, 594 A]      S. B. Patwardhan and Ors. etc. v. State of Maharashtra, [1977] 3 SCR 775 @ 797; referred to.      5. A  harmonious reading  of rules  3, 4,  6, 8, and 10 makes it  clear that the quota rule is operative both at the time of initial recruitment and at the time of confirmation. The  recruitment  to  Punjab  Police  Service  is  from  two sources. Recruits  from both  the  sources  have  to  be  on probation. Adopting  the construction  that the  proviso  to Rule 8 (b) permitting a maximum period of probation of three years  at   the  end  of  which  the  direct  recruit  would automatically be confirmed unless his services are dispensed with simultaneously enjoying seniority from the date of such automatic confirmation  without applying  quota rule  at the time of confirmation would put the promotee to an unintended disadvantage who may be continued in an officiating capacity without  confirming   him  and   consequently   denying   or relegating him  down in  seniority for years as has happened in the  case of  respondents 1 and 2. Such an approach would be wholly  unreasonable more  so  when  there  was  not  the slightest  suggestion   that   their   services   were   not satisfactory and  that the  confirmation was  denied on  any such ground,  thereby directly affecting their places in the seniority list. [594 C-F, H]      If the  other view that the quota rule would apply both at the  time of recruitment and at the time of confirmation, is adopted rule 10 which provides for seniority according to the date  of confirmation  would certainly be saved from the vice of unreasonableness. [594 G]      The quota  rule is  linked up  with the seniority rule. 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. Quota rule being inextricably  intertwined   with  the   seniority  rule  any delinking   would   render   the   seniority   rule   wholly unreasonable. After  recduitment, 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. If  quota rule  were to be applied at the stage of initial  recruitment and  wholly ignored  at the  time of confirmation  the   rule  would  suffer  from  the  vice  of

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unreasonableness and  would offend Art. 16, because, in that event,  while   direct  recruits   would  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 jeopardised. [595 A-B, C, D-E]      S. G.  Jaisinghani v.  Union of India and Ors. [1967] 2 SCR 703  @ 717  and  718;  S.  B.  Patwardhan  v.  State  of Maharashtra, [1977] 3 SCR 775 @ 797; followed. 587      6. 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 breakdown the  moment  recruitment  from  either  source  in excess of  the quota  is made. In fact a strict adherance 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 would  arise when  recuruitment in  excess of the quota is  made and  it would  further  be  accentuated  when recruits from  one source viz. direct recruits get automatic confirmation on completion of the probationary period, while the promotees  hang out  for  years  together  before  being confirmed. [596 F-H, 597 A-B]      Mervyn Coutindo  and  Ors.  v.  Collector  of  Customs, Bombay and  Ors., [1966] 2 SCR 600; A.. K. Subraman and Ors. v. Union of Indian and Ors., [1975] 2 SCR 979; explained and distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeals Nos. 2902- 2903 of 1977.      Appeals by  Special Leave  from the  Judgment and Order dated 3-11-1976  of the  Punjab and  Haryana High  Court  in Civil Writ Petition No. 6781/74.      Y. S.  Chitale, M.  N. Phadke and P. C. Bhartari (In CA 2903/77) for the Appellants.      G. L.  Sanghvi, S. K. Bagga and Mrs. S. Bagga for RR 1- 2.      R. S. Sodhi for the State of Punjab.      The Judgment of the Court was delivered by      DESAI, J.-These two appeals by special leave arise from a common  judgment rendered  by the  High Court  of Punjab & Haryana at Chandigarh in Letters Patent Appeals Nos. 560 and 564 of  1974 and  Civil Writ  No. 6781/74.  The  controversy raised in  these appeals  turns upon the construction of the Punjab Police  Service  Rules,  1959  (’Service  Rules’  for short). A few relevant facts as alleged by respondents 1 and 2 in  Civil Appeal  No. 2903/78 who moved Civil Writ No. 825 of 1972  in the High Court would highlight the problem posed in these appeals.

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588      Respondents 1  and 2,  Gurdip Singh  and  Dalip  Singh, filed a  writ petition under Article 226 of the Constitution against the  State of  Punjab, Inspector  General of Police, Punjab, and  six others  including the  present  appellants, praying for  a direction  to confirm  them in  Punjab Police Service.  Respondents   1  and  2  alleged  that  they  were promotees to the cadre of Deputy Superintendent of Police of February, 1961  and January,  1961 respectively  having been brought on  ’G’ List by an order dated 23rd February 1961 of the State  of Punjab  and the  Inspector General  of Police, Punjab,  respondents   3  and   4  herein.   Appellants  and respondents 5  to 8  were recruited  to the  same  cadre  by direct appointment  commencing from  May, 1961 to May, 1965. The grievance  of respondents  1 and 2 in the petition filed by them  was that  recruitment to  Punjab Police  Service is made from  two sources,  namely, 80% by promotion and 20% by direct appointment  but this quota rule is 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  appellants and respondents 5 to 8, they were not confirmed though  the latter were confirmed and as seniority in the  cadre of Deputy Superintendent of Police is reckoned under rule 10 according to date of confirmation, the failure to confirm  them in the post available to them, in breach of the  relevant   rules,  has   denied  to  them  equality  of opportunity enshrined  in Article  16 of the Constitution to be considered  for nomination to Indian Police Service which is done according to seniority-cum-merit.      The State  of Punjab  and Inspector  General of Police, Punjab, on the one hand and the direct recruits on the other contested the writ petition, inter alia, contending that the quota applies at the stage of initial recruitment and not at the time of confirmation and there is no allegation that the quota rule  was violated at the time of initial recruitment. It was  further contended  that  no  one  can  claim  to  be confirmed as  a matter  of right  and, therefore,  the  writ petition is misconceived. Direct recruits to the post of Dy. Superintendent of  Police, appellants and respondents 5 to 8 further contended  that the  petitioners  were  promoted  on officiating basis  against temporary posts and as there were no permanent  posts available,  they could  not be confirmed till substantive  vacancies in the permanent strength of the cadre were  available and  till confirmation their seniority having to  be reckoned  from the  date of confirmation, they cannot claim  to be  senior to  the direct  recruits on  the principle of continuous officiation.      The writ petition came up before a learned single Judge of the High Court who was of the opinion that the quota rule is linked  with the  seniority rule  and in  order to give a reasonable interpretation and 589 in order not to make the seniority rule unreasonable, upon a proper construction  it must  be held  that the  quota  rule would operate  not only  at the  time of initial recruitment but also  at the  time of  confirmation.  In  reaching  this conclusion  the   learned  single   Judge  relied  upon  two decisions of  this Court  in S.  G. Jaisinghani  v. Union of India &  Ors.,(1) and Mervyn Coutindo & Ors. v. Collector of Customs, Bombay  & Ors.,  (2) and  some other  decisions  of other High Courts. The learned single Judge accordingly gave a direction  that the  writ petitioners, respondents 1 and 2 herein, should  be  confirmed.  Two  appeals  being  Letters Patent Appeal  No. 560/74  by the  present appellant  1  and Letters Patent  Appeal No. 564/74 by the State of Punjab and

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the Inspector General of Police, Punjab, were preferred. One Rakha Ram  filed Civil  Writ No.  6781/74 raising  identical contentions and  this writ  petition  was  referred  to  the Division Bench  before which  the aforementioned two Letters Patent Appeals  came up  for hearing  The Court  by a common judgment disposed of all the three matters. Both the Letters Patent Appeals  were dismissed and Civil Writ No. 6781/74 by Ram Rakha  was allowed,  but  the  direction  given  by  the learned single  Judge was  modified to  the extent  that the State of  Punjab and  Inspector General  of Police,  Punjab, should consider  the cases  of writ  petitioners 1 and 2 for confirmation and  to fix their seniority afresh according to the quota  rule. The  present two  appeals arise  from  this common judgment  preferred by the direct recruits. It may be mentioned that neither the State of Punjab nor the Inspector General of  Police, Punjab,  have questioned the decision of the High Court though at the hearing of these appeals Mr. R. S. Sodhi  appeared for the State of Punjab and supported the contentions canvassed on behalf of the appellants.      As the  main controversy turns upon the construction of rules 3,  6, 8  and 10  of the  Service Rules  it  would  be advantageous to  get a  clear picture of the relevant rules. The Service  Rules provide  for  constitution,  recruitment, qualifications for  being members of the service, probation, pay, seniority and discipline of the members of the Service. Rule 3 provides that the Service shall comprise of the posts specified in  Appendix ’A’ to the Service Rules. Designation of  the   Post  in  Appendix  ’A’  is  shown  to  be  Deputy Superintendent of  Police and  the strength  of the cadre is shown as  66. The  State Government,  under rule  5, is  the appointing authority  to the  Service. Rule  6 provides  for method of  recruitment from two different sources, viz., 80% by promotion  from the  rank of Inspectors and 20% by direct recruitment. It  also prescribes  eligibility  qualification for promotees. Sub- 590 rule (2)  of rule  6 provides  that appointment by promotion shall be  made by  he Government  from Inspectors brought on List ’G’  and the method of drawing up of List ’G’. Sub-rule (3) provides that direct appointment to the Service shall be made upon  the result of a competitive examination conducted by the  Punjab Public  Service Commission  (’Commission’ for short) and  further  confers  power  on  the  Government  in consultation with  the Commission  to frame  necessary rules relating to examination. Rule 7 prescribes qualifications of physical fitness.  Rule  8  provides  that  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  be  a special order  in each  case permit  periods of  officiating appointment to  the Service  to count  towards the period of probation. There  is a proviso to the rule which enables the Government to  extend the  period of  probation by  not more than one  year. Rule  9 provides  for pay  of members of the Service. Rule  10 provides  for seniority  of members  to be reckoned by the date of confirmation in the Service.      Dr. Chitaley  followed by  Mr. Phadke,  urged that  the vires, validity or reasonableness of rule 10 having not been challenged, it  was not  open to  the High Court to put upon rules,  6,   8  and   10  a  construction  on  the  supposed unreasonableness of  rule 10  if it is interpreted by giving the language  therein used its ordinary grammatical meaning. The High  Court applied  the quota rule even at the stage of confirmation to avoid the vice of unreasonableness which, in

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the opinion  of the High Court, would be implicit in rule 10 if any other view were taken.      The rules  provide for  constitution of Service and the Service shall  comprise of  the posts  specified in Appendix ’A’ to  the rules.  At  the  relevant  time  the  sanctioned strength of  the Service was 66 posts. There is a proviso to rule 3  which enables the Government to make additions to or reductions in  the number  of such posts whether permanently or  temporarily.   Rule  6  which  provides  for  method  of recruitment in  terms says  that recruitment  to the Service shall be  made: (i)  80%  by  promotion  from  the  rank  of Inspectors; and  (ii) 20%  by direct appointment. Thus there is recruitment  to the Service from two independent sources, viz., promotion  and direct recruitment. Once recruitment to any  given   cadre  is  from  two  sources  obviously  after recruitment is  made  from  two  sources  they  have  to  be integrated into  one cadre which also necessitates providing for their  inter se  seniority. Rule  10 provides  that  the seniority of the 591 members of  the Service  shall be  determined by the date of confirmation in  the Service.  There is a proviso to rule 10 which is not material for the present discussion.      On behalf  of the  promotees it  was contended  that if seniority is to be reckoned from the date of confirmation in the Service, confirmation must be made available to recruits from both  the sources, viz., promotees and direct recruits. It was  further contended that if on satisfactory completion of probation  a direct  recruit is confirmed or is deemed to be confirmed  and a  promotee who  can be  continued  in  an officiating  capacity   for  any   length  of  time  without considering his  case for  confirmation, promotees  would be put at  a serious disadvantage because for further promotion or what  is styled  as nomination  to Indian Police Service, seniority-cum-merit being  the criterian and the basic cadre being the  cadre of  Deputy Superintendent  of  Police  from which nomination is to be made, their case would not come up for consideration  as they  are not  confirmed. They pointed out that in 1971 their names were recommended by Deparmental Committee set  up for  the purpose  but the State Government turned down  their names  on the  only ground that they were not confirmed.  It is  clear from Rule 8 that both promotees and direct  recruits would be on probation for two years and in case  of promotees the Government may be special order in each case  permit periods of officiating appointments to the Service to count towards the period of probation. Clause (b) of rule  8 provides  that the services of a member recruited by  direct   appointment  may   be  dispensed  with  by  the 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. There is a proviso at the end of sub- rule (b) which reads as under:           "Provided that  the Government  may, if  it  deems      fit, extend  the period  of probation  by not more than      one year." There is  some controversy  between the  parties whether the proviso is  to operate as proviso to rule 8(a) and 8(b) both or only to rule 8 (b).      It was  contended on behalf of the direct recruits that once a specific period of probation is fixed and a fetter is put on  the power of the Government to extend probation only by a  specific period,  at the  end of  such extended period either the  service of the direct recruit is to be dispensed with on  the ground  that he was unfit for appointment or if

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he is  continued thereafter  he must  be deemed to have been confirmed and  the date  next after the day of expiry of his ordinary or 592 extended period  of probation  would  be  the  date  of  his confirmation. This  Court has  consistently held that when a first appointment  or promotion  is made  on probation for a specific period  and the  employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation he should be deemed to continue in his post  as   a  probationer   only  in   the  absence  of  any communication to  the contrary  in  the  original  order  of appointment or  promotion or  the Service  Rules. In  such a case an  express order  of confirmation is necessary to give the employee  a substantive  right to  the post and from the mere fact  that he  is allowed to continue in the post after the expiry  of the  specific period  of probation  it is not possible to  hold that  he should  be deemed  to  have  been confirmed. This view was taken in Sukhbans Singh v. State of Punjab(1); G.  S. Ramaswamy  v.  The  Inspector  General  of Police, Mysore  State, Bangalore(2);  and State  of U. P. v. Akbar Ali(3). This view was founded up on the relevant rules which permitted  extension of the probationary period for an indefinite time. In fact there was no negative rule in these cases  prohibiting   the  Government   from  extending   the probationary  period   beyond  a   certain  maximum  period. However, where  the rules  provide for  a  fixed  period  of probation with  a power in the Government to extend it up to a specific  period and  not any  unlimited period, either by express provision or by necessary implication, at the end of such specified  period beyond  which the  Government had  no power  to  extend  the  probation,  the  probationer  if  he continues beyond  that period, should be deemed to have been confirmed in  the post.  This Court  in State  of Punjab  v. Dharam Singh(4);  after taking  into consideration rule 6(3) of the  Punjab Educational  Service  (Provincialised  Cadre) Class III  Rules, 1961, which provided for either dispensing with the  services of  the person  appointed to  the post on probation if  his work  was found to be unsatisfactory or to extend the  period of  probation for  such period  as may be deemed fit  or revert  him to  his former  post  if  he  was promoted from  some lower  post,  provided  that  the  total period of  probation including  the extensions if any, shall not exceed  three years, held that the Service Rules fixed a certain period  of time beyond which the probationary period cannot be  extended and if an employee appointed or promoted to a  post  is  allowed  to  continue  in  that  post  after completion of  the maximum  period of  probation without  an express  order  of  confirmation  he  cannot  be  deemed  to continue in  that post  as a  probationer by implication. In such a case the Court held it is permissible to 593 draw an  inference that  the employee allowed to continue in the post  on completion  of the  maximum period of probation has been confirmed in the post by implication. Rule 8 of the Service Rules  prescribes the  period of  probation  of  two years and  the proviso confers power to extend the period of probation by not beyond one year meaning thereby that in any case the  Government would  not have the power to extend the period of  probation beyond a period of three years. In this situation the  ratio in  Dharam Singh’s  case (supra)  would mutatis mutandis  apply and it will have to be held that the direct recruit  who completed the period of probation of two years and  in the  absence of  an extension  of probationary period,  would  be  deemed  to  be  confirmed  by  necessary

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implication.  Respondent   5  to   8  direct  recruits  have accordingly been  confirmed  on  expiry  of  the  period  of probation of  two years.  Now if seniority is to be reckoned from the  date of  confirmation and  if  promotees  are  not confirmed  for   years  together  in  some  cases,  to  wit, respondents 1  and 2  who were  promotees  of  February  and January, 1961  respectively, were  not confirmed  till  they filed the  writ petition  in 1972  while direct recruits who came much  later got  confirmed and ipso facto became senior to the  promotees, if  quota rule  is only  applied,  as  is contended on  behalf of  the appellants  and  the  State  of Punjab, at the time of initial recruitment, this undesirable result is wholly unavoidable.      Mr. G.  L. Sanghi  learned counsel  for the interveners and the  promotees contended  that the  framers of  the rule could not  have intended  to accord  such  a  discriminatory treatment to  the promotees  in whose favour the quota is as big as 80% of the total strength.      Where recruitment  to a  cadre is  from two sources and the Service  Rules prescribe  quota for recruitment for both sources a question would always arise whether the quota rule would apply  at the  initial stage of recruitment or also at the  stage   of  confirmation.   Ordinarily,  if   quota  is prescribed for  recruitment to  a cadre, the quota rule will have to  be observed  at the  recruitment stage.  The  quota would then  be co-related  to vacancies  to be  filled in by recruitment but after recruitment is made from two different sources they  will have to be integrated into a common cadre and while so doing, the question of their inter se seniority would surface.  Seniority is  ordinarily determined from the date of  entry into  cadre on  the principle  of  continuous officiation. Confirmation  in a post would ordinarily depend upon  such   circumstances  as  satisfactory  completion  of probationary period,  efficiency in  the discharge  of duty, capacity to discharge functions of the post, availability of permanent  vacancy,   etc.  Now,   if  seniority  is  to  be determined according  to the  date of  confirmation and  the quota rule 594 is not  made relatable  to  confirmation  in  various  posts falling vacant  in the  cadre it would directly impinge upon the seniority  of members  of the  service.  In  a  slightly different form this question came before this Court in S. B. Patwardhan &  Ors. etc.  v. State of Maharashtra & Ors., (1) in which vires of rule 8(iii) of 1960 Rules were questioned. Rule 8(iii)  of the  1960 Rules  provided that  probationers recruited directly  to the Bombay Service of Engineers Class II Cadre  in any year shall, in a bunch, be placed senior to promotees confirmed  during that  year. Striking  down  this rule as  violative of  Article 16  this Court  held that the rule leaves  the valuable  right of seniority to depend upon the mere accident of confirmation.      The recruitment  to Punjab  Police Service  is from two sources. Recruits  from both  the  sources  have  to  be  on probation. Adopting the construction as canvassed for and on behalf of  direct recruits  that the  proviso to  rule  8(b) permitting a  maximum period  of probation of three years at the  end  of  which  the  direct  recruit  automatically  be confirmed   unless   his   services   are   dispensed   with simultaneously enjoying  seniority from  the  date  of  such automatic confirmation  without applying  quota rule  at the time  of   confirmation,  would   put  the  promotee  to  an unintended  disadvantage   who  may   be  continued   in  an officiating capacity without confirming him and consequently denying or relegating him down in seniority for years as has

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happened in  the case of respondents 1 and 2. Appellants who were recruited  to the  Service after  respondents 1  and 2, came to  be confirmed  at the  end of  two years’  period of probation while respondents 1 and 2 were not confirmed after more than  11 years  of officiating service and there it not the slightest  suggestion that the services of respondents 1 and 2  were not  satisfactory and  that the confirmation was denied on  any such  ground thereby directly affecting their place in  the seniority  list. Such  an  approach  would  be wholly unreasonable.      Now, if  the other  view is  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 save  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 operative 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 595 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 Article 16 (see S. G.  Jaisinghani’s case (supra) 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.  Any   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  (supra)  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  Article 16 and it was actually struck down. An exactly identical  situation would follow here if quota 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 jeopardised. To avoid this utterly unconsciounable outcome the  construction we  have put on rule 8 would be in consonance with justice and reason.      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

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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  breakdown the moment recruitment from either source in excess of the quota is made. In fact a strict adherence to the quota 596 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 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 Coutindo’s  case (supra) 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.      It was,  however, contended  that in  A. K.  Subraman & Ors. etc.  v. Union  of India & Ors. (1) this Court in terms has held  that when  recruitment is from two sources and the quota rule is enforced, the same will have to be enforced at the time  of initial recruitment in officiating capacity and not at  the time  of confirmation.  It was,  therefore, said that it  would be contrary to settled law to hold that quota rule will also operate at the time of confirmation. Now, the observation of  the Court  is  in  the  context  of  Central Engineering Service (Class I) Recruitment Rules, 1954, which came up  for interpretation  before the  Court in that case. The recruitment  was from  three different sources, viz., by competitive examination,  by promotion and by transfer. Rule 4 provided  that 75%  of  the  vacancies  in  the  grade  of Executive Engineer  Class I  shall be filled by promotion of Assistant Executive  Engineers Class  I,  the  rest  of  the vacancies being  filled by  promotion and/or  by transfer in accordance with  Parts IV  and V  of the Rules respectively. The general seniority rule which was held applicable in that case was that seniority should be determined on the basis of length  of  service  in  that  grade  or  a  service  in  an equivalent grade  irrespective of  whether  the  latter  was under Central or Provincial Government in India or Pakistan. It is in the context of these rules the question whether the quota rule  should  be  applied  at  the  stage  of  initial recruitment  or  confirmation  came  up  for  consideration. Unlike the  rule in  the  present  case  seniority  was  not dependent on  confirmation but  seniority was dependent upon continuous officiation in the cadre. In this background this Court held  that the quota has to be enforced at the time of initial recruitment  in officiating  capacity and not at the time of  confirmation.  The  situation  in  the  case  under discussion is  materially different. Therefore, it cannot be said that ignoring the 597 rule a  proposition of  universal application  has been laid down  that   whenever  there   is  a  quota  prescribed  for recruitment to  a cadre  it can  only apply  at the  time of initial recruitment  and not  at the  time of  confirmation. Everything will  depend upon  the whole  body of  rules  and

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harmonious construction  has to  be put upon the rules so as to avoid  the possibility  of a rules becoming unreasonable. This Court  while saying  in Subraman’s  case  (supra)  that quota rule  has to be adhered to and enforced at the time of initial recruitment  re-affirmed the  observation in  Mervyn Coutindo’s case (supra) that there is no inherent invalidity in introduction  of quota  system and to work it out by rule of rotation.  When it  is said  that the  confirmation shall follow the  quota rule  it is in terms being stated that the rotational  system   should  be  followed  at  the  time  of confirmation  so   as  to  make  quota  rule  effective  and seniority  rule   reasonable  because   all  the  three  are interlinked. Undoubtedly,  the decision  in Subraman’s  case was in  terms affirmed  in Patwardhan’s case (supra) but the scheme of  rules in  Patwardhan’s case  (supra) was  more or less similar  to the  one that was examined by this Court in Subraman’s case.      Mr. Sanghi  also urged  that the  language of Rule 8(a) would unmistakably  show that  members of  Service recruited from either source would be on probation for a period of two years and  this would  imply that promotees would also be on probation for  a period of two years. Approaching the matter from this  angle he  further urged that proviso to rule 8(b) which permits  extension  of  probation  only  by  one  year without expressly  referring to direct recruits would govern both promotees  and direct  recruits and in that view of the matter promotees would also be deemed to be confirmed on the expiry of period of probation. This contention overlooks the latter Part  of rule  8(a) which  provides that  in case  of promotees the  Government may  by special order in each case permit periods of officiating appointments to the Service to count towards  the period of probation. It appears that both promotees  and  direct  recruits  to  Service  would  be  on probation. But  the latter  part of  rule 8  (a) comprehends Inspectors being promoted on officiating basis. Unless there is a  temporary addition  to the  strength of the cadre such officiating appointment  by promotion  would  not  make  the promotee a member of the service in view of Rule 3. In order to avoid  any injustice to such promotees the Government may make an  order to treat officiating service to count towards probation. In  the absence  of such  order  the  officiating service  would   not  count   towards  probation   and  such appointment would  not make  the promotee  a member  of  the service. In that event his case would not be covered 598 by the  proviso to  rule  8(a).  Therefore,  the  contention cannot be accepted.      The High Court was, therefore, right in concluding that the quota rule would operate at both the stages. Accordingly both these  appeals  fail  and  are  dismissed  but  in  the circumstances of the case with no order as to costs. S.R.                                      Appeals dismissed. 599