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PETITIONER: RAJENDRA NARAIN SINGH AND OTHERS

       Vs.

RESPONDENT: STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT10/04/1980

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. VENKATARAMIAH, E.S. (J)

CITATION:  1980 AIR 1246            1980 SCR  (3) 450  1980 SCC  (3) 217  CITATOR INFO :  D          1984 SC 885  (26)  RF         1984 SC1595  (73)  RF         1986 SC 638  (12)

ACT:      Constitution  of   India  1950-Art  309  Proviso  State Government  whether  can  regulate  its  public  service  in exercise of its executive power.      Bihar Police Service (Recruitment) Rules 1953-Scope of.      Fixing of  inter-se seniority  of promotees  and direct recruits on  basis of  continuous officiation  by promotees- Whether valid.

HEADNOTE:      The appellants  were appointed  Inspectors of Police in 1953. After  working as  Inspectors for about 12 years, they were  promoted  by  notification  dated  June  16,  1965  to officiate  as   Deputy  Superintendents  of  Police.  Before promotion they  were subjected  to the scrutinies prescribed by  rules  22,  23  and  24  of  the  Bihar  Police  Service (Recruitment) Rules,  1953. Rule  648-B  of  the  Bihar  and Orissa Police  Manual (Volume  I) requires a promoted Deputy Superintendent of Police to pass an examination in accounts. The appellants  passed the examination and satisfied all the requirements for  confirmation. However,  the posts in which they were  officiating were  temporary posts. Thereafter the Government  by   a  notification   dated  August  22,  1974, confirmed  the   appellants  and  other  similarly  situated officers as  Deputy Superintendents  of Police  with  effect from the  dates  which  according  to  these  officers  were arbitrarily chosen.  On September  1,  1974  the  Government published a combined gradation list in which these promotees were  placed   even  below  the  direct  recruits  who  were appointed in  1974. The appellants challenged this gradation list in  the High  Court by  a Writ  Petition and during the pendency of  the said Writ, the State Government constituted "Saran Singh Committee", to assess the promotional prospects of  different   State  services,   examine  the  problem  of "stagnation",   and    suggest   remedial    measures.   The recommendations of  the committee were accepted by the State Government by  Resolution dated  April 11, 1977. In the Writ Petition, the  High Court  directed the  State Government to

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re-examine the  matter and prepare a fresh gradation list on the basis  of the  statement made  by the  Government in the light  of  the  committees’  recommendations.  None  of  the parties appealed against this order.      By  notification   dated  January  7,  1978  the  State Government appointed  on probation the Officers who had been officiating in  those  posts  with  effect  from  the  dates mentioned against  their names  in the  notification and the notification issued  previously promoting  these officers on officiating basis  was cancelled. The dates from which these officers were  said to have been appointed on probation were the  dates   of  their   promotion  as   officiating  Deputy Superintendents of  Police.  The  names  of  the  appellants figured against  serial numbers  23, 24  and 25  in the list given in the notification dated January 7, 1978. The revised gradation list  which  is  under  challenge  was  thereafter issued. 451      The  appellants   questioned  the  correctness  of  the Judgment of  the High  Court  which  allowed  the  two  Writ Petitions made  by two  different groups  of direct recruits challenging  the   gradation  lists   of  permanent   Deputy Superintendents of Police on February 24,1978.      Accepting the appeal, ^      HELD: 1.  The appellants  were promoted to officiate as Deputy Superintendents  of Police  in the  year 1965  (other promotees like  the appellants  had also been officiating as Deputy  Superintendents   of  Police  from  different  dates between 1948  and 1970),  and by  the Government order dated December  30,1977   fifty-four  temporary  posts  of  Deputy Superintendent of  Police created between 1948 and 1970 were made permanent  from the  dates these  posts  were  created. [456D-G]      2. It  is well  settled that  in  the  absence  of  any legislation on  the subject,  or a  rule  framed  under  the Proviso to  Article  309  of  the  Constitution,  the  State Government can  regulate its public services in the exercise of its executive power. [456 F-G]      B. N.  Nagarajan v.  State of  Mysore [1966] 3 SCR 682, Sant Ram  Sharma v.  State of  Rajasthan [1968]  1 SCR  111, referred to.      3. There  is no  statute or  any rule  framed under the Proviso to Article 309 to determine the seniority as between the direct  recruits and the promotees. The determination of seniority on  the basis  of continuous  officiation has been held valid in S. B. Patwardhan’s case [1977] 3 S. C. R. 775. The gradation  list cannot  therefore be  challenged on  the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the Constitution. [456G-H. 457A]      4.  In  the  year  1977  exigencies  of  the  situation prompted the  Government  to  convert  the  temporary  posts created between  1948 and  1970 into  permanent  posts  with effect from  the dates on which the temporary posts had been created. The  appellants were  promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary. The  Governor while  exercising his  powers under rule 3  in the  year 1965  could  not  naturally  take  into account the  number of  posts made  permanent in  1977  with effect from 1965. Whatever was done subsequently to increase the strength  of the  cadre in  1965 under compulsion of the situation cannot  be said  to have  effected the validity of the action taken by the Governor in 1965. [457-F]      S. G.  Jaisinghani v.  Union of  India &  Ors. [1967] 2 S.C.R. 703; referred to.

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    5. Rule  3 of  the Bihar  Police Service  (Recruitment) Rules, 1953 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies  to be filled by proportion, should not be less than half  of the  total number of vacancies to be filled in any year. Adding to the number of vacancies and filling them by promotees  does not certainly violate the rule requiring, that no  less than  half of  the vacancies must be filled by promotees. What  the Governor had done in a previous year in exercise of  his power under rule 3, if it was valid then is not invalidated  by the  subsequent conversion of some posts which were  temporary at  the time into permanent posts with effect from the earlier year. If for administrative reasons 452 such a  measure was  considered necessary,  there is nothing rule 3 to suggest  a bar. Rule 3, as already mentioned, does not prescribe  a fixed  proportion of  promotees and  direct recruits for the vacancies to be filled in any year but only ensures  not  less  that  half  of  the  vacancies  for  the promotees, that  being so,  filling more  than half  of  the vacancies by  promotees, cannot  be an  infringement of that rule. [457G-H, 458A-B]      6. The  gradation list  contains certain  mistakes, and these shall be corrected by the concerned authority. [458F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeals Nos. 1309- 1310 of 1978.      Appeals by  Special Leave  from the  Judgment and Order dated 29-6-1978  of the  Patna High  Court in  C.W.J.C. Nos. 204-205 of 1978.      L. M. Singhvi, and S. K. Verma for the Appellants.      Dr. Y.  S. Chitale,  S. K. Sharma, R. K. Jain, R. A. P. Singh, R.  P. Singh  and B. P. Singh for the Respondent Nos. 3-10, 12, and 13 in CA 1309/78.      R. K.  Jain and R. A. P. Singh for RR 4, 6, 7 & 9 in CA 1310/78.      R. K. Garg, R. A. P. Singh and B. P. Singh for the RR 8 in both the appeals.      D. Goverdhan for the R 1 in both the appeals.      The Judgment of the Court was delivered by      GUPTA J.  The  controversy  in  these  two  appeals  by special leave  relates to  the question of seniority between the direct  recruits and the promotees in the rank of Deputy Superintendent of  Police in  the Bihar  Police Service. The appellants-the same  persons in  both appeals-are  promotees who question  the correctness  of the  judgment of the Patna High Court  by which  the High  Court allowed  the two  writ petitions made  by two  different groups  of direct recruits challenging  the   gradation  list   of   permanent   Deputy Superintendents of  Police published  on February  24, 1978. Fifty-four  temporary  posts  of  Deputy  Superintendent  of Police created  between 1948  and 1970  were made  permanent "from the  dates of  their creation"  by the  Government  of Bihar in December, 1977. Earlier, the Government had decided that continuous  officiating service  of the promoted Deputy Superintendents of Police in these posts should be the basis of their  seniority.  Following  this  decision,  after  the temporary posts  had been made permanent, the gradation list in question was prepared and published.      Admittedly  there   is  no   statutory  rule  governing seniority inter-se  of direct recruits and promotees. In the absence of any such rule

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453 prescribing a  different criterion,  it cannot  be  disputed after Patwardhan’s  case(1) that continuous officiation is a reasonable basis  for fixation of seniority. The High Court, however, allowed  the writ  petitions filed  by  the  direct recruits on  the view that the gradation list was invalid as it  infringed   rule  3   of  the   Bihar   Police   Service (Recruitment)  Rules,  1953  framed  under  the  Proviso  to Article 309 of the Constitution of India. Rule 3 is in these terms:           "The Governor  shall decide in each year to number      of vacancies to be filled in that year.           Provided that the number of vacancies to be filled      by promotion  in the service in any one year shall not,      unless the  Governor is  satisfied that  there is not a      sufficient number  of officers  fit for  promotion,  be      less than  half the  total number  of vacancies  to  be      filled in any such year."      Before we  proceed to  consider the  scope of this rule and its effect on the question of seniority in this case, it would be  necessary to refer to a few more provisions of the Bihar Police  Service (Recruitment)  Rules  and  some  facts forming the background to the controversy.      It is  the Governor’s  duty under  Rule 3 to decide "in each year"  the number  of vacancies  in  the  Bihar  Police Service required to be filled "in that year". The proviso to the rule states that the promotees be to be appointed in any particular year  shall not  be less  than half  of the total number of  vacancies  to  be  filled  in  that  year  unless sufficient number  of officers  fit  for  promotion  is  not available. It  is important to remember that rule 3 does not prescribe a  fixed quota  for each  of the  two  categories, direct recruits  and promotees,  but only  insists  that  at least half  the vacancies in any year should be reserved for the promotees. Rule 2 of these Rules states that recruitment to Bihar  Police Service shall be made by direct recruitment and by  promotion. A  third source  of recruitment was later added in  the Rules  in 1975 with which we are not concerned in this  case. The  Rules as  regards direct appointment are included in  part II  of the  Rules. Rules  22, 23  and  24, occurring in  part III  of the  Rules lay down the method of recruitment  by  promotion.  Under  rule  22  a  preliminary selection of officers for promotion is made in each Range by Range Selection Board. Those selected by the Range Selection Board  have   to  appear   before  the  Inspector  General’s Selection Board. The Inspector General’s Selection Board has to nominate  for appointment  twice as  many  candidates  as there are vacancies to be filled by 454 promotion and  to send  all relevant  papers relating to the candidates nominated  by it  to  the  Bihar  Public  Service Commission and,  at the  same time,  submit a  list of  such candidates to  the Governor.  The Public  Service Commission after examination  of the  Papers is  required to submit its recommendations to the Governor. Rule 24 says that the final selection of  officers to  be promoted  shall be made by the Governor after  considering the  recommendations made by the Public Service Commission.      The appellants  in both these appeals were appointed as Inspectors of  Police in  1953. After  working as Inspectors for about  12 years,  they  were  promoted  by  notification issued  on   June  16,   1965   to   officiate   as   Deputy Superintendents  of   Police.  Before  promotion  they  were subjected to  the scrutinies  prescribed by rules 22, 23 and 24 of  the Bihar  Police Service  (Recruitment) Rules, 1953.

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Rule 648-B  of the Bihar and Orissa Police Manual (Volume I) requires a  promoted Deputy Superintendent of Police to pass an examination  in accounts.  This rule  further says that a promotee shall  be on  probation for one year and at the end of the  period, if he has passed the said examination and is found fit,  he will  be confirmed.  The rule adds that if he has officiated as Deputy Superintendent for one year or more he may be confirmed without further probation on his passing the examination  in  accounts.  The  appellants  passed  the examination and  thus satisfied  all  the  requirements  for confirmation.  However   the  posts   in  which   they  were officiating  were   temporary  posts.   It  appears  from  a memorandum issued  by the  State Government  on December 28, 1955 that  the Government  considered it "desirable that all temporary posts  of all categories, gazetted as well as non- Gazetted, which  are in  existence at present and which will be  necessary  for  an  indefinite  period  should  be  made permanent with  effect  from  1st  April,  1956".  This  was followed  by   another  memorandum   on  September  9,  1967 addressed to  "All Departments  of Govt."  and "All Heads of Departments" on the "Policy regarding making temporary posts under Govt.  in existence  from a  long  period,  permanent" which said  that the  Government had  taken a  decision that "steps should  immediately be  taken ....  to make all those posts permanent  which are  in existence for more than three years and  are  likely  to  continue  in  future."  A  third memorandum on  the  subject  issued  on  November  19,  1971 expressed dissatisfaction  that "no effective step" had been taken to  make the  temporary posts  permanent and requested all  heads   of  departments   to  take   "necessary  steps" "immediately"  to   implement   the   Government   decision. Apparently even  the third  memorandum failed  to  have  any effect. 455      By a  notification dated  August  22,  1974  the  State Government confirmed appellants and other similarly situated officers as  Deputy Superintendents  of Police  with  effect from  dates   which  according   to  these   officers   were arbitrarily chosen.  On September  1,  1974  the  Government published a combined gradation list in which these promotees were  placed   even  below  the  direct  recruits  who  were appointed in  1974. The appellants challenged this gradation list in  the Patna  High Court  by a writ petition (C.W.J.C. 2011 of  1976). While  that writ  petition was  pending, the Government of  Bihar constituted  a  high  power  committee, known  as   the  Saran   Singh  Committee,   to  assess  the promotional prospects  of different  State services, examine the problem  of "stagnation", and suggest remedial measures. The recommendations  made by  the Committee were accepted by the Government  by resolution  dated April  11, 1977. One of the   decisions   taken   by   the   Government   upon   the recommendations of  the Committee, which were set out in the schedule annexed to the resolution, was as follows:           "The  seniority  of  promoted  officers  vis-a-vis      direct recruits  should be  determined by  taking  into      account the  continuous officiating  service instead of      on the  basis of  the length  of substantive service in      the cadre."      On behalf  of the  State Government  it  was  submitted before the  High Court  at the hearing of the aforesaid writ petition  (C.W.J.C.   2011  of  1976)  that  the  Government proposed to  re-examine the  gradation list  in the light of the Committee’s  recommendations. On this statement the High Court directed the State Government to re-examine the matter and prepare  a fresh  gradation list.  None of  the  parties

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appealed against  this order.  Thereafter, on  December  30, 1977, the  State Government wrote to the Accountant General, Bihar, saying  that on  the basis of the Government decision that continuous  officiating service  of the promoted Deputy Superintendents of  Police was  to be  the  basis  of  their seniority, the  Government had  decided that  "the temporary posts created  in the Home (Police) Department would be made permanent from  the dates of their creation." Accordingly 54 temporary posts brought into existence between 1948 and 1970 were converted  into permanent posts by Government order No. 16161 also  dated December  30, 1977.  By notification dated January 7,  1978 the State Government appointed on probation the officers  who had  been officiating  in those posts with effect from  the dates  mentioned against their names in the notification  and   the   notification   issued   previously promoting these officers on officiating basis was cancelled. The dates  from which  these officers were said to have been appointed 456 on  probation   were  the   dates  of   their  promotion  as officiating Deputy  Superintendents of  Police. The names of the appellants  figure against  serial numbers 23, 24 and 25 in the list given in the notification dated January 7, 1978. It is  difficult to  see why  this method  of converting the officiating appointment  into one  on probation  was thought necessary. Rule  648-B of the Bihar and Orissa Police Manual (Volume I)  to which reference has been made earlier in this judgment provides  that if  a  promotee  has  officiated  as Deputy Superintendent  for one  year  or  more,  he  may  be confirmed without  further  probation  on  his  passing  the examination in accounts. It has been already stated that all the appellants  had passed  the  examination.  However,  the revised  gradation   list  which   is  under  challenge  was thereafter issued.  This list,  it was  stated in  a  letter dated January  31, 1978/February  24, 1978  addressed  by  a Joint Secretary  of the  State Government  to the  Inspector General of  Police, Bihar,  Patna, had been "prepared on the basis of  the date of appointment, officiating or permanent, whichever is  earlier, in  the Bihar  Police in the light of Finance Department  Resolution No.  3521 dated  11-4-77  and judgment of the High Court in C.W.J.C. No. 2011/76.. "      In the context of the present controversy two important facts which  have to be kept in mind are: (i) the appellants were promoted  to officiate  as  Deputy  Superintendents  of Police in the year 1965 (other promotees like the appellants had also  been  officiating  as  Deputy  Superintendents  of Police from  different dates between 1948 and 1970) and (ii) by Government  order  dated  December  30,  1977  fifty-four temporary posts  of Deputy  Superintendent of Police created between 1948  and 1970  were made  permanent from  the dates these posts were created.      The only  question here  is whether  there was anything wrong in  fixing the inter-se seniority of the promotees and the direct  recruits on  the basis of continuous officiation by the  promotees. It is well settled that in the absence of any legislation  on the  subject, or a rule framed under the Proviso to  Article  309  of  the  Constitution,  the  State Government can  regulate its public services in the exercise of its  executive power.  (see B.  N. Nagarajan  v. State of Mysore and  Sant Ram Sharma v. State of Rajasthan(2). In the case before  us there is no statute or any rule framed under the Proviso  to Article  309 to  determine the  seniority as between  the   direct  recruits   and  the   promotees.  The determination  of  seniority  on  the  basis  of  continuous officiation has been held valid in S. B. Patwardhan’s case

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457 (supra). The  gradation list  cannot therefore be challenged on the  ground that an arbitrary date was taken as its basis or that it offends Article 14 of the Constitution.      It is  however contended  on behalf  of the respondents who were  the writ petitioners in the High Court that rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 framed under the Proviso to Article 309 of the Constitution, though it is  not a  seniority rule,  does not  permit  the  course adopted in  this case  by the Government, namely, converting the temporary  posts created  between  1948  and  1970  into permanent posts  in the year 1977 with effect from the dates on which  the temporary posts had been created. Under rule 3 the Governor  has to  decide in  each  year  the  number  of vacancies to  be filled  in that year and to secure not less than half  of the  total vacancies  for the  promotees.  The argument is  that for  the year  1965 or for that matter for any year prior to 1977 when the notification under challenge was issued,  the Governor had duly exercised his power under rule 3  in that  very year,  and adding  to  the  number  of existing permanent  posts by  an order  made in a subsequent year after  the  Governor  had  ascertained  the  number  of vacancies  required   to  be  filled  and  had  them  filled according to  the ratio  prescribed by rule 3, would disturb that ratio  and contravene  rule 3.  We are unable to accept this contention  as correct.  In the year 1977 exigencies of the  situation   prompted  the  Government  to  convert  the temporary posts created between 1948 and 1970 into permanent posts with  effect from  the dates  on which  the  temporary posts had been created. The appellants were promoted in 1965 to officiate  as Deputy  Superintendents of  Police in posts which were then temporary. The Governor while exercising his powers under  rule 3  in the  year 1965  could not naturally take into account the number of posts made permanent in 1977 with effect  from 1965.  Whatever was  done subsequently  to increase the  strength of the cadre in 1965 under compulsion of the  situation  cannot  be  said  to  have  affected  the validity of  the action taken by the Governor in 1965. In S. G. Jaisinghani  v. Union  of India & Ors.(1) this Court held that when  the quota  was  fixed  for  the  two  sources  of recruitment, it could not be altered according to exigencies of the  situation. But rule 3 is not really a quota rule, it does not  lay down  a fixed  proportion, all  it does  is to insist  that  the  number  of  vacancies  to  be  filled  by promotion should  not be  less than half of the total number of vacancies  to be filled in any year. Adding to the number of  vacancies   and  filling  them  by  promotees  does  not certainly violate the rule requiring that not less than half of the vacancies must be 458 filled by  promotees.  What  the  Governor  had  done  in  a previous year  in exercise of his powers under rule 3, if it was  valid  then,  is  not  invalidated  by  the  subsequent conversion of  some posts  which were  temporary at the time into permanent  posts with  effect from the earlier year. If for administrative  reasons such  a measure  was  considered necessary, there is nothing in rule 3 to suggest a bar. Rule 3,  as   already  mentioned,  does  not  prescribe  a  fixed proportion  of   promotees  and   direct  recruits  for  the vacancies to be filled in any year but only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule.      In the  view  we  have  taken,  it  is  unnecessary  to consider two  other subsidiary questions raised: (1) whether

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the cadre consisted only of permanent posts or included both permanent and  temporary posts:  according to the appellants the  cadre  should  include  both  temporary  and  permanent officers in the absence of any rule to the contrary. In this Judgment in  reaching the  conclusion stated  above we  have assumed that the cadre consisted of permanent officers only; (ii) Whether  rule 3  has ever been followed since the Rules were framed  in 1953; according to the appellants rule 3 has really not  been observed  in any of those years and that no question of  contravention of  the  rule  can  therefore  be raised in this case.      In the  result we  allow the  appeals,  set  aside  the judgment of  the High  Court and  dismiss the writ petitions C.W.J.C. 204  of 1978  and C.W.J.C. 205 of 1978 filed in the High Court. It appears from an affidavit sworn by Shri Ashok Kumar Sinha,  Under Secretary,  Home (Police) Department, on behalf of the State of Bihar on August 31, 1979 and filed in this Court  on the  same day  that  the  gradation  list  in question contains certain mistakes; these shall be corrected by the concerned authority. In the circumstances of the case we make no order as to costs. N.K.A.                                      Appeals allowed. 459