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PETITIONER: SANT RAM SHARMA

       Vs.

RESPONDENT: STATE OF RAJASTHAN & ANR.

DATE OF JUDGMENT: 07/08/1967

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. WANCHOO, K.N. (CJ) BACHAWAT, R.S. MITTER, G.K. HEGDE, K.S.

CITATION:  1967 AIR 1910            1968 SCR  (1) 111  CITATOR INFO :  R          1972 SC 995  (9)  R          1972 SC1546  (7)  R          1973 SC 303  (9)  E&R        1974 SC  87  (14,18,48)  R          1974 SC 259  (13)  R          1975 SC 984  (8)  RF         1977 SC2411  (26)  F          1980 SC1246  (7)  R          1984 SC 850  (17)  R          1987 SC1676  (19)  RF         1987 SC2135  (6)  E          1988 SC2073  (16)  R          1990 SC 166  (10)  R          1991 SC2288  (12)

ACT: Constitution  of  India, 1950, Arts,  14  and  16--Selection grade  posts in Indian Police Service--Appointment on  basis of merit and seniority considered only when merit  equal--If violative of the guarantee of equality.

HEADNOTE: The  All  India  Services Act,  1951,  empowers  the-Central Government  to make rules for the regulation of  recruitment and  conditions  of service of persons appointed to  an  All India  Service.   In  exercise of  this  power  the  Central Government  framed the Indian Police Service (Regulation  of Seniority)  Rules, 1954.  Rule 6 of the said Rules  requires that  a  Gradation List of all Police Officers  in  a  State should   be   maintained  to  ascertain   their   respective seniority.   Accordingly, a Gradation List wag  prepared  by the  respondent-State in which the petitioner was  shown  as senior  to respondents 3 and 4. In 1955, the petitioner  was superseded by respondents 3 and 4 who were confirmed in  the rank of Deputy Inspector General of Police, and in 1966, the third respondent was promoted as Inspector General of Police and  respondent  4  was appointed  as  Additional  Inspector General   of  Police,  superseding  the   petitioner.    The petitioner  filed a writ petition in this Court  under  Art.

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32,  contending  that: (1) he was entitled as  a  matter  of right to big appointed as Deputy Inspector General of Police in  1955 and as Inspector General of Police, in 1966, as  he was shown as the senior most officer in the Gradation  List; (2)  in  the  absence  of,  any  statutory  rules  governing promotions to selection grade posts the Government could not issue administrative instructions imposing restrict-ions not found in the Rules already framed such as that merit and not seniority should be considered; (3) the introduction of  the idea  of merit into the procedure of promotion is  violative of Arts. 14 and 16, because, it brings in an element of per- sonal evaluation with the consequent abuses of nepotism  and favouritism;  and (4) if the Government is held to have  the power  to  make appointments without making  rules  in  that behalf under the proviso to Art, 309, then the  appointments of respondents 3 and 4 would be arbitrary, capricious and in violation  of Arts. 14 and 16 of the Constitution,  because, the  claims of the petitioner were not considered either  in 1955 or in 1966. HELD:(1) A perusal of rr. 3 and 8 of the Indian  Police Service (Pay) Rules, 1954, read with Part B of Schedule  III of  those  Rules  shows  that  the  three  posts  of  Deputy Inspector  General of Police.  Additional Inspector  General of  Police  and  Inspector  General  of  Po’  lice  in   the respondent  State, are selection posts outside  the  junior’ and senior time scales of Pay.  Promotion to selection grade or selection posts is to be based primarily on merit and not on  seniority alone and therefore, the respondent-State  was not  bound to promote the petitioner merely because  he  was senior in the Gradation List.  [118D-F]. (2)While  Government cannot amend or  supersede  statutory rules by administrative instructions, if rules are silent on any  particular point, Government can fill up the  gaps  and supplement the rules and issue instructions not inconsistent with the rules already framed.                             112 The State Government has executive power in respect of State Public  Services mentioned in Entry 41, List II of  Schedule VII of the Constitution, and, there is nothing in the  terms of Art. 309 which abridges the power of the executive to act under Art. 162 without a law. [119 F-G, H]. T.   Cajee  v. U. Jormanik Siem, [1961] 1 S.C.R. 750 and  B. N. Na. garajanv.  State  of Mysore, [1966]  3  S.C.R.  682, followed. (3)  To  ensure a reasonable prospect of advancement to  all officials  and  at  the  same time  to  protect  the  public interest in having posts filled by the most able men, it  is necessary  to evolve a proper promotion policy in  which  is found  a correct balance between seniority and merit.  As  a matter   of  long  administrative  practice   promotion   to selection grade or selection posts in the Indian Police Ser- vice  had been based on merit, and seniority was taken  into consideration only when merit of the candidates is otherwise equal and no other criterion is available.  Such a procedure does  not, in any way, violate the guarantee under Arts.  14 and 16 of the Constitution [112E; 123C-D]. (4)The  respondent-State  had considered the case  of  the petitioner and taken into account the record, experience and merit of the petitioner and of every other officer  entitled to  be  considered  at  the time  of  the  promotion  before promotion  of  respondents 3 and 4 to  selection  posts  was made,  and therefore, there was no breach of the  provisions of Arts. 14 and 16. [121D-E].

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JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 182 of 1966. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. N.C.  Chatterjee,  K. B. Roastagi, L. M. Singhvi  and  S. Balakrishnan, for the petitioner. C.B. Agarwala, G. C. Kasliwal, Advocate-General,  Rajasthan, Indu Soni and K. Baldev Mehta, for respondent No. 1. N.S.  Bindra,  A.  S. Nambiar and  R.  N.  Sachthey,  for respondent No. 2. K.Baldev Mehta and Indu Soni, for respondents Nos. 3  and 4. The Judgment of the Court was delivered by Ramaswami,  J.-The  petitioner,  Sri  Sant  Ram  Sharma  has obtained a rule from this Court calling upon the respondents to  show cause why a writ under Art. 32 of the  Constitution should  not be granted for quashing two orders of the  State of  Rajasthan, one dated March 22, 1966 whereby Sri  Hanuman Sharma,  respondent No. 3 was promoted as Inspector  General of  Police,  Rajasthan superseding the petitioner,  and  the other  dated  April  28, 1966 promoting  Sri  Sultan  Singh, respondent  No. 4 as Additional Inspector General of  Police superseding the petitioner.  The petitioner has also  prayed for a writ in the nature of mandamus commanding  respondents 1 & 2 to consider the petitioner’s claim as the  senior-most officer in Rajasthan to be promoted to the post of Inspector General  of  Police.   Cause has been shown  by  Mr.  C.  B. Agarwala  on behalf of the State of Rajasthan and the  other respondents  to  whom notice of the rule was ordered  to  be given. 113 The  petitioner,  Sri Sant Ram Sharma was appointed  to  the Indian  Police  Service on June 10, 1952.  On  September  8, 1954  by  a notification of the Ministry  of  Home  Affairs, Government  of India, the Indian Police Service  (Regulation of  Seniority) Rules, 1954 came into force.  Rule 6  of  the said  Rules  required that a Gradation List  of  all  Police Officers  in  the State should be  maintained  to  ascertain their  respective seniority.  Accordingly, a Gradation  List was prepared by the State of Rajasthan in August, 1955.   In this Gradation List, the position of the petitioner was 5th. Sri Hanuman Sharma was shown as occupying the 7th  position, Sri  Sultan Singh stood 14th and the position of Sri  Ganesh Singh  was  17th.   Rule  3 of  the  Indian  Police  Service (Regulation  of Seniority) Rules, 1954 required  that  every officer shall be assigned a year the allotment in accordance with  the provisions contained in that rule.   According  to this rule the year of allotment of the petitioner was  1942, that of. respondent No. 3, Sri Hanuman Sharma 1943, and that of  respondent No. 4, Sri Sultan Singh 1945.  In April  1955 the  question of confirmation of the petitioner and  of  the three other officers, namely, Sri Hanuman Sharma, Sri Sultan Singh  and Sri Ganesh Singh to the rank of Deputy  Inspector General of Police was taken up.  It was decided by the State of  Rajasthan that the petitioner should be  superseded  and the three officers, Sri Hanuman Sharma, Sri Sultan Singh and Sri  Ganesh Singh should be confirmed in the rank of  Deputy Inspector General of Police.  The case of the petitioner  is that  in  June,  1959 Sri Hanuman  Sharma  was  promoted  as Special Inspector-General of Police and on June 2, 1961  the post  was encadred and Sri Hanuman Sharma was  confirmed  in that post.  It appears that, on March 22, 1966, Sri  Hanuman Sharma   was  promoted  as  Inspector  General  of   Police, Rajasthan  and  on  April  28, 1966  Sri  Sultan  Singh  was

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promoted   as   Additional  Inspector  General   of   Police superseding the petitioner.  The notifications of the  State of  Rajasthan  dated March 22, 1966 and April 28.  1966  are annexures ’G’ and ’H’ to the writ petition.  The  contention of  the petitioner is that he was entitled, as a  matter  of right, to be appointed as Deputy Inspector General of Police in 1955 and as Inspector General of Police in 1966 as he was shown  as the senior-most officer in the Gradation List  and the  orders of the State of Rajasthan in annexures  ’G’  and ’H’  are  in violation of the provisions of Rule  6  of  the Indian Police Service (Regulation of Seniority) Rules, 1954. It was also contended for the petitioner that his claim  was not  considered  in  1955 at the  time  of  confirmation  of respondents 3 and 4 as Deputy Inspector General of Police or in  1966 at the time of promotion of respondents 3 and 4  to the  posts  of Inspector General of  Police  and  Additional Inspector General of Police respectively.  It was  therefore said  that  the fundamental rights of the  petitioner  under Arts.  14  and 16 have been violated and the orders  of  the State  of Rajasthan dated March 22, 1966 and April 28,  1966 should  be quashed by the grant of a writ in the  nature  of certiorari  with  a  direction  to  the  1st  respondent  to consider the petitioner’s claim N1sC1-9 114 afresh  for being promoted to the post of Inspector  General of Police. The allegations of the petitioner have been controverted  by the  State  of Rajasthan in its counter-affidavit.   It  was said  that  the  posts  of  Inspector  General  of   Police, Additional Inspector General of Police and Deputy  Inspector General of Police are selection posts which carry pay  above the   time-scale  of  pay  and  for  appointment  to   these selection-posts an officer is chosen not merely on the basis of  his rank in the Gradation List but on the record of  his merit  and  past experience in the Police  Department.   The petitioner  was  appointed to the Indian Police  Service  on June 10, 1952 but even before that date Sri Hanuman  Sharma, Sri Sultan Singh and Sri Ganesh Singh were appointed to  the Indian  Police  Service  in  1951  and  they  were   already officiating  as  Deputy Inspector General  of  Police.   Sri Hanuman  Sharma and Sri Sultan Singh were officiating  since April 22, 1952 and Sri Ganesh Singh since May 17, 1952.  The petitioner  was  confirmed  in the Senior  Scale  of  Indian Police Service on June 10, 1954 but the other three officers were  confirmed  in the Senior Scale of  the  Indian  Police Service on March 24, 1953, i.e., more than a year before the confirmation  of  the  petitioner.   When  the  question  of confirmation of the officers to the post of Deputy Inspector General  of  Police arose in 1955, the  State  of  Rajasthan considered  the  comparative  merit  of  all  the   officers concerned  including  that  of the  petitioner  and  it  was decided to confirm respondents 3 & 4 and Sri Ganesh Singh as Deputy  Inspector  General of Police in  preference  to  the petitioner in view of their outstanding record and merit and experience  in  the  Police  Department.   As  regards   the promotion  of  respondent  No. 3 to the  post  of  Inspector General  of  Police and of respondent No. 4 to the  post  of Additional  Inspector General of Police, it was stated  that the petitioner had no right to the selection posts  carrying pay above the time-scale of pay and that the appointment  to those posts was at the discretion of the State of  Rajasthan which  decided the question after taking into  consideration the  merit  of all the officers concerned.  It  was  further stated  that  the  power of appointment  was  not  exercised

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arbitrarily but was exercised in the interest of  efficiency and good administration and that the promotion to  selection posts  was on the basis of merit alone and it was only in  a case where the merit of the two officers was equal that  the seniority  of one officer in the Gradation List  might  tilt the  case  in his favour.  It was denied by  the  respondent that  there was any violation of the Indian  Police  Service (Regulation of Seniority) Rules, 1954. The  question for determination in this case is whether  the petitioner  was  entitled, as of right, to  be  promoted  as Deputy  Inspector General of Police in 1955 or as  Inspector General of Police in 1966 merely on the ground that his name stood  first in the Gradation List prepared under Rule 6  of the  Indian Police Service (Regulation of Seniority)  Rules, 1954. 115 Sub-section (1) of s. 3 of the All India Services Act,  1951 (LXI of 1951) empowers the Central Government to make  rules for the regulation of recruitment and conditions of  service of  persons appointed to an All-India Service.  In  exercise of  this  power  the Central Government  framed  the  Indian Police Service (Regulation of Seniority) Rules, 1954.   Rule 2 (a) provides that "Cadre" means "an Indian Police  Service Cadre  constituted in accordance with rule 3 of  the  Indian Police  Service  (Cadre) Rules, 1954".  Rule 2  (d)  defines "gradation  list" to mean "a gradation list  prepared  under rule 6".  Rule 2(g) defines a "senior post" to mean "a  post Included under item 1 of each Schedule to the Indian  Police Service  (Fixation of Cadre Strength) Regulations,  1955  or any post declared equivalent thereto by the State Government concerned".   Rule  3 deals with the assignment of  year  of allotment and reads as follows:-               "(1) Every officer shall be assigned a year of               allotment  in accordance with  the  provisions               hereinafter contained in this rule.               (2)The  year  of allotment of  an  officer  in               service  at  the commencement of  these  rules               shall be the same as has been assigned to  him               or  may  be  assigned to him  by  the  Central               Government  in accordance with the orders  and               instructions  in force immediately before  the               commencement of these rules:               (3)The   year  of  allotment  of  an   officer               appointed    to   the   Service   after    the               commencement of these rules, shall be-               (a)   where  the officer is appointed  to  the               Service  on  the  results  of  a   competitive               examination,  the year following the  year  in               which such examination was held;               (b)   where  the officer is appointed  to  the               Service by promotion in accordance with rule 9               of   the  Recruitment  Rules,  the   year   of               allotment   of  the  junior-most   among   the               officers   recruited   to   the   Service   in               accordance  with  rule 7 of  those  Rules  who               officiated continuously in a senior post  from               a  date earlier than the date of  commencement               of such officiation by the former:               Provided  that  the year of  allotment  of  an               officer appointed to the Service in accordance               with  rule  9  of the  Recruitment  Rules  who               started  officiating continuously in a  senior               post  from  a date earlier than  the  date  on               which  any  of the officers recruited  to  the               Service,  in accordance with rule 7  of  those

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             Rules,   so  started  officiating   shall   be               determined ad hoc by the Central Government in               consultation   with   the   State   Government               concerned;               116               Rule  4 relates to seniority of  officers  and               reads as follows: -               "4.  (2) The seniority of officers in  service               at the commencement of these rules shall be as               has  been determined or may be  determined  by               the Central Government in accordance with  the               orders  and instructions in force  immediately               before the commencement of these rules:               Provided  that  where  the  seniority  of   an               officer appointed in accordance with rule 9 of               the Recruitment Rules has not been  determined               before  the commencement of these  rules,  his               seniority  shall be determined  in  accordance               with the provision in sub-rule (3). Rule  5 deals with seniority of officers placed in  List  II and  List III by the Special Recruitment Board and Rule  5-A deals with seniority of officers appointed under the  Indian Police  Service  (Special  Recruitment)  Regulations.  1957. Rule 6 states:               "6.  Gradation List.-There shall  be  prepared               every  year  for each State  Cadre  and  Joint               Cadre a gradation list consisting of the names               of  all officers borne on that Cadre  arranged               in  order of seniority in accordance with  the               provisions of rules 4, 5, 5-A and 7". On behalf of the petitioner Mr. N. C. Chatterjee put forward the  argument  that Rule 6 required that  a  gradation  list should  be  prepared  strictly  in  order  of  seniority  in accordance with the provisions of Rules 4, 5, 5-A and 7  and it  is not open to the State of Rajasthan to  disregard  the claim  of  the petitioner who stood first in  the  Gradation List and to promote respondents 3 & 4 to the rank of  Deputy Inspector  General of Police.  We are unable to  accept  the argument put forward on behalf of the petitioner as correct. it is apparent from a perusal of Rules 3 and 8 of the Indian Police  Service (Pay) Rules, 1954 read with Part B  of  Sch. III  of  those  Rules that the  posts  of  Deputy  Inspector General  of Police, Additional Inspector General  of  Police and  Inspector  General  of Police in  Rajasthan  State  are selection  posts  and outside the junior  and  senior  time- scales  of pay.  Rule 2(a) provides that ’Cadre’ and  ’Cadre post’ shall have the meanings respectively assigned to  them in  the Indian Police Service (Cadre) Rules, 1954.   Rule  3 prescribes  the time-scales of pay admissible to members  of the Service and reads as follows:               "3. Time-scales of pay-The time-scales of  pay               admissible   to a member of the Service  shall               be as follows: -               Junior    Scale-Rs.    350-350-380-380-30-590-               E.B.--30-770---40-850 (19 years).               Senior  Scale.-Rs.  600 (6th  year  under)-40-               1.0001,000-1,050-1,050-1,100-1,100-1.150  (22)               years.               Selection Grade-Rs. .1,250.               117               Provided that a member of the Service  holding               a  post  in  the  senior  time-scale  may   be               appointed to a post in the selection grade and               where he is so appointed, he shall be entitled               to  draw  pay  of the post  in  the  selection

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             grade;               Provided further that a member of the  Service               to  whom  any  other  time-scale  of  pay  was               admissible   under   any   order   in    force               immediately  before the commencement of  these               rules  shall  continue  to draw  pay  in  that               scale". The  rule  prescribes  two scales of  pay-Junior  Scale  and Senior Scale in addition to the Selection Grade which is Rs. 1,250.   Rule  8 deals with pay of  officers  holding  posts enumerated in Schedule III and states as follows: -               "Any member of the Service appointed to hold a               post specified in Schedule 111, shall, for  so               long  as  he holds that post, be  entitled  to               draw  the pay indicated for that post  in  the               said Schedule:               Provided  that no member of the Service  shall               at  any time draw pay less than that which  he               is entitled to draw tinder rule 4 and rule 5;               Provided further that a member of the  Service               to  whom :any other special pay or  pay  above               the time-scale was .admissible under any order               in  force immediately before the  commencement               of these rules for holding posts specified  in               Schedule  III shall, for so long as  he  holds               the post, continue to draw the same pay". The  posts in the Schedule are (a) posts carrying pay  above the  timescale  pay of the Indian Police Service  under  the State  Governments,  specified  in  Section  A,  (b)   posts carrying  pay in the senior time-scale of the Indian  Police Service under the State Governments including posts carrying special pay (in addition to pay in the time-scale) specified in Section B and (c) posts carrying pay above the  timescale or  special pay in addition to pay in the time-scale,  under the  Central  Government  held by members  of  the  Service, specified in Section C. In category (a) so far as the  State of Rajasthan is concerned the posts of Inspector General  of Police,  Additional Inspector General of Police  and  Deputy Inspector  General  of Police are shown as  Selection  Grade posts  carrying  pay above the time-scales of  pay.   It  is manifest therefore, on a perusal of Rules 3 and 8 read  with Part  B  of  Sch.  III, that the three  posts  of  Inspector General  of Police, Additional Inspector General  of  Police and  Deputy  Inspector General of Police  in  Rajasthan  are Selection  posts  and outside the junior  and  senior  time- scales  of pay mentioned in Rule 3. This conclusion is  also supported by para 1 of Part B of Sch.  III which states that "the number of posts in the selection grade in a State Cadre shall  be equal to twenty per centum of the total number  of senior  posts borne on that cadre reduced by the  number  of posts carrying pay above the time-scale".  In support of his contention 118 Mr. N. C. Chatterjee referred to the decision of this  Court in P. C. Wadhwa v. Union of India.(1) But the ratio of  that case   has  no  bearing  on  the  question   presented   for determination in the present case.  The question involved in that case was whether under the relevant rules governing the Indian  Police Service, a member thereof was entitled as  of right  to be promoted to a post in the senior scale  as  and when  a  vacancy (except a vacancy in the  promotion  quota) arose  therein  and no one senior to him was  available  for that  post.   It  was held by the majority  of  the  learned Judges that a consideration of the various rules would  make it clear beyond doubt that a person in the junior time-scale

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of  the service is as much a cadre officer as one holding  a post in the senior time-scale or a post above the  timescale and the whole scheme of the rules indicated that a person in the  junior scale of pay had a right to hold a post  on  the senior scale of pay subject to the availability of a post in the  senior  scale of pay and his seniority  in  the  junior scale  of pay.  At page 627 of the Report Mudholkar,  J.  in the course of his judgment expressly observed-"we should not be  understood  as  saying that this right  extends  to  the appointment  to a post carrying pay above time-scale of  pay or  a post carrying a special pay, and the  rules  governing appointment  to such posts were not placed before us".   The decision of this Court in P. C. Wadhwa v. Union of  India(1) is therefore of no assistance to the petitioner and for  the reasons  we have already given, we are of the  opinion  that the  three posts of Inspector General of Police,  Additional Inspector General of Police and Deputy Inspector General  of Police  in Rajasthan State are selection posts  and  outside the  junior  or senior time-scales of pay.  If  these  three posts  are selection posts it is manifest that the State  of Rajasthan  is  not bound to promote  the  petitioner  merely because   he  stood  first  in  the  Gradation  List.    The circumstance  that  these posts are  classed  as  ’Selection Grade  Posts’ itself suggests that promotion to theme  posts is not automatic being made only on the basis of ranking  in the  Gradation  List  but the question of  merit  enters  in promotion   to  selection  posts.   In  our   opinion,   the respondents  are right in their contention that the  ranking or position in the Gradation List does not confer any  right on the petitioner to be promoted to selection posts and that it  is a well-established rule that promotion to  :selection grades or selection posts is to be based primarily on  merit and not on seniority alone.  The principle is that when  the claims   of   officers   to   selection   posts   is   under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion   is  therefore  available.   The   administrative practice  with regard to selection posts is laid down  in  a letter of the Government of India dated July 31 ,August,  3, 1954 as follows: - .lm15 "If  a  person,  though senior in  the  gradation  list,  is appointed to the selection post later than his junior,  this is  presumably  because  he is superseded  as  a  matter  of selection. (1)  [1964] 4 S.C.R. 598.                             119 If  this  is so, it would certainly not  be  unjustified  to regard the officer so selected earlier, though junior in the gradation  list, as senior to the other officer, as  far  as the selection posts are concerned". Another communication dated June 1, 1955 states: "All super-time scale posts are selection posts and appoint- ment thereto need not follow the order of seniority". In  another letter No. 7/6/56-AIS(1) dated October  5,  1956 the  Government  of India has reiterated  the  principle  of promotion to selection grade posts as follows:               "I  am directed to say that the Government  of               India have recently had. occasion to  consider               the question of the principles to be  followed               in the matter of promotion of I.P.S.  Officers               to  the  selection  Grade  when  some  of  the               officers  junior in service were approved  and               given  officiating chances in  such  selection               grades earlier than their seniors.  It is,  of

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             course,  a  well  established  principle  that               promotions   to  the  Selection  Grade  or   a               selection  post  is to be based  primarily  on               merit    and    not    seniority    in     the               service .............................." We  proceed  to  consider the next contention  of  Mr.  N.C. Chatterjee  that  in  the absence  of  any  statutory  rules governing promotions to selection grade posts the Government cannot   issue   administrative   instructions   and    such administrative instructions  cannot impose any  restrictions not  found  in the Rules already framed.  We are  unable  to accept  this argument as correct.  It is true that there  is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade  posts.   But that does not mean that  till  statutory rules are framed in this behalf the Government cannot  issue administrative  instructions regarding the principle  to  be followed   in  promotions  of  the  officers  concerned   to selection  grade posts.  It is true that  Government  cannot amend   or  supersede  statutory  rules  by   administrative instructions, but if the rules are silent on any  particular point  Government  can fill up the gaps and  supplement  the rules and issue instructions not inconsistent with the rules already framed. In  B. N. Nagaraja’n v. State of Mysore,(1) it  was  pointed out  by  this  Court that it is  not  obligatory  under  the proviso  to  Art. 309 of the Constitution to make  rules  of recruitment, etc., before a service can be constituted or  a post created or filled, and, secondly, the State  Government has executive power, in relation to all matters with respect to  which  the Legislature of the State has power,  to  make laws.   It follows from this that the State Government  will have  executive power in respect of Sch. 7, List II.   Entry 41, State Public Services, and there is nothing in the terms of Art. 309 of the Constitution which abridges the power  of the  executive  to act under Art. 162  of  the  Constitution without a law.  A similar view (1) [1966] 3 S.C.R. 682. 120 was  taken by this Court in T. Cajee v. U. Jormanik  Siem(1) where Wanchoo, J., as he then was, who delivered judgment on behalf  of the majority, observed as follows at pp.  762-764 of the Report:               "The  High Court has taken the view  that  the               appointment  and succession of a Siem was  not               an  administrative  function of  the  District               Council  and that the District  Council  could               only  act by making a law with the  assent  of               the  Governor  so far as the  appointment  and               removal  of  a Siem was  concerned.   In  this               connection,  the  High Court relied  on  para.               3(1)(g) of the Schedule, which lays down  that               the  District Council shall have the power  to               make laws with respect to the appointment  and               succession  of Chiefs and Headmen.   The  High               Court seems to be of the view that until  such               a  law  is  made there could be  no  power  of               appointment  of  a  Chief  or  Siem  like  the               respondent  and in consequence there would  be               no power of removal either.  With respect,  it               seems  to us that the High Court has read  far               more  into para. 3(1)(g) than is justified  by               its  language.   Paragraph  3(1)  is  in  fact               something   like   a  legislative   list   and               enumerates the subjects on which the  District

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             Council  is  competent to  make  laws.   Under               para.  3(1)(g) it has power to make laws  with               respect  to the appointment or  succession  of               Chiefs  or  Headmen and this  would  naturally               include the power to remove them.  But it does               not  follow from this that the appointment  or               removal  of  a Chief is a legislative  act  or               that  no  appointment or removal can  be  made               without  there  being  first  a  law  to  that               effect.               Further  once the power of  appointment  falls               within  the  power of  administration  of  the               district the power of removal of officers  and               others  so appointed would necessarily  follow               as  a corollary.  The Constitution  could  not               have  intended that all administration in  the               autonomous  districts  should come to  a  stop               till the Governor made regulations under para.               19(1)(b)  or till the District Council  passed               laws under para. 3(1)(g).  The Governor in the               first  instance  and  the  District   Councils               thereafter were vested with the power to carry               on the administration and that in our  opinion               included  the power to appoint and remove  the               personnel for carrying on the  administration.               Doubtless  when  regulations  are  made  under               para. 19(1)(b) or laws are passed under  para.               3(1)  with  respect  to  the  appointment   or               removal  of the personnel of  the  administra-               tion, the administrative authorities would  be               bound to follow the regulations so made or the               laws so passed.                                    121               But from this it does not follow that till the               regulations were made or the laws were passed,               there could be no appointment or dismissal  of               the  personnel of the administration.  In  our               opinion,  the authorities concerned  would  at               all  relevant times have the power to  appoint               or  remove administrative personnel under  the               general power of administration vested in them               by  the  Sixth Schedule.  The  view  therefore               taken by the High Court that there could be no               appointment or removal by the District Council               without a law having been first passed in that               behalf   under   para.   3(1)(g)   cannot   be               sustained." We  pass  on  to consider the next contention  of  Mr.  N.C. Chatterjee that if the executive Government is held to  have power  to  make  appointments and  lay  down  conditions  of service  without  making  rules in  that  behalf  under  the proviso  to Art. 309, there will be a violation of Arts.  14 and  16  because  the appointments would  be  arbitrary  and capricious.   In  our view, there is no  substance  in  this contention of the petitioner.  If the State of Rajasthan had considered  the case of the petitioner along with the  other eligible  candidates  before appointments to  the  selection posts there would be no breach of the provisions of Arts. 14 and 16 of the Constitution because everyone who was eligible in  view  of the conditions of service and was  entitled  to consideration  was actually considered before  promotion  to those selection posts was actually made.  It was said by Mr. C.  B.  Agarwala  on  behalf  of  the  respondents  that  an objective  evaluation of the merit of the officers  is  made each  year and promotion is made on scrutiny of the  record-

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sheets   dealing   with  the  competence,   efficiency   and experience of the officers concerned.  In the present  case, there  is  no specific allegation by the petitioner  in  the writ  petition that his case was not considered  along  with respondents  3 & 4 at the time of promotion to the posts  of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Additional Inspector  General of  Police in 1966.  There was, however, a vague  suggestion made  by  the petitioner in paragraph 68 of  his  rejoinder- petition  dated  July 17, 1967 that  "the  State  Government could  not  have  possibly  considered  my  case,  as   they considered and even in this counter-affidavit consider  Shri Hanuman Sharma and Sri Sultan Singh senior to me by the  new type  of  seniority they have invented for  their  benefit". Even   though  there  is  no  specific  allegation  by   the petitioner  that  there was no consideration  of  his  case, respondent  No. 1 has definitely asserted in paragraphs  23, 25,  40 and 44 of the counter-affidavit that at the time  of promotion  of  respondents 3 & 4 to the selection  posts  of Deputy Inspector General of Police and of Inspector  General of Police the case of the petitioner was considered.  We are therefore  of the opinion that the petitioner is  unable  to substantiate his argument that there was no consideration of his  case at the time of promotion of respondents 3 &  4  to the  selection  posts.   We must therefore  proceed  on  the footing that respondent No. 1 had considered the case of the petitioner and 122 taken  into account the record, experience and merit of  the petitioner at the time of the promotion of respondents 3 & 4 to the selection grade posts.  It is therefore not  possible to  accept the argument of Mr. N. C. Chatterjee  that  there was  any  violation of the  constitutional  guarantee  under Arts.  14  and 16 of the Constitution in the  present  case. Mr.  N.  C. Chatterjee argued that the introduction  of  the idea  of merit into the procedure of promotion brings in  an element of personal evaluation, and that personal evaluation open is the door to the abuses of nepotism and  favouritism, and  so,  there  was  a.  violation  of  the  constitutional guarantee under Arts. 14 and 16 of the Constitution.  We are unable  to  accept  this  argument  as  well-founded.    The question  of  a proper promotion policy depends  on  various conflicting factors.  It is obvious that the only method  in which  absolute  objectivity  can  be  ensured  is  for  all promotions  to  be made entirely on  grounds  of  seniority. That  means that if a post falls vacant it is filled by  the person who has served longest in the post immediately below. But  the trouble with the seniority system is that it is  so objective  that  it fails to take any  account  of  personal merit.  As a system it is fair to every official except  the best  ones; an official has nothing to win or lose  provided he does not actually become so inefficient that disciplinary action has to be taken against him.  But, though the  system is fair to the officials concerned, it is a heavy burden  on the  public and a great strain on the efficient handling  of public  business.   The problem therefore is how  to  ensure reasonable  prospect of advancement to all officials and  at the same time to protect the public interest in having posts filled  by the most able men?  In other words, the  question is how to find a correct balance between seniority and merit in a proper promotion-policy.  In this connection Leonard D. White has stated as follows:-               "The principal object of a promotion system is               to secure the best possible incumbents for the               higher positions, while maintaining the morale

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             of the whole Organisation.  The main  interest               to  be served is the public interest, not  the               personal  interest of members of the  official               group concerned.  The public interest is  best               secured  when  reasonable  opportunities   for               promotion  exist for all qualified  employees,               when   really  superior  civil  servants   are               enabled  to move as rapidly up  the  Promotion               ladder   as  their  merits  deserve   and   as               vacancies   occur,  and  when  selection   for               promotion is made on the sole basis of  merit.               For  the  merit  system  ought  to  apply   as               specifically   in  making  promotions  as   in               original recruitment.               Employees often prefer the rule of  seniority,               by  which the eligible longest in  service  is               automatically  awarded the promotion.   Within               limits, seniority is entitled to consideration               as  one criterion of selection.  It  tends  to               eliminate   favouritism   or   the   suspicion               thereof; and experience is               123               certainly   a  factor  in  the  making  of   a               successful employee.  Seniority is given  most               weight in promotions from the lowest to  other               subordinate  positions.  As employees move  up               the  ladder of responsibility, it is  entitled               to  less and less weight.  When  seniority  is               made  the  sole  determining  factor,  at  any               level.  it is a dangerous guide.  It does  not               follow that the employee longest in service in               a   particular  trade  is  best   suited   for               promotion to a higher grade; the very opposite               may be true". (Introduction  to  the Study of Public  Administration,  4th Edn., pp. 380, 383). As  a  matter of long administrative practice  promotion  to selection grade posts in the Indian Police Service has  been based   on   merit  and  seniority  has  been   taken   into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N.  C. Chatterjee  that  this procedure violates, in any  way,  the guarantee under Arts. 14 and 16 of the Constitution. For  the reasons expressed we hold that the  petitioner  has been unable to make out a case for the grant of a writ under Art. 32 of the Constitution.  The petition accordingly fails and is dismissed.  There will be no order as to costs in the Circumstances of this case. Petition dismissed. V. P. S. 124