Kumar & Ors Vs. Union of India & Ors  Insc 350 (3 April 2007)
Dr. Arijit Pasayat & S.H. Kapadia
A short question which arises for determination in this civil appeal is
whether the State Government could have invoked Rule 14 of the Punjab Police
Service Rules, 1959 (dealing with the power of relaxation) when there was no
provision in the said Rules for absorption of Deputationists on permanent basis
from Central Reserve Police Force ("CRPF") in Punjab Police Service.
The facts giving rise to this civil appeal are as follows.
Shri Avinder Singh Brar, IPS was killed by the terrorists.
He was an officer in the Punjab Police Service. On account of the above
incident, his sister, Ms. Amrit Brar-respondent no.
4, stood appointed on 9.6.1989 as Assistant Commandant in CRPF on probation
for two years. She was appointed in CRPF under above tragic circumstances. She
was the only child of her parents. She was appointed in CRPF as her assignment
was relatively safer in CRPF than in Punjab Police Service.
These facts are important since they show that the appointment of respondent
no. 4 was not compassionate but as an exception. Her appointment was to be
governed by CRPF Rules. She completed here probation on completion of two
years. On 16/17.8.1993, Ms. Amrit Brar was appointed on deputation to the post
of Superintendent of Police (SP) in Punjab Police. She retained her lien as
Assistant Commandant in CRPF till 11.9.1998 when she was absorbed as DSP in
Punjab Police. She was allowed all benefits including pay and seniority from
9.6.1989. In between, Ms. Amrit Brar was promoted to the post of Deputy
Commandant in CRPF in March, 1995.
The appellants herein are officers of Punjab Police Service. Some of the
appellants are recipients of the President's medal for gallantry for having
fought terrorism in the State of Punjab. The appellants challenged the orders
of the State Government in the Punjab and Haryana High Court granting
absorption to Ms. Amrit Brar, particularly on the ground that the Punjab Police
Service Rules did not contemplate absorption of a deputationist from CRPF. The
appellants challenged the absorption on the grounds that Ms. Amrit Brar was
granted benefit of compassionate appointment as Assistant Commandant in CRPF in
1989 and, therefore, she was not entitled to double benefit of compassionate
absorption in 1998 and that too from 9.6.1989.
The appellants' main grievance before the High Court was that giving the
benefit of seniority to Ms. Amrit Brar from 9.6.1989 would make her senior to
almost ten other officers. According to the appellants, the consequences of
seniority being given to Ms. Amrit Brar would mean supersession of the
According to the appellants, Ms. Amrit Brar stood appointed to Class I post
in the CRPF as Assistant Commandant on compassionate ground and, therefore,
there was no cause for second exercise of this power by the State Government
after almost nine years. The appellants further submitted before the High Court
that there were many officers on deputation with Punjab Police Service from
various Para Military Forces, including CRPF, most of whom had come on
deputation even prior to Ms. Amrit Brar. Appellants further contended before
the High Court that, in fact, the State Government had notified Punjab
Absorption of Officers of Para Military Forces (Group A) Service Rules, 2005
and under the said Rules, the State Government had created ex-cadre posts for
absorption of Para Military Forces officers, who were on deputation with the
State of Punjab and who were to be absorbed in Punjab Police Service. According
to the appellants, if the benefit of seniority was to be given to Ms. Amrit
Brar from 9.6.1989 then even in the matter of absorption she would supersede a
number of other officers.
By the impugned judgment dated 24.1.2006, the High Court dismissed CWP No.
11548/96 filed by the appellants herein. One of the main grounds urged by the
appellants before the High Court was that regularization of the services of Ms.
Amrit Brar with effect from 9.6.1989 and absorption of a deputationist in
Punjab Police Service would amount to creation of a separate Method of
Recruitment. According to the appellants, under the said Rules there were only
two sources of recruitment, 80% is by promotion and 20% is by direct recruitment.
This contention was rejected by the High Court saying that the word(s)
"direct appointment" in the said Rules would include appointment by
deputation and, therefore, Rule 14 was applicable to the present case.
Aggrieved by the decision of the High Court, the appellants have come to this
Court by way of the present civil appeal.
On behalf of the appellants, it was urged that the State Government had
violated the appellants' fundamental rights under Articles 14 and 16(1) of the
Constitution of India by reason of absorption of Ms. Amrit Brar as Deputy
Superintendent of Police with effect from 9.6.1989. According to the
appellants, Ms. Amrit Brar was appointed on compassionate grounds in CRPF as an
Assistant Commandant and she retained her lien in CRPF till she stood absorbed
in Punjab Police Service on 11.9.1998. According to the appellants, Ms. Amrit
Brar was even given promotion in CRPF from the post of Assistant Commandant to
the post of Deputy Commandant. According to the appellants a number of concessions
were given to respondent no. 4. Ms. Amrit Brar was appointed in 1989 as
Assistant Commandant in CRPF on compassionate ground; that her post in Punjab
Police was taken out of the purview of Public Service Commission vide
Government's Order dated 13.10.1997 and that even the rules of competitive
examination were relaxed. According to the appellants, Ms. Amrit Brar was not
entitled to the double benefit of appointment in CRPF on compassionate grounds
and absorption in Punjab Police Service again on compassionate grounds.
According to the appellants, deputation is not a source of recruitment in
Punjab Police Service. According to the appellants, the effect of the impugned
judgment was to open one more source of recruitment which is not provided for under
Punjab Police Service Rules, 1959 ("1959 Rules"). According to the
appellants, CRPF in its activities is confined to law and order whereas Punjab
Police functions require crime detection, in addition to policing. Moreover,
according to the appellants, Ms.
Amrit Brar had not undergone that required training.
According to the appellants, even ACRs. were not scrutinized when Ms. Amrit
Brar was taken on deputation in Punjab Police Service on 16/17.8.1993.
According to the appellants, CRPF personnel are governed by CRPF Rules. They
are not governed by the said Punjab Police Service Rules, 1959. Under the said
1959 Rules, the State Government has not even maintained ACRs. of Ms. Amrit
Brar between 16/17.8.1993 and 11.9.1998. The reason being that Ms. Amrit Brar
had a lien to a post in CRPF. It is for this reason that Ms. Amrit Brar stood
promoted to the post of Deputy Commandant on the basis of ACRs. given in March,
1995. Therefore, her entire service record during the above period was governed
by the CRPF Rules and, consequently, her absorption in Punjab Police was
without authority of law and in violation of appellants' fundamental rights
under Article 14 read with Article 16(1) of the Constitution of India,
particularly in view of the Government conferring the benefit of seniority on
her with effect from 9.6.1989.
On behalf of the State Government, it was urged that under Punjab Police
Service Rules, 1959 the Method of Recruitment has been provided. Under the said
1959 Rules, there are two sources of recruitment. The sources include direct
recruitment. It was urged on behalf of the State Government that the words
'direct recruitment' in the said 1959 Rules has been defined to mean
appointment by any mode. According to the respondents, a deputationist would come
within the definition of direct appointment under Rule 2(b) read with Rule 13.
In the circumstances, it was urged on behalf of the State that once the concept
of deputation fell within the meaning of direct appointment, the State was
entitled to apply the rule of relaxation contemplated in Rule
14. According to the Government, the post was taken out of the purview of
Public Service Commission vide letter dated 13.10.1997. Further, Rule 6 which
refers to competitive examination stood relaxed and accordingly on such
relaxation, Ms. Amrit Brar was absorbed as a Deputy S.P. in Punjab Police in
1998 with effect from 9.6.1989, which the State Government was entitled to do.
It was urged on behalf of the State Government that, on her absorption, Ms.
Amrit Brar stood appointed in Punjab Police as a direct recruit. According to
the State Government, Ms. Amrit Brar had worked in Punjab Police on deputation
from 16/17.8.1993. According to the State Government, Ms. Amrit Brar who had
worked as an Assistant Commandant/ Deputy S.P. in CRPF between 9.6.1989 and
16/17.8.1993 and, consequently, absorbed in 1998 as a Deputy S.P. in Punjab
Police, was entitled to the benefit of her experience in CRPF with effect from
9.6.1989. It was urged on behalf of the State Government, that even in CRPF the
designation of Ms. Amrit Brar was Deputy S.P. and that the nature of the duties
of Deputy S.P. in CRPF and the functions of Deputy S.P. in Punjab Police were
identical and, therefore, the experience and the work put in by Ms. Amrit Brar
as Deputy S.P. in CRPF had to be taken into account while absorbing her in
Punjab Police Service. According to the State Government, on application of
Rule 14, Ms. Amrit Brar was entitled to the benefit of the past service and
accordingly she had been given seniority in Punjab Police on and from 9.6.1989,
therefore, according to the State Government, there was no breach or violation
of Article 14 and Article 16 of the Constitution.
At the outset, we may state that the country owes its gratitude to the brave
officer, Shri Avinder Singh Brar, IPS, who was killed at the hands of
terrorists. The above facts show that Ms. Amrit Brar was appointed rightly on
compassionate grounds as an Assistant Commandant in CRPF on 9.6.1989.
The State Government was right in initially appointing her as an Assistant
Commandant in CRPF, since in 1989 terrorism was at its peak in the State and
that her posting as an Assistant Commandant was relatively safer than her
posting in Punjab Police. She was the only child of her old parents.
She had to be, therefore, protected. However, that could not make her
appointment a compassionate appointment. It was an exceptional appointment.
There cannot be a second opinion on this count. After the situation improved,
she was taken on deputation in Punjab Police. This was in 1993. We do not find
any infirmity in the action of the State Government under the above
circumstances in appointing Ms. Amrit Brar as a deputationist even in Punjab
Police Service. We make it clear that Punjab Police Service Rules provide for
two sources of recruitment. One is by direct recruitment, another is by way of
promotion. Although, the said 1959 Rules do not provide for such appointment as
a deputationist in the normal cadre, the Government, in exceptional cases, can
appoint deputationists in Punjab Police Service. This is one such case. We do
not find any infirmity in the action of the State Government in appointing Ms.
Amrit Brar as a deputationist in Punjab Police Service. She is entitled to
those benefits under the above circumstances. Further, as state above, Ms.
Amrit Brar stood absorbed in Punjab Police Service as Deputy S.P. on 11.9.1998.
Even her absorption has been made on giving relaxation, as indicated above.
This was by way of one time exercise in an exceptional case. The only dispute,
therefore, is whether Ms. Amrit Brar was entitled to one more benefit of
seniority with effect from 9.6.1989.
Direct appointment as a source of recruitment is different from Deputation/
Transfer in the method of recruitment. In the present case, the dispute
revolves around inter se dispute in the cadre of DSP, in Punjab Police, which
is the Feeder Post.
If seniority is to be given to Ms. Amrit Brar with effect from 9.6.1989 then
she supersedes the appellants, who have also contributed in the elimination of
terrorism in the State. It is the next higher post which the appellants and
4 aims for. It is the inter se seniority which gives rise to the dispute
between the appellants and the State. When inter se seniority is to be fixed
the concept of equality has to be kept in mind. Equality before law and equal
protection of law are the basic postulates of Article 14 read with Article
16(1) of the Constitution. We have to keep in mind the rights of the appellants,
who have been in service and who are also entitled to seniority and promotion
in the cadre. We quote hereinbelow Rules 2(b), 6, 7, 8, 10, 13 and 14 of Punjab
Police Service Rules, 1959.
"2. Definitions.-In these rules, unless there is anything repugnant in
the subject or context,- xxx (b) 'direct appointment' means an appointment made
otherwise than by promotion of an Inspector.
6. Method of recruitment.- (1) Recruitment to the Service shall be made -
(i) Eighty per cent by promotion form the rank of Inspector, and twenty per
cent by direct appointment:
Provided that only those Inspectors will be eligible for promotion who- (a)
in the case of Inspectors (both promoted from subordinate rank and directly
recruited) have got six years continuous service (officiating as well as
substantive) in the rank of Inspector; and (b) in case they are Prosecuting
Inspectors, have got eight years' continuous service (both officiating and
substantive) in the rank of Prosecuting Inspector.
(2) Appointments by promotions shall be made by the Government from
Inspectors brought on list 'G' which will be a list of officers considered fit
for promotion to the rank of Deputy Superintendent of Police, prepared by
Government in consultation with the Commission. The names in this list prepared
at one time shall be arranged according to their inter se seniority. This list
will be maintained in two parts: Part I (for officers from the Executive line)
and Part II (for officers from the Prosecution line).
(3) Direct appointment to the Service shall be made on the result of a
competitive examination conducted by the Commission. The syllabus and rules
relating to the examination will be framed by the Government in consultation
with the Commission. The examination will include a viva voce test. Only those
candidates will be interviewed for the viva voce test who obtain not less than
the minimum qualifying marks fixed by the Commission in the written
examination. The Inspector-General of Police, Punjab will be present at the
interview and will be entitled to put questions to the candidate and to express
his views to the Commission. A candidate's position shall be determined by
adding the marks obtained by him in the written examination and in viva voce
Provided that other things being equal, preference will be given to a
candidate who has worked for the cause of national independence or has rendered
some outstanding social or public service.
7. Qualifications.- (1) No person shall be recruited to the Service by
direct appointment unless- (i) he is not less than twenty-one years and not
more than twenty-five years of age on the first of February of the year in
which appointment is to be made;
(ii) he produces a certificate of physical fitness as prescribed by rule 3.1
of the Punjab Civil Services Rules, Volume, Part I;
(iii) he has a minimum height of 5'-7"
and normal chest measurement of 33" with expansion of 1-1/2".
(iv) he is a graduate of a recognized university and possesses knowledge of
both Hindi and Punjabi upto the Matriculation or its equivalent standard.
Provided that the upper age limit prescribed in sub-clause (i) shall be
thirty years in the case of Scheduled Castes, Schedules Tribes and Backward
Provided further that the physical standard prescribed in sub-clause (iii)
shall not be relaxed without special sanction of the Government;
(2) No male candidate who has more than one wife living and no female
candidate who has married a person having already a wife living shall be
eligible for appointment to the service;
Provided that this disqualification shall not be applicable in cases where
it was incurred before the 8th September, 1954, and the recruitment is to be
made by promotion.
(3) (i) The Government shall notify to the Commission the number of vacancies
to be filled by direct appointment during the year, and the Commission will
proceed to give publicity to the proposed appointments and invite applications.
If applications are invited before the results of the University Examinations
have been notified, candidates appearing or who have appeared in the Bachelor
of Arts or equivalent examination, will be allowed to submit provisional
(ii) The applications received will be referred for scrutiny to the
Inspector-General of Police, Punjab, who may make such enquiries as he may
think fit and shall thereafter return all the application with his remarks, if
any, to the Commission.
(iii) The Commission will scrutinize all applications received and admit to
the examination mentioned in sub-rule(3) of rule 6 all those candidates who are
found to be eligible in accordance with these rules.
(iv) Success in the examination will confer no right on any candidate to
appointment, unless Government is satisfied, after such enquiry as may be
considered necessary, that the candidate is suitable in all respects for
appointment to the Service.
8. Probation of members of Service.
(a) Members of the Service shall be on probation for two years, which shall
include the period of training at the Police Training School, Phillaur, and in
the districts and in the case of members recruited by promotion the Government
may, by a special order in each case, permit periods of officiating
appointment, to the Service to count towards the period of probation.
(b) The services of a member recruited by direct appointment may be
dispensed with by Government on his failing to pass the final examination at
the end of his period of training, or on his being reported on, during or at
the end of his period of probation, as unfit for appointment.
Provided that the Government may, if it deems fit extend the period of
probation by not more than one year.
(c) The Inspector-General of Police, Punjab may require any member of the
service on probation appointed by promotion from the rank of an Inspector to
undergo a special course of training and to pass the prescribed examination in
any subject or subjects, including a compulsory language in which his
qualification may be defective. Any such probationer failing to pass the
examination prescribed for him or being unfavourably reported on, may be
reverted to his substantive rank of Inspector.
10. Seniority of members of Service. The seniority of members of the Service
shall be determined by the date of confirmation in the service.
Provided that if two or more members are confirmed on the same date.
(i) a member who is appointed to the Service by promotion shall be senior to
a member appointed otherwise.
(ii) in the case of members who were appointed by direct appointment, the
seniority shall be determined in accordance with their position in the
(iii) in the case of members who were appointed to the service by promotion,
the seniority shall be determined in accordance with the date of their entry in
promotion list 'G'.
13. Matters not expressly provided in these rules- In respect of all matters
not specifically mentioned in these rules, the member of the Service shall be
governed by such general rules as may have been or may hereafter be framed by
the Government under the provisions of the Constitution of India in this
14. General powers to relax rules.- Where the Government is of the opinion
that it is necessary or expedient so to do, it may, by order, for reasons to be
recorded in writing, relax any of the provisions of these rules with respect to
any class or category of persons."
Heavy reliance has been placed on behalf of the State Government and on
behalf of respondent no. 4 on the judgment of this Court in the case of K.
Madhavan and anr.
v. U.O.I. and ors. reported in (1987) 4 SCC 566. In that case the
petitioners, Madhavan and Sen, were directly recruited as DSP in CBI on
6.7.1963 and 10.8.1963 respectively. O.P.
Sharma, respondent no. 5, who was appointed as DSP on 13.7.1962 in Rajasthan
State Police, was sent on deputation to CBI as DSP on 1.7.1967. At that time,
this Court found that majority of officers in CBI were deputationists. O.P.
Sharma was confirmed as DSP in Rajasthan Police Service on 1.12.1964. Madhavan
and Sen were confirmed as DSP in CBI on 30.3.1967. In the seniority list
published by CBI on 17.10.1981 the name of O.P. Sharma, respondent no. 5, was
shown above the names of the petitioners, Madhavan and Sen.
The petitioners, Madhavan and Sen challenged the inter se seniority list on
the ground that respondent no. 5 was the deputationist in CBI and that on
absorption he was not entitled to the benefit of his services in Rajasthan
Police Service. On this contention, this Court vide para 19 held that, in
computing the requisite period of service in the matter of appointment/
promotion to the post of SP in CBI, the period during which O.P. Sharma,
respondent no. 5, held the post of DSP in Rajasthan State Police Service should
be taken into consideration.
Relying on this paragraph, it is urged on behalf of respondent no. 4, Ms.
Amrit Brar, that her services in CRPF should also be taken into account in the
matter of fixation of inter se seniority and that she was entitled to weightage
with regard to the service which she had between 9.6.1989 and 16/17.8.1993.
However, the judgment in the case of K.
Madhavan (supra) clearly indicates that this Court examined the Service
Rules in which there was a third source of recruitment, namely transfer, and,
therefore, in para 21, this Court observed that, there was no much difference
between deputation and transfer, and since under the rules transfer was the
source of recruitment, O.P. Sharma was entitled to weightage for the service
put by him as DSP in Rajasthan State Police Service. Admittedly, in the present
case, transfer is not the third source of recruitment. On the contrary, the
above judgment equates deputation with transfer. It does not equate deputation
with direct appointment as done by the impugned judgment. To this extent, there
is infirmity in the impugned judgment.
Before we proceed further, we may make it clear that, in our judgment, we
have observed earlier that we do not find any infirmity in the action of the
State Government in absorbing respondent no. 4 as Deputy S.P. in Punjab Police
Service. However, there is a caveat. According to us, strictly on
interpretation of the said 1959 Rules, there is no scope for opening of a third
mode of recruitment. Deputation is not the source of recruitment under the said
1959 Rules. It is only as an exceptional case that respondent no. 4 was given
the benefit of absorption in Punjab Police Service as Deputy S.P.
and we do not find any fault with that exercise. It is the genuine exercise.
However, when her services are regularized by the State not from 16/17.8.1993,
when she stood appointed as a deputationist, but from 9.6.1989, when she was
appointed as Assistant Commandant in CRPF, then infirmity in the action of the
State Government crept in. CRPF functions cannot be compared with Punjab Police
Apart from policing, an officer of Punjab Police Service has to do the work
of investigation of crime detection, which is not within the purview of CRPF. A
Deputy S.P. in CRPF need not have the knowledge of CrPC, IPC etc., which an
officer in Punjab Police Service needs to possess. The Service Rules governing
CRPF are different from the Service Rules which governed Punjab Police Service.
Therefore, even functionally, the two cadres are different. In fact, respondent
no. 4, Ms.
Amrit Brar, has not undergone training as contemplated under Punjab Police
Service Rules. However, she has put in 5 years experience as Deputy S.P. in
Punjab Police Service between 16/17.8.1993 and 11.9.1998. That experience
should be given due weightage. In our view, having examined the above Punjab
Police Service Rules, 1959, it is clear that deputation is not the source of
recruitment. Direct recruitment is the source. Promotion is the source.
However, deputation is not the source for recruitment. Moreover, in the present
case, we are concerned with the rights of the appellants. We are concerned with
the inter se seniority in the said post of Deputy S.P. since that seniority
ultimately counts for promotion to the next higher cadre. The post of Deputy
S.P. is a feeder post in that sense and when the post is a feeder post, the
inter se seniority has the role to play. In the circumstances, if deputation is
not the source of recruitment, then even in exceptional cases of this nature,
weightage cannot be given, in the absence of the rules, to the services
rendered by Ms. Amrit Brar in CRPF. Rule 14 talks of relaxation. However, Rule
14 is not applicable to the rules which do not provide for recruitment through
deputation. Rule 14 would have applied if the said 1959 Rules had a third
source of recruitment, namely, deputation. There is no such third source of
recruitment. Hence, Rule 14 has no application. Rule 14 refers to relaxation of
rules. Rule 14 contemplates existence of a rule of recruitment. If there is no
such rule providing for third source of recruitment, the Government cannot
relax a non existent rule. Therefore, the High Court had erred in treating
deputation as a third source of recruitment. There is a difference between
direct appointment as a source of recruitment and deputation/ transfer as a
source of recruitment. In certain cases, cited before us, weightage has been
given to the service put in by the transferee. However, in all those cases, the
third source of recruitment was transfer/ deputation. In the present case,
there is no such rule to that extent. There is an error in the impugned
judgment of the High Court. As state above, Ms. Amrit Brar has put in 5 years
service as a deputationist in Punjab Police Service between 16/17.8.1993 and
11.9.1998. She is certainly entitled to the weightage for the services rendered
by her during these 5 years. However, she is not entitled to weightage of
service between 9.6.1989 and 16/17.8.1993, as held by the High Court, for the
fixation of inter se seniority.
Accordingly, the appeal is partly
allowed with no order as to costs.