Paramjit Singh Sandhu & Ors Vs.
Ram Rakha & Ors [1979] INSC 72 (22 March 1979)
DESAI, D.A.
DESAI, D.A.
SHINGAL, P.N.
CITATION: 1979 AIR 1073 1979 SCR (3) 584 1979
SCC (3) 478
CITATOR INFO:
R 1981 SC 561 (71) R 1984 SC1595 (24) D 1990
SC1607 (19)
ACT:
Punjab Police Rules, 1959, Rules 3, 6, 8 and
10 Construction of-When appointments to a post are from two different sources,
one by promotion and another by direct recruitment according to quota rule,
whether the quota rule would operate at both the stages of recruitment and
confirmation or at the stage of initial recruitment only.
Deemed confirmation after the expiry of the
period of probation and cases when an express order of confirmation is
necessary, pointed out.
HEADNOTE:
Under the Punjab Police Service Rules, 1959,
recruitment to Punjab Police Service (Deputy Superintendent of Police) is made
from two sources, namely 80% by promotion and 20% through direct recruitment.
Under Rule 10, seniority in the cadre of Deputy Superintendent of Police is reckoned
according to the date of confirmation. Consideration for nomination to Indian
Police Service is done according to seniority-cum-merit.
Respondents 1 and 2 in C.A. 2903/78 who were
promotees to the cadre of Deputy Superintendents of Police in February, 1961
and January, 1961 respectively were not confirmed even though appellants and
respondents 5 to 8 who were recruited to the same cadre by direct appointment
commencing from May, 1961 to May, 1965 were confirmed. They, therefore, filed a
Writ Petition praying for a direction to confirm them in the Punjab Police
Service, adhering to the quota rule at the time of confirmation as well. They
alleged that as seniority in the cadre of Deputy Superintendent of Police is
reckoned under rule 10, according to date of confirmation failure to confirm in
the post available to them in breach of the relevant rules, had resulted in the
denial of equality of opportunity in public service enshrined in Art. 16 of the
Constitution at the time of consideration of their cases for nomination to the
Indian Police Service which is done according to seniority-cum- merit.
Allowing the Writ Petition and directing the
State to confirm them, the learned single judge held that the quota rule would
operate not only at the time of initial recruitment but also at the time of
confirmation, as he was of the opinion that the quota-rule is linked with the
seniority rule.
Two Letters Patent Appeals, one filed by
appellant No. 1 and another by the State, were heard along with another Writ Petition
filed by one Ram Rakha urging identical contentions. The Writ Petition was
allowed and the appeals were dismissed by a common judgment modifying the
direction given by the learned single judge to the extent that the State should
consider the case of the Writ petitioners for confirmation afresh according to
quota rule and then refix their inter-se seniority.
Dismissing the appeals, by special leave the
Court 585
HELD: 1. When a first appointment or
promotion is made on probation for a specific period and the employee is
allowed to continue in the post after the expiry of the period without any
specific order of confirmation he should be deemed to continue in his post as a
probationer only in the absence of any communication to the contrary in the original
order of appointment or promotion or the Service Rules. In such a case, an
express order of confirmation is necessary to give the employee a substantive
right to the post. From the mere fact that he is allowed to continue in the
post after the expiry of the specific period of probation he should not be
deemed to have been confirmed.
This is so, when the relevant rules permitted
extension of the Probationary period for an indefinite time. [592 A-C] Sukhbans
Singh v. State of Punjab, [1963] 1 SCR 416, G. S. Ramaswamy v. The Inspector
General of Police, Mysore State Bangalore, [1964] 6 S.C.R. 278; State of U.P.
v. Akbar Ali, [1966] 3 SCR 821; referred to.
2. Where the rules provide for a fixed period
of probation with a power in the Government to extend it up to a specific
period and not any unlimited period, either by express provision or by
necessary implication, at the end of such specified period beyond which the
Government had no power to extend the probation, the probationer, if he
continues beyond that period, should be deemed to have been confirmed in the
post. [592 C-E] State of Punjab v. Dharam Singh, [1968] 3 SCR 1 explained.
3. Rule 8 of the Punjab Service Rules, 1959
prescribes a period of probation of two years and the proviso confers power to
extend the period of probation by not beyond one year meaning thereby that in
any case the Government would not have the power to extend the period of
probation beyond a period of three years. [593 A-B] In this situation, (a) the
ratio of Dharam Singh's case would mulatis mutandis apply and the direct
recruits who completed the period of probation of two years and in the absence
of an extension of probationary period would be deemed to be confirmed by
necessary implication. [593 B-C] (b) If seniority is to be reckoned from the
date of confirmation and if promotees are not confirmed for years together in
some cases, while direct recruits who came much later got confirmed and ipso
facto became senior to the promotees, if quota rule is only applied at the time
of initial recruitment, this undesirable result is wholly unavoidable. [593
C-D]
4. Where recruitment to a cadre is from two
sources and the Service Rules prescribe quota for recruitment for both sources,
a question would always arise, whether the quota rule would apply at the
initial stage of recruitment or also at the stage of confirmation. Ordinarily,
if quota is prescribed for recruitment to a cadre, the quota rule will have to
be observed at the recruitment stage. The quota would then be co-related to
vacancies to be filled in by recruitment but after recruitment is made from two
different sources they will have to be integrated into a common cadre and while
so doing the question of their inter se seniority would surface. [593 F-G] 586
Seniority is ordinarily determined from the date of entry into cadre on the
principle of continuous officiation.
Confirmation in a post would ordinarily
depend upon such circumstances as satisfactory completion of probationary
period, efficiency in the discharge of duty, capacity to discharge functions of
the post, availability of permanent vacancy etc. Now, if seniority is to be
determined according to the date of confirmation and the quota rule is not made
relatable to confirmation in various posts falling vacant in the cadre it would
directly impinge upon the seniority of members of the service. [593 G- H, 594
A] S. B. Patwardhan and Ors. etc. v. State of Maharashtra, [1977] 3 SCR 775 @
797; referred to.
5. A harmonious reading of rules 3, 4, 6, 8,
and 10 makes it clear that the quota rule is operative both at the time of
initial recruitment and at the time of confirmation.
The recruitment to Punjab Police Service is
from two sources. Recruits from both the sources have to be on probation.
Adopting the construction that the proviso to Rule 8 (b) permitting a maximum
period of probation of three years at the end of which the direct recruit would
automatically be confirmed unless his services are dispensed with
simultaneously enjoying seniority from the date of such automatic confirmation
without applying quota rule at the time of confirmation would put the promotee
to an unintended disadvantage who may be continued in an officiating capacity
without confirming him and consequently denying or relegating him down in
seniority for years as has happened in the case of respondents 1 and 2. Such an
approach would be wholly unreasonable more so when there was not the slightest
suggestion that their services were not satisfactory and that the confirmation
was denied on any such ground, thereby directly affecting their places in the
seniority list. [594 C-F, H] If the other view that the quota rule would apply
both at the time of recruitment and at the time of confirmation, is adopted
rule 10 which provides for seniority according to the date of confirmation
would certainly be saved from the vice of unreasonableness. [594 G] The quota
rule is linked up with the seniority rule.
Quota rule is linked up with seniority rule
because, not the date of entry in service determines the seniority but the date
of confirmation determines seniority. Quota rule being inextricably intertwined
with the seniority rule any delinking would render the seniority rule wholly
unreasonable. After recduitment, members of the service, though drawn from two
different sources-direct recruits and promotees-constitute a single integrated
cadre. They discharge identical functions, bear similar responsibilities and,
acquire an equal amount of experience in the respective assignments. If quota
rule were to be applied at the stage of initial recruitment and wholly ignored
at the time of confirmation the rule would suffer from the vice of
unreasonableness and would offend Art. 16, because, in that event, while direct
recruits would get confirmation automatically, the promotees would hang out for
years as has happened in the case of respondents 1 and 2 and if they are not
confirmed they would never get seniority and their chances of being considered
for promotion to the higher post would be wholly jeopardised. [595 A-B, C, D-E]
S. G. Jaisinghani v. Union of India and Ors. [1967] 2 SCR 703 @ 717 and 718; S.
B. Patwardhan v. State of Maharashtra, [1977] 3 SCR 775 @ 797; followed.
6. Where recruitment is from two sources and
the seniority in the cadre is determined according to the date of confirmation
to accord utmost fair treatment a rotational system has to be followed while
giving confirmation. The quota rule would apply to vacancies and recruitment
has to be made keeping in view the vacancies available to the two sources
according to the quota. If the quota rule is strictly adhered to there will be
no difficulty in giving confirmation keeping in view the quota rule even at the
time of confirmation. A roster is introduced while giving confirmation
ascertaining every time which post has fallen vacant and the recruit from that
source has to be confirmed in the post available to the source. This system
would breakdown the moment recruitment from either source in excess of the
quota is made. In fact a strict adherance to the quota rule at the time of
recruitment would introduce no difficulty in applying the rule at the time of
confirmation because vacancies would be available for confirmation to persons
belonging to different sources of recruitment. The difficulty would arise when
recuruitment in excess of the quota is made and it would further be accentuated
when recruits from one source viz. direct recruits get automatic confirmation
on completion of the probationary period, while the promotees hang out for
years together before being confirmed. [596 F-H, 597 A-B] Mervyn Coutindo and
Ors. v. Collector of Customs, Bombay and Ors., [1966] 2 SCR 600; A.. K.
Subraman and Ors.
v. Union of Indian and Ors., [1975] 2 SCR
979; explained and distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 2902- 2903 of 1977.
Appeals by Special Leave from the Judgment
and Order dated 3-11-1976 of the Punjab and Haryana High Court in Civil Writ
Petition No. 6781/74.
Y. S. Chitale, M. N. Phadke and P. C.
Bhartari (In CA 2903/77) for the Appellants.
G. L. Sanghvi, S. K. Bagga and Mrs. S. Bagga
for RR 1- 2.
R. S. Sodhi for the State of Punjab.
The Judgment of the Court was delivered by
DESAI, J.-These two appeals by special leave arise from a common judgment
rendered by the High Court of Punjab & Haryana at Chandigarh in Letters
Patent Appeals Nos. 560 and 564 of 1974 and Civil Writ No. 6781/74. The
controversy raised in these appeals turns upon the construction of the Punjab
Police Service Rules, 1959 ('Service Rules' for short). A few relevant facts as
alleged by respondents 1 and 2 in Civil Appeal No. 2903/78 who moved Civil Writ
No. 825 of 1972 in the High Court would highlight the problem posed in these
appeals.
588 Respondents 1 and 2, Gurdip Singh and
Dalip Singh, filed a writ petition under Article 226 of the Constitution
against the State of Punjab, Inspector General of Police, Punjab, and six
others including the present appellants, praying for a direction to confirm
them in Punjab Police Service. Respondents 1 and 2 alleged that they were
promotees to the cadre of Deputy Superintendent of Police of February, 1961 and
January, 1961 respectively having been brought on 'G' List by an order dated
23rd February 1961 of the State of Punjab and the Inspector General of Police,
Punjab, respondents 3 and 4 herein. Appellants and respondents 5 to 8 were
recruited to the same cadre by direct appointment commencing from May, 1961 to
May, 1965.
The grievance of respondents 1 and 2 in the
petition filed by them was that recruitment to Punjab Police Service is made
from two sources, namely, 80% by promotion and 20% by direct appointment but
this quota rule is not adhered to at the time of confirmation in the service
and, therefore, even though they were members of the service since a period
earlier to appellants and respondents 5 to 8, they were not confirmed though
the latter were confirmed and as seniority in the cadre of Deputy
Superintendent of Police is reckoned under rule 10 according to date of
confirmation, the failure to confirm them in the post available to them, in
breach of the relevant rules, has denied to them equality of opportunity
enshrined in Article 16 of the Constitution to be considered for nomination to
Indian Police Service which is done according to seniority-cum-merit.
The State of Punjab and Inspector General of
Police, Punjab, on the one hand and the direct recruits on the other contested
the writ petition, inter alia, contending that the quota applies at the stage
of initial recruitment and not at the time of confirmation and there is no
allegation that the quota rule was violated at the time of initial recruitment.
It was further contended that no one can
claim to be confirmed as a matter of right and, therefore, the writ petition is
misconceived. Direct recruits to the post of Dy. Superintendent of Police,
appellants and respondents 5 to 8 further contended that the petitioners were
promoted on officiating basis against temporary posts and as there were no
permanent posts available, they could not be confirmed till substantive
vacancies in the permanent strength of the cadre were available and till
confirmation their seniority having to be reckoned from the date of
confirmation, they cannot claim to be senior to the direct recruits on the
principle of continuous officiation.
The writ petition came up before a learned
single Judge of the High Court who was of the opinion that the quota rule is
linked with the seniority rule and in order to give a reasonable interpretation
and 589 in order not to make the seniority rule unreasonable, upon a proper
construction it must be held that the quota rule would operate not only at the
time of initial recruitment but also at the time of confirmation. In reaching
this conclusion the learned single Judge relied upon two decisions of this
Court in S. G. Jaisinghani v. Union of India & Ors.,(1) and Mervyn Coutindo
& Ors. v. Collector of Customs, Bombay & Ors., (2) and some other
decisions of other High Courts. The learned single Judge accordingly gave a
direction that the writ petitioners, respondents 1 and 2 herein, should be
confirmed. Two appeals being Letters Patent Appeal No. 560/74 by the present
appellant 1 and Letters Patent Appeal No. 564/74 by the State of Punjab and the
Inspector General of Police, Punjab, were preferred. One Rakha Ram filed Civil
Writ No. 6781/74 raising identical contentions and this writ petition was
referred to the Division Bench before which the aforementioned two Letters
Patent Appeals came up for hearing The Court by a common judgment disposed of
all the three matters. Both the Letters Patent Appeals were dismissed and Civil
Writ No. 6781/74 by Ram Rakha was allowed, but the direction given by the
learned single Judge was modified to the extent that the State of Punjab and
Inspector General of Police, Punjab, should consider the cases of writ
petitioners 1 and 2 for confirmation and to fix their seniority afresh
according to the quota rule. The present two appeals arise from this common
judgment preferred by the direct recruits. It may be mentioned that neither the
State of Punjab nor the Inspector General of Police, Punjab, have questioned
the decision of the High Court though at the hearing of these appeals Mr. R. S.
Sodhi appeared for the State of Punjab and supported the contentions canvassed on
behalf of the appellants.
As the main controversy turns upon the
construction of rules 3, 6, 8 and 10 of the Service Rules it would be
advantageous to get a clear picture of the relevant rules.
The Service Rules provide for constitution,
recruitment, qualifications for being members of the service, probation, pay,
seniority and discipline of the members of the Service.
Rule 3 provides that the Service shall
comprise of the posts specified in Appendix 'A' to the Service Rules.
Designation of the Post in Appendix 'A' is shown to be Deputy Superintendent of
Police and the strength of the cadre is shown as 66. The State Government,
under rule 5, is the appointing authority to the Service. Rule 6 provides for
method of recruitment from two different sources, viz., 80% by promotion from
the rank of Inspectors and 20% by direct recruitment. It also prescribes
eligibility qualification for promotees. Sub- 590 rule (2) of rule 6 provides
that appointment by promotion shall be made by he Government from Inspectors
brought on List 'G' and the method of drawing up of List 'G'. Sub-rule (3)
provides that direct appointment to the Service shall be made upon the result
of a competitive examination conducted by the Punjab Public Service Commission
('Commission' for short) and further confers power on the Government in
consultation with the Commission to frame necessary rules relating to
examination. Rule 7 prescribes qualifications of physical fitness. Rule 8
provides that members of the Service shall be on probation for two years which
shall include the period of training at the Police Training School, Phillaur,
and in the districts and in the case of members recruited by promotion the
Government may be a special order in each case permit periods of officiating
appointment to the Service to count towards the period of probation. There is a
proviso to the rule which enables the Government to extend the period of
probation by not more than one year. Rule 9 provides for pay of members of the
Service. Rule 10 provides for seniority of members to be reckoned by the date
of confirmation in the Service.
Dr. Chitaley followed by Mr. Phadke, urged
that the vires, validity or reasonableness of rule 10 having not been
challenged, it was not open to the High Court to put upon rules, 6, 8 and 10 a
construction on the supposed unreasonableness of rule 10 if it is interpreted
by giving the language therein used its ordinary grammatical meaning.
The High Court applied the quota rule even at
the stage of confirmation to avoid the vice of unreasonableness which, in the
opinion of the High Court, would be implicit in rule 10 if any other view were
taken.
The rules provide for constitution of Service
and the Service shall comprise of the posts specified in Appendix 'A' to the
rules. At the relevant time the sanctioned strength of the Service was 66
posts. There is a proviso to rule 3 which enables the Government to make
additions to or reductions in the number of such posts whether permanently or
temporarily. Rule 6 which provides for method of recruitment in terms says that
recruitment to the Service shall be made: (i) 80% by promotion from the rank of
Inspectors; and (ii) 20% by direct appointment. Thus there is recruitment to
the Service from two independent sources, viz., promotion and direct
recruitment. Once recruitment to any given cadre is from two sources obviously
after recruitment is made from two sources they have to be integrated into one
cadre which also necessitates providing for their inter se seniority. Rule 10
provides that the seniority of the 591 members of the Service shall be
determined by the date of confirmation in the Service. There is a proviso to
rule 10 which is not material for the present discussion.
On behalf of the promotees it was contended
that if seniority is to be reckoned from the date of confirmation in the
Service, confirmation must be made available to recruits from both the sources,
viz., promotees and direct recruits.
It was further contended that if on
satisfactory completion of probation a direct recruit is confirmed or is deemed
to be confirmed and a promotee who can be continued in an officiating capacity
for any length of time without considering his case for confirmation, promotees
would be put at a serious disadvantage because for further promotion or what is
styled as nomination to Indian Police Service, seniority-cum-merit being the
criterian and the basic cadre being the cadre of Deputy Superintendent of
Police from which nomination is to be made, their case would not come up for
consideration as they are not confirmed. They pointed out that in 1971 their
names were recommended by Deparmental Committee set up for the purpose but the
State Government turned down their names on the only ground that they were not
confirmed. It is clear from Rule 8 that both promotees and direct recruits
would be on probation for two years and in case of promotees the Government may
be special order in each case permit periods of officiating appointments to the
Service to count towards the period of probation. Clause (b) of rule 8 provides
that the services of a member recruited by direct appointment may be dispensed
with by the Government on his failing to pass the final examination at the end
of his period of training or on his being reported on, during or at the end of
his period of probation, as unfit for appointment. There is a proviso at the
end of sub- rule (b) which reads as under:
"Provided that the Government may, if it
deems fit, extend the period of probation by not more than one year."
There is some controversy between the parties whether the proviso is to operate
as proviso to rule 8(a) and 8(b) both or only to rule 8 (b).
It was contended on behalf of the direct
recruits that once a specific period of probation is fixed and a fetter is put
on the power of the Government to extend probation only by a specific period,
at the end of such extended period either the service of the direct recruit is
to be dispensed with on the ground that he was unfit for appointment or if he
is continued thereafter he must be deemed to have been confirmed and the date
next after the day of expiry of his ordinary or 592 extended period of
probation would be the date of his confirmation. This Court has consistently
held that when a first appointment or promotion is made on probation for a
specific period and the employee is allowed to continue in the post after the
expiry of the period without any specific order of confirmation he should be
deemed to continue in his post as a probationer only in the absence of any
communication to the contrary in the original order of appointment or promotion
or the Service Rules. In such a case an express order of confirmation is
necessary to give the employee a substantive right to the post and from the
mere fact that he is allowed to continue in the post after the expiry of the
specific period of probation it is not possible to hold that he should be
deemed to have been confirmed. This view was taken in Sukhbans Singh v. State
of Punjab(1); G. S. Ramaswamy v. The Inspector General of Police, Mysore State,
Bangalore(2); and State of U. P. v. Akbar Ali(3). This view was founded up on
the relevant rules which permitted extension of the probationary period for an
indefinite time. In fact there was no negative rule in these cases prohibiting
the Government from extending the probationary period beyond a certain maximum
period.
However, where the rules provide for a fixed
period of probation with a power in the Government to extend it up to a
specific period and not any unlimited period, either by express provision or by
necessary implication, at the end of such specified period beyond which the
Government had no power to extend the probation, the probationer if he
continues beyond that period, should be deemed to have been confirmed in the
post. This Court in State of Punjab v. Dharam Singh(4); after taking into
consideration rule 6(3) of the Punjab Educational Service (Provincialised
Cadre) Class III Rules, 1961, which provided for either dispensing with the
services of the person appointed to the post on probation if his work was found
to be unsatisfactory or to extend the period of probation for such period as
may be deemed fit or revert him to his former post if he was promoted from some
lower post, provided that the total period of probation including the
extensions if any, shall not exceed three years, held that the Service Rules
fixed a certain period of time beyond which the probationary period cannot be
extended and if an employee appointed or promoted to a post is allowed to
continue in that post after completion of the maximum period of probation
without an express order of confirmation he cannot be deemed to continue in
that post as a probationer by implication. In such a case the Court held it is
permissible to 593 draw an inference that the employee allowed to continue in
the post on completion of the maximum period of probation has been confirmed in
the post by implication. Rule 8 of the Service Rules prescribes the period of
probation of two years and the proviso confers power to extend the period of
probation by not beyond one year meaning thereby that in any case the
Government would not have the power to extend the period of probation beyond a
period of three years. In this situation the ratio in Dharam Singh's case
(supra) would mutatis mutandis apply and it will have to be held that the
direct recruit who completed the period of probation of two years and in the
absence of an extension of probationary period, would be deemed to be confirmed
by necessary implication. Respondent 5 to 8 direct recruits have accordingly
been confirmed on expiry of the period of probation of two years. Now if
seniority is to be reckoned from the date of confirmation and if promotees are
not confirmed for years together in some cases, to wit, respondents 1 and 2 who
were promotees of February and January, 1961 respectively, were not confirmed
till they filed the writ petition in 1972 while direct recruits who came much
later got confirmed and ipso facto became senior to the promotees, if quota
rule is only applied, as is contended on behalf of the appellants and the State
of Punjab, at the time of initial recruitment, this undesirable result is
wholly unavoidable.
Mr. G. L. Sanghi learned counsel for the
interveners and the promotees contended that the framers of the rule could not
have intended to accord such a discriminatory treatment to the promotees in
whose favour the quota is as big as 80% of the total strength.
Where recruitment to a cadre is from two
sources and the Service Rules prescribe quota for recruitment for both sources
a question would always arise whether the quota rule would apply at the initial
stage of recruitment or also at the stage of confirmation. Ordinarily, if quota
is prescribed for recruitment to a cadre, the quota rule will have to be
observed at the recruitment stage. The quota would then be co-related to
vacancies to be filled in by recruitment but after recruitment is made from two
different sources they will have to be integrated into a common cadre and while
so doing, the question of their inter se seniority would surface. Seniority is
ordinarily determined from the date of entry into cadre on the principle of
continuous officiation. Confirmation in a post would ordinarily depend upon
such circumstances as satisfactory completion of probationary period,
efficiency in the discharge of duty, capacity to discharge functions of the
post, availability of permanent vacancy, etc. Now, if seniority is to be
determined according to the date of confirmation and the quota rule 594 is not
made relatable to confirmation in various posts falling vacant in the cadre it
would directly impinge upon the seniority of members of the service. In a
slightly different form this question came before this Court in S. B. Patwardhan
& Ors. etc. v. State of Maharashtra & Ors., (1) in which vires of rule
8(iii) of 1960 Rules were questioned.
Rule 8(iii) of the 1960 Rules provided that
probationers recruited directly to the Bombay Service of Engineers Class II
Cadre in any year shall, in a bunch, be placed senior to promotees confirmed
during that year. Striking down this rule as violative of Article 16 this Court
held that the rule leaves the valuable right of seniority to depend upon the
mere accident of confirmation.
The recruitment to Punjab Police Service is
from two sources. Recruits from both the sources have to be on probation.
Adopting the construction as canvassed for and on behalf of direct recruits
that the proviso to rule 8(b) permitting a maximum period of probation of three
years at the end of which the direct recruit automatically be confirmed unless
his services are dispensed with simultaneously enjoying seniority from the date
of such automatic confirmation without applying quota rule at the time of
confirmation, would put the promotee to an unintended disadvantage who may be
continued in an officiating capacity without confirming him and consequently
denying or relegating him down in seniority for years as has happened in the
case of respondents 1 and 2. Appellants who were recruited to the Service after
respondents 1 and 2, came to be confirmed at the end of two years' period of
probation while respondents 1 and 2 were not confirmed after more than 11 years
of officiating service and there it not the slightest suggestion that the
services of respondents 1 and 2 were not satisfactory and that the confirmation
was denied on any such ground thereby directly affecting their place in the
seniority list. Such an approach would be wholly unreasonable.
Now, if the other view is taken that the
quota rule would apply both at the time of recruitment and at the time of
confirmation, rule 10 which provides for seniority according to the date of
confirmation would certainly be save from the vice of unreasonableness. Is such
a construction possible ? One need not stretch the language to bring about the
desired result but in this case upon a harmonious reading of rules 3, 6, 8 and
10, the conclusion is inescapable that quota rule is operative both at the time
of initial recruitment and at the time of confirmation. If the rule of
seniority were one otherwise than according to date of confirmation it would
not have become necessary to 595 apply the quota rule at the stage of
confirmation but in this case the quota rule is linked up with the seniority
rule and unless the quota rule is strictly observed in practice it will be
difficult to hold that the seniority rule is not unreasonable and does not
offend Article 16 (see S. G. Jaisinghani's case (supra) at pp. 717 and 718).
Quota rule is linked up with seniority rule because, not the date of entry in
service determines the seniority but the date of confirmation determines
seniority and, therefore, quota rule is inextricably intertwined with the
seniority rule and any delinking would render the seniority rule wholly unreasonable.
Any other view would lead to the most undesirable result wholly unintended by
the framers of the rule. It must be remembered that after recruitment, members
of the service, though drawn from two different sources- direct recruits and
promotees-constitute a single integrated cadre. They discharge identical
functions, bear similar responsibilities and acquire an equal amount of
experience in the respective assignments. In this background in S. B. Patwardhan's
case (supra) this Court held that if the promotees are treated with an evil eye
and an unequal hand in the matter of seniority as was done under rule 8(iii),
the rule would suffer from the vice of unreasonableness and would offend
Article 16 and it was actually struck down. An exactly identical situation
would follow here if quota rule is applied at the stage of initial recruitment
and wholly ignored at the time of confirmation because in that event while
direct recruits will get confirmation automatically, the promotees would hang
out for years as has happened in the case of respondents 1 and 2 and if they
are not confirmed they would never get seniority and their chances of being
considered for promotion to the higher post would be wholly jeopardised. To
avoid this utterly unconsciounable outcome the construction we have put on rule
8 would be in consonance with justice and reason.
It may be pointed out that where recruitment
is from two sources and the seniority in the cadre is determined according to
the date of confirmation, to accord utmost fair treatment a rotational system
has to be followed while giving confirmation. The quota rule would apply to
vacancies and recruitment has to be made keeping in view the vacancies
available to the two sources according to the quota. If the quota rule is
strictly adhered to there will be no difficulty in giving confirmation keeping
in view the quota rule even at the time of confirmation. A roster is introduced
while giving confirmation ascertaining every time which post has fallen vacant
and the recruit from that source has to be confirmed in the post available to
the source. This system would breakdown the moment recruitment from either
source in excess of the quota is made. In fact a strict adherence to the quota
596 rule at the time of recruitment would introduce no difficulty in applying
the rule at the time of confirmation because vacancies would be available for
confirmation to persons belonging to different sources of recruitment. The
difficulty arises when recruitment in excess of the quota is made and it is
further accentuated when recruits from one source, to wit, in this case direct
recruits get automatic confirmation on completion of the probationary period
while the promotees hang out for years together before being confirmed. In
Mervyn Coutindo's case (supra) this Court in terms said that rotational system
of fixing seniority meaning thereby confirmation followed by seniority does not
offend equality of opportunity in Government service and recruitment not
following the fixed quota rule need not be a ground for doing away with
rotational system.
It was, however, contended that in A. K.
Subraman & Ors. etc. v. Union of India & Ors. (1) this Court in terms
has held that when recruitment is from two sources and the quota rule is
enforced, the same will have to be enforced at the time of initial recruitment
in officiating capacity and not at the time of confirmation. It was, therefore,
said that it would be contrary to settled law to hold that quota rule will also
operate at the time of confirmation. Now, the observation of the Court is in
the context of Central Engineering Service (Class I) Recruitment Rules, 1954,
which came up for interpretation before the Court in that case.
The recruitment was from three different
sources, viz., by competitive examination, by promotion and by transfer. Rule 4
provided that 75% of the vacancies in the grade of Executive Engineer Class I
shall be filled by promotion of Assistant Executive Engineers Class I, the rest
of the vacancies being filled by promotion and/or by transfer in accordance
with Parts IV and V of the Rules respectively.
The general seniority rule which was held
applicable in that case was that seniority should be determined on the basis of
length of service in that grade or a service in an equivalent grade
irrespective of whether the latter was under Central or Provincial Government
in India or Pakistan.
It is in the context of these rules the
question whether the quota rule should be applied at the stage of initial
recruitment or confirmation came up for consideration.
Unlike the rule in the present case seniority
was not dependent on confirmation but seniority was dependent upon continuous
officiation in the cadre. In this background this Court held that the quota has
to be enforced at the time of initial recruitment in officiating capacity and
not at the time of confirmation. The situation in the case under discussion is
materially different. Therefore, it cannot be said that ignoring the 597 rule a
proposition of universal application has been laid down that whenever there is
a quota prescribed for recruitment to a cadre it can only apply at the time of
initial recruitment and not at the time of confirmation.
Everything will depend upon the whole body of
rules and harmonious construction has to be put upon the rules so as to avoid
the possibility of a rules becoming unreasonable.
This Court while saying in Subraman's case
(supra) that quota rule has to be adhered to and enforced at the time of
initial recruitment re-affirmed the observation in Mervyn Coutindo's case
(supra) that there is no inherent invalidity in introduction of quota system
and to work it out by rule of rotation. When it is said that the confirmation
shall follow the quota rule it is in terms being stated that the rotational system
should be followed at the time of confirmation so as to make quota rule
effective and seniority rule reasonable because all the three are interlinked.
Undoubtedly, the decision in Subraman's case was in terms affirmed in
Patwardhan's case (supra) but the scheme of rules in Patwardhan's case (supra)
was more or less similar to the one that was examined by this Court in
Subraman's case.
Mr. Sanghi also urged that the language of
Rule 8(a) would unmistakably show that members of Service recruited from either
source would be on probation for a period of two years and this would imply
that promotees would also be on probation for a period of two years.
Approaching the matter from this angle he further urged that proviso to rule
8(b) which permits extension of probation only by one year without expressly
referring to direct recruits would govern both promotees and direct recruits
and in that view of the matter promotees would also be deemed to be confirmed
on the expiry of period of probation. This contention overlooks the latter Part
of rule 8(a) which provides that in case of promotees the Government may by
special order in each case permit periods of officiating appointments to the
Service to count towards the period of probation. It appears that both promotees
and direct recruits to Service would be on probation. But the latter part of
rule 8 (a) comprehends Inspectors being promoted on officiating basis. Unless
there is a temporary addition to the strength of the cadre such officiating
appointment by promotion would not make the promotee a member of the service in
view of Rule 3. In order to avoid any injustice to such promotees the
Government may make an order to treat officiating service to count towards
probation. In the absence of such order the officiating service would not count
towards probation and such appointment would not make the promotee a member of
the service. In that event his case would not be covered 598 by the proviso to
rule 8(a). Therefore, the contention cannot be accepted.
The High Court was, therefore, right in
concluding that the quota rule would operate at both the stages. Accordingly
both these appeals fail and are dismissed but in the circumstances of the case
with no order as to costs.
S.R. Appeals dismissed.
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