State of
Rajasthan Vs. Fateh Chand Soni [1995] INSC
834 (12 December 1995)
Agrawal, S.C. (J) Agrawal, S.C. (J) G.B. Pattanaik (J) S.C. Agrawal,
J. :
CITATION:
1996 SCC (1) 562 JT 1995 (9) 523 1995 SCALE (7)168
ACT:
HEAD NOTE:
[WITH
Civil Appeals Nos. 4312 of 1994 and 4313 of 1994]
The
common question which falls for consideration in these appeals is whether
seniority in the Selection Scale in the Rajasthan Police Service (for short
`the Service') is to be fixed on the basis of date of appointment to the Selection
Scale or on the basis of seniority in the Senior Scale irrespective of the date
on which appointment is made to the Selection Scale.
Recruitment
to the posts in, and conditions of service of persons appointed to the Service
is governed by the Rajasthan Police Service Rules, 1954 (hereinafter referred
to as `the Rules'). Originally, the Service consisted of posts in the Ordinary
Time Scale and Posts in the Senior Scale as indicated in Schedule I to the
Rules. In 1966 Schedule I to the Rules was amended and out of the posts in
Senior Scale 3 posts were kept for officers drawing pay personally in Selection
Grade. In 1974 the number of posts in the Selection Scale was increased to 14
and in 1978 it was increased to 19. In 1985 the said number was increased to
30. By virtue of notification dated April 19/20, 1988 issued under Rule 6 of
the Rules the posts in the Service fall in four scales, viz., junior scale,
Senior Scale, Selection Scale and superintendent scale. The number of posts in
the Selection Scale was reduced from 30 to 22 and 8 posts were placed in the
Super Time Scale.
Km. Badam
Bairwa and Hari Ram Meena (appellants in Civil Appeal No. 4313 of 1994) and Fateh
Chand Soni (respondent No.1 in the appeals) were all appointed to the Service
by direct recruitment and were promoted to the Senior Scale. In the Senior
Scale respondent No. 1 was senior to the said appellants. On the basis of
recommendations made by the Selection Committee constituted under Rule 32 of
the Rules all these three appellants were promoted to Selection Scale by order
dated April 27, 1989.
The
said appointment of these appellants was on the basis of seniority-cum-merit.
The said order dated April
27, 1989, has been
described as promotion order. Km. Badam Bairwa and Hari Ram Meena were
appointed to the Selection Grade on posts reserved for the Scheduled Castes and
the Scheduled Tribes. Respondent No. 1 was appointed to the Selection Scale by
order dated January 24,
1991. In the Seniority
List dated June 30,
1990 seniority in the
Selection Scale was fixed on the basis of date of appointment to the Selection
Scale. Feeling aggrieved by the fixation of the seniority in the said seniority
list in respect of Selection Scale, respondent No. 1 filed a Writ Petition
(C.W.P. No.3939 of 1991) in the Rajasthan High Court at Jaipur Bench wherein he
challenged the seniority list dated June 30, 1990 in so far as it related to
the seniority in the Selection Scale and sought a direction for maintaining the
seniority of the incumbents of the Senior Scale even after the grant of the
Selection Scale. Respondent No. 1 also assailed the validity of Rule 8 of the
Rules as well as the reservation policy dated February 10, 1975 and the 100 point roster system dated July 9, 1985 as being ultra vires Article 16(4)
of the Constitution.
The
said Writ Petition filed by respondent No. 1 has been allowed by the High Court
by the impugned judgment dated September 21, 1993. The High Court has held that there is/are no separate post/posts in
the Selection Scale and that grant of Selection Scale to certain number of
officers working in the Senior Scale so as to avoid stagnation and to keep
interest of the officers in the Service intact does not involve promotion in
the eye of law and that if, for any reason, a junior officer is granted
Selection Scale in preference to his senior, it will not have any impact on the
seniority position and it will not affect the position of the officers who were
otherwise senior in the Senior Scale.
Since
the High Court was of the view that there is no separate post in the Selection
Scale, it did not consider it necessary to examine the validity of Rule 8 of
the Rules and the reservation policy and 100 point roster system. The High
Court quashed that seniority list dated June 30, 1990 and directed that the seniority
list be prepared afresh in the light of the decision.
Civil
Appeal No. 4311 of 1994 had been filed by the State, Civil Appeal No. 4312 of
1994 had been filed by Kundan Lal Sharma and Civil Appeal No. 4313 of 1994 has
been filed by Km. Badam Bairwa and Hari Ram Meena. Prahlad Rai Jawaria was also
one of the appellants in Civil Appeal No.4313 of 1994, but, at the time of
hearing of the appeal, the learned counsel appearing for the said appellant
stated that he does not wish to press the appeal on his behalf and the appeal,
in so far as the said appellant is concerned, has been dismissed.
Seniority
in the Service is governed by Rule 33 of the Rules. The relevant provisions of
the said rule are as under :- "Rule 33. Seniority:- Seniority of persons
appointed to the lowest post of the Service or lowest categories of posts in
each of the Group/Section of the Service, as the case may be, shall be
determined from the date of confirmation of such persons to be said post but in
respect of persons appointed by promotion to other higher posts in the Service
or other higher categories of posts in each of the Group/Section in the
Service, as the case may be, shall be determined from the dated of their
regular selection to such posts.
Provided
:- (i) X X X (ii) X X X (iii) That the persons selected and appointed as a
result of a selection, which is not subject to review and revision, shall rank
senior to the persons who are selected and appointed as a result of subsequent
selection.
Seniority
inter-se of persons selected on the basis of seniority-cum- merit and on the
basis of merit in the same selection shall be the same as in the next below
grade, and (iv) X X X (v) X X X" Seniority in the Selection Scale has to
be fixed as per the aforesaid provisions contained in Rule 33 if appointment to
the Selection Scale is treated as promotion from Senior Scale to Selection
Scale. The High Court has held that the said appointment cannot be treated as
promotion for the reason that when an officer in the Senior Scale is granted
Selection Scale, he neither leaves the post which was already held by him nor
he occupies any new post and the post held by him remains the same and he
starts getting the pay in Selection Scale instead of Senior Scale which, by
itself, cannot confer a higher status or rank. According to the High Court, the
grant of Selection Scale to Senior Scale officers does not exalt his status,
rank or honour and an officer does not stand elevated to any superior or
commanding position over other Senior Scale officers. The High Court has also
referred to the fact that the post of Additional Superintendent of Police held
by Senior Scale officers and officers who are being paid in the Selection Scale
is interchangeable and such change or replacement and substitution by posting
and transfer in the Service is a matter of routine and merely because the
Government follows the process of selection to identify the officers to whom
the Selection Scale is to be granted cannot confer a higher status so as to
make it a case of promotion.
The
High Court, in our opinion, was not right in holding that promotion can only be
to a higher post in the service and appointment to a higher scale of an officer
holding the same post does not constitute promotion. In the literal sense the
word "promote" means "to advance to a higher position, grade, or
honour". So also "promotion" means "advancement or
preferment in honour, dignity, rank, or grade". [See : Webster's
Comprehensive Dictionary, International Edition, p. 1009]. "Promotion"
thus not only covers advancement to higher position or rank but also implies
advancement to a higher grade. In service law also the expression
"promotion" has been understood in the wider sense and it has been
held that "promotion can be either to a higher pay scale or to a higher
post". [See : Union of India & Anr. v. S.S. Ranade, 1995 (4) SCC 462
at p. 468].
In Lalit
Mohan Deb v. Union of India, 1973 (3) SCC 862, the pay scale of all the
Assistants in the Civil Secretariat in Tripura was Rs. 80-180 and on the basis
of the recommendations of the Second Pay Commission appointed by the Government
of India the scales were revised and 25% of the posts were placed in the
Selection Grade in the scale of Rs.150-300 and the rest continued in the old
pay scale of Rs. 80-180. For the purpose of filling the Selection Grade posts a
test was held and those who qualified in the said test were appointed to the
Selection Grade. The Assistants in the Selection Grade and the Assistants in
the old pay scale were doing the same type of work. This Court observed that
"provision of a Selection Grade in the same category of posts is not a new
thing" and that "a Selection Grade is intended to ensure that capable
employees who may not get a chance of promotion on account of limited outlets
of promotions should at least be placed in the Selection Grade to prevent
stagnation on the maximum of the scale" and that "Selection Grades
are, therefore, created in the interest of greater efficiency". The Court
took note of the fact that the basis for selection of some of the Assistants to
the Selection Grade scale was seniority-cum-merit which is one of the two or
three principles of promotion widely accepted in the administration and,
therefore, the creation of Selection Grade in the category of Assistants was
not open to challenge. In that case, the Court had proceeded on the basis that
the appointment to the higher grade amounted to promotion.
The
Rule governing appointment to the Selection Scale in the Service also envisage
that such appointment constitutes promotion. The relevant provision is
contained in Rule 28(A) of the Rules which prescribes the criteria, eligibility
and procedure for promotion to Junior, Senior and other posts encadred in the
Service. Under sub-Rule (5) of Rule 28(A) promotion from the lowest post or
category of post in the Service to the next higher post or category of post in
the Service is required to be made strictly on the basis of
seniority-cum-merit. Sub-Rule (6) of Rule 28(A) provides that selection for
promotion to all other higher posts or higher categories of posts in the
Service shall be made on the basis of merit and on the basis of seniority-
cum-merit in the proportion of 50:50. Sub-rule (7) reads as under :
"(7).
Selection for promotion to the highest post/posts in the State Service shall
always be made on the basis of merit alone:
Provided
that :- (a) in a Service or Groups or Sections thereunder, where there are only
two scale e.g. junior scale or Senior Scale and there is only one promotion
then promotion shall be made on the basis of seniority-cum-merit alone.
(b) in
a Service or Groups or Sections thereunder, where there are three scales e.g.
junior scale, Senior Scale and Selection Scale and there are two promotions
then promotion shall be as under:-
(i) first
promotion on the basis of seniority-cum-merit.
(ii) second
promotion on the basis of seniority-cum-merit and merit in the proportion of
50:50.
(c) in
Services or Groups or Sections thereunder, where there are more than tow
promotions then first promotion shall be made on the basis of seniority-
cum-merit alone and promotions to subsequent higher posts shall be made on the
basis of seniority-cum-merit and merit in the proportion of 50:50 except to the
highest post.
Provided
further that if the Committee is satisfied that suitable persons are not
available for selection by promotion to highest post/posts strictly on the
basis of merit in a particular year, selection by promotion to highest
post/posts on the basis of seniority-cum-merit may be made in the same manner
as specified in these Rules." The said provision (especially clause (b) of
the Proviso) would show that the Rules contemplate that appointment to the post
in the Selection Scale does not constitute promotion under the Rules.
The
High Court has referred to the decision of this Court in Dayaram Asanand Gursahani
v. State of Maharashtra & Ors., 1984 (2) SCR 703, wherein, after
considering the resolution of the State Government sanctioning the post of
District Judge in the Selection Grade, this Court has held that the said
resolution did not indicate that there was any process of promotion by
selection or otherwise from the cadre of District Judges to the Selection Grade
District Judges. In the particular facts of that case it was held that mere
nomenclature given to the extended pay scale as the Selection Grade pay scale
does not lead to the inference that there is an element of selection involved
in sanctioning it and that it should be treated as just an extended pay scale
which forms part of the pay scale. The position in the present case is,
however, different. Here the Selection Scale is a separate scale and is not an
extension of the Senior Scale. Moreover appointment to the Selection Scale is
made by selection on the basis of merit and seniority-cum-merit in accordance
with Rule 28(A) of the Rules.
It
must, therefore, be concluded that appointment to the Selection Scale of an
officer in the Senior Scale in the Service constitutes promotion and seniority
in the Selection Scale has to be fixed in accordance with Rule 33 of the Rules
on the basis of the date of selection and a person selected and appointed as a
result of an earlier selection would rank senior to a person who is selected
and appointed as a result of a subsequent selection. Since the appellants were
selected and appointed on the basis of earlier selection in 1989 while
respondent No. 1 was selected and appointed on the basis of a subsequent
selection in 1991, the appellants would rank senior to respondent No. 1 in the
Selection Scale. The direction given by the High Court for revising the
seniority list of the officers in the Selection Scale of the Service on the
basis of their seniority in the Senior Scale cannot, therefore, be upheld and
has to be set aside. The seniority of officers in the Selection Scale of the
Service has to be fixed as per Rule 33 on the basis of date of selection.
Shri
R. Mohan, the learned senior counsel appearing for the respondent No. 1, has
agitated the question regarding the validity of Rule 8 dealing with reservation
for Scheduled Castes and Scheduled Tribes and has submitted that such
reservation in the matter of promotion to the higher post is impermissible in
view the decision of this Court in Indira Sawhney & Ors. v. Union of India & Ors., 1992 Supp.(3) SCC 217. The said
contention cannot be accepted since in Indira Sawhney (supra) this Court has
indicated that the existing provisions providing for reservation can continue
to operate for a period of five years from the date of the said decision.
Shri
Mohan has also submitted that provision for reservation for Scheduled Castes
and Schedules Tribes can be made only against posts in the cadre and not
against vacancies and that under Rule 8 of the Rules and the Reservation Policy
and the 100 point roster such reservation is made on the basis of vacancies and
that Km. Badam Bairwa and Hari Ram Meena have been promoted against vacancies
reserved for the Schedules Castes and the Scheduled Tribes.
Shri
Mohan has placed reliance on the decision of the Allahabad High Court in J.C. Malik
& Ors. v. Union of India & Ors., 1978 (1) SLR
844 which has been approved by this Court in R.K. Sabharwal v. State of Punjab, 1995 (2) SCC 945. We find no merit
in this contention. In his writ petition respondent No. 1 has not challenged
the promotion of Km. Badam Bairwa and Hari Ram Meena to the Selection Scale and
therefore, this contention about the basis for reservation does not fall for
consideration in this case.
Moreover
in R.K. Sabharwal (supra) this Court has directed that the interpretation given
by the Court about the working of the roster and the findings on this point
shall be operative prospectively which means that actions that have been taken
prior to the decision in R.K. Sabharwal (supra) cannot be assailed on the basis
of the law laid down in the said decision.
For
the reasons aforementioned, the appeals are allowed, the judgment of the
Rajasthan High Court dated September 21, 1993 is set aside and the Writ Petition filed by respondent No. 1 is
dismissed. But in the circumstances there is no order as to costs.
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