Civil Appeal Nos. 5397-5406/2014 (Arising out of S.L.P. (Civil) Nos. 36319-36328/2009), C.A. Nos. 5407-5409/2014 Arising out of SLP (Civil) Nos. 36330-36332/2009, C.A. Nos. 5413-5422/2014 Arising out of SLP (Civil) Nos. 36334-36343/2009, C.A. Nos. 5410-5412/2014 Arising out of SLP (Civil) Nos. 36344-36346/2009, C.A. Nos. 5439-5441/2014 Arising.... Case: M.S. Sandhu and Anr. Etc. Vs State of Punjab and Ors. Etc.. Supreme Court (India)

Case NumberCivil Appeal Nos. 5397-5406/2014 (Arising out of S.L.P. (Civil) Nos. 36319-36328/2009), C.A. Nos. 5407-5409/2014 Arising out of SLP (Civil) Nos. 36330-36332/2009, C.A. Nos. 5413-5422/2014 Arising out of SLP (Civil) Nos. 36334-36343/2009, C.A. Nos. 5410-5412/2014 Arising out of SLP (Civil) Nos. 36344-36346/2009, C.A. Nos. 5439-5441/2014 Arising...
CounselFor Appearing Parties: Rakesh Khanna, Sr. AAG., P.S. Patwalia, Nidhesh Gupta, Rajiv Dhawan, Gurminder Singh, Sr. Advs., Ajay Bansal, AAG., Ashok K. Mahajan, Tarun Gupta, Naresh Sharma, S. Janani, Vineet Bhagat, Niharika Ahluwalia, Sudhir Walia, Advs. for Abhishek Atrey, Adv., Nikhil Jain, Gagan Deep Sharma, Preeti Singh, Advs., for D. Mahesh ...
JudgesSurinder Singh Nijjar and Arjan Kumar Sikri, JJ.
IssuePunjab Police Service Rules 1959 - Rules 2, 3, 6, 8, 8(2), 10, 11, 12, 13(1); Punjab Superior Judicial Service Rules 1963 - Rule 8; Punjab Civil Services General Conditions of Service Rules, 1994 - Rule 20; Constitution of India - Articles 14, 16, 141, 233, 235, 309
CitationAIR 2014 SC 2394, 2014 LabIC 2529, 2014 (2) LLN 273 (SC), 2014 (7) SCALE 12, 2014 (6) SCC 514, 2014 (2) SLJ 492 (SC)
Judgement DateMay 07, 2014
CourtSupreme Court (India)

Judgment:

A.K. Sikri, J.

  1. Leave granted.

  2. The perennial dispute of seniority between the direct recruits and promotees, that keeps showing its fang time and again in one form or the other, has surfaced in these batch of appeals as well. Having regard to the nature of the dispute, we deem it proper to narrate the facts sequentially and while doing so, we will also be stating the respective positions which the parties to this lis have taken. In this manner by the time statement of facts is over, we shall have crystallized the issues as well, which need to be answered.

  3. Genesis of the dispute lies in the Punjab Police Service Rules 1959 (hereinafter referred to as "1959 Rules") and the origin can be traced to the judgment of this Court in the case of Paramjit Singh and Ors. v. Ram Rakha 1979 (3) SCC 478. The dispute before us relates to seniority in the cadre of Deputy Superintendent of Police (DSP) between the direct recruits and promotees in these proceedings, which was the subject matter of the aforesaid decision as well. However, before discussing the nature of dispute we would like to take stock of the relevant provisions of 1959 Rules.

  4. 1959 Rules are framed by the Governor of Punjab in exercise of powers vested by the proviso to Article 309 of the Constitution. Rule 2 which is definition clause defines "Service to mean the Punjab Police Service Rule 2 (f)". As per Rule 3 the Service shall comprise of the posts specified in Appendix 'A' to these Rules which shows 62 posts in the cadre of DSP. Method of recruitment is stipulated in Rule 6 as per which 80% posts are to be filled by promotion from the rank of Inspectors and 20% by direct recruitment. Rule 8 provides that both promotees and direct recruits would be on probation for a period of two years and in case of promotees, the Government may by special order in each case permit period of officiating appointment to the Service to count towards the period of probation. This rule also empowers the Government to extend the period of probation by not more than one year, if it deems fit. Rule 10, which is the most crucial provision and would remain fulcrum of the discussion hereinafter, provides for fixation of seniority and reads as under:

    SENIORITY OF MEMBERS OF SERVICE:

  5. 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 the members 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 competitive examination;

    (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 position list 'G'.

    As is clear from the above, date of confirmation in Service is the relevant date and determinative factor for assigning seniority.

  6. This very rule of seniority in a dispute between direct recruits and promotees, came up for consideration before this Court in Paramjit Singh's case. Respondents 1 and 2 in the said case, who were promotees to the cadre of DSPs of February 1961 and January 1961 respectively, had filed the Writ Petition in the High Court of Punjab and Haryana, at Chandigarh praying for a direction to confirm them in the Service. Apart from impleading State functionaries, six other persons who were direct recruits were also impleaded as Respondents. These direct recruits were appointed as DSPs between May 1961 and May 1965. The grievance of the said two promotees was that quota rule of 80% by promotion and 20% by direct recruitment was 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 the said direct recruits, they were not confirmed though the latter were confirmed and, as a consequence, were made senior to these promotees, by virtue of Rule 10. On these premise, failure to confirm them in the post available to them was challenged as breach of the 1959 Rules and also in violation of Article 16 of the Constitution. The contention of the Government as well as the direct recruits was that quota applies at the stage of initial recruitment and not at the time of confirmation and there was no allegation that the quota rule was violated at the time of initial recruitment. It was also argued that no one can claim to be confirmed as a matter of right. Further, the said promotees were on officiating basis against temporary posts and therefore for want of permanent posts, they could not be confirmed till substantive vacancies in the permanent strength of the cadre were available. The argument of the promotees was that if seniority is to be reckoned from the date of confirmation in the service, confirmation must be made available to the recruits from both the sources, namely promotees and direct recruits. It was argued that if the direct recruits are confirmed or deemed confirmed on satisfactory completion of probation and at the same time the cases of promotees for confirmation are not considered, it would put them in a serious disadvantage in so far as further promotions is concerned, viz. nomination to Indian Police Service. Seniority-cum-merit being the criteria and the basic cadre being the cadre of DSPs from nomination is to be made, their cases would not come up for consideration in the absence of confirmation. On consideration of the entire matter, the Court held that as the determinative date for fixing the seniority is the date of confirmation, quota rule will have to be observed not only at the stage of recruitment but at the stage of confirmation as well. Else, it would result in discrimination to the promotees and would impinge upon their seniority in the Service. The Court chose to give this interpretation as according to it, this was the only way out to save Rule 10 from the vice of arbitrariness. It is clear from the following discussion:

    Now, if the other view if 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 saved 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 operating 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 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 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. And 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 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 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 jeopardized. To avoid this utterly unconscionable outcome the construction we have put on Rule 8 would be in consonance with justice and reason.

  7. After solving the dispute in the aforesaid manner, the Court also made certain other observations in para 14. We would refer to that para at the relevant stage inasmuch as it is the contention of the Appellants before us that observations made in the said para are legally erroneous which position is now acknowledged by this Court in the Constitution Bench judgment in the case of B.S. Yadav v. U.O.I. 1980 Supp. SCC 524.

  8. To put it succinctly, in Paramjit Singh's case, this Court held that rule of quota shall apply at the time of confirmation also and confirmation was to be done on the basis of vacancies. It would mean that even at the time of confirmation quota of 4:1 between the promotees and direct recruits would be applicable.

  9. Implementing this judgment, the State Government prepared seniority list dated 4.6.1981 thereby granting dates of confirmation from 1961 to 1981. This led to filing of an application for clarification in Paramjit Singh's case by the Appellants in the said case. Dismissing the application the Court made the following categorical remarks:

    There was no ambiguity in the Court's earlier judgment. What the Court meant was that quota should be co-related to the vacancies which are to be filled in. Who...

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