# [1980] 3 S.C.R. 459

- **Citation:** [1980] 3 S.C.R. 459
- **Court:** Supreme Court of India
- **Decided:** 1980-04-11
- **Bench:** V. R. Krishna ]Yer, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1980-3-s-c-r-459-8060
- **Pages:** 19

## Headnote

Indian Police Servtce (Regulation of Seniority) Rules-Rule 3 (3) (b )-
Validity of
A
B
Indian Police Service (Fixation of Cadre
S~rength) Regulations, 1955Regulations 7 to 9-Year oj allotment service in non-cadre posts not considered
-Whether such a service would constitute a break for fixing t~e year of allotment-JVhether over-utilisation of deputation und Central reserve quota relevant
C
(joft fixing tlie year of allotment, when once the officer has continuously
officiated in a Senior Post-Whether offends Articles 14 and 16 of the Con~
stitution.
Indian Police Service (Fixation of Cadre Strength) Regulations-Regulutions
7 to 9 of 1955 and Indian Police Service (Cadre) Rules, 1954, μule 4(1), Scope
~
D
On seleciion by the Punjab Public Service Commission B. R. Kapur (appellant in CA 2413178) and Harjeet Singh (Appellant in CA 2526177) were
directly recruited in 1951, as Deputy Superintendents of Police in the Punj.lb
Police Service.
B. R. Kapur \Vas senior to Harjeet Singh as Deputy Superintendent of Police.
In 1960, both of them were included in the Select List
prepared under Regulation 7 of the Indian Police Service, (Appointment by
E
Promotion) Regulations, 1955.
On November 24, 1960, B~ R. Kapur was
appointed as A'Ssista.I1t Inspector General of Police which post was a cadre
post In May 1961 he was appointed to a non-cadre post as Director of
Sports and Youth Programme and Deputy Secretary to Government, Sports
Department.
He held this post upto November 18, 1962, and thereafter he
was appQinted as Additional Controller of Stores, Punjab which was also a
non<.Odre post.
He continued to hold the post of Additional Controller of
F
Stores till 1965, loom July 19, 1965 he was Commandant, 40th Battalion
PAP, J & K which was a cadre post.
He held the post till July 11, 1966
when he took over as Commandant of 25th Battalion PAP. On the reorganisation of the State of Punjab, he was appointed as Assistsant General of Police,
State of Punjab from November l, 1966.
Thereafter he continuously held
cadre posts and was finally appcinted to. the Indian Police Sen'ice with effect
from September 3, 1969.
Shri Harjeet Singh was appointed to officiate IS
G
Superintendent of Police in December 1960. 1'he post was a cadre post.
He
continued to hold a cadre post till he \Vas appointed to the Indian Police
Service- with effect from September 3, 1969.
P...ftec the· l\\'O officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of seniority arQ6C for the
consideration of the Government of India.
Shri B. R. Kapur was allotted
the year 1963 and placed below Sube Singh and above S. R. Sharma (direcl
recruits) in the Jndian Police Service, counting his continuoUs officiating service
from 1-11-66 only, as service in a senior cadre post and not his service in the
H
460
SUPREME COURT REPORTS
[1980] 3 S.C.R.
A
non-cadre post.
In the case of Harject Singh, though he admittedly officiated
continuously in a senior cadre post from December 1960, he was also allotted
to the year 1963 and placed below Sri Kapur on the ground that he ranked
~elo¥/ Sri Kapur in the select list.
Kapur and Harjeet Singh filed \\Tit petitions in the· High Court of PlUljab
and Haryana quelltioning the allotment of the year 1963.
The Writ Petitions
B
were· accepted.
The Court directed the Union and Punjab Government& to
redetermine the year of allotment and seniority of J-Jarjeet Singh and Kapur
taking December 17, 1960 and July 29, 1965 respectively as the dates of their
continuous officiation in '-!. senior post.
A further direction was issued that
before redetcrn1ining the seniority of the two officials, the respondents to the
Writ Petitions \.Vho were direct recruits should be afforded an opp0rtunity to
make their representation.
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Appeals under clause· 10 of the Letters Patent were filed by the affected
direct recruits as also by B. R. Kapur. The direct recruits
contended that
neither B. R. Kapur nor Harjeet Sin

## Text

_Characters 0–39,884 of 55,425. This is a partial read: ask again with offset=39884 for what follows._

i
459
HARJEET SINGH ETC.
'"
UNION OF INDIA AND ORS.
April 11, 1980
[V. R. KRISHNA ]YER AND 0. CHINNAPPA REDDY, JJ.]
Indian Police Servtce (Regulation of Seniority) Rules-Rule 3 (3) (b )-
Validity of
A
B
Indian Police Service (Fixation of Cadre
S~rength) Regulations, 1955Regulations 7 to 9-Year oj allotment service in non-cadre posts not considered
-Whether such a service would constitute a break for fixing t~e year of allotment-JVhether over-utilisation of deputation und Central reserve quota relevant
C
(joft fixing tlie year of allotment, when once the officer has continuously
officiated in a Senior Post-Whether offends Articles 14 and 16 of the Con~
stitution.
Indian Police Service (Fixation of Cadre Strength) Regulations-Regulutions
7 to 9 of 1955 and Indian Police Service (Cadre) Rules, 1954, μule 4(1), Scope
~
D
On seleciion by the Punjab Public Service Commission B. R. Kapur (appellant in CA 2413178) and Harjeet Singh (Appellant in CA 2526177) were
directly recruited in 1951, as Deputy Superintendents of Police in the Punj.lb
Police Service.
B. R. Kapur \Vas senior to Harjeet Singh as Deputy Superintendent of Police.
In 1960, both of them were included in the Select List
prepared under Regulation 7 of the Indian Police Service, (Appointment by
E
Promotion) Regulations, 1955.
On November 24, 1960, B~ R. Kapur was
appointed as A'Ssista.I1t Inspector General of Police which post was a cadre
post In May 1961 he was appointed to a non-cadre post as Director of
Sports and Youth Programme and Deputy Secretary to Government, Sports
Department.
He held this post upto November 18, 1962, and thereafter he
was appQinted as Additional Controller of Stores, Punjab which was also a
non<.Odre post.
He continued to hold the post of Additional Controller of
F
Stores till 1965, loom July 19, 1965 he was Commandant, 40th Battalion
PAP, J & K which was a cadre post.
He held the post till July 11, 1966
when he took over as Commandant of 25th Battalion PAP. On the reorganisation of the State of Punjab, he was appointed as Assistsant General of Police,
State of Punjab from November l, 1966.
Thereafter he continuously held
cadre posts and was finally appcinted to. the Indian Police Sen'ice with effect
from September 3, 1969.
Shri Harjeet Singh was appointed to officiate IS
G
Superintendent of Police in December 1960. 1'he post was a cadre post.
He
continued to hold a cadre post till he \Vas appointed to the Indian Police
Service- with effect from September 3, 1969.
P...ftec the· l\\'O officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of seniority arQ6C for the
consideration of the Government of India.
Shri B. R. Kapur was allotted
the year 1963 and placed below Sube Singh and above S. R. Sharma (direcl
recruits) in the Jndian Police Service, counting his continuoUs officiating service
from 1-11-66 only, as service in a senior cadre post and not his service in the
H
460
SUPREME COURT REPORTS
[1980] 3 S.C.R.
A
non-cadre post.
In the case of Harject Singh, though he admittedly officiated
continuously in a senior cadre post from December 1960, he was also allotted
to the year 1963 and placed below Sri Kapur on the ground that he ranked
~elo¥/ Sri Kapur in the select list.
Kapur and Harjeet Singh filed \\Tit petitions in the· High Court of PlUljab
and Haryana quelltioning the allotment of the year 1963.
The Writ Petitions
B
were· accepted.
The Court directed the Union and Punjab Government& to
redetermine the year of allotment and seniority of J-Jarjeet Singh and Kapur
taking December 17, 1960 and July 29, 1965 respectively as the dates of their
continuous officiation in '-!. senior post.
A further direction was issued that
before redetcrn1ining the seniority of the two officials, the respondents to the
Writ Petitions \.Vho were direct recruits should be afforded an opp0rtunity to
make their representation.
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Appeals under clause· 10 of the Letters Patent were filed by the affected
direct recruits as also by B. R. Kapur. The direct recruits
contended that
neither B. R. Kapur nor Harjeet Singh would have ever started officiating in
the senior post on the daks from V.'hich they officiated or claimed to have
officiated in senior posts, if the State Governments had not created artificial
vacancies by exces~ive utilisation of the "deputation and central reserve" quota
in contravention of the cadre Rules and the Cadre·strength Regulations. The
arguments before the Division Bench therefore was that the period of service
attributable to over utilisation of 'deputation and central reserve' quota should
not be treated as service in a senior post for the purpose of determining the
year of allotment of officers promoted to the I.ru.lian Police Service.
The
argument was accepted by the Division Bench and a direction was issued to
ithe Central Government to reconsider the question of year of allotment after
taking ·into consideration the question of over utilisation and its effect.
The
finding of the learned Single Judge that B. R. Kapur was entitled to have
his service as Commandant 25th Battalion as officiation in a senior post was
however affirmed. . Hence the appeals by special leave by Harjeet Singh and
Kapnr.
Allowing the appeals and dismissing the Petitions, the Court.
HELD : 1. Rule 3 (3) (b) of the Indian Police
Service (Regulation of
Seniority) Rules, 1954 is valid. [476E]
A. P. Sharma v. Union of India, [1968] S.L.R. 582; followed.
2. Rule 3(3)(b) as well as Rule 4(4) of the Indian Police Service (Regulation of Seniority Rules 1954 throw up the date of continuous
officiation
of an officer in a cadre post as the most ,important factor both for the pul"'-
pose of assignment of year Of allotment and for the purpose of assignment
of seniority.
For the. purpose of assignment of year of ailotment the date of
continuous officiation in a senior post is the only relevant factor while for the
purpose of assignment of seniority, first, the date of continuous officiation in a
senior post, then the date of appointment to the Service if the date of comnrencement of continuous officiation in a Senior post of more than one officer is the
same and, finally, the order in the Select List if the date of appointment is also
the same arc the several relevant factors in that order.
Thus the order in the
Select List is irrelevant for the purpose of determining the year o.f allotment
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HARJEET SINGH V. UNION
461
and is relevant in detennining the seniority, only if the year of allotinent of the
officers is also the same, and their date of ap·pointment is also the same.
Since the order in the Select List is dependent on the seniority in the State
Service, it follows that seniority in the State Police Service is irrelevant for
the purpose of determining the year o'f allotment and is relevant for the· purpose of deter111ining- the ~eniority only if the year of allotment and the date
of appointn1ent of two or more officers are the same.
Therefore an officer
who is junior to another in the State Police Service but, who starts continuous
officiation in a Senior post fro1n a date earlier than the other, may frog-leap·
and gain seniority by the consequential assignn1ent of an earlier year of allotment.
Neither the Indian Police Serrice (Regulation of Seniority) Rules n_or
any other rule in the irmumcrablc Rules and Regulations governing the recruitment, appoint1nent and Regulation of seniority of officers of the Indian Police
Sen1ice is designed to deprive an officer, the benefit of continuous
officiation
in a senior post.
[471G-H, 472A-E]
3. Though under the Indian Police Service (/\.ppointment by Pro1notion)
Regulations, the Select l,ist is prepared on the basis of merit and ability, the
. order in which officers are placed in the Select List is accorditig to seniority
in the State Police Service and not according to merit and ability. Merit and
ability arc considered for the purpose of inclusion in the Select List but thereA
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<ifter s(:nior1ty in th~ State Police Service takes over and the nan1~ of Officers
&
:ire aJranged in the order of that seniority,
Therefore the benefit of continuow officiation in a Senior post cannot be denied to an
officer
appointed
to the Indian Police Service merely on the ground that an officer senior to
hitn in the· State Police Service did not so continuously officiate.
[472F·H]
4. It is true that under Regulation 8 of the Indian Police Service (i\.ppointment by Promotion) Regulation & Appointments to cadre posts from among
E
non-cadre officers should be n1ade according to the order in which the names
o.f such officers appear in the Select Li..<>t.
.A. dcviatio11 from the order is
permissible if administrative exigencies require it and if the vacancy is not
likely to last for more than three months.
Of course, the Regulation does
not license uninhibited deviation to favour individunl non-cadre officers. If that
is done the deYiatiot1 is liable to cha11enge.
But where there is no such allegation, there is no reason why a junior non-cadre officer should lose the benefit
F
of his conti11uo~1s officiation in a. cadre post merely because a non-cadre officer
senior to him in the Select I.ist did not continuously officiate likewise.
In
such a situation, it \vould be for the Government of India to consider whether
the relevant rules may not be so relaxed as to enable such non-caJ.rc officer
to add hi~ officiation in a non-cadre post to his officiation in a cadre -post,
regard being had to the· circumstances· under which the officer had 'i.o work
in a non-cadre rost \vhilc his junior in the Select List \Vas inade to fill the
G
cadre post.
But. surely, it cannot \Vork to the prejudice of the junior officer
in the Select Li"\ so as to nuilify the actual, continuous, officiating service
rendered by hin1.
In the present case there is no allegation that B. R. Kapur
was appointed to lhc non-cadre posts of Director of Sports and Additional Controller of Stores \vith a vie\v to favour Harjeet Singh. [472 H, 473A-Dl
5. Non-ca<lre officers if they arc appointed to cadre posts in accordance
.ft·
with Rule 9 of the Cadre Rules should not be denied the benefit of continuous
officiation in senior post merely because cadre officers were
appointed
on
deputation elsewhere in excess of the number of posts specified against a
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462
SUPREME COURT REPORTS
[1980] 3 s.c.R.
Deputation Reserve in the schedule to the Cadre Fixation of Strength Regu-
. Jation.
[473E-FJ
Fixation of Cadre Strength Regulations are made in exercise of the power
conferred on the Central Government by Rule 4 ( 1) of the Cadre Rules and
are, therefore, subordinate to the Cadre rules even as rules made in exercise
of powers confem:d by a Statute are necessarily subordinate to the Statute. Rule
6 of the Cadre Rules provides for the deputation of Cadre officers and Rule 9
of the same rules provides for the temporary appointment of non-cadre officers
to cadre posts. In making appointment of non-cadre officers to cadre posts
the rule prescribes the fulfilment of certain conditions.
In the instant case.
that the conditions prescribed by rule 9 of the Cad re Rules were fulfilled is
clear from the impugned order.
[473F-H]
C
6. Rule 4(1) o;f the Cadre Rules enables the Central Government to make
Regulations determining the strength and composition of the Cadre of each
State. A definite number of posts is also specified against "Deputation Reserve'"
in the schedule to the fixation of Cadre Strength Regulations.
But if owing
t<> the situational demands and e·xigencies of the <!dministration, the number
is exceeded and the State Government is compelled to utilise the services of
experienced non-cadre officers to fill cadre posts in strict compliance with the
D
Cadre Rules, the Service rendered by the non--cadre officers in such posts should
not be ignored.
Jn the instant case, the deputation of cadre officers was in
accordance with Rule 6 of the Cadre Rules.
[474A-C]
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7. Fixation of cadre strength Regulations made under Rule 4 of the Cadre
Rules do not over-ride the Recruitment Rule, the remaining Cadre Rules and
the Seniority Rules so as to render invalid any service rendered by a non-cadre
officer in a cadre post on the mere ground of breach of the Fixation of cadre
Strength Regulations, when there has been strict compliance with Rule 9 of the
Cadre Rules.
Fixation of Cadre Strength is the exclusive concern of the
Central and the State Governments and the Regulations are made for their
convenience· and better relationship.
Excessive utilisation of 'Deputation or
Central Reserye' is a matter for adjustment and controversy between the Central
and the State Governments and is of no concern to any member of the service.
For example no cadre officer who is asked to fill a deputation post can refuse to
join the post on the ground that the 'Deputation Reserve' has already been
exceeded. The Regulations are not intended to and do not confer any
right on any member of the Service, unlike some other Rules which do confer
or create rights in the members of the Services.
A mere breach of the mle
furnishes no cause of action on the ground that his seniority is affected in
son1e round-about way.
[474C-G and 475A]
8. Under Rule 6(A){2) of the Indian Police Service Recruitment Rules
a direct recruit in the junior time scale of pay can be appointed to a post
in the Senior time seale of pay if having regard to his length of service,
experience and performance he is found to 1 be suitable for appointment to
post in the Senior time scale of pay.
Since at that time in Punjab,
there
was no direct recruit in the junior time scale of pay \Vho possessed experience
of at least four years who could be thought of for appaintment in the Senior
post, the State Government had no option except to apPoint experienced and
suitable non-cadre officers to cadre posts. Further no cadre officer who had
been so deputed suffered in any manner in the matter of his career.
[475B-D]
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HARJEET SINGH V. UNION
463
Further, the appointment of non-cadre officers to cadre post. is subject to
A
the directions of the Central Government, who may terminate such appointment.
The C'.entral Government too is bound to obtain the advice of the Union
Public Service Commission if the appointment is to extent beyond six months.
1\foreover non-cadre officers of proven merit only are appointed
to
cadre
posts.
111ey are appointed to cadre posts if they are already in the Select
List and the appointments are made in accordance with the order in which
they are placed in the Sekel List which is prepared under the Indian Police
B
Service Recruitment Rules after following an elaborate procedure involving
a thorough examination at various levels. of the merit of the officers of the
State Police Service.
A State Officer whose name appears on the Select List
may expect to be appointed to a cadre post and lo be promoted to the Indian
Police Service at any time thereafter according to vacancy position.
A direct
recruit who ordinnrily comes into the picture year:i after a State Officer's name
appears on the Select List cannot have any real grievance that the promoted
C
officer is given fin anterior date for the purpose of seniority since such <late
can never be earlier than the date from which the junior most direct recruit
continuously officiated in a Senior post prior to the commencement of the continuous officiation of !he promoted officer.
[475E-H, 476A-B]
9. Every departure from a rule which departure gives certain advantages
to one group of Civil servants as against another does not necessarily involve
D
an encroachment of the Fundamental Rights guaranteed by Articles 14 and
16 of the Constitution.
The Fixation of Cadre Strength Regulations cannot be
interpreted as comprising any "Quota" n1le.
There is no allegation of breach
of "quota" rule embodied in Rule 9(2) of the Recruitment Rules either. [476B-E]
N. K. Chauhan nnd Ors. v. State of Gujarat, [1977] 1 SCR 1037, distinguished.
10. "The over·utilisation" of
1'Deputation and Central Reserve" does not
affect the questions of assignment of the year of allotment and the seniority
of the appellants.
[476F-G]
C!viL APPELLATE JURISDICTION : Civil Appeal Nos. 2526/77 and
2413/78.
From the Judgment and Order dated 17-5-1975 of the Pnnjab and
Haryana High Court in LPA Nos. 633, 671; 694/73 and 609173.
AND
Writ Petition Nos. 520-524 af 1980.
(Under Article 32 of the Constitution)
Jawahar Lal Gupta and S. Ghose for the Appellant in CA 2526/
77.
P. R. Mridul, M. R. Agnihotri and P. C. Bhartari for the Appellant
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in CA 2413/78.
H
0. P. Sharma and M. S. Dhillon for the State of Punjab in both
the appeals. _
464
SUPREME COURT REPORTS
(1980] 3 S.C.R.
A
Lal Narain Sinha Att. Genl. Abdul Khader and Miss S. Subhashini
for the Union of India in all the appeals.
H. L. Sibal, R. K. Garg and R. S. Sodhi for Respondent
No.
10 in CA 2526 and RRll in CA 2413.
R. K. Garg and R. S. Sodhi for the Petitioners in WP Nos. 520B
524 of 1980.
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The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. In these appeals we have once again to
consider career conscious competing claims to seniority which appear
so much to dominate the lives and careers of our Civil Servants that
a large bulk of the cases in this Court relate to the resolution of problems arising out of such claims.
So much of our time is taken up' in
discovering the precise facts of these intricate problems that we
wonder whether the constitution of a fact-finding administrative tribunal who should invariably be approached in the first instance will not
better serve the cause of successful administration. An administrative
tribunal possessing the necessary expertise and familiarity with administrative procedures and rules may be able to deal with the problems
in a satisfactory way. At least the facts wil1 be found and the relevant
rules will be !mown.
Thereafter aggrieved parties may approach the
Courts for further relief within the confines of Articles 226 and 32 of
the Constitution.
On selection by the Punjab Public Service Commission, B. R.
Kapur and Harjeet Singh were directly recruited, in 1951, as Deputy
Superintendents of Police in the Punjab Police Service. They are the
appellants in Civil Appeal Nos. 2413 of 1978 and 2526 of 1977 respectively. B. R. Kapur was senior to Harjeet Singh as Deputy Superintendent of Police. In 1960 both of them were included in the Select
List prepared under Regulation 7 of the Indian Police Service ( Appointment by Promotion) Regulations 1955. On November 24, 1960,
B. R. Kapur was appointed as Assistant Inspector General of Police
which post was a cadre post. In May, 1961, B. R. Kapur was
appointed as Director of Sports and Youth Programme and Deputy
Secretary to Government, Sports Department.
The post was a noncadre post.
He held this post upto November 18, 1962 and thereafter
he was appointed as Additional Controller of Stores, Punjab which
was also a non-cadre post. He continued to hold the post of Additional
Controller of Stores till 1965. From July 19, 1965, he was Commandant, 40th Battalion, PAP, J & K, which was a cadre post. He held the
post till July 11, 1966, when he took over as Commandant of 25th
Battalion, PAP.
On the reorganisation of the State of Punjab, he
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HARJEET SINGH v. UNION (Chinnappa Reddy, I.)
465
wa,s appointed as Assist.ant Inspector General of Police, State of Punjab from November 1, 1966. Thereafter he continuously held cadre
posts and was finally appointed to the Indian Police Service with effect
from September 3, 1969.
Shri Harjeet Singh was appointed to officiate as Superintendent of
Police in Dec·~mber, 1960. The post was a cadre pool.
He continued to hold a cadre post till he was appointed to the Indian Police
Service with effect from September 3, 1969.
After the two officers
were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of se'niority
arose for the
consideration of the Government of India.
Shri B. R. Kapur was
allotted to the year 1963 and placed below Sube Singh and above
Shri S. R. Sharma (direct recruits) in the Indian Police Service Gradation List of Punjab.
The period of his service as
Director of
·sports and Yonth Programme and as Additional Controller of Stores
was not taken into consideration as both the posts were
non-cadre
posts. His service as Commandant of 25th Battalion was also not
taken into account on the gronnd that the 25th B~ttalion had been
taken over by the Government of India and therefore the post of Commandant of the 25th Batl'alion was a non-cadre post. He was, therefore, treated as having continuously officiated in a senior coore post
from November 1, 1966 o'nly.
On that basis he was allotted to the
year 1963. In the case of Harjeet Singh, though admittedly he officiated continuously in a senior cadre post from December, 1960 he
was also allotted to the year 1963 and placed below Shri B. R Kapur
on the ground that he ranked below Shri B. R. Kapur in the select
list.
B. R. Kapur. and Harjeet Singh filed Writ Petitions in the High
Court of Punjab and Haryana questioning the allotment of the year
1963 to them for the purpose of seniority in the Indian Police Service.
The learned Single Judge of the High Court who heard the
petitions in the first instance held that there was no reason at all why
Harjeet Singh should not be given the full benefit of his continuous
officiation in a senior post.
He, therefore, directed the Union and
Punjab Governments to redetermine the year of allotment of Harjeet
Singh, taking December 17, 1960, as the date from which he continuously officiated in a senior post. It was also directed that proper seniority
should be assigned to him in accordance with the year of allotment
so determined.
In the case of B. R. Kapur it was held that Ju:y 29,
1965, should be treated as th,~ date of. his continuous officiation in a
senior post. It was held that the Government of India and the Gov-
,ernment of Pnnjab boo all the time treated the post of Commandant,
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466
SUPREME COURT REPORTS
[ 1980] 3 S.C.R.
25th Battalion as a cadre post and therefore, B. R. Kapur was entitled
to have his service in the post. of Co=andant, 25th Battalion as
officiation in a Senior post.
A direction was issued that the year of
allotment and
seniority should be re·determined.
It was
further
directed that before redeterminihg the seniority of the two officers,
the respondents to the Writ Petitions who were direct recruits, should
be afforded an opportunity to make their representations.
Appeals under Clause 10 of the Letters Patent were filed by the
affected direct recruits as also by B. R. Kapur. Before the Di\ision
Bench the case took a new turn. It was argued before the Division
Bench on behalf of the direct recruits that neither B. R. Kapur nor
Harjeet Sihgh would have ever started officiating in the senior post
on the dates from which they officiated or claimed to have officiated
in senior posts, if the State Government had not created
artificial
vacancies by excessive utilisation of 'the deputation and central reserve' quota in contravention of the Cadre Rules and the Cadre-strength Regulations. It was apparently sought to be argued before the
Divisioh Bench that th•e period of service attributable to over utilisation of 'deputation and central reserve' quota should not be treated
as service in a senior ·post for the purpose of determining the year
of allotment of officers promoted to the Indian Police Service. The
argument was accepted by the Division Bench and a direction was
issued to the Central Government to reconsider the question of year
of allotment after taking into consideration the question of over utilisation and its effect.
The finding of the learned Single Judge that
B. R. Kapur was entitled to have his service as Commandant 25th
Battalion as officiation ih a senior post was however affirmed.
Shri Jawahar Lal Gupta, learned counsel for Harjeet Singh argued
that the service of Harjeet Singh in a senior cadre post was approved
by the Government of India and once it was so approved the question
whether there was over utilisation of deputation and central reserve
quota was irrelevant for the purpose of determihing the year of allotment.. The only relevant question was whether the
appellant bad
continuously officiated in a senior post and, from what date. Thereafter the year of allotment was to be determined by the simple and
mechanical application of rule 3(3) (b) of the Indian Police Service (Regulation of Sehiority) Rules.
He further submitted that the
'circumstance that B. R. Kapur was senior to Harjeet Singh in the
Select List was also irrelevant in considering the question of year of
allotment. It was only if both of them were given the same year of
allotment that their inter-se seniority in the Select List would become
relevant.
Shri Mridul, learned counsel for B. R. Kapur, argued that
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HARJEET SINGH v. UNION (Chinnappa Reddy, !.)
467
the single Judge of the High Court was wrong in excluding the period
of service of B. R. Kapur as Director of Sports and as
Additional
Controller of Stores in determining the year of allotment.
He further contended that in any event the case of B. R. K.apnr was an
.appropriate one for the exercise by the Central Government of its
pawer to reLix the rules and that this Court should give a direction to
the Central Government to relax the rules so as to enable that part of
Kapur's service to be treated as service in a &<nior pool.
Shri H. L. Sibal, learned counsel for one of the respondents argued· that the number of cadre officers who could be deputed by the
Central and State Governments for servie>< elsewhere was limited and
fixed by the fndian Police Service (Fixation of Cadre Strength) Regulations.
By deputing more cadre officers than authorised by thoo"
Regulations and appointing non-cadre officens to artificial vacancies
so created in cadre posts, the State Government had adopted a device
to enable the officers of the State Police Service to continuously officiate in Senior posts longer than justified.
The Cadre Strength Regulations were thereby' contra~ened and the Cadre Rules which provide
for the temporary appointment of non-cadre officers to cadre posts
circumvented. He submitted that officiating service rendered by a noncadre officer in a Senior post where the vacancy in the cadre post was
the result of over utilisation of the deputation quota could not be
taken into account under the Indian Police Service Regulation of
Seniority Rules.
Shri R. K. Garg, who appeared for the remaining
respondents urged that to permit promoted officers to take advantage
of the deviation from the Cadre Rules and the Cadre Fixation of
Strength Regulations for the purpose of gaining an advantage under
the Seniority Rules would be a denial of the equal protection of the
laws to the direct r~cruits who would be affected by such procedure.
He also urged that Rule 3 of the Seniority Rules if so interpreted as
to take into account officiation against the rules
must be held to
contrave1w A:rticb 14 and 16 of the Constitution.
A
B
c
D
E
F
In order to appreciate the rival
contentions it is
necessary to
G
examine the relevant statutory provisions, rules and regulations.
Article 312 ( 1) empomrs Parliament to provide, by law, for the
cr~ation of All India Services common to the Union ahd the States.
Article 312(2) d~clares that the services known at the commencement of th~ Constitution as the Indian Administrative Service and the
Indian Police Service shall be deemed to be services created by Parliament under Art. 312(1).
10-289 SC!/80
8
A
B
468
SUPREME COURT REPORTS
[1980 3 S.C.R.
S. 2 of the All India Services Act, 1951 defines an "All India
Service" as meaning the service known· as the Indian Administrative
Service or the service known as the Indian Police Service or any other
service specified in S. 2(A). Sec. 3 enables the Central Government
after consultation with the Government of the States concerned to
make rules for the regnlation of recruitment, and the conditions of
service of persons appointed to an All India Service.
The Indian Police Service (Cadre) Rules, 1954, made in exercise of the pomrs conferred by S. 3 (1) of the All India Services
Act, provide for the constitution of Cadres and certain connected
matters.
A Cadre Officer is defined as a member cf the
Indian
C · Police Service and a Cadre post is defined as any of the posts specified under item 1 of each cadre in the schedule to the Indian Police
Service (Fixation of Cadre Strength) Regnlations, 1955. Rule 4(1)
provides that the strength and composition of a cadre constituted
for each State or group of States shall be as determined by Regulations made by the Central Government in consultation with the State
D Governments. Rule 4(2) requires the Central Government to re-examine the strength and composition of each such cadre at intervals of
iovery three years in consultation with the State Government cono~rned and to make such alterations as it deems fit.
The first proviso to Rule 4(2) expressly stipulates that the power of the Central
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Government to alter the strength and composition of any cadre at
any other time is not affected by rule 4(2). The second proviso to
r. 4(2) enables the State Government to add, for 'a period not exceeding one year,. and iwth the approval of the Central Government for
a further period not exceeding two years, to a State cadre one or
more ppsts carrying duties or responsibilities of a like nature to a
cadre post. Rule 6 authorises the deputation of cadre officers for
service under the Central Government or another State Government
or under a Company, Association or body of individuals, whether
incorporated or not, which is wholly or substantially owned or controlled by the Central Government or a State Government, a Municipal Corporation or a Local body or an international organisation
etc. etc. Rule 8 prescribes "save as otherwise provided in these rules,
every cadre post shall be filled by a cadre officer". Rule 9(1) provides for the temporary appointment of a non-cadre officer to a cadre
post if the State Government is satisfied that the vacancy is not likely to last for more than three months or if there is no suitable cadre
officer available for filling the vacancy.
Where a non-cadre officer
is appointed to a cadre post for a period exceeding three
months
the State Government is required forthwith to report the fact to the
Central Government together with their reasons for making the
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HARJEET SINGH v. UNION (Chinnappa Reddy, J.)
469
appointment. The Central Government may then.direct the State Government to terminate the appointment of such person and to appoint
a cadre officer to the post, in which ca9~ the State Govertunent iS
bound to give effect to the directian.
Where a cadre post is likely
to be filled by a non-cadre officer for a period exceeding six months
the Central Government is required to report the full facts to the.
Union Public Service Commission and may thereafter give appropriate
directions to the State Government in the light of the advice given by
the. union Public Service Commission.
Pursuant to the powers conferred by R. 4(1) of the Indian Police
Service Cadre Rules,
the Central Government has made the Indian
Police Service (Fixatian of Cadre Strength) Regulations 1955, determining the strength and compooition of the cadres of each of the
States.
In the schedule the total anthorised cadre strength for the
State of Punjab is mentioned as 70 consisting of 34 Senior Posts w:der
the State Government, 14 Senior posts under the Central Government,
7 Deputation Reserve posts, 6 Leave Reserve posts
and 7 Junior
posts and 4 Training Reserve posts.
The thirty four senior posts
under the State Govertunent are also particularly specified.
Thirty
six out of the total of forty eight Senior posts under the Central and
State Gavernments, the deputation Reserve posts, the Leave Reserve
posts, the Junior posts and the Training Reserve posts are all stated
to be 'direct recruitment posts' while the remaining 12 Senior posts
m;ider the Central and State Governments are stated to be "promotion pqsts". It is necessary to mention here that the thirty four posts
specified as "Senior posts under the State Government" are shown
as item 1 of the schedule and the fourteen Senior posts
under the
Central Government are shown as item 2 of the schedule.
The Indian Police Service (Recruitment) Rnles, 1954 provide for
recruitment to the Service (a) by a competitive service and (b) by
promotion of substantive members of a State Police Service.
Rule
9 ( 1) empowers the Central Government to recruit to the Indian Police
Service persons by promotion from amongst the substantive members
of the State Police Service in accordance with Regulations made by
the Central Government. The recruitment is required to be made on
the recommendation of the State Government concerned and in consultation with the Union Public Service Commission. Rule 9(2) provides
that the total number of persons recruited by promotion shall not at
any time exceed 25% of the number of posts shown against item No.
, 1 and 2 of the cadre in the schedule to the Indian Police Service
(Fixatfon of Cadre Strength) Regulation.
Items 1 and 2, we have already mentioned are Senior posts nnder the State and the Central
Govertunents.
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B
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E
F
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A
B
D
470
SUPREME COURT REPORTS
[1980] 3 S.C.R.
The Indian Police Service (Appointment 'by Promotion) Regulations 1955, made pursnaJ1t to Rule 9(1) of the Indian Police Service
Recrnitment Rules 1954 prescribes a very elaborate
procedure for
making appointments by promotion to the Indian Police Service.
A
Selection Committee is required to be constituted for each State consisting of the Chairman or any other member of the Union Public Service
Commission and other members specified in the schedule. In the case
of Punjab the other members are the Chief Secretary to the Government of Punjab, the Secretary to the Government of Punjab in the
Home Department, the Inspector General of Police and a nominee of
the Government of India not below the rank of Joint Secretary. The
Selection Committee is required to meet at intervals ordinarily not
exceeding one year and to consider the cases of all eligible substantive
members of the State Police Service. The Committee is required to
prepare a list of such eligible members of the State Police Service who
are suitable for promotion to the Indian Police Service The selection
for inclusion in the list is to be based on merit and suitability in all
respects with due regard to seniority but the names of the officers included in the list are required to be arranged in order of seniority in.
the State Police Service.
The list prepared by the Selection Committee is then to be forwarded to the Union Public Service Commission
by the State Govermnent with all relevant records, the reasons recorded by the Committee for any _proposed supersession of any member
E
of the State Police Service and the observation of the State Government on the recommendation of the Committee. Thereafter the Union
Public Service Commission is to consider the list prepared by the Committee and to make any changes considered by them, to be
necessary, after
informing
the State
Government of the proF
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posed changes. The list as finally approved by the Commission is to
form 'the Select List of the members of the State Police Service.'
All
appointments of members of the State Police Service from the Select
List to posts borne on the State cadre are to be made in accordance
with the provisions of R. 9 of the Cadre Rules. In making the appointments the State Government is to follow the order in which the
'names of such officers appear in the Select List except where administrative exigencies require otherwise and the vacancy is not likely
to last for more than thre_e months. Appointments of members to the
Indian Police Service are to be made by the Central Government on
the recommendation of the State Government in the order in wliich
the names of the members of the ,State Police Service appear in the
Select List for ths time being in force.
We arrive :finally at the Indian Police Service (Regulation cf Seniority) Rules 1954. Rules 3 provides that every officer shall be assigned
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HARJEET SINGH v. UNION (Chinnappa Reddy, !.)
4 71
a year of allotment in accordance with the provisions of that rule.
Rule 3(3)(b) prescribes that the year of allotment of an. officer who is
appointed to the service by promotion in accordance with rule 9 of the
Recruitment rules, shall be the year of allotment of the junior most
among the officers recruited by competitive examination who officiated
continuously in a Senior post from a date earlier than the date of
commencement of such officiation by the officer 'lippoi'nted to the
service by promotion.
'Senior post' was originally defined as a post
included and specified :under item 1 of the cadre of each State in the
Schedule to the Indian Police Service (Fixation of Cadre Strength)
Regulation and as including posts declared by the State Government
as equivalent to such posts.
The definition was amended with effect
from April 22, 1967 and the present definition does not include posts
declared equivalent by the State Government to cadre posts.
Rule 4 ( 1) provides that the seniority of officers inter-se shall be
determined in accordance with the provisions of the rules. Rule 4( 4)
provides that the Seniority of officers who are assigned the same year
<if allotment shall be in the order of the dates on which they started
officiating continuously in the Senior post, but in the case of Officers
appointed to the service by promotion, the dates of officiation shall be
the same as the _dates taken into account for the purpose of assignment of year of allotment under rule 3 ( 3). Where the dates of commencement of continuous officiation in a Senior post of more than
one Officer appointed to the service by promotion is the same their
seniority inter-se shall be in the order of their dates of appointment to
the service and where the date of appointment is also the same it shall
be in the order in which their names are arranged on the
date of
their appointment to the service in the Select List.
These are the Statutory provisions, Rules and Regulations with
which we are concerned in the present appeals. What are primarily
in question are the year of allotment and the Seniority of the two
officers, Harjeet Singh and B: R. Kapur.
So, therefore, our primary
concern is with the Indian Police Service (Regulation of Seniority)
Rules, 1954Rule 3(3)(b) as well as rule 4(4) throw up the date
of continuous officiation of an officer in a -cadre post as the most important factor both for the purpose of assignment of yoor of allotment
and for the purpose of assignment of seniority.
For the purpose
of a1;signment of year of allotment the date of continuous officiation in a senior post Is the only relevant factor while for
th«
purpose of assignment of seniority, first, the date of continuous officiation in a senior post is the only relevant factor while for the
if the date of commencement of continuous officiation in a Senior
A
B
0
D
B
F
G
H
A
B
c
D
F
G
B
472
SUPREME COURT REPORTS
[1980] 3 S.C.R.
post of more than one officer is the same and, finally, the order in the
Select List if the date of appointment is
also the same, are the
several relevant factors in thi!_t order. Thus the order in the Select
List is irrelevant for the purpose of determining the year of allotment
and is relevant in determining the seniority, only if the year of allotment of the Officers is the same and their date of appoi"ntment is also
the same.