# PARAMJIT SINGH SANDHU AND ORS. ETC v. RAM RAKHA AND ORS. ETC

- **Citation:** [1979] 3 S.C.R. 584
- **Court:** Supreme Court of India
- **Decided:** 1979-03-22
- **Case number:** Civil Appeals Nos. 2902-2903 of 1977
- **Bench:** P. N. SH!NGl!AL, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/paramjit-singh-sandhu-and-ors-etc-v-ram-rakha-and-ors-etc-7652
- **Pages:** 15

## Headnote

Punjab Police Rule,s, 1959, Ru{,e3 3, 6, 8 and 10 Construction of-U'hen
appointnients to a post are from t1ro different sources, one by promotion
and another by direct recruitn1ent according to quota rule, whether the quota
rule would operate at both the stages of recruitn1ent and confinnation or· at
the stage ·of initial recruitn1ent only.
Deemed confirmation after the expiry of the period of probation and
cases when an express order of confirmation is necessary, pointed out.
Under the Punjab Police Service Rules, 1959, recruitment
to
Punjah
Police Service (Deputy Superintendent of Police) is made from tv10 sources,
namely 80% by promotion and 20% through direct recruitment. lfnder R.u1e
10, seniority in the cadre of Deputy Superintendent of Pplice is
reckoned
accofding to the date of confirmation.
Consideration for nomination to
Indian Police Service is done according to seniority-cum-merit.
Respondent~ 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 v.·ere not confirmed even though
appellan~ and resp·:>ndents 5
to 8 who were recruited to the sa1ne cadre by direct appointment con1m1!ncing from May, 1961 to May, 1965 were confirmed.
They, theref.::>re,
filed
a Writ Pe!ition praying for a direction to con.firm them in the Pun,iab Police
Service, adhering to the quota rule at the time of confirmation as wdl. Ttey
alleged that a~ ~eniority 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.
15 of the Constitution at the time of consideration of their cases for non1ination to the Indian Police Service which
i~ done according to seniority-cutnmerit.
Allov.'ing 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 confirmatioll, as he was
of the opinion that the quota-rule i~ linked with the seniority rule.
Two Letter~ 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 directioa
given by the learned single judge to the extent that the State should consider
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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
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P. S. SANDHU V. RAM RAKHA
585
HELD : 1. When a first appointment or promotion i! 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-CJ
Sukhbans Singh v. State of Puniab, [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

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584
PARAMJIT SINGH SANDHU AND ORS. ETC.
v.
RAM RAKHA AND ORS. ETC.
March 22, 1979
[P. N. SH!NGl!AL AND D. A. DESAI, JJ.]
Punjab Police Rule,s, 1959, Ru{,e3 3, 6, 8 and 10 Construction of-U'hen
appointnients to a post are from t1ro different sources, one by promotion
and another by direct recruitn1ent according to quota rule, whether the quota
rule would operate at both the stages of recruitn1ent and confinnation or· at
the stage ·of initial recruitn1ent only.
Deemed confirmation after the expiry of the period of probation and
cases when an express order of confirmation is necessary, pointed out.
Under the Punjab Police Service Rules, 1959, recruitment
to
Punjah
Police Service (Deputy Superintendent of Police) is made from tv10 sources,
namely 80% by promotion and 20% through direct recruitment. lfnder R.u1e
10, seniority in the cadre of Deputy Superintendent of Pplice is
reckoned
accofding to the date of confirmation.
Consideration for nomination to
Indian Police Service is done according to seniority-cum-merit.
Respondent~ 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 v.·ere not confirmed even though
appellan~ and resp·:>ndents 5
to 8 who were recruited to the sa1ne cadre by direct appointment con1m1!ncing from May, 1961 to May, 1965 were confirmed.
They, theref.::>re,
filed
a Writ Pe!ition praying for a direction to con.firm them in the Pun,iab Police
Service, adhering to the quota rule at the time of confirmation as wdl. Ttey
alleged that a~ ~eniority 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.
15 of the Constitution at the time of consideration of their cases for non1ination to the Indian Police Service which
i~ done according to seniority-cutnmerit.
Allov.'ing 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 confirmatioll, as he was
of the opinion that the quota-rule i~ linked with the seniority rule.
Two Letter~ 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 directioa
given by the learned single judge to the extent that the State should consider
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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
..
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P. S. SANDHU V. RAM RAKHA
585
HELD : 1. When a first appointment or promotion i! 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-CJ
Sukhbans Singh v. State of Puniab, [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, 'lhould
be deemed to have been confirmed in the post. [592 C-E]
State of Punjab v. Dharam Singh. [1968) 3 SCR I explained.
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3. Rule 8 of the Punjab Service Rules, 1959 prescribe!. 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
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Government would not have the power to extend the period of probation beyond a• period of three years.
[593 A-B·I
In this situation, (a) the ratio of Dharani Singh's
case
·would
muratis
1nurandis apply and the direct recruits who completed the period of probation
of tw'O 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 .i'pso facto became senior
to the pron1otees, if quota rule is only applied at the time of initial rei.:.ruit·
ment, this undesirable result i!. wholly unavoidable. [593 C-D]
4. Where recruitment to a cadre is from two sources and the
Service
Rules
pre~cribe quota for recruitment for both sources, a question would
alwa~s anse,
whether the quota rule would apply at the
initial stage of
recru1~rnent or als~ at the stage of
confirmation. Ordinarily, if quota is
prescnbed for recruitment to a cadre, the quota rule \vill have to be observed
at the recruitment stage. The quota would then be c0--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 cow.man cadre and while
so doing the question of their inter se seniority would surface. [593 F-G]
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
Seniority is ordinarily determined from the date of entry into cadre on
the principle of continuous officiation. Confirmation in a post would ordinari~
ly 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 '.s 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 GH. 594 Al
S. B. Patwardhan and Ors. etc. v. State of 'A1aharashtra, [1977] 3 SCR
77 5 @ 797; referred to.
5. A harmonious reading of rules 3, 4, 6, 8, and 10 makes it clear that
the qllota rule is operative both at the time of initial recruitment and .ot the
time of confirmation. The recruitment to Punjab Police Service is from two
sources.
Recruits from both the sources have to be on probation.
Adcpting
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
v;1ould 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
do\vn in seniority for years as has happened in the case of
respondeets 1
and 2.
Such an approach would be wholly unreasonable more so ¥.'hen 1 here
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 tim1! 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 \vould
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.
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P. s. SANDHU v. RAM RAKllA (Desai, /.)
587
6. \Vhere recruitment is from two sources and the seniority in the cadre
i8 determined according to the date of confirmation to accord utmost fair
treatment a rotational system bas 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 ln
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 recruitment in excess of the quota is made and it would further Le
accentuated when recruits from one source viz. direct recruits get auton1atic
confirn1ation on completion of the probationary period, while the promotees
hang out for years together before being confirmed. [596 F-H, 597 A-BJ
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M~rvyn Couthzdo and Ors.
v.
Collector of Custonis, Bombay and Ors.,
[1966] 2 SCR 600; A .. K. Subraman and Ors. v. Union of Indian and Ors.,
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[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
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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.
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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.
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
Respondents 1 and 2, Gurdip Singh and Dalip Singh, filed a writ
petition nnder Article 226 of the Constitution against lhe 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 !he cadre of Deputy Superintendent of Police of Februai~y,
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 tile 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
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is done according to seniority-cum-merit.
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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 stag<' 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 t·) 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 interoretation and
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P. s. SANDHU v. RAM RAKHA (Desai, J.)
589
in order not to make the seniority rule unreasonable, upon a proper
con~truction it must be held .1hat 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.,(') 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
apgellant
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 recrnits. 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-
(!) [1967] 2 SCR 703.
~2) [1966] 2 SCR 600.
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
rule (2) of rule 6 provides that appointment by promotion shall bi'
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 by a
special order in each case permit periods of officiating appointment to
the Service to count towards the period of probation. There is a provisoto the rule which enables the Government to extend the period of
probation by not more than one year. Rnle 9 provides for pay of members of the Service. Rule I 0 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
oliviouilly after recruitment is ma:de from two sonrces 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
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P. s. SANDHU v. RAM RAKHA (Desai, !.)
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 £adre 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 reconunended by Deparmental Committee set up
for the purpo'se 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
ye!lfs and 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.
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 bis period of training or on bis 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."
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There is some controversy between the parties whether the proviso is
to operate as proviso to rule S(a) and 8(b) both or only to rule
S(b).
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It was contended on behalf of the direct recruits
that once a
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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 thr ground that he was unfit for appointH
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ment 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
18-253SCI j79
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SUPREME COURT REPORTS
[1979) 3 S.C.R.
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 & 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 Pun;ab('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 upon the relevant rules which permitted extension of the probationary
period· for an indefinite time.
In fact there was no negative rule in
tl1ese 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
(1) [1963] I SCR 416.
(2) [1964] 6 SCR 278.
(3) [19661 3 SCR 821.
(4) [1968] 3 SCR !.
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draw an inference that the employee allowed to continue in the post
on completion of the maximum period of pr<'bation has been confirmed in the post by implication.
Rule 8 of the Service Rules presciibes
the period of probation of two years and the proviso confers power to
extend the period of probation by not beyoDd one year
meaning
thereby that fn any case the Government wor Id not have the power
to extend the period of probation beyond a period of three years.
In
ttJs 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.
Respondents 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 q11'1ta 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.
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Mr. G. L. Sanghi learned counsel for the interveners and the proE
motees 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
pos',
availability of pel1llanent vacancy, etc.
Now, if seniority is
to
be
determined ~ccording to the date of confirmation and the quota rule
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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.,,(') 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 m any
year shall, in a bunch, be placed senior to promotees confirmed during
ihat 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 maximnm period of probation
of three years at the end of which the direct recruit automalically 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 snch
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 to
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 recruilinent and at the time of
confirmlltion. If the rule of seniority were one otherwise than according to date of confirmation it would not have become
necessary to
(I) [1977] 3 S.C.R. 775 at 797.
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P. s. SANDHU v. RAM RAKHA (Desai, J.)
5 95
ap,rly the quota rule at the stage of confirmation but in this ca5c 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. 7.17 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 re·
membered. 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) tliis 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 unreasonable..
ness and would offend Article 16 and it was actually struck down. Ari
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 antomatically, 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 ha' 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 recrnit from
that
source has to be confirmed in the post available to the source.
This
system would breakdown the moment recrnitment from either source
in excess of the quota is made. In fact a strict adherence to the quota
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SUPREME COURT REPORTS
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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. Subral'nan & Ors. etc. v.
Union of India & Ors.,.(') 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 Cla.ss I, the rest of the vacancies being filled by promotion
and/ or by transfer in accordance with Parts IV and V of the Rules
respfctively.
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 nnder discussion is
materially different.
Therefore, it cannot be said that ignoring the
(!) [1975) 2 S.C.R. 1975.
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P. s. SANDHU v. RAM RAKHA (Desai, 1.)
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 ru)e 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.