# SANT RAM SHARMA v. STATE OF RAJASTHAN & ANR - **Citation:** [1968] 1 S.C.R. 111 - **Court:** Supreme Court of India - **Decided:** 1967-08-07 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sant-ram-sharma-v-state-of-rajasthan-anr-4087 - **Pages:** 13 ## Headnote 111 A SANT RAM SHARMA v. STATE OF RAJASTHAN & ANR. August 7, 1967 B [K. N. WANCHOO C. J., R. S. 8ACHAWAT, V. RAMASWAMI, G. K. MITTER AND K. S. HEGDE, JJ.] Constitution of India, 1950, Arts, 14 and !&-Selection grade po•ts in Indian Police Service-Appointme?1t on basis of merit and seniority considered only when merit equal-If violative of the guarantee oJ equality. The All India Services Act, 1951, empowers the Central GovernC ment to make rules for the regulation of recruitment and condition• of service of persons appointed to an All India Service. In exercise of this power the Central Government framed the Indian Police .Service (Regulation of Seniority) Rules, 1954. Rule 6 of the said Rules requires that a Gradation List of all Police Officers in a State shoula be maintained to ascertain their respective seniority. Accordingly, a Gradab'on List was prepared by the respondent-State in which the petitioner was shown as senior to respondents 3 and 4. In 1955. the D petitioner was superseded by respondents 3 and 4 wl]o were confirmed in the rank of Dep11ty InspectQr General of Police. and in 1966, the third respondent was promoted as Inspector General of Police and respondent 4 was appointed as Additional Inspector General of Police, superseding the petitioner. The petitioner filed a writ petition in this Court under Art. 32, contending that: (!) he was entitled as a ·mat!Aor of right to bs appointed as Deputy Inspector General of E Police in 1955 and as Inspector General of Police, in 1966, as he was shown as the senior moso officer in the Gradatiion List; (2) in the absence of any statutory rules governjng promotions to selection grade posts the Government could not issue administrative il}structions imposing restrictions not found .1n the Rules already .framed such as that merit and not 3enior:ty should be considered; (3) th-40--1,000l,OOO-l ,050-l,050-l,100-l,100-l.lSU (22) years. Selection Grade-Rs. J ,250. 1 A B c D E SANT RAil v. RAJASTIWI (Ral!lllMIMl, J.) UT Provided that a member of the Service holding a post in the senior time-scale may be appointed to a post in the selection grade and where he is so appointed, he shall be entitled to draw pay of the post in the selection grade; Provided further that a member of the Service to whom any other time-scale of pay was admissible under any order in force immediately before the. commencement of these rules shall continue to draw pay in that scale". The rule prescribes two scales of pay-Junior Scale and Senior Scale -in addition to the Selection Grade which is Rs. 1.250. Rule 8 deals with pay of officers holding posts enumerated in Schedule III and states as follows: - "Any member of the Service appointed to hold a post specified in Schedule III, shall, for so long as be holds that post, be entitled to draw the pay indicated for that post in the said Schedule : Provided that no member of the Service shall at any time draw pay less than that which he is entitled to draw under rule 4 and rule 5; Provided further that a member of the Service to whom any other special pay or pay above the time-scale was admissible under any order in force immediately before the commencement of these rules for holding posts specified in Schedule III shall, for so long as he holds the post, continue to draw the same pay". The posts in the Schedule are (a) posts carrying pay above the timescale pay'of the Indian Police Service under the State Governments, specified in Section A, (b) posts carrying pay in the senior time-scale of the Indian Police Service under the State Governments includF ing posts carrying special pay (in addition to pay in the time-scale) specified in Section B and (c) posts carrying pay above the timescale or special pay in addition to pay in the time-scale, under the Central Government held by members of the Service, specified in Section C. In category (a) ·so far as the State of Rajasthan is concerned the posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police are G shown as Selection Grade posts carrying pay above the time-scales of pay. It is manifest therefore, on a perusal of Rules 3 and 8 read with Part B of Sch. III, that the three posts of Inspector General Of Police, Additional Inspector General of Police and Deputy Inspector General of Police in Rajasthan are Selection posts and outside the junior and senior time-scales of pay mentioned in Rule 3. This B conch-1sion is also supported by para 1 of Part B of Sch. III which states that "the number of posts in the selection grade in a State Cadre shall be equal to twenty per centum of the total number of senior posts borne on tha~ cadre ~~uced by the nun_iber of ~ts carrying pay above the time-scale . In support of his conten!lon 118 SUPREME COURT REPORTS (1968] 1 S.C.R. Mr. N. C. Cha,tterjee referred to the decision of this Court in P. C. A Wadltwa v. Union of India.(') But the ratio of that case has no bearing on ,the question presented for determinatfon in the present case. The question involved in that case was whether under the relevant rules governing the Indian Police Service, a member thereof was entitled as of right to be promoted to a post in the senior scale as and when a vacancy (except a vacancy in the promotion quota) arose therein and no one senior to him was available for that post. It was 8 held by the majority of the learned Judges that a consideration of the various rules would make it clear beyond doubt that a person in the junior time-scale of the service is as much a cadre officer as one holding a post in the senior time-scale or a post above the timescale and the whole scheme of the rules indicated that a person in the junior scale of pay had a right to hold a post on the senior a scale of pay subject to the availability of a post in the senior scale of pay and his seniority in the junior scale of pay. At page 627 of the Report Mudholkar, J. in the course of his judgment expressly observed-"we should not be understood as saying that this right extends to the appointqient to a post carrying pay above time.scale of pay or a post carrying a special pay, and the rules governing D appointment to such posts were not placed before us". The decision of this Court in P. C. Wadhwa v. Union of India('! is therefore of no assistance to the petitioner and for the reasons we have already given, we are of the opinion that the three posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police in Rajasthan State are selection post' and outside the junior or senior time-scales of pay. If these three E posts are selection posts it is manifest that the State of Rajasthan is not bound to promote the petitioner merely because he stood first in the Gradation List. The circumstance that these posts are classed as 'Selection Grade Posts' itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the Gradation List but the question of merit enters in promotion to selection posts. In our opinion, the respondents are right in F their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection posts and that it is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should G not be regarded except where the merit of the officers is judged to be equal and no other criterion is therefore a.vailable. The administrative practice with regard to selection posts is laid down in a letter of the Government of India dated July 31 /August, 3. 1954 as follows:- "Jf a person, though senior in the gradation list, is appoint· If ed to the selection post later than his junior, this is presumably because he is superseded as a matter of selection. (') [19M] ' S.CJ\. 598. r A B c D SANT RAM ~. RAJABTllAN (RQ,maswami, J.) If this is so, it.would certainly not be unjustified to regard the officer so selected earlier, though junior in the grada· ti on list, as senior to the other officer, as far as the· selection posts are concerned". Another communication dated June I. 1955 states: "All super-time scale posts are selection posts and appoint· ment thereto need not follow the order of seniority". 119 In another letter No. 7 I 6 / 56-AIS(l) dated October 5, 1956 the Government of India has reiterated the principle of promotion to selection grade posts as follows: "I am directed to say that the Government of India have recently had occasion to consider the question of the principles to be followed in the matter of promotion of I.P.S. Officers to the selection Grade when some of the officers junior in service were approved and given officiating chances in such selection grades earlier than their seniors. It is, of course, a well established principle that promotions to the Selection Grade or a sel~tion post is to be based primarily on merit and not seniority in the service .. We proceed to consider the next contention of Mr. N. C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue a.dministrative instructions and such administrative instructions £ cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection· grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions F of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. In B. N. Nagarajan v. State of Mysore,(') it was pointed out G by this Court that it is not obligatory under the proviso to Art. 309 of the Constitution to make rules of recruitment, etc., before a service can be constituted or a post created or filled, and, secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the Sta.te Government will 8 have executive power in respect of Sch. 7, List II, Entry 41, State Public Services, and there is nothing in the terms of Art. 309 of the Constitution which abridges the power of the executive to act under Art. 162 of the Constitution without a law. A similar view (') [1966] 3 S.CJ!. 682. 120 SUPREME COUl\T RBPOl\TS (1968) l s.c.R. was taken by this Court in T. Cajee v. U. Jormanik Siem(') where Wanchoo, J., as he then was, who delivered judgment on behalf of the majority, observed as follows at pp. 762-764 of the Report: "The High ~ourt has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a Jaw with the assent of the Governor so far as the appointment and removal of a Siem was concerned. In this connection, the High Court relied on para. 3(1 )(g) of the Schedule, which lays down that the District Council shall have the power to make Jaws with respect to the appointment and succession of Chiefs and Headmen. The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into para. 3())(g) than is justified by its language. Paragraph 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under para. 3(l)(g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary. The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para. J9(i)(b) or till the District Council passed laws under para. 3(1 )(g). The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying on the administration. Doubtless when regulations are made under para. I 9(1)(b) or laws are passed under para. 3(1) with respect to the appointment or removal of the personnel of the administration. the administrative authorities would be bound to follow the regulations so made or the laws so passed. (1) [1rt11q 1 :-:.c.n. i;;o A B c D E F G B 4 B BAIIT RAM, v. RAJASTHAN (Jpimaswami, J.) But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment or dismissal of the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule. The view therefore taken by the High Court that there . could be no appointment or removal by the District Council without a law having been first passed in that behalf under para. 3(1)(g) cannot be sustained." 121 We pass on to consider the next contention of Mr. N. C. Chatterjee that if the executive Government is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to Art. 309, there will be a violation of Arts. 14 and 16 because the appointments WQUld be arbitrary and capricious. In our view, there is no subs· ta.nee in this contention of the petitioner. If the State of Rajasthan had. considered the case of the petitioner along with the other D el.igible candidates before appointments to the selection posts there would be no breacli of the provisions.of Arts. 14 and 16 of the Constitution because everyone who was eligible in view of the com;litions of service and was entitled to consideration was actually considered. before promotion to those selection posts was actually ma.\le. It \\ias said by Mr. C. B. Agarwala on behalf of the respondents. that an objective evaluation of the merit of the officers is B made each year and promotion is made on scrutiny of the recordsheets dealing with the competence, efficiency and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered· along with respondents 3 & 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to p the rank of Inspector General of Police or Additional Inspector Genernl of Police in 1966. There was, however, a vague suggestion made by the petitioner in paragraph 68 of his rejoinder-petition dated July 17, 1967 that '.'the State Government could not have possibly· considered my case, as they considered and even in this counteH.ffida,vit consider Shri Hanuman Sharma and Sri Sultan Singh senior to me by the new type of seniority they have invented G for their benefit". Even though there is no specific allegation by the petitioner that there was no consideration of his case, respondent No. 1 has definitely asserted in paragraphs 23, 25, 40 and 44 of the counter-affidavit that at the time of promotion of respondents 3 & 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was B considered. We are therefore of "the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of. promotion ol respondents 3 & 4 to the selection posts. We must therefore proceed on the footing that respondent No. I had considered the case of the petitioner and 122 SUPREME COURT REPORTS (1968) l S.O.R. taken into acc.ount the record, experience and merit of the peti- A. t10ne~ a.I the time of the J?romotion of respondents 3 & 4 to the selecUon grade posts. It 1s therefore n'ot possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under Arts. 14 and 16 of the Consti- !ution in the present case. Mr. N. C. Chatterjee argued that the !O!fodu~tion of the idea of merit into the procedure of promotion B brmgs ~n an element of personal eva.luation. and that personal evaluat10n opens the door to the abuses of nepotism and favouritism. and so, there was a violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution. We are unable to accept this argument as well-founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for C all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the .Person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that discipli- D nary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able men? In other E words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy. In this connection Leonard D. White has stated as follows: - "The principal object of a promotion system is to secure the best possible incumbents for the higher positions. while maintaining the morale of the whole organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is· best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment. Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is F G H A B SANT RAM v. RAJASTHA.'> (Ramaswami, J.) certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, a.t any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true". (Introduction to the Study of Public Administration, 4th Edri., pp. 380, 383). 123 C As a matter of long administrative practice promotion to selection grade posts in the Indian Police Service bas been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N. C. Chatterjee that this procedure violates; in any way, the guarantee under Arts. 14 and 16 of the Constitution. D For the reasons expressed we hold that the petitioner has been unable to make out a case for the grant of a writ under Art. 32 of the Constitution. The petition accordingly fails and is dismissed. There will be no order as to costs in the circumstances of thig case. Petition dismissed. V. P. S.