As per case facts, petitioners in CWP-2787-2018, appointed as DSPs under sports quota, challenged the denial of seniority from their initial appointment date, arguing that Rules 10 and 12 of ...
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(1) CWP-2787-2018 (O&M)
Reserved on: 12.08.2025
Pronounced on :15.09.2025
MAMTA KHARB AND OTHERS …PETITIONERS
Vs.
STATE OF HARYANA AND OTHERS …RESPONDENTS
(2) CWP-22713-2017 (O&M)
Reserved on: 12.08.2025
ASHISH CHAUDHARY AND OTHERS …PETITIONERS
Vs.
STATE OF HARYANA AND OTHERS …RESPONDENTS
CORAM: HON’BLE MR. JUSTICE ASHWANI KUMAR MISHRA
HON’BLE MR. JUSTICE ROHIT KAPOOR
Present: Mr. D.S. Patwalia, Senior Advocate, assisted by
Mr. Gaurav Rana, Advocate,
Mr. R.P.S. Bara, Advocate for
Mr. Opinder Pal Singh, Advocate for petitioner No.2 in
CWP-2787-2018 and for respondent No.2, 4 and 10 in CWP-
2787-2018.
Mr. Akshay Bhan, Senior Advocate, assisted by
Mr. A.S. Talwar, Advocate and
Mr. A.S. Rawaley, Advocate
for the petitioners in CWP-22713-2017 and
for the respondents in CWP-2787-2018.
Mr. Sajjan Singh, Advocate
for petitioner No.3 in CWP-2787-2018.
Mr. Akshay Bector, Advocate, and
CWP-2787-2018 (O&M) and other connected case [ 2 ]
Mr. Ishmeet Singh, Advocate
for petitioner No.4 in CWP-2787-2018.
Mr. Sanjeev Manrai, Senior Advocate, assisted by
Mr. Deepak Achint, Advocate,
Mr. Gagandeep, Advocate and
Mr. Rohit Bhardwaj, Advocate
for respondent No.8 in CWP-2787-2018.
Mr. Sanjeev Kaushik, Addl. A.G., Haryana with
Mr. Divyanshu Kaushik, Advocate
Mr. Simran Sharma, Advocate
Mr. Manreet Kaur, Advocate, and
Ms. Amisha Rana, Advocate.
Mr. Abhishek Arora, Advocate with
Ms. Sanchita Jain, Advocate
for respondents No.4 and 10 in CWP-2787-2018.
Mr. Ajit Singh Lamba, Advocate and
Mr. Yashdeep Nain, Advocate
for respondents No.13, to 16, 19, 21, 23, 24, 25, 29, 34,
36, 40 and 44 in CWP-22713-2017.
Mr. Lalit Rishi, Advocate,
for respondent No.12 in CWP-22713-2017.
***
ASHWANI KUMAR MISHRA , J.
1. The above-noted writ petitions are connected to each other and
are heard together. They are thus being disposed of by this common
judgment.
2. The petitioners in CWP-2787-2018 were appointed as Deputy
Superintendent of Police (for short ‘the DSP’) by way of direct recruitment,
by the State of Haryana under sports quota on account of their outstanding
achievement in the field of sports. They have participated in international
sports and have brought laurels for the State of Haryana and the country in
different sporting events including Olympic Games, Common Wealth
Games, Asian Games, World Championship and other events of importance.
They are aggrieved by denial of seniority to them from the date of their initial
appointment, by virtue of Rule 12 of the Haryana Police Service Rules, 2002
CWP-2787-2018 (O&M) and other connected case [ 3 ]
(for short ‘Rules of 2002’) which provides for seniority to the post from the
date of confirmation in service and not from the date of initial appointment.
Challenge is also laid to Rule 10 of the Rules of 2002, insofar as it provides
for confirmation in service on completion of probation, inclusive of training,
seniority and availability of vacant permanent post. A prayer is also made to
command the respondents to confirm the petitioners on the post of DSP on
completion of two years term of probation or upon completion of maximum
period of probation provided for in the Rules of 2002 i.e. three years.
3. Petitioners No.1 and 2 were appointed as DSP on 05.10.2007, on
account of their outstanding contribution in the field of sports. Insofar as
petitioners No.3 to 12 are concerned, they were appointed as DSP under
sports quota vide notification dated 24.06.2008 and 06.01.2009 respectively.
Undisputedly appointment to the post of DSP is regulated by the Rules of
2002. These rules have been made by the Government of Haryana in exercise
of powers under the proviso to Article 309 of the Constitution of India. Rule
6(1) of the Rules of 2002, provides that 70% posts of DSP shall be filled by
way of promotion from the rank of Inspector and 30% by direct recruitment.
Sub-Rule 3 of Rule 6 contemplates that direct appointment to the post of DSP
shall be made through a common/combined examination, the syllabus of
which shall be the same as in the case of common/combined examination
conducted by the Commission for recruitment to Haryana Civil Services
(Executive Branch) and Allied Services (hereinafter referred to as ‘the
Commission’).
4. Sub-Rule 4 of Rule 6 contemplates that the candidates applying
for common/combined examination conducted by the Commission shall
clarify as to whether they are applying for recruitment to Haryana Police
CWP-2787-2018 (O&M) and other connected case [ 4 ]
Services, in view of special requirement of age, physique, aptitude etc as per
Rules of 2002. Eligibility in terms of age of appointment; physical fitness;
physical parameters as well as qualification of graduation and ability to read
and write Hindi are specified in Rule 8 of the Rules of 2002.
5. Rule 10 of the Rules of 2002 provides for probation of members
of service which reads as under:-
10 (a) Member of the Service shall be on probation for a period
of two years which shall include the period of training at the
Police Training College and in the district and in the case of
members appointed by promotion, the Government may by a
special order in each case permit period of officiating
appointment in the service to count towards the period of
probation. Completion of probation will not entitle a member of
service for confirmation. Confirmation in service shall be made
on the basis of seniority and availability of vacant permanent
post.
(b) The services of a member recruited by direct appointment
may be dispensed with by Government on his failing to pass the
final examination at the end of his period of training or on his
being reported on, during or at the end of his period of
probation, as unfit of for promotion.”
6. Rule 12 of the Rules of 2002 provides for seniority of members
of services, to be determined by the date of confirmation, which is
reproduced as under:-
“12. The seniority of the members of the service shall be
determined by the date of confirmation in the service:
Provided that if two or more members are confirmed on
the same date.
(i) a member who is appointed to the service by promotion
shall be senior to the member appointed otherwise;
CWP-2787-2018 (O&M) and other connected case [ 5 ]
(ii) in the case of members who were appointed by direct
appointment, the seniority shall be determined in accordance
with the position in the Common/Combined Examination
/recommendations of the Haryana Public Service Commission.
(iii) in the case of members who were appointed to the service
by promotion, the seniority shall be determined in accordance
with the date of their entry in promotion list.”
7. Rule 6 of the Rules of 2002 providing for source of recruitment
came to be amended on 24.06.2008, whereby direct recruitment to the extent
of 30% was split so as to provide for 3% seats to be filled from amongst the
Outstanding Sports Persons (henceforth ‘OSP’) who have won Gold, Silver
or Bronze medals in Olympic Games or those who brought laurels to the
Country and the State. By way of a further amendment made on 06.01.2009,
3% quota for OSP was enhanced to 6%. Notification dated 24.06.2008 and
06.01.2009 insofar as it provided for recruitment from amongst the OSPs is
reproduced herein below:-
“Notification dated: 24.06.2008:
Provided further that 3% of the total permanent posts of Deputy
Superintendents of Police, shall be reserved for outstanding
sports persons of Haryana who win a Gold, Silver or Bronze
Medal in Olympic Games or those sports person who bring
extraordinary laurel to the country and the State of Haryana.
Notification dated 06.01.2009:
Provided further that 6% of the total posts of Deputy
Superintendents of Police, shall be reserved for outstanding
sportspersons of Haryana State who win a Gold, Silver or
Bronze medal in Olympic Games or those sportspersons who
bring extraordinary laurels to the country and the State of
Haryana.”
CWP-2787-2018 (O&M) and other connected case [ 6 ]
8. It transpires that when petitioners No.1 and 2 were appointed on
05.10.2007 there existed no provision in the Rules of 2002 for appointment to
be made from OSP. However, when petitioners No.3 to 12 were appointed as
DSP the Rules did not contain provision for appointment from OSP
Category.
9. The other writ petition has been filed by Ashish Chaudhary and
others i.e. CWP-22713-2017 (henceforth referred to as ‘the second petition’),
contending that seniority of petitioners in CWP-2787-2018 cannot be fixed
before their confirmation in the cadre of DSP in Haryana. The writ
petitioners in the second petition did not belong to OSP Category and were
appointed through open selection by the Commission, who were confirmed
within the maximum period of probation specified in the rules. The
respondents in the second writ are the petitioners in CWP-2787-2018 who
were yet to be confirmed as DSP when the writs were filed. The immediate
cause for filing the writ petitions was the promotion proposed to be made
from the post of DSP to Indian Police Service (hereinafter referred to as
‘IPS’).
10. By way of an interim order dated 28.02.2019, the promotions
made (except for the petitioners in the first petition) was kept subject to the
outcome of the writ petition.
11. On 13.01.2021, a direction was issued by this Court requiring
the State to take an appropriate decision in the matter and place the same on
record. On 19.07.2021, list of DSPs for induction into IPS for the year 2017,
2018 and 2019 came to be notified by the State. An application bearing CM
No.5473-2023 was then filed by the petitioners in CWP-2787-2018 for
bringing on record the communication of the Union Public Service
CWP-2787-2018 (O&M) and other connected case [ 7 ]
Commission (for short ‘UPSC’) inviting a panel of eligible DSPs for
induction into IPS for the year 2020 (5 posts), 2021 (4 posts), 2023 (4 posts).
12. An interim order was then passed on 05.05.2023 by this Court,
directing the State to consider those petitioners who fell within the zone of
consideration for the purpose of appointment to Haryana Cadre of IPS for the
years 2020 to 2022.
13. It is thereafter that the Government of Haryana passed an order
on 23.11.2023, confirming the petitioners in the CWP-2787-2018, serving as
DSPs, from the date they completed their training, as mentioned in the order
itself. This order of 23.11.2023, had been passed by the State exercising its
jurisdiction under Rule 18 of the Rules of 2002, which is reproduced herein
below:-
“Where the Government is of the opinion that it is necessary or
expedient to do so, it may by order, for reasons to be recorded in
writing, relax any of the provisions of these rules with respect to
any class or category of persons.”
14. On 22.02.2024, UPSC called for the panel of eligible DSPs for
induction into IPS for the year 2020 (5 posts), 2021 (4 posts), 2022 (4 posts)
and 2023 (1 post), totaling to 14 posts. Since, further promotion from the post
of DSP was to be made on the basis of gradation list without preparing any
seniority list, an interim order came to be passed on 28.05.2024, restraining
the respondents-State from sending names based on the gradation list for
further promotion to the higher post. It is thereafter that on 27.08.2024 final
seniority list of DSP has been published and has been circulated amongst the
Officers.
CWP-2787-2018 (O&M) and other connected case [ 8 ]
15. At the time when the writ petition No.2787-2018 was filed, the
petitioners asserted that no orders of confirmation of service were passed
despite their working for nearly ten years as DSP. The petitioners contended
that the period of probation under Rule 10 of the Rules of 2002, includes the
period of training of two years, which could be extended by one more year.
Thus, the maximum period of probation could only be three years.
16. Rule 10 of the Rules of 2002, as extracted above, shows that
completion of probation does not make an employee entitled to confirmation
in service. The confirmation in service had to be made on the basis of
seniority and availability of vacant posts, even though the members of service
may have successfully completed their probation period. As against it, Rule
12 of the Rules of 2002, contemplated that seniority of persons appointed as
DSP, shall be reckoned from the date of their confirmation as DSP.
17. The petitioners, therefore, contend that Rules 10 and 12 of the
Rules of 2002, are inconsistent with each other inasmuch as Rule 10 read
with Rule 12 provides that unless one is confirmed, the seniority cannot be
determined and unless seniority is determined, confirmation cannot take
place. Thus, the scheme contained in Rules 10 and 12 of the Rules of 2002 is
unworkable.
18. The petitioners in first petition contends that direct recruitment
is always made against the permanent sanctioned vacancy and seniority ought
to be counted from the date of substantive appointment. Reliance in this
regard is placed on the judgment of the Hon’ble Supreme Court in the case of
C.K. Antony etc. vs. Muraleedharan 1998 (4) SCT 151 as also in the case
of O.P. Singla vs. Union of India 1984 AIR (SC) 1595.
CWP-2787-2018 (O&M) and other connected case [ 9 ]
19. In substance, the petitioners in first petition urge that
determination of seniority from the date of confirmation is arbitrary and
violative of Article 16 of the Constitution of India. For such submissions, the
petitioners rely upon the judgment of the Hon’ble Supreme Court in the case
of S.B. Patvardhan vs. State of Maharashtra 1977 AIR (SC) 2051 and
The Direct Recruits Class II Engineering Officers Association and others
vs. State of Maharashtra and others 1990 AIR (SC) 1607.
20. Relying upon the aforesaid judgments, the petitioners seek a
declaration from this Court that Rule 10 and 12 of the Rules of 2002 are ultra
vires.
21. On the contrary, the petitioners in the second petition as well as
the State of Haryana in the CWP-2787-2018 (hereinafter referred to as
‘Respondents’) argue that the statutory rules prescribe the condition of
satisfactory completion of probation and confirmation which will include the
period of training at the Police Training College and in the District as also
seniority and availability of post. Passing of exam after completion of
training is one of the essential conditions for a person to claim seniority
under Rule 12 of the Rules of 2002. Probation period ipso facto, will not
enure confirmation in service, which is to be made on the basis of seniority
and availability of vacant permanent post after completion of training.
22. According to respondents, seniority mentioned in Rule 10
denotes the line of appointment for the purpose of passing an order of
confirmation under such rule subject to completion of probation and
availability of vacancy. Seniority in the line of appointment would come first
for the purpose of passing of an order of confirmation under Rule 10 of the
Rules of 2002, so that no pick and choose method could be adopted while
CWP-2787-2018 (O&M) and other connected case [ 10 ]
passing the order of confirmation, and a member so appointed to the post
may not be confirmed earlier by breaching the line of appointment.
23. Seniority under Rule 12 of the Rules of 2002, however, relates
to fixation of inter se seniority of members of service, after passing of order
of confirmation, which is to be determined by the date of confirmation in
service. The confirmation under Rule 12 of the Rules of 2002, would thus
come first for determining the seniority for further promotional avenues
under Rule 12 including induction into IPS.
24. The inter-se seniority of members of service has to be
determined on fulfillment of twin conditions, referred to above. Seniority, as
per the respondents, thus, has to be regulated with reference to confirmation
in service which comes into existence on the successful completion of
probation and passing of test, thereafter as also availability of post.
According to the respondents, therefore, it is possible that a person appointed
earlier may not be confirmed due to non-fulfillment of twin conditions laid
down for confirmation and consequently may become junior to others, who
complete the training first and are confirmed earlier, while fixing seniority
under Rule 12 of the Rules of 2002. The respondents, therefore, submit that
Rules 10 and 12 of the Rules of 2002, are not in-conflict with each other.
These rules have separate and distinct purpose/object to achieve. These rules
have otherwise worked-well for the last more than two decades and do not
require any interference.
25. Respondents also contend that Rule 10 of the Rules of 2002, in
no way provides for deemed confirmation on completion of maximum period
of probation of three years. A specific order is required to be passed by the
Government based on seniority in the line of appointment and availability of
CWP-2787-2018 (O&M) and other connected case [ 11 ]
vacant sanctioned post in the respective quota. It is further urged that training
is an integral part of probation and for a member of service who does not
pass the departmental test, at the end of training, entails the consequence of
termination from service. The respondents rely upon the judgment of the
Hon’ble Supreme Court in the case of High Court of Madhya Pradesh
through Registrar vs. Satya Narayan Jhavar (2001) 7 SCC 161,
Headmaster, Lawrence School, Lovedale vs. Jayanthi Raghu and
another (2012) 4 SCC 793, Durgabai Deshmukh Memorial Senior
Secondary School and another vs. J.A.J. Vasu Sena and another (2019)
17 SCC 157.
26. Respondents lastly contend that the petitioners in the second
petition having completed their training within the period of probation, are
liable to be placed higher in the seniority list over those who have completed
their training later in point of time. Reliance is placed upon the judgment of
the Hon’ble Supreme Court in the case of Mohan Lal and others vs. State
of Himachal Pradesh and others 1997 SCC (L&S) 969 and State of
Madhya Pradesh vs. Ram Kinkar Gupta and others 2000 (10) SCC 77.
27. The argument of State is that the petitioners in the first petition
(supra) have been retained in service even though they failed to complete
their training within maximum period specified on account of their
outstanding performance and achievements in the field of sports. This is the
maximum that could be done for them. These petitioners cannot be allowed
confirmation on completion of maximum period of probation overlooking the
fact that they have not completed training.
28. Mr. Patwalia, appearing for the writ petitioners in first petition
while emphasizing the outstanding achievements of the petitioners in the
CWP-2787-2018 (O&M) and other connected case [ 12 ]
field of sports, which has brought laurels for the country, contends that such
outstanding sportspersons cannot be made to suffer only because they
continued to perform in their sports for the State and thereby could not
complete their training earlier. He submits that if training is made the
condition precedent for their completion of probation and consequential
confirmation and seniority, then it would amount to penalizing the petitioners
by the State for having complied with the directions of the State itself. This
would be wholly arbitrary. He further submits that the Rules, in the manner
as it stand, unless are interfered with by this Court in the present writ petition,
it would cause grave injustice in the matter. Mr. Patwalia also argues that the
Rules are inconsistent with each other and are otherwise contrary to the
settled principle in service jurisprudence. He further submits that on expiry of
maximum period of probation under the Rules, the petitioners are liable to be
treated as having been confirmed in service, and their seniority ought to be
reckoned from such date. Mr. Patwalia has placed reliance in support of such
plea upon the following judgments :-
(i) V. Vincent Velankanni vs. Union of India and others 2024
SCC OnLine SC 2642, to contend that seniority is to be
reckoned from the date of initial appointment.
(ii) L. Chandrakishore Singh vs. State of Manipur and
others 1999 (8) SCC 287, to contend that service rendered on
probation cannot be ignored for determining seniority.
(iii) State of Punjab vs. Dharam Singh AIR 1968 SC 1210, to
contend that maximum period of probation prescribed shall be
treated as deemed confirmation.
CWP-2787-2018 (O&M) and other connected case [ 13 ]
(iv) Mr. Patwalia, also relies on the judgments of the Hon’ble
Supreme Court in the case of Wasim Beg vs. State of Uttar
Pradesh and others (1998) 3 SCC 321, Raghunath Rai
Bareja and another vs. Punjab National Bank and others
(2007) 2 SCC 230, B. Premanand and others vs. Mohan
Kokilal and others (2011) 4 SCC 266 and Pawan Pratap
Singh v. Reevan Singh and others 2011 (3) SCC 267 in
support of his other arguments.
29. Mr. Akshay Bhan, appearing on behalf of the petitioners in the
second petition contends that the petitioners are bound by Clause 3 and 5 of
their letter of appointment, which provides for applicability of the Rules of
2002 and consequently they cannot be permitted to question the Rules of
2002. He also submits that the petitioners in the first petition cannot seek any
relaxation from the applicability of mandatory rules to the prejudice of third
party rights. Locus-standi of the petitioners to maintain the present writ
petition is also questioned. It is further submitted that Rule 10 and 12 of the
Rules of 2002, are valid, constitutional and hence intra-vires. Mr. Bhan also
contends that there is no contradiction in Rule 10 and 12 of the Rules of
2002. It is lastly urged that confirmation on completion of maximum period
of probation is not permissible under the rules particularly when the
petitioners have not completed their training. Mr. Bhan, has placed reliance
on the following case laws:-
(i) M.P. Chandoria v. State of MP and others (1996) 11 SCC
173 and State of UP and others vs. Vikash Kumar Singh and
others, 2022 (1) SCC 347.
CWP-2787-2018 (O&M) and other connected case [ 14 ]
30. Mr. Sanjeev Kaushik, Addl. AG, Haryana, appearing for the
State has substantially adopted the arguments of Mr. Bhan and submits that
the State has acted fairly and there is no illegality or arbitrariness on the part
of the State. He further contends that the appointment to the writ petitioners
is granted by relaxing the recruitment rules, which otherwise requires a
candidate to qualify the examination conducted by the Commission for the
purpose only in recognition of the merit of the petitioners in the field of
sports. However, the necessary skill for discharging the duties of DSP would
require training to be completed by such persons and, therefore, the State has
not committed any error in granting confirmation to the petitioners from the
date of completion of their training. Mr. Kaushik also submits that the State
has already exercised its power under Rule 18 of the Rules of 2002, to relax
the rules by extending the maximum period of probation, so as to retain the
petitioners in service on account of their contribution in the field of sports
and no further relief is liable to be extended to them.
31. We have given our thoughtful consideration to the respective
submissions advanced by Mr. D.S. Patwalia, Sr. Advocate, Mr. Sanjeev
Manrai, Sr. Advocate, Mr. Akshay Bhan, Sr. Advocate, Mr. Sanjeev
Kaushik, Addl. AG, Haryana and other assisting counsels in the light of rules
that regulate the appointment to the post of DSP.
32. Rules of 2002 are made by the State in exercise of powers
conferred by the proviso to Article 309 of the Constitution of India. Rule 2(b)
of the Rules of 2002 defines ‘Direct Recruitment’ to mean an appointment
made otherwise than by promotion or transfer. Sub-Clause (g) of Rule 2 of
the Rules of 2002 defines ‘Services’ to mean Haryana Police Services. Rule 3
of the Rules of 2002 provides that the service shall comprise the post shown
CWP-2787-2018 (O&M) and other connected case [ 15 ]
in Appendix A, which includes the post of DSP. The Appointing Authority for
the post in the service is the Government. Direct recruitment to the post of
DSP under the Rules was to be made to the extent of 30% while rest was to
be made by way of promotion. The direct recruitment to the post of DSP, as
noticed above, has to be made through a common/combined examination, the
syllabus of which is required to be same as that of common/combined
examination conducted by the Commission i.e. Haryana, Civil Services,
(Executive Branch) and Allied Services.
33. By virtue of Rule 6(1) of the Rules of 2002, the quota for direct
recruitment has since been amended to provide for 3% and later 6% posts to
be reserved for OSP Category, however, Rule 6(3) of the Rules of 2002,
which requires the recruitment to be made through the Commission remains
unaltered. Under the Rules of 2002, therefore, direct recruitment would be
permissible only by way of appointment through common/combined
examination conducted by the Commission. So far as petitioner Nos.1 and 2
in the first writ are concerned, there existed no provision whereunder they
could be appointed on account of their outstanding contribution in the field of
sports. So far as other petitioners in the first petition are concerned, though
their appointment was made permissible by virtue of Rule 6(1) of the Rules
of 2002 under the provided for sports quota of 3% and later 6% for the
persons of OSP Category but even for them the requirement of direct
appointment by adhering to Sub-Rule (3) i.e. through the Commission has
not been dispensed with.
34. Rule 6(3) of the Rules of 2002 mandating direct recruitment to
be made through the examination conducted by the Commission is
reproduced hereinafter:-
CWP-2787-2018 (O&M) and other connected case [ 16 ]
“The direct appointment to the post of Deputy Superintendent of
Police shall be made through a common/combined examination,
the syllabus of which shall be the same as in the case of
common/combined examination conducted by the Commission
for recruitment to Haryana Civil Services (Executive Branch)
and Allied Services”
35. The petitioners in the first writ petition, are sportspersons of
outstanding achievement and that alone justifies their appointment. Making
of appointment on account of outstanding contribution in the field of sports
though is not in question, but it remains undisputed that such appointment is
not made by adhering to the procedure for direct recruitment specified in the
Rules of 2002. Issues raised in the present bunch of petitions will, therefore,
require consideration keeping in view the fact that the initial recruitment of
petitioners in the first bunch is not strictly by adhering to the Rules of 2002.
36.
Rule 10(a) provides that members of the service shall be on
probation for a period of two years, which shall include the period of training
at the Police Training College and in the District. Completion of probation, as
such, is not to entitle a member of service to confirmation. Confirmation in
service has to be made on the basis of seniority and availability of vacant
permanent post. Sub-Rule (b) of Rule 10 of the Rules of 2002 provides that
services of a member appointed by direct recruitment can be dispensed with
by the Government on his failing to pass the final examination, at the end of
his period of training, or on his being declared unfit for appointment on
completion of probation period. The period of probation, however, can be
extended under the proviso to Rule 10(b) of the Rules of 2002 by not more
than one year.
CWP-2787-2018 (O&M) and other connected case [ 17 ]
37. Simultaneously, Rule 12 of the Rules of 2002 talks of seniority
of the members of service to be determined by the date of confirmation in
service. The thrust of petitioners’ submission is that the Scheme contained in
Rule 10 and 12 of the Rules of 2002 are mutually inconsistent, inasmuch as
Rule 10(a) of the Rules of 2002 talks of confirmation in service on the basis
of seniority and availability of vacant permanent post upon completion of
probation while Rule 12 of the Rules of 2002 talks of seniority by the date of
confirmation in the service.
38.
At the first blush, the petitioners’ submission with regard to the
mutual incompatibility of Rule 10 and 12 of the Rules of 2002 appears
attractive, but on a careful analysis of the Scheme of recruitment contained in
the Rules of 2002 the argument does not hold good. Rule 10(a) of the Rules
of 2002 postulates direct recruitment to be made for the service and probation
for a period of two years which shall include the period of training at the
Police Training College and in the District. For a meaningful understanding
of the inter-play between probationer trainee, confirmation and seniority, we
will have to understand the concept of training itself, for the post in question.
39.
An affidavit has been filed on behalf of the State of Haryana
stating that in view of the directions issued by the Supreme Court of India in
CWP(C) No.310 of 1996 titled as ‘Parkash Singh v Union of India’ the
State of Haryana has enacted Haryana Police Act, 2007. Section 96(4) of the
Haryana Police Act, 2007 provides that the provisions of Punjab Police
Rules, 1934, framed under the Police Act 1961, as applicable to the State of
Haryana, shall be deemed to have been made under the Haryana Police Act,
2007 till new Rules are framed under the Act of 2007. Section 96(4) of the
Haryana Police Act, 2007 is reproduced:-
CWP-2787-2018 (O&M) and other connected case [ 18 ]
“The Punjab Police Rules framed under the Police Act, 1861
(Act of 1861), as applicable to the State of Haryana, shall be
deemed to have been framed under this Act till new rules are
framed under this Act.”
40. Rule 19.44 of the Punjab Police Rules, 1934, as applicable to the
State of Haryana, therefore, is stated to be applicable in the State of Haryana.
The Schedule of Training is drawn for probationer DSP in accordance with
existing Rule 19.44 of the Punjab Police Rules, Volume-II, applicable in the
State of Haryana as per which, the Schedule of Training includes basic
training at Haryana Police Academy, Madhuban for a period of one year to be
followed with District Practical Training. The Schedule of Training,
appended to the affidavit of Secretary to Government, Haryana in respect of
one of the petitioner-Sardaar Singh is reproduced:-
“ THE SCHEDULE
The Basic Training for Sh. Sardar Singh, Probationers Dy.
SP (Sports Quota) in Batch No.13 started at HPA, Madhuban
and after passing the basic training, the said Prob. Dy. SP is
hereby relieved from this Academy today i.e. on _______, with
the direction to report to his new place of attachment for District
Practical Training of one year, as per the existing rule 19.44 of
PPR Vol.-II (applicable in Haryana State).
The training schedule for the District Practical Training
of the Probationers Dy. Superintendent of Police is as follows:-
Sr. No. Attachment Duration Date will be
decided by
concerned
Distt./Unit
1.Attachment of District
Headquarters01 months
2.Attachment to a Police Station 02 months
3.To work as a S.H.O of a Police Station
independently
02 months
4.Work as a Circle Officer 02 months
5.Work in Prosecution Branch 02 months
CWP-2787-2018 (O&M) and other connected case [ 19 ]
6.Work in all Branches of District Police
Officer
02 months
(a) Reserve office and establishment
branch
02 weeks
(b) Accounts Work 02 weeks
(c) Crime Branch Work 02 weeks
(d) English Section and Correspondence 02 weeks
7.Miscellaneous (Revenue, Irrigation and
Jail Training)
01 months
8. Total 12 months
Note: (I) The Probationer Dy. SP should also be given
training in settlement work. This training should be done at a
later, period in service and not during the above 12 months
practical training period. Settlement training should be for a
period for 03 months, during which period the officers should
work as Assistant Settlement Officer.
The training administrator of the State may please ensure
that the above time table is adhered to without any interruption.
However, if it is felt that minor changes need to be made in the
time table, then the same should be got ratified well in advance
by the Unit/Distt.”
41. The Schedule of Training, therefore, consists of two parts. The
first being at Haryana Police Academy Madhuban to be followed with
District Practical Training, consisting of attachment to District Headquarters;
attachment to a Police Stations; to work as an SHO of a Police Station
independently; work as a Circle Officer; work in Prosecution Branch; work in
all Branches of District Police Officer and miscellaneous working etc.
42. All the petitioners in the first writ were appointed as probationer
DSP and formed part of Batch No.13.
43. The Schedule of Training, referred to above, indicates that a
probationer DSP appointed under the Rules of 2002 is supposed to be
exposed to the skills required for performing the duties attached to the post of
CWP-2787-2018 (O&M) and other connected case [ 20 ]
DSP, which is an essential condition required to be satisfied for the post
itself. Efficiency of Police is directly linked to the performance of duties by
the Police personnel. Unless a probationer is having requisite knowledge of
work, the efficiency of force cannot be ensured. The Rules of 2002, therefore,
will have to be understood in this context.
44. Rule 10(a) of the Rules of 2002 provides a period of probation
to be of two years which is to include the period of training at Police Training
College and in the District. Rule 10(b) of the Rules of 2002 then provides
that a DSP recruited by direct recruitment will have to pass the final
examination at the end of his period of training or else his services could be
dispensed with. The service of a probationer, otherwise, could be dispensed
with at the end of the probation period if he/she is found unfit for
appointment. The period of probation otherwise could be extended by not
more than one year.
45. Rule 10 of the Rules of 2002 taken cumulatively, therefore
makes it explicit that a direct recruitee to the post of DSP during probation
will have to complete the training and pass the final examination on its
conclusion. The concept of probation and training, therefore, are interlinked
such that the successful completion of training is indispensable for successful
completion of probation under the Rules of 2002.
46. There is a distinct purpose to be achieved by providing for
successful completion of training. Unless a person has completed the period
of training, he cannot be expected to satisfactorily perform the duties attached
to the post of DSP. The efficiency in service is likely to be compromised if a
DSP is confirmed in service without undergoing requisite training. The period
of probation, therefore, has to be utilized substantially for satisfactory
CWP-2787-2018 (O&M) and other connected case [ 21 ]
completion of training. There appears to be no infirmity in such Scheme
contained in the Rules of 2002. Ordinarily a probationer would be expected
to satisfactorily pass the final examination consequent upon his training or
else his services are otherwise liable to be dispensed with under the Rules of
2002. Because period of probation includes satisfactory completion of
training and clearance of final test thereafter, as such, confirmation in service
cannot be automatic on completion of the period of probation or its extended
term of one year.
47. The concept of deemed confirmation on completion of the
maximum term of probation cannot be countenanced in the Scheme of the
recruitment Rules of 2002, in the context of DSP appointed in the sports
quota.
48.
Law by now is well-settled that confirmation cannot be
automatic on completion of probation unless the statutory rules so specified.
{See:- Chairman and Managing Director, BHEL v. Vijay Kumar D
, 2022
(15) SCC 792; Durgabai Deshmukh Memorial Sr. Sec. School & Anr v.
J.A.J. Vasu Sena & Anr, 2019(17) SCC 157; Khazia Mohammed
Muzammil v. The State of Karnataka and another, 2010 (8) SCC 155}. In
the Rules of 2002 there exists no provision for automatic confirmation of a
probationer.
49.
Coming to the aspect of inconsistency between Rule 10 and 12
of the Rules of 2002, we find that the term ‘Seniority’ has been used in two
different contexts in Rule 10 and 12. It is well-settled that same expression in
a Rule may convey two different meanings, depending upon the context in
which such term is used. {See:- Renaissance Hotel Holdings Inc v. B.
CWP-2787-2018 (O&M) and other connected case [ 22 ]
Vijaya Sai and Others, 2022 SCC Online SC 61; Gujarat Urja Vikas
Nigam Limited v. Amit Gupta and Others, (2021) 7 SCC 209}.
50.
The term ‘Seniority’ used in Rule 10(a) of the Rules of 2002
refers to seniority in the line of appointment at the time of initial appointment
to the post on probation. It is distinct from the seniority referred in Rule 12 of
the Rules of 2002 which is dependent upon confirmation in service. For the
purposes of confirmation under Rule 10(a) of the Rules of 2002, what is
required is that the member of service has satisfactorily completed his
training; has passed final examination at the end of his period of training; is
otherwise entitled to it on the basis of his seniority in the line of appointment
at the time of probation and availability of vacant permanent post/seat. This
scheme under the Rules of 2002 for confirmation appears to be consistent
with the job requirement for the post and is otherwise not irrational or
arbitrary.
51. It is only when a member of service has been confirmed under
Rule 10(a) that his seniority shall be determined with reference to the date of
his confirmation in service as per Rule 12 of the Rules of 2002.
52.
Analyzing the Scheme of Rules of 2002, as enumerated above,
we do not find any inconsistency between Rule 10 and 12. The Rules are
otherwise not shown to be manifestly arbitrary or contrary to each other.
53. The rule-making power exercised under the proviso to Article
309 of the Constitution of India has been held to be legislative in character
and unless it is shown to be inconsistent with Articles 14 and 16 of the
Constitution of India, it would not require interference. In P Murugesan v.
State of Tamil Nadu, 1993(2) SCC 340 the Supreme Court has held so in
following words:-
CWP-2787-2018 (O&M) and other connected case [ 23 ]
“….Secondly as explained hereinbefore there would be no
justification in principle for holding that the rule-making
authority has only two options namely either to bar the diploma-
holders altogether from promotion or to allow them equal
opportunity with the graduate engineers in the matter of
promotion. It must be remembered that the power of rule-making
under the proviso to Article 309 has been held to be legislative
in character. (Vadera-AIR 1969 Supreme Court 118). If so, the
test is whether such a restrictive view is permissible vis-a-vis a
legislature. If not, it is equally impermissible in the case of the
rule-making authority under the proviso of Article 309. The only
test that such a rule has to pass is that of Article 14 and 16 and
to that aspect we may turn now…..”
54. The Division Bench of Himachal Pradesh High Court in HP
Officers Architect Association v. State of Himachal Pradesh, 2012 (30)
SCT 306, following the judgment in P Murugesan (supra), has also taken a
similar view:-
“….If the employer does so, then the Court cannot and should
not set aside these amendments only because it feels that the
amendments are unreasonable or harsh to one side. The only
ground on which these statutory rules which have the force of
law can be struck down are that they are ultra vires or the rules
have been framed for mala fide reasons. We do not find any such
circumstance in the present case. Therefore, the challenge to the
rules is negatived…..”
55. In the facts of the instant case, what is observed is that the
petitioners in the first writ could not complete their training within the period
of two years in terms of Rule 10(a) of the Rules of 2002 not under the
extended period of one year under its proviso. Ordinarily, in such
circumstances, the State would have been entitled to consider the question of
CWP-2787-2018 (O&M) and other connected case [ 24 ]
continuance of such probationer in service. This is not what is done by the
State and rightly so, for reasons enumerated hereinafter.
56. The petitioners in the first petition are persons of outstanding
merit in the field of sports and were performing at different events of
National or International repute for the State of Haryana or the country. The
State has consequently taken a decision to retain them in service. The State
was cognizant of the fact that one of the reason for delay is completion of
training may have been the fact that petitioners were participating at different
forum representing the State or the nation. For such purposes, the State has
invoked its power ostensibly under Rule 18 of the Rules of 2002.
Confirmation orders have been passed in respect of the petitioners in the first
writ on 23.11.2023, granting confirmation to the petitioners from the date of
their satisfactory completion of training. In our view, training was an
essential part to be completed by the probationers before they could be
confirmed on the post of DSP. The State in our view has acted reasonably in
granting the benefit of confirmation to the petitioners in first writ from the
date of their satisfactory completion of training.
57. The mere fact that the petitioners in second writ though were
appointed later, as probationer, but on account of their satisfactory
completion of training earlier have been granted confirmation before the
petitioners of first writ does not result in any illegal or arbitrary situation. The
grant of confirmation to petitioners of second writ before the petitioners in
the first writ therefore cannot be treated to be arbitrary or illegal.
58. Where the Court is pitted with conflicting interest between the
employees and the employer and such interest are governed by Rules, the
Court has to pay due regard to both the interest in light of the statutory rule
CWP-2787-2018 (O&M) and other connected case [ 25 ]
itself. Considerations germane to the efficiency in service and job
requirement would have to be necessarily factored in it.
59. In Ram Sharan v. The Dy. Inspector General of Police, Ajmer,
AIR 1964 Supreme Court 1559, the three tier system introduced in the police
force resulted in some differential treatment in the case of promotions to the
higher ranks. The argument about the system being violative of Article 16
was dealt with by the Supreme Court in the following words:-
“But it is urged that this has to be balanced against
considerations of efficiency which have led to the evolving of the
three tier system of promotion already referred to and therefore
the system should not be struck down, simply because at times it
may happen that a Junior Head Constable may get promotion
while a senior Head Constable in another range may have to
wait. Balancing the various considerations mentioned above
therefore it seems to us that the system in force in the State of
Rajasthan evolved as it has been for the efficiency of the police
in the State as well as for administrative convenience cannot be
said of itself to deny equality before the law or to deny equality
in the matter of employment in public service, even though at
times it may happen, because of the system that a junior Head
Constable in one range may get promotion as officiating Sub-
Inspector while in another range a senior Head Constable may
have to wait for some time. We are therefore not prepared to
strike down this system as denying equality before the law or
denying equality in the matter of employment in the public
service, simply on the ground of these possible cases of
hardship.”
(Emphasis supplied by us)
60. In service jurisprudence, the applicable Service Rules play an
important role in determining the question of confirmation and seniority of a
member of service. The consequences flowing from the applicability of Rules
CWP-2787-2018 (O&M) and other connected case [ 26 ]
ordinarily cannot be taken exception to once it is found that the rules are
intravires and its provisions are otherwise reasonable and intended to secure
efficiency in service and for its proper administration.
61.
In light of the analysis aforesaid, we are of the considered view
that the action of the State in granting benefit of confirmation to petitioners in
first writ from the date of their successful completion of training is just, legal
and fair. The consequential determination of seniority also merits no
interference.
62.
Coming to the argument of Mr. Patwalia that seniority has to be
reckoned from the date of initial appointment and confirmation in service
shall relate back, we may observe that ordinarily, it would be the situation
where the recruitment itself is made in accordance with the Rules, and such
course is otherwise reflected from the Scheme of the Rules.
63.
In V. Vincent Velankanni (supra), the Supreme Court has
clearly held as under:-
“29. The primary issue which requires adjudication is as to
whether the seniority of the appellant is to be reckoned from the
date of induction/initial appointment or as per the date of
promotion/confirmation in the skilled grade.
30. It is a well-settled proposition that once an incumbent is
appointed to a post according to the rules, his seniority has to be
reckoned from the date of the Initial appointment and not
according to the date of confirmation, unless the rules provide
otherwise.
31. In the case of L. Chandrakishore Singh v. State of Manipur,
this Court held that in cases of probationary or officiating
appointments which are followed by a confirmation, unless a
contrary rule is shown, the services rendered as the officiating
CWP-2787-2018 (O&M) and other connected case [ 27 ]
appointment or on probation cannot be ignored while reckoning
the length of service for determining the position in the seniority
list. This view has been reiterated in the case of Ajit Kumar Rath
v. State of Orissa.
32. The Constitution Bench of this Court In Direct Recruit Class
II Engg Officers' Assn. (supra) stated the legal position with
regard to inter se seniority of direct recruits and promotees and
while doing so, inter alia, it was held that once an Incumbent is
appointed to a post according to rules, his seniority has to be
counted from the date of his appointment and not according to
the date of his confirmation.
33. This Court summarised the legal principles with regard to
the determination of seniority in Pawan Pratap Singh v. Reevan
Singh in the following terms:
45. From the above, the legal position with regard
to determination of seniority service can be
summarised as follows:
(i) The effective date of selection has to be
understood in the context of the service rules under
which the appointment is made. It may mean the
date on which the process of selection starts with
the issuance of advertisement or the factum of
preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to
be determined as per the service rules. The date of
entry in a particular service or the date of
substantive appointment is the safest criterion for
fixing seniority Inter se between one officer or the
other or between one group of officers and the
other recruited from different sources. Any
departure therefrom In the statutory rules, executive
Instructions or otherwise must be consistent with
the requirements of Articles 14 and 16 of the
Constitution.
CWP-2787-2018 (O&M) and other connected case [ 28 ]
(iii) Ordinarily, notional seniority may not be
granted from the backdate and If It Is done, It must
be based on objective considerations and on a valid
classification and must be traceable to the statutory
rules.
(iv) The seniority cannot be reckoned from the date
of occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by
the relevant service rules. It is so because seniority
cannot be given on retrospective basis when an
employee has not even been borne In the cadre and
by doing so it may adversely affect the employees
who have been appointed validly in the meantime.
34. Thus, it is trite that when an employee completes the
probation period and is confirmed in service albeit with some
delay, the confirmation In service shall relate back to the date of
the Initial appointment. Any departure from this principle in the
form of statutory rules, executive instructions or otherwise must
be consistent with the requirements of Articles 14 and 16 of the
Constitution of India.
(Emphasis supplied by us)
64. The principle canvassed by Mr. Patwalia that seniority is to be
reckoned from the date of induction/initial appointment is subject to the
appointment being made as per the Rules and departure being consistent with
Article 14 and 16 of the Constitution of India. The principle of law laid down
by the Supreme Court emphasizes that the ‘principle of seniority’ to be
reckoned from the date of initial appointment or confirmation in service to
relate back to such initial appointment are subject to appointment itself being
made according to the Rules. This is, however, not the fact here. Admittedly,
the petitioners have not been appointed in accordance with the Rules.
65. The second exception to the principle is the Scheme contained in
the Rules itself if it is in consonance with Article 14 and 16 of the
CWP-2787-2018 (O&M) and other connected case [ 29 ]
Constitution of India. In the facts of the present case, the statutory Scheme
contained in the Rules do not suggest either in explicit terms or even by
necessary implication that seniority is to be reckoned from the date of initial
appointment or that the confirmation in service shall relate back
notwithstanding the fact that the probationer has not satisfactorily completed
his probation and passed the final examination thereafter. We are, therefore,
of the view that in the facts of the present case, the principles relied upon on
behalf of the petitioners do not come to the aid of the petitioners nor such
submission can be sustained in law in the light of the applicable Rules which
are otherwise held to be intravires.
66. The judgment in V Vincent Velankanni (supra) refers to the
previous judgments of the Supreme Court in the case of L Chandrakishore
Singh (supra) and Direct Recruitment Class II Engineering Officers
Association (supra), and therefore, these judgments relied upon by Shri
Patwalia need not be separately referred to or dealt with. The rules of literal
interpretation also do not advance the cause of petitioners in the context of
the observations made above.
67. The submission raised on behalf of first set of petitioners that
they are being discriminated qua petitioners of second set cannot be accepted
as we find that both the set of petitioners constitute separate and distinct
class. So far as petitioners in first writ is concerned, they have not been
appointed on the strength of their merit in the recruitment test as per
recruitment Rules of 2002, rather, they have been appointed on account of
their exceptional merit in the field of sports. The petitioners in the second set,
however, are persons who have secured appointment on the strength of their
merit in the recruitment examination, and have also completed their training
CWP-2787-2018 (O&M) and other connected case [ 30 ]
earlier in point of time. These two sets of petitioners, therefore, cannot be
placed on the same footing nor the ‘principle of equality’ can be pressed
against each other. It is, by now, well-settled that equality has varied
dimensions. In Dev Gupta v. PEC University of Technology and Ors., SLP
(Civil) No.15774-2023, the Supreme Court has observed as under:-
“14. It is now entrenched in our constitutional jurisprudence,
that the doctrine of equality has varied- and layered dimensions,
one of which is that under Article 14, “Equals must be treated
equally. Unequals must not be treated equally. What constitutes
reasonable classification must depend upon the facts of each
case, the context provided by the statute, the existence of
intelligible differentia which has led to the grouping of the
persons or things as a class and the leaving out of those who do
not share the intelligible differentia. No doubt it must bear
rational nexus to the objects sought to be achieved." (Ref
Manish Kumar v Union of India (UOI) & Ors).”
68. In High Court of Madhya Pradesh through Registrar (supra),
the Supreme Court has rejected the plea of deemed confirmation relying upon
the requirement of Rule 24 of the Rules which required satisfactory
completion of training for confirmation of probationer in paragraphs No.10
and 11 of the judgment, which are reproduced:-
“10. To appreciate the point in issue, it would be useful to refer
to Rule 24 of the Rules which runs thus:
"24. (1) Every candidate appointed to the cadre
shall undergo training for a period of six months
before he is appointed on probation for a period of
two years, which period may be extended for a
further period not exceeding two years. The
probationers may at the end of period of their
probation, be confirmed subject to their fitness for
confirmation and to having passed, by the higher
CWP-2787-2018 (O&M) and other connected case [ 31 ]
standard, all such departmental examinations as
may be prescribed.
(2) During the period of probation, he shall be
required to do magisterial work and acquire
experience in office routine and procedure.
(3) If during the period of probation he has not
passed the prescribed departmental examinations,
or has been found otherwise unsuitable service, the
Governor may, AT ANY TIME, THEREAFTER,
dispense with his services.”
11. The question of deemed confirmation in service
jurisprudence, which is dependent upon the language of the
relevant service rules, has been the subject matter of
consideration before this Court, times without number in various
decisions and there are three lines of cases on this point. One
line of cases is where in the service rules or in the letter of
appointment a period of probation is specified and power to
extend the same is also conferred upon the authority without
prescribing any maximum period of probation and if the officer
is continued beyond the prescribed or extended period, he
cannot be deemed to be conformed. In such cases there is no bar
against termination at any point of time after expiry of the
period of probation. The other line of cases is that where while
there is a provision in the rules for initial probation and
extension thereof, a maximum period for such extension is also
provided beyond which it is not permissible to extend probation.
The interference in such cases is that the officer concerned is
deemed to have been confirmed upon expiry of the maximum
period of probation in case before its expiry the order of
termination has not been passed. The last line of cases is where,
though under the rules maximum period of probation is
prescribed, but the same requires a specific act on the part of the
employer by issuing an order of confirmation and of passing a
test for the purposes of confirmation. In such cases, even if the
CWP-2787-2018 (O&M) and other connected case [ 32 ]
maximum period of probation has expired and neither any order
of confirmation has been passed nor has the person concerned
passed the requisite test, he cannot be deemed to have been
confirmed merely because the said period has expired.
(emphasis supplied by us)
69. In view of the analysis and deliberations held in the matter, we
are of the considered view that Rule 10 and 12 of the Rules of 2002 are not
inconsistent to each other and are otherwise valid piece of legislation which
are not shown to be violative of Articles 14 and 16 of the Constitution of
India. Challenge laid to these two Rules in the first petition, therefore fails.
70. The consequential determination of seniority based on
confirmation of petitioners in the first set from the date of their satisfactory
completion of training, also merits no interference. The first writ petition
accordingly fails and is dismissed.
71. The second petition of the petitioners who have been granted the
benefit of confirmation over and above the petitioners in the first petition,
therefore, must succeed and is consequently allowed.
72. No orders as to costs.
73. All pending misc. application(s), if any, also stand disposed of.
74. Interim order stands discharged.
75. A photocopy of this order be placed on the file of connected
case.
{ASHWANI KUMAR MISHRA}
JUDGE
{ROHIT KAPOOR}
JUDGE
15.09.2025
rajesh/rahul
1. Whether speaking/reasoned? : Yes/No
2. Whether reportable? : Yes/No
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