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[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs…5397-5406/2014

(arising out of S.L.P.(Civil) Nos.36319-36328/2009)

M.S.Sandhu & Anr. Etc. …….Appellants

Vs.

State of Punjab & Ors. Etc.

…….Respondents

WITH

C.A.Nos.5407-5409/2014 @ SLP(Civil) Nos.36330-36332/2009

C.A. Nos.5413-5422/2014 @ SLP(civil) Nos.36334-36343/2009

C.A.Nos.5410-5412/2014 @ SLP(Civil) Nos.36344-36346/2009

C.A.Nos.5439-5441/2014 @ SLP(civil) Nos.36347-36349/2009

C.A.Nos.5426-5428/2014 @ SLP(Civil) Nos.36350-36352/2009

C.A. Nos.5429-5438/2014 @ SLP(Civil) Nos. 36353-36362/2009

C.A. Nos.5423-5425/2014 @ SLP(Civil) Nos. 36363-36365/2009

J U D G M E N T

A.K.SIKRI,J.

1.Leave granted.

2.The perennial dispute of seniority between the direct recruits

and promotees, that keeps showing its fang time and again in one

form or the other, has surfaced in these batch of appeals as well.

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Having regard to the nature of the dispute, we deem it proper to

narrate the facts sequentially and while doing so, we will also be

stating the respective positions which the parties to this lis have

taken. In this manner by the time statement of facts is over, we

shall have crystallized the issues as well, which need to be

answered.

3.Genesis of the dispute lies in the Punjab Police Service Rules

1959 (hereinafter referred to as “1959 Rules”) and the origin can

be traced to the judgment of this Court in the case of Paramjit

Singh & Ors. vs. Ram Rakha 1979 (3) SCC 478. The dispute

before us relates to seniority in the cadre of Deputy

Superintendent of Police (DSP) between the direct recruits and

promotees in these proceedings, which was the subject matter of

the aforesaid decision as well. However, before discussing the

nature of dispute we would like to take stock of the relevant

provisions of 1959 Rules.

4.1959 Rules are framed by the Governor of Punjab in exercise

of powers vested by the proviso to Article 309 of the Constitution.

Rule 2 which is definition clause defines “Service to mean the

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Punjab Police Service Rule 2 (f)”. As per Rule 3 the Service shall

comprise of the posts specified in Appendix ‘A’ to these Rules

which shows 62 posts in the cadre of DSP. Method of recruitment

is stipulated in Rule 6 as per which 80% posts are to be filled by

promotion from the rank of Inspectors and 20% by direct

recruitment. Rule 8 provides that both promotees and direct

recruits would be on probation for a period of two years and in

case of promotees, the Government may by special order in each

case permit period of officiating appointment to the Service to

count towards the period of probation. This rule also empowers

the Government to extend the period of probation by not more

than one year, if it deems fit. Rule 10, which is the most crucial

provision and would remain fulcrum of the discussion hereinafter,

provides for fixation of seniority and reads as under:

“SENIORITY OF MEMBERS OF SERVICE :-

10.The Seniority of members of the Service shall be

determined by the date of confirmation in the service.

Provided that if two or more members are confirmed on

the same date;

(i)a member who is appointed to the Service by

promotion shall be senior to the members appointed

otherwise;

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(ii)in the case of members who were appointed by direct

appointment, the seniority shall be determined in

accordance with their position in the competitive

examination;

(iii)in the case of members who were appointed to the

service by promotion, the seniority shall be determined in

accordance with the date of their entry in position list ‘G’ .”

As is clear from the above, date of confirmation in Service is

the relevant date and determinative factor for assigning seniority.

5.This very rule of seniority in a dispute between direct

recruits and promotees, came up for consideration before this

Court in Paramjit Singh’s case. Respondents 1 and 2 in the said

case, who were promotees to the cadre of DSPs of February 1961

and January 1961 respectively, had filed the Writ Petition in the

High Court of Punjab and Haryana, at Chandigarh praying for a

direction to confirm them in the Service. Apart from impleading

State functionaries, six other persons who were direct recruits

were also impleaded as respondents. These direct recruits were

appointed as DSPs between May 1961 and May 1965. The

grievance of the said two promotees was that quota rule of 80%

by promotion and 20% by direct recruitment was not adhered to

at the time of confirmation in the Service, and therefore, even

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though they were members of the Service since a period earlier to

the said direct recruits, they were not confirmed though the latter

were confirmed and, as a consequence, were made senior to

these promotess, by virtue of Rule 10. On these premise, failure

to confirm them in the post available to them was challenged as

breach of the 1959 Rules and also in violation of Art.16 of the

Constitution. The contention of the Government as well as the

direct recruits was that quota applies at the stage of initial

recruitment and not at the time of confirmation and there was no

allegation that the quota rule was violated at the time of initial

recruitment. It was also argued that no one can claim to be

confirmed as a matter of right. Further, the said promotees were

on officiating basis against temporary posts and therefore for

want of permanent posts, they could not be confirmed till

substantive vacancies in the permanent strength of the cadre

were available. The argument of the promotees was that if

seniority is to be reckoned from the date of confirmation in the

service, confirmation must be made available to the recruits from

both the sources, namely promotees and direct recruits. It was

argued that if the direct recruits are confirmed or deemed

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confirmed on satisfactory completion of probation and at the

same time the cases of promotees for confirmation are not

considered, it would put them in a serious disadvantage in so far

as further promotions is concerned, viz. nomination to Indian

Police Service. Seniority-cum-merit being the criteria and the

basic cadre being the cadre of DSPs from nomination is to be

made, their cases would not come up for consideration in the

absence of confirmation. On consideration of the entire matter,

the Court held that as the determinative date for fixing the

seniority is the date of confirmation, quota rule will have to be

observed not only at the stage of recruitment but at the stage of

confirmation as well. Else, it would result in discrimination to the

promotees and would impinge upon their seniority in the Service.

The Court chose to give this interpretation as according to it, this

was the only way out to save Rule 10 from the vice of

arbitrariness. It is clear from the following discussion:

“Now, if the other view if taken that the

quota rule would apply both at the time of

recruitment and at the time of confirmation,

Rule 10 which provides for seniority according

to the date of confirmation would certainly be

saved from the vice of unreasonableness. Is

such a construction possible? One need not

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stretch the language to bring about the desired

result but in this case upon a harmonious

reading of Rules 3,6,8 and 10, the conclusion is

inescapable that quota rule is operating both at

the time of initial recruitment and at the time

of confirmation. If the rule of seniority were one

otherwise than according to date of

confirmation it would not have become

necessary to apply the quota rule at the stage

of confirmation but in this case the quota rule

is linked up with the seniority rule and unless

the quota rule is strictly observed in practice it

will be difficult to hold that the seniority rule is

not unreasonable and does not offend

Art.16(see S.G.Jaisinghani’s case at pp.717 and

718). Quota rule is linked up with seniority rule

because, not the date of entry in service

determines the seniority but the date of

confirmation determines seniority and,

therefore, quota rule is inextricably intertwined

with the seniority rule and any delinking would

render the seniority rule wholly unreasonable.

And other view would lead to the most

undesirable result wholly unintended by the

framers of the rule. It must be remembered

that after recruitment, members of the service,

though drawn from two different sources –

direct recruits and promotees – constitute a

single integrated cadre. They discharge

identical functions, bear similar responsibilities

and acquire an equal amount of experience in

the respective assignments. In this background

in S.B.Patwardhan’s case this Court held that if

the promotees are treated with an evil eye and

an unequal hand in the matter of seniority as

was done under Rule 8(iii), the rule would

suffer from the vice of unreasonableness and

would offend Art.16 and it was actually rule is

applied at the stage of initial recruitment and

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wholly ignored at the time of confirmation

because in that event while direct recruits will

get confirmation automatically, the promotees

would hang out for years as has happened in

the case of respondents 1 and 2 and if they are

not confirmed they would never get seniority

and their chances of being considered for

promotion to the higher post would be wholly

jeopardized. To avoid this utterly

unconscionable outcome the construction we

have put on Rule 8 would be in consonance

with justice and reason.”

6.After solving the dispute in the aforesaid manner, the Court

also made certain other observations in para 14. We would refer

to that para at the relevant stage inasmuch as it is the contention

of the appellants before us that observations made in the said

para are legally erroneous which position is now acknowledged by

this Court in the Constitution Bench judgment in the case of

B.S.Yadav vs. U.O.I. 1980 Suppl. SCC 524.

7.To put it succinctly, in Paramjit Singh’s case, this Court held

that rule of quota shall apply at the time of confirmation also and

confirmation was to be done on the basis of vacancies. It would

mean that even at the time of confirmation quota of 4:1 between

the promotees and direct recruits would be applicable.

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8.Implementing this judgment, the State Government

prepared seniority list dated 4.6.1981 thereby granting dates of

confirmation from 1961 to 1981. This led to filing of an application

for clarification in Paramjit Singh’s case by the appellants in the

said case. Dismissing the application the Court made the

following categorical remarks:

“There was no ambiguity in the Court’s earlier

judgment. What the Court meant was that

quota should be co-related to the vacancies

which are to be filled in. Who retired and from

what source he was recruited may not be very

relevant because retirement from service may

not follow the quota rule. A roster had to be

introduced which was to continue while giving

confirmation. Introduction of roster only

postulates ascertainment of available number

of vacancies and proceeding to make

recruitment keeping in view of the quota. If

recruitment is strictly made according to quota

there will be no difficulty in applying the very

rule of quota even while giving confirmation. It

was, thus, maintained that since the quota in

the present case is 4 : 1 that, four promotes to

one direct recruit, therefore, whenever

vacancies occur, the appointing authority has

first to recruit four promotes irrespective of the

factors or circumstances causing the vacancies

and as soon as four promotes are recruited to

bring in a direct recruit.”

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9.Having noticed the ratio of the case of Paramjit Singh

(supra), we now proceed to take stock of the factual details of the

dispute in these appeals. A number of posts of the DSPs were

created in the year 1989 and the State Government was not

finding suitable persons for appointment to the said posts. The

State Government accepted the proposal of the Director General

of Police, Punjab and relaxed the condition of experience from 6

years to 4 years as Inspector for promotion to the post of DSP.

Thereafter, between November, 1989 to December 1989, 85

Inspectors who had more than 4 years of service but less than 6

years, were promoted to the rank of DSP. The Punjab Public

Service Commission, ultimately in the year 1998, granted

approval to the aforesaid appointments and the promotes, DSPs

of 1989 batch were brought on list ‘G’ from the date of their

promotion.

10.A Writ Petition being CWP No.17397 of 1999 was filed by

direct recruits of 1990 and 1991 thereby challenging the action of

the State Government in bringing the promoted DSPs of 1989

batch on list ‘G’ from the date of their promotion as DSPs in the

High Court. It was the grievance of the writ petitioners/direct

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recruits in the said writ petition that the promotees who were

appointed as DSPs from the year 1987 to 1989 were promoted in

excess of their quota of 80%.

11.Thereafter, the State Government vide order dated

10.10.2000 confirmed the promotees DSPs of 1989 batch. The

aforesaid action of confirmation of 1989 batch DSPs was

challenged by one Tulsi Ram by way of filing CWP No.16419 of

2000 in the High Court. The question which arose in the said writ

petition for the determination by the High Court was whether the

promotion of the promotees officers of 1989 batch to the post of

DSP was de hors the Rules and whether they could be given the

benefit of that service for the purpose of their seniority.

12.The Division Bench of the High Court vide judgment dated

26.4.2001 dismissed the writ petition filed by Tulsi Ram holding

that the promotee officers are entitled to the benefit of their

temporary service which they rendered as DSPs and that service

has to count towards their seniority. The said judgment is

reported in 2002 (5) SLR 409. The Special Leave Petition against

the said judgment was dismissed by this Court and in view of the

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dismissal of the Special Leave Petition the aforesaid judgment

became final so far as the promotees DSPs of 1989 batch are

concerned.

13.Thereafter, the State Government finalized the seniority list

of the members of the Punjab Police Service vide order dated

7.7.2005. One of the writ petitioners in W.P.No.17397 of 1999

namely Gurpreet Singh Bhuller filed the Civil Writ Petition

No.12206 of 2005 challenging the aforesaid seniority list and also

prayed that the seniority list of the members of the Punjab Police

Service may be prepared in accordance with the judgment of this

Court in Paramjit Singh’s case.

14.The High Court, vide impugned judgment dated 10.4.2008,

has allowed the Civil Writ Petition No.12206 of 2005 and quashed

the seniority list dated 7.7.2005 thereby directing the State

Government to prepare the seniority list in accordance with the

judgment of this Court in Paramjit Singh’s case. It is this judgment

which is assailed before us.

15. Some more factual details need a mention at this stage.

When W.P. No.16419/2000 filed by direct recruits was dismissed

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by the High Court on 26.4.2001 and SLP there against was also

dismissed, the State Government initially took the position based

on the aforesaid judgment, viz. that the requirement of 6 years

service for promotion to the post of DSP which was relaxed to 4

years was approved and confirmed held valid therefore seniority

would be given from 1988. However, the Government, thereafter,

chose to constitute a Committee to go into the entire gamut of

these issues. The Committee went into the length & breadth of all

the relevant issues, including the earlier judgment of this Court in

the case of Paramjit Singh and recommended that judgment in

Paramjit Singh’s case should be followed. On the basis of the said

recommendation, the State Government passed the orders dated

7.7.2005 accepting the same. Interestingly, in the meantime,

many promotees DSPs who were brought on list ‘G’, had been

inducted into IPS Service. However, the Government decided not

to interfere with the said career progression of those DSPs and

they are left untouched.

16.These developments and issues were debated before the

High Court which has, vide impugned judgment dated 10.4.2008,

held that the decision of the Government following the dicta in

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Paramjit Singh’s case is apt & justified. It has been directed that

this judgment be implemented and consequential change in IPS

be also made. However, those promotees DSPs who had already

been inducted as IPS and were not impleaded in the parties in the

said case filed an application stating that they were adversely

affected. On that application the High Court passed the order

deleting the direction of making consequential changes in the IPS.

The promotees also filed Review Petition seeking review of the

said judgment. This petition has been dismissed by the High Court

vide order dated 24.4.2009. Before us, in all these appeals,

promotees DSPs have come forward challenging the decision of

the High Court in the Writ Petition as well as in the Review

Petition.

17.Two more developments which need to be mentioned at this

stage are:

(1) The State Government has already circulated seniority

list on 15.12.2009 on the basis of direction given in the judgment

of the High Court i.e. after the filing of the SLPs.

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(2) The earlier 1959 Rules have been repealed with the

promulgation of the Punjab Civil Services General Conditions of

Service Rules, 1994. Indubitably, Rule 20 of these Rules

categorically mentions that only common permanent post would

constitute the cadre and not the temporary ones. Vital change is

made in the rule fixing seniority. Now, from the date of framing of

these Rules dated 4.9.l994, length of service is adopted as the

criteria for fixing the seniority and thereby giving go bye to the

earlier criteria based on the date of confirmation.

18.Mr. P.S. Patwalia and Mr. Nidesh Gupta, Senior Advocates

appeared for the appellants in these cases and advanced detail

arguments in support of promotees’ case. Opening the front, Mr.

Patwalia, at the outset drew the attention of this Court to the

subsequent case of B.S.Yadav vs. U.O.I. (supra) and submitted

that the Constitution Bench in that case has laid down principle of

law in unequivocal terms that rule of rotation cannot be read into

the rule of seniority. He, thus, submitted that observations of the

Division Bench in Paramjit Singh’s case in para 14 that rule of

quota shall apply at the time of confirmation also did not remain

valid any longer. In this endeavour, Mr. Patwalia specifically

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referred to para 35 of B.S.Yadav judgment, wherein the

Constitution Bench framed two issues that needed to be resolved.

We reproduce issue No.2 as framed as first issue does not

concern us:

“(2) whether the High Court, basing itself on

the rule of quota, is justified in applying the

rule of rotation at the time of confirmation of

promotees and direct recruits as District and

Sessions Judges.”

19.He emphasized that question No.2 framed in the said case

arose directly for consideration in the present set of appeals also

which was answered by the Constitution Bench in para 53

onwards. In para 53, the Court noticed that the main thrust of the

argument of the promotees was that method of rotation cannot

apply at the time of confirmation as it would be violative of their

fundamental rights under Art.14 and 16 of the Constitution. This is

answered in subsequent paras. Our purpose would be served in

reproducing discussion contained in paras 65 to 68 which are as

follows:

“65. In the light of these contentions, the question for

determination is whether the method of confirmation

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adopted by the High Court by the rotation of promotees

and direct recruits in the ratio of 2 : 1 is justified on a

proper interpretation of the relevant rules. Is the operation

of Rule 8 confined to the stage of initial recruitment to the

Service by promotion and by direct appointment? Or, can

that rule be superimposed on Rules 10 and 12 so as to

justify its application at the stage of confirmation also?

These are the questions which are posed for our

consideration.

66. Rule 8, as its very heading shows, provides for a

distinct condition of service with reference to a specific

point of time, namely : “Recruitment to Service”. The

words “to be filled up by direct recruitment” which occur

in the proviso to sub-rule (2) of Rule 8 also point in the

direction that the operation of this sub-rule is confined to

the stage of initial recruitment to the Service either by

promotion or by direct appointment from the Bar. Rules

10, 11 and 12 provide for the regulation of probation,

reversion of promoted officers and seniority, which

conditions of service are distinct and separate from

“Recruitment to Service” dealt with in Rule 8. In other

words, Rule 8 only fixes the respective quota of recruits

from the two sources specified in clauses (i) and (ii) of

sub-rule (1). Such reservation is intended to be made at

the stage of initial appointments only, by reserving 2/3rd

of the total number of posts in the cadre for promotees

and 1/3rd for direct recruits. It seems to us evident that a

post which falls vacant in the quota of promotees cannot

be filled by the confirmation of a direct recruit therein nor

indeed can a promotee be confirmed in a post which is

within the quota of direct recruits.

67. If this be the true construction of Rule 8, the

method of confirmation by rotation of direct recruits and

promotees, regardless of whether the vacancy assigned to

the particular officer falls within the quota of the class to

which he belongs will be in contravention of that rule. It

was held by this Court in Punjab & Haryana High Court v.

State of Haryana that “appointment” is not a continuous

process, that the process of appointment is complete as

soon as a person is initially recruited to the service either

by promotion or by direct recruitment and that

confirmation is not a part of the process of appointment.

The necessity of treating “recruitment to the Service” and

“confirmation” as two distinct and separate matters can

be appreciated if only it is realised that “recruitment to

the Service” is a matter which falls within the power of the

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Governor under Article 233 while “confirmation” is a

matter of “control” vesting in the High Court under Article

235. The superimposition of Rule 8, which fixes the quota

at the stage of recruitment, on the rules relating to

confirmation and seniority is therefore contrary to the

basic constitutional concepts governing judicial service.

68. This apart, the application of rota system at the

stage of confirmation is beset with practical difficulties.

For example, if vacancies in the quota of direct recruits

cannot be filled for 2 or 3 years for the not uncommon

reason that direct recruits are not available, and during

that period several vacancies occur in the quota of

promotees who have been officiating continuously for two

or three years, can the postponement of the confirmation

of such promotees against vacant posts in their quota,

until the direct recruits are appointed and become eligible

for confirmation on completing the prescribed period of

probation, be justified on any reasonable ground? Is it

proper and fair to defer the confirmation of the promotees

merely because direct recruits are not available at that

point of time so as to enable the High Court to make

confirmations from both the sources by rotation? This,

precisely, is what the High Court has done by the

impugned notification dated August 25, 1976 and that is

the reason why it has not confirmed ten more promotees

in Punjab, for whom vacancies are available within the

quota of promotees.”

20.It is noteworthy that judgment in Paramjit Singh (supra) was

specifically noticed and discussed by the Constitution Bench in

para 71 to which we shall advert later while undertaking our

analysis as the outcome of these proceedings depends on the

true impact of the discussion contained in that para.

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21.The Constitution Bench, thereafter, discussed the judgment

of the High Court which was impugned in the B.S.Yadav, and held

that the High Court was not justified in applying the rule of

rotation at the time of confirmation of the members of the

superior judicial service. For the sake of clarity, we would like to

reproduce para 72 and 73 containing such a ratio:

“72. In our opinion, therefore, the High Court was not

justified in applying the rule of rotation at the time of

confirmation of the members of the Superior Judicial

Service who were appointed to that Service by

promotion and by direct recruitment. In fact, we would

like to remind that a special Bench of five learned Judges

of the High Court of Punjab & Haryana had itself held on

December 13, 1977 in N.S. Rao v. State of Haryana that

the rule of rota cannot be read into the rule of quota

prescribed by Rule 8 of the Punjab Superior Judicial

Service Rules. It was observed by the Special Bench in

para 14 of its judgment that a plain reading of Rule 8

shows that the intention of the framers of the rules was

only to provide for quota and that no indication at all has

been given that the rotational system also had to be

followed at the time of confirmation or for the purpose of

fixing seniority. In coming to this conclusion, the High

Court placed reliance on the decisions of this Court in

A.K. Subraman and N.K. Chauhan to which we have

already referred. The High Court expressed its

conclusion in para 22 of the judgment by saying that

Rules 8 and 12 are independent of each other, that the

rotational system cannot impliedly be read into the

quota rule prescribed by Rule 8 and that the members of

the Superior Judicial Service are entitled to claim

seniority, strictly in accordance with the provisions of

Rule 12. We are unable to understand how, in the

discharge of its administrative functions, the High Court

could have failed to follow a judgment of its own special

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Bench consisting of five learned Judges. We are of the

opinion that the aforesaid judgment has taken a correct

view of the matter on a combined reading of Rules 8 and

12.

73. We would like to say at the cost of repetition that

we are not dealing with the abstract question as to

whether the rule of quota necessarily excludes the rule

of rotation. We are only concerned to point out that it is

not correct to say that the rule of rota must necessarily

be read into the rule of quota. We have to decide in

these cases the narrow question asto whether, on a true

interpretation of Rules 8 and 12 of the Superior Judicial

Service Rules of Punjab and Haryana, the quota rule

prescribed by Rule 8 justifies, without more, its

extension at the time of confirmation so that, after every

two promotees are confirmed one direct recruit has to be

confirmed and until that is done, promotees cannot be

confirmed even if vacancies are available within their

quota in which they can be confirmed. We are of the

opinion, on a proper interpretation of the rules, that

promotees are entitled to be confirmed in the vacancies

which are available within their quota of 2/3rd, whether

or not 1/3rd of the vacancies are occupied by confirmed

direct recruits. And similarly, direct recruits are entitled

to be confirmed in vacancies which are available within

their quota of 1/3rd, whether or not 2/3rd of the

vacancies are occupied by confirmed promotees. What

we find lacking in justification is the refusal of the High

Court to confirm the promotees even if vacancies are

available in their quota in which they can be confirmed

merely because, by doing so, more than two promotees

may have to be confirmed at one time, without the

confirmation of a proportionate number of direct recruits.

The fairness which Articles 14 and 16 postulate is that if

a promotee is otherwise fit for confirmation and a

vacancy falling within the quota of promotees is

available in which he can be confirmed, his confirmation

ought not to be postponed until a direct recruit, whether

yet appointed or not, completes his period of probation

and thereupon becomes eligible for confirmation. The

adoption of this principle in the matter of confirmation,

will not, in practice, give any undue advantage to the

promotees. The facts and figures supplied by the High

Court in Annexure ‘R-4’ to its counter-affidavit in Writ

Petition No. 266 of 1979 show that vacancies in the

quota of promotees do not generally become available

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before the promotees have put in two to five years’

service as officiating District and Sessions Judges.”

22.Based on the aforesaid dicta in B.S.Yadav, the learned senior

counsel paraphrased his submissions as follows:

(1) Judgment in Paramjit Singh’s case was never

implemented by the Government when it was pronounced. This

was clear from the fact that the appellants promotees who were

promoted in the November/December 1989 were promoted in

relaxation of the rule providing for length of service as eligibility

condition and their names were also brought in the list “G”. Many

persons of 1989 Batch were even further inducted into the IPS.

This list was even approved, though belatedly in the year 1998

and that was the reason for the confirmation orders coming in the

year 2000. However, that was much before the direct recruits

were confirmed. In case, quota is applied at the stage of

confirmation also, it would seriously affect these promotees who

are otherwise much senior to the direct recruits.

(2) In a situation like this, the Government rightly felt that

the judgment in Paramjit’s Singh case was not capable of

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implementation. This was even the stand of the Government in

the Writ Petition No.1739/1999 filed before the High Court by the

direct recruits. A specific counter affidavit was filed stating that

the promotees did not exceed their quota and their seniority was

rightly determined. However, the Government turned turtle

thereafter and took a ‘U’ turn.

(3) In any case within one year of the judgment in Parmajit

Singh, which was rendered in the year 1979 Constitution Bench in

B.S.Yadav in the year 1980, strengthened the legal position which

impliedly overruled Paramjit Singh’s case.

(4) If at all, judgment in Paramjit Singh is to be confined to

its own facts without treating it as it precedent.

(5) Fault is found with the impugned judgment of the High

Court which decided to follow Paramjit Singh’s case on the ground

that when this case was decided by the High Court in the year

2008, the High Court had before it Constitution Bench in

B.S.Yadav and the High Court was supposed to follow the law laid

down therein which had binding force, rather than choosing to

follow another judgment which had lost its sheen.

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(6) The judgment in Paramjit Singh, if followed now, is going

to create anomalous situation.

23.Mr. Nidesh Gupta while adopting the aforesaid submissions,

further pointed out that rule of 80:20 for promotees and direct

recruits was only a quota rule and not a rota rule. In so far as

quota is concerned that was kept within bounds while making

promotions of the promotees to DSP Cadre. He argued that in

such a scenario, the subsequent judgment of the Supreme Court

in R.K.Sabharwal vs. U.O.I. (1995) 2 SCC 745 would also be

applicable which laid down rule of promotion on post basis and

not vacancy basis. He further submitted that the judgment in

B.S.Yadav was followed in Suraj Parkash Gupta vs. State of J

& K. 2000 (7) SCC 561 wherein the Court has held as under:

“41. The direct recruits contend that rota is to be implied

or read into the “quota” rule. It is also argued that

there has been a previous practice of applying a rota

and that this fact stands conceded in the counter-

affidavit filed by the Government in SWP No. 824-B of

1994. Reliance is also placed on the Cabinet note of

December 1997 where the view of the Law

Department that quota-rota rule is to be applied, is

referred to.”

Page 24 24

He also referred to the judgment of G.S.Lamba & Ors. v. U.O.I.

& Ors.1985 (2) SCC 604 and relied upon paras 17, 23 and 25

which are as under:

“17. It is too late in the day to dispute that it would

be open to the Government, while constituting a service,

to provide for recruitment to it from more than one

source and also to reserve quota for each source. As a

logical corollary, it would equally be open to the

Government to provide for seniority rule related to

rotation of vacancies. Shortly this is called quota rule of

recruitment and rota rule of seniority interlinking them.

So far there is no controversy. The contention of the

petitioners is that in implementing this rule there has

been such large scale deviation that it results in denial of

equality to the members of the service similarly

circumstanced. It will be presently demonstrably

established that where rota rule of seniority is interlinked

with quota rule of recruitment, and if the latter is

unreasonably departed from and breaks down under its

own weight, it would be unfair and unjust to give effect

to the rota rule of seniority. To some extent this is not

res integra. Though some advance has been made on

this proposition in later decisions.

23. Now turning to the impugned seniority lists, what

the Union of India appears to have done is that it has

applied the quota and rotated the vacancies but where

candidates from a particular source were not available,

the vacancies were deemed to be kept open (some kind

of carry forward) to be filled in by later recruitment from

the same source years after the vacancy occurred, but

in the meantime the vacancy was filled in presumably

by excess recruitment from the other sources. That is

clearly either non-implementation of the quota rule or

malfunctioning of the quota rule and yet the rota rule is

Page 25 25

adhered to which is both impermissible under the Rules

as well as unjust, unfair and inequitous being violative

of Articles 14 and 16.

25. The language of Rule 13(1) appears to be

mandatory in character. Where recruitment to a service

or a cadre is from more than one source, the controlling

authority can prescribe quota for each source. It is

equally correct that where the quota is prescribed, a

rule of seniority by rotating the vacancies can be a valid

rule for seniority. But as pointed out earlier if the rule of

seniority is inextricably intertwined with the quota rule

and there is enormous deviation from the quota rule, it

would be unjust, inequitous and unfair to give effect to

the rota rule. In fact as held in O.P. Singla case giving

effect to the rota rule after noticing the enormous

departure from the quota rule would be violative of

Article 14. Therefore assuming that quota rule was

mandatory in character as pointed out earlier, its

departure must permit rejection of rota rule as a valid

principle of seniority.”

24.Mr. Rajeev Dhawan, learned senior counsel appearing for the

private respondents in some of these appeals, submitted that the

central issue was as to whether judgment in Paramjit Singh is per

incuriam and had not to be followed at all. His submission was

that it was not so as the judgment pertains to the same 1959

Rules and same Service Cadre i.e. DSP. Therefore, there was no

reason to depart from the ratio in Paramjit Singh which had the

direct bearing. He argued that in Paramjit this Court had

emphasized that there were specific reasons, rationale and

justification for attaching rota to quota because the Court was

Page 26 26

dealing with exceptional situation and found that linkage of the

two as the only just solution. At that time, this was done to give

benefit to the promotees. Now, these promotees cannot turn

round and the ratio in Paramjit Singh, when the fact situation

does not suit the application of that rule. Mr. Dhawan also

referred to certain portion of the judgment and B.S.Yadav argued

that the said judgment is based on the interpretation which was

to be given to Rule 8 of Punjab Superior Judicial Service Rules,

1963. He further stressed that when Paramjit Singh is specifically

taken note in B.S.Yadav and not overruled, it would mean that the

said judgment is in fact upheld by the Constitution Bench. It was

also argued that the promotees were not even appointed to the

substantive vacancies and therefore cannot take advantage of

their so called continuous service rendered in temporary post of

DSPs. He, concluding his argument with emphatic plea that the

peculiar situation which prevailed qua this particular Service

rightly led the High Court to follow the dicta of Paramjit Singh

giving sufficient justifiable reasons in support.

25.Mr. Gurminder Singh, Sr. Advocate, appeared for some other

private respondents in these appeals. He also endeavoured to

Page 27 27

bring home the different situation under which Paramjit Singh and

B.S.Yadav cases were decided. His submission was that even if

Paramjit Singh was to be confined to its own facts, the solution

therein was valid in so far as this very Service is concerned. As

the present case also related to same Rules and same Service,

there was no illegality in following Paramjit Singh. He further

submitted that the reason for bunching, which had taken place in

the instant case, was direct recruits were not appointed at time

and the vacancies remained unfilled for long period. In fact

between 1971 and 1985 there was no recruitment under this

quota. He also mentioned that Rules were again amended in the

year 2010 i.e. w.e.f. 18.8.2010. With the amendment of Rule 10,

now length of service is the criteria. He referred to orders of

confirmation dated 19.12.2011 and submitted that this was the

most equitable solution which could be achieved by the

Government. Therefore, there was no reason to interfere with the

exercise which had been accomplished on the basis of the Expert

Committee’s report and to which the High Court in given its

imprimatur in the impugned judgment.

Page 28 28

26.Mr. Khanna who appeared on behalf of the State

Government submitted that the stand of the Government was

very clear, namely, quota was maintained on the cadre strength.

He also submitted that the State had no other alternative except

to follow dicta in Paramjit Singh which gave interpretation to Rule

10 and that was binding on the State Government.

27.From what we have noted above, including the submissions

of learned counsel for the various parties, it becomes clear that

the entire issue hinges primarily upon an answer to the question

as to whether dicta laid down in Paramjit Singh’s case be followed

or we need to deviate therefrom and follow the principle laid

down in B.S.Yadav’s case. All other issues and arguments raised

would pale into insignificance once answer to this core issue

becomes available. In fact upon decision on this central issue,

answer to other peripheral issues would itself surface. Therefore,

we proceed to address this issue in the first place.

28.We have carefully considered the submissions of the learned

counsel for the parties on this aspect. As pointed out above, shorn

off any niceties and nuances which have been projected before

Page 29 29

us, the core issue is as to whether judgment of this Court in

Paramjit Singh’s case was rightly followed by the High Court. The

case of Paramjit Singh was concerned with same 1959 Rules

pertaining to the officers of this very cadre, namely DSP Cadre. It

was interpreting the rule in the context which had arisen before it.

The Court was of the opinion that to save rule 10 from the vice of

the arbitrariness and to avert the situation of striking down the

same, it would be appropriate to interpret the said Rule 10 to

mean that rule of quota shall apply not only at the time of

appointment but at the time of confirmation also and

confirmation was to be done on the basis of vacancies. This was

achieved in the manner stated in para 14 of the said judgment

which reads that:

“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 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 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 recruit from that

source has to be confirmed in the post available to the

source. This system would break down the moment

Page 30 30

recruitment from either source in excess of the quota

is made. In fact a strict adherence 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 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

Coutinho case 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.”

29.The appellants’ argument is that this principle is totally

discarded by the subsequent Constitution Bench judgment in the

case of B.S.Yadav wherein it is held that the rule of quota

applicable at the stage of appointment/recruitment will have no

applicability at the time of confirmation. Thus, on the one hand,

we have the judgment in the case of Paramjit Singh which

pertains to these very Rules and the ratio of this judgment is

applied by the High Court and on the other hand, we have the law

laid down by the Constitution Bench in B.S.Yadav wherein the

provisions of some other rules came up for interpretation.

Page 31 31

30.According to us, in a matter like this, the approach of the

High Court to follow the dicta in Paramjit Singh is most

appropriate which pertains to the same Service and same Rules.

That is the mandate of Article 141 of the Constitution. The High

Court could depart only in a situation where it finds that the said

judgment has been subsequently overruled, specifically or

impliedly or it is per- incurium. Therefore, the moot question

would be to examine as to whether B.S.Yadav overrules the

judgment in Paramjit Singh.

31.Significantly, Paramjit Singh’s case has been specifically

taken note of and commented upon by the Constitution bench.

Therefore, we are not faced with a situation where Paramjit Singh

judgment has gone unnoticed. This judgment has been discussed

by the Constitution Bench in para 71, as under:

“71. In Paramjit Singh Sandhu v. Ram Rakha it was

held by this Court on a harmonious reading of Rules 3, 4,

6, 8, and 10 of the Punjab Police Rules, 1959 that the

quota rule was operative both at the time of initial

recruitment and at the time of confirmation. We would

like to clarify that this case is not an authority for the

proposition that whenever service rules provide for quota,

the rule of rota must be read into the rule of quota. We

are not laying down that the rules of quota and rota

cannot coexist. Service rules may so provide or they may

yield to such an interpretation. In that event, their validity

may have to be tested in the total setting of facts.

Page 32 32

Therefore, whether the quota system has to be observed

not only at the stage of initial recruitment but also at the

stage of confirmation is not a matter of abstract law but

will depend on the wording of the rules and the scheme

of the rules under consideration. Any dogmatic assertion,

one way or the other, is wrong to make. On a review of

these authorities, all that we would like to say is that on a

proper interpretation of the rules governing the Punjab

and Haryana Superior Judicial Service, the rule of rota

cannot be read into the rule of quota. In other words, the

ratio of 2 : 1 shall have to be applied at the stage of

recruitment but cannot, on the language of the relevant

rules, be applied at the stage of confirmation.”

32.From the reading of the aforesaid extracted portion, it

follows that the Court made it clear that it was not laying down

that rule of quota and rota cannot go exist. Service rules, in a

particular case may specifically provide the co-existence of quota

and rota. There may also be a situation where service rules be

interpreted as such. That is a very important comment made by

the Constitution Bench after taking note of the ratio in Paramjit

Singh’s case. It is specifically noted how the Court on harmonious

reading of Rules 3,4,6,8 and 10 of these 1959 Rules had come to

the conclusion that quota rule was operative both at the time of

initial appointment and at the time of confirmation. After taking

note of this ratio on the harmonious interpretation of the Rules in

question, rather than stating that such an interpretation was

Page 33 33

impermissible or wrongly given, the Constitution Bench clarifies

that there may be circumstances where such an interpretation

would be permissible and validity of the rules would be tested in

the total setting of facts. That was precisely done by the Bench in

Paramjit Singh’s case. Only conclusion which can be drawn from

the reading of para 71 of the judgment is that the harmonious

reading of the 1959 Rules done in that case was in fact approved,

and by no stretch of reasoning, can it be inferred that it was

overruled.

33.It needs to be highlighted at this stage that having regard to

the overall circumstances and the factual position which prevailed

while deciding Paramjit Singh’s case, the Court held that in order

to save Rule 10 from the vice of arbitrariness, the only

interpretation which could be given was to hold that the quota

rule would apply both at the time of recruitment and at the time

of confirmation. Detailed reasons are given justifying the said line

of action taken by the Court and that portion of the judgment has

already been extracted. In the beginning, not only this, even

when the Review Petition was filed the Court made it clear that

there was no ambiguity in the judgment. It was also made clear

Page 34 34

that what the Court meant was that quota should be co-related to

the vacancies which are to be filled in. Who retired and from what

source he was recruited may not be very relevant because

retirement from service may not follow the quota rule. A roster

had to be introduced which was to continue while giving

confirmation. Introduction of roster only postulates ascertainment

of available number of vacancies and proceeding to make

recruitment keeping in view of the quota.

34.It was argued by the learned counsel for the respondent that

the language of the rules that interpreted in B.S.Yadav (supra)

viz. the Punjab Judicial Service Rules 1963, are different from

Punjab Police Rules 1959. It is not even necessary to go into this

aspect minutely, inasmuch as from the above discussion it

becomes clear that the judgment in Paramjit Singh is not

overruled by B.S.Yadav either impliedly or specifically. It also

cannot be said that Paramjit Singh’s case is per in curium nor

was it argued. Once, we go by the ratio of that judgment, the

seniority being dependent upon the date of confirmation made it

necessary to introduce the roster by giving four vacancies to

promotees and the five vacancy to the direct recruit and adhere

Page 35 35

to the same strictly to bring it in consonance with justice and

reason.

35.The learned senior counsel appearing for the appellants

have tried to argue that if the aforesaid rule is followed it would

act to the prejudice of the appellants. The appellants are the

promotees. It was at the instance of this very class viz. promotee

officers in the same service who had questioned the validity of

the Rule 10, this Court was provoked to decide that the quota rule

had to be applied not only at the stage of initial recruitment, but

also at the stage of confirmation. It is strange that when another

set of promotees now feel that the aforesaid interpretation

rendered in favour of their own class, is not conducive to them

and the outcome is to their prejudice, they want the Court to take

a ‘U’ turn. Such a situation cannot be countenanced as it would

be anathema to the principle of doctrine of stare decisis.

Moreover, once we find that the B.S.Yadav does not overrule

Paramjit Singh and rather explains and approves that judgment,

the High Court had no option but to follow Paramjit Singh, as well

as the coordinate Bench of this Court.

Page 36 36

36.Notwithstanding the above, it would be appropriate to point

out that the argument of the appellants that the operation of the

rotational principle in quota would lead to inequitable results was

refuted by the respondents who submitted that by applying the

principle as directed by this Court, the State Government has

drawn out a seniority, the perusal of which shows that against the

existing strength of the service of 450 there are 406 promotee

officers as against 360 vacancies following to their share @ 80%

and 44 direct recruits as against 90 vacancies to their share @

20%. The further appointment to the promotion to the IPS cadre is

made solely on the basis of merit and the ratio of officers which

make it to the IPS from the State Service cannot be taken as an

indicator of any discrimination resulting by virtue of the 959

Rules. We find some substance in the aforesaid argument.

Somewhat similar argument, as taken by the appellants before

us, was commented upon by this Court in Maharashtra Vikrikar

Karamchari Sangathan v. State of Maharashtra (2000) 2

SCC 552, at page 567:

“Lastly, it was contended on behalf of

the appellants that some of the appellants

have put in more than 17 years of service

Page 37 37

when a few of the direct recruits were

either schooling and/or nor born in the

cadre. If the appellants were to be pushed

down, it would cause great hardship to

them. We are unable to subscribe to this

contention because if there is patent

violation of the quota rule, the result must

follow and the appellants who remained in

the office for all these years cannot take

the advantage of this situation. This

submission is, therefore, devoid of any

substance.”

37.The operation of the Rules may result in harsh consequences

as far as appellants are concerned. But on the vagaries of such

outcomes, the Court cannot keep on interpreting a rule

differently. It is more especially when the promotees being in

excess of their quota have enjoyed the fortuitous appointment

beyond their quota of vacancies.

38.Likewise, argument of the appellants that the quota rule had

broken down would not cut much ice. First of all, such an

argument was not even raised/pleaded, nor any material was

placed on record which shows that the adherence to the quota

rule as possible leading to break down of the quota. Private

respondents have made fervent plea that as a matter of record

Page 38 38

whenever State Government had endeavoured to make direct

recruitments, vacancies had been duly filled with adequate

number of candidates. Therefore, for want of any material no

definite findings can be recorded on this aspect, more so, such a

case was not pleaded before the High Court. May be, because of

such situation recurring time and again either in favour of the

promotees or in favour of the direct recruits, the Government

has remedied the situation by amending the rules thereby

bringing the rule of continuous length of service for determining

the seniority. It is always open to the Government to take such

steps for the benefit of all in the service and to ensure that the

result is equitable. However, in the instant case, we do not find

fault with the judgment of the High Court.

39.We, accordingly, hold that the approach of the High Court in

following the dicta laid down in Paramjit Singh was perfectly

justified. Finding no merit in these appeals, the same are hereby

dismissed. No costs.

…………………………………..J.

(Surinder Singh Nijjar)

Page 39 39

………………………………….J.

(A.K.Sikri)

New Delhi,

Dated: May 07, 2014

Page 40 40