Jit Singh & Ors. v. State of Punjab & Ors.

Judgment

n JIT SINGH & ORS. STATE OF PUNJAB & ORS. February 13, 1979 [P. N. SHINGHAL AND D. A. DESAI, JJ.} Puniab Police Service Ruf,s, 1959-Rules 6 & 14-Scope of. The proviso to r. 6 of the Punjab Police Service Rules, 1959 relating to the· appointment to the higher posts of Deputy Superintendents of Police provided' that only those. inspectors would be 'eligible for promotion who had got six years' oontinuous service (officiating as well as substantive) in the rank of impector. Sub-rule (2) required that a Jist (called List 'G') of officer~ considered fit for promotion to the ra.nk of Deputy Superint'endent of Police be prepared by the State Government in consultation with the State Public Service Commission and appointments shall be made by promotion from persons brought on that list. In view of an urgent need to m~.ke a number of appointment9 of Deputy Supcrin· tende11ts of Police, an executive order was issued in 1965 reducing the period of six years continuous service to four yea-rs.

Responden:s 4 to 37 were accordingly promoted on an ad !zoe basis as officiating Deputy Superintendents of Police. The first list 'G' prepared in term of r. 6(2) was sent for approval of me Service· Commission on 7th January, 1966 and in Sept'ember, 1966 a supplementary Jist of inspectors who had completed four years' service after 7th January, 1966 wa~ sent ro the Commission. Both th~ lists were eventually approved by the s~rvice· Commission in September, 1970. The ;-tppellants who were appointed as inspectors in May, 1963 were con·· firmed in May, 1966 and completed six years of service in May, 1969. Their. names were not included in either the first or the supplementary list 'G' se•at by the State Government to the Service Commission whereas the names of res-- pondents 4 to 37 found a place in the Jist.

In rejecting the appellants' writ petition the High Court held th~t they had: ~1ot qualified th'emselves for inclusion of their names in List 'G' at the time thut list was drawn up by the State Government in 1966 because they had not"- -·~ put in the requisite period of service for being considered for inclusion in it. Dismissing the llppeal, HFLD : l. The appellants were not eligible for indusion in List 'G' prepared i~1 1966 on the basis of the State Government's recommendation m2.:te in January and September of that year because at the relevant time only those insp~ctors: who had put in six years of continuou& servi·:e as inspector were eligible for promotion. No further supplement to List 'G' was sent for the Commission's approval after 1966. In other words the final List 'G' related only to the year 1966. The aoppellants who by then had ~ot put in even four years' ~ervice could not have been promoted. [199 F, HJ 2.

B'ecause of the extraordinary situa1ion which had developed on the borders of the State, the State Government \\tls driven to the necessity of making some JIT SINGH v. PUNJAB (Shingha/, J.) ad hoc or temporary appointments, but it cannot be said that by reason of this, the appointments so made were made wilfully in derogation of the requirements of the rules or were meant to run down the appellants. [200 B) 3. However, the appellants' argument that the relaxation contemplated by r. 14 \las restricted by considerations of "undue hardship" in any "pa-rticular case" and that it was not permissible for the State Govemmcnt to reduce in the case of the respondents 4 to 37, the requirement of continuous service from six years to fall r for the purpose of eligibility for promotion is correct because r. 14 as it ~tcod at the relevant time when respondenUI 4 to 37 were promoted did not ;:~ermit any general !'claxation of the nature ordered by the State Government in 1963 or 1965. The amended r.

14 could not avail the State Government because it c8me into force much later in January, 1969. [198 G-H, 199 C] ~ 4. The argument that only those inspectors who had been confirmed as inspectors and held that post substantively were eligible for promotion is not correct. To accept that would only mean that a.n inspector who had put in six years' officiating service would not be eligible for promotion ii he had not been confirmed. All that proviso (a) to r. 6 permits is that, in order to be cligib.le for promotion, an inspector should have got six years "continuous" ~ervice, including service in ;m officiating ~ well a~ substantive capacity. [198 C-D] CrvrL APPELLATE JURISDICTION: Civil Appeal No. 1849 of 1972. Appeal by Special Leave from the Judgment and Order dated J 0· 11-1970 of the Punjab & Harya:na High Court in C.W. No. 2547 of 1970. Y. S. Chitale and Mrs. Unnila Sirur for the Appellant. Hardev Singh and R. S. Sodhi for Respondents Nos. 2 and 3.

The Judgment of the Court was dvlivered by SIIJNGIIAL, J. This appeal by special leave is directed again:,t ~the judgment of the Punjab and Haryana High Court dated November 10, 1970, by which the writ petition of the appellants was dismissed on the ground that the promotions challenged by them were made on the basis of list "G" of 1966 when they had not qualified for promotion. It has therefore to be examined whether that view of the High Court is incorrect in the facts and circumstances of the case. A list of dates bearing on the controversy has been furnished by Mr. Y. S. Chitale, learned counsel for the appellants, and we have been told by the learned counsel for the respondents that it is correct. The facts which emerge from that list may be stated briefly for learned counsel agree that they are quite sufficient for the disposal of the appeal.

All the three appellants were appointed Inspectors of Police, by direct recruitment, on M~y 21, 1963, on a probationary period of three years. At that time the Punjab Police Service Rules, 1959. hereinafter referred to as the Rules, were in force, providing fC( appointment to the higher post of Deputy Superintendent of Police. For purposes of this appeal, it will be sufficient to say that rule 6 of the Rules provided tha~ recruitment to the Punjab Police Service, consisting of the cadre of Deputy Superintendents of Police, shall be made by promotion to the extent of eighty percent from the rank of Inspector and twenty percent by direct appointment. That was subject to the proviso that only those Inspectors would be eligible for_ promotion who had put in six years continuous service.

It appears that as there were many vacancies in the posts of Deputy Superintendents of Police, the State Government took a decision on August 21, 1963, that the minimum requirement of six years continuous service for eligibility for promo~ion may be reduced to four years if about fifty percent of the vacancies were to be filled in any year; and an executive order to that effect was issued some time in 1965 under rule 14 of the Rules as it stood until its amendment on January 23, 1969. The State Government accordingly promoted the respondents Nos. 4 to 37 as officiating Deputy Superintendents of Police on ad hoc basis.

As it was the requirement of sub-rule (2) of ruk 6 of the Rules that appointments by promotion would be made from Inspectors ''brought on list 'G' which will be a list of officers considered fit for promotion to the rank of Deputy Superintendent of Police, prepared by Government in consultation with the Commission," ·a list was prepanCl by the State Government and it was sent for lhe approval of the Public Service Commission on January 7, 1966. Tb appellants were confirmed as Inspectors on September 10, 1966 witL retrospective effect from May 21, 1966. The Government . took up the question of regularising the ad hoc promotions of respondents Nos. 4 to 3 7 pending the approval of the draft list 'G' by the Commission. A supplementary list was prepared of Inspectors who had completed four years service after January 7, 1966, and it was sent to the Commis· sion on September 29, 1966.

Before the two lists could be examined by the Commission, the State of Punjab was reconstituted on November 1, 1966. The Commission thereupon sent a Jetter on December 30, 1966, to the Inspector General of Police, asking for information about the allocation of the police officers to the reorganis~ ed States and for information regarding the vacancies which remained to be filled in the State. The Inspector General of Police sent a reply on February 8, 1967. The appellants completed four years of continuous service on May 21, 1967. While the aforesaid two lists of JIT SINGH v. PUNJAB (Shinghal, J.) 1966 were pending with the Commission for the preparation of list 'G', the State Government substituted a new rule 14 on Januaty 28, 1969. The. appellants completed six years of service on May 21, · 1969.

The ·Public Service Commission asked for a seniority Jist of Inspectors some time in 1970, and ultimately approved the list 'G' on September 7, 1970, consisting of the names in the two lists which had been sent by the State Government in 1966. The names of respondents Nos. 4 to 37 were thus included in that list but it did not contain the names of the appellants. They felt aggrieved and filed a writ petition in the High Court in September 1970, but it was dis- _missed by the High Court on November 10, 1970, as aforesaid. That is why they have come up in appeal to this Court by special leave. Before examining the arguments which have been advanced before us, it will be proper to make a brief reference to the salient points mentioned in the reply of the State Government. It was stated there that a large number of vacancies occurred in the cadre of Deputy Sup~r­ intendents of.

Police because several battalions of the Police force had to be sent to the Punjab-Pakistan border and it became necessary !or the State Government to fill those vacancies immediately. The State Govere..'llent had therefore, to reduce the minimum requirement of six years service for eligibility to appointment to the post of Deputy Superintendent of Police to four years. The State Government mentioned the circumstances in which it had to send two lists to the Commission in 1966 for the preparation of list 'G' and its ultimate approval by the Commission on September 7, 1970. The lists, it was pointed out, were prepared as in 1966, by which date the appellants had not completed four years service as Inspectors. That, . accvrdit1g to the respondents, was the reason why their names could not be brought on that list.

It was categorically stated that no names were recommended for inclusion in that list during the years 1967, 1969 and 1970, and that the assertion of the appellants to the contrary was incorrect. T It is in the light of these facts and circumstances that we shall examine the arguments which have been advanced before us by the learned counsel for the appellants. The main controversy is that relating to the meaning and the application of rule 6(1) of the Rules which provides as follows,- "6. Method of recruitment.- ( 1) Recruitment to the Service shall be made- (i) Eighty per cent by promo~ion from the rank of Inspector and twenty per cent by direct appointment : (1979] 3 S.C:~t. Provided that only those Inspectors wil1 be eligible for promotion who-- (a) in the case of Inspectors (both promoted from subordinate rank and directly recntited) have go't six years continuous service (officiating as well as substantive) in the rank of Inspector: and"

We are not concerned with part (b) of the proviso as it relates to the promotion of Prosecuting Inspectors. It has been argued that only those Inspectors were eligible for promotion as Deupty Superintendent of Police who h<\d been confirmed as Inspector and held that post on a substantive basis. A reading of part (a) of the proviso shows however that it c;mnot be said to rtstrict the eligibility for promotion only to the substantive holder~ o'f the post of Inspector. All that it permits is that, in order to be eligible Cor promotion, the Inspectors £hould have got six years "continuous" service, including service in an officiating as well as substantive capacity. We are therefore unable to think that an Inspector who had put in six years officiating service was not eligible. for promotion as Deputy Superintendent of Police.

It has next been argued that the requirement of six years service could not be rcla:ted by the State Government on August 21, 196), or thereafter in 1965, because rule 14 of the Rules as it stood until its substitution on January 28, 1969, read as follows,- "Wncre the Government is satisfied that the opcrattoH of any o[ the rules causes undue hardship in any particular case, it may, by order, dispcn.sc with or rcla.t the requirement o( that rule to sm:h extent and subject to such conditions as it may consider nccess:uy for dealing with the ~ase iu a iu~t and equitable manner, provided that the case is not dealt with in a m:!nncr less favourublc to the person concerned than providcll by the rdcvnnt rule." It has thcrdore been urged that the rdaxation contemplated by that rule was rcstrich:d by con~ideratious o( "undue hardship", in uny ''p:trticul:~r case", and thilt lt wa~ Dot permissible for thl! Stall!

Government to rcducc tltc requirement of continuous service !rom six years to four y.:.trs for purposes of eligibility for promotion to th¢ Punjab 11 Police S.:rvi.:c. The argument is correct because n.lc 14 as it stood 011 the rckvant period of. time when promotions of respondents (Nos. 4 to 3 7) were made, dtd Dot permit any general rdaxation of the JIT SINGH v. PUNJAB (Shinghal, J.) nature ordered by the State Government in 1963 or 1965. It is true that rule 14 was amended and a new rule was inserted on January 28, 1969, to the following effect- "7. General power to relax rules.-where the Government is of the opinion that it is necessary or expedient so to do, 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."

That was a rule of general application, and it appears that there is .. ~-justification for the argument of the learned counsel for the respondents that it could not authorise the kind of relaxation which was made by the State Government in 1963 and in 1965, but the fact remains that it could not avail the State Government as the new rule came into force much later on January 28, 1969. It would thus follow that the respondents were not eligible for promotion because the relaxation which was ordered in 1963 and 1965 was not warranted by the old rule 14 as it stood at that time. The question however remains whether the appellants could possibly succeed in their appeal before us for that reason. While examining this aspect of the matter we shall have regard to the requirement of rule 6, as it stood before its amendment on January 28, 1969 and disregard the relaxation orders of 1963 and 1965 as they were not warranted by the provisions of that rule.

And as that rule made a clear provision that only those Inspectors would be eligible for promotion who had got six years continuous service as Inspectors, it would follow that the appellants were not eligible for promotion until May 21, 1969 as they had been appointed only -~ _on May 21, 1963. In other words, they were not eligible for inclusion in list 'G', which was prepared under sub-rule (2) of rule 6, as it was prepared in 1966 on the basis of the State Government's recommendations dated January 7, 1966, and September 29, 1966. It may be recalled that the State Government have categorically stated that they did not send any list thereafter, for the Commission's approval. We have made a reference to the facts and circumstances in which the Commission did not find it possible to finalise list 'G' until 1970, but the fact remains that the list contained names upto the year 1966.

In other words, the final list 'G' related only to the year 1966, and as the appellants had not put in even four years of service by then, what to say of six years service in terms of clause (a) of the proviso to sub-rule (1) of rule 6 of the Rules, their names could not possibly be included in that list. When that was so, tlley could not have been promoted as Deputy Superintendent of Police because that was the ~asic requirement o'f sub-rule (2) of that mle. We have made a reference to the circumstances in which the n State Government was driven to the necessity of making some ad hoc .j,t. .. or temporary promotions because of the extraordinary situation which had developed on the border of the State, and as it was the Public Service Commission which delayed the finalisation of list 'G', it can~ not be said that the ad hoc appointments of the respondents were wilfully made in derogation of the requirement of the Rules, or were meant to run down the appellants.

In fact, as has been explained above, the appellants were, in any view of the matter, not eligible for promotion as their names were not included in list 'G' as it emerged from the Public Service Commission in 1970. The High Cour~ therefore cannot be blamed if it took the view that as the appellants had not qualified for promotion when list 'G' was drawn up by the State Government in 1966, they could not succeed in their claim in the writ petition. Their names did not appear in list 'G' which was approved by the Commission in 1970, whereas the names of rc:spondents Nos. 4 to 3 7 appeared in it and it is not in dispute that they had all completed 6 years' continuous service much before the appellants. The appellants have not therefore been able to show that they had any legal right for promotion before the respondents. There is thus no force in the arguments which have been advanced by the learned counsel for the appellants and the appeal is dismissed.

In the circumstances of the case, we shall leave the parties to bear their own costs. N.V.K. Appeal dismissed.