Kamaldeep Goyal & Ors. v. State of Haryana & Ors.

governed by the date of confirmation. Probation period of two years for the members of service has also been provided. The issue with regard to the interpretation of Rules 6, 8, 9 and 10 of the 1959 Rules was considered by the Supreme Court in the case of Paramjit Singh-I, wherein it was held that the quota system mentioned in Rule 6 would operate at both the stages of initial recruitment as well as confirmation and the Quota Rule is inextricably intertwined with the CWP No. 5270 of 2011 3 seniority rule and delinking the same would render the seniority rule wholly un-reasonable and would be violative of Article 14 of the Constitution of India and, therefore, by harmoniously interpreting the Rules, it was held that as the recruitment is from two sources and the seniority in the cadre is to be determined according to the date of confirmation, to accord utmost fair treatment, a rotational system has to be followed by giving confirmation. The quota rule would apply to vacancies and the recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. An application for clarification was filed in this case and the position was further clarified by the Hon'ble Supreme Court vide its judgment dated 30.09.1982 (Paramjit Singh-II) where the earlier position was reiterated. Placing reliance on these, petitioners, who are direct recruits, contend that the promotees have been appointed to the service in far excess than their quota as provided under the Rules whereas the direct recruitment of DSPs has not been made regularly. 29 DSPs were directly recruited between 1966 and 2003, 15 DSPs in 2004, out of which only 11 joined and 24 DSPs were directly recruited in the year 2011. From the year 1990 to 2003, the vacancy posts have been depicted year-wise which come to 213. Keeping in view the 1959 Rules and 2002 Rules, out of these 213 vacancies, 43 vacancies were required to be filled by direct quota but only 29 DSPs were recruited from direct quota during this period. On this basis, it has been contended that all the DSPs including private respondents figuring beyond 84 as per the gradation list on 05.02.2003, the date when advertisement for direct recruitment of DSP's was issued, have no right of appointment by promotion to the post of DSP on account of non- availability of promotee quota vacancies for them, which shows that the CWP No. 5270 of 2011 4 promotees have been appointed in excess of their quota. As per the judgment of the Supreme Court, these promotees, which are beyond the permissible quota, their induction into service is violative of the Rules and the principle laid down by the Supreme Court in Paramjit Singh’s case (supra) with regard to the principle of Rota and Quota which the ratio under the 1959 Rules as 4:1 (promotees:direct recruits) and thus, have to be pushed down to the available slot within their quota i.e. they would fall below the petitioners who are direct recruits in the seniority list. Under Rule 6 of 2002 Rules, this ratio would now be 7:3 (promotees:direct-2:1, 2:1, 3:1). Since the provisions of the Rule are parametria, the principle as laid down by the Supreme Court in Paramjit Singh's case (supra) will have full application which has been violated by the respondents while passing the impugned orders of confirmation of the private respondents, which would mean that they would be senior to the petitioners in service, which is not sustainable. Learned senior counsel for the petitioners has argued the case primarily basing his arguments on the two judgments passed by the Supreme Court in case of Paramjit Singh (supra) and has prayed that the writ petition be allowed by declaring the petitioners senior to the private respondents and their entitlement to the consequential benefits. Counsel for the petitioners has placed reliance upon a Division Bench judgment of this Court in CWP No. 12206 of 2005 titled as Gurpreet Singh Bhullar vs. State of Punjab and others, decided on 10.04.2008, wherein this Court, relying upon the judgment in the case of Paramjit Singh (supra), had again reiterated the same position with reference to the 1959 Rules directing the State of Punjab to recast the seniority by following the judgment of the Supreme Court and implementing the statement made by the counsel who had appeared for the State of Punjab in the Hon'ble Supreme Court in CWP No. 5270 of 2011 5 Paramjit Singh-II case. Reliance has also been placed upon the decision of this Court in the Review Application No. 24 of 2009 in CWP No. 12206 of 2005 titled as Gurpreet Singh Bhullar vs. State of Punjab and others, decided on 24.04.2009, wherein the Review Application preferred stands rejected by holding that although the Hon'ble Supreme Court in subsequent judgments including in a Constitution Bench considered the judgment of the Supreme Court in Paramjit Singh's case (supra) and had taken a different view but in the light of fact that the Rules, which were subject matter of interpretation before the Supreme Court were the same as before the Division Bench, it is binding on the State Government, especially when the counsel for the State of Punjab had made a statement before the Supreme Court that the earlier judgment in the case of Paramjit Singh-II is being strictly implemented according to the Quota Rule. Respondents have taken a stand in the written statement that according to Rule 6 (i) of the 1959 Rules, 80% posts of DSPs were to be filled up by promotion from the rank of Inspector and 20% by way of direct recruitment, whereas under the 2002 Rules, which came into force on

18.11.2002, Rule 6 provides 70% posts of DSPs to be filled by promotion and 30% by way of direct recruitment on the availability of vacancies under their respective quotas. As per the record, on 18.11.2002 when the 2002 Rules came into force, only 15 posts of DSPs under the direct quota were vacant. Accordingly, requisition of 15 posts of direct DSPs was sent to the State Government by the office of the Director General of Police, Haryana on 18.11.2002 for filling up the posts of DSPs against direct quota as per the criteria fixed under the 2002 Rules. No inspector has been promoted to the rank of DSP against the post meant for direct quota and confirmation of the petitioners as well as respondents has been made against their separate quota respectively. The department maintains separate quota CWP No. 5270 of 2011 6 meant for direct and promotee officers as per the 2002 Rules and the recruitment as well as confirmation has been made against their separate quota. Thus, the petitioners have no right to claim seniority prior to joining their services even though the vacancies were available for direct quota prior to their joining. They can claim seniority only after joining the service and not prior to the date when they were born in the cadre. According to Rule 12 of the 2002 Rules, seniority of the members of the service is to be determined by the date of confirmation in the service. Probation of members of the service is provided under Rule 10 of the 2002 Rules, which states that members of the service shall be on probation of two years. Mere completion of probation would not entitle a member of service for confirmation and confirmation in service shall be made on the basis of seniority and availability of vacant permanent posts. Although recruitment of the direct and promotees is made against their separate quota, however, seniority of direct recruits and promotee DSPs is joint as per their length of service according to the Rules. The department has maintained the ratio of direct and promotee DSPs as per the Rules at the relevant time. Petitioners joined as Direct DSPs on 06.01.2004 against the direct quota vacancies and were confirmed in the rank of DSP on completion of two years probation period i.e. 06.01.2006 vide order dated 19.09.2006 whereas respondents No. 3 to 19 had already been promoted to the rank of DSP after completion of six years of service as Inspector against promotion quota vacancies between the year 2000 and 2003 and confirmed in the rank of DSP on the availability of vacancy against promotion quota prior to the petitioners. No promotee DSP was confirmed against direct quota posts and no post of direct quota of DSP was vacant during the years 1990 to 2001. Counsel for the respondents have made their submissions according to the above pleadings. CWP No. 5270 of 2011 7 Counsel for the State has placed reliance upon a judgment of the Supreme Court in the case of A.K.Subraman and others vs. Union of India and others, 1975 AIR (SC) 483, to contend that Quota Rule is to be applied at the stage of promotion and not at the stage of confirmation. His contention is that as per the 1959 Rules, appointment to the service was to be made in the quota fixed under Rule 6 thereof and, therefore, the Hon'ble Supreme Court, while taking into consideration Rules 3, 6, 8 and 10 of the 1959 Rules with an intention to bring the Confirmation Rule in consonance with the Article 14 of the Constitution, proceeded to hold that the seniority in the cadre is to be determined according to the date of confirmation and rotational system has to be followed while giving confirmation and the Quota Rule would apply to the vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to their quota. But now under the 2002 Rules, new Rule 6 deals with the post in the service and not vacancy which would mean that in the cadre, recruitment is to be made to the post from two different sources i.e. 70% by promotion from the rank of Inspector and 30% by direct recruitment meaning thereby 70% posts would fall to the promotee quota and 30% to the direct recruits of the total cadre strength. With this change in the Rule 6, there is also change in Rule 10 dealing with probation period which now provides that mere completion of probation period will not entitle a member for confirmation as it would require availability of vacant posts of the quota against which the person stood appointed, from time to time on the basis of seniority. Thus, seniority of the members of the service shall be determined by the date of confirmation in the service in their own quota. Reliance has also been placed by the counsel on a Division Bench judgment of this Court in CWP No. 4969 of 2011 titled as Sunila Grewal and others vs. CWP No. 5270 of 2011 8 State of Haryana and others, decided on 19.12.2011. It has further been contended that counting of seniority can only be made from the date an employee is borne on the cadre and he cannot have any claim to seniority over others who are already in the cadre. In support of this contention, reliance has been placed upon the judgment of the Supreme Court in the case of Ashok Kumar Shrivastava and others vs. Ram Lal and others, 2008 (3) SCC 148 and State of Uttaranchal and another vs. Dinesh Kumar Sharma, 2007 (1) SCC 683. On this basis, it has been contended that the present writ petition carries no merit and deserves to be dismissed. I have heard the counsel for the parties and have gone through the records of the case. The facts being not in dispute, the Court can move on directly to the issue involved in the present case. The primary reliance of the petitioners in the present case claiming the relief of declaring them senior to the private respondents is on the two judgments of the Supreme Court in Paramjit Singh's case (supra). The said judgment was rendered by the Supreme Court while interpreting the 1959 Rules. Thereafter, in the State of Haryana the 2002 Rules have come into force by repeal of 1959 Rules. The issuance of the advertisement dated 05.02.2003, in pursuance of which the petitioners, after selection by the Haryana Public Service Commission, stood appointed vide order dated 06.01.2004 is after the coming into force of the 2002 Rules w.e.f. 18.11.2002. Therefore the case in hand has to be decided under the 2002 Rules. The Rules, which were under consideration before the Supreme Court in Paramjit Singh' case (supra) were Rules 3, 6, 8 and 10 of the 1959 Rules and the corresponding 2002 Rules are Rules 3, 6, 10 and 12 respectively. Comparative table of these rules read as follows:- CWP No. 5270 of 2011 9 Punjab Police Rules, 1959 Haryana Police Service Rule, 2002 “3. .- The Service Number and character of posts shall comprise of the posts specified in Appendix ‘A’ to these rules; Provided that nothing in these rules shall affect the right of Government to make additions to or reductions in the number of such posts, whether permanently or temporarily.

3. Number and Character of posts.- The service shall comprise of the posts specified in Appendix 'A' to these rules; Provided that nothing in these rules shall affect the inherent right of Government to make additions to, or reductions, in the number of such posts or create new posts with different designations and scales of pay either permanently or temporarily. (i) Recruitment to the

6. Method of recruitment- Service shall be made.- (i) Eighty per cent by promotion from the rank of Inspector, and twenty per cent by direct appointment: Provided that only those inspectors will be eligible for promotion who- (a) in the case of Inspectors (both promoted from subordinate rank and directly recruited) have got six years continuous service: (officiating as well as substantive) in the rank of Inspector; and (b) in case they are Prosecuting Inspectors, have got eight years’ continuous service (both officiating and substantive ) in the rank of Prosecuting Inspector. (2) Appointments by promotion shall be made by the Government 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. The names in this list prepared at one time shall be arranged according to their inter se seniority. This list will be maintained in two parts; Part-I (for officers from the Executive line) and Part-II (for officers from the prosecution line). 3. Direct appointment to the Service shall be made on the result of a competitive examination conducted by the commission. The syllabus and rules relating to examination will be framed by the Government in consultation with Commission. The examination will include a viva voce. Only those candidates will be interviewed for the viva voce test who obtain not less than the minimum qualifying marks fixed by the Commission on the written examination. The Inspector General of Police, Punjab, will be present at the interview and will be entitled to put questions to the candidates and to express his views to the Commission. A candidate’s position shall be determined by adding the marks obtained by him in the written examination and viva voce test. Provided that other things being equal, preference will be given to a candidate who has worked for the cause of national independence or has rendered some outstanding social or public service.

8. Probation of members of Service (a) Members of the Service shall be on probation for two years, which shall include the period of training at the Police Training School, Phillaur, and in the district’s and in the case of members recruited by promotion the Government may by a special order in each, case permit periods of officiating appointment to the service to count towards the period of probation. (b) The services of a member recruited by direct

6. Method of recruitment-(1) Recruitment to the post of Deputy Superintendent of Police shall be made 70 percent by promotion from the rank of Inspector and 30 percent by direct recruitment; provided only those Inspectors will be eligible for promotion who (both promoted from Subordinate ranks and directly recruited) have got six years regular service (ad hoc service will not be counted for the purpose of experience). (2) Appointment by promotion shall be made by the Government from the 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 the Government in consultation with the Commission. The names in this list prepared at one time shall be arranged according to their inter se seniority. (3) 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. (4) However the candidates applying for Common/Combined Examination conducted by the Commission for recruitment to the Haryana Civil Services (Executive Branch) shall be asked to clearly specify whether they are applying for recruitment to Haryana Police Service in view of special requirement of age, physique, aptitude etc.

10. Probation of members of Service: (a) Members of the Service shall be on probation for 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 to 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 CWP No. 5270 of 2011 10 Punjab Police Service Rules, 1959 Haryana Police Service Rules, 2002 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 or probation, as unfit for appointment. Provided that the Government, if it deems fit, extent the period of probation by not more than one year. (c) The Inspector General of Police, Punjab, may require any member of the service on probation appointed by promotion from the rank of an Inspector to under go a special course of training to pass the prescribed examination in any subject or subject include compulsory language in which his qualification may be defective. Any such probationer failing to pass the examination prescribed for him or being unfavorably reported on may be reverted to his substantive rank of Inspector. The Seniority of members of Service.- 10. 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 a member appointed otherwise. (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 promotion list ‘G’.” be made on the basis of seniority and availability of vacant permanent posts. (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 for appointment. Provided that the Government, if it deems fit, extend the period of probation by not more than one year. (c) The Inspector General of Police, Haryana, may require any member of the service on probation appointed by promotion from the rank of an Inspector to undergo a special course of training to pass the prescribed examination in any subject or subjects including compulsory language in which his qualification may be defective. Any such probationer failing to pass the examination prescribed for him or being unfavorably reported on can be reverted to his substantive rank of Inspector.

12. Seniority of members of Service.- 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 a member appointed otherwise. (ii) in the case of members who were appointed by direct appointment, the seniority shall be determined in accordance with their position in Common/Combined Examination/recommendations of 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 'G'. On going through the above rules, it appears that there is no material difference between 1959 Rules and 2002 Rules as far as Rule 3, which deals with number and character of posts and Rule 10 and its corresponding Rule12 of the respective Rules, which deal with seniority of members of the service, are concerned. The changes, if any, are cosmetic and do not have any impact on the applicability, effect and operation of these Rules. CWP No. 5270 of 2011 11 However, the same is not true as far as Rule 6, which deals with the method of recruitment under the 1959 Rules and 2002 Rules as also Rule 8 and its corresponding comparative Rule 10 of the respective Rules, which deal with the probation of members of the service. Rule 6 under the 1959 Rules, as interpreted by the Supreme Court in the case of Paramjit Singh (supra), dealt with the vacancies whereas Rule 6 of the 2002 Rules deals with the posts which has a drastic impact and depicts the intention with which the 2002 Rules have been brought into force. Apart from changing the share of the promotees and the direct recruits to the posts, Rule 6 of the 2002 Rules talk about the recruitment to the post of Deputy Superintendent of Police whereas the 1959 Rules dealt with recruitment to the service. When this Rule 6 is read in conjunction with Rule 10 of the 2002 Rules where again a change has been brought about by curtailing the right of confirmation on mere completion of probation period by stating that it shall be on the basis of seniority and availability of vacant permanent post, this position stands further fortified. Rule 6 of the 2002 Rules provides that the recruitment to the post of Deputy Superintendent of Police shall be made 70% by promotion from the rank of Inspector and 30% by direct recruitment, thus fixing a quota for the two different sources. As and when a post is available for appointment from a particular source, the same can be filled up in accordance with Rule 6 of the 2002 Rules and in some exigencies, if for recruitment purposes the said quota is exceeded unless a vacant permanent post is available from that source falling in the quota, the said incumbent cannot be confirmed. Confirmation in service has been stated to be made on the basis of seniority. Seniority for the members of service has been provided under CWP No. 5270 of 2011 12 rule 12 of the 2002 Rules, according to which, the date of confirmation in service shall determine the seniority. In the light of the above Rules, it can be concluded that recruitment to the post of Deputy Superintendent of Police has to be made as per the quota prescribed under Rule 6 i.e. 70% by promotion from the rank of Inspector and 30% by direct recruitment. Confirmation in service shall be made on the basis of seniority and availability of a vacant permanent post falling in the quota to which the incumbent belongs and mere completion of the probation would not entitle a member of the service for confirmation. Thus, as per the now applicable 2002 Rules, quota rule is applicable but there is nothing in the rules which would provide for the rule of rota, which was made applicable by the Supreme Court while interpreting harmoniously the 1959 Rules in Paramjit Singh's case (supra). The said judgment, therefore, would not be applicable to the case in hand. Further, Paramjit Singh's case (supra) came up for consideration before a Constitution Bench of the Supreme Court in the case of B.S.Yadav and others vs. State of Haryana and others, 1980 (Supp) Supreme Court Cases 524, where in para-71 of the said judgment, it was clarified that the said judgment 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. It was further said that it did not mean nor the Court was laying down as a principle that the rules of quota and rota cannot co- exist. While referring to the judgment passed by the Supreme Court in N.K.Chauhan vs. State of Gujarat, (1977) 1 SCC 308, it was held that the quota rule does not, inevitably, invoke the rota rule. In para-73, it was held CWP No. 5270 of 2011 13 as follows:- “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 as to 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 interpreation 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 CWP No. 5270 of 2011 14 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, 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. xxx.” In view of the above judgment of the Supreme Court and the coming into force of 2002 Rules, it can safely be said that although quota has been provided at the stage of recruitment and at the stage of confirmation but the rule of rota would not be applicable. In the case of Suraj Parkash Gupta and others vs. State of J&K and others, (2000) 7 Supreme Court Cases 561, the Hon'ble Supreme Court, while dealing with the contention as has been raised in the present petition by the direct recruits that although no expressed rota rule has been provided but the same can be implied, stands repelled. Reference, at this stage, can be made to the judgment of the Supreme Court in the case of A.N.Pathak and others vs. Secretary to the Government, Ministry of Defence and another, 1987 (Supp) Supreme Court Cases 763, wherein the Supreme Court was dealing with a situation, as has been projected by the petitioners in the present case, where direct CWP No. 5270 of 2011 15 recruitment was delayed by the Government for one reason or the other resulting in promotion of the incumbents as per the statutory Rules. The Supreme Court, under those circumstances, held that the promotees come into service, not by any fortuitous circumstances but they form an integral part of the regular cadre entitled to all benefits by the length of their service when the rules enabling the authorities to fill in vacancies for direct recruits as and when recruitment is made if the same is not adhered to and the delay occurs in making appointment by direct recruitments. This should not visit the promotees with adverse consequences, denying them the benefit of their service. This preposition and observations support the stand of the respondents and thus deserves to be accepted. Petitioners have sought quashing of Annexure P-8 (colly.), which primarily is based on the assertion that the quota and rota rule is applicable to the 2002 Rules, which contention has not been acceped by this Court, as mentioned above. It, however, requires to be highlighted here that as a general principle of service jurisprudence, no person, who is borne on the cadre, can claim seniority over others who are already on the cadre. In support of the above principle, reference can be made to the judgments of the Supreme Court in the cases of Ashok Kumar Shrivastava vs. Ram Lal, 2008 (3) SCC 148, Nani Sha and others vs. State of Arunachal Pradesh and others, 2007 AIR (SC) 2356, State of Urraranchal vs. Dinesh Kumar Sharma, 2007 (1) SCC 683. On this ground also, the claim of the petitioners for quashing Annexure P-8 (colly.) cannot sustain. Reliance has been placed by the counsel for the petitioners on the Division Bench judgment of this Court in Gurpreet Singh Bhullar's CWP No. 5270 of 2011 16 case (supra) but the same would not be of any help to the claim of the petitioners as the said judgment is based upon the judgment of the Supreme Court in Paramjit Singh'case (supra) interpreting the 1959 Rules, which has already been held to be not applicable to the case in hand in the light of the repeal of the 1959 Rules and coming into force of the 2002 Rules w.e.f. 18.11.2002 in persuance and accordance whereof the advertisement dated 05.02.2003 was issued which lead to selection of the petitioners resulting in issuance of appointment letters as DSPs' on

06.01.2004. In view of the above, finding no merit in the present petition, the same stands dismissed. July 10, 2012 (AUGUSTINE GEORGE MASIH) JUDGE CWP No. 5270 of 2011 17