TaxTMI 
TaxTMI 
2014 (5) TMI 1120
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.... 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 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 recruitm....
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....irect 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 confirmed on sat....
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....mers 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 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. Af....
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....intment 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 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....
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.... 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 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 ....
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....peals 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 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 : "Recruitm....
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....ies. 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....
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.... 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 Cou....
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....wever, 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. (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 prom....
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....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 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 ma....
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....urther 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. 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 s....
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....a 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,....
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....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 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 ....
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....e 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. 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 ine....