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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.”

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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

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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

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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

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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.

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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

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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

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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.

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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.

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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

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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

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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

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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.

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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

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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

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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)

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………………………………….J. (A.K.Sikri)

New Delhi, Dated:  May 07, 2014

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