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TMI Blog1979 (3) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... six others including the present appellants, praying for a direction to confirm them in Punjab Police Service. Respondents 1 and 2 alleged that they were promotees to the cadre of Deputy Superintendent of Police of February, 1961 and January, 1961 respectively having been brought on 'G' List by an order dated 23rd February 1961 of the State of Punjab and the Inspector General of Police, Punjab, respondents 3 and 4 herein. Appellants and respondents 5 to 8 were recruited to the same cadre by direct appointment commencing from May, 1961 to May, 1965. The grievance of respondents 1 and 2 in the petition filed by them was that recruitment to Punjab Police Service is made from two sources, namely, 80% by promotion and 20% by direct appointment but this quota rule is not adhered to at the time of confirmation in the service and, therefore, even though they were members of the service since a period earlier to appellants and respondents 5 to 8, they were not confirmed though the latter were confirmed and as seniority in the cadre of Deputy Superintendent of Police is reckoned under rule 10 according to date of confirmation, the failure to confirm them in the post available to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h before which the aforementioned two Letters Patent Appeals came up for hearing The Court by a common judgment disposed of all the three matters. Both the Letters Patent Appeals were dismissed and Civil Writ No. 6781/74 by Ram Rakha was allowed, but the direction given by the learned single Judge was modified to the extent that the State of Punjab and Inspector General of Police, Punjab, should consider the cases of writ petitioners 1 and 2 for confirmation and to fix their seniority afresh according to the quota rule. The present two appeals arise from this common judgment preferred by the direct recruits. It may be mentioned that neither the State of Punjab nor the Inspector General of Police, Punjab, have questioned the decision of the High Court though at the hearing of these appeals Mr. R. S. Sodhi appeared for the State of Punjab and supported the contentions canvassed on behalf of the appellants. As the main controversy turns upon the construction of rules 3, 6, 8 and 10 of the Service Rules it would be advantageous to get a clear picture of the relevant rules. The Service Rules provide for constitution, recruitment, qualifications for being members of the service, proba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken. The rules provide for constitution of Service and the Service shall comprise of the posts specified in Appendix 'A' to the rules. At the relevant time the sanctioned strength of the Service was 66 posts. There is a proviso to rule 3 which enables the Government to make additions to or reductions in the number of such posts whether permanently or temporarily. Rule 6 which provides for method of recruitment in terms says that recruitment to the Service shall be made: (i) 80% by promotion from the rank of Inspectors; and (ii) 20% by direct appointment. Thus there is recruitment to the Service from two independent sources, viz., promotion and direct recruitment. Once recruitment to any given cadre is from two sources obviously after recruitment is made from two sources they have to be integrated into one cadre which also necessitates providing for their inter se seniority. Rule 10 provides that the seniority of the members of the Service shall be determined by the date of confirmation in the Service. There is a proviso to rule 10 which is not material for the present discussion. On behalf of the promotees it was contended that if seniority is to be reckoned from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bation would be the date of his confirmation. This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation he should be deemed to continue in his post as a probationer only in the absence of any communication to the contrary in the original order of appointment or promotion or the Service Rules. In such a case an express order of confirmation is necessary to give the employee a substantive right to the post and from the mere fact that he is allowed to continue in the post after the expiry of the specific period of probation it is not possible to hold that he should be deemed to have been confirmed. This view was taken in Sukhbans Singh v. State of Punjab(1); G. S. Ramaswamy v. The Inspector General of Police, Mysore State, Bangalore(2); and State of U. P. v. Akbar Ali(3). This view was founded up on the relevant rules which permitted extension of the probationary period for an indefinite time. In fact there was no negative rule in these cases prohibiting the Government from extending the probationary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of confirmation and if promotees are not confirmed for years together in some cases, to wit, respondents 1 and 2 who were promotees of February and January, 1961 respectively, were not confirmed till they filed the writ petition in 1972 while direct recruits who came much later got confirmed and ipso facto became senior to the promotees, if quota rule is only applied, as is contended on behalf of the appellants and the State of Punjab, at the time of initial recruitment, this undesirable result is wholly unavoidable. Mr. G. L. Sanghi learned counsel for the interveners and the promotees contended that the framers of the rule could not have intended to accord such a discriminatory treatment to the promotees in whose favour the quota is as big as 80% of the total strength. Where recruitment to a cadre is from two sources and the Service Rules prescribe quota for recruitment for both sources a question would always arise whether the quota rule would apply at the initial stage of recruitment or also at the stage of confirmation. Ordinarily, if quota is prescribed for recruitment to a cadre, the quota rule will have to be observed at the recruitment stage. The quota would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than 11 years of officiating service and there it not the slightest suggestion that the services of respondents 1 and 2 were not satisfactory and that the confirmation was denied on any such ground thereby directly affecting their place in the seniority list. Such an approach would be wholly unreasonable. Now, if the other view is 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 save from the vice of unreasonableness. Is such a construction possible ? One need not 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 operative 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced 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 breakdown the moment 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 Coutindo's case (supra) 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. It was, however, cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and enforced at the time of initial recruitment re-affirmed the observation in Mervyn Coutindo's case (supra) that there is no inherent invalidity in introduction of quota system and to work it out by rule of rotation. When it is said that the confirmation shall follow the quota rule it is in terms being stated that the rotational system should be followed at the time of confirmation so as to make quota rule effective and seniority rule reasonable because all the three are interlinked. Undoubtedly, the decision in Subraman's case was in terms affirmed in Patwardhan's case (supra) but the scheme of rules in Patwardhan's case (supra) was more or less similar to the one that was examined by this Court in Subraman's case. Mr. Sanghi also urged that the language of Rule 8(a) would unmistakably show that members of Service recruited from either source would be on probation for a period of two years and this would imply that promotees would also be on probation for a period of two years. Approaching the matter from this angle he further urged that proviso to rule 8(b) which permits extension of probation only by one year without expressly referring to direct recruit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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