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Monday, May 19, 2014

Biding Nature of judgments of Apex court - two judgments one is Apex court judgment and later is constitution Bench judgment - not overruled the earlier judgement - Apex court held that 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.= M.S.Sandhu & Anr. Etc. …….Appellants Vs. State of Punjab & Ors. Etc. …….Respondents= 2014 ( May. Part ) http://judis.nic.in/supremecourt/filename=41521

  Biding Nature of judgments of Apex court -  two judgments  one is Apex court judgment and  later is constitution Bench judgment  - not overruled the earlier judgement - Apex court held that 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.=

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.  the dispute 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.   =  

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.

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.
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 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.=

  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.

2014 ( May. Part ) http://judis.nic.in/supremecourt/filename=41521
SURINDER SINGH NIJJAR, A.K. SIKRI
                                             [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.   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 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;

      (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
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 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
         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 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.

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.”



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 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
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 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 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.

      (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 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 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 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.

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 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 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  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.

      (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.”




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 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  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  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.

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 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 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 [pic]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.

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. 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  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  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 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.

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 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
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)


                                        ………………………………….J.
                                        (A.K.Sikri)
   New Delhi,
   Dated:  May 07, 2014


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