Sukh Ram Thakur vs State of H.P. and Others

V.P. Gupta, J.—These three Letters Patent Appeals are directed against the judgment dated April 10, 1981, passed by a learned single Judge in C.W.P. No. 280 of 1978.

Letters Patent Appeal No. 18 of 1981 has been filed by Shri Sukh Ram Thakur (hereinafter the pstitioner). Letters Patent Appeal No. 20 of 1981 has been filed by the State of Himachal Pradesh and Inspector General of Police, Himachal Pradesh (hereinafter Respondents Nos. 1 and 2). Letters patent Appeal No. 21 of 1981 has been filed by S/Shrl Vijay Pal Singh and Dharam Pal (hereinafter Respondent Nos. 12 and 17).

Briefly the facts are that Shri Sukh Ram Thakur (Petitioner) filed a C.W.P. No. 280 of 1978 challenging the seniority list and claiming that he was senior to Respondents Nos. 3 to 17 and that the order dated 29-7-1978 passed by Respondent No. 2 be quashed. He also claimed that Respondents Nos. 1 and 2 be issued a writ, of mandamus to treat the Petitioner confirmed as Deputy Superintendent of Police with effect from 3-5-1970 and treat the Respondents Nos. 3 to 17 junior to the Petitioner.

Briefly the allegations are that the Petitioner joined the police department as an Assistant Sub-InspectoT of Police (A.S.I.) on 8-6-1943 in the erstwhile Princely State of Bilas-pur (now Himachal Pradesh ) and was promoted to the rank of Sub-Inspector of Police (S.I.) on March 14, 1948. The princely State of Bilaspur was merged in Himachal Pradesh in the year 1954 and he was promoted to the rank of an Inspector of Police on 20-12-1959 and was confirmed as such on 1-5-1966 (Annexure A). A provisional joint seniority list (Annexure B-1) of Inspectors as it stood on 1-11-1966 was circulated in September 1969 in which the seniority of the Petitioner was reflected at serial No. 2. A final seniority list of Inspsctors (Anne-xure B-4) as it stood on 1-11-1966 was thereafter circulated on 9-12-1970 and the Petitioner�s seniority was again reflected at Serial No. 2. Aggrieved with this list, he mads a representation upon which he was asked to indicate names of the Inspectors who were placed senior to him in the integrated combined seniority list. In response to this the requisite information was given but his representation was hot considered and decided. He was promoted as Dy. S. P. on officiating basis vide orders dated 29-4-1968 (Annexure D), but subsequently this order was modified by a notification dated 25-7-1968 (Annexure D-l) and the promotion of the Petitioner to the post of Dy. S.P. was made purely on ad-hoc and provisional basis and subject to review as a result of the fixation of final inter se seniority of Inspectors of Police.

The Petitioner alleges that in 1968, the Delhi, Himachal Pradesh and Andeman and Nikobar Island Police Rules, 1965 (hereinafter the rules''of 1965) were in force and his appointment was made under these rules against a permanent vacancy of Dy. S.P. on substantive basis. In case, even if he had been appointed on probation under Rule 21 of 1965 rules, still his probationary period came to an end on. May 3, 1970 (after completion of a period of two years) when he acquired the status of a permanent Dy. S. P.

On and from January 25, 1971 the State of Himachal Pradesh was established by the State of Himachal Pradesh Act, 1970, (hereinafter the Act). u/s 40 of the Act, the ''Himachal Pradesh Police Service'' was constituted for the State of Himachal Pradesh and the Petitioner being ? permanent Dy. S.P. with effect from 3-5-1970, was to be absorbed as a Dy. S.P. in the State of Himachal Pradesh under the provisions of the Act. He was, however, informed by a letter dated 21-5-1973 (Annexure F) that his case for confirmation in the rank of Dy. S.P. would be considered in due course. It is alleged that his name alongjwith the names of Respondents Nos. 4 to 10 were sent to Himachal Pradesh Public Service Commission for being considered for the post of Dy. S.P. in accordance with the Himachal Pradesh Police Service Rules, 1973 (hereinafter the rules of 1973) on the assumption that he was not a confirmed Dy.S. P. This action of Respondent Nos. 1 and 2 was illegal and wrong becauss the Petitioner was confirmed Dy. S.P. from 1970. In pursuance to the recommendations of the Himachal Pradesh Public Service Commission, the Petitioner was appointed and confirmed as Dy. S.P. with effect from March 4, 1974 (Annexure H) while Respondents Nos. 4 to 10 were confirmed as Dy. S.Ps. with effect from 12-2-1974 (Annexures ,G and G/l), although Respondents Nos. 4 to 10 were junior to the Petitioner. It is alleged that even according to the rules of 1973, the departmental promotion committee had wrongly treated the Petitioner inferior to the Respondents Nos. 4 to 10. The Petitioner filed representations but the same were rejected in July, 1974 (Annexure J). He again represented, but he die-not receive any reply to such representations.

A tentative seniority list was circulated on 31-3-1977 of the Himachal Pradesh Police Officers (Annexure N/1). The Petitioner�s name was shown at serial No. 31 while Respondents Nos. 3 to 17 were shown senior to him. He again represented against this tentative seniority list, but was informed that he should not have any grievance because his promotion to the post of Dy. S. P. was in order.

It is further alleged that Respondent No. 3 Shri S. B. Dogra, joined the post of Dy. S.P. on 8-9-1975, but he was given seniority from 1964 on the basis of the rules known as "Demobilized Armed forces Personnel (Reservation of Vacancies in the Himachal Pradesh State Non-Technical Services) Rules, 1972 (hereinafter the rules of 1972). Respondent No. 3 after his release from the Army was absorbed in I.T.B.P. and thereafter joined as Dy. S.P. on 8-9-1975 on the basis of the wrong interpretation of the rules of 1972. Respondent No. 3 could not be given benefit under the aforesaid rules and could not be considered to have joined the post in 1964. The seniority list (Annexure N/1) is to be quashed.

Subsequently, during the pendancy of the writ petition, a final seniority list dated 27-2-1979 (Annexure Q) was issued and the Petitioner, therefore, amended the writ petition claiming that he was senior to the Respondents and that this list (Annexure Q) should be quashed.

Reply to the petition was filed on behalf of the Respondents and the Respondents denied the various allegations made by the Petitioner and contested the claim of the Petitioner.

A learned single Judge, by his judgment dated 10-4-1981, held that the Petitioner was not a member of the erstwhile DHANI Police Service under the 1965 rules because he was not appointed to DHANI Police Service in a substantive capacity to either grade of service or on probation to grade II service, and was not allocated to Himachal Pradesh Police Service u/s 40(4) of the Act. It was further held that under the 1973 rules, the Petitioner ranked junior to Respondents Nos. 4, 5, 7 and 10 and the seniority of Respondent No. 3 (S. B. Dogra) had rightly been fixed from the ye?r 1964 because the rules of 1972 were applicable to him.

The learned single Judge, however, found that vis-a vis the direct recruits, that is, Respondents Nos. 11 to 15 and 17. the Petitioner must be shown to be senior because he was appointed and confirmed in service earlier to these Respondents. As a result of these various findings, the writ petition was allowed partly and the seniority list, insofar as it reflected the inter se seniority of the Petitioner and Respondents Nos. 4, 5, 7,10,11 to 15 and 17 was quashed.

The Respondents Nos. 1 and 2 were given a direction to re-constitute a fresh seniority list ignoring the rotation of post between the direct recruits and the promotees as enjoined in Rule 14 of 1973 rules.

We have heard the learned Counsel for the parties in all the three appeals.

Shri K. D. Sood, the learned Counsel for the Petitioner, contended that the Petitioner was a member of the erstwhile DHANI Police Service and was allocated u/s 40(4) of the Act. It was further contended that the Petitioner was senior to other persons and was entitled to all the benefits and should have deemed to be promoted to the post of Dy. S.P. from 1968. The learned single Judge did not appreciate the various facts and circumstances as well as the relevant provisions in the various rules and the Act correctly. It was also contended that Respondent No. 3 could not take the benefit of 1972 rules.

The learned Deputy Advocate General, appearing on behalf of Respondents Nos. 1 and 2, contended that the seniority lists (Annexures N/1 and Q) were correctly prepared and the learned single Judge was wrong in quashing the seniority list (Annexure Q) and directing Respondents Nos. 1 and 2 to prepare a fresh seniority list ignoring the rotation system between the direct recruits and the promotees. It was contended that the benefit of 1972 rules could be given to Respondent No. 3, who was absorbed in the post of Dy. S.P. under 1972 rules.

Shri H.K. Bhardwaj, the learned Counsel for Respondent No. 3, contended that Respondent No. 3 was rightly given the benefit of 1972 rules and his seniority was rightly fixed from the year 1964.

Shri P. A. Sharma, the learned Counsel for Respondent No. 5 supported the judgment of the learned single Judge.

Shri Kedarishwar, the learned Counsel for Respondents Nos. 12 and 17, contended that the seniority list (Annexure Q) should not h?ve been ordered to be quashed and the rotation system should have been followed as is envisaged by a joint reading of Rules 6, 7, 13, 14 and 18 of 1973 rules. It was contended that the Petitioner should not have been allowed any relief.

We have considered the contentions of the learned Counsel for the parties and have also gone through the records of the case.

The Petitioner was inducted in the police service of erstwhile Princely State of Bilaspur in June 1943 as an A.S.I, and was promoted as S.I. in March 1948. The Princely State of Bilaspur was merged in Himachal Pradesh in the year 1954 and the Petitioner was promoted to the post of Inspector of Police on 20-12 1959 as alleged in the petition. He was confirmed as such on 1-5-1966.

The 1965 rules came into force from 1-12-1965 and were applicable to Himachal Pradesh Police Service personnel. In Rule 2 of these rules, the relevant definitions are as follows:

Definitions.-In these rules unless the context otherwise requires:

(a) x x x x x x

(b) x x x x x x

(c) ''duty post'' means any post specified in the schedule and includes a temporary post carrying the same designation as any of the posts specified in the schedule and the scale of pay of which is identical to that attached to Grade II of the Service and, any other temporary post declared as duty post by the Central Government;

(d) member of the Service'' means a person appointed in a substantive capacity to either grade of the Service and includes a person appointed on probation to grade II of the Service;

(e) ''Schedule'' means the schedule appended to these Rules;

(f) ''Service'' means the Delhi, Himachal Pradesh and Andeman Nicobar Islands Police Service.

In the schedule appended to these rules it is mentioned that the authorised permanent strength of the service and the nature of posts included under the Himachal Pradesh Administration are nine posts of Dy. S.P. The Petitioner was admittedly not holding the post of Dy. S. P. in the Himachal Pradesh Police Service on 1-12-1965 and could not be considered to be a member of the service as mentioned in Rule 2(d). He was an Inspector and his name was shown at serial No. 2 in the provisional joint seniority list of Inspectors as on 1-11-1966. He was promoted as Dy. S. P. on 29-4-1968 but by a subsequent letter dated 25-7-1968 his appointment was styled as ad hoc and provisional subject to review as a result of fixation of final seniority of Inspectors. The Petitioner alleges that his appointment in 1968 to the post of Dy. S.P. was under the 1965 rules, but this contention cannot be accepted in view of the 1965 rules for the various reasons enumerated below.

The relevant rules of 1965 read as follows:

Constitution of Service and its classification.-

(1) On and from the date of commencement of these Rules, there shall be constituted a Central Police Service to be known as the Delhi, Himachal Pradesh and Andeman and Nicobar Police Service.

(2) The service shall have two grades, namely :

(i) Grade I (Selection Grade); and (ii) Grade II.

(3) The posts in Grade I shall be Central Civil Posts,

Class I Gazetted and those in Grade II shall be Central Civil Posts, Grade II, Gazetted.

Method of Recruitment: (1) Save as provided in Rule 17, appointment to the service shalf be made by the following methods, namely :

(a) Not more than 50 per centum of the substantive vacancies which occur from time to time in the authorised permanent strength of the service shall be filled by direct recruitment in the manner specified in Part IV of these rules; and

(b) the remaining such substantive vacancies shall be filled by selection in the manner specified in Part V of these rules from amongst:

(i) Officers who are substantively borne on the cadre of Inspectors of Police, prosecuting Inspectors or Police Prosecutors employed in the Union territory of Delhi, Himachal Pradesh or Andeman and Nicobar Islands; and

(ii) Officers who were considered for appointment to the Delhi and Himachal Pradesh Police Service at its initial constitution though not actuelly appointed thereto under Rule 17 of the Delhi and Himachal Pradesh Police Service Rules, 1961, and who substantively hold a post of Deputy Superintendent of Police under the Delhi Administration or the Himachal Pradesh Administration:

Provided that if at any time a sufficient number of suitable officers is not available under Clause (b)t the requisite number of officers may be appointed to the service in consultation with the Commission, by transfer of members of a State Police Service :

Provided further that nothing in this rule shall preclude the Central Government from holding a vacancy in the Service in abeyance, or filling it on an officiating basis in accordance with the provisions of Part VIII of these rules.

(2) If the exigencies of public service so require, the Central Government may in consultation with the Commission, vary the percentage of vacancies to be filled by each method specified in sub-rule (1).

Constitution of Selection Committee.-Recruitment under Clause (b) of sub-rule (1) of Rule 5, shall be made on the recommendation of a Selection Committee (hereinafter referred to as the Committee) consisting of:

(i) the chairman or a member of the Commission- Chairman Members;

(ii) an officer in the Ministry of Home Affairs not below the rank of Joint Secretary to the Government of India;

(iii) the Chief Secretary, Delhi Administration;

(iv) the Chief Secretary, Himachal Pradesh Administration ;

(v) Administrator of the Union territory of Andeman and Nicobar Islands or the Chief Secretary of the Andeman, Nicobar Administration,

(vi) the Inspector General of Police, Delhi;

(vii) the Inspector General of Police, Himachal Pradesh.

Conditions of eligibility and procedure for selection.-(1) The Committee shall consider from time to time the cases of officers eligible under Clause (b) of sub-rule (1) of Rule 5, who have served in the respective cadre or posts, as the case may be, for not less than two years and prepare a list of officers recommended for appointment after taking into account the actual vacancies at the time of selection and those likely to occur during a year. The selection for inclusion in the list shall be based on merit and suitability in all respects for appointment to the Service with due regard to seniority.

(2) The names or person included in the list shall be arranged in order of merit.

(3) The list so prepared shall be forwarded by the Committee to the Central Government.

Consultation with the Commission.-(1) The list prepared under Rule 14 together with the relevant records shall be forwarded by the Central Govern ment to the Commission, where consultation with the Commission is necessary or where the Chairman of the Committee desires that a reference be made to the Commission.

(2) If the Commission considers it necessary to make any changes in the list received from the Central Government, the Commission shall inform the Central Government of the changes proposed by it.

(3) The list shall finally be approved by the Central Government, after taking into account the changes, if any proposed by the Commission.

(4) The list thus finally, approved shall be in force until a fresh list is prepared for the purpose in accordance with these rules.

Appointment to the Service.-Appointment to the service shall be made in order of merit in the list referred to in sub-rule (4) of Rule 15 with due regard to the promotion specified in Rule 5.

PART VI-INITIAL CONSTITUTION OF SERVICE

Initial appointment of persons to the service.-(1) The Service shall include persons who immediately before the commencement of these rules were members of the Delhi and Himachal Pradesh Police Service.

(2) The Central Government may, at the commence ment of these rules, appoint, to the Service any person who at such commencement is holding any of the posts under the Andeman and Nicobar Administration specified in the Schedule otherwise than on deputation or purely temporary basis.

Explanation.-For the purpose of this sub-rule, a person who would have held post mentioned therein but for his being on leave or on foreign service or but for his temporary or officiating appointment to an equivalent or higher post, shall be deemed to be holding a post.

(3) (i) For the purpose of appointment of persons re ferred to in sub-rule (2) the Central Government shall require the Committee to make a preliminary selection from among the officers referred to in that sub-rule or such of them who in its opinion are suitable for appointment to the Service. The names of officers so selected shall be arranged by the Committee in order of merit with due regard to seniority;

(ii) The list prepared under clausp (i) shall be forwarded by the Committee to the Central Government and it thereupon the Central Government shall forward the same to the Commission along with the relevant records;

(iii) If the Commission considers it necessary to make any changes in the list received from the Central Government, the Commission shall inform the Central Government of the change proposed by it;

(iv) The list shall finally be approved by the Central Government after taking into account the changes, if any, proposed by the Commission.

(4) Initial appointment to the Service of persons referred to in sub-rule (2) shall be made in order of merit from persons included in the finally approved list referred to in clause (iv) of sub-rule (3).

Period of probation.-(1) Every person appoin ted under Rule 5 or Rule 17 to Grade II of the Ser vice shall be on probation for a period of two years.

(2) A person on probation shall be liable to be discharged from the service at any time without assigning any reason provided that if he holds a lien on any permanent post under the Central Government, or a State Government, he shall be liable to be reverted to that post.

(4) A person on probation who holds a lien on any permanent post under the Central or State Government may, if he so desires during the period of probation, have the option to revert back to his parent Department or Government, as the case may be, after giving such notice as may be prescribed by the Central Government.

Training and departmental examinations-A per son appointed under Rule 5 or 17 to the Service shall undergo such training and pass during the period of probation such departmental examination, as the Central Government may from time to time specify

Provided that the Central Government may exempt, subject to such conditions as it may impose, either wholly or partly from such training or departmental examinations, any person appointed under Clause (b) of sub-rule (1) of Rule 5 or the first proviso to that sub-rule or Rule 17.

Confirmation in Service.-A person who has been declared to have satisfactorily completed his period of probation maybe confirmed in the service.

PART VIII-OFFICIATING APPOINTMENTS

Selection for officiating appointments.-If at any time the Central Government is of the opinion that the number of officers available in the list re ferred to in sub-rule (4) of Rule 15 for appointment to duty posts is not adequate having regard to the vacancies in such posts, it may direct the Commit tee to consider the cases of officers who have officiated for a period of not less than three years in any of the cadres mentioned in clause (b) of sub-rule (1) of Rule 5 and prepare a separate list of officers selected. The selection for inclusion in the list shall be based on merit and suitability in all respects for officiating appointments to duty posts with due regard to seniority. The provisions of sub-rules (2) and (3) of Rule 14 and Rule 15 shall apply mutatis mutandis in the preparation of the selection list under this rule.

Officiating appointment to duty posts of the service.- (1) If a member of the service is not available for holding a duty post, the post may be filled on an officiating basis:

(a) by the appointment of an officer included in the list referred to in sub-officiating basis;

(b) if no such officer is available by the appoint ment of an officer included in the list prepared under Rule 24.

(2) Notwithstanding anything contained in these rules, if the exigencies of public service so require, a duty post for which a member of the Service is not avail able may be filled on an officiating basis by the ap pointment with prior consultation with the Com mission of an officer belonging to a State Police Service on deputation for such period or periods ordinarily not exceeding three years as the Central Government may consider necessary.

(3) Notwithstanding anything contained in these rules, where appointment to a duty post is to be made purely as a local arrangement for a period not exceeding six months, such appointments may be made by the administrator from persons who are included in the list prepared under sub-rule (4) of Rule 15 or Rule 24 or who are eligible for inclusion in such a list.

(4) Any appointment made under sub-rule (3) shall be reported by the administrator to the Central Government forthwith.

The Petitioner alleges that he was appointed on substantive basis against one of the permanent vacancies of Dy. S.P. in accordance with Rule 21 of 1965 rules, and having remained on probation for a period of two years became a regular member of the DHANI Police Service on and from 3-5-1970.

According to Rule 5, a person could be appointed as a Dy. S.P. by selection or by direct recruitment. The procedure of direct recruitment is given in Part IV of the rules which comprise of Rules 6 to 12 and procedure for recruitment by selection is given in Part V of the rules which comprise Rules 13 to 16. Rule 17 provides for initial appointment of persons to the service and Rule 21 deals with respect to the period of probation regarding persons who are appointed under Rule 5 or Rule 17 to Grade II of the service.

The Petitioner could be considered to be a member of the DHANI Police Service if he had been appointed to either grade of the service in a substantive capacity or on probation. Such an appointment was only possible under Rule 15 from the select list and a list could only be prepared by a selection committee constituted under Rule 13 which could consider the case of persons who were eligible for selection under Rule 5. The Petitioner�s name was never considered by any selection committee and his name was never included in any select list. In these circumstances, he could not claim to be? member of the DHANI Police Service although he was promoted to the post of Dy. S.P. in 1968 vide Annexure D. The appointment of the Petitioner (vide Annexure D) by the administrator could be made on officiating basis on a purely ad-hoc basis and as local arrangement for a period not exceeding six months under Rule 25(3) read with Rule 24. Even this appointment does not make the Petitioner to be a member of the DHANI Police Service under the 1965 rules.

The benefit of Rule 21 could only be given if he had been a member of the DHANI Police Service. Hence the Petitioner never became a regular member of the DHANI Police Serves from 3-5-1970.

After the establishment of the State of Himachal Pradesh, some provisions relating to services were made in the Act. Section 40 of the Act reads as follows:

Provision relating to certain services.-(1) On and from the appointed day, there shall be constituted for the State of Himachal Pradesh the following Services, namely:

(a) the Himachal Pradesh Administrative Service; and

(b) the Himachai Pradesh Police Service.

(2) The initial strength and composition of the cadres of the said Services shall be such as the Administrator of the existing Union territory of Himachal Pradesh may, with the approval of the Central Government, by order, determine before the appointed day.

(3) On and from the appointed day, the existing Delhi, Himachal Pradesh and Andaman and Nicobar Islands Civil Service (hereinafter referred to as the existing Civil Service) shall be known as the Delhi and Andaman and Nicobar Islands Civil Service and the Delhi, Himachal Pradesh and Andaman and Nicobar Islands Police Service (hereinafter referred to as the existing Police Service) shall be known as the Delhi and Andaman and Nicobar Islands Police Service.

(4) Such members of the existing Civil Service as the Central Government may, by order, specify, shall be allocated to the cadre of the Himachal Pradesh Administrative Service and such members of the existing Police Service as the Central Government may, by order specify, shall be allocated to the cadre of the Himachal Pradesh Police Service and any such order may specify the date or dates from which the allocation made thereunder shall be effective.

(5) All persons who are allocated under sub-section (4) and who immediately before the date on which they are allocated, are borne on a select list for promotion to a State cadre of an All India Service, shall be deemed to have been included in the same order as in that list in the Select List for promotion to the State cadre of the same service constituted under sub-section (2) of Section 39.

(6) Subject to the foregoing provisions of this section, the rules and regulations applicable to or in relation to the members of the existing Civil Service and the existing Police Service as in force immediately before the appointed day sh 11, so far as may be, apply respectively to and in relation to the members of the Himachal Pradesh Administrative Service and the Himachal Pradesh Police Service, until altered, repealed or amended by the competent authority.

(7) Every member of the Central Health Service who immediately before the appointed day is holding any post in the existing Union territory of Himachal Pradesh being a post included in authorised strength of that Service, shall, until otherwise directed by the Central Government, be deemed to be on deputation, on and from the appointed day, to the Government of the State of Himachal Pradesh on the same terms and conditions of service as are applicable to him under the Central Health Service Rules, 1963, but without any deputation allowance:

Provided that the period of such deputation shall in no case extend beyond a period of three years from the appointed day.

Explanation.-In this sub-section, "Central Health Service" means the Central Health Service constituted under the Central Health Service Rules, 1963.

The Petitioner�s service could be allocated to the Himachal Pradesh Police Service u/s 40(4) of the Act provided he was a member of the existing Police Service, that is, the DHANI Police Service. From the various facts and circumstances, it is proved that the Petitioner was not a member of the DHANI Police Service and for this reason his services as Dy. S.P. could not be allocated to Himachal Pradesh Police Service u/s 40(4) of the Act. Hence he did not become a member of the Himachal Pradesh Police Service at its initial constitution under the Act.

The next contention that even under the 1973 rules, the Petitioner should be considered senior to Respondents Nos. 4, 5, 7 and 10 who were junior to him in the cadre of Police Inspectors before their selection to H.P. Police Service and that he should be deemed to be promoted to the post of Dy. S.P. from 1968, can also not be accepted in view of the various rules of 1973. Rule 2 relates to definitions and the relevant part reads as follows :

Definitions.-In these rules unless there is anything repugnant in the subject or the context,-

x x x x x x

(c) ''Commission'' means the Himachal Pradesh Public Service Commission;

(e) ''Appointment to the Service'' means an appointment to a duty post, whether on permanent, temporary or officiating basis, or on probation;

(f) ''Duty post'' means any post specified in Appendix ''A'' or any other post declared as such by Government and includes a temporary post carrying the same designation as any of the posts specified in that appendix with an identical scale of pay;

(g) ''Member of the Service'' means a person-

(i) who immediately, before the commencement of these r ules, was appointed to the Himachal Pradesh Police Service as constituted with effect from the 25th January, 1971, u/s 4(1) of the State of Himachal Pradesh Act, 1970 (Act No. 53 of 1970), read with the Government of India," Ministry of Home Affairs notification No. G.S.R. 43, dated the 6th January, 1971, and holds a duty post, substantively or on probation;

(ii) who is appointed to the Service in accordance with the provisions of these rules;

(h) ''the service'' means the Himachal Pradesh Police Service ;

(j) ''direct appointment'' means an appointment made otherwise than by promotion of an Inspector;

(k) ''Inspector'' means an Inspector of Police.

Rule 6 reads as follows:

Method of recruitment.-(I) Recruitment to the service shall be made in the following manner:

(a) 40 per cent by direct recruitment, and

(b) 60 per cent from Inspectors who are substantively borne on their respective cadres and have two years continuous service in the grades both officiating and substantive.

(2) For purposes of calculating vacancies according to the percentages as prescribed in sub-rule (1), the duty posts held either substantively or on probation in a regular manner before the commencement of these rules by Himachal Pradesh Police Service Officer, shall be excluded:

Provided that the post available against direct quota on the commencement of these rules, shall be filled over a period of four years.

Rule 7 pertains to the selection committee and reads as follows :

Selection of candidates from Inspectors and Prosecuting Inspectors.-(1) Recruitment under Clause (b) or sub-rule (1) of Rule 6, shall be made on the recommendation of a Selection Committee (hereinafter referred to as the Committee) consisting of :

(i) The Chairman or a member of the Commission. Chairman

(ii) The Chief Secretary or the Secre Member tary to the Government in the Chief Secretary''s branch.

(iii) The Inspector General of Police, Member Himachal Pradesh.

(2) The Committee shall consider from time to time the cases of Inspectors eligible for appointment to the service and prepare a list of officers according to the percentage fixed under Clause (b) of sub-rule (1) of Rule 6. The list shall contain the names of the selected candidates twice the number of the vacancies at the time of selection or likely to occur during the next one year.

The selection for inclusion in the list shall be based on merit and suitability in all respects for appointment to the service with due regard to seniority.

(3) The names of persons included in the list shall be arranged in the order of merit.

(4) The list so prepared along with relevant record shall be forwarded by the Committee to the Government. The Government shall send the list along with the record to the Commission and obtain its concurrence whereafter the list shall be considered final.

(5) The list shall remain operative for one year from the date of its approval by the Commission.

The learned single Judge has observed:

The minutes of the Selection Committee which considered the cases of Respondents Nos. 4, 5, 7 and 10 for selection were placed before the Court at the time of hearing. Such minutes revealed that the case of the Petitioner was also considered along with these Respondents. All these four Respondents were assessed as ''very good'' whereas the Petitioner was assessed as only, ''good'' by the Selection Committee. These Respondents were, therefore, selected on account of their better merit and not on account of seniority.

According to Rule 7(2), the selection for inclusion in the list shall be based on merit and suitability in all respects for appointment to the service with due regard to seniority. As the Petitioner was not found better in merit, therefore, the Respondents Nos. 4, 5, 7 and 10 were placed higher in merit than the Petitioner. The Petitioner has not made any allegations against the selection committee which was duly constituted under the rules and which also considered the case of the Petitioner along with the cases of Respondents Nos. 4,5, 7 and 10 for promotion. The simple fact that the Petitioner was senior to Respondents Nos. 4, 5, 7 and 10 as a Police Inspector, cannot confer any right upon him to the selection post of Dy. S.P. because for the promotion to the rank of Dy. S.P. the criteria is merit-cum- seniority.

The last contention was regarding the seniority of Respondent No.3 (S.B. Dogra) who joined the H.P. Police Service as a Dy. S.P. in 1975 under the 1972 rules.

Now Rule 3 of the 1972 rules reads as follows:

Reservation of vacancies.-(1) The vacancies in respect of Non-Technical posts to be filled up through direct recruitment shall be reserved for being filled up by the Released Indian Armed Forces personnel who joined service or were commissioned on or after the 1st day of November, 1962 and were released at any time thereafter to the following extent:

Class I posts ..25%

Class II posts ..30%

Class III posts ..20%

Class IV posts ..20%

(2) Where in any year any vacancies reserved for the Released Indian Armed Forces personnel remain unfilled for want of suitable Released-Armed Forces personnel, such vacancies may be filled up temporarily from any other source in accordance with the recruitment rules for the time being in force for filling up vacancies which are not reserved.

(3) Where in any year, any vacancies reserved for the Released Armed Forces personnel have been filled up temporarily in accordance with the provisions of sub-rule (2) above, the number of vacancies so filled up shall be carried forward to the next succeeding year, provided that no such vacancies shall be carried forward for more than four years. (4) Notwithstanding anything contained in these rules, the total number of vacancies reserved for the Released Armed Forces personnel and the Scheduled Castes, Scheduled Tribes and Backward Glasses, in any service, shall not exceed, in any year, 50 per cent of the total number of vacancies to be filled up in that service in that year.

Rule 4 as amended by the (Amendment) Rules, 1973, prior to the (3rd Amendment Rules), 1975, which came into force on September 16, 1975, read as follows:

Method of recruitment, age-limit, etc. of Released Armed Forces Personnel.-(1) Vacancies reserved for the Released Indian Armed Forces personnel shall be filled up on the basis of their record of military service and their performance at a written exaruination and viva voce test to be conducted by the Himachal Pradesh Public Service Commission or any other recruiting authority.

(2) No Released Armed Forces personnel shall be eligible to appear for an examination referred to in sub-rule (1) above, unless he-

(a) possesses the minimum educational qualifications prescribed for direct recruitment to the post on which he is to be appointed;

(b) his age at the time of joining military service or training prior to the Commission, as the case may be, does not exceed the upper-age limit prescribed for direct recruitment to such posts ;

(c) after release from the Armed Forces of the Union of India, he is found to be physically and mentally fit in accordance with the provisions of the service rules applicable to such posts;

(d) notwithstanding anything contained in these rules, a candidate kept on the waiting list or lists for appointment against vacancies reserved for demobilised armed forces personnel under the rules, which were in force immediately before the commencement of these rules, shall be appointed against the vacancies reserved before the candidates who qualify for appointment after the commencement of these rules; and

(e) if the number of qualified candidates in any one year is larger than the number of vacancies reserved for Demobilised Armed Forces personnel in Class I, II, III and IV posts, the names of those who are not appointed shall be kept on the waiting list or lists for appointment against the quotas of vacancies reserved for them in the succeeding year or years.

Rule 5 of the 1972 rules as amended by the (Amend ment) Rules, 1974, which came into force with effect from 4-3-1974, reads as follows :

Seniority and pay.-(1) Seniority and pay of the candidates who are appointed against the vacancies reserved under Rule 3 shall be determined on the assumption that they joined the service or the post, as the case may be, under the State Government at the first opportunity they had after they joined the military service or training prior to the Commission.

(2) Seniority inter-se of candidates who are appoin ted against the vacancies reserved under Rule 3 and allotted to a particular year shall be determined on the basis of their dates of birth; the candidate older in age to be placed senior to the one younger in age :

Provided that in the case of candidates having the same date of birth, seniority shall be determined according to the merit list prepared by the recruiting authority on the basis of the result of the test of examination.

(3) All candidates appointed against the reserved vacancies under Rule 3 shall rank below the candidates appointed by direct recruitment in the year to which the former c?ndidates are allotted.

Shri S. B. Dogra joined pre-commission training at Indian Military Academy, Dehradun on 15-4-1963 and was granted Emergency Commission on 27-9-1963. He was released from the Indian Army on 1-11-1967. Thereafter he joined I.T.B.P. as a Dy. S.P. (Company Commandant) and was confirmed as Company Commandant with effect from 1-5-1971. The H.P. Public Service Commission advertised the posts of Dy. S.P. in Himachal Pradesh and Shri Dogra was selected for one of these posts against a reserved vacancy under Rule 3 of the 1972 rules because he was considered eligible under Rule 4(2) of the 1972 rules being a released Indian Armed Forces personnel. He joined the H.P. Police Service as a Dy. S.P. on 8-9-1975.

In view of the aforesaid factual position, the 1972 rules as amended upto 8-9-1975 will be applicable to him for determining his eligibility/seniority and pay. So far as the State Government employment is concerned, this was the first opportunity for Shri S. B. Dogra after his joining the military service or training prior to the commission. It is correct that after 29th June, 1976 a note was added below Rule 3 (1) of 1972 rules which reads as follows:

Note.-For the purposes of this rule an ex-serviceman or released army personnel shall cease to be so as soon as he joins the first civil employment under the State Government.

This note isin the notification No. ll-76/71-GAA(Vol. II) dated 6-12-1980 and the said notification was issued in supersession of an earlier notification of even number dated 29-6-1976. As the note was incorporated after June, 1976, therefore, it is irrelevant for the present controversy.

Subsequently by (7th Amendment) Rules, 1979 which came into force with effect from 22-2-1979, instead of the words "the State Government" the words "any State/ Central Government" were substituted in the note below sub-rule (1) of Rule 3 of the 1972 rules. This again is irrelevant for the present controversy because Shri S. B. Dogra joined the post in September, 1975.

In view of the above circumstances, so far as S.B. Dogra is concerned, the appointment of Shri S.B. Dogra as Dy. S.P. will be considered to be his first appointment under the State Government at the first opportunity he had after he joined the military service or training prior to the Commission. His intervening service in the I.T.B.P. cannot be considered to his first civil appointment under the State Government and the note incorporated under Rule 3(1) of 1972 rules cannot apply to his case. His induction in the H.P. Police Service as a direct recruit under the 1972 rules as they stood in 1975 cannot, therefore, be said to be illegal or irregular. Some persons including the petitioned and Respondents Nos. 5,7 and 13 objected to the employment and seniority of S.B. Dogra (Respondent No. 3) under the 1972 rules. This matter was considered by the Himachal Pradesh State Advisory Committee and the recommendations of the Advisory Committee were thereafter considered by the Government of India. The Government of India finally observed that:

Under the rules framed by the Govt. of Himachal Pradesh a demobilised person appointed to a vacancy reserved under Rule 3 will be entitled to the benefit of Rule 5(1) provided it was his first civil employment under the State Government. It is undisputed that Shri S.B. Dogra was demobilised Emergency Commissioned Officer. It is also undisputed that he was appointed to a reserved vacancy. Nor there is any dispute that his appointment as Deputy Superintendent of Police under the Himachal Pradesh Govt, was first civil employment under the State Government. But it is contended that by reason of his appointment immediately after he was demobilised as Commandant in the Indo-Tibetan Border Police which is regarded as civil post, Shri Dogra is disentitled to the benefit of Rule 5(1). The question that then arises for consideration is whether by reason of that appointment he will be disentitled to the benefit of Rule 5(1).

As stated earlier, Rules 3 and 5(1) as amended from time to time provide for the benefit only in case of first civil appointment under the State Government. The benefit is not extended to cases of second and subsequent civil appointment under the State Government. There is nothing in the said rules which puts an embargo on the grant of the benefit in cases of the type under consideration where demobilised persons are first appointed to civil post not of the State Government but of the Central Government or even of the other State Governments and are thereafter appointed to civil appointment as Deputy Superintendent of Police was his first appointment under the State Government, i.e. Government of Himachal Pradesh. Therefore, the fact of Shri Dogra''s appointment as Commandant in the Indo-Tibetan Border Police will not stand in the way of his getting the benefit of Rule 5(1). In view of the foregoing considerations the proposal may be given effect to and the representations in this regard rejected.

In pursuance to this decision of the Government of India, a notification dated 27-2-1979 was issued, aphoto-stat copy of which is Annexure ''A''. This document has been taken on record and the same was produced by Respondent No. 3 (Shri S. B. Dogra) during the course of this appeal.

He being a member of the released Armed Forces personnel and governed by the 1972 rutes can, therefore, be given the benefit of Rule 5 of the 1972 rules which are applicable to him for the purposes of the determination of his seniority and pay.

According to Rule 5(1) of 1972 rules, Shri Dogra was to be given the seniority on the assumption that he had joined the service or post as the case may be under the State Government at the first opportunity he had after he joined the military service or training prior to the commission. If Shri Dogra had not joined the Army then he could have joined the HP. Police Service at an earlier date. The pur pose of framing Rule 5 of the 1972 rules was that a person who joins civil employment after his release from the Army should not lose his chances of promotion or pay on the gro unds that he was deprived of the opportunity due to the joining of military service. It was to benefit and to ensure that the career of the released Army personnel should not suffer on account of their having joined the military service during the period of emergency. For these reasons and in view of the applicability of Rule 5 of 1972 rules, we are of the opinion that the seniority of Respondent No. 3 was rightly assigned. The decision of the learned single Judge on this ground does not suffer from any infirmity.

The next contention raised on behalf of Respondents Nos. 1,2, 12 and 17 was that the seniority list (Annexure Q) should not have been ordered to be quashed and the ro tation system should have been followed under the 1973 rules. The relevant rules of 1973 read as follows:

(already reproduced earlier) 7. (already reproduced earlier)

Selection of candidates for direct recruitment.- Subject to the provisions of Rule 9, Government may include in Select List of direct candidates in order of merit the names of such number of candi dates as it may from time to time determine from amongst those who have been declared as qualified in the examination, by the Commission:

Provided that for purposes of ensuring adequate representation of qualified scheduled castes/ tribes candidates, their names may be brought on the Select List in order of merit inier-se irrespective of their position on the list of qualified candidates as a whole.

Appointment of selected candidates to the ser vice.-The Government shall make appointments to the service in pursuance of Rule 6 and subject to provisions of sub-rule (5) of Rule 7 and Rule 13 from among the selected candidates in rotation as follows:

Direct ..One candidate

Promotee .. One candidate

Direct ..One candidate

Promotee .. Two candidates, and thereafter in the same rotation beginning again from direct candidates :

Provided that all such appointments shall in the first instance be either officiating or substantive provisional.

Seniority of members of the service.-The seniority of officers appointed to the service shall be determined in accordance with the order of their appointment to the service; provided that-

(a) if the order of appointment of any candidate is cancelled under the provisions of Rule 17, and such candidate is subsequently appointed to the service the date of his appointment to the service for the purpose of this rule shall be the date of such subse-quent appointment;

(b) if any officer appointed to the service fails to qualify himself for substantive permanent appointment within the prescribed period of probation the Government may determine whether the date of his appointment for the purpose of this rule shall be postponed by a period not exceeding the period by which such officers substantive permanent appointment is delayed beyond the prescribed period of probation; (c) the seniority of those Himachal Pradesh Police Service Officers allocated to Himachal Pradesh under sub-section (4) of Section 40 of the State of Himachal Pradesh Act, 1970, whose seniority has been finalised and circulated under various letters issued by the Government; of India shall remain unchanged.

The learned single Judge has observed that the rotation system is not applicable in the facts and circumstances of the present case for the reason that the promotees-Respondents were appointed to the service in 1974 within one year of the date of promulgation of the rules and before the vacancies against the direct quota existing at the commencement of the rules had been filled.

The Petitioner and Respondents Nos. 4, 5, 7, 10, 11 to 1.5. and 17 were appointed to the service in the year 1974 and being members of service, their seniority is to be governed by Rule 18 of the 1973 rules.

The opening part of Rule 18 stipulates that the seniority of the officers appointed to the service shall be determined in accordance with the order of their appointment to the service. According to the unambiguous language of this rule, the seniority will be from the date of appointment to the service unless any of the proviso (a) to (c) applies.

The contention that the seniority should be determined according to the rotation formula in view of Rule 14, cannot be accepted in the facts and circumstances of this case. The proviso to Rule 6 provides that the posts available against direct quota on the commencement of the rules of 1973, were to be filled over a period of four years, i.e. 40% of the posts required to be filled by direct recruitment were to be filled over a period of four years and not immediately. 60% posts were to be filled under Rule 6 by promotees from Inspectors, but such posts were not required to be filled over a period of four years. Hence for determination of seniority at the initial stages the rotation formula could not apply for a period of four years of the commencement of the rules of. 1973, when the, posts were to be filled by direct recruitment and also by promotion. The promotees-Respondents and the Petitioner were; appointed to the service in 1974 (within about one year of the commencement of the rules of 1973) and no post by direct! quota had been filled till then. We are, therefore, of the view; that the learned single Judge has rightly he''d that the rotation formula as stipulated in Rule 14 was not applicable in the facts and circumstances of the present case and the seniority list (Annexure Q) was rightly quashed so far as it reflected the inter-se seniority of the Petitioner and Respondents Nos. 4,5, 7, 10, 11 to 15 and 17. He was justified in ordering the preparation of a fresh seniority list for Petitioner and Respondents Nos. 4,5, 7, 10, 11 to 15 and 17.

No other point was urged before us.

As a result of the above discussion we find that there is no force in these appeals and hence L.P. A. No. 18 of 1981, L.P.A. No. 20 of 1981 and L.P.A. No. 21 of 1981 are dismissed and the judgment of the learned single Judge dated 10-4-1981 is affirmed. The parties are left to bear their own costs.