Constitution of India, 1950, Arts, 14 and 16–Selection
grade posts in Indian Police Service–Appointment on basis
of merit and seniority considered only when merit equal–If
violative of the guarantee of equality.
The All India Services Act,1951, empowers the-Central
Government to make rules for the regulation of recruitment
and conditions of service of persons appointed to an All
India Service. In exercise of this power the Central
Government framed the Indian Police Service (Regulation of
Seniority) Rules, 1954. Rule 6 of the said Rules requires
that a Gradation List of all Police Officers in a State
should be maintained to ascertain their respective
seniority. Accordingly, a Gradation List wag prepared by
the respondent-State in which the petitioner was shown as
senior to respondents 3 and 4. In 1955, the petitioner was
superseded by respondents 3 and 4 who were confirmed in the
rank of Deputy Inspector General of Police, and in 1966, the
third respondent was promoted as Inspector General of Police
and respondent 4 was appointed as Additional Inspector
General of Police, superseding the petitioner. The
petitioner filed a writ petition in this Court under Art.
32, contending that: (1) he was entitled as a matter of
right to big appointed as Deputy Inspector General of Police
in 1955 and as Inspector General of Police, in 1966, as he
was shown as the senior most officer in the Gradation List;
(2) in the absence of, any statutory rules governing
promotions to selection grade posts the Government could not
issue administrative instructions imposing restrict-ions not
found in the Rules already framed such as that merit and not
seniority should be considered; (3) the introduction of the
idea of merit into the procedure of promotion is violative
of Arts. 14 and 16, because, it brings in an element of per-
sonal evaluation with the consequent abuses of nepotism and
favouritism; and (4) if the Government is held to have the
power to make appointments without making rules in that
behalf under the proviso to Art, 309, then the appointments
of respondents 3 and 4 would be arbitrary, capricious and in
violation of Arts. 14 and 16 of the Constitution, because,
the claims of the petitioner were not considered either in
1955 or in 1966.
A perusal of rr. 3 and 8 of the Indian Police
Service (Pay) Rules, 1954, read with Part B of Schedule III
of those Rules shows that the three posts of Deputy
Inspector General of Police. Additional Inspector General
of Police and Inspector General of Po’ lice in the
respondent State, are selection posts outside the junior’
and senior time scales of Pay.Promotion to selection grade
or selection posts is to be based primarily on merit and not
on seniority alone and therefore, the respondent-State was
not bound to promote the petitioner merely because he was
senior in the Gradation List. [118D-F].
(2)While Government cannot amend or supersede statutory
rules by administrative instructions, if rules are silent on
any particular point, Government can fill up the gaps and
supplement the rules and issue instructions not inconsistent
with the rules already framed.
The State Government has executive power in respect of State
Public Services mentioned in Entry 41, List II of Schedule
VII of the Constitution, and, there is nothing in the terms
of Art. 309 which abridges the power of the executive to act
under Art. 162 without a law. [119 F-G, H].
- Cajee v. U. Jormanik Siem,  1 S.C.R. 750 and B.
- Na. garajanv. State of Mysore,  3 S.C.R. 682,
(3) To ensure a reasonable prospect of advancement to all
officials and at the same time to protect the public
interest in having posts filled by the most able men, it is
necessary to evolve a proper promotion policy in which is
found a correct balance between seniority and merit. As a
matter of long administrative practice promotion to
selection grade or selection posts in the Indian Police Ser-
vice had been based on merit, and seniority was taken into
consideration only when merit of the candidates is otherwise
equal and no other criterion is available. Such a procedure
does not, in any way, violate the guarantee under Arts. 14
and 16 of the Constitution [112E; 123C-D].
(4)The respondent-State had considered the case of the
petitioner and taken into account the record, experience and
merit of the petitioner and of every other officer entitled
to be considered at the time of the promotion before
promotion of respondents 3 and 4 to selection posts was
made, and therefore, there was no breach of the provisions
of Arts. 14 and 16. [121D-E].
In the Matter of Sant Ram Sharma vs vs State Of Rajasthan & Anr, The Ho’ble Court held that :-
The question for determination in this case is whether the petitioner was entitled, as of right, to be promoted as Deputy Inspector General of Police in 1955 or as Inspector General of Police in 1966 merely on the ground that his name stood first in the Gradation List prepared under Rule 6 of the Indian Police Service (Regulation of Seniority) Rules, 1954.
Sub-section (1) of s. 3 of the All India Services Act, 1951 (LXI of 1951) empowers the Central Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an All-India Service. In exercise of this power the Central Government framed the Indian Police Service (Regulation of Seniority) Rules, 1954. Rule 2 (a) provides that “Cadre” means “an Indian Police Service Cadre constituted in accordance with rule 3 of the Indian Police Service (Cadre) Rules, 1954”. Rule 2 (d) defines “gradation list” to mean “a gradation list prepared under rule 6”. Rule 2(g) defines a “senior post” to mean “a post Included under item 1 of each Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 or any post declared equivalent thereto by the State Government concerned”. Rule 3 deals with the assignment of year of allotment and reads as follows:-
“(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule. (2)The year of allotment of an officer in service at the commencement of these rules shall be the same as has been assigned to him or may be assigned to him by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules:
(3)The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be-
(a) where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held;
(b) where the officer is appointed to the Service by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with rule 7 of those Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former: Provided that the year of allotment of an officer appointed to the Service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned;
Rule 4 relates to seniority of officers and reads as follows: –
“4. (2) The seniority of officers in service at the commencement of these rules shall be as has been determined or may be determined by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules: Provided that where the seniority of an officer appointed in accordance with rule 9 of the Recruitment Rules has not been determined before the commencement of these rules, his seniority shall be determined in accordance with the provision in sub-rule (3).
Rule 5 deals with seniority of officers placed in List II and List III by the Special Recruitment Board and Rule 5-A deals with seniority of officers appointed under the Indian Police Service (Special Recruitment) Regulations. 1957. Rule 6 states:
“6. Gradation List.-There shall be prepared every year for each State Cadre and Joint Cadre a gradation list consisting of the names of all officers borne on that Cadre arranged in order of seniority in accordance with the provisions of rules 4, 5, 5-A and 7”.
The question is how to find a correct balance between seniority and merit in a proper promotion-policy. In this connection Leonard D. White has stated as follows:-
“The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole Organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the Promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment.
Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level. it is a dangerous guide. It does not follow that the employee longest in service in a particular trade is best suited for promotion to a higher grade; the very opposite may be true”.