Holding

In the absence of any legislation or rule under Article 309, the State may determine seniority on the basis of continuous officiation, and Rule 3 does not bar the retroactive conversion of temporary posts, rendering the gradation list valid.

Summary

The appellants, originally appointed as Inspectors of Police in 1953, were promoted in 1965 to officiate as Deputy Superintendents of Police in temporary posts. In 1974 a gradation list placed them below direct recruits, leading to a writ petition in the Patna High Court, which ordered a fresh list. Subsequently, the Bihar Government converted 54 temporary posts (created between 1948 and 1970) into permanent posts with effect from their original dates and issued a new gradation list. The appellants challenged the High Court’s decision, arguing that the seniority of promotees should not be based on continuous officiation and that Rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 (framed under the Proviso to Art. 309) prohibited the retroactive conversion of posts. The Supreme Court held that, in the absence of any statutory rule under Art. 309, the State could determine seniority on the basis of continuous officiation, that Rule 3 is not a quota rule and does not bar such conversion, and that the gradation list does not violate Art. 14. Consequently, the appeals were allowed, the High Court judgment set aside, and the writ petitions dismissed.

Issues considered

The State's power to fix seniority between promotees and direct recruits in the absence of a statutory rule under the Proviso to Article 309 of the Constitution.
Whether Rule 3 of the Bihar Police Service (Recruitment) Rules, 1953, which requires at least half of vacancies to be filled by promotion, prohibits the conversion of temporary posts to permanent posts with retroactive effect.
Whether the gradation list prepared on the basis of continuous officiation violates Article 14 of the Constitution.

Legislation cited

Constitution of Indias. Art 309

Subjects

senioritypromotionpublic serviceexecutive powerArticle 309Bihar Police Servicegradation listtemporary postsRule 3constitutional lawArticle 14equality

Judgment

450

A RAJENDRA NARAIN SINGH AND OTHERS
v.
STATE OF BIHAR AND OTHERS
April 11, 1980
B
(A. C. GUPTA AND E. S. VENKATARAMIAH, JJ.]

Cc,nstitution of India 1950--Art 309 Proviso State Government whetht!r can
negulate its public ~ervice in exercise of its executive power.
•
••
Bihar Police Service (Recruitment) Rules 1~53-Scope of.
c
Fixing of inter-se seniority of promotees and direct recruits on basis of
continuous officiation by promotees-Whether valid.

The appellants were appointed Inspectors of Police in 1953. After working
as Inspectors for about 12 years, they were promoted by notification dated
June 16, 1965 to officiate as Deputy Superintendents of Police. Before pro-
D motion they were subjected to the scrutinies prescribed by rules 22, 23 and
24 of the Bihar Police Service (Recruitment) Rules, 1953. Rule 648-B of the
Bjhar and Orissa Police 1{anual (Volume I) requires a promoted Deputy
Superintendent of Police to pass an examination in accounts. The appellants
passed the examination and satisfied all the requirements for confirmation:
However, the posts in which they were officiating \Vere temporary posts.'
Thereafter the Government by a notification dated August 22, 1974,
•
E confirmed the appellants and other similarly situated officers as Deputy Super~
intendents of Police with effect from the dates which according to tJ;tese officers
were arbitrarily chosen. On September 1, 1974 the Government published a
combined gradation list in which these promotees were placed even below the
direct recruits who were appointed in 1974. The appellants challengeJ this
I
gradation list in the High Court by a Writ Petition and during the pendency
of the said Writ, the State Government constituted "Saran Singh Committee",
F \ to assess the promotional prospects of different State services, examine the
problem of "stagnation", and suggest remedial measures. The recommenda~
tions of the committee were accepted by the State Government by Resolution
dated April 11, 1977. In the Writ Petiti9n, the High Court directed the State
· Government to re-examine the matter and prepare a fresh gradation list on
the basis of 1he statement made by the Government in the light of the com-

G
mittees' recommendations. None of the parties appealed against this order.
•
By notification dated January '7, 1978 the State Government appointed on
probation the Officers who had been officiating in' those posts with effect from
tbe dates mentioned against their names in the notification and the notification
issued previously promoting these officers on officiating basis was cancelled.
The dates from 1which these officers were said to have been appointed on pf'Ow
bation were the dates of their promotion as officiating Deputy Superintendents

I
H of Police. The names of the appellants figured against serial numbers 23,
24 and 25 in the list given in the notification dated January 7, 1978. The
revised gradation list which is under challenge was thereafter issued.
R. N. SINGH V. BIHAR 451

The a,>pcllants questioned the correctness of the Judgment of the High A
Court which allowed the two Writ Petitions made by two different groups of
direct recruits challenging the gradation 1ists of permanent Deputy Superinten-
dents of Police on February 24, 1978.

Accepting the appea1,
HELD: 1. The appellants were promoted to officiate as Deputy Superin- B
tendents of Police in the year 1965 (other promotees like the appellants had
also been officiating as Deputy Superintendents of Police from different dates
between 1948 and 1970), and by the 'Government order dated December 30.
1977 fifty-four temporary posts of Deputy Superintendent of Police created
bet\\·een 1948 and 1970 were made permanent from the dates these posts were
created. [4560-G]

'
JL 2. It is well settled that in the absence of any legislation on the subject, C
or a mle framed under the Proviso to Articl~ 309 of the Constitution, the
State Government can regulate its public services in the exercise of its executive
power. [456 F-G]
B. iV. 1Vagarajan v. State of Mysore [1966] 3 SCR 682, Sant Rani Shanna
v. State of Raiasthan [1968] I SCR 111, referred, to.
3. There i~ no statute or any role framed under the Proviso to Article 309 D
to determine the seniority as between the direct recruits and the promotees.
The determination of seniority on the basis of continuous officiation bas been
held valid in S. B. Patwardhan's case [1977] 3 S. C. R. 775. The graJation
list cannot therefore be challenged on the ground that an arbitrary date was
taken as its basis or that it offends Article 14 of the Constitution. [456G-H.
4571\ I
E
4. In the year 1977 exigencies of the situation prompted the Government
to convert the temporary posts created between 1948 and 1970 into perma-
n~nt posts with effect from the dates on which the temporary posts had been
created. The appellants were promoted in 1965 to officiate as Deputy Super~
intendents of Police in posts which 'vere then temporary. The Governor
\vhile exercising his powers under rule 3 in the year 1965 could not naturally
take into account the number of posts made permanent in 1977 with eff~ct F
from 1965. Whatever was done subsequently to increase the strength of the
cadre in 1965 under compulsion of the situation cannot be said to have effect-
-~ ed the validity of the action taken by the Governor in 1965. [457-Fl
S. G. Jaisinghani v. Union of India & Ors. [1967] 2 S.C.R. 703; referred

• to .
5. Rule ::; of the Bihar Police Service (Recruitn1ent) Rules. 1953 iS not
G
reaUy a quota rule, it does not Jay down a fixed _proportion, all it does is to
insist th.at the number of vacancies to be filled by promotion should not be less
than half of the· total number of vacancies to be :filJed in any year. Adding: to
the number of vacancies and filling them by promotees does not certainly vi61ate
the nlie rcqliiring, that no less than half of the vacancies n1ust be filled by
promottecs. ¥/hat the Governor had done in a previous year in ex,,rci<:<' of his H
power under rule 3, if it was valid then, is not invalidated by the suh.. equent
conversion of some posts \ .:hich were temporary at the time into per-
1

mflnf'nt Tlm;ts vv·ith rffect from. the earlier year. If for administraHvc rrasons
9-289 SCT/80
452 SUPREME COURT REPORTS [1980] 3 S.C.R.

A snch a measure was considered necessary, there' is nothing in rule 3 to sugge6t
a bar. Rule 3, as already mentioned, does not prescribe a fixed pr0p0rtion
of promotees and direct recruits for the vacancies to be filled in any year buj:
only ensures not less than half of the vacancies for the promottees, that being
so, filling more than half of the vacancies by promottees, cannot be an infringe-
ment of that rule. [457G-H, 458A-B]
B 6. The gradqtion list contains certain mistakes, and these shall b~ corrected
by the concerned authority. [458F]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1309-1310
of 1978.
Appeals by Special Leave from the Judgment and Order dated
C 29-6-1978 of the Patna High Court in C.W.J.C. Nos. 204-205 of 1978.
L. M. Singhvi, and S. K. Verma for the Appellants.
.-l.
Dr. Y. S. Chitale, S. K. Sharma, R. K. Jain, R. A. P. Si11gh,
R. P. Singh and B. P. Singh for the Respondent Nos. 3-10, 12, and
13 in CA 1309/78.
D R. K. Jain and R. A. P. Singh for RR 4, 6, 7 & 9 in CA 1310/78.
R. K. Garg, R. A. P. Singh and B. P. Singh for the RR 8 in
both the appeals.
D. Goverdhan for the R 1 in both the appeals.
The Judgment of the Court was delivered. by
E
GUPTA J. The controversy in these two appeals by special
leave relates to the question of seniority between the direct recruits
and the promotees in the rank of Deputy Superintendent of Police
in the Bihar Police Service. The appellants-the same persons in
both appeals--are promotees who question the correctness of the
F jndgment of the Patna High Court by which the High Court allowed •
the two writ petitions made by two different groups of direct recruits
challenging the gradation list of permanent Deputy Superintendents
of Police published on February 24, 1978. Fifty-four temporary
posts of Deputy Superintendent of Police created between 1948 and
1970 were made perm.rnent ''from the dates of their creation" by the ,
G Government of Bihar in December, 1977. Earlier, the Government
had decided that continuous officiating service of the promoted Deputy
Superintendents of Polio~ in the.e posts should be the basis of their
seniority. Following this decision, after the temporary posts had been j
made permanent, the gradation list in question was prepared and
published.
B .
Admittedly there is no statutory rnle governing seniority inter-se
of direct recruits and promotees. In the absence of any such rule
•
R. N. SINGH v. BIHAR (Gupta, J.) 453

prescribing a different criterion, it cannot be disputed after Patwar- A
dhan's case(') that continuous officiation is a reasonable basis for
fixation of seniority. The High Court, however, allowed the writ
petitions filed by the direct reci:uits on the view that the gradation
list was invalid as it infringed rule 3 of the Bihar Police Service (Re-
cruitment) Rules, 1953 framed under the Proviso to Article 309 of
the Constitution of India. Rule 3 is In these terms :
B
"The Governor shall decide in each year to number of
vacancies to be filled in that year.
Provided that the nnmber of vacancies to be filled by
promotion in the service in any one year shall not, unless
the Governor is satisfied that there is not a sufficient number c
of officers fit for promotion, be less than half the total num-
ber of vacancies to be filled in any such year."
Before we proceed to consider the scope of this rule and its
effect on the question of seniority in this case, it would be .necessary
to refer to a few more provisions of the Bihar Police Service (Recruit- D
ment) Rules and some facts forming the background to the contro-
versy.
It is the Governor's duty. under Rule 3 to decide "in each year"
the numlnr of vacancies in the Bihar Police Service required to be
filled "in that year". The proviso to the rule states that the promotees E
i to be appointed in any particular year shall not be less than half of
the total number of vacancies to be filled in that year unless suffi-
cient number of officers fit for promotion is not available. It is
important to remember that rule 3 does not prescribe a fixed quota
for each of the two ca~<gories, direct recruits and promotees, but ouly
insists that at least half the vacancies in any year should be reserved F
for the promotees. Rule 2 of these Rules states that recruitment to
Bihar Police Service shall be made by direct recruitment and by
promotion. A third source of recruitment was later added in the
Rules in 1975 with which we are not concerned in this c?se. The
mies as regards direct appointment are included in part II of the
Rules. Rules 22, 23 and 24, occurring in part III of the Rules lay G
down the method of recruitment by promotion. Under rule 22 a
preliminary selection of officers for promotion is made in each Range
by Range Selection Board. Those selected by the Range Selection
Board have to appear before the Inspector General's Selection Board.
The Inspector General's Selection Board has to nominate for appoint-
ment twice as many candidates as there are vacancies to be filled by H

i (I) [1977] 3 S. C. R. 775,
454 SUPREME COURT REPORTS [1980] 3 s.c.R.

A
promotion and to send all relevant papers relating to the candidates
nominated by it to the Bihar Public Service Commission and, at the
same time, submit a list of such candidates to the Governor. The
Public Service Commission after exrul)ination of the Papers is requir-
ed to submit its recommendations to the Governor. Rule 24 says
8 that the final selection of officers to be promoted shall be made by
the Gowrnor after considering the recommendations made by the
Public Service Commission.

The appellants iu both these appeals were appointed as Inspec-
tors of Police in 1953. After working as Inspectors for about 12
.c years, they were promo~ed by notification issued on June 16, 1965
to officiate as Deputy Superintendents of Police. Before promotion
they were subjected to the scrutinies prescribed by rules 22, 23 and
24 of the Bihar Police Service (Recruitment) Rules, 1953. Rule
648-B of the Bihar and Orissa Police Manual (Volume I) requires
a promoted Deputy Superintendent of Police to pass an examination
D in accounts. This rule further says that a promotee shall be on pro-
bation for one year and at the end of the period, if he has passed
the said examination and is found fit, he will be confirmed. The
rule adds that if he has officiated as Deputy Superi'ntendent for one
year or more he may be confirmed without further probation on
his passing the examination in accounts. The appellants passed the
E examination and thus satisfied all the requirements for confirmation.
However the posts in which they were officiating were temporary
posts. It appears from a memorandum issued by the State Govern-
ment on December 28, 1955 that the Government considered it
"desirable that all temporary posts of all categories, gazetted as well
as non-Gazetted, which are iu existence at present and which will be
F
necessary for an indc;finite period should be made permanent with
effect from 1st April, 1956". This was followed by another memo-
randum on September 9, 1967 addressed to "All Departments of
Govt." and "All Heads of Departments" on the "Policy regarding
making temporary posts under Govt. in existence from a long period,
G permanent" which said that the Government had taken a decisidn that
"steps should immediately be taken . . . . to make all those posts
permanent which are in existence for more than three years and
are likely to continue in future." A third memorandum on the sub-
ject issued on November 19, 1971 expressed dissatisfaction that "no
effective step" had been ta.ken to make the temporary posts perma-
H nent and requested all heads of departments to take "necessary steps"
"immediately" to implement the Government decision. Apparently
even the third memorandum failed to haw any effect.
R. N. SINGH v. BIHAR (Gupta, J.) 455

By a notification dated August 22, 1974 the State Government
confirmed appellants and other similarly situated officen• as Deputy
Superintendents of Police with effect from dates which according to
these officers were arbitrarily chosen. On September l, 1974 the
• Government published a combined gradation list in which these pro-
motees were placed even below the direct recruits who were appoint-
ed in 1974. The appellants challenged this gradation list in the
B
Patna High Court by a writ petition (C.W.J.C.2011 of 1976). While
that writ petition was pending, the Government of Bihar constituted a
high power committee, known as the Saran Singh Committee, to assess
the promotional prospects of different State services, examine the
problem of "stagnation", ai1d suggest remedial measura<;. The re-
commendations made by the Committee were accepted by the Gov-
ernment by resolution dated April 11, 1977. One of the decisions
taken by the Government upon the recommendations of the Committee,
which were set out in the schedule annexed to the resolution, was as
follows :
D
"The seniority of promoted officers vis-a-vis direct rec-
ruits should be determined by taking into account the con-
tinuous officiating service instead of on the basis of the
length of substantive service in the cadre."
On behalf of the State Government it was submitted before the
High Court at th~ hearing of the aforesaid writ petition (C.W.J.C. t.:
2011 of 1976) that the Government proposed to re-examine the gra-
dation list in the light of the Committee's recommendations. On this
statement the High Court directed the State Government to re-examine
the matter and prepare a fresh gradation list. Non~ of the parties
appealed against this order. Thereafter, on December 30, 1977, the
State Govermnent wrote to the Accountant General, Bihar, saying that
F
on the basis of the Government decision that continuous officiating
service of the promoted Deputy Superintendents of Police was to be
the basis of their seniority, the Government had decided that "the
temporary posts created in the Home (Police) Department would be
made permanent from the dates of their creation." Accordingly 54 G
temporary posts brought into existence between 1948 and 1970 were
converted into permanent posts by Government order No. 16161
also dated December 30, 1977. By notification dated January 7,
1978 the State Government appointed on probation the officers who
had been officiating in those posts with effect from the dates mention-
ed· against their names in the notification and the notification issued H
previously promoting these officers on officiating basis was cancelled.
The dates from which these officers were said to have been appointed
456 SUPREME COURT REPORTS [1980] 3 S.C.R.

A on probation were the dates of their promotion as officiating Deputy
Superintendents of Police. The names of the appellants figure against
serial numbers 23, 24 and 25 in the list given in the notification
dated January 7, 1978. It is difficult to see why this method of
converting the officiating appointment into one on probation was
thought necessary. Rule 648-B of the Bihar and Orissa Police
•
B Manual (Volume I) to which reference has been made earlier in
this judgment provides that if a promotec has officiated as Deputy
Superintendent for one year or more, he may be confirmed without
further probation on his passing the examination in accounts. It has
ken already stated that all the appellants had passed the examina-
tion. However, the revised gradation list which is under challenge
c was thereafter issued. This list, it was stated in a letter dated January
31, 1978/February 24, 1978 addressed by a Joint Secretary of the
State Government to the Inspector General of Police, Bihar, Patna,
had been "prepared on the basis of the date of appointment, officiat-
ing or peraman~nt, whichever is earlier, in the Bihar Police in the
D liglit of Finance Department Resolution No. 3521 dated 11-4-77 and
judgment of tlie High Court in C.W.J.C. No. 2011/76 ....."
In the context of the present controversy two important facts which
have to be kept in mind are : (i) the appellants were promoted to
officiate as Deputy Superintendents of Police in the year 1965 (other
promotees like the appellants had also been officiating as Deputy Sup-
E erintendents of Police from different dates between 1948 and 1970)
and (ii) by Government order dated December 30, 1977 fifty-four
temporary po•ts of Deputy Superintendent of Police created between
1948 and 1970 were made permanent from the dates these posts
were created.
F The only question here is whether there was anything wrong in fix-
ing the inter-se seniority of the promotees and the direct recruits on
the basis of continuous officiation by the promotees. It is well set-
tled that in the absence of any legislation on the subject, or a rule
framed under the Proviso to Article 309 of the Constitution, the
State Government can regulate its public services in the exercise of
G its executive power. (sec B. N. Nagarajan v. State of Mysore(')
1\lld Sant Ram Sharma v. State of Rajasthan ('). In the case before
us there is no statute or any rule framed under .the Proviso to Article
309 to determine the seniority as between the direct recruits and the
promotees. The determination of seniority on the basis of conti-
nuous officiation has been held valid in S. B. Patwardhan's case
H
(I) [1966J 3 S. C.R. 682
(2) [1968] I S. C. R. 111
R. N. SINGH V, BIHAR (Gupta,!.) 457

(supra). The gradation list cannot therefore be challenged on the A
ground that an arbitrary date was taken as its basis or that it offends
Artic\e 14 of the Constitution .

• It is however conte'nded on behalf of the respondents who were
the writ petitioners in th-e High Court that rule 3 of the Bihar Police
Service (Recruitment) Rules, J 953 framed under the Proviso to Arti- B
cle 309 of the Constitution, though it is not a seniority rule, does
not permit the course adopted in this case by the Government, namely,
converting the temporary posts created between 1948 and 1970 into
permanent post{ in the year 1977 with effect from the dates on which
the temporary posts had been created. Under rule 3 the Governor
has to decide in each year the number of vacancies to be filled in c
that year and to secur<J not less than half of the total vacancies for
the promotc•os. The argument is that for the year 1965 or for that
matter for any year prior to 1977 when the notification under chall-
enge was issued, the Governor had duly exercised his power under
rule 3 in that very year, and adding to the number of existing per-
D
manent posts by an order made in a subsequent year after the Gove1~
nor had ascertained the number of vacancies required to be filled and
had them filled according to the ratio prescribed by rule 3, would
disturb that ratio and contravene rule 3. We are unabb to accept
i this contention as correct. In the year 1977 exigencies of the situa-
tion prompted the Government to convert the ~cmporary posts created E
between 1948 and 1970 into permanent posts with effect from the
dates on which the temporary posts had been created. The appel"
!ants were promoted in 1965 to officiate as Deputy Superintendents
of Police in posts which were then temporary. The Governor while
exercising his powers under rule 3 in the year 1965 could not natu-
rally take into account the number of posts made permanent in 1977 F
with •effect from 1965. Whatev'er was done subsequently to increase
the strength of the cadre in 1965 under compulsion of the situation can-

• not be said to have affected the validity of the action taken by the
Governor in 1965. In S. G. Jaisinghani v. Union of India & Ors.(')
this Court held that wh·cn the quota was fixed for tho : wo sources of
recruitment. it could not be altered according to exigencies of the
situation. But JUie 3 is not really a quota rule, it does not lay down
a fixed proportion, all it does is to insist that tho number of vacancies
to be filled by promotion should not be less than half of. the total
number of vacancies to be filled in any year. Adding to the number
of vacancies and filling them by promotees does not certainly violate
H
the rule requiring that not less than half of the vacancies must be
(1) [1967] 2 S. C.R. 703
458 SUPREME COURT REPORTS [1980] 3 S.C.R.

A filled by promotees. What the Governor had done in a previous
year in exercise of hi~ powers under rule 3, if it was valid then, is
not invalidated by the subsequent conversion of some posts which
were temporary at the time into permanent posts with effect from the
earlier year. If for administrative reasons such a measure was con- •
sidered necessary, there is nothing in rule 3 to suggest a bar. Rule
8 3, as already mentioned, does not prescribe a fiJ'ed propo1tion of
promotees and direct recruits for the vacancies to be filled in any •
year but only ensures not less than half of the vacancies for the pro-
motees; that being so, filling more than half of the vacancies by pro-
motees, cannot be an infringement of that rule.
c In the view we have taken, it is unnecessary to consider two other
subsidiary questions raised : (i) whether the cadre consisted only
of permanent posts or included both permanent and temporary posts :
according to the appellants the cadre should include both temporary
and permanent officers in the absence of any rule to the contrary. In
this Judgmenf in reaching the conclusion stated above we have assum-
D ed that the cadre consisted of permaiient officers only; (ii) Whether
rule 3 has ever been followed since the Rules were franied in 1953;
according to the appellants rule 3 has really not been observed in
any of those years and that no question of controventioh of the rule
can therefore be raised in this case.
E In the result we allow the appeals, set aside the judgment of the
High Court and dismiss the writ petitions C.W.J.C. 204 of 1978 and
C.W.J.C. 205 of 1978 filed in the High Court. It appears from an
affidavit sworn by Shri Ashok Kumar Sinha, Under Secretary, Home
(Police) Department, on behalf of the State of Bihar on August 31,
1979 and filed in this Court on the same day that the gradation list
F in qu~stion contains certain mistakes; these shall be corrected by the
concerned authority. In the circumstances of the case we make no ~--
order as to costs.
I

N.K.A. Appeals allowed.
;
A