Mohammad Hasnain vs The State of Bihar and Others

S.N. Jha, J.—The Petitioners in these two writ petitions seek a mandamus to the Respondents to confirm them in the rank of Inspector of Police on completion of period of probation of two years and to give them the consequential benefits of such confirmation by way of re-fixation of their seniority in the gradation list of Inspectors, promotion to the rank of Deputy Superintendent of Police, etc.

Both the Petitioners and the State have filed exhaustive affidavits enclosing documents in support of their respective case. But as the writ petitions involve a short (though not simple) point of law it is unnecessary to traverse the facts pleaded by them.

The Petitioners were granted out-of-turn promotion to the rank of Inspector of Police in terms of provisions of Rule 660C of the Bihar Police Manual. While Mohammad Hasnain, Petitioner in CWJC No. 3359 of 1996 was granted such promotion on July 4, 1985 with effect from February 15, 1983, Kumar Amar Singh, the Petitioner in CWJC No. 3360 of 1995 was allowed the said promotion on February 3, 1988 with effect from January 17, 1983. The dispute between the parties is whether they are to be confirmed only against the permanent vacancies in the rank of Inspector, as asserted by the Respondents, or against either permanent or temporary vacancies in the rank, as contended by the Petitioners. The only point for consideration is whether the vacancies within the meaning of Rule 660C includes temporary vacancies as well.

Rule 660C as originally stood in the Bihar Police Manual framed in 1978 was as follows:

660C. Out of turn promotion.--Selection Boards may recommend out of turn promotion of officers with outstanding records of service and competant authorities may order such promotion in deserving cases as they deem fit and proper with the approval of next higher authority.

Officers so promoted should be placed below the officers of the approved existing list of respective rank prepared by. Selection Boards and confirmed against substantive vacancies as and when vacancies arise in the order of the list.

Criteria taken together for determining outstanding records of service will be as follows:

(i) Award of President''s Police Medal and Indian Police Medal for gallentry and distinguished Service;

(ii) should not have been awarded any major punishment till the date of consideration and order of put of trun promotion;

(iii) very good entries in permanent Character Roll;

(iv) citation regarding high standard of investigation, detection and control of crime and intelligence work;

(v) should have ability for shouldering higher responsibility consonant with the proposed promotion. [See Home (Police) Departmant notification No. GSR 54 dated 12th May, 1976.]

The Rule, it would appear is in two parts. While the first part contains the substantive provisions regarding out of turn promotion, the second part contains the eligibility clause for such promotion. By notification No. GSR 65 dated November 29, 1982 of the Home (Police) Department the Rule was amended. The Petitioners have filed the Hindi text of the amended Rules. Translated into English, the amended Rule reads as follows (omitting the eligibility/criteria part):

Selection Boards may recommend out of turn promotion to officers who have been awarded police medal, having outstanding record of service, and the competent authority may order such promotion if it considers fit and proper with approval of the next higher authority. The officers so promoted shall "be placed below the officers of the existing approved list of respective rank prepared by Selection Boards.

The following criteria shall be adopted for determining outstanding records of service.

....

The Rule was amended again by notification No. GSR 1463 dated February 4, 1989. A new Rule was substituted in place of the existing one. The amended Rule now provides for only the criteria and procedure to be adopted for giving out of turn promotion. The first part of the Rule as it stood originally in 1978 or amended in 1982, quoted hereinabove, no longer forms part of the Rule. But we need not detain ourselves on this point because it is not in dispute between the parties that the Petitioners having been granted out of turn promotion in 1985-1988 with effect from February 15,1983 and January 17, 1983, respectively, their cases are governed by the Rule as amended in 1982 which was then in force.

Mr. Ganesh Prasad Singh, learned Counsel for the Petitioners contended that in terms of Rule 649 of the Police Manual which provides for promotion of Sub-Inspector to Inspector and Rule 668 which provides for probation of two years, on completion of the probation period, the officers so promoted should be deemed to have been confirmed in the posts. The Respondents do not deny that in terms of provisions of Rule 668 the officers are entitled to confirmation on completion of the probation period; they however contend that such confirmation can be made only against permanent vacancies in the posts.

The Bihar Police Manual has been framed by the State Government in exercise of the powers conferred upon it under Sections 7 and 12 of the Police Act, 1861 and has therefore statutory force. The Manual does not define the expressions ''substantive vacancies'', ''parmanent vacancies'', ''temporary vacancies'' or ''cadre''. But they are well known expressions in service jurisprudence and therefore in the absence of any specific definition they will have the same meaning and be understood in the usual sense of the term. The Police Manual, however, lays down the procedure for appointment/promotion to different posts including inspectors. Rule 649 which provides for promotion of Sub-Inspectors to the rank of Inspector may be quoted, so far as relevant, as follows:

(a) The promotion of Sub-Inspectors to Inspectors and Reserve Sub-Inspectors to Reserve Inspectors will be made by the Inspector General on the decision of Inspector General''s Selection Board. [Appendix 72(1)] (For period of probation, see Rule 668).

(b) In July the Deputy Inspector General will call for nomination for promotion to reach him on the date fixed. The form of nomination and list of enclosures are given in PM form No. 102.

(C)....

(d) The Range Selection Board [Appendix 72(3)] shall scrutinise the district nominations and shall select from among them in order of merit those whose nominations are to be sent before the Inspector-General''s Selection Board [Appendix 72(1)] on a date to be fixed by the Inspector-General.

(e) The Inspector General''s Selection Board [Appendix 72(1)] shall scrutinise the nominations of the Range Selection Board and compile a list of selections which should ordinarily be in order of seniority for promotion as vacancies occur. If an officer is placed higher in the list then his seniority warrants a full note giving reason shall be recorded. This list shall be of as many Sub-Inspectors as there are vacancies plus few anticipatory vacancies depending on average of last few years....

The post of Sub-Inspector is filled up both by promotion as well as direct recruitment. Rule 659 provides that 50 per cent "vacancies" shall be filled by selection from the rank of Assistant Sub-Inspector who have at least done minimum five years of service. As regards direct recruitment, Rule 653 lays down that--

In July the Inspector General will intimate to each Deputy Inspector General the number of vacancies allotted to each district and the Criminal Investigation/Intelligence Department and the number to be filled by direct recruitment and by promotion of Assistant Sub-Inspector.

Since Rule 668 has been relied upon by the counsel for the Petitioners it would be proper to quote the relevant part of that Rule as well, as hereunder:

The following rules shall govern first appointments and the promotion of police and ministerial officers as detailed in Appendix 41:

(a) All officers shall in the first instance be appointed or promoted on probation. Where the period of probation is not otherwise provided for in rules which shall be for a period of two years in the case of executive officers and one year in the case of ministerial officers.

....

It would thus appear that the Rules do not make distinction between temporary vacancies or permanent vacancies for giving promotion to the post of not only Inspector of Police but also other posts. It would therefore be quite legitimate to hold that the cadre of these ranks includes temporary posts as well. At least there Is nothing to indicate that the temporary posts are excluded.

It is well settled that where appointment is made according to Rules, except where the same is purely ad hoc or fortuitous, made as a stop-gap arrangment, the incumbent of the post is entitled to count the entire period of officiation by virtue of such appointment for purposes of his seniority. Reference may be made to the oft cited decision of the Constitution Bench in The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, . It is also well settled that confirmation in service is one of the "inglorious uncertainties" in government service and does not stand fin the way of the incumbent for either reckoning his seniority in service or for other service benefits. This was said so in the case of S.B. Patwardhan and Another Vs. State of Maharashtra and Others, , followed in innumerable cases later. It may be useful to quote the well known passage from the judgment, "confirmation is one of the inglorious uncertainties of government service depending neither on the efficiency of incumbent nor on the availability of substantive vacancies". It is, again, well settled that the cadre may consist of both permanent and temporary posts. If it is so, ''substantive vacancies'' would include temporary posts as well.

In A.K. Subraman and Others Vs. Union of India (UOI) and Others, it was stated, "a cadre may consist only of permanent posts or sometimes, as is quite common these days, also of temporary posts". In O.P. Singla and Another Vs. Union of India (UOI) and Others, , again it was stated, "therefore all posts in the Service, whether permanent or temporary are generally regarded as cadre posts". In P.K. Dixit and Others Vs. State of U.P. and Others, while dealing with the case of appointment to U.P. Higher Judicial Service and considering the provisions of U.P. Higher Judicial Service Rule, 1975, the Supreme Court stated, "It therefore could not be doubted that when the appointment under Rule 22 is contemplated in the service of substantive vacancies, it may be both temporary or permanent but the vacancy must be in the cadre". Again, in O.P. Garg and others, Vs. State U.P. and others, the Apex Court considering the same very provisions of the U.P. Higher Judicial Service Rules observed,

Appointment under Rule 22 can be made to a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadre strength the appointment against the said post has to be treated as substantive appointment.

I am conscious of the fact that these decisions have been rendered in the context of and on interpretation of particular rules. So far as the rules governing appointment/promotion to the post of Inspector/Sub-Inspector of Police etc. are concerned, as noticed above, there is nothing in the Bihar Police Manual which makes distinction between permanent vacancies and temporary vacancies or excludes the temporary vacancies from the cadre. In my opinion, therefore, there is no basis for the argument that the ''substantive vacancies'' would include only the permanent posts and not temporary posts for the purpose of giving consequential benefits of out of turn promotion under Rule 660C.

It is significant to point out here that the words "and confirm against substantive vacancies as and when arises in the order of the list" occurring in Rule 660C, as it originally stood in 1978, are no more part of the amended Rule. In other words, while under Rule 660C as it originally stood the officers promoted on out of turn basis were to be confirmed against ''substantive vacancies'' as and when vacancies arose, there is nothing like confirmation against substantive vacancies in the amended Rule. On this logic relief was grented to one Shridhar Mandal in CWJC No. 55 of 1992 and the corresponding MJC No. 1827 of 1992 (disposed of on January 31, 1994). I have every reason to think that while amending the Rule in 1982, the framers had in their mind the judgments of the Supreme Court, some of which have been rendered in the context of the officers of the Bihar Police, following Baleshwar Dass and Others Vs. State of Uttar Pradesh and Others, and many Ors. on the point. The framers must have intended to do away with the "inglorious uncertainties" in one''s service carear on account of non-confirmation and the distinction between ''substantive'' and ''non-substantive'' vacancies. If as per the judgments of the Supreme Court the distinction between the temporary and permanent posts does not exist, provided the posts are in the caders, and for the purpose of seniority and other service benefits, the employees are entitled to reckon the entire period of continuous officiation, except where there are express rules otherwise, the officers granted out of turn promotion must be held to be confirmed against the post to which they are promoted on expiry of the probation period unless any order otherwise is issued by the competant authority.

Rule 660C as it stood in 1983 intended to give out of turn promotion to officers who had outstanding record of service and had been awarded police medal in recognition of their services. If they have to wait for confirmation against ''substantive vacancies'' as and when they arise it may well mean that they would not get real benefit of such promotion, for before they are confirmed against ''substantive vacancies'' they may well be out of the service after superannuation. The provision of, Rule 660C has a salutary object and the same should be given full effect so as to achieve the object.

Counsel for the State submitted that the Petitioners are placed at sl. Nos. 435 and 436 in the gradation list of Inspector and the officers only upto sl. No. 390 have been confirmed. He expressed his reservation as to whether it is possible to give further accelerated seniority to the Petitioners in the rank. He submitted that the object underlying Rule 660C is to give one accelerated promotion to the next higher rank out of turn, and after the same is given they cannot claim further accelereted seniority. Counsel for the Petitioners states that the Petitioners would not mind if the officers placed above them in the gradation list of Inspectors are also confirmed. What they are interested in is to get confirmation in the rank/post which they are holding for more than 14 years by now, that is, much than the required period of probation of two years, and not accelerated seniority. Counsel submitted that denial of the benefit of confirmation only on the ground of absence of substantive vacancies being illegal, they merely seek direction to the Respondents for their own confirmation without disturbing the seniority of Ors. in the gradation list.

The submissions of the counsel for the Petitioners, according to me, are well-founded. In view of the legal position as briefly indicated above, in my opinion, the Petitioners can not be denied the benefit of confirmation. If the posts against which they were promoted have remained in existance for 14 years it would be misnomer to call them ''temporary'' posts. These temporary posts are as much part of the cadre as the permanent posts are and, therefore, they can be considered for confirmation against such temporary posts.

In these premises, I would allow these writ petitions and direct the Respondents to consider the cases of the Petitioners for confirmation in the rank of Inspector of Police in the light of the observations made hereinabove and further consider them, along with Ors. , for the consequential benefits in accordance with law.