judgement:
ivil Appeal Nos.
2526/77 and 2413/78.
From the Judgment and order dated 17 5 1975 of the Punjab and Haryana High Court in LPA Nos. 633, 671, 694/73 and 609/73.
AND Writ Petition Nos.
520 524 of 1980.
(Under Article 32 of the Constitution) Jawahar Lal Gupta and section Ghose for the Appellant in CA 2526/77 P. R. Mridul, M. R. Agnihotri and P. C. Bhartari for the Appellant in CA 2413/78.
O. P. Sharma and M. section Dhillon for the State of Punjab in both the appeals.
464 Lal Narain Sinha Att.
Abdul Khader and Miss section Subashini for the Union of India in all the appeals.
H. L. Sibal, R. K. Garg and R. section Sodhi for Respondent No. 10 in CA 2526 and RR11 in CA 2413.
R. K. Garg and R. section Sodhi ' for the Petitioners in WP Nos.
520 524 of 1980.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
In these appeals we have once again to consider career conscious competing claims to seniority which appear so much to dominate the lives and careers of our Civil Servants that a large bulk of the cases in this Court relate to the resolution of problems arising out of such claims.
So much of our time is taken up in discovering the precise facts of these intricate problems that we wonder whether the constitution of a fact finding administrative tribunal who should invariably be approached in the first instance will not better serve the cause of successful administration.
An administrative tribunal possessing the necessary expertise and familiarity with administrative procedures and rules may be able to deal with the problems in a satisfactory way.
At least the facts will be found and the relevant rules will be known.
Thereafter aggrieved parties may approach the Courts for further relief within the confines of Articles 226 and 32 of the Constitution.
On selection by the Punjab Public Service Commission, B. R. Kapur and Harjeet Singh were directly recruited, in 1951, as Deputy Superintendents of Police in the Punjab Police Service.
They are the appellants in Civil Appeal Nos. 2413 of 1978 and 2526 of 1977 respectively.
B. R. Kapur was senior to Harjeet Singh as Deputy Superintendent of Police.
In 1960 both of them were included in the Select List prepared under Regulation 7 of the Indian Police Service (Appointment by Promotion) Regulations 1955.
On November 24, 1960, B. R. Kapur was appointed as Assistant Inspector General of Police which post was a cadre post.
In May, 1961, B. R. Kapur was appointed as Director of Sports and Youth Programme and Deputy Secretary to Government, Sports Department.
The post was a non cadre post.
He held this post upto November 18, 1962 and thereafter he was appointed as Additional Controller of Stores, Punjab which was also a non cadre post.
He continued to hold the post of Additional Controller of Stores till 1965.
From July 19, 1965, he was Commandant, 40th Battalion, PAP, J & K, which was a cadre post.
He held the post till July 11, 1966, when he took over as Commandant of 25th Battalion, PAP.
On the reorganisation of the State of Punjab, he 465 was appointed as Assistant Inspector General of Police, State of Punjab from November 1, 1966.
Thereafter he continuously held cadre posts and was finally appointed to the Indian Police Service with effect from September 3, 1969.
Shri Harjeet Singh was appointed to officiate as Superintendent of Police in December, 1960.
The post was a cadre post.
He continued to hold a cadre post till he was appointed to the Indian Police Service with effect from September 3, 1969.
After the two officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of seniority arose for the consideration of the Government of India.
Shri B. R. Kapur was allotted to the year 1963 and placed below Sube Singh and above Shri section R. Sharma (direct recruits) in the Indian Police Service Gradation List of Punjab.
The period of his service as Director of Sports and Youth Programme and as Additional Controller of Stores was not taken into consideration as both the posts were non cadre posts.
His service as Commandant of 25th Battalion was also not taken into account on the ground that the 25th Battalion had been taken over by the Government of India and therefore the post of Commandant of the 25th Battalion was a non cadre post.
He was, therefore, treated as having continuously officiated in a senior cadre post from November 1, 1966 only.
On that basis he was allotted to the year 1963.
In the case of Harjeet Singh, though admittedly he officiated continuously in a senior cadre post from December, 1960 he was also allotted to the year 1963 and placed below Shri B. R. Kapur on the ground that he ranked below Shri B. R. Kapur in the select list.
B. R. Kapur and Harjeet Singh filed Writ Petitions in the High Court of Punjab and Haryana questioning the allotment of the year 1963 to them for the purpose of seniority in the Indian Police Service.
The learned Single Judge of the High Court who heard the petitions in the first instance held that there was no reason at all why Harjeet Singh should not be given the full benefit of his continuous officiation in a senior post.
He, therefore, directed the Union and Punjab Governments to redetermine the year of allotment of Harjeet Singh, taking December 17, 1960, as the date from which he continuously officiated in a senior post.
It was also directed that proper seniority should be assigned to him in accordance with the year of allotment so determined.
In the case of B. R. Kapur it was held that July 29, 1965, should be treated as the date of his continuous officiation in a senior post.
It was held that the Government of India and the Government of Punjab had all the time treated the post of Commandant, 466 25th Battalion as a cadre post and therefore, B. R. Kapur was entitled to have his service in the post of Commandant, 25th Battalion as officiation in a Senior post.
A direction was issued that the year of allotment and seniority should be re determined.
It was further directed that before redetermining the seniority of the two officers, the respondents to the Writ Petitions who were direct recruits, should be afforded an opportunity to make their representations.
Appeals under Clause 10 of the Letters Patent were filed by the affected direct recruits as also by B. R. Kapur.
Before the Division Bench the case took a new turn.
It was argued before the Division Bench on behalf of the direct recruits that neither B. R. Kapur nor Harjeet Singh would have ever started officiating in the senior post on the dates from which they officiated or claimed to have officiated in senior posts, if the State Government had not created artificial vacancies by excessive utilisation of 'the deputation and central reserve ' quota in contravention of the Cadre Rules and the Cadre strength Regulations.
It was apparently sought to be argued before the Division Bench that the period of service attributable to over utilisation of 'deputation and central reserve ' quota should not be treated as service in a senior post for the purpose of determining the year of allotment of officers promoted to the Indian Police Service.
The argument was accepted by the Division Bench and a direction was issued to the Central Government to reconsider the question of year of allotment after taking into consideration the question of over utilisation and its effect.
The finding of the learned Single Judge that B. R. Kapur was entitled to have his service as Commandant 25th Battalion as officiation in a senior post was however affirmed.
Shri Jawahar Lal Gupta, learned counsel for Harjeet Singh argued that the service of Harjeet Singh in a senior cadre post was approved by the Government of India and once it was so approved the question whether there was over utilisation of deputation and central reserve quota was irrelevant for the purpose of determining the year of allotment.
The only relevant question was whether the appellant had continuously officiated in a senior post and, from what date.
There after the year of allotment was to be determined by the simple and mechanical application of rule 3(3) (b) of the Indian Police Service (Regulation of Seniority) Rules.
He further submitted that the circumstance that B. R. Kapur was senior to Harjeet Singh in the Select List was also irrelevant in considering the question of year of allotment.
It was only if both of them were given the same year of allotment that their inter se seniority in the Select List would become relevant.
Shri Mridul, learned counsel for B. R. Kapur, argued that 467 the single Judge of the High Court was wrong in excluding the period of service of B. R. Kapur as Director of Sports and as Additional Controller of Stores in determining the year of allotment.
He further contended that in any event the case of B. R. Kapur was an appropriate one for the exercise by the Central Government of its power to relax the rules and that this Court should give a direction to the Central Government to relax the rules so as to enable that part of Kapur 's service to be treated as service in a senior post.
Shri H. L. Sibal, learned counsel for one of the respondents argued that the number of cadre officers who could be deputed by the Central and State Governments for service elsewhere was limited and fixed by the Indian Police Service (Fixation of Cadre Strength) Regulations.
By deputing more cadre officers than authorised by those Regulations and appointing non cadre officers to artificial vacancies so created in cadre posts, the State Government had adopted a device to enable the officers of the State Police Service to continuously officiate in Senior posts longer than justified.
The Cadre Strength Regulations were thereby contravened and the Cadre Rules which provide for the temporary appointment of non cadre officers to cadre posts circumvented.
He submitted that officiating service rendered by a non cadre officer in a Senior post where the vacancy in the cadre post was the result of over utilisation of the deputation quota could not be taken into account under the Indian Police Service Regulation of Seniority Rules.
Shri R. K. Garg, who appeared for the remaining respondents urged that to permit promoted officers to take advantage of the deviation from the Cadre Rules and the Cadre Fixation of Strength Regulations for the purpose of gaining an advantage under the Seniority Rules would be a denial of the equal protection of the laws to the direct recruits who would be affected by such procedure.
He also urged that Rule 3 of the Seniority Rules if so interpreted as to take into account officiation against the rules must be held to contravene Articles 14 and 16 of the constitution.
In order to appreciate the rival contentions it is necessary to examine the relevant statutory provisions, rules and regulations.
Article 312(1) empowers Parliament to provide, by law, for the creation of All India Services common to the Union and the States.
Article 312(2) declares that the services known at the commencement of the Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under article 312(1).
468 section 2 of the All India Services Act, 1951 defines an "All India Service" as meaning the service known as the Indian Administrative Service or the service known as the Indian Police Service or any other service specified in section 2(A).
3 enables the Central Government after consultation with the Government of the States concerned to make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All India Service.
The Indian Police Service (Cadre) Rules, 1954, made in exercise of the powers conferred by section 3 (1) of the All India Services Act, provide for the constitution of Cadres and certain connected matters.
A Cadre Officer is defined as a member of the Indian Police Service and a Cadre post is defined as any of the posts specified under item 1 of each cadre in the schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955.
Rule 4(1) provides that the strength and composition of a cadre constituted for each State or group of States shall be as determined by Regulations made by the Central Government in consultation with the State Governments.
Rule 4(2) requires the Central Government to re examine the strength and composition of each such cadre at intervals of every three years in consultation with the State Government concerned and to make such alterations as it deems fit.
The first proviso to Rule 4(2) expressly stipulates that the power of the Central Government to alter the strength and composition of any cadre at any other time is not affected by rule 4(2).
The second proviso to r. 4(2) enables the State Government to add, for a period not exceeding one year, and with the approval of the Central Government for a further period not exceeding two years, to a State cadre one or more posts carrying duties or responsibilities of a like nature to a cadre post.
Rule 6 authorises the deputation of cadre officers for service under the Central Government or another State Government or under a Company, Association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or a State Government, a Municipal Corporation or a Local body or an international organisation etc.
Rule 8 prescribes "save as otherwise provided in these rules, every cadre post shall be filled by a cadre officer".
Rule 9(1) provides for the temporary appointment of a non cadre officer to a cadre post if the State Government is satisfied that the vacancy is not likely to last for more than three months or if there is no suitable cadre officer available for filling the vacancy.
Where a non cadre officer is appointed to a cadre post for a period exceeding three months the State Government is required forthwith to report the fact to the Central Government together with their reasons for making the 469 appointment.
The Central Government may then direct the State Government to terminate the appointment of such person and to appoint a cadre officer to the post, in which case the State Government is bound to give effect to the direction.
Where a cadre post is likely to be filled by a non cadre officer for a period exceeding six months the Central Government is required to report the full facts to the Union Public Service Commission and may thereafter give appropriate directions to the State Government in the light of the advice given by the Union Public Service Commission.
Pursuant to the powers conferred by R. 4(1) of the Indian Police Service Cadre Rules, the Central Government has made the Indian Police Service (Fixation of Cadre Strength) Regulations 1955, determining the strength and composition of the cadres of each of the States.
In the schedule the total authorised cadre strength for the State of Punjab is mentioned as 70 consisting of 34 Senior Posts under the State Government, 14 Senior posts under the Central Government, 7 Deputation Reserve posts, 6 Leave Reserve posts and 7 Junior posts and 4 Training Reserve posts.
The thirty four senior posts under the State Government are also particularly specified.
Thirty six out of the total of forty eight Senior posts under the Central and State Governments, the deputation Reserve posts, the Leave Reserve posts, the Junior posts and the Training Reserve posts are all stated to be `direct recruitment posts ' while the remaining 12 Senior posts under the Central and State Governments are stated to be "promotion posts".
It is necessary to mention here that the thirty four posts specified as "Senior posts under the State Government" are shown as item 1 of the schedule and the fourteen Senior posts under the Central Government are shown as item 2 of the schedule.
The Indian Police Service (Recruitment) Rules, 1954 provide for recruitment to the Service (a) by a competitive service and (b) by promotion of substantive members of a State Police Service.
Rule 9(1) empowers the Central Government to recruit to the Indian Police Service persons by promotion from amongst the substantive members of the State Police Service in accordance with Regulations made by the Central Government.
The recruitment is required to be made on the recommendation of the State Government concerned and in consultation with the Union Public Service Commission.
Rule 9(2) provides that the total number of persons recruited by promotion shall not at any time exceed 25% of the number of posts shown against item No. 1 and 2 of the cadre in the schedule to the Indian Police Service (Fixation of Cadre Strength) Regulation.
Items 1 and 2, we have already mentioned are Senior posts under the State and the Central Governments.
470 The Indian Police Service (Appointment by Promotion) Regulations 1955, made pursuant to Rule 9(1) of the Indian Police Service Recruitment Rules 1954 prescribes a very elaborate procedure for making appointments by promotion to the Indian Police Service.
A Selection Committee is required to be constituted for each State consisting of the Chairman or any other member of the Union Public Service Commission and other members specified in the schedule.
In the case of Punjab the other members are the Chief Secretary to the Government of Punjab, the Secretary to the Government of Punjab in the Home Department, the Inspector General of Police and a nominee of the Government of India not below the rank of Joint Secretary.
The Selection Committee is required to meet at intervals ordinarily not exceeding one year and to consider the cases of all eligible substantive members of the State Police Service.
The Committee is required to prepare a list of such eligible members of the State Police Service who are suitable for promotion to the Indian Police Service The selection for inclusion in the list is to be based on merit and suitability in all respects with due regard to seniority but the names of the officers included in the list are required to be arranged in order of seniority in the State Police Service.
The list prepared by the Selection Committee is then to be forwarded to the Union Public Service Commission by the State Government with all relevant records, the reasons recorded by the Committee for any proposed supersession of any member of the State Police Service and the observation of the State Government on the recommendation of the Committee.
Thereafter the Union Public Service Commission is to consider the list prepared by the Committee and to make any changes considered by them, to be necessary, after informing the State Government of the proposed changes.
The list as finally approved by the Commission is to form `the Select List of the members of the State Police Service. ' All appointments of members of the State Police Service from the Select List to posts borne on the State cadre are to be made in accordance with the provisions of R. 9 of the Cadre Rules.
In making the appointments the State Government is to follow the order in which the names of such officers appear in the Select List except where administrative exigencies require otherwise and the vacancy is not likely to last for more than three months.
Appointments of members to the Indian Police Service are to be made by the Central Government on the recommendation of the State Government in the order in which the names of the members of the State Police Service appear in the Select List for the time being in force.
We arrive finally at the Indian Police Service (Regulation of Seniority) Rules 1954.
Rules 3 provides that every officer shall be assigned 471 a year of allotment in accordance with the provisions of that rule.
Rule 3(3)(b) prescribes that the year of allotment of an officer who is appointed to the service by promotion in accordance with rule 9 of the Recruitment rules, shall be the year of allotment of the junior most among the officers recruited by competitive examination who officiated continuously in a Senior post from a date earlier than the date of commencement of such officiation by the officer appointed to the service by promotion.
`Senior post ' was originally defined as a post included and specified under item 1 of the cadre of each State in the Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulation and as including posts declared by the State Government as equivalent to such posts.
The definition was amended with effect from April 22, 1967 and the present definition does not include posts declared equivalent by the State Government to cadre posts.
Rule 4(1) provides that the seniority of officers inter se shall be determined in accordance with the provisions of the rules.
Rule 4(4) provides that the Seniority of officers who are assigned the same year of allotment shall be in the order of the dates on which they started officiating continuously in the Senior post, but in the case of Officers appointed to the service by promotion, the dates of officiation shall be the same as the dates taken into account for the purpose of assignment of year of allotment under rule 3(3).
Where the dates of commencement of continuous officiation in a Senior post of more than one Officer appointed to the service by promotion is the same their seniority inter se shall be in the order of their dates of appointment to the service and where the date of appointment is also the same it shall be in the order in which their names are arranged on the date of their appointment to the service in the Select List.
These are the Statutory provisions, Rules and Regulations with which we are concerned in the present appeals.
What are primarily in question are the year of allotment and the Seniority of the two officers, Harjeet Singh and B. R. Kapur.
So, therefore, our primary concern is with the Indian Police Service (Regulation of Seniority) Rules, 1954.
Rule 3(3) (b) as well as rule 4(4) throw up the date of continuous officiation of an officer in a cadre post as the most important factor both for the purpose of assignment of year of allotment and for the purpose of assignment of seniority.
For the purpose of assignment of year of allotment the date of continuous officiation in a senior post is the only relevant factor while for the purpose of assignment of seniority, first, the date of continuous officiation in a senior post is the only relevant factor while for the if the date of commencement of continuous officiation in a Senior 472 post of more than one officer is the same and, finally, the order in the Select List if the date of appointment is also the same, are the several relevant factors in that order.
Thus the order in the Select List is irrelevant for the purpose of determining the year of allotment and is relevant in determining the seniority, only if the year of allotment of the Officers is the same and their date of appointment is also the same.
Since the order in the Select List is dependent on the seniority in the State Service, it follows that seniority in the State Police Service is irrelevant for the purpose of determining the year of allotment and is relevant for the purpose of determining the seniority only if the year of allotment and the date of appointment of two or more officers are the same.
It must, therefore, necessarily follow that an officer who is junior to another in the State Police Service but, who starts continuous officiation in a Senior post from a date earlier than the other, may frog leap and gain Seniority by the consequential assignment of an earlier year of allotment.
There is nothing in the Indian Police Service (Regulation of Seniority) Rules, which has the effect of depriving an officer the benefit of continuous officiation on the ground that some one senior to him in the State Police Service did not so continuously officiate.
Nor are we able to discover any other rule in the innumerable Rules and Regulations governing the recruitment, appointment and Regulation of Seniority of officers of the Indian Police Service which is designed to deprive an officer, the benefit of continuous officiation in a Senior post.
One of the submissions made to us by the respondents was that the Select List having been prepared on grounds of merit and ability, the order in which officers were ranked in the Select List should not be disturbed after they were actually promoted to the Indian Police Service.
This submission is without substance.
Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability.
Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of Officers are arranged in the order of that seniority.
We, are, therefore, satisfied that the benefit of continuous officiation in a Senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate.
It is, however, true that under Regulation 8 of the Indian Police Service (Appointment by Promotion) Regulations, appointments to 473 cadre posts from among non cadre officers should be made according to the order in which the names of such officers appear in the Select List.
A deviation from the order is permissible if administrative exigencies require it and if the vacancy is not likely to last for more than three months.
Of course, the Regulation does not license uninhibited deviation to favour individual non cadre officers.
If that is done the deviation is liable to challenge.
But where there is no such allegation, there is no reason why a junior non cadre officer should lose the benefit of his continuous officiation in a cadre post merely because a non cadre officer senior to him in the Select List did not continuously officiate likewise.
In such a situation, it would be for the Government of India to consider whether the relevant rules may not be so relaxed as to enable such non cadre officer to add his officiation in a non cadre post to his officiation in a cadre post, regard being had to the circumstances under which the officer had to work in a non cadre post while his junior in the Select List was made to fill the cadre post.
But, surely, it cannot work to the prejudice of the junior officer in the Select List so as to nullify the actual, continuous, officiating service rendered by him.
In the present case there is no allegation that B. R. Kapur was appointed to the non cadre posts of Director of Sports and Additional Controller of Stores with a view to favour Harjeet Singh.
Now, the question for consideration is whether non cadre officers are to be denied the benefit of continuous officiation in senior post merely because cadre officers were appointed on deputation elsewhere in excess of the number of posts specified against `Deputation Reserve ' in the schedule to the Cadre Fixation of Strength Regulation.
We are unable to discover any provision in the Seniority Rules, Recruitment Rules, Cadre Rules or the Cadre Regulations which would lead to such a consequence.
To begin with it has to be borne in mind that the Fixation of Cadre Strength Regulations are made in exercise of the powers conferred on the Central Government by Rule 4(1) of the Cadre Rules and are, therefore, subordinate to the Cadre rules even as rules made in exercise of powers conferred by a Statute are necessarily subordinate to the Statute.
Rule 6 of the Cadre Rules provides for the deputation of Cadre Officers and Rule 9 of the same rules provides for the temporary appointment of non cadre officers to cadre posts.
In making appointments of non cadre officers to cadre posts the rule prescribes the fulfillment of certain conditions.
It is not disputed that the conditions prescribed by Rule 9 of the Cadre Rules were fulfilled.
That the conditions were fulfilled is also apparent from the very impugned order.
If non cadre officers are appointed to cadre posts in accordance with Rule 9 of the Cadre Rules, is there 474 any justification for denying the non cadre officer the benefit of officiation in the cadre post on the ground that more cadre officers than the number specified in the Fixation of Cadre Strength Regulations had been deputed for service elsewhere ? It is not disputed that the deputation of cadre officers was in accordance with Rule 6 of the Cadre Rules.
True, Rule 4(1) of the Cadre Rule enables the Central Government to make Regulations determining the strength and composition of the Cadre of each State.
It is also true that a definite number of posts is specified against `Deputation Reserve ' in the schedule to the Fixation of Cadre Strength Regulations.
But if owing to the situational demands and exigencies of the administration the number is exceeded and the State Government is compelled to utilise the services of experienced non cadre officers to fill cadre posts in strict compliance with the Cadre Rules, we see no reason to hold that the service rendered by the non cadre officers in such posts should be ignored.
On the other hand we think that the Fixation of Cadre Strength Regulations made under Rule 4 of the Cadre Rules do not over ride the Recruitment Rule, the remaining Cadre Rules and the Seniority Rules so as to render invalid any service rendered by a non cadre officer in a cadre post on the mere ground of breach of the Fixation of Cadre Strength Regulations, when there has been strict compliance with Rule 9 of the Cadre Rules.
We think that fixation of Cadre strength is the exclusive concern of the Central and the State Governments and the Regulations are made for their convenience and better relationship.
Excessive utilisation of `Deputation or Central Reserve ' is a matter for adjustment and controversy between the Central and the State Governments and is of no concern to any member of the Service.
For example no cadre officer who is asked to fill a deputation post can refuse to join the post on the ground that the `Deputation Reserve ' has already been exceeded.
The Regulations are not intended to and do not confer any right on any member of the Service, unlike some other Rules which do confer or create rights in the members of the Services.
Among other Rules, for instance, Rule 9(2) of the Recruitment Rules stipulates that the total number of persons recruited by promotion shall not at any time exceed 25% of the posts shown against item Nos. 1 and 2 of the cadre in the schedule to the Fixation of Cadre Strength Regulations.
Now, if at a point of time this limit is exceeded, direct recruits may have a just cause for complaint and it may perhaps be held that to the extent of the excess the appointments by promotion are invalid and confer no rights of seniority over direct recruits.
But, as we said, the Fixation of Strength Regulation confer no rights on members of the Service and a mere breach of the Regulation furnishes no cause of action to any member of the service 475 On the ground that his seniority is affected in some round about way.
We may add that there is no suggestion that Rule 9(2) of the Recruitment Rules was contravened.
It was brought to our notice that several Senior cadre officers had to be deputed to organise Battalions of the Punjab Armed Police which came to be formed after the Chinese aggression in 1962 and at the time of the Indo Pakistan War in 1965.
It was in the vacancies caused by their deputation that Senior officers of the State Police Services were appointed to cadre posts.
Under Rule 6(A) (2) of the Indian Police Service Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service, experience and performance he is found to be suitable for appointment to a post in the Senior time scale of pay.
It appears that, at that time, in Punjab, there was no direct recruit in the Junior time scale of pay who possessed experience of atleast four years who could be thought of for appointment in the Senior post.
The State Government, therefore, had no option except to appoint experienced and suitable non cadre officers to cadre posts.
It was also brought to our notice that no cadre officer who had been so deputed suffered in any manner in the matter of his career.
It was repeatedly suggested that the State Governments were generally in the habit of adopting stratagem of sending cadre officer on deputation in excess of the Deputation Reserve in order to enable Officers of the State Services to officiate in cadre posts so as to further enable them to get the benefit of such continuous officiation when finally appointed to an All India Service.
Whatever truth there may be in the suggestion it has to be remembered firstly that the appointment of non cadre officers to cadre posts is subject to the directions of the Central Government who may terminate such appointment.
The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extend beyond six months.
Next, it has also to be borne in mind that non cadre officers of proven merit only are appointed to cadre posts.
They are appointed to cadre posts if they are already in the Select List and the appointments also are made in accordance with the order in which they are placed in the Select List.
We have earlier mentioned how the Select List itself if prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination of various levels, of the merit of the officers of the State Police Service.
A State officer whose name appears on the Select List may expect to be appointed to a Cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position.
A direct recruit who ordi 476 narily comes into the picture years after a State Officer 's name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promoted officer.
We are also unable to appreciate the submission of Shri R. K. Garg that every departure from a rule, which departure gives certain advantages to one group of civil servants as against another necessarily involves an encroachment of the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution.
The proposition is widely stated, far fetched in relation to the facts of the instant case and not supported by N. K. Chauhan & Ors.
vs State of Gujarat(1) on which Shri Garg relied.
In Chauhan 's case the Court was considering the effect of the breach of a 'Quota ' rule fixing the proportion of 'direct recruits ' and 'promotees '.
In the present case, as already noticed by us, there is no allegation of breach of the 'quota ' rule embodied in Rule 9(2) of the Recruitment Rules.
The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any 'Quota ' rule.
The consequential submission of Shri Garg that rule 3(3)(b), if so interpreted as to take into account officiation in contravention of the rules, offends Articles 14 and 16 of the Constitution, therefore, loses all force particularly in view of what we have said about the true nature of the Fixation of Cadre Strength Regulations.
We also notice that the vires of Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules which is in similar terms as rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules was upheld by a Constitution Bench of this Court in A. P. Sharma vs Union of India.(2) In the light of our foregoing discussion we hold that the 'over utilisation ' of 'Deputation and Central Reserve ' does not affect the questions of assignment of the year of allotment and the seniority of the appellants.
The concurrent finding of the learned single judge and the Division Bench that Kapur 's service as Commandant, P.A.P. Battalion No. 25 was service in a Senior post was not challenged before us.
Shri Mridul argued that the records reveal that Kapur 's appointment to the posts of Director of Sports and Additional Controller of Stores was because of his exceptional ability and, therefore, those posts must be treated as cadre posts.
In any event, he suggested that we should invite the Government of India to suitably 477 relax the rules so as to enable Kapur 's service as Director of Sports and Additional Controller of Stores to be reckoned as service in cadre posts.
We cannot of course hold Kapur 's service in non cadre posts as service in cadre posts.
Nor can we give the direction sought by Shri Mridul.
It is of course open to Kapur to invoke the power of the Government of India to relax the rules and it is for the Government to take a just decision in the matter.
We have no advice to offer.
Both the Civil Appeals are allowed, the Judgment of the Division Bench is set aside and the judgment of the Single Judge is restored.
Writ Petition Nos.
520 524 have been filed by some of the direct recruits questioning the vires of rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules and Rule 3 of the All India Services (Conditions of Service Residuary Matter) Rules, 1960 which vests in the Government of India the power to relax.
We have upheld the validity of Rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules and the question of the vires of Rule 3 of the All India Service (Conditions of Service residuary matters) rules does not arise at present.
The Writ Petitions are also dismissed.
S.R. Appeals allowed and Petitions dismissed.

summary:
On selection by the Punjab Public Service Commission B. R. Kapur (appellant in CA 2413/78) and Harjeet Singh (Appellant in CA 2526/77) were directly recruited in 1951, as Deputy Superintendents of Police in the Punjab Police Service.
B. R. Kapur was senior to Harjeet Singh as Deputy Superintendent of Police.
In 1960, both of them were included in the Select List prepared under Regulation 7 of the Indian Police Service, (Appointment by Promotion) Regulations, 1955.
On November 24, 1960, B. R. Kapur was appointed as Assistant Inspector General of Police which post was a cadre post.
In May 1961 he was appointed to a non cadre post as Director of Sports and Youth Programme and Deputy Secretary to Government, Sports Department.
He held this post upto November 18, 1962, and thereafter he was appointed as Additional Controller of Stores, Punjab which was also a non cadre post.
He continued to hold the post of Additional Controller of Stores till 1965, from July 19, 1965 he was Commandant, 40th Battalion PAP, J & K which was a cadre post.
He held the post till July 11, 1966 when he took over as Commandant of 25th Battalion PAP.
On the reorganisation of the State of Punjab, he was appointed as Assistant General of Police, State of Punjab from November 1, 1966.
Thereafter he continuously held cadre posts and was finally appointed to the Indian Police Service with effect from September 3, 1969.
Shri Harjeet Singh was appointed to officiate as Superintendent of Police in December 1960.
The post was a cadre post.
He continued to hold a cadre post till he was appointed to the Indian Police Service with effect from September 3, 1969.
After the two officers were appointed to the Indian Police Service the question of assignment of year of allotment and fixation of seniority arose for the consideration of the Government of India.
Shri B. R. Kapur was allotted the year 1963 and placed below Sube Singh and above section R. Sharma (direct recruits) in the Indian Police Service, counting his continuous officiating service from 1 11 66 only, as service in a senior cadre post and not his service in the 460 non cadre post.
In the case of Harjeet Singh, though he admittedly officiated continuously in a senior cadre post from December 1960, he was also allotted to the year 1963 and placed below Sri Kapur on the ground that he ranked below Sri Kapur in the select list.
Kapur and Harjeet Singh filed writ petitions in the High Court of Punjab and Haryana questioning the allotment of the year 1963.
The Writ petitions were accepted.
The Court directed the Union and Punjab Governments to redetermine the year of allotment and seniority of Harjeet Singh and Kapur taking December 17.
1960 and July 29, 1965 respectively as the dates of their continuous officiation in a senior post.
A further direction was issued that before redetermining the seniority of the two officials, the respondents to the Writ Petitions who were direct recruits should be afforded an opportunity to make their representation.
Appeals under clause 10 of the Letters Patent were filed by the affected direct recruits as also by B. R. Kapur.
The direct recruits contended that neither B. R. Kapur nor Harjeet Singh would have ever started officiating in the senior post on the dates from which they officiated or claimed officiating in the senior post on the dates from which they officiated or claimed to have officiated in senior posts, if the State Governments had not created artificial vacancies by excessive utilisation of the "deputation and central reserve" quota in contravention of the cadre Rules and the Cadre strength Regulations.
The arguments before the Division Bench therefore was that the period of service attributable to over utilisation of 'deputation and central reserve ' quota should not be treated as service in a senior post for the purpose of determining the year of allotment of officers promoted to the Indian Police Service.
The argument was accepted by the Division Bench and a direction was issued to the Central Government to reconsider the question of year of allotment after taking into consideration the question of over utilisation and its effect.
The finding of the learned Single Judge that B. R. Kapur was entitled to have his service as Commandant 25th battalion as officiation in a senior post was however affirmed.
Hence the appeals by special leave by Harjeet Singh and Kapur.
Allowing the appeals and dismissing the Petitions, the Court.
^ HELD: 1 Rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules, 1954 is valid.
[476E] A.P. Sharma vs Union of India, ; followed.
Rule 3(3)(b) as well as Rule 4(4) of the Indian Police Service (Regulation of Seniority Rules 1954 throw up the date of continuous officiation of an officer in a cadre post as the most important factor both for the purpose of assignment of year of allotment and for the purpose of assignment of seniority.
For the purpose of assignment of year of allotment the date of continuous officiation in a senior post is the only relevant factor while for the purpose of assignment of seniority, first, the date of continuous officiation in a senior post, then the date of appointment to the Service if the date of commencement of continuous officiation in a Senior post of more than one officer is the same and, finally, the order in the Select List if the date of appointment is also the same and, finally, the order in the Select List if the date of appointment is also the same are the several relevant factors in that order.
Thus the order in the Select List is irrelevant for the purpose of determining the year of allotment 461 and is relevant in determining the seniority, only if the year of allotment of the officers is also the same, and their date of appointment is also the same.
Since the order in the Select List is dependent on the seniority in the State Service, it follows that seniority in the State Police Service is irrelevant for the purpose of determining the year of allotment and is relevant for the purpose of determining the seniority only if the year of allotment and the date of appointment of two or more officers are the same.
Therefore an officer who is junior to another in the State Police Service but, who starts continuous officiation in a Senior post from a date earlier than the other, may frog leap and gain seniority by the consequential assignment of an earlier year of allotment.
Neither the Indian Police Service (Regulation of Seniority) Rules nor any other rule in the innumerable Rules and Regulations governing the recruitment, appointment and Regulation of seniority of officers of the Indian Police Service is designed to deprive an officer, the benefit of continuous officiation in a senior post.
[471G H, 472A E] 3.
Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List is according to seniority in the State Police Service and not according to merit and ability.
Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of officers are arranged in the order of that seniority.
Therefore the benefit of continuous officiation in a Senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate.
[472F H] 4.
It is true that under Regulation 8 of the Indian Police Service (Appointment by Promotion) Regulation & Appointments to cadre posts from among non cadre officers should be made according to the order in which the names of such officers appear in the Select List.
A deviation from the order is permissible if administrative exigencies require it and if the vacancy is not likely to last for more than three months.
Of course, the Regulation does not license uninhibited deviation to favour individual non cadre officers.
If that is done the deviation is liable to challenge.
But where there is no such allegation, there is no reason why a junior non cadre officer should lose the benefit of his continuous officiation in a cadre post merely because a non cadre officer senior to him in the Select List did not continuously officiate likewise.
In such a situation, it would be for the Government of India to consider whether the relevant rules may not be so relaxed as to enable such non cadre officer to add his officiation in a non cadre post to his officiation in a cadre post, regard being had to the circumstances under which the officer had to work in a non cadre post while his junior in the Select List was made to fill the cadre post.
But, surely, it cannot work to the prejudice of the junior officer in the Select List so as to nullify the actual, continuous, officiating service rendered by him.
In the present case there is no allegation that B. R. Kapur was appointed to the non cadre posts of Director of Sports and Additional Controller of Stores with a view to favour Harjeet Singh.
[472 H, 473A D] 5.
Non cadre officers if they are appointed to cadre posts in accordance with Rule 9 of the Cadre Rules should not be denied the benefit of continuous officiation in senior post merely because cadre officers were appointed on deputation elsewhere in excess of the number of posts specified against a 462 Deputation Reserve in the schedule to the Cadre Fixation of Strength Regulation.
[473E F] Fixation of Cadre Strength Regulations are made in exercise of the power conferred on the Central Government by Rule 4(1) of the Cadre Rules and are, therefore, subordinate to the Cadre rules even as rules made in exercise of powers conferred by a Statute are necessarily subordinate to the Statute.
Rule 6 of the Cadre Rules provides for the deputation of Cadre officers and Rule 9 of the same rules provides for the temporary appointment of non cadre officers to cadre posts.
In making appointment of non cadre officers to cadre posts the rule prescribes the fulfillment of certain conditions.
In the instant case.
that the conditions prescribed by rule 9 of the Cadre Rules were fulfilled is clear from the impugned order.
[473F H] 6.
Rule 4(1) of the Cadre Rules enables the Central Government to make Regulations determining the strength and composition of the Cadre of each State.
A definite number of posts is also specified against "Deputation Reserve" in the schedule to the fixation of Cadre Strength Regulations.
But if owing to the situational demands and exigencies of the administration, the number is exceeded and the State Government is compelled to utilise the services of experienced non cadre officers to fill cadre posts in strict compliance with the Cadre Rules, the Service rendered by the non cadre officers in such posts should not be ignored.
In the instant case, the deputation of cadre officers was in accordance with Rule 6 of the Cadre Rules.
[474A C] 7.
Fixation of cadre strength Regulations made under Rule 4 of the Cadre Rules do not over ride the Recruitment Rule, the remaining Cadre Rules and the Seniority Rules so as to render invalid any service rendered by a non cadre officer in a cadre post on the mere ground of breach of the Fixation of Cadre Strength Regulations, when there has been strict compliance with Rule 9 of the Cadre Rules.
Fixation of Cadre Strength is the exclusive concern of the Central and the State Governments and the Regulations are made for their convenience and better relationship.
Excessive utilisation of 'Deputation or Central Reserve ' is a matter for adjustment and controversy between the Central and the State Governments and is of no concern to any member of the service.
For example no cadre officer who is asked to fill a deputation post can refuse to join the post on the ground that the 'Deputation Reserve ' has already been exceeded.
The Regulations are not intended to and do not confer any right on any member of the Service, unlike some other Rules which do confer or create rights in the members of the Services.
A mere breach of the rule furnishes no cause of action on the ground that his seniority is affected in some round about way.
[474C G and 475A] 8.
Under Rule 6(A) (2) of the Indian Police Service Recruitment Rules a direct recruit in the junior time scale of pay can be appointed to a post in the Senior time scale of pay if having regard to his length of service, experience and performance he is found to be suitable for appointment to post in the Senior time scale of pay.
Since at that time in Punjab, there was no direct recruit in the junior time scale of pay who possessed experience of at least four years who could be thought of for appointment in the Senior post, the State Government had no option except to appoint experienced and suitable non cadre officers to cadre posts.
Further no cadre officer who had been so deputed suffered in any manner in the matter of his career.
[475B D] 463 Further, the appointment of non cadre officers to cadre posts is subject to the directions of the Central Government, who may terminate such appointment.
The Central Government too is bound to obtain the advice of the Union Public Service Commission if the appointment is to extent beyond six months.
Moreover non cadre officers of proven merit only are appointed to cadre posts.
They are appointed to cadre posts if they are already in the Select List and the appointments are made in accordance with the order in which they are placed in the Select List which is prepared under the Indian Police Service Recruitment Rules after following an elaborate procedure involving a thorough examination at various levels, of the merit of the officers of the State Police Service.
A State officer whose name appears on the Select List may expect to be appointed to a cadre post and to be promoted to the Indian Police Service at any time thereafter according to vacancy position.
A direct recruit who ordinarily comes into the picture years after a State Officer 's name appears on the Select List cannot have any real grievance that the promoted officer is given an anterior date for the purpose of seniority since such date can never be earlier than the date from which the junior most direct recruit continuously officiated in a Senior post prior to the commencement of the continuous officiation of the promoted officer.
[475E H, 476A B] 9.
Every departure from a rule which departure gives certain advantages to one group of Civil servants as against another does not necessarily involve an encroachment of the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution.
The Fixation of Cadre Strength Regulations cannot be interpreted as comprising any "Quota" rule.
There is no allegation of breach of "quota" rule embodied in Rule 9(2) of the Recruitment Rules either.
[476B E] N. K. Chauhan and Ors.
vs State of Gujarat, ; , distinguished.
"The over utilisation" of "Deputation and Central Reserve" does not affect the questions of assignment of the year of allotment and the seniority of the appellants.
[476F G]


judgement:
ivil Appeal Nos.
804 810 of 1977.
Appeals by Special Leave from the Judgment and order dated 20 10 76 of the Allahabad High Court in Writ Petitions Nos.
1529, 1564 and 1568 to 1571/63.
AND WRIT PETITIONS Nos. 650, 651, 652 653, 48, 394, 395, 691, 670, 680, 681, 687 688/79, 412 415, 416 418/79.
Under Article 32 of the Constitution AND SPECIAL LEAVE PETITION (CIVIL) NOS.
5193, 5196 and 17 5517/79 From the Judgment and order dated 20 10 1976 of the Allahabad High Court in Civil Misc.
Writ Nos.
1523, 1544, 1528, 1541 and 1527/63.
R.K. Garg, P.C. Bhartari for the Appellant in C.A. 804/77.
G. L. Sanghi and P.C. Bhartari, for the Petitioner in W.P. No. 48/79 and in S.L.P. Nos.
5193 5196 and 5517/79.
P. C. Bhartari for the Appellant/Petitioners in C.A. 805 810/ 77 and W.P. 650, 651, 652, 653, 395, 691, 670, 680, 681, 687, 688/79 and other cases.
Shanti Bhushan P.C. Bhartari for the Petitioner in W.P. 394/79.
500 S.V. Gupte, Raj Narain Munshi and Sobhagmal Jain for RR.
7 in C.A. Nos.
804 810/77 and W.P. Nos.
650/79 and SLP (C) Nos.
5193 5196/79 and 5517/79.
Y.S. Chitaley, Raj Narain Munshi and Sobhagmal Jain for RR 7 in W.P. 48/79.
Raj Narain Munshi, Sobhagmal Jain and S.K. Jain for RR 7.
in W.P. 651, 652, 653, 394, 395, 691, 670, 680, 651, 687 688/79.
P.B. Sharma for RR 8 in W.P. 48/79.
O.P. Rana for the Intervener, State of U.P.
In all these appeals, writ petitions and special leave petitions the challenge is against the validity of the scheme framed by the State Transport Undertaking of U.P.
In giving special leave in Civil Appeals Nos. 804 to 810 of 1977 this Court restricted the special leave by stating "Special leave granted confined to the alleged conflict between section 68(c) of the and sections 7 and 16 of the U.P. Amendment Act of 1976, (Act 127/1976).
When the hearing in these matters started Mr. Garg, learned counsel for the appellants, submitted that there is no conflict between sec.
68C of the and sections 7 and 16 of the U.P. Amendment Act.
But his plea is that the amendment has not in any way affected or cured the defect in sec.
68C and there fore the defect in the scheme continues to render it invalid In terms of the restricted leave granted, we do not think it is strictly open to the learned counsel to raise the plea which he has taken before us.
But as several matters are involved and there is a conflict between two judgments of the Allahabad High Court we gave permission to the learned counsel to raise this question.
The point that is raised by Mr. Garg is that the introduction of sections 7 and 16 by the Amending Act 27 of 1976, the Uttar Pradesh Motor Vehicles (Special Provisions) Act, 1976 does not dispense with the requirements specified in sec.
68C as the two section relate only to approved schemes.
In order to appreciate learned counsel 's contention it is necessary to set out sec.
68C of the .
Section 68C reads as follows: 501 "Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered the area of route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to by published in the official Gazette and also in such other manner as the State Government may direct.
" Sec.
68C requires the State Transport Undertaking to prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed.
It is thus necessary that the scheme should give (1) particulars of the services proposed to be rendered; (2) the area or route proposed to be covered, (3) such other particulars thereto as may be prescribed.
The scheme prepared under sec.
68C did not specify the number of services to be provided.
The Allahabad High Court in Shashi Kant Rai & ors.
vs Regional Transport Authority, Varanasi Region & ors.
held that if the particulars regarding the adequacy etc.
Of the proposed transport services are not given in the draft scheme then it will not be possible for the objectors to file any effective objection to the draft scheme in this regard and it would be difficult for the Hearing Authority to give its decision whether the draft scheme will be able to provide road transport services which would fulfil the four purposes mentioned in sec.
The Court held that the draft scheme must give particulars indicating how the proposed transport services would be efficient, adequate, economical and properly coordinated.
The scheme mentioned "adequate number of State transport services, according to traffic requirements are to be provided on the route or the portion thereof mentioned in cl.
(2) above.
The learned single Judge and the Division Bench of the Allahabad High Court were of the view that the draft scheme prepared under sec.
68 C was defective as the minimum number of services and the vehicles which were proposed to be introduced on the road had not been mentioned.
In order to get over the effects of the decision the U.P. Legislature introduced the 502 Uttar Pradesh Motor Vehicles (Special Provisions) Act, 1976 (U.P. Act No. 27 of 1976).
Section 7 of the Act reads as follows: "Nothing contained in section 68C or section 68D of the principal Act shall be deemed to require or ever to have required a specification being made in an approved scheme of the number of services to be provided.
" Section 16 of the Act is the validating section and runs as follows: "Notwithstanding any judgment decree or order of any court, any scheme prepared or published under section 68C, or approved or modified under section 68D of the principal Act or purporting to have been prepared, published, approved or modified shall not be deemed to be or have been in valid on the ground of the number of the services to be provided being not specified therein." Mr. R. K Garg, the learned counsel for the appellants, submitted that sec.
7 is applicable only to approved schemes i.e. for a scheme which had been approved under sec.
68D(3) and that its object is to cure the defect in approved scheme under sec.
68 D where the number of services provided is not mentioned.
The learned counsel would reach the section that nothing contained in the principal Act shall be deemed to require or ever to have required a specification of the number of services to be provided in an approved scheme.
He would emphasise the words "approved scheme" and submit that the change if any is as regards the particulars required under an approved scheme under sec.
68 D and that this section would not relate, to the scheme under sec.
The marginal note to sec.
7 states "Specification of number of services not an essential requirement of Section 68C or Section 68D." The intention therefore is to make specification of number of services not an essential requirement under sections 68C and 68D.
The section therefore is intended to cover sec.
68 C also.
It is seen the intention is carried out by the section providing that "Nothing contained in Section 68C or Section 68D of the principal Act shall be deemed to require . " The operation of the section is thus intended to apply both to sec.
68C and 68 D.
The result would be that if one of the requirements of sec.
68 C is that it should specify the number of services to be provided it shall be deemed that requirement was never there.
The reference to the approved scheme is because sec.
68 C and section 68 D form, part of the same procedure of publication of a scheme and approval of the scheme.
That this is the object is put beyond all doubt by introduction of the validating 503 section, section 16, which provides that in any scheme prepared or published under sec.
68 C or approved or modified under sec.
68D of the principal Act shall not be deemed to be invalid on the ground of number of services to be provided being not specified therein.
We are satisfied that sections 7 and 16 of the Act have validly provided that the specification of the number of services is not and shall be deemed to have never been an essential requirement in a scheme prepared and published under sec.
68 C or approved or modified under sec. 68 D.
The plea of the learned counsel therefore fails.
In this, view we hold that the decision in Shashi Kant Rai and ors.
v Regional Transport Authority, Varanasi Region, and Ors.
(supra) is erroneously decided.
When the arguments of Mr. Garg on this point and the reply thereto were heard, Mr. Shanti Bhushan, the learned counsel for one of the appellants, submitted that he may be permitted to raise the question of validity of sec.
68 C. He submitted that if the amended sections 7 and 16 of the U.P. Act have the effect of modifying sec 68 C, sec.
68 C itself would not be valid.
According to the learned counsel the requirement of sec.
68 C is that before a scheme is prepared and published the State Transport Undertaking must be of the opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport services, it is necessary in the public interest that the road transport services should be run and operated by the State Transport Undertaking.
In order to satisfy the requirements the learned counsel submitted that the scheme should give (1) particulars of the nature of the services proposed to be rendered; (2) area or route proposed to be covered and such other particulars respecting thereto as may be prescribed.
The first two requirements with which we are concerned are under sec.
68 C. Relying on a decision of this Court in B. H. Aswathanarayan Singh & ors.
vs State of Mysore and Ors.
the learned counsel submitted that if the requirement as to specification of the number of services to be provided in the draft scheme is dispensed with the particulars of the nature of services proposed to be rendered as required in sec.
68 C would be lacking.
The learned counsel referred to page 93 of the case (supra) wherein the Court observed that "when sec.
68 C provides for giving particulars of the nature of the services proposed to be rendered the intention is that such details should be given as are necessary to enable the objectors to make their objections.
We see no difficulty in holding that the details of the nature of services proposed to be rendered may not only be in the form of a precise number of vehicles and trips but also 504 in the form of minimum and minimum number of vehicles and trips on each route.
" Strong reliance is placed on the requirement that the details or the nature of services should not only be in the form of precise number of vehicles and trips but also in the form of minimum and maximum number of vehicles and trips on each route.
But this statement is explained in the next two sentences where the Court stated: "Furnishing of minimum and maximum number of vehicles and trips for each route would also in our opinion, satisfy the requirement that particulars should be furnished of the services proposed to be rendered.
Further the indication of minimum and maximum number of vehicles and trips for each route would give the necessary information to enable the objectors to oppose the scheme even with reference to the adequacy of the services proposed to be rendered.
" We do not think that the appellants are right in submitting that when the word "particulars" is used in this part of the section, it can only be satisfied if the exact number of vehicles and trips for each route is specified and that there is no other way of satisfying the requirement implicit in the use of the word "particulars".
It is thus clear that the exact number of vehicles and trips for each route need not be given and all that sec.
7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services.
The decision relied on by the learned counsel makes it clear that the number of vehicles and trips for each route need not be specified.
We 15 are therefore unable to accept the contention that the failure to specify the number of services would invalidate the draft scheme or the approved scheme.
The learned counsel Mr. Shanti Bhushan submitted that in any event as the maximum or minimum number of buses, vehicles and trips have not been mentioned, the scheme should be held to be inoperative.
This contention again is not factually substainable as the impugned scheme under sec.
68C which was notified in the U.P. Gazette on 4 12 1961 gave the required particulars.
Clause 3 of the scheme stated "Adequate number of State Road Transport passenger services according to traffic requirements are to be provided on the route mentioned in clause (2) above.
The provision of Transport service otherwise than under the scheme is prohibited.
" Clause 2 provided that State Road Transport passenger services shall be provided on the inter State route Agra Dholpur of Agra Region.
Clause 6 provided that the Transport Vehicles which may be used on the route indicated in clause (2) above, shall be of country type and their carrying capacity shall be 30 to 45 seats.
Clause 7 mentions the permits which have been cancelled.
A reading of the scheme would indicate that transport vehicles and services will be provided on the 505 routes taken over by country type vehicles with 30 to 45 seats capacity.
There is no material to show that any of the operators or others entitled to object to the scheme raised this objection before the scheme was approved in the year 1963.
When specifically asked whether such an objection was taken to the draft scheme the learned counsel for the appellants were unable to say that the objection was taken.
We feel it is futile for them to raise the plea after a lapse of about 15 years.
There is no substance in any of the contentions raised.
One cannot but express amazement at the tenacity of the operators in stalling any scheme for nationalisation of public transport.
The appeals, special leave petitions and writ petitions are dismissed with costs.
V.D.K. Appeals and petitions dismissed.

dataset_name: IN-Abs

summary:
On the question whether sections 7 and 16 of the U.P. Motor Vehicles (Special Provisions) Act, 1976 (Act 127 of 1976) related only to "approved" Schemes under section 68D of the and, therefore, the approved scheme for inter state range Agra Dholpur of Agra region was inoperative, the Court, while dismissing the Writ Petitions and the connected special leave petitions.
^ HELD: (1) Sections 7 and 16 of U.P. Motor Vehicles (Special Pro visions) Act, 1976 have validly provided that the specification of the number of services is not and shall be deemed to have never been an essential requirement in a scheme prepared and published under section 68D of the .
[503A B] The marginal note to section 7 states "specification of number of services not an essential requirement of section 68C or section 68D", makes the intention clear that the section is intended to cover section 68C also.
The intention is also carried out by the Section providing that "Nothing contained in section 68C or section 68D of the Principal Act shall be deemed to require. " The operation of section 7 is thus intended to apply both to sections 68C and 68D.
The result would be that if one of the requirements of section 68C is that it should specify the number of services to be provided, it shall be deemed that requirement was never there.
The reference to the approved scheme is because section 68C and section 68D form part of the same procedure of publication of a scheme and approval of the scheme.
That this is the object is put beyond all doubt by the introduction of the validation section, section 16, which provides that in any scheme prepared or published under section 68C or approved or modified under section 68D of the Principal Act shall not be deemed to be invalid on the ground of number of services to be provided being not specified therein.
[502F H, 503A] Shashi Kant Rai & ors.
vs Regional Transport Authority, Varanasi Region and ors.
AIR 1978 All.
68 over ruled.
Failure to specify the member of services would not invalidate the draft scheme under section 68C or the approved scheme under section 68D of the .
It cannot be said that when the word "particulars" is used in this part of section 68C, it can only be satisfied if the exact number of vehicles and trips for each rank is specified, and, that 499 there is no other way of satisfying the requirement implicit in the use of the A word "particulars".
The exact number of vehicles and trips for each route need not be given and all that section 7 of the amended Act provides is that the draft scheme as well as the approved scheme need not specify the number of services.
[504C E] B.B. Aswathanarayan Singh & Ors.
vs State of Mysore & ors. , applied.
(3) In the instant case, the impugned scheme cannot be held to be inoperative for non mentioning of the maximum or minimum number of buses, vehicles and trips, since the scheme notified in U.P. Gazette on 4 12 1961 gave the required particulars.
A reading of the scheme would indicate that transport vehicles and services would be provided on the routes taken over by country type vehicles with 30 to 45 seats capacity.
Moreover, this objection which was not taken before the scheme was approved in 1963 would not be allowed to be taken after a lapse of 15 years.
[504 G H, 505 A B]


judgement:
Civil Appeal No. 621 of 1973.
From the Judgment and Order dated 13 3 1973 of the Allahabad High Court in Spl.
Appeal No. 9/73).
V. J. Francis for the Appellant.
O. P. Rana for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave arises out of a writ petition filed by a police officer aggrieved by the termination of his services.
The appellant was a temporary Sub Inspector of Police.
He was posted at Shahajahanpur in 1969.
The Superintendent of Police, 615 Shahjanpur commenced disciplinary proceedings against the appellant on the charge that he had violated Rule 29 of the U.P. Government Servants Conduct Rules, 1956 inasmuch as without prior permission of the Government he had contracted a second marriage in November, 1964, while his first wife was alive.
The charge was denied by the appellant.
The Superintendent of Police recorded evidence.
But at this stage the Deputy Inspector General of Police Bareilly made an order on March 12, 1970 quashing the disciplinary proceedings on the ground that the offence had been committed at Pithoragarh, situated in a different police range, and therefore the proceedings taken against the appellant were incompetent.
Meanwhile, on March 8, 1970, the Inspector General of Police, Uttar Pradesh, had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub Inspectors whose reputation and integrity were very low or who were generally involved in scandalous conduct, drinking, immorality or other acts injurious to the reputation of the Police service or who were involved in encouraging crime.
The Superintendent of Police, Shahjahanpur included the name of the appellant in the list submitted by him.
On April 27, 1970, the Deputy Inspector General of Police made an order terminating the services of the appellant.
The order recites that the services of the appellant, "are no more required and that he will be considered to have ceased to be in service . ." The appellant filed a writ petition against the order terminating his services, and claimed that the order contravened Article 311(2) of the Constitution inasmuch as it was an order imposing the punishment of dismissal or removal from service without satisfying the conditions prescribed in that provision.
It was also alleged that the order was passed mala fide.
The writ petition was dismissed by a learned Single Judge of the Allahabad High Court.
An appeal was dismissed by a Division Bench of the High Court on March 13, 1973.
In the appeal before us, it is urged for the appellant that the High Court was wrong in holding that the order terminating the appellant 's services was not an order imposing a punishment.
We are referred to the disciplinary proceedings instituted against the appellant in 1969 and it is submitted that although the order of termination does not refer to those proceedings and the charge on which they were commenced, the appellant 's services were terminated with a view to punish him for contracting a second marriage without prior permission of the Government.
We are satisfied that the contention is without substance.
It is now settled law that an order terminating the 616 services of a temporary Government servant and ex facie innocuous in that it does not cast my stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its terms the order was passed in fact with a view to punishing the Government servant, it is a punitive order which can be passed only after complying with Article 311(2) of the Constitution.
The scope of the enquiry called for in such a case has been outlined by one of us in State of Maharashtra vs Veerappa R. Saboji and another.
But the question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order.
The application of the test is not always easy.
In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services.
The function of the court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order.
In the present appeal, the appellant was a temporary Government servant.
The question whether he should be retained in service was a matter which arose directly during the drive instituted by the Inspector General of Police in March, 1970 for weeding out police officers who were unsuitable or unfit to be continued in service.
The Superintendent of Police prepared a list of Sub Inspectors functioning within his jurisdiction, and included the name of the appellant in that list.
The material which he considered was sufficient to lead to the conclusion that the appellant, who was a temporary Government servant, was not suitable for being retained in service.
His general character and conduct led to that impression.
There is nothing to show that the impugned order was made by way of punishment.
The circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment.
As we have observed, that is a conclusion which must follow from the nature of the intent behind the order.
That intention can be discovered and proved, like any other 617 fact, from the evidence on the record.
In this case, it is not proved that the impugned order was intended by way of punishment.
Learned counsel for the appellant relies on State of Bihar & Ors.
vs Shiva Bhikshuk Mishra and State of Uttar Pradesh & Ors.
vs Sugher Singh.
Both were cases of permanent Government servants.
And as regards Regional Manager & Anr.
vs Pawan Kumar Dubey, to which also reference has been made, that was a case where on the facts the Court found that there were no administrative reasons for the impugned reversion.
The appeal fails and is dismissed, but in the circumstances there is no order as to costs.
section R. Appeal dismissed.

summary:
The appellant was a temporary sub inspector of Police.
While he was posted at Shahjahanpur the Superintendent of Police, Shahjahanpur commenced disciplinary proceedings against him on the charge that he had violated Rule 29 of the U.P. Government Servants Conduct Rules, 1956 in as much as without prior permission of the Government he had contracted a second marriage in November, 1964, while his first wife was alive.
At the stage of evidence, the Deputy Inspector General of Police, Bareilly made an order on March 12, 1970 quashing the disciplinary proceedings on the ground that the offence has been committed at Pithoragarh, situated in a different police range, and therefore, the proceedings taken against the appellant were incompetent.
Meanwhile, on March 8, 1970, the Inspector General of Police, Uttar Pradesh, had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub inspectors whose reputation and integrity were very low or who were generally involved in scandalous conduct, drinking, immorality or other acts injurious to the reputation of the Police Service or who were involved encouraging crime.
The Superintendent of Police, Shahjahanpur included the name of the appellant in the list submitted by him.
On April 27, 1970, the Dy.
Inspector General of Police made an order terminating the services of the appellant, reciting that the services of the appellant "are no more required and that he will be considered to have ceased to be in service. " The appellant filed a Writ Petition against the order terminating his services and claimed that the order contravened Article 311(2) of the Constitution inasmuch as it was an order imposing the punishment of dismissal or removal from service without satisfying the conditions prescribed therein.
Allegations of malafide were also made.
The Writ Petition was dismissed.
An appeal to the Division Bench was also dismissed.
Hence the appeal by special leave.
Dismissing the appeal, the Court.
^ HELD: 1.
It is now settled law that an order terminating the services of a temporary Government servant and ex facie innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its 614 terms the order was passed in fact with a view to punishing the Government servant, it is a punitive order which can be passed only after complying with article 311(2) of the Constitution.
[615H, 616A B] 2.
The question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order.
The application of the test is not always easy.
In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services.
The function of the Court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order.
[616B E] In the instant case: (a) the appellant was a temporary Government servant, and the question whether he should be retained in service was a matter which arose directly during the drive instituted by the Inspector General of Police in March 1970 for weeding out Police Officers who were unsuitable or unfit to be continued in service; (b) the material which the Superintendent of Police considered was sufficient to lead to the conclusion that the appellant, who was a temporary Government servant, was not suitable for being retained in service his general character and conduct led to that impression and there was nothing to show that the impugned order was made by way of punishment; (c) the circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment, and (d) the impugned order was not intended by way of punishment.
[616E G] State of Maharashtra vs Veerappa R. Saboji and Anr. ; ; applied.
State of Bihar and Ors.
vs Shiva Bhikshuk Mishra, ; State of U.P. & Ors.
vs Sughar Singh ; and Regional Manager & Anr.
vs Pawan Kumar Dubey; ; ; distinguished.