LexSANT RAM SHARMA versus STATE OF RAJASTHAN & ANR.
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111 A SANT RAM SHARMA v. STATE OF RAJASTHAN & ANR. August 7, 1967 B [K. N. WANCHOO C. J., R. S. 8ACHAWAT, V. RAMASWAMI, G. K. MITTER AND K. S. HEGDE, JJ.] Constitution of India, 1950, Arts, 14 and !&-Selection grade po•ts in Indian Police Service-Appointme?1t on basis of merit and senio- rity considered only when merit equal-If violative of the guarantee oJ equality. The All India Services Act, 1951, empowers the Central Govern- C ment to make rules for the regulation of recruitment and condition• of service of persons appointed to an All India Service. In exercise of this power the Central Government framed the Indian Police .Service (Regulation of Seniority) Rules, 1954. Rule 6 of the said Rules re- quires that a Gradation List of all Police Officers in a State shoula be maintained to ascertain their respective seniority. Accordingly, a Gradab'on List was prepared by the respondent-State in which the petitioner was shown as senior to respondents 3 and 4. In 1955. the D petitioner was superseded by respondents 3 and 4 wl]o were confirmed in the rank of Dep11ty InspectQr General of Police. and in 1966, the third respondent was promoted as Inspector General of Police and respondent 4 was appointed as Additional Inspector General of Po- lice, superseding the petitioner. The petitioner filed a writ petition in this Court under Art. 32, contending that: (!) he was entitled as a ·mat!Aor of right to bs appointed as Deputy Inspector General of E Police in 1955 and as Inspector General of Police, in 1966, as he was shown as the senior moso officer in the Gradatiion List; (2) in the absence of any statutory rules governjng promotions to selection grade posts the Government could not issue administrative il}struc- tions imposing restrictions not found .1n the Rules already .framed such as that merit and not 3enior:ty should be considered; (3) th<! in- troduction of the idea of merit into the procedure of promotion is violative of Arts. 14 and 16, because, it brings in an element of per- F sonal evaluation with the consequent abuses of nepotism and fa- vourit[sm; and (4) if the Government is held to have the power to make appointments without making rules in that behalf under the proviso to Art. 309, then the appointments of respondents 3 and 4 would be arbitrary, capricious and in violation of Arts. 14 and 16 of the Constitution, because, the claims af the petitioner were not con- sidered either in 1955 or in 1966. HELD: (1) A perusal of rr. 3 and 8 of the Indian Police Service G (Pay) Rules, 1954, read with Part B of Schedule III of those Rules shows that the three posts of Deputy Inspector General of Police Additional Inspector General of Police and Inspector General of Po'. lice in the respondent State. are selection posts outside the junior and sen:or time scales of pay. Promotion to selection ..,rade or selec- tion posts is to be based primaricy on nierit and n~t on seniority alone a~d therefore, the respondent-State :vas not bound to promote the petib1oner merely because he was senior in the Gradation List H [118D-F]. . (2) WhHe Government cannot amend or supersede statutory rules by administrative instructions, if rules are silent on any parti- cular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. 112 SUPREllli COURT llEPOllTS [i968j 1 s.c.11. The State Government has executive power in respect af State Public A Services mentioned in Entry 41, List II 'Of Schedule VII of the Consti- tution, and, there is nothing in the terms of Art. 309 which abridges the power of the executive to act under Art. 162 without a law. [119 F-G, Hl. T. Caiee v. U. Jormanik Siem, [19611 1 S.C.R. 750 and B. N. Na· garajan V, State of Mysore, [19661 3 s.C.R 682, followed. (3) To ensure a reasonable prospect of advancement to all offi- B cials and at the same time to protect the public interest in having posts filled by the most able men, it is necessary to evolve a proper promotion policy in which is found a correct balance between senfo- rity and merit. As a matter of long administrative practice promo- tion to selection grade or selection posts in the Indian Police Ser- vice had been based on merit, and seniority was taken into conside- ration only when merit of the candidates is otherwise equal and no other criterion is available. Such a procedure does not, in any way, c violate the guarant
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