JUDGMENT

GUPTA, J. :— The controversy in these two appeals by specials leave relates to the question of seniority between the direct recruits and the promotees in the rank of Deputy Superintendent of Police in the Bihar Police Service. The appellants - the same persons in both appeals - are promotees who question the correctness of the judgment of the Patna High Court by which the High Court allowed the two writ petitions made by two different groups of direct recruits challenging the gradation list of permanent Deputy Superintendents of Police published on February 24, 1978. Fifty-four temporary posts of Deputy Superintendent of Police created between 1948 and 1970 were made permanent "from the dates of their creation by the Government of Bihar in December, 1977. Earlier, the Government had decided that continuous officiating service of the promoted Deputy Superintendents of police in these posts should be the basis of their seniority. Following this decision, after the temporary posts had been made permanent, the gradation list in question was prepared and published.

2. Admittedly there is no statutory rule governing seniority inter se of direct recruits and promotees. In the absence of any such rule prescribing a different criterion, it cannot be disputed after Patwardhans case, (1977) 3 SCR 775 that continuous officiation is a reasonable basis for fixation of seniority. The High Court, however, allowed the writ petitions filed by the direct recruits on the view that the gradation list was invalid as it infringed Rule 3 of the Bihar Police Service (Recruitment) rules, 1953 framed under the Proviso to Article 309 of the Constitution of India. Rule 3 is in these terms:

"The Governor shall decide in each year the number of vacancies to be filled in that year.

Provided that the number of vacancies to be filled by promotion in the service in any one year shall not, unless the Governor is satisfied that there is not a sufficient number of officers fit for promotion, be less than half the total number of vacancies to be filled in any such year."

Before we proceed to consider the scope of this rule and its effect on the question of seniority in this case, it would be necessary to refer to a few more provisions of the Bihar Police Service (Recruitment) Rules and some facts forming the background to the controversy.

3. It is the Governors duty under Rule 3 to decide "in each year" the number of vacancies in the Bihar Police Service required to be filled "in that year". The proviso to the rule states that the promotees to be appointed in any particular year shall not be less that half of the total number of vacancies to be filled in that year unless sufficient number of officers fit for promotion is not available. It is important to remember that Rule 3 does not prescribe a fixed quota for each of the two categories, direct recruits and promotees, but only insists that at least half the vacancies in any year should be reserved for the promotees. Rule 2 of these Rules states that recruitment to Bihar Police Service shall be made by direct recruitment and by promotion. A third source of recruitment was later added in the Rules in 1975 with which we are not concerned in this case. The rules as regards direct appointment are included in Part II of the Rules, Rules 22, 23 and 24, occurring in Part III of the Rules lay down the method of recruitment by promotion. Under rule 22 preliminary selection of officers for promotion is made in each Range by Range Selection Board. Those selected by the Range Selection Board have to appear before the Inspector Generals Selection Board. The Inspector Generals Selection Board has to nominate for appointment twice as many candidates as there are vacancies to be filled by promotion and to send all relevant papers relating to the candidates nominated by it to the Bihar Public Service Commission and, at the same time, submit a list of such candidates to the Governor. The Public Service Commission after examinati