Back
2007 Supreme(SC) 442
SUPREME COURT OF INDIA
Dr. Arijit Pasayat & S.H. Kapadia
Arun Kumar & Ors-PETITIONER
VERSUS
Union of India & Ors-RESPONDENT
Appeal (civil) 4325 of 2006
DECIDED ON : 03/04/2007
The power to relax service rules cannot be used to create a new source of recruitment not provided for in the rules. Seniority in a state police service cannot be granted from the date of appointment in a functionally different central force if deputation is not a recognized recruitment source.
Headnote:(A) Service Rules - Rule 14 - General powers to relax rules - Whether the power of relaxation can be invoked to create a source of recruitment where no such provision exists in the rules - Rule of relaxation contemplates the existence of a rule; the Government cannot relax a non-existent rule to introduce a third source of recruitment such as deputation where only direct recruitment and promotion are provided for.
(B) Constitution of India - Articles 14 and 16(1) - Equality before law and equal protection of law - Fixation of inter se seniority in feeder posts - When fixing seniority, the concept of equality must be maintained to protect the rights of existing officers in the cadre from supersession.
(C) Direct Recruitment vs. Deputation - Direct appointment as a source of recruitment is distinct from deputation or transfer - Weightage for past service in a different cadre can only be given if the rules provide for that specific mode of recruitment.
Facts of the case:
An individual was appointed to a Central Para Military Force on exceptional grounds following the death of a relative. Later, the individual was appointed on deputation to the State Police Service and subsequently absorbed. The State Government granted the individual seniority in the State Police Service from the original date of appointment in the Central Para Military Force. Other officers in the State Police Service challenged this, contending that the Service Rules did not provide for absorption of deputationists and that granting such seniority would unfairly supersede other officers.
Findings of Court:
The court found that while the initial appointment and subsequent absorption were genuine exercises in an exceptional case, the grant of seniority from the date of appointment in the Central Para Military Force was legally unsustainable. The court noted that the functions of the Central Para Military Force and the State Police Service are fundamentally different, requiring different training and knowledge of law.
Issues: Whether the State Government could invoke the power of relaxation under the Service Rules to grant seniority from the date of appointment in a Central Para Military Force, given that deputation is not a recognized source of recruitment under the said rules.
Ratio Decidendi: The power to relax rules under Rule 14 is applicable only to existing provisions and cannot be used to create a new method of recruitment. Since the rules only provide for promotion and direct recruitment, the Government cannot treat deputation as a third source of recruitment through relaxation. Furthermore, since the Central Para Military Force and the State Police Service are functionally different, service in the former cannot be counted for the purpose of fixing inter se seniority in the latter. Weightage can only be granted for the period the individual actually served as a deputationist within the State Police Service.
Result: Appeal partly allowed with no order as to costs.
Act Referred
PUNJAB ABSORPTION OF OFFICERS OF PARA MILITARY FORCES GROUTTAR PRADESHA SERVICE RULES: .
PUNJAB POLICE SERVICE RULES: R.2(b), R.6, R.7, R.8, R.10, R.14
Legal Category Hierarchy
-
administrative law
-
service rules
- power of relaxation
-
modes of recruitment
- direct appointment
- deputation
- seniority
-
service rules
-
constitutional law
-
fundamental rights
- equality before law
-
fundamental rights
JUDGMENT:
KAPADIA, J.
A short question which arises for determination in this civil appeal is whether the State Government could have invoked Rule 14 of the PUNJAB POLICE SERVICE RULES , 1959 (dealing with the power of relaxation) when there was no provision in the said Rules for absorption of Deputationists on permanent basis from Central Reserve Police Force ("CRPF") in Punjab Police Service.
The facts giving rise to this civil appeal are as follows.
Shri Avinder Singh Brar, IPS was killed by the terrorists. He was an officer in the Punjab Police Service. On account of the above incident, his sister, Ms. Amrit Brar-respondent no. 4, stood appointed on 9.6.1989 as Assistant Commandant in CRPF on probation for two years. She was appointed in CRPF under above tragic circumstances. She was the only child of her parents. She was appointed in CRPF as her assignment was relatively safer in CRPF than in Punjab Police Service. These facts are important since they show that the appointment of respondent no. 4 was not compassionate but as an exception. Her appointment was to be governed by CRPF Rules. She completed here probation on completion of two years. On 16/17.8.1993, Ms. Amrit Brar was appointed on deputation to the post of Superintendent of Police (SP) in Punjab Police. She retained her lien as Assistant Commandant in CRPF till 11.9.1998 when she was absorbed as DSP in Punjab Police. She was allowed all benefits including pay and seniority from 9.6.1989. In between, Ms. Amrit Brar was promoted to the post of Deputy Commandant in CRPF in March, 1995.
The appellants herein are officers of Punjab Police Service. Some of the appellants are recipients of the Presidents medal for gallantry for having fought terrorism in the State of Punjab. The appellants challenged the orders of the State Government in the Punjab and Haryana High Court granting absorption to Ms. Amrit Brar, particularly on the ground that the PUNJAB POLICE SERVICE RULES did not contemplate absorption of a deputationist from CRPF. The appellants challenged the absorption on the grounds that Ms. Amrit Brar was granted benefit of compassionate appointment as Assistant Commandant in CRPF in 1989 and, therefore, she was not entitled to double benefit of compassionate absorption in 1998 and that too from 9.6.1989. The appellants main grievance before the High Court was that giving the benefit of seniority to Ms. Amrit Brar from 9.6.1989 would make her senior to almost ten other officers. According to the appellants, the consequences of seniority being given to Ms. Amrit Brar would mean supersession of the appellants. According to the appellants, Ms. Amrit Brar stood appointed to Class I post in the CRPF as Assistant Commandant on compassionate ground and, therefore, there was no cause for second exercise of this power by the State Government after almost nine years. The appellants further submitted before the High Court that there were many officers on deputation with Punjab Police Service from various Para Military Forces, including CRPF, most of whom had come on deputation even prior to Ms. Amrit Brar. Appellants further contended before the High Court that, in fact, the State Government had notified Punjab Absorption of Officers of Para Military Forces (Group A) Service Rules, 2005 and under the said Rules, the State Government had created ex-cadre posts for absorption of Para Military Forces officers, who were on deputation with the State of Punjab and who were to be absorbed in Punjab Police Service. According to the appellants, if the benefit of seniority was to be given to Ms. Amrit Brar from 9.6.1989 then even in the matter of absorption she would supersede a number of other officers.
By the impugned judgment dated 24.1.2006, the High Court dismissed CWP No. 11548/96 filed by the appellants herein. One of the main grounds urged by the appellants
before the High Court was that regularization of the services of Ms. Amrit Brar with effect from 9.6.1989 and absorption
