STATE OF RAJASTHANversusFATEH CHAND SONI

                        STATE OF RAJASTHAN                                       A
                                 v.
                         FATEH CHAND SONI

                           DECEMBER 12, 1995

             [S.C. AGRAWAL AND G.B. PATTANAIK, JJ.]
                                                                                 B

      Rajasthan Police Serv.ce Rules, 1954: Rules 28(A), 33-Appointment
to the Selection Scale constitute promotion-Seniority in the selection scale
as per Rule 33 if promotion from senior scate to selection scale.
                                                                                 c
      Words & Phrases: 'Promote'-Promotion-Meaning of

       The appellants-officers and the respondent were all appointed to the
Rajasthan Police service by direct recruitment and were promoted to the
senior scale. !n the senior scale respondent was senior to the said appel-
lants. On tl;e basis of recommendations made by the Selection Committee          D
constituted under Rule 32 of the Rajasthan Police Service Rules, all appel-
lants were protnoted to selection scale on the basis of seniority cum merit
by promotion order date 27.4.1989. Two of the appellants were appointed
t~ the selection grade against posts reserved for Scheduled, castes and
scheduled Tribes. The respondent was appointed t.o the selection scale by        E
order dated 24.1.1991. As per the seniority list dated 30.6.1990, seniority in
the selection scale was fixed on the basis of date of appointment to the
selection scale.

       Respondent filed a Writ Petition before the High Court challenging
the seniority list and sought a direction for maintaining the seniority of the   F
incumbents of Senior Scale even after the grant of the Selection Scale. He
had also assailed the validity of Rule 8 of the Rules as well as the reserva-
tion policy dated 10.2.1975 and the 100 point roster system dated 9.7.1985
as being ultra vires Article 16(4) of the Constitution of India. The High
Court held that there is/are no separate post/posts in the Selection Scale       G
and that grant of selection scale to certain number of officers working in
Senior Scale so as to avoid stagnation and to keep interest of the officers
in the service intact does not involve promotion in the eye of law. The High
Court quashed the seniority list dated 30.6.1990.

      Hence, these appeals by the State as well as by the their officers.        H
                                     559
    560                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A         Allowing the appeals, this Court

          HELD : 1. Promotion means advancement or preferment in honour,
    dignity, rank or grade it not only covers advancement to higher position or
    rank but also implies advancement to a higher grade and can be either to a
    higher pay scale or to a higher post. (564-B]
B
          2. Appointment to the Selection Scale is made by selection based on
    merit and seniority cum merit in accordance with Rule 28(a) of the Rules.
                                                                        (566-E]
           3. Appointment to the Selection Scale of an officer in the Senior Scale
C   in the Service constitutes promotion and seniority in the Selection Scale has
    to be fixed in accordance with Rules on the basis of the date of selection and
    a person selected and appointed as a result of an earlier selection would
    rank senior to a person who is selected and appointed as a result of a sub-
    sequent selection. The seniority of officers in the Selection Scale of the Ser-
    vice has to be fixed as per Rule 33 based on date of selection. (566-F, 567-A]
D
          4. The High Court erred in holding that appointment on the Selection
    Scale does not constitute promotion under the Rules. (566-B]

          Union of India & anr. v.S.S. Ranade, (1995) 4 S.C.C 462 &Lalit Mohan
    Deb v. Union ofIndia, (1973) 3 S.C.C 862, referred to.
E
          Dayaram Asanand Gursahani v. State of Maharashtra & Ors., [1984) 2
    SCR 703, distinguished.

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4311 of
    1995 Etc.
F
         From the Judgment and Order dated 21.9.1993 of the Rajasthan
    High Court in C.W.P. No. 3939 of 1991.

         R. Mohan, K.S. Bhati, Ms. Kusum, M.K. Singh, H.G.R. Khattana,
    Randhir Jain, S.S. Mishra, B.N. Sioghvi, V.K. Garg, R.K. Siogh, Arunesh-
G   war Gupta, Ms. S. Janani, S.K. Jaio, A.P. Dharnija, Ms. Indu Malhotra and
    Dania Pradhan for the appeariog parties.

          The Judgment of the Court was delivered by

            S.C. AGRAWAL, J. : The common question which falls for con-
H sideration io these appeals is whether seniority io the Selection Scale io the



                                                                                      '
                 STATE v. F.C. SONI [S.C. AGRAWAL, J.]                    561

Rajasthan Police Service (for short 'the Service') is to be fixed on the basis   A
of date of appointment to the Selection Scale or on the basis of seniority
in the Senior Scale irrespective of the date on which appointment is made
to the Selection Scale.

       Recruitment to the posts in, and conditions of service of persons         B
appointed to the Service is governed by the Rajasthan Police Service Rules,
1954 (hereinafter referred to as 'the Rules'). Originally, the Service con-
sisted of posts in the Ordinary Time Scale and Posts in the Senior Scale as
indicated in Schedule I to the Rules. In 1966 Schedule I to the Rules was
amended and out of the posts in Senior Scale 3 posts were kept for officers
drawing pay personally in Selection Grade. In 1974 the number of posts in        C
the Selection Scale was increased to 14 and in 1978 it was increased to 19.
In 1985 the said number was increased to 30. By virtue of notification dated
April 19/20, 1988 issued under Rule 6 of the Rules the posts in the Service
fall in four scales, viz., junior scale, Senior Scale, Selection Scale and
superintendent scale. The number of posts in the Selection Scale was             D
reduced from 30 to 22 and 8 posts were placed in the Super Time Scale.

      Km. Badam Bairwa and Hari Ram Meena (appellants in Civil Ap-
peal No. 4313 of 1994) and Kundan Lal Sharma (appellant in Civil Appeal
No. 4312 of 1994) and Fateh Chand Soni (respondent No. 1 in the appeals)
were all appointed to the Service by direct recruitment and were promoted        E
to the Senior Scale. In the Senior Scale respondent No. 1 was senior to the
said appellants. On the basis of recommendations made by the Selection
Committee constituted under Rule 32 of the Rule all these three appellants
were promoted to Selection Scale by order dated April 27, 1989. The said
appointment of these appellants was on the basis of seniority-cum-merit.         F
The said order dated April 27, 1989, has been described as promotion
order. Km. Badam Bairwa and Hari Ram Meena were appointed to the
Selection Grade on posts reserved for the scheduled Castes and the
Scheduled Tribes. Respondent No. 1 was appointed to the Selection Scale
by order dated January 24, 1991. In the seniority List dated June 30, 1990
seniority in the Selection Scale was fJXed on the basis of date of appoint-      G
ment to the Selection Scale. Feeling aggrieved by the fixation of the
seniority in the said seniority list in respect of Selection Scale, respondent
No. 1 filed a Writ Petition (C.W.P. No. 3939of1991) in the Rajasthan High
Court at Jaipur Bench wherein he challenged the seniority li't dated June
30, 1990 in so far as it related to the seniority in the Selection Scale and     H
    562                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A sought a direction for maintaining the seniority of the incumbents of the
    Senior Scale even after the grant of the Selection Scale. Respondent No. 1
    also assailed the validity of Rule 8 of the Rule as well as the reservation
    policy dated February 10, 1975 and the 100 point roster system dated July
    9, 1985 as being ultra vires Article 16(4) of the Constitution.

B         The said Writ Petition filed by respondent No. 1 has been allowed
    by the High Court by the impugned judgment dated September 21, 1993.
    The Higb Court has held that there is/are no separate post/posts in the
    Selection Scale and that grant of Selection Scale to certain number of
    officers working in the Senior Scale so as to avoid stagnation and to keep
C   interest of the officers in the Service intact does not involve promotion in
    the eye of law and that if, for any reason, a junior officer is granted
    Selection Scale in preference to his senior, it will not have any impact on
    the seniority position and it will not affect the position of the officers who
    were otherwise senior in the Senior Scale. Since the High Court was of the
    view that there is no separate post in the Selection Scale, it did not consider
D   it necessary to examine the validity of Rule 8 of the Rules and the
    reservation policy and 100 point roster system. The Higb Court quashed
    the seniority list dated June 30, 1990 directed that the seniority list be
    prepared afresh in the light of the decision.

E         Civil Appeal No. 4311 of 1994 had been filed by the State, Civil
    Appeal No. 4312 of 1994 had been filed by Kundan Lal Sharma and Civil
    Appeal No 4313 of 1994 has been filed by Km. Badam Bairwa and Hart
    Ram Meena. Prahlad Rai .Tawaria was also one of the appellants in Civil
    Appeal No. 4313 of 1994. but, at the time of hearing of the appeal, the
    learned counsel appearing for the said appellant stated that he does not
F   wish to press the appeal on his behalf and the appeal, in so far as the said
    appellant is concerned, has been dismissed.

          Seniority in the Service is governed by Rule 33 af the Rules. The
    relevant provisions of the said rule are as under :
G            "Rule 33. Seniority : Seniority of persons appointed to the lowest
             post of the Service or lowest categories of posts in each of the
             Group/Section of the Service, as the case may be, shall be deter-
             mined from the date of confirmation of such persons to be said
             post but in respect of persons appointed by promotion to other
H            higher posts in the Service or other higher categories of posts in
                 STATE v. F.C. SONI [S.C. AGRAWAL, J.]                  563

        each of the Group/Section in the Service, as the case may be, shall    A
        be determined from the date of their regular selection to such
        posts.

        Provided:-

        (i) x          x            x               x                          B
        (ii) x          x            x              x

        (iii) That the persons selected and appointed as a result of a
        selection, which· is not subject to review and revision, shall rank
        senior to the persons who are selected and appointed as a result       C
        of subsequent selection.

           Seniority inter-se of persons selected on the basis of seniority-
        cum-merit and on the basis of merit in the same selection shall be
        the same as in the next below grade, and
                                                                               D
        (iv) x          x            x               x

        (v) x           x           x               x"

       Seniority in the Selection Scale has to be fixed as per the aforesaid
provisions contained in Rule 33 if appointment to the Selection Scale is E
treated as promotion from Senior Scale to Selection Scale. The High Court
has held that the said appointment cannot be treated as promotion for the
reason that when an officer in the Senior Scale is granted Selection Scale,
he neither leaves the post which was already held by him nor he occupies
any new post and the post held by him remains the same and he starts F
getting the pay in Selection Scale instead of Senior Scale which, by itself,
cannot confer a higher status or rank. According to the High Court, the
grant of Selection Scale to Senior Scale officers does not exalt his stat~
rank or honour and an officer does not stand elevated to any superior or
commanding position over other Senior Scale officers. The High Court has
also referred to the fact that the post of Additional Superintendent of G
Police held by Senior Scale officers and officers who are being paid in the
Selection Scale is interchangeable and such change or replacement and
substitution by posting and transfer in the Service is a matter of routine
and merely because the Government follows the process of selection to
identify the officers to whom the Selection Scale is to be granted cannot H
    564                   SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A confer a higher status so as to make it a case of promotion.

           The High Court, in our opinion was not right in holding that promo-·
    tion can only be to a higher post in the service and appointment to a higher
    scale of an officer holding the same post does not constitute promotion. In
B   the literal sense the word "Promote" means "to advance to a higher position,
    grade, or honour". So also "Promotion" means "advancement of preferment
    in honour, dignity, rank or grade". [See : Webster's Comprehensive Dic-
    tionary, International Edition, p. 1009J. "Promotion" thus not only covers
    advancement to higher position or rank but also implies advancement to a
    higher grade. In service law also the expression "Promotion" has been
C   understood in the wider sense and it has been held that "Promotion can be
    either to a higher pay scale or to a higher post." (See : Union of India &
    Anr. v. S.S. Ranade, [1995] 4 SCC 462 at p. 468).

          In La/it Mohan Deb v. Union of India, [1973] 3 SCC 862, the pay scale
D of all the Assistants in the Civil Secretariat in Tripura was Rs. 80-180 and
  on the basis of the recommendations of the Second Pay commission
  appointed by the Government of India the scales were revised and 25% of
  the post were placed in the Selection grade in the scale of Rs. 150-300
  and the rest continued in the old pay scale of Rs. 80-180. For the purpose
  of filling the Selection Grade posts a test was held and those who qualified
E in the said test were appointed to the Selection Grade. The Assistants in
  the Selection Grade and the Assistants in the old pay scale were doing the
  same type of work. This Court observed that "provision of a Selection
  Grade in the same .category of posts is not a new thing" and that "a
  Selection Grade is intended to ensure that capable employees who may not
F get a chance of promotion on account of limited outlets of promotions
  should at least be placed in the Selection Grade to prevent stagnation on
  the maximum of the scale" and that "Selection Grades are, therefore,
  created in the interest of greater efficiency". The Court took note of the
  fact that the basis for selection of some of the Assistants to the Selection
  Grade scale was seniority-cum-merit which is one of the two or three
G principles of promotion widely accepted in the administration and, there-
  fore, the creation of Selection Grade in the category of Assistants was not
  open to challenge. In that case, the Court had proceeded on the basis that
  the appointment to the higher grade amounted to promotion.

H         The Rules governing appointment to the Selection Scale in the
                STATE v. F.C.SONI[S.C.AGRAWAL,J.]                       565

Service also envisage that such appointment Constitutes promotion. The A
relevant provision is contained in Rule 28(A) of the Rules which prescribes
the criteria, eligibility and procedure for promotion to Junior, Semor and
other posts encadred in the Service. Under sub-Rule (5) of Rule 28(A)
promotion from the lower post or category of post in the Service to the
next higher post or category of post in the Service is required to be made B
strictly on the basis of seniority-cum-merit. Sub-Rule (6) of Rule 28(A)
provides that selection for promotion to all other higher posts or higher
categories of posts in the Service shall be made on the basis of merit and
on the basis of seniority-cum-merit in the proportion of 50:50. Sub-rule (7)
reads as under :
                                                                              c
        "(7) Selection for promotion to the highest post/posts in the State
        Service shall always be made on the basis of merit alone :

        Provided that :-

        (a) in a Service or Groups or Sections thereunder, where there are D
        only two scales e.g. junior scale or Senior Scale and there is only
        one promotion then promotion shall be made on the basis of
        seniority-cum-merit alone.

        (b) in a Service or Groups or Sections thereunder, where there
        are three scales e.g. junior scale, Senior Scale and Selection Scale E
        and there are two prpmotions then promotion shall be as under :

           (i) first promotion on the basis of seniority-cum- merit.

         (ii) second promotion on the basis of seniority-cum- merit and
       merit in the proportion of 50 : 50.                                    F

       (c) in Services or Groups or Sections thereunder, where there are
       more than two promotions then first promotion shall be made on
       the basis of seniority-cum-merit alone and promotions to sub-
       sequent higher posts shall be made on the basis of seniority-          G
       cum-merit and merit in the proportion of 50 : 50 except to the
       highest post.

          Provided further that if the Committee is satisfied that suitable
       persons are not available for selection by promotion to highest
       post/posts strictly on the basis of merit in a particular year, selec- H
    566                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A            tion by promotion to highest post/posts on the basis of seniority-
             cum-merit may be made in the same manner as specified in these
             Rules. 11

          The said provision (especially clause (b) of the Proviso) would show
    that the Rules contemplate that appointment to the post in the Selection
B   Scale is by way of promotion and the High Court was in error in holding
    that appointment on the Selection Scale does not constitute promotion
    under the Rules.

          The High Court has referred to the decision of this Court in Dayaram
C   Asanand Gursahani v. State of Maharashtra & Ors., (1984] 2 SCR 703,
    wherein, after considering the resolution of the State Government sanction-
    ing the post of District Judge in the Selection Grade, this Court has held
    that the said resolution did not indicate that there was any process of
    promotion by selection or otherwise from the cadre of District Judges to
D   the Selection Grade District Judges. In the particular facts of that case it
    was held that mere nomenclature given to the extended pay scale as the
    Selection Grade pay Scale does not lead to the inference that there is no
    element of selection involved in sanctioning it and that it should be treated
    as just an extended pay scale which forms part of the pay scale. 'fhe
    position in the present case is, however, different. Here the Selection Scale
E   is a separate scale and is not an extension of the Senior Scale. Moreover
    appointment to the Selection Scale is made by selection on the basis of
    merit and seniority-cum-merit in accordance with Rule 28(A) of the Rules.

          It must, therefore, be concluded that appointment to the Selection
F Scale of an officer in the Senior Scale in the Service constitutes promotion
  and seniority in the Selection Scale has to be fixed in accordance with Rule
  33 of the Rules on the basis of the date of selection and a person selected
  and appointed as a result of an earlier selection would rank senior to a
  person who is selected and appointed as a result of a subsequent selection.
  Since the appellants were selected and appointed on the basis of earlier
G selection in 1.989 while respondent No. 1 was selected and appointed on
  the basis of a subsequent selection in 1991, the appellants would rank
  senior to respondent No. 1 in the Selection Scale. The direction given by
  the High Court for revising the seniority list of the officers in the Selection
  Scale of the Service on the basis of their seniority in the Senior Scale
H cannot, therefore, be upheld and has to be set aside. The seniority of
                  STATE v. F.C. SONI [S.C. AGRAWAL, J.]                567

officers in the Selection Scale of the Service has to be foced as per Rule 33 A
on the basis of date of selection.

      Shri R. Mohan, the learned senior counsel appearing for the respon-
dent No. 1 has agitated the question regarding the validity of Rule 8 dealing
with reservation for Scheduled Castes and Scheduled Tribes and has
submitted that such reservation in the matter of promotion to the higher B
post is impermissible in view the decision of this Court in Indira Sawh11ey
& Ors. v. U11io11 of l1tdia & Ors., (1992] Supp. (3) SCC 217. The said
contention cannot be accepted since in I11dira Sawh11ey (supra) this Court
has indicated that the existing provisions providing for reservation can
continue to operate for a period of five years from the date of the said C
decision.

       Shri Mohan has also submitted that provision for reservation for
 Scheduled Castes and Scheduled Tribes can be made only against posts in
 the cadre and not against vacancies and that under -Rule 8 of the Rules
 and the Reservation Policy and the 100 point roster such reservation is D
made on the basis of vacancies and that Km. Badam Bairwa and Hari Ram
 Meena have been promoted against vacancies reserved for the Scheduled
Castes and the Scheduled _Tribes. Shri Mohan has placed reliance on the
 decision of the Allahabad High Court in J.C. Malik &_Ors. v. U11io11 of India
& Ors., [1978] 1 SLR 844 which has been approved by this Court in R.K E
Sabharwal v. State of Pu11jab, [1995] 2 SCC 945. We find no merit in this
contention. In his writ petition respondent No. 1 has not challenged the
promotion of Km. Badam Bairwa and Hari Ram Meena to the Selection
Scale and therefore, this contention about the basis for reservation does
not fall for consideration in this case. Moreover in R.K Sabhmwa/ (supra)
this Court has directed that the interpretation given by the Court about the F
working of the roster and the findings on this point shall be operative
prospectively which means that actions that have been taken prior to the
decision in R.K. Sabharwal (supra) cannot be assailed on the basis of the
law laid down in the said decision.

     For the reasons aforementioned, the appeals are allowed, the judg-
                                                                             G
ment of the Rajasthan High Court dated September 21, 1993 is set aside
and the Writ Petition filed by respondent No. 1 is dismissed. But in the
circumstances there is no. order as to costs.

R.S.                                                      Appeals allowed.