UDAY SINHA, J. The competition for seniority between direct recruits and promotees to the Bihar Police Service is the central point hotly convassed at the bar in these two applications. They have been heard together as the parties fill common character. The petitioners in each of them are direct recruits to the service (commonly known as Dy. S.P.). Respondent nos. 4 to 57 are promotees to it. The cause for the action arose out of issuance of Annexures 4 and 4/1 and, therefore, the petitions originally were for quashing them. While these applications were pending before this Court Annexures 6 and 6/1 were issued as a follow up of Annexures 4 and 4/1. Thus Annexures 4 and 4/1, 6 and 6/1, are under attack by the petitioners. According to the petitioners the State Government had no power or jurisdiction to resort to the device adopted in Annexures 4 and 4/1 and thus Annexures 6/1 had no legal sanctity. Respondents 4 to 57 (hereinafter called "the contesting respondents") supported the action of the State Government and even endeavoured to sustain the validity of those Annexures. As stated above the application originally were for quashing Annexures 4 and 4/1 but while they were pending the State Government came out with a fresh gradation list (Annexure 6/1). The petitioners then filed an amendment application with the prayer to quash Annexures 6 and 6/1 and to add the Joint Secretary, Home Police Department, Government of Bihar as respondent no. 3A. That application, filed on 14.3.78 was listed for orders before Hon'ble the Chief Justice and P.S. Sahay, J. It was ordered by that Bench that the amendment petition be put up for consideration before the Bench hearing the two writ applications. The amendment application, therefore, was placed before us along with the applications. We have heard counsel for the parties in regard to the amendment application. In order to effectually dispose of the matter in controversy between the parties it is just and expedient that the amendment petition should be allowed. Without quashing Annexure 6/1 merely quashing of Annexures 4 and 4/1 would be a futile exercise. The amendment applications therefore, are allowed the main applications will be treated as amended as prayed. We had indicated our views in this regard as the hearing of the applications proceeded. The amendment petitions are being for many disposed of now by this order and judgment. 2. The amendment applications therefore, are allowed the main applications will be treated as amended as prayed. We had indicated our views in this regard as the hearing of the applications proceeded. The amendment petitions are being for many disposed of now by this order and judgment. 2. In order to appreciate the facts it is necessary to derive a little into the history of the Bihar Police Service. I should, however, like to observe that our difficulty has increased manifold because the State Government has not chosen to disclose all relevant materials in these two applications. It is not necessary to investigate into the reasons for it but our handicap remains all the same. This judgment, therefore, must be taken to be based upon the facts adduced before us. It is not necessary to transport ourselves into the dim past. Suffice it to say that on the separation of Bihar and Orissa in 1936 the common Bihar and Orissa Police Service cadre was split into two. The strength of Dy. S. Ps. for Bihar on 19.8.1936 was 28. Subsequently the cadre went on swelling from time to time and now stands at 219 permanent posts and 55 temporary posts. The process of expansion of the cadre has been that temporary posts were created in the first Instance and subsequently they were made permanent. The position in regard to temporary appointments to the service is rather confusing. Whereas it was stated on behalf of the State (respondents 1 to 3A) that no officer has been holding a temporary posting. The civil list of 1948 shows different picture. It shows that there were 47 substantive Dy. S.P. in 1948 and 86 temporary Dy. S.P. It includes Ram Bahadur Singh ‘respondent no.4 at serial. 65. This picture, however, changes. The civil list of 1963 does not contain any temporary Dy. S.P. but mentions 76 persons as officiating by Dy. S.P. Rambahadur Singh (respondent no.4) who was shown as temporary Dy. S.P. in 1948 in the civil list is shown as the second officiating Dy. S.P. even in 1962. The civil list for subsequent year also contains names of officiating Dy. S. Ps. There is nothing on the record to show have and how nothing on the record to show when and how temporary Dy. S. Ps. S.P. in 1948 in the civil list is shown as the second officiating Dy. S.P. even in 1962. The civil list for subsequent year also contains names of officiating Dy. S. Ps. There is nothing on the record to show have and how nothing on the record to show when and how temporary Dy. S. Ps. In the 1948 civil list were not within the cadre and on no higher footing than officiating incumbents. The entry into the cadre thus was only by appointment in a substantive manner. Posts in cadre were permanent and temporary but officers were only permanent of officiating. The direct recruits were always appointed against substantive vacancies on probation. The promotees, however, have always appointed against substantive vacancies on probation. The promotees, however, have always been promotees, however, have always been promoted on officiating basis in the first instance. Subsequently they used to be absorbed in the cadre on substantive basis according to rules. The number of direct recruits and promotees to the cadre of Bihar Police Service was in the ratio of 50 : 50. This was in accordance with appendix 71 of the Bihar Police manual Volume 4. I shall have occasion to refer to these rules subsequently. Suffice to say that in 1953 these rules were superseded by Bihar Police Service (recruitment) Rules 1953. These rules were made in terms of Article 309 of the Constitution. The recruitment rules are the only rules applicable to members of the Bihar Police Service. There is neither cadre rules nor seniority rules. The State of members of the Bihar Police Service in accordance with executive instructions. 3. After the hearing of these applications bad concluded we had the impression that respondents 1 to 3 had not disclosed every relevant material for proper decision and that some information was being withheld from the Court. We therefore called upon learned Advocate General to see that full information was supplied to the Court. Learned Advocate General after taking four days' adjournment supplied some informations to the Court which had not been disclosed earlier as suspected by us. Those facts were supplied in answer to questions framed by us. The questions and answers were furnished to all the counsel appearing for the parties. Although those materials are not on affidavit but aid has been taken of those materials also as they appear to be authentic coming from the Advocate General. Those facts were supplied in answer to questions framed by us. The questions and answers were furnished to all the counsel appearing for the parties. Although those materials are not on affidavit but aid has been taken of those materials also as they appear to be authentic coming from the Advocate General. 4. It is now relevant to quote the rules relating to recruitment to Bihar Police Service. Rules 1 and 2 of the Bihar and Orissa Police Manual Volume 3 Appendix 71 reads as follows :- "1. The Bihar Police Service hereinafter called the Service shall be recruited ordinarily from the following classes in such order as to secure that half the total number of appointments will be held by each class :- (a) Candidates for direct appointment, who shall be recruited in accordance with the rules contained In Part II below :- (b) Inspectors and Sergents-Major, who shall be recruited in accordance with the rules contained in Part III below. 2. The Governor shall decide in each year the number of vacancies to be filled in that year by promotion of Inspectors and Sergent-Major, respectively. Rule 1 thus enshrined a quota rule in the Service. 5. The provisions relevant to these applications under the 1953 recruitment rules are rules 2, 3, 22 and 23. The points of distinction between the two rules arc that whereas under the pre 1953 rules the sources of recruitment of the Bihar Police Service under both the rules were (a) by direct recruitment by means of competitive examination held by Public Service Commission and (b) by promotion of Inspectors, Sergents-Major, Subedars-Major and Subedars. In 1975 a third category was added namely, by absorption of Senior District Prosecutors (designated as A.P.P. Grade I) below the age of 50 years. The gradation list (Annexure 6/1) contains names of only two persons who have been absorbed in the Bihar Police Service from amongst Assistant Public Prosecutors (A.P.P.’s. Grade I). They are serial nos. 21 and 22, Tej Bahadur Singh and Madan Mohan Pd. Sharma, respectively. Their replacement in the gradation list has not been challenged either by the petitioners or the respondents, nor are they parties to these applications and, therefore, it is not necessary to consider on what basis their seniority in the gradation list (Annexure 6/1) has been shown. 6. Rules 3, 22, 23 and 24 read as follows:- "3. Sharma, respectively. Their replacement in the gradation list has not been challenged either by the petitioners or the respondents, nor are they parties to these applications and, therefore, it is not necessary to consider on what basis their seniority in the gradation list (Annexure 6/1) has been shown. 6. Rules 3, 22, 23 and 24 read as follows:- "3. 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 anyone 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. 22. A preliminary selection of officers for promotion shall be made in each Range by Range Selection Board consisting of the Deputy Inspector General of the Range concerned and two Superintendents of Police of another Range. The Range Selection Board shall interview the district nominees and shall select from among them in order of merit those who are to appear before the Inspector-General's Selection Board. 23. (i) The Inspector General's Selection Board shall nominate for appointment to the Service twice as many candidates as there are vacancies to be filled by promotion. The names of officers selected shall ordinarily be arranged in order of seniority and if an officer is placed higher in the list than his seniority warrants, the reasons for the special nomination shall be recorded. (ii) The Inspector-General's Selection Board shall send all papers including the confidential records relating to the candidates nominated by I, direct to the Commission and shall at the same time submit a list of such candidates to the Governor. The Board shall also send to the Commission similar papers and confidential records of any officer whose supersession is recommended. After examination of the papers and re-cords the Commission shall submit its recommendations to the Governor. 24. Tae final selection of officers to be promoted shall be made by the Governor after considering the recommendations made by Commission under rule 23." It will be seen that Rule 3 of the 1953 Rules also enshrined a quota rule in the matter of appointments to the cadre in regard to direct recruits and promotees. 24. Tae final selection of officers to be promoted shall be made by the Governor after considering the recommendations made by Commission under rule 23." It will be seen that Rule 3 of the 1953 Rules also enshrined a quota rule in the matter of appointments to the cadre in regard to direct recruits and promotees. While the pre 1953 rules provided parity between direct recruits and promotees in the cadre, the recruitment rules 1953 did away with the parity in the whole cadre and introduced parity between the direct recruits and promotees only in the vacancies of a particular year. Under the former rules a direct recruit could not be appointed in the vacancy caused by superannuation of a promotee. After 1953 the condition changed in law. The parity in the cadre was given a go by and vacancies had to be filled up in accordance with which the promotees could not be less than half the total number of vacancies to be filled in any year. As a fact rule 3 of the Recruitment Rules of 1953 was never acted upon till 1961. The appointments to the cadre of the Service was made in such a manner that a ratio of 50 : 50 was maintained between the promotees and direct recruits in the cadre. How far it was proper to have ignored the Recruitment Rules of 1953 is not the question at issue in these applications but certainly the previous rules in terms of which the cadre was being filled up were weighted in favour of the promotees rather than against them. Respondents 4 to 7 therefore, cannot make a grievance of non-implementation of the 1953 rules. Since the parties have not raked up this question I do not consider it necessary to consider it. In any view of the matter quashing appointments between 1953 and 1959 in contravention of Recruitment Rules 1953 is likely to upset long settled facts and throw the department into disarray. We have, therefore, not considered it necessary to find any fault with appointments till 1961. I, therefore, proceed to dispose of these applications on the footing that the Recruitment Rules, 1953 were put into effect since 1962 as I am satisfied that it was so done. 7. Mr. We have, therefore, not considered it necessary to find any fault with appointments till 1961. I, therefore, proceed to dispose of these applications on the footing that the Recruitment Rules, 1953 were put into effect since 1962 as I am satisfied that it was so done. 7. Mr. Prabha Shanker Mishra appearing on behalf of some of the respondents contended that new rule 3 only fixed the flooring strength of the promotees without fixing the ceiling and, therefore, whereas the direct recruit could not exceed half the number of vacancies to be filled in each year the number of promotees could be any figure above 50%. He tried to spin out this proposition from the proviso to rule 3 which provides the number of vacancies to be filled in any such year. Spinning further from this proposition it was contended on behalf of the respondents that it was open to the State Government to make any number of appointments to the Bihar Police Service in any year and, therefore, the State Government had ample justification in increasing the number of substantive vacancies retrospectively and appointing the respondents to those posts retrospectively. I regret that is not the import of the proviso to rule 3. Such an interpretation would mean collapse of the quota rule. The expression "not be less than half the total number of vacancy" cannot be used to support the edifice of the respondents. The expression "not less than half" was used only to provide for fractional vacancies where the number of posts could not be divided exactly in the ratio of 50 : 50. Thus where the number of vacancies for a particular year was an odd figure the direct recruits could not be more than half and the promotee could not be less than half. For instance if the number of vacancies to be filled up in a particular year 8. The dates of joining and confirmation of the petitioners are as follows : - SI. No. Names Date of joining Date of confirmation 1. Md. Suleman 1-11-66 1-11-70 2. Shambhu Saran Pandey 1-11-66 1-11-69 3. Ramautar 1-11-66 1971 4. Rajendra Prasad 22-4-1968 22-4-71 5. Devendra Narayan Singh 1-9-1968 1-9-72 6. Anil Kumar Singh 1-9-72 1-9-197 7. N. K. Jha 31-8-69 1-9-72 8. Shiv Shankar Singh 1-9-69 1-9-72 9. Ram Chander Peon 20-4-70 22-7-73 10. Balkeshwar Chandra Verma 1-4-72 1-4-75 11. Md. Suleman 1-11-66 1-11-70 2. Shambhu Saran Pandey 1-11-66 1-11-69 3. Ramautar 1-11-66 1971 4. Rajendra Prasad 22-4-1968 22-4-71 5. Devendra Narayan Singh 1-9-1968 1-9-72 6. Anil Kumar Singh 1-9-72 1-9-197 7. N. K. Jha 31-8-69 1-9-72 8. Shiv Shankar Singh 1-9-69 1-9-72 9. Ram Chander Peon 20-4-70 22-7-73 10. Balkeshwar Chandra Verma 1-4-72 1-4-75 11. Krishna Bihari Singh 2-1-1971 2-1-74 Serial Nos. 1 to 7 mentioned above are petitioners in C.W.J.C. No. 204 of 1978. 9. The recruitment rules are silent in regard to the date on which they all be deemed to have entered the cadre. Rule 468 (a) of the Police Manual, however, provides that a Dy. S. P. appointed direct shall be on probation for three years and shall be confirmed if he passed the prescribed examinations and shown himself fit to perform the duties of Dy. S. P. The promotees are required by was 9, not more than 4 could be recruited directly and 5 promotees could be promoted to fill up the remaining vacancies. It is therefore, not possible to hold that the rules provide in the matter of making promotions. Rule 648 (b) of the Police Manual to be on probation for one year. The entrance to the cadre is deemed to be in each case in accordance with the date of appointment and not the successful completion or probationer period. 10. There can be no manner of doubt that the Bihar Police Service consisting of Dy. S.P. consists only of permanent incumbents. Officiating promotions are no part of the cadre. This is not a case of the cadre consisting' of permanent as well as temporary officers. 11. It was contended on behalf of the petitioners that the respondents' entry into the cadre or Bihar Police Service is from the date of their substantive appointment and therefore they could not have their seniority reckoned from the date they started officiating in the service. As a corollary to it was also contended that issuance of Annexures 4 and 4/1 was contrary to Rule 3 of the Recruitment Rules1953. The contention proceeded, the action of the State Government in creating posts retrospectively and appointing respondents to them in the same manner was ultra vires Article 16 (1) of the Constitution. In my view this submission has substance and must be accepted. The contention proceeded, the action of the State Government in creating posts retrospectively and appointing respondents to them in the same manner was ultra vires Article 16 (1) of the Constitution. In my view this submission has substance and must be accepted. Rule 3 of the recruitment rules quoted earlier leaves no manner of doubt that decision has to be taken by which the number of vacancies to be filled in that year has to be filled. The proviso to the said rule introduces a proportion of appointments of recruits and promotees. If the term quota can be used to the system followed by the State Government the ratio is 50 : 50 appointment every year. That system seems to have been followed regularly till 1961. Rule 3 leaves no manner of doubt that the State Government cannot declare retrospectively the number of vacancies for a particular year and the number of appointments direct and promotees in particular years. Such a course would affect the rights of appointees in subsequent years. That cannot be permitted by law. 12. Learned counsel for the petitioners place reliance upon Gayu Prasad Pandey and another Vs. State of Bihar. Their Lordships in that case considered whether retrospective amendment of rules violated Article 16 of the Constitution of India or not and observed as follows : ..............The decision in Mairch's case, therefore in my opinion, also cannot be taken to them as authority for the proposition that after the seniority of officers substantively appointed to one cadre from different sources and absorbed to that cadre stands determined according to existing rules, amendment of the rules by the Government with retrospective operation thereby affecting the civil right of an employee of consideration, according to that seniority for future promotion merely on the basis that they were appointed 10 that cadre from different sources is not discriminative and on that ground not violative of Art.16 of the Constitution of India." And again In paragraph 7 their Lordships observed as follows :- "It I may say so with respect, there can be no doubt that the passage enunciates the correct law. But it was not disputed by Mr. Sinha that the power under Art. 309 of the Constitution of India is subject to the fundamental rights conferred upon the citizens under. But it was not disputed by Mr. Sinha that the power under Art. 309 of the Constitution of India is subject to the fundamental rights conferred upon the citizens under. Part III of the Constitution of India and I have already endeavoured to show that the impugned amendment so far its retrospective operation is concerned, is violative of Art.16 of the Constitution of India." In my view the case mentioned above fully supports the contention of the petitioners. Annexures 4 and 4/1 upset the civil right of the petitioners by executive action. Thus they must be characterised as ultra vires Article 16 of the Constitution or India, The petitioners enjoyed a civil right to their position in the cadre. That could not be affected by the Government creating posts retrospectively and appointing respondents 4 to 57 to them with retrospective effect. Annexures 4 and 4/1 must, therefore, be quashed. 13. It was contended on behalf of the respondents that although they had been given officiating promotion but in effect and substance they were substantively promoted. This was attempted to be supported by the fact, firstly, that they had been promoted by a selective process as contemplated by Rules 22, 23 and 24 of the Recruitment Rules 1953. The promotion was attempted to be pressed home secondly, by the respondents were same as substantive Dy. S.P. The submission urged on behalf of the respondents is fallacious and must be rejected. The method of promotion of the respondents was the same as existing from long before the Recruitment Rules of 1953 came into being. That method of officiating selection was continued even after 1953. Thus the fact that the petitioners were selected through Range Board's, Inspector General's Board, the State Public Service Commission and the approval of the State Government cannot establish that the respondents held substantive appointment since their date of officiation. The process adopted was also meant to prepare list of officers fit for promotion. Their birth in the cadre cannot be a date prior to what the recruitment rules 1953 permit. They therefore, could not enter the cadre in contravention of quota rule laid down by rule 3 of the Recruitment Rules. The third point in regard to exercise of functions and responsibilities similar to substantive direct recruits or substantive promotees is equally inconsequential. That must necessarily be so. They therefore, could not enter the cadre in contravention of quota rule laid down by rule 3 of the Recruitment Rules. The third point in regard to exercise of functions and responsibilities similar to substantive direct recruits or substantive promotees is equally inconsequential. That must necessarily be so. Otherwise there would be no point in bestowing upon the respondents officiating promotion. Bestowing of officiating promotion is a selective process. By that process those found capable of taking the burden of the office will be retained consistent with the statue. Those found unequal to the task will be reverted back to their lower substantive post. Therefore, the fact that the respondents discharged functions and responsibilities similar to substantive members of the cadre cannot establish that they were appointed substantively since the day of that officiation. This Court is not called upon to give its verdict upon the moralistic attitude of the State in issuing Annexures 4, 4/1 and 6/1. It is for Government to decide the mode of appointment to a service and not for the Court. But once statutes and rules have been framed it is not open to Government to ignore them Ad Lib. The courts must step in and quash any infraction of the law which adversely affects any citizen. The State Government should have realised that the quota rule in Rule 3 of the Recruitment Rules, 1953 was like a rock which could not be ignored for showering blessings on promotees in the matter of substantive promotions. The confirmation had to be done in the case of promotees and direct recruits having regard to the permanent strength of the cadre and the quota. 14. In my considered opinion the State Government did not have the power to create substantive posts retrospectively and appoint respondents substantively from the dates of their officiation. That would be acting in the teeth of Recruitment Rules of 1953 adversely affecting the Interest of the petitioners. The petitioners have as much right to protection of their interest from the State as the respondents. Judged in that background the issuance of Annexures 4 and 4/1 must be viewed as colour able exercise of power. I must hasten to add that the expression "colourable" does not mean tainted with bad faith or evil motive. It is not pejorative or crooked. Judged in that background the issuance of Annexures 4 and 4/1 must be viewed as colour able exercise of power. I must hasten to add that the expression "colourable" does not mean tainted with bad faith or evil motive. It is not pejorative or crooked. It is only bound up with legal incompetence as was observed in 1977 S.C. 2279 at paragraph 16.Annexures 4 and 4/1 manifesting colourable exercise of power must therefore, be struck down. 15. Confirmation of personnel to the cadre in the case of promotee respondents and direct recruits must be done having regard to the permanent strength of the cadre and the quota of direct recruits and promotees. The Supreme Court observed in S.G. Jaisinghani versus Union of India and others that having fixed the quota in exercise of their statutory power between the two sources of recruitment, there is no discretion left with the Government to alter that quota according to the exigencies the situation or to deviate from the quota in any particular year at its own will and pleasure. The observation of the Supreme Court in Jaisinghani's case (Supra) must apply a fortiori to the present situation. The decision of the Supreme Court in V.B. Badami and others versus State of Mysore and others fully supports the petitioners. The State Government, therefore, could not ignore the quota rule. 16. It was contended on behalf of the respondents that Annexures 4 and 4/1 had been issued In accordance with Saran Singh Committee Report which recommended that in order to remove stagnation in the department the seniority of substantive promotees should reckon from the date of initiation and not from the date of their substantive appointment to the cadre. It is true that they Wire issued on the recommendation of the Saran. Singh Committee Report but howsoever laudable the object may be the State Government had no jurisdiction to affect the civil right of the petitioners by executive action. Even a legislation cannot affect the rights of the petitioners as there could be no legislation in contravention to Chapter XIII of the Constitution of India, much less could it the done by executive action. Even a legislation cannot affect the rights of the petitioners as there could be no legislation in contravention to Chapter XIII of the Constitution of India, much less could it the done by executive action. It must be conceded that the action of the State Government in issuing Annexures 4 and 4/1 was not mala fide exercise of power, as was contended on behalf of the petitioners but there can be no manner of doubt that the action of the State Government was contrary to Article 16 of the Constitution and, therefore, although it was not mala fide exercise of power yet it did not have legal sanction. 17. It was also contended on behalf of the respondents that Annexures 4 and 4/1 had been issued in accordance with the resolution of the State Government contained in Annexure 8/3 of the counter affidavit filed on behalf of respondent nos. 14, 26, 28, 42, 46 and 53. Annexure B/3 is a copy of Extraordinary Bihar Gazette dated 27.4.77. It contains resolution of the State Government at page 2 in regard to Bihar Police Service. The resolution states that the junior selection grade (Rs. 620/1235) and Senior Selection Grade (Rs. 890/1415) shall be 10% instead of 7.50% of the entire-posts in the cadre, Item No.3 in the schedule to that resolution is in relation to the Bihar Police Service. It directs firstly that temporary posts which have been in existence for 3 years and which were likely to continue indefinitely should be made permanent. Secondly it provided that the lien of officers on deputation to Central Government for three years or about should be suspended and substantive promotions be made to the cadre against those posts. Thirdly it recommended that the seniority of direct recruits vis-a-vis promotees to the service should be determined on the basis of continuous officiation and not on the basis of first appointment to the cadre. Fourthly it recommended that appointments be made not in terms of rule 3 but in the ratio of 50/50 of the entire sanctioned cadre. Thirdly it recommended that the seniority of direct recruits vis-a-vis promotees to the service should be determined on the basis of continuous officiation and not on the basis of first appointment to the cadre. Fourthly it recommended that appointments be made not in terms of rule 3 but in the ratio of 50/50 of the entire sanctioned cadre. These recommendations were certainly the basis of Issuance of Annexures 4 and 4/1 but It is regretable that the State Government did not appreciate that the recruitment rules 1953 had been made in terms of Article 309 of the Constitution which could not be abrogated by mere executive instruction s. Annexure B/3 and the actions taken there on were nothing but executive instruction. They could not over ride the statutory rules made in exercise of the powers under Article 309 of the Constitution. Annexure B/3 therefore, could not clothe the State Government with the power of affecting the petitioner's right by issuing Annexure 4 and 4/1. 18. Mr. Prabha Shankar Mishra, learned counsel for the respondent contended that the petitioners had not prayed for quashing Annexure B/3 which were the source of power of the State Government and, therefore, Annexures 4 and 4/1 were invulnerable. I regrat this submission is absolutely unsound. No amount of defect in pleadings can provide sanction to an illegal action of the State Government. It is sufficient, if Annexures 4 and 4/1 can be quashed. If the Implementation of the resolution is quash ad. Annexure B/3 automatically must remain a dead letter. In my view, therefore, the applications cannot fail on the ground that no prayer has been made for quashing Annexure B/3. 19. The outstanding feature of the service is that the officers entered the cadre in a particular ratio. Prior to the filing of the present writ applications some of the respondents had earlier filed C.W.J.C. No. 1356 of 1975 and C.W.J.C. No. 2011 of 1976. In those applications also seniority, of the promotees-versus direct recruits were in question. In those applications the State Government bad categorically stated that promotees were being appointed substantively to the cadre in accordance with the ratio of 50 : 50 as prescribed by rule 3 of the recruitment rules. While the petitioners averred categorically that the quota rule, if it can be described as such were being followed year after year, respondents did not accept this position. While the petitioners averred categorically that the quota rule, if it can be described as such were being followed year after year, respondents did not accept this position. While respondents 14, 26, 28, 42, 45 and 53 stated in paragraph 16 of the counter affidavit that the Government did not follow the rule of determining the quota of the promotees vis-a-vis direct recruits each year. The other respondents did not traverse this ground. The State Government also in its counter affidavit slurred over this matter and did not make any categorical statement although the affidavit on behalf of the State had been sworn by the very same person who had sworn the affidavit in the previous writ applications on behalf of the State. In the counter a!1idavit on behalf of the State in C.W.J.C. No. 2011 of 1976 it had been explicitly stated that the quota rule was being meticulously followed. We, therefore, called upon the learned Advocate General to inform the Court as to whether the quota rule was being followed or not. The answer of the Advocate General after 4 days was that till 1961 the old rules contained in Appendix 71 of the Bihar Police Manual were being followed and not 1963 rules but thereafter appointments and promotions were being made in terms of the new rules. The number of promotions has been exactly equal to the direct recruitments. Since the quota rule has been followed since 1962 at least, the promotees, although officiating from earlier years can enter the cadre only in accordance with the quota rule in particular years. In that view of the matter the mere fact that promotees had been officiating in the service since much earlier cannot clothe them with the right of rankling senior to the substantive officers by executive fiat. In that view of the, matter the issuance of Annexure 4 and 4/1 and the placement of the various officers in Annexure 6 and 6/1 being contrary to the recruitment rules 1953 must be struck down as invalid. If the State Government intended to implement its resolution contained in annexure B/3 it should have taken steps to amend the recruitment rules in terms of Article 309 of the Constitution. As things stand the State Government cannot Act, contrary to the recruitment rules. If the State Government intended to implement its resolution contained in annexure B/3 it should have taken steps to amend the recruitment rules in terms of Article 309 of the Constitution. As things stand the State Government cannot Act, contrary to the recruitment rules. It has no power to create substantive posts retrospective Ad Lib and confer substantive promotions brushing aside Rule 3 of the Recruitment Rule 1953. 20. Long arguments were discussed at the bar as to whether V.B. Badami and others Vs. State of Mysore and others applied to the facts of the present applications or whether the ratio in S.B. Patwardhan Vs. State of Maharashtra applied to the present applications. In my view the present applications must be decided on the lines of Bedami’s case (supra). The cadre consists only of permanent officers. That is obvious firstly from the absence of any rule indicating that officiating officers were also in the cadre, and secondly from the contents of Annexure B/3 item 3 (3). It is also obvious from the fact that Annexure 4/1 appointed the officers on substantive basis and for that reason it considered appointment on substantive basis essential for entrance into the cadre. The State Government Knew full well that in order to confer a position in the gradation list names of officers must be borne on the cadre. For that reason were Annexure 4 and 4/1 issued. There can be no manner of doubt that the State Government knew full well that officiating Dy. S. P. were outside the cadre. In that view of the matter S.B.P. Patwardhan's case (supra) can have no application to the facts of the present applications. I do not consider it essential to discuss other decisions cited at the bar as they have been considered at great length in the two Supreme Court decisions mentioned above. 21. There are other difficulties in upholding Annexure 1/1. That would be highlighted by considering the cases of Ram Bahadur Singh (respondent no. 4) and Umanath Verja (respondent no. 8). Their cases are being considered only to highlight an important aspect which does not appear to have been considered by the State Government and not with any other purpose. 22. Respondent no. 4 Rambahadur Singh has been shown as no. 1 in the gradation list (Annexure 6/1). He was a promotee to the Bihar Police Service and started officiating as Dy. 22. Respondent no. 4 Rambahadur Singh has been shown as no. 1 in the gradation list (Annexure 6/1). He was a promotee to the Bihar Police Service and started officiating as Dy. S.P. from 21.8.1948. Perusal of the civil list of the years 1962-1968 and 1969 reveals that several promotees junior to Rambahadur Singh were confirmed in the cadre leaving him behind. The civil list of 1969 shows him no.1 in the list of officiating Dy. S.P.I could not lay my hands on subsequent civil lists but it is obvious that he was substantively appointed by Annexure 4/1 in 1977 and not earlier. There is nothing on the record to show why he was superseded. I cannot only hazard that he was probably superseded on account of unsatisfactory performance. If his performance from 1948 till 1977 was not considered satisfactory by the Police Department and the State Government is there any justification to appoint him substantively since 1948 ? In my view certainly not if my guess is right. 23. The proviso to rule 3 of the recruitment rules takes particular care to high light that before appointment to the cadre the performance of a promotee must be satisfactory. If the performance is unsatisfactory a promotee cannot be absorbed in the cadre howsoever senior he may be and whatever may be his position in the officiating list. I am, therefore, unable to appreciate the substantive appointment of respondent no. 4 since 1948 conferred upon him. Respondent no.4 did not chose to appear in the two officiating applications although notices had been served upon him. 24. So far as respondent no.8, Umanath Verma is concerned he seems to suffer from a delusion that he bad been promoted substantively in May, 1962 which is not true. It is true that his opinion had been taken for joining Central Government in the C. B. I. and that he had stated that he was willing to join Delhi Special Police Establishment on promotion. Thereafter he was deputed to join Delhi Special Police Establishment. There is nothing to show that he had been promoted to the rank of Dy. S.P. substantively in 1962. Annexure A/8 to the counter affidavit filled by him shows that S.P., S.B., C.I.D. Bihar, Patna enquired whether Umanath Verma was willing to go as Dy. S.P., S.P.E., Patna. Thereafter he was deputed to join Delhi Special Police Establishment. There is nothing to show that he had been promoted to the rank of Dy. S.P. substantively in 1962. Annexure A/8 to the counter affidavit filled by him shows that S.P., S.B., C.I.D. Bihar, Patna enquired whether Umanath Verma was willing to go as Dy. S.P., S.P.E., Patna. Annexure B/8 dated 19.8.61 shows that he had no objection provided he was promoted and deputed. Annexure C/8 shows that the Inspector General of Police sanctioned his deputation for a period of three year; in the first instance. It also shows that he was on the fit list of Inspectors for promotion to the rank of Dy. S. P. Annexure E/8 to the counter affidavit filed by Umanath Verma was issued on 7.7.67. That was a letter from the Under Secretary to Government in the Political (Police) Department to Inspector General of Police. The subject of the letter reads as follows: "Subject Selection of Inspectors, Sergeants-Major and Subedars for officiating promotion to the rank of Dy. S. P. cases of officers on deputation outside the State." The letter states that the State Government had certified “that for deputation to the Government of India, the following officers (which includes Umanath Verma) would have been allowed to officiate as Dy. S.P. with effect from the dates noted against their names" (In the case of Umanath Verma the date was 11.5.62). These annexures annexed by Umanth Verma in the writ application of 1973 leave no manner of doubt that be had been promoted on an officiating basis and that he had not been promoted substantively. The claim of Umanath Verma, therefore, to have been substantively appointed to the cadre since 11.5.62 is absolutely hollow and must be rejected. It should always be borne in mind that promotion to the cadre is done not only on the basis of fitness but also on the basis of quota rule the ratio between direct recruits and promotees, as enshrined in Rule 3 of the Recruitment Rules 1953. The Bihar civil lists of 1962, 1968 and 1969 bear ample testimony that there were several promotees senior to respondent no.8, Umanath Verma in 1962. He could enter only in accordance with the quota rule. The Bihar civil lists of 1962, 1968 and 1969 bear ample testimony that there were several promotees senior to respondent no.8, Umanath Verma in 1962. He could enter only in accordance with the quota rule. The position of Umanath Verma the gradation list in Annexure 6/1 on the basis of his entrance to the cadre in 1962 must, therefore, be rejected completely. It is true that he had been found fit for promotion by the Range Selection Board, I. G's Board, the Public Service Commission and the State Government. It is also true that since his promotion he had always held permanent post in the Bihar Police service, yet his claim to have been substantively promoted to the cadre in 1962 is absolutely untenable. He could have been appointed substantively to the cadre only after all those in the officiating list senior to him had been appointed substantively. There were any number of promotees senior to him. In answer to a Court query learned Advocate General in a written reply accepted that 21 persons had been promoted substantively in 1962 and they were all senior to Umanath Verma, Digambar Saran Sinha, Brijeshwar Nath Dutta, Hari Kumar Verma, Ganesh Singh, Shiv Shankar Jha, Akhauri Bhola Nath Sahay, to mention some of the names, were undoubtedly senior to the petitioners who had not been confirmed substantively till 1969. I fail 10 understand how respondent No. 8 who was 124 on the list of officiating Dy. S.P. could be declared to have been appointed substantively in 1962 over their head in 1977. The fact that the above named persons have retired does not empower the State Government to disregard the quota rule and give any seniority to the respondents retrospectively. In fact several of those who have been appointed substantively by Annexure 4/1 are respondents to these applications and have been shown be the gradation list as substantively appointed subsequent to 1962. I fail to appreciate on what basis Umanath Verma was declared as having been appointed in 1962 whereas his seniors Ram Bihari Sinha, Ratan Singh, Rajendra Narain Singh, Shyamanand Verma, Ramesh Rai etc. were shown in Annexure 6/1 as appointed substantively in subsequent years. I have not gone into the question of inter se seniority of the respondents but it is patent that Umanath Verma cannot enter the cadre until his seniors had been provided a berth in the cadre. were shown in Annexure 6/1 as appointed substantively in subsequent years. I have not gone into the question of inter se seniority of the respondents but it is patent that Umanath Verma cannot enter the cadre until his seniors had been provided a berth in the cadre. In the Bihar civil list of 1969 he is shown at no. 36 in the list of substantive Inspectors. In the remarks column he is shown as officiating Deputy Superintendent of Police. I fail to appreciate by what process of logic he can now be appointed substantively as of 1962 over the head of several others. That would be mere discrimination. The claim of Umanath Verma to seniority since 1962 is clearly untenable. He must have been discharging his duties consciously and efficiently but the bane of Government service is seniority according to Rules whatever may be the efficiency. It is thus obvious that Umanath Verma cannot be allotted a year of appointment prior to those who were senior 10 him. Thus, there seems to be no method or principle in the preparation of Annexure 6/1. The seniority given to other respondents as well are unsustainable. It must, therefore, be quashed as having been prepared arbitrarily. I have held earlier that Annexure 4 and 4/1 being in contravention of quota rule 3 of the Recruitment Rules do not possess legal sanction. For that reason also Annexure 6/1 must be quashed. 26. It was contended by Mr. Prabha Shankar Mishra that the present applications were not maintainable as no civil right of the petitioners had been affected by the State Government. It was submitted that every member of the Service who had officiated for six years was entitled to be considered for being included in the select list of the Indian Police Service. The right of the petitioners would not be affected by the impugned annexures and, therefore, there was no case for issuance of any writ. It is true that no one has a claim to be appointed to the Indian Police Service and that all that an officer of the State Police Service is entitled in his right to be considered. The petitioners would not be denied consideration even if these applications were to fail. Hut it goes without saying that the rule for selection to the Indian police Service is one of seniority. The petitioners would not be denied consideration even if these applications were to fail. Hut it goes without saying that the rule for selection to the Indian police Service is one of seniority. Other things being equal the petitioners having become junior to the respondents are bound to be adversely affected in their selection to the Indian Police Service if th~ impugned annexures were sustained. It must be to the credit of Mr. Mishra that he frankly conceded that although every officer who had officiated for six years and above was entitled to be considered for inclusion in the select list of Indian Police Service yet that selection was always done with an eye to seniority. The petitioners were therefore bound to suffer. It cannet, therefore, be asserted that the petitioner's right would not be adversely affected if the impugned annexures were permitted to exist. It is not only a question of seniority in particular cadre but it affects future prospects as well and, therefore, these petitioners certainly have a case for issuance of a writ of certiorari. If there is no such right as seniority in the cadre the respondents have nothing to lose if the impugned annexure are quashed. 27. It was submitted by Mr. Sreenath Singh on behalf of some of the respondents relying upon Relaxation rules framed under Article 309 of the Constitution that the State Government has relaxed the rules with regard to the substantive appointments and thus the impugned annexures were invulnerable. I regret this submission loses sight of the fact that annexures 4 and 4/1 do not purport to have been issued in exercise of the powers conferred by the relaxation rules. The State Government not having acted in terms of those rules the Impugned annexures cannot be permitted to affect the civil rights of the petitioners and must be quashed. 28. For the reasons stated above C.W.J.C. No. 204 of 1978 and C.W.J.C. No. 205 of 1978 are hereby allowed and Annexures 4, 4/1. 6 and 6/1 are hereby quashed. Let a writ of certiorari issue quashing those annexures and a writ of mandamus commanding the respondents 1 to 3 to forbear from giving effect to those annexures. I agree. Applications allowed.