Md. Sulaiman v. State Of Bihar — 1981 DIGILAW 129 (PAT)

Judgment LALIT MOHAN SHARMA, J. 1. The petitioners and the respondents 4 to 10 (hereinafter referred to as the respondents) are officers in the Police Department of the State of Bihar. In the writ application, the notification, Annex. 9, the decision in the letter, Annex. 10, and the Gradation List, Annex. 16, have been challenged. By the impugned notification, the respondents have been absorbed in the category of Deputy Superintendents of Police. In Annex. 10, the Governments decision in regard to the fixation of seniority is contained. At the time of argument of the case, Mr. Basudeva Prasad, learned counsel for the petitioners stated that he was not challenging the absorption of the respondents in the petitioners cadre. In support of his attack on Annexures 10 and 16 he contended that the seniority of the respondents must be reckoned by reference to the date of their entry in this cadre. The State Government has counted their earlier service when they were Senior District Prosecutors which is characterised as illegal. 2. The case of the petitioners is that they were directly recruited to the cadre of Deputy Superintendents of Police in the Bihar Police Service regulated by the Bihar Police Service (Recruitment) Rules, 1953 (Annex. 1) in the years 1966 to 1972 and were confirmed latest by 2-1-74. The respondents were appointed as Senior District Prosecutors in a separate cadre created in 1953 by the order as contained in Annex. 3. The recruitment to this cadre was governed by separate rules as mentioned in Annex. 4, framed in 1964. The respondents 4 and 5 were appointed in the year 1960 (that is before the framing of 1964 Rules), the respondents 6 to 8 in 1964 and, the respondents 9 and 10 in 1971. In view of the provisions of S. 25 of the new Cr.P.C, 1973, a letter was issued by the State Government on 30th Mar., 1974, as contained in Annex. 5. Referring to the cadres of the Senior District Prosecutors, District Prosecutors and Assistant District Prosecutors, and to the new provision in the Criminal Procedure Code, it was stated that the present system could not be continued and fresh orders should, therefore, be issued. It was also observed that the Prosecutors would not be registered under S. 8 of the Police Act. It was also observed that the Prosecutors would not be registered under S. 8 of the Police Act. Some of the District Prosecutors were not satisfied with the proposed steps and represented for being absorbed in the cadre of the Deputy Superintendents. The matter was, thereafter, examined on several levels and ultimately a decision was taken to absorb some of them in the Deputy Superintendents cadre. 3. The 1953 Recruitment Rules were accordingly amended and a reference was made to the Bihar Public Service Commission. The Commission gave its concurrence, but pointed out that the rules had been amended without any consultation with it. The notification (Annex. 9) was thereafter issued. No orders were passed in 1976 indicating as to how their seniority would be determined. 4. In 1978, a decision as contained in Annex. 10 was taken that their seniority would be determined with reference to the dates of their first appointment, that is, their appointment as Senior District Prosecutors. This decision has been challenged as illegal in para 22 of the writ application. A gradation list was prepared in which the respondents were mentioned as senior to the petitioners and the said list was, therefore, impugned in this Court in C.W.J.C. 5221 of 1978. The application was allowed to be withdrawn, since the impugned list was tentative. The petitioners thereafter filed their representations before the Government but the same were rejected and a final gradation list as contained in Annex. 16 was published. In these circumstances, the present application has been filed. 5. The case of the petitioners is that the cadres of Deputy Superintendents of Police and of the Senior District Prosecutors have been and are separate and the seniority of the respondents in the cadre of the Deputy Superintendents of Police must be reckoned with reference to their entry in this cadre. They must, therefore, be treated as junior to the petitioners who have been in this cadre from before. The petitioners have also asserted that the posts of Senior District Prosecutors are not equivalent to the posts of the Deputy Superintendents of Police. By a supplementary affidavit, the petitioners have challenged the validity of the amended Rule 2 (c) in Part 1 and Rr. 25 and 26 of Part IV of the 1953, Recruitment Rules, (Annex. 1). But Mr. The petitioners have also asserted that the posts of Senior District Prosecutors are not equivalent to the posts of the Deputy Superintendents of Police. By a supplementary affidavit, the petitioners have challenged the validity of the amended Rule 2 (c) in Part 1 and Rr. 25 and 26 of Part IV of the 1953, Recruitment Rules, (Annex. 1). But Mr. Prasad did not press this point and he expressly stated that the petitioners were not challenging the absorption of the respondents in the cadre of the Deputy Superintendents. 6. This case was earlier heard by a Division Bench and judgment was reserved. Later, a prayer was made on behalf of one of the parties to postpone delivery of the judgment on the ground that the gradation list impugned in this case has also been challenged in the Supreme Court in the writ petitions numbered 6180 to 6185 of 1980. The Bench adjourned the matter for sometime, but later directed the case for being placed for hearing before a larger Bench. Accordingly, it has been placed before us. 7. An application has been filed on behalf of two persons, Baban Singh and Krishnadeo Prasad Sinha for being heard in this case. On the 12th May, 1981, during the course of the hearing, the application was pressed and was allowed and they were added as respondents 11 and 12 and are being referred to hereafter as the interveners. Mr. Prabha Shankar Mishra appearing on their behalf has supported the petitioners by further argument. 8. The learned Government Advocate opposed the application on behalf of the respondents 1, 2 and 3. The respondent 4, Tej Bahadur Singh, appeared and argued in person. The respondents 5 to 10 are represented by Mr. B. C. Ghose. Several affidavits and counter affidavits have been filed on behalf of the different parties. Earlier when this case was heard by a Division Bench, it refused to take into consideration the counter affidavit of the State as the same had been filed very late without giving full opportunity to the petitioners to reply thereto. After reference to a larger Bench, when the case was placed before us for hearing, the learned Government Advocate prayed for considering the counter affidavit on the ground that the petitioners have now got sufficient time to reply thereto. After reference to a larger Bench, when the case was placed before us for hearing, the learned Government Advocate prayed for considering the counter affidavit on the ground that the petitioners have now got sufficient time to reply thereto. The counter affidavits of the other respondents have given the facts which are relevant according to their case, in detail, and in that view it is not of any serious consequence whether the States counter affidavit is accepted or not. During the argument, therefore, the learned Government Advocate as also other counsel were permitted to refer to all the counter affidavits. 9. The common case of the respondents I to 10 is that the two cadres of Deputy Superintendents and Senior District Prosecutors are equivalent in rank and the impugned decisions have been taken after examining all the relevant considerations at different levels and are valid. In substance, the absorption of the said respondents amounts to their transfer from one branch to another in the same service, that is, the Police Service and the question of seniority has to be determined in accordance with the principles laid down in Circular III/RI- 106/72-15784 dated 26-8-72, Annex. F, (which is in Hindi) to the counter affidavit of the respondent 4. This circular is also available in English in a printed booklet published privately and the counsel for the parties have, during their arguments, referred to the same. 10. The case of the respondents further is that to the same effect are the provisions of Annexures 10 and G. It has been emphatically asserted that as the post of a Senior District Prosecutor is of the same rank as that of a Deputy Superintendent of Police, the respondents are entitled to count their service as Senior District Prosecutors towards their seniority even independent of any rule to that effect. The duties and other relevant details have been set out in the counter affidavits at great length with a view to establish that the two services have to be treated equal in rank. Besides conducting the cases in Courts, the Senior District Prosecutors were assigned other duties of Deputy Superintendents. The petitioners case to the contrary has been strongly challenged. 11. Mr. B. C. Ghose, the learned counsel for the respondents 5 to 10 has also contended that the Deputy Superintendents of Police do not form a separate cadre. Besides conducting the cases in Courts, the Senior District Prosecutors were assigned other duties of Deputy Superintendents. The petitioners case to the contrary has been strongly challenged. 11. Mr. B. C. Ghose, the learned counsel for the respondents 5 to 10 has also contended that the Deputy Superintendents of Police do not form a separate cadre. They are in the Bihar Police Service within which service the Senior District Prosecutors are also included. Dealing with the 1953 Rules in Annex. T, the learned counsel said that they are merely rules of recruitment and do not establish a separate service. Referring to the definition of the "cadre in the Bihar Service Code as strength of service, Mr. Ghose argued that a cadre has to be established by a formal order and since that has not been done in the present case, the Deputy Superintendents cannot be assumed to have formed a separate and distinct cadre. The amendment in the 1953 Rules (Annex. 1) has been suggested to have been made only for removing certain technical difficulties which arise while passing proper orders of promotion. For this additional reason, it was suggested that the seniority of the respondents has to be counted with reference to their first appointment in the service as Prosecutors. 12. Before I take up the main questions argued in the case, it may be advisable to mention that Mr. Government Advocate raised a further point that since objection to the tentative gradation list was not filed within the prescribed period, the petitioners cannot be permitted now to challenge the final list prepared on its basis. Referring to the rule in the 1972 Circular, it was argued that the objections should have been filed latest by the 24th May, 1978 which was not done. The matter should, therefore, be treated as closed. After considering the circumstances in which the present case has been filed, I do not find myself in a position to accept this argument. It has already been stated that another writ application numbered as C.W.J.C. 5221 of 1978 had been filed earlier and was allowed to be withdrawn by a speaking order as contained in Annex. 13. The last para of the order indicates that the State Government was expected to consider the objections of the petitioners before publishing the final gradation list. It has already been stated that another writ application numbered as C.W.J.C. 5221 of 1978 had been filed earlier and was allowed to be withdrawn by a speaking order as contained in Annex. 13. The last para of the order indicates that the State Government was expected to consider the objections of the petitioners before publishing the final gradation list. It is true that the order did not extend the period of three months for filing the objection as prescribed by the 1972 Circular in para 5. But in view of the permission to the petitioners to withdraw the earlier case with the observation that the case was premature having been filed before the publication of the final gradation list, I hold that the controversy should be decided on merits in the present case. 13. Mr. Government Advocate next referred to the writ applications C.W.J.C. 204 and 205 of 1978 filed against the promoted Deputy Superintendents of Police wherein the question of seniority of the direct recruits vis-a-vis the promotees was in controversy. In that case, the present gradation list was also challenged. It has been stated at the bar that this Court allowed the applications and quashed the impugned order. But on appeal, the decision of this Court has been set aside. Mr. Government Advocate contended that the present challenge by the petitioners must be deemed to have been overruled by the application of the principle of constructive res judicata. I do not find any merit in this argument either. The present respondents 4 to 10 were not parties to those cases and the question which was agitated there was confined to the petitioners on the one hand and the promoted Deputy Superintendents on the other. The judgment in that case, therefore, cannot be deemed to have impliedly decided the present controversy. 14. It has been emphatically asserted on behalf of the respondents that the posts of Deputy Superintendents and of Senior District Prosecutors are and have been of same rank. In the writ application and in their further reply, the petitioners have emphasised the difference in the nature of the work of the two sets of officers. But their main emphasis is that they belong to two separate cadres. Mr. B. C. Ghose attempted to prove that all of them being in the same police service are members of a common cadre. But their main emphasis is that they belong to two separate cadres. Mr. B. C. Ghose attempted to prove that all of them being in the same police service are members of a common cadre. From the materials on the records, the case of the petitioners on this point appears to be correct. The Governments decision as contained in Annex. 3 of the writ application, establishing the Prosecutors cadre, itself indicates that it was a new cadre. 15. The first question now which I intend to deal with, is whether the two cadres are of same or similar rank. A decision was taken by Annex. 3 to establish a new cadre of Police Prosecutors consisting of three ranks, namely, of Senior District Prosecutors, District Prosecutors and Assistant District Prosecutors. It was expressly made clear that the Senior District Prosecutors would have the rank of Deputy Superintendent of Police, the District Prosecutors would have the rank of Inspector of Police and Assistant District Prosecutors would have the rank of Sub Inspectors of Police (See para 2 of Annex. 3). All the officers were to be enrolled under the Police Act and were required to appear in Uniform while on duty. They were "entitled to Uniform allowance at rates admissible to the corresponding ranks in the General Police Cadres". The rule in regard to the promotion has also been laid down. Para 14 of Annex. 3 deals with the question of promotion to the higher ranks of District Prosecutors and Senior District Prosecutors till such time that sufficient number of Assistant District Prosecutors and District Prosecutors are not available for promotion. During the transition, it was decided that the posts would be filled by selected Inspectors to function as District Prosecutors and by Deputy Superintendents of Police as Senior District Prosecutors. It was emphasised that only such officers who had positive record of honesty and efficiency should be deputed. It was also provided in para 6 that a few very able Sub-Inspectors of Police with positive records of honesty could be selected for appointment to the posts of Assistant District Prosecutors and the remaining posts were to be filled up according to the rules. The pay scales also were fixed on that basis. It was also provided in para 6 that a few very able Sub-Inspectors of Police with positive records of honesty could be selected for appointment to the posts of Assistant District Prosecutors and the remaining posts were to be filled up according to the rules. The pay scales also were fixed on that basis. Thus a new cadre parallel to the general cadre was established with equivalence of the different ranks expressly declared; and accordingly the Senior District Prosecutors were declared to have the same rank as that of Deputy Superintendents. The recruitment rules were formerly framed under the proviso to Art. 309 of the Constitution after about 11 years in 1964 and will be found in Annex. 4. The learned counsel for the petitioners emphasised on rule 14 which says that the members of the service shall not be transferable to the general cadre of the Bihar Police Service. I do not think that this provision regarding non-transferability, in any manner, militates against the equivalence of the posts in the two cadres. On the other hand, it gives some indirect support to the respondents case. When the new cadre was established by Annex. 3 in 1953, the question as to whether the officers of the new cadre would be transferable to the general cadre was mentioned as a moot question in para 16 to be decided later. In 1964, it was answered in the negative. However, the question whether the officers in the new cadre could be and should be transferred or not was an open question for 11 years suggesting that it was certainly permissible to do so. Ultimately, as a matter of policy, it was decided against transferability. This cannot in any way lead to the conclusion that they were not of equal ranking. But for the policy decision taken much later, the Senior District Prosecutors were transferable to the posts of Deputy Superintendents and likewise a District Prosecutor and an Assistant District Prosecutor were transferable as an Inspector of Police and a Sub-Inspector of Police respectively in accordance with their express ranking in Annex. 3. The respondent 4 drew our attention to the Rr. 11, 12 and 13 of the recruitment rules. Rule 13 reiterated that members of the service would be enrolled under the Police Act and while on duty would be required to appear in uniform prescribed by the Government. 3. The respondent 4 drew our attention to the Rr. 11, 12 and 13 of the recruitment rules. Rule 13 reiterated that members of the service would be enrolled under the Police Act and while on duty would be required to appear in uniform prescribed by the Government. Rule 11 required a direct recruit to undergo a special course of training at the Police Training College for a period of six months and R. 12 said that after the passing out from the College, he would have to go for practical training for a period to be fixed by the Inspector General of Police in consultation with the State Government in the light of the progress made by the individual recruits at the College. It has been emphasised in the counter affidavit of the State that the Senior District Prosecutors as well as the Deputy Superintendents of Police get the same training at the Police Training College, Hazaribagh, and the only difference is that while a simple graduate can become a Deputy Superintendent,, it is necessary for appointment as a Senior District Prosecutor to be a law graduate as well. Various other reasons for holding the two posts having the same rank have been detailed in the different counter affidavits of the respondents. In paras 19 and 20, some of the relevant points are emphasised. It is inter alia stated that both were to exercise authority and perform duties under Ss. 20 and 23 of the Police Act. In view of S. 20 of the Act, the prosecutors could not exercise any authority other than that provided for a police officer. Different duties have been assigned to different police officers in terms of S. 23. Besides bringing the offenders to justice, the Senior District Prosecutors have to obey and prosecute all orders and warrants issued to them. They are also utilised to maintain law and order and to attend V.I.P. duties, etc., as is done by officers of Deputy Superintendent cadre. Elaborating this aspect, the respondent 4 has given details as to the manner in which his services have been utilized so far. The details of the training which are common to the two cadres and the adverse results on the service arising out of not completing the different trainings have been given by him in para 4(b) and (c) of his counter affidavit. The details of the training which are common to the two cadres and the adverse results on the service arising out of not completing the different trainings have been given by him in para 4(b) and (c) of his counter affidavit. In para 4(a), names of the officers in the general cadre who were posted as Police Prosecutors are given. In para 4(d), the respondent 4 while stating the actual facts before the absorption of the respondents in the new cadre has said that a Senior District Prosecutor was posted from time to time to remain over all in charge of the Police Court offices of the whole district besides having duty of prosecution of State cases with status and responsibility of a Deputy Superintendent of Police. A Senior District Prosecutor had to keep disciplinary control throughout the district and he was required to attend general work of police as and when required. He functioned from time to time as Deputy Superintendent of Police at headquarters, Deputy Superintendent of Police under D.I.G., Ranchi, Deputy Superintendent of Police of Intelligence branch etc. and had to work also in the Account Section, Motor Vehicle Section, Crime office, Reserve office and take part in raids, search, seizure, arrest, patrolling, crowd control, V.I.P. duty, Election duty and act as a zonal police officer like any Deputy Superintendent of Police of general line. He had to collect intelligence to examine the supervision notes and other reports and had to function in every manner like a Deputy Superintendent of Police occasionally. Giving an account of the duties, he has , personally performed, the respondent 4 has stated in para 7 of his counter affidavit that after his appointment in 1962, he was posted at Muzaffarpur and was. directed to attend and supervise the work of Reserve office, to conduct departmental proceedings, to attend V.I.P. duty, night patrolling, election duty, etc., besides acting as a prosecutor in Court. The then Superintendent of Police, Mr. G. Narain found his work (besides conducting the cases) good, resulting in all round improvement. In 1964, he was sent to Gaya where again he had to attend duties other than those of a prosecutor and he was considered by the then Superintendent of Police Mr. S. P. Sahay to be an excellent administrator bringing about different improvements. Other officers including the then D.I.G. were very much satisfied with his work. In 1964, he was sent to Gaya where again he had to attend duties other than those of a prosecutor and he was considered by the then Superintendent of Police Mr. S. P. Sahay to be an excellent administrator bringing about different improvements. Other officers including the then D.I.G. were very much satisfied with his work. Similar was the position when he joined Darbhanga in 1968. Although there were two Deputy Superintendents of Police at the headquarters at Darbhanga, but due to certain technical reasons, they were not entitled to act as officers-in-charge of Accounts, which work was entrusted to the respondent 4. A serious law and order situation had arisen during his tenure on the post of Sub-divisional Police Officer (who has either to be of a rank of Deputy Superintendent of Police or an Assistant Superintendent of Police) Madhubani and the respondent 4 was deputed to hold that office. He performed his duties very efficiently and to the satisfaction of everybody concerned. In 1972, he was posted in Bhagalpur District where his main work was to attend to the duties of general Deputy Superintendent of Police. There he worked in the Accounts Section and was also in charge of the Motor Vehicles Section. The Superintendent of Police, Bhagalpur, further authorised him to attend to the work in the Crime Section and to award censure to subordinate police officers of the general line which authority is delegated even to a regular Deputy Superintendent of Police only rarely. He was supervising cases on behalf of the Superintendent of Police and was submitting supervision notes. In 1975, he attended to the work of V.O. section and when the Deputy Superintendent of Police, Bhagalpur, was transferred, the respondent took charge from him. Various other duties, which are generally performed by a Deputy Superintendent of Police were assigned to him from time to time and he attended to all of them with great success. With a view to support his assertions, the respondent has attached a large number of annexures to his affidavits and in their reply no attempt was made on behalf of the petitioners to suggest that the claim was wrong. The recognition of his excellent work has been further discussed in para 9 of his counter affidavit. He was also awarded a police medal. The respondent 5 by a separate counter affidavit has made similar assertions. The recognition of his excellent work has been further discussed in para 9 of his counter affidavit. He was also awarded a police medal. The respondent 5 by a separate counter affidavit has made similar assertions. The details of the duties he has performed, apart from working as a prosecutor, have been given in paras 11 to 15 of his counter affidavit. Similar stand has been taken by the respondents 6 to 10 also in their counter affidavit. 16. The petitioners in their affidavit by way of reply have reiterated the stand taken by them in the original writ application and mainly dealt with the legal aspects arising in the case. They have also in a bald manner attempted to deny the assertions contained in the counter affidavits of the respondents, but the denial is evasive in nature, devoid of any supporting material and too perfunctory and does not inspire any confidence. In his further reply, the respondent 4 has pointed out to the weighty materials in Annexures form he has relied upon, and has further attempted to give details in his affidavits from pp. 532 to 567 of the records with a view to show that although Deputy Superintendents of Police and Senior District Prosecutors have been given by the State, equal ranking, the Senior District Prosecutors are far better in merits in all respects than the Deputy Superintendents. The learned Government Advocate appearing on behalf of the State supported the respondents and the assertions made by them in their affidavits. 17. After a detailed consideration of the entire records of the case, which are quite voluminous, I am of the view that the Senior District Prosecutors have always belonged to a rank equivalent to that of Deputy Superintendents of Police and have been from time to time in the past given the work of Deputy Superintendents of Police and the respondents 4 to 10 have performed the same with credit. Admittedly, the pay scales of the two cadres are also the same. In the case of respondent 4, he appears to have performed the job of a Deputy Superintendent of Police assigned to him from time to time in a manner better than ordinary Deputy Superintendent of Police. 18. The main contention of Mr. Basudeva Prasad, learned counsel for the petitioners and of Mr. In the case of respondent 4, he appears to have performed the job of a Deputy Superintendent of Police assigned to him from time to time in a manner better than ordinary Deputy Superintendent of Police. 18. The main contention of Mr. Basudeva Prasad, learned counsel for the petitioners and of Mr. Prabha Shankar Mishra, who appeared on behalf of the interveners, has been that the seniority of a new entrant in a cadre is always referable to the date of his entry and on this principle, the respondents who have been absorbed in the cadre of the Deputy Superintendents of Police in 1975 or 1976 cannot claim seniority over the petitioners. Reliance has been placed on the decision in Katyani Dayal v. Union of India (1980) 3 SCC 245 . On the other hand, the respondents argued that they are entitled to count their past services as Senior District Prosecutors. A number of Supreme Court cases have been relied upon by them. They have also contended that the rules as contained in Annexure F, Annexure 10 and Annexure G further clothed them with such a right. 19. The question of seniority in public service should be examined from two angles efficiency of the service and the interest of the public servants. The purpose of the service is better achieved by employing a servant who is better equipped, and experience naturally counts. But it has to be experience of a kind which may help the servant to perform his duties more efficiently. Any and every kind of experience may not be of use. It should have relevance to the service in question. If a servant is so qualified, justice and fair play would demand that he be rewarded by better pay and higher standing in service than an inexperienced new entrant. 20. Ordinarily, it will be presumed that all fresh recruits to a service stand on the same footing and, therefore, those who join the service earlier must be treated senior. The presumption, however, must yield to special circumstances where a new entrant is in a position to render better service by reason of his earlier experience of a kind which makes him capable of it. But before he is allowed any benefit on this basis, the quality of such experience and its usefulness in the situation will have to be closely examined with great caution. But before he is allowed any benefit on this basis, the quality of such experience and its usefulness in the situation will have to be closely examined with great caution. Otherwise, other officers in the service may run a serious risk of being prejudiced. In the interest of fairness and uniformity, it may generally be desirable to have a well considered rule which may ensure protection from discrimination, arbitrariness and injustice and which may stand judicial scrutiny. But it cannot be stated as an absolute proposition that in absence of a rule, an executive decision cannot ever be taken. The protection in the shape of judicial review will always be there. Although it is true that no case discussing the proposition in this form has been brought to our notice, but I get ample support for my view from several decisions of the Supreme Court which I propose to discuss now. 21. The relevant facts in K. B. Shukla v. Union of India ( AIR 1979 SC 1136 ) : (1979 Lab I C 906) are similar to the circumstances of the case before me in several material particulars. The petitioners in that case had, inter alia, challenged the seniority assigned to the respondents 3 to 10 over them. Under R. 5 of the relevant rules, which were referred to as 1961 Rules, the appointment to the service in question was prescribed by direct recruitment and by promotion on the basis of selection. The proviso to this rule permitted the third method of appointment for a specified period by transfer of members of other services. This was permissible, as in the present case, if exigency of the service so required. As has been done in the case before us, the respondents in the reported case were also appointed after testing their suitability and with the consultation of the Public Service Commission. The 1961 rules were substituted by Delhi, Himachal Pradesh and Andaman and Nicobar Islands Civil Service Rules, 1961, referred to, for the sake of brevity as DHANICS. The rules regarding recruitment, however, remained the same with one difference, that is, the third method of appointment was not limited to any specified period. In the circumstances, the respondents 3 to 10 who had earlier belonged to other services were appointed. The rules regarding recruitment, however, remained the same with one difference, that is, the third method of appointment was not limited to any specified period. In the circumstances, the respondents 3 to 10 who had earlier belonged to other services were appointed. The petitioners, who were members of DHANICS from before, challenged the seniority of the respondents 3 to 10 which had been determined by giving them the benefit of the length of their service rendered earlier in other services. This principle was approved by the Supreme Court in the following terms : "Indeed, in our opinion, this is infinitely the best criterion which could ever be devised by any rule governing the conditions of a service, to ensure fairness and equable treatment guaranteed by Art. 16 of the Constitution." The claim of the petitioners who were in the service from before was rejected and the Court held : "In the instant case, respondents 3 to 10 are of the seniority of various years between 1946 and 1961, taking their length of service in their respective State service into consideration. As against this, the petitioners were appointed to the service in 1962. Consequently, if the respondents were otherwise found suitable, their placements in the seniority list above the appellants were quite in accord with the Rules and fair play." The case before us is fully covered by this decision. 22 In Reserve Bank of India v. N. C. Paliwal ( AIR 1976 SC 2345 ) : (1976 Lab I C 1483), the Delhi High Court quashed a scheme named as Combined Seniority Scheme whereby the writ petitioners were placed in a disadvantageous position in the matter of seniority. The scheme was introduced for the purpose of integrating the clerical staff in the different departments of the Reserve Bank without waiting for earlier shifted clerks under an optee scheme of 1965 to be promoted to higher grade. By the subsequent scheme, a total integration was attempted and while so doing the entrants were given certain benefits arising out of their earlier service in the matter of seniority. This benefit was variable according to the circumstances applying to different groups of servants, the details whereof are not essential to be mentioned here. The writ petitioner in that case attempted an argument similar to that pressed before us which succeeded before the High Court but was rejected by the Supreme Court. This benefit was variable according to the circumstances applying to different groups of servants, the details whereof are not essential to be mentioned here. The writ petitioner in that case attempted an argument similar to that pressed before us which succeeded before the High Court but was rejected by the Supreme Court. This aspect has been considered in para 10 of the judgment of the Supreme Court where the argument has been characterised as more as argument of hardship than of law and was not allowed to prevail. The prejudice the petitioners suffered in the matter of their promotion was further discussed in para 13 of the judgment. In paras 14 and 16, the argument of the petitioners challenging the decision whereby a particular group of non- clerical servants were allowed to count a portion of their non-clerical service towards their seniority was considered and rejected. I am conscious of the fact that so far as this group of servants was concerned, their total experience in non-clerical service was not permitted to be counted, but this was due to the fact that the petitioners and the new entrants were not similarly situated in merits and nature of work. On the facts, it would have been unjustified either to ignore their entire previous service or to permit them to count their total experience towards their seniority. In these circumstances, the Reserve Bank took into account all the relevant materials and decided that one-third of the non-clerical service would be taken into account for the purpose of determining seniority. This principle attempted to strike a just balance between the conflicting claims of the two groups and while deciding whether the principle adopted could have been validly struck down by the High Court, the Supreme Court in para 16 of the judgment observed as follows : "Now there can be no doubt that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the Court to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate. The only enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class." (Emphasis added) 23. The only enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class." (Emphasis added) 23. While adjusting the equities, it is not possible to arrive at a decision with scientific accuracy, without the least danger of any person not suffering any kind of prejudice. The view expressed in the Reserve Banks case (1976 Lab IC 1483) (SC) that an argument of hardship cannot by itself succeed was further developed by Krishna Iyer, J. in Tamil Nadu Education Department v. State of T. N. (1980) 3 SCC 97 : (1980 Lab I C 211) which may be usefully repeated (at p. 212) : "In service jurisprudence integration is a complicated administrative problem where, in doing broad justice to many, some bruises to a few cannot be ruled out. Some play in the joints, even some wobbling, must be left to Government without fussy forensic monitoring, since the administration has been entrusted by the Constitution to the executive not to the Court." In such circumstances, as in the case before us, judicial correction has been discouraged. In the case before the Supreme Court, on bringing two wings of the staff in the Education Department in one cadre, the principle for computation of service in determining common seniority was fixed on ratio basis which was challenged. The criticism that the promotional proportion between the two wings, in the process of interlacing and integration, is unsupported by any rational guideline was rejected as pointless. Dealing with the ratio aspect, it was observed (at p. 213) : "The onus is on the challenger and, here, the ratio is moderately related to the numbers on both sides and we see nothing going berserk, nothing bizarre, nothing which makes you rub your eyes to query what strange thing is this Government doing." Putting the same question, can it be said in the case before us that the decision to give advantage to the respondents by allowing them to count their earlier experience is going berserk or is bizarre or is in any manner based on extraneous circumstance and is arbitrary? The reply has to be given in the negative. The reply has to be given in the negative. Before passing on to the next decision, I would like to quote from para 8 of the judgment: "May be, a better formula could be evolved but the court cannot substitute its wisdom for Governments, save to see that unreasonable perversity, mala fide manipulation, indefensible arbitrariness and like infirmities do not defile the question for integration. We decline to demolish the order on this ground. Curial therapeutics can heal only the pathology of unconstitutionality, not every injury." 24. Reliance was also placed by the respondent 4 on the judgment in Paresh Chandra v. Controller of Stores ( AIR 1971 SC 359 ): (1971 Lab I C 219). The respondents 4 to 8 in that case were brought to Stores Department of the N.F. Railway in 1960 and their seniority was calculated with effect from 1947, their original appointment in other departments. The appellant challenged the order in the High Court of Assam and Nagaland, inter alia, on the ground that his chances for promotion were materially affected. The High Court rejected the application and the Supreme Court confirmed the decision and while so doing observed that if the earlier experience of the respondents was not permitted to be counted, the respondents would have to start de novo from a scratch and would consequently stand last in the department. This could not be countenanced. 25. Further illustrative cases can be multiplied but I would now close this part of the discussion by referring to the case of Union of India v. Ravi Varma ( AIR 1972 SC 670 ) : (1972 Lab I C 345). The basis of the claim of seniority of the respondents there was an office memo of the Ministry of Home Affairs dated 22nd June, 1949. After the partition of the country, many employees of the Central Government were displaced from their offices in Pakistan and were absorbed in India and a question arose about the fixation of their seniority. Some of the displaced servants were absorbed in office under the control of the same administrative Ministry, but many were employed by the Transfer Bureau of the Ministry of Home Affairs in other offices. They were allowed advantage of their service in Pakistan. Some of the displaced servants were absorbed in office under the control of the same administrative Ministry, but many were employed by the Transfer Bureau of the Ministry of Home Affairs in other offices. They were allowed advantage of their service in Pakistan. As will appear from the memorandum quoted in para 2 of the judgment, the two sets of posts held by them earlier in Pakistan and later in India were not always found to be "comparable" and it was, therefore, decided that " service in an equivalent grade should generally be defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned". Even in such circumstances, it was not suggested that the decision taken by the Central Government by an administrative order was illegal or ineffective.. The principle adopted by the above memo was extended later to certain other services. In 1959, another office memo was issued wherein it was considered advisable to discontinue the instructions as the displaced servants had by and large been absorved in various Central services and their seniority had been fixed with reference to the previous service rendered by them. The stand taken by the Union of India for discontinuance of the instructions by reason of later instructions and other grounds is not relevant for the point I am considering. I would, therefore, omit to give further details of the case of the parties and the judgment on the other issues. What appears significant is that although subject of a pointed consideration by the Supreme Court, the instructions were not only not struck down as from their inception, they were given effect to for upholding the seniority of the respondents by the Supreme Court even later. These decisions completely demolish the stand taken by the petitioners that the rule that seniority of a new entrant in a cadre has to be reckoned with reference to the date of his entry, independent of any service rendered by him earlier, is an absolute rule not admitting any exception. 26. The case of Katyani Dayal (1980) 3 SCC 245 relied upon by Mr. Prasad is clearly distinguishable and does not apply to the case before us. 26. The case of Katyani Dayal (1980) 3 SCC 245 relied upon by Mr. Prasad is clearly distinguishable and does not apply to the case before us. The terms of the advertisement inviting applications for "50 posts of Assistant Engineers, Ministry of Railways Service Class I (gazetted)" originally issued, were corrected by deletion of Class I. Since there was no previous legal sanction for making appointment to posts which were neither in Class I nor Class II but merely in gazetted service, the proceeding was rectified and Presidential sanction was obtained. The petitioners who had submitted their application in response to the advertisement were selected by the Commission and were offered appointment as "temporary Assistant Engineers". At the time of appointment, they were required to execute agreements "as applicable to temporary officers". They were expressly told that their posts would be neither in Class I nor in Class II, though on completion of three years service, they would be considered along with other temporary Engineers for absorption in Class I. In these circumstances, after they were taken in Class I in instalments gradually, their seniority was reckoned from the dates of their entry. The facts stated above emphasised that on their initial appointments, they could not be treated at par in rank with Class I Engineers. In para 48 of the judgment, the difference in the best for appointment of Class I Engineers and that for the petitioners who were appointed temporary assistant Engineers was emphasised by observing that those who were recruited directly to Class I were subjected to stiff and complicated written and personality tests. Only the best could aspire to come out successful. The temporary Assistant Officers were not subjected either to written or to personality tests and were selected on the basis of an interview by the Commission. "Thus while brilliance was the beacon light which beckoned those aspiring to become members of an Indian Railway Service of Engineers Class I, it was replaced by experience in the case of those wanting to be temporary Assistant Officers. Again the appointing authority in the case of Indian Railway Service of Engineers Class I is the President while the appointing authority in the case of the temporary Assistant Officers was the Railway Board". Different courses of training were prescribed for the Indian Railway Service of Engineers and the temporary Assistant Officers. Again the appointing authority in the case of Indian Railway Service of Engineers Class I is the President while the appointing authority in the case of the temporary Assistant Officers was the Railway Board". Different courses of training were prescribed for the Indian Railway Service of Engineers and the temporary Assistant Officers. "For the Indian Railway Service of Engineers, the tranining is an (sic) intensive and comprehensive and designed to equip them for higher posts in the Department too while the training for temporary Assistant Engineers was a brief six months training intended merely to equip them for carrying out the specific jobs". Several cases cited at the bar were considered by the Supreme Court keeping in mind the "similarities and dissimilarities". In para 56 of the judgment, the considerations which negatived a view that two sets of Engineers would be treated equal in merit and in rank were once more repeated. In the case before us, I have indicated above that the Senior District Prosecutors were in no way inferior to the Deputy Superintendents (if not superior as claimed by them) and before their appointment, the two sets were subjected to a test of similar standard and after appointment were given same rank. The nature of the work, discussed above, also supports their claim of equal status. The order constituting the service in 1953 expressly declared it to have the rank of Deputy Superintendent of Police. In these circumstances, I hold that the case is governed by the ratio of the decision discussed earlier and Katyani Dayals case cannot come to the rescue of the petitioners. 27. The respondents have relied upon certain rules which according to their case support them. Let me first consider those described as the 1972 Circular, and mentioned in Annex. F. The learned counsel for the parties have referred to its English printed version. It was issued by the order of the Governor addressed to all Principal Secretaries, Additional Secretaries, Heads of Department and Divisional Commissioners. The subject is mentioned as general principles and procedure for fixation of inter se seniority in service cadres. This circular has been relied upon in numerous service cases in this Court specially in regard to the preparation of gradation list under Rr. 4 and 5. The subject is mentioned as general principles and procedure for fixation of inter se seniority in service cadres. This circular has been relied upon in numerous service cases in this Court specially in regard to the preparation of gradation list under Rr. 4 and 5. In the present case, also a provisional gradation list under R. 4 had been prepared which was challenged in the earlier writ case, which was allowed to be withdrawn. The relevant portion of the third rule is quoted below : "Based on precedent and Government circulars issued from time to time, well recognised principles for fixation of inter se seniority are (iii) Where an incumbent is transferred from one service to another on his own request, services rendered by him in the previous posts shall not count for seniority. But in case such transfer follows a policy decision taken by Government, his services in the previous post shall count for seniority." It was suggested by Mr. Prasad and Mr. Mishra that it is a case of absorption of the respondents in the Deputy Superintendents cadre on their own request. The respondent 4 (in person) stoutly challenged the assertion. From the records of the case, it appears that the Senior District Prosecutors were demanding promotional avenues and some of them were claiming special grade scale in the Deputy Superintendents cadre. The respondent has stated in his counter affidavit that he was filing representations since before 1968 for being promoted to the rank of Additional Superintendent of Police and Superintendent of Police and he was supported by the superior officers through whom the representations were routed. Some of the prosecutors also applied for being regularly absorbed in the Deputy Superintendents cadre. The respondent 4 has cited several examples where in similar circumstances promotional avenues were made available to officers who were in closed cadres, by bringing them to the general cadre. The claim of Senior District Prosecutors was examined at length by high authorities at different levels, and ultimately a policy decision was taken to absorb some of the Senior District Prosecutors in the cadre of Deputy Superintendents of Police by amendment of the rules. The merit of the Senior District Prosecutors was examined for making the selection, and an age limit of 50 years was placed. The merit of the Senior District Prosecutors was examined for making the selection, and an age limit of 50 years was placed. Great emphasis has been given by the respondents on the selection test which, according to them, assured high efficiency and unquestioned honesty. All the relevant details have given in the counter affidavits and after going through them and hearing the learned counsel for the parties, it is manifest that the decision to absorb the respondents was to result of a policy decision taken by the Government. The fact that such a decision had to be taken on a claim of promotion by the respondents or a demand of regular absorption by some of them cannot render it otherwise. Admittedly, all the respondents or all the other Senior District Prosecutors did not apply for being absorbed in the cadre of the Deputy Superintendents of Police. Although a general statement was made to the contrary in the writ application, in reply the learned counsel for the petitioners or the interveners could not insist that every one of them (the respondents) had asked for being absorbed. As for example, the respondent 4 (in person) stated that neither he nor the respondent 5 ever asked for being absorbed. This statement was not challenged. It is, therefore, not possible to exclude the application of the 1972 Circular on the ground that the respondents have come to the new cadre on their own request. 28. It was next suggested that as the present case was not a case of transfer, the rule in 1972 circular cannot be applied. I do not find myself in a position to accept this argument. The expression transfer has not been defined and is not a term of art. It has been used in the rule in the ordinary sense the word carries. It is not essential for the application of the rule that the concerned order should use the actual word. What is material is to find out the essence of the transaction. It is true that in every case where a new recruit to a service has been earlier in Government service in another post cannot be deemed to have been transferred. In a given case, it may be a termination of the earlier service by resignation, discharge or otherwise and commencement of a new one. It is true that in every case where a new recruit to a service has been earlier in Government service in another post cannot be deemed to have been transferred. In a given case, it may be a termination of the earlier service by resignation, discharge or otherwise and commencement of a new one. In the present case, I find that the service of the respondents under the State did not at any point of time come to an end; it construed with certain changes to achieve a particular objective. They were earlier placed in a cadre which was considered to be a closed one for the purpose of promotion, but which was of equal rank as that of Deputy Superintendent of Police. Their pay scale has remained the same and they have retained all the entitlements available for the purpose of pension and other benefits. Now instead of working as prosecutors they will be performing the duties of Deputy Superintendents of Police, which function they had already discharged earlier from time to time. They have now ceased to be the members of prosecutors cadre and have been shifted to the cadre of Deputy Superintendents of Police. In these circumstances, I hold that this is a case of transfer within R. 3(iii) of the 1972 circular. As such, the respondents are entitled to count their past services. 29. The other rule as contained in Annex. G which is confined only to the police service is in the form of a resolution and is annexed to the counter affidavit of respondent 4 at pp. 317 to 321. In the name of the Governor of Bihar, the resolution was directed to be published in the Bihar Gazette. The subject is mentioned as "Constitution of Departmental Promotion Committee for preparing fit list for promotion in junior selection grade and senior selection grade (equivalent to Addl. Superintendent of Police) of Bihar Police Service and laying down principles thereof. In the first paragraph after dealing briefly with the history, it is mentioned that the principles regarding promotion are being laid down. The fourth paragraph at p. 320, which has been relied upon, reads as follows : "In respect of Deputy Superintendent of Police from amongst released ex-Army Personnel, length of eligible service for promotion shall be counted from their deemed date of appointment. The fourth paragraph at p. 320, which has been relied upon, reads as follows : "In respect of Deputy Superintendent of Police from amongst released ex-Army Personnel, length of eligible service for promotion shall be counted from their deemed date of appointment. Similarly, in the case of Senior District Prosecutors (A.P.P. Grade I) who have been absorbed in D.S.P. cadre, their length of service rendered as Senior S.P. shall be taken into account for counting their qualifying period." Relying upon the second sentence in the above quoted paragraph, the respondents contend that they are entitled to count their total service since their initial appointment. In reply, Mr. Prasad argued that the benefit of the length of service as senior Deputy Superintendent of Police has been made available to the respondents only for a limited purpose, that is, for their eligibility for promotion. The last sub-paragraph of para 3 refers to requirement of 8 years of service for promotion and it is said that the respondents can count their earlier service for this purpose only and not for deciding their seniority over the petitioners. This narrow construction in the abovementioned provision does not appear to be proper. Let us take the case of a regular Deputy Superintendent of Police who has got 6 years or 7 years (less than 8 years) of service on the due date. On the argument of the petitioners, he is senior to the respondents who came to the cadre later. But at the same time while the respondents are eligible for being given the Senior Selection Grade, the regular Deputy Superintendent of Police who is their senior is not. This anomalous position can be avoided by giving a liberal interpretation to the rule. The question of seniority is inherently involved when the question of promotion is taken up. It cannot, therefore, be regarded as falling beyond the scope of R. 4 quoted above. Besides, this rule if so interpreted will be consistent with the 1972 circular applicable to all the services and there is no indication that a departure was intended. I am, therefore, of the view that the respondents are entitled to claim their seniority on this basis also. 30 The petitioners also referred to another rule as contained in Annex. 10 which, according to their case, is ultra vires. I am, therefore, of the view that the respondents are entitled to claim their seniority on this basis also. 30 The petitioners also referred to another rule as contained in Annex. 10 which, according to their case, is ultra vires. The order which is at p. 98 is dealing with the Senior District Prosecutors and para 2 thereof which is in Hindi has been the subject-matter of controversy before us. This order, as included by the petitioners, is admittedly not a correct copy of the original order some words have been omitted and some words have been repeated by mistake of the typist. It was suggested on behalf of the petitioners and the intervener-respondents that the rule deals with the inter se seniority amongst the transferred Senior District Prosecutors only excluding the petitioners. It is true that the language appears to be vague and it cannot be held with any amount of certainty as to whether its interpretation as put by one side or the other is correct, but one aspect appears to be relevant. So far as the Senior District Prosecutors are concerned, they were in a regular cadre from a long time and their inter se seniority was fully established and was and is beyond any dispute. In that event was there any necessity of laying down any further rule on that issue? If not, the rule should be interpreted as setting the seniority of the petitioners and the respondents; and it mentions that for that purpose the original dates of appointment of the respondents will be taken into account for deciding their seniority in the cadre of Deputy Superintendents of Police. The petitioners have also understood this rule accordingly and have therefore mentioned it in para 22 of the writ application and challenged it in para 46 and relief portion. 31. It has not been claimed before us that the 1972 circular or the rules in Annex. G and Annex. 10 were framed under Art. 309 of the Constn., but in view of the decision of the Supreme Court in Sant Ram v. State of Rajasthan ( AIR 1967 SC 1910 ), in absence of a statutory rule, they have to be respected and given effect to. Mr. Prasad and Mr. Mishra contended that since they would in effect contravene the 1953 Rules (Annex. 1) and 1964 Rules (Annex. 4) they cannot be followed and Annex. Mr. Prasad and Mr. Mishra contended that since they would in effect contravene the 1953 Rules (Annex. 1) and 1964 Rules (Annex. 4) they cannot be followed and Annex. 10 must be held to be ultra vires. So far the absorption of the respondents in the cadre of the Deputy Superintendents of Police is concerned, it is not challenged before us in this case. It is only their claim of seniority, accepted by the State, which has been impugned in the arguments. In the counter affidavit, the respondents have given certain reasons showing that the absorption is beyond challenge, but I do not feel inclined to deal with this aspect in view of the concession on the point by the learned counsel for the petitioners. However, it has been urged that as by amendment of R. 2 of Annex. 1 by insertion of cl. (c), the absorption of the Senior District Prosecutor has been provided as one of the methods of recruitment which means entry for the first time in the services on the basis that the cadre of the Senior District Prosecutors was a separate cadre, the rule giving benefit of seniority to the respondents would be inconsistent as that would lead either to an assumption that the officers were in a common cadre or will lead to a fictional transfer of the respondents* to the new cadre with retrospective effect. This argument ignores the possibility of clothing a new entrant in the service with seniority over earlier incumbents in special circumstances. The rules relied upon by the respondents, referred to above, do not make any assumption as suggested by the learned counsel nor do they create a fiction. They recognised the factual aspect correctly, namely, that the two sets of officers were earlier members of two separate cadres and that the respondents have been transferred to the new cadre recently. Nonetheless, for reasons which are justifiable in equity and justice as also in law, they have been allowed to count their previous service. I do not, therefore, find any inconsistency between these rules and Annexures 1 and 4 or for that matter Annex. 3. 32. Nonetheless, for reasons which are justifiable in equity and justice as also in law, they have been allowed to count their previous service. I do not, therefore, find any inconsistency between these rules and Annexures 1 and 4 or for that matter Annex. 3. 32. For the reasons mentioned above, I hold that the decision of the State Government to count the earlier experience of the respondents for the purpose of their seniority is perfectly valid; and even if there had been no rule applicable to the case, the State Government would have been justified in making a decision to that effect. 33. The respondent 4 (in person) attempted to argue that he is entitled to be considered and included in the select list of Indian Police Service and that he is being denied this right illegally. He has filed a writ application in this Court in that connection which is numbered as C.WJ.C. 2726 of 1980 and which is pending. Mr. Basudeva Prasad, learned counsel for the petitioners, suggested that the question whether the respondents are entitled to be considered for Indian Police Service or not may not be considered in this case as it is not essential to do so. If the respondents are entitled to their seniority which is impugned in this case, they can take the advantage of it by claiming selection grade as Deputy Superintendent of Police and they can further claim for being appointed as Additional Superintendent of Police independent of their claim to the Indian Police Service. I agree with Mr. Prasad. The question is, therefore, left open to be decided in C.WJ.C. 2726 of 1980. 34. After the close of the case, the judgment v as reserved. The petitioners thereafter filed an application dated 13-7-81 for staying the operation of another order, Annex. 17, dated 9th July, 1981 posting the respondent 4 as the Superintendent of Police, Samastipur. The case was placed on the daily board under the heading "to be mentioned" for further hearing. In view of my conclusions in the case, the application dated 13-7-81 is rejected. 35. For the reasons mentioned above, the writ application is dismissed, but the parties are directed to bear their own costs. S.K.JHA, J. 36 I agree. MANORANJAN PRASAD, J. 37 I agree.