STATE OF KERALA v. SOMARAJAN — 1984 DIGILAW 42 (KER)

Judgment :- 1. These two appeals arise from O. P. No. 1308/79 filed by one T. M. Somarajan who had commenced service as Sub Inspector of Police from 1965. He was a direct recruit and his date of advice was 23-2-1965. In September, 1969 the I.G. of Police published Ext. P3 seniority list of Sub Inspectors, including therein the names of all persons directly recruited to the cadre between 1-11-56 and 31-7-69, and all Head Constables duly selected and promoted to the cadre between the said two dates. Based on his rank in this list, Somarajan was included in the 1972 select list of officers eligible for promotion as Circle Inspectors. In 1977, however, the I.G. drew up Ext. P4(a) revised seniority list of Sub Inspectors, assigning higher ranks to some of the promotees in Ext. P3, and even bringing in a few more promotees and placing them above Somarajan. In this process of 'retrospective regularisation', Somarajan became junior to many Sub Inspectors who were till then his juniors. And this affected his position in the cadre of Circle Inspectors also; in fact, a revised select list of Circle Inspectors (Ext. P6) was published in October, 1978. His representation against Ext. P6 was turned down by Government as per Ext. P8 communication dated 3-2-1979. It was under these circumstances that O.P. No. 1308/79 was filed, mainly on the ground that the retrospective regularisation and notional promotions recognised by Ext. P4(a) were violative of his right to seniority based on the date of advice, in accordance with R.27(c) of the Kerala State and Subordinate Services Rules, 1958. 2. Respondents 3 and 4 in the Original Petition Raman Thampi and V. T. Mathai were impleaded in a representative capacity i. e., to represent all those who were likely to be affected by the result of the Writ Petition. The ranks of Thampi and Mathai in Ext. P3 were 419 and 623, and the dates assigned to them for regular promotion as Sub Inspectors were 22-9-65 and 26-8-68. As Somarajan's date of advice was 23-2-65, he was placed as serial No. 377. Ext. P4(a) however proceeded on the basis that Thampi was eligible for promotion as S. I. from 24-7-1964. Others also got similar benefits, with the result that Thampi's rank was refixed as 382, and Somarajan's, as 415. Mathai continued to be lower down, but in 1978, Government passed Ext. Ext. P4(a) however proceeded on the basis that Thampi was eligible for promotion as S. I. from 24-7-1964. Others also got similar benefits, with the result that Thampi's rank was refixed as 382, and Somarajan's, as 415. Mathai continued to be lower down, but in 1978, Government passed Ext. Al order holding that he too was eligible for inclusion in the 1963 select list of Head Constables fit for promotion as Sub-Inspectors. And the I. G. passed Ext. A2 consequential order amending Ext. P4(a), placing Mathai just below serial No. 384 and refixing his notional date of promotion as 9-10-1964. The dispute was thus between direct recruits and promotees, and the question was whether the latter could be given notional promotions effective from dates anterior to the date of advice of a direct recruit. Despite this general nature of the controversy, Thampi and Mathai did not enter appearance in the Original Petition. No other promotee had also come forward, with the result that the Court was left with the usual counter-affidavit of the State asserting that everything had been done properly.and that on a review of promotion made from 1960 onwards, it was found necessary to assign earlier dates to some of the promotees. At the time of hearing, two orders were made available for the Court's perusal. One related to Thampi and it showed that though he was originally included only in the 1965 select list, some review had disclosed that he was eligible for inclusion in the list for 1963, as some of his juniors had been included in that list. The other was Ext. Al relating to Mathai, which also proceeded on the basis that he was fit for inclusion in the 1963 list, though he bad originally been included in the 1968 list only. The learned judge who heard the matter was not impressed with these bald explanations. His lordship thought that the review was "primarily concerned with the dispute between the Head Constables inter se" and that the same was no justification for overlooking its impact on the direct recruits. After observing that "The very concept of giving notional promotions from an anterior date without considering the comparative rights of other persons occupying identical posts or office, cannot be said to be a healthy practice" the learned judge quashed Exts. After observing that "The very concept of giving notional promotions from an anterior date without considering the comparative rights of other persons occupying identical posts or office, cannot be said to be a healthy practice" the learned judge quashed Exts. P6 and P8 and directed the State to reconsider Somarajan's claim for seniority, taking due note of the circumstance that he was a direct recruit advised for appointment as Sub Inspector in the year 1965. 3. The challenge in W. A. 247/ 79, jointly filed by the State and the I.G. of Police, is to the aforesaid judgment. The appellant in W.A. 252/79 is one Krishnan Nair, a promotee, whose grievance is that the judgment reopens questions which were finally settled by earlier decisions of this Court. 4. Many persons entered appearance at the appellate stage, particularly in pursuance of a direction given by the Court on 18-2-80 to take out individual notices to all persons included in Ext.P6 list. Some of them filed elaborate affidavits supported by documents, in an effort to set out fully the history of the dispute. On 31-3-1981 when the appeals came up for hearing before another Full Bench, the learned judges noticed that the scope of the appeals had become wider and directed the appellants (in W. A. 247/79) to file another detailed affidavit for clarifying a few points. Such an affidavit has since been filed, and the result is that we have now before us a large volume of material which were not before the learned single judge at the time he was called upon to decide the Original Petition-material, which throw considerable light into the circumstances under which Ext. P4(a) revision was undertaken by the I. G. of Police. 5. Though the Kerala State came into being from 1-11-56, no rules or orders governing qualifications and methods of appointment to the cadre of Sub Inspectors were issued by the State Government for a long time. There was provision in the Madras Police Subordinate Service Rules for direct recruitment and promotion. Promotions under the Rules were not to exceed 30 per cent of the cadre strength, and were to be made by selection on the basis of merit and ability. Head Constables below the age of 40 with not less than two years of service in that cadre and with a good working knowledge of English were alone eligible to be considered. Head Constables below the age of 40 with not less than two years of service in that cadre and with a good working knowledge of English were alone eligible to be considered. And after selection, they had to undergo training for six months in the Police Training College. According to the affidavit of the State, the Travancore-Cochin Government had issued no similar orders or rules, but it is indisputable that Head Constables were being promoted as Sub Inspectors in the Travancore-Cochin service also. The Travancore-Cochin Police Standing Orders and a G. O. issued on 25-2-55 had provided for some training to the promotees. One does not know for certain how the vacancies which arose in the Kerala State soon after 1-11-1956 were filled up. The State's affidavit refers to provisions of the Kerala Police Manual, but we are told that the Manual was compiled only in 1969 or so. It is possible that the methods which were in vogue in the two parts of the State prior to 1-11-56 were continued for some time in the composite State also. Fortunately, we are not concerned in this case with appointments made up to the end of 1959. The controversy is about promotions effected from 1960 onwards. Difficulties arose from 1960 because of an order issued by the Kerala Government on 30-7-59 introducing a'unified qualifying course' for promotees, in the place of the Madras and Travancore-Cochin training programmes. This order directed that the new qualifying course would be obligatory for all Head Constables selected for promotion and that only those successfully completing the course would De eligible to be "finally included in the C list". But the facilities available for training were inadequate: many of the Head Constables provisionally selected for promotion by the Dy. Inspector General of Police could not be got trained. And without such training, the I. G. of Police was unable to appoint them as Sub Inspectors on a regular basis. The result was that no promotee was regularly appointed as Sub Inspector from 1960 onwards. Promotions were no doubt being ordered, but they were all provisional, and subject to subsequent review or regularisation. 6. The different seniority lists produced in the case show that direct recruitment to the cadre was also being made, off and on, from the year 1960. It does not appear however that there was any prescribed quota or ratio. Ext. Promotions were no doubt being ordered, but they were all provisional, and subject to subsequent review or regularisation. 6. The different seniority lists produced in the case show that direct recruitment to the cadre was also being made, off and on, from the year 1960. It does not appear however that there was any prescribed quota or ratio. Ext. P1 circular toyed with the idea of allotting one-third of the permanent vacancies to promotees, and the remaining vacancies to direct recruits, in the matter of confirmation. By a Government Order dated 1-10-71, the ratio was modified as 1:1; but another order issued on 18-1-1973 gave up even this ratio and directed that "the permanent vacancies available from 1-11-1956 to 14-11-1966 will be filled up by nominating officiating Sub Inspectors of Police according to their seniority". It is important to notice that all these directions were concerned with the question of ordering confirmation under R.24 and 25 of the K.S.S.R., and not with prescribing a ratio for recruitment. Under R.5 of the K.S. S. R. "all permanent vacancies and temporary vacancies except those of short duration" are to be treated as substantive vacancies for the purposes of fixing a ratio between direct recruits and promotees, and under R.27, seniority depends on the date of regular appointment (or advice, in the case of direct recruits), and not on the date of confirmation. An examination of Exts. P3 and P4 (a) lists also shows that no ratio was being applied at the stage of initial appointment or recruitment: out of the 640 vacancies filled up between 1-11-56 and 24-5-69, only about 160 vacancies were allotted to direct recruits. It is therefore safe to infer that direct recruitment was being made from time to time, in the exigencies of service, after consultation between the I. G. and the Government, without regard to the requirement of any ratio between promotees and direct recruits. The stand taken in the additional affidavit filed on behalf of the State is also to the effect that there was no fixed ratio for the purposes of initial appointment to the cadre, as distinct from confirmation in the permanent vacancies available in the cadre. 7. The first order of the Kerala Government laying down the principles and procedure to be observed for making regular promotion to the cadre of Sub Inspectors was issued on 17-5-1963. 7. The first order of the Kerala Government laying down the principles and procedure to be observed for making regular promotion to the cadre of Sub Inspectors was issued on 17-5-1963. This order provided that only Head Constables with minimum educational qualification of SSLC Standard and 2 years' experience could be considered for promotion. And promotion was to be by selection made by a 'Promotion Board'. The lists prepared by the Board had also to be approved by the LG. before they could be treated as final. The order was however not implemented, as there were at least two practical difficulties. One was that the requirement of the 'qualifying course' prescribed in 1959 survived, and the facilities for training continued to be meagre. Another was that Head Constables with SSLC Standard were not forthcoming in sufficient numbers, while many senior hands provisionally working for long as Sub Inspectors and otherwise fit for regular promotion, had to be overlooked. The I. G. of Police brought these and other difficulties to the notice of the Government and recommended adoption of different norms, and as a consequence, another G.O. was issued on 24-6-1965 (Ext.XI annexed to Somarajan's reply affidavit in W.A. 247/79), giving the following revised directions: (i) for the purposes of promotion, the post of S.I. of Police would continue to be a selection post; but selection would be made by a Special Departmental Promotion Committee, with a different composition; (ii) educational qualification of the S.S.L.C. Standard would not be insisted upon; Head Constables passing a "simple eligibility test" could also be promoted; (iii) selected Head Constables could be regularly appointed as Sub Inspectors without undergoing the qualifying course of 1959; it was enough if they were sent up for training in convenient batches, thereafter; (iv) the provisional lists which the Dy. Inspectors General of Police were preparing from time to time from 1960 would be reviewed by the Special Departmental Promotion Committee in accordance with the above norms, and those found f it by the Committee would be regularised from appropriate dates. Cases of provisional promottees passed over in 1960 would also be dealt with on the same lines; and (v) the Committee would also consider the cases of those superseded on the basis of their records upto 1960, along with the cases of those who had become eligible thereafter, and review them with reference to their records after 1960. Cases of provisional promottees passed over in 1960 would also be dealt with on the same lines; and (v) the Committee would also consider the cases of those superseded on the basis of their records upto 1960, along with the cases of those who had become eligible thereafter, and review them with reference to their records after 1960. Those found suitable in the process would be given'appropriate ranking' in the list, below those regularised under (iv) above. Shorn of details, therefore, the position was that no promotee had been regularly appointed as Sub Inspector during the period from 1960 to 1965. There were only provisional lists and provisional promotions, and all these had to be reviewed and regularised oh the lines indicated in the order dated 24-6-65. And it seems to be common ground that the newly constituted Special Departmental Promotion Committee had commenced its labours only from July, 1965. 8. The first seniority list of Sub Inspectors available among the records is Ext. P2 published by the LG. of Police on 20-1-1968. This covers the period from 1-11-1956 to 7-7-1965, and includes the names of direct recruits like Somarajan, advised for appointment upto 23-2-1965. The list itself was drawn up to give effect to R.27(c) of the K.S.S.R., by assigning dates of advice for the direct recruits, for purposes of fixing seniority. The next list is Ext. P3 issued under I.G's Memorandum dated 22-2-1969, including all those appointed as Sub Inspectors up to 31-7-79 and applying the "Range-war" principles laid down in a Government order dated 19-12-1962. The circumstances under which Ext. P3 came to be issued need not really detain us because Somarajan's case rests on it, and his complaint is against its subsequent revision under Ext. P4. It is however necessary to notice that both Exts. P2 and P3 were the result of the review undertaken by the Special Departmental Promotion Committee created under the G.O. dated 24-6-65. 9. In the meanwhile Krishnan Nair, the appellant in W. A. 252/ 79, had started complaining against Ext. P2 itself. When his representations were finally turned down in February, 1971 he came to this Court with O.P. No. 1161/71. By that time, Ext.P3 list had also been published, and Krishnan Nair challenged that list also. The matter was heard by Eradi J. (as he then was). P2 itself. When his representations were finally turned down in February, 1971 he came to this Court with O.P. No. 1161/71. By that time, Ext.P3 list had also been published, and Krishnan Nair challenged that list also. The matter was heard by Eradi J. (as he then was). It was found that Krishnan Nair's name had been included in the select list of promotees for the year 1960-61 by the Special Departmental promotion Committee which had commenced work in terms of the 1965 Government order, but that the I.G. had deleted it from the list in 1966, in purported exercise of the power of approval envisaged in the Government order of 1963. His Lordship took the view that the 1963 order bad never been given effect to, that its scheme had been completely replaced by the 1965 order, that the I. G. had no power of veto thereafter and that the deletion was therefore illegal. Ext. P3 list was accordingly quashed by judgment dated 1-11-72 and the authorities were directed to treat Krishnan Nair as having been validly selected for promotion in 1960-61. A direction was also issued to revise the seniority list by assigning him a notional date of promotion based on such selection. Krishnan Nair's right for promotion to the cadre of Circle Inspector had also to be reviewed, after refixation of seniority in the feeder category. 10. It is necessary to take note of the fact that the above decision was rendered in a case where the party-respondents had been impleaded to represent everyone likely to be affected by the proceedings. The 10th respondent, in particular, had been impleaded to represent direct recruits like Somarajan. Notice had been taken out to all such people under R.148 of the High Court Rules, as per orders of court. Thus, the quashing of Ext. P3 was with notice to all affected parties. Krishnan Nair's right to obtain notional promotion was also declared with all such people on the party array. Somarajan's case based on Ext. P3 could not thereafter have survived for consideration in subsequent proceedings, since the effect of the judgment was to wipe out the said list. The contention against grant of retrospective promotion was also no longer available for him, because that was exactly what the Court had recognised in proceedings to which he was a party. 11. P3 could not thereafter have survived for consideration in subsequent proceedings, since the effect of the judgment was to wipe out the said list. The contention against grant of retrospective promotion was also no longer available for him, because that was exactly what the Court had recognised in proceedings to which he was a party. 11. Reference should also be made to O. P. No. 4713/71 decided by Isaac J. on 25-10-1972. The petitioner therein was one Divakaran Nair, a promotee-Sub Inspector ranked as No. 620 in Ext. P3 list. The Special Departmental Promotion Committee had included him only in the 1966 select list, and Sri. Nair's case was that he was eligible to be included in the 1962 list, or at least in the lists of 1963 or 1964. On an examination of the records; the Court found that he was excluded from the 1962 list by taking into account his service records from 1963 to 1966. That was impermissible, and Isaac J. directed reconsideration of his case on the principle that assessment of merit for any year could only be with reference to performance till the end of that year. And Ext. P4(a) shows that on such reconsideration, the authorities found him fit for inclusion in the 1963 list, so as to claim rank No. 383, just below Raman Thampi. What is significant here also is that this decision too was rendered in proceedings where the respondents had been impleaded in a representative capacity, under R.148. 12. Pausing here for a minute, it should be observed that the attention of the learned judge who decided Somarajan's case (O. P. 1308/79) was not drawn to these developments at all. As already seen, Thampi and Mathai, the two respondents in the O. P., bad not entered appearance at that stage. The learned Government Pleader who appeared for the State was also probably unfamiliar with the history of earlier litigations. Ext. P5 before the court had no doubt made a bare reference to O. P. No. 1161/71, but its significance was somehow lost sight of. Had the learned judge been told that Ext. P3 on which Somarajan was relying was no longer in existence, that some of the notional promotions in Ext. Ext. P5 before the court had no doubt made a bare reference to O. P. No. 1161/71, but its significance was somehow lost sight of. Had the learned judge been told that Ext. P3 on which Somarajan was relying was no longer in existence, that some of the notional promotions in Ext. P4(a) were made incompliance with the directions of this Court in proceedings to which the direct recruits were parties, and that those directions had become final, it is atleast possible that the outcome would have been different. 13. The quashing of Ext. P3 had left the authorities with no other option except to prepare a new seniority list. Ext. P4(a) was thus drawn up not merely to Oblige a few promotees or even to settle some disputes in which they alone were interested. The direct recruits were also parties to O. P. Nos. 1161 and 4713 of 1971, and in preparing the new list, the authorities were bound to take note of the principles recognised by this Court. Of the two retrospective promotions considered in the judgment under appeal and characterised as "unhealthy", one was that of Rhaman Thampi. Ext. R2 Government Order dated 23-2-1972 shows that though Thampi had been included in the 1963 select list by the D. P. C., the I. G. had thought it fit to overrule its decision and include him only in the 1965 list. In the light of the judgment of Eradi J. in O. P. No. 1161/71, this was clearly illegal and impermissible, and the Government was bound to correct the mistake. Ext.R2 order had done only that, and nothing more. As for Mathai, the D.P.C. had included him in the 1968 list only, but Government was able to find that he had a good record of service during the years 1960 to 1963, and that he was consequently fit for inclusion in the 1963 list. It may be that this too was in a case where performance subsequent to 1963 had been taken into account, contrary to the rule laid down in O.P. No. 4713/71. At any rate Government had the power to review the decision of the D. P. C. and it could not have been simply assumed that exercise of that power in Mathai's case was improper. At any rate Government had the power to review the decision of the D. P. C. and it could not have been simply assumed that exercise of that power in Mathai's case was improper. If we understand the judgment under appeal correctly, it did not totally deny the power of review or retrospective regularisation to the authorities; the objection was only to exercise of the power "without considering the comparative rights of other persons occupying identical posts" i.e. without examining the seniority claims of direct recruits based on R.27(c). 14. No doubt, at one stage of the argument counsel for Somarajan attempted to take up the extreme position that there could be no retrospective regularisation or promotion at all, as an executive order could never operate retrospectively. Stated in that form, the proposition seems to be too wide. Instances are numerous where courts order full restitution including grant of retrospective promotions, while setting aside orders dismissing Government servants from service. Seniority lists are also often quashed, with direction to repair the damage. Principles for determining the seniority of Central Government employees recruited between 1949 and 1959 were finally settled by the Supreme Court only in 1972, in Union of India v. Ravi Varma (AIR. 1972 SC. 670). In all such cases the authorities were bound to issue executive or. administrative instructions, projecting into the past, to give effect to the orders of courts. If the authorities could do so at the judicial behest, one fails to see why they could not do it of their own accord, when mistakes are found out. The decision in N. C. Singhal v. Director General (AIR. 1972 SC. 628) did not lay down any broad principle, as counsel would suggest, that administrative instructions could not operate retrospectively; the decision only recognised the rule that the service conditions of a Government servant could not be altered to his prejudice, by an administrative order having retrospective effect. In R.R. Verma v. Union of India (AIR. 1980 SC. 1461) the Supreme Court repelled the contention that a government could not review its earlier orders, in the absence of statutory power, and observed: "We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. 1980 SC. 1461) the Supreme Court repelled the contention that a government could not review its earlier orders, in the absence of statutory power, and observed: "We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any Government must be free to alter its policy or its decision in administrative matters. If they are to carry on their daily administration they cannot be hide-bound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected." And in Rajendra Narain v. State of Bihar (AIR. 1980 SC. 1246) the Court upheld a 1977 order of the Bihar Government retrospectively making permanent 54 temporary posts created between 1948 and 1970. 15. It cannot therefore be held that administrative orders could have nothing to do with the past. So long as administrative agencies are not infallible, mistakes will have to be reviewed and corrected. Exigencies of administration may also require revision of policies with retrospective effect, even when no mistakes are involved. All that can be said is that in attempting to modify earlier orders or rectifying mistakes, the authorities cannot ignore statutory prescriptions, rights of third parties and rules of natural justice where they are attracted. And it is in this background that we have to examine Somarajan's case that the retrospective regularisations in question affected his rights under R.18(1)(a) and 27(c) of the Kerala State and Subordinate Services Rules. 16. The K.S.S.R. consist of three parts. Part I contains definitions. Part II prescribes "general rules" applicable to all services, State and Subordinate. And Part III is supposed to consist of special rules governing the different services. R.2 in Part II provides that incases of conflict between the general rules and the special rules, the latter will prevail. Qualifications and methods of recruitment for a post, ratio between direct recruitment and promotion, and requirements of probation are ordinarily prescribed by the special rules. And Part III is supposed to consist of special rules governing the different services. R.2 in Part II provides that incases of conflict between the general rules and the special rules, the latter will prevail. Qualifications and methods of recruitment for a post, ratio between direct recruitment and promotion, and requirements of probation are ordinarily prescribed by the special rules. R.18 and 27 appear in Part II which conceives of two kinds of appointments, one "in accordance with the rules" and the other, "otherwise than in accordance with the rules". The definition clauses show that a person is said to be "appointed to a service" when he starts discharging the duties attached to a post "in accordance with these rules". 'Service' means a group of persons classified by the State Government as a State or Subordinate Service. A "member of a service" is a person appointed to that service, and he may be a probationer, approved probationer or a full member thereof. Where the special rules have prescribed probation, a person appointed to a service "in accordance with the rules" commences services as a probationer. After satisfactory completion of probation, he becomes an approved probationer. And he can be appointed as a full member under R.24, when a substantive vacancy arises in the permanent cadre. R.9(a) contemplates temporary appointments, that is, appointments "otherwise than in accordance with the rules", when emergencies arise, or when the vacancies are short-term, and resort to the normal procedure would entail excessive expenditure or exceptional inconvenience. R.9(c) also conceives of such ad hoc appointments to temporary posts created in addition to the cadre of a service. R.9 appointments are usually called 'provisional' appointments, and promotions made under R.31, which provides for temporary promotions, are also likewise called provisional promotions. Appointments and promotions made in accordance with the rules are usually described as 'regular'. Seniority under R.27(a) is determined by the date of the order of first appointment, and in the context, the reference must necessarily be to regular appointment. In fact, the Explanation to the sub-rule clarifies that 'appointment' for its purposes will not include appointments under R.9 and 31. R.27(c) is an exception to R.27(a), and lays down that in the case of direct recruits appointed under the advice of the Public Service Commission, seniority is to be determined with reference to the date of first effective advice. In fact, the Explanation to the sub-rule clarifies that 'appointment' for its purposes will not include appointments under R.9 and 31. R.27(c) is an exception to R.27(a), and lays down that in the case of direct recruits appointed under the advice of the Public Service Commission, seniority is to be determined with reference to the date of first effective advice. Seniority of persons regularly promoted will thus depend upon the date of promotion, and seniority of direct recruits will depend on the date of advice. (It is necessary to reiterate here that confirmation has nothing to do with fixation of seniority under the Rule). R.18(a) provides: " If a person, having been appointed temporarily under sub-rule (a) or sub-rule (c) of R.9 to a post borne on the cadre of any service, class or category otherwise than in accordance with the rules governing appointment thereto, is subsequently appointed to the service, class or category in accordance with the rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine, without prejudice to seniority of others." 17. Now, Somarajan's contention is that R.27(c) confers a statutory right on him to have his seniority reckoned from the date of his advice (23-2-65) and that R.18(a) prohibits the passing of any order, after the aforesaid date, assigning anterior notional dates of promotion to others. It is useful to recall here that even the principles for regularly promoting Head Constables to the cadre of Sub Inspectors were effectively laid down for the first time only after the aforesaid date i.e. by the G.O. dated 24-5-65. And the result of accepting Somarajan's contention would be to hold, on the facts of the case; that Head Constables as a class would be disentitled to regular promotion as Sub Inspectors during the whole of the period from 1960 to 1965, for no fault of theirs and for the only reason that the Government of a newly formed State took its own time to formulate the required principles. Keeping in mind that there was no prescribed ratio for appointment, that a good number of the vacancies had actually been ear-marked for the promotees. Keeping in mind that there was no prescribed ratio for appointment, that a good number of the vacancies had actually been ear-marked for the promotees. that the Travancore-Cochin and Madras methods were being followed till the end of 1959, and that there was no intention at any time to totally exclude Head Constables from promotion, we feel that a construction of the rules leading to such an unjust result and likely to offend Art.14 and 16(1) of the Constitution, should be avoided, if possible. 18. R.18 to 24 in Part II deal with the general rules relating to probation. What clause (a) of R.18 lays down is that when a person is appointed under R.9 (a) or 9(c), i.e., otherwise than in accordance with the rules governing the matter, and when it is found possible or necessary to appoint him to the service in accordance with the rules, he can be permitted to commence probation from a date earlier to such regular appointment, if the seniority of others will not thereby be affected. The sub-rule thus presupposes the existence of rules, an appointment contrary thereto, and a subsequent regularisation. Strictly construed, the provision has no application to cases like the one on hand where there were no statutory rules governing the matter, and no prescription of probation thereunder. Even assuming that the principle embodied in the sub-rule is that no provisional appointee could be regularised with effect from an earlier date when there is already a regular appointee in the service, it is possible to think that the application of the sub-rule should be limited to cases where the appointment under R.9(a) or 9(c) was at a time when some rules or norms were at least in existence, so as to postulate an appointment otherwise than in accordance therewith. At any rate, the sub-rule cannot stand in the way of doing justice to a person who has been wrongly dealt with, when the mistake is realised only after the regular appointment of another; otherwise, an employee wrongfully dismissed from service, for instance, could not be granted the appropriate relief, when a court sets aside the dismissal and directs full restitution, if another employee happens to be appointed in the meanwhile. We are therefore of the view that R.18(a) is intended to cover only.cases where everything is done normally and in accordance with the rules or orders in force, and not cases where mistakes are committed, inadvertent omissions are made or action in accordance with the norms was impossible for reasons beyond the control of the appointing authority. To take a different view of the matter will be to make certain classes of employees the permanent victims of such mistakes, omissions etc., and even to arm the authorities with power to blast their career deliberately or otherwise. Such a construction contrary to the sweep of Art.14 and 16(1) has to be avoided, if the rule is to remain valid. 19. Turning to the facts again, and even at the risk of repetition, it should be stated that the Government was always for allotting quite a large number of vacancies in the cadre of Sub Inspectors, to the Head Constables in service during, the period from 1960 to 1965. It had not thought of direct recruitment at all till about 1960 or so. As early as 30-7-59 it had issued orders prescribing the 'unified qualifying course' for promotion. On 17-5-63 it had formulated certain principles for regulating promotions; and when it was found that they could not be worked out owing to some practical difficulties, revised principles were formulated in the G. O. dated 24-5-1964. A direction was also given that the posts remaining vacant (i.e. without being regularly filled up) from 1960 should be filled up by promotion in accordance with those principles. If direct recruitment was being made in the meanwhile, the idea was not to defeat or do away with the claims of the promotees; the obvious intention was that the direct recruits would enter service subject to the right of the Government to fill up the other promotion vacancies in accordance with the rules or norms which were under consideration at the time. To deny promotion to the Head Constables during the whole of the period, for the only reason that R.18(a) created some indefeasible rights in favour of the direct recruits as and when they were appointed, will be to deny equality of opportunity to those Head Constables on purely arbitrary and adventitious grounds The danger of interpreting and enforcing rules in such a manner has been recently highlighted by the Supreme Court, in Janardhana v. Union of India (AIR. 1983 SC. 769), in the following terms: "Before we conclude this judgment, we will have qualm of conscience if we dp not draw attention to a very unjust, unfair and unequitable situation having a demoralising effect on public services probably ensuing from certain rules framed by the Government and the decisions of this Court. Even where the recruitment to a service is from more than one source and a quota is fixed for each service yet more often the appointing authority to meet its exigencies of service exceeds the quota from the easily available source of promotees because the procedure for making recruitment from the market by direct recruitment is long prolix and time consuming. The Government for exigencies of service, for needs of public services and for efficient administration, promotes persons easily available because in a hierarchical service one hopes to move upward. After the promotee is promoted, continuously renders service and is neither found wanting nor inefficient and is discharging his duty to the satisfaction of all, a fresh recruit from the market, years after promotee was induced in the service comes and challenges all the past recruitments made before he was born in service and some decisions especially the ratio in Jaisinghani's case as interpreted in two B. S. Gupta's cases gives him an advantage to the extent of the promotee being preceded in seniority by direct recruit who enters service long after the promotee was promoted. When the promotee was promoted and was rendering service, the direct recruit may be a schoolian or college going boy. He emerges from the educational institution, appears at a competitive examination and starts challenging everything that happened during the period when he has had nothing to do with service. If this has not a demoralising effect on service we fail to see what other inequitous approach would be more damaging. He emerges from the educational institution, appears at a competitive examination and starts challenging everything that happened during the period when he has had nothing to do with service. If this has not a demoralising effect on service we fail to see what other inequitous approach would be more damaging. It is, therefore, time to clearly initiate a proposition that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory or non-statutory rules should not be permitted by any principle of seniority to score a march over a promotee because that itself being arbitrary would be violative of Art.14 and 16. Mr. Ramamurthi, learned counsel for some of the direct recruits in this connection urged that if at the time when the promotee was recruited by promotion, his appointment/ promotion was irregular or illegal and which is required to be regularised, any subsequent direct recruit coming in at a later date can seek relief and score a march over such irregular or illegal entrant. We find it difficult to subscribe to this view." Fortunately for us, as it was before their Lordships of the Supreme Court, we are here in the realms of inflexible quota rules or other similar statutory prescriptions. R.27 of the K.S.S.R. only provides for taking into account dates of appointment and dates of advice, and does not in terms prohibit retrospective appointments. And when R.18(a) is construed in the manner indicated earlier, we are able to stear clear of not only constitutional inhibitions, but also the danger of perpetuating a rank injustice likely to demoralise the entire public services. 20. Our attention has been drawn to a number of decisions of this Court, interpreting the scope of R.18 (a). They are all cases where provisional appointments or promotions were made under R.9 at a time when rules governing regular appointments were in existence, and attempts were subsequently made to favour such persons with retrospective regularisations, with scant regard to the rights of others regularly appointed in the meanwhile. This Court enforced the rule in every such case. They are all cases where provisional appointments or promotions were made under R.9 at a time when rules governing regular appointments were in existence, and attempts were subsequently made to favour such persons with retrospective regularisations, with scant regard to the rights of others regularly appointed in the meanwhile. This Court enforced the rule in every such case. The decisions are however of little assistance in a case like the present where the rule cannot be applied at all; they do not contain anything contrary to what we have said earlier in regard to correction of mistakes, curing omissions and acting under circumstances where it was impossible for the authorities to go by the rules for reasons beyond their control. 21. Reference has however to be made to the decision in B. N. Nagarajan v. State of Karnataka (AIR. 1979 SC. 1676) on which considerable reliance was placed. The controversy there was about the seniority of Asst. Engineers of the Public 'Works Department of Karnataka State. Prior to reorganisation of States there was a category of employees in the State of Mysore called Graduate Supervisors. It appears that some of them had been put in charge of Sub Divisions, in the exigencies of service, prior to 1-11-56. After the formation of Karnataka State, the Graduate Supervisors put forward a claim for being equated with Asst. Engineers, but the Central Government turned down the claim and equated them only with junior Engineers. In February, 1958 the Karnataka Government promulgated what may compendiously be called "Seniority Rules" and "Probation Rules". In December, 1960 "Recruitment Rules" for the P.W.D. were also issued, prescribing a ratio for direct recruitment and promotion, to the cadre of Asst. Engineers. And on 23-10-1961 the Recruitment Rules were amended so as to be operative retrospectively from 1st March, 1958. On 15-11-1958 Government issued orders promoting 107 Graduate Supervisors as officiating Asst. Engineers. While these people were thus continuing as officiating or temporary hands, 88 candidates were directly recruited on 31-10-61 and appointed as Probationary Asst. Engineers. Thereafter, in February and March, 1962, two notifications were issued giving "regular promotion" to the 1958 promotees, with retrospective effect from different dates between 15-11-1958 and 10-11-1960. And on 6-10-1962 a further notification was issued promoting the 107 Graduate Supervisors as Asst. Engineers with effect from 1-11-1956. Engineers. Thereafter, in February and March, 1962, two notifications were issued giving "regular promotion" to the 1958 promotees, with retrospective effect from different dates between 15-11-1958 and 10-11-1960. And on 6-10-1962 a further notification was issued promoting the 107 Graduate Supervisors as Asst. Engineers with effect from 1-11-1956. The question before the court was whether the said 107 persons were entitled to claim seniority over the candidates directly recruited in October, 1961. According to the "Seniority Rules", officers appointed substantively in clear vacancies were eligible to be treated as senior to all those appointed on officiating or any other basis". The contention raised on behalf of the Graduate Supervisors was that as they had been retrospectively regularised with effect from dates anterior to the date of direct recruitment, they were eligible to be treated as senior. The Court repelled this contention on two grounds. The first was that "regularisation" was not equivalent to permanence. In other words, the retrospective regularisation had not the effect of converting the officiating promotions to substantive appointments in clear vacancies, within the meaning of the Seniority Rules. Notwithstanding regularisation they continued to be officiating hands eligible to be ranked only junior to the direct recruits, substantively appointed as Probationary Asst. Engineers. The other ground was that if regularisation were to be equated with grant of permanence, that would amount to an executive order overriding statutory prescriptions. Their lordships said: "Regularisation in the present case, if it meant permanence operative from the 1st of November, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Art.309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Art.309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Art.309 of the Constitution." The case was evidently one where the authorities were attempting by an executive fiat to confer some favours on the Graduate Supervisors in contravention of statutory rules relating to probation, ratio and seniority; it was not an instance of rectifying mistakes, supplying omissions or of doing something which could not have been done in due time. In fact, the clarification in paragraph (6) of the judgment clearly shows that retrospective regularisation/ confirmation was possible in respect of vacancies which had come into existence prior to the promulgation of the rules. 22. The question of retrospectivity had come up for consideration before the Supreme Court in Rajendra Narain . State of Bihar (AIR. 1980 SC. 1247) also, as noticed earlier. That was a case where 54 temporary posts of Dy. Superintendents of Police created between 1948 and 1970, were retrospectively made permanent by an order issued in 1977. It was contended before the Court that the executive order violated the provisions of R.3 of the Bihar Police Service (Recruitment) Rules, 1953. Under the said Rule, the Governor had to fix up each year the number of vacancies which were to be filled up "in that year", and promotions were not to be "less than half the total number of vacancies to be filled in any such year". The argument was that the Governor had been fixing up the cadre strength annually in accordance with the rule, including the quota for promotion during the years in question, and that a retrospective addition to the cadre strength was violative of R.3. Rejecting this contention, the Court said: "In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created. Rejecting this contention, the Court said: "In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created. The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary. The Governor while exercising his powers under R.3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965 Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have affected the validity of the action taken by the Governor in 1965. In S. G. Jaisinghani v. Union of India ((1967) 2 SCR. 703: AIR.1967 SC.1427) this Court held that when the quota was fixed for the two sources of recruitment, it could not be altered according to exigencies of the situation. But R.3 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by promotion should not be less than half of the total number of vacancies to be filled in any year. Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring that not less than half of the vacancies must be filled by promotees. What the Governor had done in a previous year in exercise of his powers under R.3, if it was valid then, is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year. If for administrative reasons such a measure was considered necessary, there is nothing in R.3 to suggest a bar. R.3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year not only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule". R.3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year not only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule". In short, the court permitted a retrospective review of the cadre strength on the basis of the 1977 order, notwithstanding exercise of power by the Governor under R.3 during the previous years. 23. The above discussion leads to the conclusion that the retrospective regularisations/promotions impugned in this case were not invalid for the reason that they violated the rights of direct recruits founded on R.18(a) and 27(c). Even otherwise, in so far as the direct recruits had failed to raise this point in O. P. No. 1161 and 4713 of 1971, they were precluded from raising it again in subsequent proceedings. 24. Counsel for Somarajan made a determined bid before us to separately challenge Exts. Al and A2 orders issued in favour of Mathai, in the year 1978. It was urged that they were passed without hearing others, and without examining all the facts No such attempt had been made before the learned judge. The two orders were not even produced in the Original Petition, even though Ext. A2 had been published in the Police Gazette dated 7-4-1978, and a perusal of that publication was sufficient to show that it was passed on the basis of Ext. Al. The respondents in the O.P., including the State and the I.G. of Police, bad also no opportunity to traverse the allegations raised at the bar. The learned judge himself had not been invited to examine such a case. Under these circumstances, we are not inclined to go into the question at this stage. And the same should be said about the case that the other regularisations in Ext.P4(a) were also made without notice to affected parties. We therefore allow the appeals, set aside the judgment under attack and direct that O.P. No. 1308/79 shall stand dismissed. Promotions made on the basis of the interim order passed on 31-3-1981 will have to be reviewed by the authorities, in the light of this judgment. No costs. Allowed.