ORDER Yadav, J. -- 1. Whether a Deputy Superintendent of Police, belonging to Madhya Pradesh Police (Gazetted) Service, governed by the Madhya Pradesh Police (Gazetted) Services Recruitment Rules, 1987, (as was in vogue prior to coming into force of Madhya Pradesh Police Executive (Gazetted) Service Recruitment and Promotion Rules, 2000) and by Madhya Pradesh Civil Service (General Conditions of Service) Rules, 1961, on promotion could get a seniority from the date of their continuous officiation and not from the date of confirmation, is the issue which has cropped up for consideration in these bunch of writ petitions arising out of common orders passed by the Madhya Pradesh State Administrative Tribunal in the different set of original applications. 2. Applicants who are respondents in these writ petitions are the promotee Deputy Superintendent of Police, promoted on officiating basis on different dates between 1984 to 1988. In the year 1994 in a gradation list prepared as on 1.4.1994, when placed in the category of officiating Government servant below the direct recruits, these promotees raise their grievance and sought redressal thereof by filing original applications before Tribunal seeking direction that the period rendered on officiation before confirmation be taken into consideration for reckoning their seniority. They thus sought relief that they be given the benefits of continuous offication. 3. The relief sought for by these promotees were countered by the State as also by the direct recruits who were confirmed on successful completion of their probation, on the ground that, the promotees could not be confirmed on account of non-availability of substantive permanent posts. 4. They thus sought relief that they be given the benefits of continuous offication. 3. The relief sought for by these promotees were countered by the State as also by the direct recruits who were confirmed on successful completion of their probation, on the ground that, the promotees could not be confirmed on account of non-availability of substantive permanent posts. 4. The Tribunal after taking into consideration the rival contentions and taking note of the provisions of Rules of 1987 that : (a) all appointments to the service are made in the junior scale either by way of direct recruitment or promotion or transfer of persons belonging to other service; (b) post of Deputy Superintendent of Police is a three tier post, which carries a junior scale, a senior scale and selection grade; (c) fifty percent of the posts are required to be filled up by direct recruitment and fifty percent by promotion of members of the lower services; (d) direct recruits are appointed on probation for two years, whereafter they are required to be confirmed; (e) for promotees no period of probation is prescribed, their suitability for the post on which they are promoted is adjudged as per provisions contained in rule 9 of Rules 1961 which provides for trial of Government servant officiating in another posts whether appointed by way of direct recruitment promotion or transfer; and further taking note of the absence of material to show that the promotees having not being considered as per rule 9 of 1961 Rules, directed the respondent State by impugned order that : (i) The cases of the applicants shall be considered for confirmation retrospectively from dates they were eligible for such confirmation in terms of rule 9 of Rules 1961 by the respondent State. (ii) The confirmation shall be considered by a duly constituted committee as per Government orders and such committee shall consider the cases for confirmation as on the date of confirmation was due to be made. In other words, was only such record of each applicant as would have been considered timely would be only be considered and no subsequent events or record shall be taken note of. This direction is being given as had the Government followed the rules and considered the cases of confirmation of applicants in time only the record available at the relevant tie, could have considered. This direction is being given as had the Government followed the rules and considered the cases of confirmation of applicants in time only the record available at the relevant tie, could have considered. (iii) Such consideration shall be made for all similarly placed promoted Deputy Superintendents of Police so as to avoid multiplicity of litigation. (iv) Based on the dates of confirmation to be accorded as a result of the above said consideration the gradation lists for each year shall be revised/drawn out and issued for information of all concerned. (v) Action as directed in sub paras (i) to (iv) above shall be completed within three months from date of receipt of this order by the respondent State. (vi) Consequential benefits of appointment/promotion to higher scales/posts shall be accorded to the applicants and all other similarly placed persons within a further period of four month by the respondent State. 5. The order has been challenged by the direct recruits on the ground that while directing the State for considering the case of promotees for confirmation on the post they were officiating from initial date of promotion, the Tribunal has lost sight of the fact that the confirmation of the promotees could be only against the vacant post earmarked to be filled by promotion, i.e., 50% of the sanctioned cadre and not against the post reserved for direct recruit. Petitioners apprehend that in case the order passed by the Tribunal is implemented as it is then the departmental promotees promoted to officiate on higher post in excess of their quota and against the post reserved for the direct recruits will be regularised from the initial date of promotion and would gain seniority which will be contrary to the Rules and also the law laid down by Supreme Court in State of Madhya Pradesh and others v. A.K. Rajoriya and another [1992 Supp.(2) SCC 413], wherein, sub-rule (2) of rule 6 of M.P. State Industries (Gazetted) Service Recruitment Rules 1985, which is paramateria the same as sub-rule (2) of rule 6 of Rules 1987 was considered. 6. 6. Rule 6 of Rules 1987 provides for : ^^6- HkrhZ dk rjhdk && ¼1½ bu fu;eksa ds ykxw gksus ds ckn lsok esa HkrhZ fuEufyf[kr rjhdksa ls dh tk,xh] vFkkZr~ % ¼d½ izfr;ksfxrk ijh{kk }kjk lh/kh HkrhZ djds( ¼[k½ lsok ds lnL;ksa] tSlk fd vuqlwph 4 ds [kkuk ¼2½ esa dh inksUufr }kjk( ¼x½ fufnZ”V lsokvksa esa fufnZ”V inksa ij ekSfyd :i ls fu;qDr O;fDr;ksa ds LFkkukarj.k }kjkA ¼2½ mifu;e ¼1½ ds [kaM ¼[k½ vFkok [kaM ¼x½ ds v/khu HkrhZ fd, x, O;fDr;ksa dh la[;k fdlh Hkh le; vuqlwph ,d esa mfYyf[kr inksa dh la[;k ds lkFk vuqlwph nks esa crk, x, izfr’kr ls vf/kd ugha gksaxsA ¼3½ bu fu;eksa ds mica/kksa ds v/khu] HkrhZ dh fdlh Hkh fo’ks”k vof/k ds nkSjku Hkjs tkus ds fy, visf{kr lsok ds fdlh Hkh fo’ks”k in ;k inksa dks Hkjus ds iz;kstu ds fy, viuk;k tkus okyk] HkrhZ dk rjhdk ;k rjhds rFkk izR;sd rjhds }kjk HkrhZ fd, tkus okys O;fDr;ksa dh la[;k izR;sd volj ij ‘kklu }kjk vk;ksx ds ijke’kZ ls fuf’pr dh tk,xhA ¼4½ mifu;e ¼1½ esa nh xbZ fdlh ckr ds gksrs gq, Hkh] ‘kklu dh jk; esa lsok dh vko’;drkvksa dks ns[krs gq,] vko’;d gksus ij ‘kklu] lkekU; iz’kklu foHkkx dh lgefr ls lsok esa HkrhZ laca/kh mu rjhdksa dks NksM+] ftudk mDr mifu;e ls mYys[k fd;k x;k gS] ,sls vU; rjhds viuk ldsxk] tks ‘kklu }kjk bl laca/k esa tkjh fd, x, vkns’k }kjk fu/kkZfjr fd, tk,aA Schedule II referred to in sub-rule (2) of rule 6 stipulates : vuqlwph 2 ¼fu;e 6 nsf[k,½ HkrhZ dk fu;e Hkjs tkus okys inksa dh la[;k dk fooj.k foHkkx dk in dk uke in dh lh/kh lsok ds vU; lsokvksa fu;qfDr uke la[;k HkrhZ }kjk lnL;ksa ds O;fDr;ksa ¼dzeksUufr fu;e 6 dks ds vLFkkbZ }kjk½ ¼d½ inksUufr LFkkukarj }kjk nsf[k, }kjk ¼fu;e 6¼x½ ¼fu;e 6 ¼[k½ nsf[k,½ nsf[k,½ ¼1½ iqfyl 38 ^^ 100 inksUufr ds v/kh{kd izfr’kr fy, mi;qDr ¼jsfM;ks@ mEehnokj u ,e-Vh-@ feyus ij dsanz D;w-Mh-@ ‘kklu rFkk vU; dEI;wVj½ jkT;ksa ds lqj{kk mi&lsukuh@ cyksa ls dsMj ds vfrfjDr vuqlkj ;ksX;rk iqfyl v/kh{kd] j[kus okys iqfyl eq[;ky; vf/kdkfj;ksa dh izfrfu;qfDr@ LFkkukarj ij in Hkjs tk,axsA x`g ¼iqfyl ¼2½ mi&iqfyl foHkkx½ v/kh{kd ¼ftyk iqfyl cy@iqfyl eq[;ky;@D;w-Mh- ,e-Vh@jsfM;ks@ cSaM dEI;wVj½ lgk;d lsukuhA ¼d½ dfu”B 152 50 50 &rnSo& izfr’kr izfr’kr osrueku ¼[k½ ofj”B 136 100 osrueku izfr’kr ¼x½ izoj Js.kh 51 100 osrueku izfr’kr** 7. The Tribunal, as apparent from the impugned order, considered the claim of promotees on the anvil of rule 9 of 1961 Rules, by comparing the same with rule 8 thereof and drew the conclusion to effect that : “8. It is clear from the above narrative that rule 8 and rule 9 have brought direct recruits as well as promoted Government servants at par in the matter of period of trial on first appointment to Government service or a post. A direct recruit appointed on probation is so appointed for the purpose of trial to adjudge his suitability. Similarly rule 9 contains provisions for trial of a Government servant to determine his suitability for continuing him on the promoted post. The two provisions are quite similar and more or less identical in their applicability to the two types of appointees to the post.This position has been brought about the amendment of 7th May 1987. The direct recruits as well as the promotees are thus now on a leval playing field after this date.” 8. Rules 8 and 9 of 1961 which were introduced byway of amendment on 7.5.1987 provides for : “8. Probation. -- (1) A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed. (2) The appointing authority may for sufficient reasons, extend the period of probation by a further period not exceeding one year. (3) A probationer shall undergo such training and pass such departmental examination during the period of his probation as may be prescribed. (4) The services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant. (5) The services of a probationer who has not passed the departmental examination or who is found unsuitable for the service or post may be terminated at the end of the period of his probation. (5) The services of a probationer who has not passed the departmental examination or who is found unsuitable for the service or post may be terminated at the end of the period of his probation. (6) On the successful completion of probation and passing of the prescribed departmental examination, if any, the probationer shall if there is a permanent post available be confirmed in the service or post to which he has been appointed either a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non-availability of the permanent post that as soon as a permanent post becomes available he will be confirmed. (7) A probationer who has neither been confirmed nor a certificate issued in his favour under sub-rule (6) nor discharged from service under sub-rule (4) shall be deemed to have been appointed as a tempoary Government servant with effect from the date of expiry of probation and his condition of service shall be governed by the Madhya Pradesh Government Servants (Temporary and Quasi Permanent Service) Rules, 1960.” “9. Trial for suitability of officiating Government servants. -- (1) A person already in permanent Government service appointed to another service or post by direct recruitment promotion or transfer shall ordinarily be appointed in an officiating capacity for a period of two to ascertain his suitability for the service or post : Provided that the Government may declare that any previous officiation is such a service or post may be counted towards the period of trial to such extent as may be specified in the particular case : Provided further that if the Government servant is appointed to a post to which direct recruitment is also made in accordance with the Recruitment Rules governing appointments to such post then the period of officiating shall be equal to the period of probation prescribed for a person appointed by direct recruitment to the said post under the rules. (2) The appointing authority may for sufficient reasons extend the period of officiation by a further period not exceeding one year : Provided that if the Government servant is appointed to a post to which direct recruitment is also made in accordance with the Recruitment Rules governing appointments to such posts and the rule provide for extension of the period of probation then the period by which the period of officiation may be further extended shall be equal to the period by which the period of probation is extendable for a person appointed by direct recruitment to the said post under the Rules. (3) If during or at the end of the period of officiation or extended period of officiation the Government servant is found unsuitable for the service or post to which he has been appointed he shall be reverted to his former substantive service or post. Note : The failure to pass prescribed departmental examination, if any, within such period as may be allowed for the purpose may be construed as failure to show fitness for the service or post in which the Government servant is officiating. (4) If at the end of the period of the trial the officiating Government servant is considered suitable for the service or post to which he has been appointed he shall if there is a permanent post available be confirmed in the service or post to which he has been appointed otherwise a certificate shall be issued in his favour by the appointing authority to the effect that the officiating Government servant would have been confirmed but for non-availability of the permanent post and that as soon as a permanent post becomes available he will be confirmed. (5) An officiating Government servant, who has neither been confirmed nor a certificate has been issued in his favour under the sub-rule (4) nor reverted to his former substantive service or post under sub-rule (3) shall notwithstanding anything contained in sub-rule (a) be deemed to have been continued in officiating capacity till further orders and during such period he shall at any time be liable to be reverted to his substantive service or post.” 9. The analysis by the Tribunal in paragraph 8 when adjudged in the light of provisions contained in rules 8 and 9 of 1961 Rules does not fresco an infirmity in the conclusion reached at by the Tribunal as would warrant an interference. 10. Thus, true it may be that, the promotees have a right of consideration qua rule 9 of 1961 Rules for confirmation; however, while doing so the impediment created vide sub-rule (2) of 1987 Rules cannot be ignored. Because as apparent from the facts in paragraph 5(c) of the writ petition (and not controverted), that, the promotees are in excess of their quota. It is stated there in that as on 1.4.1989 against 399 permanent posts of Deputy Superintendent of Police, 169 were direct whereas promotees were 404. Similar was the situation as on 1.4.1991 (against 470 permanent posts, 191 were direct and 405 promotees), as on 1.4.1992 (against 470 permanent posts, 179 were direct and 490 were promotees), as on 1.4.1993 (against 470 permanent posts, 177 were direct and 490 were promoted) as on 1.4.1994 (against 597 permanent posts, 199 were direct and 480 were promotees). Thus, the promotees are much higher in number than their respective quota. 11. The petitioners are, therefore, justified in raising an apprehension that in case the direction by the Tribunal vide impugned order with its consequential effect is implemented without taking care of sub-rule (2) of rule 6 of 1987 Rules, departmental promotees officiating on the promoted post in excess of their quota will gain march over the direct recruits appointed within their quota. 12. In State of M.P. and others v. A.K. Rajoria (supra), it has been held : “7. Although the heading of rule 6 is ‘Methods of Recruitment’ and sub-clause (1) of the said rule stated that the recruitment to the service shall be by the following methods, viz., (a) by direct recruitment (b) by promotion and (c) by transfer, the language of sub-clause (2) of the said rule is very clear. It states that at no time the number of those recruited by promotion or transfer, shall exceed the percentage shown in Schedule II, of the number of “Duty Posts” specified in Schedule I. Schedule I specifies 66 posts. As has been pointed out earlier, on account of the transfer of 9 of the said 66 posts, the duty posts which remained in the cadre were 57. As has been pointed out earlier, on account of the transfer of 9 of the said 66 posts, the duty posts which remained in the cadre were 57. Schedule II mentions that the percentage of the duty posts to the filled in by promotion would be fifty. Thus, neither rule 6(2) nor Schedule II refers to he vacancies to be filled in. On the other hand, they speak of the percentage of direct recruits and promotees to be maintained in the posts at any point of time. There is no ambiguity in the language either of sub-clause (2) of rule 6 or of Schedule II referred to therein. On a plain reading of both the said provisions, it is clear that the rule does not pertain to the filling in of vacancies when they occur but to the maintenance of the proportion between the direct recruits and promotees. The rule requires that the proportion between the two in the cadre or duty posts should be so maintained that at no time those recruited either by promotion or transfer exceed 50% of the duty posts or cadre strength.” 13. In the case at hand also though the promotees have a right of consideration for confirmation as per rule 9 of 1961 Rules as directed by the Tribunal; however, the same is abated with the limitation prescribed in sub-rule (2) of rule 6 of 1987 Rules. Thus, while affirming the direction given by the Tribunal for consideration of the case of promotees for confirmation under rule 9 of the Rules, 1961 the respondent State of M.P. and its functionaries are directed to take into consideration the stipulations contained in sub-rule (2) of rule 6 of 1987 Rules which categorically states that in no case the quota of 50% should be breached. In other words all such promotees officiating on promoted post in excess of their quota even if adjudged suitable for confirmation will not be entitled for their promotion from the initial date but from the date on which substantive vacancy with their quota occurs. 14. The impugned order is modified to the extent above. Petition is disposed of finally in above terms. There shall be no costs.