KAN SINGH, J - (1.) THE two writ petitions before me being of identical nature were called on for hearing together and it is convenient to dispose them of by one judgment. THE petitioners, who are Superintendents of Police in the State of Rajasthan, question a Government order whereby their previously fixed seniority in the I. P. S. Cadre has been altered by the Government vis-a-vis the contesting respon-dents Servashri J. K. Balani and H. N. Kak, respondents Nos. 3 and 4 respectively. It will be convenient to state the facts with reference to the writ petition of Shri K. N. Gupta. I
(2.) PETITIONER Shri K. N. Gupta belonged to the former covenanting stats of Jodhpur and he graduated in commerce from the Agra University in 1947 and post graduated in Commerce and graduated in Law from the Lucknow University in 1949. After the formation of Rajasthan he came to be appointed as Deputy Superintendent of Police. In January, 1951, Shri Gupta as also Shri Bajranglal, the writ petitioner in the other case, were sent for training as Deputy Superintendents of Police to Moradabad Police Training College and on the completion of their training they joined as Deputy Superintendents of Police Shri Gupta was appointed as a member of the Rajasthan Police Service in 1953 when such service was constituted by the State. Subsequently Shri Gupta came to be appointed in the Indian Police Service. He claims that in pursuance of Indian Police Service ( Appointment by Promotion} Regulations, 1955, a Committee was constituted by the Central Government in January, 1957, and it consisted of the Chairman, Union Public Service Commission, the Chief Secretary of the State Government, the Home Secretary of the State Government, the Inspector General of Police Rajasthan and the Deputy Inspector General of Police, Headquarters, and he was selected for inclusion of his name in the special selection list for being appointed to the Indian Police Service. The following officers, according to him, were selected in the order in which their names are shown: (1) Shri J. P. Singha (2) Shri P. C. Bhatia (3) Shri Bhagirath Ram Bishnoi (4) Shri Bajranglal (5) Shri K. N. Gupta (petitioner) (6) Shri Shishram Sharma. Out of these officers according to the petitioner, Nos. 1, 2, 3 and 6 were already officiating as Superintendents of Police, but the petitioner was placed higher in the order of merit in comparison to Shri Shishram Sharma who was senior to him in the Rajasthan Police Service and was already officiating as Superintendent of Police at the time. The list was prepared in this order because Shri Gupta was considered to possess special merit in comparison to Shri Shishram Sharma and other senior officers in the R. P. S. Cadre who were not taken on the Select List. The petitioner proceeds to say that at the time of his selection there were many officers belonging to the Rajasthan Police Service who were officiating as Superintendents of Police, but they were not considered fit. He has pointed out the names of Servashri P. L. Banerjee, Kundanlal and Madanlal. The recommendations of the Selection Committee were placed before the Cabinet of Ministers and, according to Shri Gupta, the Cabinet decided that both Shri Gupta and Shri Bajrang Lal be appointed as officiating Superintendent of Police whenever any future vacancies occurred. It is claimed that as the petitioner was given a higher position in the Select List on account of his merit in comparison to those who were already officiating as Superintendents of Police. , the idea was that whenever any post would fall vacant in future he was to be appointed on a permanent basis and was to be given preference over those who were kept lower in the list. The version of the petitioner further is that he was considered fit to hold the post of Superintendent by the then Inspector General of Police and the latter had recommended for appointing the petitioner as such on 18-2-57. Though the selection of the petitioner for inclusion of his name in the Select List was held in January, 1957, yet the list was not notified in accordance with rule 5 of the Indian Police Service (Special Recruitment) Regulation, 1957, because the list had to be on an All India basis and selections for other States had to take time. Even so, according to Shri Gupta, on account of his fitness for holding the post he was appointed as officiating Superintendent of Police on 3-9-57. He had brought on record the Government order Ex, 2. It is dated 9-3-57 and by it he was appointed as officiating Superintendent of Police ( G. I. D.) S. B.) At that time, according to Shri Gupta, respondents Nos. 4 and 5 Servashri Balani and Kak, respectively who were direct recruits, were not appointed and the petitioner was given preference over them. This appointment was for a month only to start with, but eventually it was continued right upto 25-9-57. In between Shri Gupta was transferred on 13-7-57. , as officiating Superintendent of Police, Tonk, but as in the meantime the post of Superintendent, G. I. D. Grimes Branch had fallen vacant due to the transfer of one Shri Kartar Singh from G. I. D. to Government of India, the petitioner who was previously working as Deputy Superintendent of Police, G. I. D. Special Branch, Jaipur was appointed to officiate as Superintendent of Police G. I. D. ( S. B.) from 6-8-57 to 21-9-57 ( vide Ex. 6 ). Servashri Balani and Kak were also appointed as officiating Superintendents of Police at Jaisalmer and Bharatpur on 25-5-57 and 4-6-57 respectively against the leave vacancies of the Superintendents of Police at the two respective places. However, with effect from 25-9-57 Shri Gupta was reverted as Deputy Superintendent of Police. The grievance of Shri Gupta was that this was wrong as persons who had subsequently been appointed against leave vacancies should have been reverted and thus he asserts that there was denial of equal opportunity under Article 16 of the Constitution to him. Shri Gupta applied for leave with effect from 25-9-57 after handing over his charge as officiating Superintendent of Police and then went on leave. The Inspector General of Police granted him leave in anticipation of Government's sanction and allowed him to proceed on leave. Shri Gupta avers that at the time he was granted this leave five posts from leave reserves were unoccupied. While on leave Shri Gupta came to be appointed again as officiating Superintendent of Police on 29-11-57. On his being so appointed he joined his post at the place where he was appointed namely, Bundi and his remaining leave which was in all for 60 days was got cancelled. The Inspector General of Police had requested the Government vide his letter dated 16-12-57 (Ex. 5) that Shri Gupta be granted leave as applied for i. e. , 30 days' P. L. From 25-9-57 to 24-10-57 and 30 days' extension from 25-10-57 to 23-11-57. The Inspector General also requested the Government to issue orders that Shri Gupta may be treated as Superintendent of Police during the leave period as he had again been promoted as officiating Superintendent of Police, Bundi without joining as Deputy Superintendent of Police on reversion. The Inspector General of Police again reminded the Government vide his letter dated 24-4-58 (Ex. 7) that action be taken as per his previous letter and on this second occasion he requested the Government that as required under rule 31 (b) (b) of R. S. R. Government may give a certificate in favour of Shri Gupta to the effect that he would have continued to officiate as S. P. , but for his proceeding on leave sanctioned under Government orders and also to convey the same direct to A. G, It appears that on 9-5-58 the Government had issued the following order: "government OF RAJASTHAN Appointments (A) Department, No. D. 5657/58/f. 3 (4) Apptts (A) 57. Jaipur, the 9th May, 1958. The Accountant General Rajasthan, Jaipur. Sub: - Grant of leave to Shri K. N. Gupta, R. P. S. Officiating Superintendent of Police, Bundi. Ref:- This Department order No. D. 465/58/f. 3 (4) Apptts (A)/57, dated 4-2-1958. Under Rule 31 (b) (b) of the R. S. R. the Government have been pleased to certify that but for his proceeding on 60 days leave with effect from 25-9-1957, Shri K. N. Gupta, R. P. S. , would have continued to officiate as Superintendent of Police. BY ORDER SD/- Assistant Secretary to the Government of Rajasthan" This order, according to Shri Gupta, showed that for purposes of explanation No. 2 to rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954, the Government treated the petitioner as Superintendent of Police from 9-3-57 to 29-11-57 and consequently in accordance with rule 3 of these Rules the petitioner was allotted the year 1952 as the year of his allotment for the purposes of Indian Police Service and placed above respondents No. 3 and 4. The gradation list was published by the Government of India on 1-1-59 and subsequently continued to be published from year to year as no objections had been filed by any body against the fixation of the petitioner's seniority. This repetition of the order of seniority in the gradation list continued till 1962. The events, according to the petitioner, had then taken a turn on account of the appointment of Shri Balani as Personal Assistant to the Inspector General of Police who came to exercise influence with the Inspector General and seized of the opportunity to make a representation against the higher seniority assigned to the petitioner and the Inspector General of Police forwarded the representation of Shri Balani. On receipt of this representation the Special Secretary to the Government Shri G. K. Bhanot informed the petitioner on 9-4-63 vide E. 19 to show cause why the representation of Shri Balani be not accepted and the petitioner's seniority revised as the same was found to be wrongly fixed and likewise the certificate, Ex. 9 was also said to have been wrongly issued. The petitioner submitted a detailed reply to this Government communication (Ex. 19), but it had no effect and eventually in the next gradation list the petitioner's name was put below those of respondents Servashri Balani and Kak. It is this order of alteration of seniority that is challenged by the present writ petition, The case of Shri Bajranglal is on the same lines. I need not make a detailed reference to the averments contained in his writ petition. It is sufficient to say that in the Select List the name of Shri Bajranglal was placed above that of Shri Gupta and also in the Rajasthan Police Service Shri Bajranglal was senior to Shri Gupta. On 9-3-57 when Shri Gupta came to be appointed as officiating Superintendent of Police, Shri Bajranglal was on deputation with the Armed Constabulary posted in North East Frontier. Shri Bajranglal actually started officiating as Superintendent of Police from 18-7-57. He was placed above Shri Gupta, because of the next below rule. So far as the respondents Nos. 3 and 4 are concerned they started officiating earlier to Shri Bajranglal and, therefore, Shri Bajranglal succeeds if Shri Gupta succeeds. In the circumstances it is the contentions raised by Shri Gupta that will have to be examined. In challenging the Government order altering the seniority Shri Gupta contends that the Government have no jurisdiction to disturb the seniority once fixed by them and the action taken by the Government was in contravention of rule 3 of the Indian Police Service ( Fixation of Seniority ) Rules and Shri Balani had secured the Government orders by mis-using his position as Personal Assistant to the Inspector General of Police and he was also responsible for delaying the forwarding of the petitioner's representation to the Government. It is further urged that the order under challenge is even otherwise wrong as it mars the future chance of promotion of the petitioner vis-a-vis respondents No. 3 and 4 and apart from every thing changing the seniority after a long period of almost 5 years was improper, more so when but for the condonation of the period of Shri Gupta's remaining on leave after 25-9-57, he would have challenged the validity of his order or reversion as at that time certain junior persons including respondents Nos. 3 and 4 as also those placed below him in the Select List were allowed to officiate and further there were leave vacancies available at the time. The writ petition has been opposed by the respondents. It is denied by them that the order changing the seniority was wrong or illegal on any of the grounds mentioned by the petitioner. It is pointed out that the petitioner had been reverted as Deputy Superintendent of Police with effect from 25-9-57 and he applied for leave as Deputy Superintendent of Police and went on leave as such. The certificate Ex. 9, according to the respondents, was issued by mistake and it was also by mistake that the petitioner Shri Gupta as well as Shri Bajranglal were considered senior to respondents Servashri Balani and Kak. It was also submitted that Ex. 9 which was issued by the Assistant Secretary was contrary to the decision recorded on the file and accordingly it had been subsequently cancelled on 30-7-65. I ought to mention that this was done after the filing of the writ petition. It was further submitted that the petitioner has got no cause of action, because no orders regarding rejection of his representation had yet been conveyed to him. In short, the reply of the respondents Nos. 1 and 2 is that they were entitled to rectify the mistake committed in fixing higher seniority of the petitioner vis-a-vis respondents Nos. 3 and 4 and apart from this it was urged that the appointment of the petitioner as officiating Superintendent of Police in March, 1957 was purely temporary and in the nature of local arrangement which could not be counted for the purpose of seniority according to rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954. Shri Kak had also filed his reply. Shri J. K. Balani though served did not choose to file his reply earlier and it was filed for the first time on 6-3-69 when the case had been argued previous to that for a member of hearings. In the circumstance, I did not accept his reply and ordered that the same be put in Part-B file. However, on 10-3-69 I had already allowed both the parties to put in certain documents and consequently I allowed four documents to be produced by Shri M. L. Joshi on behalf of Shri Balani as well. Before dealing with the points arising for consideration it will be convenient to briefly review the relevant statutory provisions. The Indian Police Service like the Indian Administrative Service has been constituted under All India Services Act, 1951. Sec. 3 of this Act empowers the Central Government to make rules for regulation of recruitment and the conditions of service of persons appointed to All India Service. Such rules are to be laid for not less than fourteen days before Parliament as soon as possible after they are made and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on a motion made during the session in which they are so laid. A number of rules have been made under this provision for the conditions of service of persons appointed to the Indian Police Service. The Indian Police Service (Recruitment) Rules, 1954, hereinafter to be referred as the "recruitment" Rules lay down the methods of recruitment to the service. According to rule 3 thereof recruitment to the service after the commencement of the rules shall be by (1) a competitive examination; (2) by promotion of substantive member of a State Police Service. On each occasion vacancies arise, the Central Government has to determine what number of persons are to be recruited by each method for a particular period. Rule 7 provides method for competitive examination. Rule 9 provides for recruitment by promotion. It provides that the Central Government may on the recommendation of the State Government concerned and in consultation with the commission recruit to the service persons by promotion from amongst the substantive members of a State Police Service in accordance with such regulations as the Central Government may, after consultation with the State Government and the Commission, from time to time make. In exercise of powers under rule 9 the Central Government had made the Indian Police Service (Appointment by Promotion) Regulations, 1955. This will be referred to hereinafter as the "promotion Regulations". Regulation 3 of the Promotion Regulations provides that there shall be constituted for each State a Committee consisting of the Chairman of the Commission or where the Chairman is unable to attend, any other member of the Commission representing it and other members specified in the Regulations. Regulation 5 of the Promotion Regulations lays down that the Committee shall prepare a list of such members of the State Police Service as satisfy the condition specified in regulation 4 and|as are held by the Committee to be suitable for promotion to the service. The number of members of the State Police Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of the preparation of the list. The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority. The names of the officers included in the list shall be arranged in order of seniority in the State Police Service, but if, in the opinion of the Committee a junior officer is of exceptional merit and suitability, he may be assigned a place in the list higher than of officers senior to him. The list so prepared is required to be revised and revised every year. But, if in the process of selection, review or revision it is proposed to supersede any member of the State Police Service, the Committee shall record its reasons for the proposed supersession. The list so prepared is to be forwarded to the Union Public Service Commission by the State Government along with certain other relevant records. According to regulation No. 7 of the Promotion Regulations the Commission is to consider the list prepared by the Committee along with the other documents. It may make such changes as it considers necessary to make and then the list finally approved by the Commission becomes what is known as the Select List of the members of the State Police Service. Normally the Select List is to be in force until its review and revision, effected under sub-regulation (4) of Regulation 5. Then regulation No. 8 of the Promotion Regulations provides that appointments of members of the State Police Service from the Select List to posts borne on the State Cadre or the joint Cadre of a group of States, as the case may be, shall be made in accordance with the provisions of rule 9 of the Cadre Rules. In making such appointments, the State Government is required to follow the order in which the names of such officers appear in the Select List. There is a proviso to this regulation which enables the Government to make appointments of persons not borne on the Select List or not exactly in the order in the Select List, but this is subject to the provision of the Cadre Rules and only when the State Government is satisfied that the vacancies are not likely to last for more than three months or that there is no suitable cadre officer available for filling the vacancies. Then regulation No. 9 provides that appointments to the service from the Select List shall be made by the Central Government on the recommendations of the State Government in the order in which the names of members of the State Police Service appear in the Select List for the time being in force. Then besides the Promotion Regulations the Central Government had in exercise of its powers under rule 2 of the Recruitment Rules made the Indian Police Service (Special Recruitment) Regulations, 1957, hereinafter to be referred as the "special Recruitment Regulations". They came into force on 14-5-56. Regulation No. 3 provides that the Central Government may make recruitment to the service by promotion of members of a State Police Service in excess of the normal promotion quota. Regulation No. 4 lays down the procedure for special recruitment. It provides that for the purposes of recruitment to the Service under Regulation 3, the provision of the Promotion Regulations, 1955 shall apply subject to the modifications specified in the schedule. There is only one condition and that is that the Committee shall consider the cases of the members of the State Police Service who on 31-12-56 complete not less than six years of service whether officiating or substantive in a post of Deputy Superintendent of Police. In computing this period of qualifying service of six years, any service rendered in any former Indian State shall be taken into consideration. Then for regulating seniority of members of the Indian Police Service the Central Government had made the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter to be referred as the "seniority Rules". Rule 3 lays down the method for fixation of seniority. As this rule will have to be examined in detail, I propose to read it in full: - "r. 3. Assignment of Year of Allotment - (1) Every Officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule. (2) The year of allotment of an officer in service at the commencement of these rules shall be the same as has been assigned-to him or may be assigned to him by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules : Provided that where the year of allotment of an officer appointed in accordance with R. 9 of the Recruitment Rules has not been determined prior to the commencement of these Rules, his year of allotment shall be determined in accordance with the provision in clause (b) of sub-rule (3) of this rule and for this purpose, such officer shall be deemed to have officiated in a senior post only if and for the period for which he was approved for such officiating by the Central Government in consultation with the Commission. (3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be (a) Where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held; (b) Where the officer is appointed to the Service by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with rule 7 of these rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiating by the former; Provided that the year of allotment of an officer appointed to the service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service in accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by the Central government in consultation with the State Government concerned: Provided further that an officer appointed to the service after the commencement of these Rules in accordance with R. 9 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Police Service ( Appointment by Promotion ) Regulations framed under rule 9 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission. Explanation 1 - An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement. Explanation 2 - An officer shall be treated as having officiated in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstance. " I have extracted the rule as it existed in 1959 when the seniority list is said to have been prepared for the first time. Rule 4 provides that the seniority of officers inter se shall be determined in accordance with the provisions contained in that rule. The seniority of officers in service at the commencement of these rules shall be as has been determined or may be determined by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules. Sub-rule (3) provides that the seniority of officers appointed to the service after the commencement of these rules and before 11-4-58, shall be in the order stated therein. As there is no question of inter se seniority as between the officers promoted or as between the officers who were Assistant Superintendents of Police, but it is a question of their relative seniority that arises for consideration, I need not refer to rule 4 in any detail. Rule 6 provides that there shall be prepared every year for each State Cadre and Joint Cadre a gradation list consisting of the names of all officers borne on that cadre arranged in order of seniority in accordance with the provisions of rules 4, 5, 5-A and 1. I may also notice the Indian Police Service (Cadre) Rules, 1954 made under sec. 3 of the All India Services Act, 1951 by the Central Government. These rules provide for the constitution of the cadre and the fixation of the strength thereof. Rule 8 provides that save as otherwise provided in these rules, every cadre post shall be filled by a cadre officer. Rule 9 enables the making of temporary appointments of non-cadre officers to cadre posts which lays down that a cadre post in a State may be filled by a person who is not a cadre officer if the State Government is satisfied (a) that the vacancy is not likely to last for more than 3 months; or (b) that there is no suitable cadre officer available for filling the vacancy. Where in any State a person other than a cadre officer is appointed to a cadre post for a period exceeding three months the State Government shall forthwith report the fact to the Central Government together with the reasons for making the appointment. On receipt of a report under sub-rule (2) or otherwise, the Central Government may direct that the State government shall terminate the appointment of such person and appoint there to a cadre officer and where any direction is so issued, the State Government shall accordingly give effect thereto. Where a cadre post is likely to be filled by a person who is not a cadre officer for a period exceeding six months, the Central Government shall report the full facts to the Union Public Service Commission with the reasons for holding that no suitable officer is available for filling the post and may in the light of the advice given by the Union Public Service Commission give suitable directions to the State Government concerned. Rule 10 requires the State Government to report to the Central Government if a cadre post is kept vacant for a period exceeding six months. Normally the fixation of seniority of officers is an administrative function and this Court will be reluctant to deal with a matter squarely lying within the administrative sphere of the Government concerned, unless mala fides on the part of the Government are shown. However, where the seniority, is governed by statutory rules it will have to be seen whether the seniority was fixed according to the rules or was changed in contravention of the rules. The first question that therefore, arises for consideration is how the matter has been dealt with in the present case. The facts not in controversy are that the petitioner was a member of the State Police Service, that a Committee constituted under the Promotion Regulations met sometime in January, 1957 and the petitioner was selected for inclusion of his name in the Select List. A copy of the secret letter No. F. 6/16/56 R. III dated 4-457 from the Secretary, Union Public Service Commission to the Secretary to the Government of India has been placed on record. It shows that the Selection Committee met at Jaipur on 19-1-57 and in accordance with the recommendations the names of three officers Servashri Tarachand, Amar Singh and Bhanirot Bahadur Singh were recommended for appointment against the existing vacancies in the promotion quota with effect from 1-1-57. About ten officers the Commission conveyed its agreement that they may be allowed to hold Indian Police Service cadre posts in an officiating capacity till cadre officers become available. The names of the officers were as follows: 1. J. P. Singha, 6. Panchulal Banerji 2. R. C. Bhatia 7. P. C. Sajani 3. Madanlal Kashyap 8. J. S. Rajaora 4. Bhagirath Rai Bishnoi 9. Bajranglal 5. Seesram Sharma 10. K. N. Gupta As regards the officers to be included in the Special Select List it was pointed out that their cases would be reviewed later by the Commission who would prepare a common All India List on the basis of the recommendations received from the various states. At page 148 of the paper book there is a list of Select Officers for 1957 as well as a Select List of 1958 produced with the affidavit of the Chief Minister Shri Mohanlal Sukhadia wherein he claimed privilege in respect of certain documents desired to be produced by the petitioner, but agreed to produce the Select Lists. In the Select List for 1957 the name of Servashri Bajrang Lal and K. N, Gupta appear at serial Nos. 12 and 13 respectively. In the Select List for 1968 the names of these officers appear at Serial Nos. 13 and 14 respectively. However, there is change in respect of Shri J. P. Singha. His name appears at Serial No. 4 in the select List of 1957, but in the select list of 1958 Shri Singha's name appears below that of the petitioner. Shri K. N. Gupta started officiating in a temporary vacancy from 9-3-57. Order Ex. 2 produced by him shows that Shri Gupta's officiating appointment had been sanctioned for a period of one month only with effect from the date of his taking over. There was no order immediately after the expiry of one month when Shri Gupta's appointment as officiating Superintendent of Police was to be terminated, but it appears that subsequently in July, 1957, the Governor had appointed Shri K. N. Gupta to officiate in the senior scale of the Indian Police Service with effect from the date he was appointed to officiate as Superintendent of Police (C. I. D.) (S. B.), Jaipur. In the very nature of things this order of the Governor Ex. 3 could refer only to Ex. 2 Thus order Ex. 3 resulted in regularising the officiation of Shri Gupta after 9-4-57. Shri Gupta continued to officiate as Superintendent of Police on one post or the other till 24 9-57. With effect from 25-9-57 he was reverted to his substantive post as Deputy Superintendent of Police. He handed over the charge of his post as officiating Superintendent of Police. Though he handed over the charge of his post as officiating Superintendent of Police, yet without joining as Deputy Superintendent of Police he immediately applied for leave and in anticipation of Government's sanction the Inspector General of Police allowed him leave and then Shri Gupta again came to be appointed as officiating Superintendent of Police vide Government order Ex. 4 On account of this order Shri Gupta got his leave cancelled and joined as officiating Superintendent of Police on 27-11-57. Thus, there is no controversy so far that there were two periods during which Shri Gupta continuously officiated as Superintendent of Police, that is, from 9-3-57 to 24 9-57 and thereafter from 27-11-50 till he came to be appointed to the Indian Police Service in 1958 as a result of special selection in accordance with the Special Selection Regulations. The crucial question arising for consideration is whether the two periods could be joined so that Shri Gupta could have the benefit of the entire period from 9 3-57 to the date of his appointment in the Indian Police Service and when thereafter he came to be confirmed as Superintendent of Police. The Inspector General of Police had made recommendations vide his letter dated 16-12-57 (Ex. 5) that Shri Gupta be treated as Superintendent of Police during leave period as he had again been promoted as officiating Superindent of Police without joining as Deputy Superintendent of Police on reversion. In his subsequent reminder Ex. 7, he requested the Government to grant a certificate under rule 31 (b) (b) of R. S. R. in favour of Shri Gupta to the effect that he would have continued to officiate as Superintendent of Police but for his proceeding on leave sanctioned under Government order referred above. It is with reference to these two communications of the Inspector General of Police that the Government had issued the certificate Ex. 9 which has already been reproduced in extenso in the earlier part of the judgment. Rule 31 (b) (b) of the R. S. R. , as it stood on the material date ran as follows - "r. 31 (b) (b ). The period of leave on average pay upto a maximum of four months taken at a time counts for increments in the time-scale applicable to a post in which a Government servant was officiating at the time he proceeded on leave and would have continued to officiate but for his proceeding on leave. The period which counts for increments under this clause is, however, restricted to the period during which the Government servant would have actually officiated in the post. " I ought to mention that subsequently the rule was changed in some respects, but I am not concerned with the subsequent changes. A bare reading of this rule shows that it is intended to c0ver a contingency where a Government servant while officiating on a certain post proceeds on leave and a certificate is given with a view to providing how far leave taken by an officer while he was officiating on a post could be counted for increments in the time scale. It is for this that it is provided that the period on leave on average pay upto a maximum of four months could be taken and that could count for increments and if the officer while officiating on the post proceeds on leave, then such leave will count for increment, provided he would have continued to officiate but for his proceeding on leave. There is no doubt that Shri Gopta was not officiating as Superintendent of Police when he went on leave from 25-9-57. He had already handed over the charge of the post of officiating Superintendent of police before proceeded on leave. In such a case, therefore, rule 31 (b) (b) is not at all attracted and the certificate Ex. 9 is not in keeping with the letter and sprit of rule 31{b) (b) under which it purports to have been issued. This, however, does not solve the problem. Rule 3 of the Seniority Rules inter alia provides that an officer shall be treated as having officiated in a senior post during any period in respect of which the State Government certifies that he would have so officiated but for his absence on leave or training. The allied question that arises is whether the certificate Ex. 9 answers the requirement of any of the explanations to rule 3 of the Seniority Rules. To my mind, the two rules deal with different situations and it will be quite wrong to confuse one rule with the other. The language of the rules is not identical and the purposes that they are designed to serve are also not the same though in a rare instance they might concur. Therefore, if this certificate Ex. 9 is not considered to be a valid document by the Government, there can be no quarrel with it. The fact that requires consideration is how had Shri Gupta's name been placed above that of Serva Shri Balani and Kak in the first gradation list published in 1959 and subsequently repeated in the same order till 1-1-63. Rule 3 lays down the formula for assignment of the year of allotment to an officer and then determine his seniority. Rule 3 has been analysed with great clarity, if I may say so with respect, in a decision of their Lordships of the Supreme Court reported as D. R. Nim vs. Union of India (l ). As observed by their Lordships sub rule (1) makes rule 3 the controlling rule for the purposes of assignment of the year of allotment. The rule then divides officers into two categories (1) an officer in the Indian Police Service, appointed before these rules, and (2) an officer appointed to the Indian Police Service after the commencement of the Rules. Shri Gupta came to be appointed after 1964 and, therefore, his case will come only under the second category. The second category is again sub-divided into two sub-categories; (1) consists of officers appointed to the service as a result of a competitive examination, and (2) of officers appointed to the service by promotion in accordance with rule 9 of the Recruitment Rules. As Shri Gupta was appointed by promotion I am concerned with the second sub-category. Then their Lordships pointed out how the formula adopted in the rule works out. One has first to find out the year of allotment of the Junior most among the officers recruited in the service by competition and who officiated continuously in a senior post from a date earlier than the date of the commencement of the officiation of the promote. Then the year of allotment for a promote has to be the year of such direct recruit who started officiating earlier. Then, as regard the fixation of the seniority of the officer his period of continued officiation has to be counted. In counting such period the period of officiation before the inclusion of the name of the officer in the Select List has to be excluded. In other words, it is only when an officer has been selected and placed on the Select List that the period has is to be counted from the date of actual officiation or the date of Select List, if it is later. Thus if the name of the officer comes to be included in the Select List after such officiation, then the period is countable from the date of such inclusion of his name in the Select List. In the present case, the name of Shri Gupta came to be included in the Select List for the first time on 4-4-57 and therefore, by no stretch the period prior to 4-4-57 could be counted for his seniority. However, this will not make any material difference because even so the respondents Nos. 3 and 4 had started officiating after 4 4-57 when Shri Gupta was already officiating. The question as posed above is whether the two periods of officiation of Shri Gupta could be joined and counted as one continuous period. For this the case of Shri Gupta has to be brought under any of the explanations otherwise as a matter of fact he cannot be said to have continuously officiated as the two periods of officiation were interrupted by order of his reversion and his proceeding on leave. The first explanation lays down that an officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement. Explanation 2 lays down that an officer shall be treated as having officiated in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstance. Explanation 2, to my mind, is in a way independent of Explanation!. It is wider in nature in that it enables the State Government to certify that the officer would have officiated for a particular period; but for his absence on leave; and (2) appointment to any special post or (3) any other exceptional circumstance. It has not been Shri Gupta's case that by any order the Government had withdrawn or superseded the order of his reversion; nor has he stated in his writ petition in clear terms that any certificate was issued by the State Government as contemplated by Explanation 2. It is understandable that he finds himself faced with limitations in stating this position correctly, because once his name was included in the gradation list which went on being repeated year after year till 1963, he may not have bothered about the various orders which had to be there before the benefit of the Explanation could be given to him. The State Government who is supposed to be in possession of all the relevant record and the circumstances how Shri Gupta's seniority was fixed above that of Serva Shri Balani and Kak has not thrown any light on this question. The striking fact remains that Shri Gupta's name appeared in the list of 1959 above that of Servashri Balani and Kak. I am left to wonder how the Government had dealt with the matter in the light of the two Explanations appended to Rule 3.
(3.) ACCORDING to the standing order made by the Chief Minister under rules 21 and 22 of the Rules of Business of the State Government made by the Governor on 6-3-56, the question of determination of seniority of All India Service was to be dealt by the Additional Secretary and the Chief Secretary in the first instance and then by the Chief Minister and the Home Minister, so far as I. P. S. Officers, were concerned. Is it to be taken that the question of fixation of seniority at the out set which culminated in the first gradation list was dealt with otherwise than by this standing order? The proposal is required to be examined at a sufficiently high level of the Government. The reply of the State Government shows that they have just tried to take shelter behind the simple plea of a mistake. How that mistake was committed, what were the circumstances under which it was so committed, whether the proposal was dealt with by the Additional Secretary, the Chief Secretary, the Home Minister or the Chief Minister, has not at all been clarified. Am I also to presume that the Government of India who had eventually to approve the seniority had done so without looking into the matter whether the State Government had, in fact, given any certificate as required by explanation 2, or the conditions of explanation 1 were fulfilled in the present case or not. On the one side there is no clear averment as to whether any certificate was issued by the State Government; on the other side, the position has been left shrouded in mystery and no light whatsoever was thrown as to how the seniority of Shri Gupta came to be fixed above that of Servashri Balani and Kak, and how this would have been done otherwise than by resorting to the two explanations. Once a Court is satisfied about the seniority being fixed according to the statutory rules, then it will not lightly view the alterations or change of that seniority except on the well-known grounds of any fraud, mis-representation or even a mistake unwittingly committed. In the present case, except that the name of the petitioner appeared in the gradation list till 1-1-63 there is nothing to show that the requirements of rule 3 were fulfilled by the petitioner. Petitioner places reliance on what the Inspector General of Police had written to the Government vide Ex. 5. The Inspector General had clearly requested the Government to consider the petitioner as Superintendent of Police during the leave period. He repeated his request vide Ex. 7, but this time he introduced rule 31 (b) (b) of R. S. R. and was thus responsible for creating most of the confusion and inducing the Government to give a certificate which the rule 31 (b) (b) did not at all warrant. The position remains that the Government do not appear to have considered the proposal of the Inspector General of Police whether the petitioner should be treated as a Superintendent of Police during his leave period. Were the Government to agree to this proposal, then the right course for them would have been to withdraw the order of the petitioner's reversion and then treat him as an officiating Superintendent of Police on leave. This will again depend upon the availability of vacancies. I put the question to both the learned counsel when the case was being argued whether any vacancy in the cadre of Superintendent of Police at the time existed on which he petitioner could have been treated to be on leave. The stand of the Government has been, I am sorry to remark, a shifting one. The notice Ex. 19 which contained a note prepared by Shri Bhanot, Special Secretary to the Government shows that during the period Shri Gupta remained on leave there was no vacancy in a senior scale of Indian Police Service. In para 14 (a) of the writ petition Shri Gupta had averred that the sanctioned strengh of the Indian Police Service Cadre of the Rajasthan consisted of 82 posts including five posts for leave reserves and that at the relevant time the entire cadre was not full and at least the five posts from leave reserves were unoccupied. In their reply the Government have admitted that para 14 (a) of the writ petition was correct. Then this has been sought to be explained by a further affidavit of one Shri Kalyan Prasad Srivastav that on 24-9-57 when Shri Gupta was relieved by Shri Lalit Mohan no such post by which perhaps he meant the post of Supdt. of Police was vacant. Along with this affidavit Annexure-X, at page 196, has been enclosed Paras Nos. l and 2 of the Annexure shows the strength of the senior post as 57. The number of posts reserved for promotion quota was 14 which works out roughly at 25%. Then the number of posts to be filled by direct recruitment is 43. Then para-5 shows deputation reserves, para-6 shows leave reserve and para-7 and 8 show Junior Posts and Training reserve. It was argued by learned Additional Advocate General that the leave reserves mentioned in para-6 of Annexure-X pertain to posts to be filled by direct recruitment and from this it was contended that there was no leave reserve so far as the senior scale posts were concerned, I am afraid, I am unable to accept this contention. The deputation reserve, leave reserve and training reserve are shown for fixing the total strength of Indian Police Service cadre. Leave salary is paid on the average of the salary drawn by an officer in the procee-ding 12 month and, therefore, leave reserve need not be separately shown for any particular category of posts. It is enough, if it is shown in the cadre itself. I am fortified in the view I am taking by a letter of the Government of India No. 3/43/56 AIS (II) dated 17-5-57 from the Ministry of Home Affairs addressed the Chief Secry. to the Government of Andhra Pradesh, Hyderabad with copies to the other State Governments. It is laid down therein that the training reserve could only be considered in the Junior Scale whereas the deputation and leave reserve should normally be taken in the Senior Scale. Then last but not the least important is a letter brought on record by the learned Additional Advocate General himself. It is copy of a D. O. Letter dated 22 4-69 from one Shri Madan Gopal, Accounts Officer to Shri K. P. Srivastava, Assistant Secretary to the Government in the Appointments Department. It is mentioned in this letter that leave salary was paid to Shri Gupta against an I. P. S. post. This letter was issued during the pendency of the writ petition. I do not think therefore, that by this time the correct position had not been appreciated. From all this I am led to believe that the Government are not consistent in laying as to whether there were leave vacancies available at the time Shri Gupta was reverted and was granted leave. It is for the State Government to see whether a particular officer whose name is just borne on the Select List and not yet included in the I. P. S. cadre should or should not be allowed to officiate but then it has to be remembered that Shri Gupta was lulled into the belief that his seniority had been recognised on account of the condonation of the break in the officiation between 25 9-57 and 23-11-57. Shri Gupta's claim is that if he had been faced with the position that the Government had subsequently taken, then he would have challenged his order of reversion itself. Here he has made a two-fold submission; the first is that both Servashri Balani and Kak had not completed four years period and, therefore, were not eligible for being posted as officiating Superintendents of Police when they were so posted in July, 1957 and he would have challenged their retention in preference to himself. The second submission was that persons whose names were not included the Select List were allowed to officiate and even persons whose names were below that of Shri Gupta in the Select List were allowed to officiate when Shri Gupta came to be reverted. I cannot permit the conversion of the present writ petition into one for challenging the order of reversion, as altogether different considerations would guide the disposal of such a writ petition and parties affected namely, the officers who were officiating at the time of Shri Gupta's reversion, but were allowed to continue have to be joined as parties. However, it is a matter which was required to be considered by the State Government when it disturbed the seniority list which had remained in force for almost five years. To grant a certificate or not go grant a certificate to an officer in exercise of its powers under Explanation 2 of rule 3 is a matter within the discretion of the State Government and this Court is not inclined to substitute its discretion or decision for the discretion which the statute gives to the State Government, All that it can indicate is the broad consideration that should guide the exercise of the discretion granted by the statute properly. The first thing that the Government should have considered was how the proposal of Inspector General of Police contained in Ex. 5 for treating Shri Gupta as a Superintendent of Police during the leave period on account of his subsequent promotion be dealt with. I am not unmindful of the fact that in the year 1962, that is, vide his latter Ex. A2/ R-3, D. O. No PHQ,-A/estt-PF-62/801, dated 19-10-62, the Inspector General had said that on scrutiny of the records it had been found that there was no clear vacancy in the I. P. S. Senior Scale post during the period from 25-9-57 to 23-11-57 but he had at the same time added that the correctness or otherwise of this information might further be ascertained from the Secretariat records in Appointments Department from where transfers and postings of Superintendents of Police are recorded. Thus the subsequent letter issued in October, 1962 does not prima facie detract from what the Inspector General has said in his letter Ex- 5 or the subsequent reminder Ex. 7. It is, on a proper appraisal of all the circumstances, the duty of the Government to consider whether in all fairness to Shri Gupta and everybody also certificate as required by Explanation 2 of rule 3 of the Seniority Rules should be granted so that the period of leave from 25-9-57 to 23-11-57 could be treated as the continuation of the officiation of Shri Gupta as officiating Superintendent of Police. Here I may dispose of some subsidiary points argued by learned counsel for the parties on either side. Shri Joshi, appearing for Servashri Balani and Kak, argued that being a non-cadre Shri Gupta could not have been posted as officiating Superintendent of Police in preference to the respondents who were cadre officers. For this reliance was placed on rules 8 and 9 of the Cadre Rules. I am afraid such a broad proposition cannot be accepted. It is true, Shri Gupta was a non-cadre officer at the time but there is the Select List of 4-4-57 in which it is clearly mentioned that the Commission agreed that the officers mentioned therein, in which list Shri Gupta's name appears at No- 10, be allowed to hold I. P. S. cadre posts in an officiating capacity tillcadre officers became available. Therefore, Shri Gupta could have been posted even though he was a non-cadre officer to officiate on an I. P. S. post. As to whether the requirement of rule 9 of the Cadre Rules were fulfilled or not is again a question which I find it difficult to examine in the absence of proper material. It is a question of fact whether a particular vacancy was of a temporary character and whether a particular officer could accordingly be postedagainst it. In the circumstances I am unable to say that Shri Gupta could not have been posted in preference to respondents Nos. 3 and 4. On the other hand, Shri Gupta argued that he could have challenged the appointment of respondents Nos. 3 and 4 in officiating capacity if he had not been assigned his due seniority and faced with the reversion. I find it difficult to accept this submission as well. In P. C. Wadhwa vs. Union of India (2) their Lordships had examined the various sets of rules which I have already referred and held that so far as the Indian Police Service was concerned there was only one cadre and the transition of a member of the service from the junior scale to the senior scale did not depend upon the considerations of the comparative merits of a group of officers in the junior scale inter se but only upon a consideration of their seniority. Their Lordships added that no element of selection is involved in promoting as Assistant Supdt. of Police to the post of Supdt. of Police as the whole scheme of rules indicated that a person borne on the junior scale of pay has a right to hold the post on Senior scale of pay depending upon the availability of a post and his seniority in the junior scale of pay. It is true, their Lordships were dealing with a case of reversion of an I. P. S. Officer who was substantively an Assistant Superintendent of Pol ice from the post of an officiating Superintendent of Police, but the observations define the status of a member of the Indian Police Service though in the junior scale and so far as he is concerned no question of selection arises when he is put in the senior scale. This was, of course, a majority view, but all the same this is the decision of the Court and the observations made as a result of a careful examination of all the relevant rules cannot be brushed aside. According to a recent Full Bench case of this Court Jeevraj vs. Lalchand (ILR 18 Raj. 1137) even obiter dicta of the Supreme Court though the principles were not necessary for the decision of the case were law declared under Article 141 of the Constitution and binding. Ex. 10 was relied upon by learned counsel for the petitioner for showing that according to this letter only a junior I. P. S. Officer with four years' experience can be promoted in the Senior Scale. I am afraid in view of the observations of their Lordships in P. C. Wadhwa's case whatever is mentioned in Ex 10 can have no effect. There is no legal bar to the appointment of an officer in the junior scale of Indian Police Service as a senior scale officer. As to what were the comparative merits, even assuming that the comparative merits have to be examined, is again a question which this Court cannot appropriately go into. It is primarily for the State Government to consider at the relevant time when the two officers drawn from the two sources are to be considered for appointment in the senior scale. Now it was also argued on behalf of the petitioner that it was on account of special and exceptional merits that the petitioner's name was placed above that of some of the officers in the State Police Service while preparing the Select List and the petitioner also urged that at the time of his selection it was ordered that he was to be permanently appointed in future. Petitioner had applied for calling of (a) the report of the Select Committee (b) decision of the Government of Rajas-than concerning the report of the Selection Committee for promotion to I. P. S. (c) orders of the Government of Rajasthan regarding report of the Selection Committee about special recruitment; and (d) Select List for promotion. The Chief Minister Shri Mohanlal Sukhadia had filed an affidavit and claimed privilege against the disclosure or production of these documents regarding: (1) report of the Select Committee; (2) Government decision on the Committee's report; and (3) final orders of the Government of India, on the ground that these documents are unpublished official records relating to the affairs of the State and their disclosure would lead to public injury in view of the reasons mentioned against each of these documents. As regards the Select List he did not claim privilege and the same had been produced by him. It has been already referred to in the earlier part of judgment. The question that seriously engaged my attention was whether this Court can order the disclosure of these documents. In a recent judgment of the House of Lords in Conway vs. Rimmer (3), by disregarding the earlier decision of the House of Lords in Ducan's case (1942, 1 All. E. R. 587) it was held that the Court has jurisdiction to order disclosure of documents for which privilege is claimed, as it is the right and duty of the Court to hold the balance between the interests of the public in ensuring the proper administration of justice and the public interest in the withholding of documents whose disclosure would be contrary to the national interest. Accordingly, it was held that the Minister's certificate that disclosure of a class of documents or the contents of particular documents would be injurious to the public interest is not conclusive against disclosure. Certain guiding considerations have also been laid down in this case as to when the Court should insist on such disclosure and when it should even inspect the documents before ordering disclosure without showing them to the parties. It appears that the House of Lords in England have liberalised the rule in favour of disclosure on account of the weighty considerations that just as keeping of certain class of documents of public gaze is important, looking into the relevant documents for imparting justice is also in public interest. How to strike a proper balance will depend upon particular situation. However, in India the position is governed by the judgment of their Lordships of the Supreme Court in State of Punjab vs. S. S. Singh (4), as also the provisions of the Evidence Act contained in sections 123 and 162. The Court cannot hold an enquiry into the possible injury in the public interest which may result from the disclosure of documents in respect of which privilege is claimed under sec. 123 and that is a matter for the authority concerned to decide, but the Court is competent and indeed bound to hold a preliminary enquiry and determine the validity of the objections against production and that necessarily involves an enquiry into the question whether the evidence relates to an affair of the State under sec. 123 or not. However, in holding of an enquiry into the validity of an objection under sec. 123, the Court cannot permit any evidence about the contents of documents, that is, the documents cannot be inspected and any evidence about the contents of the documents cannot be permitted. If the document cannot be inspected its contents cannot indirectly be proved. Therefore, bearing in mind the principles laid down by their Lordships I come to the conclusion that the subject matter of the document sought to be produced was relating to the affairs of the State and the record there of was unpublished. In the circumstances the claim for privilege had to be allowed. Learned counsel for the petitioner then referred to the pleadings and submitted that certain paragraphs of the writ petition in this regard have been admitted by the respondents. That is so. The contention of learned counsel for the petitioner receives some support, but all the same I hardly find it safe to come to a clear conclusion on the question without the benefit of the documents themselves. This is again a matter which the Government who are in possession of the documents should consider as to what decision was taken in pursuance of the recommendations of the Committee that met in January, 1957 regarding the fate of the petitioner about his eventual posting on a senior scale of post. The petitioner has also stressed, as I have already said, that at the time be was reverted some officers whose names were either not borne on the Select List or those whose names were below him in the Select List, were allowed to continue against senior scale of posts when he was reverted. ;