1. By notification dated 31.12.97, the Central Government amended the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 (In short I.P.S. (F.C.S.) Regulations. By this amendment schedule to I.P.S. (F.C.S.) Regulations under the heading "Uttar Pradesh" "item Numbers 3, 4, 5 and 6 and entries relating thereto have been substituted". Entry 5 is in respect of posts to be filled by promotion under Rule 8 of the Indian Police Service, (Recruitment Rules) 1954 and it has been enhanced from 100 to 120. This amendment is to take effect on 1st of January, 98. However, on 19th February 98, the impugned latter Annexure-1 was issued. By this, out of the 20 vacancies so given, 2 number of vacancies were released for utilising in respect of officers included in the current select list of 1997 of U.P. Cadre and the remaining vacancies were bifurcated; 6 for each year of select list of 1998, 1999 and 2000. The State Government, sent a letter on 7.3.98 to release all the remaining 18 vacancies to be filled in a single stroke from 1998 select list. This request of the State Government was however, rejected by Communication dated 6th April, 98 (enclosure 6 to M.P. 856/98). The applicants of the present O.A. have, by this O.A.prayed that all the 20 existing vacancies of I.P.S. be filled up by promoting officers belonging to the State Police Service (in short S.P.S.), instead of splitting the vacancies over a period of three years, as indicated in the Govt. of India letter dated 19.2.98.
Consequently, it has been prayed that the Govt. of India letter dated 19.2.98 be quashed by declaring the same as ultra vires the rules of statue.
2. An interim relief was claimed for a direction to the respondent to provisionally fill up all the 20 vacancies of I.P.S. from amongst the officers of S.P.S. by ignoring the directions issued by impugned letter dated 19.2.98. The Tribunal however, by its order dated 24.4.98 provided that any selection made in pursuance of the letter dated 19.2.98 (Annexure-1) and 6.4.98 (Annexure 6) issued by Govt. of India, shall be subject to further orders of this Tribunal.
3. The learned Counsel for the applicant has challenged the impugned order Annexure-1 on the ground that the Union Government is not competent to issue such a letter and that the notification dated 31.12.97 by which the I.P.S., (F.C.S.) Regulation was amended, cannot be modified by issue of letter i.e. Annexure-1.
4. Though the issue lies in a narrow compass wide ranging arguments were addressed by the learned Counsel for both sides. The short question that arises for consideration is whether the respondents can, by issue of impugned order Annexure-1 bifurcate the vacancies which were made available to S.P.S. Officers after amendment of I.P.S.(F.C.S.) Regulation.
5. The learned Counsel for the applicant has placed before us some back history which caused amendment of I.P.S. (F.C.S.) Regulation and other relevant Rules/Regulation.
6. In the year 1984, the officers of the State Forest Department filed writ petition before the Hon. High Court of Madhya Pradesh under Articles 225 and 226 of the Constitution of India-challenging the promotion quota fixed by the respondents in the Madhya Pradesh Cadre of Indian Forest Service (in short I.F.S.). After the Administrative Tribunals Act came into force, the writ petition was transferred to the Madhya Pradesh Bench of the Central Administrative Tribunal where the case was registered as T.A. No. 81/95, K.K. Goswami and other v. Union of India. The claim of the applicants therein was that the promotion quota should be 33-1/3% of the total senior duty posts of 335. The Tribunal held that the Senior duty posts clearly comprise of 4 categories namely (1) Senior duty posts in the State Govt. (2) Central deputation reserve and (3) State deputation reserve and (4) Training reserve posts. The respondents were not taking into consideration the deputation reserve posts for calculating the 33-1/3% posts for State Forest Officers. The Tribunal held that the deputation reserve posts have to be included for counting promotion quota. The Tribunal consequently, directed the respondents to recalculate the posts and held that instead of 90, the number of promotion quota would be 105 posts and directed the respondents accordingly. This decision was delivered by Jabalpur Bench of the Tribunal on 8.6.87, The State of Madhya Pradesh filed S.L.P. which was dismissed on 18.8.88. The Govt.
of India issued notification amending the Cadre Strength relating to M.P., I.F.S. Officers and enchanced the quota from 90 to 105 in pursuance of C.A.T., Jabalpur decision. However, the respondents did not fill up the posts reserved for promotee officers. Consequently, the applicant therein filed acontempt petition No. 37/92 and another O.A.394/94 was also filed by K.K. Goswami. O.A. 394 of 94 and C.C.P. 37/92 were disposed by a common order, by Jabalpur Bench of the Tribunal, dated 29.6.94. The respondents were directed to convene are view D.P.C.to consider the promotion of the applicant therein. As no (sic) S.L.P.was filed by the Union of India against the common order dated 29.6.94, but the S.L.P. was dismissed on 24.8.95. Similar other petitions were also filed before other Benches of the Tribunal on the basis of the decision of K.K. Goswami (supra).
7. The decision in K.K. Goswami case given in respect of Indian Forest Service (M.P. Cadre), affected other All India Services like I.A.S. and I.P.S. as they are also All India Services under the All India Service Act, 1951. Consequently, 33-1/3% posts were recalculated and in exercise of powers conferred by Section 3 of All India Service Act, 1951, consequential amendments were made in the relevant rules and regulations.
8. In the case in hand, we are concerned with the 33-1/3% quota, in respect of S.P.S. Officers to I.P.S. Admittedly, after the decision in the case of K.K. Goswami, 33-1 /3% posts for S.P.S., Officers for promotion to I.P.S. cadre were re-calculated. The number of posts not exceeding 100 as was fixed earlier for promotion of S.P.S. Officers, was found after recalculation to be 120. Consequent thereto, the respondent No. 3 amended the Indian Police Service (Fixation of Cadre Strength) Regulation, 1955 by G.S.R. 740 E, notification dated 31st December, 1997. (Annexure CR-3 to the Counter reply) (in short C.R. of respondent No. 2), Indian Police Service (Recruitment) Rules. 1954 by G.S.R. 730 E, notification dated 31st December, 1997 (Annexure C.R.-4 of respondent No. 2) and Indian Police Service (Appointment by Promotion) Regulations 1955, vide G.S.R. 733 E, notification dated 31st December, 1997 (C.R. 5 to C.R. of respondent No. 2). The State Government made request through letter dated 10.2.98 and 7.3.98 for release of all the vacancies (2 already included in the Select list of 1997) to fill up by one stroke from 1998 Select list. The request was considered by respondentNo. I but was rejected vide letter dated 6th April, 1998.4reasons have been given for non-release of the enhanced post for promotion of S.P.S. Officers in one stroke. The reasons are contained in para 2 of the C.R. filed by respondent No. 1 and is quoted below : "(I) That the enhancement in promotion quota has been done at the expense of reduction in direct recruitment quota. The post for direct recruitment quota has been transferred to promotion quota.
(II) That there are 3 All India Services, namely I.A.S., I.P.S. and I.F.S. therefore, there has to be a uniform policy in respect of the said All India Services.
(III) That it is seen that there are excess number of direct recruits already in position against the reduced authorised Direct Recruitment Quota. The excess in RRs (sic DRs) is due to earlier recruitment made under the rules on subsequent reduction of the authorised Direct Recruitment Quota. It is not practicable to do away with the excess available in direct recruitment quota immediately. The spirit of All India Services also requires that there should be regular intake of direct recruits and their recruitment cannot be stopped altogether. The recruitment of D.Rs, has however, been reduced substantially.
(IV) That in the interest of long term cadre management the intake in direct recruitment is required to be regulated for adjustment against the authorised Direct Recruitment quota in phased manner.
The phased filling of promotion quota upto the maximum level is a matter of policy justifiable under the amended Recruitment Rules and also on ground practicability since increase in promotion quota is at the expense of direct recruitment quota and can be evened out only at attrition in a progressive manner so that the long term interest of proper staff should not get jeopardised." 9. One reason for not releasing enchanced posts for promotion of S.P.S.Officers to I.P.S., in one stroke, is that the quota of promotees has been increased at the expense of reduction in direct recruitment quota.
10. To examine this reason for not releasing the enhanced posts to the S.P.S. Officers for promotion to I.P.S. grade, it is necessary to discuss the relevant rules/regulations.
11. Rule 9 of the I.P.S.(Recruitment).Rules, 1954 provides for recruitment by promotion from amongst substantive number of State Police Officers in accordance with such regulations as the Central Government may, after consultation with the State Government and the Union Public Service Commission, from time to time make. Sub Rule 2, however as substituted vide notification No. G.S.R. 730 E dated 31.12.97 provides that the number of persons recruited would not at any timeexceed 33-1/3% of then number of senior posts under the State Government, Central deputation Reserve, State deputation reserve and training reserve in relation to that State as in the Schedule to the I.P.S. (F.C.S) Regulations. For convenience Sub-rule 2 of Rule 9, as amended in 1997 is quoted below: "(2) The number of persons recruited under Rule 8 in any State or Group of States shall not at any time exceed 33-1/3% of the number of senior posts under the State Government, Central Deputation reserve, State deputation reserve and training reserve in relation to that State or to the Group of States in the Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955." 12. Rule 4 of I.P.S. (Recruitment) Rules, 1954 provides two methods of recruitment to the service, (a) by Competitive Examination (b) by promotion of substantive number of State Police Officers. Though Rule 9 of this rule provides that the number of persons recruited by promotion shall not exceed 33-1/3% of the number of senior posts but no quota has been provided for direct recruits. A reading of this rule therefore, shows that a S.P.S. Officer can be promoted to I.P.S. to such number of senior posts, not exceeding 33-1 /3%. Corresponding quota of 66-2/3% is not provided for direct recruitment. As no quota is provided for direct recruitment, a direct recruit may be appointed to such number of posts exceeding 66-2/3% but apromotee S.P.S. Officer cannot be appointed in I.P.S. to a post exceeding 33-1/3%.
13. No minimum quota is provided for S.P.S. offices. The quota provided is for maximum number of posts for S.P.S. officers. No quota minimum or maximum is provided for direct recruits. The quota of 33-1/3% for S.P.S. officers was prior to amendment of 31.12.97. No change in quota has been made after amendment of I.P.S. (Recruitment) Rules on 31.12.97. Thus the very concept that quota of S.P.S. Officers has been increased at the cost of Direct recruit is misconceived.
14. The main thrust of the argument of the learned Counsel for the respondents is that as per Rule 9(2) S.P.S. Officers cannot be recruited by promotion to I.P.S. exceeding 33-1 /3% and therefore, such a limit of 33-1/3% can be reduced to any extent as per exigency of situation. The submission of the learned Counsel for the respondents is that after amendment, 20 posts were added to the then existing 100 posts meant for S.P.S. Officers, that enhancement was at the cost of quota provided for direct recruits. Further submission is that direct recruits of earlier recruitment are already in position. It is required to be regulated by adjustment against the authorised Direct recruitment quota.
15. After hearing Counsel for both the parties at great length, we are of the view that a harmonious interpretation is to be given to Rule 9(2) of the I.P.S. (Recruitment) Rules, 1954. We have already found (at the cost of repetition) though Rule 9(2) provides that S.P.S. Officers are not to be promoted to posts exceeding 33-1/3% but no corresponding quota for direct recruits is given. Consequently, direct recruits can be appointed to posts, more than 66-2/3% but promotee S.P.S. Officers cannot be given posts more than 33 1/3%. In our view the expression "shall not at any time exceed 33-1/3%" cannot be used as a shield by the respondents. The only reasonable interpretation which can be given to the expression "shall not at any time, exceed 33-1/3% of the number of senior posts....." is that if eligible and suitable S.P.S. officers, as per rules of promotion are available, they would be considered for promotion to I.P.S. cadre upto 33-1.3%. If the number of S.P.S.officers found suitable, as per rules of promotion, is more than the number of posts available under 33-1/3%, S.P.S. officers will not be promoted exceeding 33-1/3%. In case, however, eligible and suitable S.P.S. officers are less in number to fill up the post upto 33-1/3% quota, the remaining posts of 33-1/3% may be filled up by direct recruitment. Thus non consideration of S.P.S. Officers to the extent of 33-1/3% of posts, would be violative of Rule 9(2).
16. The contention on behalf of respondents that Central Govt. has authority and can reduce the posts of 33-1 /3% to any extent, has no merit. If this contention is accepted, it will make the 33-1/3%, nugatory. No doubt, the expression in Rule 9(2) is not exceeding 33-1/3% but as stated earlier, it has to be given a meaning which the expression carries in substances. In case the contention of the respondents is accepted, it would give unbridled power to the Government to dispense with the requirement by consideration of S.P.S.officers. This, will, as in the present case, result in arbitrary exercise of power by the Govt.
17. We have already quoted the four reasons, mentioned in the Counter reply of respondent No. 1, for not releasing the enhanced post for promotion of S.P.S. officers. We have already found that no quota is provided for direct recruits, and therefore, there is no question of any reduction of direct recruits quota. Further, the quota not exceeding 33-1/3% is provided for S.P.S. officers only. As per calculation 33-1/3% of posts of S.P.S. officers come to 120. Thus, upto 120 number of posts, the S.P.S. Officers can be promoted. Actually, so long the direct recruitments were being made, to some of such posts which were within 33-1/3% at the cost of S.P.S. officers. The S.P.S.officers though being eligible were not being considered for promotion upto 33-1/3%. The respondents' case that the enhancement in promotion quota has resulted in reduction of direct recruitment quota is against law and facts. No change in quota has been made neither for promotion of S.P.S. officers nor for direct recruits. Only the number of posts has been adjusted after re-calculation. Thus, the respondents' case that the direct recruitment quota has been transferred to promotion quota is also baseless.
18. The learned Counsel for the applicant has submitted that as per the rules and regulations upto 33-1/3% posts were to be filled up from amongst S.P.S. Officers, but since inception, such quota was never filled up from amongst officers of the S .P.S. cadre. Even after the decision of Jabalpur Bench of the Tribunal, in the case of Indian Forest Service Officers in the year 1987 the Union of India has been evading and avoiding giving the required number of posts, to State Service Officers. Against the judgment of Jabalpur Bench of the Tribunal in the case of K. K. Goswami (T. A. 81/1985) though State of Madhya Pradesh filed an S.L.P., (which was dismissed) the Union of India had not filed any S.L.P. when a Contempt petition was filed due to non-implementation of the judgment of the Tribunal dated 8.6.87 in T. A. No. 81/85 and another O.A. No. 394/90 was filed by K.K. Goswami, the Union of India filed S.L.P. against the decision of the Tribunal.
Both, the O.A. No. 394/90 and C.C.P. arising out of T.A. 81/85, were decided by the Tribunal vide its order dated 29.6.94. The State Forest Officers of the State of West Bengal also filed O.A. 994/90 before the Calcutta Bench of the Tribunal and the same was decided by the Tribunal vide order dated 26.7.94. The Union of India which had not filed any S.L.P. against the judgment of the Tribunal in T.A. 81/85, decided to file S.L.P. against the order of the Tribunal dated 26.9.94 passed in C.C.P. arising out of T.A. 81/85 and O.A. No. 394/90 and also against the O.A. 994/90 decided by Calcutta Bench of the Tribunal. Initially, the Apex Court granted a stay order, but subsequently all the three SLPs were dismissed vide order dated 24.8.95. After the S.L.P. was dismissed in August, 1995, the Union of India implemented the judgment w.e.f. 1.1.98 in respect of other All India Services, i.e. I.A.S. and I.P.S. The learned Counsel for the respondents has submitted that this delay has been caused as consultation was being made from various State Governments. The facts however, reveal that the judgment of the Tribunal in K.K. Goswami in T.A. No. 81/85 had become final on 18.4.88, and it took more than 9 years for the Union of India to examine the same and to give affect to the said judgment.
19. We have considered the various reasonings advanced by the learned Counsel for the parties, for or against, and we find that after Schedule to I.P.S. (F.C.S.) Regulations was amended and it was provided that the posts to be filled by promotion not exceeding 33-1 /3% would be 120, for such number of posts, the S.P.S. Officers should have been considered by the respondents. If S.P.S. officers, as per recruitment and promotion rules, were not available, for recruitment by promotion to such number of posts, only then to the remaining number of posts, direct recruitment could have been made. Non-consideration of the S.P.S. officers to the extent of 33-1/3% (120 posts) would give advantage to the direct recruits, who arc appointed against such posts at the cost of S.P.S Officers. The S.P.S. Officers who are eligible for consideration upto 33-1/3% (120 posts) meant for them, if not considered would be put to disadvantage as the direct recruits, appointed against such posts would be better placed to such S.P.S.Officers (who could have been appointed after consideration). Thus, by action of the respondents, the S.P.S. Officers would be put to great disadvantage, loss of seniority and status and consequently, it will give undue advantage to those direct recruits, who may get appointed against such posts. Thus, the impugned order dated 19.2.98 is arbitrary and discriminatory.
20. The learned Counsel for the respondents has submitted that by the impugned order Annexure-1 dated 19.2.98, out of 20 number of posts made available to the S.P.S. Officers, two number of vacancies have been already released for utilising the same in respect of officers included in the Select list of 1997. Consequently two officers have been already promoted vide order dated 24.3.98 from the select list of 1997. The learned Counsel has further submitted that the remaining 18 vacancies were to be utilised by way of preparation of select list of 1998, 1999 and 2000, six for each year. Consequently, six S.P.S. Officers from the select list of 1998 have been already promoted vide order dated 30.9.98. The submission of the learned Counsel for the respondents is that normally, only 3% posts of the Cadre strength is proposed vacant (direct recruitment) every year. To adjust the reduced number of posts (after amendment) for direct recruitment, only 1.5.% of the posts were proposed vacant for Civil Services Examination of 1998 to be announced in 1999, only one post in U.P. Cadre is available for direct recruitment to I.P.S. This has been done, according to the learned Counsel for the respondents, because there should be a regular intake of direct recruits and direct recruitment cannot be stopped altogether.
21. In view of our reasonings given above, we are unable to agree with the stand taken by the respondents. We are of the view that to the extent of 33-1/3% primarily, the S.P.S. officers are to be considered and only if they are not found suitable, for promotion as per rules and regulations provided therefor, only then the remaining vacancies out of 33-1/3% for which S.P.S. officers are found not suitable, can be filled up on direct recruitment basis. In view of this, upto 33-1/3% posts, S.P.S. officers are to be considered first.
22. Admittedly, on re-calculation, as per the judicial pronouncements, 20 number of posts were to be filled up on 1.1.98 from amongst S.P.S.officers. However, such number of vacancies were not available to be filled up by single stroke from amongst S.P.S. officers. Besides, this it has been submitted by the learned Counsel for the respondents, against some posts, appointments were already made on direct recruitment basis. We are conscious that though by an interim order dated 24.4.98, it has been provided that any selection made shall be subject to further orders of this Tribunal, but we are of the view that (for wrong interpretation, given to 33-1/3% the Government has already filled up some posts out of 33-1/3% posts on direct recruitment basis) such candidates who have been appointed and have already taken charge are not to be disturbed.
23. It is a known fact that by order dated 13.5.98, the age of retirement of Central Government employees was raised from 58 to 60 years. The result of it is that there has been no retirement during the year of 1998 after the order. There would be no retirement during next two years period. The number of vacancies to be filled up is obviously to come down. However, after the completion of extended two years period, there would be normal retirement. Consequently, the number of vacancies would increase. In case the impugned order is allowed to continue, the vacancies which may fall vancant during this period of two years and after the expiry of two years period would be restricted to six vacancies for the S.P.S. officers and remaining vacancies would go to direct recruits. As the S.P.S. officers have preferential right for consideration, for vacancies, ignoring the claim of the eligible S.P.S. officers, would be violative of Rule 9(2) of the I.P.S. (F.C.S.) Regulation.
24. The submission of the learned Counsel for the respondents is that if all the 20 posts are allowed to be filled by a single stroke, the total cadre strength of the I.P.S. which stands today at 395, would have to be increased to the additional number of posts because 20 vacancies are not available and against some vacancies the appointments on direct recruitment basis has been already made.
25. We have considered the rival contentions on the above point and are unable to agree with the objections raised on behalf of the respondents. Once a statutory provision has been made the provision has to be followed in spirit and substance and it cannot be ignored, As has been held earlier, the respondents cannot be allowed to squeeze 33-1/3% posts to any lower number for purpose of filling up the posts on direct recruitment basis. If it is permitted, it would be giving an arbitrary discretion to the Government in violation of Rule 9(2) of the I.P.S.(F.C.S.) Regulation.
26. We are therefore, of the view that all the remaining vacancies which may be made available in subsequent years, shall be filled up from amongst eligible S.P.S. Officers till 33-1/3% posts are not made available to the S.P.S. Officers or eligible S.P.S. Officers are not available to fill up such posts.
27. The learned Counsel for the respondents has submitted that the requirement of the cadre management is that the direct recruitment should not be stopped altogether as it will affect long term staffing.
Keeping in view the cadre management a provision for Cadre review after every 3 years is given in the I.P.S. (Cadre) Rules, 1954. As informed by the learned Counsel for the parties the Government has reviewed the cadre in various years. In view of allotment of posts on recalculation and on considering various reasons given by the State Government in letter dated 10.2.98 (Annexure C.R. 1 to the C.R. of respondent No. 2), it will be for the Central Government to review the cadre. The cadre review and the cadre management is within the jurisdiction of the Central Government and the Tribunal is not required, particularly in this case to examine the same.
28. The learned Counsellor the applicant has challenged the competency of the Union of India to pass order Annexure-1 dated 19.2.98. The learned Counsel has also challenged the authority of the Under Secretary under whose signature this impugned order was issued. We are however, of the view that in view of our finding that the order impugned in the case is arbitrary, violative of Statutory provisions and is illegal, and therefore, we need not examine the competency of the Union of India or the authority of the officers under whose signature the same was issued.
29. The learned Counsel for the respondents has submitted that the power of the Government in issuing the impugned order in public interest and on administrative exigency be not doubted and the action taken by the respondents in fair play, be upheld. In support of this view the learned Counsel has cited 1994 (26) A.T.C. page 13, a decision given by the Central Administrative Tribunal, Ernakulam in the case of R.R. Nair v. Chief General Manager, Telecom Kerala Circle Trivendrum and Ors.. The learned Counsel has further submitted that the Tribunal should attempt to make harmonious construction before striking down the impugned order. In support of this, the learned Counsel has placed reliance on the decision of the Apex Court in the case of G.K. Rao v.Sutrith Bhattacharya and Ors. reported in (1998) 4 S.C.C. 189. We have gone through the two decisions cited by the learned Counsel. The case of R.R. Nair (supra) is totally on different facts. In that case, on a tenure post 30% training allowance was to be given but before the expiry of the said tenure period, the rate of allowance was reduced on the ground of financial difficulty. The Tribunal refused to quash the order reducing the allowance as there was no allegation of malafted in upholding the policy decision to reduce the allowance. Fairness in action of the respondents was upheld. In the case in hand the facts and the points in dispute are totally different.
30. In the case of G.K. Rao, State Civil Service Officers were promoted as I.A.S. by addition of supernumerary post against item 3 in the schedule to I.A.S. (F.C.S.) Regulation 1954 wichout making corresponding increase in items 1 and 2, though promotions were given to accommodate such State Civil Service Officers who were left out for promotion to the I.A.S. by issue of notification. The notification was quashed as it amounted to amendment in the Schedule to the Cadre strength regulation as corresponding increase was not made against items 1 and 2. The number so increased by creation of supernumerary post, was in excess of 33-1/3% laid down in Rule 9(i) of the recruitment rules for promotion of the State Civil Services Officers to the I.A.S. In the case before this Bench, the fact is otherwise. Though eligible officers for promotion under the relevant regulation within 33-1/3% were available, the Government has in an arbitrary manner not considered such officers and has allotted the vacancies coming within 33-1/3% to direct recruits. The respondents have in the case before this Bench used as a shield the expression "shall not at any time" exceeding 33-1/3% of the number of posts" to reduce the number to less than 33-1/3% for consideration of S.P.S. officers for appointment by promotion. This, as has been held above, gives, unjustifiable disadvantage to the S.P.S. Officers who were eligible but could not be considered for promotion against the vacancies available for such officers.
31. The learned Counsel for respondents has also submitted that the impugned order be upheld on the ground of exigency of administration.
In support of his contention the learned Counsel has placed reliance on two decisions of the Tribunal (]) Eastern Railway Class II Officers Association and Ors. v. Union of India and Ors. reported in (1992) 20.
A.T.C. (Full Bench) page 691 and (ii) Indian Telecommunication Service Association v. Union of India and Ors. reported in (1992) 21 A.T.C.page 333. In the case of Eastern Railway Class II Officers Association (Full Bench) (supra) it has been held that policy regarding promotion can be changed by the Government whenever consider necessary and as such a change is not a change in the service condition, therefore, it has been held that the Tribunal cannot interfere unless the change is malafied, arbitrary or without any principle. This Full Bench decision has been followed in the other case of Indian Tele Communication Service Association and Ors. (supra). As has been held in the Full Bench case, the promotion avenue is a policy decision, it cannot be challenged unless change in policy is malafied, arbitrary or bereft of any discernible principle. In the case in hand, by amending the I.P.S.(F.C.S.) Regulation vide notification dated 31.12.97, 33-1/3% posts not exceeding 120 were to be filled up by promotion. This was given effect from 1.1.98. This notification was issued in exercise of powers conferred by Sub-section (1) of Section 3 of the AH India Service Act, 1951 read with relevant I.P.S. (Cadre) Rules. The respondents have however, by the impugned order dated 19th February, 1998 bifurcated 20 of the 120 posts and split it over to four years. By splitting up these posts, which come within 33-1/3%, the respondents have violated, as held above, Rule 9(2) of the I.P.S. (F.C.S.) Regulation. The impugned order dated 19.2.98 (Annexure 1 to the O.A.) is therefore, held invalid.
32. We are conscious that some S.P.S. Officers have been already promoted. Their promotion would not be affected by quashing of the order impugned in this case as their promotion is within 33-1/3%.
However, the direct recruitment if any made, after 1.1.98 would surely get affected. We do not want to disturb such appointments. We however, provide that all future vacancies in I.P.S. after 1.1.98 shall be filled up from officers of the S.P.S. cadre if they are found suitable as per I.P.S. (Appointment by Promotion) Regulation 1955 and other relevant regulations to the extent of 33-1/3% only. In case however, suitable officers of S.P.S. Cadre are not available for promotion to fill up 33-1/3% of posts, such vacancies shall be filled up by direct recruitment basis.
33. The O.A. is accordingly allowed as per directions above and the impugned order dated 19.2.98 Annexure-1 to the O.A. is quashed. Costs on parties.