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The petitioner, Sri Sant Ram Sharma was appointed to the Indian Police Service on June 10, 1952. On September 8, 1954 by a notification of the Ministry of Home Affairs, Government of India, the Indian Police Service (Regulation of Seniority) Rules, 1954 came into force. Rule 6 of the said Rules required that a Gradation List of all Police Officers in the State should be maintained to ascertain their respective seniority. Accordingly, a Gradation List was prepared by the State of Rajasthan in August, 1955. In this Gradation List, the position of the petitioner was 5th. Sri Hanuman Sharma was shown as occupying the 7th position, Sri Sultan Singh stood 14th and the position of Sri Ganesh Singh was 17th. Rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954 required that every officer shall be assigned a year the allotment in accordance with the provisions contained in that rule. According to this rule the year of allotment of the petitioner was 1942, that of. respondent No. 3, Sri Hanuman Sharma 1943, and that of respondent No. 4, Sri Sultan Singh 1945. In April 1955 the question of confirmation of the petitioner and of the three other officers, namely, Sri Hanuman Sharma, Sri Sultan Singh and Sri Ganesh Singh to the rank of Deputy Inspector General of Police was taken up. It was decided by the State of Rajasthan that the petitioner should be superseded and the three officers, Sri Hanuman Sharma, Sri Sultan Singh and Sri Ganesh Singh should be confirmed in the rank of Deputy Inspector General of Police. The case of the petitioner is that in June, 1959 Sri Hanuman Sharma was promoted as Special Inspector-General of Police and on June 2, 1961 the post was encadred and Sri Hanuman Sharma was confirmed in that post. It appears that, on March 22, 1966, Sri Hanuman Sharma was promoted as Inspector General of Police, Rajasthan and on April 28, 1966 Sri Sultan Singh was promoted as Additional Inspector General of Police superseding the petitioner. The notifications of the State of Rajasthan dated March 22, 1966 and April 28. 1966 are annexures 'G' and 'H' to the writ petition. The contention of the petitioner is that he was entitled, as a matter of right, to be appointed as Deputy Inspector General of Police in 1955 and as Inspector General of Police in 1966 as he was shown as the senior-most officer in the Gradation List and the orders of the State of Rajasthan in annexures 'G' and 'H' are in violation of the provisions of Rule 6 of the Indian Police Service (Regulation of Seniority) Rules, 1954. It was also contended for the petitioner that his claim was not considered in 1955 at the time of confirmation of respondents 3 and 4 as Deputy Inspector General of Police or in 1966 at the time of promotion of respondents 3 and 4 to the posts of Inspector General of Police and Additional Inspector General of Police respectively. It was therefore said that the fundamental rights of the petitioner under Arts. 14 and 16 have been violated and the orders of the State of Rajasthan dated March 22, 1966 and April 28, 1966 should be quashed by the grant of a writ in the nature of certiorari with a direction to the 1st respondent to consider the petitioner's claim N1sC1-9 afresh for being promoted to the post of Inspector General of Police.

The question for determination in this case is whether the petitioner was entitled, as of right, to be promoted as Deputy Inspector General of Police in 1955 or as Inspector General of Police in 1966 merely on the ground that his name stood first in the Gradation List prepared under Rule 6 of the Indian Police Service (Regulation of Seniority) Rules, 1954.

Sub-section (1) of s. 3 of the All India Services Act, 1951 (LXI of 1951) empowers the Central Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an All-India Service. In exercise of this power the Central Government framed the Indian Police Service (Regulation of Seniority) Rules, 1954. Rule 2 (a) provides that "Cadre" means "an Indian Police Service Cadre constituted in accordance with rule 3 of the Indian Police Service (Cadre) Rules, 1954". Rule 2 (d) defines "gradation list" to mean "a gradation list prepared under rule 6". Rule 2(g) defines a "senior post" to mean "a post Included under item 1 of each Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 or any post declared equivalent thereto by the State Government concerned". Rule 3 deals with the assignment of year of allotment and reads as follows:-

"6. Gradation List.-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 7".

On behalf of the petitioner Mr. N. C. Chatterjee put forward the argument that Rule 6 required that a gradation list should be prepared strictly in order of seniority in accordance with the provisions of Rules 4, 5, 5-A and 7 and it is not open to the State of Rajasthan to disregard the claim of the petitioner who stood first in the Gradation List and to promote respondents 3 & 4 to the rank of Deputy Inspector General of Police. We are unable to accept the argument put forward on behalf of the petitioner as correct. it is apparent from a perusal of Rules 3 and 8 of the Indian Police Service (Pay) Rules, 1954 read with Part B of Sch. III of those Rules that the posts of Deputy Inspector General of Police, Additional Inspector General of Police and Inspector General of Police in Rajasthan State are selection posts and outside the junior and senior time- scales of pay. Rule 2(a) provides that 'Cadre' and 'Cadre post' shall have the meanings respectively assigned to them in the Indian Police Service (Cadre) Rules, 1954. Rule 3 prescribes the time-scales of pay admissible to members of the Service and reads as follows:

The posts in the Schedule are (a) posts carrying pay above the timescale pay of the Indian Police Service under the State Governments, specified in Section A, (b) posts carrying pay in the senior time-scale of the Indian Police Service under the State Governments including posts carrying special pay (in addition to pay in the time-scale) specified in Section B and (c) posts carrying pay above the timescale or special pay in addition to pay in the time-scale, under the Central Government held by members of the Service, specified in Section C. In category (a) so far as the State of Rajasthan is concerned the posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police are shown as Selection Grade posts carrying pay above the time-scales of pay. It is manifest therefore, on a perusal of Rules 3 and 8 read with Part B of Sch. III, that the three posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police in Rajasthan are Selection posts and outside the junior and senior time- scales of pay mentioned in Rule 3. This conclusion is also supported by para 1 of Part B of Sch. III which states that "the number of posts in the selection grade in a State Cadre shall be equal to twenty per centum of the total number of senior posts borne on that cadre reduced by the number of posts carrying pay above the time-scale". In support of his contention Mr. N. C. Chatterjee referred to the decision of this Court in P. C. Wadhwa v. Union of India.(1) But the ratio of that case has no bearing on the question presented for determination in the present case. The question involved in that case was whether under the relevant rules governing the Indian Police Service, a member thereof was entitled as of right to be promoted to a post in the senior scale as and when a vacancy (except a vacancy in the promotion quota) arose therein and no one senior to him was available for that post. It was held by the majority of the learned Judges that a consideration of the various rules would make it clear beyond doubt that a person in the junior time-scale of the service is as much a cadre officer as one holding a post in the senior time-scale or a post above the timescale and the whole scheme of the rules indicated that a person in the junior scale of pay had a right to hold a post on the senior scale of pay subject to the availability of a post in the senior scale of pay and his seniority in the junior scale of pay. At page 627 of the Report Mudholkar, J. in the course of his judgment expressly observed-"we should not be understood as saying that this right extends to the appointment to a post carrying pay above time-scale of pay or a post carrying a special pay, and the rules governing appointment to such posts were not placed before us". The decision of this Court in P. C. Wadhwa v. Union of India(1) is therefore of no assistance to the petitioner and for the reasons we have already given, we are of the opinion that the three posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police in Rajasthan State are selection posts and outside the junior or senior time-scales of pay. If these three posts are selection posts it is manifest that the State of Rajasthan is not bound to promote the petitioner merely because he stood first in the Gradation List. The circumstance that these posts are classed as 'Selection Grade Posts' itself suggests that promotion to theme posts is not automatic being made only on the basis of ranking in the Gradation List but the question of merit enters in promotion to selection posts. In our opinion, the respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection posts and that it is a well-established rule that promotion to :selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is therefore available. The administrative practice with regard to selection posts is laid down in a letter of the Government of India dated July 31 ,August, 3, 1954 as follows: -