D.K Mitra Ors Vs. Union of India &
Ors [1985] INSC 143 (1 July 1985)
PATHAK, R.S. PATHAK, R.S.
CHANDRACHUD, Y.V. ((CJ) MUKHARJI, SABYASACHI
(J)
CITATION: 1985 AIR 1558 1985 SCR Supl. (1)
818 1985 SCC Supl. 243 1985 SCALE (2)336
CITATOR INFO: RF 1986 SC 638 (12) RF 1991
SC1244 (11)
ACT:
Indian Railway Medical Service (District
Medical Officers) Recruitment Rules 1965/Indian Railway Medical Service
(District Medical Officers) Recruitment Rules 1973/Indian Railway Medical
Service (Divisional Medical Officers/Senior Medical Officers) Recruitment Rules
1975/Indian Railway Medical Service (Chief Medical Officers, Additional Chief
medical Officers, Medical Superintendents and Divisional/Senior Medical
Officers) Recruitment Rules 1978-Indian Railway Medical Service-Combined
seniority list of Divisional Medical Superintendent-Validity of-Promotion-
Principle of "non-selection"- Whether equivalent to
"seniority-cum-suitability"-Non-classification of posts into
permanent and temporary-Whether all posts to be regarded as permanent-Persons
appointed substantively whether could be senior to persons appointed in
officiating capacity-Persons appointed to the higher post on the basis of
"selection'- Whether could be junior to the persons appointed
subsequently-Zone wise-Confirmation-Whether permissible in case of an All India
Service-Determination of seniority- Confirmation date whether relevant-Criteria
for fixing inter-se seniority between promotees and direct recruits- What
is-Quota for direct recruitment-Not maintained for long period-Whether there
could be rotation of posts.
HEADNOTE:
The Indian Railways Medical Service consists
of Assistant Divisional Medical Officers Class I (before January 1, 1973
described as Assistant Medical Officers Class II), Divisional Medical Officers,
Medical Superintendents, Chief Medical Officers and Director General of Medical
Services.
The Petitioners in the writ petition who were
Assistant Medical Officers Class II were confirmed, one in 1962 and the others
in 1963. During the years 1970 to 72 they were selected by Departmental
Promotion Committees for officiating appointments to the Class I post of
Divisional Medical Officers. At that time the Indian Railway Medical Service
(District Medical Officers) Recruitment Rules 1965 were applicable. Those Rules
were repealed and replaced by the Indian Railway Medical Service (District
Medical Officers) Recruitment Rules 1973. Under the Rules of 1965 and the Rules
1973 the posts of District Medical Officers were treated as selection posts.
819 The existing pay scale of Rs. 350-900
attached to the post of Assistant Medical Officer was revised by the Third Pay
Commission and split into two A pay scales, a higher Class I scale of Rs.
700-1600 and a lower Class II scale of Rs. 650-1200 and the posts of Assistant
Medical Officers were divided into those carrying the higher pay scale and
those carrying the lower pay scale. The upgraded posts in the higher pay scale
of Rs. 700-1600 were designated as "Assistant Divisional Medical Officers".
The petitioners were placed in the higher pay scale of Rs. 700-1600 and were
designated as Assistant Divisional Medical Officers with effect from January 1,
1973.
The Rules of 1973 were replaced by the Indian
Railway Medical Service (Divisional Medical Officers/Senior Medical Officers)
Recruitment Rules 1975, which were further- replaced by the Indian Railway
Medical Service (Chief Medical Officers, Additional Chief Medical Officers,
Medical Superintendents and Divisional Senior Medical Officers) Recruitment
Rules, 1978. Under these Rules promotion is effected on the principle of
"non-selection", that is, on "seniority-cum-suitability"
basis.
The Rules of 1965 showed that there were 101
posts in the grade of Divisional Medical Officers. The Rules of 1973 mentioned 109
posts and referred to them as permanent posts only. The Railway Ministry for
the promotion of Assistant Medical Officers to the Class I posts of Divisional
Medical Officers indicated the number of anticipated vacancies for the purpose
of permanent promotion and the number of anticipated vacancies for the purpose
of officiating appointments, the number under each category being specified
zone-wise. A Class I Departmental Promotion Committee met on several occasions
and considered the cases of candidates who had completed five years and above
of service as Assistant- Medical Officers for substantive promotion and for
officiating promotion, the field of choice being extended to six times the
number of vacancies. The petitioners were selected on the basis of merit and
appointed to officiate as Divisional Medical Officers on different dates in
1971 and 1972, except petitioner No. 7 who was promoted and appointed in 1974.
The Railway Board on October 30, 1979
published a combined seniority list of Divisional Medical Officers recruited
directly or by promotion. Respondents Nos. 4 to 64 included both promotees and
direct recruits and were shown in that list. The petitioners did not find place
in the seniority list. Subsequently on the basis of that seniority list, some
of the respondent Divisional Medical Officers were appointed on August 31, 1934
to of officiate as Medical Superintendents.
In the Writ Petition under Art. 32 the
petitioners challenged the validity of the combined seniority list dated 30th
October, 1979 of Divisional Medical Officers and of the officiating promotions
to the posts of Medical Superintendents as violative of Arts. 14 and 16 of the
Constitution, contending: that they were promoted as Divisional Medical
Officers much earlier than the promotee respondents; that their promotion was
made by selection on the basis of merit 820 adjudged by the Departmental
Promotion Committees under the Rules of 1965; that they had continued in
service as Divisional Medical Officers against vacancies in permanent posts
without interruption for periods ranging between 8 years to 12 years, and that
the promotee respondents, who had held such posts for shorter periods, had been
confirmed before the petitioners and shown senior in the seniority list and
preferred for promotion as Medical Superintendents;
that the petitioners should have been
confirmed in the normal course; that the promotee respondents have been
confirmed zone-wise, and such confirmation cannot serve as a proper reference
for determine seniority because when confirmation is granted zone-wise, it
depends on the fortuitous accrual of vacancies arising arbitrarily at different
times and in different numbers in different individual zones; that if the date
of confirmation is adopted as the criterion, confirmation should not be
reckoned on a zonal basis. Promotion to the post of Medical Superintendents,
which is an all India cadre post should properly be drawn on an All India basis
and that if confirmation has to be considered zone-wise then for the purpose of
promotion to the all-India cadre of Medical Superintendents the only logical
and uniform criterion should be the total length of continuous service as
Divisional Medical Officers reckoned from the date of promotion; that for the
purpose of fixing seniority in the grade of Divisional Medical Officers the
seniority in the grade OF Assistant Medical Officers or Assistant Divisional
Medical Officers is of no material significance because under the Rules in
force when the promotion in the instant case were made, the petitioners were
governed by the principle of selection on the basis of merit; that the quota
prescribed for direct recruitment and for promotion under the Rules has been
wrongly applied at the stage of confirmation when it should have been applied
at the stage of appointment and that there is no provision for applying the
principle of rotation of vacancies between direct recruits and promotees for
the purpose of determining relative seniority between them.
The respondents, however contended: that the
seniority list has been correctly prepared, it contains the names of only those
officers who were either directly recruited as Divisional Medical Officers or
had been approved for permanent promotion against the quota of posts reserved
for them in vacancies allotted among the individual Railways on the basis of
the cadre position of each Railway, and that none of the petitioners qualified
for inclusion in the seniority list as they had been promoted in an officiating
capacity to temporary vacancies in the posts of Divisional Medical Officers;
that the petitioners have no right to be treated at par with those officers who
were holding permanent posts on a confirmed basis, as confirmation was made on
the basis of their selection for permanent promotion as Divisional Medical
officers and their seniority was also fixed on that basis. According to the
practice followed by the Railway Administration three select lists were
prepared.
List A set out the names of officers selected
for substantive promotion against permanent vacancies. List included the names
of officers selected for officiating promotion against temporary vacancies. The
petitioners were placed in List B. The third list. List C, bore the names of
officers included in List by earlier Depart mental Promotion Committees but not
considered as "suitable yet" for substantive promotion by subsequent
Departmental Promotion Committees. The inter-se seniority between the direct
recruit and the promotee Divisional Medical 821 Officers has been carefully fixed
with reference to the direct recruitment and promotional quotas in force from
time to time, without affecting the date of confirmation of the Divisional
Medical Officers. The petitioners cannot claim inclusion in the impugned
seniority list as none of them had been promoted as Divisional Medical Officers
on a permanent basis against the quota of seats reserved for such promotions
under the relevant Rules, and cannot get weightage of five years of substantive
service rendered in the lower grade because the principle providing such
weightage for seniority has not been applied to the Medical Department of the
Railways.
Allowing the petition, ^
HELD: 1. The seniority list published by the
Railway Ministry's letter No. 752-E/530 (EI A) dated November 22, 1979 as well
as the appointments made to the posts of Medical Superintendents by the Railway
Ministry's letter no.
E(O) III-81 PM6 199 dated August 31, 1981 are
quashed. The Railway Administration is directed to draw up a fresh Seniority
List of Divisional Medical Officers and to make fresh appointments from among
Divisional Medical Officers to the posts of Medical Superintendents. [847 H;
848 A-B]
2. There is nothing to indicate why the
Railway Ministry sought to fill some of the vacancies in the permanent posts on
a substantive basis and the others on an officiating basis. The explanation
offered is that substantive appointments were made to permanent vacancies and
officiating appointments were made to temporary vacancies. The documents on
record do not speak of temporary vacancies at all. There is no material
suggesting the need for treating some of the vacancies as temporary and to show
that some vacancies would have ceased to exist within the foreseeable future or
upon the happening of some anticipated contingency On the contrary, the
petitioners had continued to fill the vacancies to which the petitioners were
appointed should be regarded as permanent vacancies. [831 D- G]
3. The explanation that officiating
appointments were made when some of the candidates considered for substantive
appointment were found to be of inferior calibre for such appointment and,
therefore, some of the vacancies were left to be filled on an officiating basis
is not plausible. The communication of the Railway Ministry to the Departmental
Promotion Committee specifying the number and nature of the appointments to be
made was issued long before the cases of individual officers were examined for
promotion. It was only after the Departmental Promotion Committee had been
informed of the Railway Ministry's requirement that it commenced its task of
selecting candidates for substantive appointment and for officiating
appointment. The material produced by the respondents shows that the
petitioners did not at any time fall within the field of choice for making
substantive appointments. That was because their seniority in the grade of
Assistant Medical Officers did not at the relevant time bring them within the
field of choice for substantive appointment. They were considered for officiating
appointment only, and not for substantive 822 appointment. It was the mere
statistical fact of their seniority as Assistant Medical Officers, and not
their merit, that precluded their consideration for substantive appointment as
Divisional Medical Officers at the relevant time. [831 H; 832 A-D]
4. If from the outset the temporary vacancies
had been regarded as permanent vacancies, and substantive appointments had been
made instead of officiating appointments, the petitioners would have been
appointed substantively to those permanent vacancies. In the entire field of
choice in which they fall, they were found to be the most meritorious. Ever
since their respective appointments in 1971, 1972 and 1974 the petitioners have
continued to serve without interruption as Divisional Medical Officers and were
doing 50 when this writ petition was filed in 1981. They have continued to
serve in the posts for a significant number of years, and there is no
indication that their appointments will come to an end merely because the
vacancies have been described as temporary. There is no material to show that
their confidential Records contained any adverse entries or that otherwise they
were not fit on their merit for substantive appointment to permanent vacancies.
The petitioners have now been appointed Divisional Medical Officers on a
substantive basis. The only reason why they were not originally appointed
substantively to permanent vacancies as Divisional Medical Officers is that
only a limited number of substantive appointments was desired by the Railway
Ministry and the petitioners were not considered for those substantive
appointments because they did not fill within the field of choice, having
regard to their place of seniority in the lower grade of Assistant Medical Officers.
[832 F-H; 833 A-B]
5. The petitioners are entitled to say that
they should be considered at par, for the purpose of fixing seniority, with
those appointed to permanent posts in a substantive capacity. There is nothing
to indicate why they should not be entitled to the benefits which the
substantive holders of permanent posts enjoy. For the purpose of determining
seniority among promotees the petitioners should be treated as having been
appointed to permanent vacancies from the respective dates of their original
appointment and the entire period of officiating service performed by them
should be taken into account as if that service was of the same character as
that performed by the substantive holders of permanent posts. [834 A-C]
Baleshwar Prasad v. State of UP.,[1981] 1 S.C.R. 449, 462 and O.P. Singla v.
Union of India, [1984] 2 S.C.C. 450, followed.
6. In the instant case, as the petitioners
are continuing to hold the posts of Divisional Medical Officers for several
years, the inclusion of their names in List is wholly meaningless. [834 D]
7. If length of continuous service reckoned
from the date of promotion furnishes the criterion for determining seniority
between the petitioners and the substantively appointed Divisional Medical
Officers, that principle should apply 823 with equal vigour as between the
petitioners and those promotee respondents who also began to serve, like the
petitioners, in officiating appointments as Divisional Medical Officers. There
is no reason why such promotee respondents, although appointed subsequently to
the petitioners, should be treated as senior to them. [834 -F]
8. The date of confirmation is the material
date for determining relative seniority. The Railway administration in
according confirmation has been influenced by two principle factors. One is
that confirmation has been considered zone-wise. Confirmation has been made as
vacancies have arisen within a particular zone. The vacancies differ from zone
to zone. They no not arise equally in different zones but turn on factors
peculiar to each zone, such as the strength of the cadre within the zone, and
the differing number of vacancies arising in different zones at different
times. In other words, confirmation based on the placement of an officer within
a particular zone must necessarily be determined by factors confined to that
zone and unrelated to an all India standard. It is apparent that confirmations
limited by such a local perspective cannot serve as a legitimate base for
drawing up a seniority list intended for effecting promotion, to the all India
cadre of Medical Superintendents. To adopt the date of confirmation as the
governing point in such circumstances is to inject an element of inequality
into the very foundation of the promotion process. It is conceivable that the
Railway Administration has adopted the rule of according confirmations
zone-wise for certain practical consideration and the validity of that practice
need not be adjudicated on. But such confirmations cannot legitimately
constitute the basic norm for drawing up a seniority list of Divisional Medical
Officers for the purpose of promotion to the grade of Medical Superintendents.
The principle must be that seniority should be related to the length of
continuous service as Divisional Medical Officers reckoned from the date of
promotion to the post; such service should not include any period served in a
fortuitous, stop-gap or adhoc appointment. [834 G-H; 835 A-E]
9. After implementation of the
recommendations of the Third Pay Commission, all the officers comprising the
two groups were Assistant Medical Officers, and an Assistant Medical Officer
was nothing but as Assistant Medical Officer who drew the higher revised scale
of pay. The conclusion is inescapable that Assistant Divisional Medical Officers
were, for the purpose of promotion as Divisional Medical Officers, governed by
the Rules of 1965 and the Rules of 1973. Those Rules mention Assistant Medical
Officers as a source of recruitment, without referring to any limiting
qualification that they should be officers drawing a Class II scale of pay. The
expression "Assistant Medical Officer" in those Rules is
comprehensive enough to include all Assistant Medical Officers, whether drawing
the class II revised scale of pay or entitled to the Class I revised scale of
pay. And all such Officers were, under those Rules, governed by the principle
of selection on merit for promotion as Divisional Medical Officers. The
Assistant Medical Officers were designated as Assistant Divisional Medical
Officers with effect from January 1, when the Rules of 1965 were still in force
The Rules of 1973 came into force in August, 1973. It is true that when
Assistant Medical Officers were designated as Assistant Divisional Medical
Officers in the revised Class I scale of Rs. 700-1600 by 824 Notification No.
E(GP) 74/1/153 dated July 24,1976, the notification spoke of the
"appointment" of Class II Assistant Medical Officers as Assistant
Divisional Medical Officers, but having regard to the terms of the schedule to
the letter dated December 31, 1974 such notifications must be understood to
mean that the Assistant Officers had been assigned the Class I scale of Rs.
700-1600 and merely described as Assistant Divisional Medical Officers. They
continued to belong to the broad category of "Assistant Medical
Officers". Upon Assistant Medical Officers being designated as Assistant
Divisional Medical Officers under the new scheme, there was no corresponding
amendment in the Rules of 1965 or the Rules of 1973. It is for the first time,
under the Rules of 1978, that the post of Divisional Medical Officer is
described as a "non selection" post to be filled by promotion from
the ranks of Assistant Divisional Medical Officers and by direct recruitment.
The only Assistant Medical Officers now entitled to promotion as Divisional
Medical Officers were those drawing the Class I scale of Rs 700-1600 and
designated as Assistant Divisional Medical Officers". The new sub-division
of Assistant Medical Officers described as Assistant Divisional Medical
Officers was deemed to have taken birth on January 1, 1973 five and a half
years before the Rules of 1978 were brought into force.
It could never have been intended that this
class of Officers should exist in a vacuum where no rules operated.
There was no vacuum because they were
comprehended within the expression "Assistant Medical Officer" in the
Rules of 1965 and the Rules of 1973, and therefore, no amendment was considered
necessary in those Rules to take congnisance of this class. [837 E-H; 838 A-G]
10. The principle of selection by merit,
enunciated in the Rules of 1965 and the Rules of 1973 governed the promotion of
Assistant Medical Officers (including Assistant Divisional Medical Officers) to
the posts of Divisional Medical Officer before the Rules of 1978 came into
force Both before and after January 1, 1973, during the period before the Rules
of 1978 came into force the principle of "non-selection", that is
seniority-cum-suitability in the lower grade, which was provided in the Rules
of 1978 did not apply to the promotion of Assistant Medical Officers (including
Assistant Divisional Medical Officers to the posts of Divisional Medical
Officers. [838 G-H; 839 A]
11. The confirmation of the petitioners and
all other officers appointed to the posts of Divisional Medical Officer before
the Rules of 1978 came into force must be governed by the Rules of 1965 and the
Rules of 1973. The promotions and appointments made under the Rules of 1965, on
the repeal of those rules by the Rules of 1973, fall to be governed by the
Rules of 1973. [839 D-E]
12. The inter se seniority between the
members of a service will ordinarily depend on the date of entry into the
grade. That is an event governed by the Rules of recruitment, whether it be
direct recruitment or pro motion on the basis of selection on merit or on the
basis of seniority in the lower grade or some other factor. Where seniority is
fixed in a grade according to the length of service in that grade, that implies
a reference back to the date of entry. It is wholly immaterial when the
seniority list is prepared. [840 C-E] In the instant case, applying the
criteria for determining seniority vis-a-vis the promotee respondents and the
petitioners to the case of petitioners and the 825 direct recruits, the petitioners
must be held senior to the direct recruits appointed subsequently to them. [842
D-E] O.P. Singla v. Union of India, [1984] 2 S.C.C. 450, followed.
13. The rules themselves do not lay down any
principle of rotation. They specify the quotas only. It was for the first time
on May 26/27, 1976 that the Railway Ministry by its Letter No E(O) I-74/SR-6/10
directed that the seniority of Class II officers of the Medical Department,
promoted to Class I Senior Scale against the quota earmarked for a particular
year vis-a-vis the officers recruited against the direct recruitment quota for
that year will be filed on a rotational basis with reference to the direct
recruitment and promotional quotas in force from time to time." This
directive, however, can be of no assistance to the respondents. It may be open
to an administration to work the quota rule through a principle of rotation,
but that implies that a quota rule is being actively operated and effect is
being given to it. In the present case, the quotas laid down by the Rules were
not observed at all and no direct recruitment was made, during the years 1973
to 1976. Indeed, the process of direct recruitment was employed on a
substantial basis only from 1978 onwards. There was power under Rule 7 of the
Rules of 1973 to relax the provisions of those rules, which would include the
provision requiring the observance of specified quotas for recruitment from
promotional and from direct recruitment sources. [843 G-H; 844 A-D] A.
Janardhana v. Union of India & Ors., [1983] 3 S.C.C. 601, followed, and
A.K. Subraman & Ors. etc. v. Union of India & Ors., [1975] 2 S.C.R. 979
inapplicable.
P.S. Mahal v. Union of India, [1984] 4 S.C.C.
545 and Bishan Sarup Gupta v. Union of India, [1975] Supp. S.C.R 491, referred
to. [847 E]
14. The directly recruited Divisional Medical
Officers are entitled to seniority only from the date of their entry into
service and not from any anterior date, and therefore cannot enjoy seniority
above the petitioners.
ORIGINAL JURISDICTION: Writ Petition No. 8353
of 1981.
Under Article 32 of the Constitution of India
P.P. Rao and Parijat Sinha for the Petitioners.
M.M. Abdul Khader, Girish Chandra and Miss A.
Subhashini for the Respondents.
The Judgment of the Court was delivered by
826 PATHAK, J: By this petition under Article 32 of the Constitution the
petitioners challenge the validity of a combined seniority list dated October
30, 1979 of Divisional Medical Officers and of promotions and officiating
appointments made on the basis of that seniority list to posts of Medical
Superintendents in the Indian Railways Medical Service.
Medical Service in the Indian Railways is
structured in ascending levels. At the base, for the purpose of this case, is
the cadre of Assistant Divisional Medical Officers Class I (who before January
1, 1973 were described as Assistant Medical Officers Class II). Above them is
the cadre of Divisional Medical Officers. The next above is the cadre of
Medical Superintendents. Still higher rank Chief Medical Officers, and the apex
of the hierarchy is held by the Director General of Medical Services.
There are eight petitioners. They were
Assistant Medical Officers Class II and had been confirmed in that grade, one
petitioner in 19 62 and the others in 1963.
During the years 1970 to 1972, the
petitioners were selected by Departmental Promotion Committees for officiating
appointments to the Class I posts of Divisional Medical Officers, when the
Indian Railway Medical Service (District Medical Officers) Recruitment Rules,
1965 were in force. Those rules were repealed and replaced by the Indian
Railways Medical Service (District Medical Officers) Recruitment Rules, 1973.
Under the Rules of 1965 and the Rules of 1973, the posts of District Medical
Officers were treated as selection posts.
To give effect to the recommendations of the
Third Pay Commission, the scales of pay of existing categories of officers were
revised. The existing pay scale of Rs. 350-900 attached to the posts of
Assistant Medical Officer was revised and split into two pay scales, a higher
Class I scale of Rs. 700-1600 and a lower Class II scale of Rs. 650- 1200. The
posts of Assistant Medical Officers were divided into those carrying the higher
pay scale and those carrying the higher pay scale. A very large number of posts
of Assistant Medical Officer were upgraded to the higher pay scale of Rs.
700-1600, and were designated as "Assistant Divisional Medical
Officer". The petitioners were placed in the higher pay scale of Rs.
700-1600 and were designated as Assistant Divisional Medical Officers with
effect from 827 January 1. 1973. The screening of over 2000 Assistant Medical
Officers for the purpose of upgrading them to the higher scale kept the
Screening Committee busy from 1974 to 1976 or so, and practically no recruitment
was made during those year either by permanent promotion or direct recruitment
to the posts of Divisional Medical Officer.
The rules of 1973 were replaced by the Indian
Railway Medical Service (Divisional Medical Officers/Senior Medical Officers)
Recruitment Rules, 1975. These, in their turn, yielded place to the Indian
Railway Medical Service (Chief Medical Officers, Additional Chief Medical
Officers, Medical Superintendents and Divisional Senior Medical Officers
Recruitment Rules, 1978. Under the Rules of 1978, promotion is effected on the
principle of "non-selection", an expression in the Rules which is
construed by the Railway administration as
"seniority-cum-suitability".
By a letter No. E (O) 1-78/SR-6/14 dated
October 30, 1979 the Railway Board published a combined seniority list of
Divisional Medical Officers recruited directly or by promotion. The respondents
Nos. 4 to 64 were shown in that list. They include promotees as well as direct
recruits. The petitioners did not find place in the seniority list.
Subsequently, on the basis of their position
in that seniority list, some of the respondent Divisional Medical Officers were
appointed to officiate as Medical Superintendents by a Railway Board letter No.
E(O)III-81 PN 6/199 dated August 31, 1981.
The petitioners challenge the combined
seniority list of Divisional Medical Officers and the officiating promotions to
the posts of Medical Superintendents. The petitioners contend that the
seniority assigned to the respondents Nos. 4 to 64 and the consequent
promotions made thereafter violate Articles 14 and 16(1) of the Constitution.
The grievance operates in two dimensions, against the promotee respondents and
against the direct recruit respondents.
We propose to consider first the grievance of
the petitioners in respect of the seniority accorded to the promotee
respondents as Divisional Medical Officers and their promotion to officiate as
Medical Superintendents. The case of the petitioners is that the petitioners
were promoted as Divisional Medical Officers much before the promotee
respondents, that their promotion was made 828 by selection on the basis of
merit adjudged by Departmental Promotion Committees under the Rules of 1965,
that they had continued in service as Divisional Medical Officers against
vacancies in permanent posts without interruption for periods ranging
respectively between 8 years to 12 years, and yet the promotee respondents, who
had held such posts for shorter periods, had been confirmed before the
petitioners and shown senior in the seniority list and preferred for promotion
as Medical Superintendents. It is contended that the petitioners should have
been confirmed in the normal course, the order of their promotion against
permanent vacancies. The petitioners submit that the promotee respondents have
been confirmed zone-wise, and such confirmation cannot serve as a proper
reference for determining seniority, because when confirmation is granted
zone-wise, it depends on the fortuitous accrual of vacancies arise arbitrarily
at different times and in different numbers in different individual zone. The
petitioners contend that if the date of confirmation is adopted as the
criterion, confirmation should not be reckoned on a zonal basis, but as if the
vacancies arose in a single all India structure for, the petitioners say, a
seniority list prepared for the purpose of Promotion to the post of Medical
Superintendents, which is an all India cadre, should properly be drawn on an
all India basis. The petitioners urge that if confirmation has to be considered
zone-wise, then for the purpose of promotion to the all India cadre of Medical
Superintendents the only logical and uniform criterion should be the total
length of continuous service as Divisional Medical Officers reckoned from the
date of promotion. It is a criterion which makes the arbitrary chance of
confirmation against fortuitous vacancies in individual zones irrelevant.
Finally, the petitioners urge that for the purpose of fixing seniority in the
grade of Divisional Medical Officers the seniority ruling in the grade of
Assistant Medical Officers or Assistant Divisional Medical Officers is of no
material significance because under the Rules in force when the Promotions in
instant case were made promotions were governed by the principle of selection
on the basis of merit.
The respondents, on the other hand, maintain
that the seniority list has been correctly prepared, that it contains the names
of only those officers who were either directly recruited as Divisional Medical
Officers or had been approved for permanent promotion against the quota of
posts reserved for them in vacancies allotted among the individual Railways on
the basis of the cadre position of each Rail 829 way, and that none of the
petitioners qualified for inclusion in the seniority list as they had been
promoted in an officiating capacity to temporary vacancies in the posts of
Divisional Medical Officers. The respondents contend that the petitioners have
no right to be treated at par with those officers who were holding permanent
posts on a confirmed basis, as confirmation was made on the basis of their
selection for permanent promotion as Divisional Medical Officers. It is stated
that seniority was also fixed on that basis. The respondents rely on a
practice, followed by the Railway Administration for several years, under which
three Select Lists were prepared. List A set out the names of officers selected
for substantive promotion against permanent vacancies. List B included the
names of officers selected for officiating promotion against temporary
vacancies. These officers were also considered subsequently by Departmental
Promotion Committees for permanent promotion along with other eligible officers
in the field. The petitioners were placed in list B. The third list C, bore the
names of officers included in List by earlier Departmental Promotion Committees
but not considered as "suitable yet" for substantive promotion by
subsequent Departmental Promotion Committees. It is stated that in the Railway
Administration, Class II officers were considered for substantive appointment
to permanent vacancies in Class I posts for officiating appointment against
temporary vacancies in Class I posts. In each case, there was a separate
selection by a Departmental Promotion Committee, and the selection was made
zone-wise. The Departmental Promotion Committees, after considering the
officers at five to six times the number of vacancies, made a selection on an
assessment of their Confidential Records. It is stated that officers selected
for officiating appointment, and subsequently coming within the field of
consideration for permanent appointment against permanent vacancies, were also
considered for selection by subsequent Departmental Promotion Committees. In
this manner, it is said, all eligible Class II officers were considered for
permanent appointment against permanent vacancies, and the most meritorious
were selected. It is pointed out that this practice was terminated in the
Medical Department of the Railways after 1972, because with effect from January
1, 1973, the Class II posts of Assistant Medical Officer were upgraded as Class
I posts of Assistant Divisional Medical Officers.
According to the respondents, at no time
during the period ending with the year 1972, whenever Departmental Promotion
Committees met for selecting officers against permanent vacancies 830 did any
of the petitioners fall within the field of consideration for permanent
appointment in view of their place of seniority in the class II posts. It is
also submitted that the promotion of the petitioners, then Assistant Medical
Officers, to the post of Divisional Medical Officers in an officiating capacity
against temporary vacancies cannot be traced to the Rules of 1965 or the Rules
of 1973 because those rules dealt with promotion to permanent vacancies only.
Nor could the petitioners, when they became Assistant Divisional Medical
Officers with effect from January 1, 1973, claim the benefit of the said Rules
because those rules provided for selection of class II officers to class I
posts. The respondents urge that the principle which truly governs the
petitioners in the matter of promotion from the posts of Assistant Divisional
Medical Officers is the principle of seniority-cum-suitability in the former
grade embodied in the Rules of 1978. It is denied that this construction would
amount to giving retrospective operation to the Rules of 1978. It is explained
that when the question of preparing the seniority list arose, the Rules of 1978
were in operation, and they provided for permanent promotion on the basis of
seniority-cum- suitability, and the rule of selection on merit operating under
the earlier Rules no longer prevailed, and, in any event, could not apply when
an Assistant Divisional Medical Officer, which was a Class I post, was
considered for promotion to the Class I post of Divisional Medical Officer
Apparently, the promotee respondents were senior to the petitioners as
Assistant Medical Officers or Assistant Divisional Medical Officers, and that
seniority was made the basis of permanent promotion to the grade of Divisional
Medical Officers. The respondents dispute the proposition that promotion to the
grade of Divisional Medical Officers must be made on the basis of the total
length of service rendered as Assistant Medical Officers and Assistant
Divisional Medical Officers considered on an all India basis as, they assert,
promotion to vacancies has to be considered zone-wise.
A perusal of the Rules of 1965 shows that
there were 101 posts in the grade of Divisional Medical Officers. The Rules of
1973 mention 109 posts. The posts are not divided between permanent posts and
temporary posts, and we must assume that the Rules refer to permanent posts
only. It appears that proceedings were taken by the Railway Administration from
time to time for the promotion of Assistant Medical Officers, to the Class I
posts of Divisional Medical Officers. The Railway Ministry indicated the number
of existing vacancies for the purpose of permanent promotion and the number of 831
anticipated vacancies for the purpose of officiating appointment, the number
under each category being specified zone-wise. The selection for both
categories was made on the basis of merit. It may be noted that both under the
Rules of 1965 and the Rules of 1973, the posts of Divisional Medical Officers
were regarded as selection posts. A Class I Departmental promotion Committee
met on February 20, 1970 and considered the case of candidates who had
completed five years and above of service as Assistant Medical Officers for
such recruitment. Both for substantive promotion and for officiating promotion
the field of choice was extended to six times the number of vacancies. Another
Class I Departmental Promotion Committee met on October 22, 1971 and January 3,
1972. A third Class I Departmental Promotion Committee held its meetings on
September 29 and 30, 1972, and October 3, 1972. The Minutes of the several
meetings indicate that the petitioners Nos. 1 to 8 were selected for
officiating a appointments, some of them being classified as "very
goods" and others as "goods". They were accordingly appointed to
officiate as Divisional Medical Officers on different dates in 1971 and 1972
and the petitioner No. 7, the last to be promoted, was appointed in 1974. The
record shows that these were all regarded as officiating appointments to
vacancies in the Class I posts of Divisional Medical Officers. There is nothing
before us to indicate why the Railway Ministry sought to fill some of the
vacancies in the permanent posts on a substantive basis and the others on an
officiating basis. The respondents say that substantive appointments were made
to permanent vacancies and officiating appointments were made to temporary
vacancies.
We have carefully perused the copies of the
official documents placed on the record before us. They do not speak of
temporary vacancies at all. Nor is there any material suggesting the need for
treating some of the vacancies as temporary. There is nothing to show that the
vacancies would have ceased to exist within the foreseeable future or upon the
happening of some anticipated contingency. On the contrary, the petitioners
have continued to fill the vacancies for several years. In the circumstances we
are of opinion that the vacancies to which the petitioners were appointed
should be regarded as permanents vacancies.
As regards the need for making officiating
appointments, it was explained during oral argument that officiating
appointments were made when some of the candidates considered for substantive
appointment were found to be of inferior calibre for such appointment, and,
therefore, some of the vacancies were left to be filled on 832 an officiating
basis. We are not impressed by the submission. The communication of the Railway
Ministry to the Departmental promotion Committee specifying the number and
nature of the appointments to be made was issued long before the cases of
individual officers were examined for promotion. It was only after the
Departmental Promotion Committee had been informed of the Railway Ministry-s
requirement that it commenced its task of selecting candidates for substantive
appointment and for officiating appointment. The field of choice for each
category, substantive appointment or officiating appointment, was demarcated by
the rule that the officers to be considered would be six times the number of
vacancies. According to the material placed before us by the respondents, the
petitioners did not at any time fall within the field of choice for making
substantive appointments. That was because their seniority in the grade of
Assistant Medical Officers did not at the relevant time bring them within the
field of choice for substantive appointment. They were considered for
officiating appointment only, and not for substantive appointment. It was the
mere statistical fact of their seniority as Assistant Medical Officers, and not
there merit, that precluded their consideration for substantive appointment as
Divisional Medical Officers at the relevant time.
Now the petitioners had been selected for
promotion by the same or similar Class I Departmental Promotion Committees as
those selecting the substantively appointed Divisional Medical Officers, and in
no sense were their functions and responsibilities any different from those of
the substantively appointed Divisional Medical Officers. It seems to us that if
from the outset the temporary vacancies had been regarded as permanent
vacancies, and substantive appointments had been made instead of officiating
appointments, the petitioners would have been appointed substantively to those
permanent vacancies. In the entire field of choice in which they fall, they
were found to be the most meritorious. Ever since their respective appointments
in 1971, 1972 and 1974 the petitioners have continued to serve without
interruption as Divisional Medical Officers and were doing so when this writ
petition was filed in 1981. They have continued to serve in the posts for a
significant number of years, and there is no indication that their appointments
will come to an end merely because the vacancies have been described as
temporary. There is no material to show that their confidential Records
contained any adverse entries or that otherwise they were not fit on there
merit for substantive appointment to permanent vacancies. Indeed, we are told
that the petitioners have now been appointed 833 Divisional Medical Officers on
a substantive basis. It appears that the only reason why they were not
originally appointed substantively to permanent vacancies as Divisional Medical
Officers is that only a limited number of substantive appointments was desired
by the Railway Ministry and the petitioners were not considered for these
substantive appointments because they did not fall within the field of choice,
having regard to their place of seniority in the lower grade of Assistant
Medical Officers.
While there is no doubt that technically.
according to the terms of appointment, the petitioners were appointed on an
officiating basis, we are reminded of the observations of this Court in
Baleshwar Prasad v. State of U.P "We must emphasis that while temporary
and permanent posts have great relevancy in regard to the career of government
servants, keeping posts temporary for long, sometimes by annual renewals for
several years, and denying the claims of the incumbents on the score that their
posts are temporary makes no sense and strikes us as arbitrary, especially when
both temporary and permanent appointments are functionally identified.
If in the normal course, a post is temporary
in the real sense and the appointee knows that his tenure cannot exceed the
post in longevity, there cannot be anything, unfair of capricious in clothing
him with no rights. Not so, if the post is, for certain depart mental or like
purposes, declared temporary, but it is within the ken of both government, and
the appointee that the temporary posts are virtually long-lived. It is
irrational to reject the claim of the temporary appointee on the nominal score
of the terminology of the post. We must also express emphatically that the
principle which has received the sanction of this Court's pronouncements is
that officiating service in a post is for all practical purposes of seniority
as good as service on a regular basis." These are apposite observations bearing
directly on the point before us. We may point out that they were found relevant
by this Court 834 in deciding O.P. Singla v. Union of India. To our mind the
petitioners are entitled to say that they should be considered at par for the
purpose of fixing seniority, with those appointed to permanent posts in a
substantive capacity. Nothing has been placed before us to indicate why they
should not be entitled to the benefits which the substantive holders of
permanent posts enjoy. It seems to us that for the purpose of determining
seniority among promotees the t petitioners should be treated as having been
appointed to permanent vacancies from the respective date of their original
appointment and the entire period of officiating service performed by them should
be taken into account as if that service was of the same character as that
performed by the substantive holders of permanent posts.
As regards the practice on which the
respondents have relied, of maintaining the three lists A, and that the
petitioners were shown in List as being fit only for officiating promotion
against a temporary vacancy, it seems to us that the circumstance makes no
difference to the view taken by us. We are of opinion that on the facts of this
case, when the petitioners are continuing to hold the posts of Divisional
Medical Officers for several years, the continued inclusion of their names in
List is wholly meaningless.
If it is true that the length of continuous
service reckoned from the date of promotion furnishes the criterion for
determining seniority between the petitioners and the substantively appointed
Divisional Medical Officers, that principle should apply with equal vigour as
between the petitioners and those promotee respondents who also began to serve,
like the petitioners, in officiating appointments as Divisional Medical
Officers. There is no reason why such promotee respondents, although appointed
subsequently to the petitioners, should be treated as senior to them.
But it is said, the date of confirmation is
the material date for determining relative seniority, and the promotee
respondents were confirmed before the petitioners.
It appears that the Railway administration in
according confirmation has been influenced by two principal factors.
One is that confirmation has been considered
on zone-wise.
Confirmation has been made as vacancies have
arisen within a particular zone. The vacancies differ from zone to zone.
835 They do not arise equally in different
zones, but turn on factors peculiar to each zone, such as the strength of the
cadre within the zone, and the differing number of vacancies arising in
different zones at different times. In other words, confirmation based on the
placement of an officer within a particular zone must necessarily be determined
by factors confined to that zone and unrelated to an all India standard. It is
apparent that confirmations limited by such a local perspective cannot serve as
a legitimate base for drawing up a seniority list intended for effecting
promotions to the all India cadre of Medical Superintendents. To adopt the date
of confirmation as the governing point in such circumstances is to inject an
element of inequality into the very foundation of the promotion process. I is
conceivable that the Railway Administration has adopted the rule of according
confirmations zone-wise for certain practical considerations and, therefore, we
do not propose to adjudicate on the validity of that practice. But we do lay
down that such confirmations cannot legitimately constitute the basic norm for
drawing up a seniority list of Divisional Medical Officers for the purpose of
promotion to the grade of Medical Superintendents. In the circumstances, the
true principle, in our opinion, must be that seniority should be related to the
length of continuous service as Divisional Medical Officers reckoned from the
date of promotion to the post. This is subject of course to the exception that
such service should not include any period served in a fortuitous, stop-gap or
ad hoc appointment.
Having said this, we may advert now to the
other factor which appears to have influenced the Railway administration in
assigning seniority. The impugned seniority list was prepared in 1979. It was
drawn up when the Rules of 1978 had come into force. It was drawn up at a time
when the new rule of "non-selection" embodied in the Rules of 1978.
Or "seniority-cum-suitability" as the respondents understand it, had
begun to govern promotion to the grade of Divisional Medical Officers. The
Railway administration, following those rules, ignored the fact that the
petitioners had been selected on their merit to those posts long before, and
had occupied them all the years since. The consequence of applying the rule of
seniority-cum-suitability in the lower grade was to wipe out all the advantage
claimed by the petitioners by virtue of the several years of continuous
service, and to give an ascendancy to those Assistant Medical Officers who
although promoted subsequently were confirmed earlier only by 836 reason of
their seniority in the lower grade. The question is whether the rule of
seniority-cum-suitability can prevail. The point would have been capable of
easy resolution but for the complexity introduced in implementing the
recommendations of the Third Pay Commission. The Third Pay Commission
recommended an upward revision of the scale of pay attached to different grades
of posts in the Railways. In the course of implementing the recommendation in
relation to the Medical Department of the Railways, the Railway Ministry issued
a letter No. PC III/74/PS-1/2 dated December 31, 1974 publishing a schedule
showing the revised scales of pay. The schedule contained a special provision
in regard to the posts of Assistant Medical Officer. The entry read:
-----------------------------------------------------------
Designation Authorised Existing rates Revised Revised rates of post Scale of of
non- Scale of non- Pay Practising of Pay Practising allowance allowance (Rs.)
(Rs.) (Rs.) -----------------------------------------------------------
Assistant 350-25- 33-1/3% of 700-40- 1-5 stages Medical 500-30- pay subject
900-EB- Rs. 150/-p.m.
Officer 590-EB- to a minimum 40-1100- 6-10
stages:
30-800- of Rs. 150/- 50-1250- Rs. 200/-p.m.
EB-35-900 per month EB-50- (Class II) 1600
(Class I) 11-15 stages:
Rs. 250/-p.m.
16th stage onwards:
Rs. 300/-p.m. 650-30- 1-8 stages: 740-35- Rs.
150/-p.m. 810-EB 35-880-40 1000-EB- 9-13 stages:
40-1200 Rs. 200/-p.m. 14-16 stages: Rs. 250/p.m.
Remarks: AMOs in the existing Class II scale
of Rs. 350-900 will be screened to determine their fitness for the revised
Class I scale of Rs. 700-1600 and only those found fit will be entitled to this
revised Class I scale. Those not found fit will be entitled only to revised
standard Class II scale of Rs. 650-1200 until they are found fit for Class I by
the Screening Committee. Posts operated in the revised Class 837 I scale will
be designated as "Assistant Divl. Medical Officer". Separate orders
will be issued regarding the number of posts to be placed in each of the two
scales from time to time.
It is apparent that the post of Assistant
Medical Officer originally carried the Class II scale of Rs. 350- 900. That
scale of pay was now substituted by two distinct scales of pay, a higher scale
of Rs. 700-1300 (Class I) and a revised lower scale of Rs. 650-1200 (Class II).
Both scales of pay were shown against the posts of Assistant Medical Officer.
The Class I scale of Rs. 700-1600 was intended for Assistant Medical Officer
who were found fit by a Screening Committee for that scale, and posts operating
in that scale were designated as "Assistant Divisional Medical
Officer". The Assistant Medical Officers not found fit by the Screening
Committee were entitled only to the lower Class II scale of Rs. 650-1200 until
they were subsequently found fit for the Class I scale by the Screening
Committee.
It is clear from the entry in the schedule
that both groups of officers, those drawing the Class I higher scale as well as
those drawing the Class II lower scale, were included under the single category
"Assistant Medical Officer". All Assistant Medical Officers were
screened in order to determine who among them were superior to the others for
the purpose of meriting the higher of the two revised scales of pay. It was merely
as a matter of convenience that Assistant Medical Officers who were allotted
the higher revised scale were said to hold the posts designated as
"Assistant Divisional Medical Officer Assistant", In short, all the
officers comprising the two groups were Assistant Medical Officers, and an
Assistant Divisional Medical Officer was nothing but an Assistant Medical
Officer who drew the higher revised scale of pay. That being so, the conclusion
is inescapable that Assistant Divisional Medical Officers were, for the purpose
of promotion as Divisional Medical Officers, governed by the Rules of 1965 and
the Rules of 1973. Those Rules mention Assistant Medical Officers as a source
of recruitment, without referring to any limiting qualification that they
should be officers drawing a Class II scale of pay. The expression
"Assistant Medical Officer" in those Rules is comprehensive enough to
include all Assistant Medical Officers, whether drawing the Class II revised
scale of pay or entitled to the Class I revised scale of pay. And all such
Officers were, under those Rules, governed by the principle of selection on
merit for promotion as Divisional 838 Medical Officers. It must be remembered
that Assistant Medical Officers were designated as Assistant Divisional Medical
Officers with effect from January 1, 1973, when the Rules of 1965 were still in
force. The Rules of 1973 came into force in August, 1973. It is true that when
Assistant Medical Officers were designated as Assistant Divisional Medical
Officers in the revised Class I scale of Rs. 700- 1600 by a notification such
as Notification No. E (GP) 74/1/153 dated July 24, 1976, the notification spoke
of the "appointment" of Class II Assistant Medical Officers as
Assistant Divisional Medical Officers, but having regard to the terms of the
schedule to the Railway University's letter dated December 31, 1974 referred to
earlier, such notification must be understood to mean that the Assistant
Medical Officers had been assigned the Class I scale of Rs. 700- 1600 and
merely described as Assistant Divisional Medical Officers. As explained
earlier, they continued to belong to the broad category "Assistant Medical
Officers".
In this connection, it is significant that
upon Assistant Medical Officers being designated as Assistant Divisional Medical
Officers under the new scheme, there was no corresponding amendment in the
Rules of 1965 or the Rules of 1973. It is for the first time, under the Rules
of 1978, that we find that the post of Divisional Medical Officer is described
as a "non-selection" post to be filled by promotion from the ranks of
Assistant Divisional Medical Officers and by direct recruitment. In other
words, the only Assistant Medical Officers now entitled to promotion as
Divisional Medical Officers were those drawing the Class I scale of Rs.
700-1600 and designated as "Assistant Divisional Medical Officers".
What is important to remember is that the new sub-division of Assistant Medical
Officers described as Assistant Divisional Medical Officers was deemed to have
taken birth on January 1, 1973. five and a half years before the Rules of 1978
were brought into force.
It could never have been intended that this
class of officers should exist in a vacuum where no rules operated.
There was no vacuum because they were
comprehended within the expression "Assistant Medical Officer" in the
Rules of 1965 and the Rules of 1973, and therefore no amendment was considered
necessary in those Rules to take cognizance of this class or sub-division.
We hold that the principle of selection by
merit, enunciated in the Rules of 1965 and the Rules of 1973 governed the
promotion of Assistant Medical Officers (including Assistant Divisional Medical
Officers) to the posts of Divisional Medical Officer before the Rules of 1978
came into force. Both before and after January 1, 1973, 839 during the period
before the Rules of 1978 came into force, the principle of
"non-selection", that is seniority-cum- suitability in the lower
grade, which was provided in the Rules of 1978 did not apply to the promotion
of Assistant Medical Officers (including Assistant Divisional Medical Officers)
to the posts of Divisional Medical officers.
It is also beyond dispute that having regard
to the provisions of the Rules of 1978, those Rules can apply only to
promotions and appointments to the posts of Divisional Medical Officers made
under them, that is from and after August 12, 1978. They cannot affect
promotions and appointments already made before that date. And as the act of
confirmation does not amount to a fresh appointment but merely to setting the
seal of approval on an appointment already made, it must follow that the Rules
of 1978 cannot be applied for the purpose of confirming promotions and
appointments made under the earlier Rules.
Consequently, upon all the considerations set
forth earlier, the confirmation of the petitioners and all other officers
appointed to the posts of Divisional Medical Officer before the Rules of 1978
came into force must be governed by the Rules of 1965 and the Rules of 1973. It
may be noted that promotions and appointments made under the Rules of 1965, on
the repeal of those rules by the Rules of 1973, fall to be governed by the
Rules of 1973, for while repealing tho Rules of 1965 Rule 9 of the Rules of
1973 provides:
"Provided that anything done or any
action under the rules so repealed shall be deemed to have been done or taken
under the corresponding provisions of these rules." Significantly, such a
saving provision is absent in the Rules of 1978. this is as clear an indication
as any that the scheme under the Rules of 1978 marked a complete departure from
that embodied in the earlier Rules. We hold that the confirmation of the
petitioners and other officers appointed as Divisional Medical Officers fall to
be considered under the Rules of 1965 or the Rules of 1973 and not under the
Rules of 1978. Accordingly, the rule of seniority-cum-suitability cannot be
applied to the petitioners and the promotee 840 respondents, and all promotee
respondents who were promoted to the posts of Divisional Medical Officer
subsequent to the petitioners must be regarded as junior to them,
notwithstanding that they may have ranked senior to the petitioners in the
grade of Assistant Medical Officers (including Assistant Divisional Medical
Officers). This principle will rule even where confirmation is made zone- wise,
for in the absence of anything adverse in the officer's conduct, quality of
work or other relevant factor, confirmation should follow the order in which
the original appointments have been made.
The respondents point out that the impugned
Seniority List was prepared in 1979, when the Rules of 1978 were in force, and
therefore the principle of seniority-cum-merit was made the basis of the
Seniority List. It is immaterial, in our opinion, that the Seniority List was
prepared in 1979. The inter se seniority between the members of a service will
ordinarily depend on the date of entry into the grade. That is an event
governed by the rales of recruitment, whether it be direct recruitment or
promotion on the basis of selection on merit or on the basis of seniority in
the lower grade or some other factor. Where seniority is fixed in a grade
according to the length of service in that grade, that implies a reference back
to the date of entry. It is wholly immaterial when the Seniority List is
prepared.
We approach the second part of this case now.
The petitioners challenge the seniority assigned to the direct recruit
respondents in the impugned Seniority List. They contend that the quota
prescribed for direct recruitment and for promotion under the Rules has been
wrongly applied at the stage of confirmation when it should have been applied
at the stage of appointment. They also contend that there is no provision for
applying the principle of rotation of vacancies between direct recruits and
promotees for the purpose of determining relative seniority between them. And
even if it can be said that the directive issued in 1976 constitutes a valid
rule of rotation, it is open to prospective operation only and cannot be
applied retrospectively. Finally, the petitioners urge that the promotees
should be held entitled to a weightage of five years on the basis of their
service in the Class II posts of Assistant Medical Officers when considering
their seniority in relation to direct recruits.
841 The case of the respondents that the
inter se seniority between the direct recruit and the promotee Divisional
Medical Officers has been carefully fixed with reference to the direct
recruitment and promotional quotas in force from time to time, without
affecting the date of confirmation of the Divisional Medical Officers. It is
explained that where the promotees have been promoted in excess of their quota
in a particular year, they have to be pushed down to a later year for absorption
when due within their quota, and seniority has been fixed accordingly. It is
pointed out that for some years direct recruitment could not be resorted to on
the required scale as the restructuring of the Medical Department was under
consideration with a view to improving the avenues of promotion. In consequence
direct recruits appointed in later years were brought up higher in the
Seniority List in order to provide them their due position according to the
quota of vacancies laid down for direct recruitment. The respondents also point
out that Divisional Medical Officers were allowed to count seniority only from
the date of permanent absorption if such absorption was within their quota. It
is stated that from 1973 onwards representations were made by and on behalf of
promotees Divisional Medical Officers to give them weightage in respect of
their officiating service for the purpose of seniority in the cadre of
Divisional Medical Officers vis-a- vis the direct recruits, and after giving
due consideration to those representations and taking into regard the judgment
of this Court in A. K. Subraman & Ors. etc. v. Union of India & Ors.,
it was decided that inter se seniority between direct recruit Divisional
Medical Officers and promotee Divisional Medical Officers promoted permanently
should be fixed on a rotational basis with reference to the direct recruitment
and promotional quotas in force from time to time. It is maintained that the
impugned Seniority List was prepared on the basis of those principles. The petitioners,
it is urged, cannot claim inclusion in that list as none of them had been
promoted as Divisional Medical Officers on a permanent basis against the quota
of seats reserved for such promotions under the relevant Rules. The claim of
the petitioners to a weightage of five years of substantive service rendered in
the lower grade is disputed by the respondents on the ground that the principle
providing such weightage for seniority has not been applied to the Medical
Department of the Railways in view of the structural pattern of the Department.
842 The objection of the Respondents that the
petitioners were not appointed to the posts of Divisional Medical Officers on a
permanent basis and therefore they were not entitled to inclusion in the
Seniority List can be disposed of shortly. We have already held while examining
the case of the petitioners vis-a-vis the promotee respondents that the
petitioners were entitled to be treated at par with substantively appointed
Divisional Medical Officers for the purpose of fixing seniority, and the
circumstance that they were appointed in an officiating capacity was of no
significance in this regard. We have pointed out that for determining seniority
among promotees the petitioners should be treated as having been appointed to
permanent vacancies from the respective dates of their original appointments
and the entire period of their officiating service should be taken into account
as if that service was of the same character as that performed by the
substantive holders of permanent posts. We have held further that the promotee
respondents appointed subsequently to the petitioners must be regarded as
junior to them even though senior in the lower grade. We have detailed the
reasons for taking this view. Applying the same criteria for determining the
seniority between the petitioners and the direct recruits, we are of opinion
that the petitioners must be held senior to the direct recruits appointed
subsequently to them. In this connection, it would be permissible to quote from
the judgment of this Court in O. P. Singla (Supra), where the question was of
fixing seniority between temporary promotees and direct recruits:
"Promotees, who were appointed under
Rule 16 have been officiating continuously, without a break, as Additional
District and Sessions Judges for a long number of years. It is both unrealistic
and unjust to treat them as aliens to the Service merely because the
authorities did not wake up to the necessity of converting the temporary posts
into permanent ones even after some of the promotees had worked in those posts
from five to twelve years.... The fact that temporary posts created in the
Service under Rule 16(1) had to be continued for years on end shows that the
work assigned to the holders of those posts was, at least at some later stage,
no longer of a temporary nature. And yet instead of converting the temporary
posts into permanent ones, the authorities slurred over the matter and
imperilled, though unwittingly 843 the reasonable expectations of the promotees
.........
It is not fair to tell the promotees that
they will rank as juniors to direct recruits who were appointed five to ten
years after they have officiated continuously in the posts created in the
Service and held by them, though such posts may be temporary." And
further:
"The best solution to the situation
which confronts us is to apply the rule which was adopted in S.B.
Patwardhan v. State of Maharashtra (1977) 3
SCR 775. It was held by this Court in that case that all other factors being
equal, continuous officiation in a non- fortuitous vacancy ought to receive due
recognition in fixing seniority between persons who are recruited from
different sources, so long as they belong to the same cadre, discharge similar
functions and bear the same responsibilities. Since the rule of 'quota and
rota' ceases to apply when appointments are made under Rule 16 and 17, the
seniority of direct recruits and promotees appointed under those Rules must be
determined according to the dates on which direct recruit were appointed to
their respective posts and the dates from which the promotees have been
officiating continuously either in temporary posts created in the Service or in
substantive vacancies to which they were appointed in a temporary
capacity." Considerable emphasis has been laid by the respondents on the
fact that in the present case the pertinent Rules laid down the respective
direct recruitment and promotional quotas from time to time, and it was
necessary to adjust the seniority between the direct recruit Divisional Medical
Officers and the promotee Divisional Medical Officers in such a way that the
quotas were maintained from year to year. This implied, it is urged, the
rotation of vacancies between the two classes reserving them for one or the
other in an order which would ensure compliance with the quotas.
The Rules themselves do not lay down any
principle of rotation. They specify the quotas only. It was for the first time
on May 26/27, 1976 that the Railway Ministry by its letter No.E(O)I-74/SR-6/10
directed that "the seniority of Class II officers of the Medical
Department, 844 promoted to Class I Senior Scale against the quota earmarked
for a particular year vis-a-vis the officers recruited against the direct
recruitment quota for that year will be fixed on a rotational basis with
reference to the direct recruitment and promotional quotas in force from time
to time." This directive, however, can be of no assistance to the
respondents. It may be open to an administration to work the quota rule through
a principle of rotation, but that implies that a quota rule is being actively
operated and effect is being given to it. In the present case, it must be borne
in mind that the quotas laid down by the Rules were not observed at all by the
Railway administration, and no direct recruitment was made during the years
1973 to 1976.
Indeed, the process of direct recruitment was
employed on a substantial basis only from 1978 onwards. Only one officer
appears to have inducted by direct recruitment into the grade in 1977 and
apparently none before. The grade of Divisional Medical Officers was manned by
promotees selected on their merit under the Rules of 1965 and the Rules of 1973
There was power under Rule 7 of the Rules of 1973 to relax the provisions of
those Rules, which would include the provision requiring the observance of
specified quotas for recruitment from promotional and from direct recruitment
source It seems to us that the present case falls within the dicta of this
Court in A. Janardhana v. Union of India and Others where the Court said:
"We do propose to examine and expose an
extremely undesirable, unjust and inequitable situation emerging in service
jurisprudence from the precedents namely, that a person already rendering
service as a promotee has to go down below a person who comes into service
decades after the promotee enters the service and who may be a schoolian, if
not in embryo, when the promotee on being promoted on account of the exigencies
of service as required by the Government started rendering service." and
concluded with the observations:
"Even where the recruitment to a service
is from more than one source and a quota is fixed for each service 845 yet more
often the appointing authority to meet its exigencies of service exceeds the quota
from the easily available source of promotees because the procedure for making
recruitment from the market by direct recruitment is long, prolix and time
consuming. The Government for exigencies of service, for needs of public
services and for efficient administration, promote persons easily available
because in hierarchical service one hopes to move upward. After the promotee is
promoted, continuously renders service and is neither found wanting nor
inefficient and is discharging his duty to the satisfaction of all, a fresh
recruit from the market years after promotee was inducted in the service comes
and challenges all the past recruitments made before he was borne in service
and some decisions especially the ratio in Jaisinghani case as interpreted in
two B.S. Gupta cases gives him an advantage to the extent of the promotee being
preceded in seniority by direct recruit who enters service long after the
promotee was promoted. When the promotee was promoted and was rendering
service, the direct recruit may be a schoolian or college going boy.
He emerges from the educational institution,
appears at a competitive examination and starts challenging everything that had
happened during the period when he has had nothing to do with service . If this
has not a demoralising effect on service we fail to see what other inequitous
approach would be more damaging. It is, therefore, time to clearly initiate a
proposition that a direct recruit who comes into service after the promotee was
already unconditionally and without reservation promoted and whose promotion is
not shown to be invalid or illegal according to relevant statutory or
non-statutory rules should not be permitted by any principle of seniority to
secure a march over a promotee because that itself being arbitrary would be
violative of Articles 14 and 16." In the present case, there was no direct
recruitment upto 1977 for certain administrative reasons, and no observance of
the quota system embodied in the prevailing Rules. The Assistant Medical Officers
were pressed into service, promoted as Divisional Medical 846 Officers and were
alone responsible for assuming the burden and discharging the functions and
duties of those posts during all the years until direct recruitment was made.
It would be grossly unjust and discriminatory in the circumstances to require
them to be junior to direct recruits brought in some years later.
The respondents rely on A.K. Subraman
(supra). In that case, however, the facts which the Court took into
consideration and upon which it proceeded to render judgment were different.
The point raised in the present case falls more appropriately within the scope
of the observations in A. Janardhana (supra), to which elaborate reference has
been made earlier. Indeed, when A.K. Subraman (supra) was considered
subsequently by this Court in P.S. Mahal v. Union of India the Court expressly
referred to the exception implied in Bishan Sarup Gupta v. Union of India as
the effect of a serious deviation from the quota rule, and it recorded its agreement
with A Janardhana (supra). It said:
"But this rotational rule of seniority
can work only if the quota rule is strictly implemented from year to year. Some
slight deviations from the quota rule may not be material but as pointed out by
Palekar, J. in the Bishan Sarup Gupta case, "if there is enormous
deviation, other considerations may arise". If the rotational rule of
seniority is to be applied for determining seniority amongst officers promoted
from different sources, the quota rule must be observed. The application of the
rotational rule of seniority when there is large deviation from the quota rule
in making promotions is bound to create hardship and injustice and result in
impetmissible discrimination. That is why this Court pointed out in A.K. Subraman
case that '..when recruitment is from two or several sources it should be
observed that there is no inherent invalidity in introduction of quota system
and to work it out by a rule of rotation. The existence of a quota and
rotational rule, by itself, will not violate Article 14 or Article 16 of the
847 Constitution It is the unreasonable implementation of the same which may,
in a given case, attract the frown of the equality clause.' (SCC para 28,
p.333:SCC (L&S) p.50) The rotational rule of seniority is inextricably
linked up with the quota rule and if the quota rule is not strictly implemented
and there is large deviation from it regularity from year to year, it would be
grossly discriminatory and unjust to give effect to the rotational rule of seniority.
We agree wholly with the observation of D.A. Desai, J. in A Janardhana v. Union
of India that '...where the quota rule is linked with the seniority rule if the
first breaks down or is illegally not adhered to giving effect to the second
would be unjust, inequitous and improper.' (SCC para 29, p.621 :SCC (L&S)
p. 487) This was precisely the reason why the Court in the first Bishan Sarup
Gupta case held that with the collapse of the quota rule, the rule of seniority
set out in Rule 1 (f) (iii) also went." In our opinion, the directly
recruited Divisional Medical Officers are entitled to seniority only from the
date of their entry into service and not from any anterior date, and therefore
cannot enjoy a seniority above the petitioners. The date of appointment to a
permanent vacancy, whether of a promotee or a direct recruit, will be the date
for determining the seniority of the officer. We may also observe that there is
no ground for detaining the confirmation of the petitioners merely because the
quota reserved for direct recruitment has not been filled.
As regards the claim to weightage made by the
petitioners on the basis of their service in the lower grade of Assistant
Medical Officers, we find no substance in the claim because the administrative
instructions issued under the Railway Board's letter No. E.54/SR-6/1/2 dated
March 10, 1955, on which the petitioners rely, did not apply to the Medical
Department of the Railways.
In the result, the writ petition is allowed,
the Seniority List published by the Railway Ministry's letter No. 752-E/530
(E1A) 848 dated November 22, 1979 as well as the appointments made to the posts
of Medical Superintendents by the Railway Ministry's letter No. E(O)III-81
PM6/199 dated August 31, 1981 are quashed. The Railway administration is
directed to draw up a fresh Seniority List of Divisional Medical Officers in
accordance with the principles laid down in the judgment and to make fresh
appointments from among the Divisional Medical Officers to the posts of Medical
Superintendents. The petitioners are entitled to their costs against
respondents Nos. 1, 2 and 3.
A.P.J. Petition allowed.
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