PETITIONER:
D.K MITRA ORS.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT01/07/1985
BENCH:
PATHAK, R.S.
BENCH:
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 Those Rules were repealed and replaced by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.
JUDGMENT:
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,
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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
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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
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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)
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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.
849