{"id":27809,"date":"1985-07-01T00:00:00","date_gmt":"1985-06-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-k-mitra-ors-vs-union-of-india-and-ors-on-1-july-1985"},"modified":"2017-06-06T20:04:13","modified_gmt":"2017-06-06T14:34:13","slug":"d-k-mitra-ors-vs-union-of-india-and-ors-on-1-july-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-k-mitra-ors-vs-union-of-india-and-ors-on-1-july-1985","title":{"rendered":"D.K Mitra Ors vs Union Of India And Ors on 1 July, 1985"},"content":{"rendered":"
Supreme Court of India<\/div>\n
D.K Mitra Ors vs Union Of India And Ors on 1 July, 1985<\/div>\n
Equivalent citations: 1985 AIR 1558, \t\t 1985 SCR Supl. (1) 818<\/div>\n
Author: R Pathak<\/div>\n
Bench: Pathak, R.S.<\/div>\n
           PETITIONER:\nD.K MITRA ORS.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT01\/07\/1985\n\nBENCH:\nPATHAK, R.S.\nBENCH:\nPATHAK, R.S.\nCHANDRACHUD, Y.V. ((CJ)\nMUKHARJI, SABYASACHI (J)\n\nCITATION:\n 1985 AIR 1558\t\t  1985 SCR  Supl. (1) 818\n 1985 SCC  Supl.  243\t  1985 SCALE  (2)336\n CITATOR INFO :\n RF\t    1986 SC 638\t (12)\n RF\t    1991 SC1244\t (11)\n\n\nACT:\n     Indian  Railway   Medical\tService\t  (District  Medical\nOfficers)  Recruitment\tRules  1965\/Indian  Railway  Medical\nService\t (District   Medical  Officers)\t  Recruitment  Rules\n1973\/Indian  Railway  Medical  Service\t(Divisional  Medical\nOfficers\/Senior\t  Medical    Officers)\t Recruitment   Rules\n1975\/Indian Railway Medical Service (Chief Medical Officers,\nAdditional Chief  medical Officers,  Medical Superintendents\nand Divisional\/Senior  Medical Officers)  Recruitment  Rules\n1978-Indian Railway  Medical Service-Combined seniority list\nof Divisional  Medical Superintendent-Validity of-Promotion-\nPrinciple  of\t\"non-selection\"-   Whether   equivalent\t  to\n\"seniority-cum-suitability\"-Non-classification of posts into\npermanent and  temporary-Whether all posts to be regarded as\npermanent-Persons appointed  substantively whether  could be\nsenior to  persons appointed in officiating capacity-Persons\nappointed to  the higher  post on  the basis of \"selection'-\nWhether\t could\t be  junior   to   the\t persons   appointed\nsubsequently-Zone wise-Confirmation-Whether  permissible  in\ncase of\t an All\t India Service-Determination  of  seniority-\nConfirmation  date   whether  relevant-Criteria\t for  fixing\ninter-se seniority  between promotees  and direct  recruits-\nWhat is-Quota for direct recruitment-Not maintained for long\nperiod-Whether there could be rotation of posts.\n\n\n\nHEADNOTE:\n     The  Indian   Railways  Medical   Service\tconsists  of\nAssistant  Divisional\tMedical\t Officers  Class  I  (before\nJanuary 1,  1973 described  as\tAssistant  Medical  Officers\nClass\tII),\tDivisional   Medical\tOfficers,    Medical\nSuperintendents, Chief Medical Officers and Director General\nof Medical Services.\n     The Petitioners in the writ petition who were Assistant\nMedical Officers  Class II  were confirmed,  one in 1962 and\nthe others  in 1963.  During the  years 1970 to 72 they were\nselected   by\t Departmental\tPromotion   Committees\t for\nofficiating appointments  to the  Class I post of Divisional\nMedical Officers.  At that  time the  Indian Railway Medical\nService (District  Medical Officers)  Recruitment Rules 1965\nwere applicable.  Those Rules  were repealed and replaced by\nthe  Indian   Railway  Medical\t Service  (District  Medical\nOfficers) Recruitment  Rules 1973.  Under the  Rules of 1965\nand the\t Rules 1973  the posts\tof District Medical Officers\nwere treated as selection posts.\n819\n     The existing  pay scale  of Rs. 350-900 attached to the\npost of\t Assistant Medical  Officer was revised by the Third\nPay Commission\tand split  into two  A pay  scales, a higher\nClass I\t scale of Rs. 700-1600 and a lower Class II scale of\nRs. 650-1200  and the  posts of\t Assistant Medical  Officers\nwere divided  into those  carrying the\thigher pay scale and\nthose carrying\tthe lower  pay scale.  The upgraded posts in\nthe higher  pay scale  of Rs.  700-1600 were  designated  as\n\"Assistant Divisional  Medical\tOfficers\".  The\t petitioners\nwere placed in the higher pay scale of Rs. 700-1600 and were\ndesignated as  Assistant Divisional  Medical  Officers\twith\neffect from January 1, 1973.\n     The Rules\tof 1973\t were replaced by the Indian Railway\nMedical Service\t (Divisional Medical Officers\/Senior Medical\nOfficers)  Recruitment\t Rules\t1975,  which  were  further-\nreplaced  by  the  Indian  Railway  Medical  Service  (Chief\nMedical Officers, Additional Chief Medical Officers, Medical\nSuperintendents\t and  Divisional  Senior  Medical  Officers)\nRecruitment Rules,  1978. Under\t these\tRules  promotion  is\neffected on  the principle  of \"non-selection\",\t that is, on\n\"seniority-cum-suitability\" basis.\n     The Rules\tof 1965\t showed that there were 101 posts in\nthe grade  of Divisional Medical Officers. The Rules of 1973\nmentioned 109  posts and referred to them as permanent posts\nonly. The  Railway Ministry  for the  promotion of Assistant\nMedical Officers  to the Class I posts of Divisional Medical\nOfficers indicated  the number\tof anticipated vacancies for\nthe  purpose  of  permanent  promotion\tand  the  number  of\nanticipated  vacancies\t for  the   purpose  of\t officiating\nappointments, the number under each category being specified\nzone-wise. A Class I Departmental Promotion Committee met on\nseveral occasions and considered the cases of candidates who\nhad completed  five years and above of service as Assistant-\nMedical\t Officers   for\t substantive   promotion   and\t for\nofficiating promotion, the field of choice being extended to\nsix times  the number  of vacancies.  The  petitioners\twere\nselected on the basis of merit and appointed to officiate as\nDivisional Medical  Officers on\t different dates in 1971 and\n1972, except petitioner No. 7 who was promoted and appointed\nin 1974.\n     The Railway  Board on  October  30,  1979\tpublished  a\ncombined  seniority  list  of  Divisional  Medical  Officers\nrecruited directly or by promotion. Respondents Nos. 4 to 64\nincluded both  promotees and  direct recruits and were shown\nin that\t list. The  petitioners did  not find  place in\t the\nseniority list.\t Subsequently on the basis of that seniority\nlist, some  of the  respondent Divisional  Medical  Officers\nwere appointed on August 31, 1934 to of officiate as Medical\nSuperintendents.\n     In the  Writ Petition  under Art.\t32  the\t petitioners\nchallenged the validity of the combined seniority list dated\n30th October, 1979 of Divisional Medical Officers and of the\nofficiating   promotions    to\t the\tposts\tof   Medical\nSuperintendents as  violative of  Arts. 14  and\t 16  of\t the\nConstitution,  contending:   that  they\t  were\tpromoted  as\nDivisional Medical  Officers much  earlier than the promotee\nrespondents; that  their promotion  was made by selection on\nthe basis of merit\n820\nadjudged by  the Departmental Promotion Committees under the\nRules of  1965;\t that  they  had  continued  in\t service  as\nDivisional Medical  Officers against  vacancies in permanent\nposts without  interruption for\t periods ranging  between  8\nyears to  12 years,  and that  the promotee respondents, who\nhad held  such posts for shorter periods, had been confirmed\nbefore the  petitioners and  shown senior  in the  seniority\nlist and preferred for promotion as Medical Superintendents;\nthat the  petitioners should  have  been  confirmed  in\t the\nnormal course;\tthat  the  promotee  respondents  have\tbeen\nconfirmed zone-wise, and such confirmation cannot serve as a\nproper\treference   for\t determine  seniority  because\twhen\nconfirmation  is   granted  zone-wise,\tit  depends  on\t the\nfortuitous  accrual  of\t vacancies  arising  arbitrarily  at\ndifferent  times  and  in  different  numbers  in  different\nindividual zones;  that\t if  the  date\tof  confirmation  is\nadopted\t as   the  criterion,  confirmation  should  not  be\nreckoned on  a zonal basis. Promotion to the post of Medical\nSuperintendents, which\tis an  all India  cadre post  should\nproperly be  drawn  on\tan  All\t India\tbasis  and  that  if\nconfirmation has  to be\t considered zone-wise  then for\t the\npurpose of  promotion to  the  all-India  cadre\t of  Medical\nSuperintendents\t the  only  logical  and  uniform  criterion\nshould\tbe   the  total\t length\t of  continuous\t service  as\nDivisional  Medical  Officers  reckoned\t from  the  date  of\npromotion; that\t for the  purpose of fixing seniority in the\ngrade of  Divisional Medical  Officers the  seniority in the\ngrade OF  Assistant Medical Officers or Assistant Divisional\nMedical Officers  is of\t no  material  significance  because\nunder the  Rules in  force when the promotion in the instant\ncase  were  made,  the\tpetitioners  were  governed  by\t the\nprinciple of selection on the basis of merit; that the quota\nprescribed for\tdirect recruitment  and for  promotion under\nthe  Rules   has  been\twrongly\t applied  at  the  stage  of\nconfirmation when  it should  have been applied at the stage\nof appointment\tand that  there is no provision for applying\nthe  principle\tof  rotation  of  vacancies  between  direct\nrecruits  and  promotees  for  the  purpose  of\t determining\nrelative seniority between them.\n     The respondents,  however contended: that the seniority\nlist has  been correctly  prepared, it contains the names of\nonly those  officers who  were either  directly recruited as\nDivisional  Medical   Officers\tor  had\t been  approved\t for\npermanent promotion  against the quota of posts reserved for\nthem in\t vacancies allotted among the individual Railways on\nthe basis  of the  cadre position  of each Railway, and that\nnone of\t the petitioners  qualified  for  inclusion  in\t the\nseniority list\tas they\t had been promoted in an officiating\ncapacity to  temporary vacancies  in the posts of Divisional\nMedical Officers;  that the  petitioners have no right to be\ntreated\t at   par  with\t those\tofficers  who  were  holding\npermanent posts\t on a  confirmed basis,\t as confirmation was\nmade on the basis of their selection for permanent promotion\nas Divisional  Medical officers and their seniority was also\nfixed on  that basis.  According to the practice followed by\nthe Railway Administration three select lists were prepared.\nList  A\t  set  out   the  names\t of  officers  selected\t for\nsubstantive  promotion\tagainst\t permanent  vacancies.\tList\nincluded the  names of\tofficers  selected  for\t officiating\npromotion against  temporary vacancies. The petitioners were\nplaced in  List B. The third list. List C, bore the names of\nofficers included in List by earlier Depart mental Promotion\nCommittees  but\t  not  considered   as\t\"suitable  yet\"\t for\nsubstantive promotion  by subsequent  Departmental Promotion\nCommittees.  The   inter-se  seniority\tbetween\t the  direct\nrecruit and the promotee Divisional Medical\n821\nOfficers has  been carefully  fixed with  reference  to\t the\ndirect recruitment and promotional quotas in force from time\nto time,  without affecting  the date of confirmation of the\nDivisional Medical  Officers. The  petitioners cannot  claim\ninclusion in the impugned seniority list as none of them had\nbeen promoted  as Divisional Medical Officers on a permanent\nbasis  against\t the  quota   of  seats\t reserved  for\tsuch\npromotions  under   the\t relevant   Rules,  and\t cannot\t get\nweightage of  five years  of substantive service rendered in\nthe  lower   grade  because  the  principle  providing\tsuch\nweightage for  seniority has not been applied to the Medical\nDepartment of the Railways.\n     Allowing the petition,\n^\n     HELD: 1.  The seniority  list published  by the Railway\nMinistry's letter  No. 752-E\/530  (EI A)  dated November 22,\n1979 as\t well as  the appointments  made  to  the  posts  of\nMedical Superintendents by the Railway Ministry's letter no.\nE(O) III-81  PM6 199  dated August 31, 1981 are quashed. The\nRailway Administration\tis  directed  to  draw\tup  a  fresh\nSeniority List\tof Divisional  Medical Officers\t and to make\nfresh appointments from among Divisional Medical Officers to\nthe posts of Medical Superintendents. [847 H; 848 A-B]\n     2.\t There\tis  nothing  to\t indicate  why\tthe  Railway\nMinistry sought\t to  fill  some\t of  the  vacancies  in\t the\npermanent posts\t on a substantive basis and the others on an\nofficiating  basis.   The  explanation\t offered   is\tthat\nsubstantive appointments  were made  to permanent  vacancies\nand  officiating   appointments\t were\tmade  to   temporary\nvacancies. The documents on record do not speak of temporary\nvacancies at  all. There  is no material suggesting the need\nfor treating  some of the vacancies as temporary and to show\nthat some  vacancies would  have ceased\t to exist within the\nforeseeable future or upon the happening of some anticipated\ncontingency On\tthe contrary,  the petitioners had continued\nto  fill   the\tvacancies  to  which  the  petitioners\twere\nappointed should be regarded as permanent vacancies. [831 D-\nG]\n     3. The  explanation that  officiating appointments were\nmade when  some of the candidates considered for substantive\nappointment were  found to  be of  inferior calibre for such\nappointment and,  therefore, some of the vacancies were left\nto be  filled on  an officiating basis is not plausible. The\ncommunication of  the Railway  Ministry to  the Departmental\nPromotion Committee  specifying the number and nature of the\nappointments to\t be made was issued long before the cases of\nindividual officers were examined for promotion. It was only\nafter the Departmental Promotion Committee had been informed\nof the\tRailway Ministry's requirement that it commenced its\ntask of selecting candidates for substantive appointment and\nfor officiating\t appointment. The  material produced  by the\nrespondents shows  that the  petitioners did not at any time\nfall within  the field\tof  choice  for\t making\t substantive\nappointments. That  was because their seniority in the grade\nof Assistant  Medical Officers\tdid not at the relevant time\nbring them  within  the\t field\tof  choice  for\t substantive\nappointment.   They    were   considered   for\t officiating\nappointment only, and not for substantive\n822\nappointment. It\t was the  mere\tstatistical  fact  of  their\nseniority as  Assistant\t Medical  Officers,  and  not  their\nmerit, that  precluded their  consideration for\t substantive\nappointment as\tDivisional Medical  Officers at the relevant\ntime. [831 H; 832 A-D]\n     4. If  from the outset the temporary vacancies had been\nregarded   as\t permanent   vacancies,\t   and\t substantive\nappointments  had   been   made\t  instead   of\t officiating\nappointments, the  petitioners\twould  have  been  appointed\nsubstantively to  those permanent  vacancies. In  the entire\nfield of  choice in  which they\t fall, they were found to be\nthe  most   meritorious.   Ever\t  since\t  their\t  respective\nappointments in\t 1971, 1972  and 1974  the petitioners\thave\ncontinued  to\tserve  without\tinterruption  as  Divisional\nMedical Officers  and were  doing 50 when this writ petition\nwas filed in 1981. They have continued to serve in the posts\nfor  a\t significant  number  of  years,  and  there  is  no\nindication that\t their appointments  will  come\t to  an\t end\nmerely\tbecause\t  the  vacancies   have\t been  described  as\ntemporary.  There   is\tno   material  to  show\t that  their\nconfidential Records  contained any  adverse entries or that\notherwise they\twere not  fit on their merit for substantive\nappointment to permanent vacancies. The petitioners have now\nbeen appointed\tDivisional Medical Officers on a substantive\nbasis.\tThe   only  reason  why\t they  were  not  originally\nappointed substantively to permanent vacancies as Divisional\nMedical\t Officers   is\tthat   only  a\t limited  number  of\nsubstantive appointments was desired by the Railway Ministry\nand  the   petitioners\twere   not  considered\t for   those\nsubstantive appointments  because they\tdid not\t fill within\nthe field  of  choice,\thaving\tregard\tto  their  place  of\nseniority in  the lower grade of Assistant Medical Officers.\n[832 F-H; 833 A-B]\n     5. The petitioners are entitled to say that they should\nbe considered  at par,\tfor the purpose of fixing seniority,\nwith those  appointed to  permanent posts  in a\t substantive\ncapacity. There\t is nothing  to indicate why they should not\nbe entitled to the benefits which the substantive holders of\npermanent  posts  enjoy.  For  the  purpose  of\t determining\nseniority among\t promotees the petitioners should be treated\nas having  been appointed  to permanent\t vacancies from\t the\nrespective dates  of  their  original  appointment  and\t the\nentire period  of  officiating\tservice\t performed  by\tthem\nshould be  taken into  account as if that service was of the\nsame character\tas that performed by the substantive holders\nof permanent posts. [834 A-C]\n     Baleshwar Prasad  v. State\t of UP.,[1981] 1 S.C.R. 449,\n462 and\t O.P. Singla v. Union of India, [1984] 2 S.C.C. 450,\nfollowed.\n     6.\t In   the  instant  case,  as  the  petitioners\t are\ncontinuing to  hold the posts of Divisional Medical Officers\nfor several  years, the\t inclusion of their names in List is\nwholly meaningless. [834 D]\n     7. If  length of  continuous service  reckoned from the\ndate of\t promotion furnishes  the criterion  for determining\nseniority between  the\tpetitioners  and  the  substantively\nappointed Divisional Medical Officers, that principle should\napply\n823\nwith equal  vigour as  between\tthe  petitioners  and  those\npromotee respondents  who also\tbegan  to  serve,  like\t the\npetitioners,  in   officiating\tappointments  as  Divisional\nMedical Officers.  There is  no\t reason\t why  such  promotee\nrespondents,  although\t appointed   subsequently   to\t the\npetitioners, should be treated as senior to them. [834 -F]\n     8. The  date of  confirmation is  the material date for\ndetermining relative  seniority. The  Railway administration\nin  according\tconfirmation  has  been\t influenced  by\t two\nprinciple  factors.   One  is  that  confirmation  has\tbeen\nconsidered  zone-wise.\t Confirmation  has   been  made\t  as\nvacancies  have\t  arisen  within   a  particular  zone.\t The\nvacancies differ  from zone  to\t zone.\tThey  no  not  arise\nequally in  different zones  but turn on factors peculiar to\neach zone,  such as  the strength  of the  cadre within\t the\nzone, and  the differing  number  of  vacancies\t arising  in\ndifferent  zones   at  different   times.  In  other  words,\nconfirmation based  on the  placement of an officer within a\nparticular zone\t must necessarily  be determined  by factors\nconfined  to  that  zone  and  unrelated  to  an  all  India\nstandard. It  is apparent that confirmations limited by such\na local\t perspective cannot  serve as  a legitimate base for\ndrawing\t up   a\t seniority   list  intended   for  effecting\npromotion,   to\t   the\t all\tIndia\tcadre\tof   Medical\nSuperintendents. To  adopt the\tdate of\t confirmation as the\ngoverning point\t in  such  circumstances  is  to  inject  an\nelement of  inequality\tinto  the  very\t foundation  of\t the\npromotion  process.  It\t is  conceivable  that\tthe  Railway\nAdministration\t has   adopted\t the   rule   of   according\nconfirmations zone-wise\t for certain practical consideration\nand the\t validity of  that practice  need not be adjudicated\non. But\t such confirmations  cannot legitimately  constitute\nthe basic norm for drawing up a seniority list of Divisional\nMedical Officers  for the  purpose of promotion to the grade\nof Medical  Superintendents.  The  principle  must  be\tthat\nseniority should  be related  to the  length  of  continuous\nservice as  Divisional Medical\tOfficers reckoned  from\t the\ndate of\t promotion to  the post;  such\tservice\t should\t not\ninclude any  period served  in\ta  fortuitous,\tstop-gap  or\nadhoc appointment. [834 G-H; 835 A-E]\n     9. After  implementation of  the recommendations of the\nThird Pay  Commission, all  the officers  comprising the two\ngroups were  Assistant Medical\tOfficers, and  an  Assistant\nMedical Officer was nothing but as Assistant Medical Officer\nwho drew  the higher revised scale of pay. The conclusion is\ninescapable that Assistant Divisional Medical Officers were,\nfor the purpose of promotion as Divisional Medical Officers,\ngoverned by  the Rules\tof 1965 and the Rules of 1973. Those\nRules mention  Assistant Medical  Officers as  a  source  of\nrecruitment, without referring to any limiting qualification\nthat they  should be  officers drawing\ta Class\t II scale of\npay. The  expression \"Assistant\t Medical Officer\"  in  those\nRules is  comprehensive\t enough\t to  include  all  Assistant\nMedical Officers, whether drawing the class II revised scale\nof pay\tor entitled to the Class I revised scale of pay. And\nall such  Officers were,  under those Rules, governed by the\nprinciple of  selection on merit for promotion as Divisional\nMedical\t Officers.   The  Assistant  Medical  Officers\twere\ndesignated as  Assistant Divisional  Medical  Officers\twith\neffect from  January 1, when the Rules of 1965 were still in\nforce The  Rules of 1973 came into force in August, 1973. It\nis true that when Assistant Medical Officers were designated\nas Assistant  Divisional Medical  Officers  in\tthe  revised\nClass I scale of Rs. 700-1600 by\n824\nNotification No.  E(GP) 74\/1\/153  dated\t July  24,1976,\t the\nnotification  spoke   of  the\t\"appointment\"  of  Class  II\nAssistant Medical  Officers as\tAssistant Divisional Medical\nOfficers, but  having regard to the terms of the schedule to\nthe letter  dated December  31, 1974 such notifications must\nbe understood  to mean\tthat the Assistant Officers had been\nassigned the  Class I  scale  of  Rs.  700-1600\t and  merely\ndescribed as  Assistant Divisional  Medical  Officers.\tThey\ncontinued to  belong to\t the broad  category  of  \"Assistant\nMedical Officers\".  Upon Assistant  Medical  Officers  being\ndesignated as  Assistant Divisional  Medical Officers  under\nthe new\t scheme, there was no corresponding amendment in the\nRules of  1965 or  the Rules  of 1973.\tIt is  for the first\ntime, under  the Rules\tof 1978, that the post of Divisional\nMedical Officer is described as a \"non selection\" post to be\nfilled by  promotion from  the ranks of Assistant Divisional\nMedical\t Officers   and\t by  direct  recruitment.  The\tonly\nAssistant Medical  Officers now\t entitled  to  promotion  as\nDivisional Medical  Officers were  those drawing the Class I\nscale of  Rs 700-1600 and designated as Assistant Divisional\nMedical Officers\". The new sub-division of Assistant Medical\nOfficers described  as Assistant Divisional Medical Officers\nwas deemed to have taken birth on January 1, 1973 five and a\nhalf years before the Rules of 1978 were brought into force.\nIt could  never\t have  been  intended  that  this  class  of\nOfficers should\t exist in  a vacuum where no rules operated.\nThere was  no vacuum  because they  were comprehended within\nthe expression\t\"Assistant Medical  Officer\" in the Rules of\n1965 and  the Rules of 1973, and therefore, no amendment was\nconsidered necessary  in those\tRules to take congnisance of\nthis class. [837 E-H; 838 A-G]\n     10. The  principle of selection by merit, enunciated in\nthe Rules  of 1965  and\t the  Rules  of\t 1973  governed\t the\npromotion of Assistant Medical Officers (including Assistant\nDivisional Medical  Officers) to  the  posts  of  Divisional\nMedical Officer\t before the  Rules of  1978 came  into force\nBoth before  and after\tJanuary 1,  1973, during  the period\nbefore the  Rules of  1978 came\t into force the principle of\n\"non-selection\", that  is seniority-cum-suitability  in\t the\nlower grade, which was provided in the Rules of 1978 did not\napply  to   the\t promotion  of\tAssistant  Medical  Officers\n(including Assistant  Divisional  Medical  Officers  to\t the\nposts of Divisional Medical Officers. [838 G-H; 839 A]\n     11. The  confirmation of  the petitioners and all other\nofficers  appointed  to\t the  posts  of\t Divisional  Medical\nOfficer before\tthe Rules  of 1978  came into  force must be\ngoverned by  the Rules\tof 1965\t and the  Rules of 1973. The\npromotions and appointments made under the Rules of 1965, on\nthe repeal  of those  rules by the Rules of 1973, fall to be\ngoverned by the Rules of 1973. [839 D-E]\n     12. The  inter se\tseniority between  the members\tof a\nservice will ordinarily depend on the date of entry into the\ngrade.\tThat   is  an\tevent  governed\t  by  the  Rules  of\nrecruitment, whether  it be direct recruitment or pro motion\non the\tbasis of  selection on\tmerit or  on  the  basis  of\nseniority in  the lower\t grade or  some other  factor. Where\nseniority is  fixed in\ta grade\t according to  the length of\nservice in  that grade, that implies a reference back to the\ndate of\t entry. It  is wholly  immaterial when the seniority\nlist is prepared. [840 C-E]\n     In\t the   instant\tcase,\tapplying  the  criteria\t for\ndetermining seniority vis-a-vis the promotee respondents and\nthe petitioners to the case of petitioners and the\n825\ndirect recruits,  the petitioners must be held senior to the\ndirect recruits appointed subsequently to them. [842 D-E]\n     O.P. Singla  v. Union  of India,  [1984] 2\t S.C.C. 450,\nfollowed.\n     13. The  rules themselves do not lay down any principle\nof rotation.  They specify  the quotas\tonly. It was for the\nfirst time  on May  26\/27, 1976 that the Railway Ministry by\nits Letter  No E(O) I-74\/SR-6\/10 directed that the seniority\nof Class  II officers of the Medical Department, promoted to\nClass I\t Senior Scale  against the  quota  earmarked  for  a\nparticular year vis-a-vis the officers recruited against the\ndirect recruitment  quota for  that year  will be filed on a\nrotational basis  with reference  to the  direct recruitment\nand promotional\t quotas in  force from\ttime to\t time.\" This\ndirective,  however,   can  be\t of  no\t assistance  to\t the\nrespondents. It may be open to an administration to work the\nquota rule through a principle of rotation, but that implies\nthat a\tquota rule  is being actively operated and effect is\nbeing given to it. In the present case, the quotas laid down\nby the\tRules  were  not  observed  at\tall  and  no  direct\nrecruitment was made, during the years 1973 to 1976. Indeed,\nthe  process   of  direct  recruitment\twas  employed  on  a\nsubstantial basis  only from  1978 onwards.  There was power\nunder Rule 7 of the Rules of 1973 to relax the provisions of\nthose rules, which would include the provision requiring the\nobservance  of\t specified  quotas   for  recruitment\tfrom\npromotional and\t from direct  recruitment sources. [843 G-H;\n844 A-D]\n     A. Janardhana v. Union of India & Ors.,<\/a> [1983] 3 S.C.C.\n601, followed,\tand A.K.  Subraman &  Ors. etc.\t v. Union of\nIndia & Ors., [1975] 2 S.C.R. 979 inapplicable.\n     P.S. Mahal\t v. Union  of India,<\/a> [1984] 4 S.C.C. 545 and\nBishan Sarup  Gupta v.\tUnion of  India, [1975]\t Supp. S.C.R\n491, referred to. [847 E]\n     14. The  directly recruited Divisional Medical Officers\nare entitled  to seniority only from the date of their entry\ninto service  and not  from any anterior date, and therefore\ncannot enjoy seniority above the petitioners.\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION: Writ Petition No. 8353 of 1981.
\n     Under Article 32 of the Constitution of India
\n     P.P. Rao and Parijat Sinha for the Petitioners.
\n     M.M.  Abdul   Khader,  Girish   Chandra  and   Miss  A.
\nSubhashini for the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n826<\/span>
\nPATHAK,\t J:  By\t this  petition\t under\tArticle\t 32  of\t the
\nConstitution the  petitioners challenge\t the validity  of  a
\ncombined seniority list dated October 30, 1979 of Divisional
\nMedical\t Officers   and\t of   promotions   and\t officiating
\nappointments made  on the  basis of  that seniority  list to
\nposts of  Medical Superintendents  in  the  Indian  Railways
\nMedical Service.\n<\/p>\n
     Medical Service in the Indian Railways is structured in
\nascending levels. At the base, for the purpose of this case,
\nis the\tcadre of Assistant Divisional Medical Officers Class
\nI (who\tbefore January\t1, 1973\t were described as Assistant
\nMedical Officers  Class II).  Above them  is  the  cadre  of
\nDivisional Medical  Officers. The next above is the cadre of
\nMedical Superintendents.  Still higher\trank  Chief  Medical
\nOfficers, and  the apex\t of the\t hierarchy is  held  by\t the
\nDirector General of Medical Services.\n<\/p>\n
     There  are\t  eight\t petitioners.  They  were  Assistant
\nMedical Officers  Class II  and had  been confirmed  in that
\ngrade, one petitioner in 19 62 and the others in 1963.\n<\/p>\n
     During the\t years 1970  to 1972,  the petitioners\twere
\nselected   by\t Departmental\tPromotion   Committees\t for
\nofficiating appointments  to the Class I posts of Divisional
\nMedical Officers,  when the  Indian Railway  Medical Service
\n(District Medical  Officers) Recruitment Rules, 1965 were in
\nforce. Those  rules were repealed and replaced by the Indian
\nRailways  Medical   Service  (District\t Medical   Officers)
\nRecruitment Rules,  1973. Under\t the Rules  of 1965  and the
\nRules of  1973, the  posts of District Medical Officers were
\ntreated as selection posts.\n<\/p>\n
     To give  effect to the recommendations of the Third Pay
\nCommission, the\t scales of  pay of  existing  categories  of
\nofficers were revised. The existing pay scale of Rs. 350-900
\nattached to  the posts\tof  Assistant  Medical\tOfficer\t was
\nrevised and  split into\t two pay  scales, a  higher Class  I
\nscale of Rs. 700-1600 and a lower Class II scale of Rs. 650-
\n1200. The  posts of  Assistant Medical Officers were divided
\ninto those  carrying the higher pay scale and those carrying
\nthe higher  pay scale.\tA very\tlarge  number  of  posts  of
\nAssistant Medical  Officer were\t upgraded to  the higher pay
\nscale of  Rs. 700-1600,\t and were  designated as  “Assistant
\nDivisional Medical  Officer”. The petitioners were placed in
\nthe higher  pay scale of Rs. 700-1600 and were designated as
\nAssistant Divisional Medical Officers with effect from
\n827<\/span>
\nJanuary 1.  1973.  The\tscreening  of  over  2000  Assistant
\nMedical Officers  for the  purpose of  upgrading them to the
\nhigher scale  kept the Screening Committee busy from 1974 to
\n1976 or\t so, and  practically no recruitment was made during
\nthose  year   either  by   permanent  promotion\t  or  direct
\nrecruitment to the posts of Divisional Medical Officer.\n<\/p>\n
     The rules\tof 1973\t were replaced by the Indian Railway
\nMedical Service\t (Divisional Medical Officers\/Senior Medical
\nOfficers) Recruitment  Rules, 1975.  These, in\ttheir  turn,
\nyielded place  to the  Indian Railway Medical Service (Chief
\nMedical Officers, Additional Chief Medical Officers, Medical
\nSuperintendents\t and   Divisional  Senior  Medical  Officers
\nRecruitment Rules,  1978. Under the Rules of 1978, promotion
\nis  effected   on  the\t principle  of\t“non-selection”,  an
\nexpression in  the Rules  which is  construed by the Railway
\nadministration as “seniority-cum-suitability”.\n<\/p>\n
     By a  letter No.  E (O)  1-78\/SR-6\/14 dated October 30,
\n1979 the  Railway Board\t published a combined seniority list
\nof Divisional  Medical Officers\t recruited  directly  or  by
\npromotion. The\trespondents Nos.  4 to 64 were shown in that
\nlist. They include promotees as well as direct recruits. The
\npetitioners did\t not  find  place  in  the  seniority  list.
\nSubsequently,  on  the\tbasis  of  their  position  in\tthat
\nseniority list,\t some of  the respondent  Divisional Medical
\nOfficers   were\t   appointed   to   officiate\tas   Medical
\nSuperintendents by  a Railway Board letter No. E(O)III-81 PN
\n6\/199 dated August 31, 1981.\n<\/p>\n
     The petitioners  challenge the  combined seniority list
\nof  Divisional\t Medical  Officers   and   the\t officiating
\npromotions to  the posts  of  Medical  Superintendents.\t The
\npetitioners contend  that  the\tseniority  assigned  to\t the
\nrespondents Nos.  4 to 64 and the consequent promotions made
\nthereafter  violate   Articles\t 14   and   16(1)   of\t the
\nConstitution. The  grievance  operates\tin  two\t dimensions,
\nagainst the  promotee respondents  and\tagainst\t the  direct
\nrecruit respondents.\n<\/p>\n
     We propose\t to consider  first  the  grievance  of\t the
\npetitioners in\trespect of  the seniority  accorded  to\t the
\npromotee respondents  as  Divisional  Medical  Officers\t and
\ntheir promotion to officiate as Medical Superintendents. The
\ncase  of  the  petitioners  is\tthat  the  petitioners\twere
\npromoted as  Divisional Medical\t Officers  much\t before\t the
\npromotee respondents, that their promotion was made
\n828<\/span>
\nby selection  on the basis of merit adjudged by Departmental
\nPromotion Committees  under the Rules of 1965, that they had
\ncontinued in  service as Divisional Medical Officers against
\nvacancies  in\tpermanent  posts  without  interruption\t for
\nperiods ranging\t respectively between  8 years\tto 12 years,
\nand yet\t the promotee  respondents, who\t had held such posts
\nfor  shorter   periods,\t had   been  confirmed\t before\t the
\npetitioners and\t shown senior  in  the\tseniority  list\t and
\npreferred for  promotion as  Medical Superintendents.  It is
\ncontended that the petitioners should have been confirmed in
\nthe normal  course, the\t order of  their  promotion  against
\npermanent  vacancies.\tThe  petitioners   submit  that\t the
\npromotee respondents have been confirmed zone-wise, and such
\nconfirmation  cannot   serve  as   a  proper  reference\t for
\ndetermining seniority,\tbecause when confirmation is granted
\nzone-wise, it depends on the fortuitous accrual of vacancies
\narise  arbitrarily  at\tdifferent  times  and  in  different
\nnumbers\t in   different\t individual  zone.  The\t petitioners
\ncontend that  if the  date of confirmation is adopted as the
\ncriterion, confirmation\t should not  be reckoned  on a zonal
\nbasis, but  as if  the vacancies arose in a single all India
\nstructure  for,\t  the  petitioners  say,  a  seniority\tlist
\nprepared for the purpose of Promotion to the post of Medical
\nSuperintendents,  which\t  is  an  all  India  cadre,  should
\nproperly be  drawn on  an all  India basis.  The petitioners
\nurge that  if confirmation  has to  be considered zone-wise,
\nthen for  the purpose of promotion to the all India cadre of
\nMedical\t Superintendents   the\tonly   logical\tand  uniform
\ncriterion should  be the  total length of continuous service
\nas Divisional  Medical Officers\t reckoned from\tthe date  of
\npromotion. It  is a  criterion\twhich  makes  the  arbitrary
\nchance\tof  confirmation  against  fortuitous  vacancies  in
\nindividual zones  irrelevant. Finally,\tthe petitioners urge
\nthat for  the purpose  of fixing  seniority in\tthe grade of
\nDivisional Medical  Officers the  seniority  ruling  in\t the
\ngrade of  Assistant Medical Officers or Assistant Divisional
\nMedical Officers  is of\t no  material  significance  because
\nunder the Rules in force when the Promotions in instant case
\nwere made  promotions were  governed  by  the  principle  of
\nselection on the basis of merit.\n<\/p>\n
     The respondents,  on the  other hand, maintain that the
\nseniority list has been correctly prepared, that it contains
\nthe names  of only  those officers  who were either directly
\nrecruited  as\tDivisional  Medical  Officers  or  had\tbeen
\napproved for  permanent promotion against the quota of posts
\nreserved for them in vacancies allotted among the individual
\nRailways on the basis of the cadre position of each Rail
\n829<\/span>
\nway,  and   that  none\tof  the\t petitioners  qualified\t for
\ninclusion in the seniority list as they had been promoted in
\nan officiating\tcapacity to temporary vacancies in the posts
\nof Divisional Medical Officers. The respondents contend that
\nthe petitioners\t have no  right to  be treated\tat par\twith
\nthose  officers\t who  were  holding  permanent\tposts  on  a
\nconfirmed basis,  as confirmation  was made  on the basis of
\ntheir  selection   for\tpermanent  promotion  as  Divisional
\nMedical Officers. It is stated that seniority was also fixed
\non that\t basis. The respondents rely on a practice, followed
\nby the Railway Administration for several years, under which
\nthree Select  Lists were  prepared. List A set out the names
\nof  officers  selected\tfor  substantive  promotion  against
\npermanent vacancies.  List B  included the names of officers
\nselected  for\tofficiating  promotion\t against   temporary
\nvacancies. These  officers were also considered subsequently
\nby Departmental Promotion Committees for permanent promotion
\nalong  with  other  eligible  officers\tin  the\t field.\t The
\npetitioners were  placed in  list B.  The third list C, bore
\nthe  names   of\t officers   included  in   List\t by  earlier
\nDepartmental Promotion\tCommittees  but\t not  considered  as
\n“suitable  yet”\t for  substantive  promotion  by  subsequent
\nDepartmental Promotion\tCommittees. It is stated that in the
\nRailway Administration,\t Class II  officers were  considered
\nfor  substantive   appointment\tto  permanent  vacancies  in
\nClass I\t posts for officiating appointment against temporary
\nvacancies in  Class I  posts. In  each\tcase,  there  was  a
\nseparate selection  by a  Departmental Promotion  Committee,
\nand the\t selection  was\t made  zone-wise.  The\tDepartmental
\nPromotion Committees, after considering the officers at five
\nto six times the number of vacancies, made a selection on an
\nassessment of  their Confidential Records. It is stated that
\nofficers   selected   for   officiating\t  appointment,\t and
\nsubsequently coming  within the\t field of  consideration for
\npermanent appointment against permanent vacancies, were also
\nconsidered  for\t  selection   by   subsequent\tDepartmental
\nPromotion Committees.  In  this\t manner,  it  is  said,\t all
\neligible Class\tII officers  were considered  for  permanent
\nappointment  against   permanent  vacancies,  and  the\tmost
\nmeritorious were  selected. It\tis  pointed  out  that\tthis
\npractice was  terminated in  the Medical  Department of\t the
\nRailways after\t1972, because  with effect  from January  1,
\n1973, the  Class II  posts of Assistant Medical Officer were
\nupgraded as  Class I  posts of\tAssistant Divisional Medical
\nOfficers.\n<\/p>\n
     According to  the respondents,  at no  time during\t the
\nperiod ending  with the\t year  1972,  whenever\tDepartmental
\nPromotion Committees  met  for\tselecting  officers  against
\npermanent vacancies
\n830<\/span>
\ndid  any  of  the  petitioners\tfall  within  the  field  of
\nconsideration for  permanent appointment  in view  of  their
\nplace of  seniority in\tthe  class  II\tposts.\tIt  is\talso
\nsubmitted  that\t the  promotion\t of  the  petitioners,\tthen
\nAssistant  Medical  Officers,  to  the\tpost  of  Divisional
\nMedical\t Officers   in\tan   officiating  capacity   against
\ntemporary vacancies cannot be traced to the Rules of 1965 or
\nthe Rules  of 1973  because those rules dealt with promotion
\nto permanent vacancies only. Nor could the petitioners, when
\nthey  became  Assistant\t Divisional  Medical  Officers\twith
\neffect from  January 1,\t 1973, claim the benefit of the said
\nRules because those rules provided for selection of class II
\nofficers to  class I  posts. The  respondents urge  that the
\nprinciple which\t truly governs the petitioners in the matter
\nof promotion  from the posts of Assistant Divisional Medical
\nOfficers is  the principle  of seniority-cum-suitability  in
\nthe former grade embodied in the Rules of 1978. It is denied
\nthat this  construction would amount to giving retrospective
\noperation to  the Rules\t of 1978.  It is explained that when
\nthe question  of preparing  the seniority  list\t arose,\t the
\nRules of  1978 were  in operation,  and\t they  provided\t for
\npermanent  promotion   on  the\t basis\t of   seniority-cum-
\nsuitability, and  the rule  of selection  on merit operating
\nunder the  earlier Rules  no longer  prevailed, and,  in any
\nevent, could  not apply when an Assistant Divisional Medical
\nOfficer, which\twas a  Class  I\t post,\twas  considered\t for
\npromotion to  the Class I post of Divisional Medical Officer
\nApparently, the\t promotee respondents  were  senior  to\t the
\npetitioners  as\t Assistant  Medical  Officers  or  Assistant
\nDivisional Medical Officers, and that seniority was made the
\nbasis of  permanent promotion  to the  grade  of  Divisional
\nMedical Officers.  The respondents  dispute the\t proposition
\nthat promotion\tto the\tgrade of Divisional Medical Officers
\nmust be\t made on  the basis  of the  total length of service
\nrendered  as   Assistant  Medical   Officers  and  Assistant
\nDivisional Medical Officers considered on an all India basis
\nas, they assert, promotion to vacancies has to be considered
\nzone-wise.\n<\/p>\n
     A perusal\tof the\tRules of  1965 shows that there were
\n101 posts  in the  grade of Divisional Medical Officers. The
\nRules of  1973 mention\t109 posts. The posts are not divided
\nbetween permanent  posts and  temporary posts,\tand we\tmust
\nassume that  the Rules\trefer to  permanent posts  only.  It
\nappears\t that\tproceedings  were   taken  by\tthe  Railway
\nAdministration from  time  to  time  for  the  promotion  of
\nAssistant  Medical   Officers,\tto  the\t Class\tI  posts  of
\nDivisional Medical  Officers. The Railway Ministry indicated
\nthe  number   of  existing  vacancies  for  the\t purpose  of
\npermanent promotion and the number of
\n831<\/span>
\nanticipated  vacancies\t for  the   purpose  of\t officiating
\nappointment, the  number under each category being specified
\nzone-wise. The selection for both categories was made on the
\nbasis of merit. It may be noted that both under the Rules of
\n1965 and  the Rules of 1973, the posts of Divisional Medical
\nOfficers  were\tregarded  as  selection\t posts.\t A  Class  I
\nDepartmental promotion\tCommittee met  on February  20, 1970
\nand considered the case of candidates who had completed five
\nyears and above of service as Assistant Medical Officers for
\nsuch recruitment.  Both for  substantive promotion  and\t for
\nofficiating promotion  the field  of choice  was extended to
\nsix  times   the  number   of  vacancies.  Another  Class  I
\nDepartmental Promotion Committee met on October 22, 1971 and
\nJanuary 3,  1972. A  third Class  I  Departmental  Promotion
\nCommittee held\tits meetings  on September  29 and 30, 1972,
\nand October  3, 1972.  The Minutes  of the  several meetings
\nindicate that  the petitioners Nos. 1 to 8 were selected for
\nofficiating a appointments, some of them being classified as
\n“very goods”  and others  as “goods”.  They were accordingly
\nappointed to  officiate as  Divisional Medical\tOfficers  on
\ndifferent dates\t in 1971  and 1972 and the petitioner No. 7,
\nthe last  to be\t promoted, was appointed in 1974. The record
\nshows  that   these  were   all\t regarded   as\t officiating
\nappointments to vacancies in the Class I posts of Divisional
\nMedical Officers. There is nothing before us to indicate why
\nthe Railway Ministry sought to fill some of the vacancies in
\nthe permanent posts on a substantive basis and the others on
\nan officiating\tbasis. The  respondents say that substantive
\nappointments  were   made   to\t permanent   vacancies\t and
\nofficiating appointments  were made  to temporary vacancies.
\nWe  have  carefully  perused  the  copies  of  the  official
\ndocuments placed  on the record before us. They do not speak
\nof temporary  vacancies at  all. Nor  is there\tany material
\nsuggesting the\tneed for  treating some\t of the vacancies as
\ntemporary. There is nothing to show that the vacancies would
\nhave ceased  to exist  within the foreseeable future or upon
\nthe  happening\tof  some  anticipated  contingency.  On\t the
\ncontrary,  the\t petitioners  have  continued  to  fill\t the
\nvacancies for  several years. In the circumstances we are of
\nopinion that  the vacancies  to which  the petitioners\twere
\nappointed should be regarded as permanents vacancies.\n<\/p>\n
     As\t  regards    the   need\t  for\tmaking\t officiating
\nappointments, it  was explained\t during oral  argument\tthat
\nofficiating  appointments   were  made\t when  some  of\t the
\ncandidates considered for substantive appointment were found
\nto  be\tof  inferior  calibre  for  such  appointment,\tand,
\ntherefore, some of the vacancies were left to be filled on
\n832<\/span>
\nan  officiating\t  basis.  We   are  not\t  impressed  by\t the
\nsubmission. The communication of the Railway Ministry to the
\nDepartmental promotion\tCommittee specifying  the number and
\nnature of the appointments to be made was issued long before
\nthe  cases   of\t individual   officers\twere   examined\t for
\npromotion. It  was only\t after\tthe  Departmental  Promotion
\nCommittee  had\tbeen  informed\tof  the\t Railway  Ministry-s
\nrequirement  that   it\tcommenced   its\t task  of  selecting
\ncandidates for\tsubstantive appointment\t and for officiating
\nappointment.  The   field  of\tchoice\tfor  each  category,
\nsubstantive  appointment  or  officiating  appointment,\t was
\ndemarcated by  the rule\t that the  officers to be considered
\nwould be six times the number of vacancies. According to the
\nmaterial  placed   before  us\tby  the\t  respondents,\t the
\npetitioners did\t not at\t any time  fall within\tthe field of
\nchoice for making substantive appointments. That was because
\ntheir seniority\t in the\t grade of Assistant Medical Officers
\ndid not\t at the relevant time bring them within the field of
\nchoice for substantive appointment. They were considered for
\nofficiating  appointment   only,  and  not  for\t substantive
\nappointment. It\t was the  mere\tstatistical  fact  of  their
\nseniority as  Assistant\t Medical  Officers,  and  not  there
\nmerit, that  precluded their  consideration for\t substantive
\nappointment as\tDivisional Medical  Officers at the relevant
\ntime.\n<\/p>\n
     Now the  petitioners had been selected for promotion by
\nthe  same   or\tsimilar\t  Class\t I   Departmental  Promotion
\nCommittees as  those selecting\tthe substantively  appointed
\nDivisional Medical  Officers, and  in no  sense\t were  their
\nfunctions and  responsibilities any  different from those of
\nthe substantively  appointed Divisional Medical Officers. It
\nseems to  us that if from the outset the temporary vacancies
\nhad been  regarded as  permanent vacancies,  and substantive
\nappointments  had   been   made\t  instead   of\t officiating
\nappointments, the  petitioners\twould  have  been  appointed
\nsubstantively to  those permanent  vacancies. In  the entire
\nfield of  choice in  which they\t fall, they were found to be
\nthe  most   meritorious.   Ever\t  since\t  their\t  respective
\nappointments in\t 1971, 1972  and 1974  the petitioners\thave
\ncontinued  to\tserve  without\tinterruption  as  Divisional
\nMedical Officers  and were  doing so when this writ petition
\nwas filed in 1981. They have continued to serve in the posts
\nfor  a\t significant  number  of  years,  and  there  is  no
\nindication that\t their appointments  will  come\t to  an\t end
\nmerely\tbecause\t  the  vacancies   have\t been  described  as
\ntemporary.  There   is\tno   material  to  show\t that  their
\nconfidential Records  contained any  adverse entries or that
\notherwise they\twere not  fit on there merit for substantive
\nappointment to permanent vacancies. Indeed, we are told that
\nthe petitioners have now been appointed
\n833<\/span>
\nDivisional Medical  Officers  on  a  substantive  basis.  It
\nappears that  the only\treason why  they were not originally
\nappointed substantively to permanent vacancies as Divisional
\nMedical\t Officers   is\tthat   only  a\t limited  number  of
\nsubstantive appointments was desired by the Railway Ministry
\nand  the   petitioners\twere   not  considered\t for   these
\nsubstantive appointments  because they\tdid not\t fall within
\nthe field  of  choice,\thaving\tregard\tto  their  place  of
\nseniority in  the lower grade of Assistant Medical Officers.
\nWhile there  is no  doubt that technically. according to the
\nterms of  appointment, the  petitioners were appointed on an
\nofficiating basis,  we are  reminded of\t the observations of
\nthis Court in Baleshwar Prasad v. State of U.P
\n\t  “We  must   emphasis\tthat   while  temporary\t and
\n     permanent posts  have great  relevancy in regard to the
\n     career of\tgovernment servants, keeping posts temporary
\n     for long,\tsometimes by  annual  renewals\tfor  several
\n     years, and\t denying the claims of the incumbents on the
\n     score that their posts are temporary makes no sense and
\n     strikes us as arbitrary, especially when both temporary
\n     and permanent appointments are functionally identified.
\n     If in  the normal\tcourse, a  post is  temporary in the
\n     real sense\t and the  appointee knows  that\t his  tenure
\n     cannot exceed  the post  in longevity,  there cannot be
\n     anything, unfair  of capricious in clothing him with no
\n     rights. Not  so, if  the post  is, for  certain  depart
\n     mental or\tlike purposes, declared temporary, but it is
\n     within the\t ken of\t both government,  and the appointee
\n     that the  temporary posts\tare virtually long-lived. It
\n     is irrational  to reject  the claim  of  the  temporary
\n     appointee on  the nominal\tscore of  the terminology of
\n     the post.\tWe must\t also express  emphatically that the
\n     principle which  has  received  the  sanction  of\tthis
\n     Court’s pronouncements is that officiating service in a
\n     post is for all practical purposes of seniority as good
\n     as service on a regular basis.”\n<\/p>\n
These are  apposite observations  bearing  directly  on\t the
\npoint before  us. We  may point\t out that  they\t were  found
\nrelevant by this Court
\n834<\/span>
\nin deciding  O.P. Singla  v. Union of India. To our mind the
\npetitioners  are   entitled  to\t say  that  they  should  be
\nconsidered at  par for the purpose of fixing seniority, with
\nthose  appointed   to  permanent   posts  in  a\t substantive
\ncapacity. Nothing  has been placed before us to indicate why
\nthey should  not be  entitled  to  the\tbenefits  which\t the
\nsubstantive holders of permanent posts enjoy. It seems to us
\nthat  for   the\t purpose   of  determining  seniority  among
\npromotees the t petitioners should be treated as having been
\nappointed to permanent vacancies from the respective date of
\ntheir  original\t  appointment  and   the  entire  period  of
\nofficiating service  performed by  them should be taken into
\naccount as if that service was of the same character as that
\nperformed by the substantive holders of permanent posts.\n<\/p>\n
     As regards\t the practice  on which the respondents have
\nrelied, of  maintaining the  three lists  A,  and  that\t the
\npetitioners were  shown\t in  List  as  being  fit  only\t for
\nofficiating promotion  against a temporary vacancy, it seems
\nto us  that the circumstance makes no difference to the view
\ntaken by  us. We  are of  opinion that\ton the facts of this
\ncase, when  the petitioners are continuing to hold the posts
\nof  Divisional\tMedical\t Officers  for\tseveral\t years,\t the
\ncontinued  inclusion  of  their\t names\tin  List  is  wholly
\nmeaningless.\n<\/p>\n
     If it  is true  that the  length of  continuous service
\nreckoned from  the date of promotion furnishes the criterion
\nfor determining\t seniority between  the petitioners  and the
\nsubstantively appointed\t Divisional Medical  Officers,\tthat
\nprinciple should  apply with  equal vigour  as\tbetween\t the
\npetitioners and those promotee respondents who also began to
\nserve, like  the petitioners, in officiating appointments as
\nDivisional Medical  Officers. There  is no  reason why\tsuch
\npromotee respondents, although appointed subsequently to the
\npetitioners, should be treated as senior to them.\n<\/p>\n
     But it  is\t said,\tthe  date  of  confirmation  is\t the
\nmaterial date  for determining\trelative seniority,  and the
\npromotee respondents  were confirmed before the petitioners.
\nIt appears  that the  Railway  administration  in  according
\nconfirmation has  been influenced  by two principal factors.
\nOne is\tthat confirmation  has been considered on zone-wise.
\nConfirmation has been made as vacancies have arisen within a
\nparticular zone. The vacancies differ from zone to zone.\n<\/p>\n
835<\/span><\/p>\n
They do\t not arise  equally in\tdifferent zones, but turn on
\nfactors peculiar  to each  zone, such as the strength of the
\ncadre within the zone, and the differing number of vacancies
\narising in  different zones  at different  times.  In  other
\nwords, confirmation  based on  the placement  of an  officer
\nwithin a  particular zone  must necessarily be determined by
\nfactors confined  to that zone and unrelated to an all India
\nstandard. It  is apparent that confirmations limited by such
\na local\t perspective cannot  serve as  a legitimate base for
\ndrawing\t up   a\t seniority   list  intended   for  effecting
\npromotions   to\t   the\t all\tIndia\tcadre\tof   Medical
\nSuperintendents. To  adopt the\tdate of\t confirmation as the
\ngoverning point\t in  such  circumstances  is  to  inject  an
\nelement of  inequality\tinto  the  very\t foundation  of\t the
\npromotion  process.   I\t is  conceivable  that\tthe  Railway
\nAdministration\t has   adopted\t the   rule   of   according
\nconfirmations zone-wise for certain practical considerations
\nand, therefore,\t we do\tnot propose  to\t adjudicate  on\t the
\nvalidity of  that practice.  But we  do lay  down that\tsuch
\nconfirmations cannot  legitimately constitute the basic norm
\nfor drawing  up\t a  seniority  list  of\t Divisional  Medical
\nOfficers for  the purpose  of  promotion  to  the  grade  of
\nMedical Superintendents.  In  the  circumstances,  the\ttrue
\nprinciple, in  our opinion, must be that seniority should be
\nrelated to  the length\tof continuous  service as Divisional
\nMedical Officers  reckoned from the date of promotion to the
\npost. This  is subject\tof course to the exception that such
\nservice\t should\t  not  include\t any  period   served  in  a
\nfortuitous, stop-gap or ad hoc appointment.\n<\/p>\n
     Having said this, we may advert now to the other factor
\nwhich appears  to have influenced the Railway administration
\nin assigning  seniority. The  impugned\tseniority  list\t was
\nprepared in 1979. It was drawn up when the Rules of 1978 had
\ncome into force. It was drawn up at a time when the new rule
\nof  “non-selection”  embodied  in  the\tRules  of  1978.  Or
\n“seniority-cum-suitability” as\tthe  respondents  understand
\nit, had begun to govern promotion to the grade of Divisional
\nMedical\t Officers.  The\t Railway  administration,  following
\nthose rules,  ignored the fact that the petitioners had been
\nselected on  their merit to those posts long before, and had
\noccupied them  all  the\t years\tsince.\tThe  consequence  of
\napplying the  rule of seniority-cum-suitability in the lower
\ngrade was  to wipe  out all  the advantage  claimed  by\t the
\npetitioners by\tvirtue of  the several\tyears of  continuous
\nservice, and  to  give\tan  ascendancy\tto  those  Assistant
\nMedical Officers  who although\tpromoted  subsequently\twere
\nconfirmed earlier only by
\n836<\/span>
\nreason of  their seniority  in the lower grade. The question
\nis  whether   the  rule\t  of  seniority-cum-suitability\t can
\nprevail.  The\tpoint  would   have  been  capable  of\teasy
\nresolution but for the complexity introduced in implementing
\nthe recommendations  of the  Third Pay Commission. The Third
\nPay Commission\trecommended an\tupward revision of the scale
\nof  pay\t attached  to  different  grades  of  posts  in\t the
\nRailways. In  the course  of implementing the recommendation
\nin relation  to the  Medical Department of the Railways, the
\nRailway Ministry  issued a letter No. PC III\/74\/PS-1\/2 dated
\nDecember 31,  1974 publishing a schedule showing the revised
\nscales of pay. The schedule contained a special provision in
\nregard to  the posts of Assistant Medical Officer. The entry
\nread:\n<\/p>\n
———————————————————–
\nDesignation Authorised Existing rates Revised  Revised rates
\nof post\t    Scale of   of non-\t      Scale    of non-\n<\/p>\n
\t   Pay\t      Practising     of Pay   Practising\n\t\t       allowance\t      allowance\n\t    (Rs.)      (Rs.)\t\t       (Rs.)\n<\/pre>\n
———————————————————–
\nAssistant    350-25-\t 33-1\/3% of    700-40-\t 1-5  stages
\nMedical\t    500-30-    pay subject   900-EB-   Rs. 150\/-p.m.
\nOfficer\t     590-EB-\tto a minimum  40-1100-\t6-10 stages:\n<\/p>\n
\t    30-800-    of Rs. 150\/-  50-1250-  Rs. 200\/-p.m.\n<\/p><\/blockquote>\n
\t   EB-35-900  per month\t    EB-50-\n\t   (Class II)\t\t    1600\n\t\t\t\t    (Class  I) 11-15 stages:\n\t\t\t\t\t       Rs. 250\/-p.m.\n\t\t\t\t\t      16th stage\nonwards:\nRs. 300\/-p.m.\t\t\t\t       650-30-\t 1-8\nstages:\t\t\t\t\t       740-35-\t Rs.\n150\/-p.m.\t\t\t\t\t      810-EB\n\t\t\t\t    35-880-40\n\t\t\t\t    1000-EB-  9-13 stages:\n\t\t\t       40-1200\t Rs. 200\/-p.m.\n14-16 stages:\t\t\t\t\t\t Rs.\n250\/p.m.\n<\/pre>\n
Remarks: AMOs  in the existing Class II scale of Rs. 350-900
\n     will be  screened to  determine their  fitness for\t the
\n     revised Class  I scale  of Rs.  700-1600 and only those
\n     found fit\twill be\t entitled to  this revised  Class  I
\n     scale. Those  not found  fit will\tbe entitled  only to
\n     revised standard  Class II\t scale of Rs. 650-1200 until
\n     they are  found  fit  for\tClass  I  by  the  Screening
\n     Committee. Posts operated in the revised Class
\n837<\/span>
\n     I scale  will be designated as “Assistant Divl. Medical
\n     Officer”. Separate\t orders will be issued regarding the
\n     number of\tposts to be placed in each of the two scales
\n     from time to time.<\/p><\/blockquote>\n
     It is  apparent that  the\tpost  of  Assistant  Medical
\nOfficer originally  carried the\t Class II  scale of Rs. 350-\n<\/p>\n
900. That  scale of  pay was now substituted by two distinct
\nscales of  pay, a higher scale of Rs. 700-1300 (Class I) and
\na revised  lower scale\tof Rs.\t650-1200  (Class  II).\tBoth
\nscales of  pay were  shown against  the posts  of  Assistant
\nMedical Officer.  The Class  I scale  of  Rs.  700-1600\t was
\nintended for Assistant Medical Officer who were found fit by
\na Screening Committee for that scale, and posts operating in
\nthat scale  were designated as “Assistant Divisional Medical
\nOfficer”. The  Assistant Medical  Officers not\tfound fit by
\nthe Screening  Committee were  entitled only  to  the  lower
\nClass II  scale of Rs. 650-1200 until they were subsequently
\nfound fit  for the Class I scale by the Screening Committee.
\nIt is  clear from the entry in the schedule that both groups
\nof officers,  those drawing the Class I higher scale as well
\nas those  drawing the  Class II\t lower scale,  were included
\nunder the  single category  “Assistant Medical Officer”. All
\nAssistant  Medical   Officers  were  screened  in  order  to
\ndetermine who among them were superior to the others for the
\npurpose of  meriting the higher of the two revised scales of
\npay. It was merely as a matter of convenience that Assistant
\nMedical Officers  who were allotted the higher revised scale
\nwere  said  to\thold  the  posts  designated  as  “Assistant
\nDivisional Medical  Officer Assistant”,\t In short,  all\t the
\nofficers comprising  the two  groups were  Assistant Medical
\nOfficers, and  an Assistant  Divisional Medical\t Officer was
\nnothing but an Assistant Medical Officer who drew the higher
\nrevised scale  of pay.\tThat being  so,\t the  conclusion  is
\ninescapable that Assistant Divisional Medical Officers were,
\nfor the purpose of promotion as Divisional Medical Officers,
\ngoverned by  the Rules\tof 1965 and the Rules of 1973. Those
\nRules mention  Assistant Medical  Officers as  a  source  of
\nrecruitment, without referring to any limiting qualification
\nthat they  should be  officers drawing\ta Class\t II scale of
\npay. The  expression “Assistant\t Medical Officer”  in  those
\nRules is  comprehensive\t enough\t to  include  all  Assistant
\nMedical Officers, whether drawing the Class II revised scale
\nof pay\tor entitled to the Class I revised scale of pay. And
\nall such  Officers were,  under those Rules, governed by the
\nprinciple of selection on merit for promotion as Divisional
\n838<\/span>
\nMedical Officers.  It  must  be\t remembered  that  Assistant
\nMedical Officers  were designated  as  Assistant  Divisional
\nMedical Officers  with effect from January 1, 1973, when the
\nRules of  1965 were  still in  force. The Rules of 1973 came
\ninto force  in August,\t1973. It is true that when Assistant
\nMedical Officers  were designated  as  Assistant  Divisional
\nMedical Officers  in the  revised Class\t I scale of Rs. 700-
\n1600 by\t a notification\t such as  Notification\tNo.  E\t(GP)
\n74\/1\/153 dated\tJuly 24, 1976, the notification spoke of the
\n“appointment” of  Class II  Assistant  Medical\tOfficers  as
\nAssistant Divisional  Medical Officers, but having regard to
\nthe terms of the schedule to the Railway University’s letter
\ndated  December\t  31,  1974   referred\tto   earlier,\tsuch
\nnotification must  be understood  to mean that the Assistant
\nMedical Officers  had been assigned the Class I scale of Rs.
\n700- 1600  and\tmerely\tdescribed  as  Assistant  Divisional
\nMedical Officers.  As explained\t earlier, they\tcontinued to
\nbelong to  the broad  category “Assistant Medical Officers”.
\nIn this\t connection, it\t is significant\t that upon Assistant
\nMedical Officers  being designated  as Assistant  Divisional
\nMedical\t Officers   under  the\tnew  scheme,  there  was  no
\ncorresponding amendment in the Rules of 1965 or the Rules of
\n1973. It  is for  the first  time, under  the Rules of 1978,
\nthat we\t find that the post of Divisional Medical Officer is
\ndescribed  as\ta  “non-selection”  post  to  be  filled  by
\npromotion from\tthe ranks  of Assistant\t Divisional  Medical
\nOfficers and by direct recruitment. In other words, the only
\nAssistant Medical  Officers now\t entitled  to  promotion  as
\nDivisional Medical  Officers were  those drawing the Class I
\nscale  of   Rs.\t 700-1600   and\t designated   as  “Assistant
\nDivisional Medical  Officers”. What is important to remember
\nis that\t the new  sub-division of Assistant Medical Officers
\ndescribed  as  Assistant  Divisional  Medical  Officers\t was
\ndeemed to  have taken  birth on\t January 1, 1973. five and a
\nhalf years before the Rules of 1978 were brought into force.
\nIt could  never\t have  been  intended  that  this  class  of
\nofficers should\t exist in  a vacuum where no rules operated.
\nThere was  no vacuum  because they  were comprehended within
\nthe expression\t“Assistant Medical  Officer” in the Rules of
\n1965 and  the Rules  of 1973, and therefore no amendment was
\nconsidered necessary  in those\tRules to  take cognizance of
\nthis class or sub-division.\n<\/p>\n
     We hold  that the\tprinciple  of  selection  by  merit,
\nenunciated in  the Rules  of 1965  and\tthe  Rules  of\t1973
\ngoverned  the\tpromotion  of\tAssistant  Medical  Officers
\n(including Assistant  Divisional Medical  Officers)  to\t the
\nposts of Divisional Medical Officer before the Rules of 1978
\ncame into force. Both before and after January 1, 1973,
\n839<\/span>
\nduring the  period before the Rules of 1978 came into force,
\nthe principle  of “non-selection”,  that  is  seniority-cum-
\nsuitability in\tthe lower  grade, which\t was provided in the
\nRules of  1978 did  not apply  to the promotion of Assistant
\nMedical Officers  (including  Assistant\t Divisional  Medical
\nOfficers) to the posts of Divisional Medical officers.\n<\/p>\n
     It is  also beyond\t dispute that  having regard  to the
\nprovisions of  the Rules of 1978, those Rules can apply only
\nto promotions  and appointments\t to the\t posts of Divisional
\nMedical Officers  made under  them, that  is from  and after
\nAugust\t12,   1978.  They   cannot  affect   promotions\t and
\nappointments already  made before  that date. And as the act
\nof confirmation\t does not  amount to a fresh appointment but
\nmerely to  setting the\tseal of\t approval on  an appointment
\nalready made,  it must\tfollow that the Rules of 1978 cannot
\nbe applied  for the  purpose of\t confirming  promotions\t and
\nappointments made under the earlier Rules.\n<\/p>\n
     Consequently, upon\t all the  considerations  set  forth
\nearlier, the  confirmation of  the petitioners and all other
\nofficers  appointed  to\t the  posts  of\t Divisional  Medical
\nOfficer before\tthe Rules  of 1978  came into  force must be
\ngoverned by  the Rules of 1965 and the Rules of 1973. It may
\nbe noted  that promotions  and appointments  made under\t the
\nRules of  1965, on the repeal of those rules by the Rules of
\n1973, fall  to be  governed by\tthe Rules of 1973, for while
\nrepealing tho  Rules of\t 1965 Rule  9 of  the Rules  of 1973
\nprovides:\n<\/p>\n
\t  “Provided that  anything done\t or any action under
\n     the rules so repealed shall be deemed to have been done
\n     or taken  under the  corresponding provisions  of these
\n     rules.”\n<\/p><\/blockquote>\n
Significantly, such  a saving  provision is  absent  in\t the
\nRules of  1978. this  is as  clear an indication as any that
\nthe scheme  under  the\tRules  of  1978\t marked\t a  complete
\ndeparture from\tthat embodied  in the earlier Rules. We hold
\nthat the  confirmation of the petitioners and other officers
\nappointed  as\tDivisional  Medical   Officers\tfall  to  be
\nconsidered under  the Rules of 1965 or the Rules of 1973 and
\nnot under  the Rules  of  1978.\t Accordingly,  the  rule  of
\nseniority-cum-suitability   cannot   be\t  applied   to\t the
\npetitioners and the promotee
\n840<\/span>
\nrespondents, and  all promotee respondents who were promoted
\nto the posts of Divisional Medical Officer subsequent to the
\npetitioners  must   be\t regarded   as\t junior\t  to   them,
\nnotwithstanding that  they may\thave ranked  senior  to\t the
\npetitioners in\tthe  grade  of\tAssistant  Medical  Officers
\n(including  Assistant  Divisional  Medical  Officers).\tThis
\nprinciple will\trule even  where confirmation  is made zone-
\nwise,  for  in\tthe  absence  of  anything  adverse  in\t the
\nofficer’s conduct, quality of work or other relevant factor,
\nconfirmation should  follow the\t order in which the original
\nappointments have been made.\n<\/p>\n
     The respondents  point out\t that the impugned Seniority
\nList was  prepared in  1979, when  the Rules of 1978 were in
\nforce, and  therefore the  principle of\t seniority-cum-merit
\nwas made  the basis of the Seniority List. It is immaterial,
\nin our\topinion, that  the Seniority  List was\tprepared  in
\n1979. The  inter se  seniority\tbetween\t the  members  of  a
\nservice will ordinarily depend on the date of entry into the
\ngrade.\tThat   is  an\tevent  governed\t  by  the  rales  of
\nrecruitment, whether  it be  direct recruitment or promotion
\non the\tbasis of  selection on\tmerit or  on  the  basis  of
\nseniority in  the lower\t grade or  some other  factor. Where
\nseniority is  fixed in\ta grade\t according to  the length of
\nservice in  that grade, that implies a reference back to the
\ndate of\t entry. It  is wholly  immaterial when the Seniority
\nList is prepared.\n<\/p>\n
     We approach  the second  part of  this  case  now.\t The
\npetitioners challenge  the seniority  assigned to the direct
\nrecruit respondents  in the  impugned Seniority\t List.\tThey
\ncontend that the quota prescribed for direct recruitment and
\nfor promotion  under the  Rules has  been wrongly applied at
\nthe stage  of confirmation  when it should have been applied
\nat the stage of appointment. They also contend that there is
\nno provision  for applying  the\t principle  of\trotation  of
\nvacancies between  direct recruits  and\t promotees  for\t the
\npurpose of  determining relative seniority between them. And
\neven if\t it can\t be said  that the  directive issued in 1976
\nconstitutes  a\tvalid  rule  of\t rotation,  it\tis  open  to
\nprospective   operation\t  only\t and   cannot\tbe   applied
\nretrospectively. Finally,  the\tpetitioners  urge  that\t the
\npromotees should  be held  entitled to\ta weightage  of five
\nyears on the basis of their service in the Class II posts of
\nAssistant Medical  Officers when considering their seniority
\nin relation to direct recruits.\n<\/p>\n
841<\/span><\/p>\n
     The case of the respondents that the inter se seniority
\nbetween the  direct  recruit  and  the\tpromotee  Divisional
\nMedical Officers  has been carefully fixed with reference to
\nthe direct  recruitment and promotional quotas in force from
\ntime to\t time, without affecting the date of confirmation of
\nthe Divisional\tMedical Officers. It is explained that where
\nthe promotees have been promoted in excess of their quota in
\na particular  year, they  have to  be pushed down to a later
\nyear  for  absorption  when  due  within  their\t quota,\t and
\nseniority has been fixed accordingly. It is pointed out that
\nfor some  years direct\trecruitment could not be resorted to
\non the\trequired scale\tas the\trestructuring of the Medical
\nDepartment was\tunder consideration with a view to improving
\nthe avenues  of promotion.  In consequence  direct  recruits
\nappointed in  later years  were brought\t up  higher  in\t the
\nSeniority List\tin order  to provide them their due position
\naccording to  the quota\t of vacancies  laid down  for direct
\nrecruitment. The  respondents also point out that Divisional
\nMedical Officers  were allowed\tto count seniority only from
\nthe date  of permanent\tabsorption if  such  absorption\t was
\nwithin their  quota. It\t is stated  that from  1973  onwards
\nrepresentations were  made by  and on  behalf  of  promotees
\nDivisional  Medical  Officers  to  give\t them  weightage  in
\nrespect of  their officiating  service for  the\t purpose  of
\nseniority in the cadre of Divisional Medical Officers vis-a-
\nvis the\t direct recruits, and after giving due consideration
\nto those representations and taking into regard the judgment
\nof this\t Court in  A. K.  Subraman &  Ors. etc.\t v. Union of
\nIndia & Ors., it was decided that inter se seniority between
\ndirect recruit\tDivisional  Medical  Officers  and  promotee
\nDivisional Medical  Officers promoted  permanently should be
\nfixed on  a rotational\tbasis with  reference to  the direct
\nrecruitment and\t promotional quotas  in force  from time  to
\ntime. It  is maintained that the impugned Seniority List was
\nprepared on  the basis of those principles. The petitioners,
\nit is  urged, cannot claim inclusion in that list as none of
\nthem had  been promoted\t as Divisional Medical Officers on a
\npermanent basis against the quota of seats reserved for such
\npromotions under  the  relevant\t Rules.\t The  claim  of\t the
\npetitioners to\ta weightage  of five  years  of\t substantive
\nservice rendered  in the  lower grade  is  disputed  by\t the
\nrespondents on\tthe ground that the principle providing such
\nweightage for  seniority has not been applied to the Medical
\nDepartment of the Railways in view of the structural pattern
\nof the Department.\n<\/p>\n
842<\/span><\/p>\n
     The objection  of the  Respondents that the petitioners
\nwere not  appointed  to\t the  posts  of\t Divisional  Medical
\nOfficers on  a permanent  basis and  therefore they were not
\nentitled to  inclusion in the Seniority List can be disposed
\nof shortly. We have already held while examining the case of
\nthe petitioners\t vis-a-vis the promotee respondents that the
\npetitioners  were   entitled  to  be  treated  at  par\twith
\nsubstantively appointed\t Divisional Medical Officers for the
\npurpose of  fixing seniority, and the circumstance that they
\nwere  appointed\t  in  an  officiating  capacity\t was  of  no
\nsignificance in\t this regard.  We have\tpointed out that for
\ndetermining seniority among promotees the petitioners should
\nbe treated  as having  been appointed to permanent vacancies
\nfrom the respective dates of their original appointments and
\nthe entire  period of  their officiating  service should  be
\ntaken into  account as\tif that\t service  was  of  the\tsame
\ncharacter as  that performed  by the  substantive holders of
\npermanent posts.  We have  held further\t that  the  promotee
\nrespondents appointed  subsequently to\tthe petitioners must
\nbe regarded  as junior\tto them\t even though  senior in\t the
\nlower grade.  We have  detailed the  reasons for taking this
\nview.  Applying\t  the  same  criteria  for  determining\t the
\nseniority between  the petitioners  and the direct recruits,
\nwe are\tof opinion  that the petitioners must be held senior
\nto the\tdirect recruits\t appointed subsequently\t to them. In
\nthis connection,  it would  be permissible to quote from the
\njudgment of  this Court\t in O.\tP. Singla (Supra), where the
\nquestion was of fixing seniority between temporary promotees
\nand direct recruits:\n<\/p>\n
\t  “Promotees, who  were appointed under Rule 16 have
\n     been officiating  continuously,  without  a  break,  as
\n     Additional District  and Sessions\tJudges\tfor  a\tlong
\n     number of\tyears. It  is both unrealistic and unjust to
\n     treat them\t as aliens to the Service merely because the
\n     authorities  did  not  wake  up  to  the  necessity  of
\n     converting the temporary posts into permanent ones even
\n     after some\t of the\t promotees had worked in those posts
\n     from five\tto twelve  years…. The fact that temporary
\n     posts created in the Service under Rule 16(1) had to be
\n     continued for years on end shows that the work assigned
\n     to the  holders of\t those posts  was, at  least at some
\n     later stage,  no longer  of a temporary nature. And yet
\n     instead  of   converting  the   temporary\tposts\tinto
\n     permanent ones, the authorities slurred over the matter
\n     and imperilled, though unwittingly
\n843<\/span>
\n     the reasonable  expectations of the promotees ………
\n     It is  not fair  to tell  the promotees  that they will
\n     rank as  juniors to  direct recruits who were appointed
\n     five  to\tten  years   after  they   have\t  officiated
\n     continuously in  the posts\t created in  the Service and
\n     held by them, though such posts may be temporary.”
\n     And further:\n<\/p><\/blockquote>\n
     “The best\tsolution to the situation which confronts us
\n     is\t to  apply  the\t rule  which  was  adopted  in\tS.B.
\n     Patwardhan v. State of Maharashtra (1977) 3 SCR 775. It
\n     was held  by this\tCourt in  that case  that all  other
\n     factors being  equal, continuous  officiation in a non-
\n     fortuitous vacancy\t ought to receive due recognition in
\n     fixing seniority between persons who are recruited from
\n     different sources,\t so long  as they belong to the same
\n     cadre, discharge  similar functions  and bear  the same
\n     responsibilities. Since  the rule\tof ‘quota  and rota’
\n     ceases to\tapply when  appointments are made under Rule
\n     16\t and  17,  the\tseniority  of  direct  recruits\t and
\n     promotees\tappointed   under  those   Rules   must\t  be
\n     determined according  to  the  dates  on  which  direct
\n     recruit were  appointed to\t their respective  posts and
\n     the  dates\t  from\twhich\tthe  promotees\t have\tbeen
\n     officiating  continuously\teither\tin  temporary  posts
\n     created in\t the Service  or in substantive vacancies to
\n     which they were appointed in a temporary capacity.”<\/p><\/blockquote>\n
     Considerable emphasis  has been laid by the respondents
\non the\tfact that  in the  present case\t the pertinent Rules
\nlaid down  the respective direct recruitment and promotional
\nquotas from time to time, and it was necessary to adjust the
\nseniority between  the\tdirect\trecruit\t Divisional  Medical
\nOfficers and  the promotee  Divisional Medical\tOfficers  in
\nsuch a\tway that  the quotas  were maintained  from year  to
\nyear. This  implied, it\t is urged, the rotation of vacancies
\nbetween the  two classes reserving them for one or the other
\nin an  order which  would ensure compliance with the quotas.
\nThe Rules  themselves do  not  lay  down  any  principle  of
\nrotation. They specify the quotas only. It was for the first
\ntime on\t May 26\/27,  1976 that\tthe Railway  Ministry by its
\nletter No.E(O)I-74\/SR-6\/10  directed that  “the seniority of
\nClass II officers of the Medical Department,
\n844<\/span>
\npromoted to Class I Senior Scale against the quota earmarked
\nfor a  particular  year\t vis-a-vis  the\t officers  recruited
\nagainst the  direct recruitment\t quota for that year will be
\nfixed on  a rotational\tbasis with  reference to  the direct
\nrecruitment and\t promotional quotas  in force  from time  to
\ntime.” This  directive, however,  can be of no assistance to
\nthe respondents. It may be open to an administration to work
\nthe quota  rule through\t a principle  of rotation,  but that
\nimplies that  a quota  rule is\tbeing actively\toperated and
\neffect is being given to it. In the present case, it must be
\nborne in  mind that  the quotas\t laid down by the Rules were
\nnot observed  at all  by the  Railway administration, and no
\ndirect recruitment  was made  during the years 1973 to 1976.
\nIndeed, the  process of direct recruitment was employed on a
\nsubstantial basis  only from  1978 onwards. Only one officer
\nappears to  have inducted  by direct  recruitment  into\t the
\ngrade in  1977 and  apparently none  before.  The  grade  of
\nDivisional Medical Officers was manned by promotees selected
\non their merit under the Rules of 1965 and the Rules of 1973
\nThere was  power under\tRule 7 of the Rules of 1973 to relax
\nthe provisions\tof those  Rules,  which\t would\tinclude\t the
\nprovision requiring  the observance  of specified quotas for
\nrecruitment from  promotional and  from\t direct\t recruitment
\nsource It seems to us that the present case falls within the
\ndicta of  this Court  in A. Janardhana v. Union of India and
\nOthers<\/a> where the Court said:\n<\/p>\n
\t  “We do  propose to examine and expose an extremely
\n     undesirable, unjust  and inequitable situation emerging
\n     in service\t jurisprudence from  the precedents  namely,
\n     that a  person already  rendering service as a promotee
\n     has to  go down  below a  person who comes into service
\n     decades after  the promotee  enters the service and who
\n     may be a schoolian, if not in embryo, when the promotee
\n     on being  promoted on  account  of\t the  exigencies  of
\n     service as required by the Government started rendering
\n     service.”\n<\/p><\/blockquote>\n
and concluded with the observations:\n<\/p>\n
\t  “Even where  the recruitment\tto a service is from
\n     more than\tone source  and a  quota is  fixed for\teach
\n     service
\n845<\/span>
\n     yet more  often the  appointing authority\tto meet\t its
\n     exigencies of service exceeds the quota from the easily
\n     available source of promotees because the procedure for
\n     making  recruitment   from\t  the\tmarket\t by   direct
\n     recruitment is  long, prolix  and time  consuming.\t The
\n     Government for  exigencies of  service,  for  needs  of
\n     public  services\tand  for  efficient  administration,
\n     promote   persons\t  easily   available\tbecause\t  in
\n     hierarchical service  one hopes  to move  upward. After
\n     the promotee  is promoted, continuously renders service
\n     and is  neither found  wanting nor\t inefficient and  is
\n     discharging his  duty to  the satisfaction\t of  all,  a
\n     fresh recruit  from the market years after promotee was
\n     inducted in  the service  comes and  challenges all the
\n     past recruitments\tmade before  he was borne in service
\n     and some  decisions especially the ratio in Jaisinghani
\n     case as  interpreted in  two B.S. Gupta cases gives him
\n     an advantage  to  the  extent  of\tthe  promotee  being
\n     preceded in  seniority by\tdirect\trecruit\t who  enters
\n     service long  after the promotee was promoted. When the
\n     promotee was  promoted and\t was rendering\tservice, the
\n     direct recruit may be a schoolian or college going boy.
\n     He emerges from the educational institution, appears at
\n     a\tcompetitive   examination  and\t starts\t challenging
\n     everything that  had happened during the period when he
\n     has had  nothing to do with service . If this has not a
\n     demoralising effect  on service  we fail  to  see\twhat
\n     other inequitous  approach would  be more\tdamaging. It
\n     is, therefore,  time to  clearly initiate a proposition
\n     that a  direct recruit who comes into service after the
\n     promotee  was   already  unconditionally\tand  without
\n     reservation promoted  and whose  promotion is not shown
\n     to\t be   invalid  or   illegal  according\tto  relevant
\n     statutory\tor   non-statutory  rules   should  not\t  be
\n     permitted by  any principle  of seniority\tto secure  a
\n     march  over   a  promotee\tbecause\t that  itself  being
\n     arbitrary would be violative of Articles 14 and 16.”<\/p><\/blockquote>\n
     In the  present case,  there was  no direct recruitment
\nupto  1977   for  certain  administrative  reasons,  and  no
\nobservance of  the quota  system embodied  in the prevailing
\nRules. The  Assistant Medical  Officers\t were  pressed\tinto
\nservice, promoted as Divisional Medical
\n846<\/span>
\nOfficers and  were alone responsible for assuming the burden
\nand discharging\t the functions\tand duties  of\tthose  posts
\nduring all  the years  until direct recruitment was made. It
\nwould  be   grossly  unjust   and  discriminatory   in\t the
\ncircumstances  to  require  them  to  be  junior  to  direct
\nrecruits brought in some years later.\n<\/p>\n
     The respondents  rely on A.K. Subraman (supra). In that
\ncase,  however,\t  the  facts   which  the  Court  took\tinto
\nconsideration and upon which it proceeded to render judgment
\nwere different.\t The point  raised in the present case falls
\nmore appropriately  within the\tscope of the observations in
\nA. Janardhana (supra), to which elaborate reference has been
\nmade  earlier.\t Indeed,  when\tA.K.  Subraman\t(supra)\t was
\nconsidered subsequently by this Court in P.S. Mahal v. Union
\nof India  the Court<\/a>  expressly\treferred  to  the  exception
\nimplied in  Bishan Sarup  Gupta v.  Union of  India  as\t the
\neffect of  a serious  deviation from  the quota rule, and it
\nrecorded its agreement with A Janardhana (supra). It said:\n<\/p>\n
\t  “But this  rotational rule  of seniority  can work
\n     only if  the quota\t rule is  strictly implemented\tfrom
\n     year to  year. Some  slight deviations  from the  quota
\n     rule may not be material but as pointed out by Palekar,
\n     J. in  the\t Bishan\t Sarup\tGupta  case,  “if  there  is
\n     enormous deviation, other considerations may arise”. If
\n     the rotational  rule of  seniority is to be applied for
\n     determining seniority  amongst officers  promoted\tfrom
\n     different sources, the quota rule must be observed. The
\n     application of  the rotational  rule of  seniority when
\n     there is  large deviation from the quota rule in making
\n     promotions is  bound to  create hardship  and injustice
\n     and result in impetmissible discrimination. That is why
\n     this Court pointed out in A.K. Subraman case that
\n\t  ‘..when recruitment is from two or several sources
\n     it\t should\t be  observed  that  there  is\tno  inherent
\n     invalidity in  introduction of quota system and to work
\n     it out  by a rule of rotation. The existence of a quota
\n     and  rotational  rule,  by\t itself,  will\tnot  violate
\n     Article 14 or Article 16 of the
\n847<\/span>
\n     Constitution It  is the  unreasonable implementation of
\n     the same  which may, in a given case, attract the frown
\n     of the  equality clause.’ (SCC para 28, p.333:SCC (L&S)
\n     p.50)
\n\t  The rotational  rule of  seniority is inextricably
\n     linked up\twith the quota rule and if the quota rule is
\n     not strictly  implemented and  there is large deviation
\n     from it  regularity from  year to\tyear,  it  would  be
\n     grossly discriminatory and unjust to give effect to the
\n     rotational rule  of seniority. We agree wholly with the
\n     observation of  D.A. Desai, J. in A Janardhana v. Union
\n     of India<\/a> that
\n\t  ‘…where  the  quota\t rule  is  linked  with\t the
\n     seniority rule if the first breaks down or is illegally
\n     not adhered  to giving  effect to\tthe second  would be
\n     unjust, inequitous\t and improper.’\t (SCC para 29, p.621
\n     :SCC (L&S) p. 487)
\n\t  This was precisely the reason why the Court in the
\n     first Bishan  Sarup  Gupta\t case  held  that  with\t the
\n     collapse of  the quota  rule, the rule of seniority set
\n     out in Rule 1 (f) (iii) also went.”<\/p><\/blockquote>\n
     In\t our  opinion,\tthe  directly  recruited  Divisional
\nMedical Officers  are entitled\tto seniority  only from\t the
\ndate of\t their entry  into service and not from any anterior
\ndate, and  therefore cannot  enjoy  a  seniority  above\t the
\npetitioners. The date of appointment to a permanent vacancy,
\nwhether of  a promotee or a direct recruit, will be the date
\nfor determining\t the seniority\tof the\tofficer. We may also
\nobserve\t that\tthere  is   no\tground\t for  detaining\t the
\nconfirmation of\t the petitioners  merely because  the  quota
\nreserved for direct recruitment has not been filled.\n<\/p>\n
     As\t regards   the\tclaim\tto  weightage  made  by\t the
\npetitioners on the basis of their service in the lower grade
\nof Assistant  Medical Officers,\t we find no substance in the
\nclaim because  the administrative  instructions issued under
\nthe Railway Board’s letter No. E.54\/SR-6\/1\/2 dated March 10,
\n1955, on  which the  petitioners rely,\tdid not apply to the
\nMedical Department of the Railways.\n<\/p>\n
     In the  result,  the  writ\t petition  is  allowed,\t the
\nSeniority List\tpublished by  the Railway  Ministry’s letter
\nNo. 752-E\/530 (E1A)
\n848<\/span>
\ndated November\t22, 1979 as well as the appointments made to
\nthe  posts   of\t Medical   Superintendents  by\tthe  Railway
\nMinistry’s letter  No. E(O)III-81  PM6\/199 dated  August 31,
\n1981 are  quashed. The Railway administration is directed to
\ndraw  up  a  fresh  Seniority  List  of\t Divisional  Medical
\nOfficers in  accordance with the principles laid down in the
\njudgment and  to make  fresh  appointments  from  among\t the
\nDivisional  Medical   Officers\tto   the  posts\t of  Medical
\nSuperintendents. The petitioners are entitled to their costs
\nagainst respondents Nos. 1, 2 and 3.\n<\/p>\n
A.P.J.\t  Petition allowed.\n<\/p>\n
849<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India D.K Mitra Ors vs Union Of India And Ors on 1 July, 1985 Equivalent citations: 1985 AIR 1558, 1985 SCR Supl. (1) 818 Author: R Pathak Bench: Pathak, R.S. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-27809","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nD.K Mitra Ors vs Union Of India And Ors on 1 July, 1985 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/d-k-mitra-ors-vs-union-of-india-and-ors-on-1-july-1985\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"D.K Mitra Ors vs Union Of India And Ors on 1 July, 1985 - 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