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PETITIONER: N. C. SHINGHAL

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT19/03/1980

BENCH: DESAI, D.A. BENCH: DESAI, D.A. VENKATARAMIAH, E.S. (J)

CITATION:  1980 AIR 1255            1980 SCR  (3)  44  1980 SCC  (3)  29  CITATOR INFO :  RF         1983 SC 509  (28)

ACT:      Central Health  Services  Rules,  1963  as  amended  by Central Health  Service (Amendment)  Rules, 1966,-Rule 8(3), Scope of-Promotions  to Supertime  Grade II  posts,  whether made in accordance with Rule 8(3)-Whether transfers in posts which are in the same grade or one considered equivalent can be effected  on administrative  exigencies-Refusal to accept the promotion by an employe   whether the employer can offer to next  junior to  the  offeree-Adverse  inference  against parties remaining ex-parte and therefore not served, whether can be drawn.

HEADNOTE:      The Union  of  India  has  enacted  Central  Government Health Scheme  and in  implementation  thereof  has  set  up various  institutions   for  medical   relief  and   medical education. A  Central Health  Service became a necessity for effectively  implementing   the  scheme.   With  a  view  to constituting the service, Central Health Service Rules, 1963 were framed  and brought into operation on May 15, 1963. The Rules envisaged  categorisation  of  personnel  manning  the service into five different categories, to wit, category ’A’ supertime scale  Rs. 1600-2000; Category ’B’ supertime scale Rs. 1300-1600;  Category  ’C’  Senior  scale  Rs.  675-1300, Category ’D’  Junior scale  Rs. 425-950;  and  Category  ’E’ class  II   scale  Rs.   325-800.  On   account  of  various imponderables the  service could not be constituted and 1963 Rules were  amended by  Central Health  Service  (Amendment) Rules, 1966.  Initial constitution  of service  was to be on and from  September 9,  1966. 1966  Rules contemplated again the  division  of  service  into  four  categories,  namely, Category I comprising supertime scale Grade I Rs. 1800-2250; supertime scale grade II Rs. 1300-1800, Category II consists of Specialists’  grade Rs.  600-1300; Category  III includes General Duty  officers Grade I Rs. 450-1250. and Category IV comprises General  Duty officers  Grade II Rs. 350-900. 1966 Rules provided  the method  for initial  constitution of the service.  Rules  7A(1)  and  7A(2)  provided  for  absorbing departmental candidates  holding posts in categories ’A’ and ’B’ under  1963 Rules  in supertime  Grade I  and  supertime

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Grade II  respectively of reorganized service under the 1966 Rules. Those  in service  on September  9, 1966  and holding posts in Categories ’C’, ’D’ and ’E’ were either absorbed in specialists’ grade  or General  Duty Officers  Grade as  the case may be. For the purposes of selection and absorption of departmental candidates  on the date of initial constitution of reorganised service, a Selection Committee was set up and absorption was made in accordance with the recommendation of the Committee.  This process of absorption was over in March 1967, but  the constitution  of the service was deemed to be effective from September 9, 1966.      Rule 2(c)  defines category  to mean  a group  of posts specified in  column 2  of the  table under  Rule 4.  Rule 4 provides for  classification categories  and scales  of pay. Rule 5 of Rules 1966 provides for authorised strength of the service. Rule  8  prescribes  the  manner  in  which  future vacancies, after  appointments have been made to the Service under Rule 7 and 7A shall be filled in Supertime Grade II. 45      The authorised  strength of  the various  categories of the service  on the date of commencement of 1966 Rules shall be  as   specified  in  the  First  Schedule.  The  vertical promotional channel  is from  Specialists’ grade and General Duty officers Grade I to supertime Grade II and from thereon to Supertime Grade I. On the date of initial constitution of service there  were 275  permanent and 102 temporary, in all 377 posts  in Specialists’  grade. Out  of this  strength of posts in  specialists’  grade  28  posts  were  upgraded  to supertime Grade  II,  19  being  classified  as  unspecified specialists’ posts and 9 unspecified posts.      The Central  Government converted one post from amongst the 19  unspecified specialists’  grade posts  in  Supertime Grade II  in Ophthalmology speciality in Willingdon Hospital and transferred  one Dr.  B. S.  Jain, respondent 3, who was then working as Chief opthalmologist-cum-Associate Professor of Ophthalmology,  Himachal Pradesh  Medical College, Simla, and offered  the vacancy  to in Supertime Grade II caused by the transfer  of respondent  3 to  appellant who was next in seniority by  way of  promotion  on  ad  hoc  basis  as  per Memorandum dated  December 7,  1970. As  the  appellant  was prepared to  accept only if the posting was at Delhi and not in Simla, one Dr. G. C. Sood was promoted to supertime Grade II post and was appointed at Simla.      The appellant, thereafter filed a writ petition praying for Mandamus  that he  may be  deemed to  have been promoted from February 18, 1971, the date when Dr. Jain was posted at Willingdon Hospital.   The  appellant  also  questioned  the promotions of  respondents 4  to 24 to supertime grade II on various dates  after February  18, 1971  and before July 17, 1978  when   he  was   actually  promoted   on   a   certain interpretation of  Rule 8(3)  of the  Central Health Service Rules 1963.  The High  Court dismissed  the writ petition. A Letters Patent  Appeal was  partly allowed. Hence the appeal by special leave.      The appellant  contended that:  (a) the  promotions  of Respondents 4  to 24  are in contravention of Rule 8 of 1966 Rules; and  (b) when  a post  in Ophthalmology at Willingdon Hospital was  created on  February 1, 1971, by conversion of one post  from amongst  unspecified specialists’ grade posts in supertime  Grade II,  the post could only have been filed in by  promotion from  amongst those  holding  the  post  in specialists’ grade  in Ophthalmology speciality and he being the senior most and otherwise qualified, he should have been promoted  from  that  date;  (c)  filling  in  the  post  at Willingdon Hospital  by transfer  of  respondent  3  was  in

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violation of  the statutory  rule and hence invalid; (d) the offer of  the post  to him  at Simla  was an  eye  wash  and malafide as  he lacked teaching experience and the post is a teaching post;  (e) "service in that category" means service in that  category  which  was  constituted  under  the  1966 amendment Rules  and (f) rule  8(3) does not permit inter se transfers in posts which are in the same category.      Dismissing the appeal, the Court ^      HELD :  1. Unlike other professions, medical profession has  developed   branchwise  expert   specialised  knowledge referable generally  to  number  of  parts  in  which  human anatomy is  divisible. General  medicine and general-surgery are two  broad genus  but under  each one  of them there are numerous specialities  and  there  is  intensive  study  and research  in   speciality  for   being  qualified   for  the speciality.  Being   an  expert   in  any   one   speciality simultaneously results in being 46 excluded   from   other   specialities   even   though   the specialities may be species of a genus like general medicine or general  surgery. Again, in each speciality there will be a post  of a  Lecturer, an Assistant Professor, an Associate Professor and a Professor with a vertical movement by way of promotion. In  a nonteaching  hospital there  will be  posts like Junior  Surgeon, Senior Surgeon, Head of the Department and so  on. In  a profession so compartmentalised speciality wise ex hypothesi it is difficult to provide for promotional avenue by  way  of  a  general  seniority  list  integrating different specialities categorywise, cadrewise or gradewise. If such a general seniority list including persons belonging to different  specialities albeit in the same grade is drawn up for  purposes of  promotion it  might lead to a startling result because  the need  may be  of a promotional post in a speciality and  the man at top of the seniority list may not belong to  that  speciality  and  the  man  at  top  of  the seniority list  may not  belong to  that speciality  but may belong to a different speciality and if any promotion was to be given  to him  to a  post in a speciality for which he is neither qualified  nor eligible  it would  be impossible  to give  vertical  promotions  by  referring  to  such  general seniority list.  If the  promotion is  to a  post  generally called administrative post in a hospital a general seniority list including  experts belonging  to different specialities may be  helpful but when promotions are to be given to posts in different  specialities a  general seniority  list is not only  unhelpful   but  may  really  impede  the  process  of promotion. Again,  demands  of  different  specialities  for additional strength  may differ  from hospital  to hospital, from area  to area  and even  from time to time. In order to meet such  unforeseen eventualities the rules provide for an addition to the strength of supertime grade II by keeping 19 posts designated  as unspecified  Specialists’ grade,  posts and 9  unspecified posts  in a  pool. Whenever a demand came for providing  a higher  post in  supertime grade  II in any particular speciality  ordinarily where  the strength of the service is  prescribed a  post will have to be created which any  one   familiar  with   bureaucratic   jaggornot   would immediately realise  how time  consuming it is. Anticipating such  a   situation  and   to  meet   with  the  demands  of specialities within  a reasonable  time it was provided that there would  be a  pool of 19 unspecified specialists’ posts in supertime  grade II  and  9  unspecified  posts  also  in supertime grade  II. This  would facilitate  conversion from the pool of unspecified Specialists’ posts of an unspecified

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Specialists’ post  to  a  specified  specialist  post  in  a speciality where a need has been felt. Once the need is felt and a  post is  converted from  an  unspecified  post  to  a specified post  in supertime grade II it becomes an addition to the  strength of  that speciality  and the  post  can  be filled in,  in accordance  with the relevant rule. But it is implicit in this arrangement that the person to be appointed to such  a post would be one who is eligible to be appointed to that  speciality and  not some  one who  is on top of the general seniority list in Specialists’ grade or general duty officers’ grade  from which  promotion is  to  be  made.  If promotion has to be made from a general seniority list which includes all  Specialists in  the Specialists’ grade the one at the top may be Cardiologist and the post may be converted into Anesthesiology.  Certainly  a  Cardiologist  cannot  be appointed as  an Anaesthetic.  Therefore when  a  post  from amongst unspecified  Specialists’ posts  is converted  to  a specified post  which means  specified in  the speciality in which a  need has  been  felt  from  amongst  those  in  the Specialists’ grade belonging to that speciality and in order of their  inter se seniority a promotion could be given. [54 FH, 55A-H 56A-B]      Union of India and Ors. v. D. B. Kohli and Anr., [1973] 3 S.C.R. 117; followed. 47      2. Merely  because all  28 posts were deducted from the strength of posts in Specialists’ grade it could not be said that all  28 posts would be available for promotion to those belonging to  Specialists’ grade only. The language employed in rule  5 also  points in  this direction. All the 28 posts need not  necessarily be filled in by promotion from amongst those who  belong to Specialists grade only.  Hence with the division of  28 posts  in  two  different  designations  and dividing the  28 posts  in two  different nomenclatures.  28 posts are  made up  of 19  posts designated  as  unspecified Specialists posts  and 9  unspecified posts.  Undoubtedly 19 posts which were designated as unspecified Specialists’ post must be  filled in  from  amongst  those  belonging  to  the Specialists’ grade  but that  itself  also  shows  that  the remaining 9  unspecified posts can be filled in from amongst those who may be promoted from General Duty Officers grade I because General Duty Officers grade I are also promotable to supertime   grade    II.   The    nomenclature   unspecified Specialists’ post and unspecified post provides an effective answer and  indicates that  while in  the case of the former promotion must  be given  from Specialists in respect of the latter General  Duty  officers  Grade  I  would  equally  be eligible for promotion. [56 D-H]      3. To  interpret that 19 unspecified Specialists’ posts could only  by filled  in by  promotion would run counter to the express  provision  contained  in  Rule  8(3)  which  is statutory. Rule  8 of  the  Central  Health  Service  Rules, provides for  future maintenance  of the  service. Rule 8(3) provides for  50% of  the vacancies in supertime grade II to be filled  in by  promotion of General Duty Officers Grade I and Specialists’  grade officers  in the  ratio of 2 : 3 and the remaining 50% of the vacancies to be filled in by direct recruitment in  the manner specified in the second schedule. Now,  once   an  unspecified   Specialists’  grade  post  in supertime grade II is converted and made a specified post in a speciality  it is  an addition  to  the  strength  of  the speciality and the filling in of such post shall be governed by rule  8(3). Undoubtedly  if it  is to  be  filled  in  by promotion, that  would only  be from amongst those belonging to Specialists’  grade officers  as the  converted post  was

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unspecified Specialists’  post. But  to say  that it  can be filled in  only by  promotion is  to ignore  the mandate  of statutory rule  8(3) which  provides for filling in posts in supertime grade  II by either promotion or nomination in the ratio therein  prescribed. Once there is a post in supertime grade II  which is to be filled in subsequent to the initial constitution of  the service, rule 8(3) will be attracted in all its rigour. [57 B-E]      Further Rule  8(3) provides  for filling  in  posts  in supertime grade  II  by  promotion  as  well  as  by  direct recruitment in  the ratio of 1 : 1. On a true interpretation of the  1966 Rules in general and rule 8(3) in particular it could  not   be  gainsaid   that  whenever   an  unspecified Specialists’ post  is converted  into a  specified post  and assigned to  a speciality  it can  be filled  in  either  by promotion or by direct recruitment as the situation warrants according to  the rule  and as determined by the quota rule. [57 E-G]      No argument can be founded or any relief can be claimed merely on  a stand  taken by  the Union  of India  in  their counter-affidavit  in   an  earlier  writ  petition,  unless estoppel is  claimed or  urged. Even if such be the stand of the Central  Government it will have to be negatived and was in fact negatived in the case of Dr. B. S. Jain. [58C-D]      Union of  India v.  Bhim Singh,  [1971] 2  SLR p. 111 @ 124; P.  C. Sethi and Ors. v. Union of India and Ors. [1975] 3 S.C.R. 201 at 210; J. K. Steel Ltd. v. 48 Union of  India, [1969]  2 S.C.R. 481 @ 498; Commissioner of Income Tax  v. K.  Srinivasan and  K. Gopalan  [1953] S.C.R. 486; applied.      4. When  a post  is created  it is  an addition  to the strength of  that particular  category  and  the  additional strength has  to be  filled in  the manner prescribed in the rule and  that no  sanctity attaches  to the place where the post is  created but  the sanctity attaches to the number of posts and the manner of filling them. [59 B-C]      Transfers in  posts which  are in the same grade or are considered equivalent  can  be  effected  on  administrative exigencies. Once a new post is created and it is an increase in the  strength of  the cadre in which the post is created, every one in that cadre is eligible to fill in that post and transfer is  permissible. There is no violation of Rule 8(3) and transfer of Dr. B. S. Jain was valid. [59 E-F]      E. P. Royappa v. State of Tamil Nadu and Anr., [1974] 2 S.C.R. 348 at 363.      5. If  an employee  eligible for promotion is offered a higher post  by way  of promotion, his refusal to accept the same would  enable the  employer, the  Central Government in this case, to fill in the post by offering it to a junior to the Government servant refusing to accept the post and in so acting there  will be  no violation of Art, 16. Further, the Government servant  who refuses  to accept  the  promotional post offered  to him for his own reason cannot then be heard to complain  that he must be given promotional post from the date on which the avenue for promotion opened to him. [60 B- C]      Undoubtedly, it  may be  that under the Medical Council Regulations  stricto   sensu,  the   appellant  may  not  be qualified for the post of Associate Professor because he did not possess the requisite teaching experience. But an ad hoc arrangement could  have been  made and  it was  open to  the Central Government,  if the appellant had accepted the post, to move  the Medical  Council of India to permit the Central Government to appoint the appellant at Simla. Some way could

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have been  found but  the door  was bolted  by the appellant himself deciding  the  offer  for  reasons  other  than  his qualification which  he may have found compelling. The offer made to  him by  the Government  was not  eye wash  or  make believe. His  refusal to accept the offer of promotion would postpone his promotion. Further, since his refusal to accept the promotion at Simla and till July 1978, the appellant was never superseded  by any one junior to him in his speciality it is difficult to entertain the contention that in refusing promotion  to  him  when  some  posts  were  converted  from unspecified Specialists’  posts into  different specialities and were  filled in  by  those  who  were  qualified  to  be promoted in  the respective speciality in which the post was created  he  could  be  said  to  have  been  superseded  in violation of Art. 16. [62 D-H]      6. Remote  chances of promotion could hardly be said to be condition of service which if impaired would be violative of Art.  16. Even assuming that a remote chance of promotion in adversely  affected would give a cause of action, in view of appellants’  impending retirement  on superannuation  the argument would be of no avail to him. [63 F-G]      7. The  word ’category’  used in  Rule 8(3)  has to  be understood to  mean the  post included  in that category and consequently service  in that category would mean service in a post included in that category. [66 B-C] 49      It is  a well recognised canon of construction that the construction which  makes  the  Rule  otiose  or  unworkable should be  avoided where  two constructions are possible and the Court  should lean  in favour  of the construction which would make  the rule  workable and  further the  purpose for which the  rule is  intended. While  prescribing  experience qualification in  1966 Amendment  Rules, the  framers of the Rules could  not have  intended to  ignore wholly  the  past service. A  Specialist who  was in category ’C’ was included in category  II  with  the  designation  Specialists’  grade officer. Similarly, General Duty Officer grade I in category ’D’ acquired  the same  nomenclature  General  Duty  Officer grade I in category III. There was an upward revision of pay scales of  both the  categories. The  change in  designation should not  be understood  to mean that the service rendered as specialist or as General Duty Officer is wholly wiped out for any  future promotion.  Even after change of designation the  duties  never  underwent  any  change.  Same  duty  was performed a  day prior  to September  9, 1966  and  the  day thereafter by  both the  categories in the respective posts. Further this  change was  with a  purpose in as much as when certain qualifying  service is prescribed for being eligible for promotion  in a  category the  emphasis  is  on  service rendered in a post irrespective of the grade. A Specialists’ grade officer  belonging to  category II  was a Specialists’ grade officer  in category  C. He was even then eligible for promotion to  supertime grade II. It was never intended that a Specialists  grade officer belonging to category ’C’ under 1963 Rules  who had  put in more than 8 years of service but who was not promoted prior to September 9, 1966, the date of initial constitution  of service,  or on the date of initial constitution of  service, would  be ineligible for promotion for a  period of  8 years  simply because the designation of the category  changed. It  was  never  intended  that  there should be  a complete  hiatus for  a period  of 8  years  in promoting Specialists’  grade officers to supertime grade II and for  a period  of 10  years  in  case  of  General  Duty Officers grade  I. There is no warrant for such an inference from the Rules. [65 A-H, 66 A-C]

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    8. The contention that executive instruction cannot run counter to  the statutory  rule is untenable in the facts of this case.  Service rendered in equivalent post prior to the date of  initial constitution of service could be taken into account  in   calculating  qualifying   service   for   next promotion. [66 E-F]      9. The  need for  the post  or the  requirements of the hospital or the need for an ad hoc or additional appointment is a  matter which the Government is competent to decide and in the  absence  of  requisite  material  the  Court  cannot interpose its  own decision  on the necessity of creation or abolition of  posts. Whether  a particular post is necessary is a  matter depending  upon the exigencies of the situation and administrative  necessity. The  Government is  a  better judge of  the interests  of the  general  public  for  whose service the  hospitable are  set up.  And whether a hospital catering to  the needs  of general  public providing medical relief in  different specialities  has need for a particular post in  a particular  speciality would  be better judged by the Government  running the  hospital. If  Government  is  a better judge it must have the power to create or abolish the posts depending  upon the  needs of  the  hospital  and  the requirements of general public. [67 C-E]      Creation  and   abolition  of  posts  is  a  matter  of Government policy  and every  sovereign Government  has this power  in   the   interest   and   necessity   of   internal administration.  The   creation  or  abolition  of  post  is dictated by police decision, 50 exigencies of  circumstances and  administrative  necessity. The creation,  the continuance and the abolition of post are all  decided   by  the   Government  in   the  interest   of administration and  general public.  The Court  would be the last competent  in the  face of  scanty material  to  decide whether the  Government acted honestly in creating a post or refusing to  create a post or its decision suffers from mala fide, legal  or factual.  In this background it is difficult to entertain the contention of the appellant that posts were created to  accommodate some  specific individuals  ignoring the requirements  of the  hospital or  the interests  of the general public at large. [67 F-H]      M. Ramanatha Pillai v. State of Kerala and Anr., [1947] 1 S.C.R. 515 at 520; followed.      10. No adverse inference could be drawn against a party unless they appear before the Court and they are served with necessary papers. [68 C-D]      In the  present case,  Respondents 9  and  23  had  not appeared in the High Court and there is no evidence that the subsequent affidavit of the appellant was served on them. It may be  that the  Government may not be interested in either denying  or  admitting  this  averment  which  directly  and adversely affects  respondents 9 and 23. However, in view of the  fact  that  they  were  selected  by  the  Departmental Promotion Committee  and the  promotion was  approved by the U.P.S.C. it  is difficult to entertain the contention at the hand of  the appellant  who is  not in  any way  going to be benefited by  the invalidation of their promotion. [68 B, D, E]      11. Once  the challenge  on merits fails in a case, the second string to the bow need not be examined. The appellant here, is  least competent  to challenge  the  promotions  of Respondents 4 to 24. [69 B-C]      Chitra Ghosh and Anr. v. Union of India and Ors. [1970] 1 S.C.R. 413 @ 420.

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2057 of 1979.      Appeal by  Special Leave  from the  Judgment and  Order dated 11-1-1979 of the Delhi High Court in L.P.A. No. 46/73.      S.R. Srivastava for the Appellant and Dr. N.C. Shinghal (in person)      P.P. Rao, and Miss A. Subhashini for Respondents 1 & 2.      B.R. Aggarwal for Respondent No. 15.      The Judgment of the Court was delivered by      DESAI, J.-A highly qualified ophthalmic surgeon feeling aggrieved that  he has not been justly treated in the matter of promotion  to a  post in Supertime Grade II seeks redress of his  grievance praying  for a  mandamus that  he  may  be deemed to have been promoted from February 18, 1971, failing which more  out of frustration and less by any justification he seeks  quashing of  the promotion  of respondents 4 to 24 though convinced  that even  if the  Court were to accede to his request  he is  in no way likely to be benefited by this bizarre exercise. 51      First to  the fact  situation. The  Union of  India has framed   Central    Government   Health    Scheme   and   in implementation thereof  has set  up various institutions for medical relief  and  medical  education.  A  Central  Health Service became  a necessity for effectively implementing the scheme. With  a view  to constituting  the Service,  Central Health Service  Rules 1963  (’1963 Rules’  for short),  were framed and brought into operation on May 15, 1963. The Rules envisaged categorisation  of personnel  manning the  Service into  five   different  categories,  to  wit,  category  ’A’ supertime scale  Rs. 1600-2000, category ’B’ supertime scale Rs. 1300-1600,  category  ’C’  senior  scale  Rs.  675-1300, category ’D’ junior scale Rs. 425-950 and category ’E’ class II scale  Rs. 325-800.  On account  of various imponderables the Service  could not  be constituted  and 1963  Rules were amended by  Central Health  Service (Amendment) Rules, 1966, (’1966 Rules’  for short).  Initial constitution  of Service was to  be on  and  from  September,  9,  1966.  1966  Rules contemplated  again   the  division  of  Service  into  four categories, namely,  category I comprising supertime grade I Rs. 1800-2250; supertime grade II Rs. 1300-1800; category II consists of  Specialists’ grade  Rs. 600-1300;  category III includes General  Duty Officers  grade I  Rs. 450-1250;  and category IV  comprises General  Duty Officers  grade II  Rs. 350-900.  1966   Rules  provided   the  method   of  initial constitution of  the Service. Rules 7A(1) and 7A(2) provided for  absorbing  departmental  candidates  holding  posts  in categories  ’A’  and  ’B’  under  1963  Rules  in  posts  in supertime grade  I and  supertime grade  II respectively  of reorganised Service  under the 1966  Rules. Those in service on September  9, 1966,  and holding  post in categories ’C’, ’D’ and  ’E’ were  absorbed either in the Specialists’ grade or General  Duty Officers, grade as the case may be. For the purposes of  constitution  and  absorption  of  departmental candidates on  the  date  of  initial  constitution  of  re- organised service  a Selection  Committee  was  set  up  and absorption was  made in  accordance with the recommendations of the  Committee This  process of  absorption was  over  in March 1967,  but the  constitution of the Service was deemed to be  effective from  September 9,  1966. There  were  some promotions to  supertime grade II up to 1971 but as they are not the subject-matter of dispute in this appeal they may be

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ignored. There  was also  direct recruitment  to the Service between 1966 and 1971.      Between February  1971  to  July  17,  1978,  when  the appellant  came  to  be  promoted  to  supertime  grade  II, respondents 4  to 24  were promoted  on different  dates  to supertime grade  II, The promotion of respondents 4 to 24 is challenged by the appellant on diverse grounds 52 but the principal contention is that their promotions are in contravention of  rule 8  of 1966 Rules. Rule 8 provides for future maintenance  of the Service. Relevant for the present appeal is  rule  8(3)  which  provides  for  recruitment  to supertime grade  II both  by  promotion  and  nomination  by direct recruitment.  As the  appellant claims  promotion  to supertime   grade   II   from   February   18,   1971,   and simultaneously questions promotion of respondents 4 to 24 to supertime grade II on various dates after February 18, 1971, and before  July 17, 1978, when he was actually promoted, on a certain  interpretation of  the relevant  rule, it  may be here extracted:           xx                    xx                   xx           "8.  Future   maintenance  of   the  service-After      appointments have been made to the Service under rule 7      and rule  7A, future  vacancies shall  be filled in the      following manner, namely:-           xx                   xx                  xx      (3)  Supertime Grade I-           (a)  Fifty percent  of the  vacancies in Supertime                Grade II shall be filled by promotion of:                (i)  General Duty officers, Grade I, with not                     less than  ten years  of service in that                     category; or                (ii) Specialists’  Grade  officers  with  not                     less than eight years of service in that                     category;                in the  ratio of 2:3 on the recommendation of                a Departmental  Promotion  Committee  on  the                basis of merit and seniority of the officer’s                concerned;                Provided that no person shall be eligible for           appointment to  any such  post unless he possesses           the qualifications  and experience  requisite  for           appointment to such post.                Provided that  where the  case of  an officer           appointed to any post in the grade of General Duty           Officer, Grade I or the Specialists’ Grade, as the           case may  be, is  considered for  the purposes  of           promotion to any posts in Supertime Grade II under           this sub-rule,  the cases of all persons senior to           such  officer   in  the  grades  of  General  Duty           Officer, Grade  I or  Specialists’ Grade,  as  the           case   may   be,   shall   also   be   considered,           notwithstanding that they may not have rendered 10           years or  8 years  of  service,  respectively,  in           those grades".      To appreciate the contention of the appellant as to how he claims  promotion to  supertime grade  II on  February 8, 1971, it may be noted 53 that  effective   from  that  date  the  Central  Government converted one  post from  amongst  unspecified  specialists’ Grade  posts   in  supertime   Grade  II   in  Ophthalmology Speciality at  Willingdon Hospital  and transferred Dr. B.S. Jain,  respondent   3,  who   was  then   working  as  Chief Ophthalmologist-cum-Associate  Professor  of  Ophthalmology,

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Himachal Pradesh  Medical College,  Simla, and  offered  the vacancy in  super-time grade  II caused  by the  transfer of respondent 3,  to appellant who was next in seniority by way of promotion  on  ad  hoc  basis  as  per  memorandum  dated December 7,  1970. Appellant  responded to this offer as per his letter  dated December  9, 1970,  wherein after  putting forward various  personal inconveniences and a possible loss in emoluments  even on  promotion, he concluded his response to the offer as under:      "In view  of my  personal problems  and in  the  public      interest I  most humbly request that this promotion may      kindly be granted to me while in Delhi." Thereafter the  Government offered  the post  to  Dr.  Radha Natarajan but  she  declined  the  offer.  Subsequently  the Government offered  the post to Dr. M.C. Sharma who accepted the same  but he  was not  appointed and ultimately Dr. G.C. Sood was  promoted  to  supertime  grade  II  post  and  was appointed at Simla.      Appellant contends that when a post in Ophthalmology at Willingdon Hospital  was created  on February  1,  1971,  by conversion of one post from amongst unspecified Specialists’ grade posts  in supertime grade II that post could only have been filled  in by  promotion from amongst those holding the post in  Specialists’ grade  in ophthalmology speciality and he being  the seniormost  and otherwise qualified, he should have  been   promoted  from  that  date.  Simultaneously  he contends that  filling in  the post  so created in supertime grade II  at Willingdon Hospital by transfer of respondent 3 Dr. B.S.  Jain was  in violation  of the  statutory rule and hence invalid. He also contends that as he was not qualified to hold  the post  of  Chief  Ophthalmologist  cum-Associate Professor  of   Ophthalmology,  Himachal   Pradesh   Medical College, Simla, because it was a teaching post and he lacked teaching experience  which was  an essential  qualification, the offer  of that post to him was merely an eye wash and he could not have accepted the same. It is necessary to examine three different limbs of the submission separately.      Rule 5  of 1966  Rules provides for authorised strength of the  Service. The  authorised  strength  of  the  various categories of  the service  on the  date of  commencement of 1966 Rules shall be as specified in the first schedule. Part A of the first schedule deals with supertime 54 grade I  and Part  B deals  with supertime  grade II. Part C deals with  Specialists’  grade.  The  vertical  promotional channel is from specialists’ grade and General Duty Officers Grade I  to supertime grade II and from thereon to supertime grade I.  On the  date of  initial constitution  of  Service there were 275 permanent and 102 temporary, in all 377 posts in specialists’  grade. Out  of this  strength of  posts  in specialists’ grade,  28 posts  were  upgraded  to  supertime grade II,  19 being  classified as  unspecified specialists’ posts and  9 unspecified posts. To that extent the permanent strength of posts in specialists’ grade was reduced by 28 so as to  leave  it  at  247.  There  is  no  dispute  that  19 unspecified Specialists’  posts and 9 unspecified posts were upgraded to supertime grade II. The controversy is how these posts were to be filled in. Appellant contends that as these 28 posts  were in  Specialists’ grade  and the  strength  of Specialists’ grade  posts was  reduced by  28, whenever  any post out  of these  28 posts  added to supertime grade II is required to  be filled  in, it  can only  be  filled  in  by promotion  from   amongst  those   originally  belonging  to specialists’ grade,  i.e. category  ’C’  under  1963  Rules. Simultaneously  he   contends  that   as  these  unspecified

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specialists’  grade  posts  and  unspecified  posts,  28  in number,  can   be  filled   in  from   those  belonging   to specialists’ grade, ipso facto they can only be filled in by promotion  and   not  either  by  direct  nomination  or  by transfer. In  support of  this submission  reliance is  also placed on  an affidavit filed on behalf of Union of India in a petition  filed by  Dr. B.S.  Jain wherein it was in terms stated that  these 28  posts could  only  be  filled  in  by promotion and in no other manner.      The raison  d’etre for  upgrading  the  28  posts  from specialists’ grade  to supertime  grade II yet dividing them in two separate categories each having its own nomenclature, viz., 19  posts designated as unspecified Specialists’ grade posts and 9 designated as unspecified posts is not difficult to discern.      Unlike  other   professions,  medical   profession  has developed branchwise  expert specialised knowledge referable generally to  number of  parts in  which  human  anatomy  is divisible. General  medicine and  general  surgery  are  two broad genus  but under  each one  of them there are numerous specialities and  there is  intensive study  and research in speciality for  being qualified for the speciality. Being an expert in any one speciality simultaneously results in being excluded   from   other   specialities   even   though   the specialities may be species of a genus like general medicine or general  surgery. Again, in each speciality there will be a post  of a  Lecturer, an Assistant Professor, an Associate Professor and a Professor with a vertical movement by way of promotion. In  a non-teaching  hospital there  will be posts like Junior Surgeon, 55 Senior Surgeon,  Head of  the Department  and so  on.  In  a profession so compartmentalised specialitywise, ex hypothesi it is  difficult to provide for promotional avenue by way of a general  seniority list integrating different specialities categorywise, cadrewise  or gradewise.  If  such  a  general seniority list  including  persons  belonging  to  different specialities albeit  in the  same  grade  is  drawn  up  for purposes of  promotion it  might lead  to a startling result because  the  need  may  be  of  a  promotional  post  in  a speciality and  the man at top of the seniority list may not belong to  that speciality  but may  belong to  a  different speciality and  if any promotion was to be given to him to a post in  a speciality  for which he is neither qualified nor eligible it  would be impossible to give vertical promotions by  referring   to  such  general  seniority  list.  If  the promotion is  to a post generally called administrative post in a  hospital a  general seniority  list including  experts belonging to  different specialities may be helpful but when promotions  are   to  be   given  to   posts  in   different specialities a  general seniority list is not only unhelpful but may  really impede  the  process  of  promotion.  Again, demands of  different specialities  for additional  strength may differ  from hospital to hospital, from area to area and even from  time to  time. In  order to  meet such unforeseen eventualities the  rules provide  for  an  addition  to  the strength  of   supertime  grade   II  by  keeping  19  posts designated as  unspecified Specialists’  grade posts  and  9 unspecified posts  in a  pool. Whenever  a demand  came  for providing a  higher  post  in  supertime  grade  II  in  any particular speciality  ordinarily where  the strength of the service is  prescribed a  post will have to be created which any  one   familiar   with   bureaucratic   jagornot   would immediately realise  how time  consuming it is. Anticipating such  a   situation  and   to  meet   with  the  demands  of

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specialities within  a reasonable  time it was provided that there would  be a  pool of 19 unspecified Specialists’ posts in supertime  grade II  and  9  unspecified  posts  also  in supertime grade  II. This  would facilitate  conversion from the pool of unspecified Specialists’ posts of an unspecified Specialists’ post  to  a  specified  Specialist  post  in  a speciality where a need has been felt. Once the need is felt and a  post is  converted from  an  unspecified  post  to  a specified post  in supertime grade II it becomes an addition to the  strength of  that speciality  and the  post  can  be filled in,  in accordance  with the relevant rule. But it is implicit in this arrangement that the person to be appointed to such  a post would be one who is eligible to be appointed to that  speciality and  not some  one who  is on top of the general seniority list in Specialists’ grade or general duty officers’ grade  from which  promotion is  to  be  made.  If promotion has to be made from a general seniority list which includes all  Specialists in  the Specialists’ grade the one at the  top may  be a  Cardiologist  and  the  post  may  be converted into Anesthesiology and it 56 does not  require long  persuasive argument  to hold  that a Cardiologist cannot  be appointed  as an Anaesthetic. It is, therefore, crystal  clear that  when  a  post  from  amongst unspecified Specialists’  posts is  converted to a specified post which means specified in the speciality in which a need has been  felt from  amongst those in the specialists’ grade belonging to  that speciality and in order of their inter se seniority a  promotion could  be  given.  This  position  is inescapable and  it is  difficult to  comprehend a  position contrary to this. In fact, this situation has been expressly recognised by  this Court  in Union of India & Ors. v. S. B. Kohli  &  Another,  wherein  it  was  held  that  for  being appointed as  a Professor in a particular speciality in that case Orthopaedics,  the condition  that a person must have a post-graduate degree in Orthopaedics would not result in any classification without reference to the objectives sought to be achieved  and this would not result in any discrimination nor would it be violative of Article 16.      In passing  a contention  of the  appellant that all 28 posts which  were deducted  from the  strength of  permanent posts in  Specialists’ grade and added to supertime grade II must on  that account  alone be  filled in by promotion from those belonging  to  the  specialists’  grade  only  may  be examined. There is no merit in this contention. If there was any substance  in this  contention there  was no  reason  to provide for  two different  designations and  divide the  28 posts in  two different  nomenclatures. 28 posts are made up of 19 posts designated as unspecified Specialists’ posts and 9  unspecified   posts.  Undoubtedly  19  posts  which  were designated as  unspecified Specialists’  post must be filled in from  amongst those  belonging to  the Specialists’ grade but that  itself also shows that the remaining 9 unspecified posts can  be filled  in  from  amongst  those  who  may  be promoted  from  ’General  Duty  Officers  grade-  I  because General  Duty   Officers  grade-I  are  also  promotable  to supertime    grade-II.    The    nomenclature    unspecified Specialists’ post and unspecified post provides an effective answer and  indicates that  while in  the case of the former promotion must  be given  from Specialists in respect of the latter General  Duty Officers  Grade-I would be eligible for promotion. Merely  because all  28 posts  were deducted from the strength  of posts in Specialists’ grade it could not be said that  all 28  posts would be available for promotion to those belonging  to Specialists’  grade only.  The  language

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employed in  rule 5 also points in this direction. There is, therefore, no  substance in the contention that all 28 posts must be filled in by promotion from amongst those who belong to Specialists’ grade only. 57      The  last   limb  of   the  argument  is  that  the  19 unspecified Specialists’  posts in  supertime grade  II  can only be  filled in  by promotion and not in any other manner and particularly  not by  transfer. The provocation for this submission is  posting of  Dr. B. S. Jain in supertime grade II post  created at  Willingdon Hospital  in February  1971. Undoubtedly one  unspecified  Specialists’  grade  post  was converted and  was designated as specified post in supertime grade II  in Ophthalmology speciality at Willingdon Hospital in February  1971. Appellant  says that  once an unspecified Specialists’ grade  post was converted into a specified post and that  as it was assigned to Ophthalmology speciality, he being the  seniormost Ophthalmologist  and qualified for the post, that  post could only be filled in by promotion and he should have  been promoted and the posting of Dr. B. S. Jain by transfer  to that  post was  illegal and  invalid. Rule 8 provides for  future maintenance  of the  Service. Rule 8(3) provides for  50% of  the vacancies in supertime grade II to be filled  in by  promotion of General Duty Officers Grade I and Specialists’  grade officers in the ratio of 2:3 and the remaining 50%  of the  vacancies to  be filled  in by direct recruitment in  the manner specified in the second schedule. Now,  once   an  unspecified   specialists’  grade  post  in supertime grade II is converted and made a specified post in a speciality  it is  an addition  to  the  strength  of  the speciality and the filling in of such post shall be governed by rule  8 (3).  Undoubtedly if  it is  to be  filled in  by promotion, that  would only  be from amongst those belonging to Specialists’  grade officers  as the  converted post  was unspecified Specialists’  post. But  to say  that it  can be filled in  only by  promotion is  to ignore  the mandate  of statutory rule  8(3) which  provides for filling in posts in supertime grade  II by either promotion or nomination in the ratio therein  prescribed. Once there is a post in supertime grade II  which is to be filled in subsequent to the initial constitution of the Service, rule 8 (3) will be attracted in all its  rigour. And it should not be overlooked that rule 8 (3) provides  for filling  in of posts in supertime grade II by promotion  as well  as by direct recruitment in the ratio of 1:1.  On a  true interpretation  of  the  1966  Rules  in general and  rule 8  (3) in  particular  it  could  not  be, gainsaid that  whenever an  unspecified Specialists’ post is converted into a specified post and assigned to a speciality it can  be filled  in  either  by  promotion  or  by  direct recruitment as  the situation warrants according to the rule and as  determined by  the  quota  rule.  But  it  was  very strenuously  contended   that  the   Central  Government  in implementing the rule has understood and in fact implemented the  rule  to  this  effect  that  whenever  an  unspecified Specialist’s post  is converted  as  a  specified  post  and assigned to  a speciality  it  can  only  be  filled  in  by promotion. Reliance  was placed  upon an  affidavit made  on behalf of the Central Government in a writ 58 petition filed by Dr. B. S. Jain in Delhi High Court. In the counter-affidavit on  behalf of  the  Central  Government  a stand was  taken that  the 19 unspecified Specialists’ posts were  meant   only  for   promoting  category  ’C’  clinical Specialists to supertime grade II. In Union of India v. Bhim Singh &  Ors., the Court refers to the stand taken on behalf

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of the Union of India in that case as under:           "Learned  counsel  for  the  appellant  (Union  of      India)  submits  that  these  posts  were  included  in      supertime grade  II not  with reference  to the  actual      number of officers who had completed 8 years of service      or more  on a  particular date  but only with a view to      providing opportunities  of  promotion  to  the  former      Category  ’C’   officers  holding  clinical  Specialist      posts".      It does appear that such a stand was taken on behalf of the Union  of India  but simultaneously it may be noted that the Court  has not  accepted the  stand. And it would be too late in  the day to say that on such a stand of the Union of India, if  it runs  counter to the rule explicit in meaning, any argument  can be  founded or  any relief  can be claimed unless estoppel is urged. And no such estoppel is claimed In P. C. Sethi & Ors. v. Union of India & Ors., the petitioners urged that  the view  put forward  on their  behalf had been admitted  by  the  Government  in  its  affidavit  filed  in connection  with  certain  earlier  proceedings  of  similar nature and  other admissions  in Parliament on behalf of the Government. Negativing  this contention this Court held that such admissions,  if  any,  which  are  mere  expression  of opinion limited  to the context and not specific assurances, are not  binding on  the Government  to create and estoppel. Similar view was also expressed in J. K. Steel Ltd. v. Union of India  where following the earlier decision of this Court in Commissioner  of Income  tax, Madras v. K. Srinivasan and K. Gopalan,  it was  observed that the interpretation placed by  the   Department  on   various   sub-sections   in   the instructions issued  by the  Department cannot be considered to be proper guide in a matter wherein the construction of a statute is  involved. Therefore,  it cannot  be said that 19 unspecified Specialists’  posts could  only be  filled in by promotion and  such an  interpretation or  stand  would  run counter to  the express  provision contained  in  rule  8(3) which is statutory. Even if such be the stand of the Central Government it  will have  to be  negatived and  was in  fact negatived in the case of Dr. B. S. Jain. 59      Incidentally it  would be incongruous to hold that when a post  is created in a certain grade, category or cadre and it is  to be  filled in,  some one  who is  already in  that grade, category  or cadre cannot be transferred to that post and the  post so  vacated by  him can  be filled  in, in the manner prescribed.  Even if there was some substance, though there is  none, in the contention on behalf of the appellant that whenever  unspecified Specialists’  post  is  converted into a  specified post it can only be filled in by promotion yet  when   some  one  who  is  already  in  that  grade  is transferred to  the newly  created post and the post vacated by such  transferred employee is offered by way of promotion which in  fact was  done in this case there is any violation of the  rule. As pointed out earlier, when a post is created it is  an  addition  to  the  strength  of  that  particular category and the additional strength has to be filled in the manner prescribed  in the rule and that no sanctity attached to the  place where  the post  is created  but the  sanctity attaches to  the number  of posts  and the manner of filling them. Now,  Dr. B.  S. Jain  was already holding the post in supertime grade  II at  Simla when a post in supertime grade II in  Ophthalmology was created at Willingdon Hospital from amongst  unspecified   Specialists’  posts.   Even  if  this additional  post  has  to  be  filled  in  by  promotion  as contended by  the appellant,  it is  not open to him to urge

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that the  post at  Willingdon Hospital  alone must have been filled in  by Promotion.  Dr. B.  S. Jain was transferred to the post created at Willingdon Hospital and the post vacated by him  which was  in supertime  grade II was offered to the appellant as and by way of promotion. Therefore, even if the contention of  appellant is  to be  accepted,  there  is  no violation of  rule 8(3).  Equally it  is also not correct to contend that  Dr. B. S. Jain could not have been transferred to the  post created  at Willingdon  Hospital. Transfers  in posts  which  are  in  the  same  grade  or  are  considered equivalent can  be affected  on  administrative  exigencies. Once a  new post  is created  and it  is an  increase in the strength of  the Cadre  in which  the post is created, every one in  that cadre  is eligible  to fill  in that  post  and transfer is  permissible. Transfer  of Dr.  B. S.  Jain  is, therefore, beyond  question. In  E. P.  Royappa v.  State of Tamil Nadu & Anr., it is observed that the services of cadre officers are utilised in different posts of equal status and responsibility because  of exigencies  of administration and employing the  best available talent in suitable post. There is no  hostile discrimination  in transfer  from one post to other when the posts are of equal status and responsibility. Therefore, it  is futile  to urge  that filling  in the post created at  Willingdon Hospital  in supertime  grade  II  by transfer of  Dr. B.  S. Jain,  a person  already promoted to supertime grade II was invalid 60 in as  much as  the post  was not  filled in by promotion or direct recruitment but by transfer.      The  next   contention  is  that  the  refusal  of  the appellant to  accept the  post at  Simla offered to him will not debar  him from  promotion because the appellant was not qualified for the post at Simla. If an employee eligible for promotion is  offered a higher post by way of promotion, his refusal to  accept the  same would  enable the employer, the Central Government  in this  case, to  fill in  the post  by offering it  to a  junior to the Government servant refusing to accept  the post  and in  so  acting  there  will  be  no violation of  Art. 16.  Further, the  Government servant who refuses to  accept the  promotional post  offered to him for his own  reasons cannot  then be  heard to  complain that he must be  given promotional  post from  the date on which the avenue  for   promotion  opened   to  him.  Appellant  being conscious of  this position tried to circumvent it by saying that the Post at Simla offered to him by way of promotion in super time grade II was a teaching post for which he was not qualified and,  therefore, his  refusal to  accept the  same cannot come in his way from claiming promotion from the very date on  which he  refused to accept the promotion to a post for which  he was not qualified. Appellant went so far as to suggest that  the Government action in offering him the post at Simla  was actuated by malice in that while making a show of offering  him a promotional post it so deliberately acted as would  impel the  appellant to  refuse the same. Says the appellant  that  one  post  from  the  pool  of  unspecified specialists, posts  was converted  to a  specified  post  in Ophthalmology and  was  sanctioned  at  Willingdon  Hospital which  is  not  a  teaching  hospital  and,  therefore,  the appellant was  fully qualified  for being  promoted to  that post. Instead  of acting in this straight forward manner the Government transferred Dr. B. S. Jain from Simla to the post newly created  at Willingdon Hospital and purported to offer the Simla  post to the appellant for which appellant was not qualified and  thus deliberately  thwarted  the  promotional opportunity of the appellant and that this smacks of malice.

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To substantiate  this submission  the appellant  points  out that  the  designation  of  the  post  at  Simla  was  Chief Ophthalmoligist-cum-Associate  Professor  of  Ophthalmology, Himachal Pradesh  Medical College,  Simla. This according to the appellate  was a  teaching post  and  the  qualification prescribed by  the regulation  framed by the Medical Council of India  requires as  an essential qualification a teaching experience as Reader or Assistant Professor in Ophthalmology for five  years in  a Medical  College after requisite post- graduate qualification.  It  was  further  stated  that  the appellant had  no teaching  qualification though  he started teaching at  the Safdarjang  Hospital when he was recognised as a post-graduate teacher in Ophthalmology but 61 his teaching experience extended to barely two weeks. It was also said  that essential  teaching experience prescribed by the Medical  Council of  India under  its regulation  is not relaxable and  that, therefore,  appellant was not qualified for the  post of  Associate-Professor which  was offered  to him. In  S.B. Kohli’s  case (Supra)  this Court  did observe that a discretion to relax teaching experience qualification is conferred  only  on  the  U.P.S.C.  in  cases  of  direct recruitment and  not to the Departmental Promotion Committee in case of promotion. That being the intent of the law it is to be  given effect  to. This  observation is  in a slightly different  context   but  one  may  safely  proceed  on  the assumption that  essential teaching  qualification  for  the post of an Associate Professor prescribed by Medical Council of India  is not  relaxable. Therefore  it can  be said with some justification  that the  appellant who did not have the requisite teaching experience was not qualified for the post of Associate  Professor.  But  this  want  of  qualification impelling refusal  to accept  promotion  appears  to  be  an afterthought on  his part.  When the  promotional  post  was offered to  him  as  per  letter  dated  December  7,  1970, appellant did  not reply by saying that he was not qualified for the  post. In  his reply  dated December 9, 1970, to the offer made  by the  Government appellant pointed out that he was involved in some litigation with regard to his house and that his  stand  for  eviction  would  be  weakened  by  his transfer. He  then  proceeded  to  point  out  that  he  was suffering from  chronic bronchitis  and that  the climate at Simla may  not suit  him. He  also pointed  out the  adverse effect of  climate on  the  health  of  his  wife.  He  then proceeded to point out that apart from his personal problems he was  engaged in  the Safdarjang  Hospital for teaching of post-graduate students  and,  therefore,  he  requested  the Government "the  post of Chief Ophthalmologist-cum-Associate Professor of  Ophthalmology may  kindly be bestowed on me at Safdarjang Hospital where there is essential need for such a post". Could  this be  the  stand  of  a  person  offered  a promotional  post   honestly  believing   that  he  was  not qualified for the same? The post offered to him was of Chief Ophthalmologist-cum-Associate Professor.  Appellant believes and now  says that  he was not qualified for the same if the post was  at Simla but if the same post was created at Delhi with the  same designation  with the same responsibility for teaching  and   that  too  at  the  post-graduate  level  he considered himself  to be  fully qualified  for the same and requested the Government to bestow that post on him. He then proceeds  to  point  out  his  merits  and  puts  forth  his disinclination for  being promoted  to the post at Simla. In the face  of his  bold statement  that he  is prepared to be appointed as Chief Ophthalmologist continuing to do teaching work at  the post-graduate level at the Safdarjang Hospital,

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he now  wants to  assert that  he was  not qualified for the post. This convenient after 62 thought cannot decry the fact that the appellant declined to accept the  post at Simla not because he believed he was not qualified for  the post  but because  he was not inclined to leave Delhi,  may be  for reasons  which  may  be  true  and compelling for  him. This  becomes explicit  from a  further averment in  paragraph 7 of his reply wherein he pointed out to the  Central Government  that even though he was selected by the  U.P.  Government  for  the  post  of  Chief  Medical officer,  Gandhi   Memorial  Eye  Hospital,  Aligarh,  on  a fabulous salary  of Rs.  3,000/- p.m.  and which  offer  was transmitted to  him through  the Government  so as to enable the Government  to release  him and  although the Government was considering  his release  on deputation for the post but he himself  declined the offer because of domestic problems. There is thus no room for doubt that the appellant considers himself qualified  for any  post in  Delhi and  was under no circumstances willing  to leave Delhi and his disinclination to accept  any post  at Simla  stemmed not  from his  honest belief that he was not qualified for the post but because he was not  inclined to leave Delhi. Undoubtedly it may be that under the  regulation stricto  sensu he may not be qualified for the  post of  Associate Professor  because  he  did  not possess the  requisite teaching  experience. But  an ad  hoc arrangement could  have been  made and  it was  open to  the central Government,  if the appellant had accepted the post, to move  the Medical  Council of India to permit the Central Government to appoint the appellant at Simla. Some way could have been  found but  the door  was bolted  by the appellant himself declining  the offer  for  reasons  other  than  his qualification which  he may  have found  compelling. In this background it  is difficult  to accept the submission of the appellant that  the offer  made by the Government was an eye wash or a make-believe and, therefore, his refusal to accept the offer of promotion would not postpone his promotion.      Incidentally it  would be  advantageous to take note of the fact  at this  stage that  the appellant was promoted to supertime grade  II on  July 17,  1978 and  between February 1971 when he declined to accept promotion and July 1978 when he was  in fact  promoted, no  one  junior  to  him  in  the speciality to  which he belongs was ever promoted overriding his claim  to supertime  grade II.  Therefore, if  since his refusal to  accept promotion  at Simla  appellant was  never superseded by  any one junior to him in his speciality it is difficult to  entertain  the  contention  that  in  refusing promotion  to  him  when  some  posts  were  converted  from unspecified Specialists’  posts into  different specialities and were  filled in  by  those  who  were  qualified  to  be promoted in  the respective speciality in which the post was created  he  could  be  said  to  have  been  superseded  in violation of Art. 16. And in this view of the matter nothing more need  be examined but as certain other contentions were advanced 63 which even  if accepted  would not  in any  case benefit the appellant, it  appears to  us an exercise in futility but we would rather dispose them of than gloss over them.      In  the   High  Court   appellant   canvassed   twofold contention that  between  1966  and  1971,  i.e.  after  the initial constitution  of service  and  before  the  proposal offering promotion  to the  appellant at  Simla was  made 25 promotions were  given to  supertime grade II to persons who were ineligible  for the  same and  secondly after  February

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1971 and  before July  1978 when he was actually promoted to supertime grade  II, 29  promotions were  given to supertime grade II some of whom are respondents 4 to 24 and that their promotion was  in contravention  of rule  8(3) of  the Rules and, therefore, invalid. Before this Court the first limb of the argument,  namely, invalidating  promotions between 1966 and 1971 to supertime grade II was not canvassed. It was the second limb  of the  argument that was pressed into service. None of  those who  were promoted  between February 1971 and July 1978  belonged to  the speciality  to  which  appellant belongs. Each of them belonged to a different speciality and admittedly appellant was not qualified for being promoted to any supertime  grade II post in the speciality in which each one of  them was  promoted. When  this aspect became clear a question  was  posed  to  the  appellant  how  he  would  be benefited even  if his  contention were to prevail that none of them  was eligible  for promotion  to supertime  grade II and, therefore, the promotion of each of them deserved to be quashed. The  answer was  that there  is a  common seniority list  of   persons  belonging  to  supertime  grade  II  and promotion to  supertime grade  I is  by seniority  and  that promotion of respondents 4 to 24, if quashed, would push the appellant higher  up  in  seniority  above  them  and  would enhance his  chances of  promotion  to  supertime  grade  I. Remote chances  of promotion  could hardly  be  said  to  be condition of service which if impaired would be violative of Art. 16.  Even assuming that a remote chance of promotion if adversely affected would give a cause of action, it was made clear that  the appellant  is retiring  on superannuation in the last  quarter of  this year  and  that  even  if  he  is assigned a  deemed date  of promotion  somewhere in February 1971 yet  there are number of persons above him in supertime grade II  who  were  promoted  between  1966  and  1971  and appellant  has  not  even  a  remote  chance  of  promotion. Appellant at that stage reacted by saying that even if it be true, yet  the promotions of respondents 4 to 24 ought to be quashed because  when he with respondents 4 to 24 and others belonging to supertime grade II attend a meeting convened to discuss some  administrative matter or for holding charge of higher post temporarily vacant they claim seniority over him and his dignity is impaired. This calls for no comment save 64 and except  saying that  the approach  appears  to  be  more emotional rather than realistic. However, the contention may be examined on merit.      Promotion of  respondents 4 to 24 was questioned on the ground that  each of  them was  ineligible for  promotion to supertime grade  II on  the date  on which  each of them was promoted in  view of  the provision  contained in rule 8(3). Rule 8(3)  has been  extracted herein before. The contention is  that  since  the  initial  constitution  of  service  on September 9,  1966, any  future promotion to supertime grade II from  departmental candidates could be from amongst those who qualify for the same as provided for in rule 8(3). Apart from academic  qualification, the  experience  qualification prescribed is  that, the  General Duty  Officers grade I and Specialists’ grade  officers should have put in 10 years and 8 years  of service respectively in that category. Appellant contents that  service in the category means service in that category which  was constituted  under  the  1966  amendment rules. Rule  2(c) defines  category to mean a group of posts specified in  column 2  of the  table under  rule 4.  Rule 4 provides for  classification, categories  and scales of pay. It provides  that there  shall be  four  categories  in  the service  and  each  category  shall  consist  of  the  grade

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specified in column 2 of the table appended to the rule. The four categories are: first category which includes supertime grade I  and supertime  grade  II  posts.  Category  two  is Specialists’ grade  posts, category  three comprises General Duty officers,  grade I  and category  four includes General Duty Officers grade II. It was contended that the service to be rendered  for  the  qualifying  period  must  be  in  the category and,  therefore, a general Duty Officer grade I can only become eligible for promotion after he renders 10 years of service  in that  category which  came into  existence on September 9,1966,  and this  would apply mutatis mutandis to the Specialists’  grade officers  who must put in 8 years of service  in  the  category  which  came  into  existence  on September 9, 1966. If this contention were to prevail, apart from anything  else, appellant  himself would  not have been qualified for  promotion to  supertime grade  II in February 1971 from  which  date  he  claims  as  being  eligible  for promotion to  supertime grade II because he had not put in 8 years of  service in  the  category  of  specialists’  grade officers formed  on September  9, 1966.  That apart,  it  is impossible to overlook the history of the Service. The rules were initially  framed in 1963. At that time the service was sought to  be classified in 5 categories styled category ’A’ to category  ’E’. Expression  ’category’ in  1963 Rules  was defined to  mean a group of posts carrying the same scale of pay. Another salient feature of which notice should be taken is that save and except upward revision in scale, category I under the 1966 amendment Rules includes cate- 65 gories ’A’  and ’B’  under 1963 Rules. Category ’C’ has been designated as Specialists’ grade, i.e. category II under the 1966 Rules.  Category  ’D’  is  equated  with  General  Duty Officers grade  I styled  category III  and category  ’E’ is equated with  General Duty  officers grade II, i.e. category IV.  Expression   ’service  in   the  category’  has  to  be understood in this historical background. It is difficult to entertain  the   contention  that   the  past   service   of Specialists’ category  ’C’ officers  got  wholly  wiped  out merely because  the nomenclature of category ’C’ Specialists officers  was   changed  to   Specialists’  grade   officers replacing the  expression ’category  C’ by  category II. And that would  apply mutatis  mutandis to General Duty Officers grade I  and grade  II. The  change in the definition of the expression ’category’  appears to  be instructive in that by the change  service  in  the  post  is  emphasised  and  the question of  the grade  of pay is relegated into background. And this  change appears  to be  with a  purpose inasmuch as when certain  qualifying service  is  prescribed  for  being eligible for  promotion in  a category  the emphasis  is  on service rendered  in a  post irrespective  of the  grade.  A specialists’ grade  officer belonging  to category  II was a specialists’ grade  officer in  category C. He was even then eligible for  promotion to  supertime grade  II. Was it ever intended that  a Specialists’  grade  officer  belonging  to category ’C’  under 1963  Rules who  had put  in more than 8 years of service but who was not promoted prior to September 9, 1966,  the date of initial constitution of service, or on the date  of  initial  constitution  of  service,  would  be ineligible for  promotion for  a period  of 8  years  simply because the  designation of  the category  changed?  Was  it intended that there should be a complete hiatus for a period of 8  years in  promoting  Specialists’  grade  officers  to supertime grade  II and  for a period of 10 years in case of General Duty  Officers grade I. There is no warrant for such an inference  from the  Rules. Such  an intention  cannot be

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attributed to the framers of the Rules nor is it possible to accept the  submission of the appellant that the posts could have been  filled in  by direct  recruitment  because  where candidates eligible  for promotion were not available it was open to  resort to  direct recruitment  as provided  in  the Rules. It  is a  well recognised  canon of construction that the construction  which makes the Rules otiose or unworkable should be  avoided where  two constructions are possible and the Court  should lean  in favour  of the construction which would make  the rule  workable and  further the  purpose for which the  rule is  intended. While  prescribing  experience qualification in  1966 Amendment  Rules, the  framers of the Rules could  not have  intended to  ignore wholly  the  past service. A  specialist who  was in category ’C’ was included in category  II  with  the  designation  specialists’  grade officer. Similarly, General Duty Officer grade I in category ’D’ acquired  the same  nomenclature  General  Duty  Officer grade I in cate- 66 gory III. There was an upward revision of pay scales of both the  categories.   Should  the   change  in  designation  be understood  to  mean  that  the  past  service  rendered  as Specialist or  as General  Duty Officer  is wholly wiped out for any  future promotion ? Even after change of designation it is  not suggested  that the  duties underwent any change. Same duty  was performed  a day  prior to September 9, 1966, and the  day  thereafter  by  both  the  categories  in  the respective posts.  In this  background the  High  Court  was right in  holding that  the word  ’category’  used  in  rule 8(3)(a) has  to be  understood to  mean the post included in that category  and consequently  service  in  that  category would mean service in a post included in that category.      The appellant  contended that  this construction  would run counter  to the posting of former categories ’D’ and ’E’ officers on  probation on September 9, 1966, in specialists’ grade and  General Duty Officers grade I. In this connection it must  be recalled that on initial constitution of Service some persons  who were  in  the  category  of  General  Duty Officers were  absorbed and  appointed in Specialists’ grade and vice  versa was true of some persons. It is equally true that Officers  belonging  to  categories  ’D’  and  E’  were considered in  a category  lower  to  category  ’C’.  It  is equally possible, therefore, that on September 9, 1966, i.e. the date  of initial  constitution of  Service some  of  the officers belonging  to  categories  ’D’  and  ’E’  who  were absorbed in categories II and III respectively may have been put on  probation but  for  qualifying  service  for  upward promotion service  rendered as  probationer  is  not  to  be ignored. Viewed  from either  angle it is crystal clear that service rendered  in equivalent  post prior  to the  date of initial constitution  of Service could be taken into account in calculating  qualifying service  for next promotion. This was the stand taken by the Government in the affidavit filed in Civil  Writ No. 1155/71 filed by Dr. Chandra Mohan in the High Court  of Delhi  and that appears to be consistent with the construction  of rule  8(3). The  contention, therefore, that  executive   instruction  cannot  run  counter  to  the statutory rule must be rejected as untenable in the facts of this case.      It was next contended that the Government was guilty of legal malice  in that in February 1971 on a need being felt, a post in supertime grade II in Ophthalmology speciality was sanctioned at  Willingdon Hospital and filled in by transfer of Dr. B.S. Jain overlooking and ignoring the rightful claim of appellant  and on  transfer of  Dr. B.S. Jain on March 7,

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1972, to  Safdarjang Hospital, the post was also transferred to Safdarjang  Hospital. In  this connection  appellant also pointed out  that there  is material  on record to show that the Superintendent of Willingdon Hospital felt an acute need for a post in super- 67 time grade II in Ophthalmology speciality and yet it was not created while on the other hand in order to accommodate some favourites like  respondents, 4,  5,8,9,12,13  and  15  some posts  in   different  specialities   where  they  could  be accommodated were  created without  the need  for the  same. There is  evidence to  the effect  that appellant had sent a proposal  duly  recommended  by  Medical  Superintendent  of Safdarjang  Hospital  to  the  authorities  for  creating  a supertime grade II post in Eye Department in May 1971 as per letter dated  May 3,  1971. There  is also  material to show that some  ad hoc  appointments were made in supertime grade II. It  is, however,  not  possible  to  strike  down  those appointments on  the ground  that some posts were created in supertime grade  II though  not needed  wherein some  of the respondents were promoted or that there was no justification for creation  of posts or for making ad hoc appointments. It should be  distinctly understood  that not a single post was created in Ophthalmology speciality to which appellant could have  been   appointed.  The   need  for  the  post  of  the requirements of  the hospital,  or the need for an ad hoc or additional appointment  is a  matter which the Government is competent to decide and in the absence of requisite material the Court cannot interpose its own decision on the necessity of creation or abolition of posts. Whether a particular post is necessary  is a  matter depending  upon the exigencies of the situation  and administrative  necessity. The Government is a better Judge of the interests of the general public for whose service  the hospitals  are  set  up.  And  whether  a hospital catering  to the  needs of general public providing medical relief  in different  specialities has  need  for  a particular post  in a  particular speciality would be better judged by the Government running the hospital. If Government is a  better judge  it must  have the  power  to  create  or abolish the  posts depending  upon the needs of the hospital and  the   requirements  of  general  public.  Creation  and abolition of  posts is  a matter  of Government  policy  and every sovereign  Government has  this power  in the interest and necessity  of internal  administration. The  creation or abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public (see  M. Ramanatha  Pillai v. The State of Kerala and Anr). The  Court would be the least competent in the face of scanty material  to  decide  whether  the  Government  acted honestly in  creating a post or refusing to create a post or its decision  suffers from  malafide, legal  or factual.  In this background  it is difficult to entertain the contention of the appellant that posts were created to accommodate some specific  individuals   ignoring  the  requirements  of  the hospital or the interests of the general public at large. 68      It was  next contended  that  respondent  9,  Dr.  K.P. Mathur and  respondent 23,  Dr. A.  R. Majumdar  should have been considered  ineligible for  promotion because  both  of them were  adversely commented upon by the Madras High Court as being negligent in discharge of duties and the Government had to  pay a  sum of Rs. 10,000/- as compensation by way of damages for  their negligence.  He sought inspection of some

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files to  substantiate this allegation. Unfortunately though respondents 9  and 23  were made parties they did not appear to controvert this fact. But it appears from the record that they  were   promoted  after   they  were  selected  by  the Departmental  Promotion  Committee  and  the  promotion  was approved by  U.P.S.C. Appellant contended that this averment on his part has remained uncontroverted and it must be taken as having been admitted and proved. It may be mentioned that in the  petition filed  by the  appellant in  the Delhi High Court this  allegation was  not specifically  averred. In  a subsequent affidavit  filed by  him this  allegation was put forth. If  respondents 9 and 23 had not appeared in the High Court the  appellant should  have shown that this subsequent affidavit was served upon them, and in that event alone some adverse inference  may be drawn against them. It may be that the Government  may not  be interested  in either denying or admitting this averment which directly and adversely affects respondents 9 and 23. However, in view of the fact that they were selected  by the  Departmental Promotion  Committee and the promotion  was approved  by the U.P.S.C. it is difficult to entertain the contention at the hand of the appellant who is not  in any way going to be benefited by the invalidation of their promotion.      It was  incidentally urged  that  promotions  given  to respondents 9,12,13  and 15  must be  set aside because they belonged to  former category  ’D’ and  were given promotions against  19   unspecified  posts  in  contravention  of  the affidavit of  the Government.  As stated earlier, there were some specialists  in category  ’D’  also.  At  the  time  of initial constitution  of service  those  who  qualified  for being appointed General Duty Officers from category ’D’ were absorbed in  category III  and those  who were  eligible for being absorbed in Specialists’ grade were so absorbed. After absorption  they   belonged  to   the  respective  category. Thereafter on  conversion of  posts  from  the  pool  of  19 unspecified specialists’  posts they  were promoted as being found qualified  for the same and for the post to which each one of  them was  promoted appellant  was not qualified and, therefore,  the   contention  that   the  promotion  of  the aforementioned four  respondents should  be set aside has no merit in it.      Having examined  the  challenge  to  the  promotion  of respondents 4  to 24  on merits,  it must be made clear that the appellant is least 69 qualified to question their promotions. Each one of them was promoted to  a post  in supertime  grade II  in a speciality other than  ophthalmology and  appellant admittedly  was not qualified for  any of  these posts. Even if their promotions are struck  down appellant  will not get any post vacated by them. Incidentally  High Court  also upheld their promotions observing that  by the  time the petition was heard each one of them  had requisite service qualification and, therefore, the promotions  could not be struck down. Once the challenge on merits  fails the  second string  to the  bow need not be examined. Having said all this, appellant is least competent to challenge  their promotions.  In  a  slightly  comparable situation this  Court in  Chitra Ghosh  and Anr. v. Union of India and Ors. observed as under:      "The other question which was canvassed before the High           Court and which has been pressed before us relates           to the  merits of  the  nominations  made  to  the           reserved seats. It seems to us that the appellants           do not have any right to challenge the nominations           made  by  the  Central  Government.  They  do  not

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         compete for  the reserved  seats and have no locus           standi in  the matter of nomination to such seats.           The assumption  that if  nominations  to  reserved           seats are  not in  accordance with  the rules  all           such seats  as have  not been  properly filled  up           would be thrown open to the general pool is wholly           unfounded."      It was last urged that the High Court has set aside the promotion of  respondent 18,  Dr. P. C. Sen who was promoted in 1971  and, therefore,  there was  an opening in supertime grade  II   in  September   1971  and  appellant  should  be considered eligible for promotion to the post from that date and that  this Court should consider appellant’s eligibility for promotion  from September  1971 and  if found  eligible, should grant the same. Dr. P.C. Sen was General Duty Officer grade I  and he  was posted  as Director of Health Services, Manipur. Appellant  contends that  he  was  in  Specialists’ grade and  was senior to Dr. Sen and was not unqualified for the post  of Director  of Health  Services, Manipur, but the post was  not offered  to him  and, therefore,  he  must  be considered eligible for promotion from the date on which Dr. P.C. Sen  was promoted. The High Court in L.P.A. 46/74 filed by the appellant has set aside the promotion of Dr. P.C. Sen as also  of Dr.  Jasbir Kaur  but the  High  Court  has  not thought fit  to direct  the  Government  by  a  mandamus  to consider eligibility  of  the  appellant  for  the  post  of Director of  Health Services,  Manipur. There is no material before us  whether the appellant was qualified for the post. If he  was eligible  it  would  be  for  the  Government  to consider how it should deal with the post. We 70 are, however,  surprised that  the  appellant  who  was  not prepared to  go to  Simla in  February 1971  would have been willing to  go to  Manipur in September 1971. In our opinion it would  be giving  him an unfair advantage now by giving a technical benefit  of a  situation whereby  promotion of Dr. Sen has  been invalidated by the High Court. Neither Dr. Sen nor  the   Government  have  preferred  appeal  against  the judgment by  which the  promotions of  Dr. P.C.  Sen and Dr. Jasbir Kaur  were invalidated  by the  High Court.  But  the matter  must   remain  at   that  stage   and  there  is  no justification for  giving a  direction  that  the  appellant should be  considered for  the post  which is deemed to have fallen vacant  in September  1971  on  the  invalidation  of promotion of  Dr. P.C.  Sen. In  this connection  it may  be pointed out  that some  time after  the hearing  was over in this Court  learned counsel for the appellant has circulated a letter  that the High Court has set aside the promotion of respondent 7,  Dr. Ramesh Prasad Singh as also of respondent 21, Dr.  Brij Gopal  Misra. It  is undoubtedly true that the learned single  Judge who  heard the  petition initially had set aside  the promotion of Dr. Brij Gopal Misra to the post of  Regional   Deputy  Director,  N.M.E.P.,  Hyderabad.  But neither from  the judgment  of the  learned single Judge nor from the  judgment of  the Division  Bench it is possible to ascertain that  the promotion of Dr. Ramesh Prasad Singh has been invalidated. No direction in that behalf can be given.      Before we  conclude it  may be  pointed out that on the conclusion of  hearing of  this appeal  in order to heal the wound caused  by impaired dignity of the appellant as herein before mentioned, a suggestion was made to the Government to see if  the present  appellant could be accommodated in some way where he may not feel the humiliation which he claims he suffers. Mr.  P. Parameswara  Rao, learned  counsel for  the Government  promised   to  discuss   the  matter   with  the

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Government and  ultimately on  March 7.  1980,  the  Central Government offered  the post  of Director  and Head  of  the Department for  a programme concerned with vision impairment and amelioration  thereof. In  that post the appellant would be the  Head of  the Department  and would continue to be in supertime grade  II.  This  offer  did  not  appeal  to  the appellant and the matter was left at that.      There is  no substance  in any of the contentions urged on behalf of the appellant and, therefore, this appeal fails and it is dismissed with no order as to costs. V.D.                                      Appeal dismissed. 71