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PETITIONER: D.K MITRA ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT01/07/1985

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. CHANDRACHUD, Y.V. ((CJ) MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR 1558            1985 SCR  Supl. (1) 818  1985 SCC  Supl.  243     1985 SCALE  (2)336  CITATOR INFO :  RF         1986 SC 638  (12)  RF         1991 SC1244  (11)

ACT:      Indian  Railway   Medical  Service   (District  Medical Officers)  Recruitment  Rules  1965/Indian  Railway  Medical Service  (District   Medical  Officers)   Recruitment  Rules 1973/Indian  Railway  Medical  Service  (Divisional  Medical Officers/Senior   Medical    Officers)   Recruitment   Rules 1975/Indian Railway Medical Service (Chief Medical Officers, Additional Chief  medical Officers,  Medical Superintendents and Divisional/Senior  Medical Officers)  Recruitment  Rules 1978-Indian Railway  Medical Service-Combined seniority list of Divisional  Medical Superintendent-Validity of-Promotion- Principle  of   "non-selection"-   Whether   equivalent   to "seniority-cum-suitability"-Non-classification of posts into permanent and  temporary-Whether all posts to be regarded as permanent-Persons appointed  substantively whether  could be senior to  persons appointed in officiating capacity-Persons appointed to  the higher  post on  the basis of "selection’- Whether  could   be  junior   to   the   persons   appointed subsequently-Zone wise-Confirmation-Whether  permissible  in case of  an All  India Service-Determination  of  seniority- Confirmation  date   whether  relevant-Criteria  for  fixing inter-se seniority  between promotees  and direct  recruits- What is-Quota for direct recruitment-Not maintained for long period-Whether there could be rotation of posts.

HEADNOTE:      The  Indian   Railways  Medical   Service  consists  of Assistant  Divisional   Medical  Officers  Class  I  (before January 1,  1973 described  as  Assistant  Medical  Officers Class   II),    Divisional   Medical    Officers,    Medical Superintendents, Chief Medical Officers and Director General of Medical Services.      The Petitioners in the writ petition who were Assistant Medical Officers  Class II  were confirmed,  one in 1962 and the others  in 1963.  During the  years 1970 to 72 they were selected   by    Departmental   Promotion   Committees   for officiating appointments  to the  Class I post of Divisional Medical Officers.  At that  time the  Indian Railway Medical

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Service (District  Medical Officers)  Recruitment Rules 1965 were applicable.  Those Rules  were repealed and replaced by the  Indian   Railway  Medical   Service  (District  Medical Officers) Recruitment  Rules 1973.  Under the  Rules of 1965 and the  Rules 1973  the posts  of District Medical Officers were treated as selection posts. 819      The existing  pay scale  of Rs. 350-900 attached to the post of  Assistant Medical  Officer was revised by the Third Pay Commission  and split  into two  A pay  scales, a higher Class I  scale of Rs. 700-1600 and a lower Class II scale of Rs. 650-1200  and the  posts of  Assistant Medical  Officers were divided  into those  carrying the  higher pay scale and those carrying  the lower  pay scale.  The upgraded posts in the higher  pay scale  of Rs.  700-1600 were  designated  as "Assistant Divisional  Medical  Officers".  The  petitioners were placed in the higher pay scale of Rs. 700-1600 and were designated as  Assistant Divisional  Medical  Officers  with effect from January 1, 1973.      The Rules  of 1973  were replaced by the Indian Railway Medical Service  (Divisional Medical Officers/Senior Medical Officers)  Recruitment   Rules  1975,  which  were  further- replaced  by  the  Indian  Railway  Medical  Service  (Chief Medical Officers, Additional Chief Medical Officers, Medical Superintendents  and  Divisional  Senior  Medical  Officers) Recruitment Rules,  1978. Under  these  Rules  promotion  is effected on  the principle  of "non-selection",  that is, on "seniority-cum-suitability" basis.      The Rules  of 1965  showed that there were 101 posts in the grade  of Divisional Medical Officers. The Rules of 1973 mentioned 109  posts and referred to them as permanent posts only. The  Railway Ministry  for the  promotion of Assistant Medical Officers  to the Class I posts of Divisional Medical Officers indicated  the number  of anticipated vacancies for the  purpose  of  permanent  promotion  and  the  number  of anticipated  vacancies   for  the   purpose  of  officiating appointments, the number under each category being specified zone-wise. A Class I Departmental Promotion Committee met on several occasions and considered the cases of candidates who had completed  five years and above of service as Assistant- Medical  Officers   for  substantive   promotion   and   for officiating promotion, the field of choice being extended to six times  the number  of vacancies.  The  petitioners  were selected on the basis of merit and appointed to officiate as Divisional Medical  Officers on  different dates in 1971 and 1972, except petitioner No. 7 who was promoted and appointed in 1974.      The Railway  Board on  October  30,  1979  published  a combined  seniority  list  of  Divisional  Medical  Officers recruited directly or by promotion. Respondents Nos. 4 to 64 included both  promotees and  direct recruits and were shown in that  list. The  petitioners did  not find  place in  the seniority list.  Subsequently on the basis of that seniority list, some  of the  respondent Divisional  Medical  Officers were appointed on August 31, 1934 to of officiate as Medical Superintendents.      In the  Writ Petition  under Art.  32  the  petitioners challenged the validity of the combined seniority list dated 30th October, 1979 of Divisional Medical Officers and of the officiating   promotions    to   the    posts   of   Medical Superintendents as  violative of  Arts. 14  and  16  of  the Constitution,  contending:   that  they   were  promoted  as Divisional Medical  Officers much  earlier than the promotee respondents; that  their promotion  was made by selection on the basis of merit

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820 adjudged by  the Departmental Promotion Committees under the Rules of  1965;  that  they  had  continued  in  service  as Divisional Medical  Officers against  vacancies in permanent posts without  interruption for  periods ranging  between  8 years to  12 years,  and that  the promotee respondents, who had held  such posts for shorter periods, had been confirmed before the  petitioners and  shown senior  in the  seniority list and preferred for promotion as Medical Superintendents; that the  petitioners should  have  been  confirmed  in  the normal course;  that  the  promotee  respondents  have  been confirmed zone-wise, and such confirmation cannot serve as a proper  reference   for  determine  seniority  because  when confirmation  is   granted  zone-wise,  it  depends  on  the fortuitous  accrual  of  vacancies  arising  arbitrarily  at different  times  and  in  different  numbers  in  different individual zones;  that  if  the  date  of  confirmation  is adopted  as   the  criterion,  confirmation  should  not  be reckoned on  a zonal basis. Promotion to the post of Medical Superintendents, which  is an  all India  cadre post  should properly be  drawn  on  an  All  India  basis  and  that  if confirmation has  to be  considered zone-wise  then for  the purpose of  promotion to  the  all-India  cadre  of  Medical Superintendents  the  only  logical  and  uniform  criterion should  be   the  total  length  of  continuous  service  as Divisional  Medical  Officers  reckoned  from  the  date  of promotion; that  for the  purpose of fixing seniority in the grade of  Divisional Medical  Officers the  seniority in the grade OF  Assistant Medical Officers or Assistant Divisional Medical Officers  is of  no  material  significance  because under the  Rules in  force when the promotion in the instant case  were  made,  the  petitioners  were  governed  by  the principle of selection on the basis of merit; that the quota prescribed for  direct recruitment  and for  promotion under the  Rules   has  been  wrongly  applied  at  the  stage  of confirmation when  it should  have been applied at the stage of appointment  and that  there is no provision for applying the  principle  of  rotation  of  vacancies  between  direct recruits  and  promotees  for  the  purpose  of  determining relative seniority between them.      The respondents,  however contended: that the seniority list has  been correctly  prepared, it contains the names of only those  officers who  were either  directly recruited as Divisional  Medical   Officers  or  had  been  approved  for permanent promotion  against the quota of posts reserved for them in  vacancies allotted among the individual Railways on the basis  of the  cadre position  of each Railway, and that none of  the petitioners  qualified  for  inclusion  in  the seniority list  as they  had been promoted in an officiating capacity to  temporary vacancies  in the posts of Divisional Medical Officers;  that the  petitioners have no right to be treated  at   par  with  those  officers  who  were  holding permanent posts  on a  confirmed basis,  as confirmation was made on the basis of their selection for permanent promotion as Divisional  Medical officers and their seniority was also fixed on  that basis.  According to the practice followed by the Railway Administration three select lists were prepared. List  A   set  out   the  names  of  officers  selected  for substantive  promotion  against  permanent  vacancies.  List included the  names of  officers  selected  for  officiating promotion against  temporary vacancies. The petitioners were placed in  List B. The third list. List C, bore the names of officers included in List by earlier Depart mental Promotion Committees  but   not  considered   as  "suitable  yet"  for substantive promotion  by subsequent  Departmental Promotion

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Committees.  The   inter-se  seniority  between  the  direct recruit and the promotee Divisional Medical 821 Officers has  been carefully  fixed with  reference  to  the direct recruitment and promotional quotas in force from time to time,  without affecting  the date of confirmation of the Divisional Medical  Officers. The  petitioners cannot  claim inclusion in the impugned seniority list as none of them had been promoted  as Divisional Medical Officers on a permanent basis  against   the  quota   of  seats  reserved  for  such promotions  under   the  relevant   Rules,  and  cannot  get weightage of  five years  of substantive service rendered in the  lower   grade  because  the  principle  providing  such weightage for  seniority has not been applied to the Medical Department of the Railways.      Allowing the petition, ^      HELD: 1.  The seniority  list published  by the Railway Ministry’s letter  No. 752-E/530  (EI A)  dated November 22, 1979 as  well as  the appointments  made  to  the  posts  of Medical Superintendents by the Railway Ministry’s letter no. E(O) III-81  PM6 199  dated August 31, 1981 are quashed. The Railway Administration  is  directed  to  draw  up  a  fresh Seniority List  of Divisional  Medical Officers  and to make fresh appointments from among Divisional Medical Officers to the posts of Medical Superintendents. [847 H; 848 A-B]      2.  There  is  nothing  to  indicate  why  the  Railway Ministry sought  to  fill  some  of  the  vacancies  in  the permanent posts  on a substantive basis and the others on an officiating  basis.   The  explanation   offered   is   that substantive appointments  were made  to permanent  vacancies and  officiating   appointments  were   made  to   temporary vacancies. The documents on record do not speak of temporary vacancies at  all. There  is no material suggesting the need for treating  some of the vacancies as temporary and to show that some  vacancies would  have ceased  to exist within the foreseeable future or upon the happening of some anticipated contingency On  the contrary,  the petitioners had continued to  fill   the  vacancies  to  which  the  petitioners  were appointed should be regarded as permanent vacancies. [831 D- G]      3. The  explanation that  officiating appointments were made when  some of the candidates considered for substantive appointment were  found to  be of  inferior calibre for such appointment and,  therefore, some of the vacancies were left to be  filled on  an officiating basis is not plausible. The communication of  the Railway  Ministry to  the Departmental Promotion Committee  specifying the number and nature of the appointments to  be made was issued long before the cases of individual officers were examined for promotion. It was only after the Departmental Promotion Committee had been informed of the  Railway Ministry’s requirement that it commenced its task of selecting candidates for substantive appointment and for officiating  appointment. The  material produced  by the respondents shows  that the  petitioners did not at any time fall within  the field  of  choice  for  making  substantive appointments. That  was because their seniority in the grade of Assistant  Medical Officers  did not at the relevant time bring them  within  the  field  of  choice  for  substantive appointment.   They    were   considered   for   officiating appointment only, and not for substantive 822 appointment. It  was the  mere  statistical  fact  of  their seniority as  Assistant  Medical  Officers,  and  not  their merit, that  precluded their  consideration for  substantive

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appointment as  Divisional Medical  Officers at the relevant time. [831 H; 832 A-D]      4. If  from the outset the temporary vacancies had been regarded   as    permanent   vacancies,    and   substantive appointments  had   been   made   instead   of   officiating appointments, the  petitioners  would  have  been  appointed substantively to  those permanent  vacancies. In  the entire field of  choice in  which they  fall, they were found to be the  most   meritorious.   Ever   since   their   respective appointments in  1971, 1972  and 1974  the petitioners  have continued  to   serve  without  interruption  as  Divisional Medical Officers  and were  doing 50 when this writ petition was filed in 1981. They have continued to serve in the posts for  a   significant  number  of  years,  and  there  is  no indication that  their appointments  will  come  to  an  end merely  because   the  vacancies   have  been  described  as temporary.  There   is  no   material  to  show  that  their confidential Records  contained any  adverse entries or that otherwise they  were not  fit on their merit for substantive appointment to permanent vacancies. The petitioners have now been appointed  Divisional Medical Officers on a substantive basis.  The   only  reason  why  they  were  not  originally appointed substantively to permanent vacancies as Divisional Medical  Officers   is  that   only  a   limited  number  of substantive appointments was desired by the Railway Ministry and  the   petitioners  were   not  considered   for   those substantive appointments  because they  did not  fill within the field  of  choice,  having  regard  to  their  place  of seniority in  the lower grade of Assistant Medical Officers. [832 F-H; 833 A-B]      5. The petitioners are entitled to say that they should be considered  at par,  for the purpose of fixing seniority, with those  appointed to  permanent posts  in a  substantive capacity. There  is nothing  to indicate why they should not be entitled to the benefits which the substantive holders of permanent  posts  enjoy.  For  the  purpose  of  determining seniority among  promotees the petitioners should be treated as having  been appointed  to permanent  vacancies from  the respective dates  of  their  original  appointment  and  the entire period  of  officiating  service  performed  by  them should be  taken into  account as if that service was of the same character  as that performed by the substantive holders of permanent posts. [834 A-C]      Baleshwar Prasad  v. State  of UP.,[1981] 1 S.C.R. 449, 462 and  O.P. Singla v. Union of India, [1984] 2 S.C.C. 450, followed.      6.  In   the  instant  case,  as  the  petitioners  are continuing to  hold the posts of Divisional Medical Officers for several  years, the  inclusion of their names in List is wholly meaningless. [834 D]      7. If  length of  continuous service  reckoned from the date of  promotion furnishes  the criterion  for determining seniority between  the  petitioners  and  the  substantively appointed Divisional Medical Officers, that principle should apply 823 with equal  vigour as  between  the  petitioners  and  those promotee respondents  who also  began  to  serve,  like  the petitioners,  in   officiating  appointments  as  Divisional Medical Officers.  There is  no  reason  why  such  promotee respondents,  although   appointed   subsequently   to   the petitioners, should be treated as senior to them. [834 -F]      8. The  date of  confirmation is  the material date for determining relative  seniority. The  Railway administration in  according   confirmation  has  been  influenced  by  two

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principle  factors.   One  is  that  confirmation  has  been considered  zone-wise.   Confirmation  has   been  made   as vacancies  have   arisen  within   a  particular  zone.  The vacancies differ  from zone  to  zone.  They  no  not  arise equally in  different zones  but turn on factors peculiar to each zone,  such as  the strength  of the  cadre within  the zone, and  the differing  number  of  vacancies  arising  in different  zones   at  different   times.  In  other  words, confirmation based  on the  placement of an officer within a particular zone  must necessarily  be determined  by factors confined  to  that  zone  and  unrelated  to  an  all  India standard. It  is apparent that confirmations limited by such a local  perspective cannot  serve as  a legitimate base for drawing  up   a  seniority   list  intended   for  effecting promotion,   to    the   all    India   cadre   of   Medical Superintendents. To  adopt the  date of  confirmation as the governing point  in  such  circumstances  is  to  inject  an element of  inequality  into  the  very  foundation  of  the promotion  process.  It  is  conceivable  that  the  Railway Administration   has   adopted   the   rule   of   according confirmations zone-wise  for certain practical consideration and the  validity of  that practice  need not be adjudicated on. But  such confirmations  cannot legitimately  constitute the basic norm for drawing up a seniority list of Divisional Medical Officers  for the  purpose of promotion to the grade of Medical  Superintendents.  The  principle  must  be  that seniority should  be related  to the  length  of  continuous service as  Divisional Medical  Officers reckoned  from  the date of  promotion to  the post;  such  service  should  not include any  period served  in  a  fortuitous,  stop-gap  or adhoc appointment. [834 G-H; 835 A-E]      9. After  implementation of  the recommendations of the Third Pay  Commission, all  the officers  comprising the two groups were  Assistant Medical  Officers, and  an  Assistant Medical Officer was nothing but as Assistant Medical Officer who drew  the higher revised scale of pay. The conclusion is inescapable that Assistant Divisional Medical Officers were, for the purpose of promotion as Divisional Medical Officers, governed by  the Rules  of 1965 and the Rules of 1973. Those Rules mention  Assistant Medical  Officers as  a  source  of recruitment, without referring to any limiting qualification that they  should be  officers drawing  a Class  II scale of pay. The  expression "Assistant  Medical Officer"  in  those Rules is  comprehensive  enough  to  include  all  Assistant Medical Officers, whether drawing the class II revised scale of pay  or entitled to the Class I revised scale of pay. And all such  Officers were,  under those Rules, governed by the principle of  selection on merit for promotion as Divisional Medical  Officers.   The  Assistant  Medical  Officers  were designated as  Assistant Divisional  Medical  Officers  with effect from  January 1, when the Rules of 1965 were still in force The  Rules of 1973 came into force in August, 1973. It is true that when Assistant Medical Officers were designated as Assistant  Divisional Medical  Officers  in  the  revised Class I scale of Rs. 700-1600 by 824 Notification No.  E(GP) 74/1/153  dated  July  24,1976,  the notification  spoke   of  the   "appointment"  of  Class  II Assistant Medical  Officers as  Assistant Divisional Medical Officers, but  having regard to the terms of the schedule to the letter  dated December  31, 1974 such notifications must be understood  to mean  that the Assistant Officers had been assigned the  Class I  scale  of  Rs.  700-1600  and  merely described as  Assistant Divisional  Medical  Officers.  They continued to  belong to  the broad  category  of  "Assistant

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Medical Officers".  Upon Assistant  Medical  Officers  being designated as  Assistant Divisional  Medical Officers  under the new  scheme, there was no corresponding amendment in the Rules of  1965 or  the Rules  of 1973.  It is  for the first time, under  the Rules  of 1978, that the post of Divisional Medical Officer is described as a "non selection" post to be filled by  promotion from  the ranks of Assistant Divisional Medical  Officers   and  by  direct  recruitment.  The  only Assistant Medical  Officers now  entitled  to  promotion  as Divisional Medical  Officers were  those drawing the Class I scale of  Rs 700-1600 and designated as Assistant Divisional Medical Officers". The new sub-division of Assistant Medical Officers described  as Assistant Divisional Medical Officers was deemed to have taken birth on January 1, 1973 five and a half years before the Rules of 1978 were brought into force. It could  never  have  been  intended  that  this  class  of Officers should  exist in  a vacuum where no rules operated. There was  no vacuum  because they  were comprehended within the expression  "Assistant Medical  Officer" in the Rules of 1965 and  the Rules of 1973, and therefore, no amendment was considered necessary  in those  Rules to take congnisance of this class. [837 E-H; 838 A-G]      10. The  principle of selection by merit, enunciated in the Rules  of 1965  and  the  Rules  of  1973  governed  the promotion of Assistant Medical Officers (including Assistant Divisional Medical  Officers) to  the  posts  of  Divisional Medical Officer  before the  Rules of  1978 came  into force Both before  and after  January 1,  1973, during  the period before the  Rules of  1978 came  into force the principle of "non-selection", that  is seniority-cum-suitability  in  the lower grade, which was provided in the Rules of 1978 did not apply  to   the  promotion  of  Assistant  Medical  Officers (including Assistant  Divisional  Medical  Officers  to  the posts of Divisional Medical Officers. [838 G-H; 839 A]      11. The  confirmation of  the petitioners and all other officers  appointed  to  the  posts  of  Divisional  Medical Officer before  the Rules  of 1978  came into  force must be governed by  the Rules  of 1965  and the  Rules of 1973. The promotions and appointments made under the Rules of 1965, on the repeal  of those  rules by the Rules of 1973, fall to be governed by the Rules of 1973. [839 D-E]      12. The  inter se  seniority between  the members  of a service will ordinarily depend on the date of entry into the grade.  That   is  an   event  governed   by  the  Rules  of recruitment, whether  it be direct recruitment or pro motion on the  basis of  selection on  merit or  on  the  basis  of seniority in  the lower  grade or  some other  factor. Where seniority is  fixed in  a grade  according to  the length of service in  that grade, that implies a reference back to the date of  entry. It  is wholly  immaterial when the seniority list is prepared. [840 C-E]      In  the   instant  case,   applying  the  criteria  for determining seniority vis-a-vis the promotee respondents and the petitioners to the case of petitioners and the 825 direct recruits,  the petitioners must be held senior to the direct recruits appointed subsequently to them. [842 D-E]      O.P. Singla  v. Union  of India,  [1984] 2  S.C.C. 450, followed.      13. The  rules themselves do not lay down any principle of rotation.  They specify  the quotas  only. It was for the first time  on May  26/27, 1976 that the Railway Ministry by its Letter  No E(O) I-74/SR-6/10 directed that the seniority of Class  II officers of the Medical Department, promoted to Class I  Senior Scale  against the  quota  earmarked  for  a

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particular year vis-a-vis the officers recruited against the direct recruitment  quota for  that year  will be filed on a rotational basis  with reference  to the  direct recruitment and promotional  quotas in  force from  time to  time." This directive,  however,   can  be   of  no  assistance  to  the respondents. It may be open to an administration to work the quota rule through a principle of rotation, but that implies that a  quota rule  is being actively operated and effect is being given to it. In the present case, the quotas laid down by the  Rules  were  not  observed  at  all  and  no  direct recruitment was made, during the years 1973 to 1976. Indeed, the  process   of  direct  recruitment  was  employed  on  a substantial basis  only from  1978 onwards.  There was power under Rule 7 of the Rules of 1973 to relax the provisions of those rules, which would include the provision requiring the observance  of   specified  quotas   for  recruitment   from promotional and  from direct  recruitment sources. [843 G-H; 844 A-D]      A. Janardhana v. Union of India & Ors., [1983] 3 S.C.C. 601, followed,  and A.K.  Subraman &  Ors. etc.  v. Union of India & Ors., [1975] 2 S.C.R. 979 inapplicable.      P.S. Mahal  v. Union  of India, [1984] 4 S.C.C. 545 and Bishan Sarup  Gupta v.  Union of  India, [1975]  Supp. S.C.R 491, referred to. [847 E]      14. The  directly recruited Divisional Medical Officers are entitled  to seniority only from the date of their entry into service  and not  from any anterior date, and therefore cannot enjoy seniority above the petitioners.

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 8353 of 1981.      Under Article 32 of the Constitution of India      P.P. Rao and Parijat Sinha for the Petitioners.      M.M.  Abdul   Khader,  Girish   Chandra  and   Miss  A. Subhashini for the Respondents.      The Judgment of the Court was delivered by 826 PATHAK,  J:  By  this  petition  under  Article  32  of  the Constitution the  petitioners challenge  the validity  of  a combined seniority list dated October 30, 1979 of Divisional Medical  Officers   and  of   promotions   and   officiating appointments made  on the  basis of  that seniority  list to posts of  Medical Superintendents  in  the  Indian  Railways Medical Service.      Medical Service in the Indian Railways is structured in ascending levels. At the base, for the purpose of this case, is the  cadre of Assistant Divisional Medical Officers Class I (who  before January  1, 1973  were described as Assistant Medical Officers  Class II).  Above them  is  the  cadre  of Divisional Medical  Officers. The next above is the cadre of Medical Superintendents.  Still higher  rank  Chief  Medical Officers, and  the apex  of the  hierarchy is  held  by  the Director General of Medical Services.      There  are   eight  petitioners.  They  were  Assistant Medical Officers  Class II  and had  been confirmed  in that grade, one petitioner in 19 62 and the others in 1963.      During the  years 1970  to 1972,  the petitioners  were selected   by    Departmental   Promotion   Committees   for officiating appointments  to the Class I posts of Divisional Medical Officers,  when the  Indian Railway  Medical Service (District Medical  Officers) Recruitment Rules, 1965 were in force. Those  rules were repealed and replaced by the Indian Railways  Medical   Service  (District   Medical   Officers)

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Recruitment Rules,  1973. Under  the Rules  of 1965  and the Rules of  1973, the  posts of District Medical Officers were treated as selection posts.      To give  effect to the recommendations of the Third Pay Commission, the  scales of  pay of  existing  categories  of officers were revised. The existing pay scale of Rs. 350-900 attached to  the posts  of  Assistant  Medical  Officer  was revised and  split into  two pay  scales, a  higher Class  I scale of Rs. 700-1600 and a lower Class II scale of Rs. 650- 1200. The  posts of  Assistant Medical Officers were divided into those  carrying the higher pay scale and those carrying the higher  pay scale.  A very  large  number  of  posts  of Assistant Medical  Officer were  upgraded to  the higher pay scale of  Rs. 700-1600,  and were  designated as  "Assistant Divisional Medical  Officer". The petitioners were placed in the higher  pay scale of Rs. 700-1600 and were designated as Assistant Divisional Medical Officers with effect from 827 January 1.  1973.  The  screening  of  over  2000  Assistant Medical Officers  for the  purpose of  upgrading them to the higher scale  kept the Screening Committee busy from 1974 to 1976 or  so, and  practically no recruitment was made during those  year   either  by   permanent  promotion   or  direct recruitment to the posts of Divisional Medical Officer.      The rules  of 1973  were replaced by the Indian Railway Medical Service  (Divisional Medical Officers/Senior Medical Officers) Recruitment  Rules, 1975.  These, in  their  turn, yielded place  to the  Indian Railway Medical Service (Chief Medical Officers, Additional Chief Medical Officers, Medical Superintendents  and   Divisional  Senior  Medical  Officers Recruitment Rules,  1978. Under the Rules of 1978, promotion is  effected   on  the   principle  of  "non-selection",  an expression in  the Rules  which is  construed by the Railway administration as "seniority-cum-suitability".      By a  letter No.  E (O)  1-78/SR-6/14 dated October 30, 1979 the  Railway Board  published a combined seniority list of Divisional  Medical Officers  recruited  directly  or  by promotion. The  respondents Nos.  4 to 64 were shown in that list. They include promotees as well as direct recruits. The petitioners did  not  find  place  in  the  seniority  list. Subsequently,  on  the  basis  of  their  position  in  that seniority list,  some of  the respondent  Divisional Medical Officers   were    appointed   to   officiate   as   Medical Superintendents by  a Railway Board letter No. E(O)III-81 PN 6/199 dated August 31, 1981.      The petitioners  challenge the  combined seniority list of  Divisional   Medical  Officers   and   the   officiating promotions to  the posts  of  Medical  Superintendents.  The petitioners contend  that  the  seniority  assigned  to  the respondents Nos.  4 to 64 and the consequent promotions made thereafter  violate   Articles   14   and   16(1)   of   the Constitution. The  grievance  operates  in  two  dimensions, against the  promotee respondents  and  against  the  direct recruit respondents.      We propose  to consider  first  the  grievance  of  the petitioners in  respect of  the seniority  accorded  to  the promotee respondents  as  Divisional  Medical  Officers  and their promotion to officiate as Medical Superintendents. The case  of  the  petitioners  is  that  the  petitioners  were promoted as  Divisional Medical  Officers  much  before  the promotee respondents, that their promotion was made 828 by selection  on the basis of merit adjudged by Departmental Promotion Committees  under the Rules of 1965, that they had continued in  service as Divisional Medical Officers against

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vacancies  in   permanent  posts  without  interruption  for periods ranging  respectively between  8 years  to 12 years, and yet  the promotee  respondents, who  had held such posts for  shorter   periods,  had   been  confirmed   before  the petitioners and  shown senior  in  the  seniority  list  and preferred for  promotion as  Medical Superintendents.  It is contended that the petitioners should have been confirmed in the normal  course, the  order of  their  promotion  against permanent  vacancies.   The  petitioners   submit  that  the promotee respondents have been confirmed zone-wise, and such confirmation  cannot   serve  as   a  proper  reference  for determining seniority,  because when confirmation is granted zone-wise, it depends on the fortuitous accrual of vacancies arise  arbitrarily  at  different  times  and  in  different numbers  in   different  individual  zone.  The  petitioners contend that  if the  date of confirmation is adopted as the criterion, confirmation  should not  be reckoned  on a zonal basis, but  as if  the vacancies arose in a single all India structure  for,   the  petitioners  say,  a  seniority  list prepared for the purpose of Promotion to the post of Medical Superintendents,  which   is  an  all  India  cadre,  should properly be  drawn on  an all  India basis.  The petitioners urge that  if confirmation  has to  be considered zone-wise, then for  the purpose of promotion to the all India cadre of Medical  Superintendents   the  only   logical  and  uniform criterion should  be the  total length of continuous service as Divisional  Medical Officers  reckoned from  the date  of promotion. It  is a  criterion  which  makes  the  arbitrary chance  of  confirmation  against  fortuitous  vacancies  in individual zones  irrelevant. Finally,  the petitioners urge that for  the purpose  of fixing  seniority in  the grade of Divisional Medical  Officers the  seniority  ruling  in  the grade of  Assistant Medical Officers or Assistant Divisional Medical Officers  is of  no  material  significance  because under the Rules in force when the Promotions in instant case were made  promotions were  governed  by  the  principle  of selection on the basis of merit.      The respondents,  on the  other hand, maintain that the seniority list has been correctly prepared, that it contains the names  of only  those officers  who were either directly recruited  as   Divisional  Medical  Officers  or  had  been approved for  permanent promotion against the quota of posts reserved for them in vacancies allotted among the individual Railways on the basis of the cadre position of each Rail 829 way,  and   that  none  of  the  petitioners  qualified  for inclusion in the seniority list as they had been promoted in an officiating  capacity to temporary vacancies in the posts of Divisional Medical Officers. The respondents contend that the petitioners  have no  right to  be treated  at par  with those  officers  who  were  holding  permanent  posts  on  a confirmed basis,  as confirmation  was made  on the basis of their  selection   for  permanent  promotion  as  Divisional Medical Officers. It is stated that seniority was also fixed on that  basis. The respondents rely on a practice, followed by the Railway Administration for several years, under which three Select  Lists were  prepared. List A set out the names of  officers  selected  for  substantive  promotion  against permanent vacancies.  List B  included the names of officers selected  for   officiating  promotion   against   temporary vacancies. These  officers were also considered subsequently by Departmental Promotion Committees for permanent promotion along  with  other  eligible  officers  in  the  field.  The petitioners were  placed in  list B.  The third list C, bore the  names   of  officers   included  in   List  by  earlier

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Departmental Promotion  Committees  but  not  considered  as "suitable  yet"  for  substantive  promotion  by  subsequent Departmental Promotion  Committees. It is stated that in the Railway Administration,  Class II  officers were  considered for  substantive   appointment  to  permanent  vacancies  in Class I  posts for officiating appointment against temporary vacancies in  Class I  posts. In  each  case,  there  was  a separate selection  by a  Departmental Promotion  Committee, and the  selection  was  made  zone-wise.  The  Departmental Promotion Committees, after considering the officers at five to six times the number of vacancies, made a selection on an assessment of  their Confidential Records. It is stated that officers   selected   for   officiating   appointment,   and subsequently coming  within the  field of  consideration for permanent appointment against permanent vacancies, were also considered  for   selection   by   subsequent   Departmental Promotion Committees.  In  this  manner,  it  is  said,  all eligible Class  II officers  were considered  for  permanent appointment  against   permanent  vacancies,  and  the  most meritorious were  selected. It  is  pointed  out  that  this practice was  terminated in  the Medical  Department of  the Railways after  1972, because  with effect  from January  1, 1973, the  Class II  posts of Assistant Medical Officer were upgraded as  Class I  posts of  Assistant Divisional Medical Officers.      According to  the respondents,  at no  time during  the period ending  with the  year  1972,  whenever  Departmental Promotion Committees  met  for  selecting  officers  against permanent vacancies 830 did  any  of  the  petitioners  fall  within  the  field  of consideration for  permanent appointment  in view  of  their place of  seniority in  the  class  II  posts.  It  is  also submitted  that  the  promotion  of  the  petitioners,  then Assistant  Medical  Officers,  to  the  post  of  Divisional Medical  Officers   in  an   officiating  capacity   against temporary vacancies cannot be traced to the Rules of 1965 or the Rules  of 1973  because those rules dealt with promotion to permanent vacancies only. Nor could the petitioners, when they  became  Assistant  Divisional  Medical  Officers  with effect from  January 1,  1973, claim the benefit of the said Rules because those rules provided for selection of class II officers to  class I  posts. The  respondents urge  that the principle which  truly governs the petitioners in the matter of promotion  from the posts of Assistant Divisional Medical Officers is  the principle  of seniority-cum-suitability  in the former grade embodied in the Rules of 1978. It is denied that this  construction would amount to giving retrospective operation to  the Rules  of 1978.  It is explained that when the question  of preparing  the seniority  list  arose,  the Rules of  1978 were  in operation,  and  they  provided  for permanent  promotion   on  the   basis   of   seniority-cum- suitability, and  the rule  of selection  on merit operating under the  earlier Rules  no longer  prevailed, and,  in any event, could  not apply when an Assistant Divisional Medical Officer, which  was a  Class  I  post,  was  considered  for promotion to  the Class I post of Divisional Medical Officer Apparently, the  promotee respondents  were  senior  to  the petitioners  as  Assistant  Medical  Officers  or  Assistant Divisional Medical Officers, and that seniority was made the basis of  permanent promotion  to the  grade  of  Divisional Medical Officers.  The respondents  dispute the  proposition that promotion  to the  grade of Divisional Medical Officers must be  made on  the basis  of the  total length of service rendered  as   Assistant  Medical   Officers  and  Assistant

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Divisional Medical Officers considered on an all India basis as, they assert, promotion to vacancies has to be considered zone-wise.      A perusal  of the  Rules of  1965 shows that there were 101 posts  in the  grade of Divisional Medical Officers. The Rules of  1973 mention  109 posts. The posts are not divided between permanent  posts and  temporary posts,  and we  must assume that  the Rules  refer to  permanent posts  only.  It appears  that   proceedings  were   taken  by   the  Railway Administration from  time  to  time  for  the  promotion  of Assistant  Medical   Officers,  to  the  Class  I  posts  of Divisional Medical  Officers. The Railway Ministry indicated the  number   of  existing  vacancies  for  the  purpose  of permanent promotion and the number of 831 anticipated  vacancies   for  the   purpose  of  officiating appointment, the  number under each category being specified zone-wise. The selection for both categories was made on the basis of merit. It may be noted that both under the Rules of 1965 and  the Rules of 1973, the posts of Divisional Medical Officers  were  regarded  as  selection  posts.  A  Class  I Departmental promotion  Committee met  on February  20, 1970 and considered the case of candidates who had completed five years and above of service as Assistant Medical Officers for such recruitment.  Both for  substantive promotion  and  for officiating promotion  the field  of choice  was extended to six  times   the  number   of  vacancies.  Another  Class  I Departmental Promotion Committee met on October 22, 1971 and January 3,  1972. A  third Class  I  Departmental  Promotion Committee held  its meetings  on September  29 and 30, 1972, and October  3, 1972.  The Minutes  of the  several meetings indicate that  the petitioners Nos. 1 to 8 were selected for officiating a appointments, some of them being classified as "very goods"  and others  as "goods".  They were accordingly appointed to  officiate as  Divisional Medical  Officers  on different dates  in 1971  and 1972 and the petitioner No. 7, the last  to be  promoted, was appointed in 1974. The record shows  that   these  were   all  regarded   as   officiating appointments to vacancies in the Class I posts of Divisional Medical Officers. There is nothing before us to indicate why the Railway Ministry sought to fill some of the vacancies in the permanent posts on a substantive basis and the others on an officiating  basis. The  respondents say that substantive appointments  were   made   to   permanent   vacancies   and officiating appointments  were made  to temporary vacancies. We  have  carefully  perused  the  copies  of  the  official documents placed  on the record before us. They do not speak of temporary  vacancies at  all. Nor  is there  any material suggesting the  need for  treating some  of the vacancies as temporary. There is nothing to show that the vacancies would have ceased  to exist  within the foreseeable future or upon the  happening  of  some  anticipated  contingency.  On  the contrary,  the   petitioners  have  continued  to  fill  the vacancies for  several years. In the circumstances we are of opinion that  the vacancies  to which  the petitioners  were appointed should be regarded as permanents vacancies.      As   regards    the   need   for   making   officiating appointments, it  was explained  during oral  argument  that officiating  appointments   were  made   when  some  of  the candidates considered for substantive appointment were found to  be  of  inferior  calibre  for  such  appointment,  and, therefore, some of the vacancies were left to be filled on 832 an  officiating   basis.  We   are  not   impressed  by  the submission. The communication of the Railway Ministry to the

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Departmental promotion  Committee specifying  the number and nature of the appointments to be made was issued long before the  cases   of  individual   officers  were   examined  for promotion. It  was only  after  the  Departmental  Promotion Committee  had  been  informed  of  the  Railway  Ministry-s requirement  that   it  commenced   its  task  of  selecting candidates for  substantive appointment  and for officiating appointment.  The   field  of   choice  for  each  category, substantive  appointment  or  officiating  appointment,  was demarcated by  the rule  that the  officers to be considered would be six times the number of vacancies. According to the material  placed   before  us   by  the   respondents,   the petitioners did  not at  any time  fall within  the field of choice for making substantive appointments. That was because their seniority  in the  grade of Assistant Medical Officers did not  at the relevant time bring them within the field of choice for substantive appointment. They were considered for officiating  appointment   only,  and  not  for  substantive appointment. It  was the  mere  statistical  fact  of  their seniority as  Assistant  Medical  Officers,  and  not  there merit, that  precluded their  consideration for  substantive appointment as  Divisional Medical  Officers at the relevant time.      Now the  petitioners had been selected for promotion by the  same   or  similar   Class  I   Departmental  Promotion Committees as  those selecting  the substantively  appointed Divisional Medical  Officers, and  in no  sense  were  their functions and  responsibilities any  different from those of the substantively  appointed Divisional Medical Officers. It seems to  us that if from the outset the temporary vacancies had been  regarded as  permanent vacancies,  and substantive appointments  had   been   made   instead   of   officiating appointments, the  petitioners  would  have  been  appointed substantively to  those permanent  vacancies. In  the entire field of  choice in  which they  fall, they were found to be the  most   meritorious.   Ever   since   their   respective appointments in  1971, 1972  and 1974  the petitioners  have continued  to   serve  without  interruption  as  Divisional Medical Officers  and were  doing so when this writ petition was filed in 1981. They have continued to serve in the posts for  a   significant  number  of  years,  and  there  is  no indication that  their appointments  will  come  to  an  end merely  because   the  vacancies   have  been  described  as temporary.  There   is  no   material  to  show  that  their confidential Records  contained any  adverse entries or that otherwise they  were not  fit on there merit for substantive appointment to permanent vacancies. Indeed, we are told that the petitioners have now been appointed 833 Divisional Medical  Officers  on  a  substantive  basis.  It appears that  the only  reason why  they were not originally appointed substantively to permanent vacancies as Divisional Medical  Officers   is  that   only  a   limited  number  of substantive appointments was desired by the Railway Ministry and  the   petitioners  were   not  considered   for   these substantive appointments  because they  did not  fall within the field  of  choice,  having  regard  to  their  place  of seniority in  the lower grade of Assistant Medical Officers. While there  is no  doubt that technically. according to the terms of  appointment, the  petitioners were appointed on an officiating basis,  we are  reminded of  the observations of this Court in Baleshwar Prasad v. State of U.P           "We  must   emphasis  that   while  temporary  and      permanent posts  have great  relevancy in regard to the      career of  government servants, keeping posts temporary

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    for long,  sometimes by  annual  renewals  for  several      years, and  denying the claims of the incumbents on the      score that their posts are temporary makes no sense and      strikes us as arbitrary, especially when both temporary      and permanent appointments are functionally identified.      If in  the normal  course, a  post is  temporary in the      real sense  and the  appointee knows  that  his  tenure      cannot exceed  the post  in longevity,  there cannot be      anything, unfair  of capricious in clothing him with no      rights. Not  so, if  the post  is, for  certain  depart      mental or  like purposes, declared temporary, but it is      within the  ken of  both government,  and the appointee      that the  temporary posts  are virtually long-lived. It      is irrational  to reject  the claim  of  the  temporary      appointee on  the nominal  score of  the terminology of      the post.  We must  also express  emphatically that the      principle which  has  received  the  sanction  of  this      Court’s pronouncements is that officiating service in a      post is for all practical purposes of seniority as good      as service on a regular basis." These are  apposite observations  bearing  directly  on  the point before  us. We  may point  out that  they  were  found relevant by this Court 834 in deciding  O.P. Singla  v. Union of India. To our mind the petitioners  are   entitled  to  say  that  they  should  be considered at  par for the purpose of fixing seniority, with those  appointed   to  permanent   posts  in  a  substantive capacity. Nothing  has been placed before us to indicate why they should  not be  entitled  to  the  benefits  which  the substantive holders of permanent posts enjoy. It seems to us that  for   the  purpose   of  determining  seniority  among promotees the t petitioners should be treated as having been appointed to permanent vacancies from the respective date of their  original   appointment  and   the  entire  period  of officiating service  performed by  them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts.      As regards  the practice  on which the respondents have relied, of  maintaining the  three lists  A,  and  that  the petitioners were  shown  in  List  as  being  fit  only  for officiating promotion  against a temporary vacancy, it seems to us  that the circumstance makes no difference to the view taken by  us. We  are of  opinion that  on the facts of this case, when  the petitioners are continuing to hold the posts of  Divisional  Medical  Officers  for  several  years,  the continued  inclusion  of  their  names  in  List  is  wholly meaningless.      If it  is true  that the  length of  continuous service reckoned from  the date of promotion furnishes the criterion for determining  seniority between  the petitioners  and the substantively appointed  Divisional Medical  Officers,  that principle should  apply with  equal vigour  as  between  the petitioners and those promotee respondents who also began to serve, like  the petitioners, in officiating appointments as Divisional Medical  Officers. There  is no  reason why  such promotee respondents, although appointed subsequently to the petitioners, should be treated as senior to them.      But it  is  said,  the  date  of  confirmation  is  the material date  for determining  relative seniority,  and the promotee respondents  were confirmed before the petitioners. It appears  that the  Railway  administration  in  according confirmation has  been influenced  by two principal factors. One is  that confirmation  has been considered on zone-wise. Confirmation has been made as vacancies have arisen within a

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particular zone. The vacancies differ from zone to zone. 835 They do  not arise  equally in  different zones, but turn on factors peculiar  to each  zone, such as the strength of the cadre within the zone, and the differing number of vacancies arising in  different zones  at different  times.  In  other words, confirmation  based on  the placement  of an  officer within a  particular zone  must necessarily be determined by factors confined  to that zone and unrelated to an all India standard. It  is apparent that confirmations limited by such a local  perspective cannot  serve as  a legitimate base for drawing  up   a  seniority   list  intended   for  effecting promotions   to    the   all    India   cadre   of   Medical Superintendents. To  adopt the  date of  confirmation as the governing point  in  such  circumstances  is  to  inject  an element of  inequality  into  the  very  foundation  of  the promotion  process.   I  is  conceivable  that  the  Railway Administration   has   adopted   the   rule   of   according confirmations zone-wise for certain practical considerations and, therefore,  we do  not propose  to  adjudicate  on  the validity of  that practice.  But we  do lay  down that  such confirmations cannot  legitimately constitute the basic norm for drawing  up  a  seniority  list  of  Divisional  Medical Officers for  the purpose  of  promotion  to  the  grade  of Medical Superintendents.  In  the  circumstances,  the  true principle, in  our opinion, must be that seniority should be related to  the length  of continuous  service as Divisional Medical Officers  reckoned from the date of promotion to the post. This  is subject  of course to the exception that such service  should   not  include   any  period   served  in  a fortuitous, stop-gap or ad hoc appointment.      Having said this, we may advert now to the other factor which appears  to have influenced the Railway administration in assigning  seniority. The  impugned  seniority  list  was prepared in 1979. It was drawn up when the Rules of 1978 had come into force. It was drawn up at a time when the new rule of  "non-selection"  embodied  in  the  Rules  of  1978.  Or "seniority-cum-suitability" as  the  respondents  understand it, had begun to govern promotion to the grade of Divisional Medical  Officers.  The  Railway  administration,  following those rules,  ignored the fact that the petitioners had been selected on  their merit to those posts long before, and had occupied them  all  the  years  since.  The  consequence  of applying the  rule of seniority-cum-suitability in the lower grade was  to wipe  out all  the advantage  claimed  by  the petitioners by  virtue of  the several  years of  continuous service, and  to  give  an  ascendancy  to  those  Assistant Medical Officers  who although  promoted  subsequently  were confirmed earlier only by 836 reason of  their seniority  in the lower grade. The question is  whether   the  rule   of  seniority-cum-suitability  can prevail.  The   point  would   have  been  capable  of  easy resolution but for the complexity introduced in implementing the recommendations  of the  Third Pay Commission. The Third Pay Commission  recommended an  upward revision of the scale of  pay  attached  to  different  grades  of  posts  in  the Railways. In  the course  of implementing the recommendation in relation  to the  Medical Department of the Railways, the Railway Ministry  issued a letter No. PC III/74/PS-1/2 dated December 31,  1974 publishing a schedule showing the revised scales of pay. The schedule contained a special provision in regard to  the posts of Assistant Medical Officer. The entry read: -----------------------------------------------------------

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Designation Authorised Existing rates Revised  Revised rates of post     Scale of   of non-        Scale    of non-            Pay        Practising     of Pay   Practising                        allowance              allowance             (Rs.)      (Rs.)                   (Rs.) ----------------------------------------------------------- Assistant    350-25-     33-1/3% of    700-40-   1-5  stages Medical     500-30-    pay subject   900-EB-   Rs. 150/-p.m. Officer      590-EB-    to a minimum  40-1100-  6-10 stages:             30-800-    of Rs. 150/-  50-1250-  Rs. 200/-p.m.            EB-35-900  per month     EB-50-            (Class II)               1600                                     (Class  I) 11-15 stages:                                                Rs. 250/-p.m.                                               16th stage onwards: Rs. 300/-p.m.                                  650-30-   1-8 stages:                                        740-35-   Rs. 150/-p.m.                                             810-EB                                     35-880-40                                     1000-EB-  9-13 stages:                                40-1200   Rs. 200/-p.m. 14-16 stages:                                            Rs. 250/p.m. Remarks: AMOs  in the existing Class II scale of Rs. 350-900      will be  screened to  determine their  fitness for  the      revised Class  I scale  of Rs.  700-1600 and only those      found fit  will be  entitled to  this revised  Class  I      scale. Those  not found  fit will  be entitled  only to      revised standard  Class II  scale of Rs. 650-1200 until      they are  found  fit  for  Class  I  by  the  Screening      Committee. Posts operated in the revised Class 837      I scale  will be designated as "Assistant Divl. Medical      Officer". Separate  orders will be issued regarding the      number of  posts to be placed in each of the two scales      from time to time.      It is  apparent that  the  post  of  Assistant  Medical Officer originally  carried the  Class II  scale of Rs. 350- 900. That  scale of  pay was now substituted by two distinct scales of  pay, a higher scale of Rs. 700-1300 (Class I) and a revised  lower scale  of Rs.  650-1200  (Class  II).  Both scales of  pay were  shown against  the posts  of  Assistant Medical Officer.  The Class  I scale  of  Rs.  700-1600  was intended for Assistant Medical Officer who were found fit by a Screening Committee for that scale, and posts operating in that scale  were designated as "Assistant Divisional Medical Officer". The  Assistant Medical  Officers not  found fit by the Screening  Committee were  entitled only  to  the  lower Class II  scale of Rs. 650-1200 until they were subsequently found fit  for the Class I scale by the Screening Committee. It is  clear from the entry in the schedule that both groups of officers,  those drawing the Class I higher scale as well as those  drawing the  Class II  lower scale,  were included under the  single category  "Assistant Medical Officer". All Assistant  Medical   Officers  were  screened  in  order  to determine who among them were superior to the others for the purpose of  meriting the higher of the two revised scales of pay. It was merely as a matter of convenience that Assistant Medical Officers  who were allotted the higher revised scale were  said  to  hold  the  posts  designated  as  "Assistant Divisional Medical  Officer Assistant",  In short,  all  the officers comprising  the two  groups were  Assistant Medical Officers, and  an Assistant  Divisional Medical  Officer was nothing but an Assistant Medical Officer who drew the higher

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revised scale  of pay.  That being  so,  the  conclusion  is inescapable that Assistant Divisional Medical Officers were, for the purpose of promotion as Divisional Medical Officers, governed by  the Rules  of 1965 and the Rules of 1973. Those Rules mention  Assistant Medical  Officers as  a  source  of recruitment, without referring to any limiting qualification that they  should be  officers drawing  a Class  II scale of pay. The  expression "Assistant  Medical Officer"  in  those Rules is  comprehensive  enough  to  include  all  Assistant Medical Officers, whether drawing the Class II revised scale of pay  or entitled to the Class I revised scale of pay. And all such  Officers were,  under those Rules, governed by the principle of selection on merit for promotion as Divisional 838 Medical Officers.  It  must  be  remembered  that  Assistant Medical Officers  were designated  as  Assistant  Divisional Medical Officers  with effect from January 1, 1973, when the Rules of  1965 were  still in  force. The Rules of 1973 came into force  in August,  1973. It is true that when Assistant Medical Officers  were designated  as  Assistant  Divisional Medical Officers  in the  revised Class  I scale of Rs. 700- 1600 by  a notification  such as  Notification  No.  E  (GP) 74/1/153 dated  July 24, 1976, the notification spoke of the "appointment" of  Class II  Assistant  Medical  Officers  as Assistant Divisional  Medical Officers, but having regard to the terms of the schedule to the Railway University’s letter dated  December   31,  1974   referred  to   earlier,   such notification must  be understood  to mean that the Assistant Medical Officers  had been assigned the Class I scale of Rs. 700- 1600  and  merely  described  as  Assistant  Divisional Medical Officers.  As explained  earlier, they  continued to belong to  the broad  category "Assistant Medical Officers". In this  connection, it  is significant  that upon Assistant Medical Officers  being designated  as Assistant  Divisional Medical  Officers   under  the  new  scheme,  there  was  no corresponding amendment in the Rules of 1965 or the Rules of 1973. It  is for  the first  time, under  the Rules of 1978, that we  find that the post of Divisional Medical Officer is described  as   a  "non-selection"  post  to  be  filled  by promotion from  the ranks  of Assistant  Divisional  Medical Officers and by direct recruitment. In other words, the only Assistant Medical  Officers now  entitled  to  promotion  as Divisional Medical  Officers were  those drawing the Class I scale  of   Rs.  700-1600   and  designated   as  "Assistant Divisional Medical  Officers". What is important to remember is that  the new  sub-division of Assistant Medical Officers described  as  Assistant  Divisional  Medical  Officers  was deemed to  have taken  birth on  January 1, 1973. five and a half years before the Rules of 1978 were brought into force. It could  never  have  been  intended  that  this  class  of officers should  exist in  a vacuum where no rules operated. There was  no vacuum  because they  were comprehended within the expression  "Assistant Medical  Officer" in the Rules of 1965 and  the Rules  of 1973, and therefore no amendment was considered necessary  in those  Rules to  take cognizance of this class or sub-division.      We hold  that the  principle  of  selection  by  merit, enunciated in  the Rules  of 1965  and  the  Rules  of  1973 governed  the   promotion  of   Assistant  Medical  Officers (including Assistant  Divisional Medical  Officers)  to  the posts of Divisional Medical Officer before the Rules of 1978 came into force. Both before and after January 1, 1973, 839 during the  period before the Rules of 1978 came into force, the principle  of "non-selection",  that  is  seniority-cum-

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suitability in  the lower  grade, which  was provided in the Rules of  1978 did  not apply  to the promotion of Assistant Medical Officers  (including  Assistant  Divisional  Medical Officers) to the posts of Divisional Medical officers.      It is  also beyond  dispute that  having regard  to the provisions of  the Rules of 1978, those Rules can apply only to promotions  and appointments  to the  posts of Divisional Medical Officers  made under  them, that  is from  and after August  12,   1978.  They   cannot  affect   promotions  and appointments already  made before  that date. And as the act of confirmation  does not  amount to a fresh appointment but merely to  setting the  seal of  approval on  an appointment already made,  it must  follow that the Rules of 1978 cannot be applied  for the  purpose of  confirming  promotions  and appointments made under the earlier Rules.      Consequently, upon  all the  considerations  set  forth earlier, the  confirmation of  the petitioners and all other officers  appointed  to  the  posts  of  Divisional  Medical Officer before  the Rules  of 1978  came into  force must be governed by  the Rules of 1965 and the Rules of 1973. It may be noted  that promotions  and appointments  made under  the Rules of  1965, on the repeal of those rules by the Rules of 1973, fall  to be  governed by  the Rules of 1973, for while repealing tho  Rules of  1965 Rule  9 of  the Rules  of 1973 provides:           "Provided that  anything done  or any action under      the rules so repealed shall be deemed to have been done      or taken  under the  corresponding provisions  of these      rules." Significantly, such  a saving  provision is  absent  in  the Rules of  1978. this  is as  clear an indication as any that the scheme  under  the  Rules  of  1978  marked  a  complete departure from  that embodied  in the earlier Rules. We hold that the  confirmation of the petitioners and other officers appointed  as   Divisional  Medical   Officers  fall  to  be considered under  the Rules of 1965 or the Rules of 1973 and not under  the Rules  of  1978.  Accordingly,  the  rule  of seniority-cum-suitability   cannot   be   applied   to   the petitioners and the promotee 840 respondents, and  all promotee respondents who were promoted to the posts of Divisional Medical Officer subsequent to the petitioners  must   be   regarded   as   junior   to   them, notwithstanding that  they may  have ranked  senior  to  the petitioners in  the  grade  of  Assistant  Medical  Officers (including  Assistant  Divisional  Medical  Officers).  This principle will  rule even  where confirmation  is made zone- wise,  for  in  the  absence  of  anything  adverse  in  the officer’s conduct, quality of work or other relevant factor, confirmation should  follow the  order in which the original appointments have been made.      The respondents  point out  that the impugned Seniority List was  prepared in  1979, when  the Rules of 1978 were in force, and  therefore the  principle of  seniority-cum-merit was made  the basis of the Seniority List. It is immaterial, in our  opinion, that  the Seniority  List was  prepared  in 1979. The  inter se  seniority  between  the  members  of  a service will ordinarily depend on the date of entry into the grade.  That   is  an   event  governed   by  the  rales  of recruitment, whether  it be  direct recruitment or promotion on the  basis of  selection on  merit or  on  the  basis  of seniority in  the lower  grade or  some other  factor. Where seniority is  fixed in  a grade  according to  the length of service in  that grade, that implies a reference back to the date of  entry. It  is wholly  immaterial when the Seniority

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List is prepared.      We approach  the second  part of  this  case  now.  The petitioners challenge  the seniority  assigned to the direct recruit respondents  in the  impugned Seniority  List.  They contend that the quota prescribed for direct recruitment and for promotion  under the  Rules has  been wrongly applied at the stage  of confirmation  when it should have been applied at the stage of appointment. They also contend that there is no provision  for applying  the  principle  of  rotation  of vacancies between  direct recruits  and  promotees  for  the purpose of  determining relative seniority between them. And even if  it can  be said  that the  directive issued in 1976 constitutes  a  valid  rule  of  rotation,  it  is  open  to prospective   operation   only   and   cannot   be   applied retrospectively. Finally,  the  petitioners  urge  that  the promotees should  be held  entitled to  a weightage  of five years on the basis of their service in the Class II posts of Assistant Medical  Officers when considering their seniority in relation to direct recruits. 841      The case of the respondents that the inter se seniority between the  direct  recruit  and  the  promotee  Divisional Medical Officers  has been carefully fixed with reference to the direct  recruitment and promotional quotas in force from time to  time, without affecting the date of confirmation of the Divisional  Medical Officers. It is explained that where the promotees have been promoted in excess of their quota in a particular  year, they  have to  be pushed down to a later year  for  absorption  when  due  within  their  quota,  and seniority has been fixed accordingly. It is pointed out that for some  years direct  recruitment could not be resorted to on the  required scale  as the  restructuring of the Medical Department was  under consideration with a view to improving the avenues  of promotion.  In consequence  direct  recruits appointed in  later years  were brought  up  higher  in  the Seniority List  in order  to provide them their due position according to  the quota  of vacancies  laid down  for direct recruitment. The  respondents also point out that Divisional Medical Officers  were allowed  to count seniority only from the date  of permanent  absorption if  such  absorption  was within their  quota. It  is stated  that from  1973  onwards representations were  made by  and on  behalf  of  promotees Divisional  Medical  Officers  to  give  them  weightage  in respect of  their officiating  service for  the  purpose  of seniority in the cadre of Divisional Medical Officers vis-a- vis the  direct recruits, and after giving due consideration to those representations and taking into regard the judgment of this  Court in  A. K.  Subraman &  Ors. etc.  v. Union of India & Ors., it was decided that inter se seniority between direct recruit  Divisional  Medical  Officers  and  promotee Divisional Medical  Officers promoted  permanently should be fixed on  a rotational  basis with  reference to  the direct recruitment and  promotional quotas  in force  from time  to time. It  is maintained that the impugned Seniority List was prepared on  the basis of those principles. The petitioners, it is  urged, cannot claim inclusion in that list as none of them had  been promoted  as Divisional Medical Officers on a permanent basis against the quota of seats reserved for such promotions under  the  relevant  Rules.  The  claim  of  the petitioners to  a weightage  of five  years  of  substantive service rendered  in the  lower grade  is  disputed  by  the respondents on  the ground that the principle providing such weightage for  seniority has not been applied to the Medical Department of the Railways in view of the structural pattern of the Department.

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842      The objection  of the  Respondents that the petitioners were not  appointed  to  the  posts  of  Divisional  Medical Officers on  a permanent  basis and  therefore they were not entitled to  inclusion in the Seniority List can be disposed of shortly. We have already held while examining the case of the petitioners  vis-a-vis the promotee respondents that the petitioners  were   entitled  to  be  treated  at  par  with substantively appointed  Divisional Medical Officers for the purpose of  fixing seniority, and the circumstance that they were  appointed   in  an  officiating  capacity  was  of  no significance in  this regard.  We have  pointed out that for determining seniority among promotees the petitioners should be treated  as having  been appointed to permanent vacancies from the respective dates of their original appointments and the entire  period of  their officiating  service should  be taken into  account as  if that  service  was  of  the  same character as  that performed  by the  substantive holders of permanent posts.  We have  held further  that  the  promotee respondents appointed  subsequently to  the petitioners must be regarded  as junior  to them  even though  senior in  the lower grade.  We have  detailed the  reasons for taking this view.  Applying   the  same  criteria  for  determining  the seniority between  the petitioners  and the direct recruits, we are  of opinion  that the petitioners must be held senior to the  direct recruits  appointed subsequently  to them. In this connection,  it would  be permissible to quote from the judgment of  this Court  in O.  P. Singla (Supra), where the question was of fixing seniority between temporary promotees and direct recruits:           "Promotees, who  were appointed under Rule 16 have      been officiating  continuously,  without  a  break,  as      Additional District  and Sessions  Judges  for  a  long      number of  years. It  is both unrealistic and unjust to      treat them  as aliens to the Service merely because the      authorities  did  not  wake  up  to  the  necessity  of      converting the temporary posts into permanent ones even      after some  of the  promotees had worked in those posts      from five  to twelve  years.... The fact that temporary      posts created in the Service under Rule 16(1) had to be      continued for years on end shows that the work assigned      to the  holders of  those posts  was, at  least at some      later stage,  no longer  of a temporary nature. And yet      instead  of   converting  the   temporary  posts   into      permanent ones, the authorities slurred over the matter      and imperilled, though unwittingly 843      the reasonable  expectations of the promotees .........      It is  not fair  to tell  the promotees  that they will      rank as  juniors to  direct recruits who were appointed      five  to   ten  years   after  they   have   officiated      continuously in  the posts  created in  the Service and      held by them, though such posts may be temporary."      And further:      "The best  solution to the situation which confronts us      is  to  apply  the  rule  which  was  adopted  in  S.B.      Patwardhan v. State of Maharashtra (1977) 3 SCR 775. It      was held  by this  Court in  that case  that all  other      factors being  equal, continuous  officiation in a non-      fortuitous vacancy  ought to receive due recognition in      fixing seniority between persons who are recruited from      different sources,  so long  as they belong to the same      cadre, discharge  similar functions  and bear  the same      responsibilities. Since  the rule  of ’quota  and rota’      ceases to  apply when  appointments are made under Rule

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    16  and  17,  the  seniority  of  direct  recruits  and      promotees  appointed   under  those   Rules   must   be      determined according  to  the  dates  on  which  direct      recruit were  appointed to  their respective  posts and      the  dates   from  which   the  promotees   have   been      officiating  continuously  either  in  temporary  posts      created in  the Service  or in substantive vacancies to      which they were appointed in a temporary capacity."      Considerable emphasis  has been laid by the respondents on the  fact that  in the  present case  the pertinent Rules laid down  the respective direct recruitment and promotional quotas from time to time, and it was necessary to adjust the seniority between  the  direct  recruit  Divisional  Medical Officers and  the promotee  Divisional Medical  Officers  in such a  way that  the quotas  were maintained  from year  to year. This  implied, it  is urged, the rotation of vacancies between the  two classes reserving them for one or the other in an  order which  would ensure compliance with the quotas. The Rules  themselves do  not  lay  down  any  principle  of rotation. They specify the quotas only. It was for the first time on  May 26/27,  1976 that  the Railway  Ministry by its letter No.E(O)I-74/SR-6/10  directed that  "the seniority of Class II officers of the Medical Department, 844 promoted to Class I Senior Scale against the quota earmarked for a  particular  year  vis-a-vis  the  officers  recruited against the  direct recruitment  quota for that year will be fixed on  a rotational  basis with  reference to  the direct recruitment and  promotional quotas  in force  from time  to time." This  directive, however,  can be of no assistance to the respondents. It may be open to an administration to work the quota  rule through  a principle  of rotation,  but that implies that  a quota  rule is  being actively  operated and effect is being given to it. In the present case, it must be borne in  mind that  the quotas  laid down by the Rules were not observed  at all  by the  Railway administration, and no direct recruitment  was made  during the years 1973 to 1976. Indeed, the  process of direct recruitment was employed on a substantial basis  only from  1978 onwards. Only one officer appears to  have inducted  by direct  recruitment  into  the grade in  1977 and  apparently none  before.  The  grade  of Divisional Medical Officers was manned by promotees selected on their merit under the Rules of 1965 and the Rules of 1973 There was  power under  Rule 7 of the Rules of 1973 to relax the provisions  of those  Rules,  which  would  include  the provision requiring  the observance  of specified quotas for recruitment from  promotional and  from  direct  recruitment source It seems to us that the present case falls within the dicta of  this Court  in A. Janardhana v. Union of India and Others where the Court said:           "We do  propose to examine and expose an extremely      undesirable, unjust  and inequitable situation emerging      in service  jurisprudence from  the precedents  namely,      that a  person already  rendering service as a promotee      has to  go down  below a  person who comes into service      decades after  the promotee  enters the service and who      may be a schoolian, if not in embryo, when the promotee      on being  promoted on  account  of  the  exigencies  of      service as required by the Government started rendering      service." and concluded with the observations:           "Even where  the recruitment  to a service is from      more than  one source  and a  quota is  fixed for  each      service 845

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    yet more  often the  appointing authority  to meet  its      exigencies of service exceeds the quota from the easily      available source of promotees because the procedure for      making  recruitment   from   the   market   by   direct      recruitment is  long, prolix  and time  consuming.  The      Government for  exigencies of  service,  for  needs  of      public  services   and  for  efficient  administration,      promote   persons    easily   available    because   in      hierarchical service  one hopes  to move  upward. After      the promotee  is promoted, continuously renders service      and is  neither found  wanting nor  inefficient and  is      discharging his  duty to  the satisfaction  of  all,  a      fresh recruit  from the market years after promotee was      inducted in  the service  comes and  challenges all the      past recruitments  made before  he was borne in service      and some  decisions especially the ratio in Jaisinghani      case as  interpreted in  two B.S. Gupta cases gives him      an advantage  to  the  extent  of  the  promotee  being      preceded in  seniority by  direct  recruit  who  enters      service long  after the promotee was promoted. When the      promotee was  promoted and  was rendering  service, the      direct recruit may be a schoolian or college going boy.      He emerges from the educational institution, appears at      a  competitive   examination  and   starts  challenging      everything that  had happened during the period when he      has had  nothing to do with service . If this has not a      demoralising effect  on service  we fail  to  see  what      other inequitous  approach would  be more  damaging. It      is, therefore,  time to  clearly initiate a proposition      that a  direct recruit who comes into service after the      promotee  was   already  unconditionally   and  without      reservation promoted  and whose  promotion is not shown      to  be   invalid  or   illegal  according  to  relevant      statutory  or   non-statutory  rules   should  not   be      permitted by  any principle  of seniority  to secure  a      march  over   a  promotee  because  that  itself  being      arbitrary would be violative of Articles 14 and 16."      In the  present case,  there was  no direct recruitment upto  1977   for  certain  administrative  reasons,  and  no observance of  the quota  system embodied  in the prevailing Rules. The  Assistant Medical  Officers  were  pressed  into service, promoted as Divisional Medical 846 Officers and  were alone responsible for assuming the burden and discharging  the functions  and duties  of  those  posts during all  the years  until direct recruitment was made. It would  be   grossly  unjust   and  discriminatory   in   the circumstances  to  require  them  to  be  junior  to  direct recruits brought in some years later.      The respondents  rely on A.K. Subraman (supra). In that case,  however,   the  facts   which  the  Court  took  into consideration and upon which it proceeded to render judgment were different.  The point  raised in the present case falls more appropriately  within the  scope of the observations in A. Janardhana (supra), to which elaborate reference has been made  earlier.   Indeed,  when  A.K.  Subraman  (supra)  was considered subsequently by this Court in P.S. Mahal v. Union of India  the Court  expressly  referred  to  the  exception implied in  Bishan Sarup  Gupta v.  Union of  India  as  the effect of  a serious  deviation from  the quota rule, and it recorded its agreement with A Janardhana (supra). It said:           "But this  rotational rule  of seniority  can work      only if  the quota  rule is  strictly implemented  from      year to  year. Some  slight deviations  from the  quota      rule may not be material but as pointed out by Palekar,

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    J. in  the  Bishan  Sarup  Gupta  case,  "if  there  is      enormous deviation, other considerations may arise". If      the rotational  rule of  seniority is to be applied for      determining seniority  amongst officers  promoted  from      different sources, the quota rule must be observed. The      application of  the rotational  rule of  seniority when      there is  large deviation from the quota rule in making      promotions is  bound to  create hardship  and injustice      and result in impetmissible discrimination. That is why      this Court pointed out in A.K. Subraman case that           ’..when recruitment is from two or several sources      it  should  be  observed  that  there  is  no  inherent      invalidity in  introduction of quota system and to work      it out  by a rule of rotation. The existence of a quota      and  rotational  rule,  by  itself,  will  not  violate      Article 14 or Article 16 of the 847      Constitution It  is the  unreasonable implementation of      the same  which may, in a given case, attract the frown      of the  equality clause.’ (SCC para 28, p.333:SCC (L&S)      p.50)           The rotational  rule of  seniority is inextricably      linked up  with the quota rule and if the quota rule is      not strictly  implemented and  there is large deviation      from it  regularity from  year to  year,  it  would  be      grossly discriminatory and unjust to give effect to the      rotational rule  of seniority. We agree wholly with the      observation of  D.A. Desai, J. in A Janardhana v. Union      of India that           ’...where  the  quota  rule  is  linked  with  the      seniority rule if the first breaks down or is illegally      not adhered  to giving  effect to  the second  would be      unjust, inequitous  and improper.’  (SCC para 29, p.621      :SCC (L&S) p. 487)           This was precisely the reason why the Court in the      first Bishan  Sarup  Gupta  case  held  that  with  the      collapse of  the quota  rule, the rule of seniority set      out in Rule 1 (f) (iii) also went."      In  our  opinion,  the  directly  recruited  Divisional Medical Officers  are entitled  to seniority  only from  the date of  their entry  into service and not from any anterior date, and  therefore cannot  enjoy  a  seniority  above  the petitioners. The date of appointment to a permanent vacancy, whether of  a promotee or a direct recruit, will be the date for determining  the seniority  of the  officer. We may also observe  that   there  is   no  ground   for  detaining  the confirmation of  the petitioners  merely because  the  quota reserved for direct recruitment has not been filled.      As  regards   the  claim   to  weightage  made  by  the petitioners on the basis of their service in the lower grade of Assistant  Medical Officers,  we find no substance in the claim because  the administrative  instructions issued under the Railway Board’s letter No. E.54/SR-6/1/2 dated March 10, 1955, on  which the  petitioners rely,  did not apply to the Medical Department of the Railways.      In the  result,  the  writ  petition  is  allowed,  the Seniority List  published by  the Railway  Ministry’s letter No. 752-E/530 (E1A) 848 dated November  22, 1979 as well as the appointments made to the  posts   of  Medical   Superintendents  by  the  Railway Ministry’s letter  No. E(O)III-81  PM6/199 dated  August 31, 1981 are  quashed. The Railway administration is directed to draw  up  a  fresh  Seniority  List  of  Divisional  Medical Officers in  accordance with the principles laid down in the

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judgment and  to make  fresh  appointments  from  among  the Divisional  Medical   Officers  to   the  posts  of  Medical Superintendents. The petitioners are entitled to their costs against respondents Nos. 1, 2 and 3. A.P.J.    Petition allowed. 849