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PETITIONER: DR. S.P. KAPOOR ETC.

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH & ORS. ETC.

DATE OF JUDGMENT02/11/1981

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA

CITATION:  1981 AIR 2181            1982 SCR  (1)1043  1981 SCC  (4) 716        1981 SCALE  (3)1666

ACT:      Central Health  Service Rules  1963 Rules 7A and 8A and Himachal Pradesh  Health Service  Rules 1974  Rules 9(4) and 10(a)(iii)-Union  Territory   of   Himachal   Pradesh-Health Department manned  by officers  of Central  Health  Service- Union Territory  becoming  a  State  Formation  of  Himachal Pradesh  Health   Service-Officers  exercising   option   to continue  in   the  new   Health  Service-Determination   of seniority-basis-Not date  of induction  into Central  Health service-only under Rule 10(a)(iii) of State Rules.      Service Rule  not providing  category with which Roster to be  started-Government direction  supplementing the  Rule that  Roster   be  started  with  category  of  Specialists- Government action whether valid.      Annual Confidential  Report-Initiated by an officer who is junior and also an aspirant for promotion to higher post- Such  confidential  report  whether  valid-Consideration  by Departmental Promotion Committee-Effect of.      Services and  Dismissals-State Health  Service-Officers holding posts  on ad  hoc  basis  from  1973-Seniority  list finalised  on   November   2   1979-Departmental   Promotion Committee constituted on November 3 1979-Promotions made and orders of  appointment issued  on the  same  day-Post  haste manner of selection and appointment-Effect of.

HEADNOTE:      The Central  Health  Service  was  constituted  by  the Central Government and the Central Health Service Rules 1963 came into force with effect from 15-5-1963. These Rules were amended by  the Central  Health  Service  (Amendment)  Rules 1966. Before  the Punjab  Reorganisation Act came into force the State  of Punjab had its own Health Service known as the PCMS with two grades, Grade I and Grade II. After the Punjab Reorganisation Act  came into  force, and the Central Health Service was  formed, some  persons belonging to the PCMS and some persons working as Medical officers in hospitals run by Local Bodies  were inducted into that Service after they had exercised  their   option  to   be  inducted   therein.  The petitioners and  contesting  employees-respondents  in  writ petition nos  2 of  1980 and  288 of  1979 filed in the High Court had  been inducted  into the  Central  Health  Service after they  had exercised  their option.  When the  Himachal

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Pradesh  Union   Territory  was  in  existence,  its  Health Department was  manned by  officers of  the  Central  Health Service, but  after Himachal  Pradesh became  a full fledged State,  the  Himachal  Health  Service  was  constituted  on 24.1.1974 1044 under the  Himachal Pradesh  Health Service Rules which came into force  on 19.1.74.  The members  of the  Central Health Service serving  in the  erstwhile  Himachal  Pradesh  Union Territory were asked to exercise their option to continue in the  new   Himachal  Pradesh   Health  Service.   The   writ petitioners   and   the   contesting   employees-respondents exercised their  option to  continue in the Himachal Pradesh Health Service.       The  Appellant in C.A. No. 2384 of 1980 who was one of the petitioners  in writ  petition No. 288 of 1979 contended before the  High Court  that his  reversion from the post of Deputy Director  of Health  Services to  which post  he  was appointed on  a regular  basis was  void. The  petitioner in writ petition  No. 2 of 1980 claimed that the seniority list of Specialists prepared by the State Government was contrary to the  rules and  that the  appointment of the appellant in C.A. No.  2104 of  1980 and  of respondents  2 and 4 in writ petition 288  of 1979 as Deputy Directors of Health Services was contrary  to the  provisions of  the 1974  Rules. It was contended that  the appointments  were also vitiated because the Departmental  Promotion Committee constituted for making appointment was  not properly constituted because one of the members of  the committee  the Principal  Secretary  to  the Chief  Minister   was  unauthorised  by  inducted  into  the Committee in place of the Secretary to the Government Health and  Family   Welfare  Department   and  (ii)   that   their confidential reports  were written  by an  officer junior to them and  who was  an aspirant  for promotion  to the higher post. The  appointments of  the Director  of Health Services and the  two Deputy  Directors having  been  made  in  haste immediately after the seniority list was issued rendered the appointments void.       The petitioner in writ petition 2 of 1980 claimed that the inter  se seniority  between himself and the respondents could not  be disturbed  at the  time of  absorption in  the Himachal Pradesh Health Services having regard to the Punjab Reorganisation Act  and the  protection given to the members of the Punjab Service.      These two petitions were contested. It was contended by the State  of Himachal  Pradesh that the petitioners in W.P. No. 288 of 1979 were appointed as Deputy Directors of Health Services only  on ad  hoc basis that the post is a selection post  which  cannot  be  claimed  as  of  right  by  persons appointed on  ad hoc  basis by  way of stop-gap arrangement. The incumbent  to the  post of  Secretary Health  and Family Welfare being  on leave at the relevant period the Principal Secretary to the Chief Minister was appointed to function in his place  as Secretary  to Government  in the  Departmental Promotion Committee  the constitution  of  the  Departmental Promotion  Committee   was  perfectly   valid.  The   annual confidential  reports  which  were  written  by  the  junior officer who  was working  on ad  hoc basis were not the only reports taken  into account  by the  Departmental  Promotion Committee. The  post of  Director  of  Health  Services  was manned  on  an  ad  hoc  basis.  Ad  hoc  appointments  were necessitated by  the absence  of the  final  seniority  list which  was   prepared  only  on  2.11.1979  and  since  that impediment was over the Departmental Promotion Committee met on 3.11.1979  and orders of appointment to those selected by

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that Committee were issued on the same day. Specialists were officers  possessing   post-graduate  qualifications   while General Duty  officers were  as a  rule only  graduates. The Rule making autho- 1045 rity divided  the higher  posts equally amongst the officers of the two categories taking all factors into consideration. Therefore the  claim for  being considered  to the  post  of Director of  Health  Services  is  wholly  untenable  having regard to  Rule 9(3)  of the  Rules which provides that only Deputy Directors  should be  considered for promotion to the post of Director of Health Services.      On behalf  of the  Central Government  it was contended that the  Central Health Service was constituted with effect from 9  9.1966 and  the seniority  of the  Medical  Officers appointed to the service with effect from that date had been determined to  be that  officers appointed  to a grade under rule 7A of the Central Health Services Rules 1963 as amended by the  Central Health  Service (Amendment)  Rules 1966 will rank en  bloc senior  in that  grade to  those  who  may  be appointed to  that grade  under rule 8A. The officers of the Punjab Government  were  appointed  to  the  Central  Health Service with  effect from  1.11.1966 under rule 8A. As These officers have  come into  the Central  Health  Service  only after the  initial constitution  of that service was over it was not  possible to assign them seniority over the officers appointed at  the initial  constitution of  the service. The Government of  Himachal Pradesh having proposed to formulate their own Health Service and the Medical officers who are to opt from  the Central  Health Service  are to be included in that service  those officers  were asked  to exercise  their option. Those  officers  who  opted  to  join  the  proposed Himachal Pradesh  Health Service  were given  the benefit of past continuous  service while fixing their seniority in the Himachal Pradesh Health Service.      The High  Court allowed the writ petitions and held (1) that the  petitioners  therein  being  appointed  as  Deputy Directors on  ad hoc  basis cannot claim a right to the post of Deputy  Directors of  Health Services  or to seniority on the basis  of ad  hoc appointment  though then  can add  the period of  such appointment  in the matter of experience for promotion and confirmation. (2) The Principal Secretary E to the Chief Minister was appointed to function additionally as Secretary to Government Health and Family Welfare Department as per  office  order  dated  2.11.1979  and  therefore  the Departmental   Promotion   Committee   had   been   properly constituted. (3) Seniority has to be determined on the basis of the date of induction into the Central Health Service and not on the basis of the earlier service.      Allowing the appeal to this Court ^      HELD: 1. The High Court erred in holding that the inter se seniority  has to  be determined only on the basis of the date of  induction into  the Central  Health Service and not with reference  to Rule  10 (a)(iii)  of the Rules. Inter se seniority has  to be determined only in accordance with Rule 10 (a)(iii) of the Rules and Dr. S.P. Kapoor would be senior to Dr.  R.M. Bali who in turn would rank senior to Dr. Jiwan Lal. [1072 1073 B]      In the instant case the Central Government was under an obligation to  see that in fairness and equity the seniority of officers  drafted into  the newly  formed State  from the integrating States is properly fixed and that obligation has been properly  discharged by  the Central Government. Dr. S. P. Kapoor  had been  appointed to the PCMS (Grade I) post on

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29.1.1965 and  he was  inducted into the Specialist Grade in the Central Health Service with effect from 1.11.1966 while 1046 Dr. R.M.  Bali and  Dr. Jiwan  Lal who  were in  the Central Health Service  on the  date of its constitution on 9.9.1966 had been  taken in  the Specialists Grade and G.D.O. Grade I respectively under  the Central  Health Service  with effect only from 9.9.1968. [1072 1068 C]      Roshan Lal  Tandon v.  Union of  India [1968] 1 SCR 185 held inapplicable.      N. Subba  Rao etc. v. Union of India and Ors., [1973] 1 SCR 945  and C.P. Damodaran Nayar and P.S. Menon v. State of Kerala and others [1974] 2 SCR 867 referred to.      2. The annual confidential reports were initiated by an officer not  only junior  but also an aspirant for promotion to the  higher post  and therefore such Confidential reports should not  have been  taken into  consideration for further promotion. [1073 C]      In the instant case it would not have been fair for the Departmental Promotion  Committee to  take into  account the annual confidential  reports made  by Dr. Grover though they might have been revised by the higher authorities.[1073F]      3. The  post-haste manner  in  which  the  Departmental Promotion Committee  Meeting was  held on 3.11.1979 suggests that some  higher-up was  interested in  pushing through the matter hastily  when the regular Secretary Health and Family Welfare was on leave. The matter is therefore required to be considered afresh.                     [1075 B]      In the instant case the Director of Health Services and Deputy Director of Health Services were holding the posts on ad hoc  basis from  the year  1973. The final seniority list was  prepared   only  on   2.11.1979  and  the  Departmental Promotion Committee  was constituted on 3.11.1979. The Joint Secretary Personnel  Department had written the letter dated 3.11.1979 requesting  the Principal  Secretary to  the Chief Minister who  was appointed  additionally  as  Secretary  of Health  and   Family  Welfare  to  attend  the  Departmental Promotion Committee  Meeting at 3.00 p.m. On that day. There is room  for suspecting  the reason  why the whole thing was completed in haste on 3.11.1979 after the preparation of the final seniority  list on  2.11.1979. The matter was not such as could  not have  been put off by a few days. Such rush is not usual is in any State Government.                                    [1074 GD. 1075 A]      4. The  High  Court  was  right  in  finding  that  the Specialists had an advantage for their category starting the roster by  the senior-most  of The Specialists having put in more number  of years  of qualifying  service than  the HPHS (Grade I)  officers and  that the  Government was  right  in getting the  roster started With Specialists instead of HPHS (Grade I) officers. [1076 B-C]      In the  instant case  as Rule  9(4) did not provide the category with  which the  roster may be started whether with HPHS (Grade I) officers or Specialists difficulty arose. The Government therefore stepped in and supplemented the Rule by directing that  the roster  may be started with the category of Specialists  keeping in  view the  length  of  qualifying service in  each of  the two  grades namely  Specialists and HPHS (Grade  I) officers. This they were entitled to by Rule 21 [1075 H. 1076 A] 1047

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2104 of 1980.      Appeal by  special leave  from the  judgment and  order dated the 30th July, 1980 of the Himachal Pradesh High Court at Simla in C.W.P. No. 2 of 1980.                             WITH                CIVIL APPEAL No. 2384 OF 1980      Appeal by  special leave  from the  judgment and  order dated the 30th July, 1980 of the Himachal Pradesh High Court at Simla in C.W.P. No. 288 of 1979.      T.U. Mehta,  S.K. Sabharwal.  A. P.  Mohanty  and  C.P. Pandey for  the  Appellant  In  C.  A.  No.  2104/80  &  for Respondent 2 in C.A. No. 2384 of 1980.      G.L. Songhi,  Vineet  Kumar  and  Ashok  Kaul  for  the Appellant in C.A. No. 2384 of 1980.      M.M. Abdul  Khader  and  Miss  A.  Subhashini  for  the Respondent: State      V.M. Tarkunde  and C.M.  Nayar for  Respondent No. 5 in C.A. No. 2104 of 1980.      The Judgment of the Court was delivered by      VARADARAJAN, J.  These appeals  by  special  leave  are against the  common judgment  of a  Division  Bench  of  the Himachal Pradesh  High Court rendered in Writ Petitions Nos. 2 of 1980 and 288 of 1979. They were heard together by us in view of  this Court’s  order dated  6.11.1980. Writ Petition No. 288  of 1979  was filed  by Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur  against the  State of  Himachal Pradesh, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. K. Pandeya. Writ Petition No. 2  of 1980  was filed by Dr. R.M. Bali against the State of Himachal  Pradesh and  eight others  including Dr.  Jiwan Lal, Dr.  (Mrs.) Damyanti  Kapur, Dr. S.P. Kapoor and Dr. K. Pandeya,  who   were  respondents   Nos.  8,   9,  6  and  7 respectively in  the Writ  Petition. Dr.  S.P.  Kapoor,  the appellant in  C.A. No. 2104 of 1980 is the second respondent in Writ  Petition No. 288 of 1979 and 6th respondent in W.P. No. 2 of 1980. Dr. Jiwan Lal, 1048 the appellant  in  C.A.  No.  2384  of  1980  is  the  first petitioner in  W.P. No.  288 of 1979 and  8th  respondent in W. P. No. 2 of 1980.      Writ Petition  No. 288 of 1979 challenged the reversion of  Dr.  Jiwan  Lal  and  Dr.  (Mrs.)  Damyanti  Kapur,  the petitioners therein,  from the  post of  Deputy Directors of Health Services,  as illegal and violative of the conditions of service  as also  the provisions  of the  Constitution of India. In  Writ Petition  No. 2 of 1980 Dr. R.M. Bali prayed for quashing  the seniority  of specialists indicated in the office Memo dated 2.11.1979 and Annexure PX-1 containing the list and  for assignment  of Serial  No. 1  in the seniority list to  him. Dr. R.M. Bali prayed for certain other reliefs also including  declaration of  the appointment  of Dr. S.P. Kapoor as  Director of  Health Services as null and void and for his  case being  considered for appointment to that post on the  basis of  the  seniority  prayed  for  in  his  Writ Petition.      The case  of Dr.  Jiwan Lal  and  Dr.  (Mrs.)  Damyanti Kapur, the  Writ Petitioners  in W.P.  No. 288  of 1979, was that they  were appointed  as  Deputy  Directors  of  Health Services on  a regular  basis. The  post of Deputy Director, Health Services  was held by Dr. Jiwan Lal for 4.5 years and by Dr.  (Mrs.)  Damyanti  Kapur  for  about  31  years.  The appointment of  Dr. S.P.  Kapoor, the  appellant in C.A. No. 2104  of   1980  and  Dr.  R.M.  Bali  and  Dr.  K.  Pandeya (respondents 2  and 4  in W.P.  No. 288  of 1979)  as Deputy

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Directors of  Health Services, is contrary to the provisions of  the   Himachal  Pradesh   Health  Services  Rules,  1974 (hereinafter  referred   to  as   the  ’Rules’).  They  were appointed in  disregard of  the rights  of Dr. Jiwan Lal and Dr.  (Mrs.)   Damyanti  Kapur.  The  Departmental  Promotion Committee constituted  for making  the appointment  was  not properly constituted as one of the members of the Committee, namely, the  Principal Secretary  to the then Chief Minister was unauthorisedly  inducted into the Committee in the place of the  Secretary to  Government, Health  and Family Welfare Department, Himachal  Pradesh. Therefore, the proceedings of the Committee  are vitiated. The annual confidential reports of the  petitioners Dr.  Jiwan Lal  and Dr.  (Mrs.) Damyanti Kapur were  initiated by  an officer who was not only junior to them  but also  an aspirant  for promotion  to the higher post along with them. There fore, those confidential reports should not  have been  taken into  consideration for further promotion  by  the  Departmental  Promotion  Committee.  The appointment of  Dr. S.P.  Kapoor, the  appellant in C.A. No. 2104 of 1980, Dr. R.M. Bali and Dr. K. Pandeya, res- 1049 pondents 2  and 4 in that Writ Petition was made in haste on 3.11.1979 immediately  after the  final seniority  list  was issued on  2.11.1979. ’the  appointment of  Dr. S.P. Kapoor, the second  respondent in W.P. No. 288 of 1979 and appellant in C.A.  No. "104  of 1980 as Director of Health Services on the same day is illegal as he did not satisfy the conditions prescribed in  the Rules  and  he  did  not  have  even  the requisite qualifying  service. Further  the post of Director of Health Services must have been filled up from amongst the Health  Services  Grade-I  officers  and  not  from  amongst Specialists. The  reversion of  Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur from the posts of Deputy Directors is illegal and violative of the conditions of their service as also the provisions of the Constitution of India.      The case of Dr. R.M. Bali, the petitioner in W.P. No. 2 of 1980  was that  he was  appointed as  T.B. Officer,  T.B. Sanatorium, Mandodhar, a Gazetted Class 11 post, with effect from  9.4.1955  and  he  continued  to  work  as  such  till 28.5.1962.   He was, thereafter, appointed as Superintendent in that  Sanatorium, a  Class I  post, and after joining the post he  was selected  for appointment  on a  regular  basis through the  Public Service  Commission and he was confirmed in that  post, categorized  as Category ’D’ post and Class I post in  the Central  Health Services,  in 1966. The Medical and  Health   Department  of   Himachal  Pradesh  Government appointed him  as Director  of Health (T.B.), a Category ’D’ post by  a Notification dated 1.7.1963. He was inducted into the Central  Health Services  with effect  from 9.9.1966 and included in  the initial  constitution of  that Service  and confirmed in  that Service  on 9.9.1968. But Dr. Grover, who has since retired, and Dr. S.P. Kapoor, who were respondents 5 and  6 respectively  in Writ  Petition No. 2 of 1980, were appointed merely  on a temporary basis to the Central Health Service with  effect from  1.11.1966. The inter se seniority of Dr.  R.M. Bali,  the petitioner in W. P No. 2 of 1980 and Dr. Grover  and S.P.  Kapoor in  the Central Health Services (Specialists’ Grade)  had to  be preserved  and could not be disturbed at  the time of absorption in the Himachal Pradesh Health Services  having regard  to the Punjab Reorganisation Act and  the protection  given to  the members of the Punjab Service. In  these circumstances,  Dr. R.M.  Bali prayed for quashing of  the seniority  list of the cadre of Specialists indicated in the office Memorandum dated 2.11.1979 (Annexure PX-1 containing in the list) and assigning to him Serial No.

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1 in  the seniority  list. He  also prayed for other reliefs including declaration  of the appointment of Dr. S.P. Kapoor as Director of Health Services as null and 1050 void and  for his  appointment to  that post on the basis of the revised seniority claimed by him.      The contention  of the Himachal Pradesh Government, the first respondent  in W.P. No. 288 of ]979 was that Dr. Jiwan Lal and  Dr. (Mrs)  Damyanti Kapoor were appointed as Deputy Directors of  Health Services  on ad  hoc basis.  The Deputy Director’s post  is a selection post which cannot be claimed as of  right by  persons appointed on ad hoc basis by way of stop-gap arrangement. The incumbent to the post of Secretary to Government,  Health and  Family welfare was on leave from the 3rd to 9th November, 1979 and the Principal Secretary to the then  Chief Minister  was appointed  to function  in his place  as   Secretary  to  Government  in  the  Departmental Promotion  Committee   by  order   dated  3   11.1979.   The constitution of  the Departmental  Promotion Committee  was, therefore, perfectly  valid. The annual confidential reports written by Dr. Grover, who was working on ad hoc basis, were not the  only reports taken into account by the Departmental Promotion  Committee.  That  Committee  did  not  take  into account the  reports of  Dr. J. C. Sharma about the work and conduct of  Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur. The post of  Director of Health Services was manned on an ad hoc basis since the retirement of Dr. Krishan Swarup in December 1973. The posts of Deputy Director also were manned on an ad hoc basis.  These ad  hoc appointments  were necessitated by the absence  of the  final seniority list which was prepared only on  2.11.1979 and  since that  impediment was  over  on 2.11.1979 the  Departmental Promotion Committee on 3.11.1979 and  orders   of  appointment  to  those  selected  by  that Committee on  that date  were issued  on the  same day.  The promptness  in   making   the   regular   appointments   was necessitated  by   the  intention   to  make   the   regular appointment as  quickly as possible after the preparation of the final  seniority  list  on  2.11.1979.  Specialists  are necessarily officers possessing post-graduate qualifications while G.D.O.,  Class I  are,  as  a  rule,  only  graduates. Therefore, the  Rule making  authority  divided  the  higher posts equally  amongst the  Officers of  the two  categories taking all  factors into  consideration. The  appointment of Dr. S.  P. Kapoor,  the second respondent in W.P. No. 288 of 1979 as  Director of  Health Services is valid Dr. Jiwan Lal and Dr.  (Mrs.) Damyanti  Kapur were not Deputy Directors of Health Services  on the date of selection of Dr. S.P. Kapoor as Director  of Health  Services and, therefore, their claim for being  considered for  promotion to  that post is wholly untenable having regard to Rule 9(3) of the Rules, according to 1051 which  only   Deputy  Directors   could  be  considered  for promotion to the post of Director of Health Services.      The contention  of the Himachal Pradesh Government, the first respondent  in W.P.  2 of  1980 was  that the  post of Superintendent, T.B.  Sanatorium held  by Dr. R.M. Bali, the petitioner in that Petition, was a junior Class I post until he was  appointed to  the Specialist  grade of  the  Central Health Services  with effect  from 9.9.1966.  Dr. Grover and Dr. S.P.  Kapoor, respondents  5 and  6 respectively in W.P. No. 2  of 1980  were appointed  to the Specialists’ grade in the Central  Health  Services  with  effect  from  1.11.1966 though the Central Government kept the question of seniority open. Dr. R.M. Bali  exercised   his  option   to  join  the

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Himachal Pradesh  Health Service  after a  copy of the Rules was supplied  to him.  The final  seniority of Dr. R.M. Bali and others was fixed under the provisions of the Rule issued on  10.1.1974.  Seniority  assigned  to  Dr.  R.M.  Bali  is strictly in  accordance with  the provisions  of Rule 10 (a) (iii) of  the Rules.  The words "whichever is earlier" which occurred in the original Rule 10 (a)(i) and 10 (a)(iii) were deleted by  the Amendment Rules, 1966. The claim of Dr. R.M. Bali for seniority on the basis of his ad hoc appointment is not tenable.      The Central Government and Dr. S.P. Kapoor, respondents 2 and  6 in  W.P. No.  2 of  1980 had  also  filed  counter- affidavits  opposing  the  Writ  Petition.  In  the  Central Government’s counter-affidavit  it is  stated that  Dr. R.M. Bali has  been in  the Specialist’s grade only from 9.9 1966 and that  Dr. Grover  and Dr.  S.P. Kapoor were appointed to the Specialists’  grade on 1.11.1966 leaving the question of seniority open.  In the counter-affidavit of Dr. S.P. Kapoor reference is  made to  Government of  India’s  letter  dated 9.7.1971 which  deals with  the  fixation  of  seniority  of medical officers  of the  Punjab Government  absorbed in the Central  Health  Services  in  the  Himachal  Pradesh  Union Territory and states as follows.;           "The Central  Health Services was constituted with      effect from  9.9.1966  and  the  seniority  of  Medical      officers appointed to the Service with effect from that      date  has   been  determined  in  accordance  with  the      principles laid  down in  this Ministry’s  letter dated      27.7.1967.  In  accordance  with  sub-para  1  of  this      memoranda officers  appointed to a grade of the Central      Health Services  under Rule  7A of the Central H Health      Services  Rules,  as  amended  by  the  Central  Health      Services Amendment  Rules,  1966,  will  rank  en  bloc      senior 1052      in that  grade under  Rule  8  of  the  Central  Health      Services Rules, 1963.           2.   The Officers  of the  Punjab Government  were      appointed to  the Central  Health Services  with effect      from 1.11.1966  under Rule  8(A) of  the Central Health      Services Rules,  1963. Those  officers have come to the      Central  Health   Service  only   after   the   initial      constitution of  that Service  was over.  In accordance      with the  principles laid  down for  the Central Health      Services it is not permissible to assign them seniority      in  the  Central  Health  Services  over  the  officers      appointed to the Central Health Services at the initial      constitution of the Service.           3. However,  as the Government of Himachal Pradesh      have proposed  to formulate  their own  Health Services      and the  Medical officers  who  opt  from  the  Central      Health Services  are to  be included  in that  Service,      those officers  may be  asked to exercise their option.      In case  they chose to remain as members of the Central      Health Services  their seniority  will be reckoned only      at the maintenance stage of the Central Health Services      and they  cannot get  seniority in  the Central  Health      Service on  the basis  of their prior service under the      Punjab Government.  Those Officers  who opt to join the      proposed Himachal  Pradesh Health Service may, however,      be given  the benefit  of their past continuous service      while fixing  their seniority  in the  Himachal Pradesh      Health Service.  At  the  time  of  formation  of  that      Service these  persons can  be considered for inclusion      in the  initial constitution  of that Service and their

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    seniority  fixed   bearing  in   mind  the   principles      mentioned in Shri A.D. Pande’s D.O. Letter No. 22/5167-      SR(S) dated 14th February, 1967".       The  learned Judges of the Himachal Pradesh High Court who heard  these two Writ Petitions and other Writ Petitions jointly found  that Dr.  Jiwan Lal,  Dr. S.P. Kapoor and Dr. (Mrs.) Damyanti  Kapur were appointed as Deputy Directors of Health Services  on ad  hoc basis  in July  1975 and January 1976  respectively  after  the  Rules  came  into  force  on 19.1.1974, that  it has not been contended by them that they had been  appointed in  accordance with  the Rules  or after relation of  the Rules,  that  Dr.  Jiwan  Lal,  Dr.  (Mrs.) Damyanti  Kapur   and  Dr.  S.P.  Kapoor  were  specifically appointed 1053 on ad  hoc basis  and that, therefore, Dr. Jiwan Lal and Dr. (Mrs.) Damyanti  Kapur cannot  claim right  to the  post  of Deputy Directors  of Health  Services or to seniority on the basis of  their ad hoc appointments, though they can add the period of  such appointment  in the matter of experience for promotion and confirmation in view of the addition of notice to Rule 9 of the Rules.      Regarding  the   attack  on  the  constitution  of  the Departmental Promotion  Committee, the  learned Judges found that when  the regular  Secretary to  the Government, Health and Family  Welfare Department,  was on leave, the Principal Secretary to  the  then  Chief  Minister  was  appointed  to function additionally as Secretary to Government, Health and Family  Welfare   Department,  as  per  office  order  dated 2.11.1979  and,   therefore,  the   Departmental   Promotion Committee  has  been  properly  constituted.  Regarding  the question whether  seniority in  the Himachal  Pradesh Health Service is  to be  determined with  reference to the date of joining the  Central Health Service or with reference to the date of  joining the  Punjab Civil  Medical Service, Grade I [in short PCMS (1)] with Post-Graduate qualifications on the date of  appointment  as  Deputy  Medical  Superintendent  / Resident  Medical   Officer  /Surgical   Specialists,  Ripon Hospital from  the date  on which  they were  given the PCMS scale, the  learned Judges  of the High Court found that the Central  Health  Service  was  constituted  by  the  Central Government  and   the  Health   Service  Rules,  hereinafter referred to  as the "Central Rules", framed by the President of India, in exercise of the powers conferred by Article 309 of the  Constitution of  India, came  into force with effect from 15.5.1963  and that  the Central  Rules were amended by the Central  Health Services (Amendment) Rules, 1966. Before the Punjab  Reorganisation Act  came into force the State of Punjab had its own Health Service known as the PCMS with two grades,  Grade   I  and   Grade   Il.   After   the   Punjab Reorganisation Act  came into  force, and the Central Health Service was  formed, some  persons belonging to the PCMS and some persons working as Medical officers in hospitals run by Local Bodies were inducted into that into that Service after they had  exercised their option to be inducted therein. The Writ Petitioners  and contesting  employees-respondents  had been inducted into the Central Health Service after they had exercised their  option. When  the  Himachal  Pradesh  Union Territory was in existence, its Health Department was manned by  officers  of  the  Central  Health  Service,  But  after Himachal Pradesh  became a  full-fledged State, the Himachal Health  Service  was  constituted  on  24.1.1974  under  the Himachal Pradesh Health Service Rules, which 1054 came into  force on  19.1.74 and  the members of the Central

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Health Service  serving in  the erstwhile  Himachal  Pradesh Union Territory  were asked  to  exercise  their  option  to continue in  the new  Himachal Pradesh  Health Service.  The writ petitioners  and the  contesting  employees-respondents exercised their  option to  continue in the Himachal Pradesh Health Service. The question for consideration was the basis on which seniority in the Himachal Pradesh Health Service is to be  determined, namely,  whether it  is with reference to the date  of entry  into the  Central Health Service or into the PCMS  (I) with  post-graduate qualifications or the date of  appointment   as  Deputy   Medical   Officer   /Surgical Specialists, Ripon Hospital from the date on which they were given PCMS  scales According  to  Rule  4  of  the  Himachal Pradesh   Health    Service   Rules,    which   relates   to classification, categories  and scales of pay, there are two wings in  the Himachal  Pradesh Health  Service, namely, the General Wing  and the  Teaching Wing,  which are independent and not  inter-changeable except in regard to certain posts. The writ  petitions had  nothing  to  do  with  any  of  the officers in  the Teaching  Wing. The  General Wing  has  six categories, each  having grades  as specified  in the  table annexed to the Rules. We are concerned in these appeals with Specialists and  Grade I  officers. The  officers  who  were concerned with  the writ  petitions were  Specialists on the one  hand  and  Himachal  Pradesh  Health  Service  Grade  I officers on  the other in respect of whom seniority is to be fixed on a separate basis. Under the Himachal Pradesh Health Service Rule  10 relating to fixation of seniority, inter se seniority of  departmental candidates  absorbed under Rule 7 and 8  shall be determined under Rule 10 (a) (ii) as regards (i) Himachal  Pradesh Health  Service Grade I officers. from the date of regular appointment having been duly selected by the Union  Public Service,  Punjab Public Service Commission and Himachal  Pradesh Public  Service Commission and or by a regular Departmental  Promotion Committee  in the  grades of (i) PCMS  (I) and (ii) G.D.O. Grade I, and under Rule 10 (a) (iii) as  regards (ii)  Specialists from the date of regular appointment having been selected by the Union Public Service Commission, Public  Service Commission  and Himachal Pradesh Public Service  Commission and  or by a regular Departmental Promotion Committee  in the  following  grades,  namely  (i) Specialists (Central  Health Service),  (ii) PCMS  (I)  with post-graduate  qualifications   and  (iii)   Deputy  Medical Superintendent/ Resident Medi- 1055 cal Officer/Surgical  Specialists, Ripon  Hospital from  the date on  which the  scale of  PCMS (I) was given to them. It was admitted that as alleged in W.P. No. 2 of 1980, Dr. R.M. Bali was  inducted into  the Central  Health  Service  on  a regular basis  only on  9.9.1966 and Dr. Grover and Dr. S.P. Kapoor, respondents  5 and  6 in  that Writ  Petition,  were inducted into  the Central  Health Service  only with effect from 1.11.1966  and, therefore,  Dr. R.M. Bali was senior to Dr. Grover  and Dr. S. P. Kapoor in the Central Service. Dr. R. M. Bali and Dr. S. P. Kapoor were both specialists. S. P. Kapoor contended  before the  High Court  that he  had  been selected by  the Punjab  Service Commission on 29.1.1965 and had post-graduate  qualifications when  he was inducted into the Central Health Service. But Dr. R.M. Bali contended that he was  entitled to  seniority from  1.6.1962  when  he  was appointed as T.B. Specialist at Mandodhar on an ad hoc basis or at  least from  31.3.1964 when he was regularly appointed after selection  by the  Union Public Service Commission. In Rule 10  (a) (iii)  the words  "whichever is  earlier" which were originally  found have  been deleted retrospectively by

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an amendment  as stated  earlier. The  learned Judges of the High Court  held that  seniority has to be determined on the basis of  the date  of induction  into  the  Central  Health Service and  not on the basis of the earlier service if any, in the  PCMS  though  they  have  observed  that  the  words "whichever  is  earlier"  which  occurred  in  the  Himachal Pradesh Health  Service  Rule  10  (a)  (iii)  were  omitted retrospectively in  order to  do justice  in the  matter  of seniority to  those  doctors  who  came  into  the  Himachal Pradesh Health  Service from any local authority or PCMS and not from  the Central  Health Service.  They have  fixed the seniority of  Dr. R.M.  Bali above  Dr. S.P.  Kapoor on  the basis that  the former  was inducted  on  9.9.1966  and  the latter was  inducted on  1.11.1966 into  the Central  Health Service and  held  that  Dr.  D.S.  Chauhan’s  seniority  is rightly  reflected  in  the  Specialists.  grade,  and  they directed modification  of the  seniority of  Doctors in  the Specialists’  grade   in  accordance  with  their  decision, namely, on  the basis  of date of induction into the Central Health Service.       Regarding  writing of  the annual confidential reports by Dr.  Grover and  Dr. J.C.  Sharma, the  contention of the Himachal Pradesh  Government in  W.P. No. 2 of 1980 was that Dr. Sharma’s reports were not taken into consideration, that Dr. Grover’s reports were revised, sometimes with additional remarks in favour or against H the incumbents, by the higher authorities and  that his  reports were not the only reports which were taken into consideration by the 1056 Departmental  Promotion  Committee  in  November  1979.  The learned Judges of the High Court accepted that contention of the first  respondent and  held that  no prejudice  has been caused to the writ petitioners while the annual confidential reports  were   considered  by  the  Departmental  Promotion Committee on  3.11.1979. They  quashed the seniority list of Specialists  prepared   on  2.11.1979   as   well   as   the notification dated 3.11.1979 appointing Dr. S.P. Kapoor, the appellant in  C.A. No.  2104 of 1980, Dr. K. Pandeya and Dr. R.M. Bali  as Deputy Directors (super-time Grade II-General) and Dr. S.P. Kapoor as Director. Health Services (Super-time Grade I-  General) and directed the State Government to make the appointments to these posts on the basis of the modified seniority  list  to  be  prepared  in  accordance  with  the directions given  in their  judgment. They  disposed of Writ Petitions Nos.  288 of 1979 and 2 of 1980 as indicated above and directed the parties to bear their respective costs.      The Himachal Pradesh Union Territory was constituted on 1.11.1966. On  and from  the appointed  day,  which  in  the present case  is 1.11.1966,  Simla, Kangra,  Kulu and Lahaul and Spiti  districts and certain other areas in the original State of  Punjab became  parts of that Union Territory under s. 5  of the  Punjab Reorganisation  Act (Central Act) 1966. The Central Rules, 1963 came into force on the appointed day and  were  later  amended  by  the  Central  Health  Service (Amendment) Rules  1966. These  Rules, as amended, are found on pages  336 to  346 of  the paper-book in C.A. No. 2104 of 1980. The  Central Health  Service was constituted only with effect from  9.9.1966. This  is clear  from the letter dated 9.7.1971 from  the Ministry  of Health  and Family  Planning (Department of Health) Government of India, addressed to the Secretary to  Government (Medical  and  Health  Department), Himachal Pradesh  to which  detailed reference  will be made later in  the course  of this  judgment. Dr.  R.M. Bali  was regularly appointed in the specialist’s grade of the Central Health  Service  on  probation  with  effect  from  9.9.1966

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alongwith certain others, pursuant to the power conferred by Rule 7A(I)  of the Central Rules, as amended in 1966, by the President’s order  No. 1-3/67-CHS II dated 8.6.1967. At that time Dr.  R.M. Bali  was working as a Specialist in the T.B. Sanatorium, Mandhodhar,  Himachal Pradesh Union Territory, a category  ’D’   post,   having   been   appointed   on   the recommendation  of  the  Union  Public  Service  Commission. According to  the counter-affidavit  filed on  behalf of the Himachal Pradesh  Government in W.P. No. 2 of 1980, the post of 1057 Superintendent, T.B.  Sanatorium,  Mandodhar  was  a  Junior Class  I   post  at   that  time.   It  has  been  up-graded subsequently. Dr.  Jiwan Lal  was appointed substantively on 21.12.1946 as  Assistant Surgeon  (Grade  I)  and  had  been promoted as the Chief Medical officer in the Civil Surgeon’s grade on  1.7.1958. According to paragraph 3 of the counter- affidavit filed  by Dr. Jiwan Lal in S.L.P. (Civil) No. 6574 of 1980,  he was  appointed under  rule  7A(I)  (b)  of  the Central Rules, as amended in 1966, to a post in the category of G.D.O.,  Grade I  on 9.9.1966  before the constitution of Himachal Pradesh  Union Territory  and was  confirmed in the post on  9.9.1968 after  the constitution of that State. Dr. R.M. Bali  and Dr.  Jiwan  Lal  were  allotted  to  Himachal Pradesh  Union   Territory  on   its  constitution.  On  the recommendation of  the Punjab Public Service Commission, Dr. S.P. Kapoor  was appointed  by the  Governor  of  Punjab  as officiating Senior  Medical officer  against  the  up-graded post of  PCMS (Class  I)  by  Memo  No.  177-4-MBI-65  dated 7.1.1965 with  a direction to join the new assignment within a fortnight,  which he  did on  29.1.1965, and he was put on probation for  a period  of two  years with  effect from the date of taking charge of the post. After joining the post 13 as per  that order, Dr. S.P. Kapoor was serving at a station which was  in the territory of the former Punjab State prior to the  date of its organisation, which later became part of the Himachal  Pradesh Union Territory under section S of the Punjab Reorganisation  Act, 1966  as mentioned above. During the period  of his probation he had to come into the Central Health Service on the constitution of Himachal Pradesh Union Territory on  1.11.1966 as he was allotted to that State and had been  selected by the Union Public Service Commission in the same  manner as  Dr. R.M.  Bali had been selected. Thus, all the  three individuals, Dr. R.M. Bali, Dr. Jiwan Lal and Dr. S.P.  Kapoor came to be in the Central Health Service on the constitution  of Himachal  Pradesh  Union  Territory  on 1.11.1966. Dr.  S.P. Kapoor  was appointed  to  Specialists’ Grade in  the Central  Health Service  along with Dr. Grover and two others under Rule 8A of the Central Rules as amended in 1966  by the  President’s Order No. F.32/48/65-CHS-II (V. Il) dated  26.8 1970  with effect  from 1.11.1966.  Dr. R.M. Bali was  appointed along  with another  to the Specialists’ Grade  in  the  Central  Health  Service  with  effect  from 9.9.1968 by  the President’s order No. F. 32-1(6)/70-CHS III dated 27.1.1971.      The full  fledged Himachal  Pradesh  State  was  formed under Section  3 of  the State of Himachal Pradesh Act 53 of 1970, a Cen- 1058 tral enactment,  on and  from the  appointed day, 25.1.1971, and it  comprised the  Himachal Pradesh Union Territory. The Rules (Himachal  Pradesh Health  Service  Rules)  came  into force on 19.1.1974. Consequent on the exercise of option for being absorbed in the Himachal Pradesh Health Service on the terms and  conditions stipulated in the Rules and keeping in

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view  the   recommendations  of   the  Screening   Committee appointed under  Rule 7  of those  Rules,  the  Governor  of Himachal Pradesh  appointed Dr. Grover, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. D.S. Chauhan as Specialists on the General Side and Dr. K. Pandeya, Dr. Jiwan Lal, Dr. Jyoti Prasad and Dr. (Mrs.)  Damyanti  Kapur  as  Himachal  Pradesh  Grade  I Officers    with   effect  from  24 .1.1974 by his order No. 1-15/75-H&FP dated  9.6.1975 in the categories to which they had been appointed prior to the commencement of the Rules as amended. In  that order  relating to  seven Specialists  and four Himachal  Pradesh Health  Grade I Officers, Dr. Grover, Dr. S.P.  Kapoor, Dr.  R.M. Bali  and Dr.  D.S. Chauhan  are ranked as  Nos. 2,  3, 6  & 7 respectively among Specialists while Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur are ranked later as  Nos. 2 and 4 respectively amongst Himachal Pradesh Health Service Grade I officers. This was after the Governor of Himachal  Pradesh, in  view of  the Central  Government’s concurrence to  the transfer  of the officers of the Central Health cadre  to the  Himachal Pradesh Health Service and on the recommendations  of the  Screening Committee constituted under Rule  7  of  the  Rules,  appointed  nine  Doctors  as Professors on  the Teaching  Wing, 19 Doctors as Specialists in the  Teaching Wing,  10 Doctors including S.P. Kapoor and Dr. R.M.  Bali as Specialists on the General Side and Dr. K. Pandeya and Dr. Jiwan Lal as Himachal Pradesh Health Service Grade  I  officers  by  his  Order  No.  1/15/75-H&FP  dated 9.6.1975. As  stated earlier,  we are not concerned in these appeals with  any of  the Doctors  on the  Teaching Wing. In that order  dated 9.6.1975  also Dr. Grover, Dr. S.P. Kapoor and Dr. R.M. Bali are ranked as Nos. 2, 3 and 6 respectively amongst the  General Side Specialists while Dr. Jiwan Lal is ranked later  as No.  2 and below Dr. K. Pandeya amongst the Himachal Pradesh Health Service Grade I officers. Thus it is seen that  Dr. S.P. Kapoor and Dr. R.M. Bali are Specialists on the  General Side  and that  Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur l are Himachal Pradesh Health Service Grade I Officers.      The Himachal  Pradesh Government,  by order  No.  HFW/B (9)-7/78 dated  19.8.1978 confirmed  Dr. Grover and Dr. S.P. Kapoor, 1059 who originally belonged to the Punjab Civil Medical Service, with effect  from 27.4.1964  and 29.1.1965  respectively and Dr. R.M.  Bali who  came originally  from the Central Health Service with  effect from  9.9.1966 and  certain others with effect from  24.1.1974, leaving  the question  of  seniority open.       Prior  to 2.11.1979,  Dr. S.P. Kapoor, Dr. K. Pandeya, Dr. R.M.  Bali, Dr.  Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were working  as Deputy  Directors, Health  Services in  the Himachal Pradesh  Health Service  on ad-hoc  basis  and  Dr. Grover was  working as Director of Health Services on ad-hoc basis during  1975 to  1977. Dr.  K.  Pandeya  replaced  Dr. Grover as  Director of  Health Services  on ad-hoc  basis in June 1978  by the  Government’s order No. 1-15/74 HP (Apptt) dated 8.6.1978.  This fact,  mentioned by Mr. Mehta, learned counsel appearing  for Dr.  S.P. Kapoor in the course of the arguments, was  not disputed  by Mr.  V.M. Tarkunde, learned counsel appearing  for Dr.  R.M. Bali  and Mr.  G.L. Sanghi, learned counsel  appearing for  Dr. Jiwan  Lal. On 2.11.1979 the  final  seniority  lists  of  Specialists  and  Grade  I Officers in  the  Himachal  Pradesh  Health  Service  as  on 1.1.1979 were published by the Himachal Pradesh Government’s order  No.   HPW-B(9)-2/77  dated  2.11.1979.  In  the  List relating to  eight Specialists, Dr. Grover, Dr. S.P. Kapoor,

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Dr. R.M.  Bali and Dr. D.S. Chauhan are ranked as Nos. 1, 2, 3 and  5 respectively while in the List relating to 79 Grade I Officers,  Dr. K.  Pandeya, Dr. Jiwan Lal and Dr. (Mrs.).) Damyanti Kapur  are ranked  as Nos. 1, 2 and 3 respectively. Now, Dr.  Grover and  Dr. K.  Pandeya  are  stated  to  have retired. On  3.11.1979, the Departmental Promotion Committee constituted under  Rule 2(g)  of the Rules, the constitution of which  is attacked  by Mr.  Mehta, Mr.  Tarkunde and  Mr. Sanghi, recommended on the basis of the said final seniority lists, the  appointment of  Dr. S.P.  Kapoor, Dr. K. Pandeya and Dr. R.M. Bali as Deputy Directors of Health Services and Dr. S.P.  Kapoor as Director of Health Services in the place of Dr.  K. Pandeya.  On the same day, they were appointed as such by  the Government’s  Order No.  Health-Kb(9)4/79 dated 3.11.1979. On  the same  day Dr.  Jiwan Lal  and Dr.  (Mrs.) Damyanti  Kapur  were  reverted  with  immediate  effect  to Himachal Pradesh  Grade I  posts by the Governor’s Order No. Health-B(9)4/79 and Dr. S.P. Kapoor was promoted as Director of Health  Services by  the  Government’s  Notification  No. 171002 and put on probation for a period of two years. It is stated in that Notification that orders of posting of Dr. K. Pandeya,  presently   officiating  as   Director  of  Health Services purely  on a temporary basis, will be issued by the Secretary (Health and Family Welfare) to the 1060 Government of  Himachal Pradesh  separately. The correctness of these  seniority lists  and orders  of appointments  were challenged in  the Writ Petitions. The writing of the annual confidential reports  by Dr. Grover and Dr. J.C. Sharma, the constitution of  the Departmental  Promotion Committee,  and the  rotation  of  Specialists  in  preference  to  Himachal Pradesh Grade  I Officers  for appointment  as  Director  of Health Services  on the  admitted 50  : 50  basis were  also questioned in  the Writ  Petitions. There is no dispute that the basis  for selection  of the  Specialists  and  Grade  I Officers as Director of Health Services is 50 : 50.      The  learned   Judges  of  the  High  Court  held  that seniority has  to be  determined on the basis of the date of Induction into  the Central  Health Service  and not  on the basis of the earlier induction into the Punjab Civil Medical Service though  they have observed that the words "whichever is earlier"  which occurred  originally in Rule 10 (a) (iii) of the  Rules were  omitted retrospectively  in order  to do justice in the matter of seniority to these Doctors who came into the  Himachal Pradesh  Health Service  from  any  local authority or  the Punjab  Civil Medical Service and not from the Central  Health Service.  On that  basis they have fixed the seniority  of Dr. R.M. Bali above Dr. S.P. Kapoor on the ground that  the former  was inducted  on 9.9.1966  and  the latter was  inducted on  1.11.1966 into  the Central  Health Service and  found that the seniority of Dr. D.S. Chauhan is rightly reflected  in  the  Specialists’  Grade.  They  have directed modification  of the  seniority of  Doctors in  the Specialists Grade in accordance with their judgment; namely, on the  basis of  the date  of induction  into  the  Central Health Service. Regarding writing of the annual confidential reports by  Dr. Grover  and Dr.  J.C.  Sharma,  the  learned Judges of the High Court accepted the contention put forward by the  Himachal Pradesh Government in the counter-affidavit filed in  W.P. No.  2 of 1980 that Dr. Sharma’s reports were not taken  into consideration  that Dr. Grover’s report were revised, sometimes  with additional  remarks  in  favour  or against the  incumbents by  the higher  authorities and that his reports  were not  the only reports that were taken into consideration by  the Departmental  Promotion  Committee  in

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November 1979  and held that no prejudice has been caused to the Writ  Petitioners while  the annual confidential reports were considered by the Departmental Promotion Committee. The learned Judges  have not  expressed any  view regarding  the attack on  the  Departmental  Promotion  Committee.  On  the question of  rotation and  selection of  the  Specialist  as Director  of  Health  Services  in  preference  to  Grade  I officers, the learned Judges of the High Court 1061 held that  the Rules  are silent on the question as to which category should  be  chosen  first  and  they  accepted  the contention of  the  Himachal  Pradesh  Government  that  the Government  had   power  under  Rule  21  of  the  Rules  to supplement the  same by  providing for  starting the  roster with the  category of  Specialist on  the  ground  that  the senior most of the Specialists had on the date of meeting of the Departmental  Promotion Committee namely, 3.11.1979, put in greater length of qualifying service than the senior-most officer of  the Himachal  Pradesh  Health  Service  Grade  I officers and  that the  Government, therefore,  started  the roster rightly  with the  category of Specialists keeping in view the  length of  qualifying service  in each  of grades, namely, Specialists  and Himachal  Pradesh Service  Grade  I officers.      Mr. Mehta,  appearing for  Dr. S.P.  Kapoor,  contended that having regard to Rule 10 (a) (iii) of the Rules and the fact that Dr. S.P. Kapoor had been appointed as PCMS Grade I officer by  the Punjab  Government on 29.8.1965, long before Dr. R.M.  Bali and  Dr. Jiwan  Lal came  into Central Health Service on  9.9.1966 and  that  Dr.  S.P.  Kapoor  had  been appointed as a Specialist in the Central Health Service with effect from 1.11.1966 while Dr. R.M. Bali had been appointed in the  Specialists’ Grade  only with  effect from 9.9.1968, Dr. S.P.  Kapoor is  senior to  both Dr.  R.M. Bali  and Dr. Jiwan Lal  in the  Himachal Pradesh Health Service though he would undoubtedly  be junior  to Dr. R.M. Bali and Dr. Jiwan Lal in  the Central  Health Service  as he  had come to that Service only  on 1.11.1966  while those  two individuals had come into  that  Service  on  9.9.1966.  But  Mr.  Tarkunde, appearing for  Dr. R.M.  Bali and  Mr. Sanghi, appearing for Dr. Jiwan  Lal, contended  that the  basis of  seniority has been rightly  determined by  the learned  Judges of the High Court, and  Mr. Sanghi  submitted that in the List Dr. Jiwan Lal will  come first and that if Dr. R.M. Bali is held to be senior, Dr. Jiwan Lal would rank next to him.      Mr. Pande,  the then  Joint  Secretary,  Home  Affairs, Government of  India had  stated  in  his  D.O.  Letter  No. 22/5/67-67-SR (S)  dated 14-2-1967  addressed to  the  Chief Secretary, Himachal  Pradesh Government  (Union  Territory), that the  Central Government  has already informed the Chief Secretary by  letter dated 17.11.1966 that the allocation of the Government servants among the States of  Punjab, Haryana and Himachal  Pradesh and Chandigarh, which had already been made  provisionally   under  S.   82  (b)   of  the   Punjab Reorganisation Act,  are to  be  finalized  by  the  end  of February, 1967. 1062 He  had   requested  the  Chief  Secretary  for  action  for integration of  the service  being initiated  soon after the finalisation of  the  allocation  and  had  stated  that  it involves  two   steps,  namely   (I)  determination  of  the equivalent posts  and  (2)  determination  of  the  relative seniority of persons holding equivalent posts but drawn from different integrating  units. It  is  also  stated  in  that letter that  while determining  the  relative  seniority  as

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mentioned above,  it may also be borne in mind that inter-se seniority of  officers drawn  from the  same integrated unit should, as  far as  possible, be  maintained. He had further stated in  that letter  that as the Chief Secretary is aware that Section  82 (4)  of the Punjab Reorganisation Act casts responsibility on  the Central  Government for ensuring fair and equitable  treatment to all the officers affected by the provisions of that Act.      The Ministry  of Health and Family Planning (Department of Health),  Government of  India wrote,  the  letter  dated 9.7.1971 to  the Secretary  to the  Government, Medical  and Health  Department  Himachal  Pradesh  regarding  fixing  of seniority of  the Medical  officers of the Punjab Government absorbed in  the Central  Health Service in Himachal Pradesh as in  the case  of  Dr.  S.P.  Kapoor.  Unfortunately,  the learned Judges  of the  High Court have not referred to this letter, which is strongly relied upon by Mr. Mehta, in their judgment. Mr.  Tarkunde submitted  that this  letter was not relied upon  before the  High Court.  That letter can not be ignored. It is stated in that letter thus:           "The Central  Health Service  was constituted with      effect from  9.9.1966 and  the seniority of the Medical      officers appointed  to this  Service with  effect  from      that date,  has been  determined in accordance with the      principles laid down in this Ministry’s O.M No. 5 (II)-      /67-CHSI dated 22.7.1967. In accordance with sub-para I      of this  Memorandum, officers  appointed to  a grade of      the Central  Health Service  under Rule  7A of  Central      Health Service  Rules, 1963  as amended  by the Central      Health  Service  (Amendment)  Rules,  1966,  will  rank      enbloc senior  in  that  grade  to  those  who  may  be      appointed to  that grade  under Rule  8A of the Central      Health Service Rules, 1963.           The  officers   of  the   Punjab  Government  were      appointed to  the Central  Health Service  with  effect      from 1.11.1966 1063      under Rule  8A of  the Central  Health  Service  Rules,      1963. As  these officers  have come  into  the  Central      Health Service  only after  the initial constitution of      that  service   was  over,   in  accordance   with  the      principles laid down for the Central Health Service, it      is not  permissible to  assign them  seniority  in  the      Central Health  Service over  the officers appointed to      the Central  Health Service at the initial constitution      of the Service.           However, as  the Government  of  Himachal  Pradesh      have proposed  to form their own Health Service and the      Medical officer  who are to opt from the Central Health      Service are  to be  included  in  that  Service,  these      officers may  be asked to exercise the option first. In      case they  choose to  remain as  members of the Central      Health Service,  their seniority will be ranked only at      the maintenance stage of the Central Health Service and      they cannot get seniority in the Central Health Service      on the  basis of  their prior ser vice under the Punjab      Government. Those officers who opt to join the proposed      Himachal Pradesh  Health Service may, however, be given      the benefit  of their  past  continuous  service  while      fixing their  seniority in  the Himachal Pradesh Health      Service. At the time of formation of that Service these      persons can  be considered for inclusion in the initial      constitution of  that service and their seniority fixed      bearing in  mind the  principles mentioned in Shri A.D.      Pande’s D.O.  letter  No.  2215/67-SR  (S)  dated  14th

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    February, 1967."      We think  that this  stand of the Central Government in regard to  seniority of  officers who  came into the Central Health Service  at the  initial constitution of that Service vis a  vis those  who came  into that  service after initial constitution of  that service  is correct and the only stand that could  be reasonably  taken in  the circumstance of the case. It  would not  be proper for anyone who came into that Service after  it had been constituted, to ask for seniority over those  who were  in that  Service on  the date  of  its initial  constitution   on  the   basis  of   their  earlier appointment before they came into the Central Health Service after its initial constitution.      Before the  Rules were  framed there  was a  meeting of officials on  24.1.1972 to  consider the  question as to how seniority of officers 1064 who were  already in the Central Health Service, having been appoint ed  to that  Service under  Rule 7A  of that Central Health Service  Rules at  the initial  constitution  of  the service and  of officers of the erst while Punjab Government who were appointed in the Central Health Service with effect from 1.11.1966  should be fixed. The minutes of that meeting are found  at pages 285 to 287 of the paper-book relating to C.A. No. 2104 of 1980. It is seen from those minutes that in that meeting  Mr. T.V. Menon of the Ministry of Law, Central Government, evidently  on the  basis of the aforesaid letter dated 9.7.1971  of the  Ministry of Home Affairs, Health and Family  Planning   addressed  to  Secretary  to  Government, Himachal Pradesh, stated that:           "As the Government of Himachal Pradesh proposes to      form a  separate Himachal Pradesh Health Service, it is      well  within   the  right   of  the   Himachal  Pradesh      Government to frame Rules and Regulations to govern the      service conditions  of officers  who might be appointed      to that  Service including  their seniority.  The  only      safeguard that  should be taken is that these rules and      principles of  seniority should be circulated among all      the officers  and  their  option  obtained  in  writing      either to  join the  Himachal Pradesh Health Service or      to remain in the Central Health Service. The Government      of Himachal  Pradesh need not be bound by the Rules and      Regulations governing  Central Health Service Scheme in      respect of  the provisions  that might  be made  in the      Himachal Pradesh  Health  Service.  The  Government  of      Himachal Pradesh  may lay  down any principles that may      be acceptable to the officers concerned keeping in view      the principles of equity and justice."      Rule  4   of  the   Rules  relates  to  classification, categories and scales of pay and reads as follows:      "4. Classification,  categories and  scales of  pay and reads as follows:      (1)   The Himachal  Pradesh Health  Service Carde  will           consist of  the two  wings namely the General Wing           and the  Teaching Wing.  These two  wings  of  the           service shall 1065           be independent  of the  each other  and posts will           not be  inter changeable  at any stage, except the           posts which carry a scale of Rs. 400-1100 or a pay           scale lower  than that  which are  included in the           service. There  shall be  six categories in Health           Wing; (General) and four categories in Health Wing           (Teaching). Each  category B  shall consist of the           grades specified in column 2 of the table below:

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    (2)   The scales  of pay  and  classification  of  such           grades shall be specified in corresponding entries           in columns 3 & 4 of the said tables. ------------------------------------------------------------ General Sr.  Categories        Scales of pay  Classification Wing    No. ------------------------------------------------------------         1.   Super time Grade-I 2250-125-2500       Class-I                                 including NPA         2.   Super time Grade-  1800-100-2000       Class-I                          II     including NPA         3.   Specialists        900-50-1150/50-1300 Class I         4.   Himachal Pradesh   900-50-1150/50-1300 Class-I              Health Service,              Grade-I.         5.   Himachal Pradesh   400-30-700/40-1109  Class-II              Health Services,              Grade-II. Amend-   6.   Dental Surgeon    400-30-700/40-1100  Class-II ment Eight-II 1066      Note:       Two  Selection Grade  posts  one  each  for                Himachal Pradesh  Health Services Grade-I and                specialists shall  be in the pay scale of Rs.                1800-100-2000 (inclusive of N.P.A.)      Note-II:  See amendment sixth and eighth (III). Teach- 1. Principal/Professors 1300-30-1600-100-1800 Class-I ing Wing        2. Specialists Grade           Associate Prof./     900-50-1150/50-1300   Class-I           Asstt. Professor        3. Asstt. Professor     900-50-1150/50-1350   Class-I           (Dental). Amend- 4. Asstt. Surgeon       450-30-660-EB-40-     Class-I ment           (Dental).       1100-50-1250 Eight-VI      The special pay attached to various posts is as under:-      (1) Principal (Medical College)            Rs. 100/- PM      (2) Assistant Professor                    Rs. 100/- PM      (3) officers appointed as Chief Medical    Rs. 100/- PM          Officers      Rule 10(a) mentions about how seniority of departmental candidates absorbed  under Rules 7 and 8 shall be determined and reads as follows:      "10. Fixation of Seniority. 1067      (a)   The inter-se-seniority of departmental candidates           absorbed under rule 7 and 8 shall de determined as           follows:-      (i) ...................................................      (ii) Himachal  Pradesh Health  Service Grade-I from the           date  of  regular  appointment  having  been  duly           selected by  the Union  Public Service Commission,           Punjab  Public  Service  Commission  and  Himachal           Pradesh Public  Service Commission  and  or  by  a           regular    Departmental     Promotion    Committee           (whichever is earlier) in the following grades:-                 P.C.M.S. I.                 G.D.O.Gr. I.      (iii) Sepecialists-From the date of regular appointment           having been  duly selected by Union Public Service           Commission, Punjab  Public Service  Commission and           Himachal Pradesh  Public Service Commission and or           by  a  regular  Departmental  Promotion  Committee

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         (whichever is earlier) in the following grades:-           1.   Specialists (C.H.S.)           2.          P.C.M.S.I.    (with   post   graduates                qualifications)           3.       Deputy  Medical  Supdt./Resident  Medical                officers/Surgical Specialists, Ripon Hospital                from the  date the  scale of  P.C.M.S.I.  was                given."      It would  appear from  Rule 10  (a) (ii) that so far as Himachal  Pradesh   Health  Service-Grade   I  officers  are concerned, seniority  will have to be reckoned from the date of regular  appointment having  been duly  selected  by  the Union Public  Service Commission and Himachal Pradesh Public Service Commission  and or by regular Departmental Promotion Committee in the following grades, 1068 namely, PCMS-Grade  I and  GDO Grade  I and  that so  far as Specialists are  concerned, their  seniority will count from the date of regular appointment having been duly selected by the  Union   Public  Service   Commission,  Punjab   Service Commission. Himachal  Pradesh Public  Service Commission and or  by  regular  Departmental  Promotion  Committee  in  the following grades  namely, (1)  Specialist (CHS);  B(2) PCMSI (with post  graduate qualifications)  and (3) Deputy Medical Superintendents/Resident      Medical      officers/Surgical Specialists, Ripon Hospital from the date on which the scale of PCMS  (I) was  given to them. It has been seen above that Dr. S.P.  Kapoor has  been appointed  to the  PCMS (Grade 1) post on  29.1.1905 and he was inducted into the Specialists, grade  in  the  Central  Health  Service  with  effect  from 1.11.1966 while Dr. R.M. Bali and Dr. Jiwan Lal, who were in the Central  Health Service  on the date of its constitution on 9.9.1966  had been  taken in  the Specialists’  grade and G.D.O. Grade I respectively under the Central Health Service with effect only from 9.9.1968. Therefore, under Rule 10 (a) (iii) of  the Rules,  Dr. S.P.  Kapoor has to rank senior to Dr. R.M. Bali as well as Dr. Jiwan Lal who admittedly has to rank after Dr. R.M. Bali.      Mr. Tarkunde submitted that a letter like the one dated 9.7.1971 mentioned  above could  have been  addressed by the Central  Government   under  Section   84  of   the   Punjab Reorganisation Act  to the  Administrator  of  the  Himachal Pradesh Union  Territory and  that the letter dated 9.7.1971 referred to  above could  not have  been written  under that Section as  Himachal Pradesh Union Territory ceased to be in existence when  the full-fledged Himachal Pradesh State came into existence on 25.1.1971 itself. Section 84 of the Punjab Reorganisation Act  says that  the "Central  Government  may give such  directions to  the State Governnent of Punjab and Haryana and  to the  Administrators of the Union Territories of Himachal Pradesh and Chandigarh as may appear to it to be necessary for  the purpose of giving effect to the foregoing provisions of  this part  and the  State Governments and the Administrator shall comply with such directions."      Mr.  Tarkunde   relied  in  this  connection  upon  the decision of  this Court  in Roshan  Lal Tanldon  v. Union of India(1) and  submitted that  having come  into the  Central Health Service  on 1.11.1966  it is  not open  to  Dr.  S.P. Kapoor who  came into that service subsequent to the date on which Dr.  R.M. Bali  joined that Service on the date of its initial constitution  to contend  that his seniority must be fixed 1069 with reference  to the date of his appointment to the Punjab Civil Medical  Service Grade I. In that decision we find the

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following passage at page 192:-           "At the  time when  the petitioner  and the direct      recruits were  appointed to  Grade ’D’  there  was  one      class in  Grade ’D’  formed of  direct recruits and the      promotees from the grade of artisans. The recruits from      both the  sources to Grade ’D’ were integrated into one      class and  no discrimination could therefore be made in      favour of recruits from one source against the recruits      from the  other source  in the  matter of  promotion to      Grade’C’.  To  put  it  differently,  once  the  direct      recruits and  promotees are absorbed in one cadre, they      form one class and they cannot be discriminated for the      purpose of  further promotion  to the higher Grade ’C’.      In the  present case  it is not disputed on the part of      the  first   respondent  that   before   the   impugned      Notification was  issued there  was only  one  rule  of      promotion for  both the  departmental promotees and the      direct recruits  and that  1  rule  was  seniority-cum-      suitability,  and   there  was  no  rule  of  promotion      separately made for application to the direct recruits.      As  a   consequence  of  the  impugned  notification  a      discriminatory treatment  is  made  in  favour  of  the      existing Apprentice  Train Examiners  who have  already      been absorb  ed in  Grade ’D’ by March 31, 1966 because      the Notification provides that this group of Apprentice      Train Examiners  should first be accommodated enbloc in      Grade ’C’  up to  80 percent of vacancies reserved from      them without  undergoing any  selection. As  regards 20      per cent  of  the  vacancies  made  available  for  the      category of  Train Examiners  to which  the petitioners      belong the  basis of recruitment was selection on merit      and the  previous test of seniority-cum-suitability was      abandoned. In  our  opinion,  the  present  case  falls      within the  principle of  the recent  decision of  this      Court of Marvyn v. Collector [1966] 3 SCR 600."      We are  of the  opinion that the ratio of this decision will not apply to the facts of the present case.      On the  other hand,  Mr. Mehta invited our attention to two decisions of this Court in N. Subba Rao etc. v. Union of India and Ors(1), and C.P. Damodaran Nayar and P.S. Menon v. State of Kerala 1070 and Others(1). The decision in N. Subba Rao etc. v. Union of India and ors. related to the inter se seniority of officers of two  regions of  different States  which came  to form  a single State  on Ist  November, 1956. On 1.11.1956 the State of Andhra  Pradesh came  into existence  under  the  States’ Reorganisation Act  1956. That  State was  formed out of the former State of Andhra Pradesh and the Telangana area of the former Hyderabad  State. The  appellants in  that case  were Engineers in  the  employment  of  Andhra  Pradesh.  On  the formation  of  Andhra  Pradesh,  the  appellants  under  the States’ Reorganisation  Act, 1956  continued  to  serve  the State of  Andhra Pradesh. The respondents who were Telangana officers in  the employment of the Hyderabad State continued to serve the State of Andhra Pradesh. The Central Government directed the  State Government in September, 1956 to draw up provisional  common  Gradation  List  keeping  in  view  the general principles  agreed to at the Conference of the Chief Secretaries  held   in  April   and  May,  1966.  The  State Government prepared  a provisional  common gradation list of Gazetted officers  in November 1961. The Telangana Engineers challenged the common Gradation List by filing Writ Petition in the Andhra Pradesh High Court. This Court observed in the Judgment that:-

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         "Under the  States’ Reorganisation  Act  power  is      conferred on  the Central  Government to  bring out the      integration of  the Service  in  the  State  of  Andhra      Pradesh by ensuring fair and equitable treatment to all      persons affected  by the  provisions of  Section 115 of      the Act. The Government of Andhra Pradesh has a duty to      bring all  relevant facts  to the notice of the Central      Government.           Under the  States’ Reorgnisation  Act, the Central      Government is  entrusted with the power of the division      and integration of the Service and the ensuring of fair      and equitable  treatment to all persons affected by the      provisions of  Section 115  of the  Act  in  regard  to      allotment of  officers from  an  existing  State  to  a      successor State."      In the  case of  C.P. Damodaran Nayar and P.S. Menon v. State of  Kerala and others (supra) the State of Kerala came into being  on 1.11.1956 and the appellant had been selected by the Madras Public Service Commission as a District Munsif and was posted as such on 26.5.1951 and he was in continuous service since then. The service of appellant was regularised as from  6.10.1961. The  appellant was  allotted  to  Kerala State with effect from 24.10.1956. On 26.3.1966 1071 the Kerala  State published the final integrated list of the Travancore, Cochin  and  Madras  Judicial  officers  in  the integrated  State   of  Kerala   as  on  1.11.1956,  showing respondents  6   and  7,  whose  dates  of  commencement  of continuous service were 20.7.1951 and 1.10.1951 respectively as senior  to the  appellant on  the basis that he commenced his  continuous   service  on   6.10.1951.   The   appellant questioned the final seniority list contending that the date of commencement of his continuous service is 26.5.1951. This Court observed thus:           "Under   Section    117   of   the   Act   (States      Reorganization Act  1956) the Central Government may at      any time  before or  after the  appointed day give such      directions to  any State Government as may appear to it      to be necessary for the purpose of giving effect to the      foregoing  provisions   of  this  Part  and  the  State      Government shall comply with such directions."      In accordance  with  the  provisions  of  that  Act,  a meeting of  the Chief Secretaries of the various States that were to  be affected  by the Reorganization’ was held at the invitation of the Central Government. In that meeting it was agreed that in determining the relative seniority as between two persons  holding posts declared equivalent to each other and drawn  from different  States, inter  alia the length of continuous  service,   whether   temporary   or   permanent, excluding periods  in which  an appointment  is  held  in  a purely stop-gap  or fortuitous  arrangement, should be taken into account.  This Court  held that  the appellant  in that case should  be given the benefit of his seniority reckoning his continuous  appointment and assigning the date 26.5.1951 and substituting  the same  in the final list for 6.10.1951, and observed:           "It is  common ground  that the appellant has been      appointed  in  a  regular  manner  through  the  Public      Service Commission  and his  appointment cannot  by any      stretch of imagination be made to fill a "pure stop-gap      or fortuitous" vacuum. As noted earlier, the Government      of India  has accepted  the position  that an  allotted      employee should not suffer any disadvantage if he would      not have  been subjected  to a  like  handicap  in  his      parent State.

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    It is  clear from  the position  taken  by  the  Madras Government that the appellant would have got the benefit 1072      of his  continuous appointment  in Madras  with  effect      from  May  26,  1951.  That  being  the  position,  the      submissions of  the learned counsel for the respondents      are of no avail". We are  of the opinion that the ratio of these two decisions relied upon  by Mr.  Mehta would  apply to  the facts of the present case.  Section 45  of the  State of Himachal Pradesh Act, 1970  lays down  that "the  Central Government may give such directions  to the  Government of the State of Himachal Pradesh as  may appear to it to be necessary for the purpose of giving  effect to  the foregoing  provisions of this Part and  also   the  provisions   of  Part   9  of   the  Punjab Reorganisation Act.  1966 and  the  State  Government  shall comply with such directions’ ’ .      We agree with Mr. Mehta that the aforesaid letter dated 9.7.1971 from  the  Ministry  of  Health,  Family  Planning, Department of  Health, Government of India, addressed to the Government  of  Himachal  Pradesh,  was  written  under  the provisions of  Section 45  of the  State of Himachal Pradesh Act 1970.  Mr. Tarkunde  submitted that  even if that letter dated 9.  7. 1971  had been  written under the provisions of Section 45  of the  State of  Himachal  Pradesh  Act,  1970, equivalent posts  must be  determined and  that  nobody  has fixed the  equivalent posts  and it is for the Government of India to  decide. We are of the opinion that this submission is not  well-founded as  the equivalent  grades have already been fixed by placing Dr. S. P. Kapoor and Dr. R. M. Bali in the category  of  Specialists  and  Dr.  Jiwan  Lal  in  the category of Himachal Pradesh Health Service Grade I officer, as mentioned  above by  the  Himachal  Pradesh  Government’s Notification No.  1-15/75-H&FP dated  9. 6. 1975 referred to above. The Central Government was under an obligation to see that in  fairness  and  equity  the  seniority  of  officers drafted into  the newly  formed State  from the  integrating States is  properly  fixed  and  that  obligation  has  been discharged by  the Central Government: (1) by Mr. Pande’s D. O. letter dated 14.2.1967, (2) the stand taken by Mr. 1’. V. Menon  Deputy  Legal  Adviser,  Central  Government  in  the meeting of  officers held  on 24.1.1972  and (3)  the letter dated 9.7.1971  written by the Ministry of Health and Family Planning Welfare,  Government of  India to  the Secretary to the Government  of Himachal  Pradesh. In these circumstances we are  of the  opinion that  the learned Judges of the High Court have erred in holding that the inter se  seniority has to be  determined only on the basis of the date of induction into the  Central Service  and not with reference to Rule 10 (a) (iii) of the Rules 1073 which had,  however, been  noticed  by  the  learned  Judges without a  correct appreciation  of its  impact on  what the Government of  Himachal Pradesh  should do  in the matter of fixing the relative seniority of the officers drawn from the integrating States.  We are  of the  opinion that  inter  se seniority has  to be determined only in accordance with Rule 10 (n) (iii) of the Rules and that Dr. S. P. Kapoor would be senior to  Dr. R.  M. Bali, who in turn would rank senior to Dr. Jiwan Lal.      The annual  confidential reports  relating to Dr. S. P. Kapoor, t  Dr Jiwan  Lal and others had to be looked into by the  Departmental  Promotion  Committee  on  3.11.1979.  The contention of Dr. Jiwan Lal was that the annual confidential reports of  Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were

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initiated by  an officer not only junior to them but also an aspirant for promotion to a higher post alongwith them, and, therefore, these  confidential reports  should not have been taken  into   consideration  for   further  promotion.   The contention of the Himachal Pradesh Government was that the - confidential reports made by Dr. J. C. Sharma were not taken into account  and that  Dr. Grover’s  reports were  revised, sometimes  with   additional  remarks  for  or  against  the individuals by higher authorities and they were not the only reports  which   were  taken   into  consideration   by  the Departmental Promotion  Committee. It  is  clear  from  this contention of  the  Himachal  Pradesh  Government  that  Dr. Grover’s  reports  were  taken  into  consideration  by  the Departmental Promotion  Committee. though  it is stated that they had  been earlier  revised by  higher authorities.  Dr. Grover was  in the field competing with Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. (Mrs.) Damyanti Kapur at the relevant time for promotion  to the  higher post  Therefore, it  would not have been  fair for the Depart mental Promotion Committee to take into  account the  annual confidential  reports made by Dr. Grover though they might have been revised by the higher authorities      Section 2  (g) of  the  Rules  defines  a  Departmental Promotion Committee  as: "a  Committee constituted from time to  time  by  the  Government  for  the  purpose  of  making recommendation  for   promotion  or   confirmation  in   2nd category".      Dr. Jiwan  Lal has stated in his Special Leave Petition that under the Rules the Departmental Promotion Committee of Himachal 1074 Pradesh in  respect of  the Health Services consisted of the Chief  Secretary,   Financial  Commissioner  and  Secretary, Health  and   Family  Welfare,   of  the   Himachal  Pradesh Government. There  is no  dispute about  this fact.  But the Departmental Promotion  Committee which  met on 3.11.1979 to consider the question of appointment of Deputy Directors and Director  of   Health  Services,   consisted  of  the  Chief Secretary, Financial Commissioner and Principal Secretary to the Chief  Minister of  Himachal Pradesh,  who was appointed additionally as  Secretary of  Health and  Family Welfare in the absence  on leave  of the  regular Secretary, Health and Family Welfare  from 3rd  to 8th  November, 1979. It is seen from  the   counter-affidavit  of   the   Himachal   Pradesh Government that  the Director  of Health Services and Deputy Director of  Health Wealth  were holding the posts on ad hoc basis from  the year  1973. The  final  seniority  list  was prepared only  on 2.11.1979  and the Depart mental Promotion Committee was constituted on 3.11.1979. The Joint Secretary, Personnel  Department,   Himachal  Pradesh   Government  had written the  letter  No.  Per  (A-l)  B-79  dated  3.11.1979 requesting Mr.  R. C.  Gupta,  Secretary  (Health)  Himachal Pradesh Government  to  attend  the  Departmental  Promotion Committee Meeting  to be  held at 3.00 P. M. On that day for considering the names of officers for the posts of Director, Health Services.  It is seen from what has been stated above and it  is also  admitted by the Himachal Pradesh Government that the  selection of the Deputy Directors and the Director of Health  Services from  amongst the  Deputy Directors  had been  made   by  the  Departmental  Promotion  Committee  on 3.11.1979 itself and that even the orders of appointment had been issued  on the  same  day  with  the  approval  of  the Governor of  Himachal Pradesh.  Though before the High Court it does  not appear  that Dr.  Jiwan  Lal  had  alleged  any malafides  to  anybody  he  has  alleged  in  Special  Leave

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Petition that the constitution of the Departmental Promotion Committee and  the process of selection and appointment were obviously malafides and that they were appointed on the date on which Mr. Yadav, the regular Secretary, Health and Family Welfare  Department,  was  on  leave  and  that  this  haste suggests that  he would  not have  agreed to  carry out  the political wish  of the  then Chief  Minister in  making  the appointments in  the post  haste manner.  Though it  is  not possible to accept the belated contention that there was any malafides on  the part  of the  then Chief  Minister in  the matter  of   constitution  of   the  Departmental  Promotion Committee with his Principal Secretary as one of its members in the  place of  the regular  Secretary, Health  and Family Welfare, we are of the opinion 1075 that there  is room  for suspecting the reason why the whole thing  was   completed  in  haste  on  3.11.1979  after  the preparation of the final seniority list on 2.11.1979, in the light of the admitted position that the Deputy Directors and Director of  Health Services,  Himachal Pradesh were holding ad hoc  appointments from  1973. The  matter was not such as could not  have been put off by a few days. Such rush is not usual in  any State  Government. The  post-haste  manner  in which these things have been done on 3.11.1979 suggests that some higher-up  was interested in pushing through the matter hastly when the regular Secretary, Health and Family Welfare was on  leave. Therefore,  we are  of the  opinion that  the matter requires to be considered afresh.      In regard  to the  question of  rotation, Rule  9(4) of Rules lays  down: (I)  super-time Grade  II (General)  posts shall be  filled by  promotion of  (i) HPHS-Grade I officers with not less than seven years of service in the category or (ii) Specialists’  Grade officers  with not  less than  five years service  in that  category. The selection will have to be on  the recommendation  of a  Departmental  Promotion  1) Committee  on   the  basis  of  merit-cum-seniority  of  the officers concerned  at (i)  and (ii)  above on  50: 50 basis keeping in  view the  nature of  the  duties  of  the  post. Suppertime Grade  I  (General)  posts  shall  be  filled  by promotion  on   the  recommendations   of  the  Departmental Promotion Committee on the basis of merit with due regard to seniority of  officers holding the posts of Deputy Directors with not   less  than five  years service in that category. The contention  of Dr.  Jiwan Lal  was that the Departmental Promotion Committee  should not have started the rotation to post of  Director of  Health Services  with a Specialist. On the other  hand, the  contention  of  the  Himachal  Pradesh Government before  the High Court was that Rule 9 was silent on the  question as  to the  category with  which the roster should be  started  and,  therefore,  the  State  Government decided to  supplement the  Rule by starting the roster with the category  of Specialists  having regard to the fact that the senior-most  Specialist officer available on the date of the Departmental  Promotion Committee  meeting on  3.11.1979 had put  in greater  length of  qualifying service  than the senior-most HPHS  (Grade I)  officer. Rule  21 of  the Rules provides that  if any difficulty is felt in giving effect to provisions of these Rules the Government may in consultation with the  Public Service Commission give such directions not inconsistent with  the provisions  of those Rules, as appear to  be  necessary  or  expedient  for  the  removal  of  the difficulty. In  view of  the fact  that Rule  9(4) does  not provide the category with which the roster may be started. 1076      whether with  HPHS (Grade  I) officer  or  Specialists,

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difficulty appears  to have  arisen in  starting the roster. Therefore, the  Government stopped  in and  supplemented the Rule by  directing that  the roster  may be started with the category of  Specialists  keeping  in  view  the  length  of qualifying service  in  each  of  the  two  grades,  namely, Specialists and  HPHS (Grade 1) officers. The learned Judges of  the   High  Court  have  expressed  the  view  that  the Specialists had an advantage for their category starting the roster by  the senior  most of the Specialists having put in more number  of years  of qualifying  service than  the HPHS (Grade I)  officers. We  are of the opinion that the learned Judges were perfectly justified in taking this view and that the Government  was right in getting the roster started with Specialists instead of of HPHS (Grade I) officers.      For the  reasons stated  above Civil Appeal No. 2104 of 1980 is  allowed and  Civil  Appeal  No.  2384  of  1980  is dismissed. The  principle on which relative seniority should be fixed  having been  settled in this judgment. it shall be fixed accordingly  and the  matter of  selection  of  Deputy Directors and  Director of Health Services, Himachal Pradesh shall be  decided afresh  according to  the Rules and in the light of this judgment. Under the circumstances of the case, we make no order as to costs. N.V.K.                             C.A. 2104 of 1980 allowed                             and C.A. 2384 of 1980 dismissed. 1077