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PETITIONER: GUMAN SINGH

       Vs.

RESPONDENT: STATE OF RAJASTHAN & ORS.

DATE OF JUDGMENT26/07/1971

BENCH: [S.   M. SIKRI, C. J., G. K. MITTER, C. A. VAIDIALINGAM,  P.JAGANMOHAN REDDY AND I. D. DUA,  JJ.]

ACT: Rajasthan Administrative Service Rules, 1954, rr. 28B(2) and 32Validity  of-Whether  violative  of  Arts.  14  &  16   of Constitution because of absence of guidelines in the  matter of  selection of candidates by merit-Circular  dated  August 27,  1966  whether invalid on the ground  that  the  marking system  laid down in it went against the Rules in regard  to selection  by merit-Departmental Promotion Committee  taking adverse remarks in confidential report into account  without these  having  been communicated to the  officer  concerned- Effect.

HEADNOTE: The appellant G was a member of the Rajasthan Administrative Service.  Aggrieved by the order allotting seniority to  him under  the Rajasthan Administrative Service Rules, 1954,  he filed  a writ petition under Art. 226 in the High Court.   A single Judge of the court allowed the petition.  However  in appeal  by the State the Division Bench decided against  the appellant who by special leave appealed to this Court.   Two other  members  of  the  Rajasthan  Administrative  Service, similarly  aggrieved  filed  writ petitions  under  Art.  32 before  this  Court.   The common questions  that  fell  for consideration  in  the appeal and writ petitions  were;  (i) whether  rr. 28B(2) and 32 of the  Rajasthan  Administrative Service  Rules  were  violative of Arts. 14 and  16  of  the Constitution because they did not contain any guidelines  in the  matter  of determining the merit  of  candidates;  (ii) whether  the circular dated August 27, _ 1966 issued by  the State  Government  laying down a system of marking  for  the purpose  of determining the merit of candidates was  invalid because  it  was  contrary to the  relevant  Rules  in  this regard.   The  appellant  G  also  complained  that  adverse remarks  in  his  confidential report  which  had  not  been communicated to him had been taken into account against  him by the Departmental Promotion Committee. HELD:(i) Rule 32 in essence adopts what is stated in r. 28B.  The latter rule provides for two methods of  selection one  based  on merit and the other based  on  seniority-cum- merit.  In other words, the rule provides that the promotion based on merit in contradiction to that based on  seniority- cum-merit  shall  strictly be on the basis  of  merit.   The Selection  Committee and the Promotion Committee consist  of very responsible and senior officers of the State and  being persons  of experience they can be trusted to  evaluate  the merits of a particular officer.  No doubt the word merit’ is

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not  capable of easy definition, but it can be  safely  said that  merit  is  a  sum  total  of  various  questions   and attributes   of   an   employee   such   as   his   academic qualifications,  his  distinction  in  the  University,  his character,  integrity,  devotion to duty and the  manner  in which he discharges his official duties.  Allied to this may be various other matters or factors such as his  punctuality in  work, the quality and out-turn of work done by  him  and the manner of his dealing with his superiors and subordinate officers and the general public and his rank in the service. The  various particulars in the annual confidential  reports of an officer is 901 carefully  and properly noted, Will also give a  very  broad and  general indication regarding the merit of  an  officer. Therefore it cannot be stated that rr. 28B and 32 are in any manner vague or do not give any guidelines forassessing the merit of an officer. [921B-F] (ii)(a) The restriction contained in the proviso to  sub-r. (2) of r. 28B is quitereasonable.   Before an officer  in the  junior scale can be considered as fit for promotion  to the senior scale it is necessary that he should have  worked on  a post in the service at least for some period of  time. As  to  what the quantum of that period must be is  not  for this  Court  to  lay down.  The Government  has  fixed  this period  as  six  years.  It cannot be said  that  it  is  an improper restriction. [922A-B] (b)The  provisions contained in sub-r. (2)  confining  the selection to senior-most officers not exceeding 10 times the number  of  total,  vacancies is also  reasonable.   Such  a provision  will  encourage  the members of  the  service  to aspire  for  promotion  for making  themselves  eligible  by increasing  their  efficiencies in the  discharge  of  their duties. [922B-C] (iii)The  object  of the impugned circular may be  to  bring about uniformity in the award of marks.  But the  directions contained  therein do offend the rules.  This is not a  case of the Government filling up the gaps or of giving executive instructions  not provided for by or not  inconsistent  with the  rules.   No  discretion is given to  the  selection  or promotion  committee  to adopt any method  other  than  that indicated in the circular.  According to the principle  laid down  by  this  Court  in Sant Ram  Sharma’s  case,  if  the circular  dated  August  27, 1966 or any part  of  it  gives instructions contrary to or opposed to any of the rules, the circular  or that part of the circular to that extent  would be  invalid.   By  this test the circular  in  question  was invalid and must be struck down. [928F-929F] Sant  Ram  Sharma  v. State of Rajasthan &  Anr.,  [1968]  1 S.C.R. 111, applied. (iv)Appellant  G had made a specific grievance in his  writ petition  before  the High Court  about  the  uncommunicated adverse  remarks  having  been taken  into  account  by  the Departmental Promotion Committee.  The Division Bench of the High Court was wrong in holding that since the Committee had not been made a party to the proceedings this question could not  be gone into.  The Government which was the  appointing authority  was  a party before the High Court.  It  was  the duty of the State Government to place before the High  Court all the materials available before it to enable the Court to consider   whether  the  grievance  of  the  appellant   was justified  or not.  The appellant’s case must  therefore  be reconsidered in the light of the Rules. [932C-H]

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JUDGMENT: CIVIL  APPELTATE  JURISDICTION : Civil Appeal  No.  1815  of 1970. Appeal  by special leave from the judgment and  order  dated January  20,  1970  of the Rajasthan High  Court  in  D.  B. Special  Appeals Nos. 55 and 57 of 1968 and  Writ  Petitions Nos. 76 and 139 of 1970. Petitions under Art. 32 of the Constitution of India for en- forcement of fundamental rights. 902 R.K.  Garg, S. C. Agarwala, D. P. Singh and R.  K.  Jain, for  the  appellant  (in  C.  A.  No.  1815/1970)  and   the petitioners (in both the petitions.). Jagadish Swarup, Solicitor-General and K. Baldev, Mehta, for respondent No. 1 (in C. A. No. 1815 of 1970). S.   M.  Jain,  for respondent No. 3 (in C. A. No.  1815  of 1970). B.   Sen and K. Baldev Mehta, for respondent No. 1 (in W. P. No.  76 of 1970) K. Baldev Mehta, for respondent Nos. 1, 32 and 33 (in W. P. No.  139/1970.). The Judgment of the Court was delivered by Vaidiyalingam.J,-In  both the writ petitions under  Art.  32 and  the   civil   appeal,   by   special   leave,    common questions  that  arise  for  consideration  relate  to   the validity  of rr. 28B and 32 of the Rajasthan  Administrative Service  Rules,  1954  (hereinafter to be  referred  as  the Rules)  and the Circular No. F. 1. (6) Apptts.   D/50  dated August  27,  1966  issued  by the  Chief  Secretary  to  the Government  of  Rajasthan  as  well  as  the  Order  of  the Government of Rajasthan No. F. 2(24) Apptts. (A-IV)/66 dated January 4, 1967.  In the two writ petitions the Order No. F. 2(24)  Apptts. (A-IV)/66 dated January 22, 1970 and in  Writ Petition  No.  139  of 1970 a further  Order  of  the  State Government  No. F. 27(24)A (A-4)/66 dated February 21,  1970 are  also challenged.  The nature of the various  Orders  as well as the Rules and the Circular that are challenged  will be referred to later at the appropriate stage. Civil  Appeal  No. 1815 of 1970 arises out of  the  Division Bench Judgment of the Rajasthan High Court dated January 20, 1970  in  D. B. Special Appeal No. 57 of  1968.   The  facts leading up to the Civil Appeal may be stated: The  appellant is  an  Arts Graduate having taken his degree in  1947.   He took  his Law Degree in the year 1961 having been placed  in the  First  Division.  He joined the service of  the  former Jaipur State as Inspector, Customs and Excise, in 1948.   On the  formation  of  the United State of  Rajasthan,  he  was appointed  in  the,  service of the State  of  Rajasthan  as Inspector,  Customs  and  Excise.   In  1950  the  Rajasthan Administrative  Service  was constituted for  the  State  of Rajasthan and the Rules governing the ’conditions of service of the members therein were framed in 1954 by the Rajpramukh under  the proviso to Art. 309 of the  Constitution.   Under the  Rules the Adminisrative Service Cadre has three  cadres of  pay,  namely,  Ordinary Time  Scale,  Senior  Scale  and Selection  Grade.  The appointment to the service cadre  was by direct recruitment as well 903 as by promotion from other subordinate services in the State of  Rajasthan.   The  appointment to the  Senior  Scale  and Selection Grade was by promotion from amongst the members of the  service.  According to the appellant ff. 27 and  32  of the  Rules, as they stood originally provided for  promotion to be made only on the basis of seniority-cum-merit and that

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sub-rule(2) of r. 27 laid down various criteria to be  taken into  account in the matter of selection of  candidates  for promotion.   It  was  his further case that  r.  28,  as  it originally stood, laid down the procedure for recruitment by promotion  to  the service on the  basis  of  seniority-cum- merit.   The  appellant was appointed in the  year  1957  as member  of the Rajasthan Administrative Service as a  result of the open competitive examination held by the State Public Service  Commission  under the provisions of  the  Rajasthan Administrative   Service  (Emergency)  Rules,   1956.    The appellant claimed that his seniority was higher than that of respondents  2  to 5 as is evident from the  seniority  list published  on  July  1,  1964.  At  this  stage  it  may  be mentioned that though under the Order dated January 4,  1967 of the State Government fifteen officers in the junior scale were  promoted and appointed on an officiating basis to  the senior  scale  of the service, the appellant has  made  only four  of  them  respondents  2 to  5  as  parties  in  these proceedings  on the ground that though they were juniors  to him,  promotion  has  been given  to  them  superseding  his claims.   The other officers so promoted, even according  to the  appellant were senior to him in service.  We  may  also mention  that  respondent  No.  5 is  since  dead,  but  for convenience  he will be referred to by the rank occupied  by him as respondent. In 1965 the State decided to introduce the system of  making promotions  to  the service on the basis of merit  alone  in addition to the existing system of making promotions on  the basis  of seniority-cum-merit.  With this end in view  there were  various amendments made to the Rules by which  certain additions  were made and certain other  provisions  deleted. On December 14, 1965, r. 28B was incorporated providing  for appointment  by  promotion to posts in the  service  on  the basis  of merit and on the basis of  seniority-cum-merit  in the   proportion  of  50:50  and  the  number  of   eligible candidates to be considered for promotion is to be 10  times the  total number of vacancies to be filled up on the  basis of  merit as well as seniority-cum-merit.  On the same  date when  r.  28B  was incorporated sub-rule (2) of  r.  27  was deleted.   On January 7, 1966 sub-rules(2) to (6) of  r.  28 were  also  deleted.  On December 14, 1965  a  Circular  was issued   by  the  Chief  Secretary  to  the  Government   of Rajasthan.  According to the appellant the said Circular was a  secret  one issued without any  authority  directing  the Selection  and  Promotion  Committees  and  the   Appointing authorities to follow the instructions given 904 therein  when making selection, promotion or appointment  in the  service.  The said circular prescribed  "merit  formula for making selection of persons to be appointed on the basis of  merit  alone  and the  seniority-cum-merit  formula  for making selection of persons to be appointed on the basis  of seniority-cum-merit."  The  basis  for  both  the  types  of promotions was the marking system indicated in the circular. We do not think it necessary to go more elaborately into the details of this circular or the authority under which it was issued because it is seen that this circular was  superseded by the circular dated August 27, 1966, which is under severe attack in all these proceedings.  The contents of the latter Circular  as  well  as  the  authority  under  which  it  is purported  to have been issued will be dealt with by  us  in due  course in the latter part of the judgment.   On  August 26,  1966 r. 28B was further amended by providing  that  the proportion of promotion to be made by selection on the basis of merit and seniority merit is to be 1:2 instead of 50:50.

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On the same day a proviso was also added to sub-rule (2)  of r. 28B providing that only officers who have been in service for not less than six years in the lower grade of the  cadre will  be  eligible  for  being  considered  for  the   first promotion  in  the cadre.  On August 27, 1966  the  impugned circular  was  issued by the Chief Secretary  to  the  State Government.   It  is  the case of the  appellant  that  this circular was issued without any authority and it was again a secret   circular  giving  directions  in  the   matter   of selection,  promotion and appointment to the service to  the Committees  or the Authorities in charge of the  same.   The circular  again  dealt  with  the  merit  formula  and   the seniority-cum-merit formulae on the basis of marking  system indicated  therein.  On September 8, 1966 the State  decided to  extend the principles of making selections on the  basis of  merit alone to appointments to senior posts  also.   For this  purpose  the original r. 32 was substituted by  a  new rule   providing  for  appointments  to  senior  scale   and selection  grade posts on the basis of merit and  seniority- cum-merit in the ratio of 1: 2 on the recommendation of  the Committee constituted under the said rule. It  is  the  case  of  the  appellant  that  prior  to   the notification  dated September 8, 1966 though many  posts  in the  senior scale of service had fallen vacant  even  during the  years 1963-64 and 1964-65, those posts were not  filled up  by  making promotion on the basis of  the  principle  of seniority-cum-merit which was in force at the relevant time. By  the  Order  dated January, 1966,  the  State  Government created  26 new posts in the Senior Scale of Service and  14 posts  in the Selection Grade with effect from the  date  of the order.  As a result of this creation of new posts, about 44  vacancies  became  available  for  being  filled  up  by promotion  to  the  Senior  Scale  of  Service  in  1965-66. Nevertheless the vacancies                             905 were  not  filed up by the State.  After the new r.  32  was incorporated on September 8, 1966 the Government took  steps to  fill up the 44 vacancies in the Senior Scale of  Service and for this purpose a Departmental Promotion Committee  was constituted  and the Committee met in the end of  September, 1966 for considering the claims of the officers for purposes of  promotion.  On the basis of the recommendations made  by the  said  Committee,  the Government  by  the  Order  dated December 7, 1966 promoted 29 officers to the Senior Scale on the basis of seniority-cum-merit.  Again by the order  dated January  4,  1967, which is another order  under  attack  in these  proceedings,  15 officers including  the  respondents Nos. 2 to 5 were promoted to the Senior Scale of Service  on the basis of merit alone. According  to the appellant by the Orders dated December  7, 1966  and  January 4, 1967 promotions had  been  made  quite contrary  to  rr.  28B  and 32 of  the  Rules.   It  is  the grievance  of  the  appellant that  under  the  Order  dated January 4, 1967 a large number of officers who had qualified for promotion on the basis of merit under the merit  formula were  superseded  by the officers junior  to  them.   Though Rules  28B  and 32 provided for selection on  the  basis  of merit  gave  no indication or guidance as to  what  are  the factors  to be taken into account in assessing the merit  of an  officer.   The  promotions had also  been  made  by  the Committee adopting the principle of awarding marks as direc- ted  by  the Circular dated August 27, 1966 which  had  been issued without any authority of law.  The appellant filed S. B.  Writ  Petition  No.  79  of  1967  in  the  High   Court challenging  the  vires of rr. 28B and 32  as  violative  of

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Arts. 14 and 16.  The appellant also challenged the validity and legality of the Circular dated Angus 27, 1966 as well as the  order  dated January 4, 1967 giving promotions  to  the respondents  Nos.  2 to 5 to the senior Posts, In  the  writ petition  the appellant had alleged that the various  amend- ments  made to the rules from time to time and the delay  in making  promotions to Senior Posts were all with a  view  to show favourtism to the third respondent who was the  son-in- law  of  the Chief Minister of Rajasthan and  to  the  other respondents  who are all near relations of persons who  were the   favourites  of  the  Chief  Minister  of  the   State. According  to the appellant, the Circular dated  August  27, 1966  was issued without any authority and in any event  the Government by execution instructions had no power to  fetter the   powers   of  the  Selection  Committees   which   were functioning under the statutory rules.  Even the  principles laid  down in the Circular regarding the award of marks  for assessing the merit were arbitrary and vague.  Rules 28B and 32 were challenged as violative of Arts. 14 and 16  inasmuch as  the basis of merit had not been defined anywhere in  the rules and no principles or guidelines had been laid down  in the rules for assessing the merit of an officer. 906 The  provisions  laying down the criteria  for  judging  the merit  of an officer contained in sub-rule (2) of r.  27  as well as the procedure for assessing the said merit contained in  cls. 2 to 6 of r. 28 having disappeared by the  deletion of  those provisions, according to the appellant,  arbitrary powers had been conferred by the rules on the Committees  to select any person they liked on the ground of merit.   Apart from  the attack levelled against rr. 28B and 32 that  there were  no principles laid down for judging the merits  of  an officer,  the appellant also attacked as discriminatory  and violative  of  Arts.  14 and 16, the provisions  of  r.  28B providing  that  the  number of eligible  candidates  to  be considered was to be 10 times the total number of  vacancies to be filled up and that six years service was essential for an  officer  to be eligible for being considered  for  first promotion. The  Order dated January 4, 1967 was attacked on the  ground that  the promotions had been made on the basis  of  illegal rules  as  well as the directions contained in  the  invalid Circular dated August 27, 1966.  In particular the appellant contended that though his service record for the year  1965- 66  was  quite good. nevertheless  certain  adverse  remarks contained   in  the  confidential  rolls  which   were   not communicated  to  him, had been taken into  account  by  the Departmental Promotion Committee, which met in the last week of  September,  1966  and hence there  has  been  no  proper consideration of his claims for being promoted to the Senior post.  On all these grounds the appellant attacked rules 28B and  32,  the Circular dated August 27, 1966 and  the  Order dated  January 4, 1967.  He also alleged mala  fide  against the State. The respondents Nos. 2 to 5 do not appear to have filed  any counter-affidavit.  But the State contended that rr. 28B and 32  were  not  invalid and did not  violate  the  provisions either of Art. 14 or Art. 16.  The requirement in the  rules regarding  promotion to be based on merit was  justified  as such  selection  was  necessary  to  achieve  efficiency  in service.   The  State controverted the allegations  of  mala hides  made by the appellant.  Though it was  admitted  that the  third  respondent  was  the  son-in-law  of  the  Chief Minister of the State, it was denied that any favoritism was shown by the State either to that respondent or to the other

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respondents in the matter giving promotions to them.  On the other hand, the Departmental Promotion Committee  considered the claims of the appellantand  other  officers  and   on assessment of the various claims of the officers  promotions were given to the officers mentioned in theOrder     dated January 4, 1967 by the State Government on thebasis   of the  recommendation of the Departmental Promotion  Committee which  has  also recommended respondents 2 to 5.  The  State further contended that though promotions 907 had  not been made to the Senior Scale in the  year  1963-64 and 1964-65, it was not with a view to favour any particular officer.  Apart from the fact that the State Government  had the  power either to fill up the posts or keep them  vacant, in this particular case the vacancies were not filled up  as an amendment of the rules was in contemplation of the  State Government.   It was urged that the rules contained  various principles for assessment of merit of an officer. Regarding  the  Circular dated August 27,  1966,  the  State contended that the marking system laid down in the  Circular for  assessment  of merit of an officer  was  calculated  to ensure objectivity of approach on the part of the  Selection Committee.   As  there were as many as 35  sets  of  service rules governing various services, the Circular was issued to bring  about uniformity in the procedure for  assessment  of merit  and for making selections on the basis of  seniority- cum-merit.   The State claimed that it has ample  powers  to issue  such  a  Circular.  Regarding  the  validity  of  the Circular the State contended that the Circular dated  August 27,   1966  was  issued  by  the  Chief  Secretary  in   his administrative capacity being the Head of the Service in the State.  It is within his competence to give guidance for the proper working of any governmental machinery.  The  circular is  not intended to be a piece of legislation nor is  it  an order of the Government. Regarding the confidential reports of the appellant the plea of the State Government was that the confidential reports of all the officers including that of the appellant were before the Departmental Promotion Committee when it met for  making selection  in  September, 1966 and that  there  was  nothing illegal  in  the  said  Committee  considering  the  adverse remarks,  if any, made in those reports.  The State  finally prayed for dismissal of the writ petition. The  learned Single Judge who dealt with the  writ  petition held that rr. 28B and 32 were not violative of either  Arts. 14  or 16. The principle of merit embodied in the rules  was valid  and  the Committee charged with the  duty  under  the rules  of  considering the claims of  various  officers  for promotion  was  quite  competent to take  all  the  relevant factors  when assessing the merits of an  officer  regarding his  suitability for promotion.  The learned  Judge  further held  that  the  principle  of merit  of  an  officer  being considered  for promotion embodied in the rules, was  really based  on the recommendation of the  Administrative  Reforms Committee.   However,  the  learned  Judge  held  that   the provision  in sub-rule (2) of r. 28B restricting the  number of  eligible candidates to be considered for promotion  to ten  times the total number of vacancies, was  violative  of Art. 16 inasmuch as the claims 908 of various other eligible officers for being considered  for promotion  was barred.  The learned Judge further held  that this  portion  of  sub-rule  (2) of r.  28B  is  not  easily severable  from the remaining portion of sub-rule(2)  of  r. 28B and in consequence be held that the whole of sub-rule(2)

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of r. 28B was bad.  After considering the relevant  portions of  the  Circular dated August 27, 1966, the  learned  Judge held that the administrative instructions contained  therein had  to  be adopted and followed by these  Committees.   The directions contained therein did not leave any choice to the Committees   to   ignore  the  same.    The   administrative directions contained in the said Circular, according to  the learned Judge, provided a rigid formula for being adopted in the  matter  of selection for promotion and  the  directions contained therein restricted the powers and functions of the Committees functioning under the statutory rules.  According to  the learned Judge, even on merits, cannot be  considered to be reasonable.  In this view the circular was held to  be bad  as  being  repugnant  to  the  rules.   Regarding   the promotions  made  under  order dated January  4,  1967,  the learned  Judge  held that the directions  contained  in  the Circular must have been taken into account by the  Selection Committee and hence the promotions were not valid.  On  this reasoning,  the  learned Judge, by his  judgment  and  order dated November 7, 1968 held that sub-rule (1) of r. 28B  and r.  32  were  valid  and that sub-rule (2)  of  r.  28B  was violative  of Art. 16 and hence that sub-rule was bad.   The circular  dated  August  27, 1966 was struck  down  and  the promotions of respondents made under the order dated January 4, 1967 were also struck down. Aggrieved  by the judgment and order of the  learned  Single Judge, the first respondent, the State, filed D. D.  Special Appeal No. 57 of 1968 and the respondents Nos. 2 and 3 filed D.  B. Special Appeal No. 55 of 1968.  The appellant  herein filed  cross-objections,  in the appeal filed by  the  State challenging  the  decision  of  the  learned  Single   Judge upholding the validity of sub-rule (1) or r. 28B and r.  32. The  Division Bench by its order and judgment dated  January 20, 1970 allowed the two appeals Nos. 55 and 57 of 1968  and dismissed the cross-objections filed by the appellant.   The Division  Bench held that the view of learned  Single  Judge that  r. 28B(2) was bad was erroneous.  On the  other  hand, the Division Bench held that restricting the eligibility  of officers  who have put in at least six years of service  was quite  reasonable  and the further provision  in  r.  28B(2) regarding  the field of selection being confined  to  senior most  officers in the Junior Scale not exceeding  10  times the total number of ’Vacancies was also 909 reasonable.   Differing from the learned Single  Judge,  the Division  Bench held that no part of r. 28B(2) was  invalid. The  Division  Bench agreed with the views  of  the  learned Single  Judge regarding the validity of sub-rule (1)  of  r. 28B  and  r. 32.  Regarding the Circular  dated  August  27, 1966,  the  learned  Judges held  that  the  marking  system indicated  therein  was  really  based  upon  the   previous Circular  dated August 31, 1960 under which merit was to  be evaluated  by allotting marks on the previous record  of  an officer.  The said Circular of 1960 had been in operation in respect  of the said services except the Rajasthan  Judicial Service or the Rajasthan Higher Judicial Service, which were under the control of the High Court.  It is the view of  the Division  Bench that the Circular of 1966 was  very  elastic and  gave  wide discretion to the Committees to  assess  the merit  of an officer.  The Circular has done nothing  except to lay down broad guidelines for the excercise of discretion by the Promotion Committee.  The system of marking indicated in  the  Circular  was  quite  good  as  it  brought   about uniformity  in  the procedure for assessment of  merit.   On this reasoning the learned Judges held that the Circular  of

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1966 was valid and it was in no way repugnant to the rules. Regarding the authority for the Circular, the learned Judges noted that there has been some confusion in the stand  taken by  the  State  from  time  to  time  even  when  they  made applications for amending their counter-affidavit for making it clear that the Circular has been issued not by the  Chief Secretary  in  his  individual capacity  but  by  the  State Government.   Ultimately, the Division Bench held that  they had  examined  the cabinet file produced before  them  along with  the note sheets and that the Court was satisfied  that the  Circular of 1966, has been issued with the approval  of the State Government.  The learned Judges rejected the  plea of mala fides raised by the appellant herein.  Regarding the allegation  made by the appellant that the  adverse  remarks which  had not been communicated to him had been taken  into account  by the Promotion Committee in September, 1966,  the learned  Judges  held  that as  the  Departmental  Promotion Committee  had not been impleaded as a party,  the  question whether  the adverse remarks made against the appellant  had been taken into account by the said Committee cannot be gone into  in these proceedings.  Regarding the  promotions  made under  the Order dated January 14, 1967, the Division  Bench upheld the same as it had already held that rules 28B and 32 as  well  as  the Circular of 1966 were  all  valid.   Civil Appeal  No.  1815  of 1970 is against the  decision  of  the Division  Bench,  reiterating the objections  regarding  the validity  of  the  rules,  the  Circular,  as  well  as  the promotions made. Writ  Petition  No. 76 of 1970 is filed by  Motilal  Kakkar, Apart  from challenging rr. 28B and 32 and the  Circular  of 1966 910 and  the  promotions made under the order dated  January  4, 1967,  the writ petitioner challenges also the  order  dated January 22, 1970 confirming the promotions of respondents  2 to 16 in the Senior Scale.  The facts leading up to the writ petition are as follows : The  petitioner after obtaining his M. A. Degree in  History and  the  Law  Degree from  the  Lucknow  University  joined service in the erstwhile State of Jodhpur on August 1,  1943 as  a Special Officer (Settlement).  He entered the  Jodhpur State  Civil  Service on March 13, 1946 as a result  of  the competitive   examination   held  by  the   Public   Service Commission  of that State.  At the time of the formation  of the Rajasthan Union, the petitioner was working as Assistant Director,   Civil   ?Supplies,  Jodhpur.    Ultimately   the petitioner  was  appointed to the  Rajasthan  Administrative Service  with  effect  from January 6, 1950.   He  has  been serving  in  various  capacities and he was  also  sent  for higher  training  to  the United States of  America  by  the Government  of  India during the period March  23,  1958  to September  27, 1958.  The petitioner thereafter was sent  on deputation  to  the  Municipal Corporation of  Delhi  as  an Assistant  Commissioner during the period June 17,  1963  to April 21, 1964.  Later on he was on deputation as Principal, Tribal  Orientation and Study Centre during the  period  May 22, 1964 to March 31, 1967.  He became the District  Manager of Food Corporation of India and was holding that post since July 1, 1968.  After giving the history sheet of respondents Nos.  2 to 16, the petitioner claims that he was the  senior most amongst them and that his seniority has been so  stated in  the  relevant seniority list.  After  referring  to  the rules as originally framed and the amendments made from time to time, the petitioner attacks the validity of rr. 28B  and 32  and  the  Circular dated August 27,  1966  on  the  same

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grounds as those mentioned in Civil Appeal No. 1815 of 1970. According to the petitioner respondent Nos. 2 to 16 were all his  juniors and on the basis of the illegal rules  and  the directions  given  in the Circular,  officiating  promotions have  been  given to those respondents to the  Senior  Scale under the Order dated January 4, 1967. The petitioner further states that after the judgment of the Division  Bench of the Rajasthan High Court, which is  under attack  in the Civil Appeal, the State Government passed  an order  on  January  22, 1970 confirming  the  promotions  of respondents Nos. 2 to 16 in the Senior Scale.  According  to the petitioner as the officiating promotions given to  those respondents  under  the  Order dated January  4,  1967  were invalid.  the  order of confirmation is  also  equally  bad. Therefore, he seeks to get that order; also quashed. 911 The  State- Government has filed a very  elaborate  counter- affidavit.   The stand taken by the State in respect of  rr. 28B  and  32 as well as the Circular of 1966 and  the  Order dated  January 4, 1967 is the same as in the  Civil  Appeal. The State has further contended that as the rules are  valid and  the circular is also valid, the officiating  promotions given under the Order dated January 4, 1967 are also  valid. In  consequence  the  State points out  that  the  order  of confirmation  dated  January 22, 1970 is  also  valid.   The State  disputes  the allegation of mala fides and  has  also pointed  out  that  the  Departmental  Promotion   Committee considered the claims of all the respondents including  that of  the petitioner for promotion.  Promotions were  made  by the  Government  on the basis of the recommendation  of  the said  Committee.  The State finally prays for the  dismissal of the writ petition. Coming  to  Writ Petition No. 139 of  1970,  the  petitioner challenges the validity of the IT. 28B and 32, the  Circular dated  August 27, 1966 and the Orders dated January 4,  1967 and January 22, 1970.  The officers covered by those  orders are  respondents  Nos.  3 to  17.   The  petitioner  further challenges  the order dated February 21, 1970 passed by  the State  Government  promoting and confirming  in  the  Senior Scale  the respondents Nos. 18 to 33.  The facts leading  up to this writ petition may be stated: The   petitioner   after  obtaining  the  B.   Sc.   (Hons.) Agricultural  Degree  in the First Division from  the  Delhi University  and the LL. B. Degree from the  Agra  University joined  service in the Delhi Administration on  February  6, 1954 as Extension Officer, Agriculture.  On January 12, 1959 he  was promoted as Block Development Officer in  the  Delhi Administration,   in  which  capacity  he   continued   till September  30,  1960.  The petitioner joined  the  Rajasthan Administrative  Service  on  October 1,  1960  after  having passed the competitive examination held by the State  Public Service  Commission.  After the probationary period  of  one year,  he  was  confirmed in the service  with  effect  from October 1, 1961.  His rank has been given as Nos. 332 in the Seniority  List  of the  Rajasthan  Administrative  Officers issued  in 1964.  The petitioner gives the rank of  some  of the  respondents.  After referring to the rules as  well  as the  amendments made from time to time and the  Circular  of 1966, the petitioner levels the same attack as against  them similar  to those in the civil appeal.  The petitioner  then refers  to  the officiating promotions to the  Senior  Scale given  to  the respondents Nos. 3 to 17 by the  Order  dated January  4, 1967 as well as to the Order dated  January  22, 1970,   confirming  their  promotions.   According  to   the petitioner these orders are illegal and invalid for the same

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reasons  urged in the civil appeal.  The petitioner  further says  that  several officers were selected  on  probationary basis and given promotions, but only respondents 91 2 Nos. 18 to 33 were confirmed by the order dated February 21, 1  970.   These  orders, according to  the  petitioner,  are illegal  and tile petitioner’s claim for promotion  has  not been properly considered. The  stand taken by the State Government in this writ  peti- tion is also similar to the stand taken in Writ Petition No. 76  of  1970, which, we have already pointed out,  again  is similar  to the stand taken in the civil appeal.   According to  the State Government the claim of the petitioner is  not sustainable  as  he  was ineligible  for  consideration  for promotion under the rules. The  State  further   contends that the petitioner has not put inthe minimum period of six years  of  service  which  is  a  condition  precedent   for consideration for promotion to the Senior Scale under r.  32 read  with  r.  28(2) of the.   Rules.   The  State  further contends that the respondents Nos. 18 to 33 were selected by the  Promotion  Committee  for likely  vacancies  and  their selections  were  in  accordance  with  the  Rules.    Their promotions  were  delayed  because of  the  orders  of  stay granted  by  the  Rajasthan  High  Court  in  certain   writ petitions filed before it.  As soon as stay was vacated, the State Government decided to promote those officers, who  had been  duly  selected.   Therefore, according  to  the  State Government  the orders dated January 22, and 21st  February, 1970 are legal and valid. From the statement of facts mentioned above, it will be seen that the main questions that arises for consideration relate to  the  validity of rr. 28B and 32 and the  Circular  dated August  27, 1966.  The decision regarding the  orders  dated January 4, 1967, January 22, 1970 and February 21, 1970 will largely depend upon the opinion expressed on the validity of the Rules and the Circular. We will first take up for consideration the attack  levelled against  rr. 28B and 32 as being violative of Arts.  14  and 16.   We have already referred to the fact that this  attack is  made  on  these rules on the ground  that  there  is  no criteria  laid down in the rules for assessing the merit  of the   officers  concerned  when  their  claims   are   being considered  for promotion to the Senior Scale.  The  further ground  on which this attack is made is that the Rules  give arbitrary  powers to the Promotion Committees in the  matter of assessing the merits of an officer. According  to  the State, on the other hand, the  Rules  are valid  and  the promotions on the basis of  merit  are  also valid. It  is now necessary to refer to the relevant rules as  they originally  stood as well as to the amendments made  thereto from  time  to time.  In 1954 the rules were framed  by  the Rajpramukh 913 under  the  proviso  to  Art. 309  of  the  Constitution  to regulate  conditions  of  service of  the  officers  in  the Rajasthan Administrative Service.  We have already  referred to  the fact that the Rajasthan Administrative Set-vice  was fanned  in  the year 1950.  There were three Grades  in  the Service :               (i)Ordinary Time Scale Rs. 285-800  (herein               after to be referred as the Junior Scale);               (ii)  Senior Scale Rs. 500-1150;               (iii)Selection Grade Rs. 900-1500. In  the  Civil  Appeal and the two  writ  petitions  we  are

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concerned  with  the  promotions from junior  scale  to  the senior scale.  Rule 7 relates to the sources of  recruitment to  the Service.  They are, (a) by competitive  examination; (b) by promotion of administrative subordinate service,  (c) by  selection  from  amongst the  prescribed  categories  of Extension Officers and (d) by special selection from amongst the  persons  other  than  the  administrative   subordinate service in condition with the affairs of the State. Part  IV  of the Rules deals with the procedure  for  direct recruitment.  The procedure for recruitment by promotion  is dealt with in Part V, Rule 27, as originally framed  dealing with the criterion for selection was as follows               "Rules 27.  Criterion for selection : (1)  For               purposes        of       recruitment        by               promotion/selection/special  selection   shall               be. made an the, basis of ’seniority-cummerit’               from among all-the administrative subordinates               Extension officers and others who are eligible               for promolion, selection and special selection               respectively under the provisions of the Rules               (2)In   selecting   the   candidates    for               promotion, regard shall be had to their;               (a)   personality and character;               (b)   tact  and energy (including  ability  to               undertake               extensive tours);               (c)intelligence  and  ability  to   express               themselves in English and Hindi clearly,               (d)   court and other work-,               (e)   integrity; and               (f)   previous record of service." 58-1 S. C. India/71 914 The  procedure  for promotion was laid down in r. 28  as  it onginally stood.  Under sub-rule(1) when a decision is taken that a certain number of vacancies in the service are to  be filled  up by promotion, the Appointment Department  has  to inform  the  Board  and  the latter has  to  call  upon  all Collectors  to submit their recommendations by a  prescribed date.    It  was  further  provided  that  the   Appointment Department should also call upon the Heads of the Department concerned  to  submit their  recommendations  through  their respective Administrative Secretaries by a prescribed  date. Sub-rules  (2)  to  (6)  dealt  with  the  various   details regarding  the  submission  of  the  list  by  the  District Collector,  the various particulars to be mentioned  by  the Collector, to the Board, scrutinising the list furnished  by the Collector and preparing a list in the order of seniority of candidates considered suitable for promotion.  Those sub- rules also dealt with the Head of the Department preparing a list  of candidates, eligible for promotion in the order  of seniority  and. recording. this remarks in respect of  those officers.   Sub-rule (7) provided for the Committee  consis- ting  of  the, officers mentioned  therein  considering  the cases of all the candidates recommended by the Board and the Administrative   Secretaries  and  interviewing   them,   if necessary.  It also provided for the Committee selecting the requisite  number  of  candidates equal to  the number  of vacancies likely to occur in the Service and to be filled up by promotion and to the list being prepared in the order  of seniority.    The  Committee  has  also  to   make   another supplementary  list in the manner mentioned therein  in  the said  sub-rule.  Under sub-rule (8) both the lists  prepared by the Committee are to be submitted to the Government,  who after  scrutinising  the same have to forward  them  to  the

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Public  Service Commission along with the  character  rolls, personal  files  and  other  particulars  relating  to   the officers mentioned therein.  Under sub-rule (9) the names of the  candidates considered to be suitable by the  Commission are  to be reported to the Government for  final  selection. Under sub-rule (10) it is provided that the final  selection is  to be made by the Government and against  of  candidates considered  suitable for promotion is to be arranged in  the order of their seniority. Rule  32 of the Rules as it originally stood made  provision for appointment to the Senior scale in the Cadre and it  was as follows               "Rule   32,  Appointments  to  Senior   Posts:               Appointments       (including      in       an               officiating/temporary   capacity)  to   senior               posts  shall  be made by the  Government  from               amongst  members of the Service on  the  basis               of seniority-               915               cum-merit   on  the.  recommendations   of   a               Committee which shall consist of the following               officers : -  (1) Chairman, Rajasthan Public service               Chairman  Commission Or a Member nomi-  nated by him.  (2)Chairman, Board of Revenue               Member  (3)    Commissioner,   Development    Depart-               Member  ment  (4)  Special  Secretary  to  the   Government               Member  in the Appointments Department               Secretary The Committee shall consider the cases of the persons eligi- ble for promotion by examining their confidential rolls  and personal  files  interviewing  such of  them  as  they  deem necessary  and shall select a number of candidates equal  to the number of vacancies likely to be filled by promotion. Provided  that Government may fill a vacancy in  the  senior grade  temporarily  by appointing thereto for a  period  not exceeding six months in an officiating capacity, any  member of  the Service who is eligible for such  appointment  under these Rules." It will be seen by a reference to the rules extracted  above that  promotion  was to be on the  basis  of  seniority-cum- merit.   Under sub-rule (7) of r. 28 and r. 32  a  committee has  been  constituted  and  it  is  on  the  basis  of  the recommendation made by the said Committee that the promotion is ultimately made by the Government. In  1965 the State Government took a decision  to  introduce the system of recruitment to the service by promotion on the basis  of merit alone.  On December 14, 1965 a  notification was issued amending the Rules.  A new rule 28B dealing  with the  promotion  by  selection  on the  basis  of  merit  was incorporated,  The  said rule as originally  framed  was  as follows :               "28-B  Promotion  by  selection  on  basis  of               merit"               (1)   Appointment by promotion to posts in the               Service shall be made by selection strictly on               the  basis  of  merit  and  on  the  basis  of               seniority-cum-merit in proportion of 50:50.               Provided  that if the appointing authority  is

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             satisfied   that  suitable  persons  are   not               available   for   appointment   by   promotion               strictly on the basis of merit in a particular               year appointment by promotion on the basis  of               seniority-cum-merit  may be made in  the  same               manner as specified in these rules.                                    916               (2)   Selection strictly on the basis of merit               shall  be  made from amongst persons  who  are               otherwise  eligible for promotion under  these               rules; the number of eligible candidates to be               considered for the purpose shall be ten  times               the total number of vacancies to be filled  in               on  the basis of merit and seniority  un-merit               provided  such number is available; where  the               number  of  eligible  candidates  exceeds  ten               times  the number of vacancies, the  requisite               number   of  senior-most  persons   shall   be               considered for the purpose.               (3)   Except  as otherwise expressly  provided               in  this  rule the  procedure  prescribed  for               selection   to  the  post  on  the  basis   of               seniority-cum-merit  shall, so far as may  be,               be  followed in making selection  strictly  on               the basis of merit.               (4)   The  Committee shall prepare a  separate               list of candidates selected by it on the basis               of  merit  and shall arrange  their  names  in               order of preference.               (5)   Where  consultation with the  Commission               is   necessary  the  list  prepared   by   the               Committee shall be forwarded to the Commission               by  the  appointing authority along  with  the               personal files and confidential rolls of  all,               persons  whose names have been  considered  by               the Committee.               (6)   The Commission shall consider the  lists               prepared  by  the Committee along  with  other               documents   received   from   the   appointing               authority and unless any change is  considered               necessary, shall approve the lists, and if the               Commission considers it necessary to make  any               change   in  the  lists  received   from   the               appointing  authority  the  Commission   shall               inform the appointing authority of the changes               proposed  and the appointing authority,  after               taking  into account the commences,  if,  any,               may  approve  the  lists  finally  with   such               modifications, as may in his opinion, be  just               and proper.               (7)   Appointment   shall  be  made   by   the               appointing authority taking persons out of the               list  finally  approved under  the  proceeding               sub-rule in the order in which they have  been               placed in the list.               (8)   Among  persons  appointed  in  the  same               class,. category or grade of posts during  the               same  year, persons appointed on the basis  of               seniority-cum-merit shall rank senior to those               appointed by promotion on the basis of  merit;               the seniority inter se of persons appointed in               the               917               same  class,  category or grade  of  posts  by               promotion  strictly on merit,  shall,  without

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             regard   to  the  order  of   preference,   be               determined   as  if  such  persons  had   been               appointed  by promotion on the  seniority-cum-               merit.               (9)   The  provisions of this rule shall  have               effect   notwithstanding   anything   to   the               contrary contained in any other provisions  of               these rules.               Explanation  :-For the purpose of  determining               the number of vacancies to be filled on either               basis under sub-rule (1), the following cyclic               order shall be followed from year to year.               "The first by merit.               The next by seniority-cum-merit.               The next by merit.                   The next by one by Seniority-cum-Merit               The cycle to be repeated." By  the same notification of December 14, 1965 sub-rule  (2) of r. 27 was deleted.  On January 7, 1966, a further  amend- ment was made to the rules by deleting sub-rules (2) to  (6) of  r.  28.   It will be seen that under  the  new  r.  28B, promotion to posts in the service is to be made by selection on  the  basis of merit and on the basis  of  seniority-cum- merit in the proportion of 50:50.  Sub-rule (2) provided for the  manner of selection on the basis of merit.  Under  sub- rule (3) procedure prescribed for selection to the posts  on the basis of seniority-cummerit has to be followed as far as possible in making selection strictly on the-basis of merit. On August 26, 1966 by a notification certain amendments were made  in r. 28B.  Under subrule (1) of r. 28B, the  original proportion  of  selection on the basis of merit and  on  the basis of seniority-cum-merit was altered and the  proportion was fixed as 1:2.  A proviso was also added to sub-rule  (2) of r. 28B, which is as follows :               "Provided that for the first Promotion in  the               same  cadre  (from  a lower  grade  to  higher               grade)  against  the merit only  such  of  the               persons  shall  unless  a  higher  period   is               prescribed   elsewhere  in  these   rules   be               eligible  who  have put in not less  than  six               years  of  service in the lower grade  of  the               cadre."                             918 On  September 8, 1966, the old r. 32 was substituted  by  a, new rule dealing with the appointment to Senior Posts.   The said new rule 32 runs as follows :               "32(1) Appointment to senior posts               Appointment  to Senior scale  and  selection               grade  posts shall be made by Government  from               amongst  the  members of the  service  on  the               basis of merit and seniority-cum-merit in  the               ratio  of  1:2  on the  recommendations  of  a               Committee which shall consists of the  follow-               ing :-               "(1)  Chairman,   Rajasthan   Public   Service               Commission, or a Member               nominated               by                him.               Chairman.               (2)      Chairman,    Board     of     Revenue               Member.               (3)   Commissioner.  Development De-               partment.               Member.               (4)   Special Secretary to Government               in      the      Appointments      Department.

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             Member.               Secretary.               (2)   Except  as  provided in this  rule,  the               procedure and the principles for selection  by               merit,  shall, in so far as it may  apply,  be               the  same  as  provided  in  rule  28B.    For               selection  by  seniority-cum-merit,  the  Com-               mittee  shall  consider the cases of  all  the               persons  eligible for promotion  by  examining               their  confidential Rolls and  Personal  files               and  interviewing  such of them  as  may  deem               necessary,  and  shall  select  a  number   of               candidates  equal to the number  of  vacancies               likely to be filled by promotion by seniority-               cum-merit:               Provided  that Government may MI a vacancy  in               the  Senior  scale or  selection  grade  posts               temporarily  by  appointment  thereto  for   a               period   not  exceeding  six  months   in   an               officiating   capacity,  any  member  of   the               service  who is eligible for such  appointment               under the rules." This  new rule was also incorporated to give effect  to  the Government’s decision taken in 1965 to introduce the  system of  recruitment to the service by promotion on the basis  of merit, as a result of which r. 28B was earlier incorporated. Rule 32 really deals with appointments to Senior Posts;  and under  the old rule the promotion was to be on the basis  of seniority-cum-merit.  That is altered under the new rule  to promotion on the basis of merit and seniority-cum-merit  and the  proportion  is also 1:2 as already laid  down,  by  the amendment made on August 26, 1966.  Sub-rule (2)  of new  r. 32, as will be seen, provides for the procedure and                             919 the  principles  for selection by merit being  the  same  as provided  in  r. 28B.  Therefore, it will be seen  that  the position  as  it stood at the time when  promotions  of  the various respondents in the appeal and in the writ  petitions were made was :               (1)   the  promotions  had to be made  on  the               basis of merit and seniority-cum-merit in  the               ratio of 1:2 as provided by Rule 32 read  with               r. 28B;               (2)   under  the proviso to sub-rule 2  of  r.               28B  the  minimum period  of  eligibility  for               being  considered for the first  promotion  is               six years of service in the lower grade of the               cadre;               (3)   under sub-rule 2 of r. 28B the selection               for  promotion is restricted only to  officers               eligible for promotion under the rules  coming               within ten times the total number of vacancies               to  be  filled up on the basis  of  merit  and               seniority-cum-merit;               (4)   under r. 32 appointments to Senior scale               and  Selection  cadre posts are  also  on  the               basis of merit and seniority-cum-merit in  the               ratio of 1:2, and               (5)   recommendations  for  appointments   and               promotions  are to be made by  the  Committees               concerned. It   is  the  grievance  of  the  appellant  and  the   writ petitioners  that the combined effect of the addition of  r. 28B and the deletion of sub-rule (2) of r. 27 and  sub-rules (2)  to (6) of r. 2B is that although a provision  has  been

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made  for  recruitment to the service by  promotion  on  the basis of "merit alone" no criteria) for assessing the  merit and suitability of the candidates have been provided in  the rules  as they stand.  In fact their further  contention  is that  sub-rule  (2)  of  r. 27 had  laid  down  the  various criteria for considering the suitability of a candidate  and sub-rules  (2) to (6) of r. 28 had dealt with the  procedure for selection of such candidates.  When once these sub-rules have been deleted there is no guidance whatsoever  furnished by  the rules, as they now stand, for assessing  the  merit. Further,  the  restriction  placed under r.  28B  that  only candidates  coming within 10 times the number  of  vacancies that  have to be filled up will be considered for  selection and  the  further  restriction therein that  for  the  first promotion six years’ service is essential, are violative  of Arts. 14 and 16.  Rule 32, according to Mr. Garg, (toes  not also  lay down any guidance or principle for  assessing  the merit of candidates for promotion to Senior posts. We are not inclined to accept these contentions of Mr. Garg. We have already referred to the fact that the learned Single Judge, in the writ petition leading up to the civil  appeal, is of the view that rr. 28B and 32 do not offend either Art. 14 or 16.  But the 920 learned Judge is of the view that as there is a  restriction placed  upon  the number of officers whose claims  could  be considered,  under sub-rule (2) of r. 28B, that part of  the sub-rule was invalid as offending Art. 16.  As the said part cannot  be separated, according to the learned  Judge,  from the  other parts of the sub-rule, the whole of sub-rule  (2) of r. 28B was struck down.  The Division Bench, on the other hand,  has  disagreed with this view of the  learned  Single Judge and has upheld the validity of the entire subrule  (2) of r. 28B.  We are in agreement with the views expressed  by the Division Bench that rr. 28B and 32 do not offend  either Art. 14 or 16. Nor  are we impressed with the contention of Mr.  Garg  that there  is no principle laid down in the rules for  assessing the  merit  of an officer especially after the  deletion  of sub-rule (2) of r. 27 and sub-rules (2) to (6) of r. 28.  No doubt  sub-rule (2) of r. 27 enumerated certain  factors  or matters to be taken into account in selecting candidates for promotion.   Sub-rules  (2) to (6) of r. 28, no  doubt  also dealt  with certain aspects of procedure to be  adopted  for promotion.   The deletion of the sub-rules, in our  opinion, does  not make the rules 28B and 32 in any  manner  invalid. We  have  already  extracted the  relevant  rules  and  also pointed  out  that  the  selection or  promotion  is  to  be considered by the Committees referred to therein.  It is  no doubt  argued by Mr. Garg that introduction of the  idea  of merit in the procedure of promotion brings in an element  of personal  evaluation and such personal evaluation opens  the door to the abuse of nepotism and favouritism.  Hence it  is argued  that  there  is a violation  of  the  constitutional guarantee under Arts. 14 and 16. We-are unable to accept this contention.  The State  Govern- ment  has  taken a decision in 1965 that  selection  to  the service  and promotion have to be on the basis of merit  and senioritycum-merit.   There can be no controversy  that  the main object in such matters is to serve public interest  and not  the  personal interest of the members of  the  official -roup  concerned.   As  stated by Leonard D.  White  in  his Introduction  to  the Study of  Public  Administration,  4th Edition  p. 380: "The Public interest is best  secured  when reasonable   opportunities  for  promotion  exist  for   all

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qualified  employees, when really superior  civil  servants, are  enabled to move as rapidly up the promotion  ladder  as their  merits  deserve  and as  vacancies  occur,  and  when selection for promotion is made on the sole basis of  merit. For  the  merit  system ought to apply  as  specifically  in making promotions as in original recruitment." The  above statement has been quoted with approval  by  this Court  in  Sant  Ram  Sharma  v.  State  of  Rajasthan   and Another(1)  We  may also point out that  the  Administrative Reforms (1)  [1968] 1 S. C. R. 1 1 1.                             921 Committee  has  also emphasised that merit should  be  given adequate weightage in the matter of promotion especially for senior   appointments  to  ensure  greater   efficiency   in government   functioning  and  also  to   provide   adequate incentive to government servants to give their best. Rule  32 in essence adopts what is stated in rule 28B.   The latter rule provides for two methods of selection: one based on  merit  and the other based on  seniority-cum-merit.   In other  words, the rule provides that the promotion based  on merit  in contradistinction to that based on  seniority-cum- merit  shall  strictly  be  on  the  basis  of  merit.   The Selection  Committee and the Promotion Committee consist  of very responsible and senior officers of the ’State and being persons  of experience they can be trusted to  evaluate  the merits  of a particular officer.  No doubt the term  ’merit’ is  not capable of an easy definition, but it can be  safely said  that  merit is a sum total of  various  qualities  and attributes   of   an employee  such   as   his   academic qualifications,  his  distinction  in  the  University,  his Character,  integrity,  devotion to duty and the  manner  in which he discharges his official duties.  Allied to this may be various other matters, or factors such as his punctuality in work, the quality and outturn of work done by him and the manner  of his dealings with his superiors and  ,subordinate officers and the general public and his rank in the service. We are only indicating some of the broad aspects that may be taken  into account in assessing the merits of  an  officer. In  this  connection  it  may be  stated  that  the  various particulars  in  the  annual  confidential  reports  of   an officer,  if carefully and properly noted, will also give  a very broad and general indication regarding the merit of  an officer.  Therefore, it cannot be stated that rr. 28B and 32 are  in any manner vague ,or do not give any guide line  for assessing the merit of an officer.  No doubt sub-rule (2) of r. 27 dealt with certain factors which are to be taken  into account  for considering the claims for promotion, but  when it comes to a, question of merit, not only those factors but also certain additional factors and circumstances will  have to be taken into account and such an evaluation of merit has been left under the rules to a Committee consisting of  res- ponsible, senior and experienced officers of the State. We  are  also not impressed with the  contention  that  Rule 28B(2)  and its proviso confining the selection  to  senior- most  officers not exceeding ten times the number  of  total vacancies  to  be  filled up  and  the  further  restriction regarding  the  eligibility of officers who have put  in  at least  six years of service for first promotion offend  Art. 16 of the Constitution.  In this respect also we agree  with the  views expressed by the Division Bench of the  Rajasthan High Court in D. B. Special Appeal 922 No. 57 of 1968, The restriction contained in the proviso  to subrule (2) of r. 28B in our opinion, is quite  reasonable.

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Before  an officer in the Junior scale can be considered  as fit for promotion to the Senior scale, it is necessary  that he should have worked on a post in the Service at least  for some period of time.  As to what quantum of that period must be  is not for this Court to lay down.  The  Government  has fixed this period as six years.  We are not in a position to say  that  it is an improper  restriction.   The  provisions contained in sub-rule (2) confining the selection to senior- most  officers  not exceeding 10 times the number  of  total vacancies  is  also,  in our opinion,  reasonable.   Such  a provision  will  encourage  the members of  the  service  to aspire  for  promotion  for making  themselves  eligible  by increasing  their  efficiency  in  the  discharge  of  their duties.   We  are of the view that rr.  28B and  32  do  not offend either Art. 14 or 16 of the Constitution. Now coming to the Circular dated August 27, 1966, we find it difficult to agree with the view of the Division Bench  of the  Rajasthan  High  Court.   On the  other  hand,  we  are inclined  to agree with the decision of the  learned  Single Judge in Writ Petition No. 79 of 67.  The contention of  Mr. Gang  is  that the Circular by  executive  instructions  has abridged or curtailed drastically the exercise of discretion by  the Departmental Promotion Committee  constituted  under the  rules.   In  fact his plea is  that  the  circular  has superseded  the statutory rules framed under the proviso  to Art.  309.  On the other hand, it is the contention  of  the learned  Solicitor-General, appearing for the State  and  of Mr.  B.  Sen,  learned counsel appearing for  some  of’  the respondents, that the Circular has not in any manner  inter- fered  with the powers of the Committees  constituted  under the  Rules.   On  the other hand, in order  to  bring  about uniformity   in  the  application  of  the  principles   for assessing  the  merit the marking system which has  been  in vague  from 1960 has been adopted with slight  modifications in the Circular of 1966.  The instructions contained in  the Circular  only provide guidance to the Committees  concerned and  those instructions do not in any way contravene any  of the rules. Before we deal with this aspect, we can dispose of a  subsi- diary   contention  that  has  been  raised  by  Mr.   Garg. According  to him the circular has been issued by the  Chief Secretary as the Head of the Service and it is not an  order of  the  Government.  This has been accepted  by  the  State Government.  If so, it follows that the Circular is  illegal and  void.  We have already referred to the stand  taken  by the State Government in this regard.  They have specifically taken  the  stand that the circular has been issued  by  the Chief  Secretary  as the Head of the  Service.   Before  the Division Bench in the High Court when this matter was again                             923 raised by the appellant, it is seen that an application  for amending  their counter-affidavit was made by the  State  to make  the position clear that the Circular was  issued  with the  approval  of  the Government.  As pointed  out  by  the Division Bench there is some confusion in this regard.   But ultimately   the  Division  Bench  has  stated   that   they themselves have gone through the Cabinet file and the  notes and  satisfied themselves that the Circular has been  issued with  the approval of the Government.  Therefore it  follows that  the Circular is an order of the Government and not  of the Chief Secretary alone. Then the question is whether the Government is competent  to issue  the  said Circular and whether the  Circular  in  any manner  effects the discretion and powers of  the  Committee functioning  under  the statutory rules.   The  position  is

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clear,  as  laid down by this Court in Sant  Ram  Sharma  v. State of Rajasthan and another(1):               "It  is true that the Government cannot  amend               or supersede statutory rules by administrative               instructions,  but it the rules are silent  on               any  particular point Government can  fill  up               the  gaps and supplement the rules  and  issue               instructions  not inconsistent with the  rules               already framed." Having  due regard to the principles stated above,  we  will now  examine  the scope and contents of the  Circular.   The Circular  contains administrative instructions and  it  does not profess to lay down anything else.  The Government  have issued   those  instructions  "for  the  guidance   of   all selection/promotion  committee  and  appointing  authorities mentioned   in   the   statutory   service   Rules.    These administrative instructions and the statutory service  Rules should together be taken as a complete code on the subject." From  the  above extract it is clear that in the  matter  of selection or promotion the Committees concerned are enjoined not  only to have regard to the statutory rules under  which they  function, but also to the administrative  instructions given in the Circular.  This makes it very clear that it  is not   open  to  the  Committee  concerned  to   ignore   the instructions contained in the Circular or to act contrary to the  directions  contained therein.  Therefore, it  will  be seen  that  if  the  Circular  or  any  part  of  it   gives instructions contrary to or opposed to any of the rules, the Circular or that part of the Circular to that extent will be in-. valid.  In particular we may refer to paragraphs 3  and 5 of the Circular.  Paragraph 3 deals with the merit formula and is as follows : (1)  [1968]1 S. C. R. 111. 924               3(a)  "Merit  formula" means that  out  of  75               marks  (marking  system has  been  defined  in               paragraph 5), a person should get a minimum of               65  marks  for consideration of his  case  for               promotion  among those who have secured 65  or               more marks, the person who gets highest  marks               will  be  the first to be  promoted,  and  the               person  who comes next in the range  of  marks               will be the second to be promoted, and so  on.               The  inter-se  seniority of persons  had  been               appointed in the same class, category or grade               of posts by promotion strictly on merit  shall               without regard to the order of preference,  be               determined   as  if  such  persons  had   been               appointed   by  promotion  on  the  basis   of               seniority-cum-merit.   This is illustrated  by               the following example  Name of the        No. of        Seniority in               the  Officer          Marks.           next  below               grade.  A                     75               8  B                     73               9  c                     70               4  D                     69               3  E                     65               1               That if there are 5 vacant posts to be  filled               by  promotion on the basis of ’merit’  formula               the  inter-se  seniority of these  5  selected               persons  will  be the same as  in  next  below               grade,  but if only 3 posts are to  be  filled

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             then  those  who have secured 75,  73  and  70               marks  respectively will be selected  and  the               remaining  left out.  The  inter-se  seniority               amongst  these selected shall be the  same  as               the next below grade.               (b)The eligible candidates for promotion on               the basis of ’merit’ formula shall be 10 times               the total number of vacancies to be filled  by               way  of  promotion  provided  such  number  is               available and they should be holding the  post               in  the next below cadre in substantive  capa-               city.   As  for example, if there  are  twelve               posts to be filled by way of promotion on  the               basis of both the formula (viz. four posts for               merit  and eight for seniority-cum-merit)  the               total   number  of  eligible  candidates   for               promotion on the basis of merit formula  shall               be 120.  If available, if an officer could not               secure  65 marks continuously for 5  years  he               will not be included in this list of  eligible               candidates.                (c)  Notwithstanding  anything  contained  in               sub-para (b)    above, for first promotion  by               merit,  only such of the candidates  shall  be               eligible who have put in six years service  in               the cadre on the date of selection." 925 Paragraph 4 of the Circular lays down what is "senioritycum- merit" formula.  The marking system which is applicable both to  the  selection  based  on ’merit’  as  well  as  to  the selection  based  on "seniority-cum-merit" is  contained  in paragraph 5. That paragraph reads as follows :               "Para-5 The marking system will be as follows               (a)Confidential  Rolls for the  5  calendar               years  immediately  ’preceding  the  date   of               selection  will be examined. 5 marks  will  be               ear-marked for each year’s confidential  Roll,               and  the marking will  be:-Excellent  report-5               marks,  Very good report-4 marks; Good  report               -3  marks;  Satisfactory  report-2-1/2  marks;               Unsatisfactory   report-2   marks-,    Adverse               report-1-1/2   marks;  Adverse   report   with               punishment  1  mark.   If a  person  has  been               awarded either ’Merit Pay’ or ’Cash award’  by               the  Government, then the Committee may  award               him upto 5 more marks in addition to the marks               already  obtained  by him.   These  additional               marks will not be taken into consideration  at               the time of the next selection.               (b)The  record  of  service,  which   means               service book, personal file, and  Confidential               Rolls other than the Confidential Rolls of the               5  years immediately preceding  the  selection               maintained  after the formation of  Rajasthan,               will  be  allotted 50 marks, and  the  marking               will be (a) average or satisfactory record 50               marks, and (b) deduction upto 2 marks for each               punishment  according to gravity may  be  made               (no  deduction will be made for mere  warning,               but   where  warning  has  been  recorded   in               Confidential Roll, it should be considered  as               punishment  and  marks  should  be  deducted).               ’Recorded warning’ means censure given by  way               of punishment under the C.C.A. Rules.  If some               marks  have been deducted for  any  punishment

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             out of 50 marks in any year of selection, then               that  deduction  should  not  be  repeated  or               counted  in the next selection.  Also if  some               marks have been deducted from the Confidential               Roll of a particular year, then that deduction               should  not be repeated or counted next  time.               That  Confidential Roll should  be  considered               satisfactory,  and marks awarded  accordingly,               with a view to ensure implementation of  this,               it  would  be  necessary  for  the   promotion               Committee to keep a record of such  deductions               and additional marks as the case may be.               926               (c)On the basis of above marking, only such               persons  who have secured a minimum  of  6-1/2               marks  out  of the total of 75 marks  will  be               considered  for  promotion  on  the  basis  of               ’Seniority-cum-merit’  formula.  Thus, as  has               been  mentioned  earlier,  even  if  a  junior               person secures more than 621 marks, the senior               will  not be superseded if he has secured  62-               1/2  marks.  Under the ’merit’  formula  those               who have secured 65 marks or more will only be               considered for promotion." Paragraph  6  dealing with officers, who can be  called  for interview  provides that a person who has secured less  than 62-1/2 marks shall be called for interview.. But persons who get less than 61 marks, should not. be called for interview. It  further provides that those persons  whose  confidential Rolls were missing or whose confidential Rolls could not  be prepared  in  their absence for study  or  training  outside India should also be called for interview. Para  7 of the circular lays down that adverse  remarks  re- corded  in the Confidential Rolls should be communicated  to the  person  concerned  in  time, so  that  he  may  get  an opportunity   to  represent  his  case  to   the   authority concerned.  However, if by chance, adverse remarks have  not been  communicated  to him, or if the adverse  remarks  have been  communicated  but  his  representation  had  not  been decided by the appropriate authority, then in that event the person  concerned  should  be called for  interview  by  the selection or the promotion committee and before he is  asked to   appear   for  interview  adverse   remark   should   be communicated to-him so that he could come prepared with what he  has  to  say in the matter.  It was  left  open  to  the selection  or  promotion  committee  to  treat  the  adverse remarks as expunged and then award marks if it felt that the adverse   remarks  were  not  justified.   It  was   clearly emphasised   that  normally  efforts  should  be   made   to communicate   the   adverse  remarks  and  to   decide   the representations before the selection committee meets. In  para  9  of  the circular it  was  pointed  out  to  all selection    committees and appointing authorities that  the assessment of confidential rolls and the awarding of remarks thereon   should  be  rational,  judiciously   liberal   and objective,  the  reason being that at times  a  confidential roll  may  have  been  written  with  a  greater  sense   of responsibility and at other times it may not have been given due care.  It was also observed by way of illustration  that one  officer  might  be liberal in  the  assessment  of  his subordinates while another may be a bit miserly or sometimes indicative.  It was, in order to have a balanced approach in the matter it might at time be worthwhile for the  selection committee as also 927

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for  the  appointing  authority  to  consider  whether   the reporting   officers  themselves  enjoyed   reputation   for efficiency, impartiality and integrity. Finally  the  circular  pointed out  that  the  instructions contained  therein  should be strictly kept  in  view  while persons are being considered for promotion, the reason being that evaluation and assessment of confidential rolls make or mar the service prospects of ,government employees. One gets a fairly good picture of the nature of the instruc- tions  contained in the circular issued by  the  Government. No doubt a properly evaluated marking system may be  helpful for  assessing  the  merit of persons  who  are  already  in service.  But the instructions given in the circular are  so rigid  that  they are ,opposed to the selection to  be  made strictly on merit as provided under rr. 28B and 32.- For  instance the marking system provides 50 marks  for  the record prior to 5 years and for the five years preceding the selection  the  marking  of  25 is to be  on  the  basis  of confidential  rolls.  From this it is clear that an  officer who  has rendered less than five years of service will not be  eligible  to  get  a single mark ,out  of  50  which  is provided for the record for the period preceding five  years for the simple reason that he will have no such record.  The officer  who has put in less than five years of service  has been straightaway denied 50 marks out of 75 marks and he has to establish his worth within the small range of 25 marks on the basis of his confidential rolls which will be  available for  a  period  of less than five years.   This  formula  of marking is certainly opposed to r. 28B and r. 32, the object of which is to ensure that merit and merit alone is to  form the  basis  for promotion, as against the  quota  fixed  for merit, in contradistinction to seniority-cum-merit. Similarly,   when  one  considers  the  question  of   first selection, the position is still more anamolous.  An officer Who  has put in just six years of service will get 50  marks for  his record of previous service which just exceeds  five years  by one year.  Another officer will have to  face  the situation with a longer period of service.  There can be  no comparison  of  the claims of the two  officers  on  merits. While the rules give a wide discretion to the Committee  for judging  merit,  paragraphs 3 and 5 of  the  circular  place undue, restrictions and limitations on the exercise of  dis- cretion  and thus fetter the powers of the Committee.   That is opposed to rr. 28B and 32. 928 Similarly,  in  the  matter of giving  marks  for  excellent report, very good report, good report, satisfactory  report, unsatisfactory  report,  adverse report and  adverse  report with punishment, the circular is arbitrary.  It will be seen that  an  officer  who has satisfactory  report  gets  2-1/2 marks,  and  another officer with an  unsatisfactory  report gets 2 marks.  The officer with an adverse report gets 1-1\2 marks. , We fail to see any rhyme or reason in this  marking system. Again,  under  the  Rules the  Committee  concerned,  has  a discretion  if it deems necessary to call for interview  any person,  whose claims are being considered by it.  But  this exercise of discretion is drastically curtailed by paragraph 6 of the circular laying down the circumstances under  which a person, should or should not be called for interview.  The Committee under the said paragraph has only to  mechanically apply  the directions contained therein.  This provision  is again  a  serious  inroad on the  powers  conferred  on  the Committees by the Rules. We are not inclined to accept the view of the learned Judges

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of the Division Bench that the circular merely gives a broad guidance   to   the  Committees  concerned  and   that   the instructions  contained  therein are elastic.   Nor  are  we inclined to accept their reasoning that the Committees  have still  got discretion to ignore the directions contained  in the  circular  and  assess  the  merit  of  an  officer   by independent evaluation.  No such indication is available, so far  as we could see, in the circular.  On the  other  hand, the  indications axe to the contrary.  The circular  enjoins the Committees to treat the administrative instructions  and the statutory Service Rules together as a complete Code. The object of the circular may be to bring about  uniformity in the award of marks.  But the directions contained therein do’ offend the rules.  This is not a case of the  government filling  up the gaps or of giving executive instructions  on matters  not  provided for by or not inconsistent  with  the rules.  ’Me learned Judges of the Division Bench of the High Court, have by and large, upheld the validity of the marking system  as well as the other instructions contained  in  the circular  of 1966 on the ground that the marking  system  as pointed out by the State has been in vogue from 1960, on the basis  of a previous circular, dated August 31, 1960  issued by the State Government.  Reliance placed upon this circular of 1960 by the High Court, in our opinion, is not justified. We  have gone through the circular of 1960 which is  No.  F. 1(6)  Apptts.  (D)160 dated 31-8-1960.   That  circular  was issued  by  the State to clarify  the  misapprehension  that appears  to  have  been  caused  in  the  application,   for promotion   of  the  principle  of  merit-cum-seniority   or seniority-cum-merit.  For the                             929 purpose of having uniformity, the State Government had  laid down certain principles in the said circular to be borne  in mind  by  the  Promotion Committees.  No doubt  there  is  a marking  system  indicated  therein.   But  there  are   two features which distinguish the circular of 1960 from that of the  1966 circular.  In paragraph 3 of the former  circular, it  is specifically laid down that the principles  mentioned therein are only in the nature of executive instructions  to be  kept in view by the Committees when  making  promotions. It  is  made clear that those  Committees  should,  however, exercise  their  own  discretion while  applying  the  above principles  in  view  of  the  fact  that  occasionally  the Confidential Rolls may not have been written with full sense of  responsibility.   Moreover,  some of  the  rules  permit interview  before selection and in such cases the  Selection Committee will have to assess suitability of the officer  as a result of the interview also." Under the circular of 1966, we have already indicated, no such discretion is left to the Selection or Promotion Committees to adopt any method  other than  that  indicated  in  the  circular.   In  fact  it  is emphasised   that  the  statutory  service  rules  and   the instructions contained in the circular are to be treated  as a  complete  code by the Committees.  Another  point  to  be noted is that in 1960 the question of promotion on the basis of merit alone had no place. That  principle  was   adopted only, as pointed out by us earlier, in1965  which  led  to the  amendment  of  the  rules.  Therefore,  the  principles mentioned  in the circular of 1960 cannot be relied on  when considering  the  validity  of the  present  circular,  when promotion  by merit alone has been recognised by  the  rules from 1965.  We have already indicated that the  instructions in  the 1966 circular contravene the Rules.   Therefore,  we are of the opinion that the circular dated 27-8-1966 is  bad and accordingly it is struck down.  We make it clear that we

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express no opinion on the validity or otherwise of the  cir- cular of 31-8-1960.  We have only referred to that  circular to  show  that  the High Court has  committed  an  error  in placing reliance on the same. Now, coming to the promotions and confirmations made,  under the  orders  dated  January 4, 1967, January  22,  1970  and February  21,  1970, we are not inclined  to  disturb  those orders  except to the extent indicated below in  respect  of the  promotions of respondents Nos. 2 to 4 in  Civil  Appeal No. 1815 of 1970 under the first order dated January 4, 1967 and  their confirmation, by the second order  dated  January 22, 1970. Writ  Petitions Nos. 76 and 139 of 1970 have been  filed  in this  Court. only after the judgment dated January 20,  1970 of  the High Court in D. B. Special Appeal No. 57  of  1968. The petitioners must have been aware that the appellant  was challenging only the promotions of four officers in his writ petition 59-1 S.C.R.  India/71                             930 in  the  High  Court.  Nevertheless,  they  kept  quite  and allowed  the officiating promotions of all the  officers  to stand  from  1967 and even kept quiet  till  the  government confirmed  the  promotion of those officers on  January  22, 1970.   So  far as the writ petitioners are  concerned,  the State  must  be considered to be justified  in  passing  the order dated January 22,,1970, on which date the High Court’s judgment  was in its favour.  We are entitled to  take  this circumstance  into  account for denying the  larger  reliefs claimed by the writ petitioners when they attack the  orders dated January 4, 1970 and January 22, 1970. We  have  referred earlier to the various  orders  that  are being  challenged  in these writ petitions, apart  from  the attack on rr. 28B and 32.  Under the order dated January 22, 1970,  the  officers who had been  promoted  to  officiating posts  in  the  senior scale in January 4,  1967  have  been confirmed.  We have held earlier that these orders cannot be reopened  at the instance of these writ petitions.   Another set  of  officers,  who  had  been  selected  earlier,  were appointed by promotion to the senior scale post by the order dated  February  21,  1970.  We are holding  later  that  no relief can be granted to the concerned writ petitioner  even regarding this order. So  far as respondents Nos. 2 to 4 in the Civil  Appeal  No. 1815   of  1970  are  concerned,  we  are  giving   separate directions, regarding the reconsideration of their promotion and  confirmation, along with the appellant in  the  appeal. The  fact  that  the respondents Nos. 2 to 4  in  the  civil appeal  have  been confirmed on January 22, 1970  after  the decision of the High Court in favour of the State and  those officers  is of no consequence, so far as the  appellant  is concerned,  if  their  original  officiating  promotion   on January 4, 1967 requires reconsideration by the  Government. Their confirmation will stand or fall depending on the final decision of this Court regarding the order dated January  4, 1967. The  appellant  in the civil appeal is not  challenging  the officiating promotions or confirmation made of the  officers other than respondents Nos. 2 to 4 in the appeal.  Hence the promotions  given  and  confirmations  made  of  the   other officers under orders dated January 4, 1967 and January  22, 1970  respectively should be allowed to stand.  It  is  also seen  that the order dated February 21, 1970 was  passed  by the State Government, after the order of stay was vacated by the  High  Court.   The State  Government,  as  pointed  out

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earlier,  was justified in passing the order  dated  January 22,  1970  except regarding respondents Nos. 2 to 4  in  the appeal, on the basis of the Division Bench judgment of the                             931 High  Court which had upheld the validity of the  rules  and the circular.  The same reasoning will apply to the order of February  21, 1970 also.  Therefore, the petitioner in  writ petition  No.  139 of 1970, who alone  is  challenging  this order,  will  not be entitled to have that  order  reopened. Thus both the writ petitioners will be only entitled to have a  declaration  that the circular dated August 27,  1966  is invalid and that it is struck down.  They are’ not  entitled to any further reliefs in the writ petitions. In the civil appeal Guman Singh, the appellant has raised  a contention  that promotions of respondents Nos. 2 to 4  were made  on January 4, 1967 on the basis of illegal  rules  and invalid  circular.   He  has  further  contended  that   the Promotion  Committee which met in September, 1966 has  taken into account the adverse remarks made against him which were not  justified and which were not communicated to  him.   We have  already expressed our views upholding the validity  of the rules and the invalidity of the circular.  In support of the   contention  that  adverse  remarks  were  taken   into consideration by the Committee, he relied upon the following circumstances : The Deputy Commissioner has written a letter dated  April 28, 1966 strongly appreciating his services  as an  officer.   While  so, it is a matter  of  surprise  that adverse  remarks  came to be made in September,  1966.   The nature  of the adverse remarks has been referred to  by  the Division  Bench.   It  is admitted by  the  State  that  the Promotion  Committee had met in the end of  September,  1966 and  made recommendations regarding the officers who are  to be  promoted.  It is also admitted by the  State  Government that the confidential rolls of all the officers were  before the  Selection  Committees  They have not  denied  that  the circular  was not taking into account by the Committee.   On the  other  hand,  they have  impliedly  accepted  that  the circular was before the Committee at the time of considering the promotions.  According to the appellant adverse  remarks were  communicated to him only on May 11, 1967,  long  after the   decision  of  the  Promotion  Committee.   Hence   the Committee has illegally taken into consideration the adverse remarks  made  against him and has denied him  promotion  on that  account.   His contention is that  after  the  adverse remarks  were communicated to him, long, afterwards he  made representations and the adverse remarks were directed to  be expunged.   In this connection, learned counsel relied  upon the  counter-affidavit filed in this Court on behalf of  the State in writ petition No. 76 of 1970 to the effect that the adverse  entries  in the confidential rolls  of  Shri  Guman Singh, the appellant, were expunged on his  representations. Therefore,  according  to  the  appellant,  his  claims  for promotion  have  not  been  properly  dealt.  with  by   the promotion Committee. 932 The  allegation of the appellant in his writ  petition  that the  promotion  Committee had taken into  consideration  the adverse  remarks, when it met in September, 1966,  does  not appear to be unfounded, however, as we are giving directions for reconsideration of the appellant’s claims for promotion, if  otherwise  he  is eligible under the Rules,  we  do  not express  any  opinion  on this aspect as facts  have  to  be investigated. The learned Judges of the ’Division Bench have brushed aside the  grievance  of the appellant regarding  This  matter  by

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observing  that as the Departmental Promotion  Committee  is not  a, party to the proceedings, the question  whether  the Committee took into account the adverse remarks said to have been  made  against the appellant, cannot be  gone  into  in these proceedings.  This approach made by the learned Judges does  not  appeal  to  us.  The  Government,  which  is  the appointing authority, was a party before the High Court.  It must  have  had  before it, when it  passed  the  orders  on January  4, 1967, all the records regarding  promotion.   It was  the  duty of the State Government to place  before  the High  Court all the materials available before it to  enable the Court to consider whether the grievance of the appellant was  justified  or not.  The appellant had made  a  specific grievance  in  his writ petition  about  the  uncommunicated adverse  remarks  having  been taken  into  account  by  the Committee.   The Government could have obtained a report  or an  affidavit  regarding the true facts from  a  responsible officer  of  the  Committee and placed it  before  the  High Court.   Anyhow, as- mentioned earlier, it is not  necessary for  us  to pursue this aspect further except to  point  out that we do not agree with the reasoning of the High Court in this regard.  The High Court has also declined to  interfere with  the  order  dated January 4, 1967  as  it  upheld  the validity of rr. 28B and 32 as well as the circular of August 27,  1966.  Though we are upholding the validity of the  two rifles, we disagree from the High Court’s view regarding the validity  of  the  circular.  We are  also  giving  separate directions regarding the order dated January 4, 1967. We are, accordingly of the opinion that so far as the appel- lant  (in the civil appeal) and respondents Nos. 2 to 4  are concerned,  the  officiating promotions made of  the  latter officers on January 4, 1967 as well as their confirmation by order  dated January 22, 1970 will have to be  reviewed  and reconsidered by the Departmental Promotion Committee and the Government.  It is needless to state that the circular dated August 27, 1966 should not be taken into consideration.  The claims  of the appellant and respondents Nos. 2 to 4 in  the appeal  will have to be considered only on the basis of  the Rules.  We also make it clear that  a reconsideration of the claims of the  appellant  and respondents  Nos.  2  to 4 will be necessary,  only  if  the appellant,  is found, in the first instance, to be  eligible as  per the Rules for being considered for  promotion.   His eligibility is to be decided with reference to the date when the Departmental promotion Committee met in September,  1966 for considering promotion.  This direction becomes necessary as  we are upholding the validity of Rules 28B and  32.   If ultimately,  respondents Nos. 2 to 4 are found eligible  for promotion  under the rules, they will retain their  rank  on the basis of promotion given to them on January 4, 1967.  If not, suitable alterations will have to be made both in  this order  as  well as in the order of January 22,  1970.   Once again we are emphasising that the fact that the  respondents Nos.  2 to 4 have been confirmed on January 22, 1970, is  of no  consequence  because  if  their  original  promotion  on January 4, 1967 is not valid, their confirmation on  January 22, 1970 will not have any greater sanctity.  Of course,  if on  reconsideration they are found eligible  for  promotion, their confirmation and rank given to them win stand. The allegations of mala fides made by the appellant  against the State have been, in our opinion, rightly rejected by the Division  Bench.  Mala fides were alleged against the  State in  amending  the Service Rules from time to  time  and  the delay in making promotions on the ground that they were  all done  with  a  view  to help the  son-in-law  of  the  Chief

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Minister  and  the  other officers  who  were  relations  of persons  in the good books of the Chief Minister.  The  same allegations  have  been repeated in the two  writ  petitions also.  Those allegations have been denied by the State.  For the  reasons  given  by the Division Bench,  with  which  we agree, we have no hesitation in rejecting the allegations of mala  fides made by the appellant in the appeal and  in  the writ petitions. In  the appeal and the writ petitions we hold that  rr.  28B and 32 are valid and that the circular dated August 27, 1966 is  struck  down  as  illegal  and  invalid.   In  the  writ petitions there will be only a declaration that the circular dated August 27, 1966 is invalid and that it is struck down. In  other  respect  both  the  writ  petitions  will   stand dismissed.  There will be no order as to costs. So  far as the appeal is concerned there will be  a  further order  at  subject  to the observations  contained  in  this judgment a direction will issue to the first respondent, the State  to instruct the Departmental Promotion  Committee  to review  and  reconsider  the  promotions  already  given  to respondents Nos. 2 to 4 in the appeal under the order  dated January 4, 1967 and 934 to  decide  their  claims afresh only on the  basis  of  the Rules.   If  the  appellant  is  found  eligible  for  being considered  for  promotion under the Rules, his  claim  also will   have  to  be  considered  along  with  that  of   the respondents  Nos.  2  to  4.  No  directions  are  necessary regarding respondent No. 5 as he is already dead.  Depending on the fresh recommendations, any, made by the  Departmental Promotion  Committee, the first respondent, will  also  make any modifications that may be found necessary in the  orders dated  January  4,  1967 and January 21,  1970.   The  modi- fications,  if any, will be confirmed only to the  appellant and  the  respondents Nos. 2 to 4 as the  appellant  is  not challenging the promotions given to other officers under the said two orders.  If ultimately respondents Nos. 2 to 4  are found eligible for promotion and the appellant is not  found eligible,  the rank given to those respondents  will  remain the  same  as  is now due to them as per  the  orders  dated January  4, 1967 and January 21, 1970.  Otherwise,  suitable alterations will have to be made. Pending  the review and reconsideration, ordered  as  above, and  which  must be done as expeditiously as  possible,  and depending upon the result of the same, the promotion already given  to respondents Nos. 2 to 4 to the senior  scale  will continue to be in force. In  the result the order and judgment of the Division  Bench of  the  High Court upholding the validity of  the  circular dated  August 27, 1966 and declining to interfere  with  the order  dated  January 4, 1967 so far as  the  appellant  and respondents  Nos. 2 to 4 are concerned are hereby set  aside and the appeal allowed to that extent. Parties will bear their own costs throughout. G. C. Appeal allowed in part. 935