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PETITIONER: S. RAMASWAMY

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT17/08/1976

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. GUPTA, A.C.

CITATION:  1976 AIR 2394            1977 SCR  (1) 221  1976 SCC  (4)  79

ACT:              Directorate  General of Technical Development (Class  I         Posts)  Recruitment (Amendment) Rules, 1974, Rule 2,  inter-         pretation of--Whether officer on special duty is in the same         grade as Development Officers.

HEADNOTE:             Two vacancies arose for the selection posts of Industri-         al Advisers in the Directorate General of Technical Develop-         ment, for which some Development Officers including respond-         ents  Nos. 6 to 11 applied.  These respondents filed a  writ         petition  against  the promotion of the appellant  to  these         posts.  The Government opposed the same.  During the penden-         cy of the petition which was later dismissed, the  appellant         made a representation to the Departmental Promotion  Commit-         tee for considering his preferential claim, but the same was         not placed before the Committee.  The appellant made further         representation to the Government, but the Committee  decided         to  recommend respondents Nos. 6 and 7 for the  appointment.         The appellant filed a writ petition against the  implementa-         tion of the recommendation, but the same was dismissed.             Allowing  the appeal and directing that the  appellant’s         name  be  included in the list of eligible  officers  to  be         considered for promotion, the Court,             HELD: Under Rule 2 of the Directorate General of Techni-         cal  Development  (Class I  Posts)  Recruitment  (Amendment)         Rules,  1974,  a  person belonging to  the  first  category,         failing  which, persons belonging to the 2nd  category;  and         persons in the 3rd category are, all and together,  eligible         for being considered for promotion, subject to the  fixation         of the field of choice under the Home Ministry’s  Memorandum         dated  May  16, 1957.  The amended rule does not  mean  that         Development Officers can be considered for promotion to  the         post of Industrial Adviser only in the. event that qualified         persons  from the. first two categories are  not  available.         [224 D-F]             (2)  The Amendment Rules of 1974, contemplate  on  their         plain language and are framed on the basis that the  officer         on  special  duty is in a separate grade from the  grade  of         Development  Officers.  In the particular context  in  which         the words "in the’ grade" occur, they mean "in that particu-

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       lar  grade",  indicating  thereby that the  two  grades  are         different although their scale of pay may be identical.  The         practice by which an integrated list of officers is prenared         according  to the date. on which they  acquire  eligibility,         not having the authority of law, is vitiated in the  instant         case because of the 1974 recruitment rules.  [225 E, 227  B-         C, G]

JUDGMENT:         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 381 of 1976.              (Appeal  by Special Leave from the Judgment  and  Order         dated  31.10.1975 of the Delhi High Court in Civil Writ  No.         1077 of 1975).         F.S. Nariman and B.R.G.K. Achar, for the appellant.         Shyamala Pappu and Girish Chandra, for respondents 1-3.         Sobha Dikshit, for respondents 6-7.         The Judgment of the Court was delivered by             CHANDRACHUD,  J.--On February 7, 1959 the appellant,  S.         Ramaswamy, was appointed as an Assistant Development Officer         in  the Directorate General of Technical Development in  the         Ministry  of         222         Industry  and Civil Supplies, Government of India.  In  1964         he was appointed as a Development Officer on an ad hoc basis         and  that  appointment  was regularized in  May,  1966.   On         December  1,  1966 the post of Officer on Special  Duty  was         created in the Directorate in order to deal effectively with         the  development of agro-based food  processing  industries.         The Director General (Technical Development) recommended the         appellant for appointment to the post and in course of  time         the appointment was duly made.         In  1974 a question arose regarding promotion to the  selec-         tion  post  of Industrial Adviser in the  Directorate.   Re-         spondents 6 to 11 and some others who were working as Devel-         opment Officers filed  writ petition No. 612 of 1974 in  the         Delhi  High  Court asking that  the Government of  India  be         restrained  from  promoting  the appellant to  the  post  of         Industrial  Adviser  and that their claims to the  post   be         considered  in  preference to the appellant’s  claim.   That         petition was dismissed on September 17, 1975.             During  the pendency of the writ petition filed  by  re-         spondents  6 to 11, the appellant had made a  representation         to   the  Departmental Promotion Committee  for  considering         his  preferential claim to  the post of Industrial  Adviser.         That  Committee met on August 7, 1975 for proposing a  panel         of officers for being considered for appointment to the post         of  Industrial Adviser, but the  appellant’s  representation         was  not placed before the Committee.  The appellant made  a         further representation to the Government on August 18,  1975         complaining that though he was eligible for being  appointed         to the post of Industrial Adviser, his name was not included         in the list of eligible officers which was forwarded to  the         Departmental  Promotion Committee for due consideration  for         appointment to the post.             The  Committee,  in  its meeting  of   August   7,  1975         decided  to recommend respondents 6  and 7 for   appointment         as  Industrial Advisers.  On October 31, 1975 the  appellant         filed writ petition No. 1077 of 1975 in the Delhi High Court         to restrain the  Government from implementing the  recommen-         dation  and  to  restrain respondents 6 and  7  from  taking         charge  of the posts of Industrial Advisers.  That  petition         was  dismissed  in limine by a Division Bench of  the   High         Court on October 31, 1975.  This appeal by special leave  is

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       directed against the speaking order which was passed by  the         High Court while dismissing the writ petition summarily.             Recruitment  to the post of Industrial  Adviser  (Chemi-         cals) was governed originally by the Directorate General  of         Technical  Development  (Class I posts)  Recruitment  Rules,         1963.  Item 6 of the Schedule annexed to those Rules related         to   appointment   to  the  post   of   Industrial   Adviser         (Chemicals), a Class I selection post, then generally in the         scale of Rs. 1300-100-2000.  One of the methods of  recruit-         ment to the post, as specified in column 9 of the  Schedule,         was  by  promotion.  Column 10 which  regulated  appointment         by promotion read thus:                        "Promotion  :--Development Officer  having  a                  minimum    experience  of  10 years  in  the  grade                  provided however, that                  223                  in  the  scale of  Rs.  1300-60-1600-100-1800,  the                  minimum  experience  shall be five  years  in  that                  grade."                      In exercise of the powers conferred by  Article                  309  of the Constitution, the President on  January                  30, 1974 made the Directorate General of  Technical                  Development (Class I posts) Recruitment (Amendment)                  Rules, 1974.  Rule 2 of these Rules amended  column                  10 of the Schedule to the Rules of 1963 by  substi-                  tuting  the following entry for the  one  extracted                  above :--                  "Promotion:                      (i)  Officer on Special Duty  (Food  Processing                  Industries)  with 5 years’ regular service  in  the                  grade; failing which with 10 years’ regular service                  in the grade of Development Officer and Officer  on                  Special Duty (Food Processing Industries)  combined                  together  of which 4 years should be as Officer  on                  Special Duty (Food Processing Industries).                     (ii)  Development  Officers having at  least  10                  years’  regular service in the grade, provided that                  in respect of Development Officers, who are in  the                  grade  of Rs. 1300-1800 not less than  five  years’                  regular service shall be required."             That  the  appellant is qualified and eligible  for  ap-         pointment as an Industrial Adviser is beyond dispute and has         at  no stage been questioned.  But it has to be stated  that         for  the  purpose of computing the completion  of  5  years’         service  as  an Officer on Special Duty, the  period  during         which  the appellant was working in that post on an  ad  hoc         basis has to be excluded from consideration.  The  appellant         was  appointed  as an Officer on Special Duty on an  ad  hoc         basis in 1966 but the appointment was regularized on January         23,  1970  after the President made  the  Recruitment  Rules         dated January 14, 1970 regulating the method of  recruitment         to  that post.  The appellant, therefore, must be  taken  to         have  completed 5 years’ service in  the post of Officer  on         Special Duty on January 23, 1975.             It is also necessary to clarify that the decision of the         Departmental  Promotion Committee to carve out  three  times         the number of vacancies viz., six as the zone of  considera-         tion  for  promotion to the grade of Industrial  Adviser  is         open to no exception and has in fact not been challenged  by         the  appellant.   The Office Memorandum dated May  16,  1975         issued by the Ministry of Home Affairs incorporates a  deci-         sion  taken by the Government after considering the  replies         received  from the various Ministries and the  Union  Public         Service Commission and keeping in view the policy of Govern-         ment,  settled at the highest level, that  greater  emphasis

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       should be placed on merit as a criterion  for promotion.  It         records, inter alia, that the Departmental Promotion Commit-         tee  or  other selecting authority should first  decide  the         field of choice, i.e. the number of eligible officers await-         ing promotion who should be considered for inclusion in  the         select list and that the field of choice, wherever possible,         should extend to five or six times the         224         number of vacancies expected within a year.  In the  instant         case, two vacancies were to be filled in the post of  Indus-         trial Adviser but instead of carving out 10 or 12 persons as         the field of choice  for promotion, the Committee decided to         select  panel  of 6 officers as the zone  of  consideration.         The  Official  Memorandum reflects but   a  policy  decision         which cannot have the force of a rule made under Article 309         of the Constitution and therefore, the fixation of ratio for         consideration  for promotion may reasonably  and  rationally         differ from case to case.  The decision to select a panel of         six officers for appointment to the two posts of  Industrial         Advisers, cannot be characterized as arbitrary or unreasona-         ble.   Besides,  even if a panel of 12 officers were  to  be         selected for consideration, the appellant would still be out         of it by the application of the impugned test adopted by the         Committee,             That  test forms the centre of controversy in  this  ap-         peal.   The test adopted by the Departmental Promotion  Com-         mittee  for selecting a panel of officers for  consideration         for  promotion to the post  of Industrial Adviser  may,   in         terms  of   the counter affidavit field on’  behalf  of  the         Govt.   be described as a ’chronological test’.   Under  the         Amendment Rules 1974 the channel of promotion to the post of         Industrial Adviser is this: (i) Officer on Special Duty with         five  years’ regular service in the grade; or  (ii)  failing         that,  persons with  10 years’ regular serbined  service  in         the grade of Development Officer and in the grade of Officer         on  Special Duty, of which 4 years of service has to  be  in         the latter grade; or (iii) persons in the grade of  Develop-         ment  Officers having at least 10 years’ regular service  in         that grade, provided that in respect of Development Officers         working  in   the grade of Rs. 1300-1800, 5  years’  regular         service  would  be  sufficient to qualify  the  officer  for         promotion.  The amended rule does not, of course, mean  that         Development  Officers  can be  considered for  promotion  to         the post of Industrial Adviser only in the event that quali-         fied persons from the first 2 categories are not  available.         A  person  belonging  to the 1st  category;  failing  which,         persons  belonging to the 2nd category; and persons  in  the         3rd  category  are,  all and together,  eligible  for  being         considered  for  promotion, subject to the fixation  of  the         field  of choice under the Home Ministry’s Memorandum  dated         May  16, 1957.  That field of choice was fixed in   the  in-         stant case at three times the number of vacancies viz.,   6.         The  appellant  belongs to the 1st category  and  there  was         therefore  no  question of going to the 2nd  category.   The         choice  of eligible promotees was accordingly restricted  to         the  1st  and 3rd categories.  But in selecting  the  panel,         what  has been done by the application of the  chronological         test  is  to ascertain the respective dates  on  which   the         Officer  on Special Duty completed 5 years’ regular  service         in  that  grade and the Development Officers   completed  10         years’   regular service in their grade, to arrange them  in         the order of seniority according to the dates on which  they         completed the qualifying service in their respective  grades         and  to select the first 6 only from the list so  made,  for         being  considered for promotion to the two vacancies in  the

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       post  of  Industrial  Adviser.  In the  integrated  list  of         Development         225         Officers and Officer on Special Duty, appellant occupied the         19th  position, since 18 Development Officers had  completed         10  years’ regular service in their grade before the  appel-         lant  had completed  5 years’ regular service in his  grade.         As  the  Departmental Promotion Committtee  had  decided  to         carve out a field of choice consisting of six persons  only,         the appellant, being outside the first six, was left out  of         the select panel.  As we have indicated earlier, even if the         field  of  choice were to extend to 12 officers,  being  six         times  the number of vacancies, the appellant being 19th  in         the integrated list would still be out of that panel.             Learned  counsel  appearing on behalf of  the  Union  of         India  has strongly defended the method adopted by  the  De-         partmental  Promotion Committee for preparing the  panel  of         selection.   She contends that the Officer on  Special  Duty         and Development Officer work in  the same grade namely,  the         grade of Development Officer, save with the difference  that         a  Development Officer working as a Officer on Special  Duty         draws a special pay of Rs. 200 in addition to the pay  drawn         by  him  in the grade of  Development  Officer.   Therefore,         according  to  the counsel, the Committee was  justified  in         preparing  an  integrated list comprising the  appellant  as         well as the Development Officers and in arranging them,  for         the purpose of being considered for promotion, according  to         the  dates on which they completed the period of  qualifying         service.  On the record as it stands we find it difficult to         hold  that the Officer on Special Duty, for the purposes  of         the  Amendment Rules of 1974, can be said to be in the  same         grade  as the Development Officer.  Those rules  contemplate         on  their plain language and  are framed on the  basis  that         the Officer on Special Duty is in a separate grade from  the         grade  of Development Officers.  The rules refer to  Officer         on  Special  Duty  ’with 5 years’ regular  service  "in  the         grade"  and  Development Officers having 10  years’  regular         service "in  the grade".  In the particular context in which         the words "in the grade" occur, they mean "in that  particu-         lar grade",  indicating  thereby in clear terms that the two         grades  are different.  Even if it be true that the  Officer         on Special Duty draws, except for the special monthly pay of         Rs.  200,  the same pay as a Development Officer  and  that,         generally, the two are in a similar scale of pay that  would         not  justify  the conclusion, for the purposes of  the  1974         Rules, that they are in the same grade.  Their scale of  pay         may  be identical, we will so assume, and yet they  will  be         working in different grades, one in the grade of Officer  on         Special  Duty  and the others in the  grade  of  Development         Officer.   This position may not be true universally and  we         propose  lay down no proposition of  universal  application.         We  are  called upon to interpret the 1974 Rules  which,  in         our opinion, leave no doubt that within the contemplation of         those  Rules is the supposition that the Officer on  Special         Duty  is in a grade different from that of  the  Development         Officer.             It is significant in this regard that the  counter-affi-         davit  filed  on  behalf of the Union of India  by  Shri  K.         Srinivasan,  Under  Secretary, Ministry  of  Industrial  and         Civil Supplies, Department of Industrial         226         Development,  says  in terms that the  grade  of-Officer  on         Special  Duty  is different from the  grade  of  Development         Officer and that these two being separate cadres, there  was         no  question  of  drawing up a combined  seniority  list  of

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       officers in the two cadres.  The affidavit further  concedes         that  the  post of Officer on Special  Duty  carries  higher         responsibilities.   We might also mention that in the  coun-         ter-affidavit which was filed on behalf of the Government in         the  Delhi  High Court in Writ Petition 612 of 1974, it  was         stated that the Director General (Technical Development) had         recommended the appellant as "the only suitable officer" for         appointment  to the post of Officer on Special  Duty.   That         Writ Petition was filed by respondents 6 to 11 and others to         restrain the Government from appointing the appellant as  an         Industrial Adviser and for certain other reliefs.  The  stay         petition filed by respondents 6 to 11 was strongly  resisted         by   the Government which took the stand that the  appellant         was  eligible for being considered for promotion and that  a         stay  order ought  not to be granted as no irreparable  harm         would  result if the appellant was appointed to the post  of         Industrial Adviser after being found suitable for the promo-         tion.   That  affidavit, also sworn by Shri  K.  Srinivasan,         stated  even  in clearer terms that on  confirmation  as  an         Officer  on Special Duty, the appellant "ceased to belong to         the grade of Development Officers".  The stand now taken  by         the   Government is directly contrary, its contention  being         that the Officer on Special Duty is in the same grade as the         Development Officers.  Considering  the wording of the  1974         Rules  and  the context in which the words  "in  the  grade"         occur,  we are inclined to the view that the stand taken  by         the  Government in the Writ Petition filed by respondents  6         to  11  was more in consonance with the  recruitment  rules.         The  crux of the Government’s answer to that  writ  petition         was  that the appellant "was eligible for consideration  for         promotion as Industrial Adviser (Chemicals) in terms of  the         Statutory  Rules"  and their stand, broadly,  was  that  the         claims  of all persons eligible for the post  of  Industrial         Adviser  and  "within the field of consideration"  would  be         duly considered. The appellant then was obviously considered         to  be both eligible and within the field of  consideration.         The recruitment rules of 1974 have undergone no change since         then  and  whereas only one vacancy was to be  filled  then,         there are. two to be filled now.  It is therefore  difficult         to  appreciate the change in the attitude of the  Government         and  the diametrically opposite stand it is taking now  that         the appellant’s name is beyond the field of choice.  It  has         to be remembered that the writ petition filed by respondents         6  to 11 and other Development Officers asking, inter  alia,         that the appellant’s name ought not to be considered for the         post  of Industrial Adviser was dismissed on the  opposition         of  the Government.  The Government now wants to do  exactly         what  the Development Officers asked it to do by writ  peti-         tion  and  which writ petition the Government  succeeded  in         having dismissed on the strength of its contention,  amongst         others, that the appellant  was eligible for the higher post         and on the strength of the right it asserted to consider the         appellant  for  promotion.   In fact,  the  Government  even         opposed  the stay application in the earlier  writ  petition         indicating  the  impending possibility  of  the  appellant’s         appointment  as Industrial Adviser.         227             No  rule or notification is cited before us  to  support         the "practice" adopted by the Departmental Promotion Commit-         tee  whereby  though  the Officer on Special  Duty  and  the         Development  Officers belong to different grades,  a  common         list  of  officers was prepared according to  the  dates  on         which  the appellant, who is the sole incumbent of the  post         of  Officer on Special Duty, and Development  officers  com-         pleted  5  and 10 years of service  respectively.   By  this

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       process,  the appellant who belongs to a separate  and  dis-         tinct grade or cadre was placed 19th in the integrated list,         much  below  the field of choice which though,  was  rightly         limited to 6 officers.         We  do not suggest that the method or practice, by which  an         in   tegrated list of officers is prepared according to  the         dates an which they acquire eligibility in order to find out         which  of  those who are eligible fall within the  field  of         choice,  is necessarily or in all circumstances  bad.   That         practice,  not having the authority of law, is  vitiated  in         the instant case because of the 1974 recruitment rules which         envisage  that an officer on Special Duty is in  a  separate         grade,  cadre or class.  It is for that reason wrong to  put         him  in  an  integrated list. The practice  adopted  by  the         Departmental  Promotion Committee overlooks that  the  rule-         making authority, being conscious while framing the Rules of         1974 that there was only one Officer on Special Duty for the         time  being to be considered for appointment  as  Industrial         Adviser,  considered him to be in a separate grade and  gave         him  a separate treatment by dealing with him in a  separate         clause, namely clause (i) which uses the singular.  In  fact         the  history of the recruitment rules itself shows  that  it         was thought necessary to bring an Officer on Special Duty of         certain  experience  within the area  of  eligibility.   The         rules of 1963 restricted eligibility to Development Officers         and  it was for the first time in 1974 that  an  Officer  on         Special Duty was brought within that area.  The circumstance         that the Officer on Special Duty is placed in clause (i) and         the Development Officers in clause (ii) is not the point  of         matter  and can confer no special privilege on  the  former.         Such a sequence may well be fortuitous.  But what is  impor-         tant  is that if the Rules intended that the two  grades  of         officers  should be clubbed together and that an Officer  on         Special Duty should be considered to be in the same grade as         Development  Officers,  the easiest thing to do  would  have         been  to say, for example, that Development Officers of  ten         years’ experience would be eligible for promotion as  Indus-         trial  Adviser, provided that in the case of  a  Development         Officer  who is working as an Officer on Special Duty,  five         years’  experience in the latter post would be enough.   The         integrated list, in the light of these facts and because  of         the peculiar wording of the 1974 Rules, must therefore go.             This might apparently create an impasse but the solution         is simple. The field of choice fixed at six may be  retained         but amongst those six shall be the appellant, the other five         being Development  Officers according to the dates on  which         they  acquired  eligibility.  Alternatively,  the  field  of         choice  may, for instance, be expanded to eight, being  four         times  the number of vacancies, in which case the  appellant         and         228         seven Development Officers can be considered for  promotion.         This latter course may obviate possible hardship which would         result if one Development Officer is required to be  dropped         from the list by restricting the field of choice to six.  In         either event, suitability for promotion is entirely for  the         concerned  authority to decide and the fact that the  appel-         lant  must be included in the list of eligible officers  who         fail  within the field of choice does not mean that he  must         be  promoted  to one of the posts  of  Industrial  Advisers.         Mere inclusion in such a list confers no right on any one to         be promoted to the higher post. It only gives an opportunity         to be considered for promotion.             For  these  reasons we allow the appeal, set  aside  the         decision of the High Court, and direct that the  appellant’s

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       name  be included in the list of eligible officers for  con-         sidering  whether he is suitable for  promotion to the  post         of  Industrial Adviser (Chemicals). The  recommendation  al-         ready  made  by  the Departmental  Promotion  Committee  for         appointment  to  the  two posts  of  Industrial  Adviser  is         quashed. Appellant shall get his costs, here and in the High         Court, from Respondent I.         M.R.                                            Appeal   al-         lowed.         229