20 October 1992
Supreme Court


Case number: C.A. No.-004507-004507 / 1992
Diary number: 82736 / 1992








ACT: Civil Services: Central Health Service Rules, 1982: Rule 4(10)(ii)  and (iii)  scope of-Newly  created  floating common posts  in Super time grade-Selection post-Suitability of candidates-Meaning of-Promotion to such post-Basis of-Not on mere seniority but on merit.

HEADNOTE: 35 posts in super time grade of Central Health Services were sanctioned  and proposals were sent to the Union Public Service   Commission(UPSC)    for   convening   departmental Promotion  Committee   (DPC)  meetings   for  selection   of candidates. UPSC  approved to  amend Rule  4(6)  of  Central Health service  Rules of  1982. It  also approved the method recruitment, field  of selection and principles of seniority to fill  up the  35 posts as one time measure in the absence of  notified   recruitment  rules.   The   Commission   also stipulated that  these 35 posts were to be treated as common posts to  be included  in the category of floating posts for the teaching  and non-teaching  sub-cadres mentioned in Rule 4(6) of Central Health Services Rules, 1982. The eligibility condition stipulated  was three  years as  Professor failing which  17  years  of  regular  service  in  Group  ‘A’.  The Communication of  UPSC together with the eligibility list of Professors was circulated and errors/objections etc. were to be intimated to the Ministry within one month. The DPC  met and  selected candidates.  Respondent No.1 was  assigned 14th rank and Respondent No.3 was assigned 4th rank. The selected candidates were promoted and appointed. Respondent No.1 filed an application before the Central Administrative Tribunal  claiming  that  he  was  senior  to respondent No.3  and others  doctors and since the promotion was only  on  the  basis  of  seniority  and  directed  that Respondents arrayed in the application before it. Being aggrieved by the Tribunal’s order, Union of India preferred the  first of  the two appeals. Respondent No.3 in that appeal has preferred the other appeal. On behalf  of the  appellants/respondent No.3,  it  was contended that  Rule 4(10)(ii)  and (iii)  as amended merely prescribed the  procedure  for  preparation  of  eligibility test;   that the  procedure has  not been  prescribed in any other Rule as the posts were created as floating posts: that the posts did not pertain to any particular super speciality or sub-cadre  if Professor/Director  and so the criteria for preparation of  eligibility list  gad to  be prescribed  for determining inter-se  ranking between  the sub-cadres;  that



merely  because   Rule   4(10)(iii)   contained   the   word ‘suitability’ it  did not  supersede,  alter  or  amend  the criteria for  selection and  that the word ‘suitability’ has to be understood in the light of the guidelines of DPC. Allowing the appeals, this Court, HELD: 1.1.  If there  is to  be an assessment of merit, the principle  of selection is involved. on the contrary, if it were  merely a  seniority-cum-fitness there is no need to associate the Union public Service Commission as pointed out in the  guidelines. All  these lead  only to  one conclusion that these  are selection  posts. That   is dealt with apart from Rule  4, sub-rule  (10), clause  (iii), and  also under paragraph 6.1.2  of the  guidelines issued by the Government of India.  According  to  the  guidelines  the  Departmental Promotion  Committee   is  to  devise  its  own  method  and procedure  for   objective  assessments  of  suitability  of candidates. It  is note-worthy  in Paragraph  6.3.1 that the procedure for  the preparation of the panel for promotion by the Departmental promotion Committee is delineated. [51 C,D] 1.2. Paragraph 7  of the guidelines deals with non-selection method and  it dispenses  with the  requirement  to  make  a comparative assessment  of the  records. In such a case what is required  is to categorise the officers as fit or not yet fit for  promotion on  the basis of assessment of the record of  service.  Therefore,  the  word  "suitability"  in  Rule 4(10)(iii) having regard to the nature of the post and grade could only  mean  suitability  for  the  purposes  of  being selected to the said post. [51 G, H; 52-A] 2.   It is  a common  case between the parties that these 35 floating posts  were created  by sub-rule  10 of rule 4 in a addition to the authorised strength. If as per the rule, for the post  falling under  authorised strength  the method  of selection is  adopted it  must equally  apply  to  the  post created in  addition to  the authorised  strength. A careful reading of Rule 8(4)(ii) reveals that departmental promotion to  higher   post  in  the  respective  special  cadres  and specialities within the sub-cadre concerned shall be made on the basis  of selection  on merit.  It implies  that, should vacancy arise in a particular speciality , this method is to be adopted.  In  contradistinction    to  this,  under  Rule 4(10)(iii) even  though one  of the floating or common posts may  be   held  by  a  particular  person  of  a  particular speciality, the  said post  can go to a person not belonging to that  speciality. Comprises  of 29  specialities. Thus it follows the  word "selection" used in Rule 8 (4)(ii) is with reference to  inter se  merit  of  persons  belonging  to  a particular speciality  with regard  to the vacancy occurring in that speciality.[52 D-H] 3.   The first  respondent was  served with a copy of letter dated 3.11.1988  in which  the appellant clearly stated that the 20  posts of  Director/Professor of super-time grade are to be  filled by  selection method viz. merit with regard to seniority. Therefore, the decision of Government of India had been conveyed to the first respondent and he should have immediately voiced  his protest.  Of course,  the failure to protest would not deprive him of a legitimate right if he is entitled to in law. [53 A,B] 4.   After examination  of  the character roll of the senior most eligible  officers the committee assessed the officers. The first  respondent was  rated as  "very good"  while  the rating for  respondents 2 to 5  was outstanding". So they go en  bloc   above  the   first  respondent  since  the  first respondent is  merely "very  good". This  is because  of the application  of   clause  Ii  of  paragraph  6.3.1.  of  the guidelines. It  was on this basis the Departmental Promotion



Committee assigned  rank No.  14 to  the  first  respondent. Pursuant to this the President of India  issued the order of promotion dated 17th January, 1990. Paragraph 3 of the order clearly states  that the  promotions will be personal to the officers concerned and the posts presently held by them will stand upgraded to the super-time grade in the scale in terms of the  Ministry’s order dated 15.3.1989. Hence the Tribunal was in  error in  merely adopting  seniority as the basis of promotion and not merit. [53 C-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos.  4507 and 4508 of 1992.      From  the   Order  dated   20.1.1992  of   the  Central Administrative Tribunal, Madras in O.A No. 925 of 1900.      K.T.S. Tulsi,  Addl. Solicitor  General,  Kapil  Sibal, C.V.S., Rao, C. Ramesh and Ranjit Kumar for the Appellant.      P.P. Rap,  V. Balachandran,  R.P. Oberoi and B.S. Gupta for the Respondents.      The Judgment of the Court was delivered by      MOHAN J. Leave granted.      Both these  appeals can  be  dealt  with  by  a  common judgment since  identical  issues  are  involved.  They  are directed against  the judgment  of  the    judgment  Central Administrative Tribunal,  Madras dated 23.1.1992. S.L.P. No. 7138/92 is  preferred by  Union of  India while  S.L.P.  No. 6494/92 is filed by the affected party (Dr. M. Khalilullah).      The parties  are referred to as mentioned in S.L.P. No. 7138/92. The facts are as under.      The President  of India  sanctioned 35  posts in super- time grade  of Central  Health  Services  in  the  scale  of Rs.5900-200-6700 plus non-practising allowance at the normal rates as admissible to other similar posts. The sanction was upto  29.2.98.  The  sanction  was  conveyed  by  the  Under Secretary to the Government of India, Ministry of Health and Welfare, New Delhi on 26.8.1987. After the creation of these posts, proposals  were sent  to  the  Union  Public  Service Commission for  convening the  meetings of  the Departmental Promotion Committee   for  selection of  the Candidates  for Promotion. The  Union Public  Service Commission approved to amend Rule  4(6) of Central Health Service Rules of 1982. It also approved  the method of recruitment, field of selection and principles  of seniority  to fill up these 35 posts as a one time  measure in  the absence  of  notified  recruitment rules. In  its communication  dated 29.9.88 the Union Public Service Commission  besides referring to the above approvals specifically, stated:      "These 35  posts may  be treated as      common posts both at present and in      future  to   be  included   in  the      category of  the floating posts for      the Teaching  and Non-Teaching sub-      cadres mentioned  in Rule  4(6)  of      the  CHS   Rules   of   1982.   The      eligibility     conditions      for      promotion  will   be  3   years  of      regular         service          as      Professor/Specialist Grade  I  with      17  years  of  regular  service  in      Group ‘A’".      In the  end, the  Commission advised  that the basis of eligibility and  the eligibility list might be circulated to all concerned,  their objections  invited and settled before



the meeting of Departmental Promotion Committee (Health). It also requested that the final eligibility list might be sent to the  Union Public  Service Commission.  On 3.11.88,  this decision was  conveyed to all  the concerned parties stating that it  has been  decided to fill up the posts by selection method i.e.  merit with regard to seniority. The eligibility conditions for  promotion will be 3 years of regular service in Group ‘A’.      Together with  that letter was enclosed the eligibility list of Professors. On the basis of the Principles stated in the letter,  errors/omissions/objections etc.   Were  to  be intimated to the Ministry within one month.      In the  eligibility list  include, Dr.  P. Rajaram, the first  respondent,  was  assigned  rank  No.  13  while  Dr. Khalilullah, the  third respondent was assigned the rank No. 24.      On 20.9.1989  , in accordance with the guidelines dated 10.3.89, the  Departmental  Promotion  committee    met  for selection of  officers for  the promotion  to the super-time grade posts  of director  professor in  the  Central  Health Service.      It requires to be stated that these posts were extended from time  to time.  Each extension  was for a period of one year. Ultimately  by an  order dated  2.4.1992, it  has been extended for a period of one year up to 28.2.1993.      Consequent upon  the selection  by Union Public Service by an  order dated  17.1.1990, the  President was pleased to appoint under  Rule 4(10)  of the  Central  Health  Services Rules, 1982  the officers  of  Specialist  Grade  I  of  the Teaching Specialist  sub-cadre of the Central Health Service to supertime  grade of  the Teaching Specialist sub-cadre of the Central  Health Service.  They were  posted as Director- Professors on  an officiating  basis in the pay scale of Rs. 5900-6700 plus  non-practising allowance  @ Rs.950  p.m. The dates of  promotions were  indicated  against  each  of  the appointee. As  far as  Dr. Rajaram,  the first respondent is concerned, he  was assigned  rank No.  14 and  the  date  of promotion was  as 1.4.1989  while respondent  No. 3,  Dr. M. khalilullah was assigned rank No.4 and the date of promotion was as  1.4.1989. Paragraph  3  of  the  order  specifically states that  the above  promotions will  be personal  to the officers concerned and the posts Presently held by them will stand upgraded  to the  Supertime  grade  in  the  scale  of Rs.5900-6700 plus non-practising allowance  @ Rs.950 p.m. in terms of  Ministry’s order  No. A-11011/5/88-CHS  IV,  dated 15.3.1989. This  will continue  till the  upgraded Posts are held    by     the    officers     being    promoted    now.      Aggrieved by  the  order  dated  17.1.1990,  the  first respondent (Dr. Rajaram) preferred an application No. 925 of 1988 on 6.7.1990. In that application, he had stated that he was senior  to Dr.  B.S. Rana,  Dr. M. Khalilullah, Dr. K.K. Jain and  Dr. D.D.S.  Kulapathy. They  should not  have been show above  him. The  promotion was  only on  the  basis  of seniority.      In  opposition   to  this,   the  respondent   in   the application who  has secured  a higher  rank urged  that the Departmental Promotion  Committee had  ranked Dr. Rajaram at serial No.  14 on  the basis  of merit.  The  criterion  for promotion is only merit.      Before the  Tribunal, the  scope   of Rule  4  sub-rule (10), clause  (iii) of  Central Health  Service Rules,  1982 (hereinafter  referred  to  as  "the  Rules")  came  up  for interpretation. The  Tribunal,  in  the  impugned  judgment, accepted  the  contention  of  Dr.  Rajaram  and  held  that promotion for  the post of director/Professor should be made



on the basis of seniority. Consequently, it directed that he be posted  above the  respondents who  had been named in the application.      It is  under these  circumstances, the  present S.L.Ps. have  preferred  by  Union  of  India  as  well  as  by  Dr. Khalilullah.      Mr. Kapil  Sibal, learned  counsel appearing for Dr. M. Khalilullah after  taking us  through the rules submits that rule 4(10)  (i) of  the Rules  deals with   35 newly created floating common posts in the supertime grade Rs.5900-6700 in the Teaching  and Non-Teaching  specialist sub-cadre.  These posts were  in addition  to the authorised strength of posts in the  supertime grade.  The authorised  strength  of  both categories  of   Teaching  and  Non-Teaching  sub-cadres  is reflected in  Schedule II.  Rule 4(10)  (ii) stipulates that promotions to  these posts  are to  be made  on the basis of common eligibility  list to  be  drawn  separately  for  the Teaching   Specialist   sub-cadre   and   the   Non-Teaching Specialist sub-cadre.  This has  to be  without reference to any of the specialities in respective sub-cadres.      Rule 4(10)(iii)  stipulates that  the eligibility  list shall be  made after  the officer  concerned has  been  duly assessed by a Departmental Promotion Committee  in regard to the officer’s  suitability for  holding the  post  with  the condition that  the said officer should have completed three years of  regular service as Professor (Specialist) Grade I. This rule  does  not  stipulate  the  manner  in  which  the suitability of  the said  officer is  to be  assessed by the Departmental Promotion  Committee. Schedule  IV of the Rules talks of  the constitution  of  the  Departmental  promotion Committee. It  is clearly stipulated that in each meeting of the Departmental  Promotion Committee  the  Chairman/Member, Union Public service Commission shall chair the Departmental promotion  Committee.  The  guidelines  stipulate  that  the Departmental  Promotion  Committees  constituted  under  the respective Service  Rules shall  judge  the  suitability  of officers for  promotion    to  selection  as  well  as  non- selection  posts.  Here  again,  the  Union  Public  service commission should  be associated with Departmental Promotion Committee  in   respect  of  Central  Civil  Services  Posts belonging to  grade ‘A’  where promotion  is  based  on  the principle of  selection unless  it has  been decided  by the Government of  India  not  to  associate  the  Union  Public Service Commission. The Union Public Service Commission need not be  associated in  respect of posts belonging to Grade-A if the promotion is based not on the Principles of selection but on  seniority-cum-fitness.  Wherever  the  Union  Public Service Commission is associated with Departmental Promotion Committee, the  Chairman or  a Member of the Commission will preside  over   the  meeting   of   Departmental   Promotion Committee.      When  Schedule   IV  requires   that  the  Departmental Promotion Committee(Services)  ought to  be Presided over by the  Chairman   or  Member   of  the  Union  Public  service Commission itself  suggests that  the said posts ought to be filled in  by way  of selection  rather than on the basis of seniority-cum-fitness. Consequently,  the word ‘suitability’ in Rule  4(10) (iii)  in the context of nature of posts, its grade, can  only mean  suitability for the purposes of being selected to  the said  Post. This  submission is made on the basis that Rule 4(10) is a complete code in itself.      Even if  this post  falls outside  the Schedule ii, the basis of  promotion cannot  be seniority. In terms of Rule 3 of the Rules, the Central health service consists of persons appointed to  the service  under sub-rule  (5) of Rule 4 and



rules 7  & 8.  It is  the contention  of the  appellant that under Rule  4(3), Government  of India  is entitled  to make temporary additions  to or  reductions in  the  strength  of ‘duty posts’  in the various grades as deemed that these are posts with  designations specified  in Part A of Schedule II whether permanent of temporary. When this definition is read along with  Rule 4(1)  (ii) and Rule 4(1) (iii), it is clear that temporary additions or reductions in the number of duty posts  can   take  place  from  time  to    time.  These  35 floating/common posts  were created  for the  first time  on August 26,  1987 and  administrative orders  have thereafter been issued  from time to time extending the creation of the said ‘duty posts’ without amending Schedule II.      Certainly, these posts were part of authorised strength at the  time of  initial constitution of the Service. Rule 8 contemplates that  any vacancy  arising in  any one  of  the grades referred  to in  Schedule II  shall be  filled in, as provided in  rule 8(4)  (ii). The  difference  between  Rule 4(10) (iii) and rule 8(4) (ii) is that whereas in the latter the promotion  is to be made with reference to a post in the Teaching Specialist sub-cadre or the Non-Teaching Specialist sub-cadre on  account of any vacancy occurring therein, in a particular  speciality,   in  the   case  of   the   former, notwithstanding the  fact that one of the 35 floating/common posts may  be held  by a  particular person  of a particular speciality, the  said post  can go to a person not belonging to that  speciality, since the Teaching Specialist sub-cadre forms a  class by itself which comprises 29 specialities. It is in this context, therefore, that the said posts could not be included  in schedule  II,  since  specialities.  It  is, therefore, clear  that whereas the  word ‘selection’ used in Rule 8(4)  (ii) is  with  reference  to  inter-se  merit  of persons belonging  to a particular speciality with reference to a vacancy occurring in a speciality but with reference to the inter-se merit of candidates based on their confidential reports and assessed by the Departmental Promotion Committee belonging to  any of  the  29  specialities,  who  would  be considered most  suitable to  be promoted, since the concept of seniority-cum-fitness  cannot possibly  be applied  to  a common set of posts without reference to any speciality.      Thus, it  is submitted that to determine the meaning of suitability, the same yard-stick must be adopted.      In any  event,  these  are  highly  specialised  posts. Hence, it  is unthinkable that the promotions to these posts is based  on the  principle of seniority-cum-fitness and not on the  basis of selection. The word ‘suitability’ will have to be  interpreted as  seniority-cum-fitness. Otherwise,  it would be  liable to  struck down  as unconstitutional  being violative of  Articles 14   and  16  of  the  Constitutions. Therefore,  it  is  submitted  that  the  Rule  must  be  so interpreted as  not to  violate the  fundamental rights. The Tribunal  had  gone  wrong  in  adopting  the  principle  of seniority  and   its  interpretation   of  rules  cannot  be sustained.      Learned counsel  for Union of India, Shri K.T.S. Tulsi, supporting the arguments of Shri Kapil Sibal, urged that the order creating  these posts clearly mentioned that the posts are created  in  the  super-time  cadre  of  Central  Health service.  Rule  4(10)  (ii)  and  (iii)  as  amended  merely prescribe the procedure for preparation of eligibility list. This procedure is nowhere prescribed in any other Rule. This was because  of the  fact that  the 35 posts were created as floating posts. They did not pertain to any particular super speciality or  sub-cadre of  Professor/Director.  Therefore, criteria for  preparation of  eligibility  list  had  to  be



prescribed for  determining inter-se  ranking   between  the sub-cadre. Merely because Rule 4(10) (iii) contains the word ‘suitability’, the  said Rule  does not  supersede alter  or amend the  criteria for  selection. The  word  ‘suitability’ will have to be understood in the light of the guidelines of Departmental Promotion Committee.      These 35  posts  referred  to  in  Rule  4(10)  are  an integral part of the cadre. The said posts were not added to Schedule Ii,  forming part  of the temporary strength of the cadre. However, on August 10, 1992, the said posts have been added to  Schedule Ii so as to make its intention clear that the promotion  is to  be governed  by all the relevant rules and not  by Rule  4 (10)  when read  in isolation  from  the remaining Rules. Thus, it is submitted that the reasoning of the Tribunal is unsupported.      Mr. P.P.  Rao, learned counsel on behalf of Dr. P. Raja Ram would urge as under.      The initial  argument particularly  on  behalf  of  the Union of  India was  that  these  floating/common  posts  of super-time grade  of teaching  Specialist  sub-cadre  formed part of authorised strength of the Central Health Service in terms of  Rule 4(10).  This was contested by this respondent that Schedule  II has  not been  amended till  date so as to include  these  posts.  Instead  of  frankly  admitting  the mistake, there  was a  deliberate  attempt  to  justify  the inclusion of  these 35 posts as part of Schedule II. This is nothing but  misleading the  Court. This  alone is enough to dismiss the Special Leave Petition.      Even on merits, Rule 4(10) states that the posts are to be filled  up by the method of promotion and on the basis of an eligibility  list. The  note  also  lays  down  that  the eligibility list  shall be  prepared with regard to the date of completion  of the prescribed qualifying years of service in their  respective grades, by the officers. Further clause (iii) of  sub-Rule (10)  adds the requirements of assessment by a  Departmental Promotion  Committee  in  regard  to  the suitability of  each officer  for  holding  the  post  while considering his  case for  promotion on  the basis of common eligibility list.  The words  ’his suitability"  in the said clause (iii) are very significant. They postulate assessment of suitability  of each  candidate in the order in which the names appear  in the  common eligibility  list drawn  on the basis of  continuous qualifying  service rendered by them in the feeder  Grade. The scheme of sub-Rule (10) totally rules out selection on the basis of relative merit of all eligible candidates.      The difference  between ‘common  Posts’  and  ‘floating posts’ is  that while   in  ‘common posts’,  a Professor  on being promoted  to one of the ‘common posts’, a Professor on being promoted  to one  of the  ‘common posts’ moves to that post and  vacates the  post of  Professor previously held by him, while  in floating  posts’ the  post  held  by  him  is upgraded and he continues to work in the same speciality, in the same institution.      The guidelines  of the Departmental Promotion Committee are not  of any  assistance. Therefore,  no argument  can be advanced on  this basis.  If guidelines were governed, there was no  purpose in  adding Rule  4(10) (ii)  and (iii).  The basic distinction  between  the  selection  posts  and  non- selection posts  is,  whether  it  is  to  be  filled  by  a comparative assessment  on merit  of all eligible candidates or on  the  basis  of  continuous  length  of  service.  The guidelines say  that there  is no  need to  make comparative assessment  of   records  of  the  officers  but  it  should categorise the  officers as  fit or  non-fit. It  is a clear



indication that there is no comparative assessment involved.      The common  eligibility list  which talks of Rule 4(10) is nothing  but a  combined seniority  list of  officers  in different specialities  drawn with  reference to the date of completion of the prescribed qualifying years of service.      It is  also incorrect to contend that it is a duty post as defined under Rule 2(e). Such an expression as ’duty post is absent under Rule 4(10)".      When these  posts had  been created in order to release stagnation in  addition to  authorised strength, presence of Chairman of Member of Union Public Service Commission at the Departmental  Promotion  Committee  does  not  make  a  non- selection  post   as  selection   post  simply  because  the guidelines say  in the  case of  non-selection posts,  Union Public Service  Commission need  not be associated. The fact that this  respondent did  not raise  any objection  to  the letter dated 3.11.1988, will not, in any manner, deprive him of his right if the Rules confer such a right. lastly, it is submitted that  if two views are possible, the view taken by the Tribunal  should be  upheld. Thus,  no  interference  is warranted.      We shall  now proceed  to consider  the merits  of  the above contentions.      35 posts  in super-time grade of Central Health Service in  the   scale  of   Rs.5900-200-6700  plus  non-practising allowance at  the normal  rates admissible  to similar posts were created.  These posts were to last till 29.2.1988. Time and again, they were extended.      The  Rules   which  were  relevant  to  appreciate  the controversy  whether  the  promotion  is  on  the  basis  of seniority or on the basis of merit may now be seen.      In exercise of the power conferred under the proviso to Article 309  of the  Constitution, the  Rules called Central Health Service Rules, 1982 were framed.      Rule 3  speaks of  the constitution  of Central  Health Service. This  service is to consist of persons appointed to the service under the Rules 4(5),7 and 8.      Rule 4  speaks of  authorised strength of service. Sub- rule (1) of this Rule states that the authorised strength of duty posts  and   the deputation  posts are  as specified in Schedule II. Under sub-rule (3), the Government is empowered to made temporary additions or reductions in the strength of both : (i) the duty posts (ii) deputation posts.      sub  rule  6(i)  and  (ii)  may  be      quoted as follows:      (6) (i)  "The Controlling Authority      shall upgrade  five  posts  in  the      grade  of   Specialist  Grade-I  to      supertime grade (three posts in the      Teaching  Specialist  Sub-cadre  as      Director-Professor and two posts in      the  Non-Teaching  Specialist  Sub-      Cadre or Public Health sub-cadre as      Specialist (Consultant)  and twenty      five  posts   in   the   grade   of      Specialist  Grade-II  in  the  non-      Teaching  Specialist  Sub-cadre  or      Public    Health    Sub-cadre    or      Associate Professor in the Teaching      Specialist Sub-cadre  in the  grade      of   Specialist   Grade-I   without      altering  the  combined  authorised      strength of posts of the respective      sub-cadre from  which  these  posts      are temporarily upgraded.



    (6) (ii)  The promotions under this      sub-rule shall be made on the basis      of  a   common   eligibility   list      covering  all   officers   in   the      respective    sub-cadres    without      regard to any specialities."      It requires  to be  carefully noted that what is talked of is  a common  eligibility list.  In other words, this has only reference  to eligibility.  This is  an aspect which we want to emphasise even in the beginning.      Then, we  come to sub-rule (10) which was introduced on 30.5.1989 which  specifically  deals  with  these  35  newly created floating/common posts in the super-time grade of Rs. 5900-6700. These  35 posts  are made  up of  20 posts in the Teaching Specialist  sub-cadre as  Director-Professor and 15 posts  in   the   Non-Teaching   Specialist   sub-cadre   as Consultant.  These   posts  will   be  in  addition  to  the authorised strength.  It is  common ground  that these posts were  created   to  release   stagnation.  Earlier  to  this amendment, these  posts in the Teaching Specialist Sub-cadre were alone  open to  Professors from  all specialities. They were :      (i) Director,  G.B. Pant  Hospital,      New Delhi.      (ii)  Dean,  Moulana  Azad  Medical      Collage, New Delhi.      (iii)   Principal,   Lady   Harding      Medical Collage , New Delhi.      (iv)          Director,     JIPMER,      Pondicherry.      (v)  Dean, JIPMER, Pondicherry.      (vi)   Deputy    Director   General      (Medical), D.T.E., DGH, New Delhi.      As could  be seen,  the promotion  posts available were very  few   and  were   restricted   to   certain   specific specialities.  This   led  to   stagnation.  Therefore,  the floating posts  (20+15) were  created to  be filled  in  the grade of Professor/Specialist Grade I (Rs.4500-5700). It was in this background Rule 4(10) was introduced. That lays down :      "There shall  be 35  newly  created      floating/common   posts    in   the      supertime  grade   of  Rs.5900-6700      (Twenty  posts   in  the   teaching      specialist sub-cadre  as  Director-      Professor and  fifteen posts in the      Non-Teaching  Specialist  sub-cadre      as Consultant)  which  will  be  in      addition to the authorised strength      of posts  in supertime grade of Rs.      5900-6700 in  different  sub-cadres      of Central Health Service."      Further clause  (ii) of  the  above      Rule lays down as follows:      "The promotions under this sub-rule      shall be  made on  the basis  of  a      common eligibility list to be drawn      separately for  Teaching Specialist      sub-cadre     and      Non-Teaching      Specialist sub-cadre  covering  all      officers  in  the  respective  sub-      cadres  viz.   Teaching  and   Non-      Teaching  without   regard  to  any      specialities".      Here again,  it talks  of eligibility.  In our opinion,



eligibility means interlacing of seniority list of different specialities.      Clause (iii) reads as under :      "  The   appointment  against  such      posts shall  be made  only  if  the      officer  concerned  has  been  duly      assessed    by    a    Departmental      Promotion Committee  in  regard  to      his  suitability  for  holding  the      post and  has been  working in  the      grade of Professor/Specialist Grade      I on  a regular  basis for not less      than three years, failing which has      been       working       as       a      Professor/Specialist Grade  I  with      17  years  of  regular  service  in      Group ‘A’ post".      The  note  is  also  made  for  our      purpose that states :      "The  eligibility   list  shall  be      prepared with reference to the date      of completion  by the  officers  of      the prescribed  qualifying years of      service in  the respective  grades.      However, in  case  of  persons  who      have been  appointed  on  the  same      date   the   seniority   shall   be      determined as under :      (a)  Where  the  eligible  officers      were considered  by the same D.P.C.      the seniority shall be based on the      order of merit.      (b) If  there is no order of merit,      the seniority shall be on the basis      of seniority in the feeder grade.      (c) If there is no seniority in the      feeder grade  or it is not possible      to determine  the seniority even in      the feeder  grade, the  length   of      regular service in the feeder grade      shall be  the  guiding  factor  for      determining the seniority.      (d) if  length of  service  in  the      feeder  grade  is  also  the  same,      regular service  in the  next lower      grade shall  be taken into account,      failing which date of birth."      It may  be seen  that  clause  (iii)  states  that  the appointment is  to be made only if the officer concerned has been duly  assessed by a Departmental Promotion Committee in regard to  his suitability  for holding  the  Post.  Such  a consideration will  arise only  if the concerned officer has been working  in the  grade of  Professor/Specialist Grade I for a  period not  less than  three years.  The  alternative qualification is  17 years  of regular  service in Group ‘A’ post and  the  concerned  officer  has  been  working  as  a Professor or Specialist Grade I.      This clause  does not  lay down the manner in which the suitability of the officer is to be assessed. However, It is noteworthy  that   suitability  is   to  be  assessed  by  a Departmental Promotion  Committee. As  to what is stated can be seen,  when we look at Rule 2 which contains definitions. Rule 2(c) says as under :      "Departmental  Promotion  Committee      means  a   group  ‘A’  Departmental



    Promotion  Committee  specified  in      Schedule  IV  for  considering  the      cases of  promotion or confirmation      in Group ‘A’ Posts are of the scale      of Rs.2200-4000 and above. Schedule      III   defines    the   method    of      recruitment, the field of selection      for  promotion   and  the   minimum      qualifying service in the immediate      lower grade  or  lower  grades  for      appointment   or    promotion    of      officers to  group ‘A’  duty  posts      and deputation posts in the Central      Health service".      In Note  1 of the said Schedule, it      is stated thus :      "Promotion to the post of Associate      Professor (non-functional selection      grade),    Associate     Professor,      Specialist Grade II (non-functional      selection grade),  Specialist Grade      II (Senior  Scale) in  non-teaching      and Public health sub-cadres, Chief      Medical   Officer   (non-functional      selection grade) and Senior Medical      Officer will  be  on  non-selection      basis. All  the remaining posts are      selection posts".      When it  says all  the remaining  posts  are  selection posts, it  is obvious  that the  posts  with  which  we  are concerned are  selection posts.  Schedule IV  lays down  the composition of Departmental Promotion Committee. With regard to the  Teaching Specialist  sub-cadre posts, super-time and Specialist Grade  I (Professor),  the Departmental Promotion Committee  shall consist of the following :      (i)   Chairman.    Chairman/Member,      Union Public Service Commission :      (ii)  Secretary   or  his  nominee,      Ministry  of   Health  and   Family      Welfare ; Member      (iii) Director  General  of  Health      Services or his nominee : Member.      (iv)   One   Departmental   officer      nominated   by    the    Secretary,      Ministry  of   Health  and   Family      Welfare : Member.      When Rule  4 (10) (iii) talks of Departmental Promotion Committee, it  is only this Departmental Promotion Committee in accordance with Schedule IV that is thought of.      There guidelines  issued under the office memorandum of Government of  India dated April 10, 1989. Under this Office Memorandum, the  various instructions  have been updated and consolidated.  Under   these  guidelines,  the  Departmental Promotion  Committee   so  constituted   shall   judge   the suitability of  the officers  for  promotions  to  selection posts. it  has already  been seen  that these  are selection posts as per Schedule II of the Rules. In Paragraph 2.1 with reference to  the post  in  question  carrying  a  scale  of Rs.5900-6700 or  equivalent. The  minimum status  of Officer who should  be member of Departmental Promotion Committee is prescribed  as   Secretary  or   Additional   Secretary   to Government of  India. Paragraph 2.2 of the guidelines states as follows :      "The    Union     Public    Service      Commission   (UPSC)    should    be



    associated with  DPCs in respect of      all     Central      Services/posts      belonging  to   Group   ‘A’   where      promotion   is    based   on    the      principles of  selection unless  it      has been  decided by the Government      not to  associate the  UPSC with  a      Group ‘A’  DPC. The  UPSC  need not      be associated  in respect  of posts      belonging  to  Group  ‘A’,  if  the      promotion  is   based  not  on  the      principles  of   selection  but  on      seniority-cum-fitness".      Paragraph 2.4  also stresses the fact that whenever the Union Public  Service  Commission  is  associated  with  the Departmental Promotion Committee the Chairman or a Member of the  Commission   will  preside  over  the  meeting  of  the Departmental Promotion Committee.      The contention of Mr. P.P. Rao, learned counsel for the respondents that  the nature  of the  post or  the method of promotion  need   not  be  decided  with  reference  to  the guidelines is  not correct. In Rule 4, sub-rule (10), clause (iii), to  which a  reference has  already  been  made,  the assessment  is   required  to  be  done  by  a  Departmental Promotion  Committee.  It  is  for  such  a  Committee  that guidelines  have   been  prescribed.  Therefore,  we  cannot altogether ignore these guidelines.      From the above two paragraphs it is clear that if there is to  be  an  assessment  the  principle  of  selection  is involved. On  the contrary,  if it  were merely a seniority- cum-fitness there  is no  need to associate the Union Public Service Commission  as pointed  out in  Paragraph 2.3 of the guidelines. All these lead only to one conclusion that these are selection  posts. Having arrived at this conclusion then the question  would be  what exactly  is the  meaning of the word "suitability".  That is  dealt with  apart from Rule 4, sub-rule  (10),  clause  (iii),  also  under  guidelines  in Paragraph 6.1.2.  The Departmental Promotion Committee is to devise its own method and procedure for objective assessment of suitability  of candidates. It is noteworthy in paragraph 6.3.1 that  the procedure  for the  preparation of the panel for promotion  by the  Departmental promotion  Committee  is delienated. Clause (ii) is very important and we extract the same:      "In respect  of all posts which are      in the  level of  Rs.3700-5000  and      above, the  benchmark grade  should      be ‘very  good’.  However  officers      who  are  graded  as  ‘Outstanding’      would rank  en bloc senior to those      who are  graded as  ‘Very Good’ and      placed   in    the   select   panel      according  upto   the   number   of      vacancies,   officers   with   same      grading maintaining  their inter se      seniority  in   the  feeder  post".      (Emphasis supplied)      In contradistinction  to this when we look at paragraph 7 of  the guidelines, which deals with non-selection method, that dispenses  with the  requirement to  make a comparative assessment of  the records.  In such a case what is required is to  categorise the  officers as  fit or  not yet  fit for promotion on  the basis  of the  assessment of the record of service. In  so far  as we are concerned with selection this paragraph does  not have  any  application  whatever.  Thus,



therefore, the word "suitability" in Rule 4(10) (iii) having regard to  the nature of the post and grade, could only mean suitability for  the purposes  of being selected to the said post. (Emphasis supplied)      Further,  the  expression  "suitability"  in  the  said clause does not, in any manner, supersede alter or amend the criteria of  selection Prescribed  in the remaining rules as is applicable  to super-time grade post. When the expression "suitability" is  construed harmoniously  with other  rules, the process of selection is inescapable as rightly contended by Mr. K.T.S. Tulsi, learned additional solicitor General.      The argument  of Mr. Rao that if these posts are by the method of  selection, clauses  (ii) and  (iii)  and  a  note thereunder are  wholly unnecessary  in Rule 4(10), overlooks the fact that these clauses deal only with eligibility.      It is  a common  case between the parties that these 35 floating posts  were created  by sub-rule (10) of the Rule 4 in addition  to the authorised strength. If as per the rule, for the post falling under authorised strength the method of selection is  adopted for  the authorised  strength it  must equally apply  to  the  post  created  in  addition  to  the authorised strength. Though a good deal of controversy arose during the  course of  the arguments whether these posts had been included  in Schedule  II or  not,  it  was  vehemently commented upon  by Mr.  P.P. Rao,  learned counsel,  that an inaccurate  statement  was  made  by  Union  of  India  that controversy pales into insignificance because of the Gazette Notification dated  10th of  August, 1992 including these 35 newly floating/common  posts in  Schedule II.  Therefore, if these posts  form part of the authorised strength as to what would be  the bearing  of  Rule  8(4)(ii),  requires  to  be considered. A  careful reading of Rule 8(4)(ii) reveals that departmental promotion  to higher  post  in  the  respective special  cadres   and  specialities   within  the  sub-cadre concerned shall  be made on the basis of selection on merit. It implies  that,  should  vacancy  arise  in  a  particular speciality,   this    method   is    to   be   adopted.   In contradistinction to this, under rule 4(10)(iii) even though one of  the floating  or common  posts  may  be  held  by  a particular person  of a particular speciality, the said post can go  to a  person not  belonging to  that speciality. The teaching, speciality  sub-cadre, forms a class within itself since it  comprises of  29 specialities. Thus it follows the word "selection"  used in  Rule 8(4)(ii)  with reference, to inter  se   merit  of  persons  belonging  to  a  particular speciality with  regard to  the vacancy  occurring  in  that speciality.      Lastly, we  may refer  to one important fact. The first respondent (Dr.  Raja Ram)  was served with a copy of letter dated 3.11.1988.  That clearly  states that  the 20 posts of Director Professor  of Super-time  grade are to be filled up by  selection   method,  merit  with  regard  to  seniority. Therefor, the  decision of  Government  of  India  had  been conveyed to  the first respondent. The first respondent when he was  put on  notice should  have immediately  voiced  his protest. Of course, the failure to protest would not deprive him of  a legitimate  right if  he is  entitled to  in  law. However, it is one of the points to be borne in mind.      The  Departmental   Promotion  Committee  met  on  20th September, 1989  and the minutes have been placed before us. After examination  of the character rolls of the senior most eligible officers  the committee  assessed the  officers  as given in  Annexure I. The first respondent, Dr. Raja Ram was rated  as "very good" while the rating for the other doctors is as follows :



1. Dr. B.S. Rana           (2nd respondent )  : Outstanding 2. Dr. M. Khalilullah      (3rd respondent )  : Outstanding 3. Dr. K.K. Jain           (4th respondent )  : Outstanding 4. Dr. D.D.S. Kulapathy    (5th respondent )  : Outstanding      Where respondents 2 to 5 are rated outstanding, they go ‘en  bloc’  above  the  first  respondent  since  the  first respondent is  merely "very  good". This  is because  of the application  of   clause  II   of  paragraph  6.3.1  of  the guidelines  quoted   above.  It   was  on   this  basis  the Departmental Promotion  Committee assigned rank No.14 to the first respondent,  Dr.  Raja  Ram.  Pursuant  to  this,  the President of  India issued  the impugned  order of promotion dated 17th of January, 1990. Paragraph 3 of the order, which we have  quoted above,  clearly states  that the  promotions will be  personal to  the officers  concerned and  the posts presently held by them will stand upgraded to the super-time grade in  the  scale  of  Rs.5900-6700  plus  non-practising allowance at  Rs.950 per  mensem in  terms of the Ministry’s order dated 15.3.89.      Above all  these, we cannot lose sight of the fact that for posts  of this  character in  super-time grade  carrying high salary,  promotion could  not be accorded merely on the basis of  seniority. In our considered view, it should be on merit.      For the  foregoing  reasons,  we  are  clearly  of  the opinion that  the Tribunal  had  erred  in  merely  adopting seniority as  the basis of promotion and not merit.      It is  needless for  us to  consider whether  these are duty posts  since we  have taken  the view  that these posts fall within Schedule II of the Rules.      In the  result, we  set aside  the impugned judgment of the Tribunal  and allow  these appeals  without  costs.  The reason why  we are  not awarding  costs  in  favour  of  the appellants is  because of  a specific  objection by Mr. P.P. Rao that  these posts  have not been included in Schedule II by amending the said Schedule. In respect of this, the Union of India  persisted in  the  argument  that  they  had  been included  in  Schedule  II.  Of  Course  after  the  Gazette Notification dated  10.9.92 the  position may  be different. But that does not mean that the earlier incorrect statements by the Union of India could be overlooked. Appeals allowed.