PETITIONER:
S. RAMASWAMY
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT17/08/1976
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-
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
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
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
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
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
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
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