Holding

Inter‑se seniority of officers must be fixed in accordance with Rule 10(a)(iii) of the Himachal Pradesh Health Service Rules, making Dr. S.P. Kapoor senior to Dr. R.M. Bali and Dr. Jiwan Lal.

Summary

The case concerned doctors who had been absorbed from the Punjab Civil Medical Service into the Central Health Service and later opted to join the newly created Himachal Pradesh Health Service. The petitioners challenged the seniority list prepared by the State, the constitution of the Departmental Promotion Committee, the use of confidential reports prepared by junior officers, and the validity of appointments made on an ad‑hoc basis. The Supreme Court examined the relevant service rules, particularly Rule 10(a)(iii) of the Himachal Pradesh Health Service Rules, and the statutory framework of the Punjab Reorganisation Act and the State of Himachal Pradesh Act. It held that seniority must be fixed according to Rule 10(a)(iii), giving Dr. S.P. Kapoor seniority over Dr. R.M. Bali and Dr. Jiwan Lal, and that the Committee was validly constituted but the appointments made in haste required fresh consideration. Consequently, the Court allowed the appeal in Civil Appeal No. 2104 and dismissed the appeal in Civil Appeal No. 2384, directing that the selection of Deputy Directors and Director of Health Services be reconsidered in accordance with the correct seniority.

Issues considered

The proper basis for determining inter‑se seniority of officers absorbed into the Himachal Pradesh Health Service
Whether the Departmental Promotion Committee was validly constituted under the Rules
Whether confidential reports prepared by a junior officer can be taken into account for promotion
Whether the roster for the Director of Health Services may be started with Specialists under the Rules
Whether ad‑hoc appointments confer a right to regular posts and seniority

Legislation cited

Punjab Reorganisation Act, 1966s. 5, s. 84
State of Himachal Pradesh Act, 1970s. 45

Subjects

seniorityhealth service rulescentral health serviceHimachal Pradesh Health Servicedepartmental promotion committeead‑hoc appointmentconfidential reportrotation rosterservice integration

Judgment

1043 A

DR. S.P. KAPOOR ETC.

v.
STATE OF HIMACHAL PRADESH & ORS. ETC. B
November 2, 1981

[ S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.]

• Central Health Service Rules 1963, Rules 7A and BA and Himachal Pradesh c
Health Service Rules 1974, Rules 9(4), and IO(a)(iU)-Union territory of Himachal
Pradesh-Health Department manned by officers of Central Health Service-Union
Territory becoming a Stat~Formation of Himachal Pradesh Health Servic~-
01/icers exercising option to continue in the new Heal1h Service-Determination of
seniority-basis-Not date of induction into Central Health Service-Only under
Rule JO( a) (iii) of State Rules.
0
Service Rule not providing category with which Roster to be started-
Government direction supplementing the Rule that Roster be started with category
of Specialists-Government action whether valid.

Annual Confidential Report-Initiated by an officer who is junior and also
an aspirant for promotion to higher post-Such confidential report whether valid-
Cons!deration by Departmental Promation Committee-Effect of. E
. Services and Dismissals-State Health Service-Officers holding posts on
ad hoc basis from 1973-Seniority list finalised on November 2, 1979-Departm,n~
ta/ Promotion Committee constituted on November 3, 1979-Promotions made
and orders of appointment issued on the same day-Post haste manner of selec~
tion and appointment-Effect of.
....
The Central Health Service was constituted by the Central Government and
the Central Health Service Rules 1963 came into force wilh effect from 15~5-1963.
These Rules were amended by the Central Health Service (Amendment) Rules
1966. Before the Punjab Reorganisation Act came into force the State of Punjab
had its own Health Service known as the PCMS with two grades, Grade J and
Grade II. After the Punjab Reorganisation Act came into force, and the Central
Health Service was formed, some persons belonging to the PCMS and some G
persons working as Medical Officers in hospitals run by Local Bodies were induc-
ted into that Service after they had exercised their oplion to be inducted therein
The petitioners and contesting employees-respondents in \'.'rit petition nos. 2 0 f
1980 and 288 of 1979 filed in the High Court had been inducted into the Central
Health Service after they had exercised their option. When the Himachal
Pradesh Union Territory was in existence, its Health Department was manned H
by Officers of the Central. Health Service, but after Himachal Pradesh became a
full fledged State, the H1!Dacba) Health Servic~ was constituted on 24.1.1974
. . . ' ' '
1044 SUPREME COURT REPORTS (1982] I S,C.R

A under the Himachal Pradesh Health Service Rules which catne into force on
19.1.74. The members of the Central Health Service serving in the erstwhile
Himachal Pradesh Union Territory were asked to exercise their option to conti-
nue in the new Himachal Pradesh Health Service. The writ petitioners and the
contesting employees-respondents exercised their option to continue in the
Himachal Pradesh Health Service.

B The Appellant in C. A. No. 2384 of 1980, who was one of the petitioners in
writ petition No. 288 of 1979 contended before the High Court that his
reversion from the post of Deputy Director of Health Services to which post
he was appointed on a regular basis was void. The petitioner in writ petition
No. 2 of 1980 claimed that the seniority list of Speci:ilists prepared by the
State Government was contrary lo the rules and that the appointment of the
appellant in C.A. No. 2104 of 1980 and of respondents 2 and 4 in writ petition
c 288 of 1979 as Deputy Directors of Health Services was contrary to the provi-
sions of the 1974 Rules. It was contended that 1he appointments were also
vitiated because : (D the Departn1ental Promotion Committee constituted for
making appointment was not properly constituted because one of the members
of the committee the Principal Secretary to the Ch;ef Minister was unauthorised-
ly inducted into the Committee in place of the Secretary to the Government,
Health and Family Welfare Department, and (ii) that their confidential reports
D were written by an officer junior to them and who was an aspirant for promotion
to the higher post. The appointments or the Director or Health Services and
the two Deputy Directors having been made in haste immediately after the senio-
rity list was issued rendered the appointments void.

The petitioner in writ petition 2 of 1980 claimed that the inter se seniority
E between himself and the respondeats could not be disturbed at the time of
absorption in the Hima:::hal Pradesh Health Services having regard to the Punjab
Reorganisation Act and the protection given to the members of the Punjab
Service.

These two petitions were contested. It was contended by the State of
Himachal Pradesh that the petitioners in W.P. No. 288 of 1979 were appointed as
F Deputy Directors of Health Setvices only on ad hoc basis, that the post is a selec~
tion post which cannot be claimed as of right by persons appointed on ad hoc
basis by way of stop-gap arrangement. The incumbent to the post of Secretary,
Health and Fan1ily Welfare being on leave at the relevant period, the Principal
Secretary to the Chief Minister was appointed to function in his place as Secre~
tary to Government in the Departn1ental Promotion Committee, the constitution
of the Departmental Promotion Committee was perfectly valid. The annual
G confidential reports which were written by the junior officer who was working on
ad hoc basis, were not the only reports taken into account by the Departmental
Promotion Committee. The post of Director of Health Services was manned on
an ad hoc basis. Ad hoc appointments were necessitated by the absence of the
final seniority list which was prepared only on 2.11.1979 and since that impedi~
ment was over the Departmental Promotion Committee met on 3.11.1979 and
H orders of appointment to those selected by that Committee were issued on the
san1e day. Specialists were officers possessing post-graduate qualifications while
General Duty Officers were as a rule only graduates. The Rule making autho-
S.P. KAPOOR v. HIMACHAL 1045

rity divided the higher posts equalJy amongst the officers of !he two categories A
taking aII factors into consideration. Therefore, the claim for being considered
to the post of Director of Health Services is wholly untenable having regard to
Rule 9(3) of the Rules, which provides that only Deputy Directors should be
considered for pron1otion to the post of Director of Health Services.

On behalf of the Central Government it was contended that the Central
Health Service was constituted wilh effect from 9 9.1966 and the seniority of the 8
Medical Officers appointed to the service with effect from that date had been
determined to be that officers appointed to a grade under rule 7A of the Central
Health Services Rules 1963 as amended by the Central Health Service (Amend-
ment) Rules, 1966 will rank e11 bloc senior in that grade to those who may be
appointed to that grade under rule 8A. The officers of the Punjab Government
were appointed to the Central Health Service with effect from 1.11.1966 under

- rule SA. As these officers have come into the Central Health Service only after
the initial constitution of that service was over, it was not possible to assign
them seniority over the officers appointed at the initial constitution of the service.
c
The Government of Himachal Pradesh having proposed to formulate their own
Health Service and the Medical Officers who are to opt from the Central Health
Service are to be included in that service, those officers were asked to exercise
their option. Those officers who opted to join the proposed Himachal Pradesh
Health Service were given the benefit of past continuous service while fixing their
seniority in the Himachal Pradesh Health Service.
D

The High Court allowed the writ petitions and held (I) that the petitioners
therein being appointed as Deputy Directors on ad hoc basis cannot claim a right
to the post of Deputy Directors of Health Services or to seniority on the basis of
ad hoc appointment though then can add the period of such appointment in the
matter of experience for promotion and confirmation. (2) The Principal Secretary E
to the Chief Minister was appointed to function additionally as Secretary to
• Government, Health and Family Welfare Department as per office order dated
2.11.1979 and therefore the Departmental Promotion Committee had been pro.
perly constituted. (3) Seniority has to be determined on the basis of the date of
induction into the Central Health Service and not on the basis of the earlier
service.
F
Allowing the appeal to this Court,

HELD : 1. The High Court erred in holding that the inter se seniority has
to be determined only on the basis of the date of induction into the Central
Health Service and not with reference' to Rule 10(a)(iii) of the Rules. Inter se
seniority has to be determined only in accordance with Rule IO(a)(iii) of the Rules
and Dr. S.P. Kapoor would be senior to Dr. R.M. Bali who in turn would rank G
senior to Dr. Jiwan Lal. L1072 H, 1073 B]

Jn the instant case the Central Government was under an obligation to see
that in fairness and equity the seniority of officers drafted into the newly formed
State from the integrating States is properly fixed and that obligation has been
properly discharged by the Central Government. Dr. S. P. Kapoor had been H
appointed to the PCMS (Grade I) post on 29.11965 and he was inducted into the
Specialist Grade in the Cl!ntra\ H~alth Service with efiect from 1.11.1966 while
1046 SUPREME COURt kEl'ORtS [l 982J I s.c.R.

A Dr. R.M. Bali and Dr. Jiwan Lal who were in the Central Health Service on the
the date of its constitution on 9.9.1966 had been taken in. the Specialists Grade
and G.D.O. Grade I respectiveJy under the Central Health Service with effect
only from 9.9.1968. [lo72:F, 1068 CJ

Roshan Lal Tandon v. Union of India, (1968] I SCR 185, held inapplicable.

B N. Subba Rao etc. v. Union of India and Ors., (1973] I SCR 945 and C.P.
Damodaran Nayar and P.S. Menon v. State of Kera/a and others, (1974] 2 SCR
S67, referred to.

2. The annual confidential reports were initiated by an officer not only
junior, but also an aspirant for promotion to the higher post, and, therefore, such
confidential reports should not have been taken into consideration for further
a promotion. (1073 CJ

In the instant case it would not have been fair for the Departmental Promo-
tion Committee to take into account the annual confidential reports made by
-
Dr. Grover though they might have been revised by the higher authorities.[1073F]

3. The po~t-haste manner in which the Departmental Promotion Committee
Meeting was held on 3.11.1979 suggests that some higher~up was interested in
D pushing through the matter hastily when the regular Secretary, Health and Family
Welfare was on leave. The matter is therefore required to be considered afresh.
(1075 B]

In the instant case the Director of Health Services and Deputy Ditector of
Health Services were holding the posts on ad hoc basis from the year 1973. The
final seniority list was prepared only on 2.11.1979 and the Departmental Promo.
E tion Committee was constituted on 3.11.1979. The Joint Secretary, Personnel
Department had written the letter dated 3.11.1979 requesting the Principal Secre-
tary to the Chief Minister who was appointed additionally as Secretary of Health
and Family Welfare to attend the Departmental Promotion Committee Meeting •
at 3.00 p.m. on that day. There is room for suspecting the reason why the whole
thing was completed in haste on 3.Jl.1979 after the pr.:paration of the final
seniority list on 2.1 J.1979. The matter was not such as could not have been put
F off by a few days. Such rush is not usual is in any State Government.
(1074 C-D. 1075 A]

4. The High Court was right in finding that the Specialists had an advan·
tage for their category starting the roster by the senior-n1ost of the Specialists
•
having put in more number of years of qualifying service than the HPHS
(Grade l) Officers and that the Government was right in getting the roster started
G with Specialists instead of HPHS (Grade I) Officers. [1076 B-C]

Jn the instant case as Rule 9(4) did not provide the category with which the
roster may be started whether with HPHS (Grade I) Officers or Specialists, diffi-
culty arose. The Government, therefore, stepped in and supplemented the Rule
by directing that the roster may be started with the category of Specialists keep-
H ing in view che length of qualifying service in each of the two grades, namely
Specialists and HPHS {Grade I) Officers. This tbey were entitled to by Rule 21.
(1075 H, 1076 A]
S.P. KAPOOR v. lllMACHAL Waradarajan J.) 1047

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2104 of A
1980.

Appeal by special leave from the judgment and order dated
the 30th July, 1980 of the Himachal Pradesh High Court at Simla in
C.W.P. No. 2 of 1980.
B
WITH

CIVIL APPEAL NO. 2384 OF 1980

Appeal by special leave from the judgment and order dated
the 30th July, 1980 of the Himachal Pradesh High Court at Simla in c
C. W.P. No. 288 of 1979.

T.U. Mehta, S.K. Sabharwal. A. P. Mohanty and C.P. Pandey
for the Appellant m C. A. No. 2104/80 & for Respondent 2 in
C.A. No. 2384 of 1980.
D
G.L. Songhi, Vineet Kuma'I- and Ashok Kaul for the Appellant
in C.A. No. 2384 of 1980.

M.M. Abdul Khader and Miss A. Subhashini for the Respon-
dent : State
E
V.M. Tarkunde and C.M. NaJ ar for Respondent No. 5 in
. C.A. No. 2104 of 1980 .

The Judgment of the Court was delivered by

VARADARAJAN, J. These appeals by special leave are against F
the common judgment of a Division Bench of the Himachal Pradesh

• High Court rendered in Writ Petitions Nos. 2 of 1980 and 288 of
1979. They were heard together by us in view of this Court's
Order dated 6.11.1980. Writ Petition No. 288 of 1979 was filed by
Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur against the State of
Himachal Pradesh, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. K. G
Pandeya. Writ Petition No. 2 of 1980 was filed by Dr. R.M. Bali
against the State of Himachal Pradesh· and eight others including
Dr. Jiwan Lal, Dr. (Mrs.) Damyanti Kapur, Dr. S.P. KapoN and
Dr. K. Pandeya, who were respondents Nos. 8, 9, 6 and 7 respec-
tively in the Writ Petition. Dr. S.P. Kapoor, 1he appellant in C.A. H
No. 2104 of 1980 is the second respondent in Writ Petition No. 288
of 1979 and 6th respondent in W.P. No. 2 of 1980. Dr. Jiwan Lal,
1048 stJi>Rllldll COURT RBPOR ts [198ij l s.c.k.

A the appellant in C.A. No. 2384 of 1980 is the first prtitionet in W.P.
No. 288 of 1979 and 8th respondent in W. P. No. 2 of 1980.

Writ Petition No. 288 of 1979 challenged the reversion of Dr.
-
Jiwan Lal and Dr. (Mrs.) Damyanti Kapur, the petitioners therein,
from the post of Deputy Directors of Health Services, as illegal and
B violative of the conditions of service as also the provisions of the
Constitution of India. In Writ Petition No. 2 of 1980 Dr. R.M.
Bali prayed for quashing the seniority of specialists indicated in the
Office Memo dated 2.1I.I979 and Annexure PX- I containing the
list and for assignment of Serial No. I in the seniority list to him.
Dr. R.M. Bali prayed for certain other reliefs also including declara-
c tion of the appointment of Dr. S.P. Kapoor as Director of Health
Services as null and void and for his case being considered for
appointment to that post on the basis of the seniority prayed for
in his Writ Petition.

The case of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur,
D the Writ Petitioners in W.P. No. 288 of 1979, was that they were
appointed as Deputy Directors of Health Services on a regular basis.
The post of Deputy Director, Health Services was held by Dr. Ji wan
Lal for 4! years and by Dr. (Mrs.) Damyanti Kapur for about 3!
years. The appointment of Dr. S.P. Kapoor, the appellant in C.A.
No. 2104 of 1980 and Dr. R.M. Bali and Dr. K. Pandeya (respon-
E dents 2 and 4 in W.P. No. 288 of 1979) as Deputy Directors of
Health Services, is contrary to the provisions of the Himachal
Pradesh Health Services Rules, 1974 (hereinafter referred to as the
'Rules'). They were appointed in disregard of the rights of
Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur. The Depart-
mental Promotion Committee constituted for making the appoint-
F
ment was not properly constituted as· one of the members of
the Committee, namely, the Principal Secretary to the then Chief
Minister was unauthorisedly inducted into the Committee in the
place of the Secretary to Government, Health and Family Welfare
•
Department, Himachal Pradesh. Therefore, the proceedings of the ·•
'>
Committee are vitiated. The annual confidential reports of the
G
petitioners Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were
initiated by an officer who was not only junior to them but also an
aspirant f0r promotion to the higher post along with them. There-
fore, those confidential reports should not have been taken into
consideration for further promotion by the Departmental Promotion
H
Committee. The appointment of Dr. S.P. Kapoor, the appellant
in CA. No. 2104 of 1980, Dr. R.M. Bali and Dr. K. Pandeya, res-
S.P. KAPOOR v. HIMACHAL (Varadarajan, J.) 1049

pondents 2 and 4 in that Writ Petition was made in haste on A
3.11.1979 immediately after the final seniority list was issued on
2.11.1979. The appointment of Dr. S.P. Kapoor, the second respon-
dent in W.P. No. 288 of 1979 and appellant in C.A. No. :!104 of
1980 as Director of Health Services on the same day is illegal as he
did not satisfy the conditions prescribed in the Rules and he did not
have even the requisite qualifying service. Further the post of B
Director of Health Services must have been filled up from amongst
the Health Services Grade-I officers and not from amongst
Specialists. The reversion of Dr. Jiwan Lal and Dr. (Mrs.) Dam-
... yanti Kapur from the posts of Deputy Directors is illegal and viola-
tive of the conditions of their service as also the provisions of the
- Constitution of lne'.ia.
c
The case of Dr. R.M. Bali, the petitioner in W.P. No. 2 of
1980 was that he was appointed as T.B. Officer, T.B. Sanatorium,
Mandodhar, a Gazetted Class II post, with effect from 9.4.1955 and
he continued to work as such till 28.5. I 962. He was, thereafter,
appointed as Superintendent in that Sanatorium, a Class I post, and D
after joining the post he was selected for appointment on a regular
• basis through the Public Service Commission and he was confirmed
in that post, categorized as Category 'D' post and Class I post in
the Central Health Services, in 1966. The Medical and Health
Department of Himachal Pradesh Government appointed him as
Director of Health (T.B.), a Category 'D' post by a Notification
.. dated 1.7.1963. He was inducted into the Central Health Services
with effect from 9.9.1966 and included in the initial constitution of
that Service and confirmed in that Service on 9.9.1968. But Dr.
Grover, who has since retired, and Dr. S.P. Kapoor, who were res-
pondents 5 and 6 respectively in Writ Petition No. 2 of i980, were
F
appointed merely on a temporary basis to the Central Health Service
with effect from l .11.1966. The inter se seniority of Dr. R.M. Bali,
the petitioner in W. P. N,,. 2 of 1980 and Dr. Grover and S.P.
Kapoor in the Central Health Services (Specialists' Grade) had to
be preserved and could not be disturbed at the time of absorption
in the Himachal Pradesh Health Services having regard to the Punjab
G
Reorganisation Act and the protection given to the members of the
Punjab Service. In these circumstances, Dr. R.M. Bali prayed for
quashing of the seniority list of the cadre of Specialists indicated in
the Office Memorandum dated 2. \I. \979 (Annexure PX-I containing
in the list) and assigning to him Serial No. I in the seniority list.
,_ H
\ He also prayed for other reliefs including declaration of the appoint-
ment of Qr. s.P. Kapoor as Qirector of l:jealth Services 11s mill 11nc!
1050 SUPREME COURT REPORTS [1982] I s.c.R.

A void and for his appointment to that post on the basis of the revised
seniority claimed by him.

The contention of the Himachal Pradesh Government, the first
respondent in W.P. No. 288 of 1979 was that Dr. Jiwan Lal and
B Dr. (Mrs) Damyanti Kapoor were appointed as Deputy Directors of
Health Services on ad hoc basis. The Deputy Director's post is a
selection post which cannot be claimed as of right by persons apoint-
ed on ad hoc basis by way of stop-gap arrangement. The incumbent
to the post of Secretary to Government, Health and Family welfare

c
was on leave from the 3rd to 9th November, 1979 and the Principal
Secretary to the then Chief Minister was appointed to function in
his place as Secretary to Government in the Departmental Promotion
Committee by order dated 3.11.1979. The constitution of the
-
Departmental Promotion Committee was, therefore, perfectly valid.
The annual confidential reports written by Dr. Grover, who was
D working on ad hoc basis, were not the only reports taken into
account by the Departmental Promotion Committee. That Committee
did not take into account the reports of Dr. J. C. Sharma about the
work and conduct of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur.
The post of Director of Health Servic.s was manned on an ad hoc
basis since the retirement of Dr. Krishan Swarup in December 1973.
E The posts of Deputy Director also were manned on an ad hoc basis.
These ad hoc appointments were necessitated by the absence of the
final seniority list which was prepared only on 2.11.1979 and since
that impediment was over on 2. l l.19 79. the Departmental Promotion
.
Committee met on 3.11.1979 and orders of appointment to those
selected by that Committee on that date were issued on the same
F day. The promptness in making the regular appointments was
necessitated by the intention to make the regular appointment as
quickly as possible after the preparation of the final seniority list on
2.11.1979. Specialists are necessarily officers pJssessing post-gradu-
ate qualifications while G.D.Os. Class I are, as a rule, only graduates.
Therefore, the Rule making authority divided the higher posts equally
amongst the Officers of the two categories taking all factors into
c consideration. The appointment of Dr. S. P. Kapoor, the second
respondent in W.P. No. 288 of 1979 as Director of Helth Services is
valid. Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were not
Deputy Directors of Health Services on the date of selection of
Dr. S.P. Kapoor as Director of Health Services and, theref re, their
claim for being considered for promotion to that post is wholly
µntenal>Je having regard to Rule 9(3) of the Rules, according to
S.P. KAPOOR v. HIMACHAL (Vuradarajan, J.) 1051

which only Deputy Directors could be considered for promotion to A
the post of Director of Health Services.

The contention of the Hi machal Pradesh Government, the first
respondent in W.P. 2 of 1980 was that the post of Superintendent,
T.B. Sanatorium held by Dr. R.M. Bali, the petitioner in that Peti-
tion, was a junior Class I post until he was appointed to the Specia- B
list grade of the Central Health Services with effect from 9.9.1966.
Dr. Grover and Dr. S.P. Kapoor, respondents 5 and 6 respectively
in W.P. No. 2 of 1980 were appointed to the Specialists' grade in
the Central Health Services with effect from 1.11.1966 though the
Central Government kept the question of seniority open. Dr. R.M.

- Bali exercised his option to join the Himachal Pradesh Health Ser-
vice after a copy of the Rules was supplied to him. The final sen io-
rity of Dr. R.M. Bali and others was fixed under the provisions of
c

the Rule issued on 10.1.1974. Seniority assigned to Dr. R.M. Bali
is strictly in accordance with the provisions of Rule 10 (a) (iii) of the
Rules. The words "whichever is earlier" which occurred in the
original Rule 10 (a)(i) and 10 (a)(iii) were deleted by the Amend- D
ment Rules, 1966. The claim of Dr. R.M. Bali for seniority on the
• basis of his ad hoc appointment is not tenable .

The Central Government and Dr. S.P. Kapoor, respondents 2
and 6 in W.P. No. 2 of 1980 had also filed counter-affidavits oppos·
ing the Writ Petition. In the Central Government's counter-affida- E
. vit it is stated that Dr. R.M. Bali has been in the Specialist's grade
only from 9.9.1966 and that Dr. Grover and Dr. S.P. Kapoor were
appointed to the Specialists' grade on 1.11.1966 leaving the question
of seniority open. In the counter-affidavit of Dr. S.P. Kapoor
reference is made to Government of India's letter dated 9.7.1971
which deals with the fixation of seniority of medical officers of the F
Punjab Government absorbed in the Central Health Services in the
Himachal Pradesh Un ion Territory and states as follows. ;

"The Central Health Services was constituted with
effect from 9.9.1966 and the seniority of Medical Officers
G
appointed to the Service with effect from that date has been
determined in accordance with the principles laid down in
this Ministry's letter dated 27.7.1967. In accordance with
sub· para 1 of this memoranda Officers appointed to a grade
of the Central Health Services under Rule 7A of the Central B
Health Services Rules, as amended by the Central Health
Sevices Amendment Rules, 1966, will rank en bloc senior
1052 SU!'RfML cu\JRT l<Ul'OR'IS {1982] I s.c.k.

A in that grade under Rule 8 of the Central Health Services
Rules, 1963.

2. The Officers of the Punjab Government were
appointed to the Central Health Services with effect from
1.11.1966 under Rule 8(Al of the Central Health Services
B Rules, 1963. Those officers have come to the Central
Health Service only after the initial constitution of that
Service was over. In accordance with the principles laid
down for the Central Health Services it is not permissible to
assign them seniority in the Central Health Services over
the Officers apppointed to the Central Health Services at
c the initial constitution of the Service.

3. However, as the Government of Himachal Pradesh
--
have proposed to formulate their own Health Services and
the Medical Officers who opt from the Central Health
Services are to be included in that Service, those Officers
D may be asked to exercise their option. In case they chose
to remain as members of the Central Health Services their
seniority will be reckoned only at the maintenance stage of
the Central Health Services and they cannot get seniority in •
the Central Health Service on the basis of their prior service
under the Punjab Government. Those Officers who opt to
E join the proposed Himachal Pradesh Health Service may,
however, be given the benefi_t of their past continuous
service while fixing their seniority in the Himachal Pradesh ..
· Health Service. At the time of formation of that Service
these persons can be considered for inclusion in the initial
constitution of that Service and their seniority fixed bear-
F
ing in mind the principles mentioned in Shri A.D. Pande' s
D.O. Letter No. 22/5/67-SR(S) dated 14th February, 1967".
•
The learned Judges of the Himachal Pradesh High Court who
heard these two Writ Petitions and other \Vrit Petitions jointly found
G
that Dr. Jiwan Lal, Dr. S.P. Kapoor aod Dr. (Mrs.) Damyanti
Kapur were appointed as Deputy Directors of Health Services on
ad hoc basis in July 1975 and January 1976 respectively after the
Rules came into force on 19.1.1974, that it has not been contended
H by them that they had been appointed in accordance with the Rules
or after relation of the Rules, that Dr. Jiwan Lal, Dr. (Mrs.)
Dayanti Kapur and Dr. S.P. Kapoor were specifically appointed
S.P. KAPOOR V. Il!MAtIIAL (Varadarajan, J.) !OS3
on ad hoc basis and that, therefore, Dr. Jiwan Lal and Dr. (Mrs.) A
Damyanti Kapur cannot claim right to the post of Deputy Directors
of Health Services or to seniority on the basis of their ad hoc appoint·
ments, though they can add the period of such appointment in the
matter of experience for promotion and confirmation in view of the
addition of notice to Rule 9 of the Rules.
B
Regarding the attack on the constitution of the Departmental
Promotion Committee, the learned Judges found that when the
regular Secretary to the Government, Health and Family Welfare
Department, was on leave, the Principal Secretary to the then

- Chief Minister was appointed to function additionally as Secretary
to Government, Health and Family Walfare Department, as per
Office Order dated 2. l l.l979 and, therefore, the Departmental
c
Promotion Committee has been properly constitututed. Regarding
the question whether seniority in the Himachal Pradesh Health
Service is to be determined with reference to the date of joining the
Central Health Service or with reference to the date of joining the
Punjab Civil Medical Service, Grade I [in short PCMS (!)] with
0
Post- Graduate qualifications on the date of appointment as Deputy
Medical Superintendent/Resident Medical Officer/Surgical Specialists,
Ripon Hospital from the date on which they were given the PCMS
scale, the learned Judges of the High Court found that the Central
Health Service was constituted by the Central Government and the
E
Health Service Rules, hereinafter referred to as the "Central Rules",
framed by the President of India, in exercise of the powers con-
ferred by Article 309 of the Constitution of India, came into force
with effect from 15.5.1963 and that the Central Rules were amended
by the Certral Health Services (Amendment) Rules, 1966. Before
.... the Punjab Reorganisation Act came into force the State of Punjab
F
had its own Health Service known as the PCMS with two grades,
Grade I and Grade II. After the Punjab Reorganisation Act came
into force, and the Central Health Service was formed, some per-
sons belonging to the PCMS and some persons working as Medical
•
)

Officers in hospitals run by Local Bodies were inducalted into that
into that Service after they had exercised their option to be inducted
G
therein. The Writ Petitioners and contesting employees-respondents
had been inducted into the Central Health Service after they had
exercised their option. When the Himachal Pradesh Union Territory
was in existence, its Health Department was manned by Officers of
the Central Health Service, But after Himachal Pradesh became a H
full-fledged State, the Himachal Health Service was constituted on
24.1.1974 under the Himaehal Pradesh Health Service Rules, which
1054 SUPRBME COURT RBPORTS [1982] I s.C.ll.

A came into force on 19.1.74 and the members of the Central Health
Service serving in the erstwhile Himachal Pradesh Union Terri-
tory were asked to exercise their option to continue in the new
Himachal Pradesh Health Service. The writ petitioners and the
contesting employees-respondents exercised their option to conti-
nue in the Himachal Pradesh Health Service. The question for
8
consideration was the basis on which seniority in the Himachal
Pradesh Health Service is to be determined, namely, whether it is
with reference to the date of entry into the Central Health Service '
or into the PCMS (I) with post-graduate qualifications or the date
of appointment as Deputy Medical Officer/Surgical Specialists, .,.
Ripon Hospital from the date on which they were given PCMS
c scales According to Rule 4 of the Himachal Pradesh Health Ser-
vice Rules, which relates to classification, categories and scales of
pay, there are two wings in the Himachal Pradesh Health Service,
namely, the General Wing and the Teaching Wing, which are inde-
pendent and not inter-changeable except in regard to certain posts.
The writ petitions had nothing to do with any of the Officers in the
D
Teaching Wing. The General Wing has six categories, each having
grades as specified in the table annexed to the Rules. We are con- ._
cerned in these appeals with Specialists and Grade I Officers. The
Officers who were concerned with the writ petitions were Specialists
on the one hand and Himachal Pradesh Health Service Grade I
E Officers on the other in respect of whom seniority is to be fixed on
a separate basis. Under the Himachal Pradesh Health Service
Service Rule IO relating to fixation of seniority, inter se seniority of .
departmental candidates absorbed under Rule 7 and 8 shall be
determined under Ruie IO (a) (ii) as regards (i) Himachal Pradesh
F Health Service Grade I Officer& from the date of regular appoint-
ment having been duly selected by the Union Public Service, Punjab
Public Service Commission and Himachal Pradesh Public Service
Commission and or by a regular Departmental Promotion Com-
mittee in the grades of (i) PCMS (I) and (ii) G.D.O. Grade I, and
G under Rule 10 (a) (iii) as regards (ii) Specialists from the date of
regular appointment having been selected by the Union Public
Service Commision, Public Service Commission and Himachal
Pradesh Public Service Commission and or by a regular Depart-
mental Promotion Committee in the following grades, namely (i)
...
Specialists (Central Health Service), (ii) PCMS (I) with post-graduate
qualifications and (iii) Deputy Medical Superintendent/Resident Medi-
S.P. KAPOOR v. HIMACHAL (Varadarajan, J.) 1055

cal Officer/Surgical Specialists, Ripon Hospital from the date on A
which the scale of PCMS (I) was given to them. It was admitted
that as alleged in W.P. No. 2 of 1980, Dr. R.M. Bali was inducted
into the Central Health Service on a regular basis only on 9.9.1966
and Dr. Grover and Dr. S.P. Kapoor, respondents 5 and 6 in that
Writ Petition, were inducted into the Central Health Service only
with effect from J.11.1966 and, therefore, Dr. R.M. Bali was senior B
to Dr. Grover and Dr. S. P. Kapoor in the Central Service.
Dr. R. M. Bali and Dr. S. P. Kapoor were both specialists.
S. P. Kapoor contended before the High Court that he
• had been seleeted by the Punjab Service Commission on 29.1.1965
and had post-graduate qualifications when he was inducted into the
Central Health Service. But Dr. R.M. Bali contended that he was c
entitled to seniority from 1.6.1962 when he was appointed as T.B.
Specialist at Mandodhar on an ad hoc basis or at least from
3 l.3.1964 when he was regularly appointed after selection by the
Union Public Service Commission. In Rule 10 (a) (iii) the words
"whichever is earlier" which were originally found have been deleted D
retrospectively by an amendment as stated earlier. The learned
Judges of the High Court held that seniority has to be determined
on the basis of the date of induction into the Central Health Service
and not on the basis of the earlier service if any, in the PCMS
though they have observed that the words "whichever is earlier"
which occured in the Himachal Pradesh Health Service Rule 10 (a)
(iii) were omitted retrospectively in order to do justice in the matter
E
.. of seniority to those doctors who came into the Himachal Pradesh
Health Service from any local authority or PCMS and not from
the Central Health Service. They have fixed the seniority of
Dr. R.M. Bali above Dr. S.P. Kapoor on the basis that the former
was inducted on 9.9.1966 and the latter was inducted on 1.11.1966
into the Central Health Service and held that Dr. D.S. Chauhan's
F
seniority is rightly reflected in the Specialists' grade, and they
directed modification of the seniority of Doctors in the Specialists'
grade in accordance with their decision, namely, on the basis of
date of induction into the Central Health Service.
G
Regarding writing of the annual confidential reports by
Dr. Grover and Dr. J.C. Sharma, the contention of the Himachal
Pradesh Government in W.P. No. 2 of 1980 was that Dr. Sharma's
reports were not taken into consideration, that Dr. Grover's reports
were revised, sometimes with additional remarks in favour or against H
\ the incumbents, by the higher authorities and that his reports were
not the only reports which were taken into consideration by the
1656 SUPREME COURt REPORts (198i) j S.C.R.

A Departmental Promotion Committee in November 1979. The learned
Judges of the High Court accepted that contention of the first
respondent and held that no prejudice has been caused to the writ
petitioners while the annual confidential reports were considered by
the Departmental Promotion Committee on 3.11. I 979. They quashed
the seniority list of Specialists prepared on 2.11.1979 as well as the
B notification dated 3.11.1979 appointing Dr. S.P. Kapoor, the
appellant in C.A. No. 2104 of 1980, Dr. K. Pandeya and Dr. R.M.
Bali as Deputy Directors (super-time Grade II-General) and
Dr. S.P. Kapoor as Director. Health Services (Super-time Grade 1-
General) and directed the State Government to make the appoint-

c
ments to these posts on the basis of the modified seniority list to be
prepared in accordance with the directions given in their judgment.
They disposed of Writ Petitions Nos. 288 of 1979 and 2 of 1980 as
-
indicated above and directed the parties to bear their respective
costs.
7
The Himachal Pradesh Union Territory was constituted on
D 1.11.1966. On and from the appointed day, which in the present
case is l.l l.1966, Simla, Kangra, Kulu and Lahaul and Spiti districts
and certain other areas in the original State of Punjab became parts
of that Union Territory under s. 5 of the Punjab Reorganisation
Act (Central Act) 1966. The Central Rules, 1963 came into force
on the appointed day and were later amended by the Central Health
E Service (Amendment) Rules 1966. These Rules, as amended, are
found on pages 336 to 346 of the paper-hook in C.A. No. 2104 of
1980. The Central Health Service was constituted only with effect
from 9.9.1966. This is clear from the letter dated 9.7.1971 from the
Ministry of Health and Family Planning (Department of Health)
Government of India, addressed to the Secretary to Government
F (Medical and Health Department), Himachal Pradesh to which
detailed reference will be made later in the course of this judgment.
Dr. R.M. Bali was regularly appointed in the specialist's grade of
the Central Health Service on probation with effect from 9.9.1966
alongwith certain others, pursuant to the power conferred by Rule
7A{l) of the Central Rules, as amended in 1966, by the President's
G Order No. 1-3/67-CHS II dated 8.6.1967. At that time Dr. R.M.
Bali was working as a Specialist in the T. B. Sanatorium, Mandho-
dhar, Himachal Pradesh Union Territory, a category 'D' post, having
been appointed on the recommendation of the Union Public Service
Commission. According to the counter-affidavit filed on behalf of the
H Himachal Pradesh Government in W.P. No. 2 of 1980, the post of ./
s P. KAPOOR v. HIMACHAL (Varadarajan, J.) 1051

Superintendent, T.B. Sanatorium, Mandodhar \•,as a Junior Class I A
post at that time. It has been up-graded subsequently. Dr. Jiwan Lal
was appointed substantively on 21.12.1946 as Assistant Surgeon
(Grade I) and had been promoted as the Chief Medical Officer in
the Civil Surgeon's grade on 1.7.1958. According to paragraph 3 of
the counter-affidavit filed by Dr. Jiwan Lal in S.L.P. (Civil) No. 6574
of 1980, he was appointed under rule 7A(l) (b) of the Central Rules, B
as amended in 1966, to a post in the category of G.D.0, Grade I on
9.9.1966 before the constitution of Himacba! Pradesh Union Terri-
tory and was confirmed in the post on 9.9. 1968 after the constitu-
tion of that State. Dr. R.M. Bali and Dr. Jiwan Lal were allotted
to Himachal Pradesh Union Territory on its constitution. On the
c
- recommendation of the Punjab Public Service Commission, Dr. S.P.
Kapoor was appointed by the Governor of Punjab as officiating
Senior Medical Officer against the up-graded post of PCMS (Class I)
by Memo No. 177-4-HBl-65 dated 7.1.1965 with a direction to join
t'1e new assignment within a fortnight, which he did on 29.1.1965,
and he was put on probation for a period of two years with effect
from the date of taking charge of the post. After joining the post u
as per that order, Dr. S.P. Kapoor was serving at a station which

• was in the territory of the former Punjab State prior to the date of
its organisation, which later became part of the Himachal Pradesh
Union Territory under section 5 of the Punjab Reorganisation Act,
1966 as mentioned above. During the period of his probation he
had to come into the Central Health Service on the constitution of E
Himachal Pradesh Union Territory on J .l l.1966 as he was allotted
to that State and had been selected by the Union Public Service
Commission in the same manner as Dr. R.M. Bali had been selected.
Thus, all the three individuals, Dr. R.M. Bali, Or. Jiwan Lal and
Dr. S.P. Kapoor came to be in the Central Health Service on the
constitution of Himac:ial Pradesh Union Territory on 1.11.1966. F
Dr. S.P. Kapoor was appointed to to Specialists' Grade in the Cen-
tral Health Service alung with Dr. Grover and two others under
Rule 8A of the Central Rules as amended in 1966 by the President's
Order No. F.32/48/65.CHS-Il (V. II) dated 26.8.1970 with effect
from 1.11.1966. Dr. R.M. Bali was appointed along with another
G
to the Specialists' Grade in the Central Health Service with effect
from 9.9.1968 by the President's Order No. F. 32-1(6)/70-CHS III
dated 27.1.1971.

The full fledged Himachal Pradesh State was formed under H
Section 3 of the State of Himachal Pradesh Act ?3 of 1970, a Cell-
1058 SUPREME COURT REPORTS [1982] I s.c.R.

A tral enactment, on and from the appointed day, 25.1.1971, and it
comprised the Himachal Pradesh Union Territory. The Rules
(Himachal Pradesh Health Service Rules) came into force on
19.1.1974. Consequent on the exercise of option for being absorbed
in the Himachal Pradesh Health Service on the terms and conditions
stipulated in the Rules and keeping in view the recommendations
B
of the Screening Committee appointed under Rule 7 of those Rules,
the Governor of Himachal Pradesh appointed Dr. Grover, Dr. S.P.
Kapoor, Dr. R.M. Bali and Dr. D.S. Chauhan as Specialists on the
General Side and Dr. K. Pandeya, Dr. Jiwn Lal, Dr. Jyoti Prasad
and Dr. (Mrs.) Damyanti Kapur as Himachal Pradesh Grade I
c Officers with effect from 24.1.1974 by his order No. 1-15/75-H&FP
dated 9.6.1975 in the categories to which they had been appointed
prior to the commencement of the Rules as amended. In that order
relating to seven Specialists and four Himachal Prashdesh Health
Grade I officers, Dr. Grover. Dr. S.P. Kapoor, Dr. R.M. Bali and
D Dr. D.S. Chauhan are ranked as Nos. 2, 3, 6 & 7 respectively among
Specialists while Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur are
ranked later as Nos. 2 and 4 respectively amongst Himachal Pradesh
Health Service Grade I Officers. This was after the Governor of
Himachal Pradesh, in view of the Central Government's concurrence
to the transfer of the Officers of the Central Health cadre to the
E Himachal Pradesh Health Service and on the recommendations of
the Screening Committee constituted under Rule 7 of the Rules,
appointed nine Doctors as Professors on the Teaching Wing, 19
Doctors as Specialists in the Teaching Wing, IO Doctors including
S.P. Kapoor and Dr. R.M. Bali as Specialists on the General Side
.
and Dr. K. Pandeya and Dr. Jiwan Lal as Himachal Pradesh Health
F Service Grade I Officers by his Order No. 1/15/75-H&FP dated
9.6.1975. As stated earlier, we are not concerned in these appeals
with any of the Doctors on the Teaching Wing. In that Order dated
9.6.1975 also Dr. Grover, Dr. S.P. Kapoor and Dr. R.M. Bali are
ranked as Nos. 2, 3 and 6 respectively amongst the General Side
Specialists while Dr. Jiwan Lal is ranked later as No. 2 ond below
Dr. K. Pandeya amongst the Himachal Pradesh Health Service Grade
G I Officers. Thus it is seen that Dr. S.P. Kapoor and Dr. R.M. Bali
are Specialists ·on the General Side and that Dr. Jiwan Lal and
Dr. (Mrs.) Damyanti Kapur are Himachal Pradesh Health Service
Grade I Officers.

The Hemachal Pradesh Government, by Order No. HFW /B-
(9)-7/78 dated 19.8.1978 9onfirmed Dr. Grover and Dr. S.P. Kapoor,
S.P. kAPOOk v. HIMACHAL (Varadorajan J.) JO:)<)

who originally belonged to the Punjab Civil Medical Service, with A
effect from 27.4.1964 and 29.1.1965 respectively and Dr. R.M. Bali
who came originally from the Central Health Service with effect from
9.9.1966 and certain others with effect from 24. l.1974, leaving the
question of seniority open.

Prior to 2.11.1979, Dr. S.P. Kapoor, Dr. K. Pandeya, Dr. R.M. B
Bali, Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were working
as Deputy Directors, Health Services in the Himachal Pradesh Health
Service on ad-hoc basis and Dr. Grover was working as Director of
• Health Services on ad·hoc basis during 1975 to 1977. Dr. K. Pandeya

- replaced Dr. Grover as Director of Health Services on ad-hoc basis
in June 1978 by the Govesnment's Order No. l-15/74·HP (Apptt)
dated 8.6.1978. This fact, mentioned by Mr. Mehta, learned counsel
appearing for Dr. S.P. Kapoor in the course of the arguments, was
c

not disputed by Mr. V.M. Tarkunde, learned counsel appearing for
Dr. R.M. Bali and Mr. G.L. Sanghi, learned counsel appearing for
Dr. Jiwan Lal. On 2.11.1979 the final seniority lists of Specialists
and Grade I Officers in the Himachal Pradesh Health Service as on D
• 1.1.1979 were published by the Himachal Pradesh Government's
Order No. HPW-B(9)-2/77 dated 2.11.1979. In the List relating to
eight Specialists, Dr. Grover, Dr. S.P. Kapoor, Dr. R.M. Bali and
Dr. D.S. Chauhan are ranked as Nos. 1, 2, 3 and 5 respectively
while in the List relating to 79 Grade I Officers, Dr. K. Pandeya,
Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur are ranked as Nos.I, E
2 and 3 respectively. Now, Dr. Grover and Dr. K. Pandeya are
stated to have retired. On 3.11.1979, the Departmental Promotion
Committee constituted under Rule 2(g) of the Rules, the constitution
of which is attacked by Mr. Mehta, Mr. Tarkunde and Mr. Sanghi,
recommended on the basis of the said final seniority lists, the appoint-
ment of Dr. S.P. Kapoor, Dr. K. Pandeya and Dr. R.M. Bali as
F
~ Deputy Directors of Health Services and Dr. S.P. Kapoor as Director
of Health Services in the place of Dr. K. Pandeya. On the same day,
they were appointed as such by the Government's Order No. Health-
f'
Kb(9)4/79 dated 3.11.1979. On the same day Dr. Jiwan Lal and
Dr. (Mrs.) Damyanti Kapur were reverted with immediate effect to
Himachal Pradesh Grade I posts by the Governor's Order
G
No. Health-B(9)4/79 and Dr. S. P. Kapoor was promoted as Director
of Health Services by the Government's Notification No. 171002
and put on probation for a period of two years. It is stated in that
Notification that orders of posting of Dr. K. Pandeya,presently offici-
H
\ ating as Director of Health Services purely on a temporary basis,
will be issued by the Secretary (Health and Family Welfare) to the
1060 SiJPllEME COURT REMRTS [19821 1 s.c.tt.
A Government of Himachal Pradesh separately. The correctness of
these seniority lists and orders of appointments were challenged in
the Writ Petitions. The writing of the annual confidential reports
by Dr. Grover and Dr. J.C. Sharma, the constitution of the Depart-
mental Promotion Committee, and 1he rotation of Specialists in
preference to Himachal Pradesh Grade I Officers for appointment as
B Director of Health Services on the admitted 50 : 50 basis were also
questioned in the Writ Petitions. There is no dispute that the basis
for selection of the Specialists and Grade I Officers as Director of
Health Services is 50 : 50.

The learned Judges of the High Court held that seniority has
•
c to be determined on the basis of the date of mduction into the
Central Health Service and not on the basis of the earlier induction
into the Punjab Civil Medical Service though they have observed
that the words "whichever is earlier" which occurred originally in
Rule 10 (a) (iii) of the Rules were omitted retrospectively in order to
do justice in the matter of seniority to these Doctors who came into
0 the Himachal Pradesh Health Service from any local authority or the
Punjab Civil Medical Service and not from the Central Health Service.
On that basis they have fixed the seniority of Dr. R.M. Bali above
Dr. S.P. Kapoor on the ground that the former was inducted on
9.9.1966 and the latter was inducted on 1.11.1966 into the Central
Health Service and found that the seniority of Dr. D.S. Chauhan is
E rightly reflected in the Specialists' Grade. They have directed modi-
fication of the seniority of Doctors in the Specilists Grade in accor-
dance with their judgment; namely, on the basis of the date of induc-
tion into the Central Health Service. Regarding writing of the
annual confidential reports by Dr. Grover and Dr. J.C. Sharma, the
F
learned Judges of the High Court accepted the contention put for-
ward by the Himachal Pradesh Government in the counter-affidavit
filed in W.P. No. 2 of 1980 that Dr. Sharma's reports were not taken
-
into consideration that Dr. Grover's report were revised, sometimes
with additional remarks, in favour or against the incumbents by the
higher authorities and that his reports were not the only reports that
were taken into consideration by the Departmental Promotion
G
Committee in November 1979 and held that no prejudice has been
caused to the Writ Petitioners while the annual confidential reports
were considered by the Departmental Pramotion Committee. The
learned Judges have not expressed any view regarding the attack on
the Departmental Promotion Committee. On the question of rota-
H
tion and selection of the Specialist as Director of Health Services in
preference to Grade I Officers, the learned Judges of the High Court
S.P. KAPOOR v. HIMACHAL (Varadarajan, J.) IG61

held that the Rules are silent on the question as to which category A
should be chosen first and they accepted the contention of the
Himachal Pradesh Government that the Government had power
under Rule 21 of the Rules to supplement the same by providing for
starting the roster with the category of Specialist c>n the ground
that the senior most of the Specialists had on the date of meeting of
of the Departmental Promotion Committee, namely, 3.11.1979, put B
in gr_eater length of qualifying service than the senior-most officer of
the Himacbal Pradesh Health Service Grade I officers and that the
Government, therefore, started the roster rightly with the category of
40 Specialists keeing in view the length of qualifying service in each of
grades, namely, Specialists and Himachal Pradesh Service Grade I
Officers. c
Mr. Mehta, appearing for Dr. S.P. Kapoor, contended that
having regard to Rule 10 (a) (iii) of the Rules and the fact that
Dr. S.P. Kapoor had been appointed as PCMS Grade I Officer by
the Punjab Government on 29.8.1965, long before Dr. R.M. Bali
and Dr. Jiwan Lal came into Central Health Service on 9.~.1966 D
and that Dr. S.P. Kapoor had been appointed as a Specialist in the
Central Health Service with effect from 1.11.1966 while Dr. R.M.
Bali had been appointed in the Specialists' Grade only with effect
from 9.9.:968, Dr. S.P. Kapoor is senior to both Dr. R.M. Bali and
Dr. J iwan Lal in the Himachal Pradesh Health Service though he
would undobtedly be junior to Dr. R.M. Bali and Dr. Jiwan Lal in
E
the Central Health Service as he had come to that Service only on
1.11.1966 while those two individuals had come into that Service
on 9.9.1966. But Mr. Tarkunde, appearing for Dr. R.M. Bali and
Mr. Sanghi, appearing for Dr. Ji wan Lal, contended that the basis
of seniority has been rightly determined by the learned Judges of the
F
High Court, and Mr. Sanghi submitted that in the List Dr. Jiwan
Lal will come first and that if Dr. R.M. Bali is held to be senior,
Dr. Jiwan Lal would rank next to him.
I
f Mr. Pantle, the then Joint Secretary, Home Affairs, Govern-
ment of India had stated in bis D.O. Letter No. 22/5/67-67-SR (S) G
dated 14-2-1967 addressed to the Chief Secretary, Himachal Pradesh
Government (Union Territory), that the Central Government has
already informed the Chief Secretary by letter dated 17.11.1966 that
the allocation of the Government servants among the States of
of Punjab, Haryna and Himachad Pradesh and Chandigarh, which H
had already been made provisionally under S. 82 (b) of the P1mjab
Reorganisation Act, are to be finalized by the end of February, 1967.
1062 SUPREME COURT REPORTS [ J 982] I S.C.R

A He had requested the Chief Secretary for action for integration of
the service being initiated soon after the finalisation of the allocation
and bad stated that it involves two steps, namely (I) determination
of the equivalent posts and (2) determination of the relative seniority
of persons holding equivalent posts but drawn from different inte-
grating units. It is also stated in that letter that while determining
B the relative seniority as mentioned above, it may also be borne in
mind that inter·se seniority of officers drawn from the same inte-
grated unit should, as far as possible, be maintained. He had further
stated in that letter that as the Chief Secretary is aware that Sec-
tion 82 (4) of the Punjab Reorganisation Act casts responsibility on
the Central uovernment for ensuring fair and equitable treatment
to all the officers affected by the provisions of that Act.

The Ministry of Health and Family Planning (Department of
4

-
Health), Government of India wrote, the letter dated 9.7.1971 to
the Secretary to the Government, Medical and Health Department
Himacbal Pradesh regarding fixing of seniority of the Medical Offi-
cers of the Punjab Government absorbed in the Central Health
Service in Himachal Pradesh as in the case of Dr. S.P.
Kapoor. Unfortunately, the learned Judges of the High Court have
not referred to this letter, which is strongly relied upon by
Mr. Mehta, in their judgment. Mr. Tarkunde submitted that this
letter was not relied upon before the High Court. That letter can-
not be ignored. It is stated in that letter thus :
.
"The Central Health Service was constituted with effect
from 9.9.1966 and the seniority of the Medical Officers
appointed to this Service with effect from that date, has
been determined in accordance with the principles laid
down in this Ministry's O.M No. 5 (II)-/67-CHSI
dated 22. 7.1967. In accordance with sub-para l of this
Memorandum, officers appointed to a grade of the Central
''
Health Service under Rule 7A of Central Health Service
Rules, 1963 as amended by the Central Health Service
G
(Amendment) Rules, 1966, will rank enbloc senior in that
grade to those who may be appointed to that grade under
Rule SA of the Central Health Service Rules, 1963.

The Officers of the Punjab Government were appointed
H
to the Central Health Service with effect frolll l.11.1966
S.R. KAPOOR V, l!IMACHAL (Varadarajan. J.) 1063

under Rule SA of the Central Health Service Rules, 1963, A
As these Officers have come into the Central Health Service
only after the initial constitution of that service was over,
in accordance with the principles laid down for the Central
Health Service, it is not permissible to assign them seniority
in the Central Health Service over the officers appointed to
the Central Health Service at the initial constitution of the B
Service.

. However, as the Government of Himachal Pradesh
have propposed to form their own Health Service and the
Medical Officer who are to opt from the Central Health
c
- Service are to be included in that Service, these Officers may
be asked to exercise the option first. In case they choose
to remain as members of the Central Health Service, their
seniority will be ranked only at the maintenance stage of
the Central Health Service and they cannot get seniority in
the Central Health Service on the basis of their prior ser·
vice under the Punjab Government. Those officers who D
opt to join the proposed Himachal Pradesh Health Service
may, however, be given the benefit of their past continuous
service while fixing their seniority in the Himachal Pradesh
Health Service. At the time of formation of that Service
these persons can be considered for inclusion in the initial
constitution of that service and their seniority fixed bearing
E
in mind the principles mentioned in Shri A.O. Pande's
D.O. letter No. 22/5/67-SR (S) dated 14th February,
1967."

We think that this stand of the Central Government in regard
F
to seniority of Officers who came into the Central Health Service at
the initial constitution of that Service vis a vis those who came into
that service after initial constitution of that service is correct and
the only stand that could be reasonably taken in the circumstance
of the case. It would not be proper for anyone who came into
that Service after it bad been constituted, to ask for seniority over G
those who were in that Service on the date of its initial constitution
on the basis of their earlier appointment before they came into the
Central Health Service after its initial constitution.

Before the Rules were framed there was a meeting of officials H
on 24.1.1972 to consider the question as to qow $el!iority of offi~er~
1064 SUPREM~ COUl\T REPORTS [1982] l s.c.K.

A who were already in the Central Health Service, having been appoint-
ed to that Service under Rule 7A of that Central Health Service Rules
at the initial constitution of the service and of officers of the erst-
while Punjab Government who were appointed in the Central Health
-
Service with effect from l. l l.1966 should be fixed. The minutes of
that meeting are found at pages 285 to 287 of the paper-book relat-
B ing to C.A. No. 2104 of 1980. It is seen from those minutes that in
that meeting Mr. T.V. Menon of the Ministry of Law, Central
Government, evidently on the basis of the aforesaid letter dated
9.7.1971 of the Ministry of Home Affairs, Health and Family Plann-
ing addressed to Secretary to Government, Himachal Pradesh, stated
that :
•
"As the Government of Himachal Pradesh proposes
to form a separate Himachal Pradesh Health Service, it is
well within the right of the Himachal Pradesh Government
to frame Rules and Regulations to govern the service con-
ditions of officers who might be appointed to that Service
D
including their seniority. The only safeguard that should
be taken is that these rules and principles of senoirity should
be circulated among all the officers and their option obtai-
ned in writing either to join the Hirnachal Pradesh Health
Service or to remain in the Central Health Service. The
E Governmen of Himachal Pradesh need not be bound by
the Rules and Regulations governing Central Health
Service Scheme in respect of the provisions that might
be made in the Himachal Pradesh Health Service. The
Government of Himachal Pradesh may lay down any
principles that may be acceptable to the officers con-
F cerned keeping in view the principles of equity and
justice."

Rule 4 of the Rules relates to classification, categories and
scales of pay and reads as follows :

G "4. Classification, categories and scales of pay and read; as
follows :

(I) The Himachal Pradesh Health Service Carde will consist

e of the two wings namely the General Wing and the
Teaching Wing. These two wings of the service shall ~

I
S.P. KAPOOR v. HIMACHAL (Varadarajan, J.) 1065

be independent of the each other and posts will not be
inter changeable at any stage, except the posts which
carry a scale of Rs. 400-1100 or a pay scale lower than
that which are included in the service. There shall
be six categories in Health Wing; (General) and four
categories in Health Wing (Teaching). Each category B
shall cons1st of the grades specified in column 2 of
the table below :

-
(2) The scales of pay and classification of such grades shall be
specified in corresponding entries in columns 3 & 4 of
c
the said tables.

General Sr. Categories Scales of pay Classification D
Wing No.

I. Super time Grade-I 2250-125-2500 Class-I
including NPA
E
2. Super time Grade- 1800-100-2000 Class-I
II including NPA

3. Specialists 900-50-1150/50-1300 Class I

k
4. Himachal Pradesh
Health Service,
900-50-1150/50-1300 Class-I '
Grade-I.
}
5. Himachal Pradesh 400-30-700/40-1109 Class-II G
Health Services,
Grade-II.

Amend· 6. Dental Surgeonn 400-30-700/40-1100 Class-II
ment H
Eight•II
1'066 SUPREMB COURT REPORTS (I 982! I s.c.lt.
A Note : Two Selection Grade posts one each for Himachal (
Pradesh Health Services Grade-I and specialists shall
be in the pay scale of Rs. 1800- 100-2000 (inclusive
of N.P.A.)

I.I
Note-II: See amendment sixth and eighth (T!I).

Teach- 1. Principal/Professors 1300-30-1600-100-1800 Class-I
ing Wing _.

c 2. Specialists Grade -
Associate Prof./ 900-50-1150/50-1300 Class-I

Asst!. Professor
D 3. Asst!. Professor 900-50-1150/50-1350 Class-I
(Dental).

Amend- 4. Asst!. Surgeon 450-30-660-EB-40· Class-I
ment (Dental). 1!00-50-1250
E Eight-VI

The special pay attached to various posts is as under : -

(I) Principal (Medical College) Rs. 100/- PM
F
(2) Assistant Professor Rs. JOO/- PM ...
(3) Officers appointed as Chief Medical Rs. 100/- PM
Officers ''

Rule IO(a) mentions about how seniority of departmental condi-
dates absorbed under Rules 7 and 8 shall be determined and reads
as follows:

ff "JO. Fixation of Seniority. I
.
S.P. KAPOOR v. HIMACHAL (Varadarajan, J.) 1067

(a) The inter-se-seniority of departmental candidates A
absorbed under rule 7 and 8 shall de determined as
+ follows:-

(i) .................................................................. .
B
(ii) Himachal Pradesh Health Service Grade- I from
, the date of regular appointment having been duly
selected by the Union Public Service Commission,
Punjab Public Service Commission and Himachal
Pradesh Public Service Commission and or by a
regular Departmental Promotion Committee c
{whichever is earlier) in the following grades :-

P.C.M.S. I.

G.D.O.Gr. I.
D
(iii) Sepecialists-From the date of regular appointment
having been duly selected by Union Public Service
Comn1ission, Punjab Public Service Co1nmission
and Hirnachal Pradesh Public Service Commission
and or by a regular Departmental Promotion E
Committee (whichever is earlier) in the following
grades :-

I. Specialists (C.H.S.)
F
2. P.C.M.S.I. (with post graduates qualifications)

3. Deputy Medical Supdt./Resident Medical
Officers/Surgical Specialists, Ripon Hospital
from the date the scale of P.C.M.S.I. was
given." G
It would appear from Rule IO (a) (ii) that so far as Hirnachal
Pradesh Health Service-Grade I officers are concerned, seniority will
have to be recknoned from the date of regular appointment having
been duly selected by the Union Public Service Commission and H
Himachal Pradesh Public Service Commission and or by regular
Departmental Promotioll Committee i11 the followin!l grades,
1068 SUPREME COURT REPORTS (1982] J S.C.R.

A namely, PCMS-Grade I and GDO Grade I and that so far as Specia
lists are concerned, their seniority will count from the date of regu-
lar appointment having been duly selected by the Union Public Ser-
vice Commission, Punjab Service Commission, Himachal Pridesh
Public Service Commission and or by regular Departmental Promo-
tion Committee in the following grades namely, (!) Specialist (CHS);
B (2) PCMSI (with post graduate qualifications) and (3) Deputy Medi-
cal Superintendents/Resident Medical Officers/Surgical Specialists,
Ripon Hospital from the date on which the scale of PCMS (I} was
given to them. It has been seen above that Dr. S.P. Kar,oor has been
appointed to the PCMS (Grade I) post on 29. LI 905 and he was _.
inducted into the Specialists, grade in the Central Health Service with
c effect from 1.11.1966 while Dr. R.M. Bali and Dr. Jiwan Lal, who
were in the Central Health Service on the date of its constitution on
9.9.1966 had been taken in the Specialists' grade and G.D.O. Grade I
respectively under the Central Health Service with effect only from
9.9.1968. Therefore, under Rule IO (a) (iii) of the Rules, Dr. S.P.
Kapoor has to rank senior to Dr. R.M. Bali as well as Dr. Jiwan Lal
D who admittedly has to rank after Dr. R.M. Bali.

Mr. Tarkunde submitted that a letter like the one dated .,.
9.7.1971 mentioned above could have been addre>Sed by the Central
Government under Section 84 of the Punjab Reorganisation Act to
the Administrator of the Himachal Pradesh Union Territory and that
E the letter dated 9.7.1971 referred to above could not have been written
under that Section as Himachal Pradesh Union Territory ceased to be
in existence when the full-fledged Himachal Pradesh State came into
existence on 25.1.1971 itself. Section 84 of the Punjab Reorganisa-
tion Act says that the "Central Government may give such directions

F
to the State Governnent of Punjab and Haryana and to the Adminis-
trators of the Union Territories of Himachal Pradesh and Chandigarh
as may appear to it to be necessary for the purpose of giving effect
-
to the foregoing provisions of this part and the State Governtments
and the Administrator shall comply with such directions."
I
'
Mr. Tarkunde relied in this connection upon the decision of
G this Court in lloshan Lal Tandon v. Union of India(') and submitted
that having come into the Central Health Service on 1.11.1966 it is
not open to Dr. S.P. Kapoor who came into that service subsequent
to the date on which Dr. R.M. Bali joined that Service on the date
of its initial constitution to contend that his .seniority must be fixed
H
-
I
11) (1968] I S.C.R. 185
S.P. KAPOOR v. HJlllACHAL (Varadarajan, J.) i069
with reference to the date of his appointment to the Punjab Civil A
Medical Service Grade I. In that decision we find the following
passage at page 192 :-

"At the time when the petitioner and the direct recruits
were appointed to Grade 'D' there was one class in Grade 'D'
formed of direct recruits and the promotees from the grade n
of artisans. The recruits from both the sources to Grade
'D' were integrated into one class and no discrimination
could therefore be made in favour of recruits from one
source against the recruits from the other source in the
matter of promotion to Grade'C'. To put it differently, once
the direct recruits and promotees are absorbed in one cadre, c
they form one class and they cannot be discriminated for the
purpose of further promotion to the higher Grade 'C'. In
the present case it is not disputed on the part of the first
respondent that before the impugned Notification was
issued there was only one rule of promotion for both the
departmental promotees and the direct recruits and that 0
rule was seniority.cum-suitability, and there was no rule of
promotion separately made for application to the direct
recruits. As a consequence of the impugned notification a
discriminatory treatment is made in favour of the existing
Apprentice Train Examiners who have already been absorb-
ed in Grade 'D' by March 31, 1966 because the Notifica-
tion provides that this group of Apprentice Train Examiners
should first be accommodated en bloc in Grade 'C' up to 80
percent of vacancies reserved from them without undergoing
any selection. As regards 20 per cent of the vacancies made
available for the category of Train Examiners to which the
petitioners belong the basis of recruitment was selection on F
merit and the previous test of seniority-cum-suitability was
abandoned. In our opinion, the present case falls within the
principle of the recent decision of this Court of Marvyn v.
Collector [I 966] 3 SCR 600."

We are of the opinion that the ratio of this decision will not G
apply to the facts of the present case.

On the other hand, Mr. Mehta invited our attention to two
decisions of this Court in N. Subba Rao etc. v. Union of India and
Ors('), and C.P. Damodaran Nayar and P.S. Menon v. State of Kera/a H
(I) [1973] I S.C.R. 945
1010 SlJPl\EME colJllT REPORTS [1982] 1 s.c.k.

A and Others('). The decision in N. Subba Rao etc. v. Union of India
and Ors. related to the inter se seniority of officers of two regions of
different States which came to form a single State on I st November,
1956. On 1.11.1956 the State of Andhra Pradesh came into existenee
under the States' Reorganisation Act 1956. That State was formed
out of the former State of Andhra Pradesh and the Telangana area of
B the former Hydrabad State. The appellants in that case were Engi-
neers in the employment of Andhra Pradesh. On the formation of
Andhra Pradesh, the appellants under the States' Reorganisation Act,
1956 continued to serve the State of Andhra Pradesh. The respon-
dents who were Telangana officers in the employment of the Hydera- ,.
bad State continued to serve the State of Andhra Pradesh. The
c Central Government directed the State Government in September,
1956 to draw up provisional common Gradation List keeping in view
the general principles agreed to at the Conference of the Chief Secre-
taries held in April and May, 1966. The State Government prepared
a provisional common gradation list of Gazetted Officers in Novem-
ber 1961.~The Telangana Engineers challenged the common Grada- 7
D tion List by filing Writ Petition in the Andhra Pradesh High Court.
This Court observed in the Judgment that:-

"Under the States' Reorganisation Act power is con-
ferred on the Central Government to bring out the integra-
tion of the Service in the State of Andhra Pradesh by
E ensuring fair and equitable treatment to all persons affected
by the provisions of Section 115 of the Act. The Govern-
ment of Andhra Pradesh bas a duty to bring all relavant
facts to the notice of the Central Government.

Under the States' Reorgnisation Act, the Central
F Government is entrusted with the power of the division and
integration of the Service and the ensuring of fair and
equitable treatment to all persons affected by the provisions
of Section 115 of the Act in regard to allotment of Officers
.
from an existing State to a successor State."
''
In the case of C.P. Damodaran Nayar and P.S. Menon v. State
G of Kera/a and Others (supra) the State of Kerala came into being on
1.1 l.1956 and the appellant bad been selected by the Madras Public
Service Commission as a District Munsif and was posted as such on
26-5.1951 and he was in continuous service since then.~ The service of
appellant was regularised as from 6.10.1961. The appellant was
H allotted to Kerala State with effect from 24.10.1956. On 26.3.1966
I
(!) [1974] 2 S.C.R. 867
S.i>. KAJ>ooit v. HIMACHAL (Varadarajan, J.) 1071
A
the Kerala State published the final integrated list of the Travancore-
Cochin and Madras Judicial Officers in the integrated State of Kerala
as on 1.11.1956, showing respondents 6 and 7, whose dates of
commencement of continuous service were 20.7.1951 and 1.10.1951
respectively as senior to the appellant on the basis that he commenc-
ed his continuous service on 6.10.1951. The appellant questioned B
the final seniority list contending that the date of commencement of
his continous service is 26.5.1951. This Court observed thus:

"Under Section 117 of the Act (States Reorganisation
Act 1956) the Central Government may at any time before
or after the appointed day give such directions to any Slate c
Government as may appear to it to he necessary for the
purpose of givin·g effect to the foregoing provisions of this
Part and the State Government shall comply with such
directions.''

In accordance with the provisions of that Act, a meeting of the D
Chief Secretaries of the various States that were to be affected by the
reorganisation' was held at the invitation of the Central Government.
In that meeting it was agreed that in determining the relative senio-
rity as between two persons holding posts declared equivalent to
each other and drawn from different States, inter alia the length of
continuous service, whether temporary or permanent, excluding E
periods in which an appointment is held. in a purely stop-gap or
fortuitous arrangement, should be taken into account. This Court
held that the appellant in that case should be given the benefit of his
seniority reckoning his continuous appointment and assigning
the date 26.5.1951 and substituting the same in the final list for
6.10.1951, and observed: F

"It is common ground that the appellant has been
appointed in a regular manner through the Public Service
Commission and his appointment cannot by any stretch of
imagination be made to fill a "pure stop-gap or fortuitous"
vacuum. As noted earlier, the Government of [ndia has
G
accepted the position that an allotted employee should not
suffer any disadvantage if he would not have been subjected
to a like handicap in his parent State.
H
It is clear from the position taken by the Madras
Government that the appellant would have got the benefit
1072 SUPREME COURT RBPo!lt~ tl 98iJ 1 s.c.ll.
A of his continuous appointment in Madras with e!Tect from
May 26, 1951. That being the position, the submissions of
the learned counsel for the respondents are of no avail".

We are of the opinion that the ratio of these two decisions relied
upon by Mr. Mehta would apply to the facts of the present case. Sec-
n tion 45 of the State of Himachal Pradesh Act, 1970 lays down that
"the Central Government may give sueh directions to the Govern-
ment of the State of Himachal Pradesh as may appear to it to be
necessary for the purpose of giving effect to the foregoing provisions
of this Part and also the provisions of Part 9 of the Punjab Reorga-
nisation Act. 1966 und the State Government shall comply with such
c directions''.

We agree with Mr. Mehta that the aforesaid letter dated
9.7.1971 from the Ministry of Health, Family Planning, Department
of Health, Government of India, addressed to the Government of
Himhchal Pradesh, was written under the provisions of Section 45 of
D the State of Himachal Pradesh Act 1970. Mr. Tarkunde submitted
that even if that letter dated 9. 7. 1971 had been written under the
provisions of Section 45 of the State of Himachal Pradesh Act,
1970, equivalent posts must be determined and that nobody has
fixed the equivalent posts and it 1s for the Government of
India to decide. We are of the opinion that this submission
E is not well-founded as the equivalent grades have already been
fixed by placing Dr. S. P. Kapoor and Dr. R. M. Bali in the cate-
gory of Specialists and Dr. Jiwan Lal in the category of Himachal
Pradesh Health Service Grade I Officer, as mentioned above by the
Himachal Pradesh Government's Notification No. 1-15/7 5-H&FP
dated 9. 6. 1975 referred to above. The Central Government was
F under an obligation to see that in fairness and equity the seniority of
officers drafted into the newly formed State from the in tergrating
States is properly rixed and that obligation has been discharged by
the Central Government: (I) by Mr. Pande's D. 0. letter dated I

14.2.1967, (2) the stand taken by Mr. T. V. Menon, Deputy Legal '
Adviser. Central Government in the meeting of Officers held on
G 24.Ll972 and (3) the letter dated 9.7.1971 written by the Ministry of
Health and'Family Planning Welfare, Government oi India to the
Secretary to the Government of Himachal Pradesh. 111 these circUJn-
stances we are of the opinion that the learned Judges of the High
Court have erred in holding that the inter se seniority has to be
H determined only on the basis of the date of induction into the Cent- /
ral Service and not with reference to Rule 10 (a) (iii) of the Rules
S.P. KAPOOR v. HIMACHAL (Varadarajon, J.) 1073

which had, however, been noticed by the learned Judges without A
a correct appreciation of its impact on what the Government of
- Himachal Pradesh should do in the matter of fixing the relative
seniority of the Officers drawn from the integrating States. We
are of the opinion that inter se seniority has to be determined only
in accordance with Rule IO (n) (iii) of the Rules and that Dr. S. P.
Kapoor would be senior to Dr. R. M. Bali, who in turn would rank B
senior to Dr. Jiwan Lal.

The annual confidential reports relating to Dr. S. P. Kapoor,
Dr Jiwan Lal and others had to be looked into by the Departmental
c
- Promotion Committee on 3.11.1979. The contention of Dr.
Ji wan Lal was that the annual confidential reports of Dr. Jiwan Lal
and Dr. (Mrs.) Damyanti Kapur were initiated by an Officer not
only junior to them but also an aspirant for promotion to a higher
post alongwith them, and, therefore, these confidential reports
should not have been taken into consideration for further promotion.
The contention of the Himachal Pradesh Government was that the D
confidential reports made by Dr. J. C. Sharma were not taken into

• account and that Dr. Grover's reports were revised, sometimes with
additional remarks for or against the individuals by higher authori-
ties and they were not the only reports which were taken into
consideration by the Deparemental Promotion Committee. It is
clear from this contention of the Himachal Pradesh Government E
that Dr. Grover's reports were taken into consideration by the
Departmental Promotion Committee. though it is stated that they
bad been earlier revised by higher authorities. Dr. Grover was in
the field competing with Dr. S.P. Kapoor, Dr. R.M. Bali and Dr.
(Mrs.) Damyanti Kapur at the relevant time for promotion to the
higher post. Therefore, it would not have been fair for the Depart- F
mental Promotion Committee to take into account the annual con-
fidential reports made by Dr. Grover though they might have been
revised by the higher aulhorities

Section 2 (g) of the Rules defines a Departmental Promotion
Con1n1ittee as: "a Corrin1ittee constituted from time to time by the G
Government for the purpose of making recommendation for promo-
tion or confirmation in any catagory".

Dr. Jiwan Lal has stated in his Special Leave Petition that
under the Rules the Department&! Promotion Committee of Himachal H
1074 SUPREME COURT REPORTS [1982] l s.c.R.

A Pradesh in respect of the Health Services consisted of the Chief
Secretary, Financial Commissioner and Secretary, Health and Family
Welfare, of the Himachal Pradesh Government. There is no dispute
about this fact. But the Departmental Promotion Committee which
met on 3.11.1979 to consider the question of appointment of
Deputy Directors and Director of Health Services, consisted of the
B Chief Secretary, Financial Commissioner and Principal Secretary to
the Chief Minister of Himachal Pradesh, who was appointed addi-
tionally as Secretary of Health and Family Welfare in the absence
on leave of the regular Secretary, Health and Family Welfare from
3rd to 8th November, 1979. It is seen from the counter-affidavit
of the Himachal Pradesh Government that the Director of
c Health Services and Deputy Director of Health Wealth
were holding the posts on ad hoc basis from the year 1973. The
final seniority list was prepared only on 2.11.1979 and the Depart-
-
,..

mental Promotion Committee was constituted on 3.11.1979. The
Joint Secretary, Personnel Department, Himachal Pradesh Govern-
ment had written the letter No. Per (A-1) B-79 dated 3.ll.1979
D requesting Mr. R. C. Gnpta, Secretary (Health) Himachal Pradesh
Government to attend the Departmental Promition Committee
Meeting to be held at 3. 00 P. M. on that day for considering the
names of officers for the posts of Director, Health Services. It is seen
from what has been stated above and it is also admitted by the
Himachal Pradesh Government that the selection of the Deputy
E Directors and the Director of Health Services from amongst the
Deputy Directors had been made by the Departmental Promotion
Committee on 3.11.1979 itself and that even the orders of appoint-
ment had been issued on the same day with the approval of the
Governor of Himachal Pradesh. Though before the High Court it
does not appear that Dr. Ji wan Lal had alleged any ma/a /ides to
F anybody he has alleged in Special Leave Petition that the constitu-
tion of the Departmental Promotion Committee and the process of
selection and appointment were obviously ma/a fides and that
they were appointed on the da!e on which Mr. Yadav, the
•
I
regular Secretary, Health and Family Welfare Department, was
'
on leave and that this haste suggests that he would not have
G agreed to carry out the political wish of the then Chief
Minister in making the appointments in the post haste manner.
Though it is not possible to accept the belated contention that
there was any ma/a fides on the part of the then Chief Minister in
the matter of constitution of the Departmental Promotion Committee
H
with his Principal Secretary as one of its members in the place of the
regular Secretary, Health and Family Welfare, we are of the opinion
s.i>. KAPOOR v. HiMACHAL (Varadarajan, i.) iir75
that there is room for suspecting the reason why the whole thing was
completed in haste on 3.11.1979 after the preparation of the final
seniority list on 2.11.1979, in the light of the admitted position that
the Deputy Directors and Director of Health Services, Himachal
Pradesh were holding ad hoc appointments from 1973. The matter
was not such as could not have been put off by a few days. Such
rush is not usual in any State Government. The post-haste manner B
in which these things have been done on 3.l l.1979 suggests that some
higher-up was interested in pushing through the matter hastly when
the regular Secretary, Health and Family Welfare was on leave.
Therefore, we are of the opinion that the matter requires to be con-
sidered afresh.

In regard to the question of rotation, Rule 9(4) of Rules lays
down : (1) super-time Grade U (General) posts shall be filled by
promotion of (i) HPHS-Grade I Officers with not less than seven
years of service in the category or (ii) Specialists' Grade Officers
with not less than five years service in that category. The selection
will have to be on the recommendation of a Departmental Promotion D
Committee on the basis of merit-cum-seniority of the officers concer-
ned at (i) and (ii) above on 50 : 50 basis keeping in view the nature
of the duties of the post. Supertime Grade I (General) posts shall be
filled by promotion on the recommendations of the Departmental
Promotion Committee on the basis of merit with due regard to
seniority of Officers holding the posts of Deputy Directors with not
less than five years service in that category. The contention of
Dr. Jiwan Lal was that the Departmental Promotion Committee
should not have started the rotation to post of Director of Health
Services with a Specialist. On the other hand, the contention of the
Himachal Pradesh Government before the High Court was that Rule F
9 was silent on the question as to the category with which the roster
should be started and, therefore, the State Government decided to
supplement the Rule by starting the roster with the category of Speci-
I
' alists having regard to the fact that the seni<>r-most Specialist Officer
available on the date of the Departmental Promotion Committee
meeting on 3.11.1979 had put in greater length of qualifying service G
than the senior-most HPHS (Grade I) Officer. Rule 21 of the Rules
provides that if any difficulty ii felt in giving effect to provisions of
these Rules the Government may in consultation with the Public
Service Commission give such directions not inconsistent with the
provisions of those Rules, as appear to be necessary or expedient H
for the removal of the difficulty. In view of the fact that Rule 9(4)
does not provide the category with which the roster may be started,
1016 SUPli.llME COURT li.ill'ollts [1~8:i.j i s.C.!l.

A whethor with HPHS (Grade I) Officer or Specialists, difficulty appears
to have arisen in starting the roster. Therefore, the Government
stopped in and supplemented the Rule by directing that the roster
may be started with the category of Specialists keeping in view the
length of qualifying service in each of the two grades, namely, Specia-
lists and HPHS (Grade I) Officers. The learned Judges of the High
B Court have expressed the view that the Specialists had an advantage
for their category starting the roster by the senior most of the Spe-
cialists having put in more number of years of qualifying service than
the HPHS (Grade I) Officers. We are of the opinion that the learned
Judges were perfectly justified in taking this view and that the
Government was right in getting the roster started with Specialists
c instead of of HPHS (Grade I) Officers.

For the reasons stated above Civil Appeal No. 2104 of 1980 is
allowed and Civil Appeal No. 2384 of 1980 is dismissed. The princi-
ple on which relative seniority should be fixed having been settled in
·this judgment. it shall be fixed accordingly and the matter of selection
D of Deputy Directors and Director of Health Services, Himachal
Pradesh shall be decided afresh according to the Rules and in the _.
light of this judgment. Under the circumstances of the case, we make
no order as to costs.

N.V.K. C.A. 2104 of 1980 allowed
E and C.A. 2384 of 1980. dismissed.

I