Holding

Rule 8(3) of the Central Health Service (Amendment) Rules, 1966 must be interpreted to permit filling Supertime Grade II vacancies by both promotion and direct recruitment in the prescribed 1:1 ratio, and transfers within the same grade are permissible, rendering the appellant's claims untenable.

Summary

The appellant, Dr. N.C. Shinghal, a senior ophthalmologist, claimed that he should have been promoted to Supertime Grade II on 18 February 1971 when a vacancy was created by converting an unspecified specialist post at Willingdon Hospital, and that the subsequent promotion of other doctors (respondents 4‑24) violated Rule 8(3) of the Central Health Service (Amendment) Rules, 1966. He also argued that the transfer of Dr. B.S. Jain to the newly created post was illegal, that his refusal to accept a promotion at Simla barred the government from offering the post to a junior, and that the word “category” in Rule 8(3) meant service in the specific category only. The Supreme Court held that Rule 8(3) expressly allows vacancies in Supertime Grade II to be filled by both promotion and direct recruitment in a 1:1 ratio, and that transfers within the same grade are permissible on administrative exigency. The Court found no violation in Dr. Jain’s transfer, held that the appellant’s refusal did not forfeit his right to promotion, and concluded that the promotions of respondents 4‑24 were valid and could not be challenged by the appellant. Consequently, the appeal was dismissed.

Issues considered

Whether Rule 8(3) of the Central Health Service (Amendment) Rules, 1966 mandates that vacancies in Supertime Grade II be filled solely by promotion from specified categories.
Whether a post created by converting an unspecified specialist post must be filled only by promotion and not by transfer or direct recruitment.
Whether the transfer of Dr. B.S. Jain to the newly created Supertime Grade II post was valid under the Rules.
Whether the appellant’s refusal to accept a promotion bars the government from offering the post to a junior and affects his claim of promotion.
Interpretation of the term “category” in Rule 8(3) – does it refer to the post or to service rendered in that category.
Whether the promotions of respondents 4‑24 to Supertime Grade II were illegal and can be set aside.
Whether adverse inference can be drawn against parties who were not served with the writ petition.

Legislation cited

Central Health Service (Amendment) Rules, 1966s. Rule 8(3)
Central Health Service Rules, 1963s. Rule 8(3)

Subjects

Central Health Service RulesPromotionSupertime Grade IIAdministrative lawTransfer of officersArticle 16Statutory interpretationSeniority

Judgment

44

N. C. SHINGHAL
v.
UNION OF INDIA
March 19, 1980
LD. A. DESAI AND E. S. VENKATARAMIA!I, JJ.]
B
Central Health Services Rules, 1963 as amended by Central Health Service
(Amendment) Rules, 19.66,-Rule 8(3), Scope of-Promotions to Supertime
Grade 11 posts, whether made in accoriance with Rule 8 (3 )-Whether transfers
in posts which are in the same grade or cne considered equivalent can be effected
on administrative exigencie3--Ref,usg[ tu accept the promotion by an employee.
lVhether the employer can offer to next junior to the offeree-Adverse inference
c agairut partles remaining ex-parte and tkrefore not served, whether can be
drawn.
The Union of India ha1 enacted Ceutral Government Health Scheme and ID
implementation thereof has set up various institutions for medical relief and
medical education. A Central Health Service became a necessity for effectively
impleme11ting the scheme. With a view to constituting the service, Central
D Health Service Rules, 1963 were framed aDd brought into operation on May 15,
1963, The Rules envisaged categorisation of ~rsonnel manning the service into
five different categories, to wit, category 'A' supertime scale Rs. 1600-2000;
C~tegory 'B' supertime scale Rs. 1300-1600; Category 'C' Senior scale
Rs. 675-1300, Category 'D' Junior scale Rs. 425-950; and Category 'E' class II
s"'1e Rs. 325-800. On account of various imponderables the service could not
be constituted and 1963 Rules were amended by Central Health Service (Amend-
E ment) Rules, 1966. Initial constitution of service was to be on and from
September 9, 1966. 1966 Ruleo contemplated again the division of service into
four cafegories, namely, Category I comprising supertime scale Grade I Rs. 1800-
22:'0; supertimc scale grade II Rs. 1300-1800, Category II consists of Specialists'
grade Rs. 600-1300; Category ill include• General Duty Officers Grade I
Rs. 450-1250; and Category f.V comprises General Duty Officers Grade JI
Rs. 350-900. 1966 Rules provided the method for initial constitution of the
F service. Rules 7A(l) and 7A(2) provided for absorbing departmental candi-
dates holding posts in categories 'A' and 'B' under 1963 Rules in supertime '
Grade I and supertime Grade II respectively of reorganized serviee under the
1966 Rules. Those in service on September 9, 1966 and holding posts in Cate-
gories 'C', 'D' a.nd 'E' were either absorbed in specialists' grade or General Duty
Officers Grade as the case may be. For the purposes of selection and absorp·
t'ion of departmental candidates on the date of initial constitution of reorganised
G servic'e, a Selection Committee was set up and absorption was made in accord-
ance with the recommendation of the Committee. This process of absorption
was over in March 1967, but the constitution of the service was deemed to be
effective from September 9. 1966.
Rule. 2 (c) defines category to mean a group of posts specified in column 2
of the table under Rule 4. Rule 4 provides for classification categories and
scales of pay. Rule 5 of, Rules 1966 provides for authorised strength of the
H service. Rule 8 prescribes the manner in which future vaca.nc\e.ci,, after appoint-
ments have been made to ilie Service under Rule 7 and 7A shall be filled in
Supertime Grade Il. i '
N. C. SHINGHAL V. UNION 45

The authorised strength of the various categories of the service on the date A '
of commentement of 1966 Rules shall be as specified in the First Sch"edule. The
ve1tical promotional channel is from Specialists' grade and General Duty ofli·
cers Grade I to supertime Grade II and from thereon to Supertirne Grade I. On
the date of initial constitution of seivice there were 27 S permanent and 102
temporary, in all 377 posts in Specialists' grade. Out of this strength of posts
in specialists' grade 28 posts were upgraded to supertime Grade II, 19 being classi-
fied as unspecified specialists' posts and 9 unspecified posts. B

The Central Government converted one post from amongst the 19 unspecified
specialists' grade posts in Supertirne Grade II in Opthalmology speciality in
Willingdon Hospital and transferred one Dr. B. S, Jain, respondent 3, who was
then working as Chief opthalmoJogist-cum-Associate Professor of Opthalmology,
Himachal Pradesh Medical College, Simla, end offered the vacancy to in Super·
time Grade II caused by the transfer of respondent 3 to appellant who was next c
in seniority by way of promotion on ad hoc basis as per Memorandum dated
December 7, 1970. As the appellant was prepared to accept only if 1he posting
was at Delhi and not in Simla, one Dr. G. C. Sood was promoted to supertime
Grade 11 post and was appointed at Simla.

Th'e appellant, thereafter filed a writ petition praying for Mandamus that be
may be deemed to h<!ive been promoted from February 18, 1971, the date when
D
Dr. Jain was posted at Willingdon Hospital. The appellant also questioned- the
promotions of r'espondents 4 to 24 to supertime grade II on various dates after
February 18, 1971 and before July 17, 1978 when he was actually promoted on
a certain interpreta.tion of Rule 8(3) of the Central Health Service Rules 1963.
The High Court dismissed the writ petition. A Letters Patent Appeal was partly
alJowed. Hence the appeal by spec'ial leave.
E
The appellant contended that: (a) the promotions of Respondents 4 to 24 are
in contravention of Rule 8 of 1966 Rules; and (b) when a post in opthalmology at
Willingdon Hospital was created on February I, J,971, by conversion of ono post
from amongst unspecified specialists' grade posts in supertim.e Grade II, the post
could only have been filled in by promotion from amon~t those holding the
post in specialists' grade in opthalmology speciality and he being the senior p
\
most and otherwise qualified, he should have ~n promoted from that date;
~. (c) filling in the post at Willingdon Hospital by transfer oe respondent 3 was in
violation of fie statutory rnle and hen"' invalid; ( d) the offer of the post to
him at Simla was an eye wash and malafide as he latked teaching experience and
the post is a teaching post; (e) "service in that category" means service in that
category which was constituted under th.c 1966 amc~dment Rules and (f) rule
8(3) does not permit inter se transfers in posts which are in the same category.
'y G'

Dismissing the appeal, the Court
HELD : I. Unlike other professions, medical profession has developed
~ranc~wise expert specialised knowledge referable generally to number of parts
in which human a!latomy is divisible. General medicine and general-surgecy
are two broad genus but under 'each one of them there are numerous specialities H
and .th~re is intensive study and research in speciality for being qualified for the
spec1al1ty. Bemg en expert in any one speciality simultaneously results in being
46 SUPREME COURT REPORTS L1980] 3 S.C.R.

A excluded from other specialities even though the specialities m<'llY be species of
a g'enus like general medicine or general surgery. Again, in each sp~iality
there will be a post of a Lecturer, an Assistant Profess.or, an Associate Professor
'and a Professor with a vertical movement by way of promotion. In a non·
teaching hospital there will be posts like Junior Surgeon, Senior Surgeon, Head
of the Department and so on. In a profession so compartmentalised speciality*
wise ex hypothesi it is difficult to provide for promotional avenue by way of a
B gGneral seniority list integrating different specialities categorywise, cadrewise or
gradewise. If such a general seniority list including persons belonging to different
specialities albeit in the same grade is drawn up for purposes of promotion it
might lead to a startling result because the need may be of a promotional post in
a speciality and the man at top of the seniority list may not belong to that
speciaJity and the man at top of the seniority list may not belong to that speciality
but may belong to a different speciality and if any promotion was to be given
C to him to a post in a speciality for which he is neither qualified nor eligible it
\Vould be impossible to give vertical promotions by referring to such general
seniority list. If the promotion is to a post generally called administrative post
in a hospital a general seniority list including experts belonging to different
specialities may be helpful but when promotions are to be given to posts in different
spLcialities a general seniority list is not only unhelpful but may really impede the
process of promotion. Again, demands of different specialities for additional
D strength may differ from hospital to hospital, from area to area and even from
time to time. In order to nleet such unforeseen eventualities the rules provide for
an addition to the strength of supertime grade II by keeping 19 posts designated as
unspecified Sp'ecialists' grade! posts and 9 unspecified posts in a pool. When~ver
a demand came for providing a higher post in supertime grade II in any parti-
cular specia1ity ordinarily where the strength of the serviee is prescribed a post
v1ill have to be created which any. one familiar with bureaucratic jaggomot would
E immediately realise how time consuming it is. Anticipating such a situation and
to meet with the demands of spC«:i,alities within a reasonable time it was provided
th& the;e wcuJd be a paol of 19 unspecified sp'ecialists' post:i in supertime grade
II Mid 9 unspecified posts also in supertime grade II . This would facilitate con-
version from the pool of unspecified Specialists' posts of an unspecified Spec\a..
tistsi post to a specified specialist post in a speciality wh~re :1. need has been felt.
Once the need is felt and a post is converted from an unspecified post to a
F specified post in supertime grade II it becomes an addition to the str'ength of
that speciality a.nd the post can be filled in, in accordance with the relevant ntle.
But it is implicit in this arrangement that the person ~oi be ap_1:lOinred to such a
post would be one who is eligible to be appointed to that speciality and not some
one who is on top of the general seniority list in Specialists' grade or general
duty offic'ers' grade from which promotion is to be made. If promotion has to
be made from a general seniority list which includes all Specialists in the Speci 4

G a.lists' grade the one at the top may be Cardiologist and the post may be convert·
ed into Anaesthesiology. Certainly a CnTdiologist cannot be appointed as an
Anaestheatic. Therefore. when a post from amongst unspecified Specialists'
posts is converted to a specified post which means specified in the speciality in
which a need has been felt from amongst those in the Specialists' grade belong-
ing. to that speciality OOd in order of their inter se seniority a promotion could
be given. [54 FH, 55A-H 56A-B]
H
Union of India and Ors. v. D. B. Kohli and Anr., [1973] 3 S.C.R. 117;
followed.
N. C. SHINGHAL V. UNION 47

2. Merely because all 28 posts were deducted from the strength of posts in A
}-
Specialists' grade it could not be said that all 28 posts would be available for
promotion to those belonging to Specialists' grade only. The language employed
in rule 5 als0 points in this direction. All the 28 posts ueeJ not necessarily be
filled in by promotion from amongst those who belong to Specialists grade only.
Hence with the division of 28 posts in two different designations and dividing
the 28 posts in two different nomenclatures. 28 posts are made up of 19 posts
designated as unspecified Specialists posts and 9 unspecified posts. Undoubtedly B
19 posts \Vhich were designated as unspecified Sfecialists' post must be filled in
frcm amongst those belonging to the Specialists' grade but that itself also shows
that the remaining 9 unspecified posts can be filled in from amongst those who
uiay be promoted from General Duty Officers grade I because General Duty
Officers grade I are also promotable to supertime grade II. The nomenclature
uru..pecified Specialists' post and unspecified post provides an effective ans"'er
ana indicates that while in the case of the former promotion must be given c
from Specialists in respect of the latter General Duty officers Grade I v-•ould
equally be eligible for promotion. [56 D~H]

3. To interpret that 19 unspecified Specialists' posts could only be filled in by
promotion would run counter to th'e express provision contained in Rule 8(3)
which is statutory. Rule 8 of the Central Health Service Rules, provides for
future maintenance of the service. Rule 8(3) provides for 50% of th'e vacancies D
in supertirne grade II to be filled in by promotion of General · Duty Officers
Grade I and Sp'ecialists' grade officers in the ratio of 2 : 3 and the remaining
50% of the vacancies to be filled in by direct recruitment in the manner specitl.!d
in the second &ehedule. Now, once an unsp'ecified Specialists' grade post in
supertime grade II is converted and made a specified post in a speciality it is an
addition to the strength of the speciality and the filling in of such post ·.shall be
governed by rule 8(3). Undoubtedly if it is to be filled in by promotion, that E
would only be from amongst those belonging to Specialists' grade officers as the
converted post was unsp'ecified Specialists' post. But to say that it can b.::: filled
in only by promotion is to ignore the mandate of statutory rule 8 (3) \vhich
provides for filling in posts in supertime grade II by either promotion or nomi~
nation. in the ratio therein prescribed. Once there is a post in supertirne grade
11 whtch is to be filled in subsequent to the initial constitution of the service,
rule 8(3) \vill be attracted in all its rigour. [57 B-E] F
Fu~her Rul'e 8 (3) provides for filling in posts in supertirne grade II by
~romotton. as well as by direct recruitment in the ratio of 1 : 1. On a true
1nterpreta.t~on .of the 1966 Rules in general and rule 8(3) in particular it could
not· b:':- ga1nsa1d that w.he!fever an unsp'ecified Speci,alists' post is converted into
a spec1fi~d post an~ assigned to a speciality it can be filled in either by promution
or by ~lfect recruitment as the situation warrants according to the rule and as
determmed by the quota rule. [57 E-G] G

~o airgument. can be fo~n~ed or. any relief c:an be claimed merely on a Jtand
taken by the,U~ton o.f India in their cou.nter-affidavit in an earlier writ petition,
unless estopp~l l~ claimed or urged. Even _if such be the stand of the ·Centr3.l
Government ~t will have to be negatived and was in fact negativ~d in the ·case· of
Dr. R S. Jam. [58C-DJ
H
···Union of India v._Bhim Singh, [1971] 2 SLR p. Ill @ 124; P. c. Sethi and
Ors, v. Umon of India arld Ors. [1975] 3 S.C.R. 201 at 210; /. K. Steel Ltd. v.
48 SUPREME COURT REPORTS [1980] 3 s.c.R.

A U11inn of India, [1969] 2 S.C.R. 481 @ 498; Commissioner o/ lnoome Tax v. K. ·
Srrnivasan and K. Gopalan [1953] S.C.R. 486; applied.

4. Wh'en a post is created, it is an addition to the strength of that particular
category and the additional strength has to be filled in the manner prescribed in
the rule and that no sanctity attaches to the place where the post is created but
the sanctity attaches to the number of posts and the manner of fi1ling ihem.
B [59 B-Cl

Transters in posts which a' in th'e same grade or are co~idered equivalent
can be effected on administrative exigencies. Once a new post is created and it
is an increase in the strength of th'e cadre in which the post is created, every
one in that cadre is eligible to fill in that post and transfer is permissible. There
is no violation of Rule 8 (3) and traruifer of Dr. B. S. Jain was valid. [59 E-FJ
c E. P. Royappa v. State of Tamil Nadu and Anr., [1974] 2 S.C.R. 348 at 363.

5. If an employe'e eligible for promotion is offered a higher post by way of
promotion, his refusal to accept the same would enable the employer, the Ce-Qtral
Government in this case, to fill in the post by offering it to a jU.nior to the
Government servant refusing to accept the post and in so acting there will be
no violation of Art. 16. Further, the Government servant 'vbo refuses to nccept
D
the promotiona1 post offered to him for his own reason cannot then be h'eard to
1

complain that he must be given promotional post from the date on which the
z.venue for promotion opened to him. [60 B-C]

Undoubtedly, it may be that under the Medical Council Regulations stricto
sensu, the appellant may not be qualified for the post of Associate Professor be-
cause he did not poss'ess the requisite teaching experience. But an c;d ltoc
E arrangement could have been made and it was open to the Central Goveroment,
if the appellaot had accepted the post, to mov'e the Meditfil Council of India to
permit the Central Government to appoint the appellaot at Simla. Some way
could have been found but the door was bolted by the appellant himself declining
the offer for reasons other than his qualification which he may have found com-
pelling. The offer made to him by the Govenumnt was not eye wash or make
F believe. His refusal to accept the offer of promotion would postpone his pro·
motion. Further, •ince his refusal to l!Ceept the promotion al Simla and till July
1978, the appellant was never superseded by any one junior to him in his spe-
ciality it is difficult to entertain the contention that in refusing promotion to him
when some posts were converted from unspecified Specialists' posts into different
specialities and were filled in by lh<lle who were qualified to be promoted in
!he respective speciality in which the post was created he could be said ID have
been superseded in violation of Art. 16. [62 D-HJ
G
6. Remote chances of promotion could hardly be said to be condition pf
service which if impaired. would b'o violative of Art. 16. Even assuming thal a
remote chance of promotion in adversely affected would give a cause of action,
in view of appellants' impending retirement on superannuation the argument
we>uld be of no avail to him. [63 F-01
H 7. The word 'category' used in Rule 8(3) has to be understood to mean the
post included in that category a~ consequently service in that category would
n1tan service in a post included 1n that category. [66 B-C]
N. C, SHINGHAL V. UNION 49

It is a well recognised canon of construction that the construction which makes A
the Rule otiose or unworkable should be avoided where two constructions are
possible ans the Court should lean in favour of the construction which \\'ould
1nake the rule workable_ and further the purpose for which the rule is intended.
\Vhile prescribing experience qualification in 1966 Amendment Rul'es, the framers
of the Rules could not have intended to ignore wholly the past service. A
Specialist who wtas in category 'C' was included in category IT with the designa-
tion Specialists' grade officer. Similarly, General Duty Officer grade I in cate- II
gory 'D·' acquired· the same nomenclature General Duty Officer grade I in cate-
gory Ill. There was an upward revision of pa.y scales of both the categ:1ries.
The change in d'esignation should not be understood to mean that the service
rendered as specialist or as General Duty Officer is wholly wiped out for any
future promotion. Even after change of designation the duties nev'er underwent
any change. Same duty was performed ai day prior to September 9, 1956 and
the day thereafter by both the categories in the respectiv~ po.:ils. Furth'er this C
change was with a purpos~ in as much as when certain qualifying servl~ is
prescribed for being eligible for promotion in a category the emphasis is on
service rendered in a post irrespective of the grade. A Specialists' grade officer
belonging to category II was a Specialists' grade officer in category C. He was
even then eligible for promotion to supertime grade II. It was never intended
that a Specialists grade officer belonging to category 'C' under 1963 Rules who
had put in more than 8 years of service but who was not promoted prior to Sep. D
tember 9, 1966, the date of initial constitution of service, or on the date of
initial constitution of service, would be ineligible for promotion for a period of
8 years simply because the designation of the category changed. It was never
intended that there should be a complete hiatus for a period of 8 years in pr°"
rooting Specialists' grade officers to supertime grade Il and for a period of 10
years in case of General Duty Officers grade I. There is no warrant for such
an inference from the Rules. [65 A-H, 66 A-CJ E
8. The contention that ex'ecutive instruction cannot run counter to the statu·
tory rule is untenable in the facts of this case. Service rendered in equivalent
post prior to the date of initial constitution of servic'e could be taken into
account in calculating qualifying service for next promotion. [66 E-F]

9. The need for the post or the requirements of the hospital or the neeJ for F
an ad hoc or additional appointment is a matter which the Government is com·
petent to decide and in the absence of requisite material the Court cannot inter·
pose its own de.cision on the necessity of creation or abolition of posts. Wheth'er
a particular post is nece&Sary is a matter depending upon the exigencies of the
situation and administrative n'ecessity. The Government is a better judge of the
interests of the· general public for whose service the hospitable are set up. And
whether a hospital catering to the nc'eds of general public providing mr.dical G
relief in different specialities has need for a particular post in a particuiar
speciality would be better judged by th'e Government running the hospitol. If
Government is a better judge it must have the power to create or abJlish the
posts depending upon th'e needs of the hospital and the requirements of gene:·al
public. [67 C.E]

Creation and abolition of posts is a matter of Government policy and every B
sovereign Government has this power in the interest and necessity of internal
administration. The creation or abolition of post is dictated by policy decision,
so SUPREME COURT REPORTS (1980] 3 S.C.R.

A exigencies of circumstances and administrativ'e necessity. The creation, the con-
tinuance and the abolition of post are all decided by the Government in the
interest of administration and general public: The Court would b'e the least
competent in the· face of scanty material to decide whether the Government acted
honestly in creating a post or refusing to create a post or its decision suffers from
niala fide, legal or factual. In this background it is difficult to entertain the con-
tention of the appellant that posts were created to accommodate sonre specific
B individuals ignoring the requir'ements of the hospital or the interests of the
general public at large. [67 F-H] ·
M. Ramanatha Pillai v. State of Kera/a and Anr., [1974] 1 S.C.R. 515 at 520;
followed.
10. No adverse inferenc'e could be drawn against a patty unles~ they appear
before the Court and they are served with necessary papers. [68 C-D]
c In the present case, Respondents 9 and 23 had not appeared in the High. Court
and there fa no evidence that the subsequent 2fil.davit of the appe11ant was served
on them. It m·ay be that the· Government may not be interested in either d.eny-
ing or admitting this averment which directly and adversely affects respondents
9 and 23. However, in view of the fact that they were !l;elected by the Depart-
mental Promotion Committee and the promotion WaB approved by the U.P.S.C.
it is difficult to enfertain the contention at the hand of the appellant who is not
D in any way going to be benefited by the invalidation of their promotion. (68 B,
D, El
11. Once the challenge on merits fails in a case, the second string to the bow
need not \:'e examined. The appellant here, is least competent to challenge th'c
p10motions of Respondents 4 to 24. [69 B·C]
Chitra Ghosh and Anr. v. Union of India and Ors. [1970] 1 S.C.R. 413 @
E 420.

CIVIL APPELLATE JURISIJICTION : Civil Appeal No. 2057 of 1979.
Appeal by Special Leave from the Judgment and Order dated
11-1-1979 of the Delhi High Court i11 L.P. A. No. 46/73.
F S.R. Srivastava for the Appellant and Dr. N.C. Shinghal (in person)
P.P. Rao, ~nd Miss A. Subhashini for Respondents I & 2. ~
B.R. Aggarwal for Respondent No. 15.
The Judgment of the Court was delivered by
G DESAI,).-A highly qualified ophth''lmic surgeon feeling aggrieved
that he has not been justly treated in the matter of promotion
to a post in Supertime Grade JI seeks redress of his grievance pray-
ing for a mandamus that he may be deemed to have been promoted
from February 18, 1971, failing which more out of frustration and
less by any justification he seeks quashing cf the promotion of res-
B pondents 4 to 24 though convinced that even if the Court were
to accede to his request he is in no way likely to be b~nefited by tliis.
bizarre exercise.
N. c. SHINGHAL v. UNION (Desai, J.) 51

First to the fact situation. The Union of India has framed Cen- A
)
tral Government Health Scheme and in implementation thereof has
set up various institutions for medical relief and medical education.
A Central Health Service became a necessity for effectively implemen-
ting the scheme. With a view to constituting the Service, Central
Health Service Rules 1963 ('1963 Rules' for short), were framed and
brought into operation on May 15, 1963. The Rules envisaged B
categorisation of personnel manning the Service into five different
categories, to wit, category 'A' supertime scale Rs. 1600-2000, category
'B' supertime scale Rs. 1300-1600, category 'C' senior scale
Rs. 675-1300, category 'D' junior scale Rs. 425-950 and catego1y ·E'
class II scale Rs. 325-800. On account of various imponderables the c
Service could not be constituted and· 1963 Rules were amended by
Central Health Service (Amendment) Rules, 1966, ('1966 Rules for
short). Initial constitution of Service was to be on and from Sept-
ember, 9, 1966. 1966 Rules contemplated again the division of
Service into four categories, namely, category I comprising super-
time grade I Rs. 1800-2250; supertime grade II Rs. 1300-1800; cate- D
gory II consists of Specialists' grade Rs. 600-1300; category III in-
cludes General Duty Officers grade I Rs. 450-1250; and category
IV comprises General Duty Officers grade II Rs. 350-900. 1966
Rules provided the method of initial constitution of the Service. Rules
7A(l) and 7A(2) provided for absorbing departmental candidates
holding posts in categories 'A' and 'B' under 1963 Rules in
posts in supertime grade I and supertime grade II respectively of re-
organised Service under the 1966 Rules. Those in service on September
9, 1966, and holding post in categories 'C', 'D' and 'E' were absorbed
either in the the Specialits' grade or General Duty Officers, grade
as the case may be. For the purposes of constitution and absorp-
tion of departmental candidates on the date of initial constitution F
of re-organised service a Selection Committee was set up and ab-
sorption was made in accordance with the recommendations of the
Committee This process of absorption was over in March 1967,
but the constitution of the Service was deemd to be effective from
September 9, 1966. There were some promotions to supertime
G
grade II up w 1971 but as they are not the subject-matter of dispute
in this app.,:il th:y may be ignored. There was also direct recruit-
ment to the Service between 1966 and 1971.

Between February 1971 to July 17, 1978, when the appellant came
to be promoted to supertime grade II, respondents 4 to 24 were pro- ~
moted on different dates to supertime grade II, The promotion of
respondents 4 to 24 is challenged by the appellant on diverse grounds
52 SUPREME COURT REPORTS [1980] 3 S.C.R.

A but the principal contention is that their promotions are in contraven-
tion of rule 8 of1966 Rules. Rule 8 provides for future'maintenanceof
the Service. Relevant for the present appeal is rule 8(3) which provides
for recruitment to supertime grade II both by promotion and nomi-
nation by direct recruitment. As the appellant claims promotion to
supertime grade II from February 18, 1971, and simultaneously ques-
B tions promotion of respondants 4 to 24 to supertime grade II.on various
dates after February 18, 1971, and before July 17, 1978, when he was
actually promoted, on a certain interpretation of the relevant rule, it
may be here extracted :
xx xx xx
"8. Future maintenance of the service-After
c appointments have been made to the Service under rule
7 and rule 7A, future vacancies shall be filled in the
following manner, namely:-
xx xx xx
(3) Supertime Grade I -
(a) Fifty percent of the vacancies in Supertime Grade II
D
shall be filled by promotion of :
(i) General Duty officers, Grade I, with not less
than ten years of service in that cata gory; or
(ii) Specialists' Grade officers with not less than eight
E years of service in that category;
in the ratio of 2 :3 on the recommendation of a Depart-
mental Promotion Committee on the basis of merit and
seniority of the officer's concerned;
Provided that no person shall be eligible for appoint-
F ment to any such post unless he possesses the qualifications
and experience requisite for appointment to such post.
Provided that where the case of an officer ap-
pointed to any post in the grade of Genenal Duty Officer,
Grade I or the Specialists' Grade, as the case may be, is
considered for the purposes of promotion to any posts in
G Supertime Grade II under this sub-rule, the cases of all
persons senior to such officer in the grades of General Duty
Officer, Grade I or Specialists' Grade, as the case may be,
shall also be considered, notwithstanding that they may not
have. rendered 10 years or 8 years of service, respectively,
in those grades".
H
To appreciate the contention of the appellant as to how he claims
promotion to supertime grade II on February 8, 1971, it may be noted
N. c. SHINGHAL v. UNION (Desai, !.) 53

that effective from that date the Central Government converted one A
post from amongst unspecified specialists' Grade posts in supertime l
Grade II in Ophthalmology Speciality at Willingdon Hospital and
transferred}Dr. B.S.'Jain, responden(3,jwhowas then ;working as Chief
Ophthalmologist-cum-Associate Professor of Ophthalmology,[Himachal
Pradesh:Medical;College,_Simla, and offerred the vacancy in)rnper-time
grade II caused by the transfer of respondent 3, to appellant who was B
' next in seniority bylway of promotion on ad hoc basis as per memoran·
dum dated December 7, 1970. Appellant responded to this offer as
per his letter dated December 9, 1970, wherein after putting forward
various personal inconveniences and a possible loss in emoluments
even on promotion, he concluded his response to the offer as under :
c
"In view of my personal problems and in the public
interest I most humbly request that this promotion may
kindly be granted to me while in Delhi."

fhereafter the Government offered the post to Dr. Radha Natarajan
but she declined the offer. Subsequently the Government offered D
Oie post to Dr. M. C. Sharma who accepted the same but he was not
appointed and ultimately Dr. G.C. Sood was promoted to supertime
grade II post and was appointed at Simla.
Appellant contends that when a post in Opthalmology at Willing-
dvn Hospital was created on February I, 1971, by conversion of one B
post from amongst unspecified Specialists' grade posts in supertime
grade II that post could only have been filled in by promotion from
amongst those holding the post in Specialists' grade in ophthalmology
specialit) and he being the seniormost and otherwise qualified, he
should ba ve been promoted from that date. Simultaneously he
contends that filling in the post so created in supertime grade II at p
Willingdon Hospital by transfer of respondent 3 Dr. B. S. Jain was in
violation of the statutory rule and hence invalid. He also contends
that as he was not qualified to hold the post of Chief Ophthalmologist-
cum-Associate Professor of Ophthalmology, Himacbal Pradesh
Medical College, Simla, because it was a teaching post and he lacked
teaching experience which was an essential qualification, the offer of G
that post to him was merely an eye wash and he could not have accept-
ed the same. It is necessary to examine three different limbs of the
submission separately.

Rule 5 of 1966 Rules provides for authorised strength of the
Service. The authorised strength of the various categories of the H
service on the date of commencement of 1966 Rules shall be as specified
in the first schedule. Part A of the first schedule deals with supertime
54 SUPREME COURT REPCYRTS [1980] 3 S.C.R.

A grade I and Part B deals with supertime grade II. Part C deals with
Specialists' grade. The vertical promotional channel is from specialists'
grade and General Duty Officers Grade I to supertime grade II and
from thereon to supertime grade I. On the date of initial constitution
of Service there were 275 permanent and 102 temporary, in all 377
posts in specialists' grade. Out of this strength of posts in specialists'
grade, 28 posts were upgraded to supertime gradeH, 19 being classified
as unspecified specialists' posts and 9 unspecified posK To that ext-
ent the permanent strength of posts in specialists' grade was reduced
by 28 so as to leave it at 247. There is no dispute that 19 unspecified
Specialists' posts and 9 unspecified posts were upgraded to supertime
grade II. The controversy is how these posts were to be filled in,
Appellant contends that as these 28 posts were in Specialists' grade and
the strength of Specialists' grade posts was reduced by 28, whenever
any post out of these 28 posts added to supertime grade II is required
to be filled in, it can only be filled in by promotion from amongst those
originally belonging to specialists' grade, i.e. category 'C' under 1%3
Rules. Simultaneously he contends that as these unspecified specia•
lists' grade posts and unspecified posts, 28 in number, can:be filled in
from those belonging to specialists' grade, ipso facto they can only be
·filled in by promotion and not either by direct nomination or by trans-
fer. In support of this submission reliance is also placed on an affi-
davit filed on behalf of Union of India in a petition filed by Dr. B.S.
Jain wherein it was in terms stated that these 28 posts could only be
filled in by promotion and in no other manner.
The raison d'etre for upgrading the 28 posts from specialists' grade
to supertime grade II yet dividing them in two separate categories each
having its own nomenclature, viz., 19 posts designated as unspecified
Specialists' grade posts and 9 designated as unspecified posts is not
difficult to discern.

Unlike other professions, medical profession has developed branch-
wise expert specialised knowledge referrable generally to number of
parts in which human anatomy is divisible. General medicine and
general surgery are two broad genus but under each one of them there
G
are numerous specialities and there is intensive study and research in
speciality for being qualified for the speciality. Being an expert in any
one speciality simultaneously results in being excluded from other
specialities even though the specialities may be species of a genus like
' general medicine or general surgery. Again, in each speciality there
will be a post of a Lecturer, an Assistant Professor, an Associate Pro-
fessor and a Professor with a vertical movement by way of promotion.
In a non-teachipg hospital there will be posts like Junior Surgeon,
N. c. SHINGHAL v. UNION (Desai, J.) 55

Senior Surgeon, Head of the Department and so on. In a profession so A
compartmentalised specialitywise, ex hypothesi it is difficult to provide
for promotional avenue by way of a general seniority list integrating
different specialities categorywise, cadrewise or gradewise. If such a
general seniority list including persons belonging to different specialities
albeit in the same grade is drawn up for purposes of promotion it might
B
lead to a startling result because the need may be of a promotional post
in a speciality and the man at top of the seniority list may not belong to
that speciality but may belong to a different speciality ap.d if any pro-
motion was to be given to him to a post in a speciality for which he
is neither qualified nor eligible it would be impossible to give vertiCiii
promotions by referring to such general seniority list. If the promotion
is to a post generaffy called administrative post in a hospital a general
c
seniority list including experts belonging to different specialities may be
helpful but when promotions are to be given to posts in different spe-
cialities a •general seniority list is not only unhelpful but may really
impede the process of promotion. Again, demands of different specia·
lities for additional strength may differ from hospitaI;to hospital, from D
area to area and even from time to time. In order to meet such un -
foreseen eventualities the rules provide for an addition to the strength
of supertime grade II by keeping 19 posts designated as unspecified
Specialists' grade posts and 9 unspecified posts in a pool. Whenever
a demand came for providing a higher post in supertime grade II
in any particular speciality ordinarily where the strength of the service E
is prescribed a post will have to be created which any one familiar with
bureaucratic jagornot would immediately realise how time consuming
it is. Anticipating such a situation and to meet with the demands of
sipecialities within a reasonable time it was provided that there would be
a pool of 19 unspecified Specialists' posts in supertime grade II and 9
unspecified posts also in supertime grade II. This would facilitate F
conversion from the pool of unspecified Specialists' posts of an un·
specified Specialists' post to a specified Specialist post in a speciality
where a need has been felt. Once the need is felt and a post is con·
verted from an unspecified post to a specified post in supertime grade II
it becomes an addition to the strength of that speciality and the post
G
\. can be filled in, in accordance with the relevant rule. But it is im·
plicit in this arrangement that the person to be appointed to such a post
would be one who is eligible to be appointed to that speciality and not
some one who is on top of the general seniority list in Specialists' grade
or general duty officers' grade from which promotion is to be made.
If promotion has to be made from a general seniority list which includes H
all Specialists in the Specialists' grade the one at the top may be a
Cardiologist and the post may be converted into Anaesthesiology and it
56 SUPREME COURT REPORTS [1980] 3 S.C.R.

A does not require long persuasive argument to hold that a Cardiologist
cannot be appointed as an Anaesthetic. It is, therefore, crystal clear
that when a post from amongst unspecified Specialists' posts is convert-
ed to a specified post which means specified in the speciality in which a
need has been felt from amongst those in the specialists' grade
belonging to that speciality and in order of their interse seniority a
B promotion could be given. This position is inescapable and it is diffi-
cult to comprehend a position contrary to this. In fact, this situation
has been expr~ssly recognised by this Court in Union of India & Ors.
v. S. B. Kohli & Another (1), wherein it was held that for being appointed
as a Professor ~n a particular speciality in that case ~Orthopaedics, the
c condition that a person must have a post-graduate degree in Orthopae-
dics would not result in any .classification without reference to the
objectives sought to be achieved and this would not' result in any dis-
'crimination nor would it be violative of Article I 6. .

In passing a contention of the appellant that all 28 posts which were
deducted frcm the strength of permanentrposts in Specialists' grade and
ac'ded to supertime grade II must' on that account alone be filled in by
promotion from those belonging to the specialists' grade only may be
examined. There is no merit in this rrntrnticn. If there was any
substance in this contention there was no reason to provide for twe
different designations and divide the 28 posts in two different nomencla
E tures. 28 posts are made up of 19 posts designated as unspecified
Specialists' posts and 9 umpccified ipo~ts. Undoul:tedly 19 posts
which were designated as m1specifkd ,.Specialists' post must be filled
in from amongst those belonging to: the Specialists' grade but that itself
also shows th ct the rewaining 9 unspecified posts can be: filled in from
amongst those who may be promoted from~ General Duty_Officers· grade
F I because General Duty Officers grade-I are also· promotable to super-
Ume grade-II. The :nomenclature umpccififd Specialists' post and
unspecified post~provides an effective anower and indicates that while
in the case of the former promotion rr.t''t te given frcm Specialists in
respect of the latter General Duty Officers Grade-I would be eligible
G for promotion. Merely because all 28 posts' were deducted from the
strength of pnts in Spcciaifrts' grfde it ccu'd rct ce mid that all 28
posts would te available for promotion to tbos(belcngingto Specialists'
grade only. The language employ rd in iule 5 aim points in this
dire~tJon. Tbere is, therefore, no substance in the contention that
all 28 posts must be filled in by promotion from amongst those who
B ·belong to Specialists' grade only.
(I) (1973) 3 S.C.R. 117.

'
N. c. SH!NGHAL v. UNION (Desai, J.) 57

I: The last limb of the argument is that the 19 unspecified Specialists' A
posts in supertime grade II cau only be filled in by promotion and not
in any other manner and particularly not by transfer. The provocation
• for this submission is posting of Dr. B. S. Jain in supertime grade II
post created at Willingdon Hospital in February 1971. Undoubtedly
one unspecified Specialists' grade post was converted and was designated
as specified post in supertime grade II in Ophthalmology speciality B
at Willingdon Hospital in February 1971. Appellant says that once an
unspecified Specialists' grade post was converted into a specified post
and that as it was assigned to Ophthalmology speciality, he being the
seniormost Ophthalmologist and qualified for the post, that post could
only be filled in by promotion and. he should have been promoted and
the posting of Dr. B. S. Jain:by transfer to that post was illegal and in-
c
valid. Rule 8 provides for future maintenance of the Service. Rule
8(3) provides for 50% of the vacancies in supertime grade II to be
filled in by promotion of General Duty Officers Grade I and Specialists'
grade officers in the ratio of2:3 and the remaining 50% of the vacancies
to be filled in by direct recruitment in the manner specified in the second D
schedule. Now, once an unspecified specialists' grade post in super-
time grade II is converted and made a specified post in a speciality it
is an addition to the strength of the speciality and the filling in of such
post shall be governed by rule 8 (3). Undoubtedly if it is to be filled in
by promotion, that would only be from amongst those belonging to
Specialists' grade officers as the converted post was unspecified Specia- E
lists' post. But to say that it can be filled in only by promotion is
to ignore the mandate of statutory rule 8(3) which provides for filling
in posts in supertime grade II by either promotion or nomination in the
ratio therein prescribed. Once there is a post in supertime grade II
which is to be filled in subsequent to the initial constitution of the
Service, rule 8 (3) will be attracted in all its rigour. And it should not be F
overlooked that rule 8 (3) provides for filling in of posts in supertime
grade II by promotion as:well as by direct recruitment in the ratio of 1:I.
On a true interpretation of the 1966 Rules in general and rule 8 (3) in
particular it could not be, gainsaid that whenever an unspecified
Specialists' post is converted into a specified post and assigned to a
G
speciality it can be filled in either by promotion or by direct recruitment
as the 'ituaticn wurrnts 2crcrding to the rule and as determined by the
quota rule. But it was very strenuously contended that the Central
Government in implementing the rule has understood and in fact im-
plemented the rule to this effect that whenever an unspecified
Specialist's post is converted as a specified post and assigned to a H
speciality it can only be filled in by promotion. Reliance was placed
upon an affidavit made on behalf of the Central Government in a writ
5-189 SCI/80
58 SUPREME COURT REPO~us [1980] 3 S.C.R.

A petition filed by Dr. B. S. Jain in Delhi High Court. In the counlet·
affidavit on behalf of the Central Government a stand was taken that -.
the 19 unspecified Specialists' posts were meant only for promoting
category 'C' clinical Specialists to supettime grade IT. In Union of ~
India v. Bhim Singh & Ors., (1) the Court refers to the stand taken on
behalf of the Union of India in that case as under :
B
"Learned counsel for the appellant (Union of India)
submits that these posts were included in supertime grade II
not with reference to the actual number of officers who had
completed 8 years of service or more on a particular date but
only with a view to providing opportunities of promotion
c to the ,former Category 'C' officers holding clinical
Specialist posts''.
It does appear that such a stand was taken on behalf of the Union
of India but simultaneously it may be noted that the Court has not
accepted the stand. And it would be too late in the day to say that
on such a stand of the Union of lndia, if it runs counter to the rule
D explicit in meaning, any argument can be founded or any relief can
be claimed unless estoppel is urged. And no such estoppel is claimed
InP. C. Sethi & Ors. v. Union of India & Ors., (2) the petitioners urged
that the view put forward on their behalf had been admitted by the
Government in its affidavit filed in connection [with certain earlier
proceedings of similar nature and other admissions in Parliament on
behalf of the Government. Negativing this contention this Court
held that such admissions, if any, which are mere expression of opinion
limited to the context and not specific assurances, are not binding on
the Government to create any estoppel. Similar view was also ex,
pressed in J. K. Steel Ltd. v. Union of India(>) where following the earlier
F decision of this Court in Commissioner of Income.' tax, Madras v. K. Sri-
nivasan and K. Gopalan, (4) it was observed that the interpretation
placed by the Department on various sub-sections in the instructions
issued by the Department cannot be considered to be proper guide in
a matter wherein the construction of a statute is involved. Therefore,
it cannot be said that 19 unspecified Specialists' posts could only be
G filled in by promotion and such an interpretation or stand would run
counter to the express provision contained in rule 8(3) which is statu- •
tory. Even if such be the stand of the Central Government it will
have to be negatived and was in fact negatived in the case of Dr. B.
S. Jain.
(I) [1971] 2 S.L.R. 111 at p. 124.
H (2) [1975] 3 S.C.R. 201 at 210.
(3) [1969[ 2 S.C.R. 481at498.
(4) [1953] S.C.R. 486.
N. c. SHINGHAL v. UNION (Desai, J.) 59

Incidentally it would be incongruous to hold that when a post A
is created in a certain grade, category or cadre and it is to be filled in,
• some one who is already in that grade, category or cadre cannot be
transferred to that post and the post so vacated by him can be filled
in, in the manner prescribed. Even if there was some substance,
though there is none, in the contention on behalf of the appellant
' that whenever unspecified Specialists• post is converted into a speci- B
fied post it can only be filled in by promotion yet when some one
who is already in that grade is transferred to the newly created
post and the post vacated by such transferred employee is offered
by way of promotion which in fact was done in this case there is
any violation of the rule. As pointed out earlier, when a post is
created it is an addition to the strength of that particular category and
c
the additional strength has to be filled in in the manner prescribed
in the rule and that no sanctity attached to the place where the post is
created but the sanctity attaches to the number of posts and the manner
of filling them. Now, Dr. B. S. Jain was already holding the post in
supertime grade II at Simla when a post in supertime grade II in Opthal- D
mology was created at Willingdon Hospital from amongst unspecified
Specialists' posts. Even if this additional post has to be filled in by
promotion as contended by the appellant, it is not open to him to urge
that the post at Willingdon Hospital alone must have been filled in by
Promotion. Dr. B. S. Jain was transferred to the post created at
Willingdon Hospital and the post vacated by him which was in supertime E
grade II was offered to the appellant as and by way of promotion.
Therefore, even if the contention of appellant is to be accepted, there
is no violation of rule 8(3). Equally it is also not correct to contend
that Dr. B. S. Jain could not have been transferred to the post created
at Willingdon Hospital. Transfers in posts which are in the same
grade or are considered equivalent can be affected on administrative
exigencies. Once a new post is created and it is an increase in the
strength of the Cadre in which the post is created, every one in that
cadre is eligible to fill in that post and transfer is permissible. Transfer
of Dr. B. S. Jain is, therefore, beyond question. In E. P. Royappa v.
State of Tamil Nadu & Anr., (1) it is observed that the services of cadre
officers are utilised in different posts of equal status and responsibility G
because of exigencies of administration and employing the best avail-
able talent in suitable post. There is no hostile discrimination in
trnnsfer from one post to other when the posts are of equal status and
lesponsibility. Therefore, it is futile to urge that filling in the post
created at Willingdon Hospital in supertime grade II by transfer of Dr.
B. S. Jain, a person already promoted to supertime grade II was invalid H

(1) [1974) 2 S.C.R. 348 at 363.
60 SUPREME COURT REPOR'I;; [1980] 3 S.C.R.

A inasumuch as the post was not filled in by promotion or direct recruit-
ment but by transfer.

The next contention is that the refusal of the appellant to accept
the post at Simla offered to him will not debar him from promotion
because the appellant was not qualified for the post at Simla. If
B an employee eligible for promotion is offered a higher post by way
of promotion, his refusal to accept the same would enable the employer,
the Central Government in this case, to fill in the post by offering it
to a junior to the Government servant refusing!to accept the post and
in so acting there will be no violation of Art. 16. Further, the Govern-
ment servant who refuses to accept the promotional post offered to
u him for his own reasons:cannot then be heard to complain that he must
he given promotional post from the date on which the avenue for prom-
otion opened to him. Appellant being"conscious of this position tried to
circumvent it by· saying that the Post. at Simla offered to him by way
of promotion in super time grade II was a teaching post for which he
was not qualified and, therefore, his refusal to accept the same cannot
D come in his way from claiming promotion from the very date on which
he refused to accept the promotion to a post for which he was not
qualified. Appellant went so far as to suggest that the Government
action in offering him the post at Simla was . actuated by malice in
that while making a show of offering him a promotional post it so
deliberately acted as would impel the appellant to refuse the same.
E Says the appellant that onepost from the pool of unspecified specialists,
posts was converted to a specified post in Ophthalmology and was sanc-
tioned at Willingdon Hospital which is not a teaching hospital and,
therefore, the appellant was fully qualified for being promoted to that
post. Instead of acting in this straightforward manner the Government
transferred Dr. B. S. Jain from Simla to the post newly created at
F
Willingdon Hospital and purported to offer the Simla post to the ..-k·
appellant for which appellant was not qualified and thus deliberately
thwarted the promotional opportunity of the appellant and that this
smacks of malice. To substantiate this submission the appellant points
out that the designation of the post at Simla was Chief Ophthalmo-
G ligist-cum-Associate Professor of Opthalmology, Himachal Pradesh •
Medical College, Simla. This:according to the appellate was a teach-
ing post and the qualification prescribed by the regulation framed by
the Medical Council of India requires as an essential qualification a
teaching experience as Reader or Assistant Professor in Ophthalmology
for five years in a Medical College after requisite post-graduate quali-
H fication. It was further stated that the appellant had no teaching quali-
fication though he started teaching at the Safdarjang Hospital when
he was recognised as a post-graduate teacher in Ophthalmology but
N. c. SHINGHAL v. UNION (Desai, J.) 61

his teaching experience extended to barely two weeks. It was also A
said that essential teaching experience prescribed by the Medical Coun-
cil of India under its regulation is not relaxable and that, therefore,
• appellant was not qualified for the post of Associate-Professor which
was offered to him. In S.B. Koh/i's case (Supra) this Court did observe
that a discretion to relax teaching experience qualification is conferred
only on the U. P. S. C. in cases of direct recruitment and not to the B
' Departmental Promotion Committee in case of promotion. That
being the intent of the law it is to be given effect to. This observation
is in a slightly different context but one may safely proceed on the
assumption that essential teaching qualification for the post of an Asso-
ciate Professor prescribed by Medical Council of India is not relaxable.
Therefore it can be said with some justification that the appellant who c
did not have the requisite teaching experience was not qualified for
the post of Associate Professor. But this want of qualification impelling
refusal to accept promotion appears to be an afterthought on his part.
When the promotional post was offered to him as per letter dated
December 7, 1970, appellant did not reply by saying that he was not
qualified for the post. In his reply dated December 9, 1970, to the D
offer made by the Government appellant pointed out that he was in-
volved in some litigation with regard to his house and that his stand
for eviction would be weakened by his transfer. · He then proceeded
to point out that he was suffering from chronic bronchitis and that
the climate at Simla may not suit him. He also pointed out the adverse
E
effect of climate on the health of his wife. He then proceeded to point
out that apart from his personal problems he was engaged in the Saf-
darjang Hospital for teaching of post-graduate students and, there-
fore, he requested the Government "the post of Chief Ophthalmologist-
cum-Associate Professor of Ophthalmology may kindly be bestowed
on me at Safdarjang Hospital where there is essential need for such F
a post". Could this be the stand of a person offered a promotional
post honestly believing that he was not qualified for [the same? The
post offered to him was of Chief Ophthalmologist-cum-Associate Pro-
fessor. Appellant believes and now says that he was nofqualified for
the same if the post was at Simla but if the same post was created at
Delhi with the same designation with the same responsibility for teach- G
ing and that too at the post-graduate level he considered himself
to be fully qualified for the same and requested the Government to
bestow that post on him. He then proceeds to point out his merits
and puts forth his disinclination for being promoted to the post at
Simla. In the face of his bold statement that he is prepared to be
appointed as Chief Ophthalmologist continuing to do teaching work B
at the post-graduate level at the Safdarjang Hospital, he now wants
to assert that he was no: ~ualiticd for the post. This convenient after·
62 SUPREME COURT REPORTS [1980] 3 S.C.R.

thought cauuol decry the fact that the appellant declined to accept the
post at Simla not because he believed he was not qualified for the post
but because he was not inclined to leave Delhi, may be for reasons
which may be true and compelling for him. This becomes explicit from
a further averment in paragraph 7 of his reply wherein he pointed
out to the Central Government that even though he was selected by
B the U. P. Government for the post of Chief Medical Officer, Gandhi ,
Memorial Eye Hospital, Aligarh, on a fabulous salary of Rs. 3,000/-
p. m. and which offer was transmitted to him through the Government
40 as to enableithe Government to release him and although the Govern-
ment was considering his release on deputation for the post but he
himself declined the offer because of domestic problems. There is ---(
c thus no room for doubt that the appellant considers himself qualified
for any post in Delhi and was under no circumstances willing to leave
Delhi and his disinclination to accept any post at Simla stemmed not
from his honest belief that he was not qualified for the post but because
he was not inclined to leave Delhi. Undoubtedly it may be that under
the regulation stricto sansu he may not be qualified for the post of
D
Associate Professor because he did not possess the requisite teaching
experience. But an ad hoc arrangement could have been made and
it was open to the central Government, if the appellant had accepted
the post, to move the Medical Council of India to permit the Central
Govenment to appoint the appellant at Simla. Some way could have
E been found but the door was bolted by the appellant himself declining
. i the offer for reasons other than his qualification which he may have
found compelling. In this background it is difficult to accept the sub-
mission of the appellant that the offer made by the Government was
an eye wash or a make-believe and, therefore, his refusal to accept the
offer of promotion would not postpone his promotion.
'F Incidentally it would be advantageous to take note of the fact at this
stage that the appellant was promoted to supertime grade II on July --~
17, 1978 and between February 1971 when he declined to accept
promotion and July 1978 when he was in fact promoted, no one junior
to him in the speciality to which he belongs was ever promoted over-
G riding his claim to supertime grade II. Therefore, if since his refusal to
accept promotion at Simla appe1lant was never superseded by any one
junior to him in his speciality it is difficult to entertain the contention
that in refusing promotion to him when some posts were converted from
unspecified Specialists' posts into different specialities and were filled
in by those who were qualified to be promoted in the respective specia-
u lity in which the post was created he could be said to have been super-
seded in violation of Art. 16. And in this view of the matter nothing
more need be examined but as certain other contentions were advanced
N. c. SHINGHAL v. UNION (Desai, !.) 63

which even if accepted would not in any case benefit the appellant, it A
appears to us an exercise in futility but we would rather dispose them of
than gloss over them.

In the High Court appellant canvassed twofold contention that
between 1966 and 1971, i.e. after the initial constitution of service
and before the proposal offering promotion to the appellant at Simla
was made 25 promotions were given to supertime grade II to persons
who were ineligible for the same and secondly after February 1971 and
before July 1978 when he was actually promoted to supertime grade
II, 29 promotions were given to supertime grade II some of whom are
respondents 4 to 24 and that their promotion was in contraven_!iq.n_.- ,
of rule 8(3) of the Rules and, therefore, invalid. Before tlrll:"'COurt C
the first limb of the argument, namely, invalidating pnimotions bet-
ween 1966 and 1971 to supertime grade II was not canvassed. It was
the second limb of the argument that was pressed into service. None
of those who were promoted between February 1971 and July 1978
belonged to the speciality to which appellant belongs. Each of them
belonged to a different speciality and admittedly appellant was not D
qualified for being promoted to any supertime grade II post in the
speciality in which each one of them was promoted. When this aspect
became clear a question was posed to the appellant how he would be
benefited even if his contention were to prevail that none of them was
eligible for promotion to supertime grade II and, therefore, the pro-
motion of each of them deserved to be quashed. The answer was that E
there is a common seniority list of persons belonging to supertime grade
II and promotion to supertime grade I is by seniority and that promotion
of respondents 4 to 24, if quashed, would push the appellant
higher up in seniority above them and would enhance his chances of
promotion to supertime grade I. Remote chances of promotion could
F
hardly be said to be condition of service which if impaired would be
violative of Art. 16. Even assuming that a remote chance of promotion
if adversely affected would give a cause of action, it was made clear
that the appellant is retiring on superannuation in the last quarter of
this year and that even if he is assigned a deemed date of promotion
somewhere in February 1971 yet there are number of persons above G
him in supertime grade II who were promoted between 1966 and 1971
and appellant has not even a remote chance of promotion. Appell-
ant at that stage reacted by saying that even if it be true, yet the pro-
motions of respondents 4 to 24 ought to be quashed because when he
with respondents 4 to 24 and others belonging to supertime grade II
attend a meeting convened to discuss some administrative matter or for R
holding charge of higher post temporarily vacant they claim seniority
over him and his dignity is impaired.. This calls for no comment save
•

l
64 SUPREME COURT REPORTS [1980] 3 S.C.R.

A and except saying that the approach appears to be more emotional
rather than realistic. However, the contention may be examined on
merit.
'
Promotion of respondents 4 to 24 was questioned on the ground
that each of them was ineligible for promotion to supertime grade II
on the date on which each of them was promoted in view of the pro-
vision contained in rule 8(3). Rule 8(3) has been extracted herein '
before. The contention is that since the initial constitution of service
on September 9, 1966, any future promotion to supertime grade II
·"' . from departmental candidates could be from amongst those who qualify
·~same as provided for in rule 8(3). Apart from academic quali-
C fication;'the experience qualification prescribed is that, the General
Duty Officers grade I and Specialists' grade officers should have put
in IO years and 8 years of service respectively in that category. ·Appel-
lant contents that service in the category means service in that cate-
gory which was constituted under the 1966 amendment (rules. Rule
2(c) defines category to mean a group of posts specified in column 2 of
D the table under rule 4. Rule 4 provides for classification, categories
and scales of pay. It provides that there shall be four categories in
the service and each category shall consist of the grade specified in
column 2 of the table appended to the rule. The four categories are:
first category which includes supertime grade I and supertime grade If
posts: Category two is Specialists' grade posts, category three
comprises General Duty officers, grade I and category four includes
General Duty Officers grade II. It was contended that the service to be
rendered for the qualifying period must be in the category and, there-
fore, a general Duty Officer grade I can only become eligible for pro-
motion after he renders IO years of service in that category which came
F into existence on September 9, 1966, and this would apply mutatis mutan-
dis to the Specialists' grade officers who must put in 8 years of service
in the category which came into existence on September 9, 1966. If
this contention were to prevail, apart from anything else, appellant
himself would not have been qualified for promotion to supertime
grade II in February 1971 from which date he claims.as being eligible
G for promotion to supertime grade II because he had not put in 8 years
of service in the category of specialists' grade officers formed on Septem-
ber 9, 1966. That apart, it is impossible to overlook the history of the
Service. The rules were initially framed in 1963. Afthat time the service
was.sought to be classified in 5 categories styled categr·ry 'A' to category
'E'. Expression 'category' in 1963 Rules was defined to mean a group
H of posts carrying the same scale of pay. Another salient feature of
which notice should be taken is that save and except upward revision
in scale, category I under the 1966 amendment Rules includes cate-
•
N. c. SHINGHAL v. UNION (Desai, !.) 65

gories 'A' and 'B' under 1963 Rules. Category 'C' has been desig- A
nated as Specialists' grade, i.e. category II under the 1966 Rules.
Category 'D' is equated with General Duty Officers grade I styled
category III and category 'E' is equated with General Duty officers
grade II, i. e. category IV. Expression 'service in the category' has to
be understood in this historical backgrouP.d. It is difficult to entertain
the contention that the past service of Specialists' category 'C' officers B
got wholly wiped out merely because the nomenclature of category 'C'
Specialists officers was changed to Specialists' grade officers replacing
the expression 'category C' by category II. And that would apply
mutatis mutandis to General Duty Officers grade I and grade II.
The change in the definition of the expression 'category' appears to be
instructive in that by the change service in the post is emphasised and c
the question of the grade of pay is relegated into background. And this
change appears to be with a purpose inasmuch as when certain qualify-
ing service is prescribed for being eligible for promotion in a category
the emphasis is on service rendered in a post irrespective of the grade.
A specialists' grade officer belonging to category II was a specialists'
grade officer in category C. He was even then eligible for promotion to D
supertime grade II. Was it ever intended that a Specialists' grade
officer belonging to category 'C' under 1963 Rules who had put in more
than 8 years of service but who was not promoted prior to September
9, 1966, the date ofinitial'.constitution of service, or on th~date of initial
constitution of service, would be ineligible for promotion for a period
of 8 years simply because the designation of the category changed?
E
Was it intended that there should be a complete hiatus for a period of 8
years in promoting Specialists' grade officers to supertime grade II and
for a period of 10 years in case of General Duty Officers grade I.
There is no warrant for such an inference from the Rules. Such an
intention cannot be attributed to the framers of the Rules nor is it
F
possible to accept the submission of the appellant that the posts could
have been filled in by direct recuritment because where candidates
eligible for promotion were not available it was open to resort to
direct recruitment as provided in the Rules. It is a well recognised
canon of construction that the construction which makes the Rules
• otiose or unworkable should be avoided where two constructions are G
possible and the Court should lean in favour of the construction which
would make the rule workable and further the purpose for which the
rule is intended. While prescribing experience qualification in 1966
Amendment Rules, the framers of the Rules could not have intended
to ignore wholly the past service. A specialist who was in category
'C' was included in category II with the designation specialists' grade H
officer. Similarly, General Duty Officer grade I in category 'D'
-acquired the same nomenclature General Duty o;licer grade I in cate-
66 SUPREME COURT REPORTS (1980] 3 S.C.R.

A gory III. There was an upward revision of pay scales of both the
categories. Should the change in designation be understood to mean
that the past service rendered as Specialist or as General Duty Officer
is wholly wiped out for any future promotion ? Even after change of
designation it is not suggested that the duties underwent any change.
Same duty was performed a day prior to September 9, 1966, and the
B day thereafter by both the categories in the respective posts. In this
background the High Court was right in holdingthat the word 'cate-
gory' used in rule 8(3)(a) has to be understood to mean the post includ-
ed in that category and consequently service in that category would
mean service in a post included in that category.

c The appellant contended that this construction would run counter
to the posting of former categories 'D' and 'E' officers on probation on
September 9, 1966, in specialists' grade and General Duty Officers
grade I. In this connection it must be recalled that on initial consti-
tution of Service some persons who were in the category of General
Duty Officers were absorbed and appointed in Specialists' grade and
D vice versa was true of some persons. It is equally true that Officers
belonging to categories 'D' and E' were considered in a category
lower to category 'C'. It is equally possible, therefore, that on Sep-
tember 9, 1966, i.e. the date of initial constitution of Service some of the
officers belonging to categories 'D' and 'E' who were absorbed in
categories II and III respectively may have been put on probation but
.E for qualifying service for upward promotion service rendered as pro-
bationer is not to be ignored. Viewed from either angle it is crystal
clear that service rendered in equivalent post prior to the date of initial
constitution of Service could be taken into account in calculating quali-
fying service for next promotion. This was the stand taken by the
Government in the affidavit filed in Civil Writ No. 1155/71 filed by
F
Dr. Chandra Mohan in the High Court of Delhi and that appears to
be consistent with the construction of rule 8(3). The contention,
therefore, that executive instruction cannot run 'counter to the statu-
tory rule must be rejected as untenable in the facts of this case.

G
It was next contended that the Government was guilty (of legal •
malice in that in February 1971 on a need being felt, a post in
supertime grade II in Ophthalmology speciality was sanctioned at
Willingdon Hospital and filled in by transfer of Dr. B.S. Jain overlook-
ing and ignoring the rightful claim of appellant and on transfer of Dr.
B.S. Jain on March 7, 1972, to Safdarjang Hospital, the post was also
H transferred to Safdarjang Hospital. In this connection appellant
also pointed out that there is material on record to show that the Super-
intenden(of Willingdon Hospital felt an acute need for a post in super-
N. c. SHINGHAL v. UNION (Desai, !.) 67

time grade II in Ophthalmology speciality and yet it was not created A
while on the other hand in order to accommodate some favourites
like respondents, 4, 5, 8, 9, 12, 13 and 15 some posts in different
specialities where they could be accommodated were created without
the need for the same. There is evidence to the effect that appellant
had sent a proposal duly recommended by Medical Superintendent Of
Safdarjang Hospital to the authorities for creating a supertime B
grade II post in Eye Department in May 1971 as per letter dated
May 3, 1971. There is also material to show that some ad hoc appoint-
ments were made in supertime grade II. It is, however, not possible
to strike down those appointments on the ground that some posts were
created in supertime grade II though not needed wherein some of the
respondents were promoted or that there was no justification for creation c
of posts or for making ad hoc appointments. It should be distinctly
understood that not a single post was created in Ophthalmology specia-
lity to which appellant could have been appointed The need for the
post of the requirements of the hospital, or the need for an ad hoc or
additional appointment is a matter which the Government is competent
to decide and in the absence of requisite material the Court cannot I>
interpose its own decision on the necessity of creation or abolition of
posts. Whether a particular post is necessary is a matter depending
upon the exigencies of the situation and administrative necessity.
The Government is a better Judge of the interests of the general public
for whose service the hospitals are set up. And whether a hospital
E
catering to the needs of general public providing medical relief in diffe-
rent specialities has need for a particular post in a particular speciality
would be better judged by the Government running the hospital.
If Government is a better judge it must have the power to create or
abolish the posts depending upon the needs of the hospital and the
requirements of general public. Creation and abolition of posts is a F
matter of Government policy and every sovereign Government has
this power in the interest and necessity of internal administration. The
creation or abolition of post is dictated by policy decision, exigencies
of circumstances and administrative necessity. The creation, the conti-
nuance and the abolition of post are all decided by the Government in
the interest of administration and general public (see M. Ramanatha G
Pillai v. The State ofKera/a and Anr)(1 ). The Court would be the least
competent in the face of scanty material to decide whether the Govern-
ment acted honestly in creating a post or refusing to create a post or its
decision suffers from ma/a fide, legal or factual. In this background it
is difficult to entertain the contention of the appeliant that posts were
created to accommodak some specific individuals ignoring the require- H
ments of the hospital or the interests of the general public at forge.
(I) [1974] I S.C.R. 515 at 520.
68 SUPREME COURT REPORTS [1980] 3 S.C.R.

A It was Pext contended that respondent 9, Dr. K.P. Mathur and
respondent 23, Dr. A. R. Majumdar should have been considered in-
eligible for promotion because both of them were adversely commented
upon by the Madras High Court as being negligent in discharge of duties
and the Government had to pay a sum of Rs. 10,000/- as compensation
'
by way of damages for their negligence. He sought inspection of some
B files to substantiate this allegation. Unfortunately though respondents
9 and 23 were made parties they did not appear to controvert this fact.
But it appears from the record that they were promoted after they were
selected by the Departmental Promotion Committee and the promotion
was approved by U.P.S.C. Appellant contended that this averment on
his part has remained uncontroverted and it must be taken as having
c been admitted and proved. It may be mentioned that in the petition
filed by the appellant in the Delhi High Court this allegation was not
specifically averred. In a subsequent affidavit filed by him this alle-
gation was put forth. If respondents 9 and 23 had not appeorcd in
the High Court the appellant should have shown that this
subsequent affidavit was served upon them, and in that event alone some
D
adverse inference may be drawn against them. It may be that the
Government may not be interested in either denying or admitting this
averment which directly and adversely affects respondents 9 and 23.
However, in view of the fact that they were selected by the Departmental
Promotion Committee and the promotion was approved by the
E U.P.S.C. it is difficult to entertain the contention at the hand of the
appellant who is not in any way going to be benefited by the inva lida-
tion of their promotion
It was incidentally urged that promotions given to respondents
9, 12, 13 and 15 must be set aside because they belonged to former
category 'D' and were given promotions against 19 unspecified posts
F in contravention of the affidavit of the Government. As stated
earlier, there were some specialists in category 'D' also; At the time of
initial constitution of service those who qualified for being appointed
General Duty Officers from category 'D' were absorbed in category
III and those who were eligible for being absorbed in Specialists' grade
were so absorbed. After absorption they belonged to the respective
G
category. Thereafter on conversion of posts from the pool of 19
unspecified specialists' posts they were promoted as being found qualified
for the same and for the post to whic~-each one of them was promo-
ted appellant was not qualified and, therefore, the contention that the
promotion of the aforementioned four respondents should be set
n aside has no merit in it.
Having examined the challenge to the promotion of respondents
4 to 24 on merits, it must be made clear that the appellant is least
N. c. SH!NGHAL I'. UNION (Desai,!.) 69

qualified to question their promotions. Each one of them was promot· A
ed to a post in supertime grade II in a speciality other than ophthal·
mology and appellant admittedly was not qualified for any of these
posts. Even if their promotions are struck down appellant will not
get any post vacated by them. Incidentally High Court also upheld
their promotions observi>tg that by the time the petition was heard
' each one of them had requisite service qualification and, therefore, the. B
promotions could not be struck down. Once the challenge on merits
fails the second string to the bow need not be examined. Having said
all this, appellant is least competent to challenge their promotions. In
a slightly comparable situation this Court in Chitra Ghosh and Anr. v.
Union of India and Or<. (1) observed as under:
"The other question which was canvassed before the High c
Court and which has been pressed before us relates to the
merits of the nominations made to the reserved seats. lt
seems to us that the appellants do not have any right to
challenge the nominations made by the Central Govern·
ment. They do not compete for the reserved seats and have
D
no locus standi in the matter of nomination to such seats.
The assumption that if nominations to reserved seats are
not in accordance with the rules all such seats as have not
been properly filled up would be thrown open to the general
f
pool is wholly unfounded."
It was last urged that the High Court has set aside the promotion E
of respondent 18, Dr. P. C. Sen who was promoted in 1971 and,
therefore, there was an opening in supertime grade II in September 1971
and appellant should be considered eligible for promotion to the post
from that date and that this Court should consider appellant's eligibility
for promotion from September 1971 and if found eligible, should grant
the same. Dr. P.C. Sen was General Duty Officer grade I and he was r
posted as Director of.Health Services, Manipur. Appellant contends
that he was in Specialists' grade and was senior to Dr. Sen and was not
unqualified for the post of Director of Health Services, Manipur, but
the post was not offered to him and, therefore, he must be considered
eligible for promotion from the date on which Dr. P .. C. Sen was
• promoted. The High Court in L.P.A. 46/74 filed by the appellant G
has set aside the promotion of Dr. P.C. Sen as also of Dr. Jasbir Kaur
• but the High Court has not thought fit to direct the Government by
a mandamus to consider eligibillity of the appellant forthe post of Director
of Health Services, Manipur. There is no material before us whether
the appellant was qualified for the post. If he was eligible it would be
H
for the Government to consider how it should deal with the post. We
(1) (1970) 1 S.C.R. 413 at 420.
70 SUPREME COURT REPORTS (1980] 3 S.C.R.

are, however, surprised that the appellant who was not prepared to go
to Simla in February 1971 would have been willing to go to Manipur
in September 1971. In our opinion it would be giving him an unfair
advantage now by giving a technical benefit of a situation whereby '
promotion of Dr. Sen has been invalidated by the High Court. Neither
Dr. Sen nor the Government have preferred appeal against the judg-
B .ment by which the promotions of Dr. P.C. Sen and Dr. Jasbir Kaur
were invalidated by the High Court. But the matter must remain at
that stage and there is no justification for giving a direction that the
appellant should be considered for the post which is deemed to have
fallen vacant in September 1971 on the invalidation of promotion of
Dr.P.C. Sen. In this connectionitmaybepointedout that sometime
c after the hearing was over in this Court learned counsel for the appel-
lant has circulated a letter that the High Court has set aside the pro-
motion ofrespondent 7, Dr. Ramesh Prasad Singh as also of respon-
dent 21, Dr. Brij Gopll Misra. It is undoubtedly true that the learn-
ed single Judge who heard the petition initially had set aside the pro-
D motion of Dr. Brij Gopal Misra to the post of Regional Deputy
Director, N.M.E.P., Hyderabad. But neither from the judgment
of the learned single Judge nor from the judgment of the Division
Bench it is possible to ascertain that the promotion of Dr. Ramesh
Prasad Singh has been invalidated. No direction in that behalf can
be given.
,
..

E Before we conclude it may be pointed out that on the conclusion
of hearing of this appeal in order to heal the wound caused by impaired
dignity of the appellant as herein before mentioned, a suggestion was
made to the Governmentto see if the present appellant could be accom-
modated in some way where he may not feel the humiliation which he
claims he suffers. Mr. P. Parameswara Rao, learned counsel for the
F
Government promised to discuss the matter with the Government and
ultimately on March7, 1980, the Central Government offered the post of
Director and Head of the Department for a prograwme concerned with
vision impairment and amelioration thereof. Jo that post the appeJJant
would be the Head of the Department ancl would continue to be in
G supertime grade IL This offer did not appeal to the appellant and ..
the matter was left at that.
There is no substance in any of the contentions urged on behalf of
the appellant and, therefore, this appeal fails and it is dismissed with
no order as to costs.
H

v.n· Apoea/ dismissed.