Holding

The promotions to the 35 floating/common super‑time grade posts are selection posts and must be made on merit, not merely on seniority; the Tribunal’s seniority‑based order was erroneous.

Summary

The Union created 35 floating/common super‑time grade posts in the Central Health Service and, through the UPSC, prescribed a selection process involving a Departmental Promotion Committee (DPC) and an eligibility list. Dr. P. Rajaram (respondent No.1) challenged his lower ranking, alleging that promotions were made solely on seniority, contrary to the intended merit‑based selection. The Central Administrative Tribunal held that promotions should be based on seniority, directing that Rajaram be placed above the higher‑ranked doctors. On appeal, the Supreme Court examined Rule 4(10) of the Central Health Service Rules, 1982, the meaning of "suitability" in clause (iii), and the applicability of Schedule II and Rule 8(4)(ii). The Court concluded that the posts are selection posts, requiring assessment of merit by the DPC, and that "suitability" aligns with merit‑based selection, not mere seniority. Consequently, the Tribunal’s order was set aside and the appeals were allowed, confirming the merit‑based promotion rankings.

Issues considered

Whether promotion to the 35 floating/common super‑time grade posts under Rule 4(10) of the Central Health Service Rules, 1982 is to be made on merit (selection) or on seniority‑cum‑fitness.
Interpretation of the term "suitability" in Rule 4(10)(iii) and its effect on the method of promotion.
Whether the floating posts are covered by Schedule II of the Rules, thereby invoking Rule 8(4)(ii) which mandates selection on merit.
Whether the Central Administrative Tribunal erred in directing promotion solely on seniority.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309

Subjects

promotionmerit vs seniorityCentral Health Service Rulesfloating postsDepartmental Promotion Committeeselection postsUPSCsuper‑time gradesuitability

Judgment

UNION OF INDIA A
v.
DR. P. RAIARAM AND OTHERS

OCTOBER 20, 1992

[LAUT MOHAN SHARMA, S. MOHAN AND B
N. VENKATACHALA, JJ.]

Civil Services:

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

35 posts in super time grade of Central Health Services were sane· D
tloned and proposals were sent to the Union Public Service Commis·
slon(UPSC) for convening Departmental Promotion Committee (DPC)
meetings for selection of candidates. UPSC approved to amend Rule 4(6)
of Central Health Service Rules of 1982. It also approved the method of
recruitment, field of selection and principles of seniority to fill up the 35 E
posts as one time measure in the absence of notified recruitment rules.
The Commission also stipulated that these 35 posts were to be treated as
common posts to be Included in the category of tloating posts for the
teaching and non-teaching sub-cadres mentioned in Rule 4(6) of Central
Health Services Rules, 1982. The eligibility condition stipulated was three
years as Professor falling which 17 years of regular service in Group 'A'. F
The communication of UPSC together with the eligibility list of Professors
was circulated and errors/omissions/objections etc. were to be intimated
to the Ministry within one month.

The DPC met and selected candidates. Respondent No.1 was as· G
signed 14th rank and Respondent No. 3 was assigned 4th rank. The
selected candidates were promoted and appointed.

Respondent No.1 filed an application before the Central Ad·
ministrative Tribunal claiming that he was senior to respondent No. 3 and
other doctors and since the promotion was only on the basis of seniority, H
35
36 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A those doctors should not have been shown above him. The Tribunal gave
a finding that promotion to the post of Director/Professor should be made
on the basis of seniority and directed that Respondent No. 1 should be
posted above tile respondents arrayed in the application before it.

Being aggrieved by the Tribunal's order, Union of India preferred
B the first of the two appeals. Respondent No. 3 in that appeal bas preferred
the other appeal.

On behalf of the appellants/respondent No. 3, it was contended that
Rule 4(10)(ii) and (iii) as amended merely prescribed the procedure for
C preparation of eligibility test; that the procedure has not been prescribed
in any other Rule as the posts were created as floating posts; that the
posts did not pertain to any particular super speciality or sub-cadre of ,.
Professor/Director and so the criteria for preparation of eligibility list bad
to be prescribl!d for determining inter-se ranking between the sub-cadres;
that merely because Rule 4(10)(iii) contained the word 'suitability' it did
D not supersede, alter or amend the criteria for selection and that the word
'suitability' ha.• to be understood in the light of the guidelines of DPC.

Allowing the appeals, this Court,

E HELD : 1.1. If there is to be an assessment of merit, the principle of
selection is involved. On the contrary, if it were merely a seniority-cum-fit-
ness there is no need to associate the Union Public Service Commission
as pointed out in the guidelines. All these lead only to one. conclusion that
these are selection posts. That is dealt with apart from Rule 4, sub-
rule(lO), clause (iii), and also under paragraph 6.1.2 of the guidelines
F issued by the Government of India. According to the guidelines the
Departmental Promotion Committee is to devise its own method and
procedure for objective assessments of suitability of candidates. It is note·
worthy in paragraph 6.3.1 that the procedure for the preparation of the
panel for promotion by the Departmental Promotion Committee is
G delineated. (51 C, DJ
1.2. Pan1graph 7 of the guidelines deals with non-selection method
and it dispenses with the requirement to make a comparative assessment
of the records, In such a case what is required is to categorise the officers
as fit or not y<:t fit for promotion on the basis of assessment of the record
H of service. Therefore, the word "suitability" in Rule 4(10)(iii) having regard

..
U.0.l. v. P. RAJARAM 37

to the nature of the post and grade could only mean suitability for the A
purposes of being selected to the said post. [51 G, H; 52-A]

1 2. It is a common case between the parties that these 35 floating
posts were created by sub-rule 10 of Rule 4 in addition to the authorised
strength. If as per the rule, for the post falling under authorised strength
the method of selection is adopted it must equally apply to the post B
created in addition to the authorised strength. A careful reading of Rule
8(4)(ii) reveals that departmental promotion to higher post in the respec-
tive special cadres and specialities within the sub-cadre concerned shall
be made on the basis of selection on merit. It implies that, should vacancy
arise in a particular speciality, this method is to be adopted. In contradis- C
tinction to this, under Rule 4(10)(iii) even though one of the floating or
common posts may be held by a particular person of a particular
speciality, the said post can go to a person not belonging to that speciality.
The teaching speciality sub-cadre forms a class within itself since it
comprises of 29 specialities. Thus it follows the word "selection" used in
•· Rule 8(4)(ii) is with reference to inter se merit of persons l>elonging to a D
particular speciality with regard to the vacancy occurring in that
speciality. [52 D-H]

3. The first respondent was served with a copy of letter dated
3.11.1988 in which the appellant clearly stated that the 20 posts of Direc- E
tor/Professor of super-time grade are to be filled by selection method viz.
merit with regard to seniority. Therefore, the decision of Government of
India had been conveyed to the first respondent and be sbonld have
immediately voiced bis protest. Of course, the failure to protest would not
deprive him of a legitimate right if be is entitled to in law. [53 A,B]
F
4. After examination of the character roll of the senior most eligible
officers the committee assessed the officers. The first respondent was
rated as "very good" while .the rating for respondents 2 to 5 was "outstand-
ing". So they go en bloc above the first respondent since the first respon-
dent is merely "very good". This is because of the application of clause II G
of paragraph 6.3.1. of the guidelines. It was on this basis the Departmental
Promotion Committee assigned rank No. 14 to the first respondent. Pur-
suant to this the President of India issued the order of promotion dated
17th January, 1990. Paragraph 3 of tlie order clearly states that the
promotions will be personal to the officers concerned and the posts
presently held by them will stand upgraded to the super-time grade In the H
38 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A scale in terms of the Ministry's order dated 15.3.1989. Hence the Trlbnnal
was in error in merely adopting seniority as the basis of promotion and
not merit. (53 C·G]

CIVJLAPPELLATE JURISDICTION : Civil Appeal Nos. 4507 and
4508 of 1992.
B
From the Order dated 20.1.1992 of the Central Administrative
Tribunal, Madras in 0.A. No. 925 of 1990.

K.T.S. Tulsi, Addi. Solicitor General, Kapil Sibal, C.V.S., Rao, C.
Ramesh and Ranjit Kumar for the Appellant.
c
P.P. Rao, V. Balachandran, R.P. Oberoi and B.S. Gupta for the
Respondents.

The Judgment of the Court was delivered by

D MOHAN J. Leave granted.

Both these appeals can be dealt with by a common judgment since
identical issues are involved. They are directed against the judgment of the
Central Administrative Tribunal, Madras dated 23.1.1992. S.L.P. No.
E 7138/92 is preferred by Union of India while S.L.P. No. 6494/92 is filed by
the affected party (Dr. M. Khalilullah).

The parties are referred to as mentioned in S.L.P. No. 7138/92. The
facts are as under.

F The President of India sanctioned 35 posts in super-time grade of
Central Health Services in the scale of Rs. 5900-200-6700 plus non-practising
allowance at the normal rates as admissible to other similar posts. The
sanction was upto 29.2.88. The sanction was conveyed by the Under Secretary
to the Govermnent of India, Ministry of Health and Welfare, New Delhi on
G 26.8.1987. After the creation of these posts, proposals were sent to the Union
Public Service Commission for convening the meetings of the Departmental
Promotion Committee for selection of candidates for promotion. The Union
Public Service Commission approved to amend Rule 4(6} of Central Health
Service Rules of 1982. It also approved the method of recruitment, field of
selection and principles of seniority to fill up these 35 posts as a one time
H measure in the absence of notified recruitment rules. In its communication
U.0.1. v. P. RAJARAM (MOHAN, J.] 39

dated 29.9.88 the Union Public
"/
Service Commission besides referring to the A
above approvals specifically, stated:

"These 35 posts may be treated as common posts both at
present and in future to be included in the category of the
floating posts for the Teaching and Non-Teaching sub-
cadres mentioned in Rule 4( 6) of the CHS Rules of 1982. B
The eligibility conditions for promotion will be 3 years of
regular service as Professor/Specialist Grade I failing
which Professors/Specialists Gtade I with 17 years of
regular service in Group 'A' 11
•

In the end, the Commission advised that the basis of eligibility and
c
the eligibility list might be circulated to all concerned, their objections
invited and settled before the meeting of Departmental Promotion Com-
mittee (Health). It also requested that the final eligibility list might be sent
to the Union Public Service Commission. On 3.11.88, this decision was
conveyed to all the concerned parties stating that it has been decided to D
fill np the posts by selection method i.e. merit with regard to seniority. The
eligibility conditions for promotion will be 3 years of regular service as
Professor failing which should be Professors with 17 years of regular service
in Group 'A'.
E
Together with that letter was enclosed the eligibility list of Professors.
On the basis of the principles stated in the letter, errors/omissions/objec-
tions etc. were to be intimated to the Ministry within one month.

In the eligibility list included, Dr. P. Rajaram, the first respondent,
was assigned rank No. 13 while Dr. M. Khalilullah, the third respondent F
was assigned the rank No. 24.

On 20.9.1989, in accordance with the guidelines dated 10.3.89, the
Departmental Promotion Committee met for Selection of officers for the
promotion to the super-time grade posts of Director-Professor in the G
Central Health Service.

It requires to be stated that these posts were extended from time to
time. Each extension was for a period of one year. Ultimately by an order
dated 2.4.1992, it has been extended for a period of one year up to
28.2.1993. H
40 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A Consequent upon the selection by Union Public Service by an order
dated 17.1.1990, the President was pleased to appoint under Rule 4(10) of
the Central Health Services Rules, 1982 the officers of Specialist Grade I
of the Teaching Special.is! sub-cadre of the Central Health Service to
supertime grade of the Teaching Specialist sub-cadre of the Central Health
B Service. They were posted as Director-Professors on an officiating basis in
the pay scale of Rs. 5900-6700 plus non-practising allowance @ Rs. 950
p.m. The dates of promotions were indicated against each of the appointee.
As far as Dr. Rajaram, the first respondent is concerned, he was assigned
rank No. 14 and the date of promotion was as 1.4.1989 while respondent
No. 3, Dr. M. Kbalilullah was assigned rank No. 4 and the date of
C promotion was as 1.4.1989. Paragraph 3 of the order specifically states that
the above promotions will be personal to the officers concerned and the
posts presently held by them will stand upgraded to the supertime grade
in the scale of Rs. 5900-6700 plus non-practising allowance @ Rs. 950 p.m.
in terms of Ministry's order No. A-11011}5/88-CHS IV, dated 15.3.1989.
D This will continue till the upgraded posts are held by the offict;rs being
promoted now.

Aggrieved by the order dated 17.1.1990, the first respondent (Dr.
Rajaram) preferred an application No. 925 of 1988 on 6.7.1990. In that
application, he had stated that he was senior to Dr. B.S. Rana, Dr. M.
E Khalilullah, Dr. KK. Jain and Dr. D.D.S. Kulapathy. They should not have
been show above him. The promotion was only on the basis of seniority.

In opposition to this, the respondent in the application who has
secured a higher rank w·ged that the Departmental Promotion Committee
had ranked Dr. Rajaram at serial No. 14 on the basis of merit. The criterion
F for promotion is only merit.

Before the Tribunal, the scope of Rule 4 sub-rule (10), clause (iii) of
Central Health Service Rules, 1982 (hereinafter referred to as 'the Rules')
came up for interpretation. The Tribunal, in the impugned judgment,
G accepted the cont·ontion of Dr. Rajaram and held that promotion for the
post of Director/Professor should be made on the basis of seniority.
Consequently, it dfrected that he be posted above the respondents who had
been named in the application.

It is under these circumstances, the present S.L.Ps. ha'e been
H preferred by Union of India as well as by Dr. Khalilullah.
U.0.1. v. P. RAJA RAM [MOHAN, J.] 41

Mr. Kapil Sibal, learned counsel appearing for Dr. M. Khalilullah A
after taking us through the rules submits that rule 4(10) (i) of the Rules
deals with 35 newly created floating/common posts in the supertime grade
Rs. 5900-6700 in the Teaching and Non-Teaching Specialist sub-cadre.
These posts were in addition to the authorised strength of posts in the
supertime grade. The authorised strength of both categories of Teaching B
and Non-Teaching sub-cadres is reflected in Schedule !I. Rule 4(10) (ii)
stipulates that promotions to these posts are to be made on the basis of
common eligibility list to be drawn separately for the Teaching Specialist
sub-cadre and the Non-Teaching Specialist sub-cadre. This has to be
without reference to any of the specialities in respective sub-cadres.
c
Rule 4(10) (iii) stipulates that the eligibility list shall be made after
the officer concerned has been duly assessed by a Departmental Promotion
Committee in regard to the officer's suitability for holding the post with
the condition that the said officer should have completed three years of
regular service as Professor (Specialist) Grade I. This rule does not stipu- D
late the manner in which the suitability of the said officer is to be assessed
by the Departmental Promotion Committee. Schedule JV of the Rules talks
of the constitution of the Departmental Promotion Committee. It is clearly
stipulated that in each meeting of the Departmental Promotion Committee
the Chairman/Member, Union Public Service Commission shall chair the
Departmental Promotion Committee. There are also guidelines issued to E
the Departmental Promotion Committee. The guidelines stipulate that the
Departmental Promotion Committees constituted under the respective
Service Rules shall judge the suitability of officers for promotion to selec-
tion as well as non-selection posts. Here again, the Union Public Service
Commission should be associated with Departmental Promotion Commit- F
tee in respect of Central Civil Services posts belonging to grade 'A' where
promotion is based on the principle of selection unless it has been decided
by the Government of India not to associate the Union Public Service
Commission. The Union Public Service Commission need not be associated
in respect of posts belonging to Grade-A if the promotion is based not on
the principles of selection but on seniority-cum-fitness. Wherever the G
Union Public Service Commission is associated with Departmental Promo-
tion Committee, the Chairman or a Member of the Commission will
preside over the meeting of Departmental Promotion Committee.

When Schedule IV requires that the Departmental Promotion Com- H
t
42 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A mittee (Services) ought to be presided over by the Chairman or Member ...
of the Union Public Service Commission itself suggests that the said posts
ought to be filled in by way of selection rather than on the basis of
seniority-cum-fitness. Consequently, the word 'suitability' in Rule 4(10)(iii)
in the context of nature of posts, its grade, can only mean suitability for '.
the purposes of being selected to the said post. This submission is made
B
on the basis that Rule 4(10) is a complete code in itself.

Even if this post falls outside the Schedule II, the basis of promotion
cannot be seniority. In terms of Rule 3 of the Rules, the Central Health
Service consists of persons appointed to the service under sub-rule (5) of
C Rule 4 and Rules 7 & 8. It is the contention of the appellant that under
Rule 4(3), Government of India is entitled to make temporary additions to
or reductions in the strength of 'duty posts' in the various grades as deemed
necessary from time to time. Duty posts are defined in Rule 2(e) stating
that these are posts with designations specified in Part A of Schedule II
D whether permanent or temporary. When this definition is read along with
Rule 4(1) (ii) and Rule 4(1) (iii), it is clear tha: temporary additions or
reductions in the number of duty posts can take place from time to time.
These 35 floating/common posts were created for the first time on August
26, 1987 and administrative orders have thereafter been issued from time
to time extending the creation of the said 'duty posts' without amending
E Schedule II.

Certainly, these post:; were part of authorised strength at the time of
initial constitution of the Service. Rule 8 contemplates that any vacancy
arising in any one of the grades referred to in Schedule II shall be filled
F in, as provided in Rule 8(4) (ii). The difference between Rule 4(10) (iii)
and Rule 8(4) (ii) is that whereas in the latter the promotion is to be made
with reference to a post in the Teaching Specialist sub-cadre or the
Non-Teaching Specialist sub-cadre on account of any vacancy occurring
therein, in a particular speciality, in the case of the former, notwithstanding
the fact that one of the 35 floating/common posts may be held by a
G particular person of a particular speciality, the said post can go to a person
not belonging to that speciality, since the Teaching Specialist sub-cadre
forms a class by itself whici1 comprises 29 specialities. It is in this context,
therefore, that the said prn:ts could not be included in Schedule II, since
Schedule II conceives of particular posts with reference to particular

•
H specialities. It is, therefore, clear that whereas the word 'selection' used in
U.0.1. v. P. RAIARAM [MOHAN, J.] 43

Rule 8(4) (ii) is with reference to inter-se merit of persons belonging to a A
particular speciality with reference to a vacancy occurring in a speciality,
the word 'suitability' is not with reference to any particular speciality but
with reference to the inter-se merit of candidates based on their confiden-
tial reports and assessed by the Departmental Promotion Committee
belonging to any of the 29 specialities, who would be considered most B
suitable to be promoted, since the concept of seniority-cum-fitness cannot
possibly be applied to a common set of posts without reference to any
speciality.

Thus, it is submitted that to determine the meaning of suitability, the
same yard-stick must be adopted. C

In any event, these are highly specialised posts. Hence, it is unthink-
able that the promotions to these posts is based on the principle of
seniority-cum-fitness and not on the basis of selection. The word
'suitability' will have to he interpreted as seniority-cum-fitness. Otherwise,
it would be liable to struck down as unconstitutional being violative of D
Articles 14 and 16 of the Constitutions. Therefore, it is submitted that the
Rule must be so interpreted as not to violate the fundamental rights. The
Tribunal had gone wrong in adopting the principle of seniority and its
interpretation of Rules cannot be sustained.

Learned counsel for Union of India, Shri K.T.S. Tulsi, supporting the
E
arguments of Shri Kapil Sibal, urged that the order creating these posts
clearly mentioned that the posts are created in the super-time cadre of
Central Health Service. Rule 4(10) (ii) and (iii) as amended merely
prescribe the procedure for preparation of eligibility list. This procedure
is nowhere prescribed in any other Rule. This was because of the fact that F
the 35 posts were created as floating posts. They did not pertain to any
particular super speciality or sub-cadre of Professor/Director. Therefore,
criteria for preparation of eligibility list had to be prescribed for determin-
ing inter-se ranking between the sub-cadre. Merely because Rule 4(10) (iii)
contains the word 'suitability', the said Rule does not supersede, alter or G
amend the criteria for selection. The word 'suitability' will have to be
understood in the light of the guidelioes of Departmental Promotion
Committee.

These 35 posts referred to in Rule 4(10) are an integral part of the
cadre. The said posts were not added to Schedule II, forming part of the H
44 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A temporary strength of the cadre. However, on August 10, 1992, the said
posts have been added to Schedule II so as to make its intention clear that
the promotion is to be governed by all the relevant Rules and not by Rule
4 (10) when read in isolation from the remaining Rules. Thus, it is sub-
mitted that the reasoning of the Tribunal is unsupported.

B Mr. P.P. Rao, learned oounscl on behalf of Dr. P. Raja Ram would
urge as under.

The initial argument particularly on behalf of the Union of India was
that these floating/common posts of super-time grade of Teaching
C Specialist sub-cadre formed part of authorised strength of the Central
Health Service in terms of Rule 4 (10). This was contested by this respon-
dent that Schedule II has not been amended till date so as to include these
posts. Instead of frankly achnitting the mistake, there was a deliberate
attempt to justify the inclusion of these 35 posts as part of Schedule II. This
is nothing but misleading the Court. This alone is enough to dismiss the
D Special Leave Petition.

Even on merits, Rule 4(10) states that the posts are to be filled up
by the method of promotion and on the basis of an eligibility list. The note
also lays down that the eligibility list shall be prepared with regard to the
E date of completion of the prescribed qualifylli~ years of service in their
respective grades, by the officers. Further clause (iii) of sub-Rule (10) adds
the requirements of assessment by a Departmental Promotion Committee
in regard to the suitability of each officer for holding the post while
considering his case for promotion on the basis of common eligibility list.
The words "his suitability' in the said clause (iii) are very significant. They
F postulate assessment of suitability of each candidate in the order in which
the names appear in the common eligibility list drawn on the basis of
continuous qualifying service rendered by them in the feeder Grade. The
scheme of sub-Rule (10) totally rules out selection on the basis of relative
merit of all eligible candidates.
G The difference between 'common posts' and 'floating posts' is that
while in 'common posts', a Professor on being promoted to one of the
'common posts' moves to that post and vacates the post of Professor
previously held by him, while in 'floating posts' the post held by him is
upgraded and he continues to work in the same speciality, in the same
H institution.
U.0.1. v. P. RAJARAM [MOHAN, J.] 45

The guidelines of the Departmental Promotion Committee are not A
of any assistance. Therefore, no argument can be advanced on this basis.
If guidelines were governed, there was no purpose in adding Rule 4(10)
(ii) and (iii). The basic distinction between the selection posts and non-
selection posts is, whether it is to be filled by a comparative assessment on
merit of all eligible candidates or on the basis of continuous length of B
service. The guidelines say that there is no need to make comparative
assessment of records of the officers but it should categorise the officers
as fit or non-fit. It is a clear indication that there is 110 comparative
assessment involved.

The common eligibility list which talks of Rule 4( 10) is nothing but C
a combined seniority list of officers in different specialities drawn with
reference to the date of completion of the prescribed qualifying years of
service.

It is also incorrect to contend that it is a duty post as defined under
Rule 2(e). Such an expression as "duty post is absent under Rule 4(10).' D
When these posts had been created in order to release stagnation in
addition to authorised strength, presence of Chairman or Member of
Union Public Service Commission at the Departmental Promotion Com-
mittee does not make a non-selection post as selection post simply because E
the guidelines say in the case of non-selection posts, Union Public Service
Commission need not be associated. The fact that this respondent did not
raise any objection to the letter dated 3.11.1988, will not, in any manner,
deprive him of his right if the Rules confer such a right. Lastly, it is
submitted that if two views are possible, the view taken by the Tribunal
should be upheld. Thus, no interference is warranted. F

We shall now proceed to consider the merits of the above contentions.

35 posts in super-time grade of Central Health Service in the scale
of Rs. 5900-200-6700 plus non-practising allowance at the normal rates G
admissible to similar posts were created. These posts were to last till
29.2.1988. Time and again, they were extended.

The Rules which were relevant to appreciate the controversy whether
the promotion is on the basis of seniority or on the basis of merit may now
~~ H
46 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A In exercise of the power conferred under the proviso to Article 309
of the Constitution, the Rules called Central Health Service Rules, 1982
were framed.

Rule 3 speaks of the constitution of Central Health Service. This
service 'is to consist of persons appointed to the service under the Rules
B 4(5), 7 and 8.

Rule 4 speaks of authorised strength of service. Sub-rule (1) of this
Rule states that the authorised strength of duty posts and the deputation
posts are as specified .in Schedule II. Under sub-rule (3), the Government
C is empowered to make temporary additions or reductions in the strength
of both : (i) the duty posts (ii) deputation posts.

Sub-rule 6 (i) and (ii) may be quoted as follows :

(6) (i) "The Controlling Authority shall upgrade five posts
in the grade of Specialist Grade-I to supertime grade (three
D
posts in the Teaching Specialist Sub-cadre as Director·
Professor and two posts in the Non·Teaching Specialist
Sub-cadre or Public Health sub-cadre as Specialist (Con·
sultant) and twenty five posts in the grade of Specialist
Grade-II in the non·Teaching Specialist Sub-cadre or
E Public Health Sub-cadre or Associate Professor in the
Teaching Specialist Sub-cadre in the grade of Specialist
Grade· I without altering the combined authorised strength
of posts of the respective sub-cadre from which these posts
are temporarily upgraded.
F (6) (ii) The promotions under this sub-rule shall be made
on the basis of a common eligibility list covering all officers
in th.e respective sub-cadres without regard to any
specialities."

G It requires to be carefuHy noted that what is talked of is a common
eligibility list. In other words, this has only reference to eligibility. This is
an aspect which we want to e:nphasise even in the beginning.

Then, we come to sub-rule (10) which was introduced on 30.5.1989
which specifically deals with these 35 newly created floating/common posts
H .in the super-time grade of Rs. 5900-6700. These 35 posts are made up of
U.0.1. v. P. RAIARAM [MOHAN, J.] 47

20 posts in the Teaching Specialist sub-cadre as Director-professor and 15 A
posts in the Non-Teaching Specialist sub-cadre as Consultant. These posts
will be in addition to the authorised strength. It is common ground that
these posts were created to release stagnation. Earlier to this amendment,
- these posts in the Teaching Specialist sub-cadre were alone open to
Professors from all specialities. They were :
B
(i) Director, G.B. Pant Hospital, New Delhi.

(ii) Dean, Moulana Azad Medical College, New Delhi.

(iii) Principal, Lady Harding Medical College, New Delhi.
c
(iv) Director, JIPMER, Pondic'.terry.

(v) Dean, JIPMER, Pondicherry.

(vi) Deputy Director General (Medical), D.T.E., DGH, New Delhi.
D
As could be seen, the promotion posts available were very few and
were restricted to certain specific specialities. This led to .stagnation.
Therefore, the floating posts (20 + 15) were created to be filled in the
grade of Professor/Specialist Grade I (Rs. 4500-5700). It was in this back-
ground Rule 4(10) was introduced. That lays down :
E
"There shall be 35 newly created floatin~common
posts in the supertirne grade of Rs. 5900-6700 (Twenty
posts in the teaching specialist sub-cadre as Director-
Professor and fifteen posts in the Non-Teaching Specialist
sub-cadre as Consultant) which will be in addition to the
authorised strength of posts in supertime grade of Rs. F
5900-6700 in different sub-cadres of Central Health Ser-
vice."

Further clause (ii) of the above Rule lays down as follows:

"The promotions under this sub-rule shall be made on G
the basis of a common eligibility list to be drawn separately
for Teaching Specialist sub-cadre and Non-Teaching
Specialist sub- cadre covering all officers in the respective
sub-cadres viz. Teaching and Non-Teaching without
regard to any specialities". H
48 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A Here again, it talks of eligibility. In our opinion, eligibility means
interlacing of seniority list of different specialities.

Clause (iii) reads as under :

"The appointment against such posts shall be made only if
B the officer concerned has been duly assessed by a
Departmental Promotion Committee in regard to his
suitability for holding the post and has been working in the
grade of Professor/Specialist Grade I on a regular basis for
not less than three years, failing which, has been working
c as a Professor/Specialist Grade I with 17 years of regular
service in Group "A' postn.

The note is also made for our purpose that states :

"The eligibility list shall be prepared with reference to the
D date of completion by the officers of the prescribed qualify-
ing years of service in the respective grades. However, in
case of persons who have been appointed on the same date
the seniority shall be determined as under :

(a) Where the eligible officers were considered by the same
E D.P.C. the seniority shall be based on the order of merit.

(b) If there is no order of merit, the seniority shall be on
the basis of seniority in the feeder grade.

( c) If there is no seniority in the feeder grade or it is not
F possible to determine the seniority even in the feeder grade,
the length of regular service in the feeder grade shall be
the guiding factor :for determining the seniority.

(d) If length of sen ice in the feeder grade is also the same,
regular service in the ne~t lower grade shall be taken into
G
account, failing which date of birth".

It may be seen that clause (iii) states that the appointment is to be
made only if the officer com;erned has been duly assessed by a Departmen-
tal Promotion Committee i11 regard to his suitability for holding the post.
H Such a consideration will arise only if the concerned officer has been
U.0.1. v. P. RAJARAM [MOHAN, J.] 49

working in the grade of Professor/Specialist Grade I for a period not less A
than three years. The alternative qualification is 17 years of regular service
in Group 'A' post and the concerned officer has been working as a
Professor or Specialist Grade I.

This clause does not lay down the manner in which the suitability of
the officer is to be assessed. However, it is noteworthy that suitability is to B
be assessed by a Departmental Promotion Committee. As to what is stated
can be seen, when we look at Rule 2 which contains definitions. Rule 2(c)
says as under :

"Departmental Promotion Committee means a group 'A'
Departmental Promotion Committee specified in Schedule
c
IV for considering the cases of promotion or confirmation
in Group 'A' posts of the service. Group 'A' posts are of
the scale of Rs. 2200-4000 and above. Schedule Ill defines
the method of recruitment, the field of selection for promo-
tion and the minimum qualifying service in the immediate D
lower grade or lower grades for appointment or promotion
of officers to group 'A' duty posts and deputation posts in
the Central Health Service".

In Note 1 of the said Schedule, it is stated thus :
E
"Promotion to the post of Associate Professor (non-func-
tional selection grade),· Associate Professor, Specialist
Grade II (non-functional selection grade), Specialist
Grade II (Senior Scale) in non-teaching and public health
sub-cadres, Chief Medical Officer (non-functional selec- F
tion grade) and Senior Medical Officer will be on non-
selection basis. All the remaining posts are selection posts".

When it says all the remaining posts are selection posts, it is obvious
that the posts with which we are concerned are selection posts. Schedule
IV lays down the composition of Departmental Promotion Committee. G
With regard to the Teaching Specialist sub-cadre posts, super-time and
Specialist Grade I (Professor), the Departmental Promotion Committee
shall consist of the following :

(i) Chairman. Chainnan/Member, Union Public Service
Commission: H
50 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A (ii) Secretary or his nominee, Ministry of Health and Fami-
ly Welfare : Member.

(iii) Director General of Health Services or his nominee :
Member.

B (iv) One Departmental officer nominated by the Secretary,
Ministry of Health and Family Welfare: Member.

When Rule 4 (10) (iiil) talki; of Departmental Promotion Committee,
it is only this Departmental Promotion Committee in accordance with
Schedule IV that is thought of.
c
There are guidelines issued under the Office Memorandum of
Government of India dated April 10, 1989. Under this Office Memoran-
dum, the various instructions have been updated and consolidated. Under
these guidelines, the Departmental Promotion Committee so constituted
D shall judge the suitability of the officers for promotions to selection posts.
It has already been seen that these are selection posts as per Schedule II
of the Rules. In Paragraph 2.1 with reference to the post in question
carrying a scale of Rs. 5900-6700 or equivalent. The minimum status of
Officer who should be member of Departmental Promotion Committee is
prescribed as Secretary or Additional Secretary to Government of India.
E Paragraph 2.2 of the guidelines states as follows:

"The Union Public Service Commission (UPSC) should be
associated with DPCs in respect of all Central Ser-
vices/posts belonging to Group 'A' where promotion is
based on the principles of selection unless it has been
F decided by the Government not to associate the UPSC with
a Group 'A' DPC. The UPSC need not be associated in
respect of posts belonging to Group 'A', if the promotion
is based not on the principles of selection but on seniority-
cum-fitness".
G
Paragraph 2.4 also stresses the fact that whenever the Union Public
Service Commission is associated with the Departmental Promotion Com-
mittee the Chairman or a Member of the Commission will preside over the
meeting of the Departmental Promotion Committee.

H The contention of Mr. P.P. Rao, learned counsel for the respondents
U.0.1. v. P. RAJARAM [MOHAN, J.] 51

that the nature of the post or the method of promotion need not be decided A
with reference to the guidelines is not correct. In Rule 4, sub-rule (10),
clause (iii), to which a reference has already been made, the assessment is
required to be done by a Departmental Promotion Committee. It is for
such a Committee that guidelines have been prescribed. Therefore, we
cannot altogether ignore these guidelines.
B
From the above two paragraphs it is clear that if there is to be an
assessment the principle of selection is involved. On the contrary, if it were
merely a seniority-cum-fitness there is no need to associate the Union
Public Service Commission as pointed out in Paragraph 2.3 qf the
guidelines. All these lead only to one conclusion that these are selection C
posts. Having arrived at this conclusion then the question would be what
exactly is the meaning of the word "suitability'. That is dealt with apart from
Rule 4, sub-rule (10), clause (iii), also under guidelines in Paragraph 6.1.2.
The Departmental Promotion Committee is to devise its own method and
procedure for objective assessment of suitability of candidates. It is D
noteworthy in Paragraph 6.3.1 that the procedure for the preparation of
the panel for promotion by the Departmental Promotion Committee is
delienated. Clause (ii) is very important and we extract the same :

"In respect of all posts which are in the level of Rs. 3700- E
5000 and above, the benchmark grade should be 'very
good'. However officers who are graded os 'Outstanding'
would rank en bloc senior to those who are graded as 'Very
Good' and placed in the select panel according upto the
number of vacancies, officers with same grading maintain-
ing their inter se seniority in the feeder post." (Emphasis F
supplied)

In contradistinction to this when we look at paragraph 7 of the
guidelines, which deals with non-selection method, that dispenses with the
requirement to make a comparative assessment of the records. In such a G
case what is required is to categorise the officers as fit or not yet fit for
promotion on the basis of the assessment of the record of service. In so far
as we are concerned with selection this paragraph does not have any
application whatever. Thus, therefore, the word "suitability" in Rule 4(10)(iii)
having regard-to the nature of the post and grade, could only mean suitability H
52 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A for the purposes of being selected to the said post. (Emphasis supplied)

Further, the expression "suitability" in the said clause does not, in any
manner, supersede alter or amend the criteria of selection prescribed in
the remaining rules as is applicable to super-time grade post. When the
expression "suitability" is construed harmoniously with other rules, the
B process of selection is inescapable as rightly contended by Mr. K.T.S; Tulsi,
learned Additional Solicitor General.

The argument of Mr. Rao that if these posts are by the method of
selection, clauses (ii) and (iii) and a note thereunder are wholly unneces-
C sary in Rule 4 (10), overlooks the fact that these clauses deal only with
eligibility.

It is a common case between the parties that these 35 floating posts
were created by sub-rule (10) of the Rule 4 in addition to the authorised
D strength. If as per the rule, for the post falling under authorised strength
the method of selection is adopted for the authorised strength it must
equally apply to the post created in addition to the authorised strength.
Though a good deal of controversy arose during the course of the argu-
ments whether these posts had been included in Schedule II or not, it was
E vehemently commented upon by Mr. P.P. Rao, learned counsel, that an
inaccurate statement was made by Union of India that controversy pales
into insignificance because of the Gazette Notification dated 10th of
August, 1992 including these 35 newly floating/common posts in Schedule
II. Therefore, if these posts form part of the authorised strength as to what
would be the bearing of Rule 8(4) (ii), requires to be considered. A careful
F reading of Rule 8(4)(ii) reveals that departmental promotion to higher post
in the respective special cadres and specialities within the sub-cadre con-
cerned shall be made on the basis of selection on merit. It implies that,
should vacancy arise in a particular speciality, this method is to be adopted.
In contradistinction to this, under Rule 4(10)(iii) even though one of the
G floating or common pas.ts may be held by a particular person of a particular
speciality, the said post .can g:o to a person not belonging to that speciality.
The teaching, speciality sub-cadre, forms a class within itself since it
11
comprises of 29 specialities. Thus it follows the word 11 selection used in
Rule 8(4)(ii) with reference,, to inter se merit of persons belonging to a
H particular speciality with regard to the vacancy occurring in that speciality.
U.O.L v. P. RAJARAM [MOHAN, J.] 53

Lastly, we may refer to one important fact. The first respondent {Dr. A
Raja Ram) was served with a copy of letter dated 3.11.1988. That clearly
states that the 20 posts of Director Professor of super-time grade are to be
filled up by selection method, merit with regard to seniority. Therefore, the
decision of Government of India had been conveyed to the first respon-
dent. The first respondent when he was put on notice should have imme- B
diately voiced his protest. Of course, the failure to protest would not
deprive him of a legitimate right if he is entitled to in law. However, it is
one of the points to be borne in mind.

The Departmental Promotion Committee met on 20th September,

. 1989 and the minutes have been placed before us. After examination of the
character rolls of the senior most eligible officers the committee assessed
the officers as given in Annexure I. The first respondent, Dr. Raja Ram
C

was rated as "Very good" while the rating for the other doctors is as follows:

1. Dr. B.S. Rana (2nd respondent) Outstanding
D
2. Dr. M. Khalilullah (3rd respondent) Outstanding

3. Dr. K.K. Jain (4th respondent) Outstanding

4. Dr. D.D.S. Kulapathy (5th respondent) Outstanding
E
Where respondents 2 to 5 are rated outstanding, they go 'en bloc'
above the first respondent since the first respondent is merely "very good".
This is because of the application of clause II of paragraph 6.3.1 of the
gnidelines quoted above. It was on this basis the Departmental Promotion
Committee assigned rank No. 14 to the first respondent, Dr. Raja Ram.
Pursuant to this, the President of India issued the impugned order of F
promotion dated 17th of January, 1990. Paragraph 3 of the order, which
we have quoted above, clearly states that the promotions will be personal
to the officers concerned and the posts presently held by them will stand
upgraded to the super-time grade in the scale of Rs. 5900-6700 plus
non-practising allowance at Rs. 950 per mensem in terms of the Ministry's G
order dated 15.3.89.

Above all these, we cannot lose sight of the fact that for posts of this
character in super-time grade carrying high salary, promotion could not be
accorded merely on the basis of seniority. In our considered view, it should
be on merit. H
54 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A For the foregoing reasons, we are clearly of the opinion that the
Tribunal had erred in merely adopting seniority as the basis of promotion
and not merit.

It is needless for us to consider whether these are duty posts since
we have taken the view that these posts fall within Schedule II of the Rules.
B
In the result, we set aside the impugned judgment of the Tribunal
and allow these appeals wit:hout costs. The reason why we are not awarding
costs in favour of the appellants is because of a specific objection by Mr.
P.P. Rao that.these posts have not been included in Schedule II by
C amending the said Schedul e. In respect of this, the Union of India persisted
0

in the argument that they had been included in Schedule II. Of course after
the Gazette Notification dated l0.9.92 the position may be different. But
that does not mean that the earlier incorrect statements by the Union of
India could be overlooked.

G.N. Appeals allowed.