Civil Appeal No 2104 of 1980
Appeal by special leave from the judgment and order dated the 30th July 1980 of the Himachal Pradesh High Court at Simla in CWP No 2 of 1980
WITH CIVIL APPEAL No 2384 OF 1980 Appeal by special leave from the judgment and order dated the 30th July 1980 of the Himachal Pradesh High Court at Simla in CWP No 288 of 1979
TU Mehta SK Sabharwal
A P Mohanty and CP Pandey for the Appellant In C A No 210480  for Respondent 2 in CA No 2384 of 1980
GL Songhi Vineet Kumar and Ashok Kaul for the Appellant in CA No 2384 of 1980
MM Abdul Khader and Miss A Subhashini for the Respondent State VM Tarkunde and CM Nayar for Respondent No 5 in CA No 2104 of 1980
The Judgment of the Court was delivered by VARADARAJAN J
These appeals by special leave are against the common judgment of a Division Bench of the Himachal Pradesh High Court rendered in Writ Petitions Nos 2 of 1980 and 288 of 1979
They were heard together by us in view of this Court s order dated 6111980
Writ Petition No 288 of 1979 was filed by Dr Jiwan Lal and Dr Mrs Damyanti Kapur against the State of Himachal Pradesh Dr SP Kapoor Dr RM Bali and Dr K Pandeya
Writ Petition No 2 of 1980 was filed by Dr RM Bali against the State of Himachal Pradesh and eight others including Dr Jiwan Lal Dr Mrs Damyanti Kapur Dr SP Kapoor and Dr K Pandeya who were respondents Nos 8 9 6 and 7 respectively in the Writ Petition
Dr SP Kapoor the appellant in CA No 2104 of 1980 is the second respondent in Writ Petition No 288 of 1979 and 6th respondent in WP No 2 of 1980
Dr Jiwan Lal 1048 the appellant in CA No 2384 of 1980 is the first petitioner in WP No 288 of 1979 and 8th respondent in W P No 2 of 1980
Writ Petition No 288 of 1979 challenged the reversion of Dr Jiwan Lal and Dr Mrs Damyanti Kapur the petitioners therein from the post of Deputy Directors of Health Services as illegal and violative of the conditions of service as also the provisions of the Constitution of India
In Writ Petition No 2 of 1980 Dr RM Bali prayed for quashing the seniority of specialists indicated in the office Memo dated 2111979 and Annexure PX 1 containing the list and for assignment of Serial No 1 in the seniority list to him
Dr RM Bali prayed for certain other reliefs also including declaration of the appointment of Dr SP Kapoor as Director of Health Services as null and void and for his case being considered for appointment to that post on the basis of the seniority prayed for in his Writ Petition
The case of Dr Jiwan Lal and Dr Mrs Damyanti Kapur the Writ Petitioners in WP No 288 of 1979 was that they were appointed as Deputy Directors of Health Services on a regular basis
The post of Deputy Director Health Services was held by Dr Jiwan Lal for 45 years and by Dr Mrs Damyanti Kapur for about 31 years
The appointment of Dr SP Kapoor the appellant in CA No 2104 of 1980 and Dr RM Bali and Dr K Pandeya respondents 2 and 4 in WP No 288 of 1979 as Deputy Directors of Health Services is contrary to the provisions of the Himachal Pradesh Health Services Rules 1974 hereinafter referred to as the Rules 
They were appointed in disregard of the rights of Dr Jiwan Lal and Dr Mrs Damyanti Kapur
The Departmental Promotion Committee constituted for making the appointment was not properly constituted as one of the members of the Committee namely the Principal Secretary to the then Chief Minister was unauthorisedly inducted into the Committee in the place of the Secretary to Government Health and Family Welfare Department Himachal Pradesh
Therefore the proceedings of the Committee are vitiated
The annual confidential reports of the petitioners Dr Jiwan Lal and Dr Mrs Damyanti Kapur were initiated by an officer who was not only junior to them but also an aspirant for promotion to the higher post along with them
There fore those confidential reports should not have been taken into consideration for further promotion by the Departmental Promotion Committee
The appointment of Dr SP Kapoor the appellant in CA No 2104 of 1980 Dr RM Bali and Dr K Pandeya res 1049 pondents 2 and 4 in that Writ Petition was made in haste on 3111979 immediately after the final seniority list was issued on 2111979 the appointment of Dr SP Kapoor the second respondent in WP No 288 of 1979 and appellant in CA No 104 of 1980 as Director of Health Services on the same day is illegal as he did not satisfy the conditions prescribed in the Rules and he did not have even the requisite qualifying service
Further the post of Director of Health Services must have been filled up from amongst the Health Services Grade I officers and not from amongst Specialists
The reversion of Dr Jiwan Lal and Dr Mrs Damyanti Kapur from the posts of Deputy Directors is illegal and violative of the conditions of their service as also the provisions of the Constitution of India
The case of Dr RM Bali the petitioner in WP No 2 of 1980 was that he was appointed as TB Officer TB Sanatorium Mandodhar a Gazetted Class 11 post with effect from 941955 and he continued to work as such till 2851962
He was thereafter appointed as Superintendent in that Sanatorium a Class I post and after joining the post he was selected for appointment on a regular basis through the Public Service Commission and he was confirmed in that post categorized as Category D  post and Class I post in the Central Health Services in 1966
The Medical and Health Department of Himachal Pradesh Government appointed him as Director of Health TB a Category D  post by a Notification dated 171963
He was inducted into the Central Health Services with effect from 991966 and included in the initial constitution of that Service and confirmed in that Service on 991968
But Dr Grover who has since retired and Dr SP Kapoor who were respondents 5 and 6 respectively in Writ Petition No 2 of 1980 were appointed merely on a temporary basis to the Central Health Service with effect from 1111966
The inter se seniority of Dr RM Bali the petitioner in W P No 2 of 1980 and Dr Grover and SP Kapoor in the Central Health Services Specialists  Grade had to be preserved and could not be disturbed at the time of absorption in the Himachal Pradesh Health Services having regard to the Punjab Reorganisation Act and the protection given to the members of the Punjab Service
In these circumstances Dr RM Bali prayed for quashing of the seniority list of the cadre of Specialists indicated in the office Memorandum dated 2111979 Annexure PX 1 containing in the list and assigning to him Serial No 1 in the seniority list
He also prayed for other reliefs including declaration of the appointment of Dr SP Kapoor as Director of Health Services as null and 1050 void and for his appointment to that post on the basis of the revised seniority claimed by him
The contention of the Himachal Pradesh Government the first respondent in WP No 288 of 979 was that Dr Jiwan Lal and Dr Mrs Damyanti Kapoor were appointed as Deputy Directors of Health Services on ad hoc basis
The Deputy Director s post is a selection post which cannot be claimed as of right by persons appointed on ad hoc basis by way of stop gap arrangement
The incumbent to the post of Secretary to Government Health and Family welfare was on leave from the 3rd to 9th November 1979 and the Principal Secretary to the then Chief Minister was appointed to function in his place as Secretary to Government in the Departmental Promotion Committee by order dated 3 111979
The constitution of the Departmental Promotion Committee was therefore perfectly valid
The annual confidential reports written by Dr Grover who was working on ad hoc basis were not the only reports taken into account by the Departmental Promotion Committee
That Committee did not take into account the reports of Dr J C Sharma about the work and conduct of Dr Jiwan Lal and Dr Mrs Damyanti Kapur
The post of Director of Health Services was manned on an ad hoc basis since the retirement of Dr Krishan Swarup in December 1973
The posts of Deputy Director also were manned on an ad hoc basis
These ad hoc appointments were necessitated by the absence of the final seniority list which was prepared only on 2111979 and since that impediment was over on 2111979 the Departmental Promotion Committee on 3111979 and orders of appointment to those selected by that Committee on that date were issued on the same day
The promptness in making the regular appointments was necessitated by the intention to make the regular appointment as quickly as possible after the preparation of the final seniority list on 2111979
Specialists are necessarily officers possessing post graduate qualifications while GDO Class I are as a rule only graduates
Therefore the Rule making authority divided the higher posts equally amongst the Officers of the two categories taking all factors into consideration
The appointment of Dr section P Kapoor the second respondent in WP No 288 of 1979 as Director of Health Services is valid Dr Jiwan Lal and Dr Mrs Damyanti Kapur were not Deputy Directors of Health Services on the date of selection of Dr SP Kapoor as Director of Health Services and therefore their claim for being considered for promotion to that post is wholly untenable having regard to Rule 93 of the Rules according to 1051 which only Deputy Directors could be considered for promotion to the post of Director of Health Services
The contention of the Himachal Pradesh Government the first respondent in WP 2 of 1980 was that the post of Superintendent TB Sanatorium held by Dr RM Bali the petitioner in that Petition was a junior Class I post until he was appointed to the Specialist grade of the Central Health Services with effect from 991966
Dr Grover and Dr SP Kapoor respondents 5 and 6 respectively in WP No 2 of 1980 were appointed to the Specialists  grade in the Central Health Services with effect from 1111966 though the Central Government kept the question of seniority open
Dr RM Bali exercised his option to join the Himachal Pradesh Health Service after a copy of the Rules was supplied to him
The final seniority of Dr RM Bali and others was fixed under the provisions of the Rule issued on 1011974
Seniority assigned to Dr RM Bali is strictly in accordance with the provisions of Rule 10 a iii of the Rules
The words whichever is earlier which occurred in the original Rule 10 ai and 10 aiii were deleted by the Amendment Rules 1966
The claim of Dr RM Bali for seniority on the basis of his ad hoc appointment is not tenable
The Central Government and Dr SP Kapoor respondents 2 and 6 in WP No 2 of 1980 had also filed counter affidavits opposing the Writ Petition
In the Central Government s counter affidavit it is stated that Dr RM Bali has been in the Specialist s grade only from 99 1966 and that Dr Grover and Dr SP Kapoor were appointed to the Specialists  grade on 1111966 leaving the question of seniority open
In the counter affidavit of Dr SP Kapoor reference is made to Government of India s letter dated 971971 which deals with the fixation of seniority of medical officers of the Punjab Government absorbed in the Central Health Services in the Himachal Pradesh Union Territory and states as follows
 The Central Health Services was constituted with effect from 991966 and the seniority of Medical officers appointed to the Service with effect from that date has been determined in accordance with the principles laid down in this Ministry s letter dated 2771967
In accordance with sub para 1 of this memoranda officers appointed to a grade of the Central Health Services under Rule 7A of the Central H Health Services Rules as amended by the Central Health Services Amendment Rules 1966 will rank en bloc senior 1052 in that grade under Rule 8 of the Central Health Services Rules 1963
The Officers of the Punjab Government were appointed to the Central Health Services with effect from 1111966 under Rule 8A of the Central Health Services Rules 1963
Those officers have come to the Central Health Service only after the initial constitution of that Service was over
In accordance with the principles laid down for the Central Health Services it is not permissible to assign them seniority in the Central Health Services over the officers appointed to the Central Health Services at the initial constitution of the Service
However as the Government of Himachal Pradesh have proposed to formulate their own Health Services and the Medical officers who opt from the Central Health Services are to be included in that Service those officers may be asked to exercise their option
In case they chose to remain as members of the Central Health Services their seniority will be reckoned only at the maintenance stage of the Central Health Services and they cannot get seniority in the Central Health Service on the basis of their prior service under the Punjab Government
Those Officers who opt to join the proposed Himachal Pradesh Health Service may however be given the benefit of their past continuous service while fixing their seniority in the Himachal Pradesh Health Service
At the time of formation of that Service these persons can be considered for inclusion in the initial constitution of that Service and their seniority fixed bearing in mind the principles mentioned in Shri AD Pande s DO Letter No 225167 SRS dated 14th February 1967
The learned Judges of the Himachal Pradesh High Court who heard these two Writ Petitions and other Writ Petitions jointly found that Dr Jiwan Lal Dr SP Kapoor and Dr Mrs Damyanti Kapur were appointed as Deputy Directors of Health Services on ad hoc basis in July 1975 and January 1976 respectively after the Rules came into force on 1911974 that it has not been contended by them that they had been appointed in accordance with the Rules or after relation of the Rules that Dr Jiwan Lal Dr Mrs Damyanti Kapur and Dr SP Kapoor were specifically appointed 1053 on ad hoc basis and that therefore Dr Jiwan Lal and Dr Mrs Damyanti Kapur cannot claim right to the post of Deputy Directors of Health Services or to seniority on the basis of their ad hoc appointments though they can add the period of such appointment in the matter of experience for promotion and confirmation in view of the addition of notice to Rule 9 of the Rules
Regarding the attack on the constitution of the Departmental Promotion Committee the learned Judges found that when the regular Secretary to the Government Health and Family Welfare Department was on leave the Principal Secretary to the then Chief Minister was appointed to function additionally as Secretary to Government Health and Family Welfare Department as per office order dated 2111979 and therefore the Departmental Promotion Committee has been properly constituted
Regarding the question whether seniority in the Himachal Pradesh Health Service is to be determined with reference to the date of joining the Central Health Service or with reference to the date of joining the Punjab Civil Medical Service Grade I in short PCMS 1 with Post Graduate qualifications on the date of appointment as Deputy Medical Superintendent  Resident Medical Officer Surgical Specialists Ripon Hospital from the date on which they were given the PCMS scale the learned Judges of the High Court found that the Central Health Service was constituted by the Central Government and the Health Service Rules hereinafter referred to as the Central Rules framed by the President of India in exercise of the powers conferred by Article 309 of the Constitution of India came into force with effect from 1551963 and that the Central Rules were amended by the Central Health Services Amendment Rules 1966
Before the Punjab Reorganisation Act came into force the State of Punjab had its own Health Service known as the PCMS with two grades Grade I and Grade Il
After the Punjab Reorganisation Act came into force and the Central Health Service was formed some persons belonging to the PCMS and some persons working as Medical officers in hospitals run by Local Bodies were inducted into that into that Service after they had exercised their option to be inducted therein
The Writ Petitioners and contesting employees respondents had been inducted into the Central Health Service after they had exercised their option
When the Himachal Pradesh Union Territory was in existence its Health Department was manned by officers of the Central Health Service But after Himachal Pradesh became a full fledged State the Himachal Health Service was constituted on 2411974 under the Himachal Pradesh Health Service Rules which 1054 came into force on 19174 and the members of the Central Health Service serving in the erstwhile Himachal Pradesh Union Territory were asked to exercise their option to continue in the new Himachal Pradesh Health Service
The writ petitioners and the contesting employees respondents exercised their option to continue in the Himachal Pradesh Health Service
The question for consideration was the basis on which seniority in the Himachal Pradesh Health Service is to be determined namely whether it is with reference to the date of entry into the Central Health Service or into the PCMS I with post graduate qualifications or the date of appointment as Deputy Medical Officer Surgical Specialists Ripon Hospital from the date on which they were given PCMS scales According to Rule 4 of the Himachal Pradesh Health Service Rules which relates to classification categories and scales of pay there are two wings in the Himachal Pradesh Health Service namely the General Wing and the Teaching Wing which are independent and not inter changeable except in regard to certain posts
The writ petitions had nothing to do with any of the officers in the Teaching Wing
The General Wing has six categories each having grades as specified in the table annexed to the Rules
We are concerned in these appeals with Specialists and Grade I officers
The officers who were concerned with the writ petitions were Specialists on the one hand and Himachal Pradesh Health Service Grade I officers on the other in respect of whom seniority is to be fixed on a separate basis
Under the Himachal Pradesh Health Service Rule 10 relating to fixation of seniority inter se seniority of departmental candidates absorbed under Rule 7 and 8 shall be determined under Rule 10 a ii as regards i Himachal Pradesh Health Service Grade I officers
from the date of regular appointment having been duly selected by the Union Public Service Punjab Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee in the grades of i PCMS I and ii GDO Grade I and under Rule 10 a iii as regards ii Specialists from the date of regular appointment having been selected by the Union Public Service Commission Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee in the following grades namely i Specialists Central Health Service ii PCMS I with post graduate qualifications and iii Deputy Medical Superintendent Resident Medi 1055 cal OfficerSurgical Specialists Ripon Hospital from the date on which the scale of PCMS I was given to them
It was admitted that as alleged in WP No 2 of 1980 Dr RM Bali was inducted into the Central Health Service on a regular basis only on 991966 and Dr Grover and Dr SP Kapoor respondents 5 and 6 in that Writ Petition were inducted into the Central Health Service only with effect from 1111966 and therefore Dr RM Bali was senior to Dr Grover and Dr section P Kapoor in the Central Service
Dr R M Bali and Dr section P Kapoor were both specialists
section P Kapoor contended before the High Court that he had been selected by the Punjab Service Commission on 2911965 and had post graduate qualifications when he was inducted into the Central Health Service
But Dr RM Bali contended that he was entitled to seniority from 161962 when he was appointed as TB Specialist at Mandodhar on an ad hoc basis or at least from 3131964 when he was regularly appointed after selection by the Union Public Service Commission
In Rule 10 a iii the words whichever is earlier which were originally found have been deleted retrospectively by an amendment as stated earlier
The learned Judges of the High Court held that seniority has to be determined on the basis of the date of induction into the Central Health Service and not on the basis of the earlier service if any in the PCMS though they have observed that the words whichever is earlier which occurred in the Himachal Pradesh Health Service Rule 10 a iii were omitted retrospectively in order to do justice in the matter of seniority to those doctors who came into the Himachal Pradesh Health Service from any local authority or PCMS and not from the Central Health Service
They have fixed the seniority of Dr RM Bali above Dr SP Kapoor on the basis that the former was inducted on 991966 and the latter was inducted on 1111966 into the Central Health Service and held that Dr DS Chauhan s seniority is rightly reflected in the Specialists
grade and they directed modification of the seniority of Doctors in the Specialists  grade in accordance with their decision namely on the basis of date of induction into the Central Health Service
Regarding writing of the annual confidential reports by Dr Grover and Dr JC Sharma the contention of the Himachal Pradesh Government in WP No 2 of 1980 was that Dr Sharma s reports were not taken into consideration that Dr Grover s reports were revised sometimes with additional remarks in favour or against H the incumbents by the higher authorities and that his reports were not the only reports which were taken into consideration by the 1056 Departmental Promotion Committee in November 1979
The learned Judges of the High Court accepted that contention of the first respondent and held that no prejudice has been caused to the writ petitioners while the annual confidential reports were considered by the Departmental Promotion Committee on 3111979
They quashed the seniority list of Specialists prepared on 2111979 as well as the notification dated 3111979 appointing Dr SP Kapoor the appellant in CA No 2104 of 1980 Dr K Pandeya and Dr RM Bali as Deputy Directors super time Grade II General and Dr SP Kapoor as Director
Health Services Super time Grade I General and directed the State Government to make the appointments to these posts on the basis of the modified seniority list to be prepared in accordance with the directions given in their judgment
They disposed of Writ Petitions Nos
288 of 1979 and 2 of 1980 as indicated above and directed the parties to bear their respective costs
The Himachal Pradesh Union Territory was constituted on 1111966
On and from the appointed day which in the present case is 1111966 Simla Kangra Kulu and Lahaul and Spiti districts and certain other areas in the original State of Punjab became parts of that Union Territory under section 5 of the Punjab Reorganisation Act Central Act 1966
The Central Rules 1963 came into force on the appointed day and were later amended by the Central Health Service Amendment Rules 1966
These Rules as amended are found on pages 336 to 346 of the paper book in CA No 2104 of 1980
The Central Health Service was constituted only with effect from 991966
This is clear from the letter dated 971971 from the Ministry of Health and Family Planning Department of Health Government of India addressed to the Secretary to Government Medical and Health Department Himachal Pradesh to which detailed reference will be made later in the course of this judgment
Dr RM Bali was regularly appointed in the specialist s grade of the Central Health Service on probation with effect from 991966 alongwith certain others pursuant to the power conferred by Rule 7AI of the Central Rules as amended in 1966 by the President s order No 1 367 CHS II dated 861967
At that time Dr RM Bali was working as a Specialist in the TB Sanatorium Mandhodhar Himachal Pradesh Union Territory a category D  post having been appointed on the recommendation of the Union Public Service Commission
According to the counter affidavit filed on behalf of the Himachal Pradesh Government in WP No 2 of 1980 the post of 1057 Superintendent TB Sanatorium Mandodhar was a Junior Class I post at that time
It has been up graded subsequently
Dr Jiwan Lal was appointed substantively on 21121946 as Assistant Surgeon Grade I and had been promoted as the Chief Medical officer in the Civil Surgeon s grade on 171958
According to paragraph 3 of the counter affidavit filed by Dr Jiwan Lal in SLP Civil No 6574 of 1980 he was appointed under rule 7AI b of the Central Rules as amended in 1966 to a post in the category of GDO Grade I on 991966 before the constitution of Himachal Pradesh Union Territory and was confirmed in the post on 991968 after the constitution of that State
Dr RM Bali and Dr Jiwan Lal were allotted to Himachal Pradesh Union Territory on its constitution
On the recommendation of the Punjab Public Service Commission Dr SP Kapoor was appointed by the Governor of Punjab as officiating Senior Medical officer against the up graded post of PCMS Class I by Memo No 177 4 MBI 65 dated 711965 with a direction to join the new assignment within a fortnight which he did on 2911965 and he was put on probation for a period of two years with effect from the date of taking charge of the post
After joining the post 13 as per that order Dr SP Kapoor was serving at a station which was in the territory of the former Punjab State prior to the date of its organisation which later became part of the Himachal Pradesh Union Territory under section S of the as mentioned above
During the period of his probation he had to come into the Central Health Service on the constitution of Himachal Pradesh Union Territory on 1111966 as he was allotted to that State and had been selected by the Union Public Service Commission in the same manner as Dr RM Bali had been selected
Thus all the three individuals Dr RM Bali Dr Jiwan Lal and Dr SP Kapoor came to be in the Central Health Service on the constitution of Himachal Pradesh Union Territory on 1111966
Dr SP Kapoor was appointed to Specialists  Grade in the Central Health Service along with Dr Grover and two others under Rule 8A of the Central Rules as amended in 1966 by the President s Order No F324865 CHS II V Il dated 268 1970 with effect from 1111966
Dr RM Bali was appointed along with another to the Specialists  Grade in the Central Health Service with effect from 991968 by the President s order No F 32 1670 CHS III dated 2711971
The full fledged Himachal Pradesh State was formed under Section 3 of the State of Himachal Pradesh Act 53 of 1970 a Cen 1058 tral enactment on and from the appointed day 2511971 and it comprised the Himachal Pradesh Union Territory
The Rules Himachal Pradesh Health Service Rules came into force on 1911974
Consequent on the exercise of option for being absorbed in the Himachal Pradesh Health Service on the terms and conditions stipulated in the Rules and keeping in view the recommendations of the Screening Committee appointed under Rule 7 of those Rules the Governor of Himachal Pradesh appointed Dr Grover Dr SP Kapoor Dr RM Bali and Dr DS Chauhan as Specialists on the General Side and Dr K Pandeya Dr Jiwan Lal Dr Jyoti Prasad and Dr Mrs Damyanti Kapur as Himachal Pradesh Grade I Officers with effect from 24 11974 by his order No 1 1575 HFP dated 961975 in the categories to which they had been appointed prior to the commencement of the Rules as amended
In that order relating to seven Specialists and four Himachal Pradesh Health Grade I Officers Dr Grover Dr SP Kapoor Dr RM Bali and Dr DS Chauhan are ranked as Nos 2 3 6  7 respectively among Specialists while Dr Jiwan Lal and Dr Mrs Damyanti Kapur are ranked later as Nos 2 and 4 respectively amongst Himachal Pradesh Health Service Grade I officers
This was after the Governor of Himachal Pradesh in view of the Central Government s concurrence to the transfer of the officers of the Central Health cadre to the Himachal Pradesh Health Service and on the recommendations of the Screening Committee constituted under Rule 7 of the Rules appointed nine Doctors as Professors on the Teaching Wing 19 Doctors as Specialists in the Teaching Wing 10 Doctors including SP Kapoor and Dr RM Bali as Specialists on the General Side and Dr K Pandeya and Dr Jiwan Lal as Himachal Pradesh Health Service Grade I officers by his Order No 11575 HFP dated 961975
As stated earlier we are not concerned in these appeals with any of the Doctors on the Teaching Wing
In that order dated 961975 also Dr Grover Dr SP Kapoor and Dr RM Bali are ranked as Nos 2 3 and 6 respectively amongst the General Side Specialists while Dr Jiwan Lal is ranked later as No 2 and below Dr K Pandeya amongst the Himachal Pradesh Health Service Grade I officers
Thus it is seen that Dr SP Kapoor and Dr RM Bali are Specialists on the General Side and that Dr Jiwan Lal and Dr Mrs Damyanti Kapur l are Himachal Pradesh Health Service Grade I Officers
The Himachal Pradesh Government by order No HFWB 9 778 dated 1981978 confirmed Dr Grover and Dr SP Kapoor 1059 who originally belonged to the Punjab Civil Medical Service with effect from 2741964 and 2911965 respectively and Dr RM Bali who came originally from the Central Health Service with effect from 991966 and certain others with effect from 2411974 leaving the question of seniority open
Prior to 2111979 Dr SP Kapoor Dr K Pandeya Dr RM Bali Dr Jiwan Lal and Dr Mrs Damyanti Kapur were working as Deputy Directors Health Services in the Himachal Pradesh Health Service on ad hoc basis and Dr Grover was working as Director of Health Services on ad hoc basis during 1975 to 1977
Dr K Pandeya replaced Dr Grover as Director of Health Services on ad hoc basis in June 1978 by the Government s order No 1 1574 HP Apptt dated 861978
This fact mentioned by Mr Mehta learned counsel appearing for Dr SP Kapoor in the course of the arguments was not disputed by Mr VM Tarkunde learned counsel appearing for Dr RM Bali and Mr GL Sanghi learned counsel appearing for Dr Jiwan Lal
On 2111979 the final seniority lists of Specialists and Grade I Officers in the Himachal Pradesh Health Service as on 111979 were published by the Himachal Pradesh Government s order No HPW B9 277 dated 2111979
In the List relating to eight Specialists Dr Grover Dr SP Kapoor Dr RM Bali and Dr DS Chauhan are ranked as Nos 1 2 3 and 5 respectively while in the List relating to 79 Grade I Officers Dr K Pandeya Dr Jiwan Lal and Dr Mrs Damyanti Kapur are ranked as Nos 1 2 and 3 respectively
Now Dr Grover and Dr K Pandeya are stated to have retired
On 3111979 the Departmental Promotion Committee constituted under Rule 2g of the Rules the constitution of which is attacked by Mr Mehta Mr Tarkunde and Mr Sanghi recommended on the basis of the said final seniority lists the appointment of Dr SP Kapoor Dr K Pandeya and Dr RM Bali as Deputy Directors of Health Services and Dr SP Kapoor as Director of Health Services in the place of Dr K Pandeya
On the same day they were appointed as such by the Government s Order No Health Kb9479 dated 3111979
On the same day Dr Jiwan Lal and Dr Mrs Damyanti Kapur were reverted with immediate effect to Himachal Pradesh Grade I posts by the Governor s Order No Health B9479 and Dr SP Kapoor was promoted as Director of Health Services by the Government s Notification No 171002 and put on probation for a period of two years
It is stated in that Notification that orders of posting of Dr K Pandeya presently officiating as Director of Health Services purely on a temporary basis will be issued by the Secretary Health and Family Welfare to the 1060 Government of Himachal Pradesh separately
The correctness of these seniority lists and orders of appointments were challenged in the Writ Petitions
The writing of the annual confidential reports by Dr Grover and Dr JC Sharma the constitution of the Departmental Promotion Committee and the rotation of Specialists in preference to Himachal Pradesh Grade I Officers for appointment as Director of Health Services on the admitted 50  50 basis were also questioned in the Writ Petitions
There is no dispute that the basis for selection of the Specialists and Grade I Officers as Director of Health Services is 50  50
The learned Judges of the High Court held that seniority has to be determined on the basis of the date of Induction into the Central Health Service and not on the basis of the earlier induction into the Punjab Civil Medical Service though they have observed that the words whichever is earlier which occurred originally in Rule 10 a iii of the Rules were omitted retrospectively in order to do justice in the matter of seniority to these Doctors who came into the Himachal Pradesh Health Service from any local authority or the Punjab Civil Medical Service and not from the Central Health Service
On that basis they have fixed the seniority of Dr RM Bali above Dr SP Kapoor on the ground that the former was inducted on 991966 and the latter was inducted on 1111966 into the Central Health Service and found that the seniority of Dr DS Chauhan is rightly reflected in the Specialists  Grade
They have directed modification of the seniority of Doctors in the Specialists Grade in accordance with their judgment namely on the basis of the date of induction into the Central Health Service
Regarding writing of the annual confidential reports by Dr Grover and Dr JC Sharma the learned Judges of the High Court accepted the contention put forward by the Himachal Pradesh Government in the counter affidavit filed in WP No 2 of 1980 that Dr Sharma s reports were not taken into consideration that Dr Grover s report were revised sometimes with additional remarks in favour or against the incumbents by the higher authorities and that his reports were not the only reports that were taken into consideration by the Departmental Promotion Committee in November 1979 and held that no prejudice has been caused to the Writ Petitioners while the annual confidential reports were considered by the Departmental Promotion Committee
The learned Judges have not expressed any view regarding the attack on the Departmental Promotion Committee
On the question of rotation and selection of the Specialist as Director of Health Services in preference to Grade I officers the learned Judges of the High Court 1061 held that the Rules are silent on the question as to which category should be chosen first and they accepted the contention of the Himachal Pradesh Government that the Government had power under Rule 21 of the Rules to supplement the same by providing for starting the roster with the category of Specialist on the ground that the senior most of the Specialists had on the date of meeting of the Departmental Promotion Committee namely 3111979 put in greater length of qualifying service than the senior most officer of the Himachal Pradesh Health Service Grade I officers and that the Government therefore started the roster rightly with the category of Specialists keeping in view the length of qualifying service in each of grades namely Specialists and Himachal Pradesh Service Grade I officers
Mr Mehta appearing for Dr SP Kapoor contended that having regard to Rule 10 a iii of the Rules and the fact that Dr SP Kapoor had been appointed as PCMS Grade I officer by the Punjab Government on 2981965 long before Dr RM Bali and Dr Jiwan Lal came into Central Health Service on 991966 and that Dr SP Kapoor had been appointed as a Specialist in the Central Health Service with effect from 1111966 while Dr RM Bali had been appointed in the Specialists  Grade only with effect from 991968 Dr SP Kapoor is senior to both Dr RM Bali and Dr Jiwan Lal in the Himachal Pradesh Health Service though he would undoubtedly be junior to Dr RM Bali and Dr Jiwan Lal in the Central Health Service as he had come to that Service only on 1111966 while those two individuals had come into that Service on 991966
But Mr Tarkunde appearing for Dr RM Bali and Mr Sanghi appearing for Dr Jiwan Lal contended that the basis of seniority has been rightly determined by the learned Judges of the High Court and Mr Sanghi submitted that in the List Dr Jiwan Lal will come first and that if Dr RM Bali is held to be senior Dr Jiwan Lal would rank next to him
Mr Pande the then Joint Secretary Home Affairs Government of India had stated in his DO Letter No 22567 67 SR S dated 14 2 1967 addressed to the Chief Secretary Himachal Pradesh Government Union Territory that the Central Government has already informed the Chief Secretary by letter dated 17111966 that the allocation of the Government servants among the States of Punjab Haryana and Himachal Pradesh and Chandigarh which had already been made provisionally under section 82 b of the  are to be finalized by the end of February 1967
1062 He had requested the Chief Secretary for action for integration of the service being initiated soon after the finalisation of the allocation and had stated that it involves two steps namely I determination of the equivalent posts and 2 determination of the relative seniority of persons holding equivalent posts but drawn from different integrating units
It is also stated in that letter that while determining the relative seniority as mentioned above it may also be borne in mind that inter se seniority of officers drawn from the same integrated unit should as far as possible be maintained
He had further stated in that letter that as the Chief Secretary is aware that Section 82 4 of the casts responsibility on the Central Government for ensuring fair and equitable treatment to all the officers affected by the provisions of that Act
The Ministry of Health and Family Planning Department of Health Government of India wrote the letter dated 971971 to the Secretary to the Government Medical and Health Department Himachal Pradesh regarding fixing of seniority of the Medical officers of the Punjab Government absorbed in the Central Health Service in Himachal Pradesh as in the case of Dr SP Kapoor
Unfortunately the learned Judges of the High Court have not referred to this letter which is strongly relied upon by Mr Mehta in their judgment
Mr Tarkunde submitted that this letter was not relied upon before the High Court
That letter can not be ignored
It is stated in that letter thus The Central Health Service was constituted with effect from 991966 and the seniority of the Medical officers appointed to this Service with effect from that date has been determined in accordance with the principles laid down in this Ministry s OM No 5 II 67 CHSI dated 2271967
In accordance with sub para I of this Memorandum officers appointed to a grade of the Central Health Service under Rule 7A of Central Health Service Rules 1963 as amended by the Central Health Service Amendment Rules 1966 will rank enbloc senior in that grade to those who may be appointed to that grade under Rule 8A of the Central Health Service Rules 1963
The officers of the Punjab Government were appointed to the Central Health Service with effect from 1111966 1063 under Rule 8A of the Central Health Service Rules 1963
As these officers have come into the Central Health Service only after the initial constitution of that service was over in accordance with the principles laid down for the Central Health Service it is not permissible to assign them seniority in the Central Health Service over the officers appointed to the Central Health Service at the initial constitution of the Service
However as the Government of Himachal Pradesh have proposed to form their own Health Service and the Medical officer who are to opt from the Central Health Service are to be included in that Service these officers may be asked to exercise the option first
In case they choose to remain as members of the Central Health Service their seniority will be ranked only at the maintenance stage of the Central Health Service and they cannot get seniority in the Central Health Service on the basis of their prior ser vice under the Punjab Government
Those officers who opt to join the proposed Himachal Pradesh Health Service may however be given the benefit of their past continuous service while fixing their seniority in the Himachal Pradesh Health Service
At the time of formation of that Service these persons can be considered for inclusion in the initial constitution of that service and their seniority fixed bearing in mind the principles mentioned in Shri AD Pande s DO letter No 221567 SR S dated 14th February 1967
 We think that this stand of the Central Government in regard to seniority of officers who came into the Central Health Service at the initial constitution of that Service vis a vis those who came into that service after initial constitution of that service is correct and the only stand that could be reasonably taken in the circumstance of the case
It would not be proper for anyone who came into that Service after it had been constituted to ask for seniority over those who were in that Service on the date of its initial constitution on the basis of their earlier appointment before they came into the Central Health Service after its initial constitution
Before the Rules were framed there was a meeting of officials on 2411972 to consider the question as to how seniority of officers 1064 who were already in the Central Health Service having been appoint ed to that Service under Rule 7A of that Central Health Service Rules at the initial constitution of the service and of officers of the erst while Punjab Government who were appointed in the Central Health Service with effect from 1111966 should be fixed
The minutes of that meeting are found at pages 285 to 287 of the paper book relating to CA No 2104 of 1980
It is seen from those minutes that in that meeting Mr TV Menon of the Ministry of Law Central Government evidently on the basis of the aforesaid letter dated 971971 of the Ministry of Home Affairs Health and Family Planning addressed to Secretary to Government Himachal Pradesh stated that As the Government of Himachal Pradesh proposes to form a separate Himachal Pradesh Health Service it is well within the right of the Himachal Pradesh Government to frame Rules and Regulations to govern the service conditions of officers who might be appointed to that Service including their seniority
The only safeguard that should be taken is that these rules and principles of seniority should be circulated among all the officers and their option obtained in writing either to join the Himachal Pradesh Health Service or to remain in the Central Health Service
The Government of Himachal Pradesh need not be bound by the Rules and Regulations governing Central Health Service Scheme in respect of the provisions that might be made in the Himachal Pradesh Health Service
The Government of Himachal Pradesh may lay down any principles that may be acceptable to the officers concerned keeping in view the principles of equity and justice
 Rule 4 of the Rules relates to classification categories and scales of pay and reads as follows 4
Classification categories and scales of pay and reads as follows 1 The Himachal Pradesh Health Service Carde will consist of the two wings namely the General Wing and the Teaching Wing
These two wings of the service shall 1065 be independent of the each other and posts will not be inter changeable at any stage except the posts which carry a scale of Rs 400 1100 or a pay scale lower than that which are included in the service
There shall be six categories in Health Wing General and four categories in Health Wing Teaching
Each category B shall consist of the grades specified in column 2 of the table below 2 The scales of pay and classification of such grades shall be specified in corresponding entries in columns 3  4 of the said tables
General Sr
Categories Scales of pay Classification Wing No 1
Super time Grade I 2250 125 2500 Class I including NPA 2
Super time Grade 1800 100 2000 Class I II including NPA 3
Specialists 900 50 115050 1300 Class I 4
Himachal Pradesh 900 50 115050 1300 Class I Health Service Grade I 5
Himachal Pradesh 400 30 70040 1109 Class II Health Services Grade II
Amend 6
Dental Surgeon 400 30 70040 1100 Class II ment Eight II 1066 Note Two Selection Grade posts one each for Himachal Pradesh Health Services Grade I and specialists shall be in the pay scale of Rs 1800 100 2000 inclusive of NPA Note II See amendment sixth and eighth III
Teach 1
PrincipalProfessors 1300 30 1600 100 1800 Class I ing Wing 2
Specialists Grade Associate Prof 900 50 115050 1300 Class I Asstt
Professor 3
Asstt
Professor 900 50 115050 1350 Class I Dental
Amend 4
Asstt
Surgeon 450 30 660 EB 40 Class I ment Dental
1100 50 1250 Eight VI The special pay attached to various posts is as under 1 Principal Medical College Rs 100 PM 2 Assistant Professor Rs 100 PM 3 officers appointed as Chief Medical Rs 100 PM Officers Rule 10a mentions about how seniority of departmental candidates absorbed under Rules 7 and 8 shall be determined and reads as follows 10
Fixation of Seniority
1067 a The inter se seniority of departmental candidates absorbed under rule 7 and 8 shall de determined as follows i          ii Himachal Pradesh Health Service Grade I from the date of regular appointment having been duly selected by the Union Public Service Commission Punjab Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee whichever is earlier in the following grades PCMS I GDOGr
I iii Sepecialists From the date of regular appointment having been duly selected by Union Public Service Commission Punjab Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee whichever is earlier in the following grades 1
Specialists CHS 2
PCMSI with post graduates qualifications 3
Deputy Medical SupdtResident Medical officersSurgical Specialists Ripon Hospital from the date the scale of PCMSI was given
 It would appear from Rule 10 a ii that so far as Himachal Pradesh Health Service Grade I officers are concerned seniority will have to be reckoned from the date of regular appointment having been duly selected by the Union Public Service Commission and Himachal Pradesh Public Service Commission and or by regular Departmental Promotion Committee in the following grades 1068 namely PCMS Grade I and GDO Grade I and that so far as Specialists are concerned their seniority will count from the date of regular appointment having been duly selected by the Union Public Service Commission Punjab Service Commission
Himachal Pradesh Public Service Commission and or by regular Departmental Promotion Committee in the following grades namely 1 Specialist CHS B2 PCMSI with post graduate qualifications and 3 Deputy Medical SuperintendentsResident Medical officersSurgical Specialists Ripon Hospital from the date on which the scale of PCMS I was given to them
It has been seen above that Dr SP Kapoor has been appointed to the PCMS Grade 1 post on 2911905 and he was inducted into the Specialists grade in the Central Health Service with effect from 1111966 while Dr RM Bali and Dr Jiwan Lal who were in the Central Health Service on the date of its constitution on 991966 had been taken in the Specialists  grade and GDO Grade I respectively under the Central Health Service with effect only from 991968
Therefore under Rule 10 a iii of the Rules Dr SP Kapoor has to rank senior to Dr RM Bali as well as Dr Jiwan Lal who admittedly has to rank after Dr RM Bali
Mr Tarkunde submitted that a letter like the one dated 971971 mentioned above could have been addressed by the Central Government under Section 84 of the to the Administrator of the Himachal Pradesh Union Territory and that the letter dated 971971 referred to above could not have been written under that Section as Himachal Pradesh Union Territory ceased to be in existence when the full fledged Himachal Pradesh State came into existence on 2511971 itself
Section 84 of the says that the Central Government may give such directions to the State Governnent of Punjab and Haryana and to the Administrators of the Union Territories of Himachal Pradesh and Chandigarh as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this part and the State Governments and the Administrator shall comply with such directions Mr Tarkunde relied in this connection upon the decision of this Court in Roshan Lal Tanldon vs Union of India1 and submitted that having come into the Central Health Service on 1111966 it is not open to Dr SP Kapoor who came into that service subsequent to the date on which Dr RM Bali joined that Service on the date of its initial constitution to contend that his seniority must be fixed 1069 with reference to the date of his appointment to the Punjab Civil Medical Service Grade I
In that decision we find the following passage at page 192 At the time when the petitioner and the direct recruits were appointed to Grade D  there was one class in Grade D  formed of direct recruits and the promotees from the grade of artisans
The recruits from both the sources to Grade D  were integrated into one class and no discrimination could therefore be made in favour of recruits from one source against the recruits from the other source in the matter of promotion to Grade C 
To put it differently once the direct recruits and promotees are absorbed in one cadre they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade C 
In the present case it is not disputed on the part of the first respondent that before the impugned Notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that 1 rule was seniority cum suitability and there was no rule of promotion separately made for application to the direct recruits
As a consequence of the impugned notification a discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorb ed in Grade D  by March 31 1966 because the Notification provides that this group of Apprentice Train Examiners should first be accommodated enbloc in Grade C  up to 80 percent of vacancies reserved from them without undergoing any selection
As regards 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioners belong the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned
In our opinion the present case falls within the principle of the recent decision of this Court of Marvyn vs Collector  We are of the opinion that the ratio of this decision will not apply to the facts of the present case
On the other hand Mr Mehta invited our attention to two decisions of this Court in N Subba Rao etc
vs Union of India and Ors1 and CP Damodaran Nayar and PS Menon vs State of Kerala 1070 and Others1
The decision in N Subba Rao etc
vs Union of India and ors
related to the inter se seniority of officers of two regions of different States which came to form a single State on Ist November 1956
On 1111956 the State of Andhra Pradesh came into existence under the 
That State was formed out of the former State of Andhra Pradesh and the Telangana area of the former Hyderabad State
The appellants in that case were Engineers in the employment of Andhra Pradesh
On the formation of Andhra Pradesh the appellants under the continued to serve the State of Andhra Pradesh
The respondents who were Telangana officers in the employment of the Hyderabad State continued to serve the State of Andhra Pradesh
The Central Government directed the State Government in September 1956 to draw up provisional common Gradation List keeping in view the general principles agreed to at the Conference of the Chief Secretaries held in April and May 1966
The State Government prepared a provisional common gradation list of Gazetted officers in November 1961
The Telangana Engineers challenged the common Gradation List by filing Writ Petition in the Andhra Pradesh High Court
This Court observed in the Judgment that Under the power is conferred on the Central Government to bring out the integration of the Service in the State of Andhra Pradesh by ensuring fair and equitable treatment to all persons affected by the provisions of Section 115 of the Act
The Government of Andhra Pradesh has a duty to bring all relevant facts to the notice of the Central Government
Under the States  Reorgnisation Act the Central Government is entrusted with the power of the division and integration of the Service and the ensuring of fair and equitable treatment to all persons affected by the provisions of Section 115 of the Act in regard to allotment of officers from an existing State to a successor State
 In the case of CP Damodaran Nayar and PS Menon vs State of Kerala and others supra the State of Kerala came into being on 1111956 and the appellant had been selected by the Madras Public Service Commission as a District Munsif and was posted as such on 2651951 and he was in continuous service since then
The service of appellant was regularised as from 6101961
The appellant was allotted to Kerala State with effect from 24101956
On 2631966 1071 the Kerala State published the final integrated list of the Travancore Cochin and Madras Judicial officers in the integrated State of Kerala as on 1111956 showing respondents 6 and 7 whose dates of commencement of continuous service were 2071951 and 1101951 respectively as senior to the appellant on the basis that he commenced his continuous service on 6101951
The appellant questioned the final seniority list contending that the date of commencement of his continuous service is 2651951
This Court observed thus Under Section 117 of the Act States Reorganization Act 1956 the Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions In accordance with the provisions of that Act a meeting of the Chief Secretaries of the various States that were to be affected by the Reorganization  was held at the invitation of the Central Government
In that meeting it was agreed that in determining the relative seniority as between two persons holding posts declared equivalent to each other and drawn from different States inter alia the length of continuous service whether temporary or permanent excluding periods in which an appointment is held in a purely stop gap or fortuitous arrangement should be taken into account
This Court held that the appellant in that case should be given the benefit of his seniority reckoning his continuous appointment and assigning the date 2651951 and substituting the same in the final list for 6101951 and observed It is common ground that the appellant has been appointed in a regular manner through the Public Service Commission and his appointment cannot by any stretch of imagination be made to fill a pure stop gap or fortuitous vacuum
As noted earlier the Government of India has accepted the position that an allotted employee should not suffer any disadvantage if he would not have been subjected to a like handicap in his parent State
It is clear from the position taken by the Madras Government that the appellant would have got the benefit 1072 of his continuous appointment in Madras with effect from May 26 1951
That being the position the submissions of the learned counsel for the respondents are of no avail
We are of the opinion that the ratio of these two decisions relied upon by Mr Mehta would apply to the facts of the present case
Section 45 of the lays down that the Central Government may give such directions to the Government of the State of Himachal Pradesh as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and also the provisions of of the and the State Government shall comply with such directions   
We agree with Mr Mehta that the aforesaid letter dated 971971 from the Ministry of Health Family Planning Department of Health Government of India addressed to the Government of Himachal Pradesh was written under the provisions of Section 45 of the 
Mr Tarkunde submitted that even if that letter dated 9 7 1971 had been written under the provisions of Section 45 of the  equivalent posts must be determined and that nobody has fixed the equivalent posts and it is for the Government of India to decide
We are of the opinion that this submission is not well founded as the equivalent grades have already been fixed by placing Dr section P Kapoor and Dr R M Bali in the category of Specialists and Dr Jiwan Lal in the category of Himachal Pradesh Health Service Grade I officer as mentioned above by the Himachal Pradesh Government s Notification No 1 1575 HFP dated 9 6 1975 referred to above
The Central Government was under an obligation to see that in fairness and equity the seniority of officers drafted into the newly formed State from the integrating States is properly fixed and that obligation has been discharged by the Central Government 1 by Mr Pande s D O letter dated 1421967 2 the stand taken by Mr 1 
V Menon Deputy Legal Adviser Central Government in the meeting of officers held on 2411972 and 3 the letter dated 971971 written by the Ministry of Health and Family Planning Welfare Government of India to the Secretary to the Government of Himachal Pradesh
In these circumstances we are of the opinion that the learned Judges of the High Court have erred in holding that the inter se seniority has to be determined only on the basis of the date of induction into the Central Service and not with reference to Rule 10 a iii of the Rules 1073 which had however been noticed by the learned Judges without a correct appreciation of its impact on what the Government of Himachal Pradesh should do in the matter of fixing the relative seniority of the officers drawn from the integrating States
We are of the opinion that inter se seniority has to be determined only in accordance with Rule 10 n iii of the Rules and that Dr section P Kapoor would be senior to Dr R M Bali who in turn would rank senior to Dr Jiwan Lal
The annual confidential reports relating to Dr section P Kapoor t Dr Jiwan Lal and others had to be looked into by the Departmental Promotion Committee on 3111979
The contention of Dr Jiwan Lal was that the annual confidential reports of Dr Jiwan Lal and Dr Mrs Damyanti Kapur were initiated by an officer not only junior to them but also an aspirant for promotion to a higher post alongwith them and therefore these confidential reports should not have been taken into consideration for further promotion
The contention of the Himachal Pradesh Government was that the confidential reports made by Dr J C Sharma were not taken into account and that Dr Grover s reports were revised sometimes with additional remarks for or against the individuals by higher authorities and they were not the only reports which were taken into consideration by the Departmental Promotion Committee
It is clear from this contention of the Himachal Pradesh Government that Dr Grover s reports were taken into consideration by the Departmental Promotion Committee
though it is stated that they had been earlier revised by higher authorities
Dr Grover was in the field competing with Dr SP Kapoor Dr RM Bali and Dr Mrs Damyanti Kapur at the relevant time for promotion to the higher post Therefore it would not have been fair for the Depart mental Promotion Committee to take into account the annual confidential reports made by Dr Grover though they might have been revised by the higher authorities Section 2 g of the Rules defines a Departmental Promotion Committee as a Committee constituted from time to time by the Government for the purpose of making recommendation for promotion or confirmation in 2nd category
Dr Jiwan Lal has stated in his Special Leave Petition that under the Rules the Departmental Promotion Committee of Himachal 1074 Pradesh in respect of the Health Services consisted of the Chief Secretary Financial Commissioner and Secretary Health and Family Welfare of the Himachal Pradesh Government
There is no dispute about this fact
But the Departmental Promotion Committee which met on 3111979 to consider the question of appointment of Deputy Directors and Director of Health Services consisted of the Chief Secretary Financial Commissioner and Principal Secretary to the Chief Minister of Himachal Pradesh who was appointed additionally as Secretary of Health and Family Welfare in the absence on leave of the regular Secretary Health and Family Welfare from 3rd to 8th November 1979
It is seen from the counter affidavit of the Himachal Pradesh Government that the Director of Health Services and Deputy Director of Health Wealth were holding the posts on ad hoc basis from the year 1973
The final seniority list was prepared only on 2111979 and the Depart mental Promotion Committee was constituted on 3111979
The Joint Secretary Personnel Department Himachal Pradesh Government had written the letter No Per A l B 79 dated 3111979 requesting Mr R C Gupta Secretary Health Himachal Pradesh Government to attend the Departmental Promotion Committee Meeting to be held at 300 P M
On that day for considering the names of officers for the posts of Director Health Services
It is seen from what has been stated above and it is also admitted by the Himachal Pradesh Government that the selection of the Deputy Directors and the Director of Health Services from amongst the Deputy Directors had been made by the Departmental Promotion Committee on 3111979 itself and that even the orders of appointment had been issued on the same day with the approval of the Governor of Himachal Pradesh
Though before the High Court it does not appear that Dr Jiwan Lal had alleged any malafides to anybody he has alleged in Special Leave Petition that the constitution of the Departmental Promotion Committee and the process of selection and appointment were obviously malafides and that they were appointed on the date on which Mr Yadav the regular Secretary Health and Family Welfare Department was on leave and that this haste suggests that he would not have agreed to carry out the political wish of the then Chief Minister in making the appointments in the post haste manner
Though it is not possible to accept the belated contention that there was any malafides on the part of the then Chief Minister in the matter of constitution of the Departmental Promotion Committee with his Principal Secretary as one of its members in the place of the regular Secretary Health and Family Welfare we are of the opinion 1075 that there is room for suspecting the reason why the whole thing was completed in haste on 3111979 after the preparation of the final seniority list on 2111979 in the light of the admitted position that the Deputy Directors and Director of Health Services Himachal Pradesh were holding ad hoc appointments from 1973
The matter was not such as could not have been put off by a few days
Such rush is not usual in any State Government
The post haste manner in which these things have been done on 3111979 suggests that some higher up was interested in pushing through the matter hastly when the regular Secretary Health and Family Welfare was on leave
Therefore we are of the opinion that the matter requires to be considered afresh
In regard to the question of rotation Rule 94 of Rules lays down I super time Grade II General posts shall be filled by promotion of i HPHS Grade I officers with not less than seven years of service in the category or ii Specialists  Grade officers with not less than five years service in that category
The selection will have to be on the recommendation of a Departmental Promotion 1 Committee on the basis of merit cum seniority of the officers concerned at i and ii above on 50 50 basis keeping in view the nature of the duties of the post
Suppertime Grade I General posts shall be filled by promotion on the recommendations of the Departmental Promotion Committee on the basis of merit with due regard to seniority of officers holding the posts of Deputy Directors with not less than five years service in that category
The contention of Dr Jiwan Lal was that the Departmental Promotion Committee should not have started the rotation to post of Director of Health Services with a Specialist
On the other hand the contention of the Himachal Pradesh Government before the High Court was that Rule 9 was silent on the question as to the category with which the roster should be started and therefore the State Government decided to supplement the Rule by starting the roster with the category of Specialists having regard to the fact that the senior most Specialist officer available on the date of the Departmental Promotion Committee meeting on 3111979 had put in greater length of qualifying service than the senior most HPHS Grade I officer
Rule 21 of the Rules provides that if any difficulty is felt in giving effect to provisions of these Rules the Government may in consultation with the Public Service Commission give such directions not inconsistent with the provisions of those Rules as appear to be necessary or expedient for the removal of the difficulty
In view of the fact that Rule 94 does not provide the category with which the roster may be started
1076 whether with HPHS Grade I officer or Specialists difficulty appears to have arisen in starting the roster
Therefore the Government stopped in and supplemented the Rule by directing that the roster may be started with the category of Specialists keeping in view the length of qualifying service in each of the two grades namely Specialists and HPHS Grade 1 officers
The learned Judges of the High Court have expressed the view that the Specialists had an advantage for their category starting the roster by the senior most of the Specialists having put in more number of years of qualifying service than the HPHS Grade I officers
We are of the opinion that the learned Judges were perfectly justified in taking this view and that the Government was right in getting the roster started with Specialists instead of of HPHS Grade I officers
For the reasons stated above Civil Appeal No 2104 of 1980 is allowed and Civil Appeal No 2384 of 1980 is dismissed
The principle on which relative seniority should be fixed having been settled in this judgment
it shall be fixed accordingly and the matter of selection of Deputy Directors and Director of Health Services Himachal Pradesh shall be decided afresh according to the Rules and in the light of this judgment
Under the circumstances of the case we make no order as to costs
NVK CA 2104 of 1980 allowed and CA 2384 of 1980 dismissed


Summary:
The Central Health Service was constituted by the Central Government and the Central Health Service Rules 1963 came into force with effect from 15 5 1963
These Rules were amended by the Central Health Service Amendment Rules 1966
Before the Punjab Reorganisation Act came into force the State of Punjab had its own Health Service known as the PCMS with two grades Grade I and Grade II
After the Punjab Reorganisation Act came into force and the Central Health Service was formed some persons belonging to the PCMS and some persons working as Medical officers in hospitals run by Local Bodies were inducted into that Service after they had exercised their option to be inducted therein
The petitioners and contesting employees respondents in writ petition nos 2 of 1980 and 288 of 1979 filed in the High Court had been inducted into the Central Health Service after they had exercised their option
When the Himachal Pradesh Union Territory was in existence its Health Department was manned by officers of the Central Health Service but after Himachal Pradesh became a full fledged State the Himachal Health Service was constituted on 2411974 1044 under the Himachal Pradesh Health Service Rules which came into force on 19174
The members of the Central Health Service serving in the erstwhile Himachal Pradesh Union Territory were asked to exercise their option to continue in the new Himachal Pradesh Health Service
The writ petitioners and the contesting employees respondents exercised their option to continue in the Himachal Pradesh Health Service
The Appellant in CA No 2384 of 1980 who was one of the petitioners in writ petition No 288 of 1979 contended before the High Court that his reversion from the post of Deputy Director of Health Services to which post he was appointed on a regular basis was void
The petitioner in writ petition No 2 of 1980 claimed that the seniority list of Specialists prepared by the State Government was contrary to the rules and that the appointment of the appellant in CA No 2104 of 1980 and of respondents 2 and 4 in writ petition 288 of 1979 as Deputy Directors of Health Services was contrary to the provisions of the 1974 Rules
It was contended that the appointments were also vitiated because the Departmental Promotion Committee constituted for making appointment was not properly constituted because one of the members of the committee the Principal Secretary to the Chief Minister was unauthorised by inducted into the Committee in place of the Secretary to the Government Health and Family Welfare Department and ii that their confidential reports were written by an officer junior to them and who was an aspirant for promotion to the higher post
The appointments of the Director of Health Services and the two Deputy Directors having been made in haste immediately after the seniority list was issued rendered the appointments void
The petitioner in writ petition 2 of 1980 claimed that the inter se seniority between himself and the respondents could not be disturbed at the time of absorption in the Himachal Pradesh Health Services having regard to the Punjab Reorganisation Act and the protection given to the members of the Punjab Service
These two petitions were contested
It was contended by the State of Himachal Pradesh that the petitioners in WP No 288 of 1979 were appointed as Deputy Directors of Health Services only on ad hoc basis that the post is a selection post which cannot be claimed as of right by persons appointed on ad hoc basis by way of stop gap arrangement
The incumbent to the post of Secretary Health and Family Welfare being on leave at the relevant period the Principal Secretary to the Chief Minister was appointed to function in his place as Secretary to Government in the Departmental Promotion Committee the constitution of the Departmental Promotion Committee was perfectly valid
The annual confidential reports which were written by the junior officer who was working on ad hoc basis were not the only reports taken into account by the Departmental Promotion Committee
The post of Director of Health Services was manned on an ad hoc basis
Ad hoc appointments were necessitated by the absence of the final seniority list which was prepared only on 2111979 and since that impediment was over the Departmental Promotion Committee met on 3111979 and orders of appointment to those selected by that Committee were issued on the same day
Specialists were officers possessing post graduate qualifications while General Duty officers were as a rule only graduates
The Rule making autho 1045 rity divided the higher posts equally amongst the officers of the two categories taking all factors into consideration
Therefore the claim for being considered to the post of Director of Health Services is wholly untenable having regard to Rule 93 of the Rules which provides that only Deputy Directors should be considered for promotion to the post of Director of Health Services
On behalf of the Central Government it was contended that the Central Health Service was constituted with effect from 9 91966 and the seniority of the Medical Officers appointed to the service with effect from that date had been determined to be that officers appointed to a grade under rule 7A of the Central Health Services Rules 1963 as amended by the Central Health Service Amendment Rules 1966 will rank en bloc senior in that grade to those who may be appointed to that grade under rule 8A
The officers of the Punjab Government were appointed to the Central Health Service with effect from 1111966 under rule 8A As These officers have come into the Central Health Service only after the initial constitution of that service was over it was not possible to assign them seniority over the officers appointed at the initial constitution of the service
The Government of Himachal Pradesh having proposed to formulate their own Health Service and the Medical officers who are to opt from the Central Health Service are to be included in that service those officers were asked to exercise their option
Those officers who opted to join the proposed Himachal Pradesh Health Service were given the benefit of past continuous service while fixing their seniority in the Himachal Pradesh Health Service
The High Court allowed the writ petitions and held 1 that the petitioners therein being appointed as Deputy Directors on ad hoc basis cannot claim a right to the post of Deputy Directors of Health Services or to seniority on the basis of ad hoc appointment though then can add the period of such appointment in the matter of experience for promotion and confirmation
2 The Principal Secretary E to the Chief Minister was appointed to function additionally as Secretary to Government Health and Family Welfare Department as per office order dated 2111979 and therefore the Departmental Promotion Committee had been properly constituted
3 Seniority has to be determined on the basis of the date of induction into the Central Health Service and not on the basis of the earlier service
Allowing the appeal to this Court  HELD 1
The High Court erred in holding that the inter se seniority has to be determined only on the basis of the date of induction into the Central Health Service and not with reference to Rule 10 aiii of the Rules
Inter se seniority has to be determined only in accordance with Rule 10 aiii of the Rules and Dr SP Kapoor would be senior to Dr RM Bali who in turn would rank senior to Dr Jiwan Lal
1072 1073 B In the instant case the Central Government was under an obligation to see that in fairness and equity the seniority of officers drafted into the newly formed State from the integrating States is properly fixed and that obligation has been properly discharged by the Central Government
Dr section P Kapoor had been appointed to the PCMS Grade I post on 2911965 and he was inducted into the Specialist Grade in the Central Health Service with effect from 1111966 while 1046 Dr RM Bali and Dr Jiwan Lal who were in the Central Health Service on the date of its constitution on 991966 had been taken in the Specialists Grade and GDO Grade I respectively under the Central Health Service with effect only from 991968
1072 1068 C Roshan Lal Tandon vs Union of India  held inapplicable
N Subba Rao etc
vs Union of India and Ors
  and CP Damodaran Nayar and PS Menon vs State of Kerala and others  referred to 2
The annual confidential reports were initiated by an officer not only junior but also an aspirant for promotion to the higher post and therefore such Confidential reports should not have been taken into consideration for further promotion
1073 C In the instant case it would not have been fair for the Departmental Promotion Committee to take into account the annual confidential reports made by Dr Grover though they might have been revised by the higher authorities1073F 3
The post haste manner in which the Departmental Promotion Committee Meeting was held on 3111979 suggests that some higher up was interested in pushing through the matter hastily when the regular Secretary Health and Family Welfare was on leave
The matter is therefore required to be considered afresh
1075 B In the instant case the Director of Health Services and Deputy Director of Health Services were holding the posts on ad hoc basis from the year 1973
The final seniority list was prepared only on 2111979 and the Departmental Promotion Committee was constituted on 3111979
The Joint Secretary Personnel Department had written the letter dated 3111979 requesting the Principal Secretary to the Chief Minister who was appointed additionally as Secretary of Health and Family Welfare to attend the Departmental Promotion Committee Meeting at 300 pm
On that day
There is room for suspecting the reason why the whole thing was completed in haste on 3111979 after the preparation of the final seniority list on 2111979
The matter was not such as could not have been put off by a few days
Such rush is not usual is in any State Government
1074 GD
1075 A 4
The High Court was right in finding that the Specialists had an advantage for their category starting the roster by the senior most of The Specialists having put in more number of years of qualifying service than the HPHS Grade I officers and that the Government was right in getting the roster started With Specialists instead of HPHS Grade I officers
1076 B C In the instant case as Rule 94 did not provide the category with which the roster may be started whether with HPHS Grade I officers or Specialists difficulty arose
The Government therefore stepped in and supplemented the Rule by directing that the roster may be started with the category of Specialists keeping in view the length of qualifying service in each of the two grades namely Specialists and HPHS Grade I officers
This they were entitled to by Rule 21 1075 H 1076 A