vil Appeal Nos
3131 and 3132 of 1988
From the Judgment and Order dated 1541987 of the AP Administrative Tribunal in RP No 1909 of 1985
K Madhava Reddy G Prabhakar and Narasimhu PS NP for the Appellant
section Ramachandran B Kanta Rao and N Venkatarayudu for the Respondents
Ms Rani Chhabra and B Rajeshwar Rao for the Interveners
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
These appeals are directed against the order of the AP Administrative Tribunal Hyderabad dated April 15 1987 directing the State Govern ment to consider the cases of Officers for promotion to the category of Additional Director of Medical and Health Serv ices and equivalent posts on the basis of seniority includ ing service in their lower cadre
The appointment in the AP Medical and Health Services is regulated by the statutory rules called The Special Rules for the AP Medical and Health Services 1982 called shortly as the Rules
All the respondents were originally recruited as Civil Assistant Surgeons upon selection by the State Public Serv ice Commission
The minimum qualification for Civil Assist ant Surgeon is MBBS
The post of Civil Assistant Surgeon is equivalent to the post of Assistant Professor
They are inter transferable posts but a Post Graduate Degree is necessary for posting as Assistant Professor
The Civil Assistant Surgeon is also posted as Tutor in the teaching side if he has no Post Graduate Degree qualification
In the select list prepared by the Public Service Commission respondents 1 to 12 were ranked above the other respondents but they were not considered for promotion to the category of Additional Director and other equivalent posts
Their juniors in the original cadre were appointed to such posts and that was their grievance before the AP Administrative Tribunal
58 All Civil Assistant Surgeons including Assistant Profes sors and Tutors are eligible for promotion as Deputy Civil Surgeon on the basis of seniority of Assistant ProfessorsCivil Assistant Surgeons and Tutors
It is said that the post of Deputy Civil Surgeons are not cadre posts
They are just like Selection Grade posts covering 15 of total cadre strength of Civil Assistant Surgeon posts
They are common both in teaching cadre as well as in non teaching cadre
From the very beginning after formation of Andhra Pra desh State the Civil Assistant Surgeons are appointed by direct recruitment except perhaps in the year 1984 when there was direct recruitment of Assistant Professors with the minimum qualification of Post Graduate degree in the concerned speciality
The Rules contain inter alia two parts Part I and Part II
We are concerned with Part I only
It consists of the following three branches Branch I Teaching cadre Branch II Non teaching cadre Branch III Laboratories Branch I Teaching cadre again consists of Class I and Class II
Under Class I there are six categories of posts
They are as follows Category 1 Additional Director of Medical and Health Services Medical Education Principals of Medical Colleges Superintendents of Medical Colleges Superintendents of Teaching Hospitals and Principal Govern ment Dental College
Category 2 Professors Clinical
Category 3 Professors Non Clinical
Category 4 Dental Professors
Category 5 Deputy Civil Surgeons Clinical and non clinical
Category 6 Deputy Civil Surgeon Dental
Class II consists of the following three categories Category 1 Assistant Professors Clinical and non clinical
59 Category 2 Assistant Professors Dental
Category 3 Tutors
Rule 2 under Branch I Teaching cadre provides for method of recruitment to different classes and categories
This Rule is important and may be read in full Rule 2 Appointment Appointment to the various classes and categories shall be made as follows Class and Category Method of Recruitment Class I Category 1 i By promotion from among the Additional Director of holders of the post of Professors Medical  Health Services included in Class I Categories 2 Medical Education and 3 of this branch with not less Principals of Medical than three years service of which CollegesSuperintendents at least two years service in the of Teaching general said Category on First year in Hospitals and Principal which panel is prepared
Government Dental College
Provided that the post of princi pal Government Dental College shall be filled in by promotion from among the holders of the posts included in class ICate gory 4
ii who have completed 45 years of age on first January or 1st July of the year in which panel is prepared
Category 2 i By promotion from among the holders of the posts of Deputy Civil Surgeons clinical included in Class I Catego ry 5 of this branch ii By promotion from the holders of posts of Assistant Professors clinical included in Class II Category 1 of this branch if persons from item i are not available
 Similar are the provisions for promotion to the posts of pro 60 fessors non clinical in Category 3 Category 3 i By promotion from among the holders of the posts of Deputy Civil Surgeons non clinical included in Class I Category 5 of this branch ii By promotion from the holders of posts of Assistant Professors Non clinical included in Class II Catego ry 1 of this branch if persons from item i above are not available
 It will be convenient if at this stage we also read the amendment to the foregoing Rules made on March 29 1988
They are as follows AMENDMENT TO SPECIAL RULES FOR THE ANDHRA PRADESH MEDICAL AND HEALTH SERVICES GOMNo
182 Health Medical and Family Welfare A 1 29 March 1988 1
Constitution   2
Appointment to the various categories of posts shall be made as shown in the Table below Category of Post Method of Recruitment Category 1 Additional Director of By promotion from among the holders Medical  Health Service of the post of professors in Cate Medical Education gories 2 and 3 with not less than Principals of Medical three years of service of which at CollegesSuperintendents least two years shall be in one of Teaching General the said categories as on first Hospitals and Principals January or 1st July of the year in Government Dental which panel is prepared
College
There are three requirements for eligibility for considera tion 61 for promotion to the category of Additional Director and equivalent posts i He should be in cadre 2 and 3 in Class I ii He should have a minimum service of two years in the said categories and iii He should have a total service of not less than three years
Two years service in the category appears to mean two years service as Professor and this is not in doubt or dispute
The dispute however is about the requirement of service of three years
Whether that service should be only in Class I categories 2 and 3 or inclusive of service in Class II is the question for consideration
The Tribunal appears to have accepted the latter view
It has been held that promotion to the post of Additional Director and equiv alent posts is to be made on the basis of total period of service in including service in the lower categories subject to the condition that the person should be holding the post of Professor or equivalent post for at least two years
Mr Madhava Reddy learned counsel for the appellants argued that the view taken by the Tribunal would be contrary to the rule of seniority in the cadre of Professors
The seniority for zone of consideration for promotion should always be of the feeding cadre and not from any other cadre
Reference was made to Rule 10 of the Rules and also to Rule 33a of the Andhra Pradesh State and Subordinate Services Rules
Counsel also contended that the minimum three years of service provided under rule 2 in any event must be in class I in any category and it can never be in Class II Service
We are unable to accept the submission of learned coun sel for the appellants having regard to the facts and circumstances of this case
Rule 10 of the Rules requires determination of seniority on unit wise
It reads 10
Seniority
For purposes of seniority and appointment as full members the posts included in this branch shall consti tute separate units as indicated below Unit 1 Class I Category 1 viz
Additional Director of Medical and Health Services Medical EducationPrincipals of Medical Colleges Superintendents of Teaching General Hospitals
Unit 2 Class I Category 2 viz i Professors Clinical and nonclinical
62 Unit 3 Class I Dental Professors
provided that Deputy Civil Surgeons and Assistant Professors shall have separate seniority in order of speciality Rule 33a of the AP Subordinate Service Rules pro vides that seniority of a person in service class category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the date of his first appointment to such service class category or grade
It seems to us that the seniority in the category of professors in the teaching and non teaching cadre or in the lower cadre based on speciality wise may not be relevant for preparation of a penal for promotion to the cadre of Additional Director and other equivalent posts in Category
Equally the service rendered as Deputy Civil Surgeon in category 5 cannot also be the basis for preparing the panel for consideration
As observed earlier Deputy Civil Surgeon is a common category in all the Branches Branch I teaching cadre Branch II non teaching cadre and Branch III Laboratories
It is a part of the category of Civil Assistant Surgeons and not cadre post
It is just like selection grade post covering in all 15 of total cadre strength of Civil Assistant Surgeons
The posts are distributed in all the three Branches and promo tion to the posts depends upon the available vacancies in every branch
Furthermore Rule 2 does not expressly exclude the service in Class II Cadre for preparing panel for considera tion for promotion to posts with which we are concerned
We also consider that it would be unreasonable and unjust to exclude the service and overlook the vertical seniority in the substantive cadre to which everyone was selected by the Public Service Commission
In medical profession there are specialities and specialities but it is generally accepted that they are not of equal importance or utility
However the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities
A junior with relatively less impor tant speciality may be fortunate enough to get quick promo tion than his senior with a different speciality
We are of the opinion that the juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for ap pointment to administrative posts
Any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to posts where speciality or teaching experience 63 is not called for
The seniority determined in order of speciality should not therefore be the basis for promotion to administrative posts
Any rule providing for the contrary may be vulnerable to attack on the ground of arbitrariness
We therefore concur with the view expressed by the tribunal and dismiss these appeals with costs
Before parting with the case however it is necessary to point out that the imprecise drafting of the present Rules has led to misunderstanding and litigation and it would be proper for the State Government to have the word ings of the Rules properly amended with perspicuity to give effect to the view indicated
NPV Appeals dis missed


Summary:
The appellant challenged before the High Court the order of detention passed against him under Section 31 of the Prevention of Illicit Traffic in Narcotic Drugs and Psycho tropic Substances Act 1989 on various grounds including delay in disposal of his representation
An affidavit was filed by a Deputy Superintendent of Police on behalf of the respondents stating that the representation was placed before the Assistant Secretary on 1961989 a report was called for from the District Magistrate the comments which were received by the State Government on 171989 were placed before the Assistant Secretary on 371989 who in turn submitted to the higher authorities with his note on 971989 and the representation was rejected on 1171989
The High Court dismissed the Writ Petition holding that there was no undue lethargy or indifference
In the appeal by special leave on behalf of the dete nu it was contended that the detenu s representation was not decided within a reasonable time and hence the extraor dinary delay of 27 days was fatal to the detention
A reply was filed by the same Deputy Superintendent of Police as Officer Incharge of the case who filed the affidavit before the High Court stating that there was no delay in the consideration of the representation
832 Subsequently on the direction of the Court an addi tional affidavit sworn by the Commissioner and Secretary Home Department stating that there was no inordinate delay in considering the representation and it was rejected after careful consideration was filed
Allowing the appeal this Court HELD 1
There is no explanation for the delay from 3rd to 9th July 1989 ie for 7 days for the Assistant Secre tary to merely put up a note on the basis of comments of the District Magistrate
The additional affidavit sworn to by the Commissioner and Secretary does not whisper any explana tion as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary
The order of detention is therefore a breach of constitutional obligation as en shrined under Article 225 of the Constitution of India
841F G 842F Rama Dhondu Borade vs VK Saraf Commissioner of Police Smt
Shalini Soni vs Union of India   referred to
21 A counter affidavit should normally be filed by the detaining authority himself but this is not a rigid or inflexible rule and in the absence of any allegations of mala fide or abuse of powers of personal bias attributed to the detaining authority it may be sworn by a responsible officer who personally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned
However the practice of allowing a police officer who has not dealt with the case any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection
836H 837A B 836F G The State of Bombay vs Purushottam Jog Naik   Ranit Dam vs State of West Bengal  Shaik Hanifv
State of West Bengal   JN Roy vs State of West Bengal  Bhut Nath Mete vs State of West Bengal  at page 658 Asgar Ali vs District Magistrate Burdwan  Ors Suru Mallick vs State of West Bengal 1975 833 4 SCC 470 Gulab Mehra vs State of UP  Ors 19881  SCR 126 State of Gujarat vs Sunil Fulchand Shah  Anr  and Madan Lal Anand vs Union of India  referred to