Civil Appeal Nos
4507 and 4508 of 1992
From the Order dated 2011992 of the Central Administrative Tribunal Madras in OA No 925 of 1900
KTS Tulsi Addl
Solicitor General Kapil Sibal CVS Rao C Ramesh and Ranjit Kumar for the Appellant
PP Rap V Balachandran RP Oberoi and BS Gupta for the Respondents
The Judgment of the Court was delivered by MOHAN J
Leave granted
Both these appeals can be dealt with by a common judgment since identical issues are involved
They are directed against the judgment of the judgment Central Administrative Tribunal Madras dated 2311992
SLP No 713892 is preferred by Union of India while SLP No 649492 is filed by the affected party Dr M Khalilullah
The parties are referred to as mentioned in SLP No 713892
The facts are as under
The President of India sanctioned 35 posts in super time grade of Central Health Services in the scale of Rs5900 200 6700 plus non practising allowance at the normal rates as admissible to other similar posts
The sanction was upto 29298
The sanction was conveyed by the Under Secretary to the Government of India Ministry of Health and Welfare New Delhi on 2681987
After the creation of these posts proposals were sent to the Union Public Service Commission for convening the meetings of the Departmental Promotion Committee for selection of the Candidates for Promotion
The Union Public Service Commission approved to amend Rule 46 of Central Health Service Rules of 1982
It also approved the method of recruitment field of selection and principles of seniority to fill up these 35 posts as a one time measure in the absence of notified recruitment rules
In its communication dated 29988 the Union Public Service Commission besides referring to the above approvals specifically stated These 35 posts may be treated as common posts both at present and in future to be included in the category of the floating posts for the Teaching and Non Teaching sub cadres mentioned in Rule 46 of the CHS Rules of 1982
The eligibility conditions for promotion will be 3 years of regular service as ProfessorSpecialist Grade I with 17 years of regular service in Group A 
In the end the Commission advised that the basis of eligibility and the eligibility list might be circulated to all concerned their objections invited and settled before the meeting of Departmental Promotion Committee Health
It also requested that the final eligibility list might be sent to the Union Public Service Commission
On 31188 this decision was conveyed to all the concerned parties stating that it has been decided to fill up the posts by selection method ie merit with regard to seniority
The eligibility conditions for promotion will be 3 years of regular service in Group A 
Together with that letter was enclosed the eligibility list of Professors
On the basis of the Principles stated in the letter errorsomissionsobjections etc
Were to be intimated to the Ministry within one month
In the eligibility list include Dr P Rajaram the first respondent was assigned rank No 13 while Dr Khalilullah the third respondent was assigned the rank No 24
On 2091989  in accordance with the guidelines dated 10389 the Departmental Promotion committee met for selection of officers for the promotion to the super time grade posts of director professor in the Central Health Service
It requires to be stated that these posts were extended from time to time
Each extension was for a period of one year
Ultimately by an order dated 241992 it has been extended for a period of one year up to 2821993
Consequent upon the selection by Union Public Service by an order dated 1711990 the President was pleased to appoint under Rule 410 of the Central Health Services Rules 1982 the officers of Specialist Grade I of the Teaching Specialist sub cadre of the Central Health Service to supertime grade of the Teaching Specialist sub cadre of the Central Health Service
They were posted as Director Professors on an officiating basis in the pay scale of Rs 5900 6700 plus non practising allowance  Rs950 pm
The dates of promotions were indicated against each of the appointee
As far as Dr Rajaram the first respondent is concerned he was assigned rank No 14 and the date of promotion was as 141989 while respondent No 3 Dr M khalilullah was assigned rank No4 and the date of promotion was as 141989
Paragraph 3 of the order specifically states that the above promotions will be personal to the officers concerned and the posts Presently held by them will stand upgraded to the Supertime grade in the scale of Rs5900 6700 plus non practising allowance  Rs950 pm in terms of Ministry s order No A 11011588 CHS IV dated 1531989
This will continue till the upgraded Posts are held by the officers being promoted now
Aggrieved by the order dated 1711990 the first respondent Dr Rajaram preferred an application No 925 of 1988 on 671990
In that application he had stated that he was senior to Dr BS Rana Dr M Khalilullah Dr KK Jain and Dr DDS Kulapathy
They should not have been show above him
The promotion was only on the basis of seniority
In opposition to this the respondent in the application who has secured a higher rank urged that the Departmental Promotion Committee had ranked Dr Rajaram at serial No 14 on the basis of merit
The criterion for promotion is only merit
Before the Tribunal the scope of Rule 4 sub rule 10 clause iii of Central Health Service Rules 1982 hereinafter referred to as the Rules came up for interpretation
The Tribunal in the impugned judgment accepted the contention of Dr Rajaram and held that promotion for the post of directorProfessor should be made on the basis of seniority
Consequently it directed that he be posted above the respondents who had been named in the application
It is under these circumstances the present SLPs have preferred by Union of India as well as by Dr Khalilullah
Mr Kapil Sibal learned counsel appearing for Dr M Khalilullah after taking us through the rules submits that rule 410 i of the Rules deals with 35 newly created floating common posts in the supertime grade Rs5900 6700 in the Teaching and Non Teaching specialist sub cadre
These posts were in addition to the authorised strength of posts in the supertime grade
The authorised strength of both categories of Teaching and Non Teaching sub cadres is reflected in Schedule II
Rule 410 ii stipulates that promotions to these posts are to be made on the basis of common eligibility list to be drawn separately for the Teaching Specialist sub cadre and the Non Teaching Specialist sub cadre
This has to be without reference to any of the specialities in respective sub cadres
Rule 410iii stipulates that the eligibility list shall be made after the officer concerned has been duly assessed by a Departmental Promotion Committee in regard to the officer s suitability for holding the post with the condition that the said officer should have completed three years of regular service as Professor Specialist Grade I
This rule does not stipulate the manner in which the suitability of the said officer is to be assessed by the Departmental Promotion Committee
Schedule IV of the Rules talks of the constitution of the Departmental promotion Committee
It is clearly stipulated that in each meeting of the Departmental Promotion Committee the ChairmanMember Union Public service Commission shall chair the Departmental promotion Committee
The guidelines stipulate that the Departmental Promotion Committees constituted under the respective Service Rules shall judge the suitability of officers for promotion to selection as well as non selection posts
Here again the Union Public service commission should be associated with Departmental Promotion Committee in respect of Central Civil Services Posts belonging to grade A  where promotion is based on the principle of selection unless it has been decided by the Government of India not to associate the Union Public Service Commission
The Union Public Service Commission need not be associated in respect of posts belonging to Grade A if the promotion is based not on the Principles of selection but on seniority cum fitness
Wherever the Union Public Service Commission is associated with Departmental Promotion Committee the Chairman or a Member of the Commission will preside over the meeting of Departmental Promotion Committee
When Schedule IV requires that the Departmental Promotion CommitteeServices ought to be Presided over by the Chairman or Member of the Union Public service Commission itself suggests that the said posts ought to be filled in by way of selection rather than on the basis of seniority cum fitness
Consequently the word suitability  in Rule 410 iii in the context of nature of posts its grade can only mean suitability for the purposes of being selected to the said Post
This submission is made on the basis that Rule 410 is a complete code in itself
Even if this post falls outside the Schedule ii the basis of promotion cannot be seniority
In terms of Rule 3 of the Rules the Central health service consists of persons appointed to the service under sub rule 5 of Rule 4 and rules 7  8
It is the contention of the appellant that under Rule 43 Government of India is entitled to make temporary additions to or reductions in the strength of duty posts  in the various grades as deemed that these are posts with designations specified in Part A of Schedule II whether permanent of temporary
When this definition is read along with Rule 41 ii and Rule 41 iii it is clear that temporary additions or reductions in the number of duty posts can take place from time to time
These 35 floatingcommon posts were created for the first time on August 26 1987 and administrative orders have thereafter been issued from time to time extending the creation of the said duty posts  without amending Schedule II
Certainly these posts were part of authorised strength at the time of initial constitution of the Service
Rule 8 contemplates that any vacancy arising in any one of the grades referred to in Schedule II shall be filled in as provided in rule 84 ii
The difference between Rule 410 iii and rule 84 ii is that whereas in the latter the promotion is to be made with reference to a post in the Teaching Specialist sub cadre or the Non Teaching Specialist sub cadre on account of any vacancy occurring therein in a particular speciality in the case of the former notwithstanding the fact that one of the 35 floatingcommon posts may be held by a particular person of a particular speciality the said post can go to a person not belonging to that speciality since the Teaching Specialist sub cadre forms a class by itself which comprises 29 specialities
It is in this context therefore that the said posts could not be included in schedule II since specialities
It is therefore clear that whereas the word selection  used in Rule 84 ii is with reference to inter se merit of persons belonging to a particular speciality with reference to a vacancy occurring in a speciality but with reference to the inter se merit of candidates based on their confidential reports and assessed by the Departmental Promotion Committee belonging to any of the 29 specialities who would be considered most suitable to be promoted since the concept of seniority cum fitness cannot possibly be applied to a common set of posts without reference to any speciality
Thus it is submitted that to determine the meaning of suitability the same yard stick must be adopted
In any event these are highly specialised posts
Hence it is unthinkable that the promotions to these posts is based on the principle of seniority cum fitness and not on the basis of selection
The word suitability  will have to be interpreted as seniority cum fitness
Otherwise it would be liable to struck down as unconstitutional being violative of Articles 14 and 16 of the Constitutions
Therefore it is submitted that the Rule must be so interpreted as not to violate the fundamental rights
The Tribunal had gone wrong in adopting the principle of seniority and its interpretation of rules cannot be sustained
Learned counsel for Union of India Shri KTS Tulsi supporting the arguments of Shri Kapil Sibal urged that the order creating these posts clearly mentioned that the posts are created in the super time cadre of Central Health service
Rule 410 ii and iii as amended merely prescribe the procedure for preparation of eligibility list
This procedure is nowhere prescribed in any other Rule
This was because of the fact that the 35 posts were created as floating posts
They did not pertain to any particular super speciality or sub cadre of ProfessorDirector
Therefore criteria for preparation of eligibility list had to be prescribed for determining inter se ranking between the sub cadre
Merely because Rule 410 iii contains the word suitability  the said Rule does not supersede alter or amend the criteria for selection
The word suitability  will have to be understood in the light of the guidelines of Departmental Promotion Committee
These 35 posts referred to in Rule 410 are an integral part of the cadre
The said posts were not added to Schedule Ii forming part of the temporary strength of the cadre
However on August 10 1992 the said posts have been added to Schedule Ii so as to make its intention clear that the promotion is to be governed by all the relevant rules and not by Rule 4 10 when read in isolation from the remaining Rules
Thus it is submitted that the reasoning of the Tribunal is unsupported
Mr PP Rao learned counsel on behalf of Dr P Raja Ram would urge as under
The initial argument particularly on behalf of the Union of India was that these floatingcommon posts of super time grade of teaching Specialist sub cadre formed part of authorised strength of the Central Health Service in terms of Rule 410
This was contested by this respondent that Schedule II has not been amended till date so as to include these posts
Instead of frankly admitting the mistake there was a deliberate attempt to justify the inclusion of these 35 posts as part of Schedule II
This is nothing but misleading the Court
This alone is enough to dismiss the Special Leave Petition
Even on merits Rule 410 states that the posts are to be filled up by the method of promotion and on the basis of an eligibility list
The note also lays down that the eligibility list shall be prepared with regard to the date of completion of the prescribed qualifying years of service in their respective grades by the officers
Further clause iii of sub Rule 10 adds the requirements of assessment by a Departmental Promotion Committee in regard to the suitability of each officer for holding the post while considering his case for promotion on the basis of common eligibility list
The words his suitability in the said clause iii are very significant
They postulate assessment of suitability of each candidate in the order in which the names appear in the common eligibility list drawn on the basis of continuous qualifying service rendered by them in the feeder Grade
The scheme of sub Rule 10 totally rules out selection on the basis of relative merit of all eligible candidates
The difference between common Posts  and floating posts  is that while in common posts  a Professor on being promoted to one of the common posts  a Professor on being promoted to one of the common posts  moves to that post and vacates the post of Professor previously held by him while in floating posts  the post held by him is upgraded and he continues to work in the same speciality in the same institution
The guidelines of the Departmental Promotion Committee are not of any assistance
Therefore no argument can be advanced on this basis
If guidelines were governed there was no purpose in adding Rule 410 ii and iii
The basic distinction between the selection posts and non selection posts is whether it is to be filled by a comparative assessment on merit of all eligible candidates or on the basis of continuous length of service
The guidelines say that there is no need to make comparative assessment of records of the officers but it should categorise the officers as fit or non fit
It is a clear indication that there is no comparative assessment involved
The common eligibility list which talks of Rule 410 is nothing but a combined seniority list of officers in different specialities drawn with reference to the date of completion of the prescribed qualifying years of service
It is also incorrect to contend that it is a duty post as defined under Rule 2e
Such an expression as duty post is absent under Rule 410
When these posts had been created in order to release stagnation in addition to authorised strength presence of Chairman of Member of Union Public Service Commission at the Departmental Promotion Committee does not make a non selection post as selection post simply because the guidelines say in the case of non selection posts Union Public Service Commission need not be associated
The fact that this respondent did not raise any objection to the letter dated 3111988 will not in any manner deprive him of his right if the Rules confer such a right
lastly it is submitted that if two views are possible the view taken by the Tribunal should be upheld
Thus no interference is warranted
We shall now proceed to consider the merits of the above contentions
35 posts in super time grade of Central Health Service in the scale of Rs5900 200 6700 plus non practising allowance at the normal rates admissible to similar posts were created
These posts were to last till 2921988
Time and again they were extended
The Rules which were relevant to appreciate the controversy whether the promotion is on the basis of seniority or on the basis of merit may now be seen
In exercise of the power conferred under the proviso to Article 309 of the Constitution the Rules called Central Health Service Rules 1982 were framed
Rule 3 speaks of the constitution of Central Health Service
This service is to consist of persons appointed to the service under the Rules 457 and 8
Rule 4 speaks of authorised strength of service
Sub rule 1 of this Rule states that the authorised strength of duty posts and the deputation posts are as specified in Schedule II
Under sub rule 3 the Government is empowered to made temporary additions or reductions in the strength of both  i the duty posts ii deputation posts
sub rule 6i and ii may be quoted as follows 6 i The Controlling Authority shall upgrade five posts in the grade of Specialist Grade I to supertime grade three posts in the Teaching Specialist Sub cadre as Director Professor and two posts in the Non Teaching Specialist Sub Cadre or Public Health sub cadre as Specialist Consultant and twenty five posts in the grade of Specialist Grade II in the non Teaching Specialist Sub cadre or Public Health Sub cadre or Associate Professor in the Teaching Specialist Sub cadre in the grade of Specialist Grade I without altering the combined authorised strength of posts of the respective sub cadre from which these posts are temporarily upgraded
6 ii The promotions under this sub rule shall be made on the basis of a common eligibility list covering all officers in the respective sub cadres without regard to any specialities
 It requires to be carefully noted that what is talked of is a common eligibility list
In other words this has only reference to eligibility
This is an aspect which we want to emphasise even in the beginning
Then we come to sub rule 10 which was introduced on 3051989 which specifically deals with these 35 newly created floatingcommon posts in the super time grade of Rs 5900 6700
These 35 posts are made up of 20 posts in the Teaching Specialist sub cadre as Director Professor and 15 posts in the Non Teaching Specialist sub cadre as Consultant
These posts will be in addition to the authorised strength
It is common ground that these posts were created to release stagnation
Earlier to this amendment these posts in the Teaching Specialist Sub cadre were alone open to Professors from all specialities
They were  i Director GB Pant Hospital New Delhi
ii Dean Moulana Azad Medical Collage New Delhi
iii Principal Lady Harding Medical Collage  New Delhi
iv Director JIPMER Pondicherry
v Dean JIPMER Pondicherry
vi Deputy Director General Medical DTE DGH New Delhi
As could be seen the promotion posts available were very few and were restricted to certain specific specialities
This led to stagnation
Therefore the floating posts 2015 were created to be filled in the grade of ProfessorSpecialist Grade I Rs4500 5700
It was in this background Rule 410 was introduced
That lays down  There shall be 35 newly created floatingcommon posts in the supertime grade of Rs5900 6700 Twenty posts in the teaching specialist sub cadre as Director Professor and fifteen posts in the Non Teaching Specialist sub cadre as Consultant which will be in addition to the authorised strength of posts in supertime grade of Rs 5900 6700 in different sub cadres of Central Health Service
 Further clause ii of the above Rule lays down as follows The promotions under this sub rule shall be made on the basis of a common eligibility list to be drawn separately for Teaching Specialist sub cadre and Non Teaching Specialist sub cadre covering all officers in the respective sub cadres viz Teaching and Non Teaching without regard to any specialities
Here again it talks of eligibility
In our opinion eligibility means interlacing of seniority list of different specialities
Clause iii reads as under   The appointment against such posts shall be made only if the officer concerned has been duly assessed by a Departmental Promotion Committee in regard to his suitability for holding the post and has been working in the grade of ProfessorSpecialist Grade I on a regular basis for not less than three years failing which has been working as a ProfessorSpecialist Grade I with 17 years of regular service in Group A  post
The note is also made for our purpose that states  The eligibility list shall be prepared with reference to the date of completion by the officers of the prescribed qualifying years of service in the respective grades
However in case of persons who have been appointed on the same date the seniority shall be determined as under  a Where the eligible officers were considered by the same DPC the seniority shall be based on the order of merit
b If there is no order of merit the seniority shall be on the basis of seniority in the feeder grade
c If there is no seniority in the feeder grade or it is not possible to determine the seniority even in the feeder grade the length of regular service in the feeder grade shall be the guiding factor for determining the seniority
d if length of service in the feeder grade is also the same regular service in the next lower grade shall be taken into account failing which date of birth
 It may be seen that clause iii states that the appointment is to be made only if the officer concerned has been duly assessed by a Departmental Promotion Committee in regard to his suitability for holding the Post
Such a consideration will arise only if the concerned officer has been working in the grade of ProfessorSpecialist Grade I for a period not less than three years
The alternative qualification is 17 years of regular service in Group A  post and the concerned officer has been working as a Professor or Specialist Grade I
This clause does not lay down the manner in which the suitability of the officer is to be assessed
However It is noteworthy that suitability is to be assessed by a Departmental Promotion Committee
As to what is stated can be seen when we look at Rule 2 which contains definitions
Rule 2c says as under  Departmental Promotion Committee means a group A  Departmental Promotion Committee specified in Schedule IV for considering the cases of promotion or confirmation in Group A  Posts are of the scale of Rs2200 4000 and above
Schedule III defines the method of recruitment the field of selection for promotion and the minimum qualifying service in the immediate lower grade or lower grades for appointment or promotion of officers to group A  duty posts and deputation posts in the Central Health service
In Note 1 of the said Schedule it is stated thus  Promotion to the post of Associate Professor non functional selection grade Associate Professor Specialist Grade II non functional selection grade Specialist Grade II Senior Scale in non teaching and Public health sub cadres Chief Medical Officer non functional selection grade and Senior Medical Officer will be on non selection basis
All the remaining posts are selection posts
When it says all the remaining posts are selection posts it is obvious that the posts with which we are concerned are selection posts
Schedule IV lays down the composition of Departmental Promotion Committee
With regard to the Teaching Specialist sub cadre posts super time and Specialist Grade I Professor the Departmental Promotion Committee shall consist of the following  i Chairman
ChairmanMember Union Public Service Commission  ii Secretary or his nominee Ministry of Health and Family Welfare  Member iii Director General of Health Services or his nominee  Member
iv One Departmental officer nominated by the Secretary Ministry of Health and Family Welfare  Member
When Rule 4 10 iii talks of Departmental Promotion Committee it is only this Departmental Promotion Committee in accordance with Schedule IV that is thought of
There guidelines issued under the office memorandum of Government of India dated April 10 1989
Under this Office Memorandum the various instructions have been updated and consolidated
Under these guidelines the Departmental Promotion Committee so constituted shall judge the suitability of the officers for promotions to selection posts
it has already been seen that these are selection posts as per Schedule II of the Rules
In Paragraph 21 with reference to the post in question carrying a scale of Rs5900 6700 or equivalent
The minimum status of Officer who should be member of Departmental Promotion Committee is prescribed as Secretary or Additional Secretary to Government of India
Paragraph 22 of the guidelines states as follows  The Union Public Service Commission UPSC should be associated with DPCs in respect of all Central Servicesposts belonging to Group A  where promotion is based on the principles of selection unless it has been decided by the Government not to associate the UPSC with a Group A  DPC
The UPSC need not be associated in respect of posts belonging to Group A  if the promotion is based not on the principles of selection but on seniority cum fitness
Paragraph 24 also stresses the fact that whenever the Union Public Service Commission is associated with the Departmental Promotion Committee the Chairman or a Member of the Commission will preside over the meeting of the Departmental Promotion Committee
The contention of Mr PP Rao learned counsel for the respondents that the nature of the post or the method of promotion need not be decided with reference to the guidelines is not correct
In Rule 4 sub rule 10 clause iii to which a reference has already been made the assessment is required to be done by a Departmental Promotion Committee
It is for such a Committee that guidelines have been prescribed
Therefore we cannot altogether ignore these guidelines
From the above two paragraphs it is clear that if there is to be an assessment the principle of selection is involved
On the contrary if it were merely a seniority cum fitness there is no need to associate the Union Public Service Commission as pointed out in Paragraph 23 of the guidelines
All these lead only to one conclusion that these are selection posts
Having arrived at this conclusion then the question would be what exactly is the meaning of the word suitability
That is dealt with apart from Rule 4 sub rule 10 clause iii also under guidelines in Paragraph 612
The Departmental Promotion Committee is to devise its own method and procedure for objective assessment of suitability of candidates
It is noteworthy in paragraph 631 that the procedure for the preparation of the panel for promotion by the Departmental promotion Committee is delienated
Clause ii is very important and we extract the same In respect of all posts which are in the level of Rs3700 5000 and above the benchmark grade should be very good 
However officers who are graded as Outstanding  would rank en bloc senior to those who are graded as Very Good  and placed in the select panel according upto the number of vacancies officers with same grading maintaining their inter se seniority in the feeder post
Emphasis supplied In contradistinction to this when we look at paragraph 7 of the guidelines which deals with non selection method that dispenses with the requirement to make a comparative assessment of the records
In such a case what is required is to categorise the officers as fit or not yet fit for promotion on the basis of the assessment of the record of service
In so far as we are concerned with selection this paragraph does not have any application whatever
Thus therefore the word suitability in Rule 410 iii having regard to the nature of the post and grade could only mean suitability for the purposes of being selected to the said post
Emphasis supplied Further the expression suitability in the said clause does not in any manner supersede alter or amend the criteria of selection Prescribed in the remaining rules as is applicable to super time grade post
When the expression suitability is construed harmoniously with other rules the process of selection is inescapable as rightly contended by Mr KTS Tulsi learned additional solicitor General
The argument of Mr Rao that if these posts are by the method of selection clauses ii and iii and a note thereunder are wholly unnecessary in Rule 410 overlooks the fact that these clauses deal only with eligibility
It is a common case between the parties that these 35 floating posts were created by sub rule 10 of the Rule 4 in addition to the authorised strength
If as per the rule for the post falling under authorised strength the method of selection is adopted for the authorised strength it must equally apply to the post created in addition to the authorised strength
Though a good deal of controversy arose during the course of the arguments whether these posts had been included in Schedule II or not it was vehemently commented upon by Mr PP Rao learned counsel that an inaccurate statement was made by Union of India that controversy pales into insignificance because of the Gazette Notification dated 10th of August 1992 including these 35 newly floatingcommon posts in Schedule II
Therefore if these posts form part of the authorised strength as to what would be the bearing of Rule 84ii requires to be considered
A careful reading of Rule 84ii reveals that departmental promotion to higher post in the respective special cadres and specialities within the sub cadre concerned shall be made on the basis of selection on merit
It implies that should vacancy arise in a particular speciality this method is to be adopted
In contradistinction to this under rule 410iii even though one of the floating or common posts may be held by a particular person of a particular speciality the said post can go to a person not belonging to that speciality
The teaching speciality sub cadre forms a class within itself since it comprises of 29 specialities
Thus it follows the word selection used in Rule 84ii with reference to inter se merit of persons belonging to a particular speciality with regard to the vacancy occurring in that speciality
Lastly we may refer to one important fact
The first respondent Dr Raja Ram was served with a copy of letter dated 3111988
That clearly states that the 20 posts of Director Professor of Super time grade are to be filled up by selection method merit with regard to seniority
Therefor the decision of Government of India had been conveyed to the first respondent
The first respondent when he was put on notice should have immediately voiced his protest
Of course the failure to protest would not deprive him of a legitimate right if he is entitled to in law
However it is one of the points to be borne in mind
The Departmental Promotion Committee met on 20th September 1989 and the minutes have been placed before us
After examination of the character rolls of the senior most eligible officers the committee assessed the officers as given in Annexure I
The first respondent Dr Raja Ram was rated as very good while the rating for the other doctors is as follows  1
Dr BS Rana 2nd respondent   Outstanding 2
Dr M Khalilullah 3rd respondent   Outstanding 3
Dr KK Jain 4th respondent   Outstanding 4
Dr DDS Kulapathy 5th respondent   Outstanding Where respondents 2 to 5 are rated outstanding they go en bloc  above the first respondent since the first respondent is merely very good
This is because of the application of clause II of paragraph 631 of the guidelines quoted above
It was on this basis the Departmental Promotion Committee assigned rank No14 to the first respondent Dr Raja Ram
Pursuant to this the President of India issued the impugned order of promotion dated 17th of January 1990
Paragraph 3 of the order which we have quoted above clearly states that the promotions will be personal to the officers concerned and the posts presently held by them will stand upgraded to the super time grade in the scale of Rs5900 6700 plus non practising allowance at Rs950 per mensem in terms of the Ministry s order dated 15389
Above all these we cannot lose sight of the fact that for posts of this character in super time grade carrying high salary promotion could not be accorded merely on the basis of seniority
In our considered view it should be on merit
For the foregoing reasons we are clearly of the opinion that the Tribunal had erred in merely adopting seniority as the basis of promotion and not merit
It is needless for us to consider whether these are duty posts since we have taken the view that these posts fall within Schedule II of the Rules
In the result we set aside the impugned judgment of the Tribunal and allow these appeals without costs
The reason why we are not awarding costs in favour of the appellants is because of a specific objection by Mr PP Rao that these posts have not been included in Schedule II by amending the said Schedule
In respect of this the Union of India persisted in the argument that they had been included in Schedule II
Of Course after the Gazette Notification dated 10992 the position may be different
But that does not mean that the earlier incorrect statements by the Union of India could be overlooked
Appeals allowed


Summary:
The petitioner a diploma holders in Engineering was Executive Engineer in the respondent Corporation
He would have been promoted as superintending Engineer but for a Resolution passed in 1988 making 75 of the posts of Superintending Engineers available to Executive Engineers with diploma in Engineering degrees and 25 to Executive Engineers with diploma in Engineering Respondent No2 who junior to petitioner but had engineering degree was promoted as superintending Engineer
The petitioner challenged the promotion of Respondent No 2 before the High court by way of a writ petition
The High court having dismissed the same the petitioner preferred the present special Leave petition
On behalf of the petitioner it was contended that since there was a common seniority list of Executive Engineers any classification on the basis of education qualification was discriminatory and violative of Articles 14 and 16 of the Constitution and that in the absence of any statutory rule or regulation a mere resolution could not effect such discrimination
Dismissing the petition this court HELD 11
It is now well settled that for the purpose of promotion a valid classification can be made among the members holding the same post on the basis of their qualification
Such a classification is permissible and does not violate Articles 14 and 16 of the Constitution
99 A B 12
It is for the authorities if they so desire taking into consideration the nature of work the requisite qualification for the work and the necessity for making a classification to prescribe quotas on the basis of educational qualification
99 D State of Jammu  Kashmir vs Triloki Nath Khosa  ors 19741 SCR 771 followed
HC Sharma  ors
vs municipal corporation of Delhi  ors
   referred to
In the instant case admittedly neither the practice followed till 1988 nor the resolution passed by the respondent Corporation in 1988 was a regulation passed in accordance with section 64 of the Act
However it is well settled that in the absence of a rule or regulation the authority can prescribe service conditions by executive instructions and this is what was done till year 1988 and is also sought to be done since 1988 by the resolution under challenge
100 AB Mysore state Road Transport Corporation vs Gopinath Gundachar char  and V Balasubramaniam and others vs Tamil Nadu Housing Board and others 19874 SCC 738 relied on