Civil Appeal No 2057 of 1979
Appeal by Special Leave from the Judgment and Order dated 11 1 1979 of the Delhi High Court in LPA No 4673
SR Srivastava for the Appellant and Dr NC Shinghal in person PP Rao and Miss A Subhashini for Respondents 1  2
BR Aggarwal for Respondent No 15
The Judgment of the Court was delivered by DESAI J
A highly qualified ophthalmic surgeon feeling aggrieved that he has not been justly treated in the matter of promotion to a post in Supertime Grade II seeks redress of his grievance praying for a mandamus that he may be deemed to have been promoted from February 18 1971 failing which more out of frustration and less by any justification he seeks quashing of the promotion of respondents 4 to 24 though convinced that even if the Court were to accede to his request he is in no way likely to be benefited by this bizarre exercise
51 First to the fact situation
The Union of India has framed Central Government Health Scheme and in implementation thereof has set up various institutions for medical relief and medical education
A Central Health Service became a necessity for effectively implementing the scheme
With a view to constituting the Service Central Health Service Rules 1963  1963 Rules  for short were framed and brought into operation on May 15 1963
The Rules envisaged categorisation of personnel manning the Service into five different categories to wit category A  supertime scale Rs 1600 2000 category B  supertime scale Rs 1300 1600 category C  senior scale Rs 675 1300 category D  junior scale Rs 425 950 and category E  class II scale Rs 325 800
On account of various imponderables the Service could not be constituted and 1963 Rules were amended by Central Health Service Amendment Rules 1966  1966 Rules  for short
Initial constitution of Service was to be on and from September 9 1966
1966 Rules contemplated again the division of Service into four categories namely category I comprising supertime grade I Rs 1800 2250 supertime grade II Rs 1300 1800 category II consists of Specialists  grade Rs 600 1300 category III includes General Duty Officers grade I Rs 450 1250 and category IV comprises General Duty Officers grade II Rs 350 900
1966 Rules provided the method of initial constitution of the Service
Rules 7A1 and 7A2 provided for absorbing departmental candidates holding posts in categories A  and B  under 1963 Rules in posts in supertime grade I and supertime grade II respectively of reorganised Service under the 1966 Rules
Those in service on September 9 1966 and holding post in categories C  D  and E  were absorbed either in the Specialists  grade or General Duty Officers grade as the case may be
For the purposes of constitution and absorption of departmental candidates on the date of initial constitution of re organised service a Selection Committee was set up and absorption was made in accordance with the recommendations of the Committee This process of absorption was over in March 1967 but the constitution of the Service was deemed to be effective from September 9 1966
There were some promotions to supertime grade II up to 1971 but as they are not the subject matter of dispute in this appeal they may be ignored
There was also direct recruitment to the Service between 1966 and 1971
Between February 1971 to July 17 1978 when the appellant came to be promoted to supertime grade II respondents 4 to 24 were promoted on different dates to supertime grade II The promotion of respondents 4 to 24 is challenged by the appellant on diverse grounds 52 but the principal contention is that their promotions are in contravention of rule 8 of 1966 Rules
Rule 8 provides for future maintenance of the Service
Relevant for the present appeal is rule 83 which provides for recruitment to supertime grade II both by promotion and nomination by direct recruitment
As the appellant claims promotion to supertime grade II from February 18 1971 and simultaneously questions promotion of respondents 4 to 24 to supertime grade II on various dates after February 18 1971 and before July 17 1978 when he was actually promoted on a certain interpretation of the relevant rule it may be here extracted xx xx xx 8
Future maintenance of the service After appointments have been made to the Service under rule 7 and rule 7A future vacancies shall be filled in the following manner namely xx xx xx 3 Supertime Grade I a Fifty percent of the vacancies in Supertime Grade II shall be filled by promotion of i General Duty officers Grade I with not less than ten years of service in that category or ii Specialists  Grade officers with not less than eight years of service in that category in the ratio of 23 on the recommendation of a Departmental Promotion Committee on the basis of merit and seniority of the officer s concerned Provided that no person shall be eligible for appointment to any such post unless he possesses the qualifications and experience requisite for appointment to such post
Provided that where the case of an officer appointed to any post in the grade of General Duty Officer Grade I or the Specialists  Grade as the case may be is considered for the purposes of promotion to any posts in Supertime Grade II under this sub rule the cases of all persons senior to such officer in the grades of General Duty Officer Grade I or Specialists  Grade as the case may be shall also be considered notwithstanding that they may not have rendered 10 years or 8 years of service respectively in those grades
To appreciate the contention of the appellant as to how he claims promotion to supertime grade II on February 8 1971 it may be noted 53 that effective from that date the Central Government converted one post from amongst unspecified specialists  Grade posts in supertime Grade II in Ophthalmology Speciality at Willingdon Hospital and transferred Dr BS Jain respondent 3 who was then working as Chief Ophthalmologist cum Associate Professor of Ophthalmology Himachal Pradesh Medical College Simla and offered the vacancy in super time grade II caused by the transfer of respondent 3 to appellant who was next in seniority by way of promotion on ad hoc basis as per memorandum dated December 7 1970
Appellant responded to this offer as per his letter dated December 9 1970 wherein after putting forward various personal inconveniences and a possible loss in emoluments even on promotion he concluded his response to the offer as under In view of my personal problems and in the public interest I most humbly request that this promotion may kindly be granted to me while in Delhi
 Thereafter the Government offered the post to Dr Radha Natarajan but she declined the offer
Subsequently the Government offered the post to Dr MC Sharma who accepted the same but he was not appointed and ultimately Dr GC Sood was promoted to supertime grade II post and was appointed at Simla
Appellant contends that when a post in Ophthalmology at Willingdon Hospital was created on February 1 1971 by conversion of one post from amongst unspecified Specialists  grade posts in supertime grade II that post could only have been filled in by promotion from amongst those holding the post in Specialists  grade in ophthalmology speciality and he being the seniormost and otherwise qualified he should have been promoted from that date
Simultaneously he contends that filling in the post so created in supertime grade II at Willingdon Hospital by transfer of respondent 3 Dr BS Jain was in violation of the statutory rule and hence invalid
He also contends that as he was not qualified to hold the post of Chief Ophthalmologist cum Associate Professor of Ophthalmology Himachal Pradesh Medical College Simla because it was a teaching post and he lacked teaching experience which was an essential qualification the offer of that post to him was merely an eye wash and he could not have accepted the same
It is necessary to examine three different limbs of the submission separately
Rule 5 of 1966 Rules provides for authorised strength of the Service
The authorised strength of the various categories of the service on the date of commencement of 1966 Rules shall be as specified in the first schedule
Part A of the first schedule deals with supertime 54 grade I and Part B deals with supertime grade II
Part C deals with Specialists  grade
The vertical promotional channel is from specialists  grade and General Duty Officers Grade I to supertime grade II and from thereon to supertime grade I
On the date of initial constitution of Service there were 275 permanent and 102 temporary in all 377 posts in specialists  grade
Out of this strength of posts in specialists  grade 28 posts were upgraded to supertime grade II 19 being classified as unspecified specialists  posts and 9 unspecified posts
To that extent the permanent strength of posts in specialists  grade was reduced by 28 so as to leave it at 247
There is no dispute that 19 unspecified Specialists  posts and 9 unspecified posts were upgraded to supertime grade II
The controversy is how these posts were to be filled in
Appellant contends that as these 28 posts were in Specialists  grade and the strength of Specialists  grade posts was reduced by 28 whenever any post out of these 28 posts added to supertime grade II is required to be filled in it can only be filled in by promotion from amongst those originally belonging to specialists  grade ie category C  under 1963 Rules
Simultaneously he contends that as these unspecified specialists  grade posts and unspecified posts 28 in number can be filled in from those belonging to specialists  grade ipso facto they can only be filled in by promotion and not either by direct nomination or by transfer
In support of this submission reliance is also placed on an affidavit filed on behalf of Union of India in a petition filed by Dr BS Jain wherein it was in terms stated that these 28 posts could only be filled in by promotion and in no other manner
The raison d etre for upgrading the 28 posts from specialists  grade to supertime grade II yet dividing them in two separate categories each having its own nomenclature viz 19 posts designated as unspecified Specialists  grade posts and 9 designated as unspecified posts is not difficult to discern
Unlike other professions medical profession has developed branchwise expert specialised knowledge referable generally to number of parts in which human anatomy is divisible
General medicine and general surgery are two broad genus but under each one of them there are numerous specialities and there is intensive study and research in speciality for being qualified for the speciality
Being an expert in any one speciality simultaneously results in being excluded from other specialities even though the specialities may be species of a genus like general medicine or general surgery
Again in each speciality there will be a post of a Lecturer an Assistant Professor an Associate Professor and a Professor with a vertical movement by way of promotion
In a non teaching hospital there will be posts like Junior Surgeon 55 Senior Surgeon Head of the Department and so on
In a profession so compartmentalised specialitywise ex hypothesi it is difficult to provide for promotional avenue by way of a general seniority list integrating different specialities categorywise cadrewise or gradewise
If such a general seniority list including persons belonging to different specialities albeit in the same grade is drawn up for purposes of promotion it might lead to a startling result because the need may be of a promotional post in a speciality and the man at top of the seniority list may not belong to that speciality but may belong to a different speciality and if any promotion was to be given to him to a post in a speciality for which he is neither qualified nor eligible it would be impossible to give vertical promotions by referring to such general seniority list
If the promotion is to a post generally called administrative post in a hospital a general seniority list including experts belonging to different specialities may be helpful but when promotions are to be given to posts in different specialities a general seniority list is not only unhelpful but may really impede the process of promotion
Again demands of different specialities for additional strength may differ from hospital to hospital from area to area and even from time to time
In order to meet such unforeseen eventualities the rules provide for an addition to the strength of supertime grade II by keeping 19 posts designated as unspecified Specialists  grade posts and 9 unspecified posts in a pool
Whenever a demand came for providing a higher post in supertime grade II in any particular speciality ordinarily where the strength of the service is prescribed a post will have to be created which any one familiar with bureaucratic jagornot would immediately realise how time consuming it is
Anticipating such a situation and to meet with the demands of specialities within a reasonable time it was provided that there would be a pool of 19 unspecified Specialists  posts in supertime grade II and 9 unspecified posts also in supertime grade II
This would facilitate conversion from the pool of unspecified Specialists  posts of an unspecified Specialists  post to a specified Specialist post in a speciality where a need has been felt
Once the need is felt and a post is converted from an unspecified post to a specified post in supertime grade II it becomes an addition to the strength of that speciality and the post can be filled in in accordance with the relevant rule
But it is implicit in this arrangement that the person to be appointed to such a post would be one who is eligible to be appointed to that speciality and not some one who is on top of the general seniority list in Specialists  grade or general duty officers  grade from which promotion is to be made
If promotion has to be made from a general seniority list which includes all Specialists in the Specialists  grade the one at the top may be a Cardiologist and the post may be converted into Anesthesiology and it 56 does not require long persuasive argument to hold that a Cardiologist cannot be appointed as an Anaesthetic
It is therefore crystal clear that when a post from amongst unspecified Specialists  posts is converted to a specified post which means specified in the speciality in which a need has been felt from amongst those in the specialists  grade belonging to that speciality and in order of their inter se seniority a promotion could be given
This position is inescapable and it is difficult to comprehend a position contrary to this
In fact this situation has been expressly recognised by this Court in Union of India  Ors
vs section B Kohli  Another wherein it was held that for being appointed as a Professor in a particular speciality in that case Orthopaedics the condition that a person must have a post graduate degree in Orthopaedics would not result in any classification without reference to the objectives sought to be achieved and this would not result in any discrimination nor would it be violative of Article 16
In passing a contention of the appellant that all 28 posts which were deducted from the strength of permanent posts in Specialists  grade and added to supertime grade II must on that account alone be filled in by promotion from those belonging to the specialists  grade only may be examined
There is no merit in this contention
If there was any substance in this contention there was no reason to provide for two different designations and divide the 28 posts in two different nomenclatures
28 posts are made up of 19 posts designated as unspecified Specialists  posts and 9 unspecified posts
Undoubtedly 19 posts which were designated as unspecified Specialists  post must be filled in from amongst those belonging to the Specialists  grade but that itself also shows that the remaining 9 unspecified posts can be filled in from amongst those who may be promoted from General Duty Officers grade I because General Duty Officers grade I are also promotable to supertime grade II
The nomenclature unspecified Specialists  post and unspecified post provides an effective answer and indicates that while in the case of the former promotion must be given from Specialists in respect of the latter General Duty Officers Grade I would be eligible for promotion
Merely because all 28 posts were deducted from the strength of posts in Specialists  grade it could not be said that all 28 posts would be available for promotion to those belonging to Specialists  grade only
The language employed in rule 5 also points in this direction
There is therefore no substance in the contention that all 28 posts must be filled in by promotion from amongst those who belong to Specialists  grade only
57 The last limb of the argument is that the 19 unspecified Specialists  posts in supertime grade II can only be filled in by promotion and not in any other manner and particularly not by transfer
The provocation for this submission is posting of Dr B section Jain in supertime grade II post created at Willingdon Hospital in February 1971
Undoubtedly one unspecified Specialists  grade post was converted and was designated as specified post in supertime grade II in Ophthalmology speciality at Willingdon Hospital in February 1971
Appellant says that once an unspecified Specialists  grade post was converted into a specified post and that as it was assigned to Ophthalmology speciality he being the seniormost Ophthalmologist and qualified for the post that post could only be filled in by promotion and he should have been promoted and the posting of Dr B section Jain by transfer to that post was illegal and invalid
Rule 8 provides for future maintenance of the Service
Rule 83 provides for 50 of the vacancies in supertime grade II to be filled in by promotion of General Duty Officers Grade I and Specialists  grade officers in the ratio of 23 and the remaining 50 of the vacancies to be filled in by direct recruitment in the manner specified in the second schedule
Now once an unspecified specialists  grade post in supertime grade II is converted and made a specified post in a speciality it is an addition to the strength of the speciality and the filling in of such post shall be governed by rule 8 3
Undoubtedly if it is to be filled in by promotion that would only be from amongst those belonging to Specialists  grade officers as the converted post was unspecified Specialists  post
But to say that it can be filled in only by promotion is to ignore the mandate of statutory rule 83 which provides for filling in posts in supertime grade II by either promotion or nomination in the ratio therein prescribed
Once there is a post in supertime grade II which is to be filled in subsequent to the initial constitution of the Service rule 8 3 will be attracted in all its rigour
And it should not be overlooked that rule 8 3 provides for filling in of posts in supertime grade II by promotion as well as by direct recruitment in the ratio of 11
On a true interpretation of the 1966 Rules in general and rule 8 3 in particular it could not be gainsaid that whenever an unspecified Specialists  post is converted into a specified post and assigned to a speciality it can be filled in either by promotion or by direct recruitment as the situation warrants according to the rule and as determined by the quota rule
But it was very strenuously contended that the Central Government in implementing the rule has understood and in fact implemented the rule to this effect that whenever an unspecified Specialist s post is converted as a specified post and assigned to a speciality it can only be filled in by promotion
Reliance was placed upon an affidavit made on behalf of the Central Government in a writ 58 petition filed by Dr B section Jain in Delhi High Court
In the counter affidavit on behalf of the Central Government a stand was taken that the 19 unspecified Specialists  posts were meant only for promoting category C  clinical Specialists to supertime grade II
In Union of India vs Bhim Singh  Ors the Court refers to the stand taken on behalf of the Union of India in that case as under Learned counsel for the appellant Union of India submits that these posts were included in supertime grade II not with reference to the actual number of officers who had completed 8 years of service or more on a particular date but only with a view to providing opportunities of promotion to the former Category C  officers holding clinical Specialist posts
It does appear that such a stand was taken on behalf of the Union of India but simultaneously it may be noted that the Court has not accepted the stand
And it would be too late in the day to say that on such a stand of the Union of India if it runs counter to the rule explicit in meaning any argument can be founded or any relief can be claimed unless estoppel is urged
And no such estoppel is claimed In P C Sethi  Ors
vs Union of India  Ors the petitioners urged that the view put forward on their behalf had been admitted by the Government in its affidavit filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government
Negativing this contention this Court held that such admissions if any which are mere expression of opinion limited to the context and not specific assurances are not binding on the Government to create and estoppel
Similar view was also expressed in J K Steel Ltd vs Union of India where following the earlier decision of this Court in Commissioner of Income tax Madras vs K Srinivasan and K Gopalan it was observed that the interpretation placed by the Department on various sub sections in the instructions issued by the Department cannot be considered to be proper guide in a matter wherein the construction of a statute is involved
Therefore it cannot be said that 19 unspecified Specialists  posts could only be filled in by promotion and such an interpretation or stand would run counter to the express provision contained in rule 83 which is statutory
Even if such be the stand of the Central Government it will have to be negatived and was in fact negatived in the case of Dr B section Jain
59 Incidentally it would be incongruous to hold that when a post is created in a certain grade category or cadre and it is to be filled in some one who is already in that grade category or cadre cannot be transferred to that post and the post so vacated by him can be filled in in the manner prescribed
Even if there was some substance though there is none in the contention on behalf of the appellant that whenever unspecified Specialists  post is converted into a specified post it can only be filled in by promotion yet when some one who is already in that grade is transferred to the newly created post and the post vacated by such transferred employee is offered by way of promotion which in fact was done in this case there is any violation of the rule
As pointed out earlier when a post is created it is an addition to the strength of that particular category and the additional strength has to be filled in the manner prescribed in the rule and that no sanctity attached to the place where the post is created but the sanctity attaches to the number of posts and the manner of filling them
Now Dr B section Jain was already holding the post in supertime grade II at Simla when a post in supertime grade II in Ophthalmology was created at Willingdon Hospital from amongst unspecified Specialists  posts
Even if this additional post has to be filled in by promotion as contended by the appellant it is not open to him to urge that the post at Willingdon Hospital alone must have been filled in by Promotion
Dr B section Jain was transferred to the post created at Willingdon Hospital and the post vacated by him which was in supertime grade II was offered to the appellant as and by way of promotion
Therefore even if the contention of appellant is to be accepted there is no violation of rule 83
Equally it is also not correct to contend that Dr B section Jain could not have been transferred to the post created at Willingdon Hospital
Transfers in posts which are in the same grade or are considered equivalent can be affected on administrative exigencies
Once a new post is created and it is an increase in the strength of the Cadre in which the post is created every one in that cadre is eligible to fill in that post and transfer is permissible
Transfer of Dr B section Jain is therefore beyond question
In E P Royappa vs State of Tamil Nadu  Anr it is observed that the services of cadre officers are utilised in different posts of equal status and responsibility because of exigencies of administration and employing the best available talent in suitable post
There is no hostile discrimination in transfer from one post to other when the posts are of equal status and responsibility
Therefore it is futile to urge that filling in the post created at Willingdon Hospital in supertime grade II by transfer of Dr B section Jain a person already promoted to supertime grade II was invalid 60 in as much as the post was not filled in by promotion or direct recruitment but by transfer
The next contention is that the refusal of the appellant to accept the post at Simla offered to him will not debar him from promotion because the appellant was not qualified for the post at Simla
If an employee eligible for promotion is offered a higher post by way of promotion his refusal to accept the same would enable the employer the Central Government in this case to fill in the post by offering it to a junior to the Government servant refusing to accept the post and in so acting there will be no violation of article 16
Further the Government servant who refuses to accept the promotional post offered to him for his own reasons cannot then be heard to complain that he must be given promotional post from the date on which the avenue for promotion opened to him
Appellant being conscious of this position tried to circumvent it by saying that the Post at Simla offered to him by way of promotion in super time grade II was a teaching post for which he was not qualified and therefore his refusal to accept the same cannot come in his way from claiming promotion from the very date on which he refused to accept the promotion to a post for which he was not qualified
Appellant went so far as to suggest that the Government action in offering him the post at Simla was actuated by malice in that while making a show of offering him a promotional post it so deliberately acted as would impel the appellant to refuse the same
Says the appellant that one post from the pool of unspecified specialists posts was converted to a specified post in Ophthalmology and was sanctioned at Willingdon Hospital which is not a teaching hospital and therefore the appellant was fully qualified for being promoted to that post
Instead of acting in this straight forward manner the Government transferred Dr B section Jain from Simla to the post newly created at Willingdon Hospital and purported to offer the Simla post to the appellant for which appellant was not qualified and thus deliberately thwarted the promotional opportunity of the appellant and that this smacks of malice
To substantiate this submission the appellant points out that the designation of the post at Simla was Chief Ophthalmoligist cum Associate Professor of Ophthalmology Himachal Pradesh Medical College Simla
This according to the appellate was a teaching post and the qualification prescribed by the regulation framed by the Medical Council of India requires as an essential qualification a teaching experience as Reader or Assistant Professor in Ophthalmology for five years in a Medical College after requisite post graduate qualification
It was further stated that the appellant had no teaching qualification though he started teaching at the Safdarjang Hospital when he was recognised as a post graduate teacher in Ophthalmology but 61 his teaching experience extended to barely two weeks
It was also said that essential teaching experience prescribed by the Medical Council of India under its regulation is not relaxable and that therefore appellant was not qualified for the post of Associate Professor which was offered to him
In SB Kohli s case Supra this Court did observe that a discretion to relax teaching experience qualification is conferred only on the UPSC in cases of direct recruitment and not to the Departmental Promotion Committee in case of promotion
That being the intent of the law it is to be given effect to
This observation is in a slightly different context but one may safely proceed on the assumption that essential teaching qualification for the post of an Associate Professor prescribed by Medical Council of India is not relaxable
Therefore it can be said with some justification that the appellant who did not have the requisite teaching experience was not qualified for the post of Associate Professor
But this want of qualification impelling refusal to accept promotion appears to be an afterthought on his part
When the promotional post was offered to him as per letter dated December 7 1970 appellant did not reply by saying that he was not qualified for the post
In his reply dated December 9 1970 to the offer made by the Government appellant pointed out that he was involved in some litigation with regard to his house and that his stand for eviction would be weakened by his transfer
He then proceeded to point out that he was suffering from chronic bronchitis and that the climate at Simla may not suit him
He also pointed out the adverse effect of climate on the health of his wife
He then proceeded to point out that apart from his personal problems he was engaged in the Safdarjang Hospital for teaching of post graduate students and therefore he requested the Government the post of Chief Ophthalmologist cum Associate Professor of Ophthalmology may kindly be bestowed on me at Safdarjang Hospital where there is essential need for such a post
Could this be the stand of a person offered a promotional post honestly believing that he was not qualified for the same The post offered to him was of Chief Ophthalmologist cum Associate Professor
Appellant believes and now says that he was not qualified for the same if the post was at Simla but if the same post was created at Delhi with the same designation with the same responsibility for teaching and that too at the post graduate level he considered himself to be fully qualified for the same and requested the Government to bestow that post on him
He then proceeds to point out his merits and puts forth his disinclination for being promoted to the post at Simla
In the face of his bold statement that he is prepared to be appointed as Chief Ophthalmologist continuing to do teaching work at the post graduate level at the Safdarjang Hospital he now wants to assert that he was not qualified for the post
This convenient after 62 thought cannot decry the fact that the appellant declined to accept the post at Simla not because he believed he was not qualified for the post but because he was not inclined to leave Delhi may be for reasons which may be true and compelling for him
This becomes explicit from a further averment in paragraph 7 of his reply wherein he pointed out to the Central Government that even though he was selected by the UP Government for the post of Chief Medical officer Gandhi Memorial Eye Hospital Aligarh on a fabulous salary of Rs 3000 pm and which offer was transmitted to him through the Government so as to enable the Government to release him and although the Government was considering his release on deputation for the post but he himself declined the offer because of domestic problems
There is thus no room for doubt that the appellant considers himself qualified for any post in Delhi and was under no circumstances willing to leave Delhi and his disinclination to accept any post at Simla stemmed not from his honest belief that he was not qualified for the post but because he was not inclined to leave Delhi
Undoubtedly it may be that under the regulation stricto sensu he may not be qualified for the post of Associate Professor because he did not possess the requisite teaching experience
But an ad hoc arrangement could have been made and it was open to the central Government if the appellant had accepted the post to move the Medical Council of India to permit the Central Government to appoint the appellant at Simla
Some way could have been found but the door was bolted by the appellant himself declining the offer for reasons other than his qualification which he may have found compelling
In this background it is difficult to accept the submission of the appellant that the offer made by the Government was an eye wash or a make believe and therefore his refusal to accept the offer of promotion would not postpone his promotion
Incidentally it would be advantageous to take note of the fact at this stage that the appellant was promoted to supertime grade II on July 17 1978 and between February 1971 when he declined to accept promotion and July 1978 when he was in fact promoted no one junior to him in the speciality to which he belongs was ever promoted overriding his claim to supertime grade II
Therefore if since his refusal to accept promotion at Simla appellant was never superseded by any one junior to him in his speciality it is difficult to entertain the contention that in refusing promotion to him when some posts were converted from unspecified Specialists  posts into different specialities and were filled in by those who were qualified to be promoted in the respective speciality in which the post was created he could be said to have been superseded in violation of article 16
And in this view of the matter nothing more need be examined but as certain other contentions were advanced 63 which even if accepted would not in any case benefit the appellant it appears to us an exercise in futility but we would rather dispose them of than gloss over them
In the High Court appellant canvassed twofold contention that between 1966 and 1971 ie after the initial constitution of service and before the proposal offering promotion to the appellant at Simla was made 25 promotions were given to supertime grade II to persons who were ineligible for the same and secondly after February 1971 and before July 1978 when he was actually promoted to supertime grade II 29 promotions were given to supertime grade II some of whom are respondents 4 to 24 and that their promotion was in contravention of rule 83 of the Rules and therefore invalid
Before this Court the first limb of the argument namely invalidating promotions between 1966 and 1971 to supertime grade II was not canvassed
It was the second limb of the argument that was pressed into service
None of those who were promoted between February 1971 and July 1978 belonged to the speciality to which appellant belongs
Each of them belonged to a different speciality and admittedly appellant was not qualified for being promoted to any supertime grade II post in the speciality in which each one of them was promoted
When this aspect became clear a question was posed to the appellant how he would be benefited even if his contention were to prevail that none of them was eligible for promotion to supertime grade II and therefore the promotion of each of them deserved to be quashed
The answer was that there is a common seniority list of persons belonging to supertime grade II and promotion to supertime grade I is by seniority and that promotion of respondents 4 to 24 if quashed would push the appellant higher up in seniority above them and would enhance his chances of promotion to supertime grade I Remote chances of promotion could hardly be said to be condition of service which if impaired would be violative of article 16
Even assuming that a remote chance of promotion if adversely affected would give a cause of action it was made clear that the appellant is retiring on superannuation in the last quarter of this year and that even if he is assigned a deemed date of promotion somewhere in February 1971 yet there are number of persons above him in supertime grade II who were promoted between 1966 and 1971 and appellant has not even a remote chance of promotion
Appellant at that stage reacted by saying that even if it be true yet the promotions of respondents 4 to 24 ought to be quashed because when he with respondents 4 to 24 and others belonging to supertime grade II attend a meeting convened to discuss some administrative matter or for holding charge of higher post temporarily vacant they claim seniority over him and his dignity is impaired
This calls for no comment save 64 and except saying that the approach appears to be more emotional rather than realistic
However the contention may be examined on merit
Promotion of respondents 4 to 24 was questioned on the ground that each of them was ineligible for promotion to supertime grade II on the date on which each of them was promoted in view of the provision contained in rule 83
Rule 83 has been extracted herein before
The contention is that since the initial constitution of service on September 9 1966 any future promotion to supertime grade II from departmental candidates could be from amongst those who qualify for the same as provided for in rule 83
Apart from academic qualification the experience qualification prescribed is that the General Duty Officers grade I and Specialists  grade officers should have put in 10 years and 8 years of service respectively in that category
Appellant contents that service in the category means service in that category which was constituted under the 1966 amendment rules
Rule 2c defines category to mean a group of posts specified in column 2 of the table under rule 4
Rule 4 provides for classification categories and scales of pay
It provides that there shall be four categories in the service and each category shall consist of the grade specified in column 2 of the table appended to the rule
The four categories are first category which includes supertime grade I and supertime grade II posts
Category two is Specialists  grade posts category three comprises General Duty officers grade I and category four includes General Duty Officers grade II
It was contended that the service to be rendered for the qualifying period must be in the category and therefore a general Duty Officer grade I can only become eligible for promotion after he renders 10 years of service in that category which came into existence on September 91966 and this would apply mutatis mutandis to the Specialists  grade officers who must put in 8 years of service in the category which came into existence on September 9 1966
If this contention were to prevail apart from anything else appellant himself would not have been qualified for promotion to supertime grade II in February 1971 from which date he claims as being eligible for promotion to supertime grade II because he had not put in 8 years of service in the category of specialists  grade officers formed on September 9 1966
That apart it is impossible to overlook the history of the Service
The rules were initially framed in 1963
At that time the service was sought to be classified in 5 categories styled category A  to category E 
Expression category  in 1963 Rules was defined to mean a group of posts carrying the same scale of pay
Another salient feature of which notice should be taken is that save and except upward revision in scale category I under the 1966 amendment Rules includes cate 65 gories A  and B  under 1963 Rules
Category C  has been designated as Specialists  grade ie category II under the 1966 Rules
Category D  is equated with General Duty Officers grade I styled category III and category E  is equated with General Duty officers grade II ie category IV
Expression service in the category  has to be understood in this historical background
It is difficult to entertain the contention that the past service of Specialists  category C  officers got wholly wiped out merely because the nomenclature of category C  Specialists officers was changed to Specialists  grade officers replacing the expression category C  by category II
And that would apply mutatis mutandis to General Duty Officers grade I and grade II
The change in the definition of the expression category  appears to be instructive in that by the change service in the post is emphasised and the question of the grade of pay is relegated into background
And this change appears to be with a purpose inasmuch as when certain qualifying service is prescribed for being eligible for promotion in a category the emphasis is on service rendered in a post irrespective of the grade
A specialists  grade officer belonging to category II was a specialists  grade officer in category C He was even then eligible for promotion to supertime grade II
Was it ever intended that a Specialists  grade officer belonging to category C  under 1963 Rules who had put in more than 8 years of service but who was not promoted prior to September 9 1966 the date of initial constitution of service or on the date of initial constitution of service would be ineligible for promotion for a period of 8 years simply because the designation of the category changed Was it intended that there should be a complete hiatus for a period of 8 years in promoting Specialists  grade officers to supertime grade II and for a period of 10 years in case of General Duty Officers grade I
There is no warrant for such an inference from the Rules
Such an intention cannot be attributed to the framers of the Rules nor is it possible to accept the submission of the appellant that the posts could have been filled in by direct recruitment because where candidates eligible for promotion were not available it was open to resort to direct recruitment as provided in the Rules
It is a well recognised canon of construction that the construction which makes the Rules otiose or unworkable should be avoided where two constructions are possible and the Court should lean in favour of the construction which would make the rule workable and further the purpose for which the rule is intended
While prescribing experience qualification in 1966 Amendment Rules the framers of the Rules could not have intended to ignore wholly the past service
A specialist who was in category C  was included in category II with the designation specialists  grade officer
Similarly General Duty Officer grade I in category D  acquired the same nomenclature General Duty Officer grade I in cate 66 gory III
There was an upward revision of pay scales of both the categories
Should the change in designation be understood to mean that the past service rendered as Specialist or as General Duty Officer is wholly wiped out for any future promotion  Even after change of designation it is not suggested that the duties underwent any change
Same duty was performed a day prior to September 9 1966 and the day thereafter by both the categories in the respective posts
In this background the High Court was right in holding that the word category  used in rule 83a has to be understood to mean the post included in that category and consequently service in that category would mean service in a post included in that category
The appellant contended that this construction would run counter to the posting of former categories D  and E  officers on probation on September 9 1966 in specialists  grade and General Duty Officers grade I
In this connection it must be recalled that on initial constitution of Service some persons who were in the category of General Duty Officers were absorbed and appointed in Specialists  grade and vice versa was true of some persons
It is equally true that Officers belonging to categories D  and E  were considered in a category lower to category C 
It is equally possible therefore that on September 9 1966 ie the date of initial constitution of Service some of the officers belonging to categories D  and E  who were absorbed in categories II and III respectively may have been put on probation but for qualifying service for upward promotion service rendered as probationer is not to be ignored
Viewed from either angle it is crystal clear that service rendered in equivalent post prior to the date of initial constitution of Service could be taken into account in calculating qualifying service for next promotion
This was the stand taken by the Government in the affidavit filed in Civil Writ No 115571 filed by Dr Chandra Mohan in the High Court of Delhi and that appears to be consistent with the construction of rule 83
The contention therefore that executive instruction cannot run counter to the statutory rule must be rejected as untenable in the facts of this case
It was next contended that the Government was guilty of legal malice in that in February 1971 on a need being felt a post in supertime grade II in Ophthalmology speciality was sanctioned at Willingdon Hospital and filled in by transfer of Dr BS Jain overlooking and ignoring the rightful claim of appellant and on transfer of Dr BS Jain on March 7 1972 to Safdarjang Hospital the post was also transferred to Safdarjang Hospital
In this connection appellant also pointed out that there is material on record to show that the Superintendent of Willingdon Hospital felt an acute need for a post in super 67 time grade II in Ophthalmology speciality and yet it was not created while on the other hand in order to accommodate some favourites like respondents 4 5891213 and 15 some posts in different specialities where they could be accommodated were created without the need for the same
There is evidence to the effect that appellant had sent a proposal duly recommended by Medical Superintendent of Safdarjang Hospital to the authorities for creating a supertime grade II post in Eye Department in May 1971 as per letter dated May 3 1971
There is also material to show that some ad hoc appointments were made in supertime grade II
It is however not possible to strike down those appointments on the ground that some posts were created in supertime grade II though not needed wherein some of the respondents were promoted or that there was no justification for creation of posts or for making ad hoc appointments
It should be distinctly understood that not a single post was created in Ophthalmology speciality to which appellant could have been appointed
The need for the post of the requirements of the hospital or the need for an ad hoc or additional appointment is a matter which the Government is competent to decide and in the absence of requisite material the Court cannot interpose its own decision on the necessity of creation or abolition of posts
Whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity
The Government is a better Judge of the interests of the general public for whose service the hospitals are set up
And whether a hospital catering to the needs of general public providing medical relief in different specialities has need for a particular post in a particular speciality would be better judged by the Government running the hospital
If Government is a better judge it must have the power to create or abolish the posts depending upon the needs of the hospital and the requirements of general public
Creation and abolition of posts is a matter of Government policy and every sovereign Government has this power in the interest and necessity of internal administration
The creation or abolition of post is dictated by policy decision exigencies of circumstances and administrative necessity
The creation the continuance and the abolition of post are all decided by the Government in the interest of administration and general public see M Ramanatha Pillai vs The State of Kerala and Anr
The Court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from malafide legal or factual
In this background it is difficult to entertain the contention of the appellant that posts were created to accommodate some specific individuals ignoring the requirements of the hospital or the interests of the general public at large
68 It was next contended that respondent 9 Dr KP Mathur and respondent 23 Dr A R Majumdar should have been considered ineligible for promotion because both of them were adversely commented upon by the Madras High Court as being negligent in discharge of duties and the Government had to pay a sum of Rs 10000 as compensation by way of damages for their negligence
He sought inspection of some files to substantiate this allegation
Unfortunately though respondents 9 and 23 were made parties they did not appear to controvert this fact
But it appears from the record that they were promoted after they were selected by the Departmental Promotion Committee and the promotion was approved by UPSC Appellant contended that this averment on his part has remained uncontroverted and it must be taken as having been admitted and proved
It may be mentioned that in the petition filed by the appellant in the Delhi High Court this allegation was not specifically averred
In a subsequent affidavit filed by him this allegation was put forth
If respondents 9 and 23 had not appeared in the High Court the appellant should have shown that this subsequent affidavit was served upon them and in that event alone some adverse inference may be drawn against them
It may be that the Government may not be interested in either denying or admitting this averment which directly and adversely affects respondents 9 and 23
However in view of the fact that they were selected by the Departmental Promotion Committee and the promotion was approved by the UPSC it is difficult to entertain the contention at the hand of the appellant who is not in any way going to be benefited by the invalidation of their promotion
It was incidentally urged that promotions given to respondents 91213 and 15 must be set aside because they belonged to former category D  and were given promotions against 19 unspecified posts in contravention of the affidavit of the Government
As stated earlier there were some specialists in category D  also
At the time of initial constitution of service those who qualified for being appointed General Duty Officers from category D  were absorbed in category III and those who were eligible for being absorbed in Specialists  grade were so absorbed
After absorption they belonged to the respective category
Thereafter on conversion of posts from the pool of 19 unspecified specialists  posts they were promoted as being found qualified for the same and for the post to which each one of them was promoted appellant was not qualified and therefore the contention that the promotion of the aforementioned four respondents should be set aside has no merit in it
Having examined the challenge to the promotion of respondents 4 to 24 on merits it must be made clear that the appellant is least 69 qualified to question their promotions
Each one of them was promoted to a post in supertime grade II in a speciality other than ophthalmology and appellant admittedly was not qualified for any of these posts
Even if their promotions are struck down appellant will not get any post vacated by them
Incidentally High Court also upheld their promotions observing that by the time the petition was heard each one of them had requisite service qualification and therefore the promotions could not be struck down
Once the challenge on merits fails the second string to the bow need not be examined
Having said all this appellant is least competent to challenge their promotions
In a slightly comparable situation this Court in Chitra Ghosh and Anr
vs Union of India and Ors
observed as under The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to the reserved seats
It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government
They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats
The assumption that if nominations to reserved seats are not in accordance with the rules all such seats as have not been properly filled up would be thrown open to the general pool is wholly unfounded
 It was last urged that the High Court has set aside the promotion of respondent 18 Dr P C Sen who was promoted in 1971 and therefore there was an opening in supertime grade II in September 1971 and appellant should be considered eligible for promotion to the post from that date and that this Court should consider appellant s eligibility for promotion from September 1971 and if found eligible should grant the same
Dr PC Sen was General Duty Officer grade I and he was posted as Director of Health Services Manipur
Appellant contends that he was in Specialists  grade and was senior to Dr Sen and was not unqualified for the post of Director of Health Services Manipur but the post was not offered to him and therefore he must be considered eligible for promotion from the date on which Dr PC Sen was promoted
The High Court in LPA 4674 filed by the appellant has set aside the promotion of Dr PC Sen as also of Dr Jasbir Kaur but the High Court has not thought fit to direct the Government by a mandamus to consider eligibility of the appellant for the post of Director of Health Services Manipur
There is no material before us whether the appellant was qualified for the post
If he was eligible it would be for the Government to consider how it should deal with the post
We 70 are however surprised that the appellant who was not prepared to go to Simla in February 1971 would have been willing to go to Manipur in September 1971
In our opinion it would be giving him an unfair advantage now by giving a technical benefit of a situation whereby promotion of Dr Sen has been invalidated by the High Court
Neither Dr Sen nor the Government have preferred appeal against the judgment by which the promotions of Dr PC Sen and Dr Jasbir Kaur were invalidated by the High Court
But the matter must remain at that stage and there is no justification for giving a direction that the appellant should be considered for the post which is deemed to have fallen vacant in September 1971 on the invalidation of promotion of Dr PC Sen
In this connection it may be pointed out that some time after the hearing was over in this Court learned counsel for the appellant has circulated a letter that the High Court has set aside the promotion of respondent 7 Dr Ramesh Prasad Singh as also of respondent 21 Dr Brij Gopal Misra
It is undoubtedly true that the learned single Judge who heard the petition initially had set aside the promotion of Dr Brij Gopal Misra to the post of Regional Deputy Director NMEP Hyderabad
But neither from the judgment of the learned single Judge nor from the judgment of the Division Bench it is possible to ascertain that the promotion of Dr Ramesh Prasad Singh has been invalidated
No direction in that behalf can be given
Before we conclude it may be pointed out that on the conclusion of hearing of this appeal in order to heal the wound caused by impaired dignity of the appellant as herein before mentioned a suggestion was made to the Government to see if the present appellant could be accommodated in some way where he may not feel the humiliation which he claims he suffers
Mr P Parameswara Rao learned counsel for the Government promised to discuss the matter with the Government and ultimately on March 7
1980 the Central Government offered the post of Director and Head of the Department for a programme concerned with vision impairment and amelioration thereof
In that post the appellant would be the Head of the Department and would continue to be in supertime grade II
This offer did not appeal to the appellant and the matter was left at that
There is no substance in any of the contentions urged on behalf of the appellant and therefore this appeal fails and it is dismissed with no order as to costs
VD Appeal dismissed


Summary:
The Union of India has enacted Central Government Health Scheme and in implementation thereof has set up various institutions for medical relief and medical education
A Central Health Service became a necessity for effectively implementing the scheme
With a view to constituting the service Central Health Service Rules 1963 were framed and brought into operation on May 15 1963
The Rules envisaged categorisation of personnel manning the service into five different categories to wit category A  supertime scale Rs 1600 2000 Category B  supertime scale Rs 1300 1600 Category C  Senior scale Rs 675 1300 Category D  Junior scale Rs 425 950 and Category E  class II scale Rs 325 800
On account of various imponderables the service could not be constituted and 1963 Rules were amended by Central Health Service Amendment Rules 1966
Initial constitution of service was to be on and from September 9 1966
1966 Rules contemplated again the division of service into four categories namely Category I comprising supertime scale Grade I Rs 1800 2250 supertime scale grade II Rs 1300 1800 Category II consists of Specialists  grade Rs 600 1300 Category III includes General Duty officers Grade I Rs 450 1250
and Category IV comprises General Duty officers Grade II Rs 350 900
1966 Rules provided the method for initial constitution of the service
Rules 7A1 and 7A2 provided for absorbing departmental candidates holding posts in categories A  and B  under 1963 Rules in supertime Grade I and supertime Grade II respectively of reorganized service under the 1966 Rules
Those in service on September 9 1966 and holding posts in Categories C  D  and E  were either absorbed in specialists  grade or General Duty Officers Grade as the case may be
For the purposes of selection and absorption of departmental candidates on the date of initial constitution of reorganised service a Selection Committee was set up and absorption was made in accordance with the recommendation of the Committee
This process of absorption was over in March 1967 but the constitution of the service was deemed to be effective from September 9 1966
Rule 2c defines category to mean a group of posts specified in column 2 of the table under Rule 4
Rule 4 provides for classification categories and scales of pay
Rule 5 of Rules 1966 provides for authorised strength of the service
Rule 8 prescribes the manner in which future vacancies after appointments have been made to the Service under Rule 7 and 7A shall be filled in Supertime Grade II
45 The authorised strength of the various categories of the service on the date of commencement of 1966 Rules shall be as specified in the First Schedule
The vertical promotional channel is from Specialists  grade and General Duty officers Grade I to supertime Grade II and from thereon to Supertime Grade I On the date of initial constitution of service there were 275 permanent and 102 temporary in all 377 posts in Specialists  grade
Out of this strength of posts in specialists  grade 28 posts were upgraded to supertime Grade II 19 being classified as unspecified specialists  posts and 9 unspecified posts
The Central Government converted one post from amongst the 19 unspecified specialists  grade posts in Supertime Grade II in Ophthalmology speciality in Willingdon Hospital and transferred one Dr B section Jain respondent 3 who was then working as Chief opthalmologist cum Associate Professor of Ophthalmology Himachal Pradesh Medical College Simla and offered the vacancy to in Supertime Grade II caused by the transfer of respondent 3 to appellant who was next in seniority by way of promotion on ad hoc basis as per Memorandum dated December 7 1970
As the appellant was prepared to accept only if the posting was at Delhi and not in Simla one Dr G C Sood was promoted to supertime Grade II post and was appointed at Simla
The appellant thereafter filed a writ petition praying for Mandamus that he may be deemed to have been promoted from February 18 1971 the date when Dr Jain was posted at Willingdon Hospital
The appellant also questioned the promotions of respondents 4 to 24 to supertime grade II on various dates after February 18 1971 and before July 17 1978 when he was actually promoted on a certain interpretation of Rule 83 of the Central Health Service Rules 1963
The High Court dismissed the writ petition
A Letters Patent Appeal was partly allowed
Hence the appeal by special leave
The appellant contended that a the promotions of Respondents 4 to 24 are in contravention of Rule 8 of 1966 Rules and b when a post in Ophthalmology at Willingdon Hospital was created on February 1 1971 by conversion of one post from amongst unspecified specialists  grade posts in supertime Grade II the post could only have been filed in by promotion from amongst those holding the post in specialists  grade in Ophthalmology speciality and he being the senior most and otherwise qualified he should have been promoted from that date c filling in the post at Willingdon Hospital by transfer of respondent 3 was in violation of the statutory rule and hence invalid d the offer of the post to him at Simla was an eye wash and malafide as he lacked teaching experience and the post is a teaching post e service in that category means service in that category which was constituted under the 1966 amendment Rules and f rule 83 does not permit inter se transfers in posts which are in the same category
Dismissing the appeal the Court  HELD  1
Unlike other professions medical profession has developed branchwise expert specialised knowledge referable generally to number of parts in which human anatomy is divisible
General medicine and general surgery are two broad genus but under each one of them there are numerous specialities and there is intensive study and research in speciality for being qualified for the speciality
Being an expert in any one speciality simultaneously results in being 46 excluded from other specialities even though the specialities may be species of a genus like general medicine or general surgery
Again in each speciality there will be a post of a Lecturer an Assistant Professor an Associate Professor and a Professor with a vertical movement by way of promotion
In a nonteaching hospital there will be posts like Junior Surgeon Senior Surgeon Head of the Department and so on
In a profession so compartmentalised speciality wise ex hypothesi it is difficult to provide for promotional avenue by way of a general seniority list integrating different specialities categorywise cadrewise or gradewise
If such a general seniority list including persons belonging to different specialities albeit in the same grade is drawn up for purposes of promotion it might lead to a startling result because the need may be of a promotional post in a speciality and the man at top of the seniority list may not belong to that speciality and the man at top of the seniority list may not belong to that speciality but may belong to a different speciality and if any promotion was to be given to him to a post in a speciality for which he is neither qualified nor eligible it would be impossible to give vertical promotions by referring to such general seniority list
If the promotion is to a post generally called administrative post in a hospital a general seniority list including experts belonging to different specialities may be helpful but when promotions are to be given to posts in different specialities a general seniority list is not only unhelpful but may really impede the process of promotion
Again demands of different specialities for additional strength may differ from hospital to hospital from area to area and even from time to time
In order to meet such unforeseen eventualities the rules provide for an addition to the strength of supertime grade II by keeping 19 posts designated as unspecified Specialists  grade posts and 9 unspecified posts in a pool
Whenever a demand came for providing a higher post in supertime grade II in any particular speciality ordinarily where the strength of the service is prescribed a post will have to be created which any one familiar with bureaucratic jaggornot would immediately realise how time consuming it is
Anticipating such a situation and to meet with the demands of specialities within a reasonable time it was provided that there would be a pool of 19 unspecified specialists  posts in supertime grade II and 9 unspecified posts also in supertime grade II
This would facilitate conversion from the pool of unspecified Specialists  posts of an unspecified Specialists  post to a specified specialist post in a speciality where a need has been felt
Once the need is felt and a post is converted from an unspecified post to a specified post in supertime grade II it becomes an addition to the strength of that speciality and the post can be filled in in accordance with the relevant rule
But it is implicit in this arrangement that the person to be appointed to such a post would be one who is eligible to be appointed to that speciality and not some one who is on top of the general seniority list in Specialists  grade or general duty officers  grade from which promotion is to be made
If promotion has to be made from a general seniority list which includes all Specialists in the Specialists  grade the one at the top may be Cardiologist and the post may be converted into Anesthesiology
Certainly a Cardiologist cannot be appointed as an Anaesthetic
Therefore when a post from amongst unspecified Specialists  posts is converted to a specified post which means specified in the speciality in which a need has been felt from amongst those in the Specialists  grade belonging to that speciality and in order of their inter se seniority a promotion could be given
54 FH 55A H 56A B Union of India and Ors
vs D B Kohli and Anr  followed
Merely because all 28 posts were deducted from the strength of posts in Specialists  grade it could not be said that all 28 posts would be available for promotion to those belonging to Specialists  grade only
The language employed in rule 5 also points in this direction
All the 28 posts need not necessarily be filled in by promotion from amongst those who belong to Specialists grade only
Hence with the division of 28 posts in two different designations and dividing the 28 posts in two different nomenclatures
28 posts are made up of 19 posts designated as unspecified Specialists posts and 9 unspecified posts
Undoubtedly 19 posts which were designated as unspecified Specialists  post must be filled in from amongst those belonging to the Specialists  grade but that itself also shows that the remaining 9 unspecified posts can be filled in from amongst those who may be promoted from General Duty Officers grade I because General Duty Officers grade I are also promotable to supertime grade II
The nomenclature unspecified Specialists  post and unspecified post provides an effective answer and indicates that while in the case of the former promotion must be given from Specialists in respect of the latter General Duty officers Grade I would equally be eligible for promotion
56 D H 3
To interpret that 19 unspecified Specialists  posts could only by filled in by promotion would run counter to the express provision contained in Rule 83 which is statutory
Rule 8 of the Central Health Service Rules provides for future maintenance of the service
Rule 83 provides for 50 of the vacancies in supertime grade II to be filled in by promotion of General Duty Officers Grade I and Specialists  grade officers in the ratio of 2  3 and the remaining 50 of the vacancies to be filled in by direct recruitment in the manner specified in the second schedule
Now once an unspecified Specialists  grade post in supertime grade II is converted and made a specified post in a speciality it is an addition to the strength of the speciality and the filling in of such post shall be governed by rule 83
Undoubtedly if it is to be filled in by promotion that would only be from amongst those belonging to Specialists  grade officers as the converted post was unspecified Specialists  post
But to say that it can be filled in only by promotion is to ignore the mandate of statutory rule 83 which provides for filling in posts in supertime grade II by either promotion or nomination in the ratio therein prescribed
Once there is a post in supertime grade II which is to be filled in subsequent to the initial constitution of the service rule 83 will be attracted in all its rigour
57 B E Further Rule 83 provides for filling in posts in supertime grade II by promotion as well as by direct recruitment in the ratio of 1  1
On a true interpretation of the 1966 Rules in general and rule 83 in particular it could not be gainsaid that whenever an unspecified Specialists  post is converted into a specified post and assigned to a speciality it can be filled in either by promotion or by direct recruitment as the situation warrants according to the rule and as determined by the quota rule
57 E G No argument can be founded or any relief can be claimed merely on a stand taken by the Union of India in their counter affidavit in an earlier writ petition unless estoppel is claimed or urged
Even if such be the stand of the Central Government it will have to be negatived and was in fact negatived in the case of Dr B section Jain
58C D Union of India vs Bhim Singh 1971 2 SLR p 111  124 P C Sethi and Ors
vs Union of India and Ors
 at 210 J K Steel Ltd vs 48 Union of India   498 Commissioner of Income Tax vs K Srinivasan and K Gopalan 1953 SCR 486 applied
When a post is created it is an addition to the strength of that particular category and the additional strength has to be filled in the manner prescribed in the rule and that no sanctity attaches to the place where the post is created but the sanctity attaches to the number of posts and the manner of filling them
59 B C Transfers in posts which are in the same grade or are considered equivalent can be effected on administrative exigencies
Once a new post is created and it is an increase in the strength of the cadre in which the post is created every one in that cadre is eligible to fill in that post and transfer is permissible
There is no violation of Rule 83 and transfer of Dr B section Jain was valid
59 E F E P Royappa vs State of Tamil Nadu and Anr  at 363
If an employee eligible for promotion is offered a higher post by way of promotion his refusal to accept the same would enable the employer the Central Government in this case to fill in the post by offering it to a junior to the Government servant refusing to accept the post and in so acting there will be no violation of Art 16
Further the Government servant who refuses to accept the promotional post offered to him for his own reason cannot then be heard to complain that he must be given promotional post from the date on which the avenue for promotion opened to him
60 B C Undoubtedly it may be that under the Medical Council Regulations stricto sensu the appellant may not be qualified for the post of Associate Professor because he did not possess the requisite teaching experience
But an ad hoc arrangement could have been made and it was open to the Central Government if the appellant had accepted the post to move the Medical Council of India to permit the Central Government to appoint the appellant at Simla
Some way could have been found but the door was bolted by the appellant himself deciding the offer for reasons other than his qualification which he may have found compelling
The offer made to him by the Government was not eye wash or make believe
His refusal to accept the offer of promotion would postpone his promotion
Further since his refusal to accept the promotion at Simla and till July 1978 the appellant was never superseded by any one junior to him in his speciality it is difficult to entertain the contention that in refusing promotion to him when some posts were converted from unspecified Specialists  posts into different specialities and were filled in by those who were qualified to be promoted in the respective speciality in which the post was created he could be said to have been superseded in violation of article 16
62 D H 6
Remote chances of promotion could hardly be said to be condition of service which if impaired would be violative of article 16
Even assuming that a remote chance of promotion in adversely affected would give a cause of action in view of appellants  impending retirement on superannuation the argument would be of no avail to him
63 F G 7
The word category  used in Rule 83 has to be understood to mean the post included in that category and consequently service in that category would mean service in a post included in that category
66 B C 49 It is a well recognised canon of construction that the construction which makes the Rule otiose or unworkable should be avoided where two constructions are possible and the Court should lean in favour of the construction which would make the rule workable and further the purpose for which the rule is intended
While prescribing experience qualification in 1966 Amendment Rules the framers of the Rules could not have intended to ignore wholly the past service
A Specialist who was in category C  was included in category II with the designation Specialists  grade officer
Similarly General Duty Officer grade I in category D  acquired the same nomenclature General Duty Officer grade I in category III
There was an upward revision of pay scales of both the categories
The change in designation should not be understood to mean that the service rendered as specialist or as General Duty Officer is wholly wiped out for any future promotion
Even after change of designation the duties never underwent any change
Same duty was performed a day prior to September 9 1966 and the day thereafter by both the categories in the respective posts
Further this change was with a purpose in as much as when certain qualifying service is prescribed for being eligible for promotion in a category the emphasis is on service rendered in a post irrespective of the grade
A Specialists  grade officer belonging to category II was a Specialists  grade officer in category C He was even then eligible for promotion to supertime grade II
It was never intended that a Specialists grade officer belonging to category C  under 1963 Rules who had put in more than 8 years of service but who was not promoted prior to September 9 1966 the date of initial constitution of service or on the date of initial constitution of service would be ineligible for promotion for a period of 8 years simply because the designation of the category changed
It was never intended that there should be a complete hiatus for a period of 8 years in promoting Specialists  grade officers to supertime grade II and for a period of 10 years in case of General Duty Officers grade I
There is no warrant for such an inference from the Rules
65 A H 66 A C 8
The contention that executive instruction cannot run counter to the statutory rule is untenable in the facts of this case
Service rendered in equivalent post prior to the date of initial constitution of service could be taken into account in calculating qualifying service for next promotion
66 E F 9
The need for the post or the requirements of the hospital or the need for an ad hoc or additional appointment is a matter which the Government is competent to decide and in the absence of requisite material the Court cannot interpose its own decision on the necessity of creation or abolition of posts
Whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity
The Government is a better judge of the interests of the general public for whose service the hospitable are set up
And whether a hospital catering to the needs of general public providing medical relief in different specialities has need for a particular post in a particular speciality would be better judged by the Government running the hospital
If Government is a better judge it must have the power to create or abolish the posts depending upon the needs of the hospital and the requirements of general public
67 C E Creation and abolition of posts is a matter of Government policy and every sovereign Government has this power in the interest and necessity of internal administration
The creation or abolition of post is dictated by police decision 50 exigencies of circumstances and administrative necessity
The creation the continuance and the abolition of post are all decided by the Government in the interest of administration and general public
The Court would be the last competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fide legal or factual
In this background it is difficult to entertain the contention of the appellant that posts were created to accommodate some specific individuals ignoring the requirements of the hospital or the interests of the general public at large
67 F H M Ramanatha Pillai vs State of Kerala and Anr at 520 followed
No adverse inference could be drawn against a party unless they appear before the Court and they are served with necessary papers
68 C D In the present case Respondents 9 and 23 had not appeared in the High Court and there is no evidence that the subsequent affidavit of the appellant was served on them
It may be that the Government may not be interested in either denying or admitting this averment which directly and adversely affects respondents 9 and 23
However in view of the fact that they were selected by the Departmental Promotion Committee and the promotion was approved by the UPSC it is difficult to entertain the contention at the hand of the appellant who is not in any way going to be benefited by the invalidation of their promotion
68 B D E 11
Once the challenge on merits fails in a case the second string to the bow need not be examined
The appellant here is least competent to challenge the promotions of Respondents 4 to 24
69 B C Chitra Ghosh and Anr
vs Union of India and Ors
  420