Case: Dr. N.C. Singhal Vs. Union of India and Ors


Decision:
0[ds]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 th e strength ofsupertime grade IIby 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 insupertime grade IIin 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 insupertime grade IIand 9 unspecified posts also inhis 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 insupertime grade IIit 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 appoint ed 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 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. v. S. 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 adegree 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 Articleis 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 tw o 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 gradeI because General Duty Officersa re also promotable to supertimee 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 Officerswould 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 gradeone unspecified Specialists grade post was converted and was designated as specified post in supertime grad e II in Ophthalmology speciality at Willingdon Hospital in February8 provides for future maintenance of the Service. Rule 8(3) provides for 50% of the vacancies insupertime grade IIto 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 insupertime grade IIis 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 8(3) which provides for filling in posts insupertime grade IIby either promotion or nomination in the ratio therein prescribed. Once there is a post insupertime grade IIwhich 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 insupertime grade IIby 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 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 Specialists post is converted as a specified post and as signed 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 petition filed by Dr. B. S. Jain in Delhi High Court. In theon behalf of the Central Government a stand was taken that the 19 unspecified Specialists posts were meant only for promoting category C clinical Specialists toIt 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 isif 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. S. Jain was already holding the post insupertime grade IIat Simla when a post insupertime grade IIin 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. S. Jain was transferred to the post created at Willingdon Hospital and the post vacated by him which was insupertime grade IIwas 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 8(3). Equally it is also not correct to contend that Dr. B. S. 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. S. Jain is, therefore, beyondis 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 insupertime grade IIby transfer of Dr. B. S. Jain, a person already promoted tosupertime grade IIwas invalid in as much as the post was not filled in by promotion or direct recruitment but byan 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 reasons cannot then be heard to complain that he must be given promotional post from the date on which the avenue for promotion opened toS.B. Kohlis case (Supra) this Court did observe that a discretion to relax teaching experience qualification is conferred only on the U.P.S.C. 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 a dverse 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 ofstudents and, therefore, he requested the Government "the post of ChiefProfessor 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 ChiefProfessor. 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 thelevel he considered himself to be fully qualified for the same and requested the Government to bestow that p ost 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 t eaching work at thep.m. and which offer w as 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 doubtis thus no room for doubtthat 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 no t 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 aand, therefore, his refusal to accept the offer of promotion would not postpone hisif 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 Art. 16. And in this view of the matter nothing more need be examined but as certain other contentions were advanced 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 overanswer was that there is a common seniority list of persons belonging tosupertime grade IIand 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 Art. 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 insupertime grade IIwho were promoted between 1966 and 1971  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 tosupertime grade IIattend 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 and except saying that the approach appears to be more emotional rather than realistic. However, the contention may be examined on merit.romotion of respondents 4 to 24 was questioned on the ground that each of them was ineligible for promotion tosupertime grade IIon the date on which each of them was promote d in view of the provision contained in rule 8(3). Rule 8(3) has been extracted hereinthis contention were to prevail, apart from anything else, appellant himself would not have been qualified for promotion tosupertime grade IIin February 1971 from which date he claims as being eligible for promotion tosupertime grade IIbecause 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 theis 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 toWas 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 promote d 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 tosupertime grade IIand 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 pastthis 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, i.e. 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 nextwas the stand taken by the Government in the affidavit filed in Civil Writ No. 1155/71 filed by Dr. Chandra Mohan in the High Court of Delhi and that appears to be consistent with the construction of rule 8(3). The contention, therefore, that executive instruction cannot run counter to the statutory rule must be rejected as untenable in the facts of thisshould 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 v. 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 atthough 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 Promot ion Committee and the promotion was approved by U.P.S.C. 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 U.P.S.C. 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 theirstated 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 qualified to question their promotions. Each one of them was promoted to a post insupertime grade IIin 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.P.C. 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. P.C. Sen was promoted. The High Court in L.P.A. 46/74 filed by the appellant has set aside the promotion of Dr. P.C. 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 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. Se n nor the Government have preferred appeal against the judgment by which the promotions of Dr. P.C. 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. P.C. 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, N.M.E.P., 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 inhis offer did not appeal to the appellant and the matter was left at that.