Case: Dr. S.P. Kapoor Etc Vs. State of Himachal Pradesh and Others Etc


Decision:
1[ds]Mr. Pande, the then Joint Secretary, Home Affairs, Government of India had stated in his D.O. Letter No. 22/5/67-67-SR (S) dated 14-2-1967 addressed to the Chief Secretary, Himachal Pradesh Government (Union Territory), that the Central Government has already informed the Chief Secretary by letter dated 17.11.1966 that the allocation of the Government servants among the States of Punjab, Haryana and Himachal Pradesh and Chandigarh, which had already been made provisionally under S. 82 (b) of the Punjab Reorganisation Act, are to be finalized by the end of February, 1967.He had requested the Chief Secretary for action for integration of the service being initiated soon after the finalisation of the allocation and had stated that it involves two steps, namely (I) determination of the equivalent posts and (2) determination of the relative seniority of persons holding equivalent posts but drawn from different integrating units. It is also stated in that letter that while determining the relative seniority as mentioned above, it may also be borne in mind that inter-se seniority of officers drawn from the same integrated unit should, as far as possible, b e maintained. He had further stated in that letter that as the Chief Secretary is aware that Section 82 (4) of the Punjab Reorganisation Act casts responsibility on the Central Government for ensuring fair and equitable treatment to all the officer s affected by the provisions of thatare of the opinion that the ratio of these two decisions relied upon by Mr. Mehta would apply to the facts of the present case. Section 45 ofthe State of Himachal Pradesh Act, 1970 lays down that "the Central Government may give such directions to the Government of the State of Himachal Pradesh as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and also the provisions of Part 9 of the Punjab Reorganisation Act. 1966 and the State Government shall comply with such directions agree with Mr. Mehta that the aforesaid letter dated 9.7.1971 from the Ministry of Health, Family Planning, Department of Health, Government of India, addressed to the Government of Himachal Pradesh, was written under the provisions of Section 45 of the State of Himachal Pradesh Act 1970. Mr. Tarkunde submitted that even if that letter dated 9. 7. 1971 had been written under the provisions of Section 45 ofthe State of Himachal Pradesh Act, 1970, equivalent posts must be determined and that nobody has fixed the equivalent posts and it is for the Government of India to decide. We are of the opinion that this submission is not well-founded as the equivalent grades have already been fixed by placing Dr. S. P. Kapoor and Dr. R. M. Bali in the category of Specialists and Dr. Jiwan Lal in the category of Himachal Pradesh Health Service Grade I officer, as mentioned above by the Himachal Pradesh Governments Notification No. 1-15/75-H&P dated 9. 6. 1975 referred to above. The Central Government was under an obligation to see that in fairness and equity the seniority of officers drafted into the newly formed State from the integrating States is properly fixed and that obligation has been discharged by the Central Government: (1 ) by Mr. Pandes D. O. letter dated 14.2.1967, (2) the stand taken by Mr. 1. V. Menon Deputy Legal Adviser, Central Government in the meeting of officers held on 24.1.1972 and (3) the letter dated 9.7.1971 written by the Ministry of Health and Family Planning Welfare, Government of India to the Secretary to the Government of Himachal Pradesh. In these circumstances we are of the opinion that the learned Judges of the High Court have erred in holding that the inter se seniority has to b e determined only on the basis of the date of induction into the Central Service and not with reference to Rule 10 (a) (iii) of the Rules which had, however, been noticed by the learned Judges without a correct appreciation of its impact o n what the Government of Himachal Pradesh should do in the matter of fixing the relative seniority of the officers drawn from the integrating States. We are of the opinion that inter se seniority has to be determined only in accordance with Rule 10 (n) (iii) of the Rules and that Dr. S. P. Kapoor would be senior to Dr. R. M. Bali, who in turn would rank senior to Dr. Jiwanannual confidential reports relating to Dr. S. P. Kapoor, t Dr Jiwan Lal and others had to be looked into by the Departmental Promotion Committee on 3.11.1979. The contention of Dr. Jiwan Lal was that the annual confidential reports of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were initiated by an officer not only junior to them but also an aspirant for promotion to a higher post alongwith them, and, therefore, these confidential reports should not have been taken into consideration for further promotion. The contention of the Himachal Pradesh Government was that the - confidential reports made by Dr. J. C. Sharma were not taken into account and that Dr. Grovers reports were revised, sometimes with additional remarks for or against the individuals by higher authorities and they were not the only reports which were taken in to consideration by the Departmental Promotion Committee. It is clear from this contention of the Himachal Pradesh Government that Dr. Grovers reports were taken into consideration by the Departmental Promotion Committee. though it is stated that they had been earlier revised by higher authorities. Dr. Grover was in the field competing with Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. (Mrs.) Damyanti Kapur at the relevant time for promotion to the higher post Therefore, it would not have been fair for the Depart mental Promotion Committee to take into account the annual confidential reports made by Dr. Grover though they might have been revised by the higherJiwan Lal has stated in his Special Leave Petition that under the Rules the Departmental Promotion Committee of Himachal Pradesh in respect of the Health Services consisted of the Chief Secretary, Financial Commissioner and Secretary, Health and Family Welfare, of the Himachal Pradesh Government. There is no dispute about this fact. But the Departmental Promotion Committee which met on 3.11.1979 to consider the question of appointment of Deputy Directors and Director of Health Services, consisted of the Chief Secretary, Financial Commissioner and Principal Secretary to the Chief Minister of Himachal Pradesh, who was appointed additionally as Secretary of Health and Family Welfare in the absence on leave of the regular Secretary, Health and Family Welfare fro m 3rd to 8th November, 1979. It is seen from the counter-affidavit of the Himachal Pradesh Government that the Director of Health Services and Deputy Director of Health Wealth were holding the posts on ad hoc basis from the year 1973. The final seniority list was prepared only on 2.11.1979 and the Depart mental Promotion Committee was constituted on 3.11.1979. The Joint Secretary, Personnel Department, Himachal Pradesh Government had written the letter No. Per (A-l) B-79 dated 3.11.1979 requesting Mr. R. C. Gupta, Secretary (Health) Himachal Pradesh Government to attend the Departmental Promotion Committee Meeting to be held at 3.00 P. M. On that day for considering the names of officers for the posts of Dire ctor, Health Services. It is seen from what has been stated above and it is also admitted by the Himachal Pradesh Government that the selection of the Deputy Directors and the Director of Health Services from amongst the Deputy Directors had been made by the Departmental Promotion Committee on 3.11.1979 itself and that even the orders of appointment had been issued on the same day with the approval of the Governor of Himachal Pradesh. Though before the High Court it does not appear that Dr. Jiwan Lal had alleged any malafides to anybody he has alleged in Special Leave Petition that the constitution of the Departmental Promotion Committee and the process of selection and appointment were obviously malafides and that t hey were appointed on the date on which Mr. Yadav, the regular Secretary, Health and Family Welfare Department, was on leave and that this haste suggests that he would not have agreed to carry out the political wish of the then Chief Minister in making the appointments in the post haste manner. Though it is not possible to accept the belated contention that there was any malafides on the part of the then Chief Minister in the matter of constitution of the Departmental Pro motion Committee with his Principal Secretary as one of its members in the place of the regular Secretary, Health and Family Welfare, we are of the opinion that there is room for suspecting the reason why the whole thing was completed in haste on 3.11.1979 after the preparation of the final seniority list on 2.11.1979, in the light of the admitted position that the Deputy Directors and Director of Health Services, Himachal Pradesh were holding ad hoc appointments from 1973. The matter was not such as could not have been put off by a few days. Such rush is not usual in any State Government. The post-haste manner in which these things have been done on 3.11.1979 suggests that some higher-up was interested in pushing through the matter hastly when the regular Secretary, Health and Family Welfare was on leave. Therefore, we are of the opinion that the matter requires to be consideredregard to the question of rotation, Rule 9(4) of Rules lays down: (I) super-time Grade II (General) posts shall be filled by promotion of (i) HPHS-Grade I officers with not less than seven years of service in the category or (ii) Specialists Grade officers with not less than five years service in that category. The selection will have to be on the recommendation of a Departmental Promotion 1) Committee on the basis of merit-cum-seniority of the officers concerned at (i) and (ii) above on 50: 50 basis keeping in view the nature of the duties of the post. Suppertime Grade I (General) posts shall be filled by promotion on the recommendations of the Departmental Promotion Committee on the basis of merit with due regard to seniority of officers holding the posts of Deputy Directors with not oe less than five years service in that category. The contention of Dr. Jiwan Lal was that the Departmental Promotion Committee should not have started the rotation to post of Director of Health Services with a Specialist. On the other h and, the contention of the Himachal Pradesh Government before the High Court was that Rule 9 was silent on the question as to the category with which the roster should be started and, therefore, the State Government decided to supplement t he Rule by starting the roster with the category of Specialists having regard to the fact that the senior-most Specialist officer available on the date of the Departmental Promotion Committee meeting on 3.11.1979 had put in greater length of qualifying service than the senior-most HPHS (Grade I) officer. Rule 21 of the Rules provides that if any difficulty is felt in giving effect to provisions of these Rules the Government may in consultation with the Public Service Commission give such directions not inconsistent with the provisions of those Rules, as appear to be necessary or expedient for the removal of the difficulty. In view of the fact that Rule 9(4) does not provide the category with which the roster may be started.Whether with HPHS (Grade I) officer or Specialists, difficulty appears to have arisen in starting the roster. Therefore, the Government stopped in and supplemented the Rule by directing that the roster may be started with the category of Specialists keeping in view the length of qualifying service in each of the two grades, namely, Specialists and HPHS (Grade 1) officers. The learned Judges of the High Court have expressed the view that the Specialists had an advantage for their category starting the roster by the senior most of the Specialists having put in more number of years of qualifying service than the HPHS (Grade I) officers. We are of the opinion that the learned Judges were perfectly justified in taking this view and that the Government was right in getting the roster started with Specialists instead of HPHS (Grade I) officers.We think that this stand of the Central Government in regard to seniority of officers who came into the Central Health Service at the initial constitution of that Service vis a vis those who came into that service after initial constitution of that service is correct and the only stand that could be reasonably taken in the circumstance of the case. It would not be proper for anyone who came into that Service after it had been constituted, to ask for seniority over those who were in that Service on the date of its initial constitution on the basis of their earlier appointment before they came into the Central Health Service after its initial constitution.It would appear from Rule 10 (a) (ii) that so far as Himachal Pradesh HealthI officers are concerned, seniority will have to be reckoned from the date of regular appointment having been duly selected by the Union Public Service Commission and Himachal Pradesh Public Service Commission and or by regular Departmental Promotion Committee in the following grades, namely,I and GDO Grade I and that so far as Specialists are concerned, their seniority will count from the date of regular appointment having been duly selected by the Union Public Service Commission, Punjab Service Commission. Himachal Pradesh Public Service Commission and or by regular Departmental Promotion Committee in the following grades namely, (1) Specialist (CHS); B(2) PCMSI (with post graduate qualifications) and (3) Deputy Medical Superintendents/Resident Medical officers/Surgical Specialists, Ripon Hospital from the date on which the scale of PCMS (I) was given to them. It has been seen above that Dr. S.P. Kapoor has been appointed to the PCMS (Grade 1) pos t on 29.1.1905 and he was inducted into the Specialists, grade in the Central Health Service with effect from 1.11.1966 while Dr. R.M. Bali and Dr. Jiwan Lal, who were in the Central Health Service on the date of its constitution on 9.9.1966 ha d been taken in the Specialists grade and G.D.O. Grade I respectively under the Central Health Service with effect only from 9.9.1968. Therefore, under Rule 10 (a) (iii) of the Rules, Dr. S.P. Kapoor has to rank senior to Dr. R.M. Bali as well as Dr .are of the opinion that the ratio of this decision will not apply to the facts of the present case.25. On the other hand, Mr. Mehta invited our attention to two decisions of this Court in N. Subba Rao etc. v. Union of India and Ors(1), and C.P. Damodaran Nayar and P.S. Menon v. State of Kerala and Others(1). The decision in N. Subba Rao etc. v. Union of India and ors. related to the inter se seniority of officers of two regions of different States which came to form a single State on 1st November, 1956. On 1.11.1956 the State of Andhra Pradesh came into existence under the States Reorganisation Act 1956. That State was formed out of the former State of Andhra Pradesh and the Telangana area of the former Hyderabad State. The appellants in that case were Engineers in the employment of Andhra Pradesh. On the formation of Andhra Pradesh, the appellants under the States Reorganisation Act, 1956 continued to serve the State of Andhra Pradesh. The respondents who were Telangana officers in the employment of the Hyderabad State continued to serve the State of Andhra Pradesh. The Central Government directed the State Government in September, 1956 to draw up provisional common Gradation List keeping in view the general principles agreed to at the Conference of the Chief Secretaries held in April and May, 1966. The State Government prepared a provisional common gradation list of Gazetted officers in November 1961. The Telangana Engineers challenged the common Gradation List by filing Writ Petition in the Andhra Pradesh High Court. This Court observed in the Judgmentthe States Reorganisation Act power is conferred on the Central Government to bring out the integration of the Service in the State of Andhra Pradesh by ensuring fair and equitable treatment to all persons affected by the provisions of Section 115 of the Act. The Government of Andhra Pradesh has a duty to bring all relevant facts to the notice of the Central Government.Under the States Reorgnisation Act, the Central Government is entrusted with the power of the division and integration of the Service and the ensuring of fair and equitable treatment to all persons affected by the provisions of Section 115 of the Act in regard to allotment of officers from an existing State to a successor State.In the case of C.P. Damodaran Nayar and P.S. Menon v. State of Kerala and others (supra) the State of Kerala came into being on 1.11.1956 and the appellant had been selected by the Madras Public Service Commission as a District Munsif and was posted as such on 26.5.1951 and he was in continuous service since then. The service of appellant was regularised as from 6.10.1961. The appellant was allotted to Kerala State with effect from 24.10.1956. On 26. 3.1966 the Kerala State published the final integrated list of the Travancore, Cochin and Madras Judicial officers in the integrated State of Kerala as on 1.11.1956, showing respondents 6 and 7, whose dates of commencement of continuous service were 20.7.1951 and 1.10.1951 respectively as senior to the appellant on the basis that he commenced his continuous service on 6.10.1951. The appellant questioned the final seniority list contending that the date of commencement of his continuous service is 26.5.1951. This Court observedSection 117 of the Act (States Reorganization Act 1956) the Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions.In accordance with the provisions of that Act, a meeting of the Chief Secretaries of the various States that were to be affected by the Reorganization was held at the invitation of the Central Government. In that meeting it was agreed that in determining the relative seniority as between two persons holding posts declared equivalent to each other and drawn from different States, inter alia the length of continuous service, whether temporary or permanent, excluding periods in which an appointment is held in a purelyor fortuitous arrangement, should be taken into account. This Court held that the appellant in that case should be given the benefit of his seniority reckoning his continuous appointment and assigning the date 26.5.1951 and substituting the same in the final list for 6.10.1951, andis common ground that the appellant has been appointed in a regular manner through the Public Service Commission and his appointment cannot by a ny stretch of imagination be made to fill a "pureor fortuitous" vacuum. As noted earlier, the Government of India has accepted the position that an allotted employee should not suffer any disadvantage if he would not have been subjected to a like handicap in his parent State.It is clear from the position taken by the Madras Government that the appellant would have got the benefit of his continuous appointment in Madras with effect from May 26, 1951. That being the position, the submissions of the learned counsel for the respondents are of no avail".We are of the opinion that theratio of these two decisions relied upon by Mr. Mehta would apply to the facts of the present case. Section 45 ofe with Mr. Mehta that the aforesaid letter dated 9.7.1971 from the Ministry of Health, Family Planning, Department of Health, Government of India, addressed to the Government of Himachal Pradesh, was written under the provisions of Section 45 of the State of Himachal Pradesh Act 1970. Mr. Tarkunde submitted that even if that letter dated 9. 7. 1971 had been written under the provisions of Section 45 ofthe State of Himachal Pradesh Act, 1970, equivalent posts must be determined and that nobody has fixed the equivalent posts and it is for the Government of India to decide. We are of the opinion that this submission is notas the equivalent grades have already been fixed by placing Dr. S. P. Kapoor and Dr. R. M. Bali in the category of Specialists and Dr. Jiwan Lal in the category of Himachal Pradesh Health Service Grade I officer, as mentioned above by the Himachal Pradesh Governments Notification No.The annual confidential reportsrelating to Dr. S. P. Kapoor, t Dr Jiwan Lal and others had to be looked into by the Departmental Promotion Committee on 3.11.1979. The contention of Dr. Jiwan Lal was that the annual confidential reports of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were initiated by an officer not only junior to them but also an aspirant for promotion to a higher post alongwith them, and, therefore, these confidential reports should not have been taken into consideration for further promotion. The contention of the Himachal Pradesh Government was that theconfidential reports made by Dr. J. C. Sharma were not taken into account and that Dr. Grovers reports were revised, sometimes with additional remarks for or against the individuals by higher authorities and they were not the only reports which were taken in to consideration by the Departmental Promotion Committee. It is clear from this contention of the Himachal Pradesh Government that Dr. Grovers reports were taken into consideration by the Departmental Promotion Committee. though it is stated that they had been earlier revised by higher authorities. Dr. Grover was in the field competing with Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. (Mrs.) Damyanti Kapur at the relevant time for promotion to the higher post Therefore, it would not have been fair for the Depart mental Promotion Committee to take into account the annual confidential reports made by Dr. Grover though they might have been revised by the higherDr. Jiwan Lalhas stated in his Special Leave Petition that under the Rules the Departmental Promotion Committee of Himachal Pradesh in respect of the Health Services consisted of the Chief Secretary, Financial Commissioner and Secretary, Health and Family Welfare, of the Himachal Pradesh Government. There is no dispute about this fact. But the Departmental Promotion Committee which met on 3.11.1979 to consider the question of appointment of Deputy Directors and Director of Health Services, consisted of the Chief Secretary, Financial Commissioner and Principal Secretary to the Chief Minister of Himachal Pradesh, who was appointed additionally as Secretary of Health and Family Welfare in the absence on leave of the regular Secretary, Health and Family Welfare fro m 3rd to 8th November, 1979. It is seen from theof the Himachal Pradesh Government that the Director of Health Services and Deputy Director of Health Wealth were holding the posts on ad hoc basis from the year 1973. The final seniority list was prepared only on 2.11.1979 and the Depart mental Promotion Committee was constituted on 3.11.1979. The Joint Secretary, Personnel Department, Himachal Pradesh Government had written the letter No. Per9 dated 3.11.1979 requesting Mr. R. C. Gupta, Secretary (Health) Himachal Pradesh Government to attend the Departmental Promotion Committee Meeting to be held at 3.00 P. M. On that day for considering the names of officers for the posts of Dire ctor, Health Services. It is seen from what has been stated above and it is also admitted by the Himachal Pradesh Government that the selection of the Deputy Directors and the Director of Health Services from amongst the Deputy Directors had been made by the Departmental Promotion Committee on 3.11.1979 itself and that even the orders of appointment had been issued on the same day with the approval of the Governor of Himachal Pradesh. Though before the High Court it does not appear thatDr. Jiwan Lalhad alleged any malafides to anybody he has alleged in Special Leave Petition that the constitution of the Departmental Promotion Committee and the process of selection and appointment were obviously malafides and that t hey were appointed on the date on which Mr. Yadav, the regular Secretary, Health and Family Welfare Department, was on leave and that this haste suggests that he would not have agreed to carry out the political wish of the then Chief Minister in making the appointments in the post haste manner. Though it is not possible to accept the belated contention that there was any malafides on the part of the then Chief Minister in the matter of constitution of the Departmental Pro motion Committee with his Principal Secretary as one of its members in the place of the regular Secretary, Health and Family Welfare, we are of the opinion that there is room for suspecting the reason why the whole thing was completed in haste on 3.11.1979 after the preparation of the final seniority list on 2.11.1979, in the light of the admitted position that the Deputy Directors and Director of Health Services, Himachal Pradesh were holding ad hoc appointments from 1973. The matter was not such as could not have been put off by a few days. Such rush is not usual in any State Government. Themanner in which these things have been done on 3.11.1979 suggests that somen regard tothe question of rotation, Rule 9(4) of Rules lays down: (I)Grade II (General) posts shall be filled by promotion of (i)I officers with not less than seven years of service in the category or (ii) Specialists Grade officers with not less than five years service in that category. The selection will have to be on the recommendation of a Departmental Promotion 1) Committee on the basis ofof the officers concerned at (i) and (ii) above on 50: 50 basis keeping in view the nature of the duties of the post. Suppertime Grade I (General) posts shall be filled by promotion on the recommendations of the Departmental Promotion Committee on the basis of merit with due regard to seniority of officers holding the posts of Deputy Directors with not oe less than five years service in that category. The contention ofDr. Jiwan Lalwas that the Departmental Promotion Committee should not have started the rotation to post of Director of Health Services with a Specialist. On the other h and, the contention of the Himachal Pradesh Government before the High Court was that Rule 9 was silent on the question as to the category with which the roster should be started and, therefore, the State Government decided to supplement t he Rule by starting the roster with the category of Specialists having regard to the fact that theSpecialist officer available on the date of the Departmental Promotion Committee meeting on 3.11.1979 had put in greater length of qualifying service than theHPHS (Grade I) officer. Rule 21 of the Rules provides that if any difficulty is felt in giving effect to provisions of these Rules the Government may in consultation with the Public Service Commission give such directions not inconsistent with the provisions of those Rules, as appear to be necessary or expedient for the removal of the difficulty. In view of the fact that Rule 9(4) does not provide the category with which the roster may be started.Whether with HPHS (Grade I) officer or Specialists, difficulty appears to have arisen in starting the roster. Therefore, the Government stopped in and supplemented the Rule by directing that the roster may be started with the category of Specialists keeping in view the length of qualifying service in each of the two grades, namely, Specialists and HPHS (Grade 1) officers. The learned Judges of the High Court have expressed the view that the Specialists had an advantage for their category starting the roster by the senior most of the Specialists having put in more number of years of qualifying service than the HPHS (Grade I) officers.We are of the opinion that thelearned Judges were perfectly justified in taking this view and that the Government was right in getting the roster started with Specialists instead of HPHS (Grade I) officers.