Case: S. Ramaswamy Vs. Union Of India &amp; Ors

On February 7, 1959 the appellant, S. Ramaswamy, was appointed as an Assistant Development Officer in the Directorate General of Technical Development i n the Ministry of Industry and Civil Supplies, Government of India. In 1964 he was appointed as a Development Officer on an ad hoc basis and that appointment was regularized in May, 1966. On December 1, 1966 the post of Officer on Special Duty was created in the Directorate in order to deal effectively with the development of agro-based food processing industries. The Director General (Technical Development) recommended the appellant for appointment to the post and in course of time the appointment was duly made. In 1974 a question arose regarding promotion to the selection post of Industrial Adviser in the Directorate. Respondents 6 to 11 and some others who were working as Development Officers filed writ petition No. 612 of 1974 in the Delhi High Court asking that the Government of India be restrained from promoting the appellant to the post of Industrial Adviser and that their claims to the post be considered in preference to the appellants claim. That petition was dismissed on September 17,the pendency of the writ petition filed by respondents 6 to 11, the appellant had made a representation to the Departmental Promotion Committee for considering his preferential claim to the post of Industrial Adviser. That Committee met on August 7, 1975 for proposing a panel of officers for being considered for appointment to the post of Industrial Adviser, but the appellants representation was not placed before the Committee. The appellant made a further representation to the Government on August 18, 1975 complaining that though he was eligible for being appointed to the post of Industrial Adviser, his name was not included in the list of eligible officers which was forwarded to the Departmental Promotion Committee for due consideration for appointment to the post.The Committee, in its meeting of August 7, 1975 decided to recommend respondents 6 and 7 for appointment as Industrial Advisers. On October 31, 1975 the appellant filed writ petition No. 1077 of 1975 in the Delhi High Court to restrain the Government from implementing the recommendation and to restrain respondents 6 and 7 from taking charge of the posts of Industrial Advisers. That petition was dismissed in limine by a Division Bench of the High Court on October 31, 1975. This appeal by special leave is directed against the speaking order which was passed by the High Court while dismissing the writ petition summarily.

Reasoning:
Considering the wording of the 1974 Rules and the context in which the words "in the grade" occur, we are inclined to the view that the stand taken by the Government in the Writ Petition filed by respondents 6 to 11 was more in consonance with the recruitment rules. The crux of the Governments answer to that writ petition was that the appellant "was eligible for consideration for promotion as Industrial Adviser (Chemicals) in terms of the Statutory Rules" and their stand, broadly, was that the claims of all persons eligible for the post of Industrial Adviser and "within the field of consideration" would b e duly considered. The appellant then was obviously considered to be both eligible and within the field of consideration. The recruitment rules of 1974 have undergone no change since then and whereas only one vacancy was to be filled then, there are two to be filled now. It is therefore difficult to appreciate the change in the attitude of the Government and the diametrically opposite stand it is taking now that the appellants name is beyond the field of choice. It has to be remembered that the writ petition filed by respondents 6 to 11 and other Development Officers asking, inter alia, that the appellants name ought not to be considered for the post of Industrial Adviser was dismissed on the opposition of the Government. The Government now wants to do exactly what the Development Officers asked it to do by writ petition and which writ petition the Government succeeded in having dismissed on the strength of its contention, amongst others, that the appellant was eligible for the higher post and on the strength of the right it asserted to consider the appellant for promotion. In fact, the Government even opposed the stay application in the earlier writ petition indicating the impending possibility of the appellants appointment as Industrial Adviser.No rule or notification is cited before us to support the "practice" adopted by the Departmental Promotion Committee whereby though the Officer on Special Duty and the Development Officers belong to different grades, a common l ist of officers was prepared according to the dates on which the appellant, who is the sole incumbent of the post of Officer on Special Duty, and Development officers completed 5 and 10 years of service respectively. By this process, the appellant who belongs to a separate and distinct grade or cadre was placed 19th in the integrated list, much below the field of choice which though, was rightly limited to 6do not suggest that the method or practice, by which an in tegrated list of officers is prepared according to the dates an which they acquire eligibility in order to find out which of those who are eligible fall within the field of choice, is necessarily or in all circumstances bad. That practice, not having the authority of law, is vitiated in the instant case because of the 1974 recruitment rules which envisage that an officer on Special Duty is in a separate grade, cadre or class. It is for that reason wrong to put him in an integrated list. The practice adopted by the Departmental Promotion Committee overlooks that the rule-making authority, being conscious while framing the Rules of 1974 that there was only one Officer on Special Duty for the time being to be considered for appointment as Industrial Adviser, considered him to be in a separate grade and gave him a separate treatment by dealing with him in a separate clause, namely clause (i) which uses the singular. In fact the history of the recruitment rules itself shows that it was thought necessary to bring an Officer on Special Duty of certain experience within the area of eligibility. The rules of 1963 restricted eligibility to Development Officers and it was for the first time in 1974 that an Officer on Special Duty was brought within that area. The circumstance that the Officer on Special Duty is placed in clause (i) and the Development Officers in clause (ii) is not the point of matter and can confer no special privilege on the former. Such a sequence may well be fortuitous. But what is important is that if the Rules intended that the two grades of officers should be clubbed together and that an Officer on Special Duty should be considered to be in the same grade as Development Officers, the easiest thing to do would have been to say, for example, that Development Officers of ten years experience would be eligible for promotion as Industrial Adviser, provided t hat in the case of a Development Officer who is working as an Officer on Special Duty, five years experience in the latter post would be enough. The integrated list, in the light of these facts and because of the peculiar wording of the 1974 Rules, must therefore go.This might apparently create an impasse but the solution is simple. The field of choice fixed at six may be retained but amongst those six shall be the appellant, the other five being Development Officers according to the dates on which they acquired eligibility. Alternatively, the field of choice may, for instance, be expanded to eight, being four times the number of vacancies, in which case the appellant and seven Development Officers can be considered for promotion. This latter course may obviate possible hardship which would result if one Development Officer is required to be dropped from the list by restricting the field of choice to six. In either event, suitability for promotion is entirely for the concerned authority to decide and the fact that the appellant must be included in the list of eligible officers who fail within the field of choice does not mean that he must be promoted to one of the posts of Industrial Advisers. Mere inclusion in such a list confers no right on any one to be promoted to the hig her post. It only gives an opportunity to be considered for promotion.