Supreme Court of India

Guman Singh vs State Of Rajasthan & Ors on 26 July, 1971

Bench:
S. M. Sikri
,
G. K. Mitter
,
C. A. Vaidialingam
,
P.Jaganmohan Reddy
,
I. D. Dua

PETITIONER:
GUMAN SINGH

Vs.

RESPONDENT:
STATE OF RAJASTHAN & ORS.

DATE OF JUDGMENT26/07/1971

BENCH:
[S. M. SIKRI, C. J., G. K. MITTER, C. A. VAIDIALINGAM, P.JAGANMOHAN REDDY AND I. D. DUA, JJ.]

ACT:
Rajasthan Administrative Service Rules, 1954, rr. 28B(2) and
32Validity of-Whether violative of Arts. 14 & 16 of
Constitution because of absence of guidelines in the matter
of selection of candidates by merit-Circular dated August
27, 1966 whether invalid on the ground that the marking
system laid down in it went against the Rules in regard to
selection by merit-Departmental Promotion Committee taking
adverse remarks in confidential report into account without
these having been communicated to the officer concerned-
Effect.

HEADNOTE:
The appellant G was a member of the Rajasthan Administrative
Service. Aggrieved by the order allotting seniority to him
under the Rajasthan Administrative Service Rules, 1954, he
filed a writ petition under
Art. 226
in the High Court. A
single Judge of the court allowed the petition. However in
appeal by the State the Division Bench decided against the
appellant who by special leave appealed to this Court. Two
other members of the Rajasthan Administrative Service,
similarly aggrieved filed writ petitions under
Art. 32

before this Court. The common questions that fell for
consideration in the appeal and writ petitions were; (i)
whether rr. 28B(2) and 32 of the Rajasthan Administrative
Service Rules were violative of Arts. 14 and 16 of the
Constitution because they did not contain any guidelines in
the matter of determining the merit of candidates; (ii)
whether the circular dated August 27, _ 1966 issued by the
State Government laying down a system of marking for the
purpose of determining the merit of candidates was invalid
because it was contrary to the relevant Rules in this
regard. The appellant G also complained that adverse
remarks in his confidential report which had not been
communicated to him had been taken into account against him
by the Departmental Promotion Committee.
HELD:(i) Rule 32 in essence adopts what is stated in r.
28B. The latter rule provides for two methods of selection
one based on merit and the other based on seniority-cum-
merit. In other words, the rule provides that the promotion
based on merit in contradiction to that based on seniority-
cum-merit shall strictly be on the basis of merit. The
Selection Committee and the Promotion Committee consist of
very responsible and senior officers of the State and being
persons of experience they can be trusted to evaluate the
merits of a particular officer. No doubt the word merit' is
not capable of easy definition, but it can be safely said
that merit is a sum total of various questions and
attributes of an employee such as his academic
qualifications, his distinction in the University, his
character, integrity, devotion to duty and the manner in
which he discharges his official duties. Allied to this may
be various other matters or factors such as his punctuality
in work, the quality and out-turn of work done by him and
the manner of his dealing with his superiors and subordinate
officers and the general public and his rank in the service.
The various particulars in the annual confidential reports
of an officer is
carefully and properly noted, Will also give a very broad
and general indication regarding the merit of an officer.
Therefore it cannot be stated that rr. 28B and 32 are in any
manner vague or do not give any guidelines forassessing
the merit of an officer. [921B-F]
(ii)(a) The restriction contained in the proviso to sub-r.
(2) of r. 28B is quitereasonable. Before an officer in
the junior scale can be considered as fit for promotion to
the senior scale it is necessary that he should have worked
on a post in the service at least for some period of time.
As to what the quantum of that period must be is not for
this Court to lay down. The Government has fixed this
period as six years. It cannot be said that it is an
improper restriction. [922A-B]
(b)The provisions contained in sub-r. (2) confining the
selection to senior-most officers not exceeding 10 times the
number of total, vacancies is also reasonable. Such a
provision will encourage the members of the service to
aspire for promotion for making themselves eligible by
increasing their efficiencies in the discharge of their
duties. [922B-C]
(iii)The object of the impugned circular may be to bring
about uniformity in the award of marks. But the directions
contained therein do offend the rules. This is not a case
of the Government filling up the gaps or of giving executive
instructions not provided for by or not inconsistent with
the rules. No discretion is given to the selection or
promotion committee to adopt any method other than that
indicated in the circular. According to the principle laid
down by this Court in Sant Ram Sharma's case, if the
circular dated August 27, 1966 or any part of it gives
instructions contrary to or opposed to any of the rules, the
circular or that part of the circular to that extent would
be invalid. By this test the circular in question was
invalid and must be struck down. [928F-929F]
Sant Ram Sharma v. State of Rajasthan & Anr., [1968] 1
S.C.R. 111, applied.
(iv)Appellant G had made a specific grievance in his writ
petition before the High Court about the uncommunicated
adverse remarks having been taken into account by the
Departmental Promotion Committee. The Division Bench of the
High Court was wrong in holding that since the Committee had
not been made a party to the proceedings this question could
not be gone into. The Government which was the appointing
authority was a party before the High Court. It was the
duty of the State Government to place before the High Court
all the materials available before it to enable the Court to
consider whether the grievance of the appellant was
justified or not. The appellant's case must therefore be
reconsidered in the light of the Rules. [932C-H]

JUDGMENT:

CIVIL APPELTATE JURISDICTION : Civil Appeal No. 1815 of
1970.

Appeal by special leave from the judgment and order dated
January 20, 1970 of the Rajasthan High Court in D. B.
Special Appeals Nos. 55 and 57 of 1968 and Writ Petitions
Nos. 76 and 139 of 1970.

Petitions under
Art. 32
of the Constitution of India for en-
forcement of fundamental rights.
R.K. Garg, S. C. Agarwala, D. P. Singh and R. K. Jain,
for the appellant (in C. A. No. 1815/1970) and the
petitioners (in both the petitions.).

Jagadish Swarup, Solicitor-General and K. Baldev, Mehta, for
respondent No. 1 (in C. A. No. 1815 of 1970).
S. M. Jain, for respondent No. 3 (in C. A. No. 1815 of
1970).

B. Sen and K. Baldev Mehta, for respondent No. 1 (in W. P.
No. 76 of 1970)
K. Baldev Mehta, for respondent Nos. 1, 32 and 33 (in W. P.
No. 139/1970.).

The Judgment of the Court was delivered by
Vaidiyalingam.J,-In both the writ petitions under
Art. 32

and the civil appeal, by special leave, common
questions that arise for consideration relate to the
validity of rr. 28B and 32 of the Rajasthan Administrative
Service Rules, 1954 (hereinafter to be referred as the
Rules) and the Circular No. F. 1. (6) Apptts. D/50 dated
August 27, 1966 issued by the Chief Secretary to the
Government of Rajasthan as well as the Order of the
Government of Rajasthan No. F. 2(24) Apptts. (A-IV)/66 dated
January 4, 1967. In the two writ petitions the Order No. F.
2(24) Apptts. (A-IV)/66 dated January 22, 1970 and in Writ
Petition No. 139 of 1970 a further Order of the State
Government No. F. 27(24)A (A-4)/66 dated February 21, 1970
are also challenged. The nature of the various Orders as
well as the Rules and the Circular that are challenged will
be referred to later at the appropriate stage.
Civil Appeal No. 1815 of 1970 arises out of the Division
Bench Judgment of the Rajasthan High Court dated January 20,
1970 in D. B. Special Appeal No. 57 of 1968. The facts
leading up to the Civil Appeal may be stated: The appellant
is an Arts Graduate having taken his degree in 1947. He
took his Law Degree in the year 1961 having been placed in
the First Division. He joined the service of the former
Jaipur State as Inspector, Customs and Excise, in 1948. On
the formation of the United State of Rajasthan, he was
appointed in the, service of the State of Rajasthan as
Inspector, Customs and Excise. In 1950 the Rajasthan
Administrative Service was constituted for the State of
Rajasthan and the Rules governing the 'conditions of service
of the members therein were framed in 1954 by the Rajpramukh
under the proviso to
Art. 309
of the Constitution. Under
the Rules the Adminisrative Service Cadre has three cadres
of pay, namely, Ordinary Time Scale, Senior Scale and
Selection Grade. The appointment to the service cadre was
by direct recruitment as well
as by promotion from other subordinate services in the State
of Rajasthan. The appointment to the Senior Scale and
Selection Grade was by promotion from amongst the members of
the service. According to the appellant ff. 27 and 32 of
the Rules, as they stood originally provided for promotion
to be made only on the basis of seniority-cum-merit and that
sub-rule(2) of r. 27 laid down various criteria to be taken
into account in the matter of selection of candidates for
promotion. It was his further case that r. 28, as it
originally stood, laid down the procedure for recruitment by
promotion to the service on the basis of seniority-cum-
merit. The appellant was appointed in the year 1957 as
member of the Rajasthan Administrative Service as a result
of the open competitive examination held by the State Public
Service Commission under the provisions of the Rajasthan
Administrative Service (Emergency) Rules, 1956. The
appellant claimed that his seniority was higher than that of
respondents 2 to 5 as is evident from the seniority list
published on July 1, 1964. At this stage it may be
mentioned that though under the Order dated January 4, 1967
of the State Government fifteen officers in the junior scale
were promoted and appointed on an officiating basis to the
senior scale of the service, the appellant has made only
four of them respondents 2 to 5 as parties in these
proceedings on the ground that though they were juniors to
him, promotion has been given to them superseding his
claims. The other officers so promoted, even according to
the appellant were senior to him in service. We may also
mention that respondent No. 5 is since dead, but for
convenience he will be referred to by the rank occupied by
him as respondent.

In 1965 the State decided to introduce the system of making
promotions to the service on the basis of merit alone in
addition to the existing system of making promotions on the
basis of seniority-cum-merit. With this end in view there
were various amendments made to the Rules by which certain
additions were made and certain other provisions deleted.
On December 14, 1965, r. 28B was incorporated providing for
appointment by promotion to posts in the service on the
basis of merit and on the basis of seniority-cum-merit in
the proportion of 50:50 and the number of eligible
candidates to be considered for promotion is to be 10 times
the total number of vacancies to be filled up on the basis
of merit as well as seniority-cum-merit. On the same date
when r. 28B was incorporated sub-rule (2) of r. 27 was
deleted. On January 7, 1966 sub-rules(2) to (6) of r. 28
were also deleted. On December 14, 1965 a Circular was
issued by the Chief Secretary to the Government of
Rajasthan. According to the appellant the said Circular was
a secret one issued without any authority directing the
Selection and Promotion Committees and the Appointing
authorities to follow the instructions given
therein when making selection, promotion or appointment in
the service. The said circular prescribed "merit formula
for making selection of persons to be appointed on the basis
of merit alone and the seniority-cum-merit formula for
making selection of persons to be appointed on the basis of
seniority-cum-merit." The basis for both the types of
promotions was the marking system indicated in the circular.
We do not think it necessary to go more elaborately into the
details of this circular or the authority under which it was
issued because it is seen that this circular was superseded
by the circular dated August 27, 1966, which is under severe
attack in all these proceedings. The contents of the latter
Circular as well as the authority under which it is
purported to have been issued will be dealt with by us in
due course in the latter part of the judgment. On August
26, 1966 r. 28B was further amended by providing that the
proportion of promotion to be made by selection on the basis
of merit and seniority merit is to be 1:2 instead of 50:50.
On the same day a proviso was also added to sub-rule (2) of
r. 28B providing that only officers who have been in service
for not less than six years in the lower grade of the cadre
will be eligible for being considered for the first
promotion in the cadre. On August 27, 1966 the impugned
circular was issued by the Chief Secretary to the State
Government. It is the case of the appellant that this
circular was issued without any authority and it was again a
secret circular giving directions in the matter of
selection, promotion and appointment to the service to the
Committees or the Authorities in charge of the same. The
circular again dealt with the merit formula and the
seniority-cum-merit formulae on the basis of marking system
indicated therein. On September 8, 1966 the State decided
to extend the principles of making selections on the basis
of merit alone to appointments to senior posts also. For
this purpose the original r. 32 was substituted by a new
rule providing for appointments to senior scale and
selection grade posts on the basis of merit and seniority-
cum-merit in the ratio of 1: 2 on the recommendation of the
Committee constituted under the said rule.
It is the case of the appellant that prior to the
notification dated September 8, 1966 though many posts in
the senior scale of service had fallen vacant even during
the years 1963-64 and 1964-65, those posts were not filled
up by making promotion on the basis of the principle of
seniority-cum-merit which was in force at the relevant time.
By the Order dated January, 1966, the State Government
created 26 new posts in the Senior Scale of Service and 14
posts in the Selection Grade with effect from the date of
the order. As a result of this creation of new posts, about
44 vacancies became available for being filled up by
promotion to the Senior Scale of Service in 1965-66.
Nevertheless the vacancies
were not filed up by the State. After the new r. 32 was
incorporated on September 8, 1966 the Government took steps
to fill up the 44 vacancies in the Senior Scale of Service
and for this purpose a Departmental Promotion Committee was
constituted and the Committee met in the end of September,
1966 for considering the claims of the officers for purposes
of promotion. On the basis of the recommendations made by
the said Committee, the Government by the Order dated
December 7, 1966 promoted 29 officers to the Senior Scale on
the basis of seniority-cum-merit. Again by the order dated
January 4, 1967, which is another order under attack in
these proceedings, 15 officers including the respondents
Nos. 2 to 5 were promoted to the Senior Scale of Service on
the basis of merit alone.

According to the appellant by the Orders dated December 7,
1966 and January 4, 1967 promotions had been made quite
contrary to rr. 28B and 32 of the Rules. It is the
grievance of the appellant that under the Order dated
January 4, 1967 a large number of officers who had qualified
for promotion on the basis of merit under the merit formula
were superseded by the officers junior to them. Though
Rules 28B and 32 provided for selection on the basis of
merit gave no indication or guidance as to what are the
factors to be taken into account in assessing the merit of
an officer. The promotions had also been made by the
Committee adopting the principle of awarding marks as direc-
ted by the Circular dated August 27, 1966 which had been
issued without any authority of law. The appellant filed S.
B. Writ Petition No. 79 of 1967 in the High Court
challenging the vires of rr. 28B and 32 as violative of
Arts. 14 and 16. The appellant also challenged the validity
and legality of the Circular dated Angus 27, 1966 as well as
the order dated January 4, 1967 giving promotions to the
respondents Nos. 2 to 5 to the senior Posts, In the writ
petition the appellant had alleged that the various amend-
ments made to the rules from time to time and the delay in
making promotions to Senior Posts were all with a view to
show favourtism to the third respondent who was the son-in-
law of the Chief Minister of Rajasthan and to the other
respondents who are all near relations of persons who were
the favourites of the Chief Minister of the State.
According to the appellant, the Circular dated August 27,
1966 was issued without any authority and in any event the
Government by execution instructions had no power to fetter
the powers of the Selection Committees which were
functioning under the statutory rules. Even the principles
laid down in the Circular regarding the award of marks for
assessing the merit were arbitrary and vague. Rules 28B and
32 were challenged as violative of Arts. 14 and 16 inasmuch
as the basis of merit had not been defined anywhere in the
rules and no principles or guidelines had been laid down in
the rules for assessing the merit of an officer.
The provisions laying down the criteria for judging the
merit of an officer contained in sub-rule (2) of r. 27 as
well as the procedure for assessing the said merit contained
in cls. 2 to 6 of r. 28 having disappeared by the deletion
of those provisions, according to the appellant, arbitrary
powers had been conferred by the rules on the Committees to
select any person they liked on the ground of merit. Apart
from the attack levelled against rr. 28B and 32 that there
were no principles laid down for judging the merits of an
officer, the appellant also attacked as discriminatory and
violative of Arts. 14 and 16, the provisions of r. 28B
providing that the number of eligible candidates to be
considered was to be 10 times the total number of vacancies
to be filled up and that six years service was essential for
an officer to be eligible for being considered for first
promotion.

The Order dated January 4, 1967 was attacked on the ground
that the promotions had been made on the basis of illegal
rules as well as the directions contained in the invalid
Circular dated August 27, 1966. In particular the appellant
contended that though his service record for the year 1965-
66 was quite good. nevertheless certain adverse remarks
contained in the confidential rolls which were not
communicated to him, had been taken into account by the
Departmental Promotion Committee, which met in the last week
of September, 1966 and hence there has been no proper
consideration of his claims for being promoted to the Senior
post. On all these grounds the appellant attacked rules 28B
and 32, the Circular dated August 27, 1966 and the Order
dated January 4, 1967. He also alleged mala fide against
the State.

The respondents Nos. 2 to 5 do not appear to have filed any
counter-affidavit. But the State contended that rr. 28B and
32 were not invalid and did not violate the provisions
either of
Art. 14
or
Art. 16.
The requirement in the rules
regarding promotion to be based on merit was justified as
such selection was necessary to achieve efficiency in
service. The State controverted the allegations of mala
hides made by the appellant. Though it was admitted that
the third respondent was the son-in-law of the Chief
Minister of the State, it was denied that any favoritism was
shown by the State either to that respondent or to the other
respondents in the matter giving promotions to them. On the
other hand, the Departmental Promotion Committee considered
the claims of the appellantand other officers and on
assessment of the various claims of the officers promotions
were given to the officers mentioned in theOrder dated
January 4, 1967 by the State Government on thebasis of
the recommendation of the Departmental Promotion Committee
which has also recommended respondents 2 to 5. The State
further contended that though promotions
had not been made to the Senior Scale in the year 1963-64
and 1964-65, it was not with a view to favour any particular
officer. Apart from the fact that the State Government had
the power either to fill up the posts or keep them vacant,
in this particular case the vacancies were not filled up as
an amendment of the rules was in contemplation of the State
Government. It was urged that the rules contained various
principles for assessment of merit of an officer.
Regarding the Circular dated August 27, 1966, the State
contended that the marking system laid down in the Circular
for assessment of merit of an officer was calculated to
ensure objectivity of approach on the part of the Selection
Committee. As there were as many as 35 sets of service
rules governing various services, the Circular was issued to
bring about uniformity in the procedure for assessment of
merit and for making selections on the basis of seniority-
cum-merit. The State claimed that it has ample powers to
issue such a Circular. Regarding the validity of the
Circular the State contended that the Circular dated August
27, 1966 was issued by the Chief Secretary in his
administrative capacity being the Head of the Service in the
State. It is within his competence to give guidance for the
proper working of any governmental machinery. The circular
is not intended to be a piece of legislation nor is it an
order of the Government.

Regarding the confidential reports of the appellant the plea
of the State Government was that the confidential reports of
all the officers including that of the appellant were before
the Departmental Promotion Committee when it met for making
selection in September, 1966 and that there was nothing
illegal in the said Committee considering the adverse
remarks, if any, made in those reports. The State finally
prayed for dismissal of the writ petition.
The learned Single Judge who dealt with the writ petition
held that rr. 28B and 32 were not violative of either Arts.
14 or 16. The principle of merit embodied in the rules was
valid and the Committee charged with the duty under the
rules of considering the claims of various officers for
promotion was quite competent to take all the relevant
factors when assessing the merits of an officer regarding
his suitability for promotion. The learned Judge further
held that the principle of merit of an officer being
considered for promotion embodied in the rules, was really
based on the recommendation of the Administrative Reforms
Committee. However, the learned Judge held that the
provision in sub-rule (2) of r. 28B restricting the number
of eligible candidates to be considered for promotion to
ten times the total number of vacancies, was violative of

Art. 16
inasmuch as the claims
of various other eligible officers for being considered for
promotion was barred. The learned Judge further held that
this portion of sub-rule (2) of r. 28B is not easily
severable from the remaining portion of sub-rule(2) of r.
28B and in consequence be held that the whole of sub-rule(2)
of r. 28B was bad. After considering the relevant portions
of the Circular dated August 27, 1966, the learned Judge
held that the administrative instructions contained therein
had to be adopted and followed by these Committees. The
directions contained therein did not leave any choice to the
Committees to ignore the same. The administrative
directions contained in the said Circular, according to the
learned Judge, provided a rigid formula for being adopted in
the matter of selection for promotion and the directions
contained therein restricted the powers and functions of the
Committees functioning under the statutory rules. According
to the learned Judge, even on merits, cannot be considered
to be reasonable. In this view the circular was held to be
bad as being repugnant to the rules. Regarding the
promotions made under order dated January 4, 1967, the
learned Judge held that the directions contained in the
Circular must have been taken into account by the Selection
Committee and hence the promotions were not valid. On this
reasoning, the learned Judge, by his judgment and order
dated November 7, 1968 held that sub-rule (1) of r. 28B and
r. 32 were valid and that sub-rule (2) of r. 28B was
violative of
Art. 16
and hence that sub-rule was bad. The
circular dated August 27, 1966 was struck down and the
promotions of respondents made under the order dated January
4, 1967 were also struck down.

Aggrieved by the judgment and order of the learned Single
Judge, the first respondent, the State, filed D. D. Special
Appeal No. 57 of 1968 and the respondents Nos. 2 and 3 filed
D. B. Special Appeal No. 55 of 1968. The appellant herein
filed cross-objections, in the appeal filed by the State
challenging the decision of the learned Single Judge
upholding the validity of sub-rule (1) or r. 28B and r. 32.
The Division Bench by its order and judgment dated January
20, 1970 allowed the two appeals Nos. 55 and 57 of 1968 and
dismissed the cross-objections filed by the appellant. The
Division Bench held that the view of learned Single Judge
that r. 28B(2) was bad was erroneous. On the other hand,
the Division Bench held that restricting the eligibility of
officers who have put in at least six years of service was
quite reasonable and the further provision in r. 28B(2)
regarding the field of selection being confined to senior
most officers in the Junior Scale not exceeding 10 times
the total number of 'Vacancies was also
reasonable. Differing from the learned Single Judge, the
Division Bench held that no part of r. 28B(2) was invalid.
The Division Bench agreed with the views of the learned
Single Judge regarding the validity of sub-rule (1) of r.
28B and r. 32. Regarding the Circular dated August 27,
1966, the learned Judges held that the marking system
indicated therein was really based upon the previous
Circular dated August 31, 1960 under which merit was to be
evaluated by allotting marks on the previous record of an
officer. The said Circular of 1960 had been in operation in
respect of the said services except the Rajasthan Judicial
Service or the Rajasthan Higher Judicial Service, which were
under the control of the High Court. It is the view of the
Division Bench that the Circular of 1966 was very elastic
and gave wide discretion to the Committees to assess the
merit of an officer. The Circular has done nothing except
to lay down broad guidelines for the excercise of discretion
by the Promotion Committee. The system of marking indicated
in the Circular was quite good as it brought about
uniformity in the procedure for assessment of merit. On
this reasoning the learned Judges held that the Circular of
1966 was valid and it was in no way repugnant to the rules.
Regarding the authority for the Circular, the learned Judges
noted that there has been some confusion in the stand taken
by the State from time to time even when they made
applications for amending their counter-affidavit for making
it clear that the Circular has been issued not by the Chief
Secretary in his individual capacity but by the State
Government. Ultimately, the Division Bench held that they
had examined the cabinet file produced before them along
with the note sheets and that the Court was satisfied that
the Circular of 1966, has been issued with the approval of
the State Government. The learned Judges rejected the plea
of mala fides raised by the appellant herein. Regarding the
allegation made by the appellant that the adverse remarks
which had not been communicated to him had been taken into
account by the Promotion Committee in September, 1966, the
learned Judges held that as the Departmental Promotion
Committee had not been impleaded as a party, the question
whether the adverse remarks made against the appellant had
been taken into account by the said Committee cannot be gone
into in these proceedings. Regarding the promotions made
under the Order dated January 14, 1967, the Division Bench
upheld the same as it had already held that rules 28B and 32
as well as the Circular of 1966 were all valid. Civil
Appeal No. 1815 of 1970 is against the decision of the
Division Bench, reiterating the objections regarding the
validity of the rules, the Circular, as well as the
promotions made.

Writ Petition No. 76 of 1970 is filed by Motilal Kakkar,
Apart from challenging rr. 28B and 32 and the Circular of
and the promotions made under the order dated January 4,
1967, the writ petitioner challenges also the order dated
January 22, 1970 confirming the promotions of respondents 2
to 16 in the Senior Scale. The facts leading up to the writ
petition are as follows :

The petitioner after obtaining his M. A. Degree in History
and the Law Degree from the Lucknow University joined
service in the erstwhile State of Jodhpur on August 1, 1943
as a Special Officer (Settlement). He entered the Jodhpur
State Civil Service on March 13, 1946 as a result of the
competitive examination held by the Public Service
Commission of that State. At the time of the formation of
the Rajasthan Union, the petitioner was working as Assistant
Director, Civil ?Supplies, Jodhpur. Ultimately the
petitioner was appointed to the Rajasthan Administrative
Service with effect from January 6, 1950. He has been
serving in various capacities and he was also sent for
higher training to the United States of America by the
Government of India during the period March 23, 1958 to
September 27, 1958. The petitioner thereafter was sent on
deputation to the Municipal Corporation of Delhi as an
Assistant Commissioner during the period June 17, 1963 to
April 21, 1964. Later on he was on deputation as Principal,
Tribal Orientation and Study Centre during the period May
22, 1964 to March 31, 1967. He became the District Manager
of Food Corporation of India and was holding that post since
July 1, 1968. After giving the history sheet of respondents
Nos. 2 to 16, the petitioner claims that he was the senior
most amongst them and that his seniority has been so stated
in the relevant seniority list. After referring to the
rules as originally framed and the amendments made from time
to time, the petitioner attacks the validity of rr. 28B and
32 and the Circular dated August 27, 1966 on the same
grounds as those mentioned in Civil Appeal No. 1815 of 1970.

According to the petitioner respondent Nos. 2 to 16 were all
his juniors and on the basis of the illegal rules and the
directions given in the Circular, officiating promotions
have been given to those respondents to the Senior Scale
under the Order dated January 4, 1967.

The petitioner further states that after the judgment of the
Division Bench of the Rajasthan High Court, which is under
attack in the Civil Appeal, the State Government passed an
order on January 22, 1970 confirming the promotions of
respondents Nos. 2 to 16 in the Senior Scale. According to
the petitioner as the officiating promotions given to those
respondents under the Order dated January 4, 1967 were
invalid. the order of confirmation is also equally bad.
Therefore, he seeks to get that order; also quashed.
The State- Government has filed a very elaborate counter-
affidavit. The stand taken by the State in respect of rr.
28B and 32 as well as the Circular of 1966 and the Order
dated January 4, 1967 is the same as in the Civil Appeal.
The State has further contended that as the rules are valid
and the circular is also valid, the officiating promotions
given under the Order dated January 4, 1967 are also valid.
In consequence the State points out that the order of
confirmation dated January 22, 1970 is also valid. The
State disputes the allegation of mala fides and has also
pointed out that the Departmental Promotion Committee
considered the claims of all the respondents including that
of the petitioner for promotion. Promotions were made by
the Government on the basis of the recommendation of the
said Committee. The State finally prays for the dismissal
of the writ petition.

Coming to Writ Petition No. 139 of 1970, the petitioner
challenges the validity of the IT. 28B and 32, the Circular
dated August 27, 1966 and the Orders dated January 4, 1967
and January 22, 1970. The officers covered by those orders
are respondents Nos. 3 to 17. The petitioner further
challenges the order dated February 21, 1970 passed by the
State Government promoting and confirming in the Senior
Scale the respondents Nos. 18 to 33. The facts leading up
to this writ petition may be stated:

The petitioner after obtaining the B. Sc. (Hons.)
Agricultural Degree in the First Division from the Delhi
University and the LL. B. Degree from the Agra University
joined service in the Delhi Administration on February 6,
1954 as Extension Officer, Agriculture. On January 12, 1959
he was promoted as Block Development Officer in the Delhi
Administration, in which capacity he continued till
September 30, 1960. The petitioner joined the Rajasthan
Administrative Service on October 1, 1960 after having
passed the competitive examination held by the State Public
Service Commission. After the probationary period of one
year, he was confirmed in the service with effect from
October 1, 1961. His rank has been given as Nos. 332 in the
Seniority List of the Rajasthan Administrative Officers
issued in 1964. The petitioner gives the rank of some of
the respondents. After referring to the rules as well as
the amendments made from time to time and the Circular of
1966, the petitioner levels the same attack as against them
similar to those in the civil appeal. The petitioner then
refers to the officiating promotions to the Senior Scale
given to the respondents Nos. 3 to 17 by the Order dated
January 4, 1967 as well as to the Order dated January 22,
1970, confirming their promotions. According to the
petitioner these orders are illegal and invalid for the same
reasons urged in the civil appeal. The petitioner further
says that several officers were selected on probationary
basis and given promotions, but only respondents
91 2
Nos. 18 to 33 were confirmed by the order dated February 21,
1 970. These orders, according to the petitioner, are
illegal and tile petitioner's claim for promotion has not
been properly considered.

The stand taken by the State Government in this writ peti-
tion is also similar to the stand taken in Writ Petition No.
76 of 1970, which, we have already pointed out, again is
similar to the stand taken in the civil appeal. According
to the State Government the claim of the petitioner is not
sustainable as he was ineligible for consideration for
promotion under the rules. The State further contends
that the petitioner has not put inthe minimum period of six
years of service which is a condition precedent for
consideration for promotion to the Senior Scale under r. 32
read with r. 28(2) of the. Rules. The State further
contends that the respondents Nos. 18 to 33 were selected by
the Promotion Committee for likely vacancies and their
selections were in accordance with the Rules. Their
promotions were delayed because of the orders of stay
granted by the Rajasthan High Court in certain writ
petitions filed before it. As soon as stay was vacated, the
State Government decided to promote those officers, who had
been duly selected. Therefore, according to the State
Government the orders dated January 22, and 21st February,
1970 are legal and valid.

From the statement of facts mentioned above, it will be seen
that the main questions that arises for consideration relate
to the validity of rr. 28B and 32 and the Circular dated
August 27, 1966. The decision regarding the orders dated
January 4, 1967, January 22, 1970 and February 21, 1970 will
largely depend upon the opinion expressed on the validity of
the Rules and the Circular.

We will first take up for consideration the attack levelled
against rr. 28B and 32 as being violative of Arts. 14 and

16. We have already referred to the fact that this attack
is made on these rules on the ground that there is no
criteria laid down in the rules for assessing the merit of
the officers concerned when their claims are being
considered for promotion to the Senior Scale. The further
ground on which this attack is made is that the Rules give
arbitrary powers to the Promotion Committees in the matter
of assessing the merits of an officer.

According to the State, on the other hand, the Rules are
valid and the promotions on the basis of merit are also
valid.

It is now necessary to refer to the relevant rules as they
originally stood as well as to the amendments made thereto
from time to time. In 1954 the rules were framed by the
Rajpramukh
under the proviso to
Art. 309
of the Constitution to
regulate conditions of service of the officers in the
Rajasthan Administrative Service. We have already referred
to the fact that the Rajasthan Administrative Set-vice was
fanned in the year 1950. There were three Grades in the
Service :

(i)Ordinary Time Scale Rs. 285-800 (herein
after to be referred as the Junior Scale);

(ii) Senior Scale Rs. 500-1150;

(iii)Selection Grade Rs. 900-1500.

In the Civil Appeal and the two writ petitions we are
concerned with the promotions from junior scale to the
senior scale. Rule 7 relates to the sources of recruitment
to the Service. They are, (a) by competitive examination;

(b) by promotion of administrative subordinate service, (c)
by selection from amongst the prescribed categories of
Extension Officers and (d) by special selection from amongst
the persons other than the administrative subordinate
service in condition with the affairs of the State.
Part IV of the Rules deals with the procedure for direct
recruitment. The procedure for recruitment by promotion is
dealt with in Part V, Rule 27, as originally framed dealing
with the criterion for selection was as follows
"Rules 27. Criterion for selection : (1) For
purposes of recruitment by
promotion/selection/special selection shall
be. made an the, basis of 'seniority-cummerit'
from among all-the administrative subordinates
Extension officers and others who are eligible
for promolion, selection and special selection
respectively under the provisions of the Rules
(2)In selecting the candidates for
promotion, regard shall be had to their;

(a) personality and character;

(b) tact and energy (including ability to
undertake
extensive tours);

(c)intelligence and ability to express
themselves in English and Hindi clearly,

(d) court and other work-,

(e) integrity; and

(f) previous record of service."

58-1 S. C. India/71
The procedure for promotion was laid down in r. 28 as it
onginally stood. Under sub-rule(1) when a decision is taken
that a certain number of vacancies in the service are to be
filled up by promotion, the Appointment Department has to
inform the Board and the latter has to call upon all
Collectors to submit their recommendations by a prescribed
date. It was further provided that the Appointment
Department should also call upon the Heads of the Department
concerned to submit their recommendations through their
respective Administrative Secretaries by a prescribed date.
Sub-rules (2) to (6) dealt with the various details
regarding the submission of the list by the District
Collector, the various particulars to be mentioned by the
Collector, to the Board, scrutinising the list furnished by
the Collector and preparing a list in the order of seniority
of candidates considered suitable for promotion. Those sub-
rules also dealt with the Head of the Department preparing a
list of candidates, eligible for promotion in the order of
seniority and. recording. this remarks in respect of those
officers. Sub-rule (7) provided for the Committee consis-
ting of the, officers mentioned therein considering the
cases of all the candidates recommended by the Board and the
Administrative Secretaries and interviewing them, if
necessary. It also provided for the Committee selecting the
requisite number of candidates equal to the number of
vacancies likely to occur in the Service and to be filled up
by promotion and to the list being prepared in the order of
seniority. The Committee has also to make another
supplementary list in the manner mentioned therein in the
said sub-rule. Under sub-rule (8) both the lists prepared
by the Committee are to be submitted to the Government, who
after scrutinising the same have to forward them to the
Public Service Commission along with the character rolls,
personal files and other particulars relating to the
officers mentioned therein. Under sub-rule (9) the names of
the candidates considered to be suitable by the Commission
are to be reported to the Government for final selection.
Under sub-rule (10) it is provided that the final selection
is to be made by the Government and against of candidates
considered suitable for promotion is to be arranged in the
order of their seniority.

Rule 32 of the Rules as it originally stood made provision
for appointment to the Senior scale in the Cadre and it was
as follows
"Rule 32, Appointments to Senior Posts:

Appointments (including in an
officiating/temporary capacity) to senior
posts shall be made by the Government from
amongst members of the Service on the basis
of seniority-
cum-merit on the. recommendations of a
Committee which shall consist of the following
officers : -

(1) Chairman, Rajasthan Public service
Chairman
Commission Or a Member nomi-
nated by him.

(2)Chairman, Board of Revenue
Member
(3) Commissioner, Development Depart-
Member
ment
(4) Special Secretary to the Government
Member
in the Appointments Department
Secretary

The Committee shall consider the cases of the persons eligi-

ble for promotion by examining their confidential rolls and
personal files interviewing such of them as they deem
necessary and shall select a number of candidates equal to
the number of vacancies likely to be filled by promotion.
Provided that Government may fill a vacancy in the senior
grade temporarily by appointing thereto for a period not
exceeding six months in an officiating capacity, any member
of the Service who is eligible for such appointment under
these Rules."

It will be seen by a reference to the rules extracted above
that promotion was to be on the basis of seniority-cum-
merit. Under sub-rule (7) of r. 28 and r. 32 a committee
has been constituted and it is on the basis of the
recommendation made by the said Committee that the promotion
is ultimately made by the Government.

In 1965 the State Government took a decision to introduce
the system of recruitment to the service by promotion on the
basis of merit alone. On December 14, 1965 a notification
was issued amending the Rules. A new rule 28B dealing with
the promotion by selection on the basis of merit was
incorporated, The said rule as originally framed was as
follows :

"28-B Promotion by selection on basis of
merit"

(1) Appointment by promotion to posts in the
Service shall be made by selection strictly on
the basis of merit and on the basis of
seniority-cum-merit in proportion of 50:50.
Provided that if the appointing authority is
satisfied that suitable persons are not
available for appointment by promotion
strictly on the basis of merit in a particular
year appointment by promotion on the basis of
seniority-cum-merit may be made in the same
manner as specified in these rules.
(2) Selection strictly on the basis of merit
shall be made from amongst persons who are
otherwise eligible for promotion under these
rules; the number of eligible candidates to be
considered for the purpose shall be ten times
the total number of vacancies to be filled in
on the basis of merit and seniority un-merit
provided such number is available; where the
number of eligible candidates exceeds ten
times the number of vacancies, the requisite
number of senior-most persons shall be
considered for the purpose.

(3) Except as otherwise expressly provided
in this rule the procedure prescribed for
selection to the post on the basis of
seniority-cum-merit shall, so far as may be,
be followed in making selection strictly on
the basis of merit.

(4) The Committee shall prepare a separate
list of candidates selected by it on the basis
of merit and shall arrange their names in
order of preference.

(5) Where consultation with the Commission
is necessary the list prepared by the
Committee shall be forwarded to the Commission
by the appointing authority along with the
personal files and confidential rolls of all,
persons whose names have been considered by
the Committee.

(6) The Commission shall consider the lists
prepared by the Committee along with other
documents received from the appointing
authority and unless any change is considered
necessary, shall approve the lists, and if the
Commission considers it necessary to make any
change in the lists received from the
appointing authority the Commission shall
inform the appointing authority of the changes
proposed and the appointing authority, after
taking into account the commences, if, any,
may approve the lists finally with such
modifications, as may in his opinion, be just
and proper.

(7) Appointment shall be made by the
appointing authority taking persons out of the
list finally approved under the proceeding
sub-rule in the order in which they have been
placed in the list.

(8) Among persons appointed in the same
class,. category or grade of posts during the
same year, persons appointed on the basis of
seniority-cum-merit shall rank senior to those
appointed by promotion on the basis of merit;
the seniority inter se of persons appointed in
the
same class, category or grade of posts by
promotion strictly on merit, shall, without
regard to the order of preference, be
determined as if such persons had been
appointed by promotion on the seniority-cum-
merit.

(9) The provisions of this rule shall have
effect notwithstanding anything to the
contrary contained in any other provisions of
these rules.

Explanation :-For the purpose of determining
the number of vacancies to be filled on either
basis under sub-rule (1), the following cyclic
order shall be followed from year to year.

"The first by merit.

The next by seniority-cum-merit.

The next by merit.

The next by one by Seniority-cum-Merit
The cycle to be repeated."

By the same notification of December 14, 1965 sub-rule (2)
of r. 27 was deleted. On January 7, 1966, a further amend-
ment was made to the rules by deleting sub-rules (2) to (6)
of r. 28. It will be seen that under the new r. 28B,
promotion to posts in the service is to be made by selection
on the basis of merit and on the basis of seniority-cum-
merit in the proportion of 50:50. Sub-rule (2) provided for
the manner of selection on the basis of merit. Under sub-
rule (3) procedure prescribed for selection to the posts on
the basis of seniority-cummerit has to be followed as far as
possible in making selection strictly on the-basis of merit.
On August 26, 1966 by a notification certain amendments were
made in r. 28B. Under subrule (1) of r. 28B, the original
proportion of selection on the basis of merit and on the
basis of seniority-cum-merit was altered and the proportion
was fixed as 1:2. A proviso was also added to sub-rule (2)
of r. 28B, which is as follows :

"Provided that for the first Promotion in the
same cadre (from a lower grade to higher
grade) against the merit only such of the
persons shall unless a higher period is
prescribed elsewhere in these rules be
eligible who have put in not less than six
years of service in the lower grade of the
cadre."
On September 8, 1966, the old r. 32 was substituted by a,
new rule dealing with the appointment to Senior Posts. The
said new rule 32 runs as follows :

"32(1) Appointment to senior posts
Appointment to Senior scale and selection
grade posts shall be made by Government from
amongst the members of the service on the
basis of merit and seniority-cum-merit in the
ratio of 1:2 on the recommendations of a
Committee which shall consists of the follow-
ing :-

"(1) Chairman, Rajasthan Public Service
Commission, or a Member
nominated by him.

Chairman.

(2) Chairman, Board of Revenue
Member.

(3) Commissioner. Development De-

partment.

Member.

(4) Special Secretary to Government
in the Appointments Department.
Member.
Secretary.
(2) Except as provided in this rule, the

procedure and the principles for selection by
merit, shall, in so far as it may apply, be
the same as provided in rule 28B. For
selection by seniority-cum-merit, the Com-
mittee shall consider the cases of all the
persons eligible for promotion by examining
their confidential Rolls and Personal files
and interviewing such of them as may deem
necessary, and shall select a number of
candidates equal to the number of vacancies
likely to be filled by promotion by seniority-
cum-merit:

Provided that Government may MI a vacancy in
the Senior scale or selection grade posts
temporarily by appointment thereto for a
period not exceeding six months in an
officiating capacity, any member of the
service who is eligible for such appointment
under the rules."

This new rule was also incorporated to give effect to the
Government's decision taken in 1965 to introduce the system
of recruitment to the service by promotion on the basis of
merit, as a result of which r. 28B was earlier incorporated.
Rule 32 really deals with appointments to Senior Posts; and
under the old rule the promotion was to be on the basis of
seniority-cum-merit. That is altered under the new rule to
promotion on the basis of merit and seniority-cum-merit and
the proportion is also 1:2 as already laid down, by the
amendment made on August 26, 1966. Sub-rule (2) of new r.
32, as will be seen, provides for the procedure and
the principles for selection by merit being the same as
provided in r. 28B. Therefore, it will be seen that the
position as it stood at the time when promotions of the
various respondents in the appeal and in the writ petitions
were made was :

(1) the promotions had to be made on the
basis of merit and seniority-cum-merit in the
ratio of 1:2 as provided by Rule 32 read with
r. 28B;

(2) under the proviso to sub-rule 2 of r.

28B the minimum period of eligibility for
being considered for the first promotion is
six years of service in the lower grade of the
cadre;

(3) under sub-rule 2 of r. 28B the selection
for promotion is restricted only to officers
eligible for promotion under the rules coming
within ten times the total number of vacancies
to be filled up on the basis of merit and
seniority-cum-merit;

(4) under r. 32 appointments to Senior scale
and Selection cadre posts are also on the
basis of merit and seniority-cum-merit in the
ratio of 1:2, and
(5) recommendations for appointments and
promotions are to be made by the Committees
concerned.

It is the grievance of the appellant and the writ
petitioners that the combined effect of the addition of r.
28B and the deletion of sub-rule (2) of r. 27 and sub-rules
(2) to (6) of r. 2B is that although a provision has been
made for recruitment to the service by promotion on the
basis of "merit alone" no criteria) for assessing the merit
and suitability of the candidates have been provided in the
rules as they stand. In fact their further contention is
that sub-rule (2) of r. 27 had laid down the various
criteria for considering the suitability of a candidate and
sub-rules (2) to (6) of r. 28 had dealt with the procedure
for selection of such candidates. When once these sub-rules
have been deleted there is no guidance whatsoever furnished
by the rules, as they now stand, for assessing the merit.
Further, the restriction placed under r. 28B that only
candidates coming within 10 times the number of vacancies
that have to be filled up will be considered for selection
and the further restriction therein that for the first
promotion six years' service is essential, are violative of
Arts. 14 and 16. Rule 32, according to Mr. Garg, (toes not
also lay down any guidance or principle for assessing the
merit of candidates for promotion to Senior posts.
We are not inclined to accept these contentions of Mr. Garg.
We have already referred to the fact that the learned Single
Judge, in the writ petition leading up to the civil appeal,
is of the view that rr. 28B and 32 do not offend either
Art.
or 16. But the
learned Judge is of the view that as there is a restriction
placed upon the number of officers whose claims could be
considered, under sub-rule (2) of r. 28B, that part of the
sub-rule was invalid as offending
Art. 16.
As the said part
cannot be separated, according to the learned Judge, from
the other parts of the sub-rule, the whole of sub-rule (2)
of r. 28B was struck down. The Division Bench, on the other
hand, has disagreed with this view of the learned Single
Judge and has upheld the validity of the entire subrule (2)
of r. 28B. We are in agreement with the views expressed by
the Division Bench that rr. 28B and 32 do not offend either

Art. 14
or 16.

Nor are we impressed with the contention of Mr. Garg that
there is no principle laid down in the rules for assessing
the merit of an officer especially after the deletion of
sub-rule (2) of r. 27 and sub-rules (2) to (6) of r. 28. No
doubt sub-rule (2) of r. 27 enumerated certain factors or
matters to be taken into account in selecting candidates for
promotion. Sub-rules (2) to (6) of r. 28, no doubt also
dealt with certain aspects of procedure to be adopted for
promotion. The deletion of the sub-rules, in our opinion,
does not make the rules 28B and 32 in any manner invalid.
We have already extracted the relevant rules and also
pointed out that the selection or promotion is to be
considered by the Committees referred to therein. It is no
doubt argued by Mr. Garg that introduction of the idea of
merit in the procedure of promotion brings in an element of
personal evaluation and such personal evaluation opens the
door to the abuse of nepotism and favouritism. Hence it is
argued that there is a violation of the constitutional
guarantee under Arts. 14 and 16.

We-are unable to accept this contention. The State Govern-
ment has taken a decision in 1965 that selection to the
service and promotion have to be on the basis of merit and
senioritycum-merit. There can be no controversy that the
main object in such matters is to serve public interest and
not the personal interest of the members of the official

-roup concerned. As stated by Leonard D. White in his
Introduction to the Study of Public Administration, 4th
Edition p. 380: "The Public interest is best secured when
reasonable opportunities for promotion exist for all
qualified employees, when really superior civil servants,
are enabled to move as rapidly up the promotion ladder as
their merits deserve and as vacancies occur, and when
selection for promotion is made on the sole basis of merit.
For the merit system ought to apply as specifically in
making promotions as in original recruitment."
The above statement has been quoted with approval by this
Court in
Sant Ram Sharma v. State of Rajasthan and
Another
(1) We may also point out that the Administrative
Reforms
(1) [1968] 1 S. C. R. 1 1 1.
Committee has also emphasised that merit should be given
adequate weightage in the matter of promotion especially for
senior appointments to ensure greater efficiency in
government functioning and also to provide adequate
incentive to government servants to give their best.
Rule 32 in essence adopts what is stated in rule 28B. The
latter rule provides for two methods of selection: one based
on merit and the other based on seniority-cum-merit. In
other words, the rule provides that the promotion based on
merit in contradistinction to that based on seniority-cum-
merit shall strictly be on the basis of merit. The
Selection Committee and the Promotion Committee consist of
very responsible and senior officers of the 'State and being
persons of experience they can be trusted to evaluate the
merits of a particular officer. No doubt the term 'merit'
is not capable of an easy definition, but it can be safely
said that merit is a sum total of various qualities and
attributes of an employee such as his academic
qualifications, his distinction in the University, his
Character, integrity, devotion to duty and the manner in
which he discharges his official duties. Allied to this may
be various other matters, or factors such as his punctuality
in work, the quality and outturn of work done by him and the
manner of his dealings with his superiors and ,subordinate
officers and the general public and his rank in the service.
We are only indicating some of the broad aspects that may be
taken into account in assessing the merits of an officer.
In this connection it may be stated that the various
particulars in the annual confidential reports of an
officer, if carefully and properly noted, will also give a
very broad and general indication regarding the merit of an
officer. Therefore, it cannot be stated that rr. 28B and 32
are in any manner vague ,or do not give any guide line for
assessing the merit of an officer. No doubt sub-rule (2) of
r. 27 dealt with certain factors which are to be taken into
account for considering the claims for promotion, but when
it comes to a, question of merit, not only those factors but
also certain additional factors and circumstances will have
to be taken into account and such an evaluation of merit has
been left under the rules to a Committee consisting of res-
ponsible, senior and experienced officers of the State.
We are also not impressed with the contention that Rule
28B(2) and its proviso confining the selection to senior-
most officers not exceeding ten times the number of total
vacancies to be filled up and the further restriction
regarding the eligibility of officers who have put in at
least six years of service for first promotion offend
Art.
of the Constitution. In this respect also we agree with
the views expressed by the Division Bench of the Rajasthan
High Court in D. B. Special Appeal
No. 57 of 1968, The restriction contained in the proviso to
subrule (2) of r. 28B in our opinion, is quite reasonable.
Before an officer in the Junior scale can be considered as
fit for promotion to the Senior scale, it is necessary that
he should have worked on a post in the Service at least for
some period of time. As to what quantum of that period must
be is not for this Court to lay down. The Government has
fixed this period as six years. We are not in a position to
say that it is an improper restriction. The provisions
contained in sub-rule (2) confining the selection to senior-
most officers not exceeding 10 times the number of total
vacancies is also, in our opinion, reasonable. Such a
provision will encourage the members of the service to
aspire for promotion for making themselves eligible by
increasing their efficiency in the discharge of their
duties. We are of the view that rr. 28B and 32 do not
offend either
Art. 14
or 16 of the Constitution.
Now coming to the Circular dated August 27, 1966, we find it
difficult to agree with the view of the Division Bench of
the Rajasthan High Court. On the other hand, we are
inclined to agree with the decision of the learned Single
Judge in Writ Petition No. 79 of 67. The contention of Mr.
Gang is that the Circular by executive instructions has
abridged or curtailed drastically the exercise of discretion
by the Departmental Promotion Committee constituted under
the rules. In fact his plea is that the circular has
superseded the statutory rules framed under the proviso to

Art. 309.
On the other hand, it is the contention of the
learned Solicitor-General, appearing for the State and of
Mr. B. Sen, learned counsel appearing for some of' the
respondents, that the Circular has not in any manner inter-
fered with the powers of the Committees constituted under
the Rules. On the other hand, in order to bring about
uniformity in the application of the principles for
assessing the merit the marking system which has been in
vague from 1960 has been adopted with slight modifications
in the Circular of 1966. The instructions contained in the
Circular only provide guidance to the Committees concerned
and those instructions do not in any way contravene any of
the rules.

Before we deal with this aspect, we can dispose of a subsi-
diary contention that has been raised by Mr. Garg.
According to him the circular has been issued by the Chief
Secretary as the Head of the Service and it is not an order
of the Government. This has been accepted by the State
Government. If so, it follows that the Circular is illegal
and void. We have already referred to the stand taken by
the State Government in this regard. They have specifically
taken the stand that the circular has been issued by the
Chief Secretary as the Head of the Service. Before the
Division Bench in the High Court when this matter was again
raised by the appellant, it is seen that an application for
amending their counter-affidavit was made by the State to
make the position clear that the Circular was issued with
the approval of the Government. As pointed out by the
Division Bench there is some confusion in this regard. But
ultimately the Division Bench has stated that they
themselves have gone through the Cabinet file and the notes
and satisfied themselves that the Circular has been issued
with the approval of the Government. Therefore it follows
that the Circular is an order of the Government and not of
the Chief Secretary alone.

Then the question is whether the Government is competent to
issue the said Circular and whether the Circular in any
manner effects the discretion and powers of the Committee
functioning under the statutory rules. The position is
clear, as
laid down by
this Court in
Sant Ram Sharma v.
State of Rajasthan and another
(1):

"It is true that the Government cannot amend
or supersede statutory rules by administrative
instructions, but it the rules are silent on
any particular point Government can fill up
the gaps and supplement the rules and issue
instructions not inconsistent with the rules
already framed."

Having due regard to the principles stated above, we will
now examine the scope and contents of the Circular. The
Circular contains administrative instructions and it does
not profess to lay down anything else. The Government have
issued those instructions "for the guidance of all
selection/promotion committee and appointing authorities
mentioned in the statutory service Rules. These
administrative instructions and the statutory service Rules
should together be taken as a complete code on the subject."
From the above extract it is clear that in the matter of
selection or promotion the Committees concerned are enjoined
not only to have regard to the statutory rules under which
they function, but also to the administrative instructions
given in the Circular. This makes it very clear that it is
not open to the Committee concerned to ignore the
instructions contained in the Circular or to act contrary to
the directions contained therein. Therefore, it will be
seen that if the Circular or any part of it gives
instructions contrary to or opposed to any of the rules, the
Circular or that part of the Circular to that extent will be
in-. valid. In particular we may refer to paragraphs 3 and
5 of the Circular. Paragraph 3 deals with the merit formula
and is as follows :

(1) [1968]1 S. C. R. 111.
3(a) "Merit formula" means that out of 75
marks (marking system has been defined in
paragraph 5), a person should get a minimum of
65 marks for consideration of his case for
promotion among those who have secured 65 or
more marks, the person who gets highest marks
will be the first to be promoted, and the
person who comes next in the range of marks
will be the second to be promoted, and so on.
The inter-se seniority of persons had been
appointed in the same class, category or grade
of posts by promotion strictly on merit shall
without regard to the order of preference, be
determined as if such persons had been
appointed by promotion on the basis of
seniority-cum-merit. This is illustrated by
the following example
Name of the No. of Seniority in
the
Officer Marks. next below
grade.

A 75 8
B 73 9
c 70 4
D 69 3
E 65 1

That if there are 5 vacant posts to be filled
by promotion on the basis of 'merit' formula
the inter-se seniority of these 5 selected
persons will be the same as in next below
grade, but if only 3 posts are to be filled
then those who have secured 75, 73 and 70
marks respectively will be selected and the
remaining left out. The inter-se seniority
amongst these selected shall be the same as
the next below grade.

(b)The eligible candidates for promotion on
the basis of 'merit' formula shall be 10 times
the total number of vacancies to be filled by
way of promotion provided such number is
available and they should be holding the post
in the next below cadre in substantive capa-
city. As for example, if there are twelve
posts to be filled by way of promotion on the
basis of both the formula (viz. four posts for
merit and eight for seniority-cum-merit) the
total number of eligible candidates for
promotion on the basis of merit formula shall
be 120. If available, if an officer could not
secure 65 marks continuously for 5 years he
will not be included in this list of eligible
candidates.

(c) Notwithstanding anything contained in
sub-para (b) above, for first promotion by
merit, only such of the candidates shall be
eligible who have put in six years service in
the cadre on the date of selection."
Paragraph 4 of the Circular lays down what is "senioritycum-
merit" formula. The marking system which is applicable both
to the selection based on 'merit' as well as to the
selection based on "seniority-cum-merit" is contained in
paragraph 5. That paragraph reads as follows :

"Para-5 The marking system will be as follows

(a)Confidential Rolls for the 5 calendar
years immediately 'preceding the date of
selection will be examined. 5 marks will be
ear-marked for each year's confidential Roll,
and the marking will be:-Excellent report-5
marks, Very good report-4 marks; Good report

-3 marks; Satisfactory report-2-1/2 marks;

Unsatisfactory report-2 marks-, Adverse
report-1-1/2 marks; Adverse report with
punishment 1 mark. If a person has been
awarded either 'Merit Pay' or 'Cash award' by
the Government, then the Committee may award
him upto 5 more marks in addition to the marks
already obtained by him. These additional
marks will not be taken into consideration at
the time of the next selection.

(b)The record of service, which means
service book, personal file, and Confidential
Rolls other than the Confidential Rolls of the
5 years immediately preceding the selection
maintained after the formation of Rajasthan,
will be allotted 50 marks, and the marking
will be (a) average or satisfactory record 50
marks, and (b) deduction upto 2 marks for each
punishment according to gravity may be made
(no deduction will be made for mere warning,
but where warning has been recorded in
Confidential Roll, it should be considered as
punishment and marks should be deducted).
'Recorded warning' means censure given by way
of punishment under the C.C.A. Rules. If some
marks have been deducted for any punishment
out of 50 marks in any year of selection, then
that deduction should not be repeated or
counted in the next selection. Also if some
marks have been deducted from the Confidential
Roll of a particular year, then that deduction
should not be repeated or counted next time.
That Confidential Roll should be considered
satisfactory, and marks awarded accordingly,
with a view to ensure implementation of this,
it would be necessary for the promotion
Committee to keep a record of such deductions
and additional marks as the case may be.
(c)On the basis of above marking, only such
persons who have secured a minimum of 6-1/2
marks out of the total of 75 marks will be
considered for promotion on the basis of
'Seniority-cum-merit' formula. Thus, as has
been mentioned earlier, even if a junior
person secures more than 621 marks, the senior
will not be superseded if he has secured 62-
1/2 marks. Under the 'merit' formula those
who have secured 65 marks or more will only be
considered for promotion."

Paragraph 6 dealing with officers, who can be called for
interview provides that a person who has secured less than
62-1/2 marks shall be called for interview.. But persons who
get less than 61 marks, should not. be called for interview.
It further provides that those persons whose confidential
Rolls were missing or whose confidential Rolls could not be
prepared in their absence for study or training outside
India should also be called for interview.
Para 7 of the circular lays down that adverse remarks re-
corded in the Confidential Rolls should be communicated to
the person concerned in time, so that he may get an
opportunity to represent his case to the authority
concerned. However, if by chance, adverse remarks have not
been communicated to him, or if the adverse remarks have
been communicated but his representation had not been
decided by the appropriate authority, then in that event the
person concerned should be called for interview by the
selection or the promotion committee and before he is asked
to appear for interview adverse remark should be
communicated to-him so that he could come prepared with what
he has to say in the matter. It was left open to the
selection or promotion committee to treat the adverse
remarks as expunged and then award marks if it felt that the
adverse remarks were not justified. It was clearly
emphasised that normally efforts should be made to
communicate the adverse remarks and to decide the
representations before the selection committee meets.
In para 9 of the circular it was pointed out to all
selection committees and appointing authorities that the
assessment of confidential rolls and the awarding of remarks
thereon should be rational, judiciously liberal and
objective, the reason being that at times a confidential
roll may have been written with a greater sense of
responsibility and at other times it may not have been given
due care. It was also observed by way of illustration that
one officer might be liberal in the assessment of his
subordinates while another may be a bit miserly or sometimes
indicative. It was, in order to have a balanced approach in
the matter it might at time be worthwhile for the selection
committee as also
for the appointing authority to consider whether the
reporting officers themselves enjoyed reputation for
efficiency, impartiality and integrity.
Finally the circular pointed out that the instructions
contained therein should be strictly kept in view while
persons are being considered for promotion, the reason being
that evaluation and assessment of confidential rolls make or
mar the service prospects of ,government employees.
One gets a fairly good picture of the nature of the instruc-
tions contained in the circular issued by the Government.
No doubt a properly evaluated marking system may be helpful
for assessing the merit of persons who are already in
service. But the instructions given in the circular are so
rigid that they are ,opposed to the selection to be made
strictly on merit as provided under rr. 28B and 32.-
For instance the marking system provides 50 marks for the
record prior to 5 years and for the five years preceding the
selection the marking of 25 is to be on the basis of
confidential rolls. From this it is clear that an officer
who has rendered less than five years of service will not
be eligible to get a single mark ,out of 50 which is
provided for the record for the period preceding five years
for the simple reason that he will have no such record. The
officer who has put in less than five years of service has
been straightaway denied 50 marks out of 75 marks and he has
to establish his worth within the small range of 25 marks on
the basis of his confidential rolls which will be available
for a period of less than five years. This formula of
marking is certainly opposed to r. 28B and r. 32, the object
of which is to ensure that merit and merit alone is to form
the basis for promotion, as against the quota fixed for
merit, in contradistinction to seniority-cum-merit.
Similarly, when one considers the question of first
selection, the position is still more anamolous. An officer
Who has put in just six years of service will get 50 marks
for his record of previous service which just exceeds five
years by one year. Another officer will have to face the
situation with a longer period of service. There can be no
comparison of the claims of the two officers on merits.
While the rules give a wide discretion to the Committee for
judging merit, paragraphs 3 and 5 of the circular place
undue, restrictions and limitations on the exercise of dis-
cretion and thus fetter the powers of the Committee. That
is opposed to rr. 28B and 32.
Similarly, in the matter of giving marks for excellent
report, very good report, good report, satisfactory report,
unsatisfactory report, adverse report and adverse report
with punishment, the circular is arbitrary. It will be seen
that an officer who has satisfactory report gets 2-1/2
marks, and another officer with an unsatisfactory report
gets 2 marks. The officer with an adverse report gets 1-1\2
marks. , We fail to see any rhyme or reason in this marking
system.

Again, under the Rules the Committee concerned, has a
discretion if it deems necessary to call for interview any
person, whose claims are being considered by it. But this
exercise of discretion is drastically curtailed by paragraph
6 of the circular laying down the circumstances under which
a person, should or should not be called for interview. The
Committee under the said paragraph has only to mechanically
apply the directions contained therein. This provision is
again a serious inroad on the powers conferred on the
Committees by the Rules.

We are not inclined to accept the view of the learned Judges
of the Division Bench that the circular merely gives a broad
guidance to the Committees concerned and that the
instructions contained therein are elastic. Nor are we
inclined to accept their reasoning that the Committees have
still got discretion to ignore the directions contained in
the circular and assess the merit of an officer by
independent evaluation. No such indication is available, so
far as we could see, in the circular. On the other hand,
the indications axe to the contrary. The circular enjoins
the Committees to treat the administrative instructions and
the statutory Service Rules together as a complete Code.
The object of the circular may be to bring about uniformity
in the award of marks. But the directions contained therein
do' offend the rules. This is not a case of the government
filling up the gaps or of giving executive instructions on
matters not provided for by or not inconsistent with the
rules. 'Me learned Judges of the Division Bench of the High
Court, have by and large, upheld the validity of the marking
system as well as the other instructions contained in the
circular of 1966 on the ground that the marking system as
pointed out by the State has been in vogue from 1960, on the
basis of a previous circular, dated August 31, 1960 issued
by the State Government. Reliance placed upon this circular
of 1960 by the High Court, in our opinion, is not justified.
We have gone through the circular of 1960 which is No. F.
1(6) Apptts. (D)160 dated 31-8-1960. That circular was
issued by the State to clarify the misapprehension that
appears to have been caused in the application, for
promotion of the principle of merit-cum-seniority or
seniority-cum-merit. For the
purpose of having uniformity, the State Government had laid
down certain principles in the said circular to be borne in
mind by the Promotion Committees. No doubt there is a
marking system indicated therein. But there are two
features which distinguish the circular of 1960 from that of
the 1966 circular. In paragraph 3 of the former circular,
it is specifically laid down that the principles mentioned
therein are only in the nature of executive instructions to
be kept in view by the Committees when making promotions.
It is made clear that those Committees should, however,
exercise their own discretion while applying the above
principles in view of the fact that occasionally the
Confidential Rolls may not have been written with full sense
of responsibility. Moreover, some of the rules permit
interview before selection and in such cases the Selection
Committee will have to assess suitability of the officer as
a result of the interview also." Under the circular of 1966,
we have already indicated, no such discretion is left to the
Selection or Promotion Committees to adopt any method other
than that indicated in the circular. In fact it is
emphasised that the statutory service rules and the
instructions contained in the circular are to be treated as
a complete code by the Committees. Another point to be
noted is that in 1960 the question of promotion on the basis
of merit alone had no place. That principle was adopted
only, as pointed out by us earlier, in1965 which led to
the amendment of the rules. Therefore, the principles
mentioned in the circular of 1960 cannot be relied on when
considering the validity of the present circular, when
promotion by merit alone has been recognised by the rules
from 1965. We have already indicated that the instructions
in the 1966 circular contravene the Rules. Therefore, we
are of the opinion that the circular dated 27-8-1966 is bad
and accordingly it is struck down. We make it clear that we
express no opinion on the validity or otherwise of the cir-
cular of 31-8-1960. We have only referred to that circular
to show that the High Court has committed an error in
placing reliance on the same.

Now, coming to the promotions and confirmations made, under
the orders dated January 4, 1967, January 22, 1970 and
February 21, 1970, we are not inclined to disturb those
orders except to the extent indicated below in respect of
the promotions of respondents Nos. 2 to 4 in Civil Appeal
No. 1815 of 1970 under the first order dated January 4, 1967
and their confirmation, by the second order dated January
22, 1970.

Writ Petitions Nos. 76 and 139 of 1970 have been filed in
this Court. only after the judgment dated January 20, 1970
of the High Court in D. B. Special Appeal No. 57 of 1968.
The petitioners must have been aware that the appellant was
challenging only the promotions of four officers in his writ
petition
59-1 S.C.R. India/71
in the High Court. Nevertheless, they kept quite and
allowed the officiating promotions of all the officers to
stand from 1967 and even kept quiet till the government
confirmed the promotion of those officers on January 22,
1970. So far as the writ petitioners are concerned, the
State must be considered to be justified in passing the
order dated January 22,,1970, on which date the High Court's
judgment was in its favour. We are entitled to take this
circumstance into account for denying the larger reliefs
claimed by the writ petitioners when they attack the orders
dated January 4, 1970 and January 22, 1970.
We have referred earlier to the various orders that are
being challenged in these writ petitions, apart from the
attack on rr. 28B and 32. Under the order dated January 22,
1970, the officers who had been promoted to officiating
posts in the senior scale in January 4, 1967 have been
confirmed. We have held earlier that these orders cannot be
reopened at the instance of these writ petitions. Another
set of officers, who had been selected earlier, were
appointed by promotion to the senior scale post by the order
dated February 21, 1970. We are holding later that no
relief can be granted to the concerned writ petitioner even
regarding this order.

So far as respondents Nos. 2 to 4 in the Civil Appeal No.
1815 of 1970 are concerned, we are giving separate
directions, regarding the reconsideration of their promotion
and confirmation, along with the appellant in the appeal.
The fact that the respondents Nos. 2 to 4 in the civil
appeal have been confirmed on January 22, 1970 after the
decision of the High Court in favour of the State and those
officers is of no consequence, so far as the appellant is
concerned, if their original officiating promotion on
January 4, 1967 requires reconsideration by the Government.
Their confirmation will stand or fall depending on the final
decision of this Court regarding the order dated January 4,
1967.

The appellant in the civil appeal is not challenging the
officiating promotions or confirmation made of the officers
other than respondents Nos. 2 to 4 in the appeal. Hence the
promotions given and confirmations made of the other
officers under orders dated January 4, 1967 and January 22,
1970 respectively should be allowed to stand. It is also
seen that the order dated February 21, 1970 was passed by
the State Government, after the order of stay was vacated by
the High Court. The State Government, as pointed out
earlier, was justified in passing the order dated January
22, 1970 except regarding respondents Nos. 2 to 4 in the
appeal, on the basis of the Division Bench judgment of the
High Court which had upheld the validity of the rules and
the circular. The same reasoning will apply to the order of
February 21, 1970 also. Therefore, the petitioner in writ
petition No. 139 of 1970, who alone is challenging this
order, will not be entitled to have that order reopened.
Thus both the writ petitioners will be only entitled to have
a declaration that the circular dated August 27, 1966 is
invalid and that it is struck down. They are' not entitled
to any further reliefs in the writ petitions.
In the civil appeal Guman Singh, the appellant has raised a
contention that promotions of respondents Nos. 2 to 4 were
made on January 4, 1967 on the basis of illegal rules and
invalid circular. He has further contended that the
Promotion Committee which met in September, 1966 has taken
into account the adverse remarks made against him which were
not justified and which were not communicated to him. We
have already expressed our views upholding the validity of
the rules and the invalidity of the circular. In support of
the contention that adverse remarks were taken into
consideration by the Committee, he relied upon the following
circumstances : The Deputy Commissioner has written a letter
dated April 28, 1966 strongly appreciating his services as
an officer. While so, it is a matter of surprise that
adverse remarks came to be made in September, 1966. The
nature of the adverse remarks has been referred to by the
Division Bench. It is admitted by the State that the
Promotion Committee had met in the end of September, 1966
and made recommendations regarding the officers who are to
be promoted. It is also admitted by the State Government
that the confidential rolls of all the officers were before
the Selection Committees They have not denied that the
circular was not taking into account by the Committee. On
the other hand, they have impliedly accepted that the
circular was before the Committee at the time of considering
the promotions. According to the appellant adverse remarks
were communicated to him only on May 11, 1967, long after
the decision of the Promotion Committee. Hence the
Committee has illegally taken into consideration the adverse
remarks made against him and has denied him promotion on
that account. His contention is that after the adverse
remarks were communicated to him, long, afterwards he made
representations and the adverse remarks were directed to be
expunged. In this connection, learned counsel relied upon
the counter-affidavit filed in this Court on behalf of the
State in writ petition No. 76 of 1970 to the effect that the
adverse entries in the confidential rolls of Shri Guman
Singh, the appellant, were expunged on his representations.
Therefore, according to the appellant, his claims for
promotion have not been properly dealt. with by the
promotion Committee.
The allegation of the appellant in his writ petition that
the promotion Committee had taken into consideration the
adverse remarks, when it met in September, 1966, does not
appear to be unfounded, however, as we are giving directions
for reconsideration of the appellant's claims for promotion,
if otherwise he is eligible under the Rules, we do not
express any opinion on this aspect as facts have to be
investigated.

The learned Judges of the 'Division Bench have brushed aside
the grievance of the appellant regarding This matter by
observing that as the Departmental Promotion Committee is
not a, party to the proceedings, the question whether the
Committee took into account the adverse remarks said to have
been made against the appellant, cannot be gone into in
these proceedings. This approach made by the learned Judges
does not appeal to us. The Government, which is the
appointing authority, was a party before the High Court. It
must have had before it, when it passed the orders on
January 4, 1967, all the records regarding promotion. It
was the duty of the State Government to place before the
High Court all the materials available before it to enable
the Court to consider whether the grievance of the appellant
was justified or not. The appellant had made a specific
grievance in his writ petition about the uncommunicated
adverse remarks having been taken into account by the
Committee. The Government could have obtained a report or
an affidavit regarding the true facts from a responsible
officer of the Committee and placed it before the High
Court. Anyhow, as- mentioned earlier, it is not necessary
for us to pursue this aspect further except to point out
that we do not agree with the reasoning of the High Court in
this regard. The High Court has also declined to interfere
with the order dated January 4, 1967 as it upheld the
validity of rr. 28B and 32 as well as the circular of August
27, 1966. Though we are upholding the validity of the two
rifles, we disagree from the High Court's view regarding the
validity of the circular. We are also giving separate
directions regarding the order dated January 4, 1967.
We are, accordingly of the opinion that so far as the appel-
lant (in the civil appeal) and respondents Nos. 2 to 4 are
concerned, the officiating promotions made of the latter
officers on January 4, 1967 as well as their confirmation by
order dated January 22, 1970 will have to be reviewed and
reconsidered by the Departmental Promotion Committee and the
Government. It is needless to state that the circular dated
August 27, 1966 should not be taken into consideration. The
claims of the appellant and respondents Nos. 2 to 4 in the
appeal will have to be considered only on the basis of the
Rules. We also make it clear
that a reconsideration of the claims of the appellant and
respondents Nos. 2 to 4 will be necessary, only if the
appellant, is found, in the first instance, to be eligible
as per the Rules for being considered for promotion. His
eligibility is to be decided with reference to the date when
the Departmental promotion Committee met in September, 1966
for considering promotion. This direction becomes necessary
as we are upholding the validity of Rules 28B and 32. If
ultimately, respondents Nos. 2 to 4 are found eligible for
promotion under the rules, they will retain their rank on
the basis of promotion given to them on January 4, 1967. If
not, suitable alterations will have to be made both in this
order as well as in the order of January 22, 1970. Once
again we are emphasising that the fact that the respondents
Nos. 2 to 4 have been confirmed on January 22, 1970, is of
no consequence because if their original promotion on
January 4, 1967 is not valid, their confirmation on January
22, 1970 will not have any greater sanctity. Of course, if
on reconsideration they are found eligible for promotion,
their confirmation and rank given to them win stand.
The allegations of mala fides made by the appellant against
the State have been, in our opinion, rightly rejected by the
Division Bench. Mala fides were alleged against the State
in amending the Service Rules from time to time and the
delay in making promotions on the ground that they were all
done with a view to help the son-in-law of the Chief
Minister and the other officers who were relations of
persons in the good books of the Chief Minister. The same
allegations have been repeated in the two writ petitions
also. Those allegations have been denied by the State. For
the reasons given by the Division Bench, with which we
agree, we have no hesitation in rejecting the allegations of
mala fides made by the appellant in the appeal and in the
writ petitions.

In the appeal and the writ petitions we hold that rr. 28B
and 32 are valid and that the circular dated August 27, 1966
is struck down as illegal and invalid. In the writ
petitions there will be only a declaration that the circular
dated August 27, 1966 is invalid and that it is struck down.
In other respect both the writ petitions will stand
dismissed. There will be no order as to costs.
So far as the appeal is concerned there will be a further
order at subject to the observations contained in this
judgment a direction will issue to the first respondent, the
State to instruct the Departmental Promotion Committee to
review and reconsider the promotions already given to
respondents Nos. 2 to 4 in the appeal under the order dated
January 4, 1967 and
to decide their claims afresh only on the basis of the
Rules. If the appellant is found eligible for being
considered for promotion under the Rules, his claim also
will have to be considered along with that of the
respondents Nos. 2 to 4. No directions are necessary
regarding respondent No. 5 as he is already dead. Depending
on the fresh recommendations, any, made by the Departmental
Promotion Committee, the first respondent, will also make
any modifications that may be found necessary in the orders
dated January 4, 1967 and January 21, 1970. The modi-
fications, if any, will be confirmed only to the appellant
and the respondents Nos. 2 to 4 as the appellant is not
challenging the promotions given to other officers under the
said two orders. If ultimately respondents Nos. 2 to 4 are
found eligible for promotion and the appellant is not found
eligible, the rank given to those respondents will remain
the same as is now due to them as per the orders dated
January 4, 1967 and January 21, 1970. Otherwise, suitable
alterations will have to be made.

Pending the review and reconsideration, ordered as above,
and which must be done as expeditiously as possible, and
depending upon the result of the same, the promotion already
given to respondents Nos. 2 to 4 to the senior scale will
continue to be in force.

In the result the order and judgment of the Division Bench
of the High Court upholding the validity of the circular
dated August 27, 1966 and declining to interfere with the
order dated January 4, 1967 so far as the appellant and
respondents Nos. 2 to 4 are concerned are hereby set aside
and the appeal allowed to that extent.

Parties will bear their own costs throughout.
G. C.
Appeal allowed in part.