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TMI Blog1980 (3) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... on. A Central Health Service became a necessity for effectively implementing the scheme. With a view to constituting the Service, Central Health Service Rules 1963 ('1963 Rules' for short), were framed and brought into operation on May 15, 1963. The Rules envisaged categorisation of personnel manning the Service into five different categories, to wit, category 'A' supertime scale ₹ 1600-2000, category 'B' supertime scale ₹ 1300-1600, category 'C' senior scale ₹ 675-1300, category 'D' junior scale ₹ 425-950 and category 'E' class II scale ₹ 325-800. On account of various imponderables the Service could not be constituted and 1963 Rules were amended by Central Health Service (Amendment) Rules, 1966, ('1966 Rules' for short). Initial constitution of Service was to be on and from September, 9, 1966. 1966 Rules contemplated again the division of Service into four categories, namely, category I comprising supertime grade I ₹ 1800-2250; supertime grade II ₹ 1300-1800; category II consists of Specialists' grade ₹ 600-1300; category III includes General Duty Officers grade I ₹ 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he vacancies in Supertime Grade II shall be filled by promotion of: (i) General Duty officers, Grade I, with not less than ten years of service in that category; or (ii) Specialists' Grade officers with not less than eight years of service in that category; in the ratio of 2:3 on the recommendation of a Departmental Promotion Committee on the basis of merit and seniority of the officer's concerned; Provided that no person shall be eligible for appointment to any such post unless he possesses the qualifications and experience requisite for appointment to such post. Provided that where the case of an officer appointed to any post in the grade of General Duty Officer, Grade I or the Specialists' Grade, as the case may be, is considered for the purposes of promotion to any posts in Supertime Grade II under this sub-rule, the cases of all persons senior to such officer in the grades of General Duty Officer, Grade I or Specialists' Grade, as the case may be, shall also be considered, notwithstanding that they may not have rendered 10 years or 8 years of service, respectively, in those grades . To appreciate the contention of the appellant as to how he cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine three different limbs of the submission separately. Rule 5 of 1966 Rules provides for authorised strength of the Service. The authorised strength of the various categories of the service on the date of commencement of 1966 Rules shall be as specified in the first schedule. Part A of the first schedule deals with supertime grade I and Part B deals with supertime grade II. Part C deals with Specialists' grade. The vertical promotional channel is from specialists' grade and General Duty Officers Grade I to supertime grade II and from thereon to supertime grade I. On the date of initial constitution of Service there were 275 permanent and 102 temporary, in all 377 posts in specialists' grade. Out of this strength of posts in specialists' grade, 28 posts were upgraded to supertime grade II, 19 being classified as unspecified specialists' posts and 9 unspecified posts. To that extent the permanent strength of posts in specialists' grade was reduced by 28 so as to leave it at 247. There is no dispute that 19 unspecified Specialists' posts and 9 unspecified posts were upgraded to supertime grade II. The controversy is how these posts were to be filled in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belonging to different specialities albeit in the same grade is drawn up for purposes of promotion it might lead to a startling result because the need may be of a promotional post in a speciality and the man at top of the seniority list may not belong to that speciality but may belong to a different speciality and if any promotion was to be given to him to a post in a speciality for which he is neither qualified nor eligible it would be impossible to give vertical promotions by referring to such general seniority list. If the promotion is to a post generally called administrative post in a hospital a general seniority list including experts belonging to different specialities may be helpful but when promotions are to be given to posts in different specialities a general seniority list is not only unhelpful but may really impede the process of promotion. Again, demands of different specialities for additional strength may differ from hospital to hospital, from area to area and even from time to time. In order to meet such unforeseen eventualities the rules provide for an addition to the strength of supertime grade II by keeping 19 posts designated as unspecified Specialists' g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egree in Orthopaedics would not result in any classification without reference to the objectives sought to be achieved and this would not result in any discrimination nor would it be violative of Article 16. In passing a contention of the appellant that all 28 posts which were deducted from the strength of permanent posts in Specialists' grade and added to supertime grade II must on that account alone be filled in by promotion from those belonging to the specialists' grade only may be examined. There is no merit in this contention. If there was any substance in this contention there was no reason to provide for two different designations and divide the 28 posts in two different nomenclatures. 28 posts are made up of 19 posts designated as unspecified Specialists' posts and 9 unspecified posts. Undoubtedly 19 posts which were designated as unspecified Specialists' post must be filled in from amongst those belonging to the Specialists' grade but that itself also shows that the remaining 9 unspecified posts can be filled in from amongst those who may be promoted from 'General Duty Officers grade- I because General Duty Officers grade-I are also promotable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ists' grade officers as the converted post was unspecified Specialists' post. But to say that it can be filled in only by promotion is to ignore the mandate of statutory rule 8(3) which provides for filling in posts in supertime grade II by either promotion or nomination in the ratio therein prescribed. Once there is a post in supertime grade II which is to be filled in subsequent to the initial constitution of the Service, rule 8 (3) will be attracted in all its rigour. And it should not be overlooked that rule 8 (3) provides for filling in of posts in supertime grade II by promotion as well as by direct recruitment in the ratio of 1:1. On a true interpretation of the 1966 Rules in general and rule 8 (3) in particular it could not be, gainsaid that whenever an unspecified Specialists' post is converted into a specified post and assigned to a speciality it can be filled in either by promotion or by direct recruitment as the situation warrants according to the rule and as determined by the quota rule. But it was very strenuously contended that the Central Government in implementing the rule has understood and in fact implemented the rule to this effect that whenever an u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unspecified Specialists' posts could only be filled in by promotion and such an interpretation or stand would run counter to the express provision contained in rule 8(3) which is statutory. Even if such be the stand of the Central Government it will have to be negatived and was in fact negatived in the case of Dr. B. S. Jain. Incidentally it would be incongruous to hold that when a post is created in a certain grade, category or cadre and it is to be filled in, some one who is already in that grade, category or cadre cannot be transferred to that post and the post so vacated by him can be filled in, in the manner prescribed. Even if there was some substance, though there is none, in the contention on behalf of the appellant that whenever unspecified Specialists' post is converted into a specified post it can only be filled in by promotion yet when some one who is already in that grade is transferred to the newly created post and the post vacated by such transferred employee is offered by way of promotion which in fact was done in this case there is any violation of the rule. As pointed out earlier, when a post is created it is an addition to the strength of that particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a higher post by way of promotion, his refusal to accept the same would enable the employer, the Central Government in this case, to fill in the post by offering it to a junior to the Government servant refusing to accept the post and in so acting there will be no violation of Art. 16. Further, the Government servant who refuses to accept the promotional post offered to him for his own reasons cannot then be heard to complain that he must be given promotional post from the date on which the avenue for promotion opened to him. Appellant being conscious of this position tried to circumvent it by saying that the Post at Simla offered to him by way of promotion in super time grade II was a teaching post for which he was not qualified and, therefore, his refusal to accept the same cannot come in his way from claiming promotion from the very date on which he refused to accept the promotion to a post for which he was not qualified. Appellant went so far as to suggest that the Government action in offering him the post at Simla was actuated by malice in that while making a show of offering him a promotional post it so deliberately acted as would impel the appellant to refuse the same. Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this want of qualification impelling refusal to accept promotion appears to be an afterthought on his part. When the promotional post was offered to him as per letter dated December 7, 1970, appellant did not reply by saying that he was not qualified for the post. In his reply dated December 9, 1970, to the offer made by the Government appellant pointed out that he was involved in some litigation with regard to his house and that his stand for eviction would be weakened by his transfer. He then proceeded to point out that he was suffering from chronic bronchitis and that the climate at Simla may not suit him. He also pointed out the adverse effect of climate on the health of his wife. He then proceeded to point out that apart from his personal problems he was engaged in the Safdarjang Hospital for teaching of post-graduate students and, therefore, he requested the Government the post of Chief Ophthalmologist-cum-Associate Professor of Ophthalmology may kindly be bestowed on me at Safdarjang Hospital where there is essential need for such a post . Could this be the stand of a person offered a promotional post honestly believing that he was not qualified for the same? The post offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he door was bolted by the appellant himself declining the offer for reasons other than his qualification which he may have found compelling. In this background it is difficult to accept the submission of the appellant that the offer made by the Government was an eye wash or a make-believe and, therefore, his refusal to accept the offer of promotion would not postpone his promotion. Incidentally it would be advantageous to take note of the fact at this stage that the appellant was promoted to supertime grade II on July 17, 1978 and between February 1971 when he declined to accept promotion and July 1978 when he was in fact promoted, no one junior to him in the speciality to which he belongs was ever promoted overriding his claim to supertime grade II. Therefore, if since his refusal to accept promotion at Simla appellant was never superseded by any one junior to him in his speciality it is difficult to entertain the contention that in refusing promotion to him when some posts were converted from unspecified Specialists' posts into different specialities and were filled in by those who were qualified to be promoted in the respective speciality in which the post was created he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if he is assigned a deemed date of promotion somewhere in February 1971 yet there are number of persons above him in supertime grade II who were promoted between 1966 and 1971 and appellant has not even a remote chance of promotion. Appellant at that stage reacted by saying that even if it be true, yet the promotions of respondents 4 to 24 ought to be quashed because when he with respondents 4 to 24 and others belonging to supertime grade II attend a meeting convened to discuss some administrative matter or for holding charge of higher post temporarily vacant they claim seniority over him and his dignity is impaired. This calls for no comment save and except saying that the approach appears to be more emotional rather than realistic. However, the contention may be examined on merit. Promotion of respondents 4 to 24 was questioned on the ground that each of them was ineligible for promotion to supertime grade II on the date on which each of them was promoted in view of the provision contained in rule 8(3). Rule 8(3) has been extracted herein before. The contention is that since the initial constitution of service on September 9, 1966, any future promotion to supertime grade II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... includes cate- gories 'A' and 'B' under 1963 Rules. Category 'C' has been designated as Specialists' grade, i.e. category II under the 1966 Rules. Category 'D' is equated with General Duty Officers grade I styled category III and category 'E' is equated with General Duty officers grade II, i.e. category IV. Expression 'service in the category' has to be understood in this historical background. It is difficult to entertain the contention that the past service of Specialists' category 'C' officers got wholly wiped out merely because the nomenclature of category 'C' Specialists officers was changed to Specialists' grade officers replacing the expression 'category C' by category II. And that would apply mutatis mutandis to General Duty Officers grade I and grade II. The change in the definition of the expression 'category' appears to be instructive in that by the change service in the post is emphasised and the question of the grade of pay is relegated into background. And this change appears to be with a purpose inasmuch as when certain qualifying service is prescribed for being eligible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 9, 1966, and the day thereafter by both the categories in the respective posts. In this background the High Court was right in holding that the word 'category' used in rule 8(3)(a) has to be understood to mean the post included in that category and consequently service in that category would mean service in a post included in that category. The appellant contended that this construction would run counter to the posting of former categories 'D' and 'E' officers on probation on September 9, 1966, in specialists' grade and General Duty Officers grade I. In this connection it must be recalled that on initial constitution of Service some persons who were in the category of General Duty Officers were absorbed and appointed in Specialists' grade and vice versa was true of some persons. It is equally true that Officers belonging to categories 'D' and E' were considered in a category lower to category 'C'. It is equally possible, therefore, that on September 9, 1966, i.e. the date of initial constitution of Service some of the officers belonging to categories 'D' and 'E' who were absorbed in categories II and III re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed. The need for the post of the requirements of the hospital, or the need for an ad hoc or additional appointment is a matter which the Government is competent to decide and in the absence of requisite material the Court cannot interpose its own decision on the necessity of creation or abolition of posts. Whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity. The Government is a better Judge of the interests of the general public for whose service the hospitals are set up. And whether a hospital catering to the needs of general public providing medical relief in different specialities has need for a particular post in a particular speciality would be better judged by the Government running the hospital. If Government is a better judge it must have the power to create or abolish the posts depending upon the needs of the hospital and the requirements of general public. Creation and abolition of posts is a matter of Government policy and every sovereign Government has this power in the interest and necessity of internal administration. The creation or abolition of post is dictated by policy decision, exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the invalidation of their promotion. It was incidentally urged that promotions given to respondents 9,12,13 and 15 must be set aside because they belonged to former category 'D' and were given promotions against 19 unspecified posts in contravention of the affidavit of the Government. As stated earlier, there were some specialists in category 'D' also. At the time of initial constitution of service those who qualified for being appointed General Duty Officers from category 'D' were absorbed in category III and those who were eligible for being absorbed in Specialists' grade were so absorbed. After absorption they belonged to the respective category. Thereafter on conversion of posts from the pool of 19 unspecified specialists' posts they were promoted as being found qualified for the same and for the post to which each one of them was promoted appellant was not qualified and, therefore, the contention that the promotion of the aforementioned four respondents should be set aside has no merit in it. Having examined the challenge to the promotion of respondents 4 to 24 on merits, it must be made clear that the appellant is least qualified to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o direct the Government by a mandamus to consider eligibility of the appellant for the post of Director of Health Services, Manipur. There is no material before us whether the appellant was qualified for the post. If he was eligible it would be for the Government to consider how it should deal with the post. We are, however, surprised that the appellant who was not prepared to go to Simla in February 1971 would have been willing to go to Manipur in September 1971. In our opinion it would be giving him an unfair advantage now by giving a technical benefit of a situation whereby promotion of Dr. Sen has been invalidated by the High Court. Neither Dr. Sen nor the Government have preferred appeal against the judgment by which the promotions of Dr. P.C. Sen and Dr. Jasbir Kaur were invalidated by the High Court. But the matter must remain at that stage and there is no justification for giving a direction that the appellant should be considered for the post which is deemed to have fallen vacant in September 1971 on the invalidation of promotion of Dr. P.C. Sen. In this connection it may be pointed out that some time after the hearing was over in this Court learned counsel for the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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