Per A. Narayana Pai, C.J.
1. The petitioners in these two cases, N. Sreenath and M. A. Somashekar, were directly recruited on May 22, 1962, as Probationary Assistant Directors of Industries and Commerce. After completion of their probation, a formal declaration of satisfactory completion of probation was also made and they were confirmed as Assistant Directors on 17th July, 1965.
2. Respondents 5, 6 and 7 in each of these writ petitions, A. Chinaware Urs, T. V. Appe Gowda and H. R. Ganganna, who were already in service in the department, were promoted to officiate as Assistant Directors of Industries and Commerce, - the first two on 24th October, 1959, and the third on 11th January, 1963.
3. The next promotional post above that of the Assistant Directors is the post of Deputy Director, the appointment to which is by promotion by selection from the cadre of Assistant Directors. In 1964 the State Government appointed a committee called the Departmental Promotions Committee, of which the 4th respondent Warier was a member, to examine the cases of persons in the cadre of Assistant Directors who were eligible for promotion to the next higher cadre of Deputy Directors. Although there were at that time only three clear vacancies and one or two anticipated vacancies the Committee appears to have made a list containing a larger number of persons than the vacancies then available.
4. Out of the persons so listed, three were promoted to the available vacancies only in 1966 and another person to a vacancy which arose sometime later.
5. Respondents 5, 6 and 7 were among the persons included in the said list. They were promoted as Deputy Directors on 18th November, 1967.
6. The petitioners complain that their cases for promotion to the said vacancies were not considered at all although they were, at the time the vacancies arose, eligible for being promoted as Deputy Directors.
7. That the only consideration of the cases of eligible persons for promotion was the one made by the Departmental Committee mentioned above in the year 1964, is admitted by the State Government and not disputed by any of the contesting respondents. That the vacancies which existed or were anticipated in the year 1964 when the Committee sat for selection could not be more than 4 or 5, is also indisputable.
8. On these facts, the case of the petitioners is that though they were not eligible for promotion in the year 1964 because they were then still probationers, they were undoubtedly eligible for consideration in respect of the vacancies which arose subsequent to their confirmation on July 17, 1965. They, therefore, contend that there was no good reason whatever why their cases were not considered at the time the three vacancies, to which respondents 5, 6 and 7 were promoted, arose.
9. Two answers made to this contention are : that there had already been prepared a list of eligible persons after a scrutiny of their cases by the Departmental Selection Committee; and that until those persons were provided for in the vacancies which existed at the time the Committee sat and arose subsequently, other persons may not claim the right of being considered for promotion in respect of any of those vacancies, and secondly, although the petitioners were formally confirmed in service on July 17, 1965, they have been 'deconfirmed' subsequently and that, therefore, they could not claim the right of being considered for promotion.
10. The second contention can be disposed of in the first instance. Whatever may be the legality of what is called the deconfirmation, on which we do not find it necessary to express an opinion in these cases, there is the indisputable fact that in the case of both the petitioners there had been a declaration by appropriate authorities of their having successfully completed the probation. The clear legal effect of that declaration is that they were entitled to be absorbed into permanent service of the State Government and that pending formal confirmation their service is regular service and is ordinarily described as 'officiating'. As already stated, all the respondents 5, 6 and 7 were promoted to the cadre of Assistant Directors under orders which expressly describe their promotions as officiating promotions. Hence, all these persons are persons who were officiating in permanent vacancies and who were in regular Government service. As between the petitioners on the one hand and respondents 5, 6 and 7 on the other, therefore, there can be no question of either of them contending that the others are not entitled to be considered for promotion on the ground that they were not confirmed in the lower cadre or were merely officiating in the said posts.
11. The first contention is, in our opinion, equally without force. In the case of direct recruitment, the rules generally make express provisions for the preparation of a list of suitable persons by the selecting authority and for the appointment of such persons by the appointing authority. It is because the selection authority is different from the appointing authority and selection is prescribed under the Constitution and the law for the purpose of testing suitability of persons for appointment to public service that the rules for recruitment generally, if not invariably, make such provisions as to cast on the appointing authority, the Government, the obligation of appointing only such persons as have been selected by the selecting authority as suitable for appointment. The mechanism of enforcing the obligation is the provision that the selecting authority should make a list of selected persons in the order of merit in their opinion and that the appointing authority should appoint the persons so selected in the order in which they are arranged by the selecting authority, to vacancies as and when they arise.
12. Apparently, it is this pattern that was sought to be observed by the Departmental Selection Committee in these cases and the Government appears to have proceeded on the footing that such is the correct position in law. But what was overlooked is that in the case of promotions the selecting authority and the promoting authority are identical and not different. The fact that the law permits the promoting authority to receive the assistance of an independent body or a Departmental Selection Committee does not mean that by appointing such a committee, the promoting authority can absolve itself of the obligation of applying its mind to the case of promotion of persons by selection. The rulings of this Court dealing with such a situation have made it perfectly clear that the ultimate application of mind to the selection must be by the promoting authority.
13. Another aspect of the matter is that whether the promotion be on seniority-cum-merit basis or by selection, it is impossible to promote a junior without considering the case of a senior. In the case of the first type of promotions, it is obvious that a senior must be considered first and that when he is found unfit, the case of the next junior may be considered. In the second category of promotions, the promoting authority must consider a sufficient number of persons in the lower cadre or a number, which, in relation to promotional vacancies to be filled, is reasonably sufficient, at the top of the lower cadre for consideration. They should take the number from persons at the top, because both according to well-known notions of merit in Government service and according to the express provisions of the Rule 4 of the Mysore Civil Services (General Recruitment) Rules, seniority is an element in the assessment of merit, and even in cases where promotion is by selection, due regard must be had for seniority also.
14. The right to have one's case considered for promotion arises or can be claimed by a Government servant only when a vacancy arises in the promotional cadre and he occupies a position of seniority or sufficient seniority in the lower cadre which obliges the Government to take his case also into consideration. Hence unless a vacancy actually arises or may be anticipated to arise within a period, not for longer than the period necessary for consideration and appointment, no question of considering anybody's case for promotion arises. If, therefore, a person's case for promotion is taken for consideration long before a vacancy arises the appointing authority is actually trying to confer upon him a right which he does not then possess. Conversely, if by such consideration it makes a list of persons to be promoted as in these cases, and by the time date for promotions arises another person gets or acquires eligibility for being considered, the preparation of the original list so as to exclude such other person from consideration would amount to depriving the said person of the Constitutional right which appertains to him as a Government servant occupying a particular position of seniority in relation to promotional vacancy.
15. Another aspect of the matter may also be considered. The selection involves or may involve the overlooking of some persons as unfit for promotion. If such overlooking is not with reference to an actual or reasonably anticipated vacancy, the rejection or overlooking may in fact amount to punishment within the meaning of Rule 8 of the Mysore Civil Services (Classification, Control and Appeal) Rules, because if by the preparation of a list of the type mentioned above the consideration of a person's case for promotion is postponed for the currency of the list, i.e., until the list is exhausted by promoting persons mentioned therein to vacancies as and when they arise, it would amount to actually postponing his promotion for the said indefinite period. In such an event, there can be no doubt whatever that the result is not different from the imposition of the punishment of postponement of promotion within the meaning of Rule 8 of the Mysore Civil Services (Classification, Control and Appeal) Rules, without holding an enquiry and without any allegation of misconduct against him even deserving of such punishment.
16. Considered from any point of view, therefore, it is essential from the point of view of the constitutional propriety and the protection of rights of Government servants, that the case for promotion should be considered in respect of or in relation to vacancies which actually exist at the time of consideration or may be expected to arise within a reasonably short period.
17. Applying these principles, there can be no doubt whatever on the admitted facts that the petitioners' Constitutional right of being considered for promotion in respect of three vacancies to which respondents 5, 6 and 7 were promoted on November 18, 1967, has been denied and that they are entitled to the issue of appropriate orders for the restoration and protection of that right.
18. It has been argued by Mr. Sridharan on behalf of respondents 5, 6 and 7 that before any such relief could be given, the petitioners should have impleaded at least one person called Rajanna whose name was entered in the list prepared by the Selection Committee in the year 1964 and who was promoted to a vacancy which arose after the petitioners were confirmed in service on July 17, 1965, because the same right which they claim in respect of the three vacancies to which respondents 5, 6 and 7 have been promoted, would arise in respect of the vacancy to which the said Rajanna has been promoted. Only half of this argument is correct, viz., that it was open to the petitioners to make the same grievance in respect of Rajanna's promotion as they now make in the case of promotion of respondents 5, 6 and 7. But, to say that Rajanna was a necessary party and that without his being impleaded as a party in these cases the petitioners cannot claim the necessary relief, is without substance. A party is a necessary party, only if he is likely to be aggrieved as the petitioner and the relief cannot, therefore, be granted without hearing such party. But in the present cases, by considering the petitioners' case in respect of the vacancies to which respondents 5, 6 and 7 were promoted on November 18, 1967, Rajanna, who had already been promoted, will not be affected. Hence, we reject the contention that Rajanna is a necessary party, without whose presence before Court the petitioners cannot be granted the relief now claimed by them.
19. We, therefore, issue a writ or order to respondent 1, the State Government of Mysore, directing the said respondent to consider or have considered by its appropriate officers the cases of the petitioners for promotion to the position of Deputy Directors on the date on which respondents 5, 6 and 7 were promoted and that if they are found fit for promotion, they be given all the benefits consequential thereon, including the financial benefits.
20. In both the cases, the parties will bear their own costs.