Rama Jois, J.
1. The petitioner, an Additional Director of Health and Family Welfare Services of the State Government, on deputation as Health Officer, Corporation of the City of Bangalore, has presented this Writ Petition, praying for quashing the appointment of Respondent 2 as the Director of Health and Family Welfare Services ('the Director' for short) and for the issue of a Writ of Mandamus directing the State Government to appoint him as the Director.
2. The Petition has come up for preliminary hearing after notice to the Respondents. By consent of the Counsel appearing for the parties, the Petition is taken up for final hearing.
3. The facts of the case, in brief, are as follows : The petitioner who was a Joint Director of Health and Family Welfare Services was promoted as Additional Director of Health and Family Services on 8-9-1982 (Annexure-B) in accordance with the Karnataka Directorate of Health and Family Welfare Services Recruitment Rules, 1965 ('the Rules' for short). The notification dated 9-12-1983, the ser-vices of the petitioner were placed at the disposal of the Housing and Urban Development Department for being posted as Health Officer of the Corporation of the City of Bangalore (Annexure-C). By notification dated 12-12-1983 (Annexure-D), the State Government in exercise of its power under sub-section (1) of Section 82 of the Karnataka Municipal Corporations Act, 1976, appointed the petitioner as Health Officer of the Corporation of the City of Bangalore. Pursuant to the said order, the petitioner took charge as Health Officer of the Corporation and iscontinuing there.
4. While he was continuing on deputation in the services of the Corporation, he made a representation dated 15-4-1984 (Annexure-E) to the State Government. In thatrepresentation, he invited the attention of the Government to the rules and submitted that the post of the Director was required to be filled up by transfer of the Additional Director and as the then Director Dr. V. Narayanaswamy was due to retire on 1-5-1984, he shouldbe appointed as the Director on the retirement of Dr. V. Narayanaswamy. The petitioner also pointed out to the State Government that his posting as Health Officer of the Corporation was not with his con-sent and therefore his deputation should not result in the passing over of his claim for appointment as Director. A further representation for the same purpose was made by the petitioner to the Government on 7-5-1984 (Annexure-F). By order dated 7-5-1984 itself (Annexure-H) Respondent-2, who was one of the Joint Directors in the department was promoted and appointed as the Director. Aggrieved by the denial of appointment as Director to the petitioner and the appointment of Respondent-2, as the Director, the petitioner has presented this Writ Petition.
5. The plea of the petitioner is as follows : The relevant portion of the rules which prescribes the method ofappointment to the posts of Director and Additional Director reads:
'1. Director of Health and Family Welfare Service.
By transfer of Additional Director of Health and FW Services; if such Additional Director is not available then by promotion by selection form any of the cadres of Joint Directors.
IA. Additional Director
By promotion by selection from any of the cadres of 'Joint Directors'.'
In accordance with the above provision, the State Government should have appointed the petitioner, who was the Additional Director as the Director. The denial of appointment to the petitioner and the appointment is violative of the Rules as also Articles 14 and 16(1) of the Constitution.
6. The plea of the respondent is as follows : According to Rule 3 of the General Recruitment Rules, the Head of the Department or the Additional Head of the Department, who is in the pay-scale as that of the Head of theDepartment should be filled up by selection by promotion. That Rule reads :
'3. METHOD OF RECRUITMENT
(1) XX XX XX XX(2) Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post:-
(a) the promotion to the post of a Head of Department or the post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of the Department concerned, shall be selection ; and
(b) the promotion to all other posts shall be on the basis of seniority cummerit.'
In view of the above rule, it was competent for the State Government to fill up the post of Director by promotion by selection and in doing so the State Government had considered the case of the petitioner. Therefore, the petitioner is not entitled to the relief sought for. The petition is also resisted on the ground of delay and laches on the part of the petitioner in presenting the petition.
7. As far as the plea of delay and laches on the part of the petitioner in presenting the petition is concerned, as stated earlier, even before the Government appointed the 2nd respondent as the Director the petitioner had made representations on 15-4-1984 vide Annexure-F and again on 7-5-1984 vide Annexure-F, inviting the attention of the Government to the provisions of the recruitment rule which required the Government to appoint the Additional Director as the Director. Inspite of the said representations and inspite of the mandate of the rules, the State Government chose to appoint the 2nd respondent as the Director passing over the claim of the petitioner. Therefore it cannot be said that the petitioner had slept over his right. As regard the presentation of the petition on 5-10-1984 i.e., about five months after the appointment of the petitioner, at paragraph 12 of the petition has explained that as at that point of time the age of superannuation was 55 years and the petitioner was due to retire in October 1984, he did not choose to present the petition. However when in August 1984 the age of superannuation was raised from 55 years to 58 years and consequently the petitioner became entitled to continue in service for another three years after October 1984, and has to serve in the department he presented this Writ Petition. Having regard to the facts and circumstances, I do not find any substance in the plea that there has been any such delay and laches in presenting the Writ Petition as would call for its dismissal in limine.
8. Coming to the merits of the case, the rules are clear and unambiguous. They give no choice to the appointing authority. The post of Director has to befilled up by appointment by transfer of the Additional Director when available. The petitioner was the only Additional Director in the department. By his deputation to the Corporation, he did Dot cease to be the Additional Director of the Department and it could not also be said that he was not available for being appointed as the Director. As pointed out by the petitioner in his representation addressed to the Government on 15-4-1984, it was not at his request he was transferred to the Corporation. Even his willingness was not sought for, for posting him as Health Officer of the Corporation obviously because the willingness is unnecessary in view of the 2nd proviso to Rule 419 of the Karnataka Civil Services Rules for posting an officer of the State Government to any local authority. In other words by that Rule the posting of an officer of the Government to a local authority is treated as equal to a transfer ofGovernment servant from one post to another in any of the departments of the State Government. Further just because a person is on deputation, his right for appointment to a higher post cannot be denied. The post of Director is that of the Head of the Department and therefore a post with higher responsibility and highest status in the department though the pay-scale of the post is equal to that of Additional Director. Therefore, the denial of theappointment to the petitioner was not only in violation of the Rules but also in violation of the right to equality and equal opportunity in matters relating to employment guaranteed under Articles 14 and 16(1) of the Constitution.
9. Now coming to Rule 3 of the General Recruitment Rules on which the Learned High Court Government Pleader relied, it should be pointed out that all that the above rule provides is that promotion to the post of a Head of the Department or to the post of the Additional Head of the Department, if it is in the same pay-scale, should be by selection notwithstanding anything contained in the special rules of recruitment. It moans that aven if under the Special Rules of Recruitment the afore-said posts are required to be filled up by promotion on seniority-cum-merit basis, still the posts are required to be filled up only by selection. In other words the rule applies to the making of promotions. That rule has no application to this case as the post of Director, i.e., the Head of the Department, when there is an Additional Director, i.e., Additional Head of the Department, is required to be filled up by transfer and not by promotion. It is only when there is no Additional Director, Rule 3 would apply. Even that is rendered unnecessary as the rules which are the special rules for the department were amended on 4-12-1982 so as to bring them in conformity with Rule 3(2) of the General Recruitment Rules. The amended rules require that the post of the Head of the Department should be filled up by promotion by selection from the cadre of Joint Directors, with this exception, namely, when there is an Additional Director available and the post of Director becomes vacant, the former has to be transferred and appointed as Director. Therefore, the denial of appointment as Director to the petitioner who was the Additional Director available and filling up of the post by promotion of Joint Director, is contrary to law.
10. Learned High Court Government Pleader also produced the file which culminated in the appointment of the 2nd Respondent as the Director, The records disclose that the eligibility, the suitability and the right of thepetitioner for appointment as Director was accepted. The only ground on which the appointment was denied to thepetitioner was that he had only five months' service whereas the 2nd Respondent had about two years of service. The question that arises for consideration is whether the above criteria could have been applied by the State Government to pass-over the claim of the petitioner. The answer must be in the negative, for two reasons :
(i) The recruitment rules are specific and they require the State Government to appoint the Additional Director as Director.
(ii) Assuming that the balance of service available to a civil servant eligible and suitable to be appointed as the Head of theDepartment might constitute a rational basis, it must be a general rule applicable and made known to all concerned before its application.
No such criteria could be evolved on the file to reject the claim of an individual or prefer the claim of another as has been done in this case, as such an action would be arbitrary and discriminatory resulting in the infraction of the right to equality before law and equal opportunity in matters relating to employment under the State of the person who is denied the opportunity by applying such criteria. This point is concluded by an earlier judgment of this Court in B. Virupakshappa -v.- State of Mysore, ILR (Karnataka) 1979 (1) 92.
11. The last point for consideration is whether a direction to the Government to appoint him as Director should be issued or only a direction to the Government to consider his case for appointment as Director should be issued. As pointed out earlier, once a person is promoted by selection from the cadre of Joint Directors to that of Additional Director, which is in the same pay-scale as that of the Director, there is no question of considering his case for promotion. The moment the post of Director become vacant and the Government proceeds to fill it up, the Additional Director has to be appointed as Director, unless there is any valid basis for denying the appointment.Further, the only ground on which the appointment was denied to the petitioner was that he had only five months of service, and as pointed out earlier it is untenable. In this situation a direction has to be issued to the Government to appoint the petitioner as Director. (See : District Registrar, Palghat -v.- M. B. Koyyakutty, AIR 1979 SC 1060 @ 1066, Para 30.)
12. In the result, I make the following order:-
(a) The Writ Petition is allowed.
(b) The order dated 7-5-1984 (Annexure-H) appointing the 2nd Respondent as Director of Health and Family Welfare Services is set aside.
(c) A Writ of Mandamus shall issue to the 1st Respondent to appoint the petitioner as Director of Health and Family Welfare Services in accordance with the provisions of the Karnataka Health and Family Welfare Services Recruitment Rules, 1965.
(d) No costs.