Hardayal Hardy, J.
(1) This appeal under clause 10 of the Letters Patent is directed against the judgment of a learned single Judge of this Court and raises the question of interpretation of Rules 7 and 7-A of the Central Health Service Rules, 1963 as amended by the Central Health Service (Amendment) Rules, 1966.
(2) The appellant is Union of India while the only contesting respondent is Dr. Bhim Singh Jain (Respondent No. 1 herein) who was petitioner in Civil Writ Petition No. 60 of 1969 decided in his favor by the learned single Judge vide his judgment dated October 3, 1969. Dr. Bhim Singh is admittedly a highly qualified ophthalmic surgeon who despite his humble start as L.M.S. (Punjab), qualified himself later, as L.R.C.P.S. (Edin.), L.R.F.P. & S. (Glasgow), F.R.C.S. (Edin.), M.R.C.P. (Edin.) and D.O.M.S. (Punjab). He returned to India on the completion of his studies abroad in the year 1957 and was selected soon after his arrival, by the Union Public Service Com- mission for appointment as Staff Surgeon, Eye Specialist, Willingdon Hospital, New Delhi, in the pay scale of Rs. 600-1150 which was revised by the Pay Commission 1959, to Rs. 700-1250. He joined the above post on 26-8-1957.
(3) In 1963 the new Health Service called the Central Health Service was constituted and rules called the Central Health Service Rules, were framed by the President under the Proviso to Article 309 of the Constitution. They will hereafter be described as 1963 Rules. Under these rules, the posts in the Service were divided into 5 categories, A to E, having different pay scales. Respondent No. 1 was in category C in the pay scale of 675-1300. In accordance with these rules, a Selection Committee prepared lists mentioning the order of preference for various categories. Rule 4 enjoined that the Service shall be divided into two classes, viz., Class I and Class If, comprising four scales of pay as shown below:-
1. Supertime Scales A (i) D.G.M.S. Rs. 2750.00 (fixed). (ii) Addl. D.G.M.S. Rs. 2250.00 (fixed). (iii) Other posts Rs. 1600-100-2000. B Rs. 1300-60-1600 1300-60-1600 . 2. Senior Scale C Rs. 675-1300. 3. Junior Scale D Rs. 425-960. 4. Class Ii Scale E Rs. 325-800.
(4) Respondeent No. 1 was placed at Seriall No. 39 between Dr. Madan Mohan Prasad Mahajan (serial No. 38) and Dr. Pulan Behari Majurndar (serial No. 40) in the pay scale of Rs. 675-1300.
(5) In 1965 he was appointed Professor of Ophthalmology in the Assam Medical College, Dibrugarh on the recommendation of Government of India, on a minimum salary of Rs. 1,500.00p.m. in the scale of Rs. 1250-1500 and remained on deputation there from September 1965 to October 1967 while maintaining his lien on his post under the Central Health Service. The case of respondent No. 1 is and the fact is not disputed on behalf of the appellant, that there was a clamour by the medical specialists for better opportunities for promotion and for better scales of pay for those engaged in duties of a general nature. As a result, the 1963 Rules were amended in 1966 and the Service was thoroughly re-organized. One of the material changes introduced by the Amended Rules which will hereafter be described as 1966 Rules, was in Rule 4, which deals with classification, categories and scales of pay of the various posts in the Service. Instead of 5 categories A to E, as under the 1963 Rules, the Service was divided into 4 categories, each category consisting of the grades specified in column 2 of the table below. The scales of pay and classification of each grade was to be as specified in the corresponding entries in columns 3 and 4 of the said table. Lpa No. 25 of 69
COLUMNS 3 and 4 of the said table
Table S Catagories Scale of pay Clasification. 1 (a) Supertime Grade I Class I (i) Director General of Health Services Rs. 2,750.00 Do (ii) Additional Director General of Health Services Rs.2,250.00 Do (iii) Other posts Rs. 1,800-100- 2000-125-2250 Do (b)Supertime Grade Ii Rs.300-60-1600-100-1800 Do 2 Specialists'Grade Rs.600-40-1000-EB-50-1300 Do 3 General Duty Officers, Grade I Rs. 450-30-660-EB-40- Do 1100-50-1250 4 General Duty Officers. Grade Ii : (i) (Graduate Officers) .. .. Rs. 350-25-500-30-590- class Ii 830-35-900 (ii) (Licentiate Officers) .. .. Rs. 350-15-38O-20-500- Do EB-20-600
(6) Category 4 was further amended later, by Amendment No F 2 (ii)-1/65-CHS 1. dated 25-11-1969 which read as under :- In the Central Health Service Rules, 1963 : in the Table below rule 4. for Seriall No 4. the following Seriall No shall be substituted, namely :- 1 2-3 4 4 General Duty Officers Grade Ii . Rs 350-25-500-30-590- Class Ii _____________________________ EB-30-830-35-900 (b) the brickets and words '(Graduate Officers)' wherever they occur in the rules and the Schedules, shall be omitted.'
(7) The 1969 amendment does not concern us in any way and has been referred to only with the object of giving a complete picture of Rule 4 as it stands today.
(8) Rule 5 relates to the authorized strength of the various categories of the Service on the date of commencement of the 1966 Rules. The only thing to notice about this rule is with regard to the creation of 28 additional posts (10 unspecified posts for specialists and 9 unspecified posts for general duty officers) which were upgraded to supertime Grade II. The rule further provides that after the commencement of the rules, the authorized strength of the various categories shall be such as may be determined, from time to time, by the Central Government. Rule 6 empowers the Central Government to include or exclude posts in the Service. It is Rule 7 and the rule that following it viz., Rule 7-A which primarily concern us in this case. Rule 7 has remained unaltered, but Rule 7-A has undergone certain amendments on 20-3-1967 and 8-9-1967. Those amendments are. however, of no relevance to the question arising for decision in this case nor arc the conditions of eligibility in respect of various grades of service such as to make it necessary to reproduce the entire Rule 7-A for the purpose of construing the same. It is also not necessary to reproduce Rule 7 as the real focus of controversy in this case is Rule 7-A. The relevant portions of the said rule run as under :- '7A. Appointment of departmental candidates :-
(1)As soon as may be after the commencement of the Central Health Service (Amendment) Rules, 1966-
(A)every departmental candidate who was appointed immediately before such commencement to any post in category A or Category B of the Service or in any equivalent post, shall be appointed to the corresponding Supertime Grade I or Supertime Grade Ii of the Service;
(B)every departmental candidate who was appointed immediately before such commencement, to any post in any category (other than Category A or Category B), or in any other post. shall be appointed to the appropriate category after selection, made on the recommendation of a Selection Committee constituted in accordance with the provision? of sub-rule ( 1 ) of rule 7, on the basis of his experience and the conditions of eligibility as specified below.'
'(2)Vacancies in each categorv shall be filled by the departmental candidates for filling a vacancy, such vacancy appointment of departmental candidates selected under subrule (1) and in the event of the non-availability of suitable may be filled by direct recruitment through the Commissior.
Rule 8 deals with filling of future vacancies in the Service and only a passing reference will have to be made to it in due course. It is common ground that in accordance with Rule 7 which deals with initial appointments to the Service, the Central Government constituted with the concurrence of the Union Public Service Commission (hereafter referred to as the Commission) three Selection Committees for screening departmental candidates for the purpose of appointing them to the new categories of the Service as envisaged in sub-rule (1). One Committee was to deal with selection of officers for appointment to Supertime Grades I and II. The second was to deal with officers in the Specialists Grade while the third was to concern itself with General Duty Officers Grades I and II. All the three Committees had a common President who was a member of the Commission.
(9) On 26th September, 1966, the Ministry of Health and Family Planning sent to the Commission the lists of officers eligible for appointment to Supertime Grades I and Ii and Specialists Grade for consideration by the Selection Committees. On 17-1-1967 up-to-date lists of such officers were sent as desired by the Commission. The name of respondent No. 1 was included in those lists for selection to the appropriate category. The Selection Committees held numerous sittings and finally submitted their reports to the Commission which in turn forwarded its recommendations to the Central Government in terms of sub-rule (2) which reads :-
'ONreceipt of the Committee's Report, the Commission shall forward its recommendations to the Government of India and such recommendations may include a recommendation that a person considered suitable for appointment to a category may, if sufficient number of vacancies are not available in that category, be appointed to a lower category.'
(10) While making its recommendations the Commission placed asterisk mark? against the names of officers whose inclusion was subject to their being found fulfillling the conditions of eligibility. Government accepted the recommendations of the Commission and issued on March 21, 1967, the following memorandum as a preclude to appropriate notification being issued in due course :-
'INpursuance of the provision of rule 7, read with rule 7A, of the C.H.S. Rules, 1963, the Government of India have selected the departmental candidates for appointment to the new categories of the Central Health Service. The names of the officers who have been approved for appointment to the various categories of the Service are given in lists I to Vii attached to this memorandum.
2.Those of the officers included in these lists who were recruited on probation to posts included in a particular category, but have not yet completed their probation, will be. regularly appointed to that category only on satisfactory completion of the probation. All the officers selected for appointment to Supertime Grade I and Supertime Grade Ii under rule 7A(2) (List Ii and List IV) will be appointed to these grades on probation as required under rule 9 of the C.H.S. Rules, 1963, similarly all the officers of the former category 'D' and former category 'E' selected for appointment to the Specialists' Grade or General Duty Officers' Grade I will be appointed on probation to the Specialists' Grade or General Duty Officers' Grade I, as the case may be. The officers will be appointed according to their position in the panel to permanent and temporary vacancies.
3.List VIII-A contains the names of those officers whose cases have not yet been cleared for appointment to the new categories of the Service with reference to the conditions of eligibility laid down in Rule 7-A(1) of the C.H.S. Rules, .1963. List VIII-B contains names of officers whose cases have been kept pending for consideration later on. Necessary steps are being taken to decide these cases as soon as possible. The names of the officers who are finally approved for appointment to the new categories will be ineluded in the appropriate lists at appropriate places.
4.List Ix contains the names of officers who have not been considered fit for appointment to the Central Health Service.'
(11) It appears that, the name of Respondent No. 1 was included along with several others in List VIII-A at Seriall No. 4 between the names of Dr. (Smt.) Achy Moses and Dr. Jagdish Chandra Suri who were placed at Seriall Nos. 3 and 5 respectively. This list contained the names of those officers whose cases had not yet been cleared for appointment to the new categories of the Service with reference to the conditions of eligibility laid down in Rule 7-A(1) of the 1966 Rules. Lists I to Iv contained the names of all the officers who were selected for appointment to Supertime Grade I and Supertime Grade Ii under Rule 7-A(2). The name of Respondent No. 1 was not included in either of these lists.
(12) On 27-4-1967 the Commission sent another letter to the Government asking for clarification in respect of certain officers including Respondent No. 1 whose names had been placed by the Government in List VIII-A. The following portion of the letter is of importance. In this case we are mainly concerned with Dr. (Smt.) Achy Moses and Dr. Jagdish Chandra Suri and Respondent No. 1 as it is the inclusion of the two and the exclusion of Respondent No. 1 in the final list of officers appointed to Supertime Grade Ii that has led to a great deal of argument in this case. The letter reads :-
'3.It is observed that the post graduate qualifications possessed by the following officers are not included in Part 'A' or Part 'B' of Annexure Ii to the Second Schedule of the aforesaid Rules. These officers would appear to be eligible to be considered for appointment to the Specialist Grade at its initial constitution only if the post graduate qualifications possessed by them are included in Part 'A' or Part 'B' of Annexure Ii vide the Note below Annexure II. 1. Dr. (Smt.) Achy Moses 2. Dr. Jagdish Chandra Suri 3. Dr. Kunal Saha 4. Dr. Sudhir Chandra Chatterjee 5. Dr. Kali Bhushan Dutta 6. Dr. Kidareshwar Choudhury 7. Dr. (Smt.) Annamma Varghese 8. Dr. (Smt.) Kunti Prakash 9. Dr. Woomesh Chandra Deb 10. Dr. Hardyal Singh The position may kindly be clarified.'
They do not appear to possess a recog- '5. (i) Dr. Bhim Singh Jain nized medical qualifi (ii) Dr. Sharnagat Singh Khandpur cation included in the (iii) Dr. Harbans Lal Dhal First or Second Schedule or Part Ii of the Third Schedule
(OTHERthan Licentiate qualification) to the Indian Medical Council Act, 1956. They would not thereforee appear to be eligible to be considered for appointment to the Specialist Grade at its initial constituiton.
THEposition may kindly be clarified.'
(13) To this letter the Government sent the following reply on 2nd May, 1967 :-
'1.Dr. Suit. A. Moses : She possesses the post-graduate qualification of Diploma in Obstetrics and Gynaecology from the Royal College of Obstetricians and Gynaecologists. London. This qualification is equivalent to D.G.O. from the Indian Universities. She is. thus, eligible for consideratior for appointment to the Specialists Grade.
2.Dr. Jugdish Chandra Suri : He possesses the post-firaduate qualifications of M.Sc. (Microbiology) from the University of Melbourne. The term Microbiology includes Pathology. Bacteriology and other like subjects. He possesses about 22 years' experience in the field of Pathology/Bacteriology having worked as Demonstrator in Pathology/Bacteriology, Clinical Pathologist etc. This post-graduate qualification, thereforee, is treated as equivalent to M.Sc. (Path. & Bact.) from the Indian Universities. Dr. J. C. Suri thus fulfills the conditions for eligibility for inclusion in the Specialists Grade, Para 5 of your letter.
(14) DRS. Bhim Singh Jain, Sharangat Singh Khandpur and Harbans Lal Dhal possess the basic qualification of F.Sc.. L.M.S. (Punjab). The qualification of L.M.S. (Punjab) is included in the First Schedule to the I.M.C. Act, 1956. and is treated as equivalent to M.B.B.S, if obtained after doing F.Sc. They, thereforee, duly possess the basic recognised medical qualification included in the First Schedule to the I.M.C. Act. 1956. They possess the requisite post-graduate qualifications also. Thus, they fulfill the conditions of eligibility for inclusion in the Specialists Grade.'
(15) In September, 1967, the Commission made its final recommendations in the light of the clarification/information furnished by the Ministry of Health. These recommendations were communicated to the Government by the letter addressed by the Under Secretary of the Commission on 19th September, 1967 to the Secretary to the Government of India. Ministry of Health. The names of all the three persons viz. Bhim Singh Jain (Respondent No. 1), Sharnagat Singh Khandpur and Harbans Lal Dhal in respect of whom clarification had been sought in the Commission's letter of 27-4-1967 were recommended for inclusion in the Specialists Grade. As regards Dr. (Smt.) Achy Moses and Dr. Jagdish Chandra Suri and others the Commission said :
'ASregards the remaining officers in whose cases the recommendation of the Selection Committee/Commission were provisional, the Commission advise as under.
(A)Dr. (Smt.) Achy Moses, Dr. Jagdish Chandra Suri, Dr. Kunal Saha, Dr. Sudhir Chandra Chatterjee, Dr. Kali Bhushan Dutta, Dr. Kidareshwar Choudhury. Dr. (Smt.) Annamma Varghese, Dr. (Smt.) Kunty Prakash, Dr. Woomesh Chandra Deb and Dr. Hardayal Singh.
(16) The post-graduate qualifications possessed by these officers are not included in Part 'A' or Part 'B' of Annexure Ii to the Second Schedule to the Central Health Service Rules, 1963, as amended by the Central Health Service (Amendment) Rules. 1966. The Ministry of Health have, however, stated that the post-graduate qualifications mentioned in Part 'A' or Part 'B' of Annexure Ii to the Second Schedule of the aforesaid Rules are only illustrative and not exhaustive as is evident from the Note below the Annexure.
(17) In this connection. I am to point out that according to the conditions of eligibility for appointment to the Specialists Grade prescribed in Rule 7-A(i) of the Central Health Service Rules, 1963, as amended by the Central Health Service (Amendment) Rules, 1966, the officers should possess infer alias the post-graduate qualifications mentioned in Part 'A' or Part 'B' of Annexure Ii to the Second Schedule to the aforesaid Rules. The Commission are, thereforee, of the view that the officers in question can be treated as eligible only after the post-graduate qualifications possessed by them. are formally included by the Controlling Authority in Part 'A' or Part 'B' of Annexure Ii to the Second Schedule of the Central Health Service Rules and advise accordingly.'
(18) Pursuant to the aforesaid recommendations the Government issued another Memorandum dated the 26th September, 1967, forwarding to all participating Ministries and Administrations etc. supplementary lists to List V, Vi and Vii for information. The Memorandum further stated that necessary notifications regarding the appointment of the officers, whose names were mentioned in the lists, to the revised grades of the Service would be issued in due course.
(19) According to the supplement to List V the name of Respondent no. I was added to the list of officers approved for appointment to the Specialists Grade. He was also given his proper seniority [serial No. 14(a)] by being placed between Dr. Madan Mohan Prasad Mahajan (serial No. 14) and Dr. Pulin Behari Majumdar (serial No. 15).
(20) On January 9, 1968 the President appointed Respondent No. 1 substantively to the Specialists Grade of the Service with effect from 9th September, 1966. The said respondent was, however, unhappy with the selection. His grievance was that List Iv which contained the names of officers approved for appointment to Supertime Grade Ii of the Service and included the names of several officers who were junior to him in class C under the 1963 Rules, were included in that list but his name was left out in spite of his experience and his fulfillling all the conditions of eligibility. His further grievance was that some of the officers who had been placed in List Vi which comprised General Duty Officers and not Specialists and were junior in pay scale, rank and status to him, had been placed in List IV. He, thereforee, moved this Court with a petition under Article 226 of the Constitution in which his prayer was for staking down Rules 7-A and 4(2) as unconstitutional and also to quash List Iv as having been prepared in contravention of Rule 7-A. He also prayed for a direction to Respondents I and 2 (Union of India and the Selection Committee constituted under Rule 7) to prepare a fresh list in accordance with Rule 7-A(i)(b) and 7-A(2) so as to place the following officers who were drawn from List Vi, namely, Dr. G. C. Mathur, Dr. I. N. Choudhuri, Dr. Jai Lal, Dr. Krishan Swaroop, Dr. K. Ramanujam and Dr. W. C. Malhotra who were imp leaded as respondents 3 to 8 in the petition below the officers drawn from List 7 and include his name in List Iv below the name of Dr. Madan Mohan Prasad Mahajan and above the name of Dr. Pulin Behari Majumdar. There was also a prayer that the first respondent (Union of India) be restrained from constituting a Departmental Promotion Committee for preparation of lists of preferences for promotion to Supertime Grade II.
(21) It appears that although in the writ petition the ire of Respondent No. 1 was mostly directed against Dr. G. C. Mathur and five others who as we have already seen were imp leaded by him as respondents 3 to 8, in the course of counsel's arguments before the learned single Judge, the appointment of Dr. (Smt.) A. Moses and Dr. Jagdish Chandra Suri whose inclusion in List Iv was made the focal point of attack and the shot has nearly hit the bull's eye, as would appear from the following observation in the judgment :
'YET,it is seen from List VIII-A (Annexure 1 to the petition) that as against Dr. Moses and Dr. Suri the following remark had been made 'for Specialists Grade only'. But as against the petitioner nothing was mentioned. If both . Dr. Moses and Dr. Suri were also like the petitioner brought into List Iv, of officers approved for appointment to the C.H.S. were still under consideration for verification, I am unable to follow how Dr. Moses and Dr. Suri were brought into List Iv, of officers approved for appointment to the Supertime Grade II.'
(22) Learned Judge has also referred to the fact that according to the return filed on behalf of the Government the names of Dr. Moses and Dr. Suri were cleared on 22nd April 1968 while the name of the petitioner (Respondent No. 1 herein) was cleared on 26th September 1967.
(23) The next circumstance to which the learned single Judge has referred is that after Lists I to Ix were published certain adverse remarks for the year 1965 were communicated to Respondent No. 1. Those remarks were later expunged on 5-3-1969 and in their place favorable remarks were substituted.
(24) Before the learned single Judge three contentions were advanced on behalf of Respondent No. 1 and were accepted. Firstly, it was contended that if as stated in List VIII-A the name of Respondent No. I was still under consideration for appointment as a Specialist he could not have been considered by the Selection Committee for a post in Supertime Grade II. He was., thereforee, not within the field of choice. Secondly, even if he was within the field of choice he had been probably adversely affected by reason of the confidential entries of 1965 which were communicated to him only after the lists were published. The fact that the adverse entries were subsequently expunged and replaced by favorable entries could not thereforee be before the Selection Committee. Thirdly, respondent no. 1 having already been selected under sub-rule (1) of section 7-A(b) he had to be included under Rule 7-A(2) in List Iv for appointment to a Supertime Grade Ii post, by virtue of his seniority especially in view of the fact that 19 un-specified Specialists posts had been created and his rank was sufficiently high to permit that being done. As a result, a direction was issued to the Union of India to place the name of respondent no. 1 in List Iv below the name of Dr. Madan Mohan Prasad Mahajan and above Dr. Pulin Bihari Majumdar. The Union of India was also restrained from insisting on Respondent No. 1 being selected over again as a condition precedent for his promotion to Supertime Grade II.
(25) It may be mentioned here that neither before the learned single Judge nor before us has any attempt been made by the learned counsel for Respondent No. 1 to assail the validity of Rules 7-A and 4(2).
(26) We may now proceed to notice the contentions urged before us on behalf of the appellant (Union of India) It is argued that under Rule 7(1) the Commission was required to constitute a Selection Committee or Committees with the Chairman or a member of the Commission as President and a representative of the Ministry of Health and Family Planning and two medical officers nominated by the said Ministry as members to determine the suitability of persons regularly appointed to a Duty post or to a post of the designation specified in Part B of the First Schedule, as in force on the appointed day and who held any post specified in Part 'A' or Part 'B' of the First Schedule or held a lien on such a post, on the appointed day, for appointment to the different categories and to prepare an order of preference for each category for the initial constitution of the Service. The appointed day as defined in the Rules means the date on which these Rules came into force. These appointments were to be made for the initial constitution of the Service.
(27) The Commission constituted three such Committees for the purpose of determining the suitability of those persons who were described as departmental candidates. The appointments were to be made on the basis laid down in Rule 7-A. Under Rule 7-A(i)(a) the officers who held posts in Category A or Category B of the Service or in any equivalent posts under the 1963 Rules, were entitled to be appointed to the corresponding Supertime Grade I or Grade Ii of the Service under the 1966 Rules. The appointment in the case of such officers was automatic.
(28) Rule 7-A(i) (b) relates to officers in categories C to E or in any other post in the Service. They were to be appointed to the appropriate category after selection made on the recommendation of the Selection Committee on the basis of the experience and the conditions of eligibility of each officer as laid down in the succeeding portion of the rule.
(29) In other words, it was for the Selection Committee constituted under Rule 7(1) to examine the lists of officers belonging to categories C to E and other posts according to 1963 Rules and determine the appropriate new category under the 1966 Rules to which each of those officers may be appointed keeping in view the experience of such officer and the fact that he satisfied the conditions of eligibility for which a provision was. made in the Rule itself.
(30) Learned counsel for the appellant argues that the contention of Respondent no. 1 that his name could not have been considered by the Selection Committee for a post in the Supertime Grade Ii is not correct. In this connection our attention has been drawn to the minute? of the proceedings of the three Selection Committees constituted under Rule 7(1) which, the learned counsel contends, were also placed before the learned single Judge. A perusal of these minutes which are signed by Mr. D. Mehta, Member-President and Mr. Gobind Narain, Secretary, Ministry of Health, Dr. K. N. Rao, Director-General of Health Services and Dr. M. S. Chada, Director National Institute of Health Administration and Education, New Delhi, who were members of the Committee shows that the authorized strength of Supertime Grade Ii including deputation posts provided in the 1966 Rules was 137 posts. Out of these 83 persons were eligible for appointment to Supertime Grade Ii under Rule 7-A(1) as per list furnished by the Ministry of Health with their letter dated 17-1-1967. The Committee was thus required to make selection for appointment to 54 posts in that grade under Rule 7-A(2). The particulars of the vacancies in that grade and the qualifications and experience requisite for the vacancies was furnished by the Ministry of Health, and is Annexure Ii to the minutes of proceedings. The name of Respondent no. 1 occurs at Seriall no. 18 in that list. The proceedings also show that after examining the records of all the eligible officers having the qualifications and experience requisite for the vacancies the Committee recommended the names of 35 officers as in Annexure Iii for absorption into Supertime Grade II. All the officers whose names were thus recommended were to rank en bloc below 83 officers who were included in Annexure I and all appointments were to be made in the order in which the names of the officers figured in Annexures I and III. There is thus no substance in the contention of Respondent No. 1 that his name had not been considered by the Selection Committee for a post in the Supertime Grade II.
(31) The second contention of Respondent No. 1 also does not appear to us to be substantial because there is absolutely no material on record to show that his case for being included in Supertime Grade Ii was in any way adversely affected by reason of the confidential entries which were communicated to him after the lists were published. In the entire correspondence between the Ministry of Health and the Commission, there is absolutely no reference to any such matter nor do the proceedings of the Selection Committee which was concerned with screening of departmental candidates for absorption into Supertime Grade Ii furnish any such indication. On the other hand, there is a note at the foot of Annexure Iii which gives the names of 35 officers recommended for absorption into Supertime Grade Ii which clearly shows that the Ministry of Health was collecting information whether disciplinary proceedings/inquiry were pending against any of the above mentioned officers and that if it was found that disciplinary proceedings/inquiry were pending against any of those officers the recommendations in respect of them should be treated as provisional subject to clearance in the disciplinary proceedings/inquiry.
(32) This note makes it absolutely clear that if the Committee was otherwise inclined to place Respondent No, 1 in the select list the existence of any adverse remarks, particularly those which had not even been communicated to him, could not have stood in his way when even the pendency of disciplinary proceedings or inquiry did not stop the Committee from making its recommendations with respect to other officers.
(33) Learned counsel for respondent no. 1 contends that even though nothing might have been said in the. correspondence between the Ministry of Health and the Commission or in the minutes of the proceedings of the Selection Committee and even if it were assumed that Respondent No. 1 was in fact considered by the Selection Committee there is no earthly reason why he should not have been included in List Iv when persons below him in the list of Specialists Grade and those above him in that list were en bloc placed in exactly the same order as in List IV. He further contends that neither any member of the Selection Committee nor any other officer of the Government who may have been present at the meeting of the Selection Committee has come forward with an affidavit to explain why Respondent No. 1 was kept out and that in the absence of any such Explanationn it is not legitimate to assume that there must be some unknown and undisclosed reasons which impelled the Selection Committee to exclude the said respondent from being placed in List IV. On the other hand, it is legitimate to assume that either Respondent No. 1 was not considered at all or was left out by oversight.
(34) We do not think this is a proper way of looking at the matter. We have already seen that the name of Respondent No. 1 was placed before the Selection Committee. It is not for this Court to probe into the mental processes of the members of the Selection Committee in order to discover as to what weighed with them in excluding Respondent No. 1 from List IV. It is self evident that the right to select includes the right not to select. The only right which Respondent No. 1 could legitimately claim was to be considered for selection. He could not insist upon being selected. That right we have seen he has already had. It is not his case that any member of the Selection Committee or any one in the Government had any bias against him or that the Committee has acted mala fide. This contention of Respondent No. 1 must also thereforee fail.
(35) This brings us to the last contention of Respondent No. 1 which has found favor with the learned single Judge. What was contended before the learned Judge was that Respondent No. 1 having already been selected under sub-rule (1) of Rule 7-A(b), he was entitled as of right under Rule 7-A(2) to be included in List Iv according to his seniority for appointment to Supertime Grade Ii posts, especially in view of the fact that 19 unspecified Specialists posts had been created and his rank was sufficiently high to permit this being done. As .against that the contention advanced on behalf of the Union of India was that after the selection under Rule 7-A(1)(b) there had to be a further selection under Rule 7-A(2) for the purpose of determining the suitability of the candidate to a higher category. This contention of the appellant appears to have been rejected by the learned judge who seems to be of the opinion that Rule 7-A(2) is merely concerned with filling up vacancies and has nothing to do with any further selection. Its purpose is merely to fill vacancies in each category by the appointment of departmental candidates who have already been selected under sub-rule (1).
(36) This construction of Rule 7-A(1)(b) and Rule 7-A(2) by the learned single Judge appears to us, if we may say so with respect, to be correct and we are, thereforee, in complete agreement with him in so far as construction of the above portion of Rule 7-A is concerned. In fact, the learned counsel for the appellant himself concedes that the argument with regard to a further selection under Rule 7A(2), as had been advanced before the learned single Judge, cannot be sustained. What he submits now is that Rule 7-A(1)(b) and Rule 7-A(2) are designed to perform entirely different functions. While Rule 7-A(1)(b) deals with appointment of departmental candidates to appropriate categories after selection and, thereforee, merely lays down the basis for such appointment. Rule 7-A(2) actually deals with the filling up of vacancies by making such appointments which is to be done by the Government. All that Rule 7-A(2) lays down is that in the first instance vacancies in each category shall be filled by the appointment of departmental candidates which have already been selected Tinder Rule 7-A (1) which obviously covers all categories of Service and it is only after it is found that suitable departmental candidates are not available for filling a vacancy that recourse is to be had to the filling of such vacancy by direct recruitment through the Commission.
(37) There is a great deal of force in the submission made by the learned counsel for the appellant. This: will be clear from what was done by the Selection Committee itself for it clearly stated that after appointing 35 officers whose names were recommended by the Committee for absorption in Supertime Grade Ii in addition to 83 officers who were already eligible for appointment to that grade if there were still some vacancies which remained unfilled the same shall be filled by direct recruitment through the Union Public Service Commission vide Rule 7-A(2).
(38) Finding that the above construction of Rule 7-A, while it did not support the earlier contention of the learned counsel for the appellant before the learned single Judge, it also did not hold the case of Respondent No. 1 in any manner, learned, counsel for the respondent no. 1 has put forward a fresh construction by submitting that the function of the Selection Committee under Rule 7-A(1)(b) is limited to two things :- ... ...
1.to judge the suitability of each individual officer of former category C, D or E for absorption in the reorganized service, and
2.to decide whether he should be placed in the category of Specialists or in the category of General Duty Officers and in the case of the latter category to decide further having regard to his experience and qualifications whether he should be put in the category of General Duty Officers I or the lower category of General Duty Officers II.
(39) The Selection Committee has no other function to perform except what is stated above. In other words, selection to 'the appropriate category' only means selection to either the Specialists Grade or the General Duty Officers Grade I or General Duty Officers Gade II.
(40) We do not see how this argument can be of any help to Respondent No. 1 assuming his learned counsel were right as the only effect of accepting it would be to uphold the action of the Selection Committee in selecting him to the Specialists Grade which it has already done. It will no doubt have one other effect too, namely, to invalidate the selection of other officers belonging to categories C to E to Supertime Grade II. But that is hardly the object which Respondent No. 1 could be having in view.
(41) It, however, seems to us that even as a matter of construction the expression 'appropriate category' used in Rule 7(1)(b) cannot be restricted to the Specialists Grade or the General Duty Officers Grade I or General Duty Officers Gade II. In our opinion the expression is wide enough to take within its sweep all the posts in the new categories including Supertime Grade IT. This conclusion is further reinforced by reference to Rule 7(1) according to which the function of the Selection Committee or Committees constituted there under was 'to determine the suitability' of persons mentioned in the said rule 'for appointment to the different categories and to prepare an order of preference for each category for the initial constitution of the Service.'
(42) There is nothing in the above Rule to suggest that there was any limitation on the power of the Selection Committee to determine the suitability of the officers for only one category as the learned counsel for Respondent No. 1 seems to suggest. An officer could very well be placed in more than one list.
(43) Learned counsel for Respondent No. 1 next contends that the above interpretation of Rule 7-A(1)(b) i.e. that the appropriate category means any one of the new categories from General Duty Officers Grade Ii to Supertime Grade I will lead to the following anomalies :-
(I)While a former category E officer holding a Class Ii post in the scale of Rs. 325.00 to 800.00 has to be considered even to a Supertime Grade I post carrying a pay of Rs. 2,750.00, a former Supertime Scale B Officer despite the fact of his holding a Senior Class I post in the scale of Rs. 1,300.00 to Rs. 1,600.00 cannot have a chance of being considered for the next higher post of Supertime Grade 1. The exclusion of former Supertime Scale B Officers altogether from the zone of selection to Supertime Grade I while considering former category E Officers is not only irrational but highly arbitrary rendering the rule vocative of Articles 14 and 16 of the Constitution.
(II)Just as the former category E Officer is eligible to be considered for Supertime Grade I, a former category C Officer holding a Class I post in the scale of Rs. 675.00 to Rs. 1,300.00 will be liable to be considered for General Duty Officers Grade Ii which is a Class Ii post in the scale of Rs. 350.00 to Rs. 900.00 which is not only irrational and arbitrary but constitutes a reduction in rank and a punishment within the meaning of Article 311 of the Constitution.
(III)Yet another anomaly would be the possibility of a former category C Officer being not selected at all for absorption in the Service while another colleague of his is found suitable, but to the lowest post of General Duty Officer Grade Ii in the reorganized Service. While the former officer, though not selected and thereforee was considered inferior to the latter officer, would retain his old status, emoluments, rank etc. in tact, the latter though considered superior, in the sense that he has been selected for retention in the reorganized Service, yet he loses his old status of a Class I Officer, his emoluments and his rank vis-a-vis his erstwhile colleagues. This would certainly constitute a punishment as well as reduction in rank within the meaning of Article 311 of the Constitution.
(44) Thus the interpretation suggested by the appellant renders the rule itself ultra virus the Constitution and strikes at its very root. On the other hand, the construction canvassed by the Respondent No. 1 not only makes the rule meaningful and reasonable but fulfills the very object for which it was framed.
(45) We are unable to discover any such anomaly. So far as officers in Superscale B i.e. category B of 1963 Rules were concerned they were already in what on revision under 1966 Rules, came to be called Supertime Grade IT. The only change made by the latter rules was that the maximum of the scale was raised from Rs, 1600.00 to Rs. 1,800.00 Their appointment to a post in Supertime Grade Ii was, thereforee, automatic and did not involve any selection. It is only officers in categories C, D and E who had first to be categorized as Specialists or General Duty Officers Grades I and Ii and then considered for appointment in those categories or in the higher categories of Supertime Grade Ii or Grade 1. The categorization of various officers in the Service being rational there is no question of Articles 14 and 16 of the Constitution being violated in any manner.
(46) The instance of a former category E officer being eligible to be considered for Supertime Grade I and the possibility of a category C officer holding a Class I post in the scale of Rs. 675-1300 being liable to be considered for Class Ii post as a General Duty Officer Grade Ii in the scale of Rs, 350-900 is not only purely hypothetical but wholly unrealistic. The object of reorganization being to fix the officers of former categories C to E in appropriate categories under the 1966 Rules, the Selection Committee is expected to see that its determination does not have the effect of reducing any officer in rank so as to attract the constitutional prohibition contained in Article 311. The same consideration apply to the other instance mentioned by the learned counsel.
(47) Learned counsel for Respondent No. 1 then contends that in any case, Rule 7-A postulates only one Selection Committee and not three Committees as was done in this case. According to the learned counsel Rule 7-A(i)(b) particularly refers to 'the recommendation of a Selection Committee' and not 'Committees'. Apart from the fact that all the three Committees had a common President which meant complete co-ordination between the Committees, it is well known that unless there is something repugnant in the context, the use of a singular word in a rule includes the plural. In the present case, however Rule 7(1) which provides for the constitution of the Selection Committee itself provides for constitution of Committee or Committees. It is apparent that the word 'Selection Committee' as used in Rule 7-A(i)(b) has to be understood as envisaged in Rule 7(1).
(48) There is one other matter which appears to have weighed with the learned single Judge in holding that Respondent No. 1 was entitled to a post in Supertime Grade Ii by virtue of his seniority and experience. The matter relates to the creation of 19 unspecified Specialists posts upgraded to Supertime Grade II. Learned counsel for the appellant submits that these posts were included in Supertime Grade Ii not with reference to the actual number of officers who had completed 8 years of service or more on a particular date but only with a view to providing opportunities of promotion to the former category 'C' officers holding clinical Specialist posts. The number of clinical Specialist officers who had completed more than 8 years of service was much larger than 19. Respondent No. 1 could not. thereforee, claim to be appointed to one of those upgraded posts is of right.
(49) There is substance in the argument of the learned counsel. A reference to Part C of the First Schedule to 1966 Rules which relates to the authorized strength of the Service shows that the total number of authorized posts (137) includes those 19 unspecified posts. The Selection Committee does not seem to have made any recommendations about those posts as its proceedings of which the original minutes have been placed before us, show that the recommendations of the Committee were in respect of 35 posts only. At least no material has been placed on record by either side as to what has happened to those posts. In any case, keeping in view the nature of those posts and the fact that Respondent No. 1 cannot claim one of those posts as of right, we find it difficult to uphold the order made by the learned single Judge on the basis of these unspecified 19 posts as we are not in. a position to say whether Respondent No. 1 possessed the necessary requirements for holding these posts.
(50) Before we conclude we may mention that at the end of the arguments, the learned counsel for the appellant has brought to our notice the copy of office Memorandum No. 1/3/65-Estt.(D) dated 20-2-1967 from the Ministry of Home Affairs regarding review of recommendations of Selection Committees in a case where the adverse entries in the confidential reports of an individual are expunged or toned down. He has also shown us a letter dated 23rd July, 1970 addressed by the Ministry of Health to its counsel wherein it is stated that the case of Respondent No. 1 for promotion to Supertime Grade Ii will be referred to the Commission for review and consideration by the Departmental Promotion Committee at an early date in accordance with the prescribed procedure. We have every hope that the claim of the respondent will receive due consideration and if it is discovered that he has been prejudiced in any manner by the unmerited adverse entries and was otherwise quite suitable for being included in List Iv, he will not only be promoted to Supertime Grade Ii but will also be assigned his due seniority with retrospective effect and any other benefits to which he may be considered entitled according to law. With these observations, the appeal is accepted and the order made by the learned single Judge is set aside. The parties are, however, left to bear their own costs throughout.