K.K. Mathew, J.
1. The petitioner was appointed as a Superintendent in the Secretariat, Travancore-Cochin State, in 1951. She was promoted as Assistant Secretary by Ext. P.1 order dated 19-6-1961. Her promotion as Assistant Secretary under Ext. P1 was on a provisional basis under the General Rule 31 of the Kerala State and Subordinate Service Rules, 1958. Subsequently the cases of the petitioner and other persons who were provisionally promoted to the entire of Assistant Secretary were considered by the Departmental Promotion Committee, and they made certain recommendations to the Government. The Government, after a consideration of the recommendations of the Committee, reverted the petitioner and a few others who were found unsuitable for promotion to the cadre of Assistant Secretary by Ext. P 2 order dated 23-3-1963.
2. The petitioner contends that the Government have promoted 27 Superintendents as Assistant Secretaries on the basis of the recommendations of the Departmental Promotion Committee and that of the 27 persons so promoted 5 persons are seniors to the petitioner while the remaining are her Juniors. The petitioner submits that the order passed by the Government reverting her as Superintendent is violative of her fundamental right under Article 16 of the Constitution, and that by the Order of reversion she has been reduced in rank and that as the procedure prescribed by Article 311 of the Constitution was not followed the order is liable to be quashed by this Court under Article 229.
3. The argument of the petitioner's counsel was that although Rule 28 (b) (i) of the Kerala State and Subordinate Service Rules, 1958, directs that promotion in a service or class to a selection category or grade shall be made on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal, no rules have been framed under the proviso to Article 309 declaring which are the posts which are selection posts, and that in the absence of rules in that behalf so framed it was not open to the Government by executive orders to have declared the post of Assistant Secretary a selection post. Counsel also submitted that the Government have no authority to constitute a Departmental Promotion Committee for selecting the candidates for appointment to the post.
4. The Government by [heir order dated 19-10-1959 have enunciated certain principles for making promotion in the public service on the recommendation of the Administrative Reforms Committee. Ext. P 3 is a copy of that order. That order provides among other things that,
'(a) for the purposes of promotion, those in the several departments will be divided into three categories (1) selection posts for which merit alone willcount and not seniority; (2) posts to which promotions will be given according to seniority subject to a person's fitness for promotion; and (3) posts to which promotions will be given on the basis of seniority alone; .....,'
Subsequent to the passing of this Order, Government issued G.O. MS. 957 dated 6-11-1959 (Ext. P 4) declaring the posts of Superintendents, Assistant Secretaries and Deputy Secretaries in the Administrative Secretariat as selection posts for which merit alone will count, and constituting a Departmental Promotion Committee for the Administrative Secretariat consisting of the Chairman of the Public Service Commission, Chief Secretary to Government and the senior-most Secretary to Government in the Administrative Secretariat available on the day of the meeting of theCommittee,
5. The argument of the petitioner's counsel that the executive power of the Government does not extend to the constitution of a Departmental Promotion Committee for selection of candidates for filling up selection posts, forgets the fact that the function of the Departmental Promotion Committee is only toadvise the Government in the matter of selecting proper candidates. The Departmental Promotion Committee prepares the 'select list' after assessing the suitability of the candidates competing for selection. The selection is made on the basis of merit and ability,the idea being that the best candidate should be chosen from those competing for selection. The petitioner's case was considered along with those of the other candidates and the Departmental PromotionCommittee found that the petitioner was not thensuitable for selection to the post. On that basis they made their recommendation to the Government and the Government passed the impugned order afterconsidering the recommendation of the Committee. It is open to the Government to seek the advice of any expert body in the matter of making the selection to a post. That is inherent in their executive power. They do not require the crutch of an Act or a Rule as the case may be, passed or framed under Article 309 to support that power.
8. It was submitted on behalf of the petitioner that the Government had in effect delegated their power of appointment to the Departmental Promotion Committee and that that delegation was without any authority of law. I do not think that the Government have delegated their power of appointment to the Departmental Promotion Committee, and I think that even if they have done so, it may not be invalid. Rule 9 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1980, runs as follows :
'All appointments to State and Subordinate Services shall be made by the Government.
Provided that the Government may, by general or special orders or rules and subject to such conditions as they may specify, delegate to any other Authority the power to make such appointments.'
It is clear from the rule and the proviso that the power to make appointments to the State and Subordinate Services is vested in the Government and that it is open to them to delegate that power to any authority they deem St.
7. The learned Government pleader submitted that if the position in Jaw is that the Government could delegate the power of appointment to any other authority, the fact that they sought the advice of a responsible body for making the proper selection cannot in any way make the appointment improper as the Government could have delegated their power of appointment itself to the Committee. The power to make an appointment is an executive power. That power may be exercised after taking into consideration the views of a responsible body like the Depart-mental Promotion Committee. The Supreme Court had occasion to consider the question whether it is open to an administrative authority to employ an agency for gathering the necessary materials and data for making its final decision, and whether the mere delegation of the fact finding function would amount to an abdication of its power of making the final decision. In Pradyat Kumar v. C. J. of Calcutta High Court, (S) AIR 1956 S C 285 at p. 291 it is observed :
'The further subordinate objections that have been raised remain to be considered. The first objection that has been urged is that even; if the Chief Justice had the power to dismiss, he was not, in exercise of that power, competent to delegate to another Judge the enquiry into the charges but should have made the enquiry himself. This contention proceeds on a misapprehension of the nature of the power.
As pointed out in Barnard v. National Dock Labour Board, 1953-2 Q B 18 at p. 40 it is true that no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication. But the exercise of the power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power. It is nonetheless so, by reason of the fact that an opportunity to show Cause an enquiry simulating judicial standards have to precede the exercise thereof.
It is well-recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where thelaw specifically so provides--is the ultimate responsibility for the exercise of such power.
'The volume of work entrusted to him is very great and he cannot do the great bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that theyobtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency. Unlike a Judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff.
In view of the above clear statement of the law the objection to the validity of the dismissal on the ground that the delegation of the enquiry amounts to the delegation of the power itself is without any substance and must be rejected.'
Therefore the fact that the Government delegated to the Departmental Promotion Committee the duty to collect the necessary data with regard to the suitability of the candidates for appointment to the post, would not in any way mean that they have divested themselves of their power of making the appointment; and even if they have delegated that power, it may not be invalid as they have the authority to do so under the rule referred to above. Hence I overrule the contention that the constitution of the Departmental Promotion Committee was unauthorised as there was no rule framed in that behalf, under the proviso to Article 309 of the Constitution.
8. It was submitted on behalf of the petitioner that for judging the merit and ability of a candidate no rules have been framed or executive instructions issued and that the Departmental Promotion Committee was left without any guidance in the matter, and that is arbitrary and will lead to discrimination. Although I see some force in this argument, I cannot accept it as sound. Several imponderable factors will enter into the consideration of the question of merit and ability. Any attempt to Say down minutely all those factors in the shape of rules or instructions may not be possible or expedient. An area must be left to the free play of discretion and subjective judgment. The fact that that judgment and discretion are exercised by responsible persons is the only ultimate safeguard and guarantee of their proper exercise. Merit and ability as criteria for selection cannot, therefore, be characterised as vague and indefinite.
9. The next argument of petitioner's counsel was that the Government were incompetent to declare the post of Assistant Secretary as a selection post without the sanction of an Act or a Rule passed or framed under Article 309. In support of this contention petitioner's counsel submitted that the power to declare a post as a selection post is not inherent in the executive power, but is a power which should be conferred by Act or rules to be passed or framed in that behalf under Article 309. The argument was sought to be supported on the ground that Rule 28 (b) (1) of the Kerala State and Subordinate Service Rules contemplates the passing of such an Act or the framing of such rules. It was submitted that by declaring a post as a selection post Government are indirectly laying down the qualifications for recruitment to the post within the meaning of Article 309 and therefore the Government cannot without the sanction of a statutory provision or rule in that behalf declare a post a selection post. Article 309 runs as follows :
'Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of personsappointed, to public services and posts in connection with the affairs of the Union or of any State : Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.'
Looking at the language of the articles and the proviso I am inclined to think that it is not necessary that there should be any statutory provision or rule made under Article 309 for enabling the Government to declare a post a selection post. The passing of an Act or the framing of rules under the article is discretionary. The article only enables the Legislature and the Governor to pass laws or frame rules as the case may be. The language of the article and the proviso is not imperative in character. See Mubarak Mazdoor v. K. K. Banerjee, A I R 1958 All 323. The equality of opportunity postulated in Art, 16 of the Constitution has nothing to do with the passing of laws or the framing of rules under Article 309. Even without such laws or rules a State can mete out equality of opportunity in the matter of employment.
10. The learned Government Pleader said that a Government Servant has no right of promotion to a post, and relied on High Court of Calcutta v. Amal Kumar, A I R 1962 S C 1704 and M. A. Moqeem v. State of Mysore, A I R 1963 Mys 219 in support of that position, and he argued that if Government Servant has no legal right of promotion to a particular post, it cannot be said that any of the petitioner's right has been violated by Government in declaring the post of Assistant Secretary a selection post. Counsel for the petitioner, on the other hand, submitted that hy declaring the post a selection post the opportunity for promotion for the seniormost person is taken away as he will be relegated to the position of any other candidate competing for selection.
11. No employee under the Government can claim as a matter of right a promotion from one post to another unless be can do so under a statutory provision or an enforceable condition of his service. While it is true that the equality of opportunity guaranteed by Article 16 of the Constitution does apply to all stages of the service of a Government Servant, it does not; mean that that equality should exclude the idea of selection. What is guaranteed under Article 16 of the Constitution is that while making the selection, the State should apply the same standard to all persons similarly situate not only to the initial appointment but also to the subsequent stages in the service. If a Government Servant has no legal right for promotion to a post, the declaration by the Government that that post is a selection post may not give any justiciable right to him to be taken cognizance of in a petition under Article 229 of the Constitution. I think I must pause here to make a qualification. If under the Act passed or the rules framed under Article 309, promotion to a post is to be on the basis of seniority alone, then that will form part of the conditions of service of a Government Servant, and it will not be competent to the Government to declare the post a selection post by a mere executive order. See the decision of the Supreme Court in Civil Appeal No. 677 of 1963, State of Mysore v. M. H. Bellary, A I R 1965 S C 888. But here no such question arises, as there is no rule which says that the post of Assistant Secretaryis not a selection post, and that seniority should be the only criterion for promotion to the post. Rule 28 (b) (i) of the Kerala State and Subordinate Service Rules, as amended on 23-10-1962, is as follows :
'Promotion and appointment by transfer according to merit.--Appointments to a selection category or grade in a service or class shall be made from a select list prepared from among members eligible for appointment to such category or grade in accordance with these rules and the special rules, on the basis of merit and ability, seniority being considered only where merit and ability are approximately equal. Persons included in the select list shall be ranked in the order of their seniority in the lower category or grade.'
The rule does not say which is the authority which is competent to declare that a post is within the selection category. In the absence of a rule to that effect, I assume that the Government have the power to declare the post a selection post. The sanction of a rule framed under Article 309 seems therefore unnecessary for declaring the post a selection post.
12. Petitioner's counsel brought to my attention the rulings reported in Rajvi Amar Singh v. State of Rajasthan (S) AIR 1956 Raj 104, Gopinathan v. State of Kerala, 1963 Ker L T 508 : (A I R 1964 Ker 227), S. C. Jaisinghan v. Union of India. AIR 1964 Punj 155 and A. N. Nagnoor v. State of Mysore, AIR 1984 Mys 229. These rulings do not lay down any proposition which would warrant the conclusion that under Article 309 the Legislature or the Governor is bound to lay down any law or frame any rules or that the Government cannot declare a post as a selection post, when there is no rule framed under Article 309. I do not, therefore, think that these rulings throw any light on the question in controversy in this case.
13. Petitioner's counsel submitted that there has been a reduction in rank of the petitioner because she was reverted from the post of Assistant Secretary to that of Superintendent. I am unable to agree with the contention. The reversion of the petitioner was not by way of penalty. The petitioner was promoted on the express condition that she will be demoted if the Departmental Promotion Committee did not select her. Counsel for the petitioner cited before me the ruling reported in Moti Ram v. N. E. Frontier Railway, AIR 1964 S C 600 and laid emphasis on paragraph 28 of that ruling.
'At this stage, we ought to add that in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by Article 311(2); but in regard to honest, straightforward and efficient permanent Civil servants, it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truly efficient. In our opinion, the sword of Damocles hanging over the heads of permanent railway servants in the form of Rule 148 (3) or Rule 149(3) would inevitably create a sense of insecurity in the minds of such servants and would invest appropriate authorities with very wide powers which may condeivably be abused.'
I do not think, this paragraph contains any observation which would assist the petitioner in her contentions.
14. Then the only other question for consideration is whether the case of the petitioner was considered by the Departmental Promotion Committee-Counsel for the petitioner submitted that the petitioner was not given an opportunity to rebut the adverse remarks made against her in her confidential record, and therefore the consideration of her case by the Departmental Promotion Committee was defective. I have gone through the confidential record, and I find that the petitioner was given opportunity on all occasions when adverse remarks were made against her in the confidential record to rebut them. I therefore see no merit in this contention. I think the Departmental Promotion Committee considered the case of the petitioner and came to the conclusion that she was not then fit for selection and made the recommendation to that effect to Government, and that the Government considered the recommendation and passed Ext. P2 order. I see no reason to interfere with that order.
15. I dismiss the writ petition, but in the circumstances, without any order as to costs.