TaxTMI 
TaxTMI 
1981 (11) TMI 200
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....ers including Dr. Jiwan Lal, Dr. (Mrs.) Damyanti Kapur, Dr. S.P. Kapoor and Dr. K. Pandeya, who were respondents Nos. 8, 9, 6 and 7 respectively in the Writ Petition. Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980 is the second respondent in Writ Petition No. 288 of 1979 and 6th respondent in W.P. No. 2 of 1980. Dr. Jiwan Lal, the appellant in C.A. No. 2384 of 1980 is the first petitioner in W.P. No. 288 of 1979 and 8th respondent in W. P. No. 2 of 1980. 2. Writ Petition No. 288 of 1979 challenged the reversion of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur, the petitioners therein, from the post of Deputy Directors of Health Services, as illegal and violative of the conditions of service as also the provisions of the Constitution of India. In Writ Petition No. 2 of 1980 Dr. R.M. Bali prayed for quashing the seniority of specialists indicated in the Office Memo dated 2.11.1979 and Annexure PX-1 containing the list and for assignment of Serial No. 1 in the seniority list to him. Dr. R.M. Bali prayed for certain other reliefs also including declaration of the appointment of Dr. S.P. Kapoor as Director of Health Services as null and void and for his case being considered f....
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....Kapur from the posts of Deputy Directors is illegal and violative of the conditions of their service as also the provisions of the Constitution of India. 4. The case of Dr. R.M. Bali, the petitioner in W.P. No. 2 of 1980 was that he was appointed as T.B. Officer, T.B. Sanatorium, Mandodhar, a Gazetted Class II post, with effect from 9.4.1955 and he continued to work as such till 28.5.1962. He was, thereafter, appointed as Superintendent in that Sanatorium, a Class I post, and after joining the post he was selected for appointment on a regular basis through the Public Service Commission and he was confirmed in that post, categorized as Category 'D' post and Class I post in the Central Health Services, in 1966. The Medical and Health Department of Himachal Pradesh Government appointed him as Director of Health (T.B.), a Category 'D' post by a Notification dated 1.7.1963. He was inducted into the Central Health Services with effect from 9.9.1966 and included in the initial Constitution of that Service and confirmed in that Service on 9.9.1968. But Dr. Grover, who has since retired, and Dr. S.P. Kapoor, who were respondents 5 and 6 respectively in Writ Petition No. 2....
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....only on 2.11.1979 and since that impediment was over on 2.11.1979. the Departmental Promotion Committee met on 3.11.1979 and orders of appointment to those selected by that Committee on that date were issued on the same day. The promptness in making the regular appointments was necessitated by the intention to make the regular appointment as quickly as possible after the preparation of the final seniority list on 2.11.1979. Specialists are necessarily officers possessing post-graduate qualifications while G.D.Os. Class I are, as a rule, only graduates. Therefore, the Rule making authority divided the higher posts equally amongst the Officers of the two categories taking all factors into consideration. The appointment of Dr. S. P. Kapoor, the second respondent in W.P. No. 288 of 1979 as Director of Health Services is valid. Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were not Deputy Directors of Health Services on the date of selection of Dr. S.P. Kapoor as Director of Health Services and, therefore, their claim for being considered for promotion to that post is wholly untenable having regard to Rule 9(3) of the Rules, according to which only Deputy Directors could be considered for....
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....Services Rules, as amended by the Central Health Services Amendment Rules, 1966, will rank en bloc senior in that grade Under Rule 8 of the Central Health Services Rules, 1963. 2. The Officers of the Punjab Government were appointed to the Central Health Services with effect from 1.11.1966 Under Rule 8(A) of the Central Health Services Rules, 1963. Those officers have come to the Central Health Service only after the initial Constitution of that Service was over. In accordance with the principles laid down for the Central Health Services it is not permissible to assign them seniority in the Central Health Services over the Officers appointed to the Central Health Services at the initial Constitution of the Service. 3. However, as the Government of Himachal Pradesh have proposed to formulate their own Health Services and the Medical Officers who opt from the Central Health Services are to be included in that Service, those Officers may be asked to exercise their option. In case they chose to remain as members of the Central Health Services their seniority will be reckoned only at the maintenance stage of the Central Health Services and they cannot get seniority in ....
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....t/Resident Medical Officer/Surgical Specialists, Ripon Hospital from the date on which they were given the PCMS scale, the learned Judges of the High Court found that the Central Health Service was constituted by the Central Government and the Health Service Rules, hereinafter referred to as the "Central Rules", framed by the President of India, in exercise of the powers conferred by Article 309 of the Constitution of India, came into force with effect from 15.5.1963 and that the Central Rules were amended by the Central Health Services (Amendment) Rules, 1966. Before the Punjab Reorganisation Act came into force the State of Punjab had its own Health Service known as the PCMS with two grades, Grade I and Grade II. After the Punjab Reorganisation Act came into force, and the Central Health Service was formed, some persons belonging to the PCMS and some persons working as Medical Officers in hospitals run by Local Bodies were inducted into that into that Service after they had exercised their option to be inducted therein. The Writ Petitioners and contesting employees-respondents had been inducted into the Central Health Service after they had exercised their option. When the Himach....
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.....O. Grade I, and Under Rule 10 (a) (iii) as regards (ii) Specialists from the date of regular appointment having been selected by the Union Public Service Commission, Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee in the following grades, namely (i) Specialists (Central Health Service), (ii) PCMS (I) with post-graduate qualifications and (iii) Deputy Medical Superintendent/Resident Medical Officer/Surgical Specialists, Ripon Hospital from the date on which the scale of PCMS (I) was given to them. It was admitted that as alleged in W.P. No. 2 of 1980, Dr. R.M. Bali was inducted into the Central Health Service on a regular basis only on 9.9.1966 and Dr. Grover and Dr. S.P. Kapoor, respondents 5 and 6 in that Writ Petition, were inducted into the Central Health Service only with effect from 1.11.1966 and, therefore, Dr. R.M. Bali was senior to Dr. Grover and Dr. S. P. Kapoor in the Central Service. Dr. R. M. Bali and Dr. S. P. Kapoor were both specialists. S. P. Kapoor contended before the High Court that he had been contended by the Punjab Service Commission on 29.1.1965 and had post-graduate qualification....
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....fication dated 3.11.1979 appointing Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980, Dr. K. Pandeya and Dr. R.M. Bali as Deputy Directors (super-time Grade II-General) and Dr. S.P. Kapoor as Director, Health Services (Super-time Grade I- General) and directed the State Government to make the appointments to these posts on the basis of the modified seniority list to be prepared in accordance with the directions given in their judgment. They disposed of Writ Petitions Nos. 288 of 1979 and 2 of 1980 as indicated above and directed the parties to bear their respective costs. 11. The Himachal Pradesh Union Territory was constituted on 1.11.1966. On and from the appointed day, which in the present case is 1.11.1966, Simla, Kangra, Kulu and Lahaul and Spiti districts and certain other areas in the original State of Punjab became parts of that Union Territory under Section 5 of the Punjab Reorganisation Act (Central Act) 1966. The Central Rules, 1963 came into force on the appointed day and were later amended by the Central Health Service (Amendment) Rules 1966. These Rules, as amended, are found on pages 336 to 346 of the paper-book in C.A. No. 2104 of 1980. The Central Health ....
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.... State prior to the date of its organisation, which later became part of the Himachal Pradesh Union Territory under Section 5 of the Punjab Reorganisation Act, 1966 as mentioned above. During the period of his probation he had to come into the Central Health Service on the Constitution of Himachal Pradesh Union Territory on 1.11.1966 as he was allotted to that State and had been selected by the Union Public Service Commission in the same manner as Dr. R.M. Bali had been selected. Thus, all the three individuals, Dr. R.M. Bali, Dr. Jiwan Lal and Dr. S.P. Kapoor came to be in the Central Health Service on the Constitution of Himachal Pradesh Union Territory on 1.11.1966. Dr. S.P. Kapoor was appointed to to Specialists' Grade in the Central Health Service along with Dr. Grover and two others Under Rule 8A of the Central Rules as amended in 1966 by the President's Order No. F.32/48/65-CHS-II (V. II) dated 26.8.1970 with effect from 1.11.1966. Dr. R.M. Bali was appointed along with another to the Specialists' Grade in the Central Health Service with effect from 9.9.1968 by the President's Order No. F. 32-l(6)/70-CHS III dated 27.1.1971. 12. The full fledged Himachal P....
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..... Kapoor and Dr. R.M. Bali are Specialists on the General Side and that Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur are Himachal Pradesh Health Service Grade I Officers. 13. The Himachal Pradesh Government, by Order No. HFW/B-(9)-7/78 dated 19.3.1978 confirmed Dr. Grover and Dr. S.P. Kapoor, who originally belonged to the Punjab Civil Medical Service, with effect from 27.4.1964 and 29.1.1965 respectively and Dr. R.M. Bali who came originally from the Central Health Service with effect from 9.9.1966 and certain others with effect from 24.1.1974, leaving the question of seniority open. 14. Prior to 2.11.1979, Dr. S.P. Kapoor, Dr. K. Pandeya, Dr. R.M. Bali, Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were working as Deputy Directors, Health Services in the Himachal Pradesh Health Service on ad-hoc basis and Dr. Grover was working as Director of Health Services on ad-hoc basis during 1975 to 1977. Dr. K. Pandeya replaced Dr. Grover as Director of Health Services on ad-hoc basis in June 1978 by the Governments Order No. 1-15/74-HP (Apptt) dated 8.6.1978. This fact, mentioned by Mr. Mehta, learned Counsel appearing for Dr. S.P. Kapoor in the course of the arguments, was not dispute....
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.... I Officers as Director of Health Services is 50: 50. 15. The learned Judges of the High Court held that seniority has to be determined on the basis of the date of induction into the Central Health Service and not on the basis of the earlier induction into the Punjab Civil Medical Service though they have observed that the words "whichever is earlier" which occurred originally in Rule 10 (a) (iii) of the Rules were omitted retrospectively in order to do justice in the matter of seniority to these Doctors who came into the Himachal Pradesh Health Service from any local authority or the Punjab Civil Medical Service and not from the Central Health Service. On that basis they have fixed the seniority of Dr. R.M. Bali above Dr. S.P. Kapoor on the ground that the former was inducted on 9.9.1966 and the latter was inducted on 1.11.1966 into the Central Health Service and found that the seniority of Dr. D.S. Chauhan is rightly reflected in the Specialists' Grade. They have directed modification of the seniority of Doctors in the Specialists Grade in accordance with their judgment; namely, on the basis of the date of induction into the Central Health Service. Regarding writing of the....
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..... Jiwan Lal in the Himachal Pradesh Health Service though he would undoubtedly be junior to Dr. R.M. Bali and Dr. Jiwan Lal in the Central Health Service as he had come to that Service only on 1.11.1966 while those two individuals had come into that Service on 9.9.1966. But Mr. Tarkunde, appearing for Dr. R.M. Bali and Mr. Sanghi, appearing for Dr. Jiwan Lal, contended that the basis of seniority has been rightly determined by the learned Judges of the High Court, and Mr. Sanghi submitted that in the List Dr. Jiwan Lal will come first and that if Dr. R.M. Bali is held to be senior, Dr. Jiwan Lal would rank next to him. 17. Mr. Pande, the then Joint Secretary, Home Affairs, Government of India had stated in his D.O. Letter No. 22/5/67-67-SR (S) dated 14-2-1967 addressed to the Chief Secretary, Himachal Pradesh Government (Union Territory), that the Central Government has already informed the Chief Secretary by letter dated 17.11.1966 that the allocation of the Government servants among the States of Punjab, Haryana and Himachal Pradesh and Chandigarh, which had already been made provisionally under Section 82(b) of the Punjab Reorganisation Act, are to be finalized by the end of ....
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....Service Rules, 1963. As these Officers have come into the Central Health Service only after the initial Constitution of that service was over, in accordance with the principles laid down for the Central Health Service, it is not permissible to assign them seniority in the Central Health Service over the officers appointed to the Central Health Service at the initial Constitution of the Service. However, as the Government of Himachal Pradesh have proposed to form their own Health Service and the Medical Officer who are to opt from the Central Health Service are to be included in that Service, these Officers may be asked to exercise the option first. In case they choose to remain as members of the Central Health Service, their seniority will be ranked only at the maintenance stage of the Central Health Service and they cannot get seniority in the Central Health Service on the basis of their prior service under the Punjab Government. Those officers who opt to join the proposed Himachal Pradesh Health Service may, however, be given the benefit of their past continuous service while fixing their seniority in the Himachal Pradesh Health Service. At the time of formation of that ....
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....adesh need not be bound by the Rules and Regulations governing Central Health Service Scheme in respect of the provisions that might be made in the Himachal Pradesh Health Service. The Government of Himachal Pradesh may lay down any principles that may be acceptable to the officers concerned keeping in view the principles of equity and justice. 21. Rule 4 of the Rules relates to classification, categories and scales of pay and reads as follows: 4. Classification, categories and scales of pay and reads as follows: (1) The Himachal Pradesh Health Service Cadre will consist of the two wings namely the General Wing and the Teaching Wing. These two wings of the service shall be independent of the each other and posts will not be inter changeable at any stage, except the posts which carry a scale of Rs. 400-1100 or a pay scale lower than that which are included in the service. There shall be six categories in Health Wing; (General) and four categories in Health Wing (Teaching). Each category shall consist of the grades specified in column 2 of the table below: (2) The scales of pay and classification of such grades shall be specified in corresponding entries....
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....he Specialists, grade in the Central Health Service with effect from 1.11.1966 while Dr. R.M. Bali and Dr. Jiwan Lal, who were in the Central Health Service on the date of its Constitution on 9.9.1966 had been taken in the Specialists' grade and G.D.O. Grade I respectively under the Central Health Service with effect only from 9.9.1968. Therefore, under Rule 10 (a) (iii) of the Rules, Dr. S.P. Kapoor has to rank senior to Dr. R.M. Bali as well as Dr. Jiwan Lal who admittedly has to rank after Dr. R.M. Bali. 24. Mr. Tarkunde submitted that a letter like the one dated 9.7.1971 mentioned above could have been addressed by the Central Government under Section 84 of the Punjab Reorganisation Act to the Administrator of the Himachal Pradesh Union Territory and that the letter dated 9.7.1971 referred to above could not have been written under that Section as Himachal Pradesh Union Territory ceased to be in existence when the full-fledged Himachal Pradesh State came into existence on 25.1.1971 itself. Section 84 of the Punjab Reorganisation Act says that the "Central Government may give such directions to the State Government of Punjab and Haryana and to the Administrators of the Un....
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....asis of recruitment was selection on merit and the previous test of seniority-cum-suitability was abandoned. In our opinion, the present case falls within the principle of the recent decision of this Court of Marvyn v. Collector (1967)ILLJ749SC . 26. We are of the opinion that the ratio of this decision will not apply to the facts of the present case. 27. On the other hand, Mr. Mehta invited our attention to two decisions of this Court in N. Subba Rao etc. v. Union of India and Ors. [1973]1SCR945, and C.P. Damodaran Nayar and P.S, Menon v. State of Kerala and Ors. [1974]2SCR867 . The decision in N. Subba Rao etc. v. Union of India and Ors. related to the inter se seniority of officers of two regions of different States which came to form a single State on 1st November, 1956. On 1.11.1956 the State of Andhra Pradesh came into existence under the States' Reorganisation Act 1956. That State was formed out of the former State of Andhra Pradesh and the Telangana area of the former Hydrabad State. The appellants in that case were Engineers in the employment of Andhra Pradesh. On the formation of Andhra Pradesh, the appellants under the States' Reorganisation Act, 1956 conti....
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.... observed thus: under Section 117 of the Act (States Reorganisation Act 1956) the Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions. 29. In accordance with the provisions of that Act, a meeting of the Chief Secretaries of the various States that were to be affected by the reorganisation' was held at the invitation of the Central Government. In that meeting it was agreed that in determining the relative seniority as between two persons holding posts declared equivalent to each other and drawn from different States, inter alia the length of continuous service, whether temporary or permanent, excluding periods in which an appointment is held in a purely stopgap or fortuitous arrangement, should be taken into account. This Court held that the appellant in that case should be given the benefit of his seniority reckoning his continuous appointment and assigning the date 26.5.1951 and substituting the same in the final list for 6.10.1951, and o....
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....o the newly formed State from the integrating States is properly fixed and that obligation has been discharged by the Central Government: (1) by Mr. Pande's D. O. letter dated 14.2.1967, (2) the stand taken by Mr. T. V. Menon, Deputy Legal Adviser, Central Government in the meeting of Officers held on 24.1.1972 and (3) the letter dated 9.7.1971 written by the Ministry of Health and Family Planning Welfare, Government of India to the Secretary to the Government of Himachal Pradesh. In these circumstances we are of the opinion that the learned Judges of the High Court have erred in holding that the inter se seniority has to be determined only on the basis of the date of induction into the Central Service and not with reference to Rule 10(a) (iii) of the Rules which had, however, been noticed by the learned Judges without a correct appreciation of its impact on what the Government of Himachal Pradesh should do in the matter of fixing the relative seniority of the Officers drawn from the integrating States. We are of the opinion that inter se seniority has to be determined only in accordance with Rule 10 (n) (iii) of the Rules and that Dr. S. P. Kapoor would be senior to Dr. R. M. ....
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.... Chief Minister of Himachal Pradesh, who was appointed additionally as Secretary of Health and Family Welfare in the absence on leave of the regular Secretary, Health and Family Welfare from 3rd to 8th November, 1979. It is seen from the counter-affidavit of the Himachal Pradesh Government that the Director of Health Services and Deputy Director of Health Wealth were holding the posts on ad hoc basis from the year 1973. The final seniority list was prepared only on 2.11.1979 and the Departmental Promotion Committee was constituted on 3.11.1979. The Joint Secretary, Personnel Department, Himachal Pradesh Government had written the letter No. Per (A-l) B-79 dated 3.11.1979 requesting Mr. R. C. Gupta, Secretary (Health) Himachal Pradesh Government to attend the Departmental Promotion Committee Meeting to be held at 3. 00 P. M. on that day for considering the names of officers for the posts of Director, Health Services. It is seen from what has been stated above and it is also admitted by the Himachal Pradesh Government that the selection of the Deputy Directors and the Director of Health Services from amongst the Deputy Directors had been made by the Departmental Promotion Committee o....
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.... I (General) posts shall be filled by promotion on the recommendations of the Departmental Promotion Committee on the basis of merit with due regard to seniority of Officers holding the posts of Deputy Directors with not less than five years service in that category. The contention of Dr. Jiwan Lal was that the Departmental Promotion Committee should not have started the rotation to post of Director of Health Services with a Specialist. On the other hand, the contention of the Himachal Pradesh Government before the High Court was that Rule 9 was silent on the question as to the category with which the roster should be started and, therefore, the State Government decided to Suppertime the Rule by starting the roster with the category of Specialists having regard to the fact that the senior-most Specialist Officer available on the date of the Departmental Promotion Committee meeting on 3.11.1979 had put in greater length of qualifying service than the senior-most HPHS (Grade I) Officer. Rule 21 of the Rules provides that if any difficulty is felt in giving effect to provisions of these Rules the Government may in consultation with the Public Service Commission give such directions no....